European - Institut für Europäisches und Internationales ...

European 

Februar 2009 n° 2 

Law Reporter 

PROF. DR. 

CARL BAUDENBACHER 

LUXEMBURG/ 

ST. GALLEN (PRÄSIDENT) 

PROF. DR. DR. 

GENERALDIREKTOR A.D. 

WALTER BARFUß 

WIEN 

FÜRSTLICHER RAT 

ALT REGIERUNGSCHEF 

HANS BRUNHART 

VADUZ 

PROF. DOTT. 

ALDO FRIGNANI 

AVVOCATO 

TORINO 

RECHTSANWALT 

ALFRED-CARL GAEDERTZ 

FRANKFURT AM MAIN 

PROF. DR. 

CHRISTIAN KOHLER 

LUXEMBURG/ 

SAARBRÜCKEN 

RECHTSANWALT DR. 

FRANK MONTAG 

BRÜSSEL 

DR. SVEN NORBERG 

BRÜSSEL 

Board of Editors 

Februar 2009 n° 

2 

Inhaltsverzeichnis 

I. DAS BESONDERE URTEIL 34 

The Art of Fining II: In Immunity They Trusted 34 

II. WETTBEWERBSRECHT 44 

Rights of Defence and Use of Evidence Obtained in Non-Member State 

Investigations: The Advocate General’s Opinion in the Citric Acid Cartel 44 

III. VERGABERECHT 52 

In-house und interkommunale Zusammenarbeit: 

Der EuGH präzisiert seine Rechtsprechung im Sinne 

praktischer Konkordanz zwischen den Leitgedanken des 

europäischen Wirtschaftsverwaltungsrechts und dem 

Recht auf kommunale Selbstverwaltung 52 

IV. ARBEITS- UND SOZIALRECHT 58 

Evolution in continuity – the ECJ reinforces its protection 

of the right to annual leave 58 

V. STEUERRECHT 63 

Steuerbegünstigter Abzug von Zuwendungen an 

gemeinnützige Einrichtungen im EU-Ausland 63 

VI. DATENSCHUTZ 67 

«Steuergeheimnis» auf Finnisch – Zur Abwägung von 

Datenschutz gegen Pressefreiheit 67 

VII. JUSTIZ UND INNERES 71 

Unanwendbarkeit des europarechtlichen 

Verbots der Doppelbestrafung auf nicht 

rechtskraftfähige polizeiliche Verfahrenseinstellungen 

71 

EUROPEAN 

LAW 

REPORTER

Das besondere Urteil 

I 

34 

I. Christian Mayer, St. Gallen 

In the past, consultancy and trust firms pursued 

their business under a certain immunity from 

Community competition law due to the fact that 

they are usually not active in a market affected by 

a restriction of competition. With the present 

judgment, the Court of First Instance confirms the 

Commission’s reorientation of its respective enforcement 

and fining policy by affirming, inter 

alia, the identification of consultancy and trust 

firms as facilitators of cartels, irrespective of their 

inactivity in the relevant market, as well as the application 

of a concept of passive participation. 

(1) Fact and Procedure 

(a) Background 

Background to the judgment at hand is a cartel 

formed and implemented on the European market 

for organic peroxides – chemicals used in the 

plastics and rubber industry – by, inter alia, the 

AKZO group («AKZO»), Atofina SA («Atofina») 

and Peroxid Chemie GmbH & Co KG controlled by 

Laporte plc, now Degussa UK Holdings Ltd. 

(«PC»). Founded in 1971 by written agreement 

and subsequently amended in 1975, the aim of 

the cartel was mainly to preserve the market 

shares of the involved producers and to coordinate 

their price increases. 1 Under the agreement, 

Fides Trust AG («Fides») and, from 1993 onwards, 

the applicant in the present case, AC-Treuhand 

AG («AC»), were entrusted with the following duties 

by virtue of respective agency agreements 

with the three producers: the storage of certain 

secret documents relating to the cartel, including 

the original agreement of 1971, on their 

premises; the collection and processing of certain 

information concerning the activity of the 

producers; the communication to them as regards 

such information; and the provision of clericaladministrative 

and logistic services with respect 

to the organization of meetings between 

the producers, mainly held in Zurich, such as the 

reservation of rooms and the reimbursement of 

travel costs. 

(b) Procedure 

Following a meeting with representatives of AKZO 

seeking immunity under the Leniency Notice2 in 

April 2000, the Commission initiated investigations 

into the cartel. Thereafter, Atofina and PC 

also offered their cooperation and disclosed addi- 

E L R 2 / 2 0 0 9 n o 2 

European Law Reporter 

The Art of Fining II: In Immunity They Trusted 

(AC-Treuhand AG Commission of the European Communities, 

CFI, Judgment of 8 July 2008, T-99/04) 

tional information. On 3 February 2003 the Commission 

sent a request for information to AC, 

stating that it was investigating a putative infringement 

of the Community competition rules 

by the European producers of organic peroxides 

and requiring AC to provide an organigram of its 

undertaking as well as to describe its activity and 

its development including its takeover of the 

activity of Fides, its duties as the «secretariat» for 

the producers and its annual turnover for the 

years 1991 to 2001. 3 

After AC had responded to the request, the Commission 

informed AC in a meeting on 20 March 

2003 that it was also concerned by the ongoing 

investigation, without however specifying its allegations. 

Only one week later, the Commission initiated 

the formal examination procedure and 

adopted a statement of objections which it served 

inter alia to the applicant. AC then submitted its 

observations to the statement of objections and 

attended the respective hearing in June 2003. Finally, 

on 3 December 2003, the Commission 

adopted a decision by virtue of which it imposed 

fines on the producers and, in particular, a fine in 

the amount of EUR 1.000.- on AC. 4 In an accompanying 

press release, the Commission emphasized 

the important role that, in its view, AC as a 

consultancy firm had played in the cartel by organizing 

meetings and covering evidence, and 

stated with respect to the amount of the fine that 

«[t]he sanction against AC Treuhand is limited in 

amount because of the novelty of the approach. 

