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CJEU - C 681/11 / Opinion

Schenker and Co AG and Others

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Opinion of Advocate General
Decision date:
Key facts of the case:
  1. Can proceedings be brought against an undertaking for a cartel offence if that undertaking erroneously assumed that its own conduct was lawful? This is essentially the legal question with which the Court is confronted in the present preliminary ruling proceedings.
  2. Proceedings have been brought by the Austrian competition authority against several freight forwarding undertakings for an infringement of Article 101 TFEU and the relevant provisions of national antitrust law because for many years they made price agreements. The main argument put forward by the undertakings concerned in their defence is that they relied, in good faith, on advice provided by a specialist legal practice and on the decision of the national court having jurisdiction and could therefore neither be accused of participating in a cartel offence nor have fines imposed in respect of that participation.
  3. Once again this case shows that, in performing their duties, competition authorities and courts are faced with problems that are not dissimilar to those in criminal law, whose resolution may raise delicate questions relating to the protection of fundamental rights. The approach taken by the Court in this regard is of fundamental importance to the further development of European competition law and for its practical application both at EU level and at national level.
Results (sanctions) and key consequences of the case:
  1. A fine may not be imposed on an undertaking for an infringement of the prohibition of cartels under EU law committed by it in a case where the undertaking erred with regard to the lawfulness of its conduct (error of law) and its error is not objectionable.
  2. The error of law committed by an undertaking is objectionable if the undertaking has relied on legal advice provided by a lawyer or a decision taken by a national competition authority in which the crucial legal problem is not addressed, at least not expressly.

In the case of infringements whose starting date lies before 1 May 2004, an error of law by an undertaking is also objectionable if the undertaking failed to apply at an early stage to the European Commission for the grant of negative clearance under Article 2 of Regulation (EEC) No 17.

  1. Regulation (EC) No 1/2003 does not prohibit the competition authorities of the Member States from finding that an infringement of the prohibition of cartels under EU law has been committed by an undertaking as such and, in doing so, from refraining from imposing a fine, provided the general principles of equivalence and effectiveness enshrined in EU law are respected.