CYIL vol. 8 (2017)

MICHAL PETR CYIL 8 ȍ2017Ȏ verbally abusive towards various officials – it was not a continuous act but rather different manifestations of the same conduct shown on a number of distinct occasions ”. 16 The ECtHR therefore concluded that in as much as the criminal proceedings were focused on the conduct of Mr. Zolotukhin directed at Major K, there was no breach of the ne bis in idem principle, as such conduct was not covered by the administrative proceedings, but there was a breach inasmuch as the criminal court was dealing with his actions directed at Ms. Y and Captain S, which has already been “covered” by the administrative proceedings. It is generally accepted that by the Zolotukhin judgement, concentrating solely on identity of the facts, the ECtHR brought its case-law in line with the CJ EU jurisprudence on the Schengen acquis , as will be described below. 17 Ne bis in idem , as interpreted by the CJ EU CJ EU originally developed its approach to the ne bis in idem principle in competition law cases, specifically with regard to international cartels. In the seminal judgment Aalborg Portland , 18 the CJ EU proclaimed that the idem is characterised not only by the facts but also by their legal qualification, or more specifically, by the legal interest protected by the infringed legislation: “As regards observance of the principle ne bis in idem, the application of that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset”. 19 This threefold condition is often described as the “three-prong test”, and it is characteristic of all the ne bis in idem cases in the area of competition law. 3.1 The Schengen case-law We will discuss the developments of the CJ EU’s approach in the area of competition law below. Before that, we will observe in this chapter another line of reasoning which the CJ EU developed originally while interpreting the Schengen Agreement or more specifically, the Convention implementing the Schengen Agreement (hereinafter referred to as the “CISA”), which also includes the ne bis in idem principle, though formulated in a different way than in the Convention or the Charter; 20 whereas the Convention and the Charter prohibit second proceedings concerning the same offence , the CISA refers to the same act ( les mêmes faits ). CJ EU clarified the meaning of this term in its van Esbroeck judgement. 21 Mr. van Esbroeck, a Belgian national, was sentenced in Norway for trafficking narcotics into Norway; after he 16 Ibid , par. 92; emphasis added. 17 See eg. NEAGU, N. (2012), cited above n. 12. 18 CJ EU judgement of 7 January 2004, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and others ; this case is also often referred to as “Cement”, because of the product which was cartelised. 19 Ibid , par. 338. 20 According to Art. 54 of the CISA: “A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party”. 21 CJ EU judgement of 9 March 2006 C-436/04 Van Esbroeck . 3.

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