Client Sharing Between Competitors Always Has An Anti-Competitive Object, Regardless Of The Number Of Clients Shared

In Romania, the implementation of a private pension insurance system made it compulsory for certain people to join one of the private pension funds approved by the State. In the event a person joined several funds, a procedure to allocate the "duplicates" was provided: clients were to be allocated "randomly" and proportionally to each approved fund reflecting the competition "landscape". Thereafter, some funds took concerted action to allocate the duplicates (who represented less than 1.5% of the market) so as to circumvent the legal allocation system.

The Romanian competition authority sanctioned this anti-competitive concerted action. It is in the context of an appeal against this decision that the Appeal Court decided to stay proceedings and ask the ECJ whether, in the case of a client allocation practice, the number of clients allocated could have an impact on the characterization of the practice.