Slovak Telekom a.s. v Protimonopolný úrad Slovenskej republiky.
Date: 2021-02-25
In that regard, it must be recalled that, in accordance with settled case-law, 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 (judgment of 3 October 2019, Wasserleitungsverband Nördliches Burgenland and Others, C‑197/18, EU:C:2019:824, paragraph 48 and the case-law cited).
Nevertheless, the Court has previously held, in respect of the concept of ‘initiation of a procedure’ set out in Article 9 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [101 and 102 TFEU] (OJ, English Special Edition 1959-1962, p. 87), which was the precursor to Regulation No 1/2003, that that concept concerns an authoritative act of the Commission, evidencing its intention to take a decision under that former regulation (see, to that effect, judgment of 6 February 1973, Brasserie de Haecht, 48/72, EU:C:1973:11, paragraph 16).
Finally, this interpretation of the first sentence of Article 11(6) is borne out by the objective pursued by that regulation. As is apparent from recitals 6 and 8 thereof, the regulation seeks to ensure that the EU competition rules are applied effectively by empowering the competition authorities of the Member States to apply that law in parallel with the Commission. The parallel application of those rules must, however, also be consistent and ensure that the network of public authorities in charge of the implementation of those rules is managed in the best possible way. As recital 17 of that regulation states, it is in order to ensure those objectives that there is provision for the national competition authorities to be relieved of their competence in favour of the Commission where the latter initiates proceedings. Furthermore, the parallel application of those rules cannot be at the expense of undertakings. National competition authorities being relieved of their competence makes it possible to protect the undertakings from parallel proceedings brought by those authorities and the Commission (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 18, and order of 29 January 2020, Silgan Closures and Silgan Holdings v Commission, C‑418/19 P, not published, EU:C:2020:43, paragraph 73).
In order to determine whether that is the case, it must be recalled that, while the interpretation of the scope of the Commission’s decision of 8 April 2009 is a matter for the Court (see, to that effect, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraph 44 and the case-law cited), it is for the referring court to assess the scope of a decision of a national competition authority such as that contested by the appellant in the main proceedings. Nevertheless, the Court, which is called on to provide answers of use in the context of a reference for a preliminary ruling, may provide guidance based on the documents in the file of the case in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the referring court to give judgment in the specific case before it (see, to that effect, judgment of 24 September 2020, YS (Occupational pensions of managerial staff), C‑223/19, EU:C:2020:753, paragraph 58).
In that regard, it should be recalled that the principle ne bis in idem is a fundamental principle of EU law (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, paragraph 59). That principle has also been laid down in Article 50 of the Charter as regards criminal proceedings and penalties.
It is apparent from the Court’s settled case-law that the principle  ne bis in idem must be observed in proceedings which may lead to the imposition of fines under competition law. That principle thus precludes an undertaking from being found liable or proceedings being brought against it afresh on the grounds of anticompetitive 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).
As the Court has previously held, the application of the ‘idem’ condition is, in turn, subject to the threefold sub-condition that the facts must be the same, the offender the same and the legal interest protected the same (see, to that effect, judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 97). Under the principle  ne bis in idem, the same person cannot therefore be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset (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, paragraph 338).