Ne bis in idem

Author Definition

Definition

The ne bis in idem is a criminal law principle under which a person cannot be punished and be subject to several procedures twice for the same facts. In simple terms, the principle pursues to avoid double prosecutions and double punishments.

Commentary

As we can see, there are two dimensions of ne bis in idem. On the one hand, we can find the so-called objective or substantive phase, that is to say, a person cannot be judged and punished twice for the same facts. On the other hand, there is the procedural aspect, which pursues to prevent that a person be subject to several procedures for the same facts.

In competition law, this principle may be applicable when criminal and administrative prosecution coexist (cartel cases). In fact, most of the authorities in charge of the prosecution, investigation and punishment of anticompetitive conducts are administrative bodies not criminal prosecutors or judges, except in cartel cases where there is some intersection between both institutions. The problem arises from the fact that administrative and criminal law authorities may prosecute, investigate and, eventually, decide upon the same facts or the same persons. Therefore, as an expression of administrative law proceedings, the principles of criminal law -being one of them the ne bis in idem- must be applied for establishing these responsibilities.

Nonetheless, it is very infrequent to find cases where prosecutions are considered unlawful on the basis of this principle. Anyway, this dilemma may also be resolved in two ways. The first one is practical: in most cartel cases the economic agent that is condemned differs in the administrative and criminal procedures and thus, the condition called “unity of offender”, required by the ne bis in idem principle, is not fulfilled. Indeed, generally the corporate entity (undertaking) is fined by the competition authority (administrative procedure), whereas the executives or representatives involved in the cartel are accused by criminal prosecutors. The second approach is appealing to the principle under which different liabilities can coexist for the same fact if the assertion of those liabilities responds to different objectives or legal interests protected. In other words, if the punitive ground is different, there is not a violation of ne bis in idem. However, this distinction is not totally clear in the prosecution of cartels. In fact, while competition law pursues the protection of the competitive process and consumer welfare, criminal law pursues a similar objective, that is, to protect the economic order, in a broader sense.

Bibliography

Caravaca, Clavo. “Derecho Antitrust Europeo”, Tomo I, Parte General, La Competencia, Ed. Colex, 2009, p. 620-621.

De La Cuesta, José Luis. “Les compétences criminelles concurrentes nationales et internationales et le principe ‘ne bis in idem”. Rapport général. Dans Revue internationale de droit pénal 2002/3-4 (Vol. 73), pages 673 à 705.

Gomez, Fernanda. “El non bis in idem en el derecho administrativo sancionador. Revisión de sus alcances en la jurisprudencia administrativa” Revista de Derecho de la Pontificia Universidad Católica de Valparaíso, XLIX, 2017, p.101-13.

Mañalich, Juan Pablo. “El principio ne bis in idem frente a la superposición del derecho penal y el derecho administrativo sancionatorio”. Polít. crim. Vol. 9, Nº 18 (Diciembre 2014), Art. 8, pp. 543-563.

Institution Definition

The ne bis in idem principle is laid down in Article 50 of the Charter of Fundamental Rights of the European Union: "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." Transposed to the field of competition law, the European Court of justice stated "that principle thus precludes an undertaking being found liable or proceedings being brought against it afresh on the grounds of anti-competitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged" (ECJ, 14 February 2012, case Toshiba Corporation, C‑17/10, point 940). © European Union

Case Comments

Turkish Competition Authority The Turkish Competition Authority concludes that a major optical company violated its commitments but declines to impose a new fine due to the principle of “ne bis in idem” (EssilorLuxottica)

The Investigation Conducted on EssilorLuxottica S.A. Concluded.* The investigation launched in response to the claim that EssilorLuxottica S.A. violated Article 4 and 6 of the Act no 4054 on the Protection of Competition by its exclusionary practices aimed at obstructing aimed at the (...)

Marco Cappai The Italian Administrative Court requests a preliminary ruling in a €3.7M abuse of dominance case against a ferry operator asking for clarity on the application of general principles of the right of defence and the effectiveness of public enforcement (Caronte & Tourist)

Timely Launch of Antitrust Investigations: The Right of Defence Vis-à-Vis The Effectiveness of Public Enforcement – Are There Any Elephants in the Room? The Word to the CJEU (Case C-511/23)* The contested decision With decision No. 30086 of 29th March 2022, the Italian Competition (...)

European Court of Justice The EU Court of Justice AG Compos proposes that an automobile company should benefit from the ne bis in idem principle to avoid sanctions for unfair practices in Italy, having been penalised in Germany (Volkswagen)

Advocate General’s Opinion in Case C-27/22 | Volkswagen Group Italia and Volkswagen Aktiengesellschaft* According to Advocate General Campos Sánchez-Bordona, Volkswagen cannot be penalised in Italy for ‘Dieselgate’, after having been penalised in Germany, if there has not been sufficient (...)

