Liability for Aiding and Abetting in EU Competition Cases: the Court of First Instance Confirms

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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…

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