OPINION OF MR ADVOCATE-GENERAL MAYRAS

   DELIVERED ON 29 NOVEMBER 1972 ( [1]1 )

   Mr President,

   Members of the Court,

   I -- Introduction

   A -- Review of the facts

   You are already aware of the facts giving rise to these proceedings.

   Upon the outcome of administrative proceedings instituted under the
   conditions laid down in Council Regulation No 17, Boehringer Mannheim,
   a member of the international quinine cartel, was fined 190000 u.a. for
   infringement of the provisions of Article 85 of the Treaty of Rome, by
   a decision of the Commission of the European Communities dated 16 July
   1969.

   Shortly before that date, this undertaking had been the object of
   criminal proceedings for infringement of the anti-trust legislation in
   the United States of America. In September 1968 the Grand Jury of the
   Southern District Court of New York (a Federal court) had preferred a
   bill of indictment against it, containing five counts. In the first the
   undertaking was accused of having, between the end of 1958 and the
   summer of 1966, unjustifiably restricted, by means of a concerted
   infringement, the internal and external trade of the United States, and
   of having thereby violated the provisions of Section 1 of the Sherman
   Act.

   In the second count it was accused of committing the same infringement,
   over the same period, for the purpose of monopolizing the internal and
   external trade of the United States, and of having thereby violated the
   provisions of Section 2 of the Sherman Act.

   The other counts dealt with, in particular, the violation of the Wilson
   Tariff Act, and with fraud which was committed against the United
   States by the concealment from the American authorities of the
   agreement for the purchase of the stocks of the American quinine
   reserves and constituted a violation of the provisions of Section 371
   of Title 18 of the US Code.

   In accordance with its right under American criminal procedure,
   Boehringer had its representative declare to the Federal court that it
   pleaded guilty to the first two charges and would offer no defence
   thereto (nolo contendere procedure). The remaining charges were
   withdrawn by the prosecution, and at the hearing on 3 July 1969, the
   Court fined the company $40000 in respect of each of the first two
   charges, that is, a fine of $80000 in all, which was paid on 11 July
   1969.

   On 3 September 1969 Boehringer informed the Commission of the European
   Communities of this fine, and requested that the amount paid in respect
   of the fine in America be set against that imposed upon it by the
   Commission.

   On 26 September Boehringer also lodged before this Court a direct
   application for the annulment of the decision of the Commission (Case
   45/69); alternatively, it requested the Court to reduce the amount of
   the pecuniary sanction imposed upon it under Regulation No 17 by an
   amount equal to the fine paid in New York.

   In its judgment of 15 July 1970 in Case 45/69, this Court rejected the
   conclusions for annulment, but amended the decision of the Commission
   and reduced the amount of the fine imposed on the applicant to 180000
   u.a. However, this reduction was made for reasons which are of no
   relevance to the request to set the fine imposed in the United States
   against the later fine.

   On this point, in fact it rejected the claims of the applicant on the
   following grounds:

   `The applicant maintains that the fine of $ 80000 which was imposed
   upon it by a court in the USA, arising out of the same facts, and which
   was already paid before the contested decision, should be deducted from
   the amount of the disputed fine.

   These penalties were imposed in respect of restrictions on competition
   which occurred outside the Community.

   Consequently there is no reason to take them into account in these
   proceedings.'

   In this way the Court avoided making a decision upon the very principle
   of setting a pecuniary sanction already decreed by a court of a
   non-Member State against a fine imposed by the Commission of the
   European Communities.

   In this the Court doubtless considered that in the first place it was
   for the Commission to pronounce, in the form of a reasoned decision,
   upon the request to set one penalty against the other submitted by the
   applicant undertaking.

   However that may be, the Commission has, from that time, considered
   that it should examine that request to set one penalty against the
   other which Boehringer had in any case expressly confirmed to it on
   3 November 1970. After hearing its representatives and receiving the
   opinion of the Consultative Committee on Cartels and Monopolies, the
   Commission, in a decision of 25 November 1971, rejected this request

   This is the decision now under challenge.

   The applicant requests you to amend this decision to the effect that
   the fine amounting to $80000 imposed upon it by the judgment of the
   Southern District Court of New York on 3 July 1969 be set, by judgment
   of this Court, against the fine imposed upon it by the Commission of
   the European Communities the amount of which was fixed, in the judgment
   of this Court of 15 July 1970, at 180000 u.a.; alternatively, the
   applicant concludes that the decision under challenge be annulled.

   This is an area in which this Court has unlimited jurisdiction. It has
   complete discretion to assess the facts and to amend a Community
   decision, in particular by reducing the amount of the fine imposed. The
   conclusions of the applicant would, I think, have been more logically
   presented if they had consisted in requesting, first, the annulment of
   the decision under challenge, which Boehringer alleges to be based on
   erroneous grounds both in law and in fact, and secondly a decision
   reducing the fine, the amount of which was fixed in the judgment of
   this Court of 15 July 1970, by the amount of that decreed by the
   American Federal Court.

   B -- Statement of the reasons for the decision under challenge

   There are two considerations stated as the reasons for the decision now
   before the Court. The first is general in scope, while the second
   relates to the particular facts of the case.

