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.

Data Central

Have you checked out our new Data Hub? Data Central contains a range of resources to help our clients minimise the legal, regulatory and commercial risks this data-driven environment presents and ensure that its full value is being realised.

A Guide to Doing Business in China

We explore the key issues being considered by clients looking to unlock investment opportunities in the People’s Republic of China.

Doing Business in China
Share on LinkedIn Share on Facebook Share on Twitter Share on Google+
    You might also be interested in

    We discusses recent developments and emerging trends in competition litigation involving the Competition Appeal Tribunal.

    28 November 2016

    The European Commission’s proposed Geo-Blocking Regulation fails to address some of the key e-commerce concerns the Commission had previously identified.

    21 June 2016

    This article was written by Andrew Morrison (associate) Ultra Finishings On 10 May 2016 the UK Competition and Markets Authority (the CMA) fined Ultra Finishing Limited (Ultra) £786,668 for...

    21 June 2016

    European Commission refrains from imposing regulations specifically targeting online platforms, for now. General EU e-commerce rules will however apply.

    20 June 2016

    Legal services for your business

    This site uses cookies to enhance your experience and to help us improve the site. Please see our Privacy Policy for further information. If you continue without changing your settings, we will assume that you are happy to receive these cookies. You can change your cookie settings at any time.

    For more information on which cookies we use then please refer to our Cookie Policy.