The Single and Continuous
Infringement of Article
101(1) TFEU
LLM: EU Competition Law and Regulation 2016 – 2017
Author: Bart Pieter Friese
Student Number: 11046511
Supervisor: Rein Wesseling
Word Count: 14,380
Table of Contents
1. Introduction ... 1
1.1 Legal Problem ... 2
1.2 Structure and Methodology ... 3
2. Legal Basis, Rationale and Development of the Single and Continuous Infringement 5 2.1 Legal Basis: Article 25(2) Regulation 1/2003 ... 5
2.2 Alternative Legal Basis: A Matter of Procedural Expediency ... 7
2.3 Framing the European Cartel Infringement: The Development of the Single and Continuous Infringement ... 8
2.4 The Single and Continuous Infringement as a Procedural Rule ... 15
3. Identifying the Nature of the Beast ... 17
3.1 Requirements for the Finding of a Single and Continuous Infringement ... 17
3.2 Single and Continuous Infringement or Single and Repeated Infringement? ... 21
4. Single Overall Plan ... 24
4.1 The Emergency of Complementarity: Choline chloride ... 24
4.2 Complementarity is Not a Necessity ... 25
4.3 Complementarity as a Double-Edged Sword ... 27
5. Attribution of Responsibility: An Intentional Contribution and Limited Awareness 30 5.1 An Intentional Contribution ... 30
5.2 Limited Awareness, Proven or Presumed ... 32
6. Conclusion ... 37
Abstract
The notion of a single and continuous infringement was introduced by the Commission in its decision in Polypropylene. The concept intended to connect the legal prohibition embedded in Article 101(1) TFEU to the reality of modern-day cartel conduct. It was not, however, intended as a tool to render illegal conduct which was not already an infringement of Article 101(1) TFEU. Since its inception, the single and continuous infringement has been plagued with criticism that it is applied inconsistently to different forms of anticompetitive conduct. Little effort has been made to consolidate and make sense of the legal developments surrounding the concept. Against this background, this paper seeks to provide an analytical framework for the application of the single and continuous infringement.
1.
Introduction
The notion of a single and continuous infringement was first used by the Commission in 1986 in its decision concluding its investigation into the Polypropylene cartel.1 After conducting successful dawn raids on the premises of twelve petrochemical producers, the Commission was able to uncover the first indications of a cartel in the polypropylene market. The cartel spanned over a considerable length of time and documentary evidence of its existence was limited to individual meetings and circumstantial proof. These complications were further compounded by the fact that the cartel could be divided into distinct infringements and involved a number of participants whose participation and composition differed over the course of the cartel’s lifetime. Faced with what it viewed as an overall plan to control prices and share geographic markets in the polypropylene sector, the Commission employed the concept of a single and continuous infringement to capture “a whole complex of schemes, arrangements and measures decided in the framework of a system of regular meetings and continuous contact”.2 Instead of breaking the cartel into separate infringements, the
Commission used its fly on the wall knowledge of the cartel’s inner workings to establish the existence of a single overall infringement of Article 101(1) TFEU. On appeal, the CFI3 and the Court of Justice4 confirmed that where it would be artificial to subdivide into distinct agreements, concerted practices and decisions conduct that forms part of an overall plan restricting competition, the Commission is entitled to impute liability to each participant for the infringement as a whole, albeit limited to the period of time that they participated in the infringement.5
Since the Polypropylene litigation, the notion of a single and continuous infringement of Article 101(1) TFEU has been reaffirmed in a number of cases. The concept has been understood to mean that an undertaking may “be held responsible also in respect of the conduct of other undertakings in the context of the same infringement […] where it is shown that [it] intended, through its own conduct, to contribute to the common objectives pursued by all participants and that it was aware of the offending conduct planned or put into effect by other
1 Commission decision 86/398/EEC in Polypropylene, Case IV/31.149 [1986] OJ L 230/1.
Note that the concept was not coined the “single and continuous infringement” until Case T-10/89, Hoechst v Commission [1992] ECR II-629, paragraph 319.
2 Ibid, paragraph 80.
3 Case T-6/89, Enichem Anic SpA v Commission [1991] ECR II-1623. 4 Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125. 5 Ibid, paragraphs 82 – 83.
undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk”.6 The single and continuous infringement is an amorphous
concept that applies as much to the definition of an infringement as it does to the attribution of liability for that infringement. It thus provides the Commission with the means to treat an infringement as a whole and allows it to circumvent the burden of having to identify and assess each individual agreement, concerted practice and decision and prove to the requisite legal standard each undertaking’s participation in it. As a result, the concept “significantly reduces the burden that the Commission would otherwise face in establishing the fact of collusion, particularly where a cartel persisted for a long period, during which the nature of the collusion may have varied as between different parties or at different times”.7
1.1 Legal Problem
The Commission does not enjoy any particular discretion in framing its allegations of collusive behavior under the heading of a single and continuous infringement.8 The concept was intended to connect more efficiently and in a practical manner the legal prohibition embedded in Article 101(1) TFEU with the reality of modern-day cartel conduct. It reflects a policy of empathy by the European Courts for the Commission’s difficult task of establishing the existence of anticompetitive behavior on the basis of scarce evidential material.9 However, the concept was “not intended as a device to render illegal conduct that was not already an infringement of Article [101(1) TFEU]”.10 Perhaps most eloquently stated by Advocate General Vesterdorf: “when the existence of an agreement has been inferred from only a large
6 Case C-441/11 P, Commission v Verhuizingen Coppens [2012] ECLI:EU:C:2012:778,
paragraph 42; Joined Cases C-293/13 P and C-294/13 P, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce [2015] ECLI:EU:C:2015:416, paragraph 157.
7 M. Siragusa and C. Rizza (eds.), EU Competition Law Volume III. Cartels & Collusive
Behavior. Restrictive Agreements and Practices Between Competitors (Claeys & Casteels 2012), paragraph 1.7.
8 Case T-378/10, Masco Corp. and Others v Commission [2013] ECLI:EU:T:2013:469,
paragraph 57.
9 Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00, JFE Engineering and Others v
Commission [2004] ECR II-2501, paragraph 203. Upheld on appeal in Joined Cases 403/04 P and C-405/04 P, Somitomo Metal and Others v Commission [2007] ECR I-729, paragraph 50.
