Opinion of the Advocate General — ECLI:EU:C:2011:552
Date: 2011-09-08
Language of the case: Czech
Subject matter: Accession;Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Czechia

summary, therefore, the first sentence of Article 11(6) in conjunction with the first sentence of Article 3(1) of Regulation No 1/2003 cannot be interpreted as representing a permanent and definitive obstacle to the application of national competition law. That conclusion is, however, subject to any restrictions that may arise from the ne bis in idem principle. This final point of law in the present case is addressed in the following section. 2. Prohibition against prosecution and punishment for the same cause of action (ne bis in idem principle) 97. It remains to be considered whether the prohibition against prosecution and punishment for the same cause of action (ne bis in idem principle) precludes the application of national competition law by the national competition authority in a case such as this one. 98. The referring court and the claimants in the main proceedings take the view that the anti-competitive consequences to which the contested cartel gave rise in the Czech Republic prior to its accession to the European Union have already been penalised by the Commission Decision of 24 January 2007. They therefore assume that the fine imposed separately by the Czech competition authority infringes the ne bis in idem principle. 99. The ne bis in idem principle is recognised as a general principle of law at EU level (106) and now enjoys the status of a fundamental right of the European Union under Article 50 of the Charter of Fundamental Rights. 100. The fact that it is recognised at EU level means that the scope of the ne bis in idem principle extends beyond purely national cases and includes cross-border situations, (107) which is conducive to the free movement of EU citizens and to the aim of reducing barriers to trade within the European internal market to a minimum. a) Applicability of the ne bis in idem principle 101. It is in fact common ground that the ne bis in idem principle must be observed in proceedings for the imposition of a fine under antitrust law because of their similarity to proceedings at criminal law. (108) (109) The Commission none the less casts doubt on the applicability of the ne bis in idem principle in this case, at least as far as Article 50 of the Charter of Fundamental Rights is concerned. (i) Applicability ratione materiae 102. The Commission submits that the Charter of Fundamental Rights is applicable only in relation to the implementation of EU law. Since the Czech competition authority relied only on national competition law in its contested decision in this case, it was not bound by the Charter. 103. That objection does not hold water. It is indeed true that Article 51(1) of the Charter of Fundamental Rights states that the Charter applies ‘to the Member States only when they are implementing Union law’. (110) The mere fact that national competition law is applicable ratione materiae in the present case does not mean, however, that there are no requirements of EU law as to how the case should be dealt with. 104. As I have already said, (111) the procedural rules of Regulation No 1/2003 — unlike its substantive rules — have been applicable in the Czech Republic since the date of its accession to the European Union. They include not least the rules and principles governing the delimitation of competences within the network of European competition authorities which was established by Regulation No 1/2003. (112) Those rules and principles must be interpreted and applied in accordance with EU primary law, including the fundamental rights of the EU. 105. Consequently, since 1 May 2004, the Czech competition authority has been able to conduct proceedings for the imposition of a fine under antitrust law only in so far as that Regulation No 1/2003, interpreted and applied in the light of the fundamental rights of the EU, leaves it scope to do so. 106. Those fundamental rights, which must be respected in determining the margin for manoeuvre left to the Czech authority, include in particular the ne bis in idem principle, as codified in Article 50 of the Charter of Fundamental Rights. For the ne bis in idem principle affects not only matters of substance but also matters of procedure. For example, as well as protecting the defendant, the ne bis in idem principle also serves to prevent conflicts of jurisdiction (so-called positive conflicts of jurisdiction) between the different authorities, which may be dealing with the matter as a criminal case or an administrative offence. (113) i) Temporal applicability 107. For the sake of completeness, I shall also make two short reflections on the question of the temporal applicability of the ne bis in idem principle. 108. On the one hand, it should be recalled that, in 2006 and 2007, the Charter of Fundamental Rights did not yet produce any binding legal effects comparable to primary law. (114) None the less, as a material source of law, the Charter — in particular Article 50 for our purposes here — shed light even then on the fundamental rights guaranteed at EU level. (115) This is particularly true in relation to matters falling within the scope of Regulation No 1/2003 given that the preamble to that regulation contains an express reference to the Charter. (116) In the context of Regulation No 1/2003, therefore, the fundamental rights of the Charter have had to be observed since 1 May 2004, that is to say the date on which that regulation entered into force in both the old and the new Member States. 109. On the other hand, it should be noted that the contested decision imposing a fine which was adopted by the Czech competition authority relates to a period prior to the Czech Republic’s accession to the European Union. However, the relevant time for the purposes of the temporal applicability of the ne bis in idem principle under EU law is not the point at which the prosecuted offence was committed but the point at which the corresponding criminal proceedings or proceedings for the imposition of a fine were initiated. (117) In 2006, when the Czech competition authority initiated proceedings for the imposition of a fine in this case, the Czech Republic was already a Member State of the European Union and was therefore required to observe the EU-law principle of ne bis in idem. 110. In summary, therefore, there is no obstacle to the application of the EU-law principle of ne bis in idem on grounds of time either. b) Extent of the guarantee provided by the ne bis in idem principle: What is an idem? 111. In substance, the ne bis in idem principle, as codified by Article 50 of the Charter of Fundamental Rights of the European Union, states that no one may 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 European Union in accordance with the law. 112. Transposed to the field of competition law, the ne bis in idem principle precludes 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. (118) 113. The issue in dispute in this case, as in so many antitrust proceedings, is what criteria are to be used to determine whether the undertakings concerned