OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 8 September 2011 ( 1 )

Case C-17/10

Toshiba Corporation and Others

(Reference for a preliminary ruling from the Krajský soud v Brně (Czech Republic))

‛Competition — International cartel affecting the territories of the EU, the EEA and the Member States which acceded on 1 May 2004 — Article 81 EC and Article 53 of the EEA Agreement — Prosecution and punishment of the infringement in relation to the periods before and after the date of accession — Fines — Delimitation of the respective competences of the Commission and the national competition authorities — ‘Ne bis in idem’ principle — Article 3(1) and Article 11(6) of Regulation (EC) No 1/2003 — Consequences of the accession of a new Member State to the European Union’

I – Introduction

1. How many competition authorities in Europe may deal with one and the same cartel and impose penalties on the participating undertakings? That, in essence, is the question which the Court has been asked to answer in this reference for a preliminary ruling. It is a question which not only raises fundamental issues relating to the delimitation of the respective competences of the European competition authorities but also has to do with some sensitive aspects of the protection of fundamental rights in the European Union, particularly in the light of the prohibition against prosecution and punishment for the same cause of action (ne bis in idem). The significance of these issues from the point of view of the functioning of the new system for the implementation of antitrust law, as introduced on 1 May 2004 by Regulation (EC) No 1/2003, ( 2 ) is not to be underestimated. The same issues also provide the Court with the opportunity to develop its case-law in Walt Wilhelm, ( 3 ) which is over 40 years old.

2. The background to this case is an international cartel, uncovered in 2004, involving various well-known European and Japanese undertakings in the electrical engineering sector. A number of competition authorities took action against those undertakings and imposed fines on them amounting to millions of euros. These included, at EU level, the European Commission in its capacity as the competition authority for the European Economic Area (EEA), and, at national level, the Czech Authority for the Protection of Competition, ( 4 ) among others.

3. The Czech competition authority applied only national antitrust law and confined the penalty to the cartel’s effects in the territory of the Czech Republic during a period prior to 1 May 2004, the date of the Czech Republic’s accession to the European Union. The corresponding antitrust proceedings, however, were instituted long after 1 May 2004, at a time when the Commission had itself already initiated proceedings under Regulation No 1/2003. Similarly, the Czech competition authority’s decision imposing a fine was issued after the Commission’s own decision imposing a fine.

4. What is now at issue before the courts is whether the action taken by the Czech competition authority was lawful. Toshiba and many other cartel members complain that, in accordance with Article 11(6) of Regulation No 1/2003, the Czech competition authority was not competent to penalise the anti-competitive conduct because the Commission had already initiated proceedings at European level. They also rely on the ne bis in idem principle.

II – Legal context

A – European Union law

5. In addition to the 2003 Act of Accession, ( 5 ) the European Union (EU) law relevant to this case comprises, on the one hand, Article 81 EC (now Article 101 TFEU), Article 53 of the EEA ( 6 ) and Articles 49 and 50 of the Charter of Fundamental Rights of the European Union, ( 7 ) and, on the other hand, Regulation No 1/2003. Reference must also be made to the Commission Notice on cooperation within the Network of Competition Authorities (the ‘Network Notice’). ( 8 )

1. The provisions of primary law

6. The Czech Republic acceded to the European Union on 1 May 2004. ( 9 ) Article 2 of the Act of Accession contains the following provision on the temporal application of European Union law in the Czech Republic and the other nine new Member States: ‘From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act’.

7. Under Article 81(1) EC, all agreements between undertakings which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market are to be prohibited as incompatible with the common market.

8. Article 53 of the EEA Agreement contains a prohibition of anti-competitive agreements, decisions and concerted practices, the content of which is identical to that in Article 81 EC, that covers the whole of the European Economic Area.

9. The principle of legality in relation to criminal offences and penalties (nullum crimen, nulla poena sine lege) is laid down in Article 49(1) of the Charter of Fundamental Rights: ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequently to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.’

10. The prohibition against prosecution and punishment for the same cause of action (ne bis in idem principle) is expressed in Article 50 of the Charter of Fundamental Rights as follows: ‘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.’

2. The provisions of secondary law contained in Regulation No 1/2003

11. The relationship between [Article 81 EC] … and national competition law is governed by Article 3 of Regulation No 1/2003 as follows: ‘(1) 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) [EC] which may affect trade between Member States within the meaning of that provision, they shall also apply Article 81 [EC] to such agreements, decisions or concerted practices. … (2) The application of national competition law may not lead to the prohibition of agreements, decisions by associations of undertakings or concerted practices which may affect trade between Member States but which do not restrict competition within the meaning of Article 81(1)[EC], or which fulfil the conditions of Article 81(3) [EC] or which are covered by a Regulation for the application of Article 81(3) [EC]. Member States shall not under this Regulation be precluded from adopting and applying on their territory stricter national laws which prohibit or sanction unilateral conduct engaged in by undertakings. (3) Without prejudice to general principles and other provisions of [EU] law, paragraphs 1 and 2 do not apply when the competition authorities and the courts of the Member States apply national merger control laws nor do they preclude the application of provisions of national law that predominantly pursue an objective different from that pursued by Articles 81 and 82[EC].’

12. Furthermore, under the heading ‘[c]ooperation between the Commission and the competition authorities of the Member States’, the first sentence of Article 11(6) of Regulation No 1/2003 contains the following provision: ‘The initiation by the Commission of proceedings for the adoption of a decision under Chapter III shall relieve the competition authorities of the Member States of their competence to apply Articles 81 and 82 [EC]’.

13. Finally, under the heading ‘[u]niform application of Community competition law’, Article 16(2) of Regulation (EC) No 1/2003 provides: ‘When competition authorities of the Member States rule on agreements, decisions or practices under Article 81 or Article 82 [EC] which are already the subject of a Commission decision, they cannot take decisions which would run counter to the decision adopted by the Commission’.

