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62025CC0357

Opinion of Advocate General Rantos delivered on 9 July 2026

CELEX
62025CC0357
Datum
2026-07-09
Källa
eur-lex.europa.eu

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 9 July 2026 ( 1 )

Case C ‑ 357/25

Groupama Asigurări S.A.

v

Consiliul Concurenței

(Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania))

( Reference for a preliminary ruling – Competition – Agreements – Concerted practices – Restriction of competition by object – Exchange of information between insurers of civil liability in respect of the use of motor vehicles – Classification of such exchanges as a restriction by object without analysing the alternative explanations provided by the party concerned – Standard of proof )

Introduction

1. This request for a preliminary ruling, submitted by the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), concerns the interpretation of Article 101(1) TFEU, and more specifically the question of proof of a concerted practice.

2. The request has been made in proceedings between Groupama Asigurări S.A., a company providing insurance services (‘Groupama’), on the one hand, and the Consiliul Concurenței (Competition Council, Romania) (‘the CC’), on the other hand, concerning the decision by which the latter found that Groupama had infringed Article 101(1) TFEU and the corresponding provision under Romanian law, through having participated in the implementation of a concerted practice aimed at restricting competition on the market for motor vehicle civil liability insurance by increasing its premium rates for policies for insurance of that type.

3. Against that background, the referring court is asking the Court of Justice to clarify certain aspects of the concept of ‘concerted practices’, in particular, first, the degree of precision of the information exchanged between competitors in order to determine whether such an exchange could constitute a concerted practice, and, second, the possibility for an undertaking involved to provide alternative explanations as to its conduct and the effects of that conduct on the market.

Legal context

4. Article 5(1) of Legea concurenței nr. 21/1996 (Law on Competition No 21/1996) of 10 April 1996, ( 2 ) in the version applicable to the main proceedings (‘the Law on Competition’), reads as follows:

‘The following shall be prohibited: … concerted practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition in the Romanian market or a part thereof, in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

…’

The dispute in the main proceedings, the question referred and the proceedings before the Court

5. By decision of 20 November 2018, the CC found that several companies offering insurance services in Romania, including Groupama, had, over a period of more than four years, participated in a single and continuous infringement of Article 5(1) of the Law on Competition and Article 101(1) TFEU, by engaging in a concerted practice aimed at increasing the premium rates for motor vehicle civil liability insurance policies, through the exchange of commercially sensitive information (‘the contested decision’). Groupama was therefore fined 35 378 902 Romanian lei (RON) (approximately EUR 7.58 million).

6. More specifically, in that decision, the CC found that nine insurance companies and their professional association, the Uniunea Națională a Societăților de Asigurare și Reasigurare din România (National Union of Insurance and Reinsurance Companies in Romania; ‘the UNSAR’), had engaged in a concerted practice involving the exchange of commercially sensitive information about future intentions to increase motor vehicle civil liability insurance policy rates, expressed at meetings within the UNSAR and through press announcements. The CC also noted that those undertakings had not publicly distanced themselves from those exchanges, thereby contributing to the continuation of the anti-competitive practice in question. That single and continuous infringement took place from 18 October 2012 – the date of the first UNSAR meeting at which the increases in rates for motor vehicle civil liability insurance were discussed – to 18 November 2016, the date on which the Romanian Government introduced a six-month cap on those rates.

7. The CC stated that the exchanges of information identified should be viewed in the light of the economic context in which they took place. First, between 2010 and 2012, the Romanian motor vehicle civil liability insurance market experienced intense competitive pressure, that is, a ‘price war’, which resulted in an annual fall of around 20% in premiums for motor vehicle civil liability insurance policies, significantly affecting the profitability of insurance companies. According to the CC, that deterioration created the foundation for the implementation of a concerted practice among insurers offering that type of cover, encouraging them to seek solutions to restore their financial stability. Second, during the same period, companies marketing ‘comprehensive’ insurance policies accumulated significant debts owed to them by insurance companies offering primarily motor vehicle civil liability policies, because of the recourse claims they were able to bring against the latter. That situation is understood to have been discussed at meetings of the UNSAR member insurance companies, during which they indicated their future plans to increase the motor vehicle civil liability insurance premium rates.

8. In that context, the CC based the contested decision on the following five points:

– on 18 October 2012, during a meeting of the UNSAR, discussions took place regarding the increase in motor vehicle civil liability insurance rates, which concerned, first, the situation regarding recourse claims brought by undertakings offering ‘comprehensive’ insurance policies against those offering motor vehicle civil liability insurance rates, with the former taking the view that the three debtor undertakings’ current business activities would not enable them to settle the sums due, and, second, on the drafting of a response that the UNSAR intended to submit to the Comisia de Supraveghere a Asigurărilor (Insurance Supervisory Council, Romania; ‘the CSA’) containing proposals to amend the rules governing motor vehicle civil liability insurance;

– on 3 December 2012, during a meeting held with the regulator (the CSA), attended by the CEO of the UNSAR and some of the insurance companies involved in the concerted practice, discussions took place on the need to increase motor vehicle civil liability insurance rates, on the impact assessments carried out by two of those undertakings, and on the amount of a potential increase in motor vehicle civil liability insurance policy rates;

– in November 2013, Generali and the Uniunea Națională a Societăților de Intermediere și Consultanță în Asigurări din România (National Union of Insurance Intermediation and Consultancy Companies in Romania), the professional association of insurance brokers working with all the undertakings concerned, announced in the press that there would be an increase of between 10% and 15% in motor vehicle civil liability insurance premiums for the year 2014;

– on 11 January 2016, at a meeting of the UNSAR attended by all nine undertakings concerned, Groupama informed its competitors that it had notified the Autoritatea de Supraveghere Financiară (Financial Supervisory Authority, Romania; ‘the ASF’) of a 50% rate indexation; and

– in February 2016, Allianz announced in the press an increase in premiums of between a 5% and 10%, which was to be notified to the ASF, from the end of March.

