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CJEU Case C-10/18 P / Opinion

Mowi ASA v European Commission
Policy area
Competition
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
26/09/2019
ECLI (European case law identifier)
ECLI:EU:C:2019:795

EU Charter of Fundamental Rights

Title VI: Justice

Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence

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  • CJEU Case C-10/18 P / Opinion

    Key facts of the case:

    Appeal — Competition — Control of concentrations between undertakings — Regulation (EC) No 139/2004 — Article 4(1) — Prior notification obligation for concentrations — Article 7(1) — Standstill obligation — Article 7(2) — Exemption — Concept of a ‘single concentration’ — Article 14(2) — Decision imposing fines for the implementation of a concentration before it has been notified and authorised — Principle ne bis in idem — Set‑off principle — Concurrent offences.

    Outcome of the case:

    I therefore consider that the Court should:

    • set aside the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753);
    • annul Article 1 of Commission Decision of 23 July 2014 imposing a fine for putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Council Regulation (EC) No 139/2004 (Case M. 7184 — Marine Harvest/Morpol), in so far as it finds that, by putting into effect a concentration with an EU dimension in the period from 18 December 2012 to 30 September 2013, Marine Harvest ASA infringed Article 4(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation);
    • annul Article 2 of Commission Decision of 23 July 2014;
    • order the European Commission to bear its own costs and to pay the costs incurred by Marine Harvest ASA.
  • Paragraphs referring to EU Charter

    91) According to case-law, the principle ne bis in idem, which is now enshrined in Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), must be observed in proceedings for the imposition of fines under competition law. That principle thus precludes an undertaking being found liable or proceedings being brought against it afresh on the grounds of anticompetitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged. ( 33 )

    ...

    104) Indeed, for the principle ne bis in idem to apply, there must be an earlier decision, whereby a fine is imposed on the same person in respect of the same conduct. This follows from the case-law cited in point 91 above, which makes the prohibition on double penalties subject to the existence of ‘an earlier decision that can no longer be challenged’. This also follows from the wording of Article 50 of the Charter, which requires that the person ‘has already been finally acquitted or convicted’.