On Thursday 14 September, the Court of Justice of the EU handed down a judgment in which it ruled that the ‘ne bis in idem’ principle - which excludes criminal proceedings for the same offences from being commenced or maintained once a final decision has been taken, even if this decision is subsequent - applies to penalties for unfair commercial practices that are classified as administrative penalties of a criminal nature (Case C-27/22).
In fact, the CJEU is responding to questions raised by the Italian Council of State, which referred the matter to the Court following an appeal by Volkswagen Group Italia SpA (VWGI) and Volkswagen AG. A fine of €5 million was imposed on them in August 2016 in Italy as part of ‘Diesel Gate’ and the German Group and its Italian branch contested it.
Meanwhile, the Braunschweig public prosecutor’s office in Germany has also fined Volkswagen AG €1 billion for the same offences. The German decision became final on 13 June 2018 - i.e. before the final verdict was handed down in Italy - as the German manufacturer had paid the fine and formally waived its right to appeal.
The German car manufacturer, which had sold 700,000 of the 10.7 million vehicles in question in Italy, took the view that the Italian fine could not be imposed on the two entities, as a final decision already existed for the same offences in another Member State. The CJEU ruled in favour of Volkswagen, in the name of the ‘ne bis in idem’ principle.
“The principle applies once a decision of a criminal nature has become final, irrespective of the manner in which that decision has become final. In that regard, it may apply only where the facts to which the two sets of proceedings or the two penalties at issue are identical; it is therefore not sufficient that the facts be merely similar”, the Court summarises.
See the judgement: https://aeur.eu/f/8k8 (Original version in French by Thomas Mangin)