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Antonio Caruso, Ewoud Sakkers, Nov 30, 2008
On July 8, 2008, in a judgment concerning a European Commission cartel decision against the company AC Treuhand AG, the Court of First Instance of the European Communities (“CFI”) shed light on an area of anticartel enforcement that had not yet been tested in the European Courts. The CFI confirmed the decision of the European Commission (the “OP Commission Decision”) concerning a company that acted as a consultancy firm which, though not active as a competitor on the market affected by the cartel, was held liable for actions that contributed to an infringement of Article 81 of the EC Treaty. According to the CFI, the behavior consisting of offering support services to a cartel falls within the prohibition of Article 81 EC. AC Treuhand was considered to have contributed actively to the functioning of the cartel and to have been aware of the cartel’s anticompetitive objective. In other words, the Commission Decision and the CFI judgment make clear that, companies that “aid or abet” in infringing the prohibition on cartels are caught within the ban of Article 81 EC and can be subject to the payment of a fine. AC Treuhand did not appeal the CFI judgment before the European Court of Justice, so the Commission Decision has become definitive. Issuing prohibition decisions against those who assist in setting up, supporting, or sustaining cartel activity indicates that the European Commission has intensified its strategic fight against cartels, a trend which has become increasingly evident over the past decade. The strategy encompasses apart from a stringent approach in relation to fines scrutinizing (and sanctioning) behavior that does not directly concern the restriction of competition on the market, but that covers activity contributing to the committing of such infringements or to their concealment, whether or not they do so as a separate entity or as a member of the cartel that is active on the market. Such behavior may consist of acts that can be classified as aiding or abetting, as facilitating practices, or can concern aspects of concealment or obstruction to Commission investigations. If such behavior is committed by a participant to a cartel active on the market, this is usually dealt with by the Commission in the ultimate decision with fines against that company, as an aggravating circumstance leading to an increase of the overall fine, rather than such conduct being treated as an isolated offence under Article 23 of Regulation 1/2003. For example, in the Commission decision against the Gas Insulated Switchgear cartel in 2007, the Commission increased the fine by 50 percent for three companies for their leadership role, each having operated the secretariat of the cartel for a number of years.