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Facilitators of cartel activity can be fined even if not active in the market, rules EU court


Organisations that help cartelists conduct anti-competitive activities but which are not directly active in the sale or provision of goods or services in the affected market can be fined for facilitating the illegal activity, the EU's highest court has confirmed.

The Court of Justice of the EU (CJEU) ruled that the European Commission was entitled to fine consultancy business AC-Treuhand for the part it played in supporting cartel arrangements that existed in the tin stabiliser sector and epoxidised soybean oil and esters sectors throughout much of the 1990s.

The companies involved in the cartel were engaged in price fixing, dividing up markets, allocating customers and the exchange of commercially sensitive information, including data on customers, production and sales. AC-Treuhand was not directly involved in the cartels but was issued with two separate fines of €174,000 by the Commission after it deemed the firm had played an "essential" role in the cartel activity, including by organising and attending meetings between cartel participants and collecting and supplying sales data to the companies involved.

AC-Treuhand appealed that decision before the EU's General Court, but its arguments were rejected. It then asked the CJEU to overturn the decision, arguing that it should not be held to have been a participant in the cartel activities and should therefore not have been fined. The CJEU dismissed that claim.

"It is apparent from the Court’s well established case-law that [EU competition law] refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question," the CJEU said.

"It should also be noted that the main objective of [those rules] is to ensure that competition remains undistorted within the common market. The interpretation of that provision advocated by AC‑Treuhand would be liable to negate the full effectiveness of the prohibition laid down by that provision, in so far as such an interpretation would mean that it would not be possible to put a stop to 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 comes about or is intended to come about," it said.

The CJEU said that AC-Treuhand knew that it was involved in helping companies directly involved in the cartels pursue "anti-competitive objectives" and that its own conduct was "directly linked" to the illegal activity being pursued by the cartelists.

"Even though those service contracts [between AC-Treuhand and the direct cartel participants] were formally concluded separately from the commitments entered into by the producers of heat stabilisers among themselves, and notwithstanding the fact that AC‑Treuhand is a consultancy firm, it cannot be concluded that the action taken by AC‑Treuhand in that capacity constituted mere peripheral services that were unconnected with the obligations assumed by the producers and the ensuring restrictions of competition," the CJEU said.

The Court also confirmed that the Commission was right to depart from the method of calculating the fine as set out in its guidelines and to impose a lump sum given that AC-Treuhand was not active on the relevant market and that the turnover it generated from the consultancy services rendered to the cartelists was not sufficient to reflect the importance of the infringement.

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