EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Again, on ne bis in idem : Do We Need to Rethink our Approach? Michal Petr Palacký University Olomouc Faculty of Law, Department of International and European Law 17. listopadu 8, Olomouc, 779 00 Czech Republic e-mail: michal.petr@upol.cz

Abstract The interpretation of idem in the ne bis in idem principle is far from unambiguous; even though a decade ago, it seemed to be settled by the Zolotukhin judgement of the European Court of Human Rights, the doctrine has shifted (and clouded) since then. Still, one area of law seems to be subject to an entirely different approach by the Court of Justice –competition law. Even though the fact that the same principle is interpreted in a different way by the same court in the area of competition law, on the one hand, and everywhere else, on the other, has been repeatedly subjected to criticism, the Court has kept its stance. Currently, the Court has once again been asked to rule on this principle in the Nordzucker and Sudzucker case, in which the Advocate General Bobek has recently published his opinion. He calls – once again – for the unification of the interpretation of idem across the EU law, but in a completely different way than before, introducing the three-pronged test as a universal approach to idem . Is the Court likely to follow his advice? And what would that mean for antitrust enforcement? Keywords: ne bis in idem, parallel antitrust enforcement, protected legal interest JEL Classification: K210 1. Introduction The modernization of EU competition law in 2004, based on the Regulation 1/2003, established, among others, the European Competition Network (ECN), a network consisting of national competition authorities (NCAs) and the Commission. Thus, a system of parallel competences was created, in which both the NCAs and the Commission can apply the EU competition law rules in particular Articles 101 and 102 TFEU (ECN Notice, para 1). The rules according to which it may be determined which ECN member is to conduct proceedings in a specific case do not provide for exclusive competences; instead, they only set criteria to identify a well-placed authority (i.e., not the best

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