Consultancy Firms Contributing to Implementation of Cartel Subject to Fines
In its landmark judgment of 8 July 2008, the Court of First Instance (CFI) confirmed a Commission decision finding that a consultancy firm which has contributed to the implementation of a cartel, even without being active on the relevant market, may be fined for complicity under Article 81(1) of the EC Treaty.
In its decision of 10 December 2003, the Commission found that Atofina, Peroxid Chemie, Laporte and Perorsa, European producers of organic peroxides, had infringed the competition rules by fixing prices, agreeing on and implementing a mechanism for price increases, allocating customers and setting up a system to monitor and enforce their agreements. For these reasons, the Commission imposed on the companies fines of nearly € 70 million.
Besides the producers, the Commission held that AC Treuhand AG, a Swiss consultancy firm which provided the cartel members with various services such as organizing meetings, providing logistical assistance and covering up evidence of the infringement, was also infringing Article 81(1) of the EC Treaty due to the essential role it played in the implementation of the cartel. For this reason, it was fined € 1000.
AC Treuhand AG brought an action for annulment to the CFI claiming that it could not be held liable since it was not active in the affected market and because it only acted as the cartel's secretary. However, the CFI upheld the finding and conclusions of the Commission and maintained the fine against AC Treuhand AG. The CFI confirmed that the participation in a cartel of an undertaking, even though it is not active in the relevant market, is enough to classify the undertaking as a "co-perpetrator" and thus its behavior would fall under Article 81(1).
The CFI stated that "any undertaking which has adopted collusive conduct, including consultancy firms which are not active on the market affected by the restriction of competition, could reasonably have foreseen that the prohibition laid down in Article 81 (1) EC was applicable to it in principle. Such an undertaking could not have been unaware, or was in a position to realize, that a sufficiently clear and precise basis was already to be found, in the former decision-making practice of the Commission and in the existing Community case-law, for expressly recognizing that a consultancy firm is liable for an infringement of Article 81(1) EC where it contributes actively and intentionally to a cartel between producers which are active on a market other than that on which the consultancy firm itself operates" (para. 150). This holds true even if the undertaking only participated in a subordinate manner (para. 151).
In this case, the fine imposed on AC Treuhand AG was of a limited amount because it was the first time that the Commission imposed a fine on an undertaking that was not active on the market on which the restriction of competition took place. However, it is likely that in the future fines in these cases will be higher.
The CFI confirms with its ruling the Commission's view that: "those who organize or facilitate cartels, thus not only their members, must henceforth fear being caught and having very heavy sanctions imposed on them."
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