Brussels, 19/06/2013 (Agence Europe) - Legal advice given by a law firm or a decision of a national competition authority which causes an undertaking to engage in anti-competitive conduct does not exonerate that undertaking of commiting an infringement or exempt it from imposition of a fine. National competition authorities may, by way of exception, refrain from imposing a fine where the infringing undertaking has participated in a national leniency programme.
This decision by the European Court of Justice (CJEU) on Tuesday 18 June (C-681/11) is in response to two questions put by the Austrian Supreme Court, which was to rule on the SSK case, a civil law partnership comprising a group of freight forwarders seeking to promote more favourable road and rail consolidated consignment rates to shippers and to end-consumers. Through the creation of equal conditions of competition the SSK had the aim of creating fair competition among its members. The Austrian Cartel Court (Kartellgericht) and an Austrian law firm hired a advisers took the view that the SSK constituted a minor cartel and was therefore not prohibited under Austrian law. In 2007, however, the Commission said that it had reason to believe that the companies concerned might have infringed provisions of EU law which prohibit anti-competitive business practices. The case was taken to the Austrian Supreme Court, which referred two questions to the Court of Justice. The Court of Justice was asked, first of all, whether a company which has infringed EU competition law may escape imposition of a fine where the infringement has resulted from that undertaking erring as to the lawfulness of its conduct on account of the terms of legal advice given by a lawyer or of the terms of a decision of a national competition authority. The second question put to the Court was whether, where a company participates in a leniency programme, the national competition authorities may, whilst finding an infringement of competition law, refrain from imposing a fine upon it.
The Court points out, first of all, that the fact that a company has characterised its conduct wrongly in law cannot have the effect of exempting it from imposition of a fine, save in exceptional cases, for example, where a general principle of EU law, such as the principle of the protection of legitimate expectations, precludes imposition of a fine. However, a person may not plead breach of the principle of the protection of legitimate expectations unless he has been given precise assurances by the competent authority. Consequently, legal advice given by a lawyer cannot, in any event, form the basis of a legitimate expectation on the part of a company that its conduct does not infringe EU competition law or will not give rise to the imposition of a fine. Consequently, the Court decided that EU competition law must be interpreted as meaning that a company which has infringed that law may not escape imposition of a fine.
Secondly, the Court notes that EU competition law does not provide expressly that the national authorities have the power to find an infringement of the EU competition rules without imposing a fine, but it does not exclude that power either. The Court states, however, that such a decision not to impose a fine can be made under a national leniency programme only in so far as the programme is implemented in such a way as not to undermine the requirement of effective and uniform application of EU competition law and in strictly exceptional situations only, such as where a company's cooperation has been decisive in detecting and actually suppressing the cartel. (FG/transl.fl)