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:
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’.