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

The firm, which has also hired a senior trademark leader to lead operations in the region, believes greater China to be one of the most important IP jurisdictions
Attorneys at Gibson Dunn share why plaintiffs’ growing reliance on DMCA anti-circumvention claims in AI scraping cases exposes a critical vulnerability
Tom Carver, who spent the last 18 months sailing the Mediterranean, tells Managing IP why he’s ready to return to land
US law firms highlight litigation profitability and client demand as driving forces behind a boom in lateral hires in the life sciences sector
The move marks the latest step in Temu’s push to protect brands’ intellectual property by collaborating with industry groups and enforcement agencies. Managing IP learns about a rapidly scaling strategy and two success stories
A counterfeiting crackdown targeting fake FIFA World Cup merchandise and new partner hires by CMS, HGF and Winston Strawn were also among the top talking points
Law firms need to accept the hard truth: talent migration isn't personal; it's business as usual
Judge Alan Albright is to leave his role at the Western District of Texas, and could return to private practice
Stobbs has successfully seen off a contempt of court application filed against the firm and two of its lawyers
After almost a quarter of a century, Marshall Gerstein has a new managing partner
Gift this article