were prosecuted or punished again for the same anti-competitive conduct when the Czech competition authority imposed a fine on them. It is therefore necessary to clarify the meaning of idem. 114. Up to now, the EU courts have proceeded on the assumption, when dealing with proceedings under competition law, that the application of the ne bis in idem principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. (119) Under the ne bis in idem principle, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset. (120) 115. Of the aforementioned three conditions, the application of the first two (identity of the facts and unity of offender) is not in issue. What is in dispute, however, is the applicability of the third condition, that is to say the criterion of unity of the legal interest protected. It is by reference to that criterion that the Court has rejected the application of a prohibition against prosecution and punishment for the same cause of action in antitrust proceedings involving the EU’s relationship with non-member States. (121) 116. In areas of law other than competition law, however, the Court has not applied that third condition. For the purposes of disciplinary proceedings under civil service law, it has thus been guided only by the factual situation (whether the facts were ‘different’). (122) Indeed, in the context of the rules governing the area of freedom, security and justice (Article 54 of the CISA (123) and the European arrest warrant, (124) ) the Court has expressly considered the criterion of unity of the legal interest protected to be irrelevant. (125) In such circumstances, it has consistently held that the only relevant criterion is identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together. (126) 117. To interpret and apply the ne bis in idem principle so differently depending on the area of law concerned is detrimental to the unity of the EU legal order. The crucial importance of the ne bis in idem principle as a founding principle of EU law which enjoys the status of a fundamental right means that its content must not be substantially different depending on which area of law is concerned. (127) For the purposes of determining the scope of the guarantee provided by the ne bis in idem principle, as now codified in Article 50 of the Charter of Fundamental Rights, the same criteria should apply in all areas of EU law. This point has rightly been made by the EFTA Surveillance Authority. 118. There is no objective reason why the conditions to which the ne bis in idem principle is subject in competition matters should be any different from those applicable to it elsewhere. For, in the same way as, within the context of Article 54 of the CISA, that principle serves to guarantee the free movement of EU citizens in EU territory as a ‘single area of freedom, security and justice’, (128) so, in the field of competition law, it helps to improve and facilitate the business activities of undertakings in the internal market and, ultimately, to create uniform conditions of competition (a ‘level playing field’) throughout the EEA. 119. For the purposes of identifying the relevant criteria for defining idem, it must be borne in mind that the ne bis in idem principle is based largely on a fundamental right enshrined in the ECHR, (129) more specifically, Article 4(1) of Protocol No 7 to the ECHR, although that protocol has not yet been ratified by all the EU Member States. (130) That close proximity to the ECHR is indicated not only by the Explanations on Article 50 of the Charter of Fundamental Rights, which must be duly taken into account by the courts of the European Union and of the Member States, (131) but also by the previous case-law of the Court of Justice concerning the general EU-law principle of ne bis in idem. (132) 120. The requirement of homogeneity (133) is therefore applicable. It follows from that requirement that rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR. In other words, Article 4(1) of Protocol No 7 to the ECHR, as interpreted by the European Court of Human Rights (ECtHR), describes the minimum standard that must be guaranteed in the interpretation and application of the ne bis in idem principle in EU law. 121. Whereas the case-law of the ECtHR on the meaning of idem had lacked uniformity for a long time, the ECtHR held, in a landmark judgment in 2009, that Article 4 of Protocol No 7 to the ECHR prohibits the prosecution or trial of a second offence in so far as it arises from identical facts or facts which are substantially the same. (134) This means that the ECtHR has regard only to whether or not the facts are identical and expressly not to the legal classification of the offence. (135) Moreover, in so doing, it is itself guided primarily by the case-law of the Court of Justice on the area of freedom, security and justice. (136) In addition, the form of words used by the ECtHR to define the meaning of identical facts is very similar to that employed by the Court of Justice. There is nothing to indicate that the ECtHR might be inclined to the view that the scope of the guarantee provided by the ne bis in idem principle is less extensive specifically in the area of competition law. (137) On the contrary, while the judgment of the Court of Justice in Aalborg Portland, which establishes the criterion of unity of the legal interest protected, is cited by the ECtHR, it does not rely on it as a basis for its interpretation of the ne bis in idem principle. (138) 122. It follows that, for the purposes of interpreting and applying idem in the context of the prohibition against prosecution and punishment for the same cause of action under EU law also, account should henceforth be taken only of the identity of the facts (which necessarily includes the unity of the offender). (139) 123. Retaining the criterion of unity of the legal interest protected would have the effect, ultimately, of narrowing the scope of the prohibition against prosecution and punishment for the same cause of action under EU law and causing the guarantee which it provides to fall short of the minimum standard laid down in Article 4(1) of Protocol No 7 to the ECHR. This would not be compatible with the requirement of homogeneity. As I shall show below, (140) the problems posed by relations with non-Member States, which the Court has previously resolved by recourse to the criterion of unity of the legal interest protected, can be appropriately taken into account another way (as part of the examination of the identity of the facts). 124. It must there be concluded that, for the purposes of determining idem within the meaning of the ne bis in idem principle, account is to be taken only of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together. In other words, the two cases must concern identical facts or facts which are substantially the same. (c) Application to the present case: no idem 125. Transposed to the present case, the foregoing interpretation of idem means that it must be examined whether the Commission Decision (141) and the decision of the Czech competition authority (142) relate to the same material acts, that is to say to identical facts or facts which are substantially the same. (i) The territory and period of time in which the cartel produces or may produce effects are essential components of the facts 126. Conceivably, the material acts could always be said to be identical where two decisions adopted by competition authorities relate to the same cartel. This would seem to be the very broad understanding of idem that the referring court and some of the parties to the proceedings have in mind. 127. However, such an understanding would fail to take into account the characteristics which infringements of competition law, and cartel offences in particular, exhibit. 