EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

3. Analysis and Problem Solution The ne bis in idem principle constitutes a fundamental procedural guarantee in criminal proceedings; even though infringements of EU competition law do not technically constitute a crime, it is uncontested that the principle of ne bis in idem fully applies to them as well (di Frederico, 2011, p. 243). In the European Convention on Human Rights (Convention), it is defined in Article 4 of Protocol No. 7, whereas in the Charter, it is provided for in Article 50. The wording of these two provisions is practically identical, both of them prohibit repeated prosecution for the same offence ( même infraction ). In addition to the Convention and the Charter, it is also important to mention the Convention implementing the Schengen Agreement (CISA), which also incorporates the ne bis in idem principle, though formulated in a different way: whereas the Convention and the Charter prohibit second proceedings concerning the same offence, the CISA refers to the same act ( les mêmes faits ). A similar formulation can also be found in the European Arrest Warrant. 3.1 Different Strands of Jurisprudence The provisions on ne bis in idem have been repeatedly subject to interpretation. In this chapter, we will present the most relevant jurisprudence as it stands today. 3.1.1The CJEU’s Schengen case law We shall start our analysis with the Van Esbroeck judgement from 2006. Mr. van Esbroeck, a Belgian national, was sentenced in Norway for trafficking narcotics into Norway. After he was released and escorted back to Belgium, he was sentenced there for trafficking narcotics out of Belgium. According to the CJEU, the fact that national criminal laws are not harmonized makes the legal criterion (same offence) inapplicable in practice, as it would vary from state to state. Therefore, the CJEU concluded that the only relevant criterion for the application of Article 54 of the CISA is the identity of the material acts [ l’ identité des faits matériels ], understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together ( Van Esbroeck , para 36). The same interpretation was later adopted by the CJEU concerning the similarly worded European Arrest Warrant ( Mantello , para 40). 3.1.2The ECtHR’s case law Four years after Van Esbroeck , the ECtHR reviewed its interpretation of the ne bis in idem principle in the Zolotukhin case in 2010. The facts of the case were rather complicated; in essence Mr. Zolotukhin, while drunk, was at different places verbally offensive to different police officers and threatened them with physical violence. He was first sentenced for an administrative offence, consisting

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