EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

The Court further recalled that, since EU law recognises the principle that the actions available to the Commission and the national competition authorities, to prosecute and penalise infringements of Article 101 TFEU, are subject to limitation, the effective implementation of that provision cannot justify artificially extending the duration of the infringement period to allow its prosecution. The Court concluded that an undertaking’s participation in an infringement of Article 101(1) TFEU ended on the date of signature of the contract concluded between the undertaking and the contracting authority on the basis of the concerted bid submitted by that undertaking. This case provides valuable guidance as to the duration of the infringement in circumstances where a cartel participant has entered into a contract with a third party producing obligations long after the date of signing. These guidelines are also important in answering the question of the starting point of the limitation period for the imposition of penalties within the meaning of Article 25 of Regulation 1/2003, which, in the case of a continuing or repeated infringement, begins to run on the day on which the infringement ceases. 2.1.2 Case C-308/19, Whiteland On 21 January 2021, the CJEU delivered a preliminary ruling in Case C-308/19, Consiliul Concurenţei v Whiteland Import Export SRL ( Whiteland ) on a question raised by the Romanian Supreme Court regarding the five-year time limit for the Romanian competition authority to impose a fine for an antitrust infringement. Under its national law, the limitation period starts to run on the day the antitrust infringements ceases and can only be interrupted by the Romanian competition authority opening an investigation; no subsequent acts of investigation can have the same interruptive effect. As a result, the possibility to impose a fine on Whiteland by the Romanian competition authority for infringement of EU and national competition law was deemed to be time-barred. By its first question, the national court asked whether EU law must be interpreted as meaning that national courts are required to apply Article 25(3) of Regulation 1/2003 to a national competition authority’s powers to impose penalties for infringements of EU competition law. Not surprisingly, the Court has ruled that the wording and purpose of Article 25(1) of Regulation 1/2003 relate exclusively to powers conferred on the Commission by Articles 23 and 24 of that regulation. Therefore, Article 25(3) does not apply to proceedings conducted by NCAs (para 36). The second and more fundamental question referred to by the national court was whether Article 4(3) TEU and Article 101 TFEU must be interpreted as precluding the interpretation of provisions of national law in the sense that an act that interrupts the limitation period is only a formal act of initiating an anticompetitive practice, without the subsequent actions taken for the purpose

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