Antitrust Law Daily Wrap Up, ANTITRUST NEWS: EC welcomes judgment confirming cartel facilitator’s liability, (Oct 23, 2015)

By Michael Menzhuber, J.D., LL.M.

The European Commission (EC) welcomed a ruling by the European Union Court of Justice (EUCJ) which upheld a General Court judgment finding AC Treuhand liable under EU antitrust rules for facilitating cartels. According to the Commission, the EUCJ’s ruling is a landmark judgment since this is the first time the court ruled on the so called "facilitation" of cartels – such as the organization of a cartel by a consultancy firm. The judgment by the EUCJ rejected all of AC Treuhand’s arguments on appeal.

In February 2014, the General Court had upheld a finding by the EC in 2009 that AC Treuhand and various suppliers of heat stabilizers participated in a cartel on tin stabilizers between 1987 and 2000, and in a cartel on ESBO/esters between 1991 and 2000. ESBO/esters are used as plasticizers and heat stabilizers for PVC products. In its 2009 decision, the EC determined that AC Treuhand played an essential role in the infringements and was remunerated by suppliers inter alia for organizing regular cartel meetings at its Zurich premises.

The EUCJ’s ruling was important for two reasons, the EC noted. First, the court confirmed that the service agreement between AC Treuhand and suppliers of heat stabilizers constituted an illegal agreement under EU competition rules. Agreements that distort competition in the EU are caught by Article 101 of the Treaty on the Functioning of the European Union (TFEU), irrespective of whether the parties operate in the same market. The EUCJ held that the effectiveness of Article 101 TFEU, that prohibits anticompetitive business practices, would be endangered if facilitators, such as AC Treuhand, could escape liability.

Second, the EUCJ confirmed that the Commission was entitled to fix the fine as a lump sum instead of using value of sales as a basis for setting the fine. AC Treuhand, as a consultancy firm, was not active on the markets for tin stabilizers and ESBO/esters, and therefore did not have any sales in those markets.

News: Antitrust