The Court of Justice of the European Union has ruled on the possibility of limiting the protection offered by the prohibition of double jeopardy (ne bis in idem principle) in competition law, as guaranteed by the EU Charter of Fundamental Rights, in a judgment delivered on Tuesday 22 March (cases C-117 and 151/20).
The Belgian company bpost is challenging before the Brussels Court of Appeal a fine imposed on it by the competition authority in 2012 for abuse of a dominant position due to the application of a rebate system. This pricing practice, for which the Belgian postal sector regulator had already fined bpost, had already been judged discriminatory by the same Court of Appeal in 2016 in a judgment that has become final.
Nordzucker is contesting the proceedings to have the Austrian Supreme Court declare that this German sugar producer entered into a cartel with another German producer, Südzucker, on the basis of a telephone conversation between the directors of the two undertakings concerning the Austrian sugar market. This meeting had already been mentioned in a final decision of the German competition authority, which found that the two companies had violated EU law.
In its judgment, the Court recalls that the application of the ne bis in idem principle is subject to a twofold condition: (1) there must be a prior final decision (the ‘bis’ condition) and, (2) that prior decision and the subsequent proceedings or decisions must concern the same facts (the ‘idem’ condition).
The relevant criterion for assessing the existence of the same offence is the identity of the material facts.
According to the Court, however, limitations may be imposed by law on the exercise of a fundamental right, such as that conferred by the prohibition against double jeopardy, as long as the limitations respect the essence of those rights, are necessary and genuinely meet objectives of general interest recognised by the EU.
Case 117/20. In the bpost case, the Court is of the opinion that the protection conferred by the ‘ne bis in idem’ principle does not preclude an undertaking from being penalised for an infringement of competition law when, for the same facts, it has already been the subject of a final decision for failure to comply with sectoral rules such as the postal sectoral rules.
This combination of prosecutions and sanctions is, however, subject to conditions, in that there must be clear and precise rules for determining which acts and omissions are subject to them and for coordination between the two competent authorities. In addition, the two sets of proceedings must have been conducted in a sufficiently coordinated manner within a proximate timeframe and the overall penalties imposed must correspond to the seriousness of the offences committed.
See the judgment: https://aeur.eu/f/wa
Case 151/20. According to the Court, the ‘ne bis in idem' principle does not preclude an undertaking from being prosecuted by the competition authority of a Member State and fined for an infringement because of anti-competitive conduct in the territory of that Member State, even though that conduct has already been referred to by a competition authority of another Member State in a final decision.
However, that decision must not be based on a finding of an anticompetitive object or effect in the territory of the first Member State.
See the judgment: https://aeur.eu/f/w9 (Original version in French by Mathieu Bion)