EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

If the principal criterion for determining whether the ne bis in idem principle was breached was instead only the question whether the parallel proceedings are “non-overlapping”, the assessment would not be based on the facts alone, but rather on the discretion of competition authorities to open proceedings ( Nazzini , 2015, p. 146). Even the criteria in A and B are arguably not met. It is therefore submitted that if specific conduct of the same undertakings constitutes a single continuous conduct under the competition law, it ought to be treated as a single case, as idem , and may be, as far as its effects within the EU are concerned, investigated only by a single ECN member, be it the Commission or an NCA. For this approach to be effective, the NCAs would need to be able to apply the EU competition law exterritorialy. Should the CJEU concur with Advocate General Bobek that the current EU law does not allow it, Regulation 1/2003 would need to be amended. In order to achieve compliance with the ne bis in idem principle, interpreted in the way suggested above, further legislative changes would be necessary in EU competition law; in particular, Regulation 1/2003 ought to be amended in order to make sure that within the EU, only a single competition authority may be dealing with the same case, even when the anticompetitive conduct effects markets in more Member States. Corresponding amendments would have to be made in the ECN Notice. It should also be discussed whether the rules determining the competence of a particular ECN member, contained in the ECN Notice, are sufficient. Admittedly, the criteria according to which a “well-placed” authority (which would need to be re-named in order to identify the “best-placed” one) may be chosen are rather flexible, it is nonetheless the case that they work well in practice, which may be demonstrated by the very low number of re-allocated cases (CSWP Report, para 220). In our opinion, it is thus not necessary to further refine these criteria. 4. Conclusion Discussions concerning the ne bis in idem principle have so far been mostly focused on the three-pronged test and its compatibility with the ECtHR’s jurisprudence. We argue in this contribution that a single standard for idem needs to be established throughout EU law, for the purposes of antitrust parallel proceedings, it is nonetheless immaterial whether it would be the Toshiba- style three-pronged test or the Menci -style facts-only approach. The decisive argument allowing for parallel proceedings is the theory of “non overlapping” jurisdictions; as long as different competition authorities are dealing with different territorial and temporal aspects of the same conduct of the same undertakings, there is no idem . We argue that such an interpretation does not

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