128. Cartels are prohibited and prosecuted precisely because they have adverse effects on competition or are in any event capable of adversely affecting competition. In the words of Article 81(1) EC (Article 101(1) TFEU), undertakings participating in a cartel are penalised by competition authorities because their conduct has as its object or effect the prevention, restriction or distortion of competition. 129. Whether the conduct in a particular case had as its object or effect the prevention, restriction or distortion of competition cannot be assessed in the abstract, but must always be examined with reference to a specific period of time and a specific territory. (143) After all, the action penalised under Article 81 EC (Article 101 TFEU) consists not in the cartel agreement itself but in its application. (144) It interferes with the structure of competition and this in turn may ultimately be detrimental to consumers in the relevant territory at the relevant time. 130. In the context of cartel offences, the material acts to which the ne bis in idem principle is then applicable necessarily always include, therefore, the period of time and the territory in which the cartel agreement had anti-competitive effects (a restriction of competition ‘by effect’) or could have had such effects (a restriction of competition ‘by object’). This has nothing to do with the legal interest protected or the legal characterisation of the facts. Rather, the actual or potential effects of a cartel are an indispensable component of the facts on account of which the undertakings participating in the cartel are prosecuted by a competition authority and cannot thereafter be prosecuted for a second time (ne bis in idem). (145) 131. The prohibition under EU law against prosecution and punishment for the same cause of action (the ne bis in idem principle) prevents more than one competition authority or court from imposing penalties for the anti-competitive consequences of one and the same cartel in relation to the same territory and the same period of time within the European Economic Area. (146) On the other hand, the ne bis in idem principle does not in any way prohibit more than one competition authority or court from penalising restrictions of competition — by object or by effect — resulting from one and the same cartel in different territories or during different periods of time within the European Economic Area. 132. The EU-law principle of ne bis in idem certainly does not preclude an international cartel from being prosecuted, on the one hand, by authorities within the EEA and, on the other hand, by the authorities of non-member States in their respective territories. (147) This is also indicated by the wording of Article 50 of the Charter of Fundamental Rights, which refers to persons who have already been finally acquitted or convicted ‘within the Union’. 133. The ne bis in idem principle is intended to ensure that undertakings are not prosecuted more than once and, where appropriate, punished more than once for the anti-competitive consequences — whether by object or by effect — of their collusive conduct. It is not meant to have the effect of leaving the anti-competitive consequences of such conduct in a particular territory and during a particular period of time unpenalised. 134. Accordingly, the prohibition against prosecution and punishment for the same cause of action is applicable in this case too only if and in so far as the Commission Decision and the decision of the Czech competition authority relate to the same territories and the same periods of time. The mere fact that those decisions concerned a single international (‘worldwide’) cartel which was continuously active for an extended period is not sufficient to support the assumption of the existence of an idem. (ii) The Commission Decision and the decision of the Czech competition authority do not relate to the same effects of the cartel 135. Whether the decisions of two competition authorities relate to identical facts or facts which are substantially the same, so that they concern the same material acts, is, in principle, a matter of factual assessment, which, in preliminary ruling proceedings, falls not to the Court of Justice but remains the task of the referring court. (148) 136. In this case, however, it must be noted that one of the decisions in question is a legal act of the European Commission within the meaning of the fourth paragraph of Article 249 EC (now the fourth paragraph of Article 288 TFEU), in other words, an act of an EU institution. The interpretation of such an act falls within the original jurisdiction of the Court of Justice in preliminary ruling proceedings (point (b) of the first paragraph of Article 267 TFEU). The Court of Justice can therefore provide the referring court with guidance on the scope of the decision imposing a fine adopted by the Commission on 24 January 2007. In the light of its task of providing the national court with any guidance that may be useful to it in resolving the dispute in the main proceedings, (149) the Court of Justice should make good use of that possibility. 137. Unfortunately, neither the operative part of the decision of 24 January 2007 nor its preamble expressly clarifies whether the fines imposed are intended to penalise any adverse effects — by object or by effect — on competition in the territory of the Czech Republic prior to its accession to the European Union, that is to say before 1 May 2004. (150) The precise extent of the territory to which the Commission’s decision and the fines it imposes relate must therefore be determined through interpretation. 138. The referring court and the claimants in the main proceedings consider that the territory of the Czech Republic is covered by the Commission’s decision in relation to both the period before and the period after 1 May 2004. They cite as evidence for this, in particular, the fact that the Commission speaks of a worldwide cartel and did not expressly exclude the Czech Republic from the scope of its decision. 