In its Archer Daniels Midland decision yesterday, C-397/03 P,on appeal from the Court of First Instance, the ECJ decided that there is no obligation on regulators to avoid "double-fining":
50 Next, referring to paragraph 11 of Wilhelm and Others, the Court of First Instance held in paragraph 99 of the judgment under appeal that it was in view of the particular situation which arises from the close interdependence between the national markets of the Member States and the common market and from the special system for the division of jurisdiction between the Community and the Member States with regard to cartels on the same territory, namely the common market, that the Court, having acknowledged the possibility of dual sets of proceedings and having regard to the possibility of double sanctions flowing from them, held it to be necessary, in accordance with a requirement of natural justice, for account to be taken of the first decision imposing a penalty.
51 In paragraph 100 of the judgment under appeal, the Court of First Instance held that such a situation did not exist in the present case and that, given that the appellants point to no express provision of a convention requiring the Commission, when determining the amount of a fine, to take into account penalties already imposed on the same undertaking in respect of the same conduct by the authorities or courts of a non-member country such as the United States of America or Canada, they cannot validly complain that, in the present case, the Commission failed to fulfil any such alleged obligation.
52 Even if that reasoning were erroneous and the sanction imposed by the authorities of a non-member country was a factor to be taken into account in assessing the facts of the present case in setting the amount of the fine, the plea alleging that the Commission failed to take account of the fines already imposed in non-member countries can only succeed if the actions of ADM complained of by the Commission on the one hand and by the authorities of the United States and Canada on the other were identical.
Interestingly, the court distinguishes between intra-EC coordination, and extra-EC coordination. As Sungjoon suggested in an earlier comment, it may develop that states determine to coordinate on jurisdiction to fine. While it might not be exactly double jeopardy to fine someone twice for the same conduct, it seems like double punishment.
