C-7/72

In Case 7/72

Boehringer Mannheim GmbH, having its registered office in Mannheim, rep­ resented by its Managers, H. Raiser and H. E. Köbner, assisted by A. Deringer, C. Tessin, H. J. Herrmann and J. Sedemund, Advocates of Cologne, with an address for service in Luxembourg at the Chambers of M. Baden, Advocate, 1 boulevard Prince-Henri, applicant,

v

Commission of the European Communities, represented by its Legal Adviser, E. Zimmermahn, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, É. Reuter, 4 boulevard Royal,

defendant,

1 — Language of the Case: German. 2 — CMLR.

JUDGMENT

Issues of fact and of law

I — Facts and procedure of the fine paid the United States against that which had been imposed on it under The facts and the procedure may be Article 15 of Regulation No 17/62. summarized as follows: In the proceedings which it had brought before the Court, Boehringer had asked On 3 July 1969 an American court fined that the fine incurred in the United States Boehringer Mannheim GmbH $80 000 for should be set against the amount of the fine having infringed the anti-trust provisions imposed by the Commission. The latter, of the Federal law of the United States pointing out that it had not yet given a by being a member of the international decision on the application to the same quinine cartel. The applicant discharged effect lodged by the applicant on 3 that fine on 11 July 1969. September 1969, maintained that, as lodged By decision of 16 July 1969 the Commission before the Court, that application was in­ of the European Communities imposed on admissible because the matter was not the the same undertaking a fine of 190 000 u.a. subject-matter of the contested decision. for having infringed Article 85 of the EEC In its judgment, the Court held that it was Treaty by being a member of the same unnecessary to take account of that cartel application 'in these proceedings' since the By judgment of 15 July 1970 the Court of fine had been imposed in the United States Justice of the European Communities for restrictions on competition 'which reduced this fine to 180 000 u.a. (Judgment occurred outside the Community'. in Case 45/69). Considering that the Court had not By letter of 3 September 1969 the applicant intended to give a definitive ruling on the asked the Commission to set the amount application in question, the substance of

'1. amend the defendant's decision of 25 of the Belgian Law of 17 April 1878. It points out that in its judgment in Case November 1971 (IV/26 945/Boehringer) to the effect that the fine of $80 000 14/68 {Walt Wilhelm and others v Bundes­ kartellamt) the Court of Justice based the imposed on the applicant by order of the US District Court, Southern District duty of Community institutions to take Court of New York on 3 July 1969 is account, for the purpose of determining set, by order of the Court, against the any penalty, of 'any previous punitive fine which the defendant imposed on decision' as a 'general requirement of the applicant by decision of 16 July 1969 natural justice'. The scope of the general and which the Court fixed at 180 000 u.a. principle laid down in that judgment cannot therefore be limited to the relations between in its judgment of 15 July 1970; and, alternatively, annul the defendant's Community law and the legal systems of the Member States. decision of 25 November 1971 (IV/26 945/Boehringer); The argument of the defendant that in the relations with some third countries terri­ torial fields of application do not overlap 2. order the defendant to pay the costs is incorrect in fact and, in any case, of the action.' irrelevant. With regard to the application of the general principle referred to above In its statement of defence the defendant it suffices for the same action to have contends that the Court should: already been penalized under another legal system. '— dismiss the action as unfounded; The defendant objects that the principle of natural justice referred to by the appli­ — order the applicant to bear the costs.' cant was stated by the Court in its judg­ ment in Case 14/68 with regard to the special situation which may result from III — Submissions and arguments of the competing jurisdiction of the Member the parties States and the Community within the Common Market. It cannot therefore be The submission and arguments of the alleged that the question of the applica­ parties may be summarized as follows: bility of that principle in relations with