139. However, the Commission’s decision is also open to a different interpretation. This is supported, first, by the fact that its grounds do not contain any express indication that it does in fact cover any anti-competitive consequences to which the cartel gave rise in the territory of the Czech Republic in the period prior to its accession to the European Union. On the contrary, the Commission specifically refers at several points to the cartel’s effects within the European Community and the EEA, (151) sometimes even making express mention of the ‘Member States (at the time)’ and the ‘Contracting Parties’ to the EEA Agreement at the time. (152) 140. The references in the Commission Decision to a worldwide cartel may be understood as explanations of the way in which the cartel operated and do not necessarily say anything about which anti‑competitive consequences of the cartel the Commission was ultimately penalising by way of the fines which it imposed. In so far as the Commission also referred to the cartel members’ worldwide turnover, (153) it did so only with a view to comparing the relative sizes of the undertakings concerned in order to take account of their actual capacity to cause significant damage to the market in gas insulated switchgear in the EEA. (154) 141. The calculation of the fines, too, shows that the Commission did not intend its Decision also to cover the Member States which acceded on 1 May 2004. After all, the basis for calculating of the fines was the cartel members’ turnover in the EEA in 2003, in other words, the year before the European Union’s extension to the east. (155) 142. There is a further important reason why the Commission Decision should be interpreted as applying only to the cartel’s anti-competitive consequences within the EEA: the scope of legal acts adopted by the EU institutions cannot validly exceed that of their legal basis. (156) As I have already said, Article 81 EC was not applicable in the territory of the Czech Republic in the period prior to its accession to the European Union, and the Commission could not exercise any sovereign rights in that territory before 1 May 2004. (157) If the Commission had none the less adopted a decision imposing on undertakings a fine relating to the territory of the Czech Republic in the period prior to 1 May 2004, it would thus have exceeded the limits of its competence. 143. It is settled case-law that, according to a general principle of interpretation, an act of the European Union must be interpreted, as far as possible, in such a way as not to affect its validity. (158) If an act of secondary EU law is open to more than one interpretation, preference should be given to the interpretation which renders that act consistent with the Treaties rather than to the interpretation which leads to its being incompatible with the Treaties. (159) 144. In application of those principles, the Commission Decision of 24 January 2007 must therefore be interpreted as meaning that the fines which it imposes do not penalise infringements of the competition rules in the territory of the Czech Republic in the period prior to its accession to the European Union. 145. It must therefore be concluded that the Commission Decision does not cover any anti-competitive consequences — by object or by effect — to which the cartel at issue gave rise in the territory of the Czech Republic in the period prior to 1 May 2004, whereas — according to the information supplied by the referring court — the decision of the Czech competition authority imposed fines only in relation to that territory and that period. Accordingly, while both decisions have as their subject-matter infringements brought about by the same international cartel, they are otherwise based on different facts. (160) 146. In the light of all the foregoing, the Commission Decision and the decision of the Czech competition authority do not relate to the same material acts, which means that, by its decision, the Czech competition authority did not infringe the prohibition against prosecution and punishment for the same cause of action (ne bis in idem principle). 3. Interim conclusion 147. In summary, it must be concluded that the EU-law principle of ne bis in idem does not preclude penalties which the national competition authority of the Member State concerned imposes on undertakings participating in a cartel on account of the anti‑competitive consequences to which the cartel gave rise in the territory of that Member State prior to its accession to the European Union, provided that any fines previously imposed on the same cartel members by the European Commission did not relate to those same consequences. VI – Conclusion 148. In the light of the foregoing considerations, I propose that the Court’s answers to the questions referred should be as follows: (1) Article 81 EC and Article 3(1) of Regulation No 1/2003 are not applicable in a Member State which acceded to the European Union on 1 May 2004 to periods prior to that date of accession, even in the context of the prosecution of an international cartel constituting a single and continous infringement which was capable of producing effects in the territory of the Member State concerned both before and after the date of accession. (2) In accordance with Article 11(6) in conjunction with Article 3(1) of Regulation No 1/2003, the fact that the European Commission initiates, in relation to such a cartel, proceedings under Chapter III of Regulation No 1/2003 does not relieve the national competition authority of the Member State concerned of its competence to penalise under national competition law the anti-competitive consequences to which the cartel gave rise in the territory of that Member State in periods prior to its accession to the European Union. (3) The EU-law principle of ne bis in idem does not preclude penalties which the national competition authority of the Member State concerned imposes on undertakings participating in a cartel on account of the anti‑competitive consequences of the cartel in the territory of that Member State prior to its accession to the European Union, provided that any fines previously imposed on the same cartel members by the European Commission did not relate to those same consequences. 2 – Original language: German. 3 – Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). According to the second paragraph of Article 45 of that regulation, it has been applicable since 1 May 2004. 4 – Case 14/68 Walt Wilhelm and Others [1969] ECR 1. 5 – Úřad pro ochranu hospodářské soutěže. 6 – .Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33). 7 – Agreement on the European Economic Area (‘EEA’) (OJ 1994 L 1, p. 3). 8 – The Charter of Fundamental Rights of the European Union was solemnly proclaimed, first, in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) and then, for a second time, in Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1, and OJ 2010 C 83, p. 389). 9 – OJ 2004 C 101, p. 43. 10 – Article 2(2) of the Treaty of Accession (Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union (OJ 2003 L 236, p. 17)). 11 – Zákon č. 63/1991 Sb., o ochraně hospodářské soutěže. 12 – Zákon č. 143/2001 Sb., o ochraně hospodářské soutěže. 13 – Gas insulated switchgear is used to control energy flow in electricity grids. It is heavy electrical equipment which forms a major component of turnkey substations and accounts for 30% to 60% of the total costs of such a substation. The purpose of switchgear is to protect the transformer from overload and/or to insulate the circuit or a faulty transformer. Switchgear may be insulated by gas, air or a combination of the two, known as hybrid insulation. 