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.

This article is being reviewed by the Editors of the Dictionary.

Author

Quotation

Enrique Vergara Vial, Ne bis in idem, Global Dictionary of Competition Law, Concurrences, Art. N° 86490

Visites 9162

Publisher Concurrences

Date 1 January 1900

Number of pages 500

 

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

 
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