10 J. Joshua, ‘Single Continuous Infringement of Article 81 EC: Has the Commission Stretched
the Concept Beyond the Limit of Its Logic?’ (2009) European Competition Journal 5 no. 2, page 453.
volume of evidential material, one must be particularly careful not to deduce from that concept something which was not there before”.11
Since its inception, the concept has been plagued with criticism that it is inconsistently applied to various forms of conduct.12 A particular issue of controversy in this context is the extent to which the Commission is required to discharge its burden of proof in respect of each aspect of the single and continuous infringement and the standard of proof it must subsequently meet in order to impute knowledge of the overriding objectives of the infringement to each participating undertaking. In a recent set of judgments in Smart-card chips13 and Bathroom fittings14, the European Courts exacerbate these complaints by stretching the ambit of the single and continuous infringement to include situations in which an undertaking (i) was not aware of all the conduct put into place by other participants, and (ii) was not active in the market where one or more parts of the infringement took place.
In light of this narrative, this paper examines the single and continuous infringement, its nature and the manner in which the concept has evolved since its introduction in EU competition law in 1986. In particular, this paper asks whether the concept’s recent application exhibits what is in legal literature referred to as “the tendency of a principle to expand itself to the limit of its logic”.15
1.2 Structure and Methodology
This paper will be an explicative document that provides an analytical framework for the application of the concept of a single and continuous infringement. Despite being a prominent tool in the Commission’s enforcement arsenal, little effort has been made to consolidate and make sense of the voluminous body of jurisprudence on the concept. I intend to provide an analysis of the European Courts’ recent judgments in order to shed light on the
11 Opinion in Case T-1/89, Rhône-Poulenc v Commission [1991] ECR II-867, page 949. 12 See inter alia: K. Seifert, ‘The Single Complex and Continuous Infringement – “Effet”
Utilitarianism?’ (2008) European Competition Law Review 29(9), pages 546 - 556; D. Bailey, ‘Single, Overall Agreement in EU Competition Law’ (2010) Common Market Law Review no. 47, pages 473 - 508; D. Riley, ‘Revisiting the Single and Continuous Infringement of Article 101: The Significance of Anic in a New Era of Cartel Detection and Analysis’ (2014) World Competition Law and Economics Review 37 no. 3, pages 293 – 318.
13 Case 758/14, Infineon Technologies v Commission [2016] ECLI:EU:T:2016:737; Case
T-762/14, Philips v Commission [2016] ECLI:EU:T:2016:738.
14 See inter alia: Case C-625/13 P, Villeroy & Boch AG v Commission [2017]
ECLI:EU:C:2017:52.
15 B. N. Cardozo, The Nature of the Judicial Process Lecture II. The Methods of History,
nature and meaning of the single and continuous infringement in EU competition law. Although it is true that the single and continuous infringement may also extend to conduct falling foul of Article 102 TFEU16, this paper will limit its scope to the application of the concept in the context of proceedings under Article 101(1) TFEU.
In Chapter 2 I will account for the legal basis, rationale and development of the single and continuous infringement by examining legal literature and early jurisprudence of the CFI and the Court of Justice up until the judgments in Polypropylene. In particular, I will demonstrate that the concept was intended to deal with the negative consequences stemming from delinquency inflation.
In Chapter 3 I will define the requirements necessary to establish the existence of a single and continuous infringement. To do so, I will consolidate the jurisprudence of the European Courts in relation to the concept. Where available, I will also take account of legal literature regarding the single and continuous infringement.
In Chapters 4 and 5 I will provide an analysis of recent case law with respect to each of the absolute requirements necessary for the finding of a single and continuous infringement. Chapter 4 will examine issues relating to the definition and scope of the single and continuous infringement (also known as the single overall plan), whereas Chapter 5 will deal with issues relating to the attribution of responsibility for that infringement. The legal sources will comprise recent judgments issued by the European Courts.
Finally, in Chapter 6 I will conclude by providing an overview of the role played by the concept of a single and continuous infringement in EU competition law.
16 See inter alia: Commission decision 2006/857/EC in AstraZeneca, Case
COMP/A.37.507/F3 [2005] OJ L 332/24, upheld in on appeal by the Court of Justice in Case C-457/10 P, AstraZeneca v Commission [2012] ECLI:EU:C:2012:770.
2.
Legal Basis, Rationale and Development of the Single and
Continuous Infringement
This chapter will begin by discussing the legal basis and rationale of the single and continuous infringement. I will show that, although lacking a concrete legal basis, the single and continuous infringement was intended to solve issues brought about by delinquency inflation. Rather than creating a new form of infringement, the concept functions as a procedural rule that allows the Commission to treat cartels as a whole – instead of artificially breaking them apart into separate infringements – and to attribute liability to all participants accordingly.
2.1 Legal Basis: Article 25(2) Regulation 1/2003
Although the notion of a single and continuous infringement does not find any concrete legal basis in Union law, a legislative reference to its existence can be found in Article 25(2) Regulation 1/2003. That provision imposes a five-year limitation period on the Commission’s competence to impose sanctions for conventional infringements and “continuing and repeated infringements” of Article 101(1) TFEU.17 The Commission’s competence to impose sanctions for conventional infringements is confined to a five-year period calculated from the date on which the infringing conduct commenced, whereas in the context of continuing and repeated infringements the five-year limitation period is calculated from the date on which the participants ceased their offending conduct.
Article 25(2) Regulation 1/2003 aims to provide the Commission with an appropriate window of time to impose sanctions where “several undertakings participated in an infringement in which continuous conduct in pursuit of a single economic aim was intended to distort competition and also [where] individual infringements [are] linked to one another by the same object and the same undertakings”.18 By extending the limitation period for continuing and repeated infringements, the Commission is entitled to impose a fine for infringements of Article 101(1) TFEU that would otherwise – if the Commission were forced to artificially find that there were several conventional infringements of Article 101(1) TFEU
17 The terminology “continuing and repeated infringements” was already used in Article 1(2)
Regulation 2988/74.
18 Case T-53/03, BPB v Commission [2008] ECR II-1333, paragraph 257; Case T-27/10, AC
instead of a single continuing or repeated infringement – be time-barred.19 In view of such a
comparison, the provision can be seen as an expression of empathy for the Commission’s difficult task of unraveling a cartel’s inner workings.
