Friday, October 21, 2016

Passive Participation in Anticompetitive Agreements

Lukas Solek, Schonherr Rechtstanwalte GmbH analyzes Passive Participation in Anticompetitive Agreements.

ABSTRACT: Contrary to the most criminal or quasi-criminal regimes, Art 101 TFEU does neither explicitly recognise the status of an instigator, accomplice, or a facilitator—as opposed to a perpetrator—nor does it postulate special requirements for their participation in anticompetitive agreements. The feature that these actors have in common is that they are not active on the market that is ought to be affected by the anticompetitive agreement, and hence their contributions are rather of a passive nature, compared to the active contributions of direct perpetrators. While it has been argued that the lack of an explicit provision on passive participants prevents the European Commission (‘Commission’) from instituting proceedings against them, the Court of Justice has recently confirmed that ‘mere’ facilitating of anticompetitive conduct by undertakings active on non-cartelised markets does not fall outside the ambit of Art 101 TFEU. Moreover, the Court stipulated that even a consultancy firm may be held liable for its participation in an anticompetitive agreement where it contributes to its operation, even though it is not active on the cartelised market.

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