European Court of Justice Upholds Cartel Facilitator Liability

On October 22, 2015, the European Court of Justice (the ECJ) published a landmark decision upholding the Commission’s imposition of fines on a consultancy, AC-Treuhand AG (AC-Treuhand), for participation in two cartels between 1993 and 2000. AC-Treuhand argued that, as a consultancy, it could not be sanctioned for participation in a cartel in a market in which it was not active.

Unusually, the ECJ declined to follow its advocate-general, who advised that AC-Treuhand should not be found liable, and instead upheld the Commission’s decision fining AC-Treuhand. The ECJ further upheld the Commission’s freedom to impose a lump-sum fine where, as in this case, a cartel participant derives no turnover from the market affected by the cartel.

The ECJ’s AC-Treuhand judgment clarifies the key concepts of “agreement” and “concerted practice” for purposes of European antitrust law. This judgment is of particular significance for consultancies, trade associations and similar organizations that may be involved in a cartel but not directly active in the sale or provision of the affected goods or services.

In 2009, following its investigation into the Heat Stabilisers Cartel, the Commission fined AC-Treuhand for participating in anti-competitive agreements and concerted practices relating to the tin stabiliser sector and the epoxidised soybean oil and esters sector.

AC Treuhand is a consultancy firm offering services such as the collection, processing and assessment of market data, presentation of market statistics and the audit of the reported figures to national and international associations and interest groups, including professional associations and federations and non-profit organisations. The Commission found that AC Treuhand had participated in agreements and concerted practices consisting of price fixing, allocation of markets through sales quotas, allocation of customers and exchange of commercially sensitive information, in particular on customers, production and sales. The Commission held that AC-Treuhand organised a number of meetings that it attended and in which it actively participated, collecting and supplying data on sales on the relevant markets, offering to act as a moderator in disputes between producers and encouraging the latter to find compromises.

AC Treuhand contended that it did not participate in an “agreement between undertakings” or a “concerted practice” within the meanings of Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), but was guilty of “mere collusion.”

AC Treuhand argued that an agreement requires at least two parties to have expressed their concurrent intention to conduct themselves on the market in a particular manner and presupposes that the parties have some kind of relationship on the markets affected by the restriction of competition. AC Treuhand enjoyed no such relationship, since it only facilitated cartels on the basis of contracts that had no direct link with the restrictions of competition identified by the Commission. AC Treuhand was not active on the markets upstream or downstream of the markets affected by the cartels or on neighbouring markets and did not restrict its own conduct on the market. AC-Treuhand further argued that its conduct did not qualify as a “concerted practice,” as it did not relinquish its independence in its commercial conduct in favour of coordination with other undertakings, within the meaning of the case-law established by the ECJ.

Definition of Agreements and Concerted Practices

The AC-Treuhand case raised the issue whether a consultancy firm may be held liable for infringement of Article 101(1) TFEU where it actively contributes, in full knowledge of the relevant facts, to the implementation and continuation of a cartel among producers active on a market that is separate from that on which the consultancy itself operates.

In finding that such a consultancy can be liable, the ECJ noted that Article 101(1) is not directed only at parties to restrictive agreements or concerted practices who are active on the markets affected by those agreements or practices. For there to be an “agreement,” there must be an expression of the concurrence of wills of at least two parties, but the form in which that concurrence is expressed is not decisive. As regards the term “concerted practice,” the distinction between that term and the terms “agreement” and “decision by an association of undertakings” is intended precisely to catch forms of collusion that have the same nature but are distinguishable by their intensity and the forms in which they manifest themselves.

To find that an undertaking participated in an infringement and was liable for the infringement, it is sufficient for the Commission to demonstrate that the undertaking concerned intended to contribute to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk. The ECJ noted that even passive modes of participation, such as presence in meetings at which illegal conduct takes place, without clearly opposing that illegal conduct, can give rise to liability under Article 101(1), since a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, encourages the continuation of the infringement and compromises its discovery.

According to the ECJ, prior judgments stating that the existence of an “agreement” depended on whether the parties had expressed their concurrent intention to conduct themselves on the market in a particular manner, and that the elements of a “concerted practice” must be understood in light of the concept that each economic operator must determine independently the policy which he intends to adopt on the common market, do not presuppose a mutual restriction of freedom of action on one and the same market on which all the parties are present. Similarly, the ECJ’s case-law did not imply that Article 101(1) concerns only undertakings operating on the market affected by the restrictions of competition or upstream, downstream or neighbouring markets or undertakings that restrict their freedom of action on a particular market.

On the contrary, the ECJ stressed that Article 101(1) refers to all agreements and concerted practices that distort competition in horizontal or vertical relationships, irrespective of the market on which the parties operate, and that the commercial conduct of only one of the parties need be affected.

In the present case, AC Treuhand’s conduct was directly linked to the efforts made by the producers of heat stabilisers, and the very purpose of its services was the attainment of the anti-competitive objectives of price-fixing, market-sharing and customer-allocation and the exchange of commercially sensitive information.

Fining Guidelines

AC-Treuhand also argued that the Commission infringed its 2006 fining guidelines (the 2006 Guidelines), claiming that the Commission should have fixed its fines on the basis of the fees charged by AC-Treuhand for its services. The ECJ also rejected this argument.

The ECJ found that the Commission can have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. However, point 37 of the 2006 Guidelines states that “the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology.” In the present case, the markets affected by the infringements were markets on which AC Treuhand was not present, so no portion of that firm’s turnover was accounted for by the goods in respect of which the infringements were committed. As a consequence, the ECJ found that the Commission could depart from the method of calculating fines set out in the 2006 Guidelines by fixing the basic amount of the fines as a lump sum, on the basis of point 37 of those guidelines.