9. The CC refused to take into consideration the alternative explanations put forward by Groupama regarding the increase in rates during the period under review, on the ground that such explanations would only be relevant where the competition authority relies solely on parallel conduct by undertakings to infer the existence of a concerted practice.

10. On 6 May 2019, Groupama brought an appeal before the Curtea de Apel București (Court of Appeal, Bucharest, Romania) seeking, inter alia, the annulment of the contested decision.

11. By judgment of 26 April 2022, that court dismissed that appeal. ( 3 ) The Curtea de Apel București (Court of Appeal, Bucharest) held, in essence, first, that the evidence relied on in the contested decision established the existence of a concerted practice to increase the premium rates for motor vehicle civil liability insurance, implemented by insurance companies through the exchange of sensitive information, which had removed uncertainty from a transparent oligopolistic market characterised by inelastic demand due to the compulsory nature of motor vehicle civil liability insurance, and by an absence of innovation and a lack of bargaining power on the part of consumers. The court then found that, during the period in question, there were frequent changes to motor vehicle civil liability insurance policy rates, which were generally not based on internal calculations relating to the accident rate, but rather on monitoring the rates set by other insurance companies, with the aim of increasing the average premium on the market. In that regard, it held that, as the concerted practice was established by the existence of contacts between competitors, its characterisation as a concerted practice could not be called into question by the findings of the expert report – produced by Groupama – stating that the calculation of the gross premium complied with standard actuarial techniques and the applicable legal provisions. Lastly, the Bucharest Court of Appeal did not identify any plausible explanation for the common increase in prices other than the existence of a concerted practice demonstrated by the evidence analysed in the present case. In that regard, like the CC, it rejected the explanations put forward by Groupama to justify the content and purpose of the abovementioned discussions and rate increases.

12. Groupama brought an appeal on points of law against the judgment of the Curtea de Apel București (Court of Appeal, Bucharest) before the Curte de Casație și Justiție (High Court of Cassation and Justice, Romania), which is the referring court.

13. The referring court notes that the Romanian legislation on concerted practices is similar to the provisions laid down in Article 101(1) TFEU and that the dispute in the main proceedings raises, in essence, two questions concerning the interpretation of EU law.

14. First, the question as to whether the standard of proof required to establish the existence of a concerted practice involves demonstrating that there was an exchange of detailed and individualised information on the date, scope and manner of adjustments to pricing behaviour, or whether it is sufficient to establish the existence of more general discussions between competitors, in particular on price levels or on legislative changes likely to have had an impact on those levels, especially where the undertakings concerned have close economic ties, in particular due to significant reciprocal debts. In that regard, the referring court refers in particular to the judgment in T-Mobile , ( 4 ) according to which an exchange of information between competitors has an anti-competitive object where it is capable of removing uncertainties as to the behaviour envisaged by the undertakings concerned and that an exchange of information that is capable of removing such uncertainties as regards the timing, extent and details of the modifications to be adopted by the undertaking concerned must be regarded as having such an object. According to that court, it follows from that judgment that only exchanges of information of a certain scale and quality are relevant for the purposes of establishing the existence of a concerted practice. Therefore, while it seems difficult to dispute the existence of a concerted practice when undertakings exchange detailed or individualised information about their future intentions regarding prices, namely specific or concrete information about the date, scope and manner of adjustments to future pricing behaviour, that would not necessarily be the case where, as in the present case, the discussions are confined to ‘generic’ considerations on pricing, which do not contain such specific details.

15. Furthermore, the referring court notes that the CC ruled out the possibility of Groupama providing an alternative explanation for its behaviour on the market, relying on the case-law of the General Court, ( 5 ) according to which the existence of an alternative explanation for the facts is relevant only where the European Commission relies solely on the conduct of the undertakings on the relevant market. Such an explanation is irrelevant where the existence of the infringement is not merely presumed, but is established by proof. However, the referring court is of the view that that case-law of the General Court has not been expressly confirmed by the Court of Justice. Further, it states that such an approach could restrict the exercise of the rights of defence of the undertaking concerned, by depriving it of the opportunity to challenge the findings of the competition authority on the ground that they are based on evidence of any kind. In that regard, the Court held, in the judgment in Pâte de bois , ( 6 ) that parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct and that the parallelism of prices may be satisfactorily explained, for example, by the oligopolistic tendencies of the market and by specific circumstances.

16. In those circumstances, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 101(1) [TFEU] be interpreted as meaning that:

(a) the legal standard for establishing a concerted practice is only met if there is an exchange of detailed or individualised information on future intentions regarding prices that is likely to reduce or eliminate strategic uncertainty, namely an exchange of specific or concrete information on the date, scope and manner of adjustments to future pricing behaviour;

or

(b) the legal standard for establishing a concerted practice is also met where it is established that there have been general discussions between competitors about the rates of other insurance companies in particular situations (with substantial debts to other insurers) or about legislative changes affecting rates, without the competition regulator being required to analyse alternative explanations provided by an undertaking for the increase in its rates, which are intended to refute the existence of a concerted practice?’

17. Written observations were submitted to the Court by Groupama, the CC, the Governments of Romania, Greece, Poland and Portugal, and the Commission. With the exception of the Greek and Polish Governments, those parties also presented oral argument at the hearing held on 22 April 2026.

Analysis

18. The single question referred to the Court of Justice by the referring court is divided into two sub-questions: the first, which arises from a combined reading of paragraph (a) and the first part of paragraph (b) of the question referred, concerns the level of detail that the information exchanged between competitors must contain for such an exchange to be capable of constituting a concerted practice, and the second, set out in the final part of paragraph (b) of that question, relates, in essence, to the scope of the alternative explanations put forward by an undertaking to justify its conduct and refute the existence of such a concerted practice.

The f irst sub-question

19. By its first sub-question, the referring court asks, in essence, whether Article 101(1) TFEU must be interpreted as meaning that a ‘concerted practice’, within the meaning of that provision, necessarily involves an exchange of detailed or individualised information on future intentions regarding prices, such as specific or concrete information concerning the date, scope and manner of adjustments to future pricing behaviour, or whether, in the context of a particular situation, the existence of ‘general discussions between competitors about the rates’ could be sufficient to establish the existence of such a concerted practice.