14. The aforementioned provisions are explained by recitals 8, 9, 15, 17, 18, 22 and 34 in the preamble to Regulation No 1/2003, which read, in extract, as follows: ‘(8) In order to ensure the effective enforcement of the [European Union] competition rules and the proper functioning of the cooperation mechanisms contained in this Regulation, it is necessary to oblige the competition authorities and courts of the Member States to also apply Articles 81 [EC] and 82 [EC] where they apply national competition law to agreements and practices which may affect trade between Member States. In order to create a level playing field for agreements, decisions by associations of undertakings and concerted practices within the internal market, it is also necessary to determine pursuant to Article 83(2)(e) [EC] the relationship between national laws and [European Union] competition law. … (9) Articles 81 and 82 [EC] have as their objective the protection of competition on the market. This Regulation, which is adopted for the implementation of these Treaty provisions, does not preclude Member States from implementing on their territory national legislation, which protects other legitimate interests provided that such legislation is compatible with general principles and other provisions of [European Union] law. In so far as such national legislation pursues predominantly an objective different from that of protecting competition on the market, the competition authorities and courts of the Member States may apply such legislation on their territory. … … (15) The Commission and the competition authorities of the Member States should form together a network of public authorities applying the [EU] competition rules in close cooperation. … … (17) If the competition rules are to be applied consistently and, at the same time, the network is to be managed in the best possible way, it is essential to retain the rule that the competition authorities of the Member States are automatically relieved of their competence if the Commission initiates its own proceedings. … (18) To ensure that cases are dealt with by the most appropriate authorities within the network, a general provision should be laid down allowing a competition authority to suspend or close a case on the ground that another authority is dealing with it or has already dealt with it, the objective being that each case should be handled by a single authority. … … (22) In order to ensure compliance with the principles of legal certainty and the uniform application of the [EU] competition rules in a system of parallel powers, conflicting decisions must be avoided. It is therefore necessary to clarify, in accordance with the case-law of the Court of Justice, the effects of Commission decisions and proceedings on courts and competition authorities of the Member States. … … (34) The principles laid down in Articles 81 and 82 [EC], as they have been applied by Regulation No 17, have given a central role to the [EU] bodies. This central role should be retained, whilst associating the Member States more closely with the application of the Community competition rules. In accordance with the principles of subsidiarity and proportionality as set out in Article 5 [EC], this Regulation does not go beyond what is necessary in order to achieve its objective, which is to allow the [EU] competition rules to be applied effectively’.

15. Finally, mention should be made of recital 37 in the preamble to Regulation No 1/2003, which relates to the protection of fundamental rights: ‘This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Regulation should be interpreted and applied with respect to those rights and principles’.

3. The Commission’s Network Notice

16. Under the heading ‘3.2. The initiation of proceedings by the Commission under Article 11(6) of the Council Regulation’, the Commission Notice on cooperation within the Network of Competition Authorities provides inter alia the following explanations: ‘… 51. Article 11(6) of [Regulation No 1/2003] states that the initiation by the Commission of proceedings for the adoption of a decision under [that Regulation] shall relieve all NCAs of their competence to apply Articles 81 and 82 [EC]. This means that once the Commission has opened proceedings, NCAs cannot act under the same legal basis against the same agreement(s) or practice(s) by the same undertaking(s) on the same relevant geographic and product market. … 53. … Where the Commission is the first competition authority to initiate proceedings in a case for the adoption of a decision under the Council Regulation, national competition authorities may no longer deal with the case. Article 11(6) of the Council Regulation provides that once the Commission has initiated proceedings, the NCAs can no longer start their own procedure with a view to applying Articles 81 and 82 [EC] to the same agreement(s) or practice(s) by the same undertaking(s) on the same relevant geographic and product market. …’.

B – National law

17. The relevant provision of Czech law is Article 3(1) and (2) of the Law on the Protection of Competition. That provision applied until 30 June 2001 in the version of Law No 63/1991 Sb. ( 10 ) and from 1 July 2001 in the version of Law No 143/2001 Sb. ( 11 ) Both the earlier and the later versions of that provision contain essentially the same prohibition of cartel agreements, which is also laid down at EU level in Article 101 TFEU (formerly Article 81 EC).

III – Facts, administrative procedure and dispute in the main proceedings

18. This case concerns an international cartel on the market for gas insulated switchgear ( 12 ) in which a number of well-known European and Japanese undertakings in the electrical engineering sector participated for different periods between 1988 and 2004. Both the European Commission and the Czech competition authority dealt with certain aspects of this case in 2006 and 2007 and each imposed fines on the undertakings concerned, ( 13 ) although the Czech competition authority did so only under national antitrust law and only in relation to a period prior to the Czech Republic’s accession to the European Union on 1 May 2004.

Administrative procedure at European level

19. On 20 April 2006, the European Commission initiated proceedings for the imposition of a fine on the basis of Article 81 EC and Article 53 of the EEA Agreement in conjunction with Regulation No 1/2003. ( 14 ) Those proceedings, which had been preceded by a leniency application ( 15 ) and investigations carried out at the premises of several members of the cartel in 2004, ( 16 ) were directed against a total of 20 legal persons, including the Toshiba Corporation and 15 other claimants in the main proceedings.

20. In its Decision of 24 January 2007 concluding the proceedings ( 17 ) (‘the Commission Decision’), the Commission states that, from 15 April 1988 until 11 May 2004, ( 18 ) the aforementioned cartel committed a single and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement in which the individual members of the cartel participated for differing periods of time. According to the Commission’s findings, this was a complex cartel operated worldwide (except in the USA and Canada), including in the European Union and the European Economic Area, ( 19 ) under which the participating undertakings, inter alia, exchanged sensitive market information, shared markets, ( 20 ) fixed prices and terminated collaboration with non-cartel members.

21. With the exception of one undertaking, ( 21 ) which benefited from the Commission’s leniency programme, all the parties to the proceedings, including all the claimants in the main proceedings, received fines amounting in total to more than EUR 750 million. ( 22 ) The highest individual fine, EUR 396 million, was imposed on the German company Siemens AG.

22. In so far as is relevant to this case, the General Court of the European Union recently upheld for the most part the Commission Decision of 24 January 2007. ( 23 )

Administrative procedure at national level

23. On the basis of the same cartel, the Czech competition authority, on 2 August 2006, initiated its own proceedings against the same participants for infringement of the Czech Law on the Protection of Competition. On 9 February 2007, it issued an initial decision ( 24 ) against which the claimants lodged an administrative appeal with the competition authority itself. Following that objection, the chairperson of the Czech competition authority then amended the original decision by decision of 26 April 2007. ( 25 )

24. In the appeal decision of 26 April 2007, the competition authority held that the undertakings concerned had concluded a cartel agreement applicable to the territory of the Czech Republic. In so doing, they had, in their capacity as competitors, infringed the Czech Law on the Protection of Competition in the period up to 3 May 2004. ( 26 ) With the exception of one undertaking, ( 27 ) which qualified for the national leniency programme, fines were imposed on all the undertakings affected by the proceedings. ( 28 )

Proceedings before the Czech courts

25. The claimants in the main proceedings brought an action against the decision of the Czech competition authority before the Regional Court, Brno. ( 29 ) They claimed, inter alia, that the Czech competition authority had misrepresented the duration of the cartel, intentionally shifting its termination to the period before the Czech Republic’s accession to the European Union so as to be able to apply the Czech Law on the Protection of Competition. Pursuant to Article 11(6) of Regulation No 1/2003, the Czech competition authority was no longer competent to conduct the proceedings at national level because the Commission had already initiated proceedings at European level in that case. The proceedings at national level infringe the prohibition against prosecution and punishment for the same cause of action (ne bis in idem).

