Table of Contents: I. Introduction. – I.1. The perils of parallel proceedings in EU competition law. – I.2. The classification of parallel proceedings and the resumption of proceedings following the annulment of a decision on procedural grounds as an instance of horizontal parallel proceedings. – I.3. The inadequacy of the discretionary prosecutorial restraint and the ne bis in idem principle as a limit to parallel proceedings – II. The current freedom to resume proceedings following the annulment of a decision on procedural grounds vis-à-vis a broader way to construe the ne bis in idem principle as a limit to such resumption. – II.1. The current PVC II case law or the freedom to resume proceedings following the annulment of a decision on procedural grounds. – II.2. A broader way to construe the ne bis in idem principle as a better-balanced limit to further proceedings following the annulment of a decision on procedural grounds. – III. The Commission’s Rebar cartel: an endless saga. – III.1. Considerations on the case selection. – III.2. The 2002 infringement decision and its first annulment. – III.3. The 2009 readopted decision and its second annulment. – III.4. The 2018 resumption of proceedings. – III.5. The adoption of a third decision and further considerations on the outcome of the case. – IV. The ne bis in idem as a limit to further proceedings in the Rebar cartel case. – IV.1. The failure to meet the first requirement: the effective enforcement of EU competition law does not require a further resumption of the Rebar cartel case. – IV.2. The failure to meet the second requirement: the procedural defect affecting the validity of the 2009 decision was objectively attributable to the Commission and was subjectively caused in bad faith or with gross negligence. – V. Conclusions.
Abstract: 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.
Keywords: competition law – public enforcement – parallel proceedings – ne bis in idem – annulment on procedural grounds – Rebar cartel.
* Trainee Lawyer, Dentons Europe LLP, Fellow of European Union Law, University of Ferrara, firstname.lastname@example.org. In 2016, the Author undertook an internship at one of the law firms involved in the litigation of the Rebar cartel case. In this capacity, he had the chance to work on the final part of the appeal case against the 2009 readopted Commission decision and follow the subsequent re-opening of the proceedings, after the judicial annulment of said Commission decision in 2017. Access to the case file was granted by courtesy of the law firm in question, in accordance with and within the limits of the legal professional privilege, which is binding upon the Author by virtue of a confidentiality agreement signed at the beginning of the internship. The Author wishes to acknowledge Paolo Borghi, Gabriele Donà, Alessandro Rosanò, Tommaso Pavone and the anonymous reviewer for their valuable contributions and comments on earlier versions of this Article. Furthermore, the Author is particularly indebted to Renato Nazzini, whose extensive work on the influence of fundamental rights and general principles in competition law most inspired the theoretical foundation supporting this analysis.