CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TWICE ABOUT NE BIS IN IDEM : CONFLICTING APPROACH OF EUROPEAN COURTS … competition law related judgement of the Court of Justice in case Toshiba is compatible with the body of relevant case law accumulated so far. Introduction The ne bis in idem principle constitutes a fundamental procedural guarantee in (quasi) criminal proceedings. In the European Convention on Human Rights (hereinafter referred to as the “Convention”), it is prescribed in Article 4 of the Protocol No. 7, 1 whereas in the Charter of the Fundamental Rights of the European Union (hereinafter referred to as the “Charter”), it is provided for in Article 50; 2 the wording of these two articles is practically identical, the former nonetheless prohibits the second criminal procedure within the same member state, whereas the latter within the whole of EU. Taking into account the autonomous meaning of terms used by the Convention, we are not going to discuss what constitutes a criminal “offence”; 3 we presume that breaches of competition law, in particular by cartels, but as well by unilateral practices (abuse of dominance in the EU terminology), are to be considered “criminal” by the Convention; the same applies for breaches of the EU competition law. 4 At the same time, we will not discuss the question of bis , where the case-law is more settled, 5 and will further focus only on the question of idem . First of all, we will analyse the development of the case-law of the European Court of Human Rights (hereinafter referred to as the “ECtHR”) on the ne bis in idem principle, culminating by the Zolotukhin judgement of 2009 (Chapter II); thereafter, we shall review the relevant case law of the Court of Justice of the European Union (hereinafter referred to as the “CJ EU”), in particular in the area of the Schengen acquis and the competition law (Chapter III). Finally, we will discuss in detail the recent CJ EU judgement Toshiba , which was meant to reconcile the differences in the ne bis in idem doctrine, and evaluate to what extent it succeeded (Chapter IV). Ne bis in idem , as interpreted by the ECtHR The ECtHR’s approach to what constitutes idem , ie. the “same offence” ( même infraction ) has been dramatically (and inconsistently) evolving. The original approach, taken in the Gradinger 6 judgement, focused on identity of the conduct – idem factum (same conduct, même comportement ). Mr. Gradinger, while driving his 1 According to Article 4 (1) of Protocol No. 7, “ No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State ”. 2 According to Article 50 of the Charter, “ No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law ”. 3 In this regard, see the case-law based on the ECtHR judgement of 23 November 1976 Engel and others v. the Netherlands , app. no. 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72. 4 See eg. DI FEDERICO, G., EU Competition Law and the Principle of Ne Bis in Idem. European Public law , 2011, no. 2, p. 243. 5 In this regard, see eg. LOUIS, F., ACCARDO, G., Ne Bis In Idem, Part “Bis”. World Competition , 2011, no. 1, p. 97. 6 ECtHR judgement of 23 October 1995 Gradinger v. Austria , app. no. 15963/90. 1. 2.

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