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Single and Continuous Infringement, Limitation Periods and Antitrust: Joined Cases T-101/05 and T-111/05

By Bartolus

The judgment in Joined Cases T-101/05 and T-111/05 BASF and UCB v. Commission is noteworthy for what it says about the problem of finding "a single and continuous infringement" of the antitrust rules.

According to Article 25 §1 b) of Regulation 1/2003, infringements of Articles 81 and 82 EC are time-barred after five years. The Commission therefore tries to circumvent that limitation period by contending that past conduct is part of "a single and continuous" infringement which is not time-barred.

In this particular case, the Commission tried to claim that a global cartel between North American and EU producers of choline chloride which lasted from October 1992 to April 1994 and which would have been time-barred was part of a single and continuous cartel between the EU producers alone in the EEA market from March 1994 to September 1998 and which was thus not time-barred. That permitted the Commission to increase the duration of the infringement by two years and thus to increase the amount of the fines imposed in its decision.

The Court of First Instance found that the Commission was wrong in this instance and the global cartel was separate from the EEA one and in reality time-barred.

The judgment of the Court of First Instance goes into a fairly long general expose of what is "a single and continuous infringement". It's not always easy to follow and the English is sometimes obscure. Nevertheless, it is the single best attempt so far by the EC courts to sort out the concept.

The Court explains that the concept of a single infringement can be applied either to the legal characterization of the anti-competitive conduct (see Case C-49/92 P Commission v. Anic Partecipazioni, paragraphs 112 to 114) or to the personal nature of the liability for the infringement. In the former case, the infringement remains the one and the same even if it undergoes some slight mutations over time. The latter case is not well explained but seems to mean the case of an undertaking knowingly participating at some stage and in some capacity or other in an infringement committed by others, thus contributing to the realization of an overall plan. In that case, the participating undertaking is liable to be punished for the whole infringement, rather like a person who aids and abets the commission of a criminal act by others (see Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and others v. Commission, paragraph 258).

The Court held that the existence of a common objective consisting in distorting the normal development of prices provides a ground for characterizing the different agreements and concerted practices as the constituent elements of a single infringement. The decisive question is whether those different agreements etc were complementary in nature.

But the Court introduces an important qualification. It finds that a single objective cannot be determined by a general reference to the generic distortion of competition on the market since, explains the Court, "an impact on competition... constitutes a consubstantial element of any conduct covered by Article 81 §1 EC". It is necessary to examine any circumstance capable of establishing or refuting that link such as the period of application, the content and the objective of the different agreements and concerted practices in issue.

Returning to the particular facts of this case, the Court of First Instance held that the global cartel involved the sharing of markets between the North American and EU undertakings while the later EEA wide cartel involved the EU producers only who shared customers between themselves. Thus, the Court found that the two cartels were not part of a single infringement and did not share a common objective.

Full post as published by EU Law Blog on January 15, 2008 (boomark / email).