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ARTICLE: EUROPEAN UNION - PROCEDURES - SANCTIONS - NE BIS IN IDEM

Untangling the inextricable: The notion of “same offence” in EU competition law

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In the EU, the ne bis in idem principle restricts the ability of enforcement authorities to prosecute or punish the same defendant for the same criminal offence more than once. That protection applies to competition fines due to its punitive and deterrent nature and its degree of severity. While in that area, the ECJ has traditionally held notably in the field of competition that the notion of same offence entails that the legal interest protected must be the same, the ECJ has also affirmed, in apparently contradictory terms, that in other circumstances, the legal interest protected is not relevant for the purposes of establishing the existence of a same offence. By reconstructing the reasons for that divergence, the article argues that, in the area of competition, in which the penalties are harmonised, the unity of the legal interest is still a necessary requirement to apply the protection conferred by that principle. This is because in the field of competition, unlike in other areas of EU law, the Commission and the national competition authorities share concurring competences on a clear differentiation based on the notion of effect on EU trade. It follows that the Commission and the national authorities can deal with separate aspects of a same anticompetitive conduct by pursuing separate offences and different legal interests. Competition is a horizontal discipline that overlaps with sectoral regulations. This entails that concurrent proceedings to sanction materially different offences other than competition should be possible without this infringing the ne bis in idem protection.

I. The ne bis in idem principle and EU law 1. Ne bis in idem is an established general principle of EU law, restricting the ability of law enforcement authorities to prosecute or punish a same defendant for a same criminal offence more than once. [1] The aim of the principle is to prohibit the repetition of criminal proceedings after a first absolution or conviction, as reflected by the wording of Article 50 of the Charter of Fundamental Rights (“Charter”). [2] 2. Preceding the Charter, on 22 November 1984 the Contracting States of the European Convention on Human Rights (ECHR) signed Protocol 7 to the ECHR. Article 4 of this Protocol includes the ne bis in idem principle, [3] with an equivalent formulation but the scope limited to a same Contracting State. 3. Article 4 of Protocol 7

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Authors

  • European Commission - Legal Service (Brussels)
  • Single Resolution Board (Brussels)

Quotation

Pierpaolo Rossi, Valentina Sansonetti, Untangling the inextricable: The notion of “same offence” in EU competition law, 16 July 2020, Concurrences N° 3-2020, Art. N° 95557, pp. 59-68

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