The message is clear: organisers or facilitators of 

cartels, not just the cartel members, must fear that 

they will be found and heavy sanctions [be] imposed 

from now on». 5 

On 16 March 2004, AC brought an action for annulment 

of the Contested Decision before the 

CFI based on the following 5 pleas in law: (i) infringement 

of the rights of the defence and of the 

right to a fair hearing; (ii) infringement of the principle 

of nullum crimen, nulla poena sine lege; (iii) 

infringement of the principle of the protection of 

legitimate expectations; (iv) in the alternative, infringement 

of the principle of legal certainty and 

the principle of nulla poena sine lege certa; and (v) 

infringement of the principle of legal certainty and 

the principle of nulla poena sine lege certa as re-

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E L R 2 / 2 0 0 9 

gards the second paragraph of Article 3 of the 

Contested Decision. 6 In essence, AC requested the 

Court to annul the Contested Decisions in so far as 

it was concerned by it and to order the Commission 

to pay the costs. Apart from those main pleas, 

the applicant filed several requests for confidentiality 

and confidential treatment, all of which 

were either withdrawn by AC in the course of the 

proceedings or rejected by the CFI in its judgment. 

7 

(2) Judgment 

(a) Alleged infringement of the rights of the defence 

and of the right to a fair hearing 

In its first plea, AC in essence alleged an infringement 

of its rights of defence, in particular of its 

right to a fair hearing, as granted by Article 6 (3) 

(a) of the European Convention for the Protection 

Human Rights and Fundamental Freedoms 

(«ECHR»). According to AC, this infringement 

was due to the failure on the part of the Commission 

to inform AC, at an early stage in the 

investigation procedure, about the nature of 

and the reasons for the accusations made 

against it, and, in particular, to provide it with 

AKZO’s witness statement. 

In its legal assessment of the respective arguments 

put forward by the applicant, the CFI first of all recalled 

that, although it lacked general jurisdiction 

to evaluate the lawfulness of an investigation carried 

out under competition law in the light of the 

ECHR, inasmuch as those provisions did not form 

an integral part of Community law, it nevertheless 

had to ensure the observance of the fundamental 

rights forming an integral part of the 

general principles of law, which inter alia included 

the right of the defence in proceedings 

potentially resulting in the imposition of fines. 8 

In the following, the Court identified two distinct 

and successive stages in the administrative procedure 

under the then applicable Rules of Procedure 

9 ; namely, first, a preliminary investigation 

stage covering the period from the date of the 

first measure taken by the Commission until the 

notification of the statement of objections and, 

second, an inter partes stage lasting from the 

notification of the statement of objections until 

the adoption of the final decision. Whereas, according 

to the Court, the first stage serves the purposes 

of information gathering and the adoption 

of a first position by the Commission on how to 

proceed, the latter has to enable the Commission 

to render a final decision on the case. 10 In view of 

the fact that it is not until the beginning of this 

inter partes stage that the undertaking concerned 

is informed of all the evidence on which the Commission 

is until then building its case upon and of 

its right to access the file, it is only able to fully exercise 

its rights of defence after the notification 

of the statement of objections. Were this otherwise, 

the CFI further elaborated, «the effectiveness 

of the Commission’s investigation would be 

compromised, since the undertaking concerned 

would be able, at the preliminary investigation 

stage, to identify the information known to the 

Commission, hence the information that could 

still be concealed from it». 11 Thus, the argument 

that in order to observe the right of the defence 

and the right to a fair hearing AC had to be granted 

the right to access to AKZO’s witness statement 

already in the course of the preliminary investigation 

stage, was rejected by the CFI. 

Nevertheless, the Court subsequently recognized 

that already the measures adopted by the Commission 

in the preliminary investigation stage, in 

particular the request for information, suggested 

the existence of an infringement and might have a 

significant impact on the situation of the undertakings 

suspected. As a consequence, according 

to the Court’s reasoning, it is necessary to prevent 

that the rights of the defence are irremediably 

compromised during the preliminary investigation 

stage, as the measures of inquiry 

taken during this stage may be decisive for the 

production of evidence that results in liability on 

the part of the undertakings concerned. In this respect, 

the Court explicitly held that an excessively 

lengthy preliminary investigation might adversely 

affect the concerned undertakings’ ability 

to exercise their right of defence, since «[t]he 

more time that elapses between a measure of investigation 

and the notification of the statement 

of objections, the greater the likelihood that exculpatory 

evidence can no longer be obtained or 

only obtained with difficulty». 12 For that reason, 

the rights of the defence must be observed 

throughout both stages of the procedure, even 

tough, in formal terms, the undertaking concerned 

does not have the status of «a person 

charged» during the preliminary investigation 

stage. 

With respect to the request for information, the 

CFI concluded that, although its reasoning did not 

have to be as extensive as in a decision ordering an 

investigation, the Commission was however required 

«to enable the undertaking to understand 

the purpose and the subject-matter of 

that investigation, which means that the putative 

infringements must be specified and, in that 

context, the fact that the undertaking may be 

35

36 

faced with allegations related to that possible infringement, 

so that it can take the measures 

which it deems useful for its exoneration and, 

thus, prepare its defence at the inter partes stage 

of the administrative procedure.» 13 Thus, when 

the Commission sent the request for information 

in February 2003, it was required to inform AC of 

the putative infringements concerned by the investigation 

and of the fact that it may have to impute 

to it unlawful conduct, which the Commission 

however refrained from until 20 March 2003, 

shortly before it opened the formal investigation. 

In the CFI’s assessment, this applies all the more, 

since the Commission, by deciding to investigate a 

consultancy firm, admittedly deviated from its former 

practice in a way that – with respect to the 

fact that it was directly concerned by the statement 

of objections – could not be expected by the 

applicant. 14 

At the same time, however, the Court held that in 

the case at hand such irregularity committed by 

the Commission did not adversely affect the 

applicant’s rights of defence during the inter 

partes stage and thus could not in itself result in 

the annulment of the Contested Decision. Against 

this background, the first plea was rejected. 