14 – The Czech competition authority was not the only authority which had dealt with that case. Some of the parties to the proceedings pointed out before the Court that the Slovak competition authority had also taken action against the cartel at issue (Decisions 2007/KH/1/1/109 of 27 December 2007 and 2009/KH/R/2/035 of 14 August 2009), which decisions had also led to judicial proceedings before the Regional Court (Krajský soud), Bratislava (document number 4 S 232/09). 15 – See the fourth citation in the preamble to the Commission Decision. 16 – The leniency application was made on 3 March 2004 by the Swiss undertaking ABB. 17 – According to information supplied by the Commission, the investigations were carried out on 11 and 12 May 2004 at the premises of AREVA, Siemens, VA Tech and Hitachi (see recital 90 in the preamble to the Commission Decision). 18 – Commission Decision of 24 January 2007 relating to a proceeding under Article 81 of the Treaty establishing the European Community and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas Insulated Switchgear), notified under document number C(2006) 6762 final, summarised in OJ 2008 C 5, p. 7; the full text of the Decision, in a non-confidential version, is available on the internet, in English only, at < http://ec.europa.eu/competition/antitrust/cases/index.html >. 19 – The Commission refers to a ‘single and continuous infringement’ (recitals 270 and 299 in the preamble to the Commission Decision); that said, the established infringement of Article 53 of the EEA Agreement relates only to the period from 1 January 1994, the date of entry into force of the EEA Agreement (see recitals 2 and 322 in the preamble to the Commission Decision). 20 – Recitals 3, 218 and 248 in the preamble to the Commission Decision. 21 – In its Decision, the Commission drew attention to a general agreement under which the Japanese undertakings stayed away from the European market and the European undertakings stayed away from the Japanese market. 22 – ABB Ltd. 23 – See also in this regard Commission Press Release IP/07/80 of 24 January 2007. 24 – The action for annulment of the Commission Decision brought by the German undertaking Siemens AG was dismissed in its entirety by judgment of the General Court of 3 March 2011 in Case T‑110/07 Siemens v Commission [2011] ECR II‑0000. The actions for annulment brought by Siemens AG Österreich and Others was marginally successful with respect to the duration of the established infringement and the amount of the fines; see Joined Cases T‑122/07 to T‑124/07 Siemens and Others v Commission [2011] ECR II‑0000. The actions for annulment brought by AREVA and Others were also only partially successful and resulted in some reduction of the fines imposed; see Joined Cases T‑117/07 and T‑121/07 AREVA and Others v Commission [2011] ECR II‑0000. All the aforementioned judgments are currently under appeal before the Court of Justice; see Case C‑231/11 P Commission v Siemens and Others, Case C‑232/11 P Siemens Transmission & Distribution v Commission, Case C‑233/11 P Siemens Transmission & Distribution v Commission, Case C‑239/11 P Siemens v Commission, Case C‑247/11 P Areva v Commission and Others, and Case C‑253/11 P Alstom and Others v Commission. Some actions for annulment which were at the time of the hearing of the present case, pending at first instance before the General Court were successful, others unsuccessful; see Case T‑112/07 Hitachi and Others v Commission [2011] ECR II‑0000, Case T‑113/07 Toshiba v Commission [2011] ECR II‑0000 Case T‑132/07 Fuji Electric Holdings and Others v Commission [2011] ECR II‑0000, and Case T‑133/07 Mitsubishi Electric v Commission [2011] ECR II‑0000. 25 – Reference number S 222/06-3113/2007/710. 26 – Reference number R 059-070, 075-078/2007/01-08115/2007/310. 27 – For the period up to 30 June 2001, they were found to have infringed Article 3(1) of Law No 63/1991 and, for the period from 1 July 1991 to 3 March 2004, Article 3(1) of Law No 143/2001. 28 – Again, ABB Ltd. 29 – The highest individual fine amounted to CZK 107 248 000. 30 – Krajský soud v Brně. 31 – Reference number 62 Ca 22/2007-489. 32 – Nejvyšší správní soud. 33 – Judgment cited in footnote 3. 34 – Reference number Afs 93/2008-920. 35 – Paragraph 110(3) of Law No 150/2002 Sb. on Administrative Procedure (Zákon č. 150/2002 Sb., soudní řád správní). 36 – Reference number 62 Ca 22/2007-124. 37 – Fuji Electric Holdings Co. and Fuji Electric Systems Co. Ltd submitted written observations and presented oral argument jointly. 38 – Hitachi Ltd., Hitachi Europe Ltd. and Japan AE Power Systems Corporation submitted written observations and presented oral argument jointly. 39 – The German company Siemens AG submitted only written observations. At the hearing, it was represented jointly with Siemens Transmission & Distribution SA and Nuova Magrini Galileo SA. 40 – European Competition Network. 41 – Case C‑302/04 Ynos [2006] ECR I‑371, paragraphs 35 to 37; see to the same effect, most recently, Case C‑32/10 Semerdzhiev [2011] ECR I‑0000, paragraph 25. 42 – See in this regard point 30 of this Opinion, above. 43 – Case C‑173/09 Elchinov [2010] ECR I‑0000, in particular paragraphs 24, 25, 27, 30 and 32. 44 – Which was signed on 2 October 1997 and entered into force on 1 May 1999. 45 – The referring court and a number of the parties to the proceedings commented on Article 11(6) of Regulation No 1/2003 and on the ne bis in idem principle in the context of the first question. I do not, however, consider it necessary to examine these two points here and I shall therefore confine myself at this stage to making reference to my observations on the second question (see points 69 to 147 of this Opinion, below). 46 – Both the Commission Decision and the decision of the Czech competition authority are based on the characterisation of the cartel as a single and continuous infringement. The only impact of the fact that the Czech Supreme Administrative Court proceeds on the premiss that there have been two separate infringements of the competition rules, depending on whether the period in question is that before or after 1 May 2004, should be that a unitary factual occurrence will be subjected to different legal assessments. 47 – See to this effect Case 21/81 Bout [1982] ECR 381, paragraph 13, Case C‑120/08 Bayerischer Brauerbund [2010] ECR I‑0000, paragraphs 40 and 41, and Case C‑369/09 P Polska and Others [2011] ECR I‑0000, paragraph 98. 48 – Joined Cases 212/80 to 217/80 Salumi [1981] ECR 2375, paragraph 9, Case C‑61/98 De Haan [1999] ECR I‑5003, paragraph 13, and Case C‑450/06 Varec [2008] ECR I‑581, paragraph 27. 49 – On the classification of Article 11(6) of Regulation No 1/2003 as a procedural rule of law, see point 73 of this Opinion below. 50 – .Bayerischer Brauerbund (cited in footnote 46, paragraph 41). 51 – Case 143/73 SOPAD [1973] ECR 1433, paragraph 8, Case C‑162/00 Pokrzeptowicz-Meyer [2002] ECR I‑1049, paragraph 50, Case C‑428/08 Monsanto Technology [2010] ECR I‑0000, paragraph 66, and Bayerischer Brauerbund (cited in footnote 46, paragraph 41). 