EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

placed one). Thus, even though Regulation 1/2003 proclaims as its objective that each case should be handled by a single authority, it is possible that more authorities will deal with a single case (ECN Notice, paras 5 – 15). Parallel proceedings, i.e., situations when the same case is investigated (and possibly, a fine is imposed) by multiple ECN members, are relatively rare in practice. Five years after the modernization, the Commission reported only a single case (CSWP Report, p. 66). Still, the saga of Booking.com, where the putatively anticompetitive vertical agreements of that undertaking came under review in several EU Member States (Report on booking sector), resulting in some countries in a prohibition decision and in others in a commitment decision, whereas in other countries, the proceedings were closed, demonstrates that parallel proceedings may constitute a real problem. In this case, materially the same conduct of the same company was investigated by 16 NCAs in parallel. Apart from “practical” issues for the undertakings concerned, who need to concentrate on multiple proceedings instead of just one, parallel proceedings raise the fundamental question of whether they are in line with the ne bis in idem principle. This problem is exacerbated by the fact that the reasoning of the Court of Justice of the European Union (CJEU) on ne bis in idem in the area of competition law is arguably not in line with the jurisprudence of the European Court of Human Rights (ECtHR) and even the CJEU’s own case law in other areas of EU law. The CJEU has so far been avoiding this inconsistency issue. It has nonetheless been lately invited to revisit the question of parallel proceedings in the Nordzucker and Sudzucker case, in which Advocate General Bobek delivered his opinion in September 2021; the CJEU has not decided yet. Before the judgement will be passed, we would like to look at the issue of ne bis in idem anew. 2. Problem Formulation and Methodology In this contribution, we will argue that the interpretation of ne bis in idem is inconsistent in the CJEU’s practice and that the specific approach it adopted vis à-vis antitrust cases is not justified. On the basis of this, and taking into account the opinion of AG Bobek, we will try to outline a new approach to ne bis in idem for the future. In order to do so, we will first analyse the seminal case law on ne bis in idem of the CJEU in Schengen cases, followed by the ECtHR jurisprudence and the “general” CJEU case lawon the Charter of Fundamental Rights (Charter) and finally the specific judgements concerning competition law, taking into account the relevant literature. On the basis of this, we will propose recommendations for future practice.

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