It ain’t over until it’s over – when do infringements of EU competition law end?

Abstract

The duration of infringements of Articles 101 and 102 TFEU has significant implications on the enforcement of those rules and those subject to enforcement. This article examines the European Court of Justice’s case law on the assessment of the duration of an infringement of Article 101 TFEU after the conduct constituting the infringement has ended. While earlier case law focused on continuing market conduct corresponding to the original infringing conduct, more recent case law appears to bring forth an approach centred on the restriction of competition resulting from the conduct. The judgment in Kilpailu- ja kuluttajavirasto suggests that a complete assessment of an infringement’s duration should consider the scrutinized conduct’s restrictive effects on the competition that it distorts. That judgment also suggests that any price effects or other damages suffered by the infringers’ customers do not affect the infringement period’s length.