Toshiba Corporation And Others v Urad pro ochranu hospodarske souteze: ECJ 14 Feb 2012

ECJ (Grand Chamber) 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
The European Court considered whether Regulation 1/2003 could be applied retrospectively to conduct on the Czech market prior to date of accession: ‘According to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force ( . . )
Regulation No 1/2003 contains procedural and substantive rules.
As the Advocate General has pointed out in point 43 of her Opinion, the said regulation, like Article 81 EC, contains substantive provisions which govern the assessment by the competition authorities of agreements between undertakings and therefore constitute substantive rules of EU law.
Such substantive rules cannot in principle be applied retroactively, irrespective of whether such application might produce favourable or unfavourable effects for the persons concerned. The principle of legal certainty requires that any factual situation should normally, in the absence of any express contrary provision, be examined in the light of the legal rules existing at the time when the situation obtained ( . . ).
51 According to settled case-law, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of Community law must be interpreted as applying to situations existing before their entry into force only in so far as it follows clearly from their terms, objectives or general scheme that such effect must be given to them ( . . ).
However, in the present case, neither the wording, nor the purpose, nor the general system of Article 81 EC, Article 3 of Regulation No 1/2003 and the Act of Accession contain any clear indications that those two provisions should be applied retroactively.’
The provisions of Article 81 and Article 3 of Regulation 1/2003 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.

Skouris P
C-17/10, [2012] EUECJ C-17/10 – O, [2012] EUECJ C-17/10
Bailii, Bailii
Cited by:
CitedEmerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .

Lists of cited by and citing cases may be incomplete.


Updated: 02 November 2021; Ref: scu.451295