The EU’s second-highest court (the General Court (GC)) has confirmed that a company that does not directly participate in a cartel, but only facilitates it, is nevertheless liable to be fined as a cartelist.
The judgment, handed down on 6 February 2014, confirms the European Commission’s (EC) 2009 finding that Swiss consultancy firm AC Treuhand should be fined for its facilitation of two heat stabilizer cartels affecting the EU. According to the EC, “The principal decisions for both cartels were taken at meetings organised by AC Treuhand, which provided its Zurich premises and services to the companies involved.” The company was therefore fined EUR348,000 in total.
The GC confirmed that EU competition law can apply to any undertaking that has engaged in anti-competitive conduct, including consultancy firms that are not active on the market affected. In particular, it is clear from existing case law that a consultancy firm will be liable for cartel activity where it contributes actively and intentionally to a cartel between producers.
The judgment therefore provides a reminder and warning that facilitators of cartels (even if outside the EU) will be seen and fined as cartelists by the EC. Compliance programmes need to take this into account.