   In the first place, the Commission contends that, in the absence of any
   express provision in the Treaty establishing the European Economic
   Community or in the implementing regulations on competition placing it
   under a duty to set against the amount of the fines imposed under
   Community law the amount of those decreed by national courts, such a
   duty is not based on a general principle common to the national law of
   the Member States; although, in its judgment of 13 February 1969 in
   Case [2]14/68, Walt Wilhelm and others v Bundeskartellamt [1969] ECR 1,
   this Court stated that, in dealing with illegal cartels, the Commission
   and Member States should take account of penalties already imposed in
   respect of the same actions, this duty would only arise in the event of
   a combination of penalties decreed under Community law on the one hand,
   and under the national law of the Member States on the other. It would
   be a different matter altogether in the event of a combination of
   penalties imposed under Community law and under the law of a non-Member
   State.

   In the second place, and alternatively, it would only be necessary to
   set a previous fine against another if the actions which constitute the
   infringement of competition penalized by the courts of a non-Member
   State and by the Commission are the same. This condition is not
   fulfilled here, since the American court has penalized actions likely
   to affect or affecting competition in the United States, whereas the
   Commission has imposed a fine in respect of actions having as their
   object or effect the restriction of competition in the Common Market.

   The applicant challenges both these arguments.

   The first, which concerns the very principle of setting amounts one
   against another, must logically be examined first; the second will not
   arise unless the Court recognizes the existence of such a right to set
   one amount against another. Consideration of it will therefore only
   arise at a second stage.

   II -- The principle of non bis in idem and the rule for setting a
   previous fine against another

   1. The problem

   The Commission immediately concedes in favour of the applicant that the
   absence in written Community law of any duty to take account of a fine
   imposed by a national court in respect of the same actions which cause
   the Commission to impose a pecuniary sanction upon an undertaking whose
   actions were recognized to be in breach of Article 85 of the Treaty of
   Rome is not decisive:

   The question is in tact whether, in the absence of any express
   provision, some general principle of law exists which, as a result,
   places the Community authorities under such a duty.

   But it is still necessary to set out the problem clearly and to define
   precisely its legal framework.

   It is therefore essential in the first place to distinguish between two
   concepts:

   --

   The first, expressed by the maxim non bis in idem, is based on the
   principle of res judicata in criminal law; an action, or a set of
   wrongful actions giving rise to criminal liability, which have been the
   subject-matter of a definitive judgment of a court, that is, a judgment
   which has acquired the force of res judicata, can no longer give rise
   to further criminal proceedings or, a fortiori, a further conviction.

   --

   The second concept which the applicant undertaking relies upon is
   different in nature; it is not based on res judicata, since it does not
   prevent a further penalty being imposed in view of a previous decision
   of a criminal court based on the same action or on the same criminal
   conduct; the concept finds expression only in that the previous
   sentence imposed must be set by the court against the penalty which the
   latter imposes itself. It is a consideration of natural justice applied
   to the determination of the quantum of the sentence.

   It is, secondly, to be noted that the principle of non bis in idem and
   the rule for setting previous sentences against other sentences arise
   primarily under criminal law, and are applicable, under conditions
   which in any case vary from one State to another, to offences as
   defined by domestic criminal legislation.

   We are aware that Community cartel law implemented by the Commission
   provides for the imposition of pecuniary penalties of an administrative
   character. We shall therefore need to enquire whether these rules,
   which are strictly speaking of a penal nature, may and must be applied
   to this particular system for the punishment of offences.

   Finally the operation of the non bis in idem rule and the rule for
   setting off sentences one against another must be considered in
   different situations:

   --

   First, within a national legal system can there be cumulation of
   penalties or even plurality of prosecution on the basis of the same
   actions?

   --

   Next, in relations between two separate legal systems, what are the
   consequences of a previous decision of a foreign criminal court upon
   proceedings based on the same actions before a national court?

   --

   Finally, in relations between the Community legal system and that of a
   Member State on the one hand, and that of a non-Member State on the
   other, may the non bis in idem rule be applied? If not, must a previous
   penalty be set against another under a general principle of law?

   The problem is clearly complex. In order to examine it, we require
   detailed explanations of the national law of Member States, the United
   States, and Community law and international criminal law.

   2. The non bis in idem rule in domestic law

   The applicant considered that it was possible to derive from the
   criminal law of Member States of the Community a common principle
   giving rise to the right asserted by it to set the amount which it had
   to pay in the United States against the Community fine imposed under
   the Treaty and Regulation No 17 on cartels.

   There is no doubt that in the national legal system of each of these
   States the principle of non bis in idem, which is a consequence of res
   judicata, not only prohibits cumulation of penalties but also prevents
   any further criminal proceedings in respect of the same action.

   This is the effect, in the case of France, of Article 6(1) of the Code
   of Criminal Procedure according to which: `The right to bring a public
   prosecution is extinguished ... by res judicata'. The same rule is also
   found in the Dutch Criminal Code (Article 68), in the Italian Code of
   Criminal Procedure (Article 90), and also in the laws of Belgium and
   Luxembourg.

   In tne Federal Republic of Germany Article 103(3) of the Grundgesetz,
   which protects individual rights, states that: `A person may not be
   punished several times under the general criminal laws for the same
   action'.

   This is an established principle which goes beyond the duty to set any
   sentence previously against a later sentence and is an absolute bar to
   any further charge.

   But it is of note, on the one hand, that this rule is only valid within
   each national legal system and, on the other, that it applies only to
   offences of a criminal nature.

   Thus although this rule is common to the Member States and although in
   Germany it takes the form of a fundamental right to protection against
   double conviction, the prohibition which it lays down, guaranteeing
   that a person already punished or definitively acquitted will not be
   subject to further proceedings for the same action, is only effective
   where the previous judgment is one of a national court, with the one
   exception of Dutch criminal law, as we shall see.

