The Service Provider as Cartel Facilitator: Assessing 'Third Party' Liability Under Article 101 TFEU

    View Author May 2015

    The history of the European Commission finding so-called 'cartel facilitators' liable for antitrust infringements is lengthy, with the first clear precedent dating back at least to 1980. However, it is also patchy, with a lapse of over twenty years passing between the next such decision. It is arguably only since the judgment of the Court of First Instance in AC Treuhand 1 (2008) that there has been some degree of clarity regarding the circumstances in which a third party service provider can be considered liable as a co-perpetrator for a cartel infringement. The judgment set the bar for such liability worryingly low.

    The judgment in AC Treuhand 1 shows that providers of such services cannot afford to take a 'head-in-the-sand' approach to protecting their interests, or even less to turn a blind eye to the use to which the data that they provide is put. Rather, they would be well advised to take proactive steps to limit their exposure including by specifying what would constitute a non-permitted, and potentially anticompetitive, use of their services.