Transnational “Ne Bis In Idem” Principle and European Competition Law with Regard to the Different Approaches to Corporate Criminal Liability Among EU Member States
In the following contribution three issues are discussed. First of all, this chapter discusses the meaning and the scope of the transnational “ne bis in idem” principle in the European Union law. The second issue deals with the applicability of this principle in European competition law in particular. Last but not least, this contribution focuses on the question if and to what extent the different approaches to corporate criminal liability among the EU Member States could influence the implementation of the “ne bis in idem” principle and lead to its breach.
The Law on Fines Imposed in EU Competition Proceedings: Faster, Higher, Harsher
In numerical terms, 2012 was a relatively average year for the application of the law on fines imposed in EU competition law proceedings. The European Court of Justice (ECJ) and the General Court delivered 59 judgments and orders concerning fines, which obviously is not insignificant but marks a serious decrease compared to the 84 judgments and orders issued in 2011. This decrease was not compensated by a flurry of new Commission decisions, as in 2012 there were only four decisions imposing fines for infringements of Article 101 TFEU. In 2012 the Commission has apparently not adopted any decision fining a company for an infringement of Article 102 TFEU. This does not come as a surprise, as the development of the commitment procedure has meant that decisions finding infringements of Article 102 TFEU are now exceptional. Nonetheless, 2012 remains an important year for the application of EU law on fines. In TV and computer monitor tubes, the Commission imposed a record aggregate fine of E1.47 billion on seven groups of companies for two decade-long cartels. According to press reports, in the same decision the Commission granted a huge reduction of the fine—E219 million—on account of an undertaking’s inability to pay the fine. In 2012 the Commission also took the still relatively rare step of imposing a procedural fine to sanction obstruction during a dawn raid. At the judicial level, 2012 has also seen the consolidation of the body of law on the 2006 Guidelines. The General Court has delivered important judgments on the ne bis in idem principle, the conditions for partial immunity and recidivism. It has also clarified issues on which there is still little case law, such as inability to pay and the calculation of fines for obstruction, non-compliance with a decision finding an infringement, and gun jumping. On substance, 2012 will remain a gloomy year for undertakings. Obviously, not all new developments concerning fines were adverse to offenders. Undertakings will certainly welcome the Commission’s relative openness on inability to pay, which, as the TV and computer
The Modernisation of European Competition Law: First Experiences with Regulation 1/2003 (Report to FIDE Congress 2008)
This paper is the institutional report written by the author for the Twenty-Third Congress of the FIDE - International Federation for European Law (Federation Internationale pour le Droit Europeen). The biennial FIDE Congresses are widely recognized as the premier forum for discussion of EU law developments. The twenty-third Congress took place in Linz, Austria, 28 to 31 May 2008. This extensive Report reviews the practical experience acquired with operation of Regulation 1/2003, the Modernisation Regulation. This statute introduced Copernican changes in the enforcement system of EU competition law such as the abandonment of the notification system, and the transformation of Article 81(3) into a legal exception directly applicable by all enforcers and national judges. The Regulation also set out mechanisms for cooperation between the Commission and national authorities and courts, provided for new types of decisions, and expanded the Commission's remedial and investigative powers in competition cases. The Report: - outlines the decision-making practice of the Commission in the last four years, and examines the impact of the new procedural arrangements on the Commission's productivity and duration of proceedings; - describes the experiences made by the Commission in cooperating with national competition authorities and national courts; - discusses the Commision's new powers of investigation, such as the power to inspect private homes; - discusses in detail the case law from the European Court of Justice (ECJ) or the Court of First Instance interpreting the new provisions of Regulation 1/2003, including landmark cases such as France Telecom (case allocation) Akzo Nobel (attorney-client privilege), and Alrosa/De Beers (limits of negotiated commitments leading to closure of a case). Although written by an official of the European Commission, the report reflects personal views not attributable to the institution. In relation to individual, identifiable cases, the report refers exclusively to information publicly available. Developments in substantive competition law are outside the scope of the report, which focuses on the procedural and institutional aspects of the enforcement of Articles 81 and 82 EC.