In a preliminary ruling issued on 21 July 2016 (C-542/14), the Court of Justice has confirmed that an undertaking is not automatically liable for violations of competition law committed by independent service providers who work for that undertaking. This is in contrast to the conduct of employees, for which such liability is automatically incurred.
The Court of Justice was confronted with this question in the context of a Lithuanian case in which three undertakings were convicted of bid rigging. An undertaking which was participating in a public procurement procedure had independently drafted an offer and communicated this offer to a law firm. The law firm subsequently used the offer to draft the offers of two other candidates. Their offers were 5% and 10% cheaper respectively.
The Court of Justice confirmed that, in principle, an undertaking is not liable for violations of competition law committed by independent service providers. There are some exceptions to this principle. An undertaking is liable in the following cases:
- If the service provider in fact works under its direction or control (e.g. due to a concrete lack of autonomy);
- If the undertaking was aware of the anti-competitive objectives of its competitors and of its service provider and intended to contribute to those objectives with its own conduct; or
- If the undertaking could reasonably have foreseen that its competitors and the service provider would engage in anti-competitive conduct and was prepared to accept the risk this entailed.
The Court of Justice did not rule on the question of whether the Lithuanian undertaking could actually be held liable for the conduct of its law firm. This has to be determined by the national judge.
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Stijn Goovaerts