20. In that regard, I note that the first sub-question referred comprises, in actual fact, two parts.

21. First, as set out by the referring court in paragraph (a), the first sub-question contrasts, on the one hand, an ‘ exchange of detailed or individualised information on future intentions …’ with, on the other hand, ‘ general discussions between competitors about the rates’. With regard to ‘detailed information’, the wording chosen appears to be clearly modelled on that used by the Court in the judgment in T-Mobile , in which it stated, in paragraph 41, that ‘an exchange of information which is capable of removing uncertainties between participants as regards the timing, extent and details of the modifications to be adopted by the undertaking concerned must be regarded as pursuing an anti-competitive object …’. ( 7 ) As regards ‘general information’, the referring court appears to be referring to exchanges of information, such as those at issue in the present case, concerning an increase in motor vehicle civil liability insurance premium rates, which, unlike the first type of exchange, do not specify the percentage or the amount of that increase, or the precise reference date for its implementation. ( 8 ) The first part of the first sub-question must therefore be understood as seeking, in essence, to clarify the scope of the abovementioned paragraph of the judgment in T-Mobile , in particular as to whether it is only the exchange of the types of information referred to in that paragraph that is capable of establishing the existence of a concerted practice regarding prices within the meaning of Article 101(1) TFEU.

22. Second, in the same sub-question, by referring, in the first part of paragraph (b), to ‘particular situations’ (namely, the existence of substantial debts between the competitors and the impact of legislative changes on rates), the referring court is inviting the Court of Justice to examine the weight that should be given to the characteristics of the relevant market, including the applicable regulatory framework, when assessing whether a concerted practice exists.

23. After setting out a few preliminary observations, these two aspects of the first sub-question will be analysed separately.

Preliminary observations

24. At the outset, I note that Article 101(1) TFEU prohibits as incompatible with the internal market all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. Where that provision uses the term ‘concerted practice’, it does so with the aim of bringing within the prohibitions in that provision various forms of coordination and collusion among undertakings. Thus, the concepts of ‘agreement’ and ‘concerted practice’ are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves. ( 9 ) Indeed, a concerted practice refers to a form of coordination between undertakings which, without having been taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them. ( 10 )

25. Those criteria of coordination and cooperation constituting a ‘concerted practice’ must be understood in the light of the concept inherent in the provisions of the FEU Treaty relating to competition that each economic operator must determine independently the policy which he or she intends to adopt on the market. ( 11 )

26. While it is correct to say that that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market. ( 12 )

27. In that regard, with respect to oligopolistic markets – or, at the very least, markets that are highly concentrated and characterised by barriers to entry – the Court has held that the exchange of information is, in principle, such as to enable operators to know the market positions and strategies of their competitors and thus to impair appreciably the competition that exists. ( 13 )

28. It follows that an exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted. ( 14 ) According to the Court’s case-law, this is the case where the information exchanged is, first, confidential, and thus not already known to any economic operator active on the market concerned and, second, strategic, namely capable of revealing, in some circumstances, once combined with other information already known to the participants in an information exchange, the strategy which some of those participants intend to implement with regard to what constitutes one or more parameters on the basis of which competition on the market in question is established. ( 15 )

29. Given the strategic nature of the price-related information exchanged, such information is generally regarded as commercially sensitive, as price is, in most cases, one of the key elements of a company’s strategy. ( 16 ) Furthermore, the Court held that while any exchange of information relating to future prices, or some of the factors determining those prices, is inherently anti-competitive in the light, in particular, of the risk of harm to competition which it entails, the concept of ‘strategic information’ is broader and includes any data not already known to economic operators which, in the context of such an exchange, is likely to reduce the uncertainty of the participants as to the future conduct of the other participants with regard to what constitutes – by reason of the nature of the goods or services in question, the actual conditions in which the market functions and the structure of that market – one or more parameters on the basis of which competition on the market in question is established. ( 17 ) Thus, with regard to the exchange of pricing information, the Court has held that, for a concerted practice to fall within the concept of a ‘restriction by object’, it is sufficient for the exchange to relate to just one of several price components. ( 18 ) It follows that, regardless of whether it is classified as a restriction of competition ‘by object’ or ‘by effect’, a concerted practice may constitute a restriction of competition even though it has no direct link to final consumer prices. ( 19 )

30. It is in the light of that case-law of the Court that answers should be provided to the two parts of the first sub-question raised by the referring court.

The weight attached to the level of detail of the information exchanged for the purposes of establishing a concerted practice

31. In terms of the weight attached to the degree of specificity of the information exchanged, I wish, in the first place, to emphasise that, on the one hand, as is apparent from the Court’s case-law cited in points 24 to 29 of the present Opinion, any exchange of confidential information on prices between competitors is, in principle, likely to constitute a concerted practice prohibited by Article 101(1) TFEU, since price is, as a general rule, an essential parameter on the basis of which competition is determined, and such information is therefore strategic in nature. Consequently, a pragmatic approach should be adopted, focusing not on the level of detail of the pricing information exchanged in the abstract, but on its content and its ability to reduce or eliminate uncertainty regarding the behaviour of market participants, taking into account, in particular, the characteristics of that market. ( 20 )

32. On the other hand, the fact remains that the degree of specificity of the information exchanged is a relevant factor in assessing this ability to reduce, or even eliminate, competitive uncertainty. The more detailed and individualised the information provided is regarding the key factors determining competition in the relevant market, the more likely it is to be of a strategic nature and to exert a significant influence on the behaviour of market participants. ( 21 )

33. With that in mind, in the second place, I consider that the reference to paragraph 41 of the judgment in T-Mobile should be assessed in the light of the factual context in which that judgment was delivered. Indeed, ‘the timing, extent and details of the modifications to be adopted by the undertaking concerned’ refers to the information that, according to the evidence in the case file submitted to the Court, the undertakings concerned had exchanged during a meeting. ( 22 ) It cannot therefore be inferred from that judgment that only the exchange of information with such a degree of detail is capable of establishing the existence of a concerted practice. ( 23 )

34. Furthermore, it should be noted that the wording of paragraph 41 of the judgment in T-Mobile has been reiterated in subsequent judgments, in particular to illustrate, as in that judgment, a typical example of an exchange having an anti-competitive object, ( 24 ) or to specify the minimum degree of uncertainty within which an undertaking must operate for the market to function under normal conditions. ( 25 ) However, it does not follow in any way from those references that an exchange of information that does not contain specific details regarding the timing, extent or arrangements of future behaviour could not, as a matter of principle, be classified as a ‘concerted practice’. Such an approach would, moreover, run counter to the pragmatic approach described in point 31 of the present Opinion.

