EU Competition Law and Policy - compal

©Ariel Ezrachi, December 2012
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An infringement of Article 101 TFEU may result not only from an isolated act but also from a series of
acts or from continuous conduct. Although Article 101 TFEU does not refer explicitly to the concept of
single and continuous infringement, an undertaking may be held responsible for an overall cartel even if it
participated directly only in one or some of the constituent elements of that cartel. (para 286, 287)
Comment
In para 283 the Commission noted that when there is a break in a cartel activity it is possible to view the
recommencement of the activity at a later stage as part of the same single infringement. It subsequently
concluded that ‘even if the break were to be of a longer duration, but the participant or participants in
question resumed the same cartel after the break, then it would still be possible to find that there had
been a single infringement and to impose a sanction also as regards the period prior to the break, without
any limitation period being applicable, pursuant to Article 25(2) of Regulation (EC) No 1/2003...’
Article 25(2) of Regulation 1/2003 stipulates that in the calculation of limitation periods for the
imposition of penalties ‘time shall begin to run on the day on which the infringement is committed.
However, in the case of continuing or repeated infringements, time shall begin to run on the day on
which the infringement ceases.’
The Commission’s interpretation of Article 25(2) Regulation 1/2003 raises interesting questions as to the
notion of ‘continuing or repeated infringements’ and the calculation of limitation period. It seems that in
its decision the Commission has stretched the notion of ‘repeated infringement’. It considered the
rejoining of the cartel activity at a later stage would ‘revive’ prior periods of cartel activities which ended
and bring them under the concept of repeated infringement. According to the Commission, this will be
the case notwithstanding the length of the break between the activities, as long as the undertakings rejoin
the same activity at a later stage. This reading of Article 25(2) undermines the rationale behind time
barring as it provides the Commission with unlimited power to fine (revived) activities.
In its decision the Commission made reference to the General Court judgement in Case T-279/02
Degussa v Commission [2006] ECR II-897, in which the General Court noted with respect to suspension of
a cartel that ‘...Suspension of a cartel can be acknowledged only where it is established that a given
infringement, although single and continuous, was disrupted for a brief period in such a way as to
preclude inclusion of that period in the calculation of the total duration of the infringement, assuming, of
course, that the cartel was then resumed fully. That method thus serves to reconcile the concept of a
single continuous infringement with the requirements arising from the need for precise determination of
the duration of the infringement and, therefore, in so far as the calculation of the amount of the fine
depends inter alia on the latter criterion, from the principle of proportionality of the fine.’ (para 178)
The Commission also made reference in its decision to two of its own decisions in which it considered
‘repeated infringement’. These are: Commission Decision 2007/691/EC of 20 September 2006 in Case
COMP/F/38.121 – Fittings, [2007] OJ L 283, pp. 63-8 (Appealed to the General Court - Case T-379/06,
and currently on appeal to the Court of Justice - Case C-264/11 P); Commission Decision 83/546/EEC
of 17 October 1983 in Case COMP/IV/30.064 - Cast iron and steel rolls, [1983] OJ L 317, pp. 1-18, recitals
67-8.
The Commission decision was appealed in case T-147/09 Trelleborg Industrie v Commission [2009] OJ C
153/41. On appeal, Trelleborg Industrie SAS argued that the Commission’s power to impose fines for
any period before 21 June 1999 is time barred under Article 25(1) of Regulation 1/2003, that the
Commission has no legitimate interest in making a declaratory finding of infringement for the first period
which had come to an end in May 1997 and that the Commission has unlawfully discriminated against it
in treating it differently from another addressee as regards liability for a corporate predecessor and has
breached the right to be heard and the obligation to give reasons. Appeal pending.