PRINCIPLE NE BIS IDEM - EC ANTITRUST ENFORCEMENT - ARTICLE 4 OF PROTOCOL NO 7 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS - ARTICLE 50 OF THE CHARTER OF FUNDAMENTAL RIGHTS - EFFICIENT PROSECUTION - EU NETWORK - REGULATION NO 1/2003

The principle of ne bis in idem in EC antitrust enforcement: A legal and economic analysis

This article deals with the application of the principle of ne bis in idem in EC antitrust enforcement. The principle of ne bis in idem, laid down in Article 4 of Protocol No. 7 to the European Convention on Human Rights and in Article 50 of the Charter of Fundamental Rights of the European Union, is the European equivalent of the double jeopardy clause in the United States. It contributes to efficient law enforcement, in that it prevents over-punishment, creates incentives for efficient prosecution, prevents vexatious multiple prosecutions and create incentives for efficient coordination between prosecutors. The application of the principle of ne bis in idem is of particular importance in the context of the EU network of competition authorities set up by Regulation No. 1/2003. It will have the likely and desirable effect of inducing effective coordination between the European Commission and the competition authorities of the Member States as well as harmonization of their laws and policies on fines en leniency.

I. Introduction 1. The principle of ne bis in idem (or non bis in idem), which is the European equivalent of the double jeopardy clause in the US, restricts the possibility of a same defendant being prosecuted or punished several times for the same offence. 2. The purpose of this article is to study the application of this principle to EC antitrust enforcement. The article will focus more specifically on the prosecution and punishment of hard-core violations of Articles 81 or 82 EC, such as price cartels. 3. Enforcement with regard to such violations takes place essentially through the imposition of fines on companies. Indeed, the European Commission (hereafter also: «the Commission») lacks the power to impose or to seek the imposition of other types of sanctions. [1] According to

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  • King’s College (London)

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Wouter Wils, The principle of ne bis in idem in EC antitrust enforcement: A legal and economic analysis, December 2004, Concurrences N° 1-2004, Art. N° 34871, www.concurrences.com

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