EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

a permissible limitation to the ne bis in idem principle may be applied according to Article 52(1) of the Charter ( Menci , paras 40 – 63). The Menci judgement thus seems to head in the same direction as the ECtHR does. Before concluding that the ECtHR and the CJEU interpret the ne bis in idem principle in practice in the same way, it is nonetheless necessary to examine the CJEU’s specific approach, developed in antitrust cases. 3.1.4The CJEU’s antitrust case law The CJEU originally developed its approach to the ne bis in idem principle in antitrust cases, specifically with regard to international cartels. In the seminal judgment Aalborg Portland of 2004, the CJEU proclaimed that idem is characterised not only by the facts but also by their legal qualification, or more specifically, by the legal interest protected by the infringed legislation; according to the CJEU, the application of the ne bis in idem principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected; under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset ( Aalborg Portland , para 338). This threefold condition is often described as the “three-prong test”, and it is characteristic for all the subsequent ne bis in idem cases in the area of competition law. It was formulated well before the Van Esbroeck judgement, it is therefore surprising that the latter does not in any way refer to the former and that the CJEU did not interpret the same principal in the same way. The CJEU returned to the ne bis in idem principle in antitrust proceedings a decade later in the Toshiba judgement of 2012. Not discussing the details of the case (Monti), the crucial question which was expected from the CJEU was how to deal with the Zolotukhin judgement, which clearly dismissed the relevance of the legal criterion for idem . Surprisingly, the CJEU did not give up its “three-prong test”. Even though Advocate General Kokott argued to the contrary (AG Kokott, 2011, para 118), the CJEU concluded once again that in competition cases, the application of the ne bis in idem principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected ( Toshiba , para 97), not even mentioning the ECtHR’s or its own Schengen case law. The CJEU has kept the same approach up till today, most recently in 2021 in the Slovak Telekom case, three years after Menci , without referring to it or the Zolotukhin judgement.

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