On April 3, 2019, the Court of Justice ruled that a national competition authority can in a single decision fine a company for infringing both EU and national competition law, without infringing the principle of ne bis in idem (double jeopardy).[1]
On October 25, 2007, the Polish Competition Authority (“PCA”) found the Polish insurance provider Powszechny Zakład Ubezpieczeń na Życie S.A. (“PZU”) to have abused its dominant position in the market for group life insurance for employees in Poland. PZU’s policies included a provision that conditioned policy cancellations on the consent of 75% of the employees, which made it excessively difficult for employees to switch insurance providers. The PCA found that in doing so, PZU had infringed both EU and national competition law, and imposed two fines on PZU, i.e., €7.7 million for infringing national competition law from May 2001 until October 2007, and €4.3 million for infringing Article 102 TFEU from Poland’s accession to the EU on May 1, 2004 to October 2007.
PZU appealed the decision to the Supreme Court of Poland, following dismissals by a regional court and the court of appeals, claiming that by fining it twice for the same infringement, the PCA had violated the double jeopardy prohibition.[2] Responding to a request for a preliminary ruling from the Supreme Court of Poland, the Court of Justice ruled that a national competition authority can fine a company in a single decision for an infringement of both EU and national competition law, provided the fine is proportional to the infringement.[3]
The Court of Justice referred to the well-established principle that EU and national competition law apply in parallel, and explained that a Member State’s competition authority is required to assess the applicability of Article 102 TFEU in parallel to the national law equivalent, provided the Commission has not opened an Article 102 TFEU investigation into the same conduct.[4] The double jeopardy prohibition, which is meant to ensure legal certainty and fairness, specifically prevents a repetition of proceedings, i.e., new proceedings being brought against a company for conduct that has been dealt with in an earlier and final decision. The Court of Justice explained that parallel application of Article 102 TFEU and its national law equivalent are part of a single procedure in this case and thus entail no such repetition of proceedings.[5] As regards the penalty imposed for a parallel application of EU and national competition law, the Court of Justice found that any such penalty must be proportionate to the nature of the infringement, which would be for the national court to determine.[6]
[1] Powszechny Zakład Ubezpieczeń na Życie S.A. (Case C-617/17) EU:C:2019:283.
[2] The principle of ne bis in idem (double jeopardy) is enshrined in Article 50 of the Charter of Fundamental Rights of the European Union and Article 3 of the Council Regulation (EC) No. 1/2003.
[3] Powszechny Zakład Ubezpieczeń na Życie S.A., para. 39.
[4] Ibid., paras. 25–26.
[5] Ibid., paras. 28 and 32.
[6] Ibid., para. 38.