The principle no bis in idem prohibited to punish two times the same facts

Breach of the principle "no bis in idem" is a recurrent argument to try to get the decrease in the amount of the fine in cases of international cartels. The Court of justice in a judgment of May 16, 2006 (1) ruled on his admissibility to penalties imposed by third countries and in clear conditions for the application.

The principle "no bis in idem" prohibited to punish two times the same facts. The rule of criminal law, considered also by the community courts in matters of competition, has been defined as prohibiting a company be fined, or even pursued by the Commission of the fact of anti-competitive conduct for which it has already been penalised or of which it was declared not responsible by a previous decision which is more likely to use. The applicability of this general principle of Community law is subject to an identity both facts, copyright and protected legal interest. It is however agreed since long (2) when a procedure is two separate territories, the Commission must, in fairness, take into account in fixing the amount of the fine of the penalties already imposed in a Member State for the State competition law offences.

The principle of comity

In the case on May 16, 2006, ADM had already been sentenced for cartel on the lysine market in the United States and the Canada. She felt that the Commission should take into account the fines already paid in these two countries because of the same facts.

The Court appears not to deny the existence of a principle of public international law requiring the Commission to fix the fine open a general requirement of fairness. However, it says that previous sanctions could be taken into account that if the facts accepted by the Commission and the authorities of third States were identical. In this case, it considers that such is not the case, that the identity of the sanctioned actions is not sufficient and that ADM should also report the evidence that the penalties imposed by the authorities of third States were the applications or the effects of the agreement, not only on the market of these States, but also on the Community market.

Therefore, to bring into play the principle of fairness, prove, at the same time, the practice and the anti-competitive effects are identical, and that the third State competition authority has already taken into account in the assessment of the sanction, the effects of the agreement on the Community market. In theory, this could be envisaged because American law allows to sanction anti-competitive affecting more than one State, when such practices have a direct effect on U.S. commerce. Nevertheless, the recent position of the Supreme Court in the Empagran case (3)(lecarteldelesdevitamines) seems to comply with the principle of comity between States.

Transparency of methods

Indeed, even if it suggests that law antitrust American could apply to repair a damage suffered abroad which would be dependent on the effects of the offence recognized in the US market, it recalls the need to interpret the statutes so as to minimize the impact to the sovereignty of other States. This judgment for damages demonstrates a caution in the extension of extraterritoriality to American antitrust law which could also be applied on sanctions.

Rest the hypothesis where the structure of the agreement in a market would be such that the conditions of competition would be globally homogeneous, when the territorial effects of the agreement inevitably interlinked. The fines imposed by the different competition authorities would then necessarily sanction the harm to the competitive structure unique and comprehensive, inducing a risk of accumulation of sanctions to impose, in Community law, the respect of the requirement of fairness.

However, the principles laid down by the Court of justice of the European communities in its judgment of 16 May 2006 should still report the evidence that the effects of the agreement in the community have actually already been taken into account in the calculation of the fine.

Chance of success to establish such evidence will be directly dependent on the transparency of the methods of calculation of the fines imposed by the various national competition authorities, which led to the adoption of guidelines on the subject by each of the national authorities of competition, such as the European Commission has also already done.