35. In the third and last place, given that, when assessing the existence of a concerted practice, what matters is the actual content of the information in terms of its ability to reduce market uncertainty, rather than its degree of detail, it can be argued that an exchange concerning merely the possibility of future price increases – which are not specified and are limited to general trends without any indication of specific increases – does not, given its limited capacity to influence the behaviour of the undertakings concerned, appear capable of effectively reducing market uncertainty or affecting their competitive behaviour. Such an exchange should therefore not, in principle, be regarded as a breach of competition rules. That may be the case, inter alia, in markets where competition is driven primarily by factors other than price, particularly where the relevant market is regulated, or where factors beyond the control of the undertakings in the market make a general rise in prices clear and foreseeable, particularly following an increase in the cost of an essential input, such as petroleum products or electricity. In such circumstances, an exchange of general information relating to an imminent price increase, given that it is widely known, cannot be regarded as confidential and would not, on its own, be sufficient to establish the existence of a prohibited concerted practice. ( 26 )

The weight attached to the characteristics of the market for the purposes of characterising a concerted practice

36. With regard to the characteristics of the market for the purposes of characterising a concerted practice, it is clear from the above analysis that the likelihood that an exchange of information will lead to collusion capable of reducing or eliminating uncertainty as to the behaviour of operators in the relevant market depends closely on the characteristics of that market. ( 27 ) That approach is in line with the Court’s settled case-law, according to which concerted practices must be assessed in the light of their substance, the economic and legal context in which they occur, and the objectives they pursue, whether, as in the present case, in the context of an examination of a restriction by object or a restriction by effect. ( 28 ) However, while the Court has identified certain relevant factors – relating in particular to the nature of the goods or services supplied, the number of undertakings, the size of the market, and the actual conditions governing its operation and structure ( 29 )– no list of such factors can be exhaustive, as other market characteristics might also prove relevant. ( 30 )

37. In the present case, it is clear from the order for reference that the court of first instance considered that the exchange of information in question had served to remove uncertainty in the market, taking into account, inter alia, the oligopolistic and transparent nature of the relevant market, the low elasticity of demand due to the compulsory nature of motor vehicle civil liability insurance, as well as the lack of innovation and the limited bargaining power of consumers. The referring court nevertheless is of the view that it is necessary to consider other aspects of the market, which it describes as ‘particular situations’, namely the impact of legislative changes on rates and the existence of significant debts between competitors.

38. In that regard and without prejudice to the assessment to be made by that court, which alone has jurisdiction to determine whether the information exchanged was such as to reduce or eliminate uncertainty in the motor vehicle civil liability insurance market, I consider that the following factors could be helpful for the purposes of interpreting those two aspects.

39. In the first place, as regards the nature and regulatory framework of the motor vehicle civil liability insurance market , I note, first of all, that it has not been disputed that that market is oligopolistic and concentrated (the nine companies in question in the main proceedings hold between 80% and 97% of the Romanian motor vehicle civil liability insurance market), and transparent (allowing for easy monitoring of competitors’ pricing policies, in particular via broker platforms). As noted in point 27 of the present Opinion, the exchange of information in such a market is, in principle, likely to enable undertakings to ascertain their competitors’ market positions and commercial strategies and, consequently, to impair appreciably competition.

40. Next, I note that that market is characterised by a certain degree of inelasticity of demand, due to the compulsory nature of motor vehicle civil liability insurance. Indeed, drivers are required to take out motor vehicle civil liability insurance in order to drive legally, which significantly limits the scope for substitution or non-consumption. Under these circumstances, a general increase in premiums applied by virtually all companies offering that type of insurance will result in only a limited reduction in overall demand and in the captive customer base, as insured individuals cannot choose not to take out that cover.

41. Furthermore, it is also apparent from the documents submitted to the Court that competition in the motor vehicle civil liability insurance market tends to exert a significant influence on the level of premiums, given that the policyholder of a motor vehicle civil liability insurance policy bears the cost of the premium without being the direct beneficiary of the insurance pay-outs, which are intended for injured third parties. That separation between the party paying and the beneficiary tends to encourage the former to choose the least expensive option. The price of the premium for motor vehicle civil liability insurance is therefore a key factor on which competition focuses, compared with other factors, such as the quality of the services provided.

42. In that regard, however, account must be taken of the diverse nature of the insurance services in question. It is apparent from Groupama’s submissions that that market is characterised by pricing that is largely based on an individualised assessment of risk, drawing on a range of actuarial criteria specific to each insurance company and resulting in significant variation in premiums depending on the profiles of the insured individuals. In that context, it will be for the referring court to assess whether, despite that complexity in the pricing of motor vehicle civil liability insurance policies, exchanges of general and non-individualised information concerning upward trends in premiums are likely to reduce strategic uncertainty and facilitate a convergence of pricing behaviour, in particular with regard to common pricing parameters or average adjustments to premium scales. ( 31 )

43. Finally, it follows from the order for reference that the motor vehicle civil liability insurance market in Romania is subject to a regulatory framework and to supervision by the ASF, and that legislative measures are likely to influence the setting of premiums. In those circumstances, it will be for the referring court to ascertain whether the regulatory framework applicable during the period of the infringement afforded insurance companies sufficient discretion in setting their rates, such that it could be concluded that price constitutes a relevant factor in competition. On that point, the order for reference makes it clear that the undertakings concerned had, in practice, a certain discretion in setting rates, in so far as, prior to the period of the infringement, they had engaged in a ‘price war’, and, during that period, prices were not directly regulated, as the cap on premiums did not come into force until after the end of the period of the infringement. Those factors therefore appear to indicate that, despite the existence of a regulatory framework, price was in fact a factor of competition in the relevant market.

