Victor Davio and Ilaria Gambardella*
*Victor is a PhD Researcher at the Institute for European Law, KU Leuven and Assistant in Constitutional Law at University Saint-Louis Brussels and Ilaria is Teaching Assistant and Research Associate at the Institute for European Law, KU Leuven. They are part of the RESHUFFLE research project hosted by KU Leuven under the direction of Prof. Elise Muir, and supported by the European Research Council (European Union’s Horizon 2020 research and innovation programme, grant agreement No 851621).
Photo credit: Jean Housen, via Wikimedia commons
On 22 March 2022, the European Court of Justice (‘the ECJ’) delivered in Grand Chamber its judgment in the bpost case (C-117/20), which brings significant developments regarding the principle of ne bis in idem as enshrined in Article 50 of the EU Charter of Fundamental Rights (‘the Charter’). On the same day, the ECJ, also in Grand Chamber, rendered its judgment in the Nordzucker case (C‑151/20) which concerned the ne bis in idem principle in the field of competition law and in which the ECJ developed a similar approach to the bpost judgment in several respects. We will refer to the Nordzucker judgement to the extent that it is relevant for the analysis.
These judgments, and in particular the bpost judgment which will be discussed below, constitute a step forward towards greater coherence on ne bis in idem, a principle which has been deemed ‘among the most complex legal issues involving fundamental rights’. Also known as the prohibition of double jeopardy, the ne bis in idem principle has a double rationale: on the one hand, it is a rule of criminal procedure which aims to ensure legal certainty and a fair administration of criminal justice; on the other hand, it is an individual right which seeks to protect the individual from abuses of the ius puniendi. This principle is notably relevant in the context of the so-called dual proceedings, namely where a natural or legal person is subject to both criminal and administrative proceedings for the same misconduct and the latter proceedings are criminal within the meaning of the Charter or the European Convention of Human Rights (‘the ECHR’).
In the European landscape, the ne bis in idem principle has been characterised by a phenomenon of double fragmentation. The first is within EU law itself: the principle has been scattered in various legal instruments and has been subject to divergent interpretations by the ECJ depending on the area concerned, including between competition law and other areas of EU law. The second is between EU law and the ECHR: over the past years, the ECJ and the ECtHR have developed different methodologies for the application of the ne bis in idem principle, which places difficulties on national judges who are bound by both sets of rules.
The judgment commented upon provides a welcome, albeit partial, solution to this double fragmentation. Firstly, the ECJ departs from the dichotomy between competition law and other fields of EU law, by holding that the scope of protection of ne bis in idem is the same in all fields of EU law. Secondly, the ECJ aligns its case-law on the ECtHR case-law, and in particular on the Grand Chamber judgment A and B v. Norway of 15 November 2016. There is no perfect coherence between the ECJ and ECtHR case-law, however, since the CJEU confirmed its approach developed in the Menci judgment (C-524/15) which entails that the ne bis in idem principle must be submitted to the proportionality test under Art. 52(1) Charter, as we shall see below.
Bpost, the incumbent postal services provider in Belgium, offers its services to two main categories of clients: the bulk mailers, which are end consumers, and the mail preparation firms, which are consolidators. As for 2010, bpost established a new tariff system for advertising and administrative mail items based on the ‘per sender’ model. Under the new system, the discounts granted to the consolidators are calculated on the volume of mail items deposited individually by each sender and no longer on the total amount of items from all senders for which the consolidators provided their services.
Due to this new tariff system, bpost was fined twice. First, the Belgian Postal Regulator imposed a fine for infringement of the non-discrimination rule related to tariffs in the postal sector. It considered that the new tariff system created an unjustified difference of treatment between the two main categories of clients. The decision was annulled by the Brussels Court of Appeal in a decision which became final. Second, the Belgian Competition Authority imposed on bpost a fine on the ground of abuse of dominant position. It estimated that the new tariff had an exclusionary effect on consolidators and potential competitors. Once again, the Brussels Court of Appeal annulled the decision on the ground that it was contrary to the ne bis in idem principle. After the decision was set aside by the Court of Cassation, the case came back to the Court of appeal which, therefore, submitted a request for a preliminary ruling to the ECJ.
The referring court stated that the two proceedings conducted by the Belgian Postal Regulator and the Belgian Competition Authority lead both to the imposition of administrative penalties of criminal nature. However, these penalties aimed to punish different offences: in one case, the infringement of non-discrimination in the postal sector and in the other case, the infringement of competition law. In the field of competition law, three criteria are required to verify whether the ‘idem’ condition is fulfilled, namely the same facts, the same offender and the same legal interest protected. However, the latter criterion is not applied in the case law relating to other fields of EU law. Therefore, the referring court asked the ECJ whether it had to rely on the case law on the application of ne bis in idem in the field of competition law (Toshiba (C-17/10)) or rather on the line of cases related to the Menci judgement.
