As discussed para. 2.4 of this study, it is important to make a clear distinction between the prohibition of double prosecution (Erledigungsprinzip), and the prohibition of double punishment (Anrechnungsprinzip), when discussing the ne bis in idemprinciple. Although these two guarantees are often considered jointly, both in some of the cases as well as legal literature, they actually have considerably less in common than one wouldprima facieexpect on several points. Firstly, the prohibition of double prosecution is essentially a procedural guarantee, whereas the prohibition of double punishment is (primarily) a substantive one. Secondly, by its very nature, the prohibition of double prosecution only applies in respect of the possibility of asecondtrial, whereas there appears to be no reason why the prohibition of doublepunishmentwould
7 Para. 154. See furthermore the 2007 ‘Comments on the accession of the European Union/
European Community to the European Convention on Human Rights’ by the European Commission for democracy through law (Venice Commission), available from: http:// www.venice.coe.int/docs/2007/CDL(2007)096-e.pdf.
8 For this reason Jacobs argues that accession to the ECHR would by now have “rather limited
concrete effects for the observance of human rights standards in the EU”. See his brief note on the subject, available from http://www.statewatch.org/news/2007/sep/jacobs-eu- echr.pdf.
not also prohibit a double penalty, imposed on a subjectwithin one and the same set of proceedings.
A third difference between the two guarantees is that, whereas theErledi- gungsprinzipcounts the respect for res iudicata, legal certainty, as well as a number of other legal principles amongst itsrationale, the samerationaledo not necessarily apply to the prohibition of double punishment. Therationale underlying the prohibition of double punishment would generally seem to be that of proportionality, ‘reasonableness’, ‘equity’, or an equivalent or similar legal concept in any given domestic legal system.
Article 4P7ECHR, Article 14(7)ICCPR, and Article 50 of the Charter all refer to both guarantees jointly, in the same sentence, which could convey the impression that the two guarantees form different aspects of thene bis in idem principle. Only theCISAestablishes the two prohibitions as distinct, comple- mentary guarantees: Article 54 of theCISAlays down the prohibition of double prosecution (“may not be prosecuted in another Contracting Party”), whereas Article 56CISAestablishes the prohibition of prosecution (Anrechnungsprinzip) as aseparateguarantee, which may apply in cases in which theErledigungs- prinziplaid down in Article 54CISAdoesnotapply.
There has been a clear development in the case law of theECJon the point of the substance of the prohibitions. In Walt Wilhelmthe ECJ did not (yet) mention thene bis in idemprinciple, but hinted that a prohibition of double prosecutioncould have logically resulted from the relationship between EC competition law and national competition laws,ifthis relationship had been regulated in a certain manner by Regulation 17/62. In Boehringer, the ECJ confirmed that prohibition of doublepunishment is a general requirement of natural justicebut did not go into the question whether the same could apply where penalties, imposed in third countries were concerned. It took several decades before theECJclearly established, in thePVCcase, that the prohibition of double prosecution (Erledigungsprinzip) must be seen as thene bis in idem principle ‘proper’, when it stated that: “the principle ofnon bis in idem, which is a fundamental principle of Community law also enshrined in Article 4(1) of Protocol No 7 to theECHR, precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision.”10
In a later case,Lysine, theECJcame full circle when it accepted that the prohi- bition of doublepunishmentforms a corollaryof the ne bis in idemprinciple. These developments will be discussed in more detail below.
10 In an earlier appeal in the same case, the CFI had coinedboththe prohibition of double
4.3.2 The substance of thene bis in idem principle in the case law of the European Court of Justice
Although hardly a landmark case, Gutmann11was the first case before the ECJconcerning thene bis in idem principle. Mr. Gutmann, an official of the European Atomic Energy Community (“EAEC”), was accused of charging to the Community “the expense of repairs for a camera belonging to him and private telephone calls”. A decision was reached to issue a reprimand, and the inquiry was terminated. After that further inquiries were launched “on the ground of certain irregularities which have been found and a complaint lodged by a head of division, without specifying whether these were new factors”.
In its judgment, theECJheld that it was not sufficiently clear from the file presented to it by the Commission what precisely the first proceedings were based on, and ordered the Commission to present the files integrally. When the Commission came forward with the files, the Court held that there were no grounds for finding that the two inquiries were based on different conduct, and that there were therefore no circumstances which could justify a second inquiry.12It appears from the judgment that the
ECJbased its findings mainly on the Commission’s inability to produce any convincing circumstances which could justify the second proceedings against Mr. Gutmann; thene bis in idem principle as such was hardly given any consideration.
