Towards Greater Coherence on Ne Bis in Idem: The bpost Case

Victor Davio and Ilaria Gambardella*

*Victor is a PhD Researcher at the Institute for European Law, KU Leuven and Assistant in Constitutional Law at University Saint-Louis Brussels and Ilaria is Teaching Assistant and Research Associate at the Institute for European Law, KU Leuven. They are part of the RESHUFFLE research project hosted by KU Leuven under the direction of Prof. Elise Muir, and supported by the European Research Council (European Union’s Horizon 2020 research and innovation programme, grant agreement No 851621).

Photo credit: Jean Housen, via Wikimedia commons

Introduction

The European Court of Justice (ECJ) issued two significant judgments on March 22, 2022: the bpost case (C-117/20) and the Nordzucker case (C‑151/20). Both cases addressed the principle of ne bis in idem, which prohibits double jeopardy, as enshrined in Article 50 of the EU Charter of Fundamental Rights (Charter). This post focuses on the bpost judgment and its contribution to clarifying this complex legal principle.

The ne bis in idem principle, aimed at ensuring legal certainty and fairness in criminal proceedings, is particularly relevant in “dual proceedings.” These occur when a person or entity faces both criminal and administrative actions for the same offense, and the administrative proceedings are considered criminal under the Charter or the European Convention of Human Rights (ECHR).

Historically, applying this principle in the European legal landscape has been fragmented. Within EU law, different interpretations existed across various areas, including competition law. Furthermore, discrepancies arose between the approaches taken by the ECJ and the European Court of Human Rights (ECtHR).

The bpost judgment offers a partial solution to this fragmentation. The ECJ aligns its approach with the ECtHR, particularly the landmark A and B v. Norway judgment (2016), acknowledging the same scope of protection for ne bis in idem across all EU law areas. However, differences remain, as the ECJ, unlike the ECtHR, subjects the ne bis in idem principle to a proportionality test under Article 52(1) of the Charter, as established in the Menci judgment (C-524/15).

The facts of the case

Belgium’s incumbent postal service provider, bpost, was fined twice for a new tariff system implemented in 2010. The Belgian Postal Regulator imposed the first fine for violating non-discrimination rules, while the Belgian Competition Authority imposed the second fine for abusing a dominant market position. Both decisions were annulled by the Brussels Court of Appeal, citing ne bis in idem. Following an appeal, the case reached the ECJ for a preliminary ruling on whether to apply the ne bis in idem principle from competition law or the Menci judgment.

The Opinion of Advocate General Bobek

Advocate General Bobek highlighted the fragmented and incoherent nature of the ECJ’s ne bis in idem case law, describing it as a “mosaic of parallel regimes.” He argued against this fragmentation, emphasizing the need for a unified approach across all EU law areas.

Rejecting the Menci judgment’s proportionality-based approach, Bobek advocated for a procedural interpretation of the ne bis in idem principle. He proposed a “triple identity” test, requiring the same offender, facts, and protected legal interest to trigger the principle and preclude further proceedings.

Applying this test to the bpost case, Bobek suggested that the “triple identity” was not met due to differing protected legal interests. He argued that the Postal Regulator aimed to prevent discrimination, while the Competition Authority focused on anti-competitive practices.

The judgment of the ECJ

The ECJ reiterated that the ne bis in idem principle, enshrined in Article 50 of the Charter, prohibits duplicate proceedings or penalties of a criminal nature for the same acts against the same person.

Applying this principle requires two conditions: a prior final decision and the same facts being addressed. The ECJ clarified that the protected legal interest is irrelevant in determining the “same offense,” aligning its approach across all EU law areas and rejecting the additional criterion used in competition law.

The ECJ then stated that fulfilling these conditions wouldn’t automatically constitute a violation but a limitation of the fundamental right protected by Article 52(1) of the Charter. This limitation could be justified if the duplicate proceedings serve distinct legitimate objectives and are proportionate. Here, the ECJ drew heavily on the ECtHR’s “coherent whole” concept from the A and B v. Norway judgment.

In the bpost case, the ECJ recognized distinct legitimate objectives for both proceedings: liberalizing the postal market and protecting fair competition. Whether the duplication was justified in this specific instance was left for national authorities to determine.

Comments

The bpost judgment signifies progress towards a more coherent and consistent application of the ne bis in idem principle. By aligning its approach with the ECtHR, the ECJ promotes a common understanding of this fundamental right across Europe.

The judgment explicitly embraces the “coherent whole” concept from A and B v. Norway, recognizing that public authorities may legitimately employ complementary legal responses within a coherent framework.

Despite this convergence, differences persist between the ECJ and ECtHR approaches. Notably, the ECJ subjects ne bis in idem to the proportionality test under Article 52(1) of the Charter, unlike the ECtHR’s more absolute stance.

Nevertheless, the bpost judgment brings greater clarity to a previously complex area of EU fundamental rights law. This benefits not only legal practitioners but also national courts navigating the intricate interplay of ECHR, EU, and national fundamental rights systems.