Single Continuous Infringement of Article 81 EC: Has the Commission Stretched the Concept Beyond the Limit of its Logic?

"After recalling the origins of the “continuing infringement” concept in the common law of conspiracy, the present article addresses one of the most important areas in EC practice where its application has been decisive and controversial: whether the collusive arrangements constitute one infringement or a number of separate ones. The controversy mirrors the “single versus multiple conspiracies” debate in US case law. In an extension of the concept and the case law, complex offending conduct that appears to involve several separate cartels—whether successive or simultaneous—is bundled in the decision into a “single infringement”. At the other extreme, the Commission has in some cases found discrete “national” cartels, despite itself highlighting a close interrelation arguing at first sight in favour of a single overarching scheme. This is no scholastic quiddity: the implications in terms of substantive and procedural law, due process and the operation of the leniency notice of “getting it wrong” can be far reaching. The consistent application of principle is difficult to discern in the decisions, and if the ad hoc approach of the Court of First Instance (CFI) to review usually militates against the articulation of a rule of general application, its judgment in BASF and UCB v Commission represents the “single best attempt of the EC Courts to sort out the concept”. Drawing on the lessons provided by US Sherman Act experience, which provided the inspiration and conceptual model for the single continuous infringement, this article suggests a uniform approach to providing a fair and workable solution to the problem."