44. However, it will be for the referring court to take into account also the cumulative effect of the legislative measures adopted before and during the period of the infringement, which were intended to support the financial solvency of insurance companies and which undoubtedly had the effect of causing price rises. ( 32 ) While the CC and the Romanian Government acknowledge that those measures led to an increase in motor vehicle civil liability insurance premiums, it is for that court to determine whether the extent of such an increase could also be attributed, in whole or in part, to the exchange of information between competitors.

45. In the second place, as regards the existence of significant debts between competitors in the motor vehicle civil liability insurance market , the file submitted to the Court shows that, between 2010 and 2012, the Romanian motor vehicle civil liability insurance market was reportedly marked by serious market failures recognised by the CC, characterised by practices involving artificially low prices that led to a segmentation of the market between ‘insurers specialising in motor vehicle civil liability insurance’, which were facing solvency problems, and insurers primarily active in ‘comprehensive’ insurance, which were often part of international groups. Some of the former are said to have gradually gone bankrupt because they found it impossible to maintain those rate levels and to meet their pay-out obligations. That situation is also said to have affected the latter, which, although solvent, apparently suffered significant losses because they were unable to recover debts through recourse claims and because of the migration of high-risk profiles into their portfolios. Those circumstances therefore led to an increase in motor vehicle civil liability insurance premiums in order to offset market imbalances. It was therefore with a view to addressing that debt situation – a legitimate objective – that a possible increase in motor vehicle civil liability insurance premiums was discussed, in particular at the meeting on 18 October 2012.

46. In that context, while I am aware of the fact that that indebtedness led, inter alia, to the bankruptcy of some of the Romanian insurance companies shortly after the end of the period of the infringement, I doubt that that particular context can, on its own, rule out the potential characterisation of the exchanges in question as anti-competitive. According to the Court’s case-law, the intention of the undertakings concerned in exchanging information is not a necessary element in establishing whether a concerted practice is restrictive in nature. On the contrary, neither the absence of a subjective intention to prevent, restrict or distort competition nor the fact that the undertakings pursued certain legitimate objectives is decisive for the purposes of the application of Article 101(1) TFEU. ( 33 )

47. However, I also note that, if it were shown that the discussions that took place at the first meeting on 18 October 2012 concerned exclusively the issue of recourse claims and the difficulties encountered by the undertakings concerned in paying their debts, that is to say, a completely legitimate objective, and that the question of a rate increase had therefore been mentioned as one of the methods of debt recovery, it could be argued that the references to such an increase formed part of an exchange of information concerning the general state of the motor vehicle civil liability insurance market and its regulatory environment, categories of information that are not generally regarded as commercially sensitive. ( 34 )

48. In the light of the foregoing, I propose that the answer to the first sub-question referred for a preliminary ruling should be that Article 101(1) TFEU must be interpreted as meaning that a concerted practice, within the meaning of that provision, does not necessarily involve an exchange of detailed or individualised information on future intentions regarding prices, such as specific or concrete information concerning the date, scope and manner of adjustments to future pricing behaviour, it being noted that exchanges of information which do not contain such details may, depending on the circumstances, be characterised as a concerted practice, depending on its ability to reduce or eliminate uncertainty regarding the behaviour of market participants, having regard, in particular, to the characteristics of that market.

The s econd sub-question

49. By its second sub-question, the referring court asks, in essence, whether Article 101(1) TFEU must be interpreted as meaning that a competition authority is required to examine alternative explanations provided by an undertaking accused of participating in a concerted practice relating to the increase in prices charged, which are intended to refute the existence of such a practice.

50. From the outset, I would observe that in competition law, where there is a dispute as to the existence of an infringement, it is for the competition authority to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. ( 35 )

51. To answer the second sub-question, I believe it is necessary to draw a distinction between parallel conduct on the market, on the one hand, and a concerted practice, on the other hand. ( 36 )

52. On the one hand, in terms of parallel conduct on the market , the Court has long recognised that such behaviour is not, in itself, anti-competitive. In the judgment in Pâte de bois , it held, in essence, first, that parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the ‘only plausible explanation’ for such conduct, and, second, that, although Article 101(1) TFEU prohibits any form of collusion that distorts competition, it does not deprive operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors. ( 37 )

53. Admittedly, if a competition authority finds that there has been an infringement on the basis that the established facts cannot be explained other than by the existence of anti‑competitive behaviour, that decision will need to be annulled where those undertakings put forward arguments which cast the facts established by that authority in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by that authority in concluding that an infringement occurred. In such a case, it cannot be considered that the competition authority has adduced proof of an infringement of competition law. ( 38 ) In other words, the competent competition authority may infer the existence of a concerted practice based solely on parallel conduct on the market only if such concerted action is the ‘only plausible explanation’ for that parallel conduct. The burden of proof lies with that authority. The undertaking in question may, for its part, put forward an ‘alternative explanation’ for its conduct, which the authority in question must take into account.

54. In that regard, the General Court held, as noted by the referring court, in paragraph 51 of the judgment in Siemens , that ‘… the existence of an alternative explanation for the facts is relevant only where the Commission relies solely on the conduct of the undertakings on the relevant market. Thus, such an explanation is irrelevant from the moment when the existence of the infringement is not merely presumed, but is established by proof. In addition, pursuant to the principle of the unfettered evaluation of evidence …, all types of evidence are admissible for proving an infringement, with the result that the existence of an alternative explanation is irrelevant where an infringement is proved to the requisite legal standard by evidence other than documentary evidence’.

