On 22 March 2022, the Grand Chamber of the Court of Justice of the European Union delivered its answers to the two preliminary questions referred to it by the Brussels Court of Appeal on the interpretation of the non bis in idem principle (case C-117/20). In its questions, the referring court asked, in essence, whether this principle precludes a national competition authority to prosecute and sanction an undertaking where, on the same facts, that undertaking has already been the subject of a final decision following proceedings relating to an infringement of sectoral rules.
First question – The scope of application of the principle
The first question sought to determine whether, in cases where a person is pursued and sanctioned, in respect of the same facts, for infringing both a sectoral legislation and competition law, it should apply the Toshiba case-law (making the application of the non bis in idem principle in competition law matters subject to the threefold condition of identity of facts, offender and legal interest protected) or if it should apply the Menci case-law (making the application of this principle in other areas of EU law subject to a twofold condition of identity of facts and offender only).
The Court of Justice clarifies that the non bis in idem principle applies where there is a twofold identity of facts and offender only. Accordingly, the Court expressly sets aside its Toshiba case-law and unifies the scope of application of the non bis in idem principle across all areas of EU law.
Second question – The limitations to the principle
With its second question, the referring court asked for clarification under which conditions limitations to the non bis in idem principle can be justified under Article 52 of the Charter of Fundamental Rights.
In answering that question, the Court of Justice starts with underlining that, for a limitation to be justified, it must be provided for by law and respect the essence of those rights and freedoms. In this respect, it considers that a duplication of proceedings and penalties respects the essence of Article 50 of the Charter, provided that the national legislation does not allow for proceedings and penalties in respect of the same facts on the basis of the same offence or in pursuit of the same objective but provides for the possibility of a duplication of proceedings and penalties under different legislation.
Moreover, limitations on fundamental rights should be necessary and genuinely meet objectives of general interest or the need to protect the rights and freedoms of others. In this context, a duplication of proceedings and penalties under sectoral rules and competition law does indeed meet an objective of general interest as these two sets of legislation pursue distinct legitimate objectives.
As regards compliance with the principle of proportionality, the Court of Justice finds that it is legitimate for authorities to choose complementary responses to certain conducts through different procedures forming a coherent whole so as to address different aspects of a social problem. However, the accumulated legal responses must not constitute an excessive burden for the person concerned.
Finally, the Court of Justice explains that the assessment of whether the duplication of proceedings and penalties is strictly necessary must be undertaken by looking at whether there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication and to predict that there will be coordination between the different authorities; whether the two sets of proceedings were conducted in a sufficiently coordinated manner and within a proximate timeframe; whether the first penalty imposed is taken into account in the assessment of the second penalty, thereby ensuring that the overall penalties correspond to the seriousness of the offence.
Looking at the case at hand, the Court of Justice considers that the requirement for “coordination between the competent authorities” is respected when the national legislation provides for cooperation and exchange of information between the two authorities; that the condition of “proximate timeframe” is fulfilled when the two authorities conducted their proceedings at least party in parallel and adopted their decisions within a year and a half of each other; and that the fact that the second fine is larger than the first one does not in itself show that the duplication was disproportionate.
Please contact Pierre de Bandt or Jeroen Dewispelaere for further information about this case and/or for general legal advice relating to competition law.