AC-Treuhand, the Scope of Article 101 TFEU, and the Future of Actions for Antitrust Damages

The Court of Justice of the European Union recently handed down a decision on a novel question which, when combined with other developments relating to reforms of antitrust damages claims, could have serious consequences for the future of antitrust damages claims in Ireland and the European Union. In AC-Treuhand, the CJEU heard an appeal against a fine levied on a consultancy firm for its role as a “cartel facilitator”. The CJEU confirmed that the service agreement between AC-Treuhand and suppliers of heat stabilisers constituted an illegal agreement under EU competition rules. As such, the CJEU held that agreements that distort competition in the EU are caught by art.101 of the Treaty on the Functioning of the European Union (TFEU), irrespective of whether the parties operate in the same market. Interestingly, part of the CJEU's reasoning was based on a view that the effectiveness of art.101 TFEU would be endangered if facilitators, such as AC-Treuhand, could escape liability.The aim of this article is to put the recent AC-Treuhand decision into context and explore some of its potential ramifications given other developments in the sphere of actions for antitrust damages