CJEU rules that legal advice cannot protect companies from antitrust fines

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

CJEU rules that legal advice cannot protect companies from antitrust fines

IP owners who have sought assurances from law firms that their conduct does not breach antitrust rules can still be hit by fines if the European Commission decides they have infringed the law

The Court of Justice of the European Union has today ruled in a case referred by Austria’s Supreme Court, which asked it two questions.

The first was whether a company which has infringed EU competition law may escape 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. The second was whether, where a company participates in a leniency programme, the national competition authorities may decide not to impose a fine even if they find an infringement.

The case centred on freight forwarding company Schenker, which had joined an industry group called the Austrian Freight Forwarding Agents Consolidated Consignment Conference (SSK). In 1996 the Austrian Cartel Court decided that the SSK was a “minor cartel” under Austrian law.

An Austrian law firm specialising in competition law, which was consulted as an adviser, agreed that the SSK constituted a minor cartel and was therefore not prohibited.

European Commission antitrust officials later raided a number of international freight forwarding services and said they had reason to believe they had breached competition law. This led to a dispute as to whether Schenker could be fined or was exempt because of the advice it had received and the decisions of the national authorities.

Today the Grand Chamber of the Court of Justice said that the fact that a company has characterised its conduct wrongly in law cannot exempt it from a fine, except in limited cases where officials are required to uphold the principle of the protection of legitimate expectations.

But the judges said that legal advice given by a lawyer cannot form the basis of a legitimate expectation on the part of a company that its conduct does not infringe EU competition law or will not give rise to the imposition of a fine.

more from across site and SHARED ros bottom lb

More from across our site

After five IP partners left the firm for White & Case, the IP market could yet see more laterals
The court plans to introduce a system for expert-led SEP mediation, intended to help parties come to an agreement within three sessions
Paul Chapman and Robert Lind, who are retiring from Marks & Clerk after 30-year careers, discuss workplace loyalty, client care, and why we should be optimistic but cautious about AI
Brantsandpatents is seeking to boost its expertise across key IP services in the Benelux region
Shwetasree Majumder, managing partner of Fidus Law Chambers, discusses fighting gender bias and why her firm is building a strong AI and tech expertise
Hady Khawand, founder of AÏP Genius, discusses creating an AI-powered IP platform, and why, with the law evolving faster than ever, adaptability is key
UK firm Shakespeare Martineau, which secured victory for the Triton shower brand at the Court of Appeal, explains how it navigated a tricky test regarding patent claim scopes
The firm’s managing partner said the city is an ‘exciting hub of ideas and innovation’
In our latest podcast, Deborah Hampton talks through her hopes for the year, INTA’s patent focus, London 2026, and her love of music
Tech leads at three IP service groups discuss why firms need to move away from off-the-shelf AI products and adopt custom solutions
Gift this article