The Principle of 'Ne Bis in Idem' in EC Antitrust Enforcement: A Legal and Economic Analysis

Abstract

This paper deals with the application of the principle of 'ne bis in idem' in EC antitrust enforcement. The principle of 'ne bis in idem', laid down in Article 4 of Protocol 7 to the European Convention on Human Rights and in Article 50 of the Charter of Fundamental Rights of the European Union, is the European equivalent of the double jeopardy clause in the United States. It contributes to efficient law enforcement, in that it prevents over-punishment, creates incentives for efficient prosecution, prevents vexatious multiple prosecutions and creates incentives for efficient coordination between prosecutors. The application of the principle of 'ne bis in idem' is of particular importance in the context of the EU network of competition authorities set up by Regulation 1/2003. It will have the likely and desirable effect of inducing effective coordination between the European Commission and the competition authorities of the Member States as well as harmonization of their laws and policies on fines and leniency.

Keywords: antitrust, enforcement, Europe, ne bis in idem, double jeopardy, fines, leniency

JEL Classification: K00, K14, K42, K21, L40