In his conclusions of Tuesday 12 September on joined cases C-524/15, C-537/16, C-596/16 et C-597/16, Advocate General Manuel Campos Sánchez-Bordona considered that the non bis in idem principle prevents imposing a criminal penalty and an administrative penalty against the same person for the same deeds if the administrative penalty is in reality of criminal nature.
In Italy, six companies and individuals have either been, or are being, prosecuted under criminal law for various infringements, although they have at the same time been given administrative penalties by the competent authorities. Having been approached on these disputes, several Italian jurisdictions asked the European Court of Justice (CJEU) for a preliminary ruling in order to determine if a person could be sentenced, for the same deeds, with a criminal penalty and an administrative penalty with regard to the non bis in idem principle. The CJEU provides that a person whose trial has finally been disposed of cannot be prosecuted a second time for the same deeds.
The advocate general states firstly in his conclusions that four conditions must be met with a view to applying the non bis in idem principle: the identity of the person being prosecuted or sanctioned, the identity of the deeds targeted by the proceedings, the accumulation of the penalty proceedings, and the definitive nature of one of the two decisions.
While the advocate general carries out an assessment in the different cases presented to him, he states how the principle of accumulation of penalty proceedings must be heard. In his opinion, the non bis in idem principle is violated if a person is sentenced, for the same deeds, both to a criminal penalty and to an administrative penalty, when the administrative penalty, in spite of what it is called, is essentially of criminal nature and when no procedural mechanism has been set up to avoid this duality. The national jurisdiction must then determine if this administrative penalty is indeed criminal with regard to three criteria: the legal classification of the infringement in domestic law, its nature, and the nature and level of severity of the penalty.
A ruling from the Court in the sense of the advocate general's conclusions would set out, for the future, the criteria for applying the non bis in idem principle in similar cases. (Original version in French by Lucas Tripoteau)