By Tom Boekestein
In its judgment in case C-117/20 bpost SA v Autorité belge de la concurrence (hereinafter bpost), rendered on 22 march 2022, the Grand Chamber of the ECJ additional developed its case regulation on the precept of ne bis in idem (Article 50 CFREU, also called the proper to not be punished twice). Bpost had been obtained two separate administrative penalties of punitive character for its a brand new tariff system for the distribution of addressed promoting materials and administrative mail gadgets. The Belgian Postal Regulator thought-about the brand new tariffs to discriminate between consolidators and direct shoppers. In response to the Belgian Competitors Authority, the identical additionally constituted an abuse of a dominant market place. The query rose whether or not the imposition of two fines violated the precept of ne bis in idem.
In addressing that query, the ECJ continues battle to outline the essence of ne bis in idem. The Court docket had beforehand implied a convincing and clear definition of that essence in case C-129/14 PPU Spasic: A person mustn’t ever really be sanctioned twice for a similar act. This definition was subsequently narrowed down in case C-524/15 Menci, the place the Court docket opened the door to the precise imposition of two sanctions, supplied it happens ‘solely below circumstances that are exhaustively outlined’. The definition in Menci is diametrically against the very wording and concept of ne bis in idem (actually ‘not twice for a similar’) and has drawn appreciable critique from AG Bobek in his Opinion in bpost. The Court docket didn’t tackle this critique in bpost, and as an alternative disimproved the essence of ne bis in idem additional: The duplication of sanctions is not going to violate the essence whether it is supplied for below completely different units of laws.
We are going to start with a quick word on the idea of essence in EU basic rights regulation to be able to contextualise bpost. Subsequent, it examines the Court docket’s definition of the essence of ne bis in idem within the case regulation main as much as bpost and AG Bobek’s critique thereof, earlier than evaluating the Court docket’s newest definition. The contribution concludes with dialogue on what bpost reveals in regards to the Court docket’s strategy to defining the essence of basic rights extra broadly.
The Essence of EU Basic Rights
The idea of ‘essence’ shouldn’t be a fancy one per se, however actually elusive. Essence has been current within the CJEU’s basic rights case regulation since case 4/73 Nold. The idea is now codified within the common limitations clause of the Constitution, article 52(1) CFREU:
‘Any limitation on the train of the rights and freedoms recognised by this Constitution should […] respect the essence of these rights and freedoms’.
The CJEU now distinguishes essence and proportionality largely clearly and treats the previous as an absolute bar. Each proper has an absolute core that should not be interfered with below any circumstances and no matter any justifying countervailing pursuits. The core is separate from the rest of the proper (the ‘periphery’), which can be restricted topic to proportionality.
The idea of essence is comparatively simple; The problem lies in its sensible utility. How ought to the essence of a given proper be outlined? The CJEU has but to supply a framework for this in its basic rights jurisprudence. Within the case regulation that actively engages with the query of whether or not the essence of a given proper had been violated, the Court docket seems to evaluate whether or not the proper has been rendered meaningless to the person proper holder. instance of that is paragraph 39 of circumstances C-293/12 and 594/12 Digital Rights Eire:
despite the fact that the retention of knowledge required by Directive 2006/24 constitutes a very severe interference with these rights, it’s not corresponding to to adversely have an effect on the essence of these rights on condition that […] the directive doesn’t allow the acquisition of information of the content material of the digital communications as such [emphasis added].
It follows that information retention, if restricted to meta-data, doesn’t render the proper to personal life virtually meaningless. But it is very important recall that this doesn’t instantly render the interference lawful; It should additionally respect the proportionality precept.
The Essence of ne bis in idem: From Spasic to Menci
The Grand Chamber of the ECJ first engaged with the essence of ne bis in idem in case C-129/14 PPU Spasic. Mr. Spasic was prosecuted in Italy and Germany for a similar act of organised fraud. While proceedings towards him have been nonetheless ongoing in Germany, the place mr. Spasic was being detained, he had already been convicted in absentia in Italy. The Italian sanction had not been executed. Mr. Spasic argued that his prosecution in Germany violated the precept of ne bis in idem, due to his conviction in Italy. The German prosecutor relied on Article 54 CISA, which didn’t prohibit prosecution in Germany as a result of the Italian sanction was neither (within the technique of) being enforced nor had it turn out to be unenforceable.
