Limitations of the Transnational ne bis in idem Principle in EU Law

• Date: 27 March 2023
• Year: 2023
• Author: PD Dr. Laura Neumann
• Pages: 101
• DOI: https://doi.org/10.30709/eucrim-2023-003

I. Previous Relevant Case Law

To date, the Court of Justice of the European Union (ECJ) has recognised two kinds of limitations of the ne bis in idem guarantee as meeting the conditions set out by Art. 52 para. 1 CFR.

The first group of cases concerns limitations based on the Convention implementing the Schengen Agreement (CISA), which is a sui generis act of EU law of the same hierarchical order as secondary Union law.¹ In the Spasic judgment, the ECJ acknowledged that the enforcement condition enshrined in Art. 54 CISA constitutes a limitation of the individual right granted by Art. 50 CFR within the meaning of Art. 52 para. 1 CFR.² Furthermore, in MR, decided on 23 March 2023, the Court also recognised Art. 55 para. 1 lit. b) CISA as a valid limitation of the fundamental right guaranteed by Art. 50 CFR.³

A second group of cases concerns possible justifications for limitations of the intra-state ne bis in idem guarantee provided for by national legislation. In this regard, the ECJ made important specifications to the criteria set out in Art. 52 para. 1 CFR in Menci⁴ and Garlsson Real Estate⁵, which it further elaborated in BV⁶ and in the bpost case⁷. These specifications will be discussed in detail in Section III.

The pending Case C-27/22 (Volkswagen Group Italia and Volkswagen Aktiengesellschaft) neither concerns an exception to the inter-state ne bis in idem guarantee based on the CISA nor an exception to the intra-state ne bis in idem principle based on provisions of national law. Instead, it deals with a possible limitation of the inter-state ne bis in idem guarantee which echoes the first group of cases but is based on a provision of regular EU secondary legislation contained in a directive, rather than the CISA. This notably raises two questions: First, what prerequisites apply for a regular EU secondary law provision to serve as a legal basis for a limitation to the ne bis in idem principle under Art. 52 para. 1 CFR? Second, to what extent may the specific conditions developed in Menci and Garlsson Real Estate, and further elaborated in BV and bpost, be transferred to inter-state level?

It should be noted that the Nordzucker case⁸, decided on 22 March 2022, related to possible limitations of the transnational ne bis in idem guarantee as well. It does, however, concern the special area of competition law that has been harmonised in the EU to the point of allowing it to be treated nearly like a harmonious national system.⁹ Therefore, Nordzucker is not predictive of the present case.

II. Case C-27/22: Facts, Procedure and Preliminary Questions Referred to the ECJ

In Case C-27/22, the ECJ is called to give a preliminary ruling on questions that arose in Italian administrative proceedings in the context of the diesel scandal.¹⁰ The starting point of the dispute was a fine of € 5 million imposed on Volkswagen AG (VWAG) and Volkswagen Group Italy (VWGI) by the Italian Antitrust Authority (AGCM) on 4 August 2016 for an infringement of the Italian Consumer Code. The alleged infringement concerns the marketing of vehicles with manipulated systems for the measurement of pollutant emissions in Italy and advertisements emphasising the compliance of said vehicles with the Italian environmental regulatory criteria. VWGI and VWAG appealed against the decision. In 2018, while the appeal in Italy was still pending, the German public prosecutor’s office of Braunschweig, Lower Saxony, imposed an administrative fine of € 1 billion on VWAG (based on the German Act on Regulatory Offenses (Ordnungswidrigkeitengesetz)) for essentially the same facts as alleged by the Italian proceedings; however, the reasoning concerned VWAG’s entire global marketing – including in Italy – instead of the Italian marketing only. Both the Italian and the German authorities ordered the maximum fine provided for by the respective national legislation. While the German fine order became final in June 2018, the Italian appeal is still pending before the Consiglio di Stato. It was this court that lodged a request for preliminary ruling to the ECJ.

The Italian court’s request is three-fold: For one, it aims to find out whether the penalties imposed for unfair commercial practices under Italian law implementing Directive 2005/29/EC¹¹ can be classified as criminal administrative penalties and, therewith, trigger the applicability of the ne bis in idem principle. In light of the ECtHR’s and the ECJ’s case law,¹² this question will presumably be answered in the affirmative.

