The Court of Justice of the European Union (CJEU) has upheld a fine of €348,000 against AC Treuhand AG, a consultancy specialising in market data analysis, for its involvement in the ‘Heat Stabilisers’ cartel. In a decision1 with potentially wide-ranging implications, including for commodity trade associations, the CJEU held that a consulting firm can be liable for an infringement of EU competition law even though it is not a participant in the relevant market itself, if it provides commercial services which “facilitate” the anti-competitive activities of cartel members.
On 22 October 2015, the CJEU rejected AC Treuhand’s appeal that it had not participated in an agreement or concerted practice. It held that the provision of consultancy services can constitute anti-competitive behaviour where the purpose of the services is directly linked to the objectives of a cartel, regardless of whether the consultancy operated on the same market as the cartel.
AC Treuhand brought the appeal in the CJEU against a fine of €348,000 imposed by the European Commission on 11 November 2009, arguing that its services to members of the ‘Heat Stabilisers’2 cartel did not constitute participation in an agreement or concerted practice and that it was not active on the market in question. The appeal was supported by the opinion of Advocate-General Wahl. However, ultimately the CJEU rejected these arguments, holding that AC Treuhand did not provide “mere peripheral services” but that rather, the purpose of the services was to contribute to the anti-competitive objectives of the cartel. Moreover, the CJEU held that the terms “agreement” and “concerted practice” in article 101 do not mean that an undertaking can only be liable if it is active in the same market as the cartel.
The basis of the CJEU’s finding against AC Treuhand was that it was found to have:
- Intended to contribute to the common objectives of the cartel.
- Been aware of the actual conduct planned or undertaken by the cartel or that it could reasonably have foreseen it and that it was prepared to take the risk.
- Collected and supplied to the cartelists data on sales on the relevant markets.
- Contributed to the objectives of the cartel by acting as a moderator and mediator between the parties.
- Been present at meetings at which anti-competitive agreements were concluded, without clearly opposing them.
However, the CJEU was clear that an undertaking would not be liable if it only provided “mere peripheral services” that were unconnected with the obligations assumed by the cartelists and the anti-competitive results of their actions.
This judgment is a warning for consultants or other third parties providing commercial data to a number of market participants in the same market, particularly where they are actively involved in providing the forum for meetings and in the exchange of sensitive commercial information. AC Treuhand was active and present during the process of customer allocation and price fixing in this case. The CJEU was clear that in such circumstances it does not matter whether the consultancy is itself a participant in the market in question and upheld a fine that was independent of turnover in the relevant market – the usual basis for penalties arising from cartel involvement.
It seems possible that new disputes will arise out of this decision, and that the case law on this topic may be clarified further in due course. The difference between “mere peripheral services” and “facilitation” is potentially ambiguous; trade associations, consultancy groups, data-providers, event organisers and others should all be wary of crossing this line.
Service providers should not be complacent about the possibility of liability under article 101. Those providing a forum where competitors in the same industry can meet should be vigilant and should disseminate appropriate guidelines and protocols to ensure compliance with competition law, and review any existing guidelines to ensure compliance with this new ruling, insofar as is possible.