   In the Federal Republic of Germany, this appears to me to be the
   position resulting from a judgment given on 17 January 1961 by the
   Federal Constitutional Court (Bundesverfassungsgericht),
   Bundesverfassungsgericht 12, p. 66 and whereby the prohibition upon
   fresh criminal proceedings in respect of actions upon which judgment
   has previously been given is only applicable when the judgment is
   delivered by a German court.

   The non bis in idem rule, based on res judicata, is therefore only a
   bar to double conviction by the national courts.

   As far as criminal offences are concerned, which are defined by
   provisions whose scope is strictly limited, the rule does not apply
   with the same force to other disciplinary proceedings, particularly in
   administrative law.

   Certainly, it is generally accepted that, by analogy with criminal law,
   this rule applies to the system of discipline governing public
   employees, which is the case particularly in France and Germany. The
   same principle applies to officials of the European Communities, and
   upon the basis of a specific provision, Article 86(3) of their Staff
   Regulations, this Court applied that principle in a judgment of 5 May
   1965, in Joined Cases [3]18 and 35/64, Gutmann v Commission ([1966] ECR
   103).

   The non bis in idem rule is, however, disregarded when the same action,
   which constitutes a disciplinary offence, is also punishable as a
   criminal offence; the sentence imposed by a criminal court is no bar to
   disciplinary proceedings, and vice versa. However, in Germany the rule
   that a previous disciplinary penalty must be set against a criminal
   penalty is permitted in certain conditions, as we shall see.

   Cumulation therefore of an administrative penalty and a criminal
   penalty is always possible, unless it is expressly prohibited (to this
   effect, see Conseil d'État de France 1950, Lalanne, Recueil, p. 67).

   This is brought about by the independence of administrative
   disciplinary systems from penal systems. In the same way, cumulation of
   administrative penalties incurred in respect of the same action by
   virtue of different laws is admissible for the same reason (Conseil
   d'État de France, 22 May 1946, Magnaini and others, Recueil, p. 142,
   and 18 November 1953, Garrigue, Recueil, p. 499).

   Moreover, judgments of criminal courts which have acquired the force of
   res judicata are not binding upon the administrative authorities,
   except in so far as they establish that the facts which may justify an
   administrative penalty are not present in substance.

   3. The principle of non bis in idem in relations between different
   national legal systems

   We shall now consider if, and in what circumstances, the non bis in
   idem rule applies to relations between different national legal
   systems.

   The national law of four of the six Member States at present
   recognizes, in principle, the preclusive power of res judicata which is
   such as to bar further proceedings in the case of foreign criminal
   judgments. But in three of these States, Belgium, France and
   Luxembourg, this principle only holds good if the offence, or at least
   the principal offence, has been committed exclusively abroad. In fact,
   the non bis in idem rule disappears where criminal jurisdiction is
   based on the principle of territoriality.

   Thus Article 692 of the French Code of Criminal Procedure provides
   that: `No prosecution shall take place if the person accused shows that
   final judgment was passed on him abroad, and, in the case of
   conviction, that he served his sentence or is time-barred from having
   to do so or has obtained a pardon'.

   But there is established case-law to the effect that if the offence was
   also committed in France, no cognizance is taken of the foreign
   judgment. It is no bar to the institution of criminal proceedings
   before French courts or to a fresh conviction in respect of the same
   actions (Cour de Cassation, Chambre Criminelle, Judgment of 3 November
   1970, Bulletin des Arrets de la Cour de Cassation 1970, No 285).

   The position under Belgian law is the same; conviction by a foreign
   court is no bar to fresh criminal proceedings in Belgium if the
   criminal acts were also committed in that Kingdom (Cour de Cassation of
   Belgium, 20 February 1961, Pasicrisie 1961, I, p. 664).

   Luxembourg law is to the same effect.

   In Germany, the preclusive power of res judicata is not recognized in
   the case of foreign criminal judgments in the absence of an
   international convention binding the Federal Republic (Maurach, Rapport
   au Colloque de l'Association internationale de droit penal, Freiburg im
   Breisgau, 1963).

   conviction in a foreign court does not therefore preclude fresh
   proceedings before a German court, provided at least that the offence
   is punishable under the domestic criminal law.

   It is the same in Italy, by virtue of Article 7 et seq. of the Criminal
   Code.

   In Dutch law alone is the non bis in idem rule applied without
   reservation, whether the acts were only committed abroad, or also in
   the Netherlands (Article 68(2) of the Criminal Code).

   In tne light of these facts, it can be stated that the preclusive power
   of res judicata is not recognized in any of these States, with the sole
   exception of the Netherlands, in the case of judgments passed by courts
   outside the domestic legal system, where the acts giving rise to
   criminal liability were also committed on the national territory.

   This is an undeniable consequence of the territoriality of criminal law
   and the sovereignty of the States in an area in which it is most
   difficult to encroach upon that sovereignty, that of public order as
   protected by the criminal law.

   Thus the non bis in idem rule, which is stated and applied in domestic
   law, is far from being accepted as a general principle of law in
   international relations.

   This is borne out by the fact that the main result of the work carried
   out since the war under the auspices of the Institute of International
   Law or the International Association of Criminal Law on the
   international effects of criminal judgments has been to bring to light
   the differences between the rules applied by the various States and to
   reveal the practical difficulties in avoiding the cumulation of
   criminal penalties and in reaching a common concept with regard to the
   application of the non bis in idem rule.