Article 25(2) Regulation 1/2003 cannot, however, constitute an appropriate legal basis for the concept of a single and continuous infringement insofar as that concept concerns the material scope of Article 101(1) TFEU. The provision relates to the calculation of the limitation period, whereas the notion of a single and continuous infringement (and the single and repeated infringement) concerns the nature of the infringement and the attribution of responsibility for that infringement. The concept ultimately enables the Commission to classify multiple instances of conduct under the umbrella of a single infringement and to attribute responsibility for that infringement to all participants accordingly. Although Article 25(2) Regulation 1/2003 recognizes the temporal element of modern-day cartel infringements, it does not extend to the establishment or scope of an infringement under Article 101(1) TFEU, nor does it provide for a broader interpretation of the provision’s material scope. Article 25(2) Regulation 1/2003 can therefore not constitute an appropriate legal basis for the notion of a single and continuous infringement.20
Notwithstanding its limitations as a legal basis for the single and continuous infringement, Article 25(2) Regulation 1/2003 is an acknowledgment of the fact that a continuing or repeated infringement tempers with the burden generally weighing on the Commission in enforcing the legal prohibition contained in Article 101(1) TFEU. More importantly, the provision recognizes that continuing and repeated infringements of Article 101(1) TFEU are not necessarily born fully-grown, but may instead develop organically and evolve over time.
19 See: Commission decision 2005/566/EC in Choline chloride, Case COMP/E-2/37.533
[2005] OJ L 190/22. Note that on appeal in Joined Cases T-101/05 and T-111/05, BASF and UCB v Commission [2007] ECR II-4949, the CFI held that the global cartel and European cartel did not constitute a single and continuous infringement and the Commission was therefore not able to impose a single fine for both cartels. Moreover, as a result of the judgment, the Commission was time-barred from imposing sanctions on undertakings for participation in the global cartel.
20 K. Seifert, ‘The Single Complex and Continuous Infringement – “Effet” Utilitarianism?’
2.2 Alternative Legal Basis: A Matter of Procedural Expediency
As the single and continuous infringement finds no concrete legal basis in Union law, the Court of Justice was forced to deduce its existence from the “widespread conception in the legal orders of the Member State[s] concerning the attribution of responsibility for infringements committed by several perpetrators according to their participation in [an] infringement as a whole”.21 Accordingly, the single and continuous infringement corresponds to the doctrine in the criminal law systems of the Member States that “whenever an offender commits a number of acts linked by the same subjective element, one should not punish each act separately (and add the corresponding penalties) but together by imposing a single penalty and applying a single limitation period”.22 The application of the single and continuous infringement does not involve any new legal concept, but consists of a characterization of facts according to a common anticompetitive objective. The designation of conduct as a single and continuous infringement aims to reflect in legal terms the interrelationship between several acts of infringing conduct: although not the mere sum of multiple infringements, it encompasses nothing more than that.23 As a consequence of viewing an infringement as a whole, it is not necessary to attribute liability for each instance of infringing conduct, but rather for the single and continuous infringement as such.24
As a matter of procedural rationalization, it is legally intuitive to hold an undertaking responsible for an infringement as a whole, where it is established that the undertaking participated directly in all instances and forms of anticompetitive conduct in pursuit of the same overall plan. In such a situation, the single and continuous infringement entitles the Commission to rely on the premise that the individual acts constitute manifestations of the same anticompetitive desire shared by all undertakings in a cartel. Considering the fact that Article 101(1) TFEU prohibits agreements as well as the implementation of the agreed terms, it is not inconceivable that a single infringement may consist of multiple acts of conduct.25 Instead of tackling each individual infringement on its own, the Commission is thus able to
21 Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 84. 22 F. Castillo de la Torre and E. Gippini Fournier, Evidence, Proof and Judicial Review in EU
Competition Law (Edward Elgar Publishing 2017), paragraph 3.010.
23 Opinion in Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125,
paragraph 84.
24 Joined Cases T-101/05 and T-111/05, BASF and UCB v Commission [2007] ECR II-4949,
paragraph 160 – 161.
treat the infringement as a single whole. Viewed in such a manner, the single and continuous infringement is no more than a procedural rule that characterizes collusive conduct as constituting a single overall scheme. It relieves the Commission of its evidentiary burden to the extent that it provides for the procedural means to establish the existence of one overall infringement on the basis of continuity and complementarity between various instances of offending conduct. Such a construction does not contravene the principle of personal liability, according to which each participant in an infringement can only be held responsible for its own participation, as each undertaking that is held accountable was involved in each instance of anticompetitive conduct.26
Less intuitive, however, is the situation in which an undertaking is held responsible for an infringement as a whole – albeit limited to its participation in time – where it participated directly in only some of the conduct comprising a single and continuous infringement or where it was not active on all markets on which the infringing conduct was implemented.27 It would seem that such an interpretation of the single and continuous infringement would ignore the fact that the scope of Article 101(1) TFEU strictly encompasses agreements, concerted practices and decisions. Those concepts form the material scope of Article 101(1) TFEU and, ultimately, establish the larger contours of the European conception of a ‘cartel infringement’: without an agreement, concerted practice or decision, there cannot be an infringement of Article 101(1) TFEU.28 If an undertaking did not participate in every agreement, concerted practice and decision constituting a single and continuous infringement, how can that designation result in it being implicated in and held responsible for the infringing conduct of other undertakings? In such a scenario, does the single and continuous infringement still constitute a mere procedural rule adopted for interpretive purposes, or does the concept affect the material ambit of Article 101(1) TFEU and breach the principle of personal responsibility?
2.3 Framing the European Cartel Infringement: The Development of the
Single and Continuous Infringement
These questions are best answered by examining the manner in which the interpretation of the material elements of Article 101(1) TFEU has developed over time. In the early days after the entry into force of the Treaty of Rome, the Commission’s decision-making practice
26 Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 84. 27 Ibid, paragraph paragraphs 72 – 92.
under the former Article 85(1) EEC Treaty “fostered a methodology of fitting the clauses of a commercial contract into one or another compartment marked with a convenient label”.29
During these times, the Commission was primarily concerned with assessing for compatibility with the prohibition embedded in the EC Treaty openly-practiced commercial arrangements that came to its notice through consensual notification. The Commission’s legal analysis focused on the effects that such arrangements had on the market, and thus little controversy arose as to whether an infringement constituted an agreement, concerted practice or a decision, or whether an undertaking participated in such an infringement.30
Over the course of approximately sixty years, however, EU competition law has progressed from a regulatory regime based on the consensual notification of cartel arrangements to a categorization of cartel activity as egregious offending behavior. What was once viewed as a cause for mild regulation and consensual notification procedures is now systematically categorized as a flagrant infringement of Article 101(1) TFEU. As a consequence, undertakings have become well-aware of their own wrong-doing and the impending sanctions that the law prescribes for their conduct.31 With billion dollar fines now a reality32, modern-day cartels have evolved into clandestine operations that shroud their activities in secrecy and maintain documentation of their meetings and arrangements to a minimum. Instead of notifying their arrangements on a consensual basis, undertakings have retreated to the underground domain to devise defiant and obstructive strategies to evade detection of such arrangements by the Commission. This process is known in legal literature as delinquency inflation: “a progression from consensual regulation, to clear prohibition, accompanied by an increasingly covert and self-consciously bad attitude on the part of those engaging in the conduct”.33
29 J. Joshua and S. Jordan, ‘Combinations, Concerted Practices and Cartels: Adopting the
Concept of Conspiracy in European Community Competition Law’ (2004) Northwestern Journal of International Law & Business, page 648.
