On 22 March 2022, the European Court of Justice (ECJ) offered companies investigated for the same conduct by several authorities clarity on the core principles of the application of the non bis in idem (double jeopardy) protection by its rulings in cases C-151/20, Nordzucker and C-117/20, Bpost.
The ECJ confirmed that, to meet objectives of general interest, a duplication of proceedings may be justified where the proceedings pursue complementary aims. The same conduct can therefore lead to separate sectoral and competition law investigations, but only if the investigations are sufficiently coordinated and are conducted within a proximate timeframe, and the overall penalties match the seriousness of the offences (Bpost). Further, in overlapping antitrust investigations, only one authority should actually rule on a factual element in order to make a finding of an infringement and to establish liability, even if both authorities find it relevant (Nordzucker).
Enshrined in the Charter of Fundamental Rights of the European Union, the non bis in idem principle prohibits a duplication both of proceedings and of penalties of a criminal nature for the same conduct and against the same person. In Bpost and Nordzucker, national courts referred questions to the ECJ related to the limits of the application of this principle in competition law cases.
Factually, in Bpost, the company was successively fined by two national authorities for the implementation of a discriminatory rebate system: first by the postal regulator and second by the competition authority. After the first fine was annulled in court, Bpost argued that the second fine breached the non bis in idem principle. In Nordzucker, a telephone conversation during which representatives of two competitors discussed the Austrian sugar market was mentioned both in a fining decision issued in Germany and made the object of subsequent Austrian proceedings covered by a leniency application from Nordzucker. Austrian courts had to assess whether the latter proceedings were barred by the non bis in idem principle.
Non bis in idem principle
In Bpost, the ECJ found that the non bis in idem principle does not preclude the duplication of proceedings for the same conduct under different legislation, sectoral and antitrust, pursuing distinct legitimate objectives. Clear and precise rules must, however, allow companies to predict which conduct is liable to be subject to duplication and whether the two competent authorities will coordinate their investigations. The two proceedings must further have been brought within a proximate timeframe and in a sufficiently coordinated manner. Regarding penalties, the first penalty imposed must be taken into account when setting the second penalty, so that the overall penalty matches the seriousness of the offence.
In Nordzucker, the ECJ found that the non bis in idem principle also does not preclude one Member State’s competition authority from bringing proceedings against conduct affecting its relevant territory, even though the conduct (or part of it) was already mentioned in a previous final decision of another Member State’s competition authority. For the non bis in idem principle to apply, the first authority must have actually ruled on that factual element in order to make out the infringement, rather than just mentioning it in the decision. Further, the principle applies even to proceedings where a fine is not imposed under the leniency programme.
For companies subject to several proceedings, either by parallel Member State competition authorities or by sectoral and competition authorities, the judgments helpfully clarify to what extent duplication of proceedings can occur. The limitation on the overall penalties for sectoral and competition law proceedings, as well as the requirement of temporal proximity and coordination, are especially helpful as the interplay between competition law and sectoral regulation at an EU level grows in importance. It remains to be seen how these judgments will be applied in practice, especially in view of the increase in EU regulation and competition law enforcement of tech companies.
This article was published in the Competition Newsletter of April 2022. Other articles in this newsletter:
- Game on for gatekeepers: Digital Markets Act finalised
- ACM jumps on gun-jumping bandwagon
- The ECN+ Directive implemented in Belgium and introduction of merger filing fees