Europeans Rule Reliance On National Courts And Lawyers Not A Bar To EU Antitrust Liability

The European Court of Justice (“ECJ”) has held that neither a decision from a national antitrust court nor reliance on the advice of counsel protected a company from European Union (“EU”) antitrust liability.  

The ECJ made its ruling in Bundeswettbewerbsbehörde v. Schenker & Co. and Others, a case dealing with an Austrian freight company that joined 30 other freight companies to form a special interest group known as Spediteur-Sammelladungs-Konferenz (“SSK”).  The group sought to obtain better road and rail freight rates, and argued that consumers and shippers would benefit from its joint price agreements. 

In 1996, Austria’s antitrust court granted SSK’s application to register the group as a “minor cartel.”  In 2005, SSK retained counsel to advise it on Austria’s new cartel laws and to maintain its “minor cartel” status. 

In 2007, however, the European Commission launched unannounced inspections into the group’s members and found SSK in violation of the EU’s antitrust laws.  The Higher Court in Vienna weighed in and decided in favor of SSK, noting that SSK had relied on Austria’s antitrust court and on the advice of counsel.  The case eventually moved to Austria’s Supreme Court which asked the ECJ for its advice.

Despite the ruling of Austria’s Supreme Court, the ECJ found that a company that infringes EU antitrust laws may not escape a fine where the infringement results from the company “erring as to the lawfulness of its conduct on account of terms of legal advice given by a lawyer or of the terms of a national competition authority.”

In SSK’s case, the ECJ determined that SSK was aware of its anticompetitive conduct, and that it could not validly use reliance as a defense unless it had been given “precise assurances by the competent authority.”  The ECJ found that SSK could not rely on Austria’s antitrust court because that court did not have the power to adopt a “negative decision” or, in other words, to determine that infringement had occurred.  The ECJ added that “legal advice given by a lawyer cannot, in any event, form the basis of a legitimate expectation.”  The ECJ also noted that Austria’s antitrust court and SSK’s counsel appeared to address national law only, not EU law.