55. It was that case-law that led the referring court to question the validity of the CC’s refusal to take into account the alternative explanations put forward by Groupama regarding its conduct in the relevant market. By way of reminder, the CC dismissed those alternative explanations as irrelevant, relying on the abovementioned judgment of the General Court in Siemens , on the ground that the concerted practice in question had been established not only on the basis of parallel conduct observed on the market, but also on the basis of other evidence. The referring court is of the view, however, that the Court of Justice has not endorsed that case-law and therefore has doubts as to whether it is consistent with the rights of defence of undertakings wishing to rely on such an alternative explanation.

56. Further, I note that, contrary to what the referring court states, the judgment of the General Court in Siemens was essentially confirmed on appeal. The Court of Justice held that ‘where the General Court considers that the Commission has succeeded in gathering evidence in support of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anti-competitive nature, there is no need to examine the question whether there is a plausible alternative explanation for the conduct complained of’ and that ‘since the Commission did not rely solely on the conduct of the undertakings at issue to demonstrate the alleged infringement, the alternative explanation submitted by [the undertakings concerned] was not sufficient to establish that the common understanding did not exist and was, consequently, irrelevant’. ( 39 ) Furthermore, in the present case, the matter does not appear to fall within the scope of the scenario referred to in points 52 and 53 of the present Opinion, since it is apparent from the information provided by the referring court that the existence of concerted action was established on the basis of an exchange of information between the undertakings concerned, and was not inferred solely from the parallel nature of their conduct on the market. Accordingly, that case-law does not appear to be relevant in the present case.

57. On the other hand, as regards concerted practices , it is clear from the very wording of Article 101(1) TFEU that the concept of a ‘concerted practice’ implies, in addition to the participating undertakings concerting with each other (the first condition), subsequent conduct on the market (the second condition) and a relationship of cause and effect between the two (the third condition). In that regard, the Court has held – in relation to that third condition – that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court concluded that such a concerted practice is caught by Article 101(1) TFEU, even in the absence of anti-competitive effects on the market. ( 40 ) It follows that the undertakings concerned must be able to rebut this presumption by demonstrating that they did not take into account the information exchanged with their competitors when determining their conduct on that market, or, in other words, that the concertation had not in any way influenced their own conduct on the market. ( 41 ) Thus, unlike in cases where there is merely parallel conduct, where concerted action is established on the basis of evidence or circumstantial evidence, the burden of proof lies with the undertaking concerned, which must rebut the presumption of a causal link between the exchange of information and the behaviour on the market.

58. However, in the present case, the file submitted to the Court shows that Groupama disputes not only the very existence of concerted action between the undertakings concerned (the first condition), in so far as the general nature of the exchange of information cannot demonstrate the existence of concertation, but also the alleged market conduct resulting from that concertation (thus, in essence, the second and third conditions), arguing, in essence, on the basis of various economic reports, that its pricing decisions during the period under review were the result of an independent adjustment to market conditions, bearing no relation to the alleged concertation.

59. Accordingly, contrary to the views of the CC and the court of first instance, this is not a case in which the undertaking in question merely puts forward an ‘alternative explanation’ in order to rebut the presumption that, by remaining active on the market, it failed to take account of the information exchanged. On the contrary, Groupama is seeking, with supporting evidence, to challenge the very existence of any concertation, arguing that the information exchanged was such that it could not constitute evidence of any price-fixing concerted action.

60. On that basis, I consider that the various arguments and evidence put forward by Groupama, ( 42 ) irrespective of its probative value, should have been declared admissible and taken into account by the CC during the administrative stage of the proceedings, in two respects. First, taking such evidence into account appears relevant both to establish the very existence of a concertation in the light of the generic nature of the information exchanged (first condition) and to establish the causal link between the concerted action and the conduct of that undertaking on the market, inter alia, in the context of reversing the abovementioned rebuttable presumption (third condition). ( 43 ) Second, in the absence of sufficient evidence of such a concerted practice, the only evidence available to the CC would be parallel conduct, with the result that an examination of alternative explanations would be required in accordance with the Pâte de bois case-law. That analysis does not seem incompatible with the judgment of the General Court in Siemen s . As it apparent from point 56 of the present Opinion, the Court of Justice, in the appeal, held, in essence, that the assessment of an alternative plausible explanation for the conduct complained of is not required where the Commission has succeeded in ‘gathering sufficient evidence’ of the existence of an anticompetitive concerted practice. I t is precisely the existence of such sufficient evidence that constitutes the main purpose of Groupama’s challenge.

61. In the light of the foregoing, I propose that the answer to the second sub-question referred for a preliminary ruling should be that provided that an undertaking involved in a concerted practice remains active in the relevant market, it cannot be ruled out, in view of the circumstances relating to the generic nature of the exchange of information in question and the doubts as to whether it is inherently anticompetitive, that that undertaking may rebut the presumption of a causal link between the concerted action and that undertaking’s conduct on that market by demonstrating that the undertaking in question did not take into account the exchange of information in the course of its operations on that market, the competent competition authority being required in that regard to take into account all the evidence put forward by that undertaking for that purpose.

Conclusion

62. In the light of the above considerations, I propose that the Court answer the question referred for a preliminary ruling by the l’Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) as follows:

Article 101(1) TFEU

must be interpreted as meaning that:

– a concerted practice, within the meaning of that provision, does not necessarily involve an exchange of detailed or individualised information on future intentions regarding prices, such as specific or concrete information concerning the date, scope and manner of adjustments to future pricing behaviour, it being noted that exchanges of information which do not contain such details may, depending on the circumstances, be characterised as a concerted practice, depending on its ability to reduce or eliminate uncertainty regarding the behaviour of market participants, having regard, in particular, to the characteristics of that market; and

– provided that an undertaking involved in a concerted practice remains active in the relevant market, it cannot be ruled out, in view of the circumstances relating to the generic nature of the exchange of information in question and the doubts as to whether it is inherently anticompetitive, that that undertaking may rebut the presumption of a causal link between the concerted action and that undertaking’s conduct on that market by demonstrating that the undertaking in question did not take into account the exchange of information in the course of its operations on that market, the competent competition authority being required in that regard to take into account all the evidence put forward by that undertaking for that purpose.