30 See: C. Harding and J. Joshua, Regulating Cartels in Europe (Oxford University Press 2nd
edition 2010), pages 149 – 150.
31 R. Whish and D. Bailey, Competition Law (Oxford University Press 8th edition 2015), pages
546 – 547.
32 See: Commission decision in Flat glass, Case COMP/39.165 [2007] OJ C 127/9.
33 C. Harding and J. Joshua, Regulating Cartels in Europe (Oxford University Press 2nd edition
2.3.1 The Court’s Judgments in Quinine and Dyestuffs
Faced with the increasingly surreptitious behavior of undertakings, the Commission abandoned its practice of compartmentalizing cartel arrangements into the neatly defined concepts of an agreement, concerted practice and decision. Delinquency inflation sparked a need to operationalize these material elements to connect the prohibition embedded in Article 101(1) TFEU with the reality of modern-day cartel conduct. The effort of the Court of Justice to render obsolete any discussion regarding the form in which infringements of Article 101(1) TFEU manifest themselves can be traced back to its judgments in Quinine34 and Dyestuffs35. For the first time in its decision-making practice, the Commission was confronted with particularly discreet cartels that tried to inconspicuously undermine the limits of its enforcement powers. In its decisions, the Commission ultimately relied on a combination of legal presumptions and market-based evidence to establish the fact of collusion.
On appeal, the undertakings complained that the Commission had not adequately demonstrated the existence of an agreement, concerted practice or decision. The Court of Justice held in Quinine that the Commission is not required to rely on the notion of a concerted practice to bring within the scope of Article 101(1) TFEU what it viewed as an informal ‘gentlemen’s agreement’: an agreement constitutes any expression by undertakings of a joint intention to restrict competition on the market, also known as a concurrence of wills between undertakings.36 The Court of Justice clarified in Dyestuffs that, ultimately, the distinction between what constitutes on the one hand, an agreement and a decision, and on the other hand, a concerted practice, is legally meaningless: the distinction merely seeks “to bring within the prohibition of [Article 101(1) TFEU] a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition”.37 If the distinction in the material scope of Article 101 TFEU meant anything at all, it must be that the concept of a concerted practice functions as a safety-net for those forms of conduct that escape the scope of an agreement. In its judgment in Dyestuffs, the Court of Justice further stressed that the existence of an agreement or concerted practice “can only be correctly
34 Case 41/69, ACF Chemiefarma v Commission [1970] ECR 661.
35 Case 48/69, Imperial Chemical Industries v Commission [1972] ECR 619. 36 Case 41/69, ACF Chemiefarma v Commission [1970] ECR 661., paragraph 112.
determined if the evidence upon which the contested decision is based is considered, not in isolation, but as a whole”.38
By blurring the legally defined lines between what constitutes an agreement, concerted practice and a decision respectively, the Court of Justice also recognized the potential for several agreements to interact to form one overall infringement. In its earlier judgment in Quinine, the Court of Justice discarded complaints that the Commission illegitimately treated an export agreement and a gentlemen’s agreement as an indivisible whole. The Court of Justice held that, where breach of an anticompetitive agreement ipso facto constitutes a breach of another anticompetitive agreement, the Commission is entitled to treat the agreements as a single infringement of Article 101(1) TFEU.39 When read together with the Court of Justice’s judgment in Dyestuffs, it is clear that the focus of the Commission’s investigation should no longer be on finding an agreement, concerted practice or decision respectively, but rather to demonstrate whether “a partnership [exists] for unlawful purposes with all the possible disagreements about methods that may occur […] without affecting the cohesion of the shared purpose and design”.40
2.3.2 The Court´s Judgments in Polypropylene
The Court of Justice ultimately devised the concept of a single and continuous infringement in the context of Polypropylene to allow for a more dynamic interpretation of the material elements of Article 101(1) TFEU without affecting its material ambit: the concept did not intend to render illegal conduct which was not already an infringement of Article 101(1) TFEU.41 By allowing the Commission to view infringements in a holistic manner, the single
and continuous infringement sought to render obsolete any discussion regarding the form in which anticompetitive conduct manifests itself and in such a manner adapt the prohibition embedded in Article 101(1) TFEU to the effects of delinquency inflation. This approach would not only solve issues relating to the form that infringements come in, but would simultaneously seek to nullify any discussion regarding “who did what” within the continuous nature of a cartel.
38 Ibid, paragraph 68.
39 Case 41/69, ACF Chemiefarma v Commission [1970] ECR 661, paragraph 113.
40 J. Joshua, ‘Attitudes to Anti-Trust Enforcement in the EU and US: Dodging the Traffic
Warden, or Respecting the Law’ (1995) Fordham Corporate Law Institute, page 85.
41 J. Joshua, ‘Single Continuous Infringement of Article 81 EC: Has the Commission Stretched
the Concept Beyond the Limit of Its Logic?’ (2009) European Competition Journal 5 no. 2, page 452.
In its judgments in Polypropylene, the Court of Justice accepted that an infringement could involve simultaneously factual elements that are characterized as an agreement and a concerted practice. Such dual classification of conduct is “to be understood not as requiring, simultaneously and cumulatively, proof that each of those factual elements presented the constituent elements of both an agreement and a concerted practice, but rather as referring to a complex whole comprising a number of factual elements some of which were characterized as agreements and others as concerted practice”.42 The Commission is therefore only required to establish with respect to each factual element comprising the infringement, whether it constitutes an agreement, concerted practice or a decision, but not with respect to the infringement as such.43
An infringement may therefore result not only from an isolated act but also from a series of acts or from continuous conduct. The fact that one or several elements of that series of acts could also constitute in themselves an infringement of Article 101 TFEU is irrelevant in that regard.44 By recognizing the potential for an infringement to be brought about by numerous acts which manifest themselves into an infringement in a continuum of activity, the Court of Justice underscored that cartels operate on the basis of tacit understandings, as much as they rely on express assurances. It made clear that, for the purpose of assessing behavior under Article 101(1) TFEU, “the only essential thing is the distinction between independent conduct, which is allowed, and collusion, which is not, regardless of any distinction between types of collusion”.45
The notion of “an agreement and/or a concerted practice” was thus deemed appropriate to cover not only the terms expressly agreed by the parties, but also the implementation of those terms on the market. The concept captures the idea that “it would be artificial to split up such continuous conduct, characterized by a single purpose, by treating it as consisting of several separate infringements, when what was [actually] involved was a single infringement which progressively manifested itself in both agreements and concerted practice”.46 The
42 Case T-6/89, Enichem Anic SpA v Commission [1991] ECR II-1623, paragraph 205. Upheld
on appeal in Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125, paragraphs 111 – 114.
