ODGOVORNOST TREĆIH LICA ZA KRŠENjE KARTELNE ZABRANE U PRAVU KONKURENCIJE EVROPSKE UNIJE

Abstract

Since decision in Italian cast glass case of 17th December 1980 European Commission considers independent service providers liable for facilitation of cartel implementation. Such legal stance of European Commission was confirmed by the judgment of Court of European Union brought in Heat stabilizers case (C-194/14 P so called Treuhand II). This way the scope of cartel prohibition is noticeable extended. Striving to penalize and to prevent creation of new forms of collusion with assistance of undertakings which are not active on the markets concerned by the restriction of competition the Court extensively interpreted elements of cartel prohibition conception especially the notions of undertaking, agreement between undertakings and distortion of competition by object and concluded that nothing in the Article 81(1) EC (now Art. 101(1) of TFEU) limits the scope of cartel prohibition to “(i) the undertakings operating on the market affected by the restrictions of competition or indeed the markets upstream or downstream of that market or neighbouring markets or (ii) undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a concerted practice” (rec. 34). Providing that an agreement between undertakings is the expression of the concurrence of wills of at least two parties, the form in which the concurrence is expressed not being by itself decisive (rec. 28), it follows that scope of cartel prohibition embraces “all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, irrespective of the market on which parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of arrangements in question” (rec. 35). Whereas the liability of independent third person is not explicitly prescribed, such judiciary interpretation can be challenged from several reasons. First, it is generally accepted that (Community) legislation, in particular where there is а possibility of imposition of penalties must be clear and precise. With regard to opponent opinions given by Advocate General Wahl and scholars as well, independent service providers’ responsibility for facilitation of cartel implementation is obviously not laid down clearly and precisely. The second objection concerns the accessorial nature of a service agreement to a cartel agreement. Liability of independent service providers should not be dependent on market behavior of cartel participants. It must be regulated as an autonomous infringement. And third, activity of cartel facilitators cannot cause circumvention of the Anti-trust law. Complication of cartel detectability yes but circumvention of Anti-trust law no because the prohibition of the basic anti-trust conduct remains untouched.