Capturing the Cartel's Friends: Cartel Facilitation and the Idea of Joint Criminal Enterprise

The recent ruling by the Court of First Instance in AC-Treuhand (T-99/04), confirmingthat a consultancy firm which had facilitated the operation of the Organic PeroxideCartel thereby infringed Art.81(1) EC, provides some insight into the nature ofpunishable cartel offending. Now that involvement in business cartels attractssignificant sanctions at both a corporate and individual level the basis for such penalliability requires a clear justification. The facilitation of cartels is part of that extralayer of subterfuge which adds to the reprehensible character of the anticompetitivedamage arising from cartels, so as to justify penal measures such as large finesand prison terms. A number of recent judgments serve to emphasise that the toughregulation of cartels is as much about dealing with subterfuge and legal defiance asthe anticompetitive behaviour in itself. It is also instructive in this context to drawupon the model of the joint criminal enterprise (JCE), as it has been developed in warcrimes proceedings, as a way of viewing an anticompetitive cartel as a joint illegalenterprise, which necessarily and significantly includes the role of facilitating actors as well as that of actual price fixers and the like.