third countries was already settled by the compensating criterion for cases where the said judgement. non bis in idem principle is not fully applied. The defendant observes that in German On the international level, although it is and Italian law a criminal conviction possible for States still to have legitimate abroad is no obstacle to domestic criminal reasons for giving their sovereign interests proceedings, but in the case of a further precedence over the non bis in idem conviction the fine incurred abroad is set principle there is on the other hand no against the further penalty. However, in similar reason for rejecting the more the other four Member States a final limited principle of setting one penalty foreign judgment prevents the institution against another (non bis poena in idem) of domestic proceedings where, if the which is based solely on the principles of person charged was convicted, he has paid natural justice and proportionality of fines. the fine or it has become time-barred. In There is no sovereign Community interest addition, in France, Belgium and Luxem­ which can justify a refusal to set a penalty bourg, the application of the non bis idem previously imposed on account of the same rule is modified by the principle of action against another. Having regard to territoriality: a foreign conviction cannot the judgment of the Court in Case 14/68 prevent a futher conviction in the home which, while rejecting the applicability of country if the crime was committed there. the non bis in idem principle, confirmed In such a case, it is at least doubtful the principle of setting one penalty against whether the duty to set a penalty already another, a general principle of natural pronounced abroad against a later can justice cannot be applied differently from apply. In any case, such setting of one one State to another. The Convention of penalty against another can only apply in the Council of Europe of 28 May 1970, relation to punishment by imprisonment Article 53 of which provides for the appli­ and not to fines. cation of the non bis in idem rule, and which In view of the very different scope of the has already been signed by, among others, non bis in idem rule in the legal systems four Member States (Belgium, Italy, the of Member States the defendant considers Netherlands and the Federal Republic of that in relation to the fundamental right Germany), proves the existence, even invoked by the applicant it is impossible internationally, of a common legal prin­ to speak of constitutional traditions ciple. It must therefore be accepted that common to the Member States. It is at the very least Community law must set therefore to no purpose for the applicant previous penalties against later, which is to seek to rely on the case-law of the Court the weakest protection against cumulation on the scope of fundamental rights, in of penalties. In view of the importance of view also of what the Court has stated in the legal guarantees in question it is not its judgment in Case 11/70 ([1970] ECR permissible to make their recognition 1125). dependent on the enactment of an express In its reply the applicant raises the objection provision bv the Community legislature.

procedures in Member States for reasons In Case 19/68 the difference found by the appertaining to the special features of Court between the criteria and impact of Community law; it in no way rejected the Community cartel law and those of the non bis in idem principle. This principle cartel laws of the Member States did not does not apply in the international field to prevent it from holding that there is a duty the institution of parallel criminal pro to take into account the previous penalty. ceedings but means solely that a penalty The assertion contained in the contested pronounced abroad having the authority decision to the effect that by imposing of res judicata and discharged abroad the fine on the applicant the Commission prevents the institution of fresh domestic had taken into account only the application criminal proceedings with regard to the of the export cartel agreement in Italy and

were adopted. This view conflicts with in relation to competition. Article 85(1) of the EEC Treaty which The laws on competition, which are based prohibits agreements the object of which on concepts less universally accepted than is to restrict competition per se, without criminal law, are limited in their applica regard to their effects. The American tion to restrictions on competition occur penalty was also imposed on the basis of ring within a specific territory. The parties the restrictive agreements themselves, to an international agreement are aware regardless of their effects. that their conduct is necessarily contra The applicant adds that German law vening the laws of the variouts States which considers that the 'same offence' within prohibit such conduct. the meaning of Paragraph 269 of the The defendant claims that, having regard Strafgesetzbuch is the event which forms to this territorial nature of competition a historical unity. Even where the action law, if the parties to an international cartel is not a natural unit, a number of actions restrict, for example, competition, first, in always constitutes a single offence when the United States and, secondly, within the the links between those actions are such common market, those are two different that to judge them separately would be actions, within the natural meaning of the unnaturally to split a single phenomenon. word, and they constitute distinct breaches With regard to the duty to set the previous of two different categories of protected penalty against a later one, Italian law interests. If rules on competition are in takes into consideration the subject-matter fringed internationally no national court of the judgment which can consist only in has jurisdiction to appraise all the inter the same 'azione o omissione' on which national effects of the violations and to judgment was delivered (Article 6 of the put an end to them.

