POSTUPANjE TREĆEG LICA KOJIM SE NA TRŽIŠTU UZROKUJE NASTANAK SITUACIJE NALIK NA KARTEL

Abstract

Using the third party for cartel facilitation is not a rare situation and represents a logical trial of cartel participants to hide their illicit activities. But the case of unilateral initiative and related action of a third party undertaken in implementation of that initiative resulting in creating a cartel(like situation) on clients’ market in order to achieve its own legally unallowable objectives is rather unique but in today’s market existent phenomenon. This situation is a factual ground in two cases resolved by Court of European Union namely: Eturas and VM Remonts. In the latter the Court said that Article 101(1) TFEU must be interpreted as meaning that a user of services cannot be a priory responsible for anticompetitive activities of service provider. To be held liable for a concerted practice on account of the acts of an independent service provider supplying it with services one of the following conditions has to be met: – the service provider was in fact acting under the direction or control of the undertaking concerned, or – that undertaking was aware of the anti-competitive objectives pursued by its competitors and the service provider and intended to contribute to them by its own conduct, or – that undertaking could reasonably have foreseen the anti-competitive acts of its competitors and the service provider and was prepared to accept the risk which they entailed.