26. By judgment of 25 June 2008, ( 30 ) the Regional Court, Brno, annulled both the appeal decision of the Czech competition authority of 26 April 2007 and its original decision of 9 February 2007. The Regional Court also assumed that the conduct of the claimants which was under examination had represented a continuous administrative infringement which — as the Commission itself established — had lasted until 11 May 2004. Since the Commission had already implemented proceedings under Article 81 EC with respect to the same ‘worldwide’ cartel and had adopted a decision finding the parties to it ‘guilty of the offence’, any further proceedings in the same case infringed the ne bis in idem principle. Furthermore, in accordance with the first sentence of Article 11(6) of Regulation No 1/2003, the Czech competition authority had been relieved of its competence to deal with those proceedings under Article 81 EC.

27. Indeed, in the view of the Regional Court, it would be inconsistent with the uniform application of competition law if the Czech competition authority were to retain competence in respect of the period up to 1 May 2004 even after 1 May 2004 and were able to apply the Czech Law on the Protection of Competition retroactively. The prohibition on cartel agreements set out in that law is substantively the same as that provided for in Article 81 EC. The relevant provision of the Czech Law on the Protection of Competition was formulated with a view to approximating the Czech legislation to the corresponding European law ahead of the Czech Republic’s accession to the European Union.

28. However, the Czech competition authority brought an appeal in cassation before the Supreme Administrative Court of the Czech Republic ( 31 ) against the judgment delivered at first instance by the Regional Court, Brno. It considers that it continues to be competent to take action against the conduct in which the claimants in the main proceedings engaged up to the date of the Czech Republic’s accession, since the Commission was not able to prosecute infringements relating to the Czech Republic before that date. In its view, the fact that an international cartel is punished under more than one head of jurisdiction does not constitute an infringement of the ne bis in idem principle. The Commission and the Czech competition authority were dealing with territorially different effects of that conduct. Furthermore, the case-law in Walt Wilhelm ( 32 ) allows EU competition law and domestic competition law to be applied in parallel.

29. By judgment of 10 April 2009, ( 33 ) the Supreme Administrative Court set aside the judgment of the Regional Court, Brno. In the opinion of the Supreme Administrative Court, the Regional Court wrongly found that the participation in the cartel by the undertakings in question constituted a continuous practice. Before the Czech Republic’s accession to the European Union, the cartel operated on Czech territory fell exclusively within national competence and could be prosecuted exclusively under national law. The date of accession and the associated change of jurisdiction represented a break in the course of events. Although the claimants did not formally bring to an end the infringement which they had committed in the Czech Republic prior to the date of accession, the Supreme Administrative Court considers that that infringement must be regarded as having been terminated. From a formal point of view, the conduct engaged in after the date of accession is a separate infringement, an infringement under EU law, which falls within the shared competence of the domestic competition authority and the Commission, the Commission’s competence taking precedence in law (Article 11(6) of Regulation No 1/2003).

30. The proceedings are now pending once again before the Regional Court, Brno, the referring court, to which the case was referred back for a further decision. Although, under national law, ( 34 ) the Regional Court is bound by the legal opinion of the Supreme Administrative Court, it considers that some clarification is necessary on certain points of EU law relating, on the one hand, to the Czech Republic’s accession to the European Union on 1 May 2004 and, on the other hand, to the entry into force of Regulation No 1/2003. Effectively, then, the reference for a preliminary ruling to the Court of Justice of the European Union is also concerned with the differences of opinion as to the substance of the case that exist between the Regional Court and the Supreme Administrative Court.

IV – Reference for a preliminary ruling and procedure before the Court

31. By order of 11 December 2009, ( 35 ) received at the Court on 13 January 2010, the Regional Court, Brno referred the following questions to the Court of Justice for a preliminary ruling:1) (1) Must Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and 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 be interpreted to mean that that legislation must be applied (in proceedings brought after 1.5.2004) to the whole period of operation of the cartel, which commenced in the Czech Republic before that state’s entry to the European Union (that is, before 1.5.2004) and continued and ended after the Czech Republic’s entry to the European Union? (2) Must Article 11(6) of Regulation (EC) No 1/2003 in conjunction with Article 3(1) thereof and recital 17 in the preamble thereto, with point 51 of the Commission Notice on cooperation within the Network of Competition Authorities, with the principle ne bis in idem under Article 50 of the Charter of Fundamental Rights of the European Union , and with the general principles of European law be interpreted as meaning that if the Commission brings proceedings after 1.5.2004 for infringement of Article 81 EC and makes a decision in that case, (a) the Competition Authorities of the Member States are automatically relieved of their competence to deal with that conduct from that time onwards? (b) the Competition Authorities of the Member States are relieved of their competence to apply to that conduct the provisions of domestic law containing parallel legislation to Article 81 EC (now Article 101 of the Treaty on the Functioning of the European Union)?

32. In the proceedings before the Court, written observations were submitted and oral argument was presented by Toshiba, Mitsubishi, Fuji, ( 36 ) Hitachi, ( 37 ) Alstom und Siemens, ( 38 ) the Governments of the Czech Republic, Ireland, Spain and Poland, the European Commission and the EFTA Surveillance Authority. In addition, the Government of the Slovak Republic also took part in the written procedure and the Czech competition authority attended the hearing.

V – Assessment

33. The reference for a preliminary ruling from the Regional Court, Brno seeks to clarify the consequences of the Czech Republic’s accession to the European Union in an antitrust case. In this connection, it asks the Court, on the one hand, to determine which law is applicable (first question) and, on the other hand, to delimit the respective competences of the members of the European Network of Competition Authorities (‘ECN’) ( 39 ) (second question) in relation to cross-border anti-competitive practices which were engaged in as a continuous infringement in part before and in part after the date of accession and were capable of affecting the territory of the Czech Republic.

34. There is no reason to question the admissibility of this reference for a preliminary ruling. It is true that, at first sight, the first question bears some resemblance to the Ynos case, in which the Court held that it did not have jurisdiction to interpret a directive. ( 40 ) Unlike in Ynos, however, the first question in this case asks the Court not to give a substantive interpretation of EU law in relation to the period prior to the accession of a new Member State, but only to clarify the temporal scope of EU law. There is no doubt that it has jurisdiction to do that.

35. Not even the fact that, under domestic procedural law, the referring court is bound by the legal opinion of a higher court ( 41 ) precludes the making of a reference to the Court for a preliminary ruling and the binding nature of the Court’s reply. ( 42 )

36. Since the dispute in the main proceedings concerns the assessment of the lawfulness of a decision adopted by the Czech competition authority in 2007, reference should still be made in the answer to the reference for a preliminary ruling to the provisions of the Treaties in the version of the Amsterdam Treaty, ( 43 ) in particular Article 81 EC and not Article 101 TFEU.

A – First question: The temporal scope of European competition law

37. By its first question, the referring court asks in essence whether, in a Member State which acceded to the European Union on 1 May 2004, Article 81 EC and Article 3(1) of Regulation No 1/2003 are applicable to periods of time prior to the date of accession. ( 44 )

38. The background to this question is the fact that the cartel at issue constituted a single and continuous infringement of the competition rules ( 45 ) the anti-competitive consequences of which in the territory of the Czech Republic occurred before and carried on after its accession to the European Union. Indeed, the proceedings for the imposition of a fine penalising that cartel offence at EU and national level respectively were conducted in periods entirely post-dating the date of accession.

39. In the view of the referring court and the claimants in the main proceedings, that situation suggests that Article 81 EC and Regulation No 1/2003 should be applied to the entire duration of the cartel at issue. In essence, the undertakings participating in the cartel hope that the application of those provisions of EU law will ensure that they are not penalised by the Czech competition authority altogether.

1. Requirements of the Act of Accession and of the general principles of law

40. The starting point for determining the temporal scope of provisions of EU law in the Czech Republic is Article 2 of the Act of Accession. According to that article, the provisions of the original Treaties and the acts adopted by the EU institutions before accession are binding on the new Member States from the date of their accession, that is to say with effect from 1 May 2004.

41. All that that provision shows, therefore, is that Article 81 EC and Regulation No 1/2003 have been applicable in the Czech Republic since 1 May 2004. The Act of Accession does not, however, give any indication of the extent to which Article 81 EC and Regulation No 1/2003 are to be applied to continuing infringements the anti-competitive consequences of which in Czech territory were felt in part before and in part after the Czech Republic’s accession to the European Union. Recourse must be had in this regard to the general principles of EU law, that is to say to the principles of legal certainty, the protection of legitimate expectations and non-retroactivity. ( 46 )

(a) The prohibition against the retroactive application of substantive rules

42. It follows from the aforementioned general principles of law that, as far as the temporal effects of changes in the law are concerned, a distinction must be drawn between procedural rules and substantive rules. According to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force. ( 47 )

43. Regulation No 1/2003 does lay down many procedural rules. ( 48 ) However, Article 3(1) of that regulation, like Article 81 EC, contains substantive provisions governing the assessment by the competition authorities of agreements, decisions and concerted practices between undertakings. Article 81 EC and Article 3(1) of Regulation No 1/2003 therefore constitute substantive rules of EU law.

44. Such substantive rules of law must not, in principle, be applied retroactively, irrespective of whether such application produces favourable or unfavourable effects on the person concerned, since the principle of legal certainty requires that any factual situation should normally, in the absence of any express contrary provision, be examined in the light of the legal rules existing at the time when the situation obtained. ( 49 ) The new substantive rules are, in principle, to be applied directly only to the future effects of a situation which arose under the old rules. ( 50 )

45. An international cartel which, in so far as it constituted a single and continuous infringement, produced or was capable of producing effects ( 51 ) in the territory of a new Member State both before and after the date of accession is therefore subject to different substantive rules depending on the period of time in question. In the case of periods prior to the date of accession, the anti-competitive consequences of the cartel in the Member State concerned must be assessed by reference only to its domestic competition law. Where such consequences arise in later periods, however, they must be assessed uniformly throughout the EU, in accordance with Article 81 EC and Article 3(1) of Regulation (EC) No 1/2003. ( 52 )

46. In practical terms, this means that, in the present case, Article 81 EC and Article 3(1) of Regulation No 1/2003 must be applied to the cartel at issue in the Czech Republic only in so far as its anti-competitive consequences, if any, are to be penalised in the period from 1 May 2004. Any anti-competitive consequences to which that cartel gives rise in the Czech Republic in the period up to 30 April 2004, on the other hand, are to be assessed only by reference to national competition law. The cartel at issue may well be a single and continuous infringement but its anti-competitive consequences are subject to different rules of law depending on whether they arose before or after the Czech Republic’s accession to the European Union.

(b) No exceptions to the principle of non-retroactivity

47. Contrary to the view held by Siemens, Hitachi und Fuji, there is nothing in the present case to indicate that EU law should be applied retroactively, so that even the anti-competitive consequences to which the cartel at issue gave rise in the Czech Republic prior to its accession to the European Union are covered by Article 81 EC and Article 3(1) of Regulation No 1/2003.

48. It is true that substantive rules of EU law may exceptionally be applied retroactively, in so far as it clearly follows from their terms, objectives or general scheme that such an effect must be given to them. ( 53 ) In this case, however, there is nothing in the terms, the objectives or the general scheme of Article 81 EC and Article 3 of Regulation No 1/2003 which clearly indicates that those two provisions should be applied retroactively. In fact, the similarity of EU anti-trust law to criminal law ( 54 ) strongly suggests that they should not be applied retroactively as this might infringe the principle of legality in relation to criminal offences and penalties (nullum crimen, nulla poena sine lege), which is protected as a fundamental right at EU level (Article 49(1) of the Charter of Fundamental Rights). ( 55 )

49. In particular, it cannot be argued that the provisions of competition law in force in the Czech Republic before 1 May 2004 were themselves based essentially on Article 81 EC and that Article 81 EC is therefore nothing more than a kind of successor provision whose entry into force does not really hold anything new for the undertakings in that Member State.

50. It may be that, even before the Czech Republic’s accession, Czech domestic law ( 56 ) exhibited strong similarities of substance with Article 81 EC. It may also be that the Europe Agreement, ( 57 ) which was intended to bring the Czech Republic closer to the European Union, already contained, in Article 64, a provision similar to Article 81 EC.

51. However, both the national law and the Europe Agreement could be applied and implemented in the Czech Republic before 1 May 2004 only by the national authorities. At that time, it was for the Czech authorities and courts alone to interpret and apply them in the territory of the Czech Republic in accordance with the provisions of Article 81 EC. It is true that the Commission, as the European competition authority, worked closely with the Czech authorities. However, before 1 May 2004, it could not itself apply either Article 64 of the Europe Agreement or Article 81 EC in the Czech Republic. Nor could the Court of Justice of the European Union be asked for an interpretation by the Czech courts.

52. It should also be pointed out that Article 81 EC in particular did not have primacy over Czech law. Moreover, before 1 May 2004, neither the old nor the new Member States applied Regulation No 1/2003, Article 3(1) of which obliges the national competition authorities for the first time to apply Article 81 EC in parallel with national antitrust law and to observe the precedence of evaluations made under EU law, in accordance with the detailed conditions laid down in the regulation. ( 58 )

53. All of which means, therefore, that the system in place up until 30 April 2004 was entirely different from that which was applicable from 1 May 2004. 1 May 2004 marked an important break, both substantively and procedurally, with previous antitrust law, which fact militates not for but against the retroactive application of Article 81 EC and Article 3(1) of Regulation No 1/2003.

54. It is true that the retroactive application of Article 81 EC and of Regulation No 1/2003 might reduce the risk of divergent assessments of one and the same cartel by different authorities and courts in their respective proceedings for the imposition of fines. However, that view must be countered with the argument that, before 1 May 2004, the existence of substantively different decisions was inherent in the system and was tolerated, in so far as it did not prejudice the full effectiveness of EU antitrust law and the precedence of EU law. ( 59 ) However desirable a uniform and efficient interpretation and application of competition law within the European Union may be, it must not come at the price of infringing principles based on the rule of law.

(c) Principle of the retroactive application of the more lenient penalty

55. Hitachi relies on the principle of the retroactive application of the more lenient penalty (lex mitius) in support of its argument that the anti-competitive consequences to which the cartel at issue gave rise in the Czech Republic in the period before 1 May 2004 must be assessed by reference to Article 81 EC and Regulation No 1/2003.

56. The principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the Member States and must be regarded as forming part of the general principles of EU law. ( 60 ) That principle has now also found its way into the third sentence of Article 49(1) of the Charter of Fundamental Rights.

57. There is therefore no doubt that the Czech competition authority would have to assess the anti-competitive consequences to which the cartel at issue gave rise in the Czech Republic before 1 May 2004 by reference to Article 81 EC and Article 3(1) of Regulation No 1/2003, if doing so would lead to exemption from punishment or to a more lenient penalty than that applicable under national law. This is unlikely, however.

58. Neither Article 81 EC nor Regulation No 1/2003 says anything at all about the severity of the penalties that national competition authorities may impose for cartel offences. Article 5 of Regulation No 1/2003 simply makes it clear that the competition authorities of the Member States may take decisions imposing fines, periodic penalty payments or any other penalty provided for in their national law. Thus, even if the Czech competition authority were to apply Article 81 EC to periods before 1 May 2004, the penalties to be imposed in that context would be determined by national law. ( 61 )

59. Hitachi’s real objective in relying on the principle of lex mitius appears to be quite different. What that undertaking would like to secure in relation to the period before 1 May 2004 is not a more lenient decision but no decision at all by the Czech competition authority. Its ultimate aim is that the lex mitius rule should be construed as meaning that the Czech competition authority is relieved of its competence to penalise the cartel offence in relation to the period before 1 May 2004 and that the anti-competitive consequences to which the cartel gave rise during that period are covered by the Commission Decision.

60. This, however, fundamentally disregards the substance of the principle of the retroactive application of the more lenient penalty. That principle simply provides for an exception to the fundamental principle of legality in relation to criminal offences and penalties (nullum crimen, nulla poena sine lege) on grounds of fairness. ( 62 ) It allows the person concerned to enjoy the benefit of the revised assessment of the legislature and hence to be subjected to a penalty more lenient than that which was provided for at the time when the offence was committed. ( 63 ) That principle does not, however, confer entitlement to adjudication by an authority different from that which would have been competent at the time when the offence was committed. The lex mitius rule is purely substantive. It says nothing about procedure or the division of powers between the various authorities responsible for prosecuting infringements of the law.

61. In so far as the claimants in the main proceedings are specifically seeking to call in question the competence of the Czech competition authority to impose fines, this is an issue relating to Article 11(6) of Regulation No 1/2003 and the prohibition against prosecution and punishment for the same cause of action (ne bis in idem), ( 64 ) not an issue of the more lenient criminal penalty (lex mitius).

62. All of which means, therefore, that the principle of the retroactive application of the more lenient penalty likewise does not lead to the result desired by Hitachi and others.

2. Some counterarguments raised by the parties to the proceedings

63. In the proceedings before the Court, the parties to the proceedings also raised a number of further arguments based on previous case-law which I shall examine briefly below. I should point out at the outset that none of those arguments is sound.

64. First of all, the judgment in Dow Chemical Ibérica, ( 65 ) cited by some of the parties to the proceedings, is not capable of paving the way for the application of Article 81 EC and Article 3(1) of Regulation No 1/2003 in the territory of a new Member State in relation to periods prior to its accession. After all, Dow Chemical Ibérica was concerned not with the application of substantive rules but only with the application of procedural rules, more specifically, the application of provisions governing Commission investigations (searches) at the business premises of undertakings. The fact that the Court considers such procedural rules to be applicable as soon as a new Member State accedes to the European Union is fully in accordance with the general principles of law examined above. ( 66 ) The judgment in Dow Chemical Ibérica does not, however, say anything about the question, of interest here, whether the substantive rules of European competition law, too, are applicable to the anti-competitive consequences to which a cartel gave rise in the territory of a new Member State in the period prior to that State’s accession to the European Union. ( 67 )

65. The Opinion of Advocate General Geelhoed in Asnef-Equifax, ( 68 ) on which some of the parties to the proceedings also rely, likewise does not depart from the aforementioned general principles of law, ( 69 ) but actually confirms them. The Advocate General states that Article 3 of Regulation No 1/2003 may contain stipulations applicable to the assessment of the present and future effects of agreements between undertakings that were concluded long before the entry into force of Regulation No 1/2003. ( 70 ) He does not in any way advocate the retroactive application of that provision to past periods.

66. The frequently-cited case-law on the temporal scope of the fundamental freedoms and of the general principle of non-discrimination ( 71 ) likewise contains no indication that EU law is to be applied retroactively in the territory of a new Member State to periods prior to that State’s accession. This becomes particularly clear in the judgment in Saldanha, which states that Article 6 of the EC Treaty (now Article 18 TFEU) ‘applies to the future effects of situations arising prior to that … accession’. ( 72 )

67. Finally, no other conclusion can be drawn from Annex II, Section 5, to the Act of Accession, referred to by Siemens. ( 73 ) After all, those provisions, too, assume that Article 81 EC is applicable to the future effects of agreements between undertakings concluded before the date of accession. They make an exception only for agreements between undertakings which are adapted within six months to the applicable block exemption regulations. Contrary to the view taken by Siemens, Annex II, Section 5, to the Act of Accession contains no indication that the effects of agreements between undertakings which arose before 1 May 2004 are to be included retroactively in the scope of Article 81 EC.

3. Interim conclusion

68. Taking all the foregoing into account, therefore, the following interim conclusion can be drawn: 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.

B – Second question: The competence of the competition authorities and the prohibition against prosecution and punishment for the same cause of action (ne bis in idem principle)

69. By its second question, the referring court asks in essence whether proceedings for the imposition of a fine which are initiated by the European Commission after 1 May 2004 permanently prevent the national competition authority of a Member State which acceded to the EU on that date from prosecuting under domestic competition law an international cartel constituting a single and continuous infringement which was capable of producing effects in the territory of the Member State concerned both before and after the date of accession.

70. The referring court’s primary purpose in raising this question is to seek information on the interpretation of Article 11(6) in conjunction with Article 3(1) of Regulation No 1/2003 and of the ne bis in idem principle. It also refers to recital 17 in the preamble to Regulation No 1/2003 and to point 51 of the Network Notice.

71. The two parts of this second question are concerned, on the one hand, with the competence of the national competition authority to bring proceedings for the imposition of a fine (Question 2(a)) and, on the other hand, with the power of that authority to apply its domestic competition law (Question 2(b)). As these points are closely interlinked, I shall discuss them together and, in so doing, address two major issues: the delimitation of the respective competences of the European competition authorities in antitrust proceedings (see section 1 below) and the prohibition against prosecution and punishment for the same cause of action (ne bis in idem principle) (see section 2 below).

1. Delimitation of the respective competences of the European competition authorities

72. The referring court and the claimants in the main proceedings take the view that, in accordance with Article 11(6) in conjunction with Article 3(1) of Regulation No 1/2003, the Czech competition authority was definitively relieved of its competence to prosecute the cartel at issue when the European Commission initiated its proceedings for the imposition of a fine.

73. That is not correct. It is true that Article 11(6) of Regulation No 1/2003 has been the rule of procedure ( 74 ) applicable in all the Member States since 1 May 2004, even with respect to situations that arose before then. ( 75 ) Its prescriptive content, however, is entirely different from that assumed by the referring court and the claimants in the main proceedings. This fact was rightly pointed out by the Governments which have participated in the proceedings and by the Commission.

a) General considerations relating to the prescriptive content of Article 11(6) of Regulation No 1/2003

74. Under Article 11(6) of Regulation No 1/2003, the competition authorities of the Member States are relieved of their competence to apply Articles 81 and 82 EC (now Articles 101 and 102 TFEU) as soon as the Commission initiates proceedings for the adoption of a decision under Chapter III of that regulation. ( 76 ) The national authorities are automatically relieved of their competence in this way ( 77 ) on the date when the Commission formally decides to initiate proceedings. ( 78 )

75. If account is taken only of the wording of Article 11(6) of Regulation No 1/2003, the loss of competence appears to affect only the power of the national competition authorities to apply EU antitrust law (Articles 81 and 82 EC or Articles 101 and 102 TFEU), but not their power to apply domestic law. Points 51 and 53 of the Network Notice can also be construed to this effect. ( 79 )

76. However, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. ( 80 ) Moreover, with specific reference to Regulation No 1/2003, the Court has held that it is only where EU law does not lay down a specific rule that a national competition authority may apply its national rules. ( 81 )

77. It should be noted here that Article 11(6) of Regulation No 1/2003 is closely connected in terms of its content with Article 3(1) of the same regulation. An examination of those two provisions taken together shows that the national competition authorities can no longer apply not only EU competition law but also part of their domestic competition law ( 82 ) once the Commission initiates proceedings for the adoption of a decision under Chapter III of Regulation No 1/2003.

78. More specifically, the situation is as follows. ( 83 ) The first sentence of Article 3(1) of Regulation No 1/2003 establishes a close link between the prohibition of cartels under Article 81 EC (Article 101 TFEU) and the corresponding provisions of national antitrust law. Where national antitrust law is applied to an agreement, decision or concerted practice between undertakings which may affect trade between Member States, Article 3(1) of Regulation No 1/2003 states that Article 81 EC (Article 101 TFEU) must also be applied in parallel. However, as the national competition authority is not allowed to apply Article 81 EC (Article 101 TFEU) once the Commission has initiated its proceedings, in accordance with the first sentence of Article 11(6) of Regulation No 1/2003, the national authority ends up not being able to apply national antitrust law either.

79. Contrary to the view of the referring court and the claimants in the main proceedings, this does not mean, however, that, once the Commission initiates proceedings, the national competition authorities are permanently and definitively relieved of their power to apply national competition law. Depending on how the Commission concludes its proceedings, there may well still be scope for the national competition authorities to apply national competition law later. ( 84 )

80. The protection of competition within the European Union is after all ensured by a combination of EU and national competition law. According to settled case-law, the two systems of law apply in parallel. ( 85 ) Moreover, the modernisation of the European system for implementing antitrust law under Regulation No 1/2003 has done nothing to change this: for, contrary to the Commission’s original proposal, ( 86 ) both EU law (Articles 81 and 82 EC, now Articles 101 and 102 TFEU) and national competition rules can continue to be applied to one and the same case, as is clear from Article 3 of Regulation No 1/2003.