   It has, certainly, been possible to have resolutions adopted, for
   example, at the Ninth International Congress of Criminal Law at The
   Hague in 1964 (Resolution III A(l)(a) and (c)), whereby `the preclusive
   effect of foreign criminal judgments ought to be recognized in the laws
   of every country ...'. It is clear however that these efforts have led
   only to the expression of resolutions inspired by considerations of
   justice and protection of individual interests; it is impossible to
   find therein a `consensus' of the States or the recognition of a
   positive rule of law.

   This situation may be regrettable, but nothing is gained by ignoring
   it. The problem could only be solved by one or more international
   conventions. (Spanjaard, Rapport au Coloque de l'Association
   Internationale de Droit Penal, [1963] Revue Internationale de Droit
   Penal, p. 156).

   With regard to Europe itself it is necessary to recall that Article 6
   of the European Convention on Human Rights which deals with procedural
   guarantees does not contain any prohibition against cumulation of
   penalties. The principle of non bis in idem is not even mentioned
   there. As for the Convention on the International Validity of Criminal
   Judgments, drawn up by the Council of Europe on 28 May 1970, Article 53
   thereof does acknowledge that a person on whom final judgment has been
   passed in a Member State cannot be prosecuted for the same act in
   another European State, provided that the penalty, if any penalty was
   imposed, has been served, is time-barred or has been pardoned. The
   Convention does however qualify the principle of prohibition on all
   further proceedings with two exceptions which singularly limit its
   scope:

   --

   on the one hand, it cannot be raised against the States in whose
   territory the offence was, or was alleged to have been, committed;

   --

   on the other, it is also inapplicable when the public interest of the
   State, in the broad sense of the term, has been prejudiced by that
   offence.

   There could be no better proof that the non bis in idem rule has
   hitherto remained without any binding effect in international law.

   4. Is the rule for setting a previous penalty against a later a general
   principle of law?

   The applicant company contends however that, in the absence of the
   prohibition on any further proceedings, the right to protection against
   cumulation of penalties ought to be protected by setting any previous
   penalty imposed on the basis of the same facts against a later.

   For this view to be well founded, it would need to be shown in
   addition:

   1.

   that this rule, which the applicant considers as a substitute for the
   non bis in idem precept, is itself on of the fundamental rights and
   forms an integral part of the general principles of law enforced by
   this Court within the Community legal system;

   2.

   that, even supposing this to be so, that fundamental right, which
   concerns the protection of the individual under the criminal law, is
   also valid with regard to undertakings in the field of criminal
   proceedings against activities which prevent competition, a field in
   which, as you are aware, the penalties are only pecuniary sanctions
   based on public order in the economic sense and on consumer protection.

   This is what we shall now consider.

   A --

   Even as a matter of classical criminal law, it is doubtful, in my view,
   whether the rule for setting sentences one against another can be
   considered as a general principle of law.

   It is, to be sure, recognized without qualification in the
   Strafgesetzbuch of the Federal Republic of Germany (Paragraph 60(3)),
   and in the Italian criminal code (Article 138). It was even applied by
   the Bundesverfassungsgericht in Karlsruhe when a prison sentence
   imposed under the military disciplinary code coincided with a similar
   penalty imposed in respect of the same acts by a criminal court. But it
   is evident that this solution was only adopted because the penalties
   imposed were identical in nature and because of the concern to protect
   the liberty of the individual (Judgment of 2 May 1967). But the rule
   for setting one sentence against another is not found in the laws of
   the other Member States of the Community with the exception of Belgium,
   where Article 13(2) of the Law of 17 April 1878 on criminal procedure
   provides that in the case of a fresh conviction in Belgium any prison
   sentence served abroad must be set against any similar sentence imposed
   by the national court. The obligation therefore only holds good with
   regard to sentences of imprisonment and not with regard to fines;
   moreover, according to well-established case-law it is not necessary to
   set a previous sentence against a later if the offence was committed
   not only abroad but also in Belgium, since the purpose of Article 13 of
   this law was to deal with the case of offences committed and tried
   abroad. Thus it is only in Italy and in Germany that there is an
   obligation upon the national court to set a previous against a later,
   even pecuniary, penalty. It is not a commonly held general principle.
   Moreover, should Paragraph 60(3) of the German Strafgesetzbuch be
   considered as a fundamental right, as the applicant claims?

   Nothing supports this view: neither the reference to Article 103 of the
   Grundgesetz which, as we have seen, relates to the prohibition on fresh
   proceedings within the domestic legal system and which cannot be
   invoked in a case of cumulation of penalties imposed by courts
   belonging to different legal systems, nor the quotation by the
   applicant from a judgment of the Bundesgerichtshof (Federal Supreme
   Court) of 17 December 1970 on the cartel in the dyestuffs industry.
   This judgment is in fact concerned with a plea of lis pendens put
   forward by the undertakings against whom proceedings had been
   instituted before the Bundeskartellamt (Federal Cartel Office) on the
   ground that proceedings had been brought against them by the Commission
   of the European Communities in respect of the same cartel. After
   deciding that in the case before it the prohibition on double
   proceedings was inapplicable, the Federal court adds, purely obiter;
   that it would be appropriate, in order to avoid a possible cumulation
   of penalties, to apply in that particular case the provisions of
   Paragraph 60 of the Strafgesetzbuch, that is, to take account of the
   penalty previously imposed when the subsequent fine is imposed.

   The Federal Court adds that it is not necessary however to go more
   deeply into this point in the case before it. Consequently the question
   was not settled.