The Opinion of Advocate General Bobek
The starting point for Advocate General Bobek’s Opinion is that the ECJ case-law on the ne bis in idem principle is ‘marked by fragmentation and partial incoherence’ (§3) and can ‘be described as a mosaic of parallel regimes’ (§85). In a pedagogical manner, the Advocate General paints a picture of this mosaic by discussing successively the protected legal interest in EU competition law (§43-52), ne bis in idem in the area of freedom, security and justice (§53-62), the case-law of the ECtHR (§63-74) and the developments in the Menci judgment (§75-84).
In his view, such a situation of fragmentation is untenable for three reasons. First, because the area of competition law cannot, per se and in the abstract, be considered different from other areas of EU law and therefore be subject to a different test (§92). Secondly, because of the unpredictability of the tests since there is no rule to determine which test applies when two of the areas of application of the ne bis in idem principle overlap in a case (§93). Thirdly, because the same provision of primary law, Art. 50 of the Charter, should not have a different content depending on the area of EU law to which it is applied (§95).
Should the test developed by the ECJ in Menci prevail across all EU areas? According to the Advocate General, this question requires a negative answer. In his opinion, the Menci judgment is a problematic decision in that it submits the ne bis in idem principle to the Article 52 Charter test and analyses this principle in the light of proportionality. He submits that: ‘Article 50 of the Charter is a bar. If validly triggered, it prevents the other proceedings from even starting. Such a bar must be defined ex ante and normatively’ (§107). The Advocate General thus favours a procedural version of the ne bis idem principle (which prevents ex ante the introduction of new proceedings) over a substantive version of this principle (which analyses ex post the proportionality of different sanctions under Article 52 of the Charter).
Then, the Advocate General argues in favour of the introduction of a threefold test for the assessment of the idem for the purposes of Article 50 of the Charter. This test would be based on a triple identity: an identity (1) of the offender, (2) of the relevant facts, and (3) of the protected legal interest (§133). What should be understood as a protected legal interest? In his view, it corresponds to ‘the societal good or social value that the given legislative framework or part thereof is intended to protect and uphold’ (§136). Insofar as the ‘bis’ condition (i.e. the existence of a prior final decision) and this triple identity of idem are met, the ne bis in idem principle would preclude the introduction of new proceedings.
In the bpost case, the Advocate General suggests that the triple identity, subject to verification by the referring court, has not been met, in particular in view of a difference in the protected legal interest. While the Belgian postal regulator fined bpost in order to avoid discrimination and ensure the transparency of the internal market for postal services, the Belgian Competition Authority sanctioned bpost’s anti-competitive practices (§160-162). The aim pursued by the two regulators was therefore different.
The judgment of the ECJ
The ECJ starts its reasoning by reminding that the ne bis in idem is a fundamental principle of EU law which is now enshrined in Article 50 of the Charter. The principle, which corresponds to that provided in Article 4 Protocol 7 ECHR, prohibits a duplication of proceedings or penalties of a criminal nature for the same acts and against the same person (§23).
The application of the ne bis in idem principle is subject to a twofold condition: (1) there must be a prior final decision as to the merits of the case (the ‘bis’ condition) and (2) the prior decision or the subsequent proceedings must concern the same facts (the ‘idem’ condition). The identity of material facts is the criterion to assess the existence of the same offence and is defined by the ECJ as ‘a set of concrete circumstances stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space’ (§37). The ECJ adds that, for the purpose of establishing the existence of the same offence, the legal interest protected is not relevant, ‘in so far as the scope of the protection conferred by Article 50 cannot vary from one field of law to another’ (§34-35). Therefore, the ECJ explicitly rejects the condition of the legal interest protected which was traditionally only required in the field of competition law (Toshiba (C-17/10)). In doing so, the ECJ accepts the suggestion of Advocate General Bobek to harmonise its case law on the application of the ne bis in idem principle. The ECJ had been already invited in the past to depart from the different approach to the application of the ne bis in idem in competition law by both AG Kokott in Toshiba (§ 114-118) and AG Wahl in Powszechny (§45).
Subsequently, the ECJ clarifies that when the two conditions are met, the duplication of proceedings or penalties does not constitute a violation, but a limitation of the fundamental rights guaranteed by Article 50 of the Charter. On that point, the ECJ rejects the suggestion of the Advocate General to consider the ne bis in idem ‘as a bar’. Hence, a limitation to the ne bis in idem principle might be justified according to Article 52(1) of the Charter if the duplication of proceedings is aimed to protect distinct legitimate objectives and does not exceed what is appropriate and necessary in order to obtain these objectives. The ECJ affirms that ‘the the fact that two sets of proceedings are pursuing distinct objectives of general interest which it is legitimate to protect cumulatively can be taken into account, in an analysis of the proportionality of the duplication of proceedings and penalties, as a factor that would justify that duplication, provided that those proceedings are complementary and that the additional burden which that duplication represents can accordingly be justified by the two objectives pursued’ (§49). In this paragraph, as it will be stressed in the comments below, the Court heavily relies on the ECHR case-law (A and B v Norway).
