European Papers (Nov 2019)
The Ne Bis in Idem Principle as a Limit to the Resumption of Competition Proceedings: An Analysis of the Rebar Cartel Saga
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2019 4(2), 523-561 | Article | (Table of Contents) I. Introduction. - I.1. The perils of parallel proceedings in EU competition law. - I.2. The classification of parallel proceedings and the resumption of proceedings following the annulment of a decision on procedural grounds as an instance of horizontal parallel proceedings. - I.3. The inadequacy of the discretionary prosecutorial restraint and the ne bis in idem principle as a limit to parallel proceedings - II. The current freedom to resume proceedings following the annulment of a decision on procedural grounds vis-à-vis a broader way to construe the ne bis in idem principle as a limit to such resumption. - II.1. The current PVC II case law or the freedom to resume proceedings following the annulment of a decision on procedural grounds. - II.2. A broader way to construe the ne bis in idem principle as a better-balanced limit to further proceedings following the annulment of a decision on procedural grounds. - III. The Commission's Rebar cartel: an endless saga. - III.1. Considerations on the case selection. - III.2. The 2002 infringement decision and its first annulment. - III.3. The 2009 readopted decision and its second annulment. - III.4. The 2018 resumption of proceedings. - III.5. The adoption of a third decision and further considerations on the outcome of the case. - IV. The ne bis in idem as a limit to further proceedings in the Rebar cartel case. - IV.1. The failure to meet the first requirement: the effective enforcement of EU competition law does not require a further resumption of the Rebar cartel case. - IV.2. The failure to meet the second requirement: the procedural defect affecting the validity of the 2009 decision was objectively attributable to the Commission and was subjectively caused in bad faith or with gross negligence. - V. Conclusions. | (Abstract) This Article analyses the risks posed by the ability of EU competition authorities to resume proceedings following the judicial annulment of an infringement decision on procedural grounds. After introducing the notion of parallel proceedings in EU competition public enforcement, a taxonomy of possible instances of parallel proceedings is presented, whose resumption following the judicial annulment of a decision on procedural grounds is categorized as horizontal parallel proceedings either at the national level or at Union level. It is argued that although the only viable way to limit the proliferation of parallel proceedings is a coherent and reliable application of the ne bis in idem principle, this approach is currently impaired by the principle's narrow construction by the CJEU in competition matters. After a critical review of the current PVC II case law, which enables an enforcer to resume proceedings and readopt a decision annulled on procedural grounds, the Article proposes a twofold test underlying a broader application of the ne bis in idem principle as a limit to this type of parallel proceedings. The test is then applied via a detailed case study of the Rebar cartel litigation, a concrete and ongoing instance of horizontal parallel proceedings at the Union level. The Article concludes that in the Rebar cartel case, the ne bis in idem principle should have prevented the Commission from resuming proceedings.
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