Walt Wilhelm,13which was also discussed in para. 3.10.2, is undoubtedly
a landmark judgment and has played an seminal role in the further develop- ment of the case law of the Community courts on thene bis in idemprinciple. The German Bundeskartellambt had initiated proceedings against a cartel between a group of German undertakings under the relevant provisions of German competition law, after the Commission had done the same, in respect of the same agreement. TheKartellsenatof theKammergericht Berlin14stayed
proceedings and referred preliminary questions to theECJ, asking whether
11 Joined Cases 18/65 and 35/65Gutmann v Commission of the EAEC[1966] ECR 103.
12 “Despite the opportunities given to the Commission to give details of the reasons for the fresh disciplinary inquiry, and to distinguish them from those given for the earlier pro- ceedings, the vague terms of the contested decision of 20 and 21 January 1965 renders the Court unable to exercise its power of review. The position would have been different if the two disciplinary proceedings had been based, not on general complaints cabale of referring to an indeterminate and unverifiable number of reprehensible matters, but rather on facts which are themselves sufficiently clearly defined to make it possible to distinguish them from all other earlier or later grounds of complaint.”
13 Case 14/68Walt Wilhelm and Others[1969] ECR 1.
national authorities are at liberty to “apply to the same facts the provissions of national law” after the Commission initiated proceedings.15
TheECJheld that Regulation 17/62 only dealt with the competence of the authorities of the Member States in so far as they are authorised to apply (now) Articles 81 (1) and 82 EC,16and that it did not apply to situations in which
national authorities applynationalcompetition laws.17According to the judg-
ment, “Community and national law on cartels consider cartels from different points of view. Whereas article (...) 85 regards them in the light of obstacles which may result for trade between the Member States, each body of national legislation proceeds on the basis of the considerations peculiar to it and con- siders cartels only in that context.”
At this point it should be noted that these findings by theECJdo not appear to build on thene bis in idemprinciple as such, but follow directly from Regula- tion 17/62. Although theECTreaty “authorizes the Council to determine the relationship between national laws and the Community rules on Competition”, the Council had not made use of this competence in Regulation 17/62.18The
ECJcould therefore only come to the conclusion that “so long asno regulation has been issued under article 87(2) (e), no means of avoiding such a possibility is to be found in the general principles of Community law”.19In spite of the
fact that the “economic phenomena and legal situations” concerned may well be “interdependent”, one and the same agreement may therefore “in principle, be the object of two sets of parallel proceedings”.20
TheECJfurthermore held that, although Regulation 17/62 left the Member States free in the design and application of their national competition laws, this freedom is not unlimited. “If the ultimate general aim of the Treaty is to be respected, this parallel application of the national system can only be allowed in so far as it does not prejudice the uniform application throughout the common market of the Community rules on cartels and of the full effect of the measures adopted in implementation of those rules”. If there is a conflict between national law and Community law on this point, Community law will take precedence.21
15 Furthermore, theKartellsenatasked whether “the risk of its resulting in a double sanction
imposed by the Commission (…) and by the national authority with jurisdiction in cartel matters renders impossible the acceptance for one set of facts of two parallel procedures”.
In essence, theKartellsenattherefore asked whether this situation was capable of violating
thene bis in idemprinciple.
16 …in situations in which the Commission has not stepped in and taken action. 17 Para. 3 of the judgment
18 Para. 4 of the judgment. 19 italics added.
20 Para. 3 of the judgment.
21 Para. 6 of the judgment, “so long as a regulation adopted pursuant to Article 87(2)(e) of the Treaty has not provided otherwise” (para. 9 of the judgment).
Turning to the question whether, alternatively, it could be that the risk of accumulation ofpenaltiesimposed “renders impossible the acceptance for one set of facts of two parallel procedures, the one Community and the other national”, theECJanswered in the negative, but added that “a general require- ment of natural justice” demands that, in determining the amount of a fine, the Commission musttake accountof any penalties already imposed by the authorities of the Member States, in respect of the same conduct..22
It is important to note that the ECJ did notfind that the ne bis in idem principle is not applicableper sein the relationship between the Member States and the Community; the judgment appears to leave this possibility open. Rather, it appears from the judgment that there must be a specificgroundin Community law in order for thene bis in idemprinciple to apply. In the context op competition law, this ground would lie in the regulation of the relationship between national and Community competition laws. It appears that theECJ held that the prohibition of double prosecution could therefore,in principle have followed from the relationship betweenECcompetition law and national competition laws,ifthis relationship had been the regulated by the Council in bringing about Regulation 17/62. This was, however, not the case.
If the prohibition of double prosecution is not directly applicable, and double punishment may result from double prosecution, could it then perhaps followindirectly from the prohibition of double punishment that a second prosecution would be also barred? The ECJ answered this question in the negative. Although it expressly confirmed that the prohibition of double punishment is ageneral requirement of natural justice, and that the Commission must therefore take account of any penalties already imposed in respect of the same conduct, this is in itself insufficient to prevent a secondprosecution. Many questions concerning the interpretation of theWalt Wilhelmjudgment have surfaced over the years in legal literature, Opinions of the AG’s, and judgments of the Community courts. One point which has not received any attention so far is the fact that, inWalt Wilhelm, proceedings were stillpending before the Commission. The outcome of these proceedings was therefore not yetfinal,and for this reason alone thene bis in idemprinciple could not have applied in this instance. For whatever reason however, this instrumental issue was not raised in the proceedings.