Regarding the circumstances of the case, the ECJ recognises that the two proceedings pursue two distinct legitimate objectives which are, in one case, the liberalisation of the internal market for postal services and, in the other case, the protection of a fair competition on the market. The ECJ leaves to the national authorities to ascertain whether the duplication of proceedings was justified in the specific case. In conclusion, according to the ECJ, Article 50 Charter does not preclude the duplication of proceedings in circumstances such as those of the case, provided that a series of circumstances are respected, which is an evaluation that belongs to the referring Court.
A salient feature of the ECJ’s judgment in the bpost case is that it brings more coherence and consistency to the ne bis in idem principle, which was marked by its high degree of fragmentation. It does so, first and foremost, by harmonising its application within EU law itself, by holding that the scope of protection of the ne bis in idem principle enshrined in Article 50 of the Charter is the same in all areas of EU law, unless otherwise provided by EU law (see also Nordzucker, §40). In doing so, the ECJ set aside the dichotomy between competition law and other areas of EU law, the former having historically been the subject of separate case law as to the application of the ne bis in idem principle (Toshiba (C-17/10) and Slovak Telekom (C-857/19)).
Furthermore, the ECJ further develops a common understanding of the ne bis in idem principle at a pan-European level by aligning its approach on the ECtHR case-law. That the ECJ relies on the latter case-law may not come as a surprise in the light of Article 52(3) of the Charter, according to which the Charter rights shall have the same meaning and scope as those of the corresponding rights guaranteed by the ECHR. Since Article 50 corresponds to Article 4 of Protocol No 7 to the ECHR, its meaning and scope must be similar to those established by the ECHR. The explanations to the Charter indicate that the meaning and the scope of the guaranteed rights are determined not only by the text of the ECHR and its Protocols, but also by the ECtHR case-law.
Yet, what is singular about the bpost case is the extent to which the ECJ draws on the latter case-law. While the ECJ had referred to the ECtHR case-law in its Menci judgment (Menci, §61), the ECJ relies on the latter case-law in a more explicit and clear manner. Notably, the ECJ embraces the concept of ‘coherent whole’ developed in the ECtHR A and B v. Norway judgment. Repeating almost identically the wording of the latter’s judgment (A and B v. Norway, §121), the ECJ considers that: ‘public authorities can legitimately choose complementary legal responses to certain conduct that is harmful to society through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned’ (bpost, §49). Furthermore, in order to determine whether the duplication of procedures and sanctions pursuing distinct legitimate aims is strictly necessary, the CJEU identifies a series of factors largely inspired by the case-law of the ECtHR, namely that (1) there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication of proceedings and penalties and that there will be coordination between the different authorities; that (2) the two sets of proceedings have been conducted in a manner that is sufficiently coordinated and within a proximate timeframe; and that (3) any penalty that may have been imposed in the proceedings that were first in time was taken into account in the assessment of the second penalty burden (bpost, §51; compare with A and B v. Norway, §132-134).
In spite of the increasing convergence between the case-law of the ECJ and the ECHR, some differences still persist regarding the scope of the principle and the methodology adopted by the two European Courts when they apply the ne bis in idem principle.
First, regarding the scope, in the ECHR context the ne bis in idem applies only within the jurisdiction of one Member State, while under EU law it also applies between several Member States. In other words, at EU level, the ne bis in idem principle has developed from a domestic to a transnational level. This is also attested by the Nordzucker case, which concerns two proceedings before two national competition authorities of different Member States.
Second, the two Courts still adopt a slightly different methodological approach to achieve the same result. On the one hand the ECHR only recognises the possibility of a duplication of proceedings when the two proceedings are complementary to each other, so that they can be considered ‘as a whole’, i.e. as one single set of proceedings. In principle, no exceptions and limitations to the principle are possible. On the other hand, in bpost the ECJ explicitly confirms that a duality of proceedings is accepted and refers to the concept of ‘coherent whole’. However, the duplication of proceedings is considered by the ECJ as a limitation of the principle of ne bis in idem which is subject to the Article 52(1) Charter test and the fulfilment of a series of conditions that are shaped on the ECHR case-law.
Overall, the bpost judgment can be seen as a positive development for the ne bis in idem principle in Europe. It is an important step out of the ne bis idem maze, so to speak. It contributes to greater coherence and clarity regarding this principle, which has long been difficult to grasp for EU (fundamental rights) lawyers. In doing so, this judgment also eases the work of national courts which are at the intersection of at least three fundamental rights legal systems, namely the ECHR, EU fundamental rights and national fundamental rights, and whose role should be facilitated by the ECJ and the ECtHR in view of the increasing complexity of human rights in Europe.