   Moreover, although the views which the Federal Court felt that it had
   to express on this subject indicate a line of thought, or even an
   opinion, it cannot be inferred from this that the obligation to set one
   sentence against another is considered a fundamental right.

   Finally, it is necessary to observe that the problem illustrated by
   this judgment concerned the possible cumulation of a Community penalty
   and a penalty imposed by a court of a Member State of the Community.

   B --

   It was in fact in connexion with that same cartel in the dyestuffs
   industry that this Court delivered on 13 February 1969 a judgment on a
   question referred for a preliminary ruling in Case 14/68, Walt Wilhelm
   and others v Bundeskartellamt which the Boehringer company relies upon
   in support of its argument.

   The Berlin Kammergericht (Kartellsenat), the tribunal for cartel
   matters in the Federal Republic of Germany, referred to this Court for
   a preliminary ruling the question whether, when proceedings have been
   brought by the Commission under Article 14 of Regulation No 17 on
   cartels, it is compatible with the Treaty for the national authorities
   to apply to the same facts the penalties contained in the relevant
   provisions of German law; the Kammergericht, mentioning also the risk
   of different conclusions being drawn from the same facts and the
   possibility that competition might be distorted in the Common Market to
   the detriment of persons governed by German cartel law, referred to
   Article 9 of Regulation No 17 and to Articles 5 and 85 of the Treaty
   establishing the European Economic Community and finally to the general
   principles of Community law.

   It emerges clearly from the very wording of your judgment that
   Article 9 of Regulation No 17 only relates to the jurisdiction of
   national authorities in so far as they have the power to apply the
   provisions of Article 85 of the Treaty directly, in the absence of any
   action on the part of the Commission, and that consequently Article 9
   is to be disregarded where those national authorities are only applying
   their own domestic law. The reason for this, you add, is that Community
   cartel law and national cartel law consider cartels from two different
   points of view:

   --

   Article 85 considers them on the basis of the obstacles to trade
   between the Member States which may result from them and the adverse
   effects on competition in the territory of the Common Market;

   --

   domestic legislations, which are based on the particular requirements
   of each State, on the contrary consider cartels only within the
   national context.

   It is therefore possible in principle for the same cartel to be the
   subject of two parallel sets of criminal proceedings: one before the
   Community authorities under the Treaty and the other before the
   national courts under domestic law.

   In this way you have recognized that the non bis in idem rule is not
   applicable to such a situation, since cumulation of proceedings is
   permissible. However, you are careful to state that the conflicts
   likely to arise from such a combination of Community rules and national
   legislations must always be resolved so that Community law prevails,
   which is obviously essential for the attainment of the objectives of
   the Treaty of Rome.

   Having established these principles, you then had to decide a further
   question, in which the Kammergericht drew your attention to the risk
   that the same facts could give rise to two penalties, one imposed by
   the Commission and the other by the national court.

   Having shown that, because of the particular system whereby
   jurisdiction is apportioned between the Community and the Member
   States, plurality of proceedings is permissible, you then referred, in
   the grounds of your judgment, to a general requirement of natural
   justice, as expressed in another connexion in Article 90(2) of the
   Treaty establishing the Coal and Steel Community, a requirement which
   implies that all previous decisions by a criminal court should be taken
   into account in the determination of any sanction.

   But this ground certainly is not essential to and is not the basis of
   the operative part of your judgment of 13 February 1969 and can only,
   as I understand it, be interpreted within the actual limits of the
   questions referred to you under Article 177. The Court accepted the
   rule for setting one amount against another only because of the special
   situation resulting from the competing jurisdiction of the Member
   States and the Community organs with regard to cartels on the same
   territory, namely that of the common market. I do not consider that it
   is possible to infer from this a statement of a general principle of
   law which would also be obligatory in the case of a plurality of
   proceedings, and, possibly of a cumulation of penalties, imposed on the
   one hand by the Community and on the other by the authorities or courts
   of a third State. Because of the close interdependence of the national
   markets of the Member States and the common market this Court accepted
   that a rule for setting one sentence against another could be applied.
   However the situation is obviously quite different when a previous
   decision given in a State outside the Community is involved.

   C --

   Since in this case the fine which you are requested to set against the
   pecuniary penalty decided by the Commission was imposed by an American
   court, it may interest you to know that in the United States parallel
   proceedings based, on the one hand, on State legislation and, on the
   other, on federal legislation may and in fact do lead to a cumulation
   of penalties in spite of the Fifth Amendment to the Federal
   Constitution, whereby `Nor shall any person be subject for the same
   offence to be twice put in jeopardy of life or limb', that is, in spite
   of the constitutional principle prohibiting cumulation of penalties.

   If the same conduct is a breach of the law in two different legal
   systems, namely that of the Union and that of one of the Federal
   States, under American case-law two distinct offences are found to have
   been committed. Therefore the requirement that the facts be identical,
   which is implied in the prohibition on cumulation of penalties, must be
   disregarded. Thus the Supreme Court of the United States has decided
   that `Every citizen of the United States is also a citizen of a State
   or territory. He therefore owes allegiance to two sovereign States, and
   is liable to punishment for an offence against the laws of either
   State. The same act may be an offence against the laws of both. There
   is no doubt that either or both States may, if they see fit, punish
   such an offender. Yet it cannot be stated that the offender has been
   twice punished for the same offence; but only that by one act he has
   committed two offences, for each of which he is justly punishable. He
   may not therefore plead the punishment by one in bar to a conviction in
   respect of the other offence'.