(b) Alleged infringement of the principle of 

«nullum crimen, nulla poena sine lege» 

Apart from various challenges of facts found in 

the Contested Decision, in its second plea, AC 

predominantly argued that its role in the cartel 

had merely been one of non-punishable complicity 

and that it thus could not be qualified as an 

«undertaking» or an «association of undertakings» 

within the meaning of Article 81(1) EC, 

acting as the «perpetrator of an infringement». 

In its legal analysis of this part, the CFI first of all 

looked into all possible methods of interpreting 

the term «agreement between undertakings» 

as referred to in Article 81 EC. Applying a literal interpretation, 

the Court in a first step recalled that 

the question whether or not the notion of an «undertaking» 

was to be conceived in accordance 

with a unitary or a bipolar perspective was still unresolved 

in Community judicature and arrived at 

the conclusion that AC had therefore erred in 

availing itself of a restrictive interpretation of the 

notion of «perpetrator of an infringement». 

Thereby, the Court put emphasis on the requirement 

of a «joint intention» of two or more undertakings 

as regards their conduct in the market, 

without however requiring that «the relevant 

market on which the undertaking which is the 

‘perpetrator’ of the restriction of competition is 

E L R 2 / 2 0 0 9 n o 2 


active [is] to be exactly the same as the one on 

which that restriction is deemed to materialise». 15 

This result was further substantiated when the 

CFI, in a second step, relied on a contextual and 

teleological interpretation and examined the criterion 

of the restriction of commercial autonomy. 

In this respect, AC purported that the notion 

of a «perpetrator of an infringement» implied a 

restriction of the commercial activity on the part of 

the undertaking found to be such perpetrator visà-vis 

its competitors. Quite to the contrary, in the 

Court’s view, the concept of autonomy, developed 

by the Community courts against the background 

of a distinction between admissible parallel conduct 

and prohibited concerted practices between 

undertakings, is rather linked to notions of «concerted 

practice» and «agreement», which both 

require a sufficiently clear manifestation of a 

«concurrence of wills» between the undertakings 

involved, than to the – in the present case 

irrelevant – question of whether the undertakings 

restricting their autonomy are active in the same 

market. 16 As a result, also on the basis of a contextual 

and teleological interpretation of Article 

81(1) EC, the CFI construed a conceptional independence 

of the notions of a «cartel» and a «perpetrator 

of an infringement» from any distinction 

based on economic sectors or markets. 17 

As to the qualification of an undertaking as a coperpetrator 

of an infringement of Article 81(1) EC 

in general, the Court first of all highlighted that it 

was sufficient for the Commission to prove that 

the undertaking concerned had attended 

meetings at which anticompetitive agreements 

had been concluded without manifesting its 

opposition. Furthermore, according to the CFI, 

also a «passive form of participation» leads to 

a liability of the company concerned, provided 

that the Commission shows that it intended to 

contribute to the common objectives of the cartel 

as a whole and that it was either aware of the substantive 

conduct of the cartel or that it could reasonably 

have foreseen that conduct and was 

ready to accept the risk. The Court explicitly emphasized 

that «where an undertaking tacitly approves 

an unlawful initiative, without publicly distancing 

itself from the content of that initiative or 

reporting it to the administrative authorities, the 

effect of its behaviour is to encourage the continuation 

of the infringement and to compromise its 

discovery». 18 In addition, the CFI held that the fact 

that an undertaking played a minor role in the 

cartel or even only in the activities it participated in 

could not call into question its individual 

liability for the infringement as a whole. It could,

n o 2 


E L R 2 / 2 0 0 9 

however, have an impact on the assessment of the 

extent of such liability and therefore, finally, on 

the amount of the fine imposed. In light of these 

considerations, the CFI rejected the applicant’s argument 

according to which a consultancy firm 

could not be regarded as a co-perpetrator of an 

infringement, because it was not active on any 

market affected by the restriction of competition. 

In this respect, the Court inter alia pointed at the 

fact that such an undertaking, due to its economic 

activity and professional expertise, had to be 

aware of the anti-competitive nature of the conduct 

at issue and was indeed capable of making a 

significant contribution. 

Focusing its reasoning on the alleged infringement 

of the principle of nullum crimen, nulla 

poena sine lege, the CFI subsequently stated that, 

although that principle did not prohibit «the gradual 

interpretation of the criminal liability through 

interpretation by the courts», 19 it might, however, 

preclude the retroactive application of a new 

interpretation of a rule establishing an offence, 

especially if the result of such interpretation had 

not been foreseeable at the time when the offence 

had been committed. Recognizing the nature 

of the terms «agreement» and «undertaking» 

as not yet delimited legal concepts within the 

meaning of Article 81(1) EC, the Court nevertheless 

considered the term «agreement between undertakings» 

a sufficiently precise expression of 

the notions of «cartel» and «perpetrator» of an 

infringement, insofar as «that term covers any 

undertaking which acts in a collusive manner, irrespective 

of the sector of activity or of the relevant 

market on which it is active – to ensure that such 

an undertaking cannot be unaware, or even fail to 

recognise, that it is exposing itself to legal action if 

it adopts such conduct». 20 In order to further substantiate 

this argument, the CFI recalled the existing 

case law in relation to shared liability under Article 

81(1) EC and the unitary conception of the 

notions of «cartel» and «perpetrator of an infringement» 

established therein. 21 Given that the 

conditions for liability in the context of an infringement 

committed by a number of co-perpetrators 

are clearly stated in existing case law, according 

to the CFI, the fact that Community 

judicature has not yet provided for a ruling on the 

liability of consultancy firms – which are not active 

in or affected by the restriction of competition 

– does not justify the conclusion that the establishment 

of such (potential) liability by administrative 

and jurisprudential practice is not reasonably 

foreseeable. As regards the penalty-based administrative 

practice, the Court further highlighted 

that in the 1980 Italian Cast Glass decision the 

Commission had in fact already once attributed an 

infringement of Article 81(1) EC to a consultancy 

firm in a comparable situation. 22 In the Court’s 

view, the mere fact that the Commission did not 

follow this approach in a number of subsequent 

decisions did not render an interpretation such as 

the one applied in the present case unforeseeable. 

