Poena sine culpa? Comment on Schenker

Abstract:

This article discusses the role of fundamental rights in EU competition law and, in particular, of the principles of fault and legitimate expectations in view of the judgment of the Court of Justice in Schenker. The article argues that the different approaches followed by Advocate General Kokott and by the Court of Justice in the case signal two diverging views emerging within the Court on this issue.

The Court rejected the test proposed by the Advocate General to assess when incorrect external legal advice and a decision of a national competition authority (NCA) generated a legitimate expectation for the sanctioned undertakings concerning the lawfulness of the conduct, and thus justified their breach of art.101 TFEU. The Court of Justice has thus confirmed its previous case law considering a price-fixing cartel as an object restriction, which could not be subject to any justification.

The article argues that the Court followed this approach in order to safeguard an administrable enforcement of art.101 TFEU, since the test proposed by the Advocate General would not be feasible to apply in practice. However, in consequence, the Court has left open some questions concerning the role of the principles of fault and legitimate expectations.