In reviewing whether or not the Article 54 CISA violated the precept of ne bis in idem by allowing the duplication of proceedings, the Court docket dominated in paragraphs 58 and 59 of its judgment:
As regards the essence of that precept, it have to be famous that […] the execution situation laid down in Article 54 CISA doesn’t name into query the ne bis in idem precept as such. That situation is meant, inter alia, to keep away from a scenario during which an individual definitively convicted and sentenced in a single Contracting State can not be prosecuted for a similar acts in one other Contracting State and subsequently finally stays unpunished if the primary State didn’t execute the sentence imposed […].
It follows {that a} provision corresponding to Article 54 CISA have to be considered respecting the essence of the ne bis in idem precept enshrined in Article 50 of the Constitution.
This definition is emblematic of the Court docket’s sensible and pragmatic strategy to the essence of rights. It focuses solely on the precise results for the particular person involved. If there was no precise duplication of sanctions, the essence of ne bis in idem is revered. It is a believable and clear-cut preliminary definition that needs to be supported, even when it leaves an essential query unanswered: When are two sanctions imposed for the similar conduct? The idem criterion could possibly be a helpful means for adjusting the scope of the precept and thereby the extent to which its essence imposes an absolute ban on twin sanctioning.
The Grand Chamber revisited the essence of ne bis in idem 4 years later in Menci and blurred its beforehand clear line. Mr. Menci had obtained an administrative penalty of punitive character for failing to pay VAT, and was subsequently being prosecuted for a similar act. Beneath nationwide regulation, the executive penalty might solely be enforced if the felony proceedings didn’t finally lead to a conviction. This strategy clearly revered the essence of ne bis in idem, as formulated in Spasic, as a result of no two sanctions might really be enforced. But the query rose whether or not this additionally utilized to duplication of proceedings.
In addressing this query, the Court docket muddled it beforehand clear-cut definition (paragraph 41) and opened the door to the imposition of two sanctions by holding that
nationwide laws, corresponding to that at subject in the principle proceedings, respects the important content material of Article 50 of the Constitution, since, in line with the knowledge within the case file earlier than the Court docket, it permits such a duplication of proceedings and penalties solely below circumstances that are exhaustively outlined, thereby making certain that the proper assured by Article 50 shouldn’t be known as into query as such (emphasis added).
It’s noticeable that the Court docket neither remembers nor references its findings on the essence of ne bis in idem from Spasic. By noting that the duplication of proceedings and penalties respects the essence of ne bis in idem if the circumstances are exhaustively outlined, the Court docket seems to be shifting away from its beforehand clear line. The implication is that a person can now be punished twice for a similar act if the circumstances for doing so are exhaustively outlined.
This end result is problematic, from a sensible and conceptual perspective. In any case, whether or not the proper to not be punished twice is rendered meaningless relies upon solely on the end result for the person involved. Are they subjected to 2 sanctions for a similar act or not? Whether or not the circumstances during which two sanctions might be imposed are narrowly circumscribed is irrelevant if each are imposed on the finish of the day. Because the Court docket didn’t reiterate its earlier definition of essence (the prohibition of an precise duplication of sanctions), it paved the best way for abandoning that definition.
The Essence of ne bis in idem: bpost
The Grand Chamber’s disimprovement of the essence of ne bis in idem in Menci obtained express critique from AG Bobek in his Opinion in bpost as a part of a wider problem to the ECJ’s general strategy to reviewing attainable violations of the precept. In factors 110 and 113 of his Opinion, the AG writes:
I’m somewhat puzzled as to how the precept ne bis in idem, designed in such a means, is ready to proceed defending the very essence of the proper enshrined in Article 50 of the Constitution. The reason supplied particularly in Menci doesn’t make clear the matter any additional. In its judgment, the Court docket merely axiomatically said that the laws at subject ‘respects the important content material of Article 50 of the Constitution, since … it permits [the] duplication of proceedings and penalties solely below circumstances which are exhaustively outlined’. To me, that assertion seems to narrate extra to the situation of legality of the limitation at subject (‘prescribed by regulation’). So far as the essence of the rights is anxious, I’ve problem in seeing how the essence of ne bis in idem is protected by a transparent and categorical assertion in nationwide regulation that there might be a second set of proceedings.
[T]he precise stage of particular person safety supplied by Menci seems to be somewhat low. The essence of the proper to be protected towards a second set of felony proceedings for a similar offence is taken into account to be preserved just because the accused might foresee that she or he can be prosecuted for a second time.