The Court added that this was all the more true in 

the case of a consultancy firm which was required 

to act with a high degree of caution and to seek 

informed legal advice in order to correctly assess 

the risks associated with its conduct. 23 

Turning towards AC’s classification as a co-perpetrator 

of the infringement in the present case, the 

Court held that AC, regardless whether it was a 

«contracting party» to the 1971 agreement or the 

1975 amendment, had actively contributed to 

the implementation of the cartel between 

1993 and 1999. It grounded this conclusion on 

the activities carried out by AC in connection with 

the cartel such as the storage of the cartel agreements 

and of other secret documents as well as 

the calculation and communication of the deviations 

of the producers’ market shares from the 

agreed quotas, an activity expressly provided for in 

the 1971 and 1975 agreements. Furthermore, the 

Court referred to the fact that AC had not only organized 

but also taken part in at least five meetings 

having anti-competitive content, in particular 

in a meeting in 1998 with the object of proposing 

the allocation of the quotas among the producers. 

Lastly, the CFI pointed at the reimbursement of 

the travel costs of the representatives of the involved 

producers organized by AC and found that 

such reimbursement had been done with the 

manifest intention of covering up any traces in the 

books of the producers. Thus, the Court deducted 

a «sufficiently definite and causal link» between 

AC’s activity on the one hand and the restriction 

of competition on the organic peroxides 

market on the other hand. 24 Moreover, it 

found that AC had, in full knowledge of the 

facts, made its professional expertise and infrastructure 

available to the cartel, when implementing 

the individual agency agreements linking it to 

the producers. Thereby, according to the CFI, it 

could not have been unaware of the anti-competitive 

nature of the object of the cartel, barring any 

potential violation of the rules of professional 

ethics applicable to commercial consultants. 

Against the background of these considerations, 

the Court finally rejected AC’s second plea. Thereby, 

it could refrain from giving a ruling on the extent 

of AC’s liability, since the amount of the fine 

had not been challenged. 

37

38 

(c) Alleged infringement of the principle of the 

protection of legitimate expectations 

In its assessment of the third claim, the CFI mainly 

relied upon its considerations made in relation to 

AC’s second plea and reaffirmed that the Commission’s 

reorientation as to the liability of a consultancy 

firm was based on a correct interpretation 

of the full implications of the prohibition laid 

down in Article 81(1) EC. Furthermore, the Court 

held that such reorientation was even more foreseeable 

for AC given the 1980 precedent. The 

Commission’s post-1980 approach, the Court further 

elaborated, could not be qualified as a definitive 

abandonment of the initial approach. As a 

matter of fact, it was also noted that in the original 

Polypropylene decision of 1986, 25 although 

Fides had not been considered a perpetrator of 

the infringement, the information system established 

and managed by Fides was clearly found incompatible 

with Article 81(1) EC. As a result, the 

third plea was rejected. 

(d) Alternatively alleged infringement of the principle 

of legal certainty and the principle of «nulla 

poena sine lege certa» 

With respect to this plea, the CFI noted that it was 

based essentially on the same arguments as AC’s 

second and third pleas and held that, following 

from its analysis of those pleas, the Contested Decision 

contained sufficient information establishing 

AC’s active and intentional participation in 

order to hold AC responsible for an infringement 

of Article 81(1) EC. 26 Consequently, this plea was 

rejected. 

(e) Alleged infringement of the principle of legal 

certainty and the principle of «nulla poena sine 

lege certa» as regards the second paragraph of 

Article 3 of the Contested Decision 

This plea, according to which the Contested Decision 

did not show, in a precise manner, the specific 

acts by virtue of which AC was deemed to have 

infringed Article 81(1) EC and thus which acts 

were concerned by the obligation to put an end 

to, was qualified by the ECJ as a reformulation of 

AC’s fourth plea and therefore also rejected. Finally, 

AC’s action was rejected as unfounded in its entirety. 

(3) Commentary 

(a) Preliminary remarks 

It goes without saying that the present judgment, 

not only due to the symbolic fine finally imposed, 

is predominately a test case. A test case initiated 

by the Commission, however, whose implications 

could hardly be more important. By means of a 

rather complex legal reasoning, the Commission 

E L R 2 / 2 0 0 9 n o 2 


identifies or – to use the authority’s approach – 

re-identifies consultancy firms as infringers of 

the Community competition rules and therefore 

as targets of its enforcement and fining 

policy, and is finally backed by the CFI. This already 

challenging outset appears even more debatable, 

given that the Commission chose to effect 

this reorientation of its policy by means of a 

case the background of which dates back to the 

1970s. Quite obviously, in particular with respect 

to the sanctions imposed, this setting raises questions 

related to retroactivity. Apart from the question 

of retroactivity in the present case, the Judgment 

might be of even greater importance, as it 

clearly has the potential to impact the way an entire 

economic sector operates and, in particular, 

the way this sector organizes the relationship with 

its clients. 

Before going into a more detailed analysis, it must 

be emphasized that, whatever result is arrived at, 

the possibilities of interpreting Article 81(1) EC in 

this case need to be rather pushed to the limits, 

since it is all but a clear cut-case. Similarly, it must 

be noted that, if the path of this reorientation is 

further pursued, certain follow-up questions 

arise. These concern inter alia the application of 

the Commission’s leniency policy and the calculation 

of fines. 

In any event, during the entire discussion, one 

should not overlook that policy goals, no matter 

how clearly they are communicated, must always 

be implemented in compliance with the existing 

legal framework. 

(b) The rights of the defence 

In this respect, the Court draws a clear and necessary 

distinction between the preliminary investigation 

stage and the inter partes stage. 

