![]() ![]() Where the competition authorities of the Member States or national courts apply national competition law to any abuse prohibited by Article 82 of the Treaty, they shall also apply Article 82 of the Treaty.Ģ. Where the competition authorities of the Member States or national courts apply national competition law to agreements, decisions by associations of undertakings or concerted practices within the meaning of Article 81(1) of the Treaty which may affect trade between Member States within the meaning of that provision, they shall also apply Article 81 of the Treaty to such agreements, decisions or concerted practices. Article 3 of Regulation (EC) No 1/2003, ( 4) entitled ‘Relationship between Articles 81 and 82 of the Treaty and national competition laws’, reads as follows: Article 101 TFEU prohibits as incompatible with the internal market ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market’.Ħ. Article 50 of the Charter, entitled ‘Right not to be tried or punished twice in criminal proceedings for the same criminal offence’, states that: ‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’ĥ. Does the same protected legal interest exist in two sets of national proceedings in which two national competition authorities have applied the same provision of EU competition law, as well as their respective national competition rules?Ĥ. Second, the specific nature of the present case lies in the need to restate what constitutes the identity of relevant facts for the purposes of the principle ne bis in idem. ( 3) Above all, the Court is also invited – yet again, one might add – to clarify its understanding of the identity of the protected legal interest. First, what criteria should guide the interpretation of idem for the purposes of ne bis in idem in competition law and, in general, under Article 50 of the Charter? I deal with those issues in detail in my parallel Opinion in bpost. ( 2) To that extent therefore, this Opinion relies on the analysis already carried out in that Opinion. The present case gives rise to two issues in particular. In essence, does that principle preclude parallel or subsequent competition law proceedings in another Member States for what appears to be, at least in part, the same behaviour?ģ. It is in this context that the Oberster Gerichtshof (Supreme Court, Austria) raises questions about the scope of the principle ne bis in idem enshrined in Article 50 of the Charter of the Fundamental Rights of the European Union (‘the Charter’). In the main proceedings, the Austrian national competition authority seeks a declaration that those undertakings have breached Article 101 TFEU and Austrian competition law, while apparently relying on the same facts as those already contained in the German decision.Ģ. ![]() The German national competition authority has found that those two undertakings infringed Article 101 TFEU and German competition law. Nordzucker and Südzucker are two sugar producers. (Reference for a preliminary ruling – Competition – Conduct investigated by two national competition authorities – Principle ne bis in idem – Simultaneous application of EU and national competition law – Identity of the protected legal interest – Territorial effects of a decision of a national competition authority – Leniency programme)ġ. ![]() (Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria)) ![]()
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