Powszechny Zakład Ubezpieczeń na Życie S.A. v Prezes Urzędu Ochrony Konkurencji i Konsumentów.
Date: 2019-04-03
17


In the second place, the referring court notes that, in its competition law case-law, the Court of Justice has, by contrast, held that the principle of ne bis in idem is subject to the threefold condition of the same facts, offender and protected legal interest. More particularly, in ascertaining when the facts are the same, the Court is to have specified, in the judgment of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 99), that not only the conduct of the undertaking but also the period during which and territory in which the conduct produced its effects must be taken into account.
20


In the third place, were the Court to confirm that the need for the protected legal interest to be the same amounts to an additional condition restricting the application of the principle of ne bis in idem, the referring court asks whether the judgment of 13 February 1969, Wilhelm and Others (14/68, EU:C:1969:4), which was delivered in a case which did not call into question the principle of ne bis in idem, must be interpreted as meaning that EU and national competition law protect the same legal interest. The referring court considers that the same ambiguity also arises in the judgment of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraphs 81 and 98), which could, however, be construed to the effect that both sets of rules protect the same legal interest. That issue, which has not yet been determined, is essential to the outcome of the case in the main proceedings, in which the facts are the same and to which, in the same proceedings, analogous provisions of EU law and of national law were applied simultaneously.
25


The Court has repeatedly held that EU law and national law on competition apply in parallel. Competition rules at European and at national level view restrictions on competition from different angles and their areas of application do not coincide (judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 81 and the case-law cited).
26


It follows that, where the Commission has not opened a proceeding for the adoption of a decision under Chapter III of Regulation No 1/2003, where the national competition authority applies provisions of national law prohibiting unilateral conduct of undertakings capable of affecting trade between the Member States within the meaning of Article 82 EC, the second sentence of Article 3(1) of that regulation requires that Article 82 EC also be applied to it in parallel (see, by analogy, as regards Article 81 EC, judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraphs 77 and 78).
28


In that regard, the Court held that the ne bis in idem principle must be observed in proceedings for the imposition of fines under competition law. That principle thus precludes an undertaking being found liable or proceedings being brought against it afresh on the grounds of anti-competitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged (judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 94 and the case-law cited).
29


It thus follows from the Court’s case-law that the principle of ne bis in idem aims to prevent an undertaking from ‘being found liable or proceedings being brought against it afresh’, which assumes that that undertaking was found liable or declared not liable by an earlier decision that can no longer be challenged.
30


That interpretation of the principle of ne bis in idem is supported by the wording of and rationale behind Article 50 of the Charter.
32


As the Advocate General stated in point 21 of his Opinion, that article thus specifically targets the repetition of proceedings concerning the same material act which have been concluded by a final decision. In a situation where, in accordance with the second sentence of Article 3(1) of Regulation No 1/2003, a national competition authority applies national competition law and Article 82 EC in parallel, there is in fact no such repetition.
34


Thus, the protection which the principle of ne bis in idem aims to afford against the repetition of prosecution leading to a criminal sentence bears no relation to the situation in which national and EU competition law are applied in parallel in a single decision.
37


It is settled case-law that, where an EU regulation does not specifically provide any penalty for an infringement of that regulation or refers for that purpose to national laws, regulations and administrative provisions, Article 10 EC requires the Member States to take all measures necessary to guarantee the application and effectiveness of EU law. For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of EU law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty proportionate (see, by analogy, judgment of 10 July 1990, Hansen, C‑326/88, EU:C:1990:291, paragraph 17).