CYIL vol. 8 (2017)

MICHAL PETR CYIL 8 ȍ2017Ȏ Specifically, some authors put forward (though not explicitly with regard to this Opinion) that “[t]he geographical scope of the decision is not relevant in determining the violation of the non bis in idem principle ”; 51 they refer to the opinion of AG Colomer in another international cartel case, who opined that “ [t]he test of the territorial extent of the unlawful conduct is not substantive, but adjectival, since it does not affect the nature of the infringement, but only its intensity ”. 52 The CJ EU however did not specifically refer to this opinion in that case and we thus take that view that it should not be an obstacle for our future considerations. 4.2 The CJ EU judgement As we have observed, AG Kokott analysed in her opinion in depth the compatibility of the CJ EU and ECtHT jurisprudence on ne bis in idem ; it is therefore surprising that the CJ EU did not refer to the Convention (nor the Charter) or the line of its own jurisprudence on ne bis in idem concerning the Schengen acquis . 53 Instead, the Court of Justice explicitly endorsed the “three-prong test” of Aalborg Portland : “in competition cases, […] the application of the that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected ”. 54 This was unexpected, because there was a wide support for abandoning the “legal interest” criterion in academic writings 55 and above all, in the AG’s opinion (see above). Even though the CJ EU did not follow the AG’s opinion on the “three-prong test”, it endorsed her point concerning the relevance of territorial a temporal effects of the conduct in question: “Whether the undertakings have adopted conduct having as its object or effect the […] distortion of competition cannot be assessed in the abstract, but must be examined with reference to the territory […] in which the conduct in question had such an object or effect, and to the period during which the conduct in question had such an object or effect ”. 56 The CJ EU thus concluded, in line with the AG, that the Commission’s and the CCA’s decisions covered different territorial and temporal aspects of the cartel, 57 and therefore, the ne bis in idem principle (subject to the threefold condition) could not have been breached. 58 It is however important to underline that the CJ EU did not rely on the differences in legal interests protected , as in its previous jurisprudence, but on the lack of identity of the facts , which it associates – in line with the AG’s opinion – with territorial and temporal effects 51 DI FEDERICO (2011), cited above n. 4, p. 253. 52 Opinion of AG Colomer in case C-213/00 P Italcementi , par. 94. 53 DEVROE, W. (2013), cited above n. 50, p. 433. 54 CJ EU judgment Toshiba , par. 97. 55 See eg. PEERS, S., HERVEY, T., KENNER, J., WARD, A., The EU Charter of Fundamental Rights. A Commentary . Hart Publishing, 2014, p. 1412: “ [I]t is submitted that it is difficult to identify a theoretical basis that justifies […] a differentiated application of the ne bis in idem principle in the field of competition law. If the ne bis in idem principle precludes the repeated prosecution of the same act of drug trafficking, than it is not apparent why it should permit repeated prosecution of the same anti-competitive conduct. […] it is suggested that the unified application of Article 50 of the Charter would promote the provision’s conceptual coherence and enhance its effectiveness within the Union legal order. Moreover, it would ensure that the ne bis in idem principle as applied in the Union complies with the minimum standards required pursuant to the law of the European Convention on Human Rights ”. 56 CJ EU judgement Toshiba , par. 99; emphasis added. 57 Ibid , par. 102. 58 Ibid , par. 98: “ one of the conditions thus laid down, namely identity of the facts, is lacking ”.

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