EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

3.2 Is antitrust so special? It is clear from the outline of the case law above that the CJEU’s interpretation of idem in the area of competition law is not only difficult to reconcile with the ECtHR jurisprudence, but also different from its “general” interpretation of the same principal enshrined in the Charter. This has not gone unnoticed. It is submitted in scholarly texts that it is difficult to identify a theoretical basis that would justify a differentiated application of the ne bis in idem principle in the field of competition law and in all other areas of law; if the ne bis in idem principle precludes the repeated prosecution of the same act of drug trafficking, than it is not apparent why it should permit repeated prosecution of the same anti-competitive conduct (Peers, Hervey, and Ward, 2014, p. 1412). Several Advocates General have argued in the same way (AG Sharpston, 2006, paras 155 and 156; AG Kokott, 2011, para 118; AG Wahl, 2018, para 45; AG Bobek, 2021a, para 6). Is this difference justified? Are there any intrinsic characteristics connected with competition law that call for a specific interpretation of the ne bis in idem principle? We do not think so (AG Bobek, 2021a, para 92). It might be argued that antitrust enforcement is special because antitrust practices, in particular cartels, are frequently international, exceeding the state boundaries. A NCA would be able to investigate such a practice in full only if it was allowed to apply the competition law extraterritorially, i.e., taking into account its effects in other Member States; conversely, if the NCAs lacked extraterritorial jurisdiction, an international anticompetitive practice would be investigated in full only either by the Commission (having unlimited jurisdiction throughout the EU) or by all the NCAs involved, thus making the parallel proceedings inevitable. In our previous papers on this topic, we have argued in favour of exterritorialy (Petr, 2020, p. 90), in line with some other scholars (Nazzini, 2015, p. 132) but admittedly contrary to others (Lenaerts and Gerard, 2004, p. 322). The CJEU has not yet delivered a judgement on this issue, Advocate General Bobek however opined that the EU law does not provide a legal basis for exterritorial application (AG Bobek, 2001b, paras 84 and 85). Under such interpretation, parallel proceedings need to be accepted in order to secure effective antitrust enforcement. So yet again: may parallel proceedings be reconciled with the ne bis in idem principle? 3.3 The theory of “non-overlapping” effects The Toshiba judgement made it clear that the CJEU accepts parallel proceedings not because different NCAs pursue different objectives (i.e., the “interest protected” criterion), but because the facts were different, specifically, because

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