52 – It is sufficient for the cartel to be capable of producing such effects (see Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraphs 38, 39 and 43; see to the same effect Case C‑209/07 Beef Industry Development Society and Barry Brothers [2008] ECR I‑8637, in particular paragraphs 16 and 17, and Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services v Commission [2009] ECR I‑9291, paragraphs 55 and 63). 53 – See to the same effect Case 40/70 Sirena [1971] ECR 69, paragraph 12, in relation to Article 85 of the EEC Treaty. 54 – .Bout (cited in footnote 46, paragraph 43), Salumi (cited in footnote 47, paragraph 9), Pokrzeptowicz-Meyer (cited in footnote 50, paragraph 49), Bayerischer Brauerbund (cited in footnote 46, paragraph 40) and ISD Polska and Others (cited in footnote 46, paragraph 98). 55 – See in this regard, most recently, my Opinions in the two Cases C‑109/10 P [2011] ECR I‑0000, point 329, and C‑110/10 P [2011] ECR I‑0000, point 170, each with further references. 56 – Hitachi itself admits this in its written observations. 57 – Paragraph 3(1) and (2) of the Law on the Protection of Competition, initially in the version of Law No 63/1991 Sb., and subsequently in the version of Law No 143/2001 Sb. 58 – Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Czech Republic, of the other part (OJ 1994 L 360, p. 2), which was signed in Luxembourg on 4 October 1993 and entered into force on 1 February 1995. 59 – The second paragraph of Article 45 of Regulation No 1/2003 states that it has been applicable since 1 May 2004. 60 – .Walt Wilhelm (cited in footnote 3, paragraphs 4 and 6). 61 – Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others [2005] ECR I‑3565, paragraphs 68 and 69, Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 59, and Case C‑61/11 PPU El Dridi [2011] ECR I‑0000, paragraph 61. 62 – In accordance, of course, with the general principles of EU law, in particular the principle of proportionality. 63 – See in this regard my Opinion in Berlusconi and Others (cited in footnote 60, points 159 and 160). 64 – See in this regard my Opinion in Berlusconi and Others (cited in footnote 60, point 161). 65 – See in this regard points 69 to 147 of this Opinion, below. 66 – Case 97/87 to 99/87 Dow Chemical Ibéricaand Others v Commission [1989] ECR 3165, in particular paragraphs 62 and 63. 67 – See points 42 and 44 of this Opinion. 68 – In his Opinion in Hoechst v Commission (Joined Cases 46/87 and 227/88 [1989] ECR 2859, 2875), which is related to Dow Chemical Ibérica, Advocate General Mischo points out that the applicants in Dow Chemical Ibérica did not contest the Commission’s power to punish conduct on their part prior to accession in so far as it produced and was producing anti-competitive effects within the common market (point 213). The Advocate General points out, moreover, that investigations carried out by the Commission into companies following Spain’s accession may also yield evidence against undertakings established in other Member States (point 215). The Advocate General adds that, by their very nature, investigations can deal only with facts which arose in the past, even if the conduct in question continues into the present (point 216). 69 – Opinion of Advocate General Geelhoed in Case C‑238/05 Asnef-Equifax [2006] ECR I‑11125, points 28 and 29. 70 – See points 42 and 44 of this Opinion. 71 – In point 29 of his Opinion (cited in footnote 68), Advocate General Geelhoed states that ‘the current situation … is governed’ by Article 3 of Regulation No 1/2003. As regards future effects, the Advocate General states that the decision to be taken (in accordance with Article 3 of Regulation No 1/2003) will ‘affect the functioning of the proposed register’. 72 – Case C‑43/95 Data Delecta and Forsberg [1996] ECR I‑4661, Case C‑122/96 Saldanha and MTS [1997] ECR I‑5325, paragraph 14; Case C‑302/97 Konle [1999] ECR I‑3099; Case C‑355/97 Beck and Bergdorf [1999] ECR I‑4977; Case C‑195/98 Österreichischer Gewerkschaftsbund [2000] ECR I‑10497, paragraph 55; and Case C‑464/98 Stefan [2001] ECR I‑173, paragraph 21. 73 – .Saldanha and MTS (cited in footnote 71, paragraph 14, emphasis added); see to the same effect, most recently, Case C‑391/09 Runevič-Vardyn and Wardyn [2011] ECR I‑0000, paragraph 53, concerning the principle of non-discrimination against EU citizens; similarly, see the earlier judgment in Stefan (cited in footnote 71), which states that Article 73b of the EC Treaty (now Article 63 TFEU) did not apply in Austria prior to the date of accession (paragraph 22) and that that provision is incapable of remedying an already void legal transaction (paragraph 25). 74 – OJ 2003 L 236, p. 344. 75 – See in this regard point 42 of this Opinion, above. 76 – 1 May 2004 is not only the date of accession to the European Union of the Czech Republic and nine other Member States; it is also the date from which Regulation 1/2003 is to be applicable, in accordance with the second paragraph of Article 45 of that regulation. 77 – Such proceedings under Chapter III include, in particular, proceedings for the finding and termination of infringements of Articles 81 EC and 82 EC or, now, Article 101 TFEU and Article 102 TFEU (Article 7 of Regulation No 1/2003), at the end of which fines, inter alia, may be imposed (Article 23 of Regulation 1/2003). 78 – First sentence of recital 17 in the preamble to Regulation No 1/2003. 79 – In order to initiate proceedings, the Commission must adopt an authoritative act evidencing its intention to take a decision under Chapter III of Regulation No 1/2003 (see to this effect – in relation to the previous legislation — Case 48/72 Brasserie de Haecht [1973] ECR 77, paragraph 16. In the present case, that act was adopted on 20 April 2006 (see point 19 of this Opinion, above). Investigative measures adopted earlier are, contrary to the view of some of the parties to the proceedings, not synonymous with a formal initiation of proceedings. 80 – According to point 51 of the Network Notice, the national competition authorities are to be relieved of their competence to apply Articles 81and 82 EC, which means that the national authorities can no longer act under the same legal basis. Point 53 of the Network Notice goes on to say that, once the Commission has initiated proceedings, the national competition authorities can no longer start their own procedure with a view to applying Articles 81 and 82 EC. 81 – See to this effect the settled case-law in this regard, e.g. Case 292/82 Merck [1983] ECR 3781, paragraph 12, Joined Cases C‑402/07 and C‑432/07 Sturgeon and Others [2009] ECR I‑0923, paragraph 41, and Case C‑162/09 Lassal [2010] ECR I‑0000, paragraph 49. 82 – Case C‑375/09 Tele 2 Polska [2011] ECR I‑0000, paragraph 33. 83 – Those parts of national competition law which remain applicable are mentioned in Article 3(2) and (3) of Regulation No 1/2003, the provisions of which are expanded upon in recitals 8 and 9 in the preamble to that regulation. 84 – I shall confine myself to describing the connection between Article 81 EC (Article 101 TFEU) and the corresponding national provisions. There is no need to examine Article 82 EC (Article 102 TFEU) in the context of the present case. 85 – Where, for example, the Commission has rejected a complaint by third parties because there is no EU interest in the matter, the national competition authorities are free to take up the case in question and to apply to it Article 81 or 82 EC (now Article 101 or 102 TFEU) and, where appropriate, their national antitrust law, ensuring in so doing that they comply with Article 3 of Regulation No 1/2003. 