No protection of fines in case of wrong legal advice or wrong decisions of competition authorities

In 1994 the freight forwarder conference (“FFC”) of carriers was established to promote competition by creating equal conditions amongst its members. Two years later, the FFC was qualified both by lawyers and by the Austrian Cartel Court as a de minimis cartel according to Austrian competition law. The application of European competition law was supposed to be not applicable due to the lack of interstate trade.

During antitrust proceedings triggered by a leniency applicant, the Austrian Cartel Court decided in 2011 that members of the FFC shall not be sanctioned for their agreements on prices. It argued that on the basis of the court’s decision in 1996 and the legal advice of an antitrust lawyer, no guilt could be established and consequently no fine was imposed.

The Austrian Supreme Court questioned the opinion of the lower court and launched a preliminary proceeding with the ECJ to clarify whether wrong legal advice in combination with a respective court decision would suffice for undertakings to be considered not guilty for an antitrust infringement.

The ECJ decided in C 681/11, Schenker, dated 18.06.2013, that neither wrong legal advice nor a decision by a national competition authority, constitutes exculpation and consequently an undertaking cannot escape a fine for its illegal conduct.


Dr. Christina Hummer
Dr. Lukas Leitner