CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TWICE ABOUT NE BIS IN IDEM : CONFLICTING APPROACH OF EUROPEAN COURTS … of the conduct. This makes the judgement even more difficult to understand, because it reaffirms – without any substantive discussion – the problematic criterion of identity of legal interest protected , but it does not rely on it at all. We therefore put forward that the CJ EU indeed followed the AG’s opinion, but for some reasons which are difficult to understand, it did not give up the “three-prong test”. 4.3 How to understand the Toshiba judgement? The Court of Justice was heavily criticised for this judgement, as it apparently retains the schism in understanding the ne bis in idem principle in different areas of EU law 59 and does not conform with the ECtHR case-law; as starkly summarised by Nazzini, “The case law of the Court of Justice in Walt Wilhelm and Toshiba relies on the requirement that two offences are the same only if they protect the same legal interest. Because […] this requirement is in breach of Article 50 EU Charter, this case law lacks foundation and should be overruled at the earliest possibility ”. 60 Only seldom was the reaction to the judgement sympathetic. 61 We regret that the CJ EU did not distance itself from its earlier “three-prong test”, which is clearly in conflict with the Convention and thus, the Charter. We would nonetheless like to argue that the approach adopted by AG Kokott was in line with these instruments and that the CJ EU, but for that superfluous reference to Aalborg Portland , followed the same logic. Infringements of competition law are defined by their effects, whether actual or potential; effects of the conduct are decisive not only for the question whether the conduct is illegal, but also for identification of the applicable law and competent competition authority. 62 By definition, international cartels distort competition in multiple jurisdictions, and unless one of the competition authorities would apply “its” law extraterritorially, all of the cartel cannot be captured by a single decision of a single competition authority; arguably, this characteristic differentiates anticompetitive conduct from other offences. Apart from this “utilitarian” argument, it needs to be recalled that the ECtHR itself “divides” a continuous conduct into several offences, because facts constituting a single offence need to be inextricably linked together in time and space , as the ECtHR explained in the Zolotukhin judgement; in that case, a principally identical behaviour of Mr. Zolotukhin, who was on different locations swearing to different people, was classified by the ECtHR as more than one offence. Arguably, the same logic may be employed in competition cases. Similar reasoning may be found in academic literature; as Van Bockel , while analysing the differences in CJ EU’s approach to the ne bis in idem principle, explains: “Not every ‘concrete circumstance’ is relevant or appropriate for a finding of idem. For the purpose of criminal proceedings, historical events are forged into an artificial legal unity which is essentially defined by the result rather than by the objective historical event. It follows from 59 See eg. DEVROE, W. (2013), cited above n. 50, p. 433: “ Toshiba confirms that the interpretation of ne bis in idem in competition law is based on a ‘legal idem’ at a time when the EU has introduced a ‘factual idem’ in other areas of EU law. As a consequence, it is now clear that ne bis in idem is applied differently in different areas of EU law”. 60 NAZZINI, R., Competition Enforcement and Procedure. Second Edition. Oxford University Press, 2016, p. 236; emphasis added. 61 SMOLEK, M. , Toshiba – Přelet nad kukaččím hnízdem? [Toshiba – One Flew over the Cuckoo’s Nest?] ANTITRUST , 2012, no. 1, p. 28. 62 In detail, see PETR, M. (2008), cited above n. 47.

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