The news has finally reached our “île paisible” that the Court of Justice in case C-194/14 P, AC Treuhand v. Commission, confirmed that consultancy firms (not trading on the relevant markets or on related markets) may be the subject of proceedings for infringement of Article 101 TFEU on the ground that they have facilitated a cartel.
While the Commission back in 1980 had already found that collusive services provided by a management company infringed Article 81 EC (now 101 TFEU), consultancy firms, including those of the recidivist kind, got away with their facilitating role rather brilliantly so far. A longing for antitrust purism or, ultimately, lightness, which we lemurs, alongside Advocate General Wahl, particularly cherish, might have in the past dissuaded the European Commission and national competition authorities (with the exception of the cloggies in a couple of instances) from taking a firmer stand in these matters.
In any event, the Court of First Instance (now General Court) in 2008 in AC-Treuhand I ruled, and its core tenet was confirmed and clarified by the CJEU last week, on the application of Article 101 TFEU (former Article 81 EC) to a consultancy firm which had contributed to the commission of an infringement. To my large mammal’s eyes, the “cartel facilitator test” put forth by the Courts looks roughly like this: (a) the firm contributes to the common anti-competitive objective of the participants to the agreement or concerted practice, even in a subsidiary, accessory or passive role: (b) at least reasonably foresees the conduct or plan pursued to reach the common anti-competitive objective (even if legal advice might be required to assess potential
consequences of the given conduct or plan), and (c) is ready to take the attendant risk.
Not only there is an embarrassingly high number of cartels around, but some consultants may even be competing to give a helping hand to prospective cartelists against appropriate remuneration. None of these consultancy firms has been so notoriously successful as the Swiss AC Treuhand, though. A recent paper presented at the OECD highlights that the Swiss “association management company” (AMC) based on the shores of lake Zurich has been called out in eight cartels since 1966 and concludes that “antitrust policy should be directed toward deterring the role of AMCs with regard to such anticompetitive activities”. In aggregate over the eight cartels, AC Treuhand has been fined the comparatively meek sum of 175,000 euros
A further decision by the European Commission involves a different type of facilitator. In February 2015, the European Commission imposed the much less nominal fine of EUR 14.96 million on ICAP, a UK financial sector broker, for having facilitated six of the seven yen-libor cartels (currently on appeal). The juicy details of the allegedly “various actions” which had contributed towards the anti-competitive objectives pursued by the cartelists are still unknown to the non-initiated, however.
But the good old days, when cartels were facilitated by Swiss style consultancy firms, might be gone forever. Withered and died have the days of personalized, superior service offered to élite clientèle, of spectacular views of the Zurich lake with snow-capped mountains in the distance. More likely, the cartel facilitators of the future will be from ”the Valley” and its virtual surroundings. Time will tell whether a new era of impunity for "robofacilitators" dawns in the EU, in particular if the AC- Treuhand I subjective element of the “cartel facilitator test” is applied in an oversolicitous way by the Luxembourg-based judges.
(Uf Widerluege: pronounciation help).
(Uf Widerluege: pronounciation help).
