CFI confirms that consultancies with no activity on the market can be liable under Article 81

29 September 2008

Louise Banér

The Court of First Instance (CFI) has upheld the Commission Decision of 2003 that AC-Treuhand AG, a Swiss consultancy firm should be fined for its involvement in the organic peroxide cartel. In doing so the CFI confirmed that a consultancy firm with no activity on the market can be liable under EC competition law and can be fined for the infringement as a whole, where it actively organised and provided logistical support to the cartel.

In the original Commission Decision, it was found that the Akzo Group, Atofina SA and Peroxid Chemie GmbH & Co. KG, had implemented a cartel on the European market in relation to organic peroxides. The cartel preserved the market share of these three producers and co-ordinated price increases.

The Commission had found that AC-Treuhand AG, a Swiss consultancy firm had also infringed the competition rules and imposed a fine of €1,000. AC-Treuhand appealed the decision on several counts including the question of whether an undertaking may be held liable for a cartel even if it not active on the market on which the restriction of competition materialises. Treuhand’s role in the cartel was to organise meetings, provide logistical assistance, participate in some agreements and to store contracts. It also provided market share information.

The CFI held that the fact that an undertaking did not take part in all aspects of an anti-competitive scheme, or that it played only a minor role in the aspects in which it did participate, was not material to the establishment of an infringement on its part. The CFI concluded that the applicant’s argument, because it is not active in the market and its contribution to the cartel was subordinate, that a consultancy firm cannot be regarded as a co-perpetrator of an infringement was not upheld.

Treuhand’s fine was low compared with the fines imposed on the producers of organic peroxides; Akzo Group were fined €43.37 million, Atofina SA €8.83 million and Peroxid Chemie GmbH & Co. KG €16.73 million. A low fine was thought appropriate because this was the first time that an undertaking which was not involved in the production or distribution of the product had been found to infringe.

These are the sorts of activities which may be undertaken by trade associations or consultancies with a co-ordination role. This judgment gives a warning to industry bodies and consultancies that they can infringe Article 81 through having a facilitating role, such as organising meetings, providing logistical assistance and participating in a set of agreements. The fine imposed was relatively low, because this was the first time that such a Decision had been made, and fines in the future can be expected to be higher.

Source: AC-Treuhand AG v Commission of the European Communities (Case T-99/04) Judgment of the Court of First Instance 8 July 2008