Whilst the Court grants the Commission a certain 

amount of discretion as to its information policy 

throughout the first stage, it makes clear that with 

the notification of the statement of objections, 

the undertaking concerned must be fully capable 

of exercising its rights of defence and thus be fully 

informed of all accusations made against it by 

the Commission and of the underlying evidence. If 

the Commission were to inform the undertaking 

of all the evidence collected already at an earlier 

stage, the effectiveness of its enforcement powers 

would undoubtedly be put at risk. However, in the 

present case, the CFI identifies an obligation on 

the part of the Commission to provide more detailed 

information already in the course of the first 

stage. Apart from the general object to ensure 

that the undertaking concerned does not suffer 

from an irremediable compromise of its rights

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E L R 2 / 2 0 0 9 

of defence during the preliminary investigation 

stage, the Court, and this is of great relevance for 

the rest of the analysis, notes that, when the request 

for information was sent to the AC «the 

need to give prior notice to the applicant was all 

the greater since […] the applicant could not necessarily 

expect to be directly concerned by the 

statement of objections». 27 In view of the short 

period of time between the request for information 

and the notification of the statement of 

objections, the Court rightly concludes that AC’s 

rights of defence were not adversely affected in a 

way that would justify the annulment of the 

Contested Decision. Be that as it may, in this part 

of the Judgement, the CFI seems to deny the 

foreseeability of the Contested Decision to the 

extent that AC is concerned, whereas, as will be 

shown below, a different context, it essentially 

relies on such foreseeability. 

(c) The concept of co-perpetration 

Before dealing with the Commission’s and the 

Court’s interpretation of this concept it seems 

useful to recall the outset of the present decision. 

In essence, the Court had to determine whether 

the Commission correctly imposed a penalty 

based on Article 81(1) EC on a consultancy firm 

which provided certain services for the members 

of a cartel but was – quite obviously – not 

active in the market affected by the restriction of 

competition. The facts of the case indicate that 

the consulting firm’s contribution to the cartel 

was rather evident and exceeded the simple 

storage of documents of anti-competitive 

content. However, according to existing case law, 

already «going with the flow», i.e. the mere 

participation in meetings with an anticompetitive 

purpose, might constitute an infringement of 

Community competition law. 28 In Dansk Rørindustri, 

for instance, the ECJ found that «a party 

which tacitly approves of an unlawful initiative, 

without publicly distancing itself 

from its content or reporting it to the administrative 

authorities, effectively encourages the continuation 

of the infringement and compromises its 

discovery. That complicity constitutes a passive 

mode of participation in the infringement 

which is therefore capable of rendering the undertaking 

liable in the context of a single agreement». 

29 

Nevertheless, for its «extension of cartel penalties» 

the decision caught much public attention, 

also outside the legal community. 30 The decisive 

difference compared to existing case law is of 

course the fact that, in the meetings of the 

producers of organic peroxides with obvious 

anti-competitive purpose, AC did not participate 

as a competitor or customer of the 

producers. Consequently, in order to hold AC 

liable, the concept of co-perpetration had to be 

revised. 

In this respect, one should once again focus on the 

structure of the contractual relationship between 

the parties involved in the present case. 

Clearly, the main anti-competitive agreement was 

entered into between the three producers of organic 

peroxides as competitors on a horizontal 

level. AC was contractually linked to the three producers, 

and thus to the cartel, by virtue of respective 

agency agreements, each of which on its 

own could probably not be regarded as restrictive 

of competition. Although the Court, without further 

specifying this argument, refers to the fact 

that Article 81(1) EC applied not only to horizontal, 

but also to vertical agreements, 31 it should be 

clarified that the agency agreements at hand do 

not fit into the definition of vertical agreements, 

as they are rather parallel to the main 

agreement between the three producers than of 

vertical character. For that reason, the reference to 

vertical agreements only illustrates that Article 

81(1) EC also applies to forms of cooperation 

other than horizontal agreements. In this context, 

any attempt to draw an analogy, which the Court 

partly does, is not fully convincing. In fact, it would 

be more persuasive to conclude that it was the 

whole complex, the scheme of agreements on 

the horizontal level and the accompanying, concerted 

agency agreements, which implemented 

the restriction of competition. Under such a unitary 

view, one could even argue that AC is party to 

the «agreement», namely the entire anti-competitive 

scheme and possibly sidestep the rather complex 

discussion of co-perpetration. 

In the Judgment, the CFI does not go this far. Instead, 

it first focuses on the element of a «joint 

intention» on the part of the undertakings concerned, 

including the consultancy firm, to conduct 

themselves on the market in a specific way in 

order to reject AC’s narrow understanding of the 

notion of a «perpetrator of an infringement» in 

the context of the term «agreement between undertakings» 

within the meaning of Article 81(1) 

EC. Applying a similarly broad concept, the CFI 

does not require a restriction of the commercial 

autonomy on the part of the undertaking for 

such an undertaking to be qualified as a «perpetrator 

of an infringement», but highlights the requirement 

of a «concurrence of wills» only. 

Consequently, in the Court’s words: «[I]t is not 

therefore to be ruled out that an undertaking may 

39

40 

participate in the implementation of such a restriction 

even if it does not restrict its own freedom of 

action on the market on which it is primarily active. 

Any other interpretation might restrict the 

scope of the prohibition laid down in Article 81(1) 

EC to an extent incompatible with its useful effect 

and its main objective [...]». 32 With this quotation, 

finally and not surprisingly, an «effet utile» argument 

is brought up. It is however noteworthy 

that, in this particular case, the CFI avails itself of 

the «effet utile» doctrine only to support a result 

arrived at by means of interpretation of Community 

law. It is needless to say that the argument is 

indeed adequate here. 

As regards the intensity of the contribution required 

for an undertaking to be qualified as a coperpetrator 

of an infringement, the CFI leaves no 

doubt that even undertakings playing a minor 

role in the cartel can be liable for the infringement 

as a whole. Such minor role might of course have 

an impact on the amount of the fine finally imposed. 

