| EUROPEAN COMMUNITY — Free competition — Restriction or distortion of competition — Contribution by consultancy firm to cartel between producers — Firm not contracting party to cartel — Whether capable of infringement of competition law — EC Treaty, art 81
AC-Treuhand AG v Commission of the European Communities (Case T-99/04); [2008] WLR (D) 229
CFI: President of Chamber M Jaeger, Judges J Azizi and O Czúcz: 8 July 2008
A consultancy firm which contributed actively and intentionally to a cartel between producers which were active on a market other than that on which the firm itself operated was liable for an infringement of article 81(1)EC, even though it was not a party to the agreement between the producers.
The Third Chamber (Extended Composition) of the Court of First Instance of the European Communities so held, inter alia, when dismissing an action by the claimant for the annulment, so far as concerned it, of a decision by the Commission of the European Communities that certain undertakings in the organic peroxides market, and the claimant, had infringed art 81(1)EC.
Art 81(1) provides: “The following shall be prohibited …: all agreements between undertakings … which … have as their object or effect the prevention, restriction or distortion of competition within the common market …”
In connection with a cartel which had been founded by a written contract between three producers of organic peroxides and whose purpose was to preserve the market share of those producers and co-ordinate price increases, the claimant, a consultancy firm which was not a contracting party to the cartel, stored secret documents relating to the cartel on its premises, collected from the producers and distributed between them information on their commercial activity, organised and partly attended meetings of the producers, and reimbursed the expenses of representatives of the producers attending such meetings in such a way as to conceal traces of the implementation of the cartel. After the Commission had made its decision and imposed inter alia a fine of €1,000 on the claimant, the claimant brought the action for annulment, contending inter alia that, on the basis of the principle nullum crimen, nulla poena sine lege, an undertaking with a role such as it had played, of merely facilitating an infringement of competition law without participating in the cartel, could not be held to have infringed art 81(1)EC and be fined.
THE COURT, on the nullum crimen plea, said that “agreement” in art 81(1) had a broad meaning: it denoted any co-ordinated/collusive conduct that was restrictive of competition, and to constitute such an agreement, it was sufficient to prove conduct that expressed the concurrence of wills of at least two parties. For reasons given by the court, it should have been foreseeable by the claimant that there was a sufficiently clear basis in established Community case law for recognising that a consultancy firm was liable for an infringement of art 81(1)EC where it contributed actively and intentionally to a cartel between producers which were active on a market other than that on which the firm itself operated. The claimant actively contributed to the implementation of the cartel and there was a sufficiently definite and decisive causal link between that activity and the restriction of competition on the organic peroxide market. It was not relevant that the claimant was not formally and directly a party to the cartel agreements. Since, accordingly, that plea failed, and other pleas raised by the claimant were also unfounded, the action would be dismissed.
|