JUDGMENT OF 14. 12. 1972 — CASE 7/72

would amount to placing international ment is in fact 'the working out and cartels in a privileged position. As the implementation' of the various agreements, concept of 'action' in criminal law is rather as is clear from Article 1 of the decision. restrictive, except in Germany, and as the Those actions, which had restricted com rules on the matter are different in the petition within the common market, are various Member States, there is no reason not the same as those on which the American to apply to members of international court based its judgment. cartels the rules which had been laid down In its reply the applicant maintains first in criminal law for the purpose of avoiding of all that it is apparent from the wording cumulation of penalties. of the American decision that the penalty pronounced in the United States relates, at least in part, to the same actions as those C — The question whether the American which the Commission intended to penalize court based its judgment on actions by means of a fine. identical to those which the Commission The applicant is opposed to the restrictive considered as infringements of the EEC interpretation which the Commission gives Treaty to the concept of 'same action' as it is an interpretation which, it claims, is contrary The applicant objects to the statement to the case-law of the Court (Case 14/68). contained in paragraph 14 of the contested The difficulties which are raised by the decision whereby the American penalty definition of the concept of 'same action' must be ascribed especially to points (f) should not prevent judgments delivered and (g) (the agreement on the supply of abroad from being taken into consideration bark and the agreement on the acquisition as extensively as possible. of the American stockpile) of Head 14 of The applicant points out finally that it has the indictment, which the Commission did asked that the fine imposed in the United not consider as infringements, and main States be set against the later fine only to tains that according to the record of the the extent to which the actions penalized oral procedure the American court said by the American fine and the Community nothing from which it could be supposed fine are identical, in other words, in so far that it did not intend to penalize all the as the American court has imposed counts by way of a single fine.

Further, it was possible to presume, because of the the defendant laid down, as a fine imposed subject-matter of the request for interpre on the applicant in addition to the basic tation submitted to the Court in the said amount corresponding to the quota,

70 000 u.a. because of the preponderating market or on the external trade of the influence which the applicant held over the United States. On this basis the defendant market in raw materials. In these circum accepts that only the restrictions on stances, it is appropriate to set against the competition resulting from the export fine in question 6/7 of the American fine agreement, the agreement on quinquina which also relates specifically to the market bark and the agreement on strategic stocks in raw materials. In its opinion the Court may concern the American market.

85. In addition, the Commission had fixed that it is possible to deduce from the the end of the infringements at February proceedings before the American court that 1965 and not the middle of 1966. It appears the territorial division of the markets for on the other hand from the decision of the sale of quinine and quinidine, the 16 July 1969 and the judgment of the Court restriction of synthetic quinidine produc in Case 45/69 that the penalty imposed by tion the the Nedchem, Boehringer and the Commission covered essentially the Büchler undertakings and the export application of restrictions contained in agreement concluded with regard to third gentlemen's agreements, namely territorial countries constituted the basis of the protection, the system of quotas and the American fine and that in this respect the prohibition on French manufacturers American penalty has been superimposed against producing synthetic quinidine. on the Community penalty. Although the provisions of the gentlemen's Disagreeing with the argument of the agreement were also cited in the indictment Commission that the American judgment before the American court, it cannot is not directed against the agreements as however be accepted that the provisions such but solely their effects the applicant relating to the common market restricted asserts that as regards American law it is competition within the United States. In clear that by virtue of the first section of the this connexion the defendant emphasizes Sherman Act the subject-matter of the the special nature of the American pro penalty is the unlawful agreement whereas cedure of acceptance (nolo contendere), and its effects are not constituent elements of the resulting uncertainty as to the facts the infringement but only a pre-condition forming the basis for the imposition of the for the purpose of establishing the penalty, since the American court, within American court's jurisdiction over the the context of such procedure, does not matter.

