Fines imposed on cartel facilitators are not a surprise anymore.
The General Court of the European Union has dismissed all the appeals brought against the European Commission decision on the heat stabilisers cartels which lasted from 1993 to 2000 (the tin stabiliser cartel and the ESBO/esters cartel).
Most notably, the General court upheld the two €174,000 fines (€348,000 total) imposed on AC Treuhand, a consultancy firm that was not active on the markets affected by the restrictions of competition, but “actively and intentionally” contributed to the cartels by providing logistic assistance to the undertakings active on the affected markets.
AC Treuhand is already well known for having been fined a symbolic €1,000 in 2003 in relation to the organic peroxides cartel, based on the same type of organisational assistance provided at the same time (from 1993 to 1999). AC Treuhand had unsuccessfully argued before the General Court that the Commission infringed the principle of nullum crimen, nulla poena sine lege by imposing a fine for a behaviour that had never been considered antitrust breach before. In its 2008 judgement, the General Court insisted that settled case law already existed in relation to undertakings that shared liability for the anti-competitive conduct of another economic actor because they were co-perpetrators or complicit in the overall infringement. Thus, the General Court held that the Commission’s decision also to apply such reasoning to a consultancy firm not active on the same market as the main participants was not unforeseeable. The General Court accepted that such factual context raised a “specific question” but judged that the Commission had merely clarified an existing practice rather than established a new one.
The 2008 ruling seemed a bit convoluted: the European Commission itself had acknowledged in 2003 that addressing a decision to the consultancy firm “having a role of this kind” was “to a certain extent a novelty”, so that a symbolic €1,000 fine was considered “appropriate”.
It should, however, be remembered that the Commission had already attributed an antitrust infringement to the consultant firm Fides in the Italian cast glass decision in 1980, although no penalty was imposed. (AC-Treuhand was established from a former division of Fides.)
In any event, the low fine in the organic peroxides cartel was interpreted as a sign of clemency. The threat of “heavy sanctions” communicated by the Commission seemed to be aimed at cartel facilitators for infringements that would start or last after 2003.
One may have hoped that cartel facilitation prior to the 2003 Commission decision but discovered or fined after 2003 would still result in a symbolic fine.
The European Commission ended such hopes with its 2009 decision in the heat stabilisers cartels. The recent judgement of the General Court upholding that decision thus constitutes a double warning.
The first, clear lesson is that clemency is over. Mercy lasted for one cartel, no more, and consultancy agencies (or other intermediaries) cannot minimise the legal risk any more when they facilitate an antitrust violation. Not only is there case law about finding cartel facilitating infringements: there is now also case law involving significant fines.
The second lesson is that the nullum crimen, nulla poena sine lege argument seems very difficult to use against the Commission in the field of competition law. There will be other situations where the Commission will produce new solutions by “clarifying” existing case law, and the General Court does not seem prone to stopping the Commission from doing so. It might be worth fighting until the end, that is to say appealing to the Court of Justice of the European Union. The Commission will try to impose the new solution by imposing reasonable or even low fines, which lowers the incentive to litigate. Yet abandoning after the General Court judgement might backfire sooner than expected, as for AC Treuhand.