   This judgment dealt with the question whether a State law was
   unconstitutional because a further penalty under Federal law was not
   excluded.

   In another case, US v Lanza, the Supreme Court decided that a
   conviction, which had acquired the status of res judicata under the law
   of a State, was no bar to further proceedings under Federal law, and
   did not prevent the cumulation of penalties.

   The Supreme Court adopted the same solution in a case where a State
   court had passed sentence under the law of that State although the
   party concerned had already been punished in respect of the same
   conduct under Federal law.

   Although dissenting opinions have been expressed, this case-law has
   been confirmed. Thus, when a conflict arises between the sovereignty of
   the Union and of the States on the one hand, and the principle of the
   prohibition on cumulation of penalties on the other, the Supreme Court
   of the United States has decided in favour of sovereignty. The
   consequence of this is, as I agree with Professor Mestmaecker (study
   published in Der Betriebsberater, 1968, p. 1297), that a conviction
   under State antitrust law which has attained the status of res judicata
   in no way bars a further penalty imposed under Federal law, and vice
   versa. Only continuous cooperation between State and Federal
   authorities can ensure that in fact cumulation of penalties is avoided.
   From this it follows that even in a Federal system like that of the
   United States, the non bis in idem rule gives way to the principles of
   sovereignty and territoriality, without permitting the previous penalty
   to be set against a later.

   D --

   Moreover, the argument of the applicant, based on concepts of pure
   criminal law, disregards in too general a manner the special features
   and indeed the independence vis-ŕ-vis general criminal law of the
   system of penalties introduced by the Treaty of Rome with regard to
   competition.

   While there can be no doubt that the Member States have transferred to
   the Community institutions the right to exercise certain of their
   sovereign prerogative powers in economic matters, it is equally certain
   that they had no intention of relinquishing their criminal
   jurisdiction. Article 15 of Regulation No 17 states moreover that the
   fines provided for in the case of cartels are not criminal penalties.

   They are imposed by the Commission after administrative adversary
   proceedings which are such as to ensure that the rights of the defence
   are observed and they fall into the category of administrative
   penalties.

   This finding, which is in any case derived from the case-law of this
   Court (see the judgments of 15 July 1970 on the international quinine
   cartel and of 14 July 1972 on the dyestuffs cases) would not suffice
   however to place the system of Community fines completely beyond all
   rules of criminal law.

   Although infringements of tne competition rules are defined in very
   general terms in Article 85 and relate to a predominantly technical
   area, which leaves the Commission and this Court a particularly large
   margin of discretion, they are the subject-matter of a legal decision;
   they also contain a moral element, in so far as they must have been
   committed `wilfully or through negligence' (Article 15(1) of Regulation
   No 17); and finally, they contain a physical element, in that the
   prohibitions provided for in Article 85 are applicable to agreements,
   decisions or practices evidence of which must be brought before the
   court.

   As for the penalties provided for in Regulation No 17, they are
   restricted to determinable maximum and minimum amounts and are
   therefore governed by the principle of legality.

   Thus it has been stated (Lambois, Droit Penal International, Dalloz,
   1971) that Community fines, which are administrative in form, are in
   substance in the nature of criminal penalties.

   But they do contain original features and correspond to objectives
   which I consider are of decisive importance to the outcome of the
   present proceedings.

   First, they are not directed against natural persons, but exclusively
   against the assets of undertakings, which are legal persons. The
   concern to protect the individual from proceedings under two different
   systems of criminal law, especially where prison sentences are
   involved, is of no relevance here.

   Moreover the Community cartel rules in fact apply for the most part to
   multinational undertakings whose activity is spread not only over
   several national markets in the common market but also over the world
   market.

   Although the Member States or the Community and the Community itself
   are so interdependent that it is possible to consider it contrary to
   the rules of natural justice that the same breach of the competition
   rules might, by giving rise to parallel proceedings, attract cumulative
   penalties, this consideration is no longer so persuasive when that same
   activity, whether it was expressed in agreements or simply existed as a
   matter of practice, affects at the same time the Community and the
   States or some of the States who are members of it on the one hand, and
   States outside the common market on the other.

   How could the objectives of the Treaty of Rome be effectively respected
   if it were accepted that any pecuniary penalty imposed by a court of a
   third country in respect of certain agreements should be deducted from
   the fine imposed by the Commission by reason of the same illegal
   cartel? Would this not place restrictions on the powers of the
   Community authorities, in the name of a principle of natural justice of
   which it cannot be said with any certainty that it would be
   reciprocally accepted by the third States concerned? Is it, for
   instance, conceivable that a court of the United States, seized of
   proceedings in respect of the same cartel against undertakings upon
   whom the Commission has previously imposed a fine under Regulation
   No 17, would agree to set that fine against that which it would itself
   decide?

   Even supposing, and I do not consider this to reflect the current legal
   position, that the rule for setting one sentence against another were a
   general principle of law, it appears to be essential to give precedence
   to the objectives of the Treaty and the validity of the acts of the
   Community institutions. The fact is that the rule for setting one
   sentence against another, in relations with a third State, can only be
   based on the provisions of a treaty.

   Secondly, the power granted to the Commission to deal with undertakings
   which have made cartel agreements contrary to Article 85 undoubtedly
   arises from the need to protect public order in the economic sense in
   the territory of the Community.