1 Original language: French.

2 Monitorul Oficial al României , Part I, No 88 of 30 April 1996.

3 It is apparent from the case file that the referring court is the only one, out of the eight courts hearing parallel proceedings, to uphold the contested decision, the other seven courts having concluded that the exchanges of information on which that decision was based could not be characterised as anti-competitive. However, with the exception of the judgment delivered by the referring court, which concerned the UNSAR’s involvement as a facilitator of the concerted practice, at this stage, no final decision has been handed down confirming the existence of a concerted practice between the undertakings subject to penalties, as the various cases before the referring court have been stayed pending a response to the present request for a preliminary ruling.

4 Judgment of 4 June 2009, T-Mobile Netherlands and Others (C‑8/08, ‘the judgment in T-Mobile ’, EU:C:2009:343, paragraph 41).

5 Namely judgment of 3 March 2011, Siemens v Commission (T‑110/07, ‘the judgment of the General Court in Siemens ’, EU:T:2011:68, paragraph 51 and the case-law of the General Court cited).

6 Judgment of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission (C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, ‘the judgment in Pâte de bois ’, EU:C:1993:120, paragraphs 71 and 126).

7 Emphasis added. Indeed, these terms are included in the wording of the first part of paragraph (a) of the question referred for a preliminary ruling.

8 The referring court notes that neither the contested decision nor the judgment at first instance sets out a specific percentage or a fixed or determinable amount for the rate increase in question, and nor does it specify a precise reference date for its implementation. That assessment is, however, contested by the CC, which argues that, even in the absence of an explicitly stated fixed price level, the information exchanged related to determinable future price increases, as the announcements published in the press contained details of both the approximate scale of the increase and the date on which it was to take effect (see point 8 of the present Opinion). However, that court expressly stated in its order for reference that it will assess at a later stage whether the exchanges referred to in the contested decision constituted an ‘exchange of detailed or individualised information’ or ‘general discussions’. Furthermore, we cannot rule out the fact that, in the view of that court, the only relevant contact for the purposes of proving a concerted practice would be that of the first meeting on 18 October 2012, during which it is undisputed that the discussions remained generic. Consequently, there does not appear to be any need, for the purposes of that analysis, to alter the factual assumption adopted by that court in its question.

9 See, to that effect, judgment of 8 July 1999, Commission v Anic Partecipazioni (C‑49/92 P, EU:C:1999:356, paragraphs 112 and 131 and the case-law cited).

10 See the judgment in T-Mobile (paragraph 26 and the case-law cited), and judgment of 14 January 2021, Kilpailu- ja kuluttajavirasto (C‑450/19, EU:C:2021:10, paragraph 22). The concept of ‘concerted practice’ was established by case-law in the judgment of 14 July 1972, Imperial Chemical Industries v Commission (48/69, EU:C:1972:70, paragraphs 64 and 65), before its scope was further clarified in the judgment of 16 December 1975, Suiker Unie and Others v Commission (40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraphs 173 to 174).

11 See the judgment in T-Mobile (paragraph 32 and the case-law cited) and judgment of 12 January 2023, HSBC Holdings and Others v Commission (C‑883/19 P, ‘the judgment in HSBC ’, EU:C:2023:11, paragraph 113).

12 See the judgment in T-Mobile ( paragraph 33 and the case-law cited ), and the judgment in HSBC (paragraph 114).

13 See, to that effect, the judgment in T-Mobile (paragraph 34 and the case-law cited), and judgment of 29 July 2024, Banco BPN v BIC Português and Others (C‑298/22, ‘the judgment in Banco BPN ’ , EU:C:2024:638, paragraphs 58 and 59).

14 See the judgment in T-Mobile (paragraph 35 and the case-law cited), and the judgment in HSBC (paragraph 115).

15 See the judgment in Banco BPN (paragraphs 62 and 63 and the case-law cited).

16 See, to that effect, paragraph 385 of the Communication from the Commission of 21 July 2023 containing guidelines on the applicability of Article 101 [TFEU] to horizontal co-operation agreements (OJ 2023 C 259, p. 1; ‘the guidelines on horizontal agreements’).

17 See the judgment in Banco BPN (paragraph 64), and my Opinion in Banco BPN v BIC Português and Others (C‑298/22, EU:C:2023:738, points 69 and 70).

18 See, to that effect, the judgment in Banco BPN (paragraph 89 and the case-law cited), and my Opinion in Banco BPN v BIC Português and Others (C‑298/22, EU:C:2023:738, points 74 and 75). Indeed, the wording of Article 101(1)(a) TFEU confirms that concerted practices may adversely affect competition if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’(emphasis added).

19 See judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission (C‑286/13 P, ‘the judgment in Dole Food ’, EU:C:2015:184, paragraph 123).

20 Indeed, it is clear from the Court’s case-law that, when analysing a restriction of competition – including a restriction by object – the actual content of the exchange of information remains important in order to establish whether the exchange has characteristics linking it to a form of coordination that creates conditions of competition that do not correspond to the normal conditions of the market in question (see the judgment in Banco BPN ( paragraph 52)). As concerted practices can take many different forms, care must be taken not to pre-define or limit what may or may not constitute such a practice.

21 See also, in that regard, paragraph 390 of the guidelines on horizontal agreements, which states that ‘whether information is commercially sensitive depends on its usefulness to competitors. In general, information that contains a lot of detail and enables the identification of the undertaking(s) that provided it will be more commercially sensitive …’. Similarly, the previous version of those guidelines, which was in force at the time of the facts in the main proceedings, states, in paragraph 74, that ‘exchanges between competitors of individualised data regarding intended future prices or quantities’ constitutes a restriction of competition by object (emphasis added) (OJ 2011 C 11, p. 1).

