Court of Justice confirms that consultancy firms that facilitate anti-competitive practices may be held liable under Article 101 TFEU

The European Union Court of Justice (Court of Justice), in case C-194/14 P, AC-Treuhand v. Commission, by judgment of 22 October 2015¹, dismissed the appeal brought by AC-Treuhand AG (AC-Treuhand) against the judgement of the General Court of the European Union (General Court) of 6 February 2014 in case T-27/10, by which the former dismissed the company’s action for annulment of Commission Decision C(2009) 8682 final, of 11 November 2009, relating to a proceeding under Article 101 TFEU² (Decision) or, subsidiarily, a reduction of the imposed fines.

AC-Treuhand, whose main place of business is in Zurich, is a consultancy firm which provides a range of services to national and international associations and interest groups, including business management and administration for Swiss and international professional associations and federations and non-profit organisations, the collection, processing and assessment of market data, presentation of market statistics and the audit of reported figures at the premises of the participants.

By its Decision, the Commission found that a number of undertakings had infringed Article 101 TFEU by participating in a number of anti-competitive agreements and concerted practices covering the EU and relating to (i) the tin stabiliser sector, and (ii) the epoxidised soybean oil and esters sector.

AC-Treuhand was found liable for having participated in both sectors in a series of agreements and concerted practices consisting of price fixing, allocation of customers and markets through sales quotas and exchange of commercially sensitive information, in particular on customers, production and sales, by playing an essential and similar role in both infringements at issue by (i) organising a number of meetings which it attended and where it actively participated, (ii) collecting and supplying to the relevant producers data on sales on the affected markets, (iii) offering to act as a moderator in the event of tensions between those producers and encouraging the latter to find compromises, for which it received remuneration. The Commission imposed two fines on AC-Treuhand, both in the sum of EUR 174,000.

AC-Treuhand sought before the General Court the annulment of the Decision or a reduction of the fines imposed on it, by arguing inter alia the non-fulfilment of the criteria of Article 101 TFEU and breach of the principle that offences and penalties must be defined by law, as well as the infringement of the Commission’s obligation to impose only a symbolic fine in the circumstances of the case at issue and breach of the 2006 Guidelines with respect to the calculation of the basic amount of the fine³. The General Court dismissed the action in its entirety, following which AC-Treuhand brought an appeal before the Court of Justice alleging that the a quo court infringed: (i) the conditions to apply Article 101 TFEU and Article 49(1) of the Charter of Fundamental Rights of the EU (Charter)⁴; (ii) the principles that offences and penalties must be defined by law, equal treatment and obligation to state reasons; (iii) Article 23(2) and (3) of Regulation 1/2003, of 16 December 2002⁵, the 2006 Guidelines on the method of setting fines and the principles of legal certainty, equal treatment and proportionality⁶; and (iv) Article 261 TFEU, the principle of effective judicial protection and Article s 23(3) and 31 of Regulation 1/2003, of 16 December 2002.

The Court of Justice dismissed AC-Treuhand appeal in its entirety. As regards the first ground of appeal, the court considered inter alia that “there is nothing in the wording of [Article 101 TFEU] that indicates that the prohibition laid down therein is directed only at the parties to such agreements or concerted practices who are active on the markets affected by those agreements or practices.”⁷ and that passive modes of participation, as in the case at issue, “are indicative of collusion capable of rendering the undertaking liable under [Article 101(1) TFEU], since a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, encourages the continuation of the infringement and compromises its discovery”⁸. Moreover, the court held that the company could reasonably have expected its conduct to be declared incompatible with the EU competition rules, in particular in the light of the broad scope of the terms “agreement” and “concerted practice” established by the court’s case-law.

In respect to the second ground of appeal, the court found it in part inadmissible and in part unfounded, as the pleas at issue were not raised before the General Court.

Regarding the third ground of appeal, the court ruled that the General Court did not erred in law in finding that the Commission was entitled to depart from the method of calculating fines set out in the 2006 Guidelines, considering that to determine the fines on the basis of the fees charged by AC-Treuhand for the services provided to the cartel participants would accurately reflect neither the economic importance of the infringements in question nor the extent of the company’s individual participation in those infringements.

Lastly the Court of Justice considered the fourth ground of appeal to be unfounded, taking into account that AC-Treuhand complaints related to the infringement of the principle that offences and penalties must be defined by law and the principles of equal treatment and proportionality were not raised at first instance, and that the a quo court examined all the complaints put forward by the company relating to the determination of the fines imposed.

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