It is not contrary to Community competition law to entrust to a pension fund the management of a supplementary pension scheme which is set up by the body representing the members of a liberal profession, of which membership is made compulsory by the public authorities, which itself determines the level of contributions and benefits and which operates on the basis of the principle of capitalisation
In the Netherlands, the system of supplementary pensions is governed by a law of 1972 pursuant to which such pensions are managed under collective schemes covering a particular sector of the economy, a profession or the employees of a given undertaking. Membership of such schemes is compulsory.
Mr Pavlov and four other specialists at a hospital in Nijmegen objected to their compulsory membership, from 1996 onwards, to the pension fund for medical specialists set up in 1973.
They argue that, as salaried employees of the hospital, they belong to a different fund, the pension fund for the health sector. They have therefore not paid contributions since 1996 to the medical specialists' pension fund, which has issued an enforcement order against them to pay their arrears of premiums. The applicants have challenged that enforcement order before the competent national court, which decided to stay proceedings and refer a number of questions to the Court of Justice of the European Communities on the compatibility of the Netherlands pension fund for medical specialists with Community competition law.
The Court begins by referring to its earlier case-law: a decision taken by an organisation representing employers and workers in a given sector, in the context of a collective agreement, to set up in that sector a single pension fund responsible for managing a supplementary pension scheme and to request the public authorities to make membership of that fund compulsory for all workers in that sector does not fall within the scope of the prohibition on restrictive agreements laid down in the Treaty.
The Court holds that that exclusion from the prohibition does not, by virtue of its nature, apply to funds which have not been set up in the context of collective agreements.
The prohibition on restrictive agreements thus applies, in principle, to a decision taken by the members of a liberal profession to set up a pension fund responsible for managing a supplementary pension scheme and to request the public authorities to make membership of that fund compulsory for all the members of that profession.
The Court holds that medical specialists are undertakings: as self-employed economic operators they provide services on the market in specialist medical services, they are paid by their patients and assume the financial risks attached to the pursuit of their activity. In those circumstances, their membership of a supplementary professional pension scheme appears to be closely linked to the practice of their profession.
In the Court's view, their professional body may also be regarded as an association of undertakings, in particular in that it is not composed of a majority of representatives of the public authorities.
Whilst the Court holds that, in those circumstances, a decision taken by the members of that liberal profession to create a supplementary pension fund restricts competition (since the medical practitioners do not compete with one another to obtain less costly insurance for that part of their pension), it nevertheless considers that such a decision does not appreciably restrict competition within the common market, the cost of the supplementary pension scheme having only a myarginal and indirect influence on the final cost of the services offered by medical specialists.
Thus the decision is not, in the Court's view, contrary to Community competition law, and, for the same reasons, neither is the decision by the Member State in question to make membership of the scheme compulsory.
The supplementary pension fund, as it is set up, is also an undertaking within the meaning of the Treaty. The Court observes that the fund itself determines the amount of contributions and benefits it provides. It operates on the basis of the principle of capitalisation, the performance of the investments which it makes and in respect of which it is subject to supervision by the Insurance Board determining the level of benefits provided. Those characteristics lead the Court to conclude that the fund carries on an economic activity in competition with insurance companies and is thus clearly an undertaking.
The fund has the exclusive right to collect and manage contributions in respect of a part of the pension scheme. According to the Court, it therefore occupies a dominant position on the market for insurance. However, the Court does not have sufficient information to enable it to hold that merely by exercising the exclusive rights granted to it, the fund would be led to abuse its dominant position or that it might not be able to meet the needs of medical specialists in this regard.
That being so, the Court holds that the exclusive rights granted to the fund are not contrary to Community competition law.
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