Opinion of Advocate General Bobek delivered on 2 September 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:680
• Date: 02 September 2021
• Celex Number: 62020CC0117
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 2 September 2021(1)

Case C‑117/20

bpost SA

v

Autorité belge de la concurrence

(Request for a preliminary ruling from the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium))

(Reference for a preliminary ruling – Article 50 of the Charter of Fundamental Rights of the European Union – Principle ne bis in idem – Fine imposed by a national postal regulator – Fine imposed by a national competition authority)

I. Introduction

1. Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’) encapsulates the noble idea of one single legal space. Within that space, no one shall be tried or punished again in criminal proceedings for the same offence. Protection previously granted at Member State level has been elevated to EU level.

2. The implementation of that idea in EU law has been somewhat difficult for a number of reasons. Three of them are worth singling out. First, in a composite legal space such as the European Union, be it horizontally (Member States – Member States) or vertically (Member States – European Union), the practical implementation of that idea results in an enhanced level of complexity. There are simply too many variables. Second, new segments, layers, and sub-fields of regulation are being introduced. New bodies or authorities responsible for their supervision are being created. This sometimes leads to an overlap in mandates and confusion as to where the competence to investigate and punish lies. Third, there is the ‘Engel-multiplication’. The rather expansionist criteria, originally coined by the European Court of Human Rights (‘the ECtHR’) to broaden its jurisdiction under Article 6(1) of the European Convention of Human Rights (ECHR), are now also being used in other contexts. That includes the assessment of what constitutes a ‘criminal offence’ for the purposes of Article 50 of the Charter. As a result, many rules and procedures that were in the past perceived on a conceptual level as being administrative, are now considered to be criminal.

3. The combination of those three factors has vastly expanded the set of procedures and sanctions to which the principle ne bis in idem has become applicable. Finding a reasonable balance between the protection of fundamental rights and the safeguarding of legitimate interests when punishing certain types of behaviour has thus proven difficult over the years. The case-law of this Court, developed through interactions with the ECtHR, is marked by fragmentation and partial inconsistency. It can hardly be characterised as (ne) bis in idem, but rather by now a quater or quinquies in idem, while uncertainty continues to plague bis as well.

4. The present case is yet another illustration of those uncertainties. The company bpost, the historical provider of postal services in Belgium, was successively fined by two Belgian authorities. First, the national sectoral regulator for postal services concluded that the rebate system applied by bpost in 2010 discriminated against some of bpost’s clients. That decision was annulled by the national court, following a request for a preliminary ruling to this Court. (2) The situation at issue did not amount to discrimination under the legislation relating to the postal sector. Second, bpost was fined by the national competition authority (‘NCA’) for an abuse of a dominant position due to application of the same rebate system between January 2010 and July 2011.

5. bpost disputes the legality of that second set of proceedings, relying on the principle ne bis in idem. After two rounds of judicial review, the dispute in the main proceedings is pending once again before the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium). That court asks, in essence, whether the legality of the proceedings before the NCA must be assessed in the light of the definition of idem developed in competition case-law, as confirmed in Toshiba, (3) or whether it should be examined under the limitation of the rights clause and the test established in Menci, Garlsson and Di Puma – a set of judgments delivered on the same day (‘the Menci case-law’). (4)

6. Like the referring court, I have difficulty in seeing how the judgments in Toshiba and Menci could be reconciled and applied in one and the same proceedings. In my view, the present case, together with parallel proceedings in Nordzucker, (5) offers the Court a unique opportunity to provide national courts with coherent guidance on what the protection under Article 50 of the Charter should be, as opposed to what is currently a fragmented and partially contradictory mosaic of parallel regimes.

II. Legal framework

A. ECHR

7. Article 4 of Protocol No 7 to the ECHR reads:

‘1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.’

B. EU law

8. Article 50 of the Charter, entitled ‘Right not to be tried or punished twice in criminal proceedings for the same criminal offence’, states that: ‘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.’

9. 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’) (6) states as follows:

‘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.’

10. Article 102 TFEU provides:

‘Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.

Such abuse may, in particular, consist in:

…

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

…’

11. Article 12 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (7) provides:

‘Member States shall take steps to ensure that the tariffs for each of the services forming part of the provision of the universal service comply with the following principles:

…

– tariffs shall be transparent and non-discriminatory,

– whenever universal service providers apply special tariffs, for example for services for businesses, bulk mailers or consolidators of mail from different users, they shall apply the principles of transparency and non-discrimination with regard both to the tariffs and to the associated conditions. The tariffs, together with the associated conditions, shall apply equally both as between different third parties and as between third parties and universal service providers supplying equivalent services. Any such tariffs shall also be available to users, in particular individual users and small and medium-sized enterprises, who post under similar conditions.’

C. Belgian law

12. Article 3 of the loi sur la protection de la concurrence économique (Law on the protection of economic competition), coordinated on 15 September 2006, contains provisions similar to those of Article 102 TFEU.

13. Article 12 of Directive 97/67, as amended by Directive 2002/39/EC of 10 June 2002 (OJ 2002 L 176, p. 21) was transposed into Belgian law by Article 144ter of the loi du 21 mars 1991 portant réforme de certaines entreprises publiques économiques (Law of 21 March 1991 on the reform of certain public commercial undertakings).

III. Facts, national proceedings and the questions referred

14. bpost is the historical postal service provider in Belgium. It offers, amongst other services, the collection, sorting, transport and delivery of postal items to addressees. These services are offered to the general public and to two particular categories of clients, bulk mailers (‘senders’) and consolidators.

15. Senders are end consumers of postal distribution services. They determine the message to be sent and initiate requests for mailings. The consolidators supply senders with routing services upstream of the postal distribution service. Those services include preparing mail before handing it on to bpost (sorting, printing, placing in envelopes, labelling, addressing and stamping) and the delivery of the mailings (collection from the senders, sorting and packaging of the postal items in mailbags, transport and delivery to sites designated by the postal operator).

16. In the past, different types of tariff were applied by bpost, including special tariffs consisting in rebates granted to certain clients, applicable to both senders and consolidators who generated a certain turnover. The most common contractual rebates were quantity discounts, granted according to the volume of mail items generated during a reference period, and ‘operational discounts’...