43 Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 135. 44 Ibid, paragraphs 81 and 198.
45 Ibid, paragraph 108. 46 Ibid, paragraphs 82.
concepts of an agreement and concerted practice are therefore fluid and may overlap. As a result, a cartel may constitute an agreement and a concerted practice at the same time.47
Although Article 101(1) TFEU does not envision a specific category for such continuing infringements, undertakings cannot organize their arrangements in a form that would undermine the prohibition’s effect. The Court of Justice therefore urged that the dual characterization of an infringement does not create a new category of infringing conduct under Article 101(1) TFEU, but instead “merely entails acceptance of the fact that, in the case of an infringement involving different forms of conduct, these may meet different definitions whilst being caught by the same provision and being all equally prohibited”.48 The concepts of an agreement and a concerted practice are therefore “intended to catch forms of collusion that have the same nature and are only distinguishable from each other by their intensity and the forms in which they manifest themselves”.49
2.3.3 Capturing Continuity and the Conspiratorial Aspect of Cartels
The Court of Justice also recognized that each undertaking may play its own role in a cartel, while still being a party to the same infringement.50 As illustrated by Advocate General Vesterdorf in the context of Polypropylene: “if one considers how the alleged cartel probably worked in practice, it is plain to see that it can be extraordinarily difficult to determine in detail the degree of involvement of each party. Who has the idea of taking this or that initiative? Who sought to persuade those others who were perhaps less enthusiastic? Who came to the meetings best prepared? And so on. It is self-evident that where there are no admissions on the part of the participating undertakings, it is often not possible to unravel all those threads in an administrative procedure in which most of the evidence is based on written documents. […]. For technical reasons of a legal nature, it may therefore be justifiable to make do, if necessary, with a slightly broader description of each party’s participation”.51
Following this approach, the Court of Justice held in Polypropylene that “the fact that an undertaking has not taken part in all aspects of an anticompetitive scheme or that it played only a minor role in the aspects in which it did participate” is irrelevant for establishing whether
47 Case T-7/89, Hercules v Commission [1991] ECR II-1711, paragraph 264.
48 Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 133. 49 Ibid, paragraph 131.
50 Ibid, paragraph 80.
a single infringement exists.52 Such an approach does not contravene the presumption of
innocence or the principle of personal liability as it merely entails that, although an undertaking may not have taken the reins in a cartel, it may nonetheless be held responsible for helping bring about the infringement as a whole. By approaching evidence in a holistic manner, the single and continuous infringement renders obsolete any discussion relating to the form in which infringements manifest themselves and the degree of participation of each undertaking in that infringement: “[t]he subsequent actions of the conspirators are not only the usual evidence by which the initial agreement is proved, but may also form part of the crime of conspiracy itself”.53
The Court of Justice held in Polypropylene that a classification of an infringement as an agreement and/or concerted practice cannot be called into question by the fact that the various acts comprising the infringement could also individually and of themselves constitute infringements of Article 101(1) TFEU.54 As such, the Commission must merely “show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk”, if it wishes to attribute to it a single and continuous infringement.55 As the nature and degree of participation of each undertaking is accounted for in the calculation of the eventual fine, the Court of Justice deems it irrelevant that the Commission is unable to establish that an undertaking did not directly participate in all instances of anticompetitive conduct.56
One must, however, be particularly careful in using the level of the fine as an excuse to lump together various instances of conduct into a single and continuous infringement and impute responsibility for the infringement on that basis. After all, the finding of a single and continuous infringement not only directly influences the level of the fine (although it is true that the application of the single and continuous infringement may in fact benefit an
52 Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 90. 53 J. Joshua, ‘Single Continuous Infringement of Article 81 EC: Has the Commission Stretched
the Concept Beyond the Limit of Its Logic?’ (2009) European Competition Journal 5 no. 2, page 457.
54 Ibid, paragraph 81.
55 Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 84. 56 Ibid, paragraph 90.
undertaking), but it also affects the extent to which the participants are liable for damages arising out of their conduct.
2.4 The Single and Continuous Infringement as a Procedural Rule
Viewing a cartel’s functioning in such a manner introduces – from a legal interpretative perspective – an element of continuity which very much resembles the “conspiracy” concept that is common to competition law analysis in the United States.57 Accordingly, by focusing as much on the element of consensus as it does on the partnership that endures as a consequence of such consensus, the single and continuous infringement captures the entire lifetime of collusive arrangements.58 This common law import has provided the Commission with the means that it had hitherto been lacking to interpret evidence in a holistic manner, rather than artificially separating conduct that forms part of the same anticompetitive desire. The single and continuous infringement is thus a procedural rule that addresses multiple legal issues brought about by delinquency inflation. It is ultimately nothing more than an interpretative tool that relieves the Commission of the burden of having to statically apply the material scope of Article 101 TFEU to conduct that is inherently clandestine and secretive.59
Although it is true, in accordance with Article 2 Regulation 1/2003, that it is incumbent on the Commission to prove to the requisite legal standard the existence of circumstances constituting an infringement, the single and continuous infringement allows it to shift the subjective burden of proof to the undertaking that stands accused.60 In Cement, the Court of Justice ultimately accepted that even where the Commission finds evidence of an infringement, it is usually fragmentary and sparse, such that it is necessary to establish certain facts by deduction.61 Hence, “the existence of an anti-competitive practice or agreement must be
57 See: 15 U.S. Code § 1 – Trusts, etc., in restraint of trade illegal; penalty (Sherman Act as
amended by the Clayton Act).
58 United States v Kissel 218 US 608 [1910]: “[a] conspiracy in restraint of trade is different
from and more than a contract in restraint of trade. A conspiracy is constituted by an agreement, it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership, although constituted by a contract, is not a contract, but is a result of it. The contract is instantaneous, the partnership may endure […].”
59 Opinion in Case C-413/13 P, Intel v Commission [judgment not yet issued], paragraphs 181
– 183.
60 F. Castillo de la Torre, ‘Evidence, Proof and Judicial Review in Cartel Cases’ (2009) World
Competition Law and Economics Review 32 no. 4, page 511; D. Bailey, ‘Presumptions in EU Competition Law’ (2010) European Competition Law Review 31(9), pages 21 – 22.
