“No twice punishment for the same” or Ne bis in idem PRINCIPLE IN COMPETITION LAW

On 25 October 2017 the Turkish Competition Authority (TCA) finalised its 18 month investigation and decided on Mey Icki (Diageo plc’s subsidiary) case. It determined that the company abused its dominant position in the gin and vodka markets in Turkey by way of exclusionary practices against competitors via rebates, visual arrangements at sales points and cash payment support. Nevertheless, the TCA concluded that the company should not be subject to a monetary fine. The TCA relied on the principle of “ne bis in idem”, since this was the second investigation and infringement decision against Mey Icki this year. The decision seems to be in line with the EU precedents. The reasoning decision of the TCA is highly awaited in this regard to fully assess the TCA’s approach towards the “non bis in idem” principle.

I. “NE BIS IN IDEM”

The principle ne bis in idem (literally translated as ‘not twice about the same’) prohibits double jeopardy/punishment for the same offence. When it comes to competition law, the principle 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.[1]

II. TCA’S APPROACH  – MEY ICKI’S CASES

(i) Raki case. Following completion of the first investigation and taking the infringement decision in relation to Mey Icki in February 2017, the TCA imposed a TRY 155 782 962 (approx. EUR 40 million) fine together with certain obligations on the company (i.e. termination of cash discount practices to the sales points, abolition of financial benefits in relation to the shelf positioning and product layout etc.).

(ii) Vodka and gin case. Following the completion of the second investigation and finding the infringement in October 2017, the TCA decided not to impose any fine on Mey Icki due to the fact that the same company had already been fined for the same practices that belonged to the exact same period of time; the only difference was the product concerned. Hence, in order to avoid the double jeopardy, the TCA concluded that the company should not be subject to a fine.

III. EU APPROACH

In the EU the relevance of the principle ne bis in idem to the competition law cases has been confirmed by the Court of Justice of the EU (CJEU) in several cases. According to the CJEU, in competition law cases, the principle ne bis in idem must be observed in proceedings resulting in the imposition of fines.[3] Application of this principle is subject to the threefold condition[4]  – in particular that in the two cases:

 (i) the facts must be the same,

(ii) the offender the same and

(iii) the legal interest protected the same.

Hence, the principle thus precludes an undertaking’s being found liable/penalised afresh on the grounds of anti-competitive conduct for which it has been penalised.

The CJEU’s 2012 judgement in Case C‑17/10  Toshiba Corporation and Others v Úřad pro ochranu hospodářské soutěže[2] clarified and added one more condition to the application of the principle (particularly in relation to the distinction between the jurisdiction of the EC and national competition authorities) – “effects”. “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.”[5]

IV. CONCLUDING REMARKS

The TCAs by its Mey Icki’s decision has proved to be following the European approach towards the application of the principle ne bis in idem in the competition law cases. It will be interesting to see the reasoning of the TCA in its reasoned decision which is to be published in the coming months, particularly in relation to the relevant markets (since the main difference between the two Mey Icki cases is the products concerned).

 

More information: info@actecon.com

[1] See Case C‑17/10,  para 94 of; Limburgse Vinyl Maatschappij v Commission, para59

[2] Summary of the judgement, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62010CJ0017_SUM&from=EN; paras 94, 97, 103, operative part 2

[3] This has also been confirmed by the CJEU in other case, e.g. Joined Cases 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 Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 59; Joined Cases 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 Aalborg Portland and Others v Commission[2004] ECR I-123, paragraphs 338 to 340; Case C-289/04 P Showa Denko v Commission [2006] ECR I-5859, paragraph 50

[4] See Aalborg Portland and Others v Commission, para 338; Case C‑17/10, para 97

[5] See Case C‑17/10, para 103

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