EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

infringement ceased. In order for the limitation period to begin running in the case of continuing or repeated infringements the second line of interpretation determined that the APC must necessarily be aware of the entire administrative offence, i.e., about the “commission” of the offence, and not only about its beginning or part of the offence, i.e., about it “being continuously committed” (see e.g. Judgement of the SAC, 5 Afs 7/2011–799, not in numbered paragraphs, or Decision of the President of the OPC of 3 January 2019, ÚOHS-R12,14/2017/ HS-00023/2018/310, paras 190–194). Moreover, according to relevant case law, the moment at which the OPC becomes aware an infringement needs to be interpreted as being based on objective facts or information and although they do not have to be particularly qualified facts or information, they need to be sufficient in order to allow a preliminary legal assessment that the infringement occurred. This means that the facts or information need to have a necessary degree of certainty and credibility to ensure that the administrative procedure is not initiated on the basis of information that is completely unverified, completely unclear, or clearly unreliable. (see e.g., Judgement of the Regional Court in Brno 30 Af 29/2016 – 262, not in numbered paragraphs). This results in a situation in which in order to determine the date from which the limitation period begins to run in a specific case it is necessary to assess the OPCs level of knowledge that the respective infringement has been committed on a case-by-case basis which could in turn negatively impact the legal certainty as nobody could precisely predict at which exact moment will the OPC gather enough information in order to obtain the necessary degree of certainty that an infringement could have been committed in each respective case. On the other hand, there has been the objective limitation period, which begins from the day the administrative offence was committed, which is in the case of continuing or repeated infringements interpreted as the day on which the infringement ceases. This is generally accepted even by the SAC in the abovementioned Judgements that contradict each other in regard to the beginning of the subjective limitation period (see Judgement of the SAC of 14 April 2015, 2 As 204/2014 – 71, para 46, 47 and Judgement of the SAC of, 5 Afs 7/2011 – 799, not in numbered paragraphs). This corresponds to how the beginning of the limitation period is determined in the case of continuing or repeated infringements according to Article 25(2) of Regulation 1/2003 and thus can also be determined as having a neutral effect on achieving the balance between, on the one hand, providing sufficient level of legal certainty and ensuring that cases are dealt with within a reasonable time and, on the other, the effective and efficient application of competition law. The authors are thus convinced that in relation to the previous legislation the existence of the objective limitation period with starting date determined this way is a sufficient guarantee to maintain a high level of legal

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