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 2025

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 EasyGroup failing in its trademark infringement claim against ‘Easihire’ and Amgen winning a key appeal at the UPC were also among the top talking points
Submit your nominations to this year's WIBL EMEA Awards by February 16 2026
Edward Russavage and Maria Crusey at Wolf Greenfield say that OpenAI MDL could broaden discovery and reshape how clients navigate AI copyright disputes
The UPC has increased some fees by as much as 32%, but firms and their clients had been getting a good deal so far
Meryl Koh, equity director and litigator at Drew & Napier in Singapore, discusses an uptick in cross-border litigation and why collaboration across practice areas is becoming crucial
The firm says new role will be at the forefront of how it delivers value and will help bridge the gap between lawyers, clients and tech
Qantm IP’s CEO and AI programme lead discuss the business’s investment and M&A plans, and reveal their tech ambitions
Controversial plans were scrapped by the Commission earlier this year after the Parliament had previously backed them
Lawyers at Spoor & Fisher provide an overview of how South Africa is navigating copyright and consent requirements to improve access to works for blind and visually impaired people
Gillian Tan explains how she balances TM portfolio management with fast-moving deals, and why ‘CCP’ is a good acronym to live by
Gift this article