86 – .Walt Wilhelm (cited in footnote 3, last sentence of paragraph 3), Case C‑137/00 Milk Marque and National Farmers’ Union [2003] ECR I‑7975, paragraph 61, and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 38. 87 – According to the Commission’s original proposal, Article 3 of Regulation No 1/2003 was to have had the following wording: ‘Where an agreement, a decision by an association of undertakings or a concerted practice within the meaning of Article 81 [EC] or the abuse of a dominant position within the meaning of Article 82 [EC] may affect trade between Member States, [EU] competition law shall apply to the exclusion of national competition law’ (Proposal COM [2000] 582 final, OJ 2000 C 365 E, p. 284). 88 – See to this effect the first sentence of recital 9 in the preamble to Regulation No 1/2003, which refers to the ‘protection of competition on the market’. 89 – .Walt Wilhelm (cited in footnote 3, paragraph 3); see also Joined Cases 253/78 and 1/79 to 3/79 Giry and Guerlain and Others [1980] ECR 2327, paragraph 15, Case C‑67/91 Asociación Española de Banca Privada and Others [1992] ECR I‑4785 , paragraph 11, Case C‑7/97 Bronner [1998] ECR I‑7791, paragraph 19, Milk Marque and National Farmers’ Union (cited in footnote 85, paragraph 61) and Manfredi and Others (cited in footnote 85, paragraph 38). 90 – Case C‑505/07 Compañía Española de Comercialización de Aceite [2009] ECR I‑8963, paragraph 52. 91 – The judgment in Manfredi and Others (cited in footnote 85, paragraph 38), in which the Court again confirmed the case-law in Walt Wilhelm, was delivered after the entry into force of Regulation No 1/2003 but concerned a situation which pre-dated that reform. Advocate General Geelhoed appears to take a different view of the continuing validity of the case-law in Walt Wilhelm in his Opinion in Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, footnote 23, although it amounts to no more than an unsubstantiated passing remark made in a footnote. 92 – Points 12 and 14 of the Network Notice assume that up to three national competition authorities may deal with the same case at the same time. 93 – In the context of European mergers, national law has always been replaced by EU law where the latter is applicable and the relevant EU law may be applied only by the Commission (principle of double exclusivity); see in this regard Article 21(2) and (3) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p.1). 94 – Recitals 8, 17 and 22 in the preamble to Regulation No 1/2003; see also Case C‑439/08 VEBIC [2010] ECR I‑0000, paragraph 19, and Case C‑360/09 Pfleiderer [2011] ECR I‑0000, paragraph 19, and Case C‑360/09 Pfleiderer [2011] ECR I‑0000, paragraph 19. 95 – Recital 15 in the preamble to Regulation No 1/2003, as well as recital 8, first sentence, and recital 17. See also Case C‑429/07 X [2009] ECR I‑4833, paragraphs 20 and 21, and Tele 2 Polska (cited in footnote 81, paragraph 26), in which it is also pointed out that, in order to ensure the coherent application of the competition rules in the Member States, a cooperation mechanism between the Commission and the national competition authorities was set up by Regulation No 1/2003, as part of the general principle of sincere cooperation. 96 – In so doing, Article 16(2) of Regulation No 1/2003 is in fact merely codifying what was already case-law beforehand; see Case C‑234/89 Delimitis [1991] ECR I‑935, paragraph 47, and Case C‑418/01 IMS Health [2004] ECR I‑5039, paragraph 19. 97 – An interpretation of a provision cannot have the result of depriving the clear and precise wording of that provision of all effectiveness (Case C‑199/05 European Community [2006] ECR I‑10485, paragraph 42, and Case C‑437/04 Commission v Belgium [2007] ECR I‑2513, end of paragraph 56). 98 – As recital 14 in the preamble to Regulation No 1/2003 explains, decisions under Article 10 of that regulation are adopted only ‘[i]n exceptional cases where the public interest of the [European Union] so requires’. 99 – Recital 34 in the preamble to Regulation No 1/2003. 100 – See recitals 8 and 34 in the preamble to Regulation No 1/2003 and, additionally, recitals 1, 5 and 6 in that preamble. 101 – Recitals 17 and 22 in the preamble to Regulation No 1/2003. 102 – See in this regard the aforementioned Article 16(2) of Regulation No 1/2003. 103 – See in this regard my observations on the first question (points 37 to 68 of this Opinion). 104 – Recital 8 in the preamble to Regulation No 1/2003. 105 – First sentence of recital 9 in the preamble to Regulation No 1/2003 (see also, to the same effect, recital 25). 106 – Settled case-law, see Joined Cases 18/65 and 35/65 Gutmann v EAEC Commission [1966] ECR 103 Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission (‘LVM’) [2002] ECR I‑8375, paragraph 59, and Case C‑289/04 P Showa Denko v Commission (‘Showa Denko’) [2006] ECR I‑5859, paragraph 50. 107 – See the Explanation on Article 50 of the Charter of Fundamental Rights (OJ 2007 C 303, p. 17 [31]). The cross-border component of the prohibition against prosecution and punishment for the same cause of action becomes particularly apparent in Article 54 of the CISA (see in this regard, inter alia, Case C‑297/07 Bourquain [2008] ECR I‑9425). 108 – On the similarity to criminal law, see the references in footnote 54 above. 109 – Settled case-law; see LVM (cited in footnote 105, paragraph 59), Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission (‘Aalborg Portland’) [2004] ECR I‑123, paragraphs 338 to 340, and Showa Denko (cited in footnote 105, paragraph 50). 110 – On the interpretation of Article 51(1) of the Charter of Fundamental Rights, see in particular the Opinion of Advocate General Bot of 5 April 2011 in pending Case C‑108/10 Scattolon [2011] ECR I‑0000, points 116 to 120. 111 – See points 42 and 44 of this Opinion. 112 – Recital 15 in the preamble to Regulation No 1/2003. 113 – See in this regard, for example, the Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings presented by the Commission on 23 December 2005 (COM[2005] 696 final), in particular, the introductory remarks in the first section (‘Background’). 114 – The Charter of Fundamental Rights has had the same legal value as the Treaties only since the entry into force of the Treaty of Lisbon on 1 December 2009 (first subparagraph of Article 6(1) TEU). 115 – See, inter alia, Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 37, and Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 38, as well as my Opinion in Case C‑540/03 Parliament v Council, point 108, and in Case C‑550/07 P Akzo Nobel Chemicals und Akcros Chemicals v Commission and Others [2010] ECR I‑0000, footnote 36. 116 – Recital 37 in the preamble to Regulation No 1/2003. 117 – See to this effect Case C‑436/04 Van Esbroeck [2006] ECR I‑2333, paragraphs 21 to 24. 118 – .LVM (cited in footnote 105, paragraph 59). 119 – .Aalborg Portland (cited in footnote 108, paragraph 338). 