The Court of Justice of the European Union has today ruledin a case referred by Austria’s Supreme Court, which asked it two questions.
The first was whether a company which has infringed EU competition law may escape 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 was whether, where a company participates in a leniency programme, the national competition authorities may decide not to impose a fine even if they find an infringement.
The case centred on freight forwarding company Schenker, which had joined an industry group called the Austrian Freight Forwarding Agents Consolidated Consignment Conference (SSK). In 1996 the Austrian Cartel Court decided that the SSK was a “minor cartel” under Austrian law.
An Austrian law firm specialising in competition law, which was consulted as an adviser, agreed that the SSK constituted a minor cartel and was therefore not prohibited.
European Commission antitrust officials later raided a number of international freight forwarding services and said they had reason to believe they had breached competition law. This led to a dispute as to whether Schenker could be fined or was exempt because of the advice it had received and the decisions of the national authorities.
Today the Grand Chamber of the Court of Justice said that the fact that a company has characterised its conduct wrongly in law cannot exempt it from a fine, except in limited cases where officials are required to uphold the principle of the protection of legitimate expectations.
But the judges said that legal advice given by a lawyer cannot 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.
