CYIL vol. 8 (2017)

MICHAL PETR CYIL 8 ȍ2017Ȏ for the Protection of Competition (hereinafter referred to as “CCA” – Czech Competition Authority), investigated the cartel as well, but only in the time-period before the EU- accession and only concerning its effects on the Czech territory. 39 The CCA thus issued its decision when it was a member of the EU, while the facts of the case predated this event. The Czech court reviewing the CCA’s decision was confronted with the issue of ne bis in idem and ultimately addressed the CJ EU with a preliminary reference. Regardless of the specifics of case caused by the accession of the Czech Republic to the EU, it was a typical case of an international cartel, as discussed above. As the CJ EU was deciding (for the first time in competition matters) after the ECtHR Zolotukhin judgement, the outcome of the proceedings was eagerly expected. Surprisingly, the CJ EU did not give up its “three-prong test”, devised in the Aalborg Portland judgement. However, before discussing the judgment in detail, we need to analyse the opinion of AG Kokott, which includes a thorough analysis of the ne bis in idem principle. 4.1 Opinion of AG Kokott Even though both the AG Kokott and the CJ EU ultimately concluded that the ne bis in idem principle was not breached, their reasoning was not identical. First of all, the AG concluded that the Charter applies in this case. 40 Secondly, she admitted that there is a difference in CJ EU’s competition and Schengen related case-law and that the interpretation of the ne bis in idem principle needs to be harmonised, 41 because the rational behind the ne bis in idem principle is identical under the Schengen as well as competition law. 42 Thirdly, she referred to the fact that the ECtHR case-law has been harmonized by the Zolotukhin judgement, and that the Convention, as interpreted by the ECtHR, constitutes a minimal standard while interpreting the Charter. 43 Thus, she concluded that “for the purposes of interpreting and applying idem in the context of the prohibition against prosecution and punishment for the same cause of action under EU law also, account should henceforth be taken only of the identity of the facts (which necessarily includes the unity of the offender). […] [A]ccount is to be taken only of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together . In other words, the two cases must concern identical facts or facts which are substantially the same”. 44

39 The CCA issued its final decision on 26 April 2007, R 59 et seq. /2007 ( Kartel PISU ). 40 Opinion of AG Kokott in case C-17/10 Toshiba , par. 102-110.

41 Ibid , par. 117: “To interpret and apply the ne bis in idem principle so differently depending on the area of law is detrimental to the EU legal order. The crucial importance of the ne bis in idem principle as a founding principle of EU law […] means that its content must not be substantially different depending on which area of law is concerned”. 42 Ibid , par. 118: “There is no objective reason why the conditions to which the ne bis in idem principle is subject in competition matters should be any different from those applicable to it elsewhere. For, in the same way as, within the context of Article 54 of the CISA, that principle serves to guarantee the free movement of EU citizens […], so, in the field of competition law, it helps to improve and facilitate the business activities of undertakings in the internal market […]”. 43 Ibid , par. 120 and 121. 44 Ibid , par. 122 and 124; emphasis added.

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