On 22 March 2022, the European Court of Justice (“ECJ”) issued two separate preliminary rulings – Bpost and Nordzucker – which clarify how the protection against double jeopardy (“non bis in idem principle”) should be applied in instances where an identical competition law infringement is sanctioned in parallel investigations, either by different regulatory authorities of the same EU Member State or by multiple national competition authorities (“NCAs”) from different EU Member States.

The key takeaways from the two judgments are as follows:

  • the non bis in idem principle applies to competition law due to the criminal aspect embedded in the relevant administrative penalties;
  • the non bis in idem principle only applies if the facts are identical – a mere reference to a fact in a decision is not sufficient to demonstrate that an authority has ruled on that element;
  • different national authorities can impose fines for an identical infringement if the legislation on which they rely pursues complementary objectives;
  • the non bis in idem principle also applies to situations where an NCA has granted leniency to a company such that only a declaratory finding infringement (without fine) can be made.

Background

In Bpost, the ECJ  examined whether the Belgian NCA could impose a fine on Bpost for an abuse of a dominant position (through the application of a rebate system) even though Bpost had already been fined for the same rebate system by the Belgian postal regulator.

In Nordzucker, following leniency applications from Nordzucker, the Austrian and German NCAs initiated investigations against Nordzucker and Südzucker regarding an agreement allocating sales areas on the sugar market from 2004 to 2007. In 2014, the German NCA fined both companies for having infringed competition law. In its decision, the German NCA referred to a telephone conversation during which representatives from both Nordzucker and Südzucker had also discussed the Austrian market. As a result of the German NCA’s decision which incorporated references to the parties’ discussions concerning the Austrian market, the Vienna Higher Regional Court dismissed the action lodged by the Austrian NCA.  The court held that the agreement concluded during the relevant telephone conversation had already been sanctioned by another NCA.

The Brussels Court of Appeal and the Austrian Supreme court each referred requests for preliminary ruling regarding the application of the non bis in idem principle to the ECJ.

Judgments

Identity of material facts: In both judgments, the ECJ reasserts that competition law – like any other area of EU law – is subject to the protection against double jeopardy. This non bis in idem principle is subject to two conditions:

  • there is a prior final decision (the “bis” condition); and
  • the subsequent proceedings/decisions concern identical facts (the “idem” condition).

Regarding the identity of facts, the ECJ confirms that the non bis in idem principle does not apply if the facts are merely similar but not identical. National courts have to determine whether the facts underlying the separate sets of proceedings initiated under sectoral rules and competition law are identical.

Further, a reference to a factual element concerning the territory of another Member State in an infringement decision (as occurred in the German NCA’s Nordzucker decision) does not permit an inference that this factual element gave rise to the proceedings or was found by the issuing authority to be one of the constituent elements of that infringement. It is instead necessary to ascertain whether that other authority’s infringement decision actually relies on and sanctions the relevant factual element.

Parallel proceedings under different sets of legislation: Article 50 of the Charter of Fundamental Rights of the European Union (“CFREU”) protects against double jeopardy. Article 52 CFREU permits certain limitations to that principle if they are necessary, genuinely meet objectives of general interest, and are provided for by law in accordance with the principle of proportionality. Parallel proceedings regarding the same infringement are therefore possible if the different sets of legislation underlying the proceedings pursue distinct, legitimate, and complementary objectives (e.g. market liberalisation and free competition on that market).

For example, in Bpost the postal regulator sanctioned an infringement of  EU secondary law which liberalised a specific market, and the Belgian Competition Authority sanctioned the same infringement under competition law. This would only be permissible if the two proceedings regarding the same infringement pursue complementary aims. Sanctioning identical anti-competitive behavior is therefore not permitted where NCAs initiate multiple proceedings under Regulation 1/2003 because they pursue the same objective: ensuring that competition in the internal market is not distorted by agreements or concerted practices.

Granting leniency does not preclude the application of the non bis in idem principle: By the same token, the non bis in idem principle also applies to proceedings in which only a declaratory finding of that party’s infringement of competition law can be made due to the participation of a party in the national leniency programme. 

Next steps

The preliminary reference procedure safeguards the uniformity and coherent development of EU law. As such, the ECJ’s advice in both preliminary rulings merely addresses the questions of law referred to by the two national courts – it does not judge the outcome of the cases. The referring national courts will therefore now apply the principles outlined by the ECJ to their respective cases and issue corresponding judgments.

Photo of Johan Ysewyn Johan Ysewyn

Johan Ysewyn advises on all aspects of EC, international and Belgian antitrust law, including merger control, compliance, cartel and leniency issues and abuse of dominance cases.  He acts as the head of the firm’s EU Competition group, working from our Brussels and London…

Johan Ysewyn advises on all aspects of EC, international and Belgian antitrust law, including merger control, compliance, cartel and leniency issues and abuse of dominance cases.  He acts as the head of the firm’s EU Competition group, working from our Brussels and London offices.

Mr. Ysewyn’s practice has a strong focus on global and European cartel investigations and he has represented companies from a range of sectors.  He is also one of the leading experts on EU state aid issues, working both for beneficiaries and governments.

He regularly speaks at conferences such as GCR, IBC, IBA, Chatham House and other industry events and has written for numerous legal publications.  He is recognised as a leading competition lawyer by Chambers, Legal 500 and other leading industry guides.  Mr. Ysewyn has acted as a non-governmental advisor to the International Competition Network (ICN).