Companies Cannot Invoke Advice From A Legal Counsel Or Decision Of A National Competition Authority Or Court To Escape Finding Of Infringement

On 18 June 2013, the Court of Justice of the European Union ("ECJ") handed down its judgment on a preliminary reference from the Austrian Supreme Court, ruling that an undertaking could be held liable, where it had erroneously relied on advice from a legal counsel or a decision of a national competition authority ("NCA") or a national court, about the lawfulness of its behaviour as regards EU competition law (Case C-681/11 - Bundeswettbewerbsbehörde, Bundeskartellanwalt v Schenker & Co. and Others). The ECJ also confirmed that NCAs have the power to exempt a company from a fine pursuant to national leniency programmes.

The preliminary reference concerned agreements that were made between 31 members of a freight forwarder group called Spediteur-Sammelladungs-Konferenz ("SSK"). The SSK was created to enable more favourable road and rail consolidated consignment rates to be granted to shippers and to end consumers. By an order of the Austrian Cartel Court in 1996, the SSK was declared to be a minor cartel within the definition of the Austrian competition law (i.e., less than 5% market share), thus exempting it from the scope of Austrian competition law. An Austrian law firm specializing in competition law also took the same view.

On 11 October 2007, the European Commission announced that it had conducted an inspection at the business premises of various suppliers of international freight forwarding services and that it had reasons to believe that the companies concerned might have infringed provisions of EU competition law.

Earlier in 2007, the Austrian NCA had received a leniency application from Schenker, one of the members of the SSK. Following an investigation, the NCA found that SSK members had engaged in cartelistic behaviour from 1994 to 2007 and brought proceedings to the Vienna Higher Regional Court with the aim of having fines imposed on most members of the SSK. By order of 22 February 2011, the Vienna Higher Regional Court dismissed the NCA claim and ruled that the members of SSK were not liable for having, among others, agreed on prices and allocated customers, as they could rely on the 1996 order of the Austrian Cartel Court, which had declared that their agreements constituted a minor cartel. The NCA challenged this order before the Austrian Supreme Court, which stayed proceedings and referred two questions to the ECJ. Advocate General Kokott issued an opinion on 28 February 2013 (see VBB on Competition Law, Volume 2013, No. 3...