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The source of the ne bis in idem principle in European Union law is found in both
the Protocol no. 7 to the Convention for the Protection of Human Rights and
Fundamental Freedoms (Convention) and in the legal systems of many Member
States. It is enshrined in the jurisprudence of the EU courts as a general principle
of EU law. Furthermore, it has also been introduced into some international
agreements concluded by the Member States, i.e. the Convention on the protection
of the European Communities’ financial interests and the Convention on the fight
against corruption, which remain an integral part of EU legislation, as well as in the
Convention implementing the Schengen Agreement, which has been progressively
integrated into EU legislation.
Following the entry into force of the Treaty of Lisbon, which incorporates the
Charter of Fundamental Rights of the European Union (Charter) into EU primary
law, the provision on the application of the ne bis in idem principle is now applied
in the European Union in areas broader than just the scope of the three abovementioned
Conventions. The significance of this principle may also be strengthened
following the accession of the EU to the Convention, as has been set forth in the
new Article 6(2) TEU.
The ne bis in idem principle has found its own, lasting place among the rights
and guarantees of undertakings in proceedings conducted by the Commission
and the national competition authorities (NCAs) of the Member States aimed
at prosecuting and/or sanctioning parties for agreements non-compliant with EU
competition law. However, it is still not applied in proceedings against agreements
having a scope which transcends EU borders, conducted by the Commission or the
NCAs of Member States on the one hand, and by the competition authorities of
non-member States on the other. This approach is grounded both in the provisions
of the Convention and in the provisions of the Charter.