61 Joined Cases C-204/00, C-205/00, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P,
inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules”.62 In such a situation, it is on the undertaking that stands accused to establish that the evidence relied on by the Commission is inconclusive: “it is not necessary for the [undertaking] to set up a positive case that a fact in issue found by the Commission did not exist, [but] merely that the Commission was not in possession of evidence which was sufficiently conclusive or persuasive of the existence of the fact found”.63
Hence, the single and continuous infringement was intended to act as a rebuttable legal presumption, rather than being a concept that affects the material reach of Article 101(1) TFEU.
62 Ibid, paragraph 57.
63 J. Joshua, ‘Proof in Contested EEC Competition Cases: A Comparison with the Rules of
3.
Identifying the Nature of the Beast
In the previous chapter I indicated that the single and continuous infringement is a procedural rule that was adopted to facilitate the Commission in discharging its evidential burden. Despite knowing what the single and continuous infringement originally intended to achieve, practitioners struggle to define the requirements that are necessary for its successful application. This chapter will account for the elements necessary for a successful finding of a single and continuous infringement by consolidating the Court of Justice’s voluminous body of jurisprudence on the subject.
3.1 Requirements for the Finding of a Single and Continuous Infringement
Since the Polypropylene judgments, the European Courts have consistently held that an infringement of Article 101(1) TFEU “can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision […]. An undertaking which has participated in a single and complex infringement of that kind by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may also be [held] responsible also in respect of the conduct of other undertakings in the context of the same infringement, throughout the period of its participation. That is the position where it is shown that the undertaking intended […] to contribute to the common objectives pursued by all other participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could have foreseen it and was prepared to take the risk”.64Although the legal test itself is clear, the weight and relevance of each element seems to depend heavily on the facts and circumstances of each case. Nevertheless, in the jurisprudence of the European Courts a number of legal requirements can be identified that are applied in determining whether the evidence – when viewed as a whole – supports the finding of a single and continuous infringement. From the jurisprudence of the Court of Justice, it is
64 Inter alia Case C-441/11 P, Commission v Verhuizingen Coppens [2012]
ECLI:EU:C:2012:778, paragraphs 40 – 41; Joined Cases C-293/13 P and 294/13 P, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce [2015] ECLI:EU:C:2015:416, paragraphs 156 – 157.
evident that there are two sets of factors which the Commission must take into account for a successful finding of a single and continuous infringement: (i) absolute requirements, and (ii) complementary factors.
3.1.1 Absolute Requirements
There are three absolute requirements which must be met in order for a single and continuous infringement to exist:
– The existence of an overall plan pursuing a single common objective (a single overall plan);
– An intentional contribution by each undertaking to the single overall plan through its own conduct that restricts competition by object (an intentional contribution); and – The undertaking held liable must have been aware of or ought to have reasonably
foreseen the unlawful conduct put into affect by the other participants and was prepared to accept the risk (limited awareness, proved or presumed).65
These requirements are cumulative: in the absence of one of the requirements, the Commission is precluded from finding that a single and continuous infringement exists.66
The absolute requirements ultimately ensure that the scope of Article 101(1) TFEU is not extended to render illegal conduct that was not already an infringement. By emphasizing that there must be a single overall plan, the Court of Justice is merely conveying in different terms that undertakings must have expressed their joint intention to restrict competition on the market, otherwise known as a concurrence of wills.67 Even where the Commission cannot
prove that parties reached an agreement within the meaning of Article 101 TFEU, it may rely on the concept of a concerted practice to catch “any direct or indirect contact between [undertakings], the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they have decided to adopt or contemplate adopting on the market”.68
65 Case T-204/08, Team Relocations and Others v Commission [2011] ECR II-3569, paragraph
37. This excerpt was approved on appeal in Case C-444/11 P, Team Relocations and Others v Commission [2013] ECLI:EU:C:2013:286, paragraph 51.
66 D. Riley, ‘Revisiting the Single and Continuous Infringement of Article 101: The
Significance of Anic in a New Era of Cartel Detection and Analysis’ (2014) World Competition Law and Economics Review 37 no. 3, page 297.
67 Case T-41/96, Bayer v Commission [2000] ECR II-3383, paragraphs 67 – 69.
68 Joined Cases 40 to 48/73, 50/73, 54 to 56/73, 111/73, 113/73 and 114/73, Coöperatieve
Moreover, for the finding of a single overall plan, the Commission cannot rely on a general reference to the distortion of competition. Any other interpretation would lead to the conclusion that “different types of conduct which relate to a particular economic sector and are prohibited by Article [101] TFEU would have to be systematically characterized as constituent elements of a single infringement”.69 The Commission must therefore show that an undertaking intentionally contributed to the single and continuous infringement by its own conduct: it must be party to at least one anticompetitive agreement, concerted practice or decision in order to be caught up in the larger conspiracy.
For the purpose of attributing the responsibility to each undertaking for the single overall agreement, it is necessary to establish that it was aware of or could reasonably have foreseen the unlawful conduct put into effect by other undertakings. By analogy, an undertaking may be held liable for entering into an agreement by the mere fact that it attended a meeting with its competitors where information was exchanged that reduced uncertainty as to their future behavior on the market.70 In effect, the requirement of limited awareness demonstrates that the concept of a single and continuous infringement merely ensures that “the term agreement is […] appropriate not only to cover the terms expressly agreed but also the implementation of what [has] been agreed”.71 It intends to nullify any discussion as to “who did what” within the cartel.
It is also important to recognize that the Court of Justice draws a conceptual distinction between the assessment of the nature and scope of the single and continuous infringement and the attribution of liability for that infringement.72 The nature and scope of the infringement are
defined by the single overall plan, whereas the attribution of liability for that infringement requires that (i) an undertaking infringed Article 101(1) TFEU in pursuit of the same objective as the other participants (an intentional contribution), and (ii) that it knew or ought to have reasonably foreseen the conduct put into place by other undertakings (limited awareness). In such a manner, the Court of Justice seeks to remove from the ambit of the single and continuous infringement any peripheral undertakings that are not co-perpetrators in the same infringement.
69 Joined Cases T-101 and 111/05, BASF and UCB v Commission [2007] ECR II-4949,
paragraph 180.
70 Case 141/94, Thyssen Stahl v Commission [1999] ECR II-347, paragraph 177; Case
T-202/98, Tate & Lyle v Commission [2001] ECR II-2035, paragraph 54.
