The principle ne bis in idem according to thejudgement of the Court of Justice of the European Union 

In Case C‑27/22

Article 50 of THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (‘the Charter‘)¹

Article 52 (1) of the Charter²

Article 54 of THE CONVENTION IMPLEMENTING THE SCHENGEN AGREEMENT of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the  French Republic on the gradual abolition of checks at their common borders (the ‘CISA‘)³

By decision of 4 August 2016 (‘the decision at issue’), the Autorità Garante della Concorrenza e del Mercato (Competition and Markets Authority, Italy; ‘the AGCM’) imposed a fine of EUR 5 million on Volkswagen Group Italia SpA (‘VWGI’) and Volkswagen Aktiengesellschaft (‘VWAG’) jointly and severally for having implemented unfair commercial practices for the purposes of the Consumer Code.

Those unfair commercial practices concerned the marketing in Italy, from 2009, of diesel vehicles in which software had been installed allowing the measurement of emission levels of nitrogen oxides (NOx) from those vehicles to be distorted during pollutant emissions inspection tests in the context of the ‘type approval’ procedure whereby an approval authority certifies that a type of vehicle satisfies the relevant administrative provisions and technical requirements. In addition, VWGI and VWAG were accused of having disseminated promotional messages which, notwithstanding the installation of the abovementioned software, contained information relating, first, to the attention allegedly paid by those companies to the level of pollutant emissions and, second, to the alleged compliance of the vehicles in question with the statutory provisions on emissions.

WGI and VWAG brought an action against the decision at issue.

While that action was pending before that court, the Public Prosecutor’s Office of Braunschweig (Germany) (‘the German Public Prosecutor’s Office’), by decision of 13 June 2018 (‘the German decision’), imposed a fine of EUR 1 billion on VWAG on the basis of proceedings concerning the manipulation of exhaust gas from certain diesel engines of the Volkswagen group, in respect of which investigations had shown that the emissions requirements had been circumvented. That decision stated that part of that amount, corresponding to a sum of EUR 5 million, penalised the conduct referred to in the abovementioned decision and that the remainder of that amount was intended to deprive VWAG of the economic advantage which it had derived from the installation of the software.

The German decision became final on 13 June 2018, since VWAG paid the fine prescribed therein and formally waived its right to bring an action against that decision.

In the proceedings pending before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio), VWGI and VWAG alleged, inter alia, that the decision at issue had subsequently become unlawful on the ground of infringement of the principle ne bis in idem referred to in Article 50 of the Charter and in Article 54 of the CISA.

By judgment, that court dismissed the action brought by VWGI and VWAG on the ground, inter alia, that the principle ne bis in idem does not preclude the fine prescribed by the decision at issue from being maintained.

VWGI and VWAG brought an appeal against that judgment, the referring court.

The Court of Justice of the European Union  (‘the Court‘) ruled

1. Article 50 of the Charter must be interpreted as meaning that an administrative fine provided for under national legislation, which is imposed on a company by the competent national consumer protection authority for unfair commercial practices, although classified as an administrative penalty under national legislation, constitutes a criminal penalty, for the purposes of that provision, where it has a punitive purpose and has a high degree of severity.
2. the principle ne bis in idem enshrined in Article 50 of the Charter must be interpreted as precluding national legislation which allows a fine of a criminal nature imposed on a legal person for unfair commercial practices to be maintained where that person has been the subject of a criminal conviction in respect of the same facts in another Member State, even if that conviction is subsequent to the date of the decision imposing that fine but became final before the judgment in the judicial proceedings brought against that decision acquired the force of res judicata.
3. Article 52(1) of the Charter of Fundamental Rights of the European Union must be interpreted as authorising the limitation of the application of the principle ne bis in idem, enshrined in Article 50 of that charter, so as to permit a duplication of proceedings or penalties in respect of the same facts, provided that the conditions laid down in Article 52(1) of the abovementioned charter, as defined by the case-law, are satisfied, namely (i) that such duplication does not represent an excessive burden for the person concerned, (ii) that there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication, and (iii) that the sets of proceedings in question have been conducted in a manner that is sufficiently coordinated and within a proximate timeframe.

1. 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. ↩︎
2. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. ↩︎
3. A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party. ↩︎