Shady Contours of Cartel Liability of Service Providers

The main objective of this article is to discuss the current approach adopted by the competition law authorities and relevant courts on the liability of service providers, such as independent consultants or data processors, in cases involving cartels. The question of service providers' liability was first addressed by the European Commission in Italian Cast Glass, and later in other decisions, as well as the appellant courts. This article will focus on the recent decisions of the European Commission and judgments of the EU courts. Most importantly, the 2008 judgment of the General Court of the European Union in AC-Treuhand I is considered to have set the standard for deciding when a service provider, who is not active in the market affected by the cartel, is liable for cartel activity. Reaffirming this position, in 2015, the Court of Justice in AC-Treuhand II held a service provider to be a cartelist despite the thought-provoking opinion of the Advocate General Wahl to the contrary. In the conclusion, the article will address the arguments against holding the service provider liable and will question whether the limits established in case law provide sufficient legal certainty on the liability of service providers