Competition and Antitrust

Error in Law Cannot Protect Against Competition Fine

Contact: Preslmayr Rechtsanwälte (Austria)

In December 2011 the Supreme Court referred a question to the European Court of Justice (ECJ) regarding whether an error on the legality of actions based on advice froma specialist adviser or a decision by a national competition authority would be a viable defence against fines imposed on an undertaking for infringing Article 101 of the Treaty on the Functioning of the European Union (for further details please see "Can an error in law protect against competition fines?").

On June 18 2013 the ECJ answered this question in the negative. It stated that Article 101 must be interpreted as meaning that an undertaking which has infringed this provision cannot escape the imposition of a fine where the infringement has resulted from the undertaking erring as to the lawfulness of its conduct on account of the terms of legal advice given by a lawyer or a decision of a national competition authority.

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