Advocate General Wahl issues Opinion on liability of cartel facilitators

On 21 May 2015, Advocate General Wahl issued his Opinion on an appeal lodged by AC-Treuhand AG (“AC-Treuhand”) against a General Court (“GC”) judgment upholding the European Commission’s decision in the heat stabiliser cartel case (see VBB on Competition Law, Volume 2014, No. 2, available at www.vbb.com). In his Opinion, the Advocate General concludes that a consultancy firm, which does not operate on the market concerned by a cartel or on a neighbouring market, cannot be held liable for an infringement of the competition rules on the grounds that it facilitated the implementation of a cartel. On this basis, he recommends that the Court of Justice of the European Union (“ECJ”) set aside the GC’s judgment upholding AC-Treuhand’s liability.

In late 2009, the Commission found that a number of undertakings had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in two sets of anti-competitive agreements and concerted practices concerning different types of heat stabilisers. According to the Commission’s Decision, each infringement involved fixing prices, sharing markets through sale quotas, allocating customers and exchanging commercially sensitive information. The decision found AC-Treuhand, a consultancy firm, liable for these infringements as it had played an essential role in both forms of illegal conduct by: (i) organising meetings for the participants in the cartels; (ii) collecting and providing the participants with sales data relating to the relevant markets; and (iii) proposing to act as a moderator in cases of disagreement between the participants. The cartel members paid AC-Treuhand for providing these services to support the operation of the cartel.

For each infringement, the Commission imposed a fine of € 174,000 on AC-Treuhand. On appeal, the GC upheld the Commission’s decision, finding that AC-Treuhand had knowingly contributed to the operation of the cartels and could therefore be held liable under Article 101.

In its appeal before the Court of Justice, AC-Treuhand invoked four pleas, the first of which was the violation of Article 101 and of the principle of the legality of criminal offences and penalties (nullum crimen, nulla poena sine lege). In his Opinion, the Advocate General focuses exclusively on this ground of appeal, as he considers it to raise the question of principle as to whether an undertaking, which does not operate on the market which is the subject of a cartel, can be deemed to have participated in an anti-competitive agreement under Article 101. AC-Treuhand had argued that Article 101 is not of capable of being applied to its conduct.

In his Opinion, Advocate General Wahl endorses AC-Treuhand’s submission. In order to affirm his view that AC-Treuhand cannot be held liable for an infringement of Article 101, the Advocate General first examines the scope of the prohibition of cartels contained in Article 101 and then applies his findings to the case at hand.

The Advocate General reasons that Article 101 aims to prohibit conduct which – on the basis of economic analysis – has been established (or which can be legitimately presumed) to adversely affect competition. It follows that, for an undertaking to be held liable for an infringement of Article 101, it must be determined to what extent it concerted with other undertakings with a view to removing itself as a competitive constraint on the market. In other words, the undertaking entering into the collusion must constitute a competitive constraint for the other cartel participants. The Advocate General explains that the definition of the relevant market is essential precisely because of the need to systematically identify the constraints that competition places on the undertakings in question. According to the Advocate General, the requirement that the undertaking must constitute a competitive constraint follows not only from a teleological interpretation of Article 101, but also from the ECJ’s case law concerning vertical restrictions.

The Advocate General then proceeds to apply these considerations to the case at hand:

♦ First, he considers that AC-Treuhand cannot be considered the author of an infringement of Article 101 because it only participated in an agreement concerning the provision of services and did not give nor receive any anti-competitive commitment. Moreover, the Commission did not allege that AC-Treuhand constituted a competitive constraint on the members of the cartel. The Advocate General adds that, even if it were established that AC-Treuhand’s behaviour had a positive effect on the cartel’s functioning, the effects on competition exclusively result from the behaviour of the cartel members. According to the Advocate General, if the opposite interpretation was adopted, the methodology for identifying anti-competitive conduct would be deeply disrupted since there would be a disconnection between the relevant conduct and the necessity of identifying the restriction of competition. Such a disconnection would be problematic since nothing would exclude facilitating behaviour, such as strategic advice or economic expertise, from being liable for sanction under Article 101 or, by analogy, Article 102.

♦ Second, the Advocate General finds that AC-Treuhand also cannot be considered an accomplice to an infringement of Article 101. He reasons that, as competition law is administrative and not criminal in nature, the criminal law concept of “accessory to a crime” does not make sense in this context. According to the Advocate General, it is up to the EU legislator to provide for an infringement aimed at accomplices in order to reconcile the institutions’ desire to ensure the effectiveness of their policies with the requirements of legality and legal certainty.

 The Advocate General accordingly recommends that the ECJ set aside the GC’s judgment and annul the Commission’s decision in so far as it concerns AC-Treuhand.