agreements, that an examination of them to which they have appreciable effects on 'suffices to show that their object was to the domestic market or on the American restrict competition. . . so that for the external market. With regard to the gentle purpose of establishing the applicability of men's agreement concluded between the Article 85(1) it is no longer necessary to quinine producers concerning their conduct study their actual repercussions'. The fact within the common market, the Commis that the Commission penalized agreements sion does not understand how the resulting as such is apparent also from heading 24 restrictions on competition could have had of the rejoinder of the Commission in such effects.

sion is justified. A detailed examination of ment as constituting an infringement of the the various counts of the indictment shows, provisions of Article 85 of the Treaty. In according to the defendant, that only the determining the amount of the fine the effects on competition in the United States Commission took account of the strong were taken into account. position held by the applicant in the market in raw materials only with regard to the Even accepting that the indictment related infringements which were found in the also to the protection of territorial markets decision. under the gentlemen's agreement, it would be impossible to conclude further that the The defendant concludes from all the Commission must set a part of the fine above considerations that the facts on imposed in the United States against the which the American court and the Com later fine since no inferences can be drawn mission based their decisions to impose a from the American judgment itself as to the fine are essentially different.

BOEHRINGER v COMMISSION

Grounds of judgment

1 By decision of 16 July 1969 the Commission of the European Communities fined Boehringer Mannheim GmbH 190 000 u.a. for infringement of Article 85 of the EEC Treaty. This amount was reduced to 180 000 u.a. by judgment of the Court of 15 July 1970 in Case 45/69. On 3 July 1969 a New York District Court fined Boehringer $ 80 000 for infringement of the provisions of the Federal law of the United States of America on restriction of competition. The applicant paid this fine on 11 July 1969. By letter of 3 September 1969 the company asked the Com­ mission to set the amount of the fine paid in the United States against that imposed by the decision of the Commission of 16 July 1969. By decision of 25 November 1971 the Commission rejected that request.

2 The applicant complains that the Commission thereby violated a general principle of law prohibiting double penalties for the same action.

3 In fixing the amount of a fine the Commission must take account of penalties which have already been borne by the same undertaking for the same action, where penalties have been imposed for infringements of the cartel law of a Member State and, consequently, have been committed on Community territory. It is only necessary to decide the question whether the Commission may also be under a duty to set a penalty imposed by the authorities of a third State against another penalty if in the case in question the actions of the applicant complained of by the Com­ mission, on the one hand, and by the American authorities, on the other, are identical.

6 In any case the argument whereby the action penalized consists in the cartel agreement itself and not in its application cannot be accepted. In this connexion it is sufficient to recall that the judgment of the Court of 15 July 1970 between the same parties adopted a contrary point of view when, having established that the agreement had in several respects been 'in abeyance' between certain dates, it concluded that the infringements of the Treaty were more limited than the Com­ mission had considered and drew the appropriate conclusions with regard to the fixing of the fine. In accordance with Article 85 of the Treaty, that judgment took account only of such instances of application of the cartel as may have affected trade between Member States or have distorted competition within the common market. Furthermore, the applicant has put forward nothing capable of confirming the argument that the conviction in the United States was directed against the application or effects of the cartel other than those occurring in that country. Nor, consequently, has it been established in this respect that the alleged actions were identical.

7 There are therefore no grounds for setting even part of the amount of the fine imposed on the applicant in the United States against the fine of 180 000 u.a. which it was ordered to pay for infringement of Article 85 of the Treaty.

8 Accordingly, the application must be dismissed.

Costs

Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

The applicant has failed in its pleas.

2. Orders the applicant to bear the costs of the action.

Lecourt Monaco Pescatore

Donner Trabucchi Mertens de Wilmars Kutscher

Delivered in open court in Luxembourg on December 14 1972

A. Van Houtte R. Lecourt

Registrar President

— Translated from the French.