EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

in swearing in a public place (police station) to the police officers who first interrogated him (Ms. Y and Captain S), and later in criminal proceedings. In that, he was convicted for swearing at a superior police officer (Major K), who was drafting a report on his administrative offence, physically insulting him (by spitting on him) and threatening him with violence (to kill him); the criminal court also investigated Mr. Zolotukhin’s swearing at Ms. Y and Captain S, but it ultimately dismissed these charges. The ECtHR admitted that the different interpretation of idem in its past judgements has produced legal uncertainty, and the Grand Chamber thus needed to harmonise the interpretation thereof. It concluded that only the identity of the facts ( faits identiques ) is decisive, not the legal qualification, and that idem arises from identical facts or facts which are substantially the same ( Zolotukhin , paras 81, 82, and 84) . Despite the different wording of the Convention and CISA, the ECtHR was clearly inspired by the Van Esbroeck judgement. This re-interpretation seemed to have settled the question of idem , the practical issues at national level, that frequently delimit competences to apply specific pieces of legislation among different public authorities, nonetheless led the ECtHR to revisit this issue in the A and B case in 2016. According to this judgement, parallel proceedings concerning the same facts might be in line with the ne bis in idem principle, as long as they form a coherent whole so as to address different aspects of the social problem involved, provided that such parallel proceedings are the product of an integrated system enabling different aspects of the wrongdoing to be addressed in a foreseeable and proportionate manner forming a coherent whole, so that the individual concerned is not thereby subjected to injustice ( A and B , paras 121 and 122); five requirements need to be met in order for such parallel proceedings not to constitute bis ( A and B , para 132). Thus, it seems that the ECtHR has lately abandoned its purely faits identiques approach. 3.1.3The CJEU’s case lawon the Charter Inspired by its Schengen case law, the CJEU ruled in 2018 in the Menci case that it is prepared to interpret the Charter in the same way as CISA, putting emphasis on the facts and concluding that Article 50 of the Charter prohibits the imposition, with respect to identical facts, of several criminal penalties as a result of different proceedings brought for those purposes ( Menci , para 35). The CJEU thus arrived to the same conclusion as the ECtHR did in Zolotukhin . Despite this unambiguous wording, the CJEU nonetheless also took into account the ECtHR’s A and B judgement; it concluded that subsequent proceedings concerning the same facts are permissible under specific circumstances, not because they are not idem (as the ECtHR concluded), but rather because

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