71 Commission decision 94/599/EEC in PVC, Case IV/31.865 [1994] OJ L 239/14, paragraph
133.
72 Case T-758/14, Infineon Technologies v Commission [2016] ECLI:EU:T:2016:737,
However, the distinction may also lead to some rather unfortunate enforcement outcomes, which raises questions of reciprocity, as demonstrated in Bananas.73 From that judgment, it
appears that the Court of Justice is willing to accept that undertaking A is liable for its conduct with undertaking B in the context of a single and continuous infringement, even though undertaking B is not liable for that same single and continuous infringement, but only for a conventional infringement of Article 101(1) TFEU.
3.1.2 Complementary Factors
The complementary factors constitute objective criteria which are relevant in establishing the nature and scope of the infringement. In particular, these factors guide the Commission in assessing whether the various instances of conduct constitute multiple infringements of Article 101(1) TFEU or whether they are united by the same single overall plan, and thus constitute a single and continuous infringement.74 According to the early jurisprudence of the Court of Justice, complementary factors are assessed to determine whether each instance of infringing conduct is “intended to deal with one or more consequences of the normal pattern of competition and by interacting, contributed to the realization of the set of anticompetitive effects intended by those responsible, within the framework of a global plan having a single objective”.75 The European Courts have endorsed a number of considerations that are relevant in this assessment:
– The existence of a central group of undertakings participating in various elements of the infringement;
– The presence of cross-product and umbrella associations covering multiple product subgroups;
– A common customer base at the wholesale level and/or retail level; – The identical nature of various instances of conduct in form and/or time;
– The presence of links between price increases and market conditions (including centralized pricing policies);
– The presence of cross-border links;
73 Case T-587/08, Fresh Del Monte Produce v Commission [2013] ECRI:EU:T:2013:129;
Joined cases C-293/13 and C-294/13 P, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce [2015] ECLI:EU:C:2015:416.
74 Case T-378/10, Masco Corp. and Others v Commission [2013] ECLI:EU:T:2013:469,
paragraph 23.
75 Joined Cases T-101 and 111/05, BASF and UCB v Commission [2007] ECR II-4949,
– The same representatives of the undertakings concerned are involved with multiple aspects of the cartel;
– The system of monitoring the arrangements is the same with regard to multiple products;
– A relationship between the product subgroups; and
– The stability of coordination over time, which followed the same recurring pattern even though the cartel itself evolved.76
These factors constitute a non-exhaustive list of objective considerations that are applied in establishing whether various acts of infringing conduct constitute part of a single overall plan. In the absence of one or more of these complementary factors, the Commission is not necessarily precluded from making a finding of a single infringement.77
3.2 Single and Continuous Infringement or Single and Repeated
Infringement?
Article 25(2) Regulation 1/2003 draws a clear distinction between the concept of a continuous infringement and the concept of a repeated infringement.78 Although the concepts
both denote the existence of a single overall plan, in the context of a single and continuous infringement the Commission must show that there is continuity linking the various acts of conduct. Hence, in the case of single and continuous infringements, the General Court has consistently held that the Commission must adduce evidence of facts sufficiently proximate in time to establish that an infringement continued uninterruptedly between two specific dates.79 In the context of a cartel lasting several years, the Court of Justice has held that a timeframe of
76 The General Court provides a non-exhaustive summary of the complementary factors in Case
T-378/10, Masco Corp. and Others v Commission [2013] ECLI:EU:T:2013:469, paragraphs 40 – 51.
77 See: Commission decision in Bananas, Case COMP/39.188 [2008] OJ C 189/12. Upheld on
appeal in Case T-587/08, Fresh del Monte Produce v Commission [2013] ECLI:EU:T:2013:129 and Joined Cases C-293/13 P and C-294/13 P, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce [2015] ECLI:EU:C:2015:416. The decision is infamous for the scarce number of complementary factors adduced by the Commission in support of its findings.
78 This distinction can be observed by use of the conjunction “or” in Article 25(2) Regulation
1/2003. See: Case T-154/09, Manuli Rubber Industries v Commission [2013] ECLI:EU:T:2013:260, paragraph 198.
79 Case 43/92, Dunlop Slazenger v Commission [1994] ECR II-441, paragraph 79; Case
several months is irrelevant for the purpose of assessing continuity.80 Due to the long duration
of a cartel’s operations, continuity may be presumed even where the Commission is not able to adduce evidence for a particular period of its duration. The fact that undertakings have not publicly distanced themselves may, for example, constitute evidence that there was continuity between the various instances of infringing conduct.81 In such circumstances the finding of continuity is established on the basis of a rebuttable presumption.
In its Marine hoses decision, the Commission stated that “even in case of […] a period of low or limited activity of two years, a single and continuous infringement may be found provided that a full review of the characteristics of the cartel before and after that period shows that the parties resumed substantially the same cartel”.82 The General Court endorsed this view by holding that “the fact that a cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement”.83 Similarly, in Methionine, the General Court held that the fact that one of the participants withdrew from the cartel (or the fact that other undertakings joined the cartel) was not capable of interrupting the single and continuous infringement.84
Where it can be established that an undertaking’s participation in the infringement was genuinely interrupted and that the infringement committed by the undertaking before and after that period has the same features, the infringement is characterized as a single and repeated infringement. In the context of a single and repeated infringement, the assessment of whether the infringements exhibit the same features must be made “by reference to the identity of the objectives and practices at issue, the products concerned, the undertakings which took part in the collusion, the principal means of implementing it, the natural persons involved on behalf
80 Joined Cases C-204/00, C-205/00, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P,
Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 260; Case T-53/03, BPB v Commission [2008] ECR II-1333, paragraph 256.
81 See: Case C-634/13 P, Total Marketing Services v Commission [2015]
ECLI:EU:C:2015:614.
82 Commission decision in Marine hoses, Case COMP/39.406 [2009] OJ C 168/6, paragraph
295.
83 Case T-154/09, Manuli Rubber Industries v Commission [2013] ECLI:EU:T:2013:260,
paragraph 193.
of the undertakings and, last, the geographic scope of those practices”.85 None of these factors
are determinative on their own and the failure to account for one of these factors does not preclude the finding of a single and repeated infringement. However, in Choline chloride, the General Court held that the fact that geographically distinct cartels existed at completely different times constitutes a particularly relevant factor in finding that there was not a single and repeated infringement.86
Finally, the Commission does not have any particular discretion in finding that there was a single and continuous infringement, single and repeated infringement or multiple separate infringements of Article 101(1) TFEU.87 Conversely, it is not necessarily ‘better’ for the undertaking that is held liable to find that there have been multiple separate infringements; this will depend on the facts and circumstances of each particular case. When the Commission decides that there are, in fact, separate infringements, the undertakings which would have been better off with a finding of a single and continuous infringement cannot challenge the decision on that basis. Similarly, an undertaking cannot argue that, in the event of doubt, the Commission should make a finding in its favor (i.e. in view of the level of the fine).88
85 Case T-154/09, Manuli Rubber Industries v Commission [2013] ECLI:EU:T:2013:260,
paragraph 199.
