S UBJECTIVE SCOPE OF APPLICATION OF THE GUARANTEES 1 Introduction

The subjective scope of application of the guarantees regards the questionwho can relyon the prohibitions of double prosecution and double punishment. Although there has been no case concerning the subjective scope of Article 4P7ECHRbefore theECtHR, it would appear that the answer to this question is rather straight-forward: only someone who hasactually been subjectedto a previoustrial(and who has been finally acquitted or convicted) can invoke the right not to betriedtwice, for the same act, and this has been confirmed by theECJ. There is reason to make any distinction between the prohibitions of double prosecution and double punishment on this point; only someone why has actually beenpunishedbefore should be able to invoke the right not to bepunishedtwice.

Questions of the subjective scope of application of the prohibitions may arise in particular in legal systems in which undertakings as well as legal persons can be prosecuted under criminal law. In those situations, the criminal liability of the legal entity is ususally regarded as a liability distinct from that of its executives or employees.

Another, different issue is that Article 81(1) EC prohibits “decisions by associations of undertakings” (etc.). In situations in which both associations

109 Case C-289/04 PShowa Denko KK v Commission[2006] ECR I-5859, paras. 53 and 56.

of undertakings as well as their individual members were involved in an infringement of Article 81EC, this may lead to fines, imposed on both subjects, in respect of the same infringement. In its case law, theCFIhas held that the decisive question is whether these formlegal entities, separate from the mem- bers of those associations, even if the members of an association of under- takings are also associations of undertakings.

4.6.2 The subjective scope of application of the guarantees in the case law of the European Court of Justice

In the context of Article 54 CISA, Gasparini111_{has so far been the only case}

before theECJin which questions regarding the subjective scope of application of that provision were raised by the referring court.

The case concerned the import of several shipments of low-grade olive oil from Tunisia and Turkey through the port of Setubal (Portugal), at an unspecified time between 1993 and 1997 by a Spanish company, Minerva SA, active in the business of refining and marketing olive oil. The oil was not, or only partially, declared to the customs authorities in Portugal, and transported by road to Malaga (Spain). A system of false invoicing was devised to create the impression that the oil originated from Switzerland.112

In the main proceedings, the shareholders and directors of the company were prosecuted before the Provincial court at Malaga for these facts, only after the Portuguese Supreme Court of Justice had acquitted two of the same defendants on the grounds that their prosecution was time-barred. The other defendants were never prosecuted in Portugal. The Spanish court stayed the proceedings, in order to ask theECJ, among other things, whether a finding that the prosecution of an offence is time-barred is binding on courts in other Member States, and furthermore whether an acquittal for reasons of a time-bar could benefits the other defendants, who hadnotbeen prosecuted in Portugal, by extension.

In her Opinion, theAGargued that it is clear from the wording of Article 54CISA that only the subject in question should benefit from the protection afforded by it, and not others against whom the similar proceedings, although they could have been brought, werenotbrought.113_The

ECJagreed with the

111 Case C-467/04Gasparini[2006] ECR I-9199.

112 In terms of the factual backgrounds of the case, this is as much as appears certain because there were several inaccuracies and contradictions in the order for reference.

113 Opinion of Advocate General Sharpston 15 June 2006: “Article 54 of the CISA explicitly

states that ‘a personwhose trial has been finally disposed of in one Contracting Party may

not be prosecuted in another Contracting Party for the same acts’. It follows from a literal reading of that provision that it benefits only the specific individual or individuals who have been finally acquitted or convicted. On its face, that provision does not therefore cover

Opinion on this point, and answered that it is clear from the wording of Article 54CISAthat only those personswho have actually been prosecutedand have had their trial disposed of may benefit from the principle. Others therefore do not benefit from the principle by extension, or from the fact that proceedings can no longer be brought against them.114

In the context of Article 81 EC, the only case so far concerning the subject- ive scope of application of (in this case) the prohibition of double prosecution has been the Fédération nationale de la coopération bétail et viande case.115 _In

that case, theCFIfaced the question whether the imposition of fines on several associations of undertakings could infringe thene bis in idemprinciple. In brief, the facts of the case were as follows. Several French associations of undertaking had been a party of an agreement, infringing Article 81EC. Three of the asso- ciations involved were, in turn, a member of the fourth association; all four associations were a party to the litigious agreement. The Commission imposed fines on all four associations, but no fines were imposed on any individual members of the associations (although their turnover was taken into account in setting the fine).

In appeal before theCFI, two of the associations complained that they had effectively been fined twice: once directly, and once through their membership of the fourth association. TheCFIrejected this plea. It held that, although the four associations had acted in close coordination with each other in this instance, they nevertheless formed four independent bodies with their own sparate budgets, and their own, sometimes conflicting, interests. It could therefore not be said that the associations essentially formed a single subject, which had been fined repeatedly.

It therefore appears that the question whether or not it concerns separate legal entities is decisive in determining who can rely on the prohibition, notwithstanding the fact that three of the associations involved actually did end up paying “double” fines (through their membership of the fourth asso- ciation).