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Competition Law

Analysis - debate - current awareness

16 JAN 2012

Can mistake of law provide a defence to cartel prosecution?

Austria’s Supreme Cartel Court has asked the Court of Justice of the European Union (CJEU) whether a member of a cartel in packaged goods deliveries can defend itself against prosecution on the ground that it received erroneous legal advice from lawyers.  A second issue concerns the competition authority’s right to take decisions that establish infringements without imposing fines or remedies.

In January 2011,Vienna’s cartel court dismissed a case brought by the Austrian competition authority alleging that price-fixing and market-sharing took place in the context of a conference among 40 hauliers on collective shipments called Speditions-Sammelladungskonferenz.  The lower court ruled that the shippers could have relied on a 1996 decision such that the Speditions-Sammelladungskonferenz was a registered cartel, falling within the national de minimis exemption for cartels on an approved list drawn up by the cartel court.

In March 2011, the Austrian competition authority appealed the decision before the Supreme Cartel Court with the full backing of the European Commission.  In their defence, the parties claim that their lawyers failed to advise that EU rules would prevail over a pre-existing national de minimis exemption.  TheSupreme Cartel Court is seeking clarification on this point.

As far as we are aware, the principle of unavoidable mistake of law has been debated before the CJEU in cases interpreting WTO agreements, but not competition law.  Since neither negligence nor bad faith is required for findings of breaches of EU competition rules, ignorance of the law is unlikely to be an excuse.

Mitsuko Akiyama

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