NE BIS IN IDEM IN THE LATEST DECISIONS OF THE COURT OF JUSTICE OF THE EUROPEAN UNION

#64Ne bis in idem in the latest decisions of the Court of Justice of the European Union

The Charter of Fundamental Rights of the European Union (hereinafter referred to as the "Charter") provides that "no one may be prosecuted or punished in criminal proceedings for a criminal offense for which he has already been acquitted or convicted within the Union by a final judgment in accordance with the law". This is called the prohibition of double punishment also known as the ne bis in idem principle. The Court of Justice commented on the prohibition of double punishment in these two judgments.

Judgment C-117/20 in the case of bpost
bpost was successively fined by two national authorities. The first fine was imposed for the application of discounts by the postal regulatory authority in the amount of EUR 2.3 million. This decision was overturned by the Court of Appeal in Brussels. In the meantime, a second fine of EUR 37.4 million was imposed for applying the same discounts. The second fine was imposed by the Office for Economic Competition.

According to the Court of Justice, there was no infringement of the ne bis in idem principle. An enterprise may be sanctioned for infringement of competition law if a valid decision has already been issued against it for non-compliance with industry legislation for the same factual situation. However, such imposition of sanctions is conditioned by the existence of clear and precise rules allowing to foresee which actions and omissions may be subject to them.

Judgment C-151/20 in the case of Nordzucker
Representatives of Nordzucker and Südzucker held a telephone conversation about the Austrian sugar market. On this basis, a fine of EUR 195.5 million was imposed on Südzucker and a violation of Union law and competition rules by both companies was found.

According to the Court of Justice, there was no infringement of the ne bis in idem principle. A company can be prosecuted by a competition authority and fined for an anti-competitive aim or effect, even though it has already been dealt with by the competition authority of another Member State in a final decision.

The two judgments of 22 March 2022 contain important clarifications regarding the protection under the ne bis in idem principle. Firstly, it should be emphasized that the fundamental right referred to in the Charter does not only apply where sanctions are imposed in criminal proceedings in the strict sense, but also in proceedings conducted by the various administrative authorities which may lead to the imposition of sanctions of a criminal nature in a broader sense. In essence, the Court of Justice of the European Union is applying the criteria set out in its landmark 2018 decisions concerning the concurrence of administrative and criminal proceedings against the same natural or legal person (eucrim 1/2018, 24-27).

An important aspect of these two judgments is that the Court of Justice of the European Union unifies the interpretation of the 'idem' condition across legal disciplines. This means that it has departed from its particular way of assessing the 'idem' criterion in the context of the prohibition of double jeopardy in competition law (the so-called 'idem-crimen' approach, taking into account a triple identity involving a protected legal interest alongside the identity of the person and the fact).

Moreover, the Court of Justice of the European Union has made clear that the protection against double identity has its limits, i.e. it is not absolute, and has developed a uniform, multi-stage programme of review. The crucial aspects here are the assessment of the objectives pursued by the two proceedings, as well as the proportionality of the double jeopardy.