   The fines which the commission imposes are directed against agreements,
   decisions by associations of undertakings, or practices which, in the
   terms of Article 85, `may affect trade between Member States and which
   have as their object or effect the prevention, restriction, or
   distortion of competition within the common market'. It is therefore
   because of the damaging consequences that these agreements, decisions,
   or practices can or actually have had upon competition within the
   common market, that the penalty is justified. Thus the territorial
   effect, potential or real, is one of the ingredients of the
   infringement. Indeed it is an essential ingredient.

   This consideration is essential if we are to exclude the rule for
   setting a previous penalty imposed by a court outside the Community
   against a later, because it results in a denial that in this situation
   there is any requirement as to identity of acts and leads to a
   recognition of the existence of two separate infringements, each one
   attracting its respective punishment in full in both the Community
   legal system and the legal system of the third State.

   III -- The absence of any requirement as to identity of acts

   I am at one here with the Commission in the view that the concept of
   identity of acts giving rise to liability under the competition laws
   cannot be appraised in the same manner as in classical criminal law.

   Criminal offences, whether they are offences against the person, such
   as murder, assault and battery, or against property, such as theft or
   fraud, possess, as far as their factual content is concerned,
   characteristics which are generally simple in nature; they are acts
   committed by one or more specific offenders, at a specific time and
   place; difficulty in establishing these facts only arises
   exceptionally, in the case of complex offences; but the court before
   whom the matter is brought always has the power to examine all the
   facts submitted to it and to interpret them in terms of criminal law.

   Therefore, whatever the criterion as to identity of acts established in
   case-law, the court makes a general assessment of the facts before it.

   In the field of international cartels, the problem presents itself in a
   very different manner from two points of view:

   --

   The offence of restricting competition is brought about by a large
   number of acts committed over a long period (several months or even
   years) and in the territory of several States; agreements made between
   undertakings are often diversified, according to the negotiations
   between the members of the cartel with their principal offices in
   different countries, and according to the purpose of these
   negotiations: agreements as to prices, territorial division of markets,
   export quotas, etc. The immediate result of this is that the court of
   one of the States which is affected by the cartel only entertains
   proceedings in respect of certain of the agreements or is only called
   upon to act against certain of the activities of the undertakings, or
   of certain of them.

   --

   Secondly, by virtue of the principle of territoriality, legislations
   against activities in breach of competition rules limit their scope to
   the territory of the State in which the effects of those activities
   have been established; this is also the case in the Community:
   Article 85(1) of the Treaty of Rome is limited to acts likely to
   restrict competition in the Common Market; in the same way, American
   antitrust legislation, although it is directed as much against
   interference with both the external and the internal trade of the
   United States, is limited in its territorial scope; it is only directed
   against interference with competition which bears upon persons trading
   in the United States.

   Therefore, even if the same undertakings were involved in proceedings
   before a Federal court and at the same time before the Commission of
   the European Communities, in respect of the same agreements, the facts
   constituting the infringement would necessarily be different in each
   case. In the United States court, unless it is exceeding its
   jurisdiction, the only acts which can be considered are those which
   come within Federal law and which are detrimental to the interests of
   the Union; similarly, the Commission in Brussels can only consider,
   subject to review by this Court, acts which, because of their purpose
   or effect, would adversely affect competition inside the Common Market.
   The fact that the agreements in question would be the same is not
   sufficient to establish that the acts are identical.

   I therefore consider that little is to be gained by searching bodies of
   national case-law for a single criterion for the concept of the
   identity of acts. Nor is any guidance to be elicited from the judgment
   of this Court of 13 February 1969 since in referring preliminary
   questions to you the Kammergericht did so on the assumption that, in
   the dispute before it, it was a question of the `same act'. It was on
   the basis of those premises that you were asked to interpret Community
   law. You gave your judgment within the limits defined by the court
   hearing the main action without discussing, which in any case you had
   no power to do, whether those premises were well founded.

   I could limit my opinion to the foregoing, because in the first part of
   our examination of this matter I considered that I could show that the
   rule for setting a previous penalty against a later is not a general
   principle of law which you would be bound to apply to a case of two
   pecuniary penalties in respect of cartels where one sanction was
   imposed by a court of a third State and the other decided by the
   Commission of the European Communities; secondly I considered that the
   decisive factor in the case of a cartel is its territorial effect, as
   the element constituting the infringement of the competition rules, and
   that this territorial effect is necessarily distinct when it concerns,
   on the one hand, the United States, a third country, and, on the other,
   the Common Market.

   But, in order to do full justice to the applicant, I shall nonetheless
   examine the facts which emerge from the judgment delivered on 3 July
   1969 by the Federal Court of the Southern District of New York, and
   from the judgment of this Court of 15 July 1970 in Case 45/69. This
   comparison will lead me fully to confirm my point of view.

   What are these two decisions?

   One is a Federal judgment, delivered under nolo contendere procedure,
   that is, a judgment given by a court of law, but one in which the court
   has done no more than to acknowledge the declaration of Boehringer
   accepting the facts set out in the first two counts of the indictment
   and to impose the penalty on the basis of these uncontested facts.

   If in these circumstances the facts in question cannot be regarded as
   having been definitively established, as would be the case on the
   outcome of the normal procedure, it is necessary at least to consider
   that only the charges brought under the first two counts of the
   indictment of the prosecution were taken into consideration and not
   those brought under the three other counts which were withdrawn by the
   prosecution.

   On the other hand we should not consider the administrative decision
   dated 16 July 1969 whereby the Commission imposed a fine on Boehringer
   but the judgment of this Court of 15 July 1970, because there, in a
   case where you had unlimited jurisdiction, you gave judgment on all the
   charges brought against the applicant, upheld some and rejected others
   and partially amended the decision of the Commission; your judgment
   therefore replaces that decision.

