On 22 March 2022, the European Court of Justice (“ECJ”) issued two separate preliminary rulings – Bpost and Nordzucker – which clarify how the protection against double jeopardy (“non bis in idem principle”) should be applied in instances where an identical competition law infringement is sanctioned in parallel investigations, either by different regulatory authorities of the same EU Member State or by multiple national competition authorities (“NCAs”) from different EU Member States.
The key takeaways from the two judgments are as follows:
- the non bis in idem principle applies to competition law due to the criminal aspect embedded in the relevant administrative penalties;
- the non bis in idem principle only applies if the facts are identical – a mere reference to a fact in a decision is not sufficient to demonstrate that an authority has ruled on that element;
- different national authorities can impose fines for an identical infringement if the legislation on which they rely pursues complementary objectives;
- the non bis in idem principle also applies to situations where an NCA has granted leniency to a company such that only a declaratory finding infringement (without fine) can be made.
In Bpost, the ECJ examined whether the Belgian NCA could impose a fine on Bpost for an abuse of a dominant position (through the application of a rebate system) even though Bpost had already been fined for the same rebate system by the Belgian postal regulator.