In a judgment dated 6 February 2014, the General Court of the European Union fined a consultancy firm, for the second time, for providing assistance to a cartel. In this case, however, the fine no longer is symbolic. This judgment serves as a new warning to consultants and other service providers who assist clients in committing competition infringements.
Service provider accessory to a cartel infringement
A number of competitors made arrangements concerning prices and with the intention of partitioning the market for heat stabilisers. These arrangements were made at meetings also attended by AC Treuhand, a consultancy firm. AC Treuhand helped the functioning of the cartel by collecting sales data and circulating these data between the cartel members. The Commission considered that, in doing so, AC Treuhand had actively contributed to the prohibited practices and to the concealment of the cartel.
In a judgment dated 8 July 2008, AC Treuhand had already been found guilty of similar actions (within the context of another cartel). The recently passed judgment confirms that a consultant can be held liable for a cartel infringement even when it was not active on the cartelised market. It is sufficient that the consultant actively and deliberately contributed to practices which it knew or should have known were cartel infringements.
Not merely a symbolic fine
For the previous infringement, the Commission had imposed on AC Treuhand a symbolic fine of EUR 1,000. The Commission based that decision on the grounds that, at that time, holding external service providers personally liable for a cartel infringement of their clients was, to a certain extent, a novelty. For this second infringement, the Commission adopted a stricter approach: AC Treuhand was fined EUR 348,000. It should be pointed out, however, that the facts which led to this second fine date from before the Commission decision in the first case. Hence, AC Treuhand was not aware of the landmark judgment in the first case at the time it cooperated with the second cartel. The General Court nevertheless concluded that the Commission could impose more than a symbolic fine.
The fine of EUR 348,000 was a lump sum which the Commission justified by reference to the "particular characteristics" of the case. According to its fining guidelines, the Commission normally calculates the fine on the basis of the value of the company's sales related to the infringement. AC Treuhand had argued that its fine should have been calculated based on the fees it had received for its services from the cartel participants. The General Court considered that, in the case at hand, the Commission could and even should depart from the method normally used to calculate the fine. The General Court pointed out that, since AC Treuhand was not active on the market for heat stabilisers, the value of its sales on this market was "not representative".
Comment
The judgment is not only relevant to consultants, but also to trade associations and other service providers who find themselves confronted with infringements of the competition rules. They have little recourse other than to distance themselves (explicitly) from the infringement when they learn of such behaviour. This judgment also clarifies that service providers risk fines calculated on the basis of the sales of the cartel (rather than their own fees). Since AC Treuhand has filed an appeal, the European Court of Justice will have the final say on this matter.