Toshiba Corporation and Others v Úřad pro ochranu hospodářské soutěže.

• Jurisdiction: European Union
• Celex Number: 62010CJ0017
• ECLI: ECLI:EU:C:2012:72
• Date: 14 February 2012
• Docket Number: C‑17/10
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Grand Chamber)

14 February 2012 ( *1 )

‛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’

In Case C-17/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Krajský soud v Brně (Czech Republic), made by decision of 11 December 2009, received at the Court on 11 January 2010, in the proceedings

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,

v

Úřad pro ochranu hospodářské soutěže,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot, J. Malenovský and U. Lõhmus, Presidents of Chambers, A. Rosas (Rapporteur), A. Borg Barthet, M. Ilešič, A. Arabadjiev, C. Toader and J.-J. Kasel, Judges,

Advocate General: J. Kokott,

Registrar: K. Sztranc-Sławiczek, Administrator,

having regard to the written procedure and further to the hearing on 7 June 2011,

after considering the observations submitted on behalf of:

— Toshiba Corporation, by I. Janda, advokát, and J. MacLennan, Solicitor,

— Mitsubishi Electric Corp., by A. César and M. Abraham, advokáti,

— Alstom, by M. Dubovský and M. Nulíček, advokáti, J. Derenne, avocat, K. Wilson, Solicitor, and G. Dolara, advocate,

— Fuji Electric Holdings Co. Ltd and Fuji Electric Systems Co. Ltd, by V. Glatzová, advokát,

— Siemens Transmission & Distribution SA, Siemens AG Österreich and VA Tech Transmission & Distribution GmbH & Co. KEG, by M. Nedelka, advokát,

— Siemens AG, by M. Nedelka, advokát,

— Hitachi Ltd, Hitachi Europe Ltd and Japan AE Power Systems Corp., by M. Touška and I. Halamová Dobíšková, advokáti, M. Reynolds and P.J. Mansfield, Solicitors, W. Devroe, advocaat, N. Green QC, and S. Singla, Barrister,

— Nuova Magrini Galileo SpA, by M. Nedelka, advokát,

— the Úřad pro ochranu hospodářské soutěže, by M. Vráb, acting as Agent,

— the Czech Government, by M. Smolek, acting as Agent,

— Ireland, by D. O’Hagan, acting as Agent, assisted by S. Kingston, Barrister,

— the Spanish Government, by S. Centeno Huerta and J.M. Rodríguez Cárcamo, acting as Agents,

— the Polish Government, by M. Szpunar and K. Zawisza, acting as Agents,

— the Slovak Government, by B. Ricziová, acting as Agent,

— the European Commission, by F. Castillo de la Torre, N. Khan, K. Walkerová and P. Němečková, acting as Agents,

— the EFTA Surveillance Authority, by X. Lewis and O. Einarsson, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 8 September 2011,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 81 EC, 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), particularly Articles 3(1) and 11(6) thereof, and of point 51 of the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43; ‘the Commission Notice’).

2 The reference has been made in the context of a dispute between various undertakings and the Úřad pro ochranu hospodářské soutěže (Czech competition authority) concerning the decision of that authority to fine them for infringement of Czech competition law.

Legal context

EU law

3 Article 2 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33; ‘the Act of Accession’) provides: ‘From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions ... before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.’

4 Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’), prohibits cartels in the same terms as those of Article 81 EC and its scope extends to the whole of the European Economic Area (‘the EEA’).

5 Recital 8 of Regulation No 1/2003 provides: ‘In order to ensure the effective enforcement of the Community competition rules and the proper functioning of the cooperation mechanisms contained in this Regulation, it is necessary to oblige the competition authorities and courts of the Member States to also apply Articles 81 [EC] and 82 [EC] where they apply national competition law to agreements and practices which may affect trade between Member States. In order to create a level playing field for agreements, decisions by associations of undertakings and concerted practices within the internal market, it is also necessary to determine pursuant to Article 83(2)(e) [EC] the relationship between national laws and Community competition law. ...’

6 Recital 9 of Regulation No 1/2003 provides: ‘Articles 81 [EC] and 82 [EC] have as their objective the protection of competition on the market. This Regulation, which is adopted for the implementation of these Treaty provisions, does not preclude Member States from implementing on their territory national legislation, which protects other legitimate interests provided that such legislation is compatible with general principles and other provisions of Community law. In so far as such national legislation pursues predominantly an objective different from that of protecting competition on the market, the competition authorities and courts of the Member States may apply such legislation on their territory. ...’

7 According to recital 17 of Regulation No 1/2003: ‘If the competition rules are to be applied consistently and, at the same time, the network is to be managed in the best possible way, it is essential to retain the rule that the competition authorities of the Member States are automatically relieved of their competence if the Commission initiates its own proceedings. ...’

8 Recital 18 of the same regulation provides: ‘To ensure that cases are dealt with by the most appropriate authorities within the network, a general provision should be laid down allowing a competition authority to suspend or close a case on the ground that another authority is dealing with it or has already dealt with it, the objective being that each case should be handled by a single authority. ...’

9 Recital 37 of Regulation No 1/2003, which deals with the protection of fundamental rights, provides: ‘This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (“the Charter”). Accordingly, this Regulation should be interpreted and applied with respect to those rights and principles.’

10 Article 3 of Regulation No 1/2003 governs as follows the ‘Relationship between [Article 81 EC] ... and national competition laws’: ‘1. Where the competition authorities of the Member States or national courts apply national competition law to agreements, decisions by associations of undertakings or concerted practices within the meaning of Article 81(1) [EC] which may affect trade between Member States within the meaning of that provision, they shall also apply Article 81 [EC] to such agreements, decisions or concerted practices. ... 2. The application of national competition law may not lead to the prohibition of agreements, decisions by associations of undertakings or concerted practices which may affect trade between Member States but which do not restrict competition within the meaning of Article 81(1) [EC], or which fulfil the conditions of Article 81(3) [EC] which are covered by a Regulation for the application of Article 81(3) [EC]. Member States shall not under this Regulation be precluded from adopting and applying on their territory stricter national laws which prohibit or sanction unilateral conduct engaged in by undertakings. 3. Without prejudice to general principles and other provisions of Community law, paragraphs 1 and 2 do not apply when the competition authorities and the courts of the Member States apply national merger control laws nor do they preclude...