The EU Commission may fine companies merely for helping other undertakings run a cartel, the European Court of Justice (ECJ) held on 22 October 2015.[1] The facilitator does not need to be active on the market on which products or services were subject to the cartel arrangement. It suffices for the Commission to show that the company actively and knowingly contributed to the implementation and continuation of the cartel.

THE FACTS

In 2009, the EU Commission fined a number of chemical companies for price fixing and other anti-competitive conduct in relation to two different kinds of PVC additives (known as chemical heat stabilizers). In addition, it levied a fine on a consultant firm based in Switzerland. The Commission held that the firm had played an essential role in the cartel by organizing a number of meetings in which it actively participated, by collecting and supplying to the producers concerned data on sales on the relevant markets, and by acting as moderator between the cartelists. For these services the consultant firm had charged a fee.

For a similar role in a previous cartel, the consultant firm had merely received a symbolic fine of EUR 1000. In this case, however, it was fined EUR 344,000, while the 10 chemical companies received a total fine of EUR 173 million. The consultant firm filed unsuccessful appeals to the General Court and subsequently to the ECJ.

THE LEGAL REASONING

AC Treuhand argued that it does not sell any PVC additives and, thus, could not be part of an agreement to fix prices for these products. It stressed that extending the liability for cartel conduct to those who merely assist the cartelists would be at odds with the principle of nulla poena sine lege. Enshrined in Article 49(1) of the Charter of Fundamental Rights of the European Union, this principle establishes that penalties and sanctions must be defined by law and be foreseeable at the time the punished conduct is committed. The relevant Article prohibits agreements or concerted practices that have as their object or effect the restriction of competition. It is thus conceivable that the parties to such agreement or concerted practice should have some kind of relationship to the market affected by that restriction. Competition law at its core intends to safeguard the autonomy of economic entities. The consultant firm, however, did not relinquish any of its economic independence in favor of coordination with other companies. How could it then be liable for a restriction of competition?

The ECJ discarded this argument by simply stating that the law is not expressis verbis solely directed at parties to such agreements which are active on the affected market. It suffices that the undertaking concerned contributed by its own conduct to the common objectives of all participants and that it was aware of or could reasonably foresee the actual conduct of the other participants. After all, this was why also passive participation at cartel meetings could be sanctioned by fines, if the undertaking does not publically distance itself from the unlawful conduct.[2] The main argument of the ECJ is the principle of effectiveness, though. The law aims at ensuring undistorted competition. If cartel facilitating behavior could not be prosecuted, the antitrust prohibition would not be fully effective. For the ECJ it sufficed that the consultant firm was apparently “essential” to the functioning of the cartel, and did not only act on the periphery. On the issue of foreseeability, the Court simply held that persons who are used to having a high degree of caution when pursuing their occupation (such as consultants) should exercise caution and seek legal advice. It did not matter that there had been no decision on this issue at the time. The court simply assumed, the undertaking would have been told such activity was illegal.

This reasoning is clearly guided by the ECJ’s usual, sometimes over-zealous urge to push “effective prosecution”. In criminal law there are specific provisions for those committing an offence and those assisting them. The European antitrust provisions lack such a provision for accessories. The reasoning of the ECJ is not fully convincing how this new extension of liability (albeit not criminal) without proper law is in line with the fundamental judicial rights, namelynulla poena, sine lege.

The consultant firmfurther contested the arbitrary fining by the Commission. Indeed, the Commission did not apply its fining guidelines – not the least because these guidelines base the fine on the turnover affected by the cartel. Obviously, the consultant firm did not generate any turnover with the products subject to the cartel. However, the Commission did not even take the fees as proxy that the consultant firm had charged for the services to the cartel members. This would have had at least some nexus to its behavior and the profit made. Instead, the Commission imposed a lump sum briefly referring to the severity of the consultant firm’s conduct and the cartel as such, but not disclosing any logic on how it arrived at the amount of the fine. The ECJ, however, simply stated that reference to fees generated would not to be proportionate neither to the “economic importance of the infringements” nor to the “extent of the consultant firm’s individual participation”. Reading the judgment, it appears as though briefly alluding to the fact that a cartel is particularly bad suffices for the Commission and the General Court to fulfill their duties to give reasons under the principles of legal certainty, equal treatment and proportionality. There were further arguments raised that the ECJ likewise discarded.

LEARNINGS

While the decision may be flawed in its reasoning, it is part of a tradition of decisions that put more emphasis on the principle of effectiveness (i.e. effective cartel prosecution) than on fundamental rights of companies. In any case, the question of whether a mere assistant to a cartel may be held liable is settled now. The practical relevance of this is yet unclear. Usually, antitrust perpetrators tend to run their cartels by themselves. However, there have been other cartels that used services by middlemen, for instance in the marine hoses case. The decision may also very well have a direct effect on the case of ICAP, a broker-dealer that is currently charged with facilitating the LIBOR cartel. One could think of others put at risk of prosecution, too: Will hotel companies be liable if they knowingly provide conference rooms and services to members of a cartel? Likely not, as they presumably only act “on the periphery” of the cartel. But what about law firms that attend trade union meetings to ensure compliance with antitrust rules? If anticompetitive conduct takes place and they do not intervene, because they misjudge the conduct as legal and thus passively encourage the undertakings to continue their activity – can they be fined? Will the law firms have to prove that they did not realize the conduct was illegal? Some fear that all different kinds of consultants that come into contact with cartel members, often unknowingly, may now run the risk to be prosecuted.

In essence, this decision once again shows that cartel prosecution in the EU is fierce and the Courts tend to uphold Commission’s decisions in order to ensure “effectiveness” of European antitrust law. All consultants and companies that may provide services to cartel members, for instance auditing firms, market intelligence agencies or law firms, need to take special care now. If they suspect any wrongdoing, they need to voice (and document) their concerns and should seek legal advice.