EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

by the national court because bpost’s actions did not amount to discrimination according to the legislation governing postal sector. However, bpost was fined again, but this time by the Belgian national competition authority for an alleged abuse of dominant position due to the application of the same rebate system in the same time period (Bobek, 2021, para. 4). The legality of the second sets of proceedings before the national competition authority was challenged by bpost claiming the ne bis in idem principle. The CJEU was tasked with clarification of how the principle of ne bis in idem will apply, when regulatory proceedings are followed by the competition proceedings (with the same offender and under the identical facts). According to the Commission, which provided an amicus brief in the case, both sets of proceedings pursue different objectives: a) The sectoral proceedings concerned infringement of sectoral rules – the prohibition of discriminatory practices and transparency obligation under Belgian law regulating the operation of universal postal service providers; and b) The competition proceedings concerned prohibition of abuse of dominant position under Article 102 TFEU and Belgian national competition law. Both objectives were seen by the Commission as “ distinct but complementary ”, thus not precluding the second sets of proceedings by the virtue of ne bis in idem , as interpreted in the light of CJEU case law specific to the competition law area. AG Bobek proposed to subject the matter to the above-mentioned three-fold test, with further elaboration on what constituted the protected legal interest under both sectoral and competition regulation. Belgian sectoral law regulates formerly monopolistic universal postal services providers, and its aim is to achieve market liberalisation. Once liberalisation is achieved, the regulation will naturally cease to apply. Potential harm to upstream or downstream competition was not subject of the sectoral proceedings, among other things, because the sectoral regulator lacks competence in this area. Belgian and EU competition law, on the other hand, penalised bpost’s behaviour that was viewed as anticompetitive, potentially increasing barriers to entry, and excluding potential competitors of bpost. Thus, a possible distortion of competition is the crucial objective of competition law. The conclusion of AG Bobek was, therefore, that the principle ne bis in idem enshrined in Article 50 of the Charter of Fundamental Rights of the European Union does not preclude the competent administrative authority of a Member State from imposing a fine for the infringement of EU or national law provided that the subsequent proceedings taking place before that authority are different

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