Articles

Court of Justice confirmed that cartel facilitators can be liable under Article 101 TFEU in AC-Treuhand

Court of Justice confirmed that cartel facilitators can be liable under Article 101 TFEU in AC-Treuhand

Court of Justice confirmed that cartel facilitators can be liable under Article 101 TFEU in AC-Treuhand

03.11.2015 NL law

On 22 October 2015, the Court of Justice rendered a judgment on appeal against the Commission decision in the Heat Stabilisers cartels (Commission v AC-Treuhand AG C-194/14 P). In this landmark judgment, the Court of Justice confirmed that a fine can be imposed under Article 101 TFEU on a consulting firm that provided services to the cartelists but is not present on the market where the infringements were committed.

On 11 November 2009, the Commission held AC-Treuhand liable for a total fine of EUR 348,000 for its participation in the Heat Stabilisers cartels. AC-Treuhand challenged the Commission decision before the General Court ("GC"), claiming that it provided certain services to the cartel but did not participate in an agreement or concerted practice. The GC, however, upheld the Commission decision and ruled that a consulting firm can be liable for an infringement of Article 101 when it actively and intentionally contributes to a cartel. This is the case even if the firm is present on a market other than the cartelised market.

AC-Treuhand appealed before the Court of Justice, arguing that its contracts with the cartelists had the object to provide services and that it did not participate in an agreement or concerted practice. Contrary to the Opinion of Advocate-General Wahl, the Court of Justice confirmed the judgment of the GC. According to the Advocate-General, AC Treuhand was not liable under Article 101 since it never exercised a competitive restraint on the participants of the cartel and thus was not able to restrict competition on the market in question.

The Court of Justice emphasized that Article 101 covers all agreements and concerted practices that distort competition, "irrespective of the market on which the parties operate and that only the commercial conduct of one of the parties need be affected by the terms of the agreements in question". Further, the Court of Justice found that AC-Treuhand's conduct was directly linked to the efforts of the cartelists. The purpose of the services was to attain, in full knowledge of the facts, the anti-competitive objects of the infringements. As a result, the Court of Justice concluded that AC-Treuhand did not provide mere peripheral services that were unconnected to the obligations assumed by the producers and the restrictions of competition. In its reasoning, the Court of Justice also considered that AC-Treuhand's interpretation of Article 101 "would be liable to negate the full effectiveness of the prohibition".

Further, the Court considered that, although Article 101 was never applied to cartel facilitators at the time of the infringements, AC-Treuhand could and should have expected that its conduct would infringe EU competition rules. The legality principle was thus not infringed.

AC-Treuhand also contested the imposition of a lump sum fine by the Commission. It argued that this constitutes a derogation from the 2006 Fining Guidelines and the Commission could have based the fine on the fees charged for the services provided to the participants of the infringements. The Court of Justice, however, also agreed with the GC's reasoning and rejected these arguments. The Court of Justice held that deviating from the Guidelines was permitted in this instance because AC-Treuhand was not present and had no sales on the cartelised market.  Further, it deemed that the fees charged by AC-Treuhand do not accurately reflect either the economic importance of the infringement or the extent of AC-Treuhand's participation.

This article was published in the Competition Law Newsletter of November 2015. Other articles in this newsletter:

Back to top

Team

Related news

07.11.2019 NL law
Tackling Big Tech up-front? Time to stop thinking and start acting

Short Reads - Benelux competition authorities have published a joint memorandum on how best to keep up with challenges in fast-moving digital markets. As well as calling on the European Commission to issue an economic study on digital mergers, the memorandum calls for an ex ante intervention tool to fill the gap between interim measures and ex post enforcement. This tool would pre-emptively impose behavioural remedies on digital gatekeepers without first having to establish an actual competition law infringement.

Read more

08.11.2019 BE law
Interview with Wouter Ghijsels on Next Gen lawyers

Articles - Stibbe’s managing partner Wouter Ghijsels shares his insights on the next generation of lawyers and the future of the legal profession at the occasion of the Leaders Meeting Paris where Belgian business leaders, politicians and inspiring people from the cultural and academic world will discuss this year's central theme "The Next Gen".

Read more

07.11.2019 NL law
Rotterdam District Court rules that claims in elevator cartel damages proceedings need further substantiation

Short Reads - The Rotterdam District Court has ordered claimant SECC (a litigation vehicle) to substantiate its claims in proceedings against Kone and ThyssenKrupp regarding the elevator cartel. The Court also ruled that some claims have become time-barred, unless SECC can show that these were timely assigned to SECC and notified to Kone and ThyssenKrupp. The Court rejected several defences of Kone and Thyssenkrupp, including a jurisdictional challenge based on arbitration clauses between the defendants and assignors of claims to SECC.

Read more

07.11.2019 NL law
Safeguarding legal privilege: better safe than sorry?

Short Reads - The European Court of Justice recently ruled that the European Commission does not have to take additional precautionary measures to respect the right of legal professional privilege when conducting a new dawn raid at the same company. Companies are well-advised to mark clearly all communications covered by legal privilege as 'privileged and confidential' and to keep all privileged communication separate from other communication.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring