CELEX: 62017CC0617
Language: en
Date: 2018-11-29 00:00:00
Title: Opinion of Advocate General Wahl delivered on 29 November 2018.#Powszechny Zakład Ubezpieczeń na Życie S.A. v Prezes Urzędu Ochrony Konkurencji i Konsumentów.#Request for a preliminary ruling from the Sąd Najwyższy.#Reference for a preliminary ruling — Competition — Article 82 EC — Abuse of a dominant position — Regulation (EC) No 1/2003 — Article 3(1) — Application of national competition law — Decision of a national competition authority to impose one fine on the basis of national law and another on the basis of EU law — Charter of Fundamental Rights of the European Union — Article 50 — Principle of ne bis in idem — Whether applicable.#Case C-617/17.

OPINION OF ADVOCATE GENERAL
      WAHL
      delivered on 29 November 2018 (
            1
         )
      
         Case C‑617/17
      
      Powszechny Zakład Ubezpieczeń na Życie S.A. w Warszawie
      v
      Prezes Urzędu Ochrony Konkurencji i Konsumentów
      joined parties:
      Edward Detka and Others
      
         (Request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland))
      
      (Preliminary ruling — Principle of ne bis in idem — Scope — Competition — Abuse of a dominant position — Decision taken by a national competition authority — Fine imposed on the basis of national competition law and EU competition law)
      
               1. 
            
            
               Must the principle of ne bis in idem be applied in circumstances where a national competition authority has imposed, in a single decision, a fine on an undertaking for anticompetitive conduct on the basis of a concurrent application of national and EU competition rules? That is in essence the question put to the Court in this case.
            
         
         I. Legal framework
      
      
         
            A.
          
            EU law
         
      
      
               2.
            
            
               Regulation (EC) No 1/2003 (
                     2
                  ) contains rules on the implementation of what are now Articles 101 and 102 TFEU. Among other things, the regulation contains rules concerning the parallel application of national competition rules and EU competition rules.
            
         
               3.
            
            
               Recital 8 explains that in order to ensure the effective enforcement of the EU competition rules, the competition authorities and courts of the Member States must be obliged to also apply Articles 101 and 102 TFEU where they apply national competition law to agreements and practices which may affect trade between Member States.
            
         
               4.
            
            
               Recital 9 further explains that Articles 101 and 102 TFEU seek to protect competition on the market. The regulation does not preclude Member States from implementing on their territory national legislation, which protects other legitimate interests provided that such legislation is compatible with the general principles and other provisions of EU law. If 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.
            
         
               5.
            
            
               Article 3 of the regulation concerns the relationship between Articles 101 and 102 TFEU and national competition laws. It provides:
               ‘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 [101 TFEU] which may affect trade between Member States within the meaning of that provision, they shall also apply Article [101 TFEU] to such agreements, decisions or concerted practices. Where the competition authorities of the Member States or national courts apply national competition law to any abuse prohibited by Article [102 TFEU], they shall also apply Article [102 TFEU].
               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 [101(3) TFEU], or which fulfil the conditions of Article [101(3) TFEU] or which are covered by a Regulation for the application of Article [101(3) TFEU]. 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.
               …’
            
         
               6.
            
            
               Article 5 of the regulation deals with the powers of the competition authorities of the Member States. It states:
               ‘The competition authorities of the Member States shall have the power to apply Articles [101 and 102 TFEU] in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions:
               
                        —
                     
                     
                        requiring that an infringement be brought to an end,
                     
                  
                        —
                     
                     
                        ordering interim measures,
                     
                  …’
            
         
         
            B.
          
            National legislation
         
      
      
               7.
            
            
               Article 8 of the Law on the safeguarding of competition and consumers of 15 December 2000 (‘Law on the safeguarding of competition’) (
                     3
                  ) states:
               ‘1.   The abuse of a dominant position on the relevant market by one or more undertakings shall be prohibited.
               2.   Such abuse may, in particular, consist in:
               ...
               
                        (5)
                     
                     
                        measures to prevent competition from arising or developing.
                     
                  ...’
            
         
               8.
            
            
               Article 101 of that law provides:
               ‘1.   The Head of the Office of Competition and Consumer Protection may, by decision, impose on an undertaking a monetary fine not exceeding 10% of the revenue which the undertaking achieved in the financial year preceding the imposition of the fine in the case where that undertaking, even if negligently, has infringed:
               
                        (1)
                     
                     
                        the prohibition laid down in Article 5, where no exclusion criterion under Articles 6 and 7 applies, or the prohibition in Article 8;
                     
                  
                        (2)
                     
                     
                        Articles [101 or 102 TFEU];
                     
                  ...’
            
         
         II. Facts, procedure and the questions referred
      
      
               9.
            
            
               This case concerns a dispute between Prezes Urzędu Ochrony Konkurencji i Konsumentów (Head of the Polish Office of Competition and Consumer Protection; the national competition authority ‘the NCA’), and Powszechny Zakład Ubezpieczeń na Zycie S.A., a Polish insurance company (‘the undertaking concerned’), regarding a fine that the NCA imposed on the undertaking concerned for anticompetitive conduct.
            
         
               10.
            
            
               In its decision of 25 October 2007, the NCA considered that the undertaking concerned had abused its dominant position on the market for group life assurance for employees in Poland by taking measures to prevent competition in the sector. The undertaking concerned was thus considered to have infringed the prohibition in Article 8 of the Law on the safeguarding of competition. Further, the NCA found that such conduct could have a negative effect on opportunities of foreign insurers to access the Polish market, which in turn could adversely affect trade between the Member States. Consequently, the NCA concluded that the undertaking concerned had also, in parallel with national competition law, infringed what is now Article 102 TFEU.
            
         
               11.
            
            
               In the light of those findings, the NCA imposed on the undertaking concerned a fine amounting to 50361080 Polish zlotys (PLN). That fine comprises two separately calculated amounts. One amount was calculated for breach of national competition law, and the other principally for the breach of EU competition law. More specifically, it was explained in the decision of the NCA that:
               ‘1. The basis for determining the penalty must be the duration of the conduct at issue of [the undertaking concerned] between 1 April 2001 and the determination of an infringement of the [Law for the safeguarding of competition], that is to say, 78 complete months (six years and six months).
               2. The adverse effect, mentioned in the decision, on trade between the Member States as a result of the conduct complained of could be apparent only from the date of accession of Poland to the European Union, that is to say, from 1 May 2004.
               3. The quantum of the penalty for the infringement of Article [102 TFEU] (in conjunction with Article 5 of [Regulation No 1/2003]) is based on that conduct by [the undertaking concerned] in the period between 1 May 2004 and the determination of an infringement of those provisions, that is to say, 41 complete months (three years and five months).
               4. The penalty for the conduct of [the undertaking concerned] in the period between 1 April 2001 and the determination of an infringement of the abovementioned provision may be determined by reference to Article 101(1)(1) and (2) of the [Law on the safeguarding of competition].
               5. The conduct of [the undertaking concerned] in the period between 1 May 2004 and the determination of an infringement affected both the national market and trade between the Member States, with the result that Article 5 of [Regulation No 1/2003] applies to it (in addition to the provisions mentioned under 4 above).
               6. In respect of the infringement of national provisions … and regard being had to the duration of the infringement, a penalty in the amount of PLN 33 022 892.77 shall be imposed on [the undertaking concerned], which corresponds to 65.55% of the total penalty amount initially determined.
               7. In respect of the infringement of Article [102 TFEU], in conjunction with Article 5 of Regulation No 1/2003, and regard being had to the period of the infringement and its potential effect on trade between the Member States, a penalty shall be imposed on [the undertaking concerned] in the amount of PLN 17 358 187.23, which corresponds to 34.45% of the total penalty amount initially determined.’
            
         
               12.
            
            
               After having contested the decision of the NCA unsuccessfully before two lower instance courts, the undertaking concerned has now brought an appeal before the referring court. Before that court, the undertaking concerned has claimed that both amounts cover the same conduct and that the undertaking has therefore been fined twice for the same conduct. This, it argues, constitutes a breach of the principle of ne bis in idem.
            
         
               13.
            
            
               Entertaining doubts regarding the correct interpretation of that principle as a matter of EU law, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
               
                        ‘(1)
                     
                     
                        Can Article 50 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the application of the ne bis in idem principle presupposes not only that the offender and the facts are the same but also that the legal interest protected is the same?
                     
                  
                        (2)
                     
                     
                        Is Article 3 of [Regulation No 1/2003], in conjunction with Article 50 of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that the rules of EU competition law and of national competition law which are applied in parallel by the competition authority of a Member State protect the same legal interest?’
                     
                  
         
               14.
            
            
               Written observations were submitted by the undertaking concerned, the NCA, the Polish Government as well as the EFTA Surveillance Authority and the European Commission. Pursuant to Article 76(2) of the Rules of Procedure of the Court, no hearing was held in this case.
            
         
         III. Analysis
      
      
               15.
            
            
               By the questions referred, the referring court essentially seeks to establish whether, in the light of the principle of ne bis in idem, a national competition authority is precluded from imposing a fine on an undertaking for anticompetitive conduct, in one single decision, on the basis of both national competition law and EU competition rules.
            
         
               16.
            
            
               As suggested by all parties except the undertaking concerned, that question should be answered in the negative. (
                     4
                  )
            
         
               17.
            
            
               To explain why that is necessarily so, I shall proceed in three steps. In a first step, I shall make some general remarks regarding the rationale of the principle of ne bis in idem. In a second step, I shall discuss the basic tenets of the case-law of the Court regarding the application of the principle in the context of competition law. Third and last, I shall address the relevance of the principle of ne bis in idem in the proceedings before the referring court.
            
         
         
            A.
          
            The rationale of the principle of ne bis in idem
         
      
      
               18.
            
            
               The principle of ne bis in idem undoubtedly constitutes one of the cornerstones of any legal system based on the rule of law. (
                     5
                  ) Broadly speaking, as a close corollary to the principle of res judicata, its rationale lies in ensuring legal certainty and equality; in ensuring that once the person concerned has been prosecuted and, as the case may be, punished, that person has the certainty that he will not be prosecuted again for the same infraction. Conversely, if he is acquitted, the principle ensures that he has the certainty of not being prosecuted again in further proceedings for the same offence. (
                     6
                  )
            
         
               19.
            
            
               The Court has made clear that the principle of ne bis in idem, applies in the context of competition law too, a field of law that, depending on the perspective chosen, falls somewhere in the grey area between criminal and administrative law. (
                     7
                  ) According to the Court, the principle of ne bis in idem must be observed in proceedings in which fines are imposed for breaches of competition law: an undertaking may thus not be found liable and proceedings may not be brought against it afresh on the basis of anticompetitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged. (
                     8
                  )
            
         
               20.
            
            
               However, just as in other fields of law, the principle of ne bis in idem may only be applied in the context of competition law provided that two prerequisites are met: first, that there is a repetition of proceedings and second, that the second set of proceedings concerns the same anticompetitive conduct.
            
         
               21.
            
            
               Those prerequisites, that is to say, the existence of a second set of proceedings (bis) for the same offence (idem) follow directly from the wording of Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), a provision that lays down the right not to be tried or punished twice in criminal proceedings for the same criminal offence. In accordance with that provision, ‘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 [European] Union in accordance with the law’. Mirroring Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), Article 50 of the Charter thus specifically targets the repetition of proceedings concerning the same material act, which have been concluded by a final decision.
            
         
               22.
            
            
               Here, it should be emphasised that the principle of ne bis in idem does not constitute a yardstick against which the proportionality of a (criminal) sanction is to be measured in a particular procedure. Its rationale lies elsewhere: it ensures that an offender is not tried or punished consecutively more than once for the same conduct, and that as a consequence, the person in question can be sure that ‘he has expiated his guilt and need not fear further sanction’ as concerns that specific conduct. (
                     9
                  ) In other words, the principle does not apply in the determination of whether it is appropriate that one act may constitute more than one offence, (
                     10
                  ) or whether the accumulation of sanctions in one procedure is proportionate.
            
         
               23.
            
            
               In the next section, I shall set out the basic tenets of the case-law of the Court that lie at the heart of the questions referred in this case.
            
         
         
            B.
          
            Idem in competition law
         
      
      
               24.
            
            
               In its case-law, the Court has devised particular criteria that arguably delimit the scope of the principle of ne bis in idem in the context of competition law. Those criteria concern the interpretation of the so-called idem component of the principle. That is to say, the criteria for establishing whether the second set of proceedings concerns the ‘same offence’. (
                     11
                  )
            
         
               25.
            
            
               As a matter of EU law, the sameness of an offence is generally to be determined on the basis of a two-fold criterion: the facts and the offender must be the same. The legal characterisation, or the interest protected, are by contrast not determinative for the purposes of applying the principle of ne bis in idem. This approach, reflecting closely the recent case-law of the ECtHR, (
                     12
                  ) has been applied by the Court in cases concerning police and judicial cooperation in criminal matters. (
                     13
                  )
            
         
               26.
            
            
               That is not so in competition law though. In contrast to the approach described in the previous point, the Court has consistently held that in the context of competition law — and in particular in the context of parallel prosecution or punishment by the Commission and national competition authorities — also the legal interest protected matters. In other words, the principle of ne bis in idem may only be applied, provided that three cumulative criteria are present as concerns the idem component. That is to say: in the procedures compared, the facts must be the same, the offender must be the same and the legal interests protected must be the same. (
                     14
                  )
            
         
               27.
            
            
               That principle can be traced back to the Court’s judgment in Wilhelm and Others. (
                     15
                  ) In that case, the question put to the Court was whether a national competition authority could prosecute a cartel that had already been the subject of a decision by the Commission. The Court accepted that such a possibility was indeed open to the national competition authority given that national competition law and EU competition law consider anticompetitive behaviour from different points of view. Accordingly, while EU competition law addresses them in the light of obstacles which may result for trade between Member States, each body of national legislation proceeds on the basis of considerations peculiar to that legislation, and considers cartels only in that context. Thus, in effect, the Court rejected the applicability of the principle of ne bis in idem in such a context. (
                     16
                  )
            
         
               28.
            
            
               Drawing on the Court’s dictum in Wilhelm and Others, the Court has assessed the applicability of the principle of ne bis in idem, and in particular the existence of idem, in a number of different circumstances across the field of competition law.
            
         
         1. The Court’s approach
      
      
               29.
            
            
               It is appropriate to start with the type of situation which factually most resembles the circumstances underlying the present case, namely a situation in which the Commission and a national competition authority have taken action against the same offender on the basis of the same anticompetitive conduct (cartel agreement).
            
         
               30.
            
            
               In Aalborg Portland, (
                     17
                  ) the Court set out the principle that the principle of ne bis in idem may only be relied upon where there is identity of facts, offender and the legal interest protected. According to the Court, the principle thus ensures that the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset. (
                     18
                  ) The Court also explained that an undertaking cannot rely on the principle of ne bis in idem where the Commission has imposed a sanction on an undertaking for conduct different from that imputed to the same undertaking and forming the subject matter of an earlier decision of a national competition authority. That is true also in circumstances where the two decisions relate to intrinsically linked contracts and agreements.
            
         
               31.
            
            
               In Toshiba, (
                     19
                  ) the Court reiterated the principle set out in Aalborg Portland regarding the requirement of identity of facts, offender and legal interest protected. It did so even though Advocate General Kokott urged the Court to discard the requirement regarding the sameness of the legal interest protected and instead apply the two-fold criterion of the sameness of facts and offender applied in other areas of EU law. (
                     20
                  )
            
         
               32.
            
            
               In its judgment, the Court did not expressly deal with the question of whether the legal interests protected by national competition law and EU competition rules were the same in the case under consideration. Indeed, the question could be approached from a different angle: the facts underlying the two procedures were not the same so that the principle of ne bis idem did not in any event fall to be applied. The Court’s statement in that regard was based on the circumstance that the national competition authority had imposed a fine on undertakings participating in a cartel on the basis of anticompetitive effects of that cartel in the Member State in question before its accession to the European Union. The Commission had, for its part, previously taken a decision imposing a fine on the same cartel members, a decision not designed to penalise the effects prior to accession. (
                     21
                  )
            
         
               33.
            
            
               Moreover, the Court found idem to be absent in Limburgse Vinyl, (
                     22
                  ) a case where the question arose whether the principle of ne bis in idem could preclude a second Commission decision regarding the same anticompetitive conduct in circumstances where a first Commission decision had been annulled by the General Court. The Court held that the application of the principle presupposes that a ruling has been given on the question whether an offence has in fact been committed or that the legality of the assessment thereof has been reviewed. As that was not so in Limburgse Vinyl, the Court held that the principle does not preclude new proceedings in respect of the same anticompetitive conduct in circumstances where the first decision had been annulled for procedural reasons without any ruling regarding the substance of the alleged anticompetitive conduct. That was so, according to the Court, because the decision on annulment of the first decision could not be regarded as a decision of ‘acquittal’. In such a situation, the penalties imposed by the new decision simply replaced those imposed by the first decision that had been found to be vitiated by procedural errors. (
                     23
                  )
            
         
               34.
            
            
               Last, the Court has also examined the applicability of the principle of ne bis in idem in circumstances where the same anticompetitive behaviour is subject to prosecution or punishment both inside and outside the European Union.
            
         
               35.
            
            
               In Showa Denko, (
                     24
                  ) for example, the Court rejected the argument that the principle of ne bis in idem could be relied upon in a situation where the Commission exercises its powers under EU law after penalties have been imposed on undertakings for participation in an international cartel by the authorities of a non-member State on the basis of infringement of competition rules applicable in that State where those authorities have intervened within their respective jurisdictions. (
                     25
                  )
            
         
               36.
            
            
               In that last line of case-law pertaining to parallel prosecution or punishment by the Commission and non-Member State competition authorities, the Court has highlighted the international nature of the impugned conduct as well as the differences between the respective legal systems, including the aims and objectives of the relevant substantive rules on competition, as well as the specific legal interest protected by EU competition rules. It has also specifically pointed out that this situation, where the Commission and non-Member State authorities intervene in their respective jurisdictions, should be considered separately from the situation where anticompetitive conduct is confined exclusively to the territorial scope of application of the legal system of the EU (and its Member States). (
                     26
                  )
            
         
               37.
            
            
               The Court’s case-law, and specifically the reliance on the three-fold criterion in relation to parallel prosecution or punishment within the European Union (or the European Economic Area), raises some (fundamental) questions that I shall briefly discuss in the following section.
            
         
         2. Observations regarding the three-fold criterion applied by the Court
      
      
               38.
            
            
               The rationale underlying the line of case-law devolving from Aalborg Portland can be traced back to the Court’s above-mentioned judgment in Wilhelm and Others. It should not be overlooked, however, that that case was decided in the early decades of European integration. At that time it was certainly warranted to start from the premiss that national competition law and (what was then) Community competition law pursued different objectives and were accordingly designed to safeguard different legal interests. On the other hand, neither the Charter, nor Protocol No 7 to the ECHR, was in force at the time. (
                     27
                  )
            
         
               39.
            
            
               In the European Union of today though, attaching importance to the legal interests protected in determining whether there is idem is in my view problematic for two main reasons.
            
         
               40.
            
            
               First, national law and EU law increasingly converge: it seems therefore that the Court’s statement in Wilhelm and Others according to which national competition law and EU competition law consider anticompetitive behaviour from different points of view is no longer entirely accurate. To a certain extent, the practical relevance of the criterion in the context of parallel proceedings or punishment by the Commission and national competition authorities may be questionable.
            
         
               41.
            
            
               That said, there may be cases where the overlap might not be perfect: that is recognised in Regulation No 1/2003, the secondary law instrument that seeks to coordinate the application of EU competition law and to ensure, where appropriate, that national competition authorities apply Articles 101 and 102 TFEU in those investigations that affect trade between Member States. It is accordingly stated in recital 9 of that regulation that where national legislation pursues predominantly an objective different from that of protecting competition on the market, (the objective of Articles 101 and 102 TFEU) the competition authorities and courts of the Member States may apply such legislation on their territory. Nevertheless, I would argue that that is today a rather seldom occurrence.
            
         
               42.
            
            
               Second, and more fundamentally, a certain tension can be discerned between the three-fold criterion applied in the field of competition law and Article 50 of the Charter. In other words: is the three-fold criterion compatible with Article 50 of the Charter?
            
         
               43.
            
            
               That question is, in my view, a legitimate one.
            
         
               44.
            
            
               It seems to me that the Court is not oblivious to that tension. Although it did indeed refer to the three-fold criterion in Toshiba, the Court nonetheless excluded the application of the principle of ne bis in idem in that case on another basis, by pointing out that the facts underlying the two consecutive decisions at issue (taken by the Commission and the national competition authority) were not identical. This difference, arguably, allowed the Court not to explicitly discuss the three-fold criterion, the fate of which will certainly be subject to litigation in the future.
            
         
               45.
            
            
               I have difficulty in identifying good reasons why the three-fold criterion should continue to be applied in the context of competition law.
            
         
               46.
            
            
               I would tend to agree with Advocate General Kokott that the principle of ne bis in idem, as enshrined in Article 50 of the Charter, should be interpreted uniformly in all areas of EU law, having due regard to the requirements of the case-law of the ECtHR. (
                     28
                  ) Simply because competition law does not belong to the ‘core’ of criminal law, or because sanctions in competition law should have a sufficiently deterrent effect so as to ensure effective protection of competition, do not for me constitute sufficient reasons to limit the protection afforded by the Charter in the field of competition law.
            
         
               47.
            
            
               The risk of several competition authorities instigating proceedings against the same undertaking for the same action (because the actual or potential effects of that action spread across the European Union) seems to be inherent in a decentralised system of competition law enforcement set up by Regulation No 1/2003. That is so despite the regulation containing some rules seeking to avoid parallel prosecution. (
                     29
                  ) Because of the design of the system of enforcement thus devised by Regulation No 1/2003, the application of the principle of ne bis in idem should not in my view be made subject to overly cumbersome criteria.
            
         
               48.
            
            
               Indeed, effective protection of competition in the European Union, which has due regard to the rights of undertakings operating in the internal market, can be achieved without reliance on the requirement of the identity of legal interests protected. Indeed, on the basis of the two-fold criterion based on the identity of facts and offender, the principle of ne bis in idem would simply prevent more than one competition authority from imposing penalties for the (real or presumed) anticompetitive effects stemming from a particular course of action where those penalties relate to the same territory and the same period of time within the European Union. By contrast, it would not hinder the possibility of more than one competition authority from prosecuting or punishing restrictions of competition resulting from one and the same action in different territories or during different periods of time. (
                     30
                  )
            
         
               49.
            
            
               Given that in competition law the effects of the impugned conduct, which relate to a particular territory and a particular period of time, constitute a necessary component of the facts, the two-fold criterion of idem can ensure effective prosecution of anticompetitive conduct in the European Union. It also ensures more legal certainty for undertakings. More importantly still, it is in line with the requirements of Article 50 of the Charter, as interpreted in the light of the case-law of the ECtHR.
            
         
               50.
            
            
               Regrettably though, the present case does not lend itself to clarify that issue.
            
         
         
            C.
          
            The present case: the absence of both bis and idem
         
      
      
               51.
            
            
               As already alluded to above, the questions referred reflect the doubts of the referring court regarding the conformity with Article 50 of the Charter of the three-fold criterion pertaining to the identification of idem, discussed in the previous section.
            
         
               52.
            
            
               It cannot be emphasised enough that, in order for the principle of ne bis in idem to be applied, the element of bis must be present too. This is clear from both the wording of the principle itself, as well as Article 50 of the Charter. That is also clear from the case-law of the ECtHR. (
                     31
                  ) Understandably, the Court has to my knowledge only examined a potential breach of that principle in situations where successive proceedings have been at stake. (
                     32
                  )
            
         
               53.
            
            
               In the case pending before the referring court, the bis component is missing. In fact, it can be seen from the order for reference that the NCA has taken a single decision imposing a single fine (composed of two parts) on the basis of a concurrent application of national and EU competition law.
            
         
               54.
            
            
               The principle of ne bis in idem does not apply in such circumstances.
            
         
               55.
            
            
               On the basis of the information available to this Court, it seems that the question that must be resolved in the main proceedings is rather whether the methodology on the basis of which the fine was imposed by the NCA is proportionate. (
                     33
                  )
            
         
               56.
            
            
               Although the proportionality of the sanction is ultimately for the referring court to determine, Regulation No 1/2003 deserves particular mention here. By enacting Regulation No 1/2003, the EU legislature sought to ensure that national authorities apply (instead of or in parallel with national competition law) Articles 101 and 102 TFEU. As can been seen from Article 3, the regulation also seeks to ensure that national competition authorities do not take decisions that would hamper the effectiveness of EU competition rules. In other words, the regulation in fact encourages (where appropriate) the concurrent application of national competition law and EU competition law by national competition authorities. As far as the proportionality of fines is concerned, the regulation does not, however, lay down rules on how national competition authorities should calculate a fine in a given set of circumstances. Article 23 of the regulation simply imposes a rigid upper limit for fines imposed by the Commission: that limit is 10% of the total turnover of the undertaking concerned in the preceding business year.
            
         
               57.
            
            
               In the present case, I cannot identify any element that would suggest a breach of the principle of proportionality.
            
         
               58.
            
            
               In fact, the methodology applied by the NCA in setting the fine appears to constitute a textbook example of how a national competition authority can apply national competition law and EU competition law in parallel in a given case. The fine is composed of two parts which sanction the effects of the impugned conduct in relation to two different periods of time: the first part is based on the breach of national competition law before Poland joined the European Union on 1 May 2004 and the second on the breach of EU competition rules (and national competition law) after that date. As concerns, specifically, that second period, the NCA has taken into account the circumstance that the impugned conduct (could) affect the trade between the Member States (in addition to the effects of the conduct within Poland). That ‘overlap’ is a matter related to the methodology applied in calculating a fine for a breach of competition law. It is not prohibited by the principle of ne bis in idem.
            
         
               59.
            
            
               In the light of the above, the questions referred should be answered to the effect that the principle of ne bis in idem is not applicable in circumstances such as those at issue in the main proceedings.
            
         
         IV. Conclusion
      
      
               60.
            
            
               In the light of the above considerations, I suggest that the Court answer the questions referred by the Sąd Najwyższy (Supreme Court, Poland) as follows:
               The principle of ne bis in idem is not applicable in circumstances such as those at issue in the main proceedings.
            
         (
            1
         )	Original language: English.
      (
            2
         )	Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1).
      (
            3
         )	Ustawa o ochronie konkurencji i konsumentów (Dz.U. 2000 No 122, item 1319).
      (
            4
         )	It has been implied by some of the parties who have submitted observations that the Court should refuse to answer the questions referred, as, it is argued, the questions posed lack relevance for the resolution of the case pending before the referring court. I do not agree. The circumstance that the principle of ne bis in idem may not be applicable in the case pending before the referring court does not render the questions posed hypothetical or irrelevant. On the contrary, it is clear from the order for reference that the answer given by the Court regarding the interpretation of the principle of ne bis in idem will assist the referring court to give judgment in the case pending before it.
      (
            5
         )	The Court applied the principle for the first time in judgment of 5 May 1966, Gutmann v Commission, 18/65 and 35/65, EU:C:1966:24, p. 119.
      (
            6
         )	See the Opinion of Advocate General Ruiz-Jarabo Colomer in Gözütok and Brügge, C‑187/01 and C‑385/01, EU:C:2002:516, point 49.
      (
            7
         )	On the application of the principle in fields other than ‘pure’ criminal law, see J. Tomkins, ‘Article 50’, in S. Peers et al (eds), The EU Charter of Fundamental Rights — A Commentary, Hart Publishing, Oxford, 2014, pp. 1373 to 1412, at 1388 to 1390.
      (
            8
         )	Judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 94 and the case-law cited.
      (
            9
         )	See the Opinion of Advocate General Ruiz-Jarabo Colomer in Gözütok and Brügge, C‑187/01 and C‑385/01, EU:C:2002:516, point 49.
      (
            10
         )	See, for example, judgment of the ECtHR of 29 May 2001, Fischer
         v. Austria, CE:ECHR:2001:0529JUD003795097, § 25.
      (
            11
         )	See, in particular, judgment of the ECtHR of 10 February 2009, Sergey Zolotukhin v. Russia [GC], CE:ECHR:2009:0210JUD001493903, §§ 81 to 84, and of 17 February 2015, Boman v. Finland, CE:ECHR:2015:0217JUD004160411, § 33.
      (
            12
         )	Ibid.
      (
            13
         )	See for instance judgments of 9 March 2006, van Esbroeck, C‑436/04, EU:C:2006:165, paragraph 32; of 28 September 2006, Gasparini and Others, C‑467/04, EU:C:2006:610, paragraph 54; of 28 September 2006, van Straaten, C‑150/05, EU:C:2006:614, paragraphs 41, 47 and 48; of 18 July 2007, Kraaijenbrink, C‑367/05, EU:C:2007:444, paragraphs 26 and 28; and of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraph 39.
      (
            14
         )	Judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 338, and of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 94.
      (
            15
         )	Judgment of 13 February 1969, Wilhelm and Others, 14/68, EU:C:1969:4.
      (
            16
         )	Idem, paragraphs 3 and 9. The Court did, however, formulate a caveat. According to the Court, the principles of natural justice demand that any previous punitive decision must be taken into account in determining any sanction which is to be imposed. See paragraph 11 of the judgment as well as judgment of 14 December 1972, Boehringer Mannheim v Commission, 7/72, EU:C:1972:125, paragraph 3.
      (
            17
         )	Judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6.
      (
            18
         )	Idem, paragraphs 338 to 340.
      (
            19
         )	Judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72.
      (
            20
         )	Idem, paragraph 94. See also Opinion of Advocate General Kokott in Toshiba Corporation and Others, C‑17/10, EU:C:2011:552, points 97 to 134.
      (
            21
         )	Judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraphs 97 to 103.
      (
            22
         )	Judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582.
      (
            23
         )	Idem, paragraphs 59 to 62.
      (
            24
         )	Judgment of 29 June 2006, Showa Denko v Commission, C‑289/04 P, EU:C:2006:431.
      (
            25
         )	Idem, paragraphs 52 to 56.
      (
            26
         )	Judgments of 29 June 2006, Showa Denko v Commission, C‑289/04 P, EU:C:2006:431, paragraphs 51 and 53, and of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraphs 29 and 31. For a discussion on why the principle of ne bis in idem cannot, in any event, apply where double prosecution takes place in different jurisdictions unless there is an international agreement stipulating that the principle should apply, see Opinion of Advocate General Tizzano in Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, C‑397/03 P, EU:C:2005:363, points 94 to 99.
      (
            27
         )	The complexities involved in applying the principle of ne bis in idem in the context of competition law at that time is set out in detail in the Opinion of Advocate General Mayras in Boehringer Mannheim v Commission, 7/72, EU:C:1972:107, p. 1293 et seq.
      (
            28
         )	See the Opinion of Advocate General Kokott in Toshiba Corporation and Others, C‑17/10, EU:C:2011:552, points 120 to 122.
      (
            29
         )	See, in particular, Article 13 of the regulation regarding suspension or termination of proceedings.
      (
            30
         )	Opinion of Advocate General Kokott in Toshiba Corporation and Others, C‑17/10, EU:C:2011:552, point 131. However, in such circumstances due regard ought to be had to the general requirement set out in Wilhelm and Others. Accordingly, any previous punitive decision must be taken into account in determining the sanction to be imposed. See judgment of 13 February 1969, Wilhelm and Others, 14/68, EU:C:1969:4, paragraph 11.
      (
            31
         )	See, for example, judgments of the ECtHR of 7 December 2006, Hauser-Sporn
         v. Austria, CE:ECHR:2006:1207JUD003730103, § 42 and the case-law cited. See also https://www.echr.coe.int/Documents/Guide_Art_4_Protocol_7_ENG.pdf (accessed on 19 October 2018), point 30 et seq.
      (
            32
         )	The interpretive issue raised by the bis component has thus generally turned on the proper construction of ‘a final decision’. See, for example, judgments of 28 September 2006, Gasparini and Others, C‑467/04, EU:C:2006:610, paragraphs 31 and 32; of 28 September 2006, van Straaten, C‑150/05, EU:C:2006:614, paragraphs 51 and 58; and of 22 December 2008, Turansky, C‑491/07, EU:C:2008:768, paragraphs 35 and 36. Recently, the General Court has explicitly rejected a claim that it could be possible to rely on the principle of ne bis in idem where several fines have been imposed in one single decision. See judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraphs 307 to 344. An appeal against that judgment is currently pending before this Court.
      (
            33
         )	See to that effect judgment of 18 December 2008, Coop de France Bétail et Viande and Others v Commission, C‑101/07 P and C‑110/07 P, EU:C:2008:741, paragraph 130. It can be inferred from the Court’s reasoning that the question of whether an undertaking has been fined twice for the same infringement is to be assessed in the light of the principle of proportionality.