Cartel Facilitators Beware AC Treuhand Spurs Competition Authorities into Action

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Gordon Christian, Wilko van Weert, Aug 13, 2009

It is uncontroversial that undertakings that are active in a particular industry (e.g. by manufacturing a product or providing a service) and who engage in anti-competitive behavior are guilty of illegal conduct. For example, price-fixing, market sharing, customer allocation, or bid rigging can all lead to large fines, possible criminal or civil penalties (depending on the jurisdiction) for directors or managers, and possibly significant liabilities arising from private enforcement damages actions. However, until recently the position has been somewhat less clear in relation to cartel facilitators. Although such cartel facilitators, which are usually either consultancies or trade associations, have featured in cartels going back to the 1970’s, the enforcement focus of competition authorities in Europe has traditionally been on the undertakings that are active in the cartelized industry. After the European Court of First Instance’s (“CFI”) judgment in the AC Treuhand case, however, cartel facilitators have found themselves under increased pressure from regulators. Whereas this article focuses on the approach taken on this issue by the Nederlandse Mededingingsautoriteit (“NMa”), the Dutch Competition Authority, it also charts the history of cartel facilitator jurisprudence at EC level and refers to a number of other cartel facilitator cases at national level.