EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

limitation period is suspended only when the Commission decision is the subject of a decision by the CJEU (Article 25(6) of Regulation 1/2003). 2.1 Principles of Limitation Periods for the Imposition of Penalties in the light of Selected Case law of the CJEU The CJEU plays a key role in interpreting EU legislation (Sehnálek, Týč, 2016, p. 18), including competition law provisions. In the following lines, the contribution will address two very recent Judgements in which the Court of Justice has clarified some problematic aspects of the limitation period for the imposition of penalties within the meaning of Article 25 Regulation 1/2003. 2.1.1 Case C-450/19, Kilpailu- ja kuluttajavirasto On 14 January 2021, the CJEU issued a preliminary ruling in Case C-450/19, Kilpailu- ja kuluttajavirasto ( Kilpailu ) setting out guidelines on when an anticompetitive price-fixing agreement in the context of a bidding process is considered to have ended. This decision has important implications for the application of limitation periods for fines imposed by competition authorities. The reference for a preliminary ruling in this case was made by the Finnish Supreme Administrative Court, which referred a single question to the Court asking when exactly the infringement of Article 101 TFEU in a bid-rigged tender procedure ceases. In its ruling, the Court stated that an infringement of Article 101(1) TFEU lasts as long as the restriction of competition resulting from the conduct concerned persists. However, in the case of conduct prohibited by Article 10(1) TFEU, which consists in the manipulation of a tender procedure (…)the restrictive effects of the cartel on competition disappear, in principle, at the latest at the time when the essential characteristics of the contract (…), have been definitively determined, where appropriate, by the conclusion of a contract between the successful tenderer and the contracting authority (…) (para 35). The Court further distinguished between the restrictive effects of a cartel on competition–which deprived the contracting authority of the opportunity to obtain the agreed goods, works, or services on competitive terms–and the wider adverse economic effects on other market participants resulting from the contract. According to the CJEU, only the first category of effects is relevant in determining the duration of an undertaking’s participation in an anticompetitive agreement (para 37).

296