In view of the fact that, as illustrated at the 

beginning of this section, according to Dansk 

Rørindustri already a form of passive participation 

would suffice to hold an undertaking liable 

for an infringement of Article 81(1) EC, it is interesting 

to observe that, during the administrative 

proceedings and in the Contested Decision, the 

Commission made a considerable effort33 to 

demonstrate that AC had played a «crucial role in 

the organization of the cartel» 34 and that its task 

had been the «basis for the functioning of the 

agreement [between the producers]». 35 If one 

were to speculate, it could be assumed that, by 

doing so, the Commission intended to be on the 

safe side in order to effect its reorientation towards 

consultancy firms. In the Court’s reasoning, 

however, the attribution of the infringement as a 

whole essentially depends on the participating undertaking‘s 

manifestation of its own intention 

«which shows that it is in agreement, albeit only 

tacitly, with the objectives of the cartel. That subjective 

condition is inherent in the criteria relating 

to the tacit approval of the cartel and to the undertaking 

having publicly distanced itself from the 

content of the cartel, in that those criteria imply a 

presumption that the undertaking concerned continues 

to endorse the objectives of the cartel and 

to support its implementation». 36 

Finally, in line with the CFI, it is to be conceded 

that a co-perpetration such as the one carried out 

by AC falls within the scope of Article 81(1) EC. 

Apart from this conclusion, it must however, be 

assessed whether the Contested Decision was 

foreseeable. 

E L R 2 / 2 0 0 9 n o 2 


(d) The foreseeability of the decision 

The use of the term «forseeability» in the given 

context might seem a little inaccurate. As a matter 

of fact, this term is invoked in the context of several 

alleged violations of the principles of nullum 

crimen, nulla poena sine lege, of legal certainty, of 

the protection of legitimate expectations and of 

nulla poena sine lege certa. In addition, it is also 

related to the question of retroactivity which will 

be addressed in the next section. Obviously, some 

of the most powerful fundamental principles of 

criminal and administrative proceedings were in 

invoked in this case. In spite of all complex terminology, 

the common underlying question is, however, 

rather simple: Could AC as a consultancy 

firm – which is not active on the market affected 

by the restriction of competition – expect to be 

fined for its contribution to a cartel in the market 

of organic peroxides? 

As a starting point, the main arguments in 

favour of forseeabilty are to be recalled. First, it is 

undisputed that AC made at least some sort of 

contribution to the cartel. Second, it follows from 

the foregoing considerations that such contribution, 

even to the extent undisputed by AC, in 

principle falls within the scope of application 

of Article 81(1) EC. Third, as the CFI rightly notes, 

a professional consultancy firm must act with a 

high degree of caution and is required, in cases of 

doubt, to seek informed legal advice. Fourth, in 

the 1986 Polypropylene decision, the information 

system managed by Fides was held incompatible 

with Article 81(1) EC. Sixth, in the above mentioned 

1980 Italian Cast Glass decision, the Commission 

had once attributed an infringement 

of Article 81(1) EC to a consultancy firm thereby 

holding that an agreement concluded between 

a consultancy firm on the one hand and producers 

of glass on the other hand «constitutes a restriction 

of competition which is liable to influence the 

business policy of each manufacturer vis-a-vis the 

others inasmuch as it requires the undertakings 

concerned to exchange, through [the consultancy 

firm], commercial information on amounts sold 

and prices for each type of product, information 

which is not normally shared between competitors. 

The verification of compliance with the sales 

quotas for cast glass on the Italian market similarly 

contributed to the realization of a restriction of 

competition. In conclusion, the agreement concluded 

by [the consultancy firm] with Fabbrica 

Pisana, SIV and Fabbrica Sciarra also had as its object 

and effect the restriction of competition on 

the market in cast glass in Italy». 

In a next step, the main arguments against such 

foreseeability are to be listed. First, apart from the

n o 2 


E L R 2 / 2 0 0 9 

cited Italian Cast Glass decision, the Commission 

has never attributed an infringement of Article 

81(1) EC to a consultancy firm. Second, the Commission 

openly admits a reorientation of its respective 

policy. Third, in spite of an alleged «crucial 

role» of AC «in the organization of the 

cartel», the amount of the fine is of symbolic 

character only. Fourth, although the court follows 

the Commission in affirming the foreseeabilty, 

it holds with respect to AC’s rights of defence 

that, as indicated above, when the request 

for information was sent, AC could not necessarily 

have expected to be directly concerned 

by the statement of objections. 

At the outset of any further discussion, it must be 

emphasized that, as the CFI stated, due to the administrative 

nature of the proceedings before the 

Commission «the general principles of Community 

law and, in particular, the principle of nullum 

crimen, nulla poena sine lege, as applicable to 

Community competition law need not necessarily 

have the same scope as when they apply to a situation 

covered by criminal law in the strict sense». 37 

Retroactivity of a new interpretation of the Community 

competition rules, nevertheless, is precluded. 

In Community competition law, however, especially 

after the entry into force of Regulation 

1/200338 which imposed a great amount of responsibility 

on the undertakings when assessing 

their own conduct in the light of Articles 81 and 

82 EC, legal certainty plays an important role. 

Such legal certainty is inter alia grounded on a 

consistent practice of the Commission and its 

tools of non-case related action, such as Commission 

Notices. According to the Commissions 

consistent practice as from 1980 onwards, consultancy 

and trust firms were spared from liability. 39 

The Commission has now changed this policy, 

not by means of a speech given by the Commissioner, 

not by my means of a respective Notice, 

but by deciding the present case, and it has outspokenly 

admitted to have done so. 

The inconsistence of the Court’s reasoning with 

respect to the foreseeability of the Contested 

Decision from a procedural and a material angle 

has already been pointed out: If, as found by the 

CFI, not even the statement of objections could be 

expected to be directly concerning AC, how could 

(from a perspective before the notification of the 

statement of objections, of course) the penalty? 

However, there are also other aspects about this 

decision that seem to confirm the view that the 

Commission used this case as a test case in order 

to introduce a new perspective to its enforcement 

strategies. On the one hand, the Commis- 

sion’s decision to impose only a symbolic fine due 

to the new approach taken in the present case appears 

convincing. On the other hand, given its 

view that the Contested Decision could have always 

been foreseen as it is merely grounded on an 

(in the Commission’s and the CFI’s argumentation) 

obvious interpretation of the full implications of 

Article 81(1) EC and that AC had played a crucial 

and all but passive role in the cartel, it could 

have probably attempted to impose a higher fine 

on AC in accordance with the presumed severity 

of its infringement. 