81. It is true that the competition rules at European and national level pursue essentially the same objective, which is to ensure the protection of competition on the relevant market concerned. ( 87 ) However, they consider restrictive practices from different points of view ( 88 ) and their scope is not the same ( 89 ). Moreover, the Court’s landmark ruling in Walt Wilhelm, on which the abovementioned findings draw, has lost none of its validity — in this regard, at least — more than 40 years after it was delivered. ( 90 ) There is no disputing that economic integration in the European Union has made great strides since that judgment and the continual removal of barriers to trade between the Member States has fostered the realisation of a genuine internal market. It is none the less still the case that many products are traded only on national or regional markets and the conditions of competition applicable to those products can vary from country to country — and sometimes even from region to region — to far too great an extent for the markets in question to be considered genuinely pan-European, let alone global. By extension, therefore, it is not inconceivable that circumstances will arise which, in addition to the cross-border competition issues covered by Articles 81 and 82 EC (Articles 101 and 102 TFEU), involve additional local competition issues, resulting from the characteristics of the national or regional context in question, which the competition authorities can tackle only by applying the relevant national competition law.

82. Even after the entry into force of Regulation No 1/2003, the fact that a case is dealt with and investigated from different points of view by a number of competition authorities is compatible with the aims and scheme of European antitrust law. ( 91 ) Indeed, under the new, decentralised system, national authorities will be more actively involved in the implementation of antitrust law than they were before. In this respect, there is a fundamental difference between the European system for implementing antitrust law as modernised by Regulation No 1/2003 and the European merger reform which entered into force at the same time. ( 92 )

83. The aim of enforcing the competition rules on the European internal market as uniformly and effectively as possible ( 93 ) is achieved in Regulation No 1/2003 not by establishing exclusive competences for individual competition authorities but rather by having the European Commission and the national competition authorities cooperate and coordinate their activities within a network (ECN). ( 94 ) The primacy of EU law is none the less established by Articles 3 and 16 of Regulation No 1/2003.

84. The fact that the competition authorities of the Member States may still take action even where the Commission itself has already adopted a decision is apparent not least from Article 16(2) of Regulation No 1/2003. For that provision does not relieve the national authorities of their competence to take action after the Commission has intervened, but merely prohibits them from contradicting a previous Commission Decision. ( 95 )

85. It is true that, according to its wording, Article 16(2) of Regulation No 1/2003 only refers to the application of EU antitrust law by the national competition authorities (that is to say, the application of Articles 81 and 82 EC, now Articles 101 and 102 TFEU). However, the same rule must a fortiori apply in a case where the national competition authorities wish to apply national antitrust law. After all, if the national competition authorities are still allowed to apply EU law after the Commission has adopted a decision, they must a fortiori also be allowed to apply national law, provided that they respect the precedence of rules under EU law, in accordance with Article 3 of Regulation No 1/2003.

86. It would not be appropriate to interpret the scope of Article 16(2) of Regulation No 1/2003 as narrowly as the referring court and the claimants in the main proceedings are inclined to do. ( 96 )

87. The claimants in the main proceedings argue that Article 16(2) of Regulation No 1/2003 enables the national competition authorities to prosecute cartel members against whom the European Commission has not already taken action in its decision. However, it should be pointed out in this regard that Article 16(2) governs the relationship between decisions by national competition authorities ‘on agreements, decisions or practices’ and existing decisions of the European Commission only in a very general fashion, without reference to the subject-matter of those Commission decisions or the persons to whom they are addressed. In particular, it prohibits the national competition authorities from taking decisions which run counter to decisions previously adopted by the Commission. It therefore lays down a prohibition of divergence, thus ensuring the primacy of EU law.

88. Nor can Article 16(2) of Regulation No 1/2003 be limited to the extremely rare case of a previous finding by the European Commission as to the non-applicability of Article 81 or Article 82 EC (now Article 101 or 102 TFEU), in accordance with Article 10 of Regulation No 1/2003. ( 97 ) After all, contrary to the view taken by the referring court and some of the parties to the proceedings, the extremely general wording of Article 16(2) of Regulation No 1/2003 and its schematic position within the chapter on ‘[c]ooperation’ indicate that it covers all conceivable decisions that the Commission may have adopted on the basis of Regulation No 1/2003 and is by no means limited to only one particular type of decision.

89. Recital 18 in the preamble to Regulation No 1/2003 must likewise not be misunderstood as meaning that the EU legislature sought to relieve the national competition authorities of their competence to apply national antitrust law whenever the Commission itself has adopted a decision. It is true that that recital formulates the objective ‘that each case should be handled by a single authority’. However, this is not a general rule that characterises the entire European system for implementing antitrust law under Regulation No 1/2003. On the contrary, that objective is linked to a very specific provision of Regulation No 1/2003, that is to say Article 13. That article does make it possible for each competition authority within the ECN to suspend the proceedings before it or to reject a complaint lodged with it where another authority in the ECN is dealing with the same case. However, the authorities concerned are by no means obliged to proceed in this way. Article 13 and recital 18 in the preamble to Regulation No 1/2003 are, rather, the expression of the broad discretion which the authorities belonging to the ECN enjoy in ensuring the optimum allocation of cases within the network.

90. Finally, the principle of proportionality, under the rules governing competences (Article 5(4) TEU, formerly the third paragraph of Article 5 EC), also militates against an interpretation of Article 11(6) of Regulation No 1/2003 to the effect that the national competition authorities are permanently and definitively relieved of their competence to apply national antitrust law once the Commission itself brings proceedings. That principle, to which the EU legislature expressly referred in the preamble to Regulation No 1/2003, ( 98 ) has fundamental, not to say constitutional, significance within the Treaty system. It states that the content and form of Union action must not exceed what is necessary to achieve the objectives of the Treaties. The aim of Regulation No 1/2003 is to contribute towards the effective enforcement of competition rules through a decentralised system, ( 99 ) whilst at the same time ensuring the uniform application of EU law. ( 100 ) This does not require that the competition authorities of the Member States should be permanently and definitively relieved of their competence to apply their domestic antitrust law. It is sufficient to relieve them of that competence for the duration of proceedings initiated by the Commission and to oblige them to comply with the Commission’s decision after those proceedings are concluded. ( 101 )

91. The foregoing general considerations on the prescriptive content of Article 11(6) of Regulation No 1/2003 are in themselves sufficient to support the conclusion that the national competition authorities are not permanently and definitively relieved of their power to apply domestic competition law where the Commission initiates proceedings for the adoption of a decision under Chapter III of Regulation No 1/2003. On the contrary, the national competition authorities may adopt their own decision, within the limits of the prohibition against prosecution and punishment for the same cause of action (ne bis in idem principle), once the Commission has concluded its proceedings.

b) Additional considerations relating to the period prior to the accession of a new Member State to the European Union

92. A further factor in the present case is that — according to the information supplied by the referring court — the contested decision of the Czech competition authority deals exclusively with the anti-competitive consequences to which the cartel at issue gave rise before 1 May 2004, that is to say only with the period prior to the Czech Republic’s accession to the European Union.

