UOKiK penalties and the ne bis in idem principle
On 3 April 2019, ruling on case C 617/17, the Court of Justice of the European Union addressed the question of penalties imposed by a national antitrust authority for violation of national and EU competition law.
The case concerned preliminary questions addressed to the Court of Justice in 2017 by the Polish Supreme Court with respect to the decision issued by the Polish Office of Competition and Consumer Protection (UOKiK) on 25 October 2007 in which the authority, having deemed that PZU Życie is abusing its dominant market position, imposed two penalties:
- Approximately PLN 33 mln for violation of national competition law (art. 8 of the legislative Act regarding competition and consumer protection) for the period of 1 May 2001 through 25 October 2007;
- Approximately PLN 17 mln for violation of EU competition law (art. 82 of the European Union Treaty, as it then was) for the period of 1 May 2004, i.e. the day of Poland’s accession to the European Union, through 25 October 2007.
In its judgement of 28 March 2014, the Court of Competition and Consumer Protection in Warsaw dismissed PZU Życie’s appeal; this decision was then upheld by the Court of Appeal in Warsaw in a judgement dated 17 September 2015. PZU Życie then lodged an extraordinary appeal with the Supreme Court, pleading violation of the ne bis in idem principle.
Considering the cassation brought by PZU Życie, the Supreme Court considered whether the UOKiK decision does not violate the ne bis in idem principle enshrined in art. 50 of the European Union Charter of Fundamental Rights adopted in Nice on 7 December 2000 and art. 3.1 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. In light of the associated doubts, the Supreme Court suspended the proceedings pending receipt from the Court of Justice of the European Union of replies to the following preliminary questions:
- Is it permissible to interpret art. 50 of the EU Charter of Fundamental Rights so as to predicate application of the ne bis in idem principle not only upon sameness of the entity in breach and of the factual circumstances, but also sameness of the legal interest to be safeguarded ?
- Should art. 3 of Regulation (EC) No 1/2003 in reference to art. 50 of the EU Charter of Fundamental Rights be interpreted so that parallel application by the competition authority of a Member State of EU and domestic competition law safeguards the same legal interest ?
Addressing these questions, the Court of Justice of the European Union held that the ne bis in idem laid down in art. 50 of the EU Charter of Fundamental Rights does not preclude a national competition authority from imposing, by way of a single decision, two penalties upon a business enterprise – one for violation of domestic competition law, and the other for violation of art. 82 of the Treaty. At the same time, the Court of Justice made the reservation that, as it does so, the national authority ought to makes sure that the two penalties considered together are proportional to the violation in question.