The AG finally concludes that in Menci, ‘the very essence of Article 50 of the Constitution was misplaced’. Granted, the Court docket had beforehand permitted a second set of proceedings in Spasic so long as no second sanction was really enforced, and this was not at stake in Menci. Nonetheless, the wording in Menci and the Court docket’s failure to recall absolutely the prohibition from Spasic paved the best way for the precise imposition of two sanctions for a similar act, thereby rendering the proper meaningless to the person right-holder.
Sadly, the AG’s subsequent complete proposal of a brand new check for reviewing alleged violations of ne bis in idem didn’t explicitly present a brand new definition of the essence of that precept. Nonetheless, AG Bobek’s proposal doesn’t battle with the definition of essence in Spasic. The principle innovation of his proposal was to take the target pursued by a sanction under consideration as a part of the idem component, thereby limiting the scope of ne bis in idem and of its essence. The scope of the precept and its essence are narrowed with out introducing a wider permission of twin sanctioning.
The Grand Chamber doesn’t observe the AG’s proposal and as an alternative maintains, in paragraph 36 of the judgment, that the idem component requires merely an identification of fabric details, ‘a set of concrete circumstances stemming from occasions that are […] the identical, in that they contain the identical perpetrator and are inextricably linked collectively in time and house’. Whereas the Court docket leaves it to the nationwide choose to find out whether or not the idem component is met within the underlying case, it continues to supply steerage on how a attainable interference with Article 50 CFREU needs to be assessed.
On the subject of the essence of the proper to not be punished twice, the Court docket continues to muddle the water. As soon as once more, the Grand Chamber doesn’t explicitly reference the definitions it beforehand adopted in Spasic or Menci when it guidelines that
Such a chance of a duplication of proceedings and penalties respects the essence of Article 50 of the Constitution, supplied that the nationwide laws doesn’t enable for proceedings and penalties in respect of the identical details on the premise of the identical offence or in pursuit of the identical goal, however offers just for the potential of a duplication of proceedings and penalties below completely different laws (emphasis added).
The Grand Chamber narrows the definition of the essence of ne bis in idem down additional, largely erasing its which means within the course of. If bpost had really been sanctioned twice for the similar conduct, the Court docket doesn’t think about this a violation of the essence of ne bis in idem as a result of the sanctions circulate from two completely different units of laws. The case regulation now implies {that a} violation of the essence of ne bis in idem requires three cumulative circumstances to be met:
- Two sanctions are literally imposed for a similar conduct;
- The circumstances for the duplication of sanctions usually are not exhaustively outlined;
- The sanctions are imposed below the identical laws.
This definition is not puzzling, however staggering. The core of the proper to not be punished twice is now so slender that it could effectively lack any which means in circumstances the place a person is sanctioned below each administrative and felony regulation, no matter whether or not the previous has a punitive character or not. The identical applies to circumstances during which a person is prosecuted and truly sanctioned for a similar act by two Member States below their nationwide legal guidelines. What stays of the proper to not be punished twice in circumstances the place a person is definitely sanctioned twice on the finish of the day?
Conclusion: Insights from the Judgment
The brand new definition of the essence of ne bis in idem that the ECJ offers in bpost is emblematic of the challenges that the Court docket faces when defining the essence of rights. Firstly, the essence of rights is an elusive idea, particularly in observe; It’s tough to offer a common definition of the core of a proper, or the purpose at which restrictions render it meaningless. Secondly, the essence of a proper leaves little room for flexibility as soon as it has been outlined. The impenetrable core of a proper should not be topic to any restrictions, no matter how fascinating or justified they might appear. It is a appreciable judicial intervention within the powers of the legislature. The essence of a proper can be extremely proof against changes by its very nature. In distinction to proportionality evaluate, the place beforehand prohibited restrictions might be justified by a subsequent change of circumstances, the very concept of an essence is undermined if its scope is constantly altered.
This precisely seems to be taking place within the line of judgments from Spasic by way of Menci to bpost. The Court docket steadily reduces the scope of the essence of ne bis in idem, and thereby the vary of measures which can be by no means permissible. But at nearer inspection, it turns into clear that the Court docket’s strategy to reviewing whether or not the essence of ne bis in idem has been violated avoids this downside. The Court docket solely offers unfavourable definitions of essence in Spasic, Menci, and bpost – it solely concludes that the measure at hand doesn’t violate the essence of ne bis in idem. We might conclude that this means {that a} extra restrictive measure would have violated the essence, however that isn’t essentially so, as Menci and bpost reveal. It’s equally legitimate for the Court docket to purpose subsequently that the core of ne bis in idem is definitely even smaller. This strategy contrasts with the optimistic definition of the essence of the proper