Member Article

The background to the case is the following. The European Commission found in December 2003 that three manufacturers of organic peroxides (chemicals used in the plastics and rubber industry) had formed a cartel on the European market in 1971. The purpose of the cartel was to maintain market shares for the companies in question and to coordinate their price increases.

The European Commission found that the Swiss consultancy A-C Treuhand had, from 1993, provided the manufacturers with various services and had had an important role in the cartel by organising meetings and concealing evidence of the violations by storing certain documents on their premises and by collecting and processing certain information and forwarding it to the companies. Furthermore, A-C Treuhand arranged meetings for the participating companies and in conjunction with these, the consultancy carried out secretarial tasks and reimbursed the company’s travel expenses so that these would not appear in each of the companies’ book-keeping.

The European Commission ordered A-C Treuhand to pay symbolic fines of 1 000 euro. The European Commission stated, inter alia, ‘The sanction taken [against the applicant] is of a limited amount due to the novelty of the policy followed in that area. The message is clear however: those who organise or facilitate cartels, thus not only their members, must henceforth fear being caught and having very heavy sanctions imposed on them’.

A-C Treuhand appealed against the decision to the Court of First Instance and claimed that the company could not be held liable because, inter alia, it was not part of the cartel and was not active on the market in question.

The Court of First Instance noted that the European Commission only needed to show that the companies involved had participated in the meetings during which anti-competitive agreements had been concluded, without openly opposing these, to find that the companies had participated in an anti-competitive cooperation. Tacit acceptance of an unlawful initiative is deemed to encourage continued violation and jeopardise discovery of it. This consent constitutes passive participation in the violation which can incur liability for the company.

The Court of First Instance did not accept A-C Treuhand’s argument that a consultancy cannot be guilty of a violation because it does not carry on economic activities on the relevant economic market which is affected by the anti-competition practices and that the company only contributed to the cooperation in a subordinate position. The Court of First Instance stated that the company knowingly and intentionally placed its professional know-how and organisation at the disposal of the cartel. The company could either not have been ignorant of, or had apparent knowledge of the anti-competition practices and the unlawful purpose of the cooperation to which it contributed.

As is evident from the judgment of the Court of First Instance in the case at hand, it was a matter of a consultancy which had a very active role in preserving a major cartel on the European market by the company collecting, and then supplying the cartel members with information on market shares and concealing documents as well as participating in the meetings. However, the European Commission stated in its decision, which was upheld by the Court of the First Instance, that it is not only those who organise, but also those who facilitate, an anti-competitive cooperation that can be held liable.

By Elisabeth Legnerfält, competition law specialist