EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

from those that have taken place previously either as to the identity of the offender, or as to the relevant facts, or as to the protected legal interest the safeguarding of which the respective legislative instruments at issue in the respective proceedings pursue, also noting that there is no difference between competition law and other areas of EU law in applying this conclusion. The case of Nordzucker is different, as it concerns the application of the principle of ne bis in idem when two separate competition proceedings in two different Member States collide. In case of Nordzucker , firstly, the German national competition authority initiated the proceedings against Nordzucker and others and determined that they had infringed Article 101 TFEU as well as German national competition law by concluding anticompetitive agreements on sales areas, quotas, and prices. Subsequently, addressing the identical factual scenario and the same offenders, the Austrian national competition authority decided to initiate proceedings against Nordzucker and others for infringing Article 101 TFEU and Austrian national competition law by the virtue of the same anticompetitive agreements. In this case, AG Bobek delves more deeply into the exact relationship and consequences of the three-fold test for the application of the principle of ne bis in idem in the area of competition law, and especially the issue of the identity of the protected legal interest. Crucially, AG Bobek stresses that “the issue of the protected legal interest ought to be assessed with regard to a specific provision. It must focus on the specific interest or purpose that the provision being applied pursues, what that provision penalises and why . ” From this, we can conclude that the legal interest should be specified for each individual provision applied in the specific case, rather than on the level of regulatory systems and declarations. Applying this principle, AG Bobek found that Article 101 TFEU and national legislation prohibiting price cartels on the national level pursue the same interest. The national legislation applies only to the extent in which the issue is not covered by the TFEU ( Tele2 Polska , 2011, C‑375/09). Because the national and EU competition law applied in both proceedings protected the same legal interest, AG Bobek concluded that the principle of ne bis in idem enshrined in Article 50 of the Charter “prevents a national competition authority or a court from sanctioning anticompetitive conduct which has already been the subject of previous proceedings concluded by a final decision adopted by another national competition authority.” There are several conditions to this however: first, this prohibition applies only to the extent in which the scope of

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