Opinion of the Advocate General — ECLI:EU:C:2020:698
Date: 2020-09-10
Language of the case: Finnish
Subject matter: Competition
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the essential arguments of the parties 
28. The competition and consumer protection authority, which brought an appeal 
before the Supreme Administrative Court, asserted that its application to impose a 
fine of 31 October 2014 had been submitted to the Market Court within the 
prescribed five-year time limit. The authority based its view on the grounds that 
up until 7 January 2010, [Or. 7] when Fingrid Oyj paid the final instalment for the 
construction works, the aforementioned construction contract relating to the 
Keminmaa-Petäjäskoski construction project had been in force and the unlawful 
pricing had been applied. Alternatively, the restraint of competition had ended 
even earlier, on 12 November 2009, when the construction works were completed. 
According to the authority, the cartel had the economic effects on the market 
referred to in the case-law of the Court of Justice up until the aforementioned 
points in time, and Fingrid Oyj suffered damage as a customer owing to the cartel 
price paid by it. 
29. The authority also argued that the effects of the contract of a cartel participant that 
was awarded the contract were very concrete and long-lasting for the party paying 
the price agreed in the cartel, as the payments would be made over several years, 
in accordance with the progress of the project. In each year in which the customer 
paid instalments for the construction project coordinated in the cartel, the harmful 
effects of the contract for the year in question were directly reflected in the costs 
of the activity of the customer of the member of the cartel and therefore also in the 
economic result and, furthermore, in the activity of the customer company on the 
market. According to the authority, as Fingrid Oyj paid an excessive price for the 
works, the increased costs would have also impacted on the customer prices of the 
grid operator, that is to say on the prices paid by the electricity consumers for the 
transfer of electricity. 
30. The view taken by the competition and consumer protection authority would mean 
that, on those grounds alone, the authority’s application to impose a fine had been 
submitted within the five-year period. 
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31. Eltel for its part contested, with the grounds submitted by it in connection with the 
assessment of evidence, that Eltel and Empower entered into agreements 
regarding the Keminmaa-Petäjäskoski construction works. Eltel also asserted that 
the duration of the competition infringement was to be assessed by reference to 
the period during which the undertakings that committed the infringement 
engaged in the prohibited conduct. It could therefore be assumed that the 
limitation period for works tendered in competitive bidding procedures began at 
the point at which the tender was submitted. Eltel submitted its tender for the 
construction contract in question on 4 June 2007. 
32. According to Eltel, in cases where the price can still be negotiated after the tender 
has been submitted, the limitation period alternatively begins when the final 
contract for the project concerned was entered into. In the present case, Fingrid 
Oyj and Eltel entered into a contract relating to the construction works on 19 June 
2007. According to Eltel, the price that was tendered or agreed in the contract no 
longer had any effect on the market after the tender had been submitted or, at the 
latest, after the contract had been signed, even if the project in question continued 
or if instalments to be paid for the project were still being paid even after a 
number of years. According to Eltel, the question [Or. 8] of according to which 
timetable the works progressed or when payment was made for them did not 
affect competition on the market, because the agreed price no longer changed 
during these events. A different interpretation would lead to uncertain and 
unforeseeable results that were not connected with the restraint to competition, 
and this infringed the principle of legal certainty. 
33. If one were to share the view taken by Eltel, this would mean that the application 
to impose a fine of the competition and consumer protection authority would not 
have been submitted until after the expiry of the period prescribed for that 
purpose, provided that, of the circumstances otherwise presented in the application 
to impose a fine, none that occurred at a subsequent point in time were of 
significance with regard to the decision in the case. 
The need for the preliminary ruling 
34. The Supreme Administrative Court is not aware that, in the case-law of the Court 
of Justice, a position has been taken on the determination of the economic effects 
of a competition infringement within the meaning of Article 101 TFEU and 
therefore also relating to the duration of that infringement in a situation in which a 
cartel participant entered into a construction contract as agreed in the cartel with a 
player outside the cartel if the works are completed several years after the contract 
is entered into and payments arising from that contract are still being made even 
after the works have been completed. The Supreme Administrative Court 
considers that a legal interpretation is required as to whether it can be assumed 
that a competition infringement continues up until the point at which the payment 
obligations arising from the contract for the works that falls within the sphere of 
the cartel have been discharged in their entirety or the project has been 
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completed — as would be in line with the view taken by the competition and 
consumer protection authority — or whether it has to be assumed that the 
infringement ceases and the limitation period begins when the tender for the 
works is submitted or the contract for the works is signed — as would be in line 
with the view taken by Eltel. 
