AC-TreuhandJudgment: A Broader Scope for EU Competition Law Infringements?

Abstract

As the readers of this journal are aware, in October 2015, the Court of Justice has confirmed that the conduct of a consultancy firm can be caught by the EU prohibition of agreements or concerted practices restricting competition where it contributes actively and in full knowledge of the relevant facts to the operation of a cartel (Article 101 TFEU), even where that firm is not active on the cartelised market (AC-Treuhand C-194/14 P). The AC-Treuhand judgment is significant as it may apply to any type of intermediary: market research organisations, trade associations, online platforms as well as brokers, dealers, and other trading intermediaries. Intermediaries can now face hefty fines: AC-Treuhand’s fine of E348,000 was set as a lump sum, which was then reduced as a result of the application of the legal maximum: 10 per cent of the total global turnover of the consultancy firm in the preceding business year. Competition law practitioners have several reasons to ask themselves whether the AC-Treuhand judgment broadens the scope of EU competition law infringements. First, the ruling has implications for all types of intermediary that have active involvement in assisting other companies in the attainment of anticompetitive objectives. This supports the European Commission’s recent approach to ‘facilitators of cartels’. In its decision of 4 February 2015, the Commission fined a UK-based broker almost E15 million for facilitating certain cartels affecting Yen interest rate derivatives, including by serving as a communications channel and disseminating misleading information to non-cartelists. Accordingly, consultancies, market research organisations, trade associations, online platforms as well as brokers, dealers, and other trading intermediaries should carefully consider the implications of these decisions in the formulation of their competition law compliance programmes, as they may be found liable if they actively contribute to the commission of an infringement in the full knowledge of the relevant facts. Second, the AC-Treuhand test may also determine the liability of an intermediary in supplier–retailer cases. Over the past years, competition authorities have devoted increased attention to so-called hub-and-spoke or ‘A–B–C’ cartels. The common characteristic is that the cartel does not operate by means of direct contacts between the competing companies (the spokes), but that they interact indirectly via a common trading partner (the hub) who is active on another (generally upstream) market (see the Guidelines on Horizontal Cooperation Agreements at para. 55, the Guidelines on Vertical Restraints at para. 211, the E-books case that in a footnote refers to the judgment AC-Treuhand I (T-99/04), several decisions of the national competition authority in the UK, and the indirect references in recent decisions of the national competition authorities in Belgium, France, and Germany). Suppliers and retailers need to consider carefully how they deal with their respective trading partners. The usual competition law warning against horizontal collusion (‘do not talk about strategic information with your competitors’), whilst correct, does not address the risk that the company may find itself liable as the ‘hub’ of cartel activities involving its suppliers or retailers. Hub-and-spoke collusion is one of the ‘new frontiers’ of cartel enforcement by competition authorities around the world, and advice needs to be tailored to the specificities of each business and its trading partners. Third, one may question whether the Court of Justice is attempting to introduce a legal test for the liability of intermediaries/facilitators that is more demanding than the settled case law on cartels liability. On the one hand, the Court of Justice finds that AC-Treuhand participated in the cartel (and therefore was to be liable for it) as it intended to contribute by its own conduct to the common objectives pursued by all the participants, and it was aware of the actual conduct of the other companies in pursuit of the same objectives (or in any case it