European Court confirms cartel facilitator is liable for breach of cartel prohibition

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The European Court of First Instance (CFI) has confirmed that an undertaking which was not a “contracting party” to a cartel, but rather facilitated the operation of the cartel can nevertheless be found to have breached the EC prohibition on cartels (Article 81 EC Treaty).

The CFI considered an appeal made by Treuhand AG against the European Commission’s imposition on Treuhand of a fine relating to a cartel in organic peroxides. Treuhand was not a producer of the cartellised products (organic peroxides) but rather a consultancy firm. Treuhand facilitated the cartel, for example arranging meetings, storing papers, reimbursing travel expenses, “treating” data. The European Commission fined Treuhand a reduced amount (€1,000) due to the fact that cartel fines had previously been imposed only on cartel "contracting parties". Treuhand challenged amongst other things, the Commission's right to fine it at all, on the basis that it was only in a relationship of “non-punishable complicity” with the cartel. It also appealed on the basis that it was not informed of its being under investigation until just before the statement of objections was issued, while the other cartel parties had, at that point, been under investigation for a much longer time and had been clearly told that they were suspected of cartel activity.

The CFI dismissed the argument that Treuhand could not be fined due to “non-punishable complicity”. The CFI noted that "the fact that an undertaking is not active on the market on which the restriction of competition materialises ... does not rule out its liability for having participated in the implementation of a cartel". In addition, the CFI found that "the mere fact that an undertaking has participated in a cartel only in a subsidiary, accessory or passive way is not sufficient to rule out its liability for the entire infringement". However, the limited nature of the involvement may have a bearing on the amount of fine imposed. In addition, the CFI found that while Treuhand had been informed late of the Commission's investigation, this did not prejudice Treuhand's rights of defence.

This judgment is important as it emphasises the importance of ensuring that any type of involvement in cartel behaviour is avoided. It will not be enough to rely on the fact that you do not make the cartellised product/provide the cartellised service. Clear demonstration of competition compliance is necessary. For more details about competition compliance, please take a look at our Competition Survival Pack or call /e-mail one of the contacts below.

Please click for the text of the CFI’s press release and judgment.