Case C‑17/10

Toshiba Corporation and Others

v

Úřad pro ochranu hospodářské soutěže

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

(Competition — Cartel, in the territory of a Member State, having begun before that State acceded to the European Union — Cartel of international scope having effects in the territory of the Union and the European Economic Area — Article 81 EC and Article 53 of the EEA Agreement — Prosecution and penalty for the infringement for the period before the date of accession and the period following that date — Fines — Delimitation of the powers of the Commission and those of the national competition authorities — Imposition of fines by the Commission and by the national competition authority — Principle ne bis in idem — Regulation (EC) No 1/2003– Articles 3(1) and 11(6) — Consequences of the accession of a new Member State to the Union)

Summary of the Judgment

1.        Acts of the institutions — Temporal application — Retroactivity of a substantive rule — Conditions — Retroactivity of Article 81 EC and of Article 3 of Regulation No 1/2003 — None

(Art. 81 EC; Council Regulation No 1/2003, Art. 3(1))

2.        Competition — Division of powers between the Commission and the national competition authorities — Opening by the Commission of a proceeding against a cartel — No loss of the national authority’s power to penalise, under national competition law, the anti-competitive effects of that cartel in the territory of the Member State in periods before that State acceded to the European Union

(Council Regulation No 1/2003, Arts 3(1) and 11(6))

3.        Competition — Administrative procedure — Commission’s decision finding an infringement and imposing fines on undertakings having participated in a cartel — Later decision of a Member State’s competition authority imposing fines on those undertakings in order to penalise the effects of that cartel in the territory of that State before it acceded to the European Union — Effects of the cartel penalised by those two decisions not identical — No breach of the principle ne bis in idem

1.        Like Article 81 EC, Article 3(1) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty contains substantive provisions governing the assessment by the competition authorities of agreements between undertakings and constituting, therefore, substantive rules of Union law. Such substantive rules cannot, in principle, be applied retroactively, irrespective of whether such application might produce favourable or unfavourable effects for the persons concerned. The principle of legal certainty requires any factual situation normally, when there is no express contrary provision, to be examined in the light of the rules of law in force at the material time. In order to ensure observance of the principles of legal certainty and of the protection of legitimate expectations, the substantive rules of Community law must be interpreted as applying to situations existing before they entered into force only in so far as it follows clearly from their terms, objectives or general scheme that they must be given such effect. However, no clear indications that those two provisions should be applied retroactively are to be found in the wording, or the purpose, or the general system of Article 81 EC, Article 3 of Regulation No 1/2003 or the Act of Accession.

The provisions of Article 81 EC and Article 3(1) of Regulation No 1/2003 must be interpreted as meaning that, in the context of a proceeding initiated after 1 May 2004, they do not apply to a cartel which produced effects, in the territory of a Member State which acceded to the Union on 1 May 2004, during periods before that date.

(see paras 49-52, 67, operative part 1)

2.        The opening by the European Commission of a proceeding against a cartel under Chapter III of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty does not, pursuant to Article 11(6) of Regulation No 1/2003, read in combination with Article 3(1) thereof, cause the competition authority of the Member State concerned to lose its power, by the application of national competition law, to penalise the anti-competitive effects produced by that cartel in the territory of that Member State during periods before that State acceded to the European Union.

(see para. 92, operative part 2)

3.        In competition law cases, the principle ne bis in idem must be observed in proceedings resulting in the imposition of fines. Application of this principle is subject to the threefold condition that in the two cases the facts must be the same, the offender the same and the legal interest protected the same. That principle thus precludes an undertaking’s 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.

It follows that the principle ne bis in idem does not prevent undertakings that have participated in a cartel from being fined by the national competition authority of the Member State concerned, in order to penalise the effects to which the cartel gave rise in the territory of that Member State before it acceded to the European Union, if the fines imposed on the members of that cartel by a decision of the European Commission decision taken before that national competition authority’s decision was adopted were not intended to penalise the same effects.

(see paras 94, 97, 103, operative part 2)