120 – .Aalborg Portland (cited in footnote 108, paragraph 338). 121 – .Showa Denko (cited in footnote 105, in particular, paragraphs 52 to 56), Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraphs 28 to 32, and Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraphs 24 to 30. 122 – .Gutmann v EAEC Commission (cited in footnote 105, p. 178). 123 – Convention implementing the Schengen Agreement (‘CISA’) signed in Schengen on 19 June 1990 (OJ 2000 L 239, p. 19). 124 – Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1). 125 – .Van Esbroeck (cited in footnote 116, paragraph 32). 126 – .Van Esbroeck (cited in footnote 116, paragraphs 27, 32 and 36), Case C‑467/04 Gasparini and Others [2006] ECR I‑9199, paragraph 54, Case C‑150/05 Van Straaten [2006] ECR I‑9327, paragraphs 41, 47 and 48, Case C‑367/05 Kraaijenbrink [2007] ECR I‑6619, paragraphs 26 and 28, and Case C‑261/09 Mantello [2010] ECR I‑0000, paragraph 39. 127 – See also to this effect the Opinion of Advocate General Sharpston of 15 June 2006 in Gasparini and Others (cited in footnote 125, point 156). 128 – .Van Esbroeck (cited in footnote 116, paragraphs 33 to 35); see also Gasparini and Others cited in footnote 125 (paragraph 27), Van Straaten (paragraphs 45 to 47, and 57 and 58) and Case C‑288/05 Kretzinger [2007] ECR I‑6441, paragraph 33. 129 – European Convention on the Protection of Human Rights and Fundamental Freedoms (‘ECHR’, signed in Rome on 4 November 1950). 130 – Four Member States of the European Union (Belgium, Germany, the Netherlands and the United Kingdom) have not yet ratified Protocol No 7 to the ECHR. 131 – Third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights. 132 – .LVM (cited in footnote 105, paragraph 59) and Showa Denko (cited in footnote 105, paragraph 50). 133 – Third subparagraph of Article 6(1) TEU and first sentence of Article 52(3) of the Charter of Fundamental Rights. 134 – .Zolotukhin v. Russia [GC], 10 February 2009, no. 14939/03, § 82, not yet published in the Reports of Judgments and Decisions: ‘…Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same’. 135 – .Zolotuhkin v. Russia (cited in footnote 133, § 81). 136 – The ECtHR refers in particular to the judgments in Van Esbroeck (cited in footnote 116) and Kraaijenbrink (cited in footnote 125), which are reproduced in extract in its judgment in Zoltukhin v. Russia (cited in footnote 133, §§ 37 and 38). 137 – In its judgment concerning Article 6 of the ECHR, Jussila v. Finland [GC], no. 73053/01, § 43, ECHR 2006-XIV, the ECtHR does not regard competition law as a traditional category of criminal law and assumes that, outside the ‘hard core’ of criminal law, the criminal-law guarantees provided for in Article 6(1) of the ECHR will not necessarily apply with their full stringency. The judgment in Zolotukhin v. Russia (cited footnote 133), however, does not contain comparable findings such as to indicate that competition law has a special status in relation to the ne bis in idem principle also. 138 – The judgment in Zolotuhkin v. Russia (cited in footnote 133, § 36) reproduces the passage from the judgment in Aalborg Portland (footnote 108, paragraph 338) that refers to identity of the legal interest protected. 139 – The ECtHR, too, recognises the requirement of unity of the offender in the judgment in Zolotukhin v. Russia (cited in footnote 133, § 84). It refers in that judgment to ‘a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space’ (emphasis added). 140 – See in this regard points 125 to 134 of this Opinion, in particular points 131 to 133, below. 141 – See point 20 of this Opinion, above. 142 – See in this regard points 23 and 24 of this Opinion, above. 143 – ‘Territory’ here does not mean the geographically relevant market used to analyse competition, but the territory in which a course of conduct has the effect of preventing, restricting or distorting competition. 144 – Case 7/72 Boehringer v Commission [1972] ECR 1281, paragraph 6; to the same effect, Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others v Commission [1998] ECR 5193, paragraph 16. 145 – The judgment in Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission (‘Archer Daniels Midland’) [2006] ECR I‑4429, paragraphs 68 and 69, in conjunction with paragraph 64, can also be interpreted to this effect. The Court points out in that judgment that ‘the facts are not identical’ (paragraph 69) where sanctions are imposed for the applications or effects of a cartel on different ‘markets’ (paragraph 69) or ‘territories’ (paragraph 66); in that case, these were, on the one hand, the territory of a non-member State and, on the other hand, the territory of the European Community at that time. 146 – See to this effect Showa Denko (cited in footnote 105, paragraph 54). 147 – See again Archer Daniels Midland (cited in footnote 144, paragraphs 68 and 69). 148 – Settled case-law; see, inter alia, Case 36/79 Denkavit Futtermittel [1979] ECR 3439, paragraph 12, Case C‑265/04 Bouanich [2006] ECR I‑923, paragraph 54, Case C‑409/06 Winner Wetten [2010] ECR I‑0000, paragraph 41, and Joined Cases C‑316/07, C‑358/07, C‑359/07, C‑360/07, C‑409/07 and C‑410/07 Stoß and Others [2010] ECR I‑0000, paragraph 62. 149 – Settled case-law; see Case C‑49/07 MOTOE [2008] ECR I‑4863, paragraph 30, Case C‑279/06 CEPSA [2008] ECR I‑6681, paragraph 31, and Case C‑358/08 Aventis Pasteur [2009] ECR I‑11305, paragraph 50. 150 – Thus, the Commission states in recital 478 in the preamble to its decision that ‘the infringement covered at least the whole territory of the EEA’. 151 – See, for example, recitals 2, 218, 248 and 300 in the preamble to the Commission Decision; see also Article 1 of the Commission Decision, which defines the infringement as participation in a complex of agreements and concerted practices in the EEA. 152 – Recital 218 in the preamble to the Commission Decision; see to the same effect recitals 321 and 322. 153 – See, in particular, recitals 478, 481 and 482 in the preamble to the Commission Decision. 154 – .Archer Daniels Midland (cited in footnote 144, paragraphs 73 and 74). 155 – Recital 478 in the preamble to the Commission Decision. 156 – See to this effect Case C‑65/04 Commission v United Kingdom [2006] ECR I‑2239, paragraph 27. 157 – See in this regard my observations on the first question (points 37 to 68 of this Opinion); see to the same effect Joined Cases T‑456/05 and T‑457/05 Gütermann v Commission [2010] ECR I‑0000, paragraph 40. 158 – Joined Cases C‑402/07 and C‑432/07 Sturgeon and Others [2009] ECR I‑10923, paragraph 47; see to the same effect Case C‑403/99 Italy v Commission [2001] ECR I‑6883, paragraph 37. 159 – Case 218/82 Commission v Council [1983] ECR 4063, paragraph 15, Case C‑135/93 Spain v Commission [1995] ECR I‑1651, paragraph 37, and Case C‑305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 28. 160 – Should it none the less prove to be the case that the Czech competition authority imposed penalties also in relation to the period after 1 May 2004, an idem would exist only to that extent — that is to say only in relation to the anti-competitive consequences of the cartel in the Czech Republic after its accession to the European Union.