The Court of Justice of the European Union (CJEU) handed down two judgments providing guidance on the protection against double jeopardy (the principle ne bis in idem) in competition law cases. Article 50 of the Charter of Fundamental Rights of the European Union (Charter) provides that “no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law“. However, cases C-117/20 Bpost and C-151/20 Nordzucker underlined that undertakings may be liable more than once upon the same material facts in so far as authorities act under a different legal basis and in a complementary manner. The judgments bear practical implications beyond the field of EU competition law.

The Bpost case relates to a discount tariff scheme for postal services deemed to be discriminatory toward some of Bpost’s customers; which was in place between January 2010 and July 2011. Based on the same material facts, Bpost was fined € 2,3 million euros by the sectoral authority, the Postal Regulatory Authority, in 2011 (subsequently annulled by the Brussels Court of Appeal), and € 37,4 million euros by the Belgian Competition Authority in 2012 for an abuse of dominant position. In the Nordzucker case, two German sugar producers were prosecuted by the Austrian Competition Authority for a breach of EU and Austrian competition law by engaging in a cartel based on illegal information exchange about the sugar market in Austria. The German authority had previously found the breach of EU and German competition law based on the same facts and imposed a fine of 195,5 million euros on one company.

Prohibiting double jeopardy emerges as a supra-conventional standard of procedure and such protection is envisaged. Examples include Article 50 of the Charter, Article 4§1 of the additional protocol N°7 of the European Convention on Human Rights, Article 14-7 of the United Nations Pact on Civil and Political Liberties, as well as Article 54 of the application Convention of the Schengen Treaty. However, the material content of this principle has been applied inconsistently under European law (see, e.g. , cases C-373/14P Toshiba and C-524/15 Menci). The Bpost and Nordzuker judgments have confirmed a wider application of the principle of no double jeopardy. As per Article 52(1) of the Charter, the ne bis in idem principle may be overridden, exceptionally, only if the decisions in question (i) respect the essential legal principles; (ii) are strictly necessary; and (iii) respond to objectives of general interest.

The CJEU has held that a company may also be punished for an infringement of competition law where, on the same facts, it has already been the subject of a final decision for failure to comply with sectoral rules. However, such double punishment is subject to the following cumulative conditions:

  1. There are clear and precise rules that make it possible to predict which acts or omissions are liable to be subject to such duplication;
  2. There is coordination between the two competent authorities;
  3. The two sets of proceedings are conducted in a sufficiently coordinated manner within a proximate timeframe; and
  4. The overall penalties imposed must correspond to the gravity of the infringements.

Similarly, the CJEU did not oppose to the possible establishment of a competition law infringement in one Member State where the conduct occurred, even when the same conduct has already resulted in a final decision in another Member State. The duplication of proceedings based on the territorial scope can only be pursued where the same facts have anticompetitive objects or effects in the relevant Member States. In other words, the second Member State cannot base its infringement decision on anticompetitive object or effect in the first Member State. The companies that have participated in a national leniency program and have consequently not been fined in the first Member State can still benefit from the protection against double jeopardy – as it is not a prerequisite for the protection that they have been subject to a fine.

Should the authorities not adhere to the above conditions, they risk infringing the prohibition against double jeopardy.

It will ultimately be for the national courts to decide whether, in the Bpost and Nordzuker cases, the authorities did not infringe the ne bis in idem principle and the companies can rely on it as defence. The CJEU guidance imposes some limits on unlimited prosecutions by the authorities based on the same facts. At the same time, the protection against double jeopardy is not a blanket defence that the companies can rely on.