CYIL vol. 8 (2017)

MICHAL PETR CYIL 8 ȍ2017Ȏ this that in selecting the appropriate facts, regard must primarily be had to the result of the act, as it is reflected by the legal classification of the offence. In the case of a person who killed someone with a pistol-shot, this is the death of the victim in question. In the context of EC competition law, it is the primarily question whether the same markets not the question whether it concerns the same agreements or participants”. 63 Conclusions The ECtHR has unequivocally proclaimed that for identification of a single offence, only factual circumstances need to be taken into account, not the legal qualification of the offence or the legal interest protected by the legislation it breached. By virtue of the Charter and its mandatory interpretation in line with the Convention, the same interpretation needs to be adopted in the EU law, and in most cases, concerning in particular the Schengen acquis , it has indeed been done. The competition law however retains a specific understanding of the ne bis in idem principle, based on the “three-prong test”, which includes a criterion of the legal interest protected. Despite multiple suggestions that this dichotomy needs to be overcome and the competition law needs to be brought in line with the rest of the EU law, the CJ EU refused to do so in the recent Toshiba judgement, without comprehensibly explaining why. We nonetheless put forward that the Toshiba judgement is based on the opinion of AG Kokott, who managed to explain why the parallel prosecution of different territorial and temporal effects the same cartel does not breach the ne bis in idem principle, without resorting to the legal interested protected ; in our opinion, this reasoning is in line with the ECtHR case-law. Regrettably, the CJ EU did not explicitly endorse this approach, and on the contrary, it upheld the Aalbrog Portland “three-prong test”. We thus concede that the “three-prong test” cannot be retained for the future and the CJ EU will have to abandon it explicitly, we nonetheless argue that the problem may be solved by the approach that AG Kokott suggested and that was in principle adopted by the CJ EU. Thus, the Toshiba judgement needs not be perceived as a decision petrifying the schism in the ne bis in idem jurisprudence, but a first step to its reconciliation. 5.

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63 VAN BOCKEL (2010), cited above n. 35, p. 246.