29 October 2015

European Court of Justice confirms liability of cartel facilitators under Article 101

The European Court of Justice (the ECJ) determined in a landmark judgment on 22 October 2015 that consultancies and other professional bodies that facilitate the creation and organisation of cartels may be liable to be punished under EU competition law.

The court upheld a ruling of the European General Court (the GC) that consultancy firm AC Treuhand had breached Article 101 TFEU by directly helping organise two separate heating stabiliser supplier cartels. This is despite the service contract that AC Treuhand had with cartel members being distinct from the agreements between the suppliers themselves.

The decision sets out that the consultancy: (i) played “an essential role” in organising, attending and participating in a number of cartel meetings; (ii) collected and supplied sales data between cartel members; (iii) monitored the implementation of concerted practices; and (iv) acted as a moderator of disputes, for which it received remuneration. As such, the ECJ stated that it was unable to conclude that the activities of AC Treuhand were “mere peripheral services unconnected with the obligations assumed by the producers” and that its actions enabled “restrictions of competition.”

Maintaining the €348,000 fine imposed by the European Commission (the Commission) in 2009, the ECJ declined to address the opinion given by Advocate General Nils Wahl that: (i) the behaviour of facilitators is not currently caught by EU cartel legislation; and (ii) whilst facilitators should not escape punishments altogether, the relevant regulations should be amended to introduce liability for “those who aid and abet violation of EU cartel law.” Instead, the court determined that the Article 101 prohibition is not directed “only at the parties to such agreements or concerted practices who are active on the markets affected by those agreements or practices” and that a contrary interpretation would negate the effectiveness of the article.

On financial penalties, the ECJ also decided that the Commission was correct to issue a fixed lump sum rather than using value of sales as a mechanism for calculating fines, because professional bodies such as consultancies do not have any tangible sales to use in such calculations.

At first glance, it may appear that the ECJ sets a relatively high threshold for cartel facilitation. However, commentators have stated that cartel facilitation is an area of law that may be revisited as the European courts will need to fine-tune the limits of liability for peripheral behaviour and explore whether such behaviour could also amount to an abuse of process. The AC Treuhand judgment may have wide reaching implications for advisory work and information exchange.

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