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When Can Third Parties Get You ’On the Hook’ for Cartel Fines?

Bill Batchelor and Grant Murray, International Law Office, August 2016

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In VM Remonts the European Court of Justice (ECJ) ruled for the first time on whether a company can be liable for competition law infringements that result from the actions of a third-party service provider if the service provider is not an agent of the company and takes initiatives that clearly exceed the tasks assigned to it. The judgment confirms that a company can be held liable for a concerted practice carried out by an independent service provider if: the service provider was acting under the direction or control of the undertaking; the undertaking was aware of the anti-competitive objective and intended to contribute to it by its own conduct; or the undertaking could reasonably have foreseen the anti-competitive acts of its competitors and service provider, and was prepared to accept the risk of the concerted practice. Although this scales back the test proposed by the advocate general – which suggested a presumption of liability that the defendants would have to rebut – the judgment has important implications for compliance programmes and counselling.

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