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Browsing by Author "Nguyen, Linda"

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  • Nguyen, Linda (2013)
    The current EU competition law enforcement regime was created by Regulation 1/2003 which entered into force on 1 May 2004. In essence, the system is based on a decentralised model where the European Commission and national competition authorities have parallel competences to apply EU competition provisions. National competition authorities and courts are obliged to apply Articles 101 and 102 TFEU whenever they apply national competition law to anti-competitive conduct which may affect trade between Member States. Regulation 1/2003 does not, however, preclude parallel proceedings being conducted by several competition authorities in connection with the same anti-competitive conduct. The lack of a ban on multiple proceedings is problematic in the light of the fundamental principle of ne bis in idem which precludes trying and punishing twice for the same criminal offence. This question has become all the more relevant upon the entry into force of the Lisbon Treaty which conferred the Charter of Fundamental Rights of the European Union a legally binding status. The ne bis in idem provision inscribed therein provides an EU-wide protection against double prosecution and punishment. Furthermore, ne bis in idem is also recognised as a general principle of EU law, and it is enshrined in the European Convention on Human Rights which the Union shall accede to. The principle is intrinsically linked to the doctrine of res judicata and is an element of the right to a fair trial, providing proportionality and upholding legal certainty. It precludes not only an accumulation of sanctions, but also any repetition of proceedings in the same matter. The principle encompasses two elements, namely the notion of the ‘same offence’ (idem) and the aspect of ‘twice’ (bis). Although ne bis in idem traditionally applies only in criminal proceedings, the term ‘criminal’ is interpreted broadly and hence the principle also applies in the enforcement of competition law. The purpose of this study is to examine how the ne bis in idem principle should be interpreted in connection with parallel proceedings carried out in the enforcement of Articles 101 and 102 TFEU, and whether the current enforcement regime ensures sufficient compliance with the principle. Can the principle be interpreted as such that it actually precludes multiple investigations and sanctions in connection with the same anti-competitive conduct? These questions are explored from a traditional legal dogmatic approach. In addition to examining primary and secondary legislative tools, this study also refers to soft law instruments. Moreover, analysing court interpretations given to the ne bis in idem principle naturally forms an essential part of this study. Basically, there are three areas of law where the principle has been applied in the EU. First, the Court of Justice has interpreted the principle in competition law matters. Furthermore, the Court has also interpreted the rule in the area of freedom, security and justice where the Convention Implementing the Schengen Agreement provides the applicable provision. Finally, the European Court of Human Rights has interpreted the ne bis in idem rule in the legal framework of the Council of Europe. The case law analysis shows that the interpretation of the ne bis in idem principle in competition matters differs from the other lines of case law. The main difference is that the application of the principle in the area of competition law is subject to three cumulative conditions, namely identity of the facts, unity of offender and unity of the legal interest protected. By contrast, in other areas of law the only relevant criterion is the identity of facts which naturally comprises the unity of offender. One reason for this discrepancy is that the principle of ne bis in idem originates from criminal law, whereas competition infringements cannot always be directly compared to traditional crimes. Defining what constitutes a same competition infringement for which a second investigation and sanction is precluded is difficult due to the fact that anti-competitive conduct consists of a large number of separate acts committed over a long period of time, sometimes even in the territory of several states. The produced effects are essential when assessing the infringement. The doctrine of the three cumulative conditions as well as other principles for applying the ne bis in idem rule in the context of competition law have been developed by the CJEU roughly during the past four decades. Due to the developments in the field of EU competition policy as well as human and fundamental rights protection, there is room for the Court of Justice to critically re-evaluate its interpretation of the ne bis in idem principle in competition matters and make adjustments to match its view with the current state of affairs. The fundamental right of not being tried or punished twice for the same offence has to be observed also in the enforcement of Articles 101 and 102 TFEU.