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 Ne Bis in Idem Principle in Proceedings Related to Anti-Competitive Agreements in EU Competition Law
The source of the ne bis in idem principle in European Union law is found in both the Protocol no. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) and in the legal systems of many Member States. It is enshrined in the jurisprudence of the EU courts as a general principle of EU law. Furthermore, it has also been introduced into some international agreements concluded by the Member States, i.e. the Convention on the protection of the European Communities’ financial interests and the Convention on the fight against corruption, which remain an integral part of EU legislation, as well as in the Convention implementing the Schengen Agreement, which has been progressively integrated into EU legislation.Following the entry into force of the Treaty of Lisbon, which incorporates the Charter of Fundamental Rights of the European Union (Charter) into EU primary law, the provision on the application of the ne bis in idem principle is now applied in the European Union in areas broader than just the scope of the three above-mentioned Conventions. The significance of this principle may also be strengthened following the accession of the EU to the Convention, as has been set forth in the new Article 6(2) TEU.The ne bis in idem principle has found its own, lasting place among the rights and guarantees of undertakings in proceedings conducted by the Commission and the national competition authorities (NCAs) of the Member States aimed at prosecuting and/or sanctioning parties for agreements non-compliant with EU competition law. However, it is still not applied in proceedings against agreements having a scope which transcends EU borders, conducted by the Commission or the NCAs of Member States on the one hand, and by the competition authorities of non-member States on the other. This approach is grounded both in the provisions of the Convention and in the provisions of the Charter.
Livestock Aspects of Feed Grain Policy
It is a signal event that our topic should be included on this program. In recent years, the livestock and poultry economy has scarcely been considered in the making of price and income policy for feed grains. It has been disregarded by pragmatic policy makers. It has been almost equally bypassed by theoretical economists, who usually kibitz freely. Policy for support and target prices for corn, grain sorghums, and other feed grains has been made with an eye almost exclusively fixed on the producers of those crops. The target price has been set relatively high in order to protect crop farmers' income. The latest (and current) loan rate policy has been to hold the rate low. Although a low rate facilitates moving grain into livestock and poultry consumption when crops are abundant, it does nothing to provide buffer stocks for years when crops are short. In addition, a couple of years ago it became administrative policy to dispose of the stocks inherited from an earlier period, even subsidizing their sale abroad. But the foremost example of one-sidedness is the attitude toward release prices. In all the rhetoric heard recently about the peril of holding corn or sorghums in reserve, the scold has been that release prices would not be set high enough. What group can the spokesmen have had in mind? Feed producers, of course! Not feed consumers, that is, livestock and poultry men. It has been a one-sided consideration of a two-sided issue. If all groups are to have equal voice in policy making, how can livestock and poultry interests be so ostracized? The one-sidedness has more impact now that so much livestock and poultry production has become detached from feed supply on individual farms. The livestock-poultry economy is therefore more sensitive to the availability and price of feed. It is in fact a contradiction that historically, livestock and poultry got more attention when they were still closely connected with feed production on the farm. In the early years of farm programs, the "ever-normal granary" was consciously designed to level out the supply and price of feed for livestock and poultry. Now that livestock and poultry have become more commercial and more vulnerable to a volatile feed situation, feed price stabilization has been progressively removed from the councils of farm policy. And the ultimate contradiction is that the alleged price-depressing perils of a feed reserve have been proclaimed in disregard of the fact that the main defense of feed grain producers' incomes is the target price-direct payment mechanism, not support prices. If grains on reserve should cause market prices to be reduced below target level, producers would get bigger direct payments, that is, producers with a base on their farm are protected in that way. Admittedly, production outside such a base would not be eligible for payment.