Alain Ronzano Sanction : The General Court of the European Union clarifies the conditions under which the European Commission may adopt a sanction decision almost 30 years after the first facts without infringing the rights of defence and confirms the sanctions imposed by the latter in the case of the cartel on the Italian concrete reinforcing bar market (Ferriera Valsabbia a.o.)

On November 9, 2022, the European Court of First Instance handed down four judgments in the cases T-655/19 (Ferriera Valsabbia and Valsabbia Investimenti v. European Commission), T-656/19 (Alfa Acciai v. European Commission), T-657/19 (Feralpi v. European Commission) and T-667/19 (Ferriere (...)

Steve Ross, Richard Burton The EU General Court dismisses four appeals against price-fixing decisions which were re-adopted nearly two decades after the initial decision against 11 steel producers (Feralpi / Alfa Acciai / Ferriera Valsabbia / Valsabbia Investimenti / Ferriere Nord)

On 9 November 2022, the General Court dismissed in their entirety appeals lodged by a number of Italian manufacturers against the European Commission’s (“Commission”) re-adopted decision of 2019 in the Reinforcing steel bars cartel case. (T-655/19, Ferriera Valsabbia and Valsabbia (...)

Barbara Monti Sanction: The EU General Court confirms the Commission’s decision to impose sanctions based on a new hearing and respect for the rights of the defence (Ferriera Valsabbia e.a.)

At the end of four particularly detailed rulings, the Court of First Instance reviewed the conditions under which the European Commission can adopt a decision to impose a sanction without infringing the rights of defence or the principle of reasonable time. While twenty years of proceedings (...)

Alain Ronzano Ne bis in idem: The Court of Justice of the European Union confirms and clarifies the scope of the protection conferred by the ne bis in idem principle where competition law is applied in parallel with sectoral regulation (Bpost)

On March 22, 2022, the Court of Justice of the European Union issued two judgments with converging conclusions in two cases raising questions about the application of the ne bis in idem principle in the presence of conflicting decisions issued either by two national competition authorities (...)

Alain Ronzano Ne bis in idem: The Court of Justice of the European Union clarifies the scope of the protection conferred by the ne bis in idem principle in the event of application of the competition rules by two national competition authorities following a leniency procedure (Nordzucker)

On March 22, 2022, the Court of Justice of the European Union issued two judgments with converging conclusions in two cases raising questions about the application of the ne bis in idem principle in the presence of conflicting decisions issued either by two national competition authorities (...)

Francis Donnat Ne bis in idem: The Court of Justice of the European Union clarifies its case law on the ne bis in idem principle with regard to the relationship between sectoral regulation and competition law and with regard to the use in two Member States of the same facts (Bpost) (Nordzucker)

Two references for preliminary rulings from the Belgian and Austrian courts have enabled the Court of Justice to clarify its case law on the application of the ne bis in idem principle in two different situations: on the one hand, with regard to the link between sectoral regulations and (...)

Andreas Reindl, Margot Vogels The EU Court of Justice preliminarily rules that the ne bis in idem principle provides limited protection against sanctions following investigations of the same infringements of competition law (bpost) (Nordzucker)

On 22 March 2022, the European Court of Justice (the “ECJ”) handed down two judgments highlighting that the European Union’s ne bis in idem principle – the equivalent to the protection against double jeopardy – provides only limited protection in competition law proceedings where the same (...)

Pedro Callol The EU Court of Justice rules that the ne bis in idem principle provides limited protection when different Member State jurisdictions investigate the same infringement (Bpost) (Nordzucker)

In the Bpost case, two national authorities fined Bpost €2.3 million for applying a rebate system that discriminated against some of Bpost’s clients; second, the Belgian Competition Authority fined 37.4 million for abuse of dominant position because of the same rebate system. According to (...)

Patrick Harrison, Monika Zdzieborska, Bethany Wise The EU Court of Justice clarifies the scope of protection afforded by the principle of ne bis in idem when different Member State jurisdictions investigate the same infringement (Bpost) (Nordzucker)

This article has been nominated for the 2023 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 22 March 2022, the Court of Justice of the European Union (CJEU) issued judgments in Cases C-117/20 bpost ( bpost ) and C-151/20 Nordzucker and Others ( (...)

Marie Cartapanis Countervailing Buyer Power: The French Competition Authority sanctions a company for foreclosing the molasses supply market for Réunion’s distilleries (Tereos Océan Indien)

On Reunion Island, Tereos Océan Indien [hereafter "TOI"], a subsidiary of the Tereos group, owns the only two sugar factories on Reunion Island, namely the Sucrière de La Réunion, also known as the "Sucrerie du Gol", and the Sucrerie de Bois Rouge. The company is also the only supplier of (...)

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