86 Joined Cases T-101/05 and T-111/05, BASF and UCB v Commission [2007] ECR II-4949,
paragraphs 182 – 191.
87 Case T-378/10, Masco Corp. and Others v Commission [2013] ECLI:EU:T:2013:469,
paragraph 57.
4.
Single Overall Plan
The complementary factors provided in Chapter 3.1.2 have played a leading role in defining the requirement of a single overall plan. However, by contrast to the absolute requirements, the weight and relevance of the complementary factors remains disputed. In particular, there remains uncertainty as to when (i.e. in what context) the Commission is required to explicitly demonstrate the presence of complementary links between the various instances of infringing conduct.89
In this chapter I will demonstrate that the complementary factors function as a double-edged sword: they are sufficient to strike down the finding of a single overall plan, as much as they can provide the necessary plus-evidence to establish the existence of such a plan.
4.1 The Emergency of Complementarity: Choline chloride
In its decision in Choline chloride, the Commission found that a number of undertakings had infringed Article 101(1) TFEU by engaging in global and European cartel arrangements, which it viewed as constituting a single overall plan to distort competition in the choline chloride markets.90 On appeal, the General Court clarified that the Commission cannot rely on a general reference to the distortion of competition in two geographic markets to combine two seemingly unrelated cartels into a single and continuous infringement.91 The general reference to the distortion of competition in the global and European choline chloride market was not sufficient to unite the objectives of the two cartels under the umbrella of a single overall plan.
In the General Court’s view, the two infringements at issue were not only geographically distinct, but also lacked complementarity between them.92 According to the
89 D. Bailey, ‘Single, Overall Agreement in EU Competition Law’ (2010) Common Market
Law Review no. 47, pages 473 – 508; D. Riley, ‘Revisiting the Single and Continuous Infringement of Article 101: The Significance of Anic in a New Era of Cartel Detection and Analysis’ (2014) World Competition Law and Economics Review 37 no. 3, page 295; P. Studt, ‘Case C-615/15 P Samsung SDI v Commission: The Concept of ‘Single and Continuous Infringement’ and Cartels. Continuity or Change?’ (2017) Journal of European Competition Law and Practice, pages 1 – 3.
90 Commission decision 2005/566/EC in Choline chloride, Case COMP/E-2/37.533 [2005] OJ
L190/22.
91 Joined Cases T-101 and 111/05, BASF and UCB v Commission [2007] ECR II-4949,
paragraph 180.
General Court, complementary factors must be assessed to determine whether each instance of conduct “intended to deal with one or more consequences of the normal pattern of competition and by interacting, contributed to the realization of the set of anticompetitive effects intended by those responsible, within the framework of a global plan having a single objective”.93
Such an interpretation of the single overall plan seems to impose on the Commission a positive obligation to account for complementary factors in order to establish the scope of a single and continuous infringement. Accordingly, where the Commission is not able to produce sufficient evidence to establish the existence of complementary links, it must treat the various instances of conduct as separate conventional infringements of Article 101(1) TFEU. The result may be that the Commission is time-barred from imposing sanctions with respect to certain aspects of infringement (as was the case in Choline chloride).
4.2 Complementarity is Not a Necessity: Gas-insulated switchgear &
Bathroom fittings
The Court of Justice’s recent judgments in Gas-insulated switchgear94 and Bathroom
fittings seem to militate against the General Court’s earlier judgment in Choline chloride. In these judgments, the Court of Justice confirmed that the Commission is not required to demonstrate complementarity between each and every instance of conduct.
4.2.1 Gas-insulated switchgear
In its decision in Gas-insulated switchgear, the Commission found that there was a global cartel and a European cartel in the market for the sale of gas-insulated switchgear.95 According to the Commission, the cartels shared an “intimate relationship”96 and a number of mutually reinforcing features, such as the time at which they occurred, the identity of the undertakings concerned, and the interlinking of enforcement mechanisms (i.e. the same facilities, institutions, mechanisms, rules and codes).97 Without making express reference to ‘complementarity’, the Commission adopted the view that undertakings concerned had
93 Ibid, paragraph 179.
94 Joined Cases C-239/11 P, C-489/11 P and C-498/11 P, Siemens and Others v Commission
[2013] ECLI:EU:C:2013:866.
95 Commission decision in Gas-insulated switchgear, Case COMP/38.899 [2007] OJ C 5/7. 96 Ibid, paragraph 274.
engaged single overall plan aimed at distorting competition in the bidding for gas insulated switchgear projects.98
On appeal, the Court of Justice discarded complaints that the Commission did not assess complementary factors in addition to establishing the existence of a single overall plan. The Court of Justice held that links of complementarity require “that it be ascertained whether there are any elements characterizing the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings does not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market”99 (emphasis added). The Commission is required to examine all relevant factors that are capable of establishing or casting doubt on the existence of an overall plan linking the various instances of conduct.100 The Commission is not, however, required to satisfy any ‘additional’ or independent condition of complementarity in finding a single and continuous infringement, provided that it has adduced sufficient evidence to support its finding of a single overall plan.101
4.2.2 Bathroom fittings
This view was reinforced by the Court of Justice in the context of Bathroom fittings. In the contested decision, the Commission found that numerous manufacturers devised a single overall plan to present a united front against wholesalers that play a central role in the distribution chain of three non-substitutable product subgroups, namely taps and fittings, shower enclosures and accessories and ceramics. Given the size and importance of the wholesalers and considering the fact that the largest wholesalers were active in all three markets, the Commission decided that the manufacturers had an interest in coordinating their wholesale prices for the different products. The Commission therefore adopted a decision finding a single and continuous infringement with respect to all three product markets, even though some of the participants in the infringement were not active on all markets.102
98 The Commission does not make any explicit reference to “complementarity” between the
various instances of conduct, or that they are “complementary”.
99 Joined Cases C-239/11 P, C-489/11 P and C-498/11 P, Siemens and Others v Commission
[2013] ECLI:EU:C:2013:866, paragraph 248.
100 Ibid, paragraph 247. 101 Ibid, paragraph 248.
102 Commission decision in Bathroom fittings, Case COMP/39.092 [2010] decision not yet
