Boehringer Mannheim GmbH v Commission of the European Communities (7/72)

B —The concept of same action or same offence

The applicant complains that the decision at issue refused to recognize as the ‘same offence’ an event forming a historical unity, as is the conclusion of a cartel agreement, and that it artificially separated the transactions to which that agreement led according to the country in which they were adopted. This view conflicts with Article 85(1) of the EEC Treaty which prohibits agreements the object of which is to restrict competition per se, without regard to their effects. The American penalty was also imposed on the basis of the restrictive agreements themselves, regardless of their effects.The applicant adds that German law considers that the ‘same offence’ within the meaning of Paragraph 269 of the Strafgesetzbuch is the event which forms a historical unity. Even where the action is not a natural unit, a number of actions always constitutes a single offence when the links between those actions are such that to judge them separately would be unnaturally to split a single phenomenon. With regard to the duty to set the previous penalty against a later one, Italian law takes into consideration the subject-matter of the judgment which can consist only in the same ‘azione o omissione’ on which judgment was delivered (Article 6 of the Codice Penale).In Case 19/68 the difference found by the Court between the criteria and impact of Community cartel law and those of the cartel laws of the Member States did not prevent it from holding that there is a duty to take into account the previous penalty. The assertion contained in the contested decision to the effect that by imposing the fine on the applicant the Commission had taken into account only the application of the export cartel agreement in Italy and Belgium is incorrect. There is no such restriction in the decision of 16 July 1969 and, furthermore, during the procedure in Case 45/69, the defendant gave to understand that even the application of the export agreement outside the common market constituted an offence.the defendant makes a comparative examination of the prevailing concepts in the various Member States as to when actions should be regarded as constituting the ‘same action’ from the point of view of criminal law and it points out that there are important differences in this respect. Moreover, it considers that the uncertain and divergent principles which have been developed in this area of criminal law should be used only with circumspection in relation to competition.The laws on competition, which are based on concepts less universally accepted than criminal law, are limited in their application to restrictions on competition occurring within a specific territory. The parties to an international agreement are aware that their conduct is necessarily contravening the laws of the variouts States which prohibit such conduct.The defendant claims that, having regard to this territorial nature of competition law, if the parties to an international cartel restrict, for example, competition, first, in the United States and, secondly, within the common market, those are two different actions, within the natural meaning of the word, and they constitute distinct breaches of two different categories of protected interests. If rules on competition are infringed internationally no national court has jurisdiction to appraise all the international effects of the violations and to put an end to them. It is therefore in the interest of the protection of competition internationally that the parties to international cartels may be penalized wherever they have infringed the current rules on competition by their actions.The Commission's decision imposing fines on the parties to the international quinine cartel was based on actions taken within the common market whereby competition within that market was in fact restricted. It is not solely the making of the agreements which the Commission fined; what it considered as constituting an infringement is in fact ‘the working out and implementation’ of the various agreements, as is clear from Article 1 of the decision. Those actions, which had restricted competition within the common market, are not the same as those on which the American court based its judgment.In its reply the applicant maintains first of all that it is apparent from the wording of the American decision that the penalty pronounced in the United States relates, at least in part, to the same actions as those which the Commission intended to penalize by means of a fine.The applicant is opposed to the restrictive interpretation which the Commission gives to the concept of ‘same action’ as it is an interpretation which, it claims, is contrary to the case-law of the Court (Case 14/68). The difficulties which are raised by the definition of the concept of ‘same action’ should not prevent judgments delivered abroad from being taken into consideration as extensively as possible.The applicant points out finally that it has asked that the fine imposed in the United States be set against the later fine only to the extent to which the actions penalized by the American fine and the Community fine are identical, in other words, in so far as the American court has imposed penalties with regard to actions affecting the common market and in so far as the Commission itself has imposed a fine on the ground of the export agreement relating to third countries.In its rejoinder the defendant contends that the abovementioned question has not been resolved by the Court in Case 14/68 since it was possible to presume, because of the subject-matter of the request for interpretation submitted to the Court in the said case, that the action was identical without it being necessary for the Court to deliver judgment on that specific point.In view of the fact that an international cartel restricts competition on a world-wide basis simultaneously and for the period of its validity, in the absence of an international court having jurisdiction to take proceedings against these infringements, to consider all the actions taken under an agreement of that nature as a single action would amount to placing international cartels in a privileged position. As the concept of ‘action’ in criminal law is rather restrictive, except in Germany, and as the rules on the matter are different in the various Member States, there is no reason to apply to members of international cartels the rules which had been laid down in criminal law for the purpose of avoiding cumulation of penalties.