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

News of Avanci hiring a senior vice president and the EPO teaming up with a French AI startup were also among the top talking points
Explosm, the independent Texas studio behind the hit webcomic Cyanide & Happiness, partnered with Temu’s IP protection team to combat counterfeiters infringing on its brand
The latest in a dispute over juicing machines, and a shakeup in judicial compositions were also among the top developments
Patent partner Robert Hollingshead explains why the firm remains committed to Japan despite several US firms exiting the Japanese and greater Asia market
Emma Green, partner at Bird & Bird, shares why the Iceland v Iceland dispute could prompt businesses and lawyers to think differently about brand enforcement
Attain IP, developed by two UK patent lawyers, will meet ‘forensic’ needs of patent attorneys by showing a verifiable reasoning chain, according to its co-founders
The High Court of Australia has allowed a fashion designer to retain her registered ‘Katie Perry’ trademark for clothing
Sim & San secured the win for Dr. Reddy’s, which will allow the pharma company to manufacture and export semaglutide, the active ingredient in Ozempic
Lucas Amodio joins our ‘Five minutes with’ series to discuss artificial intelligence systems and patent law
The Americas research cycle has commenced, so don't miss the opportunity to submit your work
Gift this article