EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

the temporal and territorial scope of the investigations by several competition authorities did not overlap. According to the CJEU, whether the undertakings have adopted conduct having as its object or effect the distortion of competition cannot be assessed in the abstract but must be examined with reference to the territory in which the conduct in question had such an object or effect, and to the period during which the conduct in question had such an object or effect ( Toshiba , para 99). The CJEU therefore concluded – in line with the reasoning of the Advocate General (AG Kokott, 2011, para 131) – that as long as the decisions of different NCAs cover different territorial and temporal aspects of the same conduct, their jurisdictions do not “overlap” and the ne bis in idem principle cannot be breached, as there is no idem ( Toshiba , para 98). Thus, the CJEU does not “need” the three-pronged test to secure the compatibility of parallel proceedings with the ne bis in idem principle (Petr, 2017); it therefore remains a mystery why it keeps referring to it, despite its Menci case-law. It is worth mentioning that the same interpretation of the identity of the facts in antitrust proceedings is suggested by Advocate General Bobek, claiming that the prohibition of Article 50 of the Charter applies only in so far as the temporal and geographical scope of the subject matter is the same (AG Bobek, 2021b, para 87). It thus seems that the theory of “non-overlapping” effects makes parallel application compatible with the ne bis in idem principle, whether it is interpreted in line with the Toshiba- style three-pronged test or the Menci -style facts-only approach. From this point of view, there is nothing preventing the CJEU from abandoning the three-pronged test and adopting the universal approach, outlined in Menci , which is arguably more compatible with the ECtHR case law. It is worth mentioning that Advocate General Bobek argues to the contrary, in favour of making the three-pronged test a universal benchmark for assessing idem according to the Charter; the facts-only approach shall be reserved for Schengen cases (AG Bobek, 2021a). Despite such a re-interpretation of idem would mean a “revolution” in EU law, it would – for the reasons stated above – have no direct effects on competition law enforcement; for that, the theory of “non-overlapping” jurisdictions is decisive. This leads us to the final question: even though repeatedly endorsed by the CJEU, is this theory in line with the ne bis in idem principle? 3.4 Time to think again? We put forward it is not. The ECtHR understands idem as a set of concrete factual circumstances which are inextricably linked together ( Zolotukhin , para 84); so does the CJEU ( Menci , para 35). The facts themselves are therefore decisive.

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