Antitrust: Commission welcomes Court judgment confirming cartel facilitator's liability
OREANDA-NEWS. October 23, 2015. Today's Court ruling (case C-194/14 P) is a landmark judgment since this is the first time the Court of Justice ruled on the so called "facilitation" of cartels – such as the organisation of a cartel by a consultancy firm. Particularly, this ruling is important for two reasons.
First, the Court confirmed that the service agreement between AC Treuhand and suppliers of heat stabilisers 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. Moreover, the Court 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 Court 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 stabilisers and ESBO/esters, and therefore did not have any sales in those markets.
In February 2014, the General Court (case T-27/10) upheld the Commission's 2009 decision in the heat stabilisers cartels with regard to AC Treuhand. AC Treuhand appealed the judgment to the Court of Justice, seeking to annul the decision or in the alternative to annul or reduce the fine. Today's judgment rejects all of AC Treuhand's arguments.
The Commission's Decision
The Commission's 2009 decision found that AC Treuhand and various suppliers of heat stabilisers participated in a cartel on tin stabilisers between 1987 and 2000, and in a cartel on ESBO/esters between 1991 and 2000.
Tin stabilisers are used to avoid decomposition caused by heat during the processing of PVC into final products. They are mainly used in rigid and plasticised PVC. ESBO/esters are used as plasticisers and heat stabilisers for plasticised PVC products. For both products, the suppliers fixed prices, shared customers, allocated markets and exchanged commercially sensitive information.
AC Treuhand played an essential role in the infringements and was remunerated by suppliers inter alia for organising regular cartel meetings at is Zurich premises. It attended and actively participated in the meetings, collected and supplied sales data to the participants, monitored the implementation of the agreements, offered to act as a moderator in case of disagreements between them and encouraged them to find compromises.