Volume 37 (2014) / Issue 3
David Riley, 'Revisiting the Single and Continuous Infringement of Article 101: The Significance of Anic in a New Era of Cartel Detection and Analysis' (2014) 37 World Competition, Issue 3, pp. 293–317
The ability of the Commission to assess various elements of anti-competitive behaviour as manifestations of the same single and continuous infringement of Article 101, by reference to a common overriding objective, remains one of the most fundamental principles underpinning the Commission's assessment and analysis of the evidence in cartel investigations. However, whilst jurisprudence may have successfully navigated a course through the legal challenges to the single and continuous infringement, the consistency and accuracy with which the concept is discharged by the Commission and the circumstances in which its application is appropriate remain the subject of debate. Amid this uncertainty, there have nevertheless developed a number of clear and discernable reasons for practitioners to give adequate consideration to whether a party's involvement in a cartel may amount to one or several infringements of Article 101. In particular, with the Commission's assessment of the evidence in cartel investigations driven increasingly by direct engagement with the alleged participants, practitioners should be aware of the implications of the combination or disaggregation of infringements prior to making submissions under the Commission's leniency regime or engaging with the Commission through settlement discussions.
All rights reserved