22 See, to that effect, Opinion of Advocate General Kokott in T-Mobile Netherlands and Others (C‑8/08, EU:C:2009:110, points 67 and 68), in which it is stated that ‘the subject matter of the exchange of information in the framework of the June 2001 meeting was, in fact, … how the modifications were to proceed, that is, on which date, to what extent and subject to which arrangements the intended reduction of standard dealer remunerations was to be implemented by each undertaking’ (emphasis added).

23 On the contrary, it is apparent from paragraphs 32 to 35 and 41 and 42 of that judgment that the Court based its analysis on the general criterion of reducing or eliminating uncertainty as to the functioning of the relevant market.

24 See, in particular, the judgment in Dole Food (paragraph 122) and the judgment in HSBC (paragraph 116), in which the Court uses the adverbial phrase ‘in particular’ to highlight the anti-competitive nature of such an exchange of information.

25 See the judgment in Banco BPN (paragraph 54), in which the Court refers ‘to that effect’ to paragraph 41 of the judgment in T-Mobile to support the proposition whereby, in order for a market to operate under normal conditions, each operator must ‘be uncertain at least as to the timing, extent and details of any future changes in the conduct of its competitors on the market’.

26 See, to that effect, Opinion of Advocate General Kokott in T-Mobile Netherlands and Others (C‑8/08, EU:C:2009:110, point 69 and the case-law cited). I note, however, that even if information regarding a price increase is widely known or readily available, the exchange of information can reduce uncertainty in the market when such information is exchanged in a less aggregated or more granular form (see paragraph 389 of the guidelines on horizontal agreements).

27 See, to that effect, paragraph 412 of the guidelines on horizontal agreements.

28 See, to that effect, the judgment in Banco BPN (paragraphs 40, 46 to 48 and 55).

29 See, in that regard, the case-law cited in points 26 and 29 of the present Opinion.

30 By way of illustration, paragraph 412 of the guidelines on horizontal agreements provides that the relevant market characteristics in this regard include, among others, the level of transparency in the market, the number of undertakings active on the market, the existence of barriers to entry, whether the product or service concerned by the exchange is homogeneous, whether the undertakings involved are similar, as well as the stability of the conditions of supply and demand.

31 That type of market differs from markets for homogeneous products, such as the banana market, where the exchange of more general information can have a more decisive impact. I would point out, however, that even in such a market, the Commission, in its Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article 81 [EC] (Case COMP/39 188 – Bananas), the concerted practice was established on the basis of exchanges of information that was far more specific than a mere intention to increase prices, namely details relating to price-setting factors, as well as price trends and indications of reference prices prior to their being set (see, to that effect, the judgment in Dole Food (paragraph 96)).

32 See, inter alia, first, Ordinul CSA nr. 3/2013 (CSA Order No 3/2013), which subjected premium pricing to a stringent cost-coverage requirement that was likely to affect profitability, and, second, Norma ASF 20/2014 (ASF Rule 20/2014), which increased the contribution rate to the Insurance Guarantee Fund, and Norma ASF 17/2015 (ASF Rule 17/2015) relating to the contribution rates payable by insurers to that Fund.

33 See the judgment in Banco BPN (paragraphs 49 and 56 and the case-law cited).

34 See, to that effect, paragraph 386 of the guidelines on horizontal agreements. The regulatory nature of the information exchanged was all the more evident at the meeting of 3 December 2012, given that it was attended by the regulator itself, namely the CSA (point 8 of the present Opinion).

35 See, to that effect, judgment of 22 November 2012, E.ON Energie v Commission (C‑89/11 P, ‘the judgment in E.ON Energie ’, EU:C:2012:738, paragraph 71) and Article 2 and recital 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102] of the [FEU] Treaty (OJ 2003 L 1, p. 1). That regulation does not, however, contain any provision in relation to the principles governing the assessment of evidence and the standard of proof in national proceedings for the application of Article 101 TFEU (see judgment of 21 January 2016, Eturas and Others (C‑74/14, ‘the judgment in Eturas ’, EU:C:2016:42, paragraphs 30 and 31).

36 Indeed, in competition law terminology, the concept of an ‘alternative explanation’ generally refers to a case of parallel conduct.

37 See the judgment in Pâte de bois (paragraphs 70, 71 and 126).

38 See, to that effect, the judgment in E.ON Energie (paragraph 74 and the case-law cited).

39 See judgment of 19 December 2013, Siemens and Others v Commission (C‑239/11 P, C‑489/11 P and C‑498/11 P, EU:C:2013:866, paragraphs 220 to 224). The Court held that, otherwise, the General Court would be required to consider an alternative explanation whenever a party seeks to establish an infringement by inference from other facts, by circumstantial evidence or by non-documentary evidence.

40 See the judgments in Dole Food (paragraphs 126 to 128) and in Eturas (paragraph 42).

41 See also, to that effect, judgment of 8 July 1999, Hüls v Commission ( C‑199/92 P, EU:C:1999:358, paragraphs 162 and 167).

42 More specifically, that refers to the economic report covering the period 2012-2016 and the market analysis prepared by the company Deloitte at the request of the UNSAR.

43 See, by analogy, the judgment in Eturas (paragraphs 46 and 49), in which the Court stated that, in a case which does not concern an anticompetitive meeting, public distancing or reporting to the administrative authorities are not the only means of rebutting the presumption that a company has participated in a concerted practice, other evidence may also be adduced with a view to rebutting that presumption. In that case, the Court thus held that the presumption of a causal connection between a concertation and the market conduct of the undertakings participating in the practice could be rebutted by evidence of a systematic application of a discount exceeding the cap in question. Although that solution is closely linked to the specific circumstances of that case, that judgment creates, in my view, in cases other than the classic cases of collusive meetings – in particular where the exchange of information takes place in the presence of the regulator, a situation which, at the very least, renders the requirement to report to the administrative authorities redundant – the possibility of rebutting the presumption of participation by providing objective evidence of independent conduct on the market. Such evidence could, in particular, result from the adoption, before the period of the infringement, of a binding pricing policy covering that period.