Advocate General Kokott (AG) has given an opinion that EU anti-cartel laws cannot apply to companies in EU member states for actions taking place before the date of that country’s accession to the EU.

The issue came before the European Court of Justice (ECJ) as a preliminary reference from a Czech court in Case C-17/10. The ECJ was asked to consider whether EU law could be applied to the whole period of operation of a cartel involving gas insulated switchgear including the period prior to the Czech Republic’s entry to the EU.

In her opinion, the AG explained that although the cartel may constitute a single and continuous infringement, its anti-competitive consequences are subject to different rules depending on whether they arose before or after the accession. EU competition law should not be applied retroactively. However, Czech national competition law can apply to cartel activities prior to accession. The EU law principle (ne bis in idem) by which someone cannot be tried twice for the same offence does not preclude a national competition authority from imposing penalties for this period.