On September 2, 2021, Advocate General (“AG”) Bobek issued his opinions on two preliminary ruling requests, Bpost[1] and Nordzucker (the “Opinions”),[2] recommending to harmonize the principle of ne bis in idem—otherwise known as the double jeopardy test—in the EU, as it applies to all branches of EU law. AG Bobek suggested that application of the ne bis in idem principle should be based on a “triple identity” test: namely, of the offender, the relevant facts, and the protected legal interest.[3]

The ne bis in idem principle

The principle of ne bis in idem is laid down in Article 50 of the EU Charter of Fundamental Rights (the “Charter”) as a fundamental EU law principle.[4] Its purpose is to prevent the same defendant from being tried or punished twice for the same offence and facts for which a final decision has been previously handed down.[5]

Relevant case law suggests that the prohibition of double jeopardy applies in competition law cases if, between two cases (provided that a final decision on one of them has been issued), their facts, the offender, and the legal interest protected are the same.[6] But this principle has been interpreted more broadly in matters outside of competition law.[7] AG Bobek sought to unify these varied approaches with other areas of EU law through the Bpost and Nordzucker Opinions.[8] AG Bobek also recommended that the Court provide guidance to Member States on “what is currently a fragmented and partially contradictory mosaic of parallel regimes”[9] related to the ne bis in idem principle.

This is because of a set of judgments[10] allowing for the duplication of proceedings and penalties under specific circumstances, which sits with difficulty with the “triple identity” ne bis in idem test.

Background and AG Bobek’s Opinions

Both the Belgian regulator for postal services and the Belgian national competition authority (“NCA”) fined Bpost for the same rebate scheme. Bpost challenged the legality of the second set of proceedings, claiming the ne bis in idem principle should apply. The Brussels Court of Appeal ultimately sought guidance from the Court of Justice on the interpretation and application of the double jeopardy test to sectoral and competition law proceedings.[11]

Nordzucker concerned parallel Article 101 TFEU proceedings by the German and Austrian NCAs for partitioning the markets for industrial sugar. The Austrian Supreme Court requested a preliminary ruling from the Court of Justice to clarify the ne bis in idem principle as to whether it applies to parallel or subsequent competition law proceedings in different Member States for the same conduct.[12]

In both cases, AG Bobek suggested that a unified ne bis in idem test should apply in all branches of EU law, which would solve the currently fragmented guidance resulting from the EU Courts’ case law.[13] The test, in his view, should take into account three factors: the identity of the offender, the relevant facts, and the protected legal interest. AG Bobek emphasized that the protected legal interest prong underpins the ne bis in idem analysis, like a “chameleon” for all branches of EU law.[14]

According to AG Bobek, a legal interest is “the societal good or social value that the given legislative framework or part thereof is intended to protect and uphold.”[15] He used the example of a violent assault resulting in an individual’s death. The protected legal interest is the “life and bodily integrity of another person,” regardless of whether national law defines the act as murder, manslaughter, or serious bodily harm resulting in death.[16]

On this basis, AG Bobek noted that in Bpost, the sectoral and competition law proceedings were protecting different legal interests. While the sectoral proceedings were aimed at liberalizing the internal market for postal services, the competition law proceedings were aimed at protecting competition within the internal market.[17] But in Nordzucker, AG Bobek noted that where the competition authorities of two Member States apply Article 101 TFEU and the corresponding provision of national law, it appears that they protect the same legal interest.[18]

AG Bobek further suggested that the Court of Justice should also consider whether the “temporal and geographical scope of the subject matter of both proceedings is the same.”[19] It is therefore also relevant for the application of the ne bis in idem principle that the German NCA in the first proceeding considered the conduct in Austria.[20]

A single test in future proceedings?

It remains to be seen whether the Court of Justice will follow the approach proposed by AG Bobek.