93. As I explained earlier, ( 102 ) Article 81 EC was not applicable in the Czech Republic during that period and cannot be extended retroactively to any anti-competitive consequences to which a continuing infringement gave rise in the Czech Republic during that period.

94. Consequently, the combination of Article 11(6) and Article 3(1) of Regulation No 1/2003 likewise does not represent an obstacle to the application, in relation to that prior period, of provisions of national competition law such as those contained in Paragraph 3 of the Law on the Protection of Competition in force in the Czech Republic. For the purposes of the aforementioned period prior to 1 May 2004, there is no risk of any conflict of competence between the Commission and the Czech competition authority and no need to avoid a conflict of findings as between Article 81 EC and national competition law. By definition, national law cannot contradict a provision of EU law which is not applicable in the period in question.

95. On the other hand, even if the period prior to 1 May 2004 were to be assessed, ex ante, by reference to the objectives of the new system as defined by Regulation No 1/2003, that assessment would clearly support rather than oppose the application of national competition law by the Czech competition authority. The fact that a cartel offence in a particular segment of the internal market could not be prosecuted in relation to a particular period would run directly counter to the fundamental objective of creating a level playing field within the internal market ( 103 ) and of ‘protecting competition on the market’ ( 104 ) (provided that the rule-of-law conditions were otherwise fulfilled and such prosecution was not time-barred). And indeed, in this very case, applying national antitrust law was the only way of penalising any anti-competitive consequences to which the cartel at issue gave rise in the Czech Republic in the period prior to its accession to the European Union.

c) Interim conclusion

96. In 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 ( 105 ) 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, ( 106 ) 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. ( 107 ) ( 108 ) 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’. ( 109 ) 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, ( 110 ) 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. ( 111 ) 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. ( 112 )

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. ( 113 ) 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. ( 114 ) 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. ( 115 ) 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. ( 116 ) 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. ( 117 )

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. ( 118 ) 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. ( 119 )

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. ( 120 )

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’). ( 121 ) Indeed, in the context of the rules governing the area of freedom, security and justice (Article 54 of the CISA ( 122 ) and the European arrest warrant, ( 123 )) the Court has expressly considered the criterion of unity of the legal interest protected to be irrelevant. ( 124 ) 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. ( 125 )

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. ( 126 ) 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’, ( 127 ) 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, ( 128 ) 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. ( 129 ) 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, ( 130 ) but also by the previous case-law of the Court of Justice concerning the general EU-law principle of ne bis in idem. ( 131 )

120. The requirement of homogeneity ( 132 ) 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. ( 133 ) 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. ( 134 ) 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. ( 135 ) 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. ( 136 ) 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. ( 137 )

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). ( 138 )

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, ( 139 ) 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 ( 140 ) and the decision of the Czech competition authority ( 141 ) 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. ( 142 ) After all, the action penalised under Article 81 EC (Article 101 TFEU) consists not in the cartel agreement itself but in its application. ( 143 ) 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). ( 144 )

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. ( 145 ) 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. ( 146 ) 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. ( 147 )

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, ( 148 ) 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. ( 149 ) 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, ( 150 ) sometimes even making express mention of the ‘Member States (at the time)’ and the ‘Contracting Parties’ to the EEA Agreement at the time. ( 151 )

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, ( 152 ) 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. ( 153 )

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. ( 154 )

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. ( 155 ) 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. ( 156 ) 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. ( 157 ) 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. ( 158 )

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. ( 159 )

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.

( 1 ) Original language: German.

( 2 ) 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.

( 3 ) Case 14/68 Walt Wilhelm and Others [1969] ECR 1.

( 4 ) Úřad pro ochranu hospodářské soutěže.

( 5 ) 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).

( 6 ) Agreement on the European Economic Area (‘EEA’) (OJ 1994 L 1, p. 3).

( 7 ) 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).

( 8 ) OJ 2004 C 101, p. 43.

( 9 ) 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)).

( 10 ) Zákon č. 63/1991 Sb., o ochraně hospodářské soutěže.

( 11 ) Zákon č. 143/2001 Sb., o ochraně hospodářské soutěže.

( 12 ) 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.

( 13 ) 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).

( 14 ) See the fourth citation in the preamble to the Commission Decision.

( 15 ) The leniency application was made on 3 March 2004 by the Swiss undertaking ABB.

( 16 ) 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).

( 17 ) 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 >.

( 18 ) 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).

( 19 ) Recitals 3, 218 and 248 in the preamble to the Commission Decision.

( 20 ) 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.

( 21 ) ABB Ltd.

( 22 ) See also in this regard Commission Press Release IP/07/80 of 24 January 2007.

( 23 ) 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.

( 24 ) Reference number S 222/06-3113/2007/710.

( 25 ) Reference number R 059-070, 075-078/2007/01-08115/2007/310.

( 26 ) 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.

( 27 ) Again, ABB Ltd.

( 28 ) The highest individual fine amounted to CZK 107 248 000.

( 29 ) Krajský soud v Brně.

( 30 ) Reference number 62 Ca 22/2007-489.

( 31 ) Nejvyšší správní soud.

( 32 ) Judgment cited in footnote 3.

( 33 ) Reference number Afs 93/2008-920.

( 34 ) Paragraph 110(3) of Law No 150/2002 Sb. on Administrative Procedure (Zákon č. 150/2002 Sb., soudní řád správní).

( 35 ) Reference number 62 Ca 22/2007-124.

( 36 ) Fuji Electric Holdings Co. and Fuji Electric Systems Co. Ltd submitted written observations and presented oral argument jointly.

( 37 ) Hitachi Ltd., Hitachi Europe Ltd. and Japan AE Power Systems Corporation submitted written observations and presented oral argument jointly.

( 38 ) 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.

( 39 ) European Competition Network.

( 40 ) 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.

( 41 ) See in this regard point 30 of this Opinion, above.

( 42 ) Case C-173/09 Elchinov [2010] ECR I-0000, in particular paragraphs 24, 25, 27, 30 and 32.

( 43 ) Which was signed on 2 October 1997 and entered into force on 1 May 1999.

( 44 ) 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).

( 45 ) Both the Commission Decision and the decision of the Czech competition authority are based on the characterisation of the cartel as a single and