I got published!

You can download my article entitled "Preventing the Cure: Corporate Compliance Programmes in EU Competition Law Enforcement" here.

Some fun reading for this week....

I know I should get a bigger post concerning a current issue together, but my thesis writing has been flowing quite well...which obviously means no time to write about anything else. For now, some links for this week....

Almunia on committments, remedies and settlements

Almunia on the Microsoft fine

Advances on private enforcement in the UK?

Daniel Sokol's new article "Policing the firm"

ECN Brief 1/2003

Breaking news: The Commission fines Microsoft €561 million for non-compliance with commitments

See here

Some fun reading for the week...

The Commission is being sued for damages because it has supposedly encouraged a breach of Article 101 TFEU which it later punished.

AG Kokott gives a controversial opinion on legal advice in the context of competition law infringements

The CJEU has given judgments in Åkerberg Fransson and Melloni

The Commission prohibits a merger between Ryanair and Aer Lingus (again)

Bruno Lasserre writes on Compliance as an Effective Tool of Competition Enforcement: The French Example

ThyssenKrupp files a constitutional complaint before the BVerfG alleging that the Commission and or the CJEU has breached Human rights obligations

Samsung overtakes Apple as no. 1 smart device producer

Samsung has now overtaken Apple as the no. 1 producer of smart devices. According to this article by techdigitt.com, Samsung shipped 250 million units in 2012, whilst Apple came in second with 218.7 million devices. However, Samsungs crowning does not seem to have been taken at the expense of Apple, which increased its total shipping rate by comparison to 2011. Perhaps all the patent wars between IT-technology producers is just a sign that competition in certain consumer technology markets is as fierce as ever?

Publication of the week: Stranger in a Strange Land: An Outsider's View of Antitrust and the Courts

 

By Neil Komesar, published in 41 Loyola University Chicago L.J. 443 2009-2010. For those with HeinOnline access, here is the link.

 

This weeks publication is one of the few examples where a scholarly paper is both educational and enjoyable to read.  Neil Komesar uses his comparative institutional approach to assess whether (private) court or agency enforcement of (US) competition law would be preferrable. He argues that agency enforcement should be preferred to the (in the US more common) private enforcement, because the Court system has very little resources to devote to big and complicated antitrust ligitation. Judges are furthermore not usually experts on competition law and thus liable to make many mistakes. While competition agencies might be easier to influence than the judiciary, Komesar holds that the larger resources and the expertise held by competition agencies outweigh the possible bias. He even holds that competition agencies appear to avoid bias by hearing both sides to a case.

While I agree with Komesar's analysis for the most part, I am a bit less certain that bias is not a problem in competition agencies. While this may be true for the US (I'm really not expert enough to say), in the EU, the Commission is frequently a party to cases as well as the prosecutor in cases, which makes avoiding bias more difficult. The Commission has tried to avoid bias by creating the role of the hearing officer, but this role seems to be too small to disperse doubts about bias.

In any case, Komesar's article, and indeed his books, are a great read for anyone interested in competition law and/or  institutional law & economics!

Case C-617/10 Åkerberg Fransson (the principle of ne bis in idem in taxation cases)

The Court of Justice (the Court) has finally delivered its' judgement in the preliminary ruling procedure, upon request from the Haparanda District Court (the District Court) in Sweden, concerning the principle of ne bis in dem (prohibition of double jeopardy) in cases regarding administrative and criminal sanctions for tax evasion. 

Background

The case arose stemmed from an administrative procedure before the Swedish tax authorities ('Skatteverket') in which Mr. Åkerberg Fransson was ordered to pay a surcharge for his alleged provision of false information for the purposes of VAT and income taxation in 2004-2005. In addition, Mr. Åkerberg Fransson was criminally prosecuted for failing to declare employers' contributions for the same period. Both the administrative sanction and the criminal prosecution, the latter which brought Mr. Åkerberg Fransson before the District Court, were based upon the same acts of providing false information. Mr. Åkerberg Fransson challenged the prosecution, claiming that he had already been sanctioned by the Skatterverket in the first place.

In summary, the case revolved around two legal aspects:

1. Whether the case fell within the scope of EU law (the 'jurisdictional question').
2. Does the principle of ne bis in idem prevent the imposition of criminal sanctions for tax evasion if administrative sanctions has been levied for the same act in the first place (the 'substantive question')? 

The jurisdictional question

The jurisdictional question is perhaps the most interesting part of the case. Sweden, and several intervening governments argued that the case did not fall within the scope of the principle of ne bis in idem within the meaning of the Charter of Fundamental Rights of the EU (the Charter), because neither the administrative nor the criminal sanctions were adopted in pursuit of national implementation of any EU legislation and accordingly: the Charter was not applicable (para. 16). Thus, the outcome of the case would determine the applicability of the Charter. The Court, relying on its case law, ruled that Article 51(1) of the Charter, which determines its' applicability, is to be interpreted in the following manner:

"The requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law" (para. 21).

I.e., it was not strictly necessary for the national legislation to have been adopted for the implementation of EU law, it was sufficient that the situation fell within the scope of EU law. This is a very broad interpretation of the Charter, which I personally welcome, but which I also believe that several jurists will disagree with. 

In either case, the Court went on to explain that since the case partially concerned administrative sanctions for providing false information with relation to VAT, the case fell within the scope of EU, since VAT is regulated on a European level. Accordingly, I welcome that the Court made a bold statement when it confirmed that the case at hand fell within the scope of EU law, as the prosecution was also brought for providing false information with relation to VAT. In this case, I believe that there is no doubt that the situation fell within the scope of EU law and that the jurisdictional decision by the Court was fully accurate.

The substantive question

The substantive question was dealt with the rather swiftly by the Court. It confirmed that the principle of ne bis in idem prevents the levying of two subsequent criminal sanctions for the same act, whilst the same principle permits a administrative sanction followed by a criminal sanction (para. 34). Rather discouraging is the fact that the Court was not as bold in this part of the judgement, as in relation to the jurisdictional issue. The Court confirmed that sanctions that are administrative by name may in fact be criminal, depending on their legal classification, nature of the offence and the degree of severity of a potential penalty. However, instead of providing clear guidance as to whether or not the administrative sanction was criminal, the Court left it to the national court to decide, thereby still leaving the door open as to the applicability of the the principle of ne bis in idem in taxation cases (para. 36).

Other interesting aspects

There are two additional aspects that were interesting albeit minor in relation to the two former. The first relates to the interpretation of the ECHR and its' relation to EU fundamental rights and national law. The Court was, somewhat surprisingly, relucant to give guidance on the interpretation of the ECHR in the present case:

"... as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law. Consequently, European Union law does not govern the relations between the ECHR and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law."

The Court is more decisive when it lectures the Haparanda District Court on the general applicability of EU fundamental rights and in a very affirmative manner dismisses any notion that it must be clear from the Court's case law or the provisions in the Charter whether or not they should apply. The Court points out that national courts may, or sometimes must, refer questions to the Court for preliminary ruling in case of doubt (paras. 45-48).

Conclusion

Åkerberg Fransson won't go down in the history books as one of the classics of EU law but it is nonetheless an important piece in the puzzle as to the applicability of the Charter. Personally I believe that the Court makes the right choice when it states that the Charter applies to situations falling within the scope of EU law, as opposed to strictly limiting it to situations concerning national legislation implementing EU law. However, the case unfortunately leaves a slightly sour aftertaste since the Court could have graced us with more precise guidelines as to the applicability of the principle of ne bis in idem, in particular in the light of the case law of the European Court of Human Rights.