Case Note: European Court of Justice (C-681/11 - Schenker) Mistakenly Considers an Unavoidable Error of Law Not to Preclude an Undertaking's Antitrust Liability

WuW - Wirtschaft und Wettbewerb 2013, 845

Posted: 17 Jul 2013 Last revised: 19 Sep 2013

See all articles by Christian Kersting

Christian Kersting

Heinrich Heine University Düsseldorf - Faculty of Law

Date Written: July 15, 2013

Abstract

In case C-681/11 (Schenker) the ECJ had the possibility to rule on the question of whether and under what circumstances an unavoidable error of law precludes an undertaking’s antitrust liability. The case, however, did not provide the best opportunity to do so. Its facts were such that it was difficult to believe in the existence of an error of law, let alone in its unavoidability. Unfortunately, the ECJ missed the opportunity to rule at least obiter on the conditions for an unavoidable error of law as a valid defense. Yet, it also did not limit its holding to the statement that given the facts of the case the undertaking could not rely on an error of law as a defense. Rather, the ECJ made a sweeping statement holding that “Article 101 TFEU must be interpreted as meaning that an undertaking which has infringed that provision may not escape imposition of a fine where the infringement has resulted from that undertaking erring as to the lawfulness of its conduct on account of the terms of legal advice given by a lawyer or of the terms of a decision of a national competition authority”. This holding is far too broad and is not supported by the reasoning of the court. The ECJ arrives at its conclusion by applying the principle of protection of legitimate expectations and holding that the conditions for protecting legitimate expectations are not met. This principle, however, applies to situations in which undertakings relied on provisions in European regulations that were later changed. It has nothing to do with the question whether an error of law excludes the personal responsibility (intent or negligence) as a prerequisite for imposing a fine. The ECJ’s broad holding in the Schenker case generally negating the admissibility of the error of law defense thus appears to be a genuine mistake. It therefore has to be concluded that the question of whether and under what circumstances undertakings can rely on an error of law defense remains open. Hopefully the ECJ will soon have the opportunity for clarification.

Keywords: ECJ, anti-trust, unavoidable error of law, legal advice, principle of protecting legitimite expectactions

JEL Classification: K10, K21

Suggested Citation

Kersting, Christian, Case Note: European Court of Justice (C-681/11 - Schenker) Mistakenly Considers an Unavoidable Error of Law Not to Preclude an Undertaking's Antitrust Liability (July 15, 2013). WuW - Wirtschaft und Wettbewerb 2013, 845. Available at SSRN: https://ssrn.com/abstract=2293941

Christian Kersting (Contact Author)

Heinrich Heine University Düsseldorf - Faculty of Law ( email )

Universitätsstr. 1
Düsseldorf, D-40225
Germany
0211 8111660 (Phone)

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