35. For the purpose of assessing the present case, the case-law of the Court of Justice 
does not appear to be entirely clear with regard to this central question of 
interpretation. Based on their wording, the statements of the Court of Justice in the 
aforementioned paragraph 40 of the Quinn Barlo judgment appear in themselves 
to support the view that the economic effects of a restraint of competition may 
continue for example throughout the whole period in which the unlawful prices 
were applied. The restraint of competition in question in the aforementioned 
judgment differs from the restraint of competition in the present case, however, 
and the judgment does not make it clear whether, when assessing the duration of 
the competition infringement and the limitation period of the application to 
impose a fine, significance can be attached to the completion of the works under 
the construction contract and the circumstance of how long payments for the 
works as agreed in the cartel are made to the parties to the construction contract. 
[Or. 9] 
36. It can be inferred from the case-law of the Court of Justice that it is the economic 
effects of the anti-competitive practices rather than their legal form that are of 
central importance when assessing the duration of a competition infringement. 
According to the case-law, the economic effects of a restraint of competition that 
infringes Article 101 TFEU can continue to have an effect even if the complex 
infringement of competition rules which is to be regarded as a single process in 
the relationship between the competitors has already formally ended. The 
Supreme Administrative Court takes the view that it could be argued that this 
supports the conclusion that a competition infringement in the form of a bid-
rigging cartel always continues until the point at which the contracting party 
harmed by the cartel has paid the unlawful price agreed in the cartel in full, as the 
construction project coordinated with regard to the price in the cartel has 
economic effects on the activity of the contracting party of the cartel member for 
that entire period. 
37. On the other hand, it could also be argued that the case-law indirectly supports the 
view put forward by Eltel that, in the case of works tendered in competitive 
bidding procedures, the application of the prices or the effects thereof on 
competition continue until the tender is submitted or the final contract is entered 
into. After that time, the price in the tender or contract would no longer have any 
effect on the market, even if the project itself is still under way. 
38. The present case concerns the economic effects and the duration of an alleged 
competition infringement. It is not a case concerning claims for damages, for 
which, regarding the beginning of the limitation period, the point at which the 
contract is entered into is regarded as the significant time of causation according 
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to the national case-law (KKO 2016:11), and not the time of payment of the 
purchase price under the contract. 
39. Since, as far as the Supreme Administrative Court is aware, the case-law of the 
Court of Justice does not contain any judgments in which a position has been 
taken on the limitation period for a competition infringement in an alleged cartel 
case which, as in the present case, is based on prohibited tender collusion, it is 
necessary to obtain a preliminary ruling from the Court of Justice in this case. 
Even if circumstances other than those relating to this request for a preliminary 
ruling are also taken into consideration in a full assessment of the duration of the 
present restraint of competition, the position adopted by the Court of Justice on 
the question of interpretation will have a key impact on the legal evaluation of the 
duration and economic effects of the restraint of competition and therefore also on 
the decision as to whether the application to impose a fine of the competition and 
consumer protection authority was submitted within the time limit prescribed for 
that purpose. 
… [not translated] [Or. 10] 
Question referred 
The Supreme Administrative Court has decided to stay the proceedings and refer 
the following question to the Court of Justice for a preliminary ruling pursuant to 
Article 267 TFEU: 
Can the system of competition established by Article 101 of the Treaty on the 
Functioning of the European Union (TFEU) be interpreted to mean that, in a 
situation in which a cartel participant has entered into a construction contract as 
agreed in the cartel with a player outside the cartel, the competition infringement 
continues, due to the economic effects caused thereby, throughout the whole 
period in which contractual obligations arising from the contract are discharged or 
payments for the works are made to the contracting parties, that is to say up until 
the point at which the last instalment is paid for the works, or at least up until the 
point at which the works in question are completed; 
or is it to be assumed that the competition infringement continues only until the 
point at which the company that committed the infringement has submitted a 
tender for the works concerned or entered into a contract for the execution of the 
works? 
Once it has received a preliminary ruling on the question set out above from the 
Court of Justice, the Supreme Administrative Court will give a final decision in 
the case. 
… [not translated] [Or. 11] … [not translated]