31.3.2012

Official Journal of the European Union

C 98/3

(Case C-17/10) (<span class="super">1</span>)

(Competition - Cartel, in the territory of a Member State, which commenced before the accession of that State to the European Union - Cartel of international scope having effects in the territory of the Union and the European Economic Area - Article 81 EC and Article 53 of the EEA Agreement - Prosecution and sanction of the infringement for the period prior to the date of accession and the period following that date - Fines - Delimitation of the powers of the Commission and those of the national competition authorities - Imposition of fines by the Commission and by the national competition authority - Ne bis in idem principle - Regulation (EC) No 1/2003 - Articles 3(1) and 11(6) - Consequences of the accession of a new Member State to the Union)

2012/C 98/04

Language of the case: Czech

Referring court

Parties to the main proceedings

Applicants: Toshiba Corporation,T&D Holding, formerly Areva T&D Holding SA, Alstom Grid SAS, formerly Areva T&D SAS, Alstom Grid AG, formerly Areva T&D AG, Mitsubishi Electric Corp., Alstom, Fuji Electric Holdings Co. Ltd, Fuji Electric Systems Co. Ltd, Siemens Transmission & Distribution SA, Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens AG, Hitachi Ltd, Hitachi Europe Ltd, Japan AE Power Systems Corp., Nuova Magrini Galileo SpA

Defendant: Úřad pro ochranu hospodářské soutěže

Re:

Reference for a preliminary ruling — Krajský soud v Brně — Interpretation of Article 81 EC, of Article 50 of the Charter of Fundamental Rights of the European Union (OJ 2007 C 303, p. 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 (OJ 2003 L 1, p. 1), and in particular Arts. 3(1) and 11(6) thereof, and of point 51 of the of the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43) — Cartel in the territory of a Member State, which commenced before that State’s accession to the European Union and ended after that event — Imposition of fines by the Commission and by the national competition authority — Competence of the national authority to sanction the same conduct with regard to the period before the accession — Non bis in idem principle

Operative part of the judgment

1.The provisions of Article 81 EC and Article 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 must be interpreted as meaning that, in the context of a proceeding initiated after 1 May 2004, they do not apply to a cartel which produced effects, in the territory of a Member State which acceded to the Union on 1 May 2004, during periods prior to that date.

2.The opening by the European Commission of a proceeding against a cartel under Chapter III of Regulation No 1/2003 does not, pursuant to Article 11(6) of Regulation No 1/2003, read in combination with Article 3(1) of the same regulation, cause the competition authority of the Member State concerned to lose its power, by the application of national competition law, to penalise the anti-competitive effects produced by that cartel in the territory of the said Member State during periods before the accession of the latter to the European Union.

The ne bis in idem principle does not preclude penalties which the national competition authority of the Member State concerned imposes on undertakings participating in a cartel on account of the anti-competitive effects to which the cartel gave rise in the territory of that Member State prior to its accession to the European Union, where the fines imposed on the same cartel members by a Commission decision taken before the decision of the said national competition authority was adopted were not designed to penalise the said effects.

(1) OJ C 100, 17.4.2010.