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
Constitutional Identity in the EU— A Shield or a Sword?
This Article consists of five sections. In the first section, it describes why identity questions matter, particularly in Europe. In the second section, the Article tackles the issue of multiple structural ambiguities affecting the concept of constitutional identity in the European constitutional vocabulary. In the third section, the Article explores trends concerning the use of constitutional identity in the European legal discourse and practice, including the development of alternative interpretations and applications of the notion of constitutional identities in the Member States. The fourth section of the Article combines the analytical accounts outlined in the second section with the trends identified in the third section, contending that different conceptions and applications of constitutional identity have varying effects on the European composite constitutional adjudication system and that the institutional and procedural framework should be calibrated accordingly. The final section of this Article draws some conclusions.