As AG Bobek notes, the Court is presented with “a unique opportunity to provide national courts with coherent guidance” on the ne bis in idem principle.[21] In the context of increasing sectoral regulation in the EU, which co-exists with other EU law branches, shedding light on the double jeopardy test would serve as a step towards legal certainty. And the inner legislator of many legal minds could root for a “legal interest” prong to ensure that all legal interests are sufficiently protected.

[1] Bpost (Case C-117/20), Opinion of Advocate General Bobek, EU:C:2021:680 (“Bpost”).

[2] Nordzucker and Others (Case C-151/20), Opinion of Advocate General Bobek, EU:C:2021:681 (“Nordzucker”).

[3] Bpost, para. 133; Nordzucker, para. 32.

[4] Charter of Fundamental Rights of the European Union, OJ 2000 C 364/01, Article 50: “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.”

[5] The Charter further clarifies that the principle is also applicable to Member States when they implement EU law—hence including competition law. See, Charter of Fundamental Rights of the European Union, OJ 2000 C 364/01, Article 51(1).

[6] See, Toshiba Corporation and Others (Case C-17/10) EU:C:2012:72, para. 97; Aalborg Portland and Others v Commission (Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P, and C-219/00 P) EU:C:2004:6, para. 338; Slovak Telekom (Case C-857/19) EU:C:2021:139, para. 43. As EU and national competition law apply in parallel, this principle does not prevent national competition authorities from fining an undertaking for the same conduct on the basis of both national and EU competition law. See also, Wilhelm and Others (Case C-14/68) EU:C:1969:4, paras. 3–9.

[7] The European Court of Human Rights does not require that the legal interest protected be the same between two cases for the double jeopardy prohibition to apply. See, e.g., Sergey Zolotukhin v Russia, CE:ECHR:2009:0210JUD001493903, paras. 36–37, and 81–82 (“the approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual”).

[8] Bpost, para. 51 (“the criterion of legal interest is only well established in the abstract. It has never been applied in practice. The intra-Union competition law cases that the Court has so far dealt with have involved, in the Court’s view, different acts. As a result, the Court has never actually explained in any great depth how the protected legal interest should be assessed.”).

[9] Bpost, para. 6.

[10] See, Menci (Case C-524/15) EU:C:2018:197, paras. 41–48; Garlsson Real Estate and Others (Case C-537/16) EU:C:2018:193, paras. 43– 50; Di Puma and Zecca (Cases C-596/16 and C-597/16) EU:C:2018:192, para. 42.

[11] Bpost, paras. 14–33.

[12] Nordzucker, paras. 9–20.

[13] Bpost, paras. 95 and 122 (“[…] agree with the proposition that ‘the crucial importance of the ne bis in idem principle as a founding principle of EU law which enjoys the status of a fundamental right means that its content must not be substantially different depending on which area of law is concerned’ ”).

[14] Bpost, paras. 92 and 129.

[15] Bpost, para. 136.

[16] Bpost, para. 140.

[17] Bpost, paras. 160–162.

[18] Nordzucker, paras. 44– 58 (“I do not believe that the mere (quantitative) difference in the territorial scope of the same infringement, and thus of the given rule, is per se indicative of a (qualitative) difference in the legal interest”; “when two national competition authorities then apply the same EU law provision, namely Article 101 TFEU, with regard to which they are precluded from deviating at national level, then surely the specific protected legal interest pursued by both NCAs must also be identical”).

[19] Nordzucker, paras. 87 and 96 (“The fact that a national competition authority took into account extraterritorial effects of a given anticompetitive conduct in an earlier decision, provided that it was entitled to do so under national law, is relevant for the examination of the applicability of the principle ne bis in idem in the subsequent proceedings”).

[20] Nordzucker, paras. 79–87. AG Bobek noted, in addition, that the ne bis in idem principle not only prevents the imposition of a second fine, but also the initiation of a second set of proceedings for the same conduct. It therefore also applies to proceedings regarding leniency programs, even if they do not result in a fine. See Nordzucker, paras. 88–95.

[21] Bpost, para. 6.