On February 6, 2014, the General Court of the EU (GC) issued its judgment in AC-Treuhand AG. The judgment relates to the European Commission’s (EC) decision in Heat Stabilizers, which imposed fines on a number of companies for having participated in cartel conduct in relation to two kinds of stabilizers added to PVC products in order to improve their thermal resistance.
AC-Treuhand AG (AC-Treuhand) was among the companies fined. Interestingly, AC-Treuhand was not a party to the anti-competitive agreements as such. AC-Treuhand is a consulting company, offering a full range of tailor-made services to professional associations. The EC imposed a fine on it on the ground that it had played a central role in the organization and facilitation of the anti-competitive arrangements at issue. Specifically, the EC found that AC-Treuhand made available its premises to the cartel, collected and supplied sales data on the relevant markets to the cartel participants, and encouraged alignment among them with a view to reaching anti-competitive agreements.
AC-Treuhand appealed the EC’s decision before the GC arguing, among others, that:
- The EC infringed the principle of legality of criminal offences and penalties, given that AC-Treuhand had not concluded an anti-competitive agreement or participated in a concerted practice within the meaning of Article 101 TFEU. AC-Treuhand had only concluded an agreement to provide services to the cartel participants. In any case, even if Article 101 TFEU would be deemed applicable to its conduct, AC-Treuhand argued that it could not have foreseen such application at the time of the relevant events.
- In the alternative, the EC erred in fining AC-Treuhand €348,000 as: (i) the unforeseen application of Article 101 TFEU justified the imposition of a symbolic fine, in line with the EC’s practice in previous cases; and (ii) the fine imposed violated the EC Guidelines on the method of setting fines (Guidelines).
The GC rejected both lines of argument, for the reasons explained below.
The Application of Article 101 TFEU to AC-Treuhand’s conduct
The GC noted that a consulting company deliberately contributing to an anti-competitive agreement may be held responsible as a co-infringer of EU competition rules. The GC highlighted that such finding had already been made in the past, in a judgment involving the same plaintiff. In that judgment, the GC had ruled that: (i) the crucial element in finding that a company has infringed Article 101 TFEU is that of a “joint intention”; and (ii) there is no requirement for the market on which the infringing undertaking is active to be exactly the same as the one on which the restriction in competition is deemed to materialize.
The GC added that, just as any other company, a consulting company which is not active in the cartelized market should be in a position to reasonably foresee that the prohibition of Article 101 TFEU applies to it. The GC took the view that a consulting company could not ignore, or better yet, should be in a position to understand that the EC’s practice and the EU case-law sufficiently revealed that it would be held responsible under Article 101 TFEU, if it actively and deliberately contributed to an anti-competitive agreement among producers on a different market than the one on which it operates.
The Fine Imposed on AC-Treuhand
The GC clarified that the EC was under no obligation to impose a symbolic fine on AC-Treuhand: this was merely a possibility available to it. In that regard, the GC referred to point 36 of the Guidelines stating that the EC “may” impose a symbolic fine in certain cases. The GC also noted that the fact that the EC had imposed symbolic fines in previous cases did not create an obligation on its part to do so again. For the enforcement of EU competition rules to be effective, the EC should be in a position to adjust the level of fines according to the every-time exigencies of EU competition policy.
The GC also rejected AC-Treuhand’s argument that the fine imposed on it infringed the EC’s method of setting fines, as outlined in the Guidelines. AC-Treuhand’s argument was based on the fact that, according to points 9 to 13 of the Guidelines, the EC is supposed to determine the basic amount of the fine by reference to the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area. However, in the present case, the fine imposed was defined as a lump sum – and not by reference to the remuneration that AC-Treuhand received for supplying the services related to the infringement.
As a starting point, the GC reiterated its well-established case-law that, even though the Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the EC may not depart in an individual case without giving reasons. This does not mean, however, that the EC does not retain a margin of appreciation in setting fines. In that regard, the GC referred to point 37 of the Guidelines stating that the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from the methodology set out in the Guidelines. The GC concluded that the particular circumstances of the present case justified a departure from such methodology: AC-Treuhand was not active on the market on which the infringement took place and, therefore, the value of the services provided, directly or indirectly related to the infringement, was null or not representative of its participation in the infringement.
A Clear Warning to Consultancies
The GC’s ruling in AC-Treuhand confirmed that it is not only the stricto sensu participants to the anti-competitive agreement or concerted practice that may be held liable for an infringement of EU competition rules; but also any undertaking (even if not present on the relevant market) that actively and deliberately aids or facilitates the cartel conduct. The GC’s ruling also highlighted that, despite the “non-traditional” character of the participation of such undertaking, the fines imposed on it may be significant. Arguably, such move is not only justified for reasons of deterrence, but also in order to defeat any efforts of cartels to remain undetected. The GC judgment serves as a warning not only to service providers, but also to trade associations which often offer to their members similar services – such as a location to hold meetings, and the collection and supply of sales and other data – as those offered by AC-Treuhand to its clients.