A second question raised by the Italian court makes reference to the specific chronological order of the steps of the two proceedings. In particular, this question concerns the fact that while the Italian administrative penalty was imposed before the German penalty, a final decision has been made on the latter, whereas the appeal against the Italian penalty is still pending.¹³ Prior case law of the ECJ and the ECtHR in this context, at least as far as intra-state constellations are concerned, indicates that the applicability of the ne bis in idem principle does not depend on a specific order of the steps of the proceedings in question, but rather requires any proceedings to be concluded whenever a decision concerning the same offence in the material sense becomes final.¹⁴ There is no apparent reason why this should be different in a transnational setting.

The third and final question raised by the Italian court concerns the issue of possible limitations to the transnational ne bis in idem guarantee. Specifically, the referring court aims to find out whether the provisions laid down in Art. 3 para. 4 and Art. 13 para. 2 lit. e) of Directive 2005/29/EC justify a derogation from the ne bis in idem guarantee established by Art. 50 CFR and Art. 54 CISA. This question will be discussed in more detail in the following section.

III. Requirements for Limitations of the ne bis in idem Principle and Specifications in Intra-State Cases

In the relevant case law regarding possible justifications of limitations of the ne bis in idem principle at intra-state level, the ECJ has been consistently structuring its analyses the same way.

The judges in Luxembourg start off by reemphasising that, according to the Spasic judgment, a limitation of the ne bis in idem principle guaranteed by Art. 50 CFR may be justified on the basis of Art. 52 para. 1 CFR.¹⁵ This is followed by a detailed analysis of the individual criteria of Art. 52 para. 1 CFR and their application to the respective case.

According to the first sentence of Art. 52 para. 1 CFR, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. The second sentence further provides that any limitations are subject to the principle of proportionality and 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.

In accordance with the analyses regularly performed by the Court, Art. 52 para. 1 CFR may be broken down into five criteria. First, the limitation in question must be provided for by law. Second, it must respect the essence of the rights and freedoms it limits. Third, it has to meet an objective of general interest. Fourth, it must comply with the principle of proportionality. Fifth, it must be strictly necessary in order to achieve the objective of general interest it serves.

With regard to the first requirement (that any limitation on the exercise of fundamental rights, such as the one enshrined in Art. 50 CFR, must be provided for by law), the ECJ made it clear in BV¹⁶ and reiterated in MR¹⁷ that the legal basis which permits restricting a fundamental right must in turn define the scope of this limitation. It follows that, according to the Court, the first requirement is broadly indissociable from the requirements of clarity and precision arising from the principle of proportionality. Accordingly, the clarity and preciseness of the rules establishing the limitation to the ne bis in idem guarantee, which the Court had identified as a sub-criterion of the requirement of strict necessity in Menci¹⁸ and Garlsson Real Estate¹⁹, is in fact a precondition in itself for those rules to be qualified as a legal basis for a limitation of Art. 50 CFR in the first place. Consequently, the respective law must establish rules clear and precise enough to allow individuals to predict which acts or omissions could give rise to a duplication of proceedings and penalties to meet the “provided for by law” criterion.²⁰

On a similar note concerning the second criterion of respecting the essence of Art. 50 CFR, the ECJ regards a clear and comprehensive definition of the conditions that would lead to a duplication of proceedings and penalties as a precondition for ensuring that the right guaranteed by Art. 50 CFR is not called into question as such.²¹ Whenever rules do not clearly, precisely, and exhaustively define the prerequisites for a limitation of the ne bis in idem principle, they leave room for abuse and at least carry the risk of the essence of Art. 50 CFR being brought into question per se.

Regarding the third criterion (requiring an objective of general interest to be served by the limitation of the ne bis in idem guarantee), the ECJ established in Menci and Garlsson Real Estate that, for the purposes of meeting such an objective of general interest, a duplication of criminal proceedings and penalties may be justified where they pursue complementary aims relating to, as the case may be, different aspects of the same unlawful conduct in question.²² In bpost, the Court identified such a pursuit of complementary objectives by the different proceedings as a factor of relevance for the proportionality requirement as well and made it clear that this factor could justify the additional burden resulting from the cumulation...