In its preliminary ruling of
In
Following a leniency application submitted by
The FCCA considered the infringement to be a single and continuous infringement that started no later than
However, the Finnish Market Court dismissed the application for the fine on the grounds that the case, filed in 2014, was time-barred. According to the Market Court,
The
In its preliminary question, the
- The date of submission of the tender.
- The date of conclusion of the contract.
- The date of payment of the last instalment of the agreed price.
- The date of the construction works' completion.
The CJEU ruling
Firstly, the CJEU notes that Article 101.1 TFEU precludes any direct or indirect contact between economic operators if it either influences the conduct on the market of an actual or potential competitor or reveals to such a competitor the conduct the other party will follow or adopt on the market, where the aim or outcome of such contact is to restrict competition.
Furthermore, the CJEU emphasises that agreements to share customers, such as price agreements, represent the most serious restriction of competition.
In this case, the CJEU considered that the evidence against
As regards the duration of the infringement, the CJEU states that, in the case of a cartel that no longer exists, it is sufficient, for Article 101.1 TFEU to apply, that it continues to have an effect beyond the date on which it comes formally to an end. Therefore, the duration of the infringement could, in principle, last for the entire period during which the collusive prices apply (i.e. until the last payment by the contracting authority), even though the cartel had formally ceased to be in force.
However, the CJEU recalls that the objective behind the competition rules requires that an infringement of Article 101.1 TFEU must last for as long as the restriction of competition resulting from the conduct concerned persists.
In this case, the CJEU notes that the infringement covers the entire period during which
According to the CJEU, the restrictive effects on competition end, in principle, once the essential provisions of the contract, in particular the total price paid for the goods, works or services under the contract, have been finally determined, where appropriate, when the contract has been concluded.
In conclusion, the CJEU held that the infringement ends on the date of submission of the unlawful tender or, if the tender is successful, on the date on which the contract between the undertaking and the contracting authority is signed, provided that the contracting authority has finally determined the essential provisions of that contract and, in particular, the total price to be paid for those works.
It should be noted that many national competition authorities highlight collusion in public procurement as a serious infringement of competition law. Thus, several national authorities regularly condemn this type of infringement, notably in
Originally published
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Annabelle Lepičce
CMS Law-Now
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