Fundamental Rights beyond Legal Positivism: Rethinking the Ne Bis in Idem Principle in EU Competition Law

Renato Nazzini King's College London discusses Fundamental Rights beyond Legal Positivism: Rethinking the Ne Bis in Idem Principle in EU Competition Law.

ABSTRACT: This article considers the application of the principle of ne bis in idem in EU competition law in the light of four foundational theories: rights-based theories; freedom of movement theories; legitimacy-based theories; and disciplinary theories. This approach provides a framework to analyse the case law of the EU courts not only against the positivistic standards of internal consistency and compliance with Treaty provisions and the EU Charter, complemented by the relevant jurisprudence of the European Court of Human Rights, but also against normative benchmarks inherent in the EU legal system capable of guiding the development of the case law in a structured and coherent way. This article concludes that key areas in the case law of the EU courts should be reviewed, particularly as regards what constitutes the same offence for the purpose of the principle of ne bis in idem in competition law, what decision bars a second prosecution or punishment, and the application of the EU principle of ne bis in idem in the relationship between EU law and national law proceedings within the Union. Recommendations are made also concerning the issue as to whether a prosecuting authority or several prosecuting authorities are allowed to bring separate proceedings concerning different elements of the same offence, the consequences of the first acquittal or conviction being set aside on appeal or judicial review, and the question of the application of the EU principle of ne bis in idem in an international context.