CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TWICE ABOUT NE BIS IN IDEM : CONFLICTING APPROACH OF EUROPEAN COURTS … Accordingly, the Court of First Instance was fully entitled to hold […] that the principle of non bis in idem does not apply to situations in which the legal systems and competition authorities of non-member States intervene within their own jurisdiction ”. 33 Admittedly, Canada and USA are not signatories of the Convention, and the ne bis in idem principles enshrined in it cannot apply in such situations, the same problem may however arise with respect to other states; for example, international cartels investigated in parallel by the EU and by Russia are not uncommon, and here the problem of conformity with the ECtHR case-law emerges again. Before discussing this issue, we may nonetheless make a preliminary conclusion that the CJ EU, while interpreting the ne bis indem principle , resorts to different argumentation in the area of the Schengen acquis (applying the CISA) and the competition law (applying this principle as a general principle of law, and currently, as enshrined in the Charter). The fact that the Charter has become legally binding is really important for this matter. The Charter specifically claims that the EU law on human rights cannot provide a less extensive protection to corresponding rights. 34 As is observed in academic literature: “Now that the Grand Chamber of the ECtHR has brought its interpretation of Article 4P7 ECHR fully in line with the interpretation given by the ECJ to Article 54 CISA, the Community courts cannot stay behind where the ne bis in idem principle in Community law is concerned. It would therefore seem that a change of direction in the case law has become nearly inevitable after the judgment of the Grand Chamber in Zolotukhin”. 35 The CJ EU had an opportunity to return to the ne bis in idem principle in competition law matters in its Toshiba judgement, which will be discussed in the next chapter. 36 The CJ EU Toshiba judgement The detailed facts of the case are not decisive for this article; 37 in essence, an international, world-wide cartel relating to gas-insulated switchgear (GIS), which was in effect since 1988 until 2004, was investigated by the Commission, presumably with respect to its effects within the EU, consisting of member states before the 2004 enlargement (the EU-15). 38 In May 2004, ten new countries joined the EU, including the Czech Republic. As the GIS cartel distorted competition also within the Czech Republic, its competition authority – Office 33 Ibid , par. 31 and 32. 34 According to Art. 52 (3) of the Charter: “ In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection ”. 35 VAN BOCKEL, W. B. The ne bis in idem principle in EU law. A conceptual and jurisprudential analysis . Kluwer Law International, 2010, p. 245. 36 CJ EU judgement of 14 February 2012 C-17/10 Toshiba and others . 37 For further details, see eg. MONTI, M. Managing Decentralized Antitrust Enforcement: Toshiba. Common Market Law Review , 2014, p. 261. Concerning specifically the proceedings in the Czech Republic, see eg. ŠTENCL, V. Jediný postih pro jediné trvající protisoutěžní jednání? Nad rozsudkem Soudního dvora ve věci Toshiba [One Sanction for a Single Continuous Anticompetitive Conduct? On the Court of Justice’s Toshiba Judgement]. Právní rozhledy , 2012, no. 11, p. 404. 38 Commission decided that there was a cartel and imposed a fine in a decision of 24 January 2007, COMP/F/38.899 ( Gas Insulated Switchgear ). 4.

217