The car manufacturer Volkswagen cannot be penalised in Italy following the Dieselgate scandal after having been penalised in Germany, said the Advocate General of the Court of Justice of the European Union, Manuel Campos Sánchez-Bordona, in his opinion delivered on Thursday 30 March (case C-27/22).
The Italian Council of State asked the Court of Justice to interpret the ‘ne bis in idem’ principle enshrined in the EU Charter of Fundamental Rights (Article 50), which prohibits the duplication of criminal proceedings and penalties for the same acts and against the same person.
In this case, Volkswagen is contesting the €5 million fine, which the Italian competition authority imposed on it for unfair trade practices, for selling 700,000 vehicles in Italy with devices that inaccurately alter the measurement of pollutant emissions, despite having already paid a €1 billion fine in June 2018 following criminal proceedings in Germany.
In his opinion, the Advocate General considers that the Italian judicial procedure is criminal in nature due to its punitive purpose and severity, although it is for the Italian Council of State to determine this. He is also of the view that the penalty imposed by the Italian authorities infringed the right not to be tried or punished twice for the same offence.
As to the Italian Council of State’s question on the possibility of derogating from the ne bis in idem principle, Mr Manuel Campos Sánchez-Bordona underlines that limitations to this fundamental right are subject to the following conditions: - the duplication of penalties must be provided for by law; - the essence of the right must be respected; - there must be a public interest reason; - the limitation must be in accordance with the principles of necessity and proportionality.
According to the Advocate General, in order to examine the latter condition, it is necessary to examine the coordination of the penalty procedures and the existence of a sufficiently close connection in substance and time between them. However, it seems that this is not the case, he notes.
See the Advocate General’s opinion: https://aeur.eu/f/660 (Original version in French by Mathieu Bion)