The Ne Bis in Idem Principle as a Limit to the Resumption of Competition Proceedings: An Analysis of the Rebar Cartel Saga

• Enrico Salmini Sturli ^[1]
  1. [1] University of Ferrara

     University of Ferrara

     Ferrara, Italia

     
• Localización: European papers: a journal on law and integration, ISSN-e 2499-8249, Vol. 4, Nº. 2, 2019, págs. 523-561
• Idioma: inglés
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• Resumen

  • 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.