Again falling into speculation, one could get the 

impression that the Commission, in light of its intended 

policy reorientation, has deliberately chosen 

this case. After all, from the information available 

about the case, 40 it is pretty evident that AC in 

the present case, thereby probably differing from 

other consultancy firms, in fact acted as a part of 

the cartel. Thus, under these very specific circumstances 

and in light of the fact that already 

Fides’ information management system had been 

declared incompatible with the Community competition 

rules, AC could have probably foreseen 

that sooner or later a fine would be imposed 

on it. It must be assumed that this very specific setting 

increased the likelihood that the Community 

courts would confirm this decision, which, as far 

as the CFI is concerned, consequently happened. 

In the Judgment, and this is again linked to section 

(3) (c) on co-perpetration, the Court also applied 

and affirmed the concept of passive participation41 although, observed under this concept, AC must 

be presumed to have played a rather active role. 

Whereas, due to the symbolic character of the 

fine, the concept chosen does not make any difference 

for AC in the case at hand, it might have a 

huge impact on the entire consultancy sector. 

This, by the way, is also the message the media 

took from the case. 42 If at last the existing concept 

of passive participation is extended to the 

«participation of an undertaking whose economic 

activity and professional expertise mean that it 

cannot but be aware of the anti-competitive nature 

of the conduct at issue and enable it to make 

a significant contribution to the committing of the 

infringement», regardless of the fact that this undertaking 

is not active on the market affected by 

the restriction of competition, 43 this extension 

constitutes the most significant novelty brought 

about by this case. 

(e) The notion of retroactivity 

As indicated above, in the present case the notion 

of retroactivity is, in a rather permeable way, also 

related to the question of the foreseeability of the 

41

42 

Contested Decision and has thus already been 

partly discussed. Within the conception of the 

case construed by the Commission and the CFI, 

retroactivity in the original meaning does not constitute 

a problem. The Commission can either rely 

on its line of argumentation developed in the 

Contested Decision and affirmed by the CFI that 

no new interpretation of the rule establishing 

the offence has occurred at all, or, in view of the 

fact that it did not attribute Fides’ conduct to AC, 

resort to the fact that it only held AC responsible 

for its conduct from 1993 until 1999 and therefore 

clearly after the precedent in the Italian 

Cast Glass case. 

A different aspect related to retroactivity might 

arise in the context of the Commission’s above 

cited clear message according to which organisers 

or facilitators of cartels have to fear that they will 

be found and that heavy sanctions will be imposed 

from now on. Does this mean that, under 

the new policy, organisers and facilitators of cartels 

will face heavy sanctions, and not merely symbolic 

fines as in the present case, only if they newly 

engage in – cautiously put – unlawful conduct? Or 

has this announcement to be interpreted to also 

threaten organizers and facilitators of cartels 

whose relevant conduct was effected in the past 

with the imposition of heavy sanctions? The Judgment 

suggests the latter interpretation. Following 

this approach, the Judgment, in conjunction with 

the Commission’s press release, can also be understood 

as an invitation to organisers and facilitator 

of cartels to file leniency applications. 

Apparently, the Dutch Competition Authority has 

such understanding of the Judgment. In a press 

release published shortly after the Judgment had 

been delivered, it stated that, based on the CFI’s 

ruling, cartel facilitators were qualified as cartel 

participants and invited to apply for leniency, 

thereby explicitly reminding of the advantages of 

being the first undertaking to report. 44 

Based upon the information already available 

about the case it seems that the Commission, in its 

latest decision on a global cartel of marine hose 

producers, 45 did not impose administrative fines 

on a cartel facilitator, although the alleged co-ordinator 

of the cartel, owner of a UK-based consultancy 

firm, had pleaded guilty and negotiated a 

plea agreement with the US Department of Justice 

according to which he must serve a two and a half 

year prison term. 46 

(f) Concluding remarks 

To come to an end, the outset of the present case 

shall be recalled for one last time: Initially, three 

producers of organic peroxides, members to a car- 

E L R 2 / 2 0 0 9 n o 2 


tel in the respective marked, hired AC’s legal predecessor 

by virtue of respective agency agreements 

to render certain services. More than 25 years 

later, AKZO, one of the three producers, turned to 

the Commission to file an application for leniency. 

With this application and during the following 

administrative proceedings AKZO, as well 

as the other main cartel members, seriously incriminated 

AC. Finally, based on those incriminations, 

a fine was imposed on the consultancy firm, 

whereas AKZO was granted full immunity. Although, 

as has been demonstrated above, under 

the specific circumstances AC must be presumed 

to have played a crucial role in the cartel and thus 

probably constitutes a special case distinguishing 

it from other involvements of consultancy firms, 

the basic scenario, however, is perfectly clear: 

Consultancy firms incriminated by their clients 

applying for leniency can be fined by the Commission 

for infringements of Article 81(1) EC as 

cartel facilitators. 

Of course, one could argue now that consultancy 

firms, bound by rules of professional ethics, would 

not advice or even assist clients in matters conflicting 

with Community competition law. If, however, 

one were to assume, for the sake of the argument 

only and without any intention to make unfounded 

allegations, that not all consultancy firms 

would take their rules of professional ethics that 

seriously, the management of those firms would 

have good reason to be alarmed whenever one of 

their clients or former clients turns to the Commission. 

Considering the financial dimensions of the 

Commission’s fining policy, confidentiality agreements 

and penalties agreed upon between consultancy 

firms and their clients are unlikely to have 

any deterrent effect. But also consultancy firms 

that always have and always will fully respect their 

rules of professional ethics are well advised to 

treat in particular new clients with increased caution 

from now on, since, depending on the Commission’s 

future application of the concept of passive 

participation to consultancy firms, after 

attending some meetings only, they might find 

themselves as facilitators of a cartel faster than 

they can imagine. 

In any event, also the opposite scenario is conceivable. 

Threatened by the Commission’s clear message 

or following the Dutch Competition Authority’s 

invitation, consultancy firms could file 

applications for leniency, thereby incriminating 

their clients. If, however, this method of «getting» 

the main members of a cartel via their facilitators 

had been the driving motivation behind the 

Commission’s reorientation of its fining policy to-

n o 2 


wards consulting firms, it would probably fail, 

since a consulting firm incriminating its clients 

would, apart from a breach of confidentiality, be 

put out of mandates within weeks. 

