A consultancy firm has been found liable and fined €348 000 under EU competition law for facilitating a cartel, although it was not a member of that cartel, and it did not operate in the heat stabiliser market in which the cartel operated.
AC‑Treuhand, a consultancy based in Zurich, offers a range of services including business management and administration, the collection, processing and assessment of market data, presentation of market statistics, and the audit of reported figures.
The European Court of Justice (ECJ) found that AC‑Treuhand had violated EU cartel rules by directly helping to facilitate two separate cartels in the heating stabiliser supplier market. The ECJ found that AC‑Treuhand played an essential role in the cartels by organising meetings (which it attended and participated in); collecting and supplying sales data to the producers of heat stabilisers; offering to act as a moderator in the event of tensions between those producers; and encouraging the producers to find compromises, for which it received remuneration.
This judgment clarifies that competition infringement can occur irrespective of whether the parties to a restrictive agreement, or concerted practice, impact the market directly or merely facilitate the infringing conduct.
The South African authorities may try to follow the same reasoning as the European courts in concluding that any conduct which enables a cartel to be established, to function, and to detect cheaters, is itself a contravention of the Competition Act. Such facilitators are unlikely to be caught under section 4 of the Act, which prohibits cartel conduct, because that provision speaks explicitly about agreements “between parties in a horizontal relationship”. But potentially, such facilitators could fall foul of section 5 of the Act (which deals with agreements between suppliers and customers) to the extent that their supply of services results in their customers undermining competition.
Therefore, independent consultancies, advisors and auditors should be aware of the risks of collecting and distributing information of their clients, and consider the extent to which their consultancy services assist other firms to co-ordinate their conduct in the markets in which they operate.
For a more detailed analysis, click here.