CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TWICE ABOUT NE BIS IN IDEM : CONFLICTING APPROACH OF EUROPEAN COURTS … This wording seems to be fully in line with the Schengen acquis as well as the ECtHR’s jurisprudence. The AG however went on to observe that in the context of competition law, account must be taken of the effects of the anticompetitive conduct: “ [D]istortion of competition cannot be assessed in the abstract, but must always be examined with reference to a specific period of time and a specific territory . […] [T]he material acts to which the ne bis in idem principle is then applicable necessarily always include, therefore, the period of time and the territory in which the cartel agreement had anti- “The prohibition under EU law against prosecution and punishment for the same cause of action (the ne bis in idem principle) prevents more than one competition authority […] from imposing penalties for the anti-competitive consequences of one and the same cartel in relation to the same territory and the same period of time within the European Economic Area. On the other hand, the ne bis in idem principle does not in any way prohibit more than one competition authority […] from penalising restrictions of competition […] resulting from one and the same cartel in different territories or during different periods of time […]” . 46 Such line of reasoning was possible to abstract from the post- Aaborg Portland case-law 47 and corresponds with the aims of competition authorities, while prosecuting international cartels; indeed, it is obvious from the AG’s reasoning that she had in mind the efficiency of cartel enforcement: “The ne bis in idem principle is intended to ensure that undertakings are not prosecuted more than once and, where appropriate, punished more than once for the anticompetitive consequences … of their collusive conduct. It is not meant to have the effect of leaving the anti- competitive consequences of such conduct in a particular territory and during a particular period of time unpenalised”. 48 Consequently, the AG concluded that the ne bis in idem principle was not breached in the present case. 49 The AG was obviously attempting to harmonise the interpretation of the ne bis in idem principle in the EU law, while not jeopardising the efficiency of competition law enforcement. Still, she was criticised for not going far enough in upholding the principles enshrined in the ECtHR jurisprudence and that her approach is still a “disguised three-prong test” . 50 45 Ibid , par. 129; emphasis added. 46 Ibid , par. 131. 47 See eg. PETR, M. The Ne Bis In Idem Principle in Competition Law. European Competition Law Review , 2008, no. 7, p. 392. 48 Opinion of AG Kokott in case C-17/10 Toshiba , par. 133. 49 Ibid , par. 145; emphasis added: “[T]he Commission Decision does not cover any anti-competitive consequences […] to which the cartel at issue gave rise in the territory of the Czech Republic in the period prior to 1 May 2004, whereas … the decision of the Czech competition authority imposed fines only in relation to that territory and that period. Accordingly, while both decisions have as their subject-matter infringements brought about by the same international cartel, they are otherwise based on different facts ” . 50 DEVROE, W., How General Should General Principles Be? Ne Bis in Idem in EU Competition Law. In: BERNITZ, U., GROUSSOT, X., SCHULYOK, F., General Principles of EU Law and the European Private Law. Wolters Kluwer, 2013, p. 426. competitive effects […] or could have had such effects […]”. 45 Thus understood, specifically for the area of competition law:

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