   What were the facts upon which you based your judgment?

   You based yourselves not on the export agreement concerning trade with
   third countries, which was the first and the the essential agreement
   made between the members of the international quinine cartel, including
   Boehringer, but on the gentlemen's agreement governing the conduct of
   these undertakings in the Common Market.

   Analysing this document, the existence of which was acknowledged by the
   applicant, and discovering that the parties had mutually declared
   themselves willing to abide by its provisions, you found that the
   gentlemen's agreement thereby constituted `the faithful expression of
   the intention of the members of the cartel with regard to their conduct
   in the Common Market'; having moreover found that this agreement
   contained a provision to the effect that any breach would ipso facto
   constitute a breach of the export agreement, you then examined the
   conduct of the undertakings in the Community.

   In this respect you held that the gentlemen's agreement guaranteed the
   protection of each domestic market for the producers in the various
   Member States and, having rejected the arguments of the applicant, you
   decided that this sharing out of domestic markets had as its object the
   restriction of competition in Common Market trade.

   In connexion with the joint fixing of selling prices in the markets
   which were not shared out, that is, Belgium, Luxembourg and Italy, you
   found that this activity was capable of affecting trade between the
   Member States and seriously restricted competition within the Common
   Market. However at the same time the Court recognized that it had not
   been established that the applicant was, by mutual agreement with the
   other producers, maintaining uniform prices for its sales in those
   countries after May 1964.

   The court however rejected the allegation of the fixing of the sales
   quotas in the Common Market after 29 October 1962, in the absence of
   sufficient proof.

   Finally, the Court held that the prohibition placed upon the group of
   French members of the cartel on manufacturing synthetic quinidine was
   illegal.

   In conclusion, you found that these acts taken together, from the
   viewpoint of Article 85 of the Treaty, constituted a cartel prohibited
   by that provision, that is to say, a cartel having as its object or
   effect the prevention, restriction or distortion of competition within
   the Common Market; you accordingly fixed the amount of the fine at
   180000 u.a., taking into consideration on the one hand that Boehringer
   had exercised a major influence during the working out and
   implemantation of the agreement, in order to justify a heavier fine
   than that imposed on other undertakings, but, on the other, bearing in
   mind that you had excluded the allegations concerning the sales quotas
   for the period from November 1962 to February 1965 and the sales prices
   for the period from May 1964 to February 1965, and, on that ground, you
   reduced the fine imposed by the Commission.

   It suffices to recall these findings, which have acquired the status of
   res judicata, to show that the Court only considered activity which had
   had or was likely to have an effect on the conditions of competition
   within the Common Market. On the other hand, the facts on the basis of
   which the Federal Court of the Southern District of New York imposed a
   fine of $80 000 on the applicant, as can be inferred from the first two
   counts which were not contested, concern activity of the applicant
   which had effects on American territory, particularly by virtue of the
   agreement for exports to third countries:

   --

   the fixing of prices of products extracted from quinquina bark at an
   artificial level on the domestic market of the United States,
   interference with competition between American importers and resellers,
   and obstacles to competition between producers in the domestic market
   in the United States;

   --

   the effects of the agreement described as the stockpile agreement
   relating to the purchase of quinine from the American strategic
   reserves;

   --

   finally, the agreements relating to the joint purchase of quinquina
   bark (bark pool).

   It must be noted that these last two agreements, which concern
   purchasing policy within the cartel, were not the subject-matter of any
   charge brought before the Commission of the European Communities.

   It is evident that only the effects upon American territory of the
   activity of the applicant are concerned. Consequently there is nothing
   to justify the assumption that, in imposing a fine on Boehringer, the
   American Federal court intended to penalize other interference with
   competition.

   Indeed, this Court itself said, in its judgment in Case 45/69, that
   that penalty was imposed `in respect of restrictions on competition
   which occurred outside the Community'.

   I would add that the file contains no information as to whether, in
   order to determine the amount of the fine imposed on the applicant and
   upon the other members of the cartel against whom proceedings were also
   brought, the Commission took account of the financial benefits derived
   by these undertakings from their agreements within the Common Market
   alone or in the world market. No precise answer could be given on this
   point during the oral procedure. However it is established that the
   only activity which was penalized was that which had an effect on the
   Common Market and that the fines imposed on the undertakings concerned
   were in any case set at a level considerably below the maximum limit
   provided for in Regulation No 17.

   It is also necessary to recall that in reply to a question asked in
   1966 by the Bundeskartellamt, the representatives of Boehringer had
   replied that it was impossible for them to give any details on the
   exports of quinine to each of the principal purchasing countries since
   the agreements only obliged the members of the cartel to exchange
   information as to total exports and that the applicant company did not
   therefore possess data with regard to each purchasing country.

   In these circumstances, I conclude that the application of Boehringer
   in Case 7/72 should be dismissed and that the applicant should be
   ordered to bear the costs.
     __________________________________________________________________

   ( [4]1 ) Translated from the French.

References

   1. file:///tmp/lynxXXXXNl9WhE/L111950-1707TMP.html#t-ECRCJ1972ENA.0200129101-E0002
   2. http://eur-lex.europa.eu/query.html?DN=61968??0014&locale=EN
   3. http://eur-lex.europa.eu/query.html?DN=61964??0018&locale=EN
   4. file:///tmp/lynxXXXXNl9WhE/L111950-1707TMP.html#c-ECRCJ1972ENA.0200129101-E0002