Double jeopardy in regulatory/antitrust cases came before ECJ yesterday at a Grand Chamber hearing. It triggered 6 governments & @EU_Commission to urge judges not to change the rules. Two companies (@bpostmedia & Suedzucker) disagreed, strongly. Why does it matter? Thread/1
BPost case saw one decision by postal regulator & then another by the competition regulator. The Sugar decision saw one cartel fined in Germany & then another in Austria. Question: should this be possible? Hit twice for the same conduct is usually not allowed. NE BIS IN IDEM /2
But ECJ rolled out Grand Chamber & heard two cases in parallel. Clear sign it's reviewing the law. Currently, it has 3 strands:
1/same person
2/same facts
3/same legal interest
If you clear all three, it's double jeopardy & not allowed. But it is (3) that's the problem. /3
1/same person
2/same facts
3/same legal interest
If you clear all three, it's double jeopardy & not allowed. But it is (3) that's the problem. /3
Most cases fall at (2) hurdle. The facts are different in the two cases and so they can continue. But the ECJ was taken a good look at the (3) criteria, because it's not really clear what the "protected legal interest" actually means. /4
BPost & Sugar companies said this criteria should be scrapped. The 3rd criterion is slippery & will be dependent on the laws/regulators/institutions involved, they say. A company shouldn't suffer just because of the way authorities choose to run probes /5
But governments & @EU_Commission defended it vigorously. It can't be that just becoz a postal authority probes a regulated tariff, that #antitrust authorities around the bloc are banned from investigating the same conduct. Think of a data protection authority that investigates...
...a dodgy app & rules it a breach of privacy law. Should an #antitrust authority be banned from launching a probe into the same conduct to find it abusive exploitation? That's one of the examples given by @EU_Competition /7
But ECJ judges clearly grappling with 3rd criteria of "protected legal interest." I had the impression they want to specify/trim it a bit. But very difficult to do so without limiting scope of enforcers & undermining EU-wide competition enforcement. Latvia argued that it may...
...probe an abuse on its own market but then want @EU_Commission to look into the same conduct to punish the wider/cross-border effects in the EU. That would be endangered by removing 3rd criterion. Suedzucker argued that companies could be subject to slice-n-diced probes /ends
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