CYIL vol. 8 (2017)

MICHAL PETR CYIL 8 ȍ2017Ȏ specifically rule on the ne bis in idem principle, but on the division of competences between EU and national competition authorities, it nonetheless concluded that such parallel proceedings are permissible as the national and EU competition law pursues different objectives: “Community and national law on cartels consider cartels from different points of view.Whereas [Art. 101 TFEU] regards them in the light of obstacles which may result for trade between member states, each body of national legislation proceeds on the basis of the considerations peculiar to it and consider cartels only in that context. […] [I]t implies that one and the same agreement may, in principle, be the object of two sets of proceedings, one before community authorities under [Art. 101 TFEU], the other before the national authorities under national law”. 29 This argument concerning different objectives was subsequently employed vis-à-vis international cartels. Such cartels typically affect competition in more countries, and more competition authorities are thus susceptible to prosecute them, even though technically, it is still the same conduct. An illustrative example may be the Graphite electrodes cartel, prosecuted in the EU, Canada and USA. When the ne bis in idem principle was raised in the EU proceedings, the Court of First Instance concluded that it cannot apply because of the different objectives pursued by the respective legislations: [T]he principle of ne bis in idem cannot […] apply in the present case because the procedures conducted and penalties imposed by the Commission on the one hand and the United States and Canadian authorities on the other clearly did not pursue the same ends. The aim of the first was to preserve undistorted competition within the European Union or the EEA, whereas the aim of the second was to protect the United States or the Canadian market. […] The application of the principle ne bis in idem is subject not only to the infringements and the persons sanctioned being the same, but also to the unity of the legal right being protected […]”. 30 On appeal, the same reasoning was employed by AG Geelhoed. 31 It was also endorsed by the CJ EU, which likewise stressed the different objectives of different legal systems; 32 the CJ EU nonetheless added that the territorial effects of the cartel differ in individual jurisdictions – the Commission assess the cartel’s effects within the EU, whereas other competition authorities the effects in “their” states: “It follows that, when the Commission imposes sanctions on the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard the free competition within the common market […]. On account of the specific nature of the legal interests protected at Community level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those of authorities of non-member States.

29 Ibid , par. 3. 30 Ibid , par. 134; emphasis added.

31 Opinion of AG Geelhoed in case C-308/04 P SGL Carbon , par. 49: “But even if the principle ne bis in idem should be applicable, the three conditions mentioned above must be satisfied cumulatively. I agree with the Commission and the Court of First Instance that the third condition, the same legal interest, is not satisfied”. 32 CJ EU judgement of 29 June 2006 C-308/04 P SGL Carbon , par. 29: “ The elements forming the basis of other States’ legal systems in the field of competition not only include specific aims and objectives but also result in the adoption of specific substantive rules and a wide variety of legal consequences, whether administrative, criminal or civil, when the authorities of those States have established that there have been infringements of the applicable competition rules ”.

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