On 22 October 2015, the Court of Justice of the European Union ("ECJ") issued its judgment in Case C‑194/14P AC-Treuhand v Commission concerning the liability of cartel facilitators under Article 101 TFEU.

In November 2009, the Commission found that a number of undertakings had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in two sets of anti-competitive agreements and concerted practices in relation to different types of heat stabilisers (see VBB on Competition Law, Volume 2009, No. 11, available at www.vbb.com). According to the Commission, the infringements concerned fixing prices, sharing markets through sales quotas, allocating customers and exchanging commercially-sensitive information.

In this context, the Commission also found AC-Treuhand, a consultancy firm, liable for the infringements as it had played an essential role in the illegal conduct by: (i) organising meetings for the participants in the cartel; (ii) collecting and providing the participants with sales data relating to the relevant markets; and (iii) proposing to act as a moderator in cases of disagreement between the participants. AC-Treuhand unsuccessfully challenged this finding of liability before the General Court ("GC") and subsequently lodged an appeal before the ECJ.

In its recent judgment, the ECJ found AC-Treuhand's four grounds of appeal in part inadmissible and in part unfounded, and therefore dismissed the appeal in its entirety. In so doing, the ECJ declined to follow AG Wahl's earlier recommendation to uphold AC-Treuhand's appeal (see VBB on Competition Law, Volume 2015, No. 5, available at www.vbb.com).

AC-Treuhand's first plea invoked a violation of Article 101 and of the principle of the legality of criminal offences and penalties (nullum crimen, nulla poena sine lege) enshrined in Article 49(1) of the Charter of Fundamental Rights of the European Union (the "Charter"). In his earlier Opinion, AG Wahl had focused exclusively on this particular ground of appeal, as it raised questions as to whether an undertaking, which does not operate on the market which is the subject of a cartel, can be deemed to have participated in an anti-competitive agreement under Article 101 TFEU. The Advocate General believed it could not, and so recommended the ECJ to allow the appeal.

The ECJ has now clarified this issue, holding that there is nothing in the wording of Article 101(1) indicating that the prohibition is directed only at the parties to agreements or concerted practices who are active on the markets affected by those agreements or practices. The ECJ cited past case-law finding that the text of Article 101 refers to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, and that only the commercial conduct of the parties needs to be affected by the terms of the arrangements in question. Furthermore, the ECJ pointed to the fact that the main objective of Article 101 is to ensure that competition remains undistorted within the common market. Thus, according to the ECJ, AC-Treuhand's interpretation could not be accepted, as it would effectively negate Article 101's effectiveness by making it impossible to stop the active contribution of an undertaking to a restriction of competition simply because that contribution does not relate to an economic activity forming part of the relevant market on which that restriction occurs.

In these circumstances, even though the service contracts concluded by AC-Treuhand were separate from the commitments entered into by the producers of heat stabilisers, and notwithstanding that AC-Treuhand is a consultancy firm, the ECJ decided that its actions did not constitute mere peripheral services unconnected with the producers' conduct and the restriction of competition.

Secondly, addressing the notion of foreseeability, the Court held that AC-Treuhand should have expected its conduct to be declared incompatible with EU competition rules, in light of the broad scope of the terms 'agreement' and 'concerted practice' flowing from the ECJ's case-law and the Commission's administrative practice. With regard to the alleged infringement of the principle that offences and penalties must be defined by law, the principle of equal treatment and the obligation to state reasons, the ECJ concluded that AC-Treuhand's allegation that the high amount of the fine imposed on it was unforeseeable had been not previously mentioned in its appeal before the GC and was therefore inadmissible. As for the principle of equal treatment, the ECJ stated that the GC could not be criticised for not giving judgment on a plea not raised before it. The second ground of appeal was thus rejected.

The third ground of appeal related to the infringement of Article 23(2) and (3) of Regulation 1/2003, the 2006 Fining Guidelines, and the principle of certainty, equal treatment and proportionality. The last three points were dismissed for the same reasons set out by the ECJ in relation to the second ground of appeal. As to the 2006 Fining Guidelines, the ECJ concluded that the Commission was entitled to depart from the method of calculating fines by imposing a lump-sum fine in the circumstances of the case. This was because determining the fines to be imposed on the basis of the fees charged by AC-Treuhand, as AC-Treuhand argued, would not reflect the economic importance of the infringements or the extent of AC-Treuhand's individual participation in those infringements, contrary to the objective of the 2006 Guidelines.

The last ground of appeal concerned the principle of effective judicial protection, and was also dismissed as unfounded, since the ECJ considered that the GC had exercised its powers of review according to the principle of effective judicial protection enshrined in the Charter.

The ruling of the ECJ is significant as it settles the issue of liability of cartel facilitators, which do not operate on the market concerned by a cartel, by establishing that they can be held liable for an infringement of the competition rules on the grounds of having facilitated the infringement and therefore can be fined accordingly.

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