ECJ confirms liability of cartel aides
In a leading decision, the Federal Court of Justice (ECJ dated 22 October 2015, C-194/14 P) has ruled that consultancy firms can also be held liable as “cartel aides” if they organisationally assist the members of a cartel without necessarily operating on the cartelised market themselves.
In November 2009 the European Commission imposed a fine in the amount of € 348,000 upon the consultancy firm AC-Treuhand on grounds of its participation in a cartel for heat stabilisers. The enterprise had organised the cartel meetings, had (partially) attended these meetings, determined and provided supply volumes of the products concerned and offered its services as a conflict mediator against remuneration. The Commission considered this to be a substantial contribution towards the functioning of the cartel, and hence AC-Treuhand played a “similar central role” to that of the actual cartel members. AC-Treuhand took legal action against the fine imposed by the European Commission and was defeated both in the first instance and now before the ECJ.
Advocate General unsuccessful
The Advocate General of the ECJ, Niels Wahl, did not consider the organisational assistance provided to the cartel members to constitute a breach of antitrust law pursuant to the present legislative situation, inter alia because none of the forms of offence capable of incurring sanctions existed in this case and one therefore could not talk of a participation in a cartel. AC-Treuhand had not operated on a cartelised market, but had exclusively rendered services to the market participant. Insofar, in the Advocate General’s opinion, any and all market references were lacking.
However, the ECJ did not concur with the Advocate General’s closing plea, making reference in this connection to the case law of the Union courts pursuant to which co-liability exists if an enterprise contributes to the achievement of the cartel’s goals, if it was aware of the conduct of the participating enterprises or reasonably should have foreseen this, and was willing to take the ensuing risk. In the ECJ’s opinion these principles are also transferrable to cartel aides insofar as they participated in the execution of the cartel actively and in full knowledge and if their participation does not merely constitute “purely incidental services”.
Furthermore, the ECJ also confirmed the calculation of the fine by the European Commission. This deviated from the common practice of calculating the fine on the basis of the turnover of the products concerned, as AC-Treuhand specifically had not operated on the relevant market. Instead, it set a general fine.
The case law of the ECJ is integrated in a number of decisions in which the applicability of antitrust law has been successively extended both on a national and European level. The political goal ultimately being followed is to be able to impose a fine upon any and all parties to a cartel.
However, the liability risk for cartel aides is not entirely new. AC-Treuhand was already fined in 2003 (at that time the fine was still a symbolical fine in the amount of € 1000 because – as the Commission put it itself – it was entering “new legal ground” by doing so). At the beginning of 2015 the EU Commission imposed a fine upon the broker ICAP from Great Britain during the LIBOR scandal. ICAP had not only organised the agreements between various financial institutes, it had also allowed itself to be used as an instrument to influence competition through the transmission of desired market prognoses to other financial institutes not involved in the cartel.
The national cartel authorities have also had their eye on this topic. For example, in 2011 the German Federal Cartel Office [Bundeskartellamt, BKA] fined a Swiss auditing firm within the scope of the fire engine cartel. They had made available overviews listing order and turnover data as well as striven target quotas of all enterprises. In 2013 the Federal Cartel Office imposed a fine upon a trademark association for aiding the organisation of a cartel for drugstore items.
However, it remains unclear where the precise boundaries between unpunished assistance and prohibited aiding and abetting lie. In the cases handled to date, the enterprises concerned certainly acted in knowledge of the abusive competitive conduct of their clients and rendered services which directly promoted the legal violation. It is not yet foreseeable how the courts and cartel authorities will decide in less clear cases.
The broad significance of this for the everyday business of consultancy firms and associations is obvious. Each faces an increased risk of being targeted by the cartel authorities as cartel “aides”.