The judgment of the ECJ in Boehringer23 concerned the accumulation of
fines imposed by the federalUSauthorities and the Commission for the same infringement of the competition rules. Boehringer requested the Commission by letter to take into account the amount paid by it to the authorities in the
22 “(T)he special system of sharing jurisdiction between the Community and the Member States with regard to cartels” does not preclude the possibility of different proceedings, each “pursuing distinct ends” (para. 11 of the judgment).
US, and to reduce the fine it had imposed accordingly.24 The Commission
refused, and Boehringer launched an appeal against the Commission’s refusal, arguing that the Commission would have “violated a general principle of law prohibiting double penalties for the same action”.25
TheECJconfirmed that the Commission is under a general obligation to take into account the fines imposed by the authoritiesin the Member States, under national competition law. Therefore, “it is only necessary to decide the question whether the Commission may also be under a duty to set a penalty imposed by the authorities of a third State against another penalty if in the case in question the actions of the applicant complained of by the Commission, on the one hand, and by the American authorities, on the other, are iden- tical”.26Nevertheless, the
ECJheld that although the actions brought by the Commission and theUSauthorities were based on the same agreements, the fines imposed by the Commission and theUSauthoritiestargeted different factual aspects of the cartel Boehringer was involved in.27 For this reason, the
ECJ found that the Commission had not infringed any duty to take into account the penalties imposed by the authorities in theUS. It therefore appeared that theECJleft the possibility that such a duty might exist open.
The decision of theECJinBoehringerraises many questions. It is not at all clear from the judgment how the Court determined which “factual aspects” of the cartel were “different”. Furthermore, it is questionable whether this rather vague test is the most appropriate one, where an (international) cartel is concerned. It would have seemed more logical for the Court to ask the question whether the same markets were affected by the litigious conduct, during the same period of time.
In the PVC case,28 the Commission had imposed fines on a number of
undertakings for a breach of Article 81EC. In appeal, the Commission’s de- cision was declared ‘non existent’ by theCFI. In appeal the judgment of the CFIwas set aside by theECJ, and the Commission decision was annulled. After that, the Commission remedied the formal defects that had led to the annul- ment of its decision, and proceeded to adopt essentially the same decision a second time. The undertakings concerned brought another appeal. They
24 Meanwhile, Boehringer appealed the Commissions decision imposing the fine before the Court (Case 45/69), and the fine was reduced by the Court (on different grounds). 25 Para. 2 of the judgment.
26 Para. 3 of the judgment.
27 Para. 4 of the judgment. According to the Court, the fine imposed by the Commission was primarily directed against “a gentlemen’s agreement dividing the Community and UK markets, and the restriction of synthetic quinidine agreed amongst three of the participants in the cartel”, whereas US fines targeted, “amongst other things, also an agreement on ‘quinquina’ bark, the acquisition and division of the American strategic stock by the cartel, and the successive application of particularly high selling prices in the United States until the middle of 1966.”
28 Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/
argued that the second Commission decision breach of thene bis in idemprin- ciple, because the Commission had adopted the same decision a second time. TheCFIobserved that the “the general legal principle ofnon bis in idem, (…) prohibits, first, the imposition of two penalties for the same offence and, secondly, the initiation of proceedings for infringement twice in respect of the same set of facts.”29The Commission cannot therefore bring proceedings
or impose a fine for conduct which theCFIhas already found to beprovenor ‘unproven’by the Commission.
However, according to the CFIthe fact that the Commission adopted a second decision “did not result in the applicants’ incurring a penalty twice in respect of the same offence, and “when the Court of Justice annulled the 1988 decision in its judgment of 15 June 1994 it did not rule on any of the substantive pleas raised by the applicants”.30 For this reason, the
CFIheld that the Commission’s second decision did not breach thene bis in idemprin- ciple.
These considerations reveal some influence of the wording of Article 4P7 ECHR. The wording of that provision leads to a degree of confusion between the two prohibitions which is apparent from the judgment, and culminates in the fact that theCFItakes into consideration that the second Commission decision did not lead to the double imposition of afine. Clearly, this is some- thing which is, in itself, irrelevant for the application of the prohibition of doubleprosecution.31
In appeal in the same case,32the applicants argued that “the Court of First
Instance had made the application of the principle non bis in idem depend on the grounds on which the decision was annulled: the principle applies if the decision was annulled for lack of proof; on the other hand, it does not apply in any other circumstances, as in the present case, where there has been an infringement of essential procedural requirements”, when it stated that the Commission could not bring proceedings against an undertaking or penalise it for anti-competitive conduct which theCFIor theECJhas already found to be either proven or unproven by the Commission, in relation to that under- taking.33
29 Para. 95 of the judgment. 30 Para. 97 of the judgment.
31 Furthermore, the CFI mentions the prohibition of double punishment first,beforethat of