It does not come as a surprise though that the 

Judgment is highly appreciated by some commentators, 

in particular by attorneys whose activities 

are to a large extent shielded by the legal professional 

privilege. This last aspect might have an 

impact on some clients’ decision who to seek advice 

from. It might also influence the future structure 

of business relationships between consultancy 

firms and their clients. 

After all, it must be highlighted that it is perfectly 

understandable and also required by Community 

competition law that facilitators of cartels who 

contribute to the implementation of cartels or 

even benefit from them are exposed to the Commission’s 

fining powers as everyone else is. Nevertheless, 

the Commission’s reorientation came 

rather out of the blue and requires further clarification, 

for instance as to the question what degree 

of minimum contribution is required for a 

consultancy firm to be qualified as facilitator 

under the concept of passive participation or what 

basis real fines will be calculated on. At the end, 

the impression remains that the Commission has 

indeed wisely chosen this case to in order to have 

its reorientation affirmed by the CFI and to extend 

its enforcement policy to consultancy firms. In this 

respect, one last word as to the effect of the symbolic 

fine of EUR 1.000.- is due: The case has not 

been appealed to the ECJ. 

1 Judgment, paragraph 2 

2 Commission Notice on the non-imposition or reduction of 

fines in cartel cases, OJ 1996 C 207/4 («Leniency Notice»). 

3 Judgment, paragraph 4. 

4 Commission Decision 2005/349/EC, OJ 2005 L 110/44 

(«Contested Decision»), recital 454 and Article 2 (e). 

5 European Commission, Press Release of 10 December 2003, 

reference IP/03/1700; cf. Judgment, paragraph 7. 


7 Judgment, paragraphs 15, 20. 

8 Judgment, paragraphs 45, 46, with reference being made to 

CFI [2001] ECR II-729 Mannesmannröhren-Werke Commission, 

paragraphs 59, 60; ECJ [2004] ECR I-123 Aalborg 

Portland and Others Commission, paragraph 64; ECJ 

[2007] ECR I-1331 Groupe Danone Commission, paragraph 

68; cf. also fifth recital in the preamble to and Articles 

52(3) and 53 of the Charter of Fundamental Rights of the 

European Union. 

9 Regulation No 17/62, OJ 1962 13/204. 


11 Judgment, paragraph 48, with reference being made to CFI 

[2004] ECR II-2395 Dalmine Commission, paragraph 60. 



E L R 2 / 2 0 0 9 


15 Judgment, paragraph 122, with reference being made to 

CFI [2000] ECR II-3383 Bayer Commission, paragraph 67; 

ECJ [1990] ECR 661 ACF Chemiefarma Commission, 

paragraph 112. 





ECJ [2005] ECR I-5425 Dansk Rørindustri and Others 

Commission, paragraph 217. 


21 Judgment, paragraph 16; CFI [1995] ECR II-791 Tréfileurope 

Commission, paragraph 85; ECJ [1999] ECR I-4125 Commission 

Anic Partecipazioni, paragraphs 78 et seqq. 

22 Commission Decision 80/1334/EEC, OJ 1980 L383/19. 


ECJ [2005] ECR I-5425 Dansk Rørindustri and Others 

Commission, paragraph 219. 


25 Commission Decision 86/389/EEC, OJ 1986 L 230/1. 


27 Judgment, paragraph 57 (emphasis added). 

28 Baily, David, «Publicly Distancing» Oneself from a Cartel, 

Word Competition 31/2 (2008), 177 et seqq., 178. 

29 Dansk Rørindustri, paragraph 143; cf. Aalborg Portland, 

paragraph, 84. 

30 Cf., for instance, EU weitet Kartellstrafe aus: Auch Berater in 

der Ziehung, Die Presse online, 10.7.2008, http://diepresse. 

com/home/recht/rechtwirtschaft/397591/index.do?from=s 

uche.intern.portal (last visited on 15. February 2009); EU 

stellt Hilfe an Kartell unter Strafe, Börsenzeitung, Nr. 130, 11 

Juli 2008, 11; Kartellstrafe für Berater; Nicht direkt an Absprache 

Beteiligte müssen Bussgeld zahlen, Lebensmittelzeitung, 

Ausg, 29, 18 Juli 2008, 22. 



33 Cf. Freiin von dem Bussche, Julie/Stephan Albrecht, Die 

Strafbarkeit der Kartellbeihilfe nach EuG-Urteil AC-Treuhand/Kommission, 

EWS 10/2008, 416 ff., 419. 

34 Contested Decision, recital 95. 

35 Contested Decision, recital 102. 

36 Judgment, paragraph 134 (emphasis added), with reference 

being made to Aalborg Portland, paragraph 84; Dansk 

Rørindustri, paragraph 143. 


38 OJ 2003 L1/1. 

39 Commission Decision 83/546/EEC, OJ 1983 L 317/1.; cf. 

Bussche/Albrecht, Kartellbeihilfe, 420. 

40 Cf. Contested Decision, recital 92 in particular the fact that, 

according to the other participants, quotas had been agreed 

upon proposal of AC. 

41 Judgment, paragraphs 130, 134. 

42 See section (3) (c). 


44 Nederlandse Mededingingsautoriteit, Press Release 8-23, 

dated 29 July 2008, http://www.nmanet.nl/nederlands/ 

home/Actueel/Nieuws_Persberichten/NMa_Persberichten/ 

Persberichten_2008/08-23_Ook_kartelondersteuners_kun 

nen_om_clementie_vragen.asp (last visited on 16 February 

2009 – Dutch version only). 

45 Case COMP 39/406 Marine Hoses (not yet published), European 

Commission, Press Release of 28 January 2009, reference 

IP 2009/137. 

46 Office of Fair Trading (OFT), Press Release 177/07, dated 19 

December 2008; OFT, Press Release 72/08, dated 11 June 

2008. 

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