The Court of Justice of the EU confirms the General Court’s judgment on the infringement of AC Treuhand as facilitator of a c…

Judgment of 22 October 2015. AC-Treuhand AG v European Commission. Case C-194/14 P

In 2009, the European Commission fined the Swiss consultancy AC Treuhand for facilitating two heat stabilizer cartels.

Based on the Commission’s decision, participants in the cartel engaged in price fixing, market sharing and exchanges of commercially sensitive information. In this context, AC Treuhand received fines of €174,000 for playing an essential role in the infringement, since it organized and attended the cartel meetings and collected and supplied sales data to the companies.

This decision was challenged before the General Court of the EU which dismissed AC Treuhand’s action in February 2014. Subsequently, AC Treuhand brought an appeal to the Court of Justice of the EU, which has confirmed the General Court’s judgment.

First, the Court of Justice has declared that Article 101 of the Treaty on the Functioning of the European Union (TFEU) refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition, irrespective of the market on which the parties operate. In this sense, the Court has indicated that the effectiveness of this Article 101 TFEU would be jeopardized if facilitators, such as AC Treuhand, could escape liability.

Second, the Court has confirmed that the Commission was right to fix AC Treuhand’s fine as a lump sum instead of using its value of sales. The company is a consultancy firm – therefore, not active on the markets for heat stabilizers− and the turnover it generated from the services offered to the cartelists was not sufficient to reflect the importance of the infringement.