In December 2003 the EC Commission imposed a fine on the Swiss consultancy firm AC Treuhand, on the basis that the firm had facilitated a cartel in organic peroxide products by offering the participants secretarial functions. The firm, which is not a producer of organic peroxide, had some involvement in organising meetings, storing incriminating papers and reimbursing travel expenses to participants to cover up any traces of the meetings. The level of the fine imposed on Treuhand was symbolic (€1000) as this was the first time that a fine was imposed on an undertaking which was not itself involved in the production or distribution of the products concerned. Fines totalling nearly €70 million were imposed on the other cartel members.

AC Treuhand appealed before the CFI, submitting that the Commission had erred in finding it liable for the infringement of Article 81 EC Treaty, given that it was not active in the market and had merely provided services to other organic peroxides producers.

The Court (in a judgment of 8 July 2008, Case T-99/04) rejected this claim and confirmed that the Commission had correctly established that AC Treuhand's participation, although not active in the relevant product market, was nevertheless in breach of Article 81 EC Treaty. The Court notes that any restriction of competition within the common market may be classed as an 'agreement between undertakings' where the restriction results from the manifestation of a concurrence of wills between the undertakings involved. The fact that an undertaking is not active on the relevant market does not rule out its liability for having participated in the implementation of a cartel.

As to the classification of the activities undertaken by the consultancy, the Court points out that the fact that an undertaking participates in a cartel only in a subsidiary or passive way is not sufficient to rule out its liability. In organising meetings and covering up traces of the infringement, AC Treuhand actively contributed to the implementation of the cartel and there was a sufficiently definite and decisive causal link between its activities and the restriction of competition on the organic peroxide market.

Comment

The case does have implications for consultancies, accountants and other firms and bodies who act for unrelated parties as facilitators or managers of trade or industry organisations, if the members use the organisation to create or manage any anti-competitive agreement or arrangement. It may also impact on trade associations if they act in this capacity for groups of their members. A number of firms have made a business of managing information collection and dissemination for particular industries. These will need to ensure that their procedures do not overstep the mark into assisting anti-competitive information exchanges or cartelism.