Ongoing preliminary rulings in antitrust law
Within the last six months, the European Court of Justice ("ECJ") has dealt with preliminary rulings concerning (i) whether wrong legal advice constitutes an error of law precluding liability (case “Schenker”), as well as (ii) the disclosure of case documents subject to the approval and inspection of third parties (case “Donauchemie”). In the findings of a preliminary ruling, the ECJ also resolved that agreements on prices between insurance companies and car repair workshops were illegal (case “Allianz Hungaria”).
In the preliminary ruling concerning Schenker, it has been examined to what extent an attorney’s wrong legal advice can excuse a violation of antitrust law. The Advocate General has now submitted the final opinion in this case, where she proposes to recognize an error of law precluding liability in European antitrust law, while providing criteria that must be met in order to make a mistake of law not punishable according to EU antitrust law. This includes (i) obtaining council of an independent external lawyer (ii) the lawyer’s specialization in competition law, (iii) the lawyer's advice based on a full and true description of the facts, (iv) report based on an extensive study of the handling and decision-making practice of the European Commission and with the case law of the EU courts, and (v) no counsel that is obviously wrong, since a company should not blindly rely on such counsel. The Court will now decide whether and to what extent the error of law precluding liability is to be recognized.
Another still pending preliminary ruling by the ECJ, Donauchemie, deals with the question whether Austrian national procedural allows third party sufficiently access to the file of the court case when such access is subject to the consent of the proceeding’s parties. The Advocate General argues in his opinion that the Austrian legislation, which generally excludes the right to access files by cartel victims, is not in line with the EU law principle of effectiveness (Article 19 (1) TFEU). However, this shall not be the case if national law provides other ways to gather evidence for the breach of antitrust law and the damage assessment. Herewith, the law should not create uniform rules, but let the national judge decide on a case-by-case basis whether there are alternative solutions to protect the interests of the victims.The ECJ adopted its decision in a preliminary ruling between Allianz Hungaria Biztosito Zrt. and Others / Gazdasági Versenyhivatal in March. The judges ruled that agreements between insurance companies and car repair workshops on the prices for the repair of insured vehicles have an anti-competitive purpose and are prohibited, because they are by their very nature harmful to the proper functioning of competition. The ECJ also made an extension of the category of intended restrictions of competition for vertical agreements, which meet the restrictions of Article 101 TFEU in addition to the effectuated restrictions of competition. In addition to the conduct being already confirmed by the ECJ, in particular (i) the specification of minimum prices for resale, (ii) the prohibition of parallel trade between Member States through the introduction of absolute territorial protection, and (iii) the prohibition of internet sales of certain products, provided that the prohibition is not objectively justified (e.g. in the context of a selective distribution system), the Court now adds the endorsement of an intended (horizontal) restriction of competition within the framework of a vertical agreement of car insurance companies with car repair companies, as well as the violation of consumer expectations relating to the independence of dealers from insurance companies. This innovation is viewed as controversial, because it makes the Court determine that an agreement has been intended to restrict competition if it could cause a restriction due to the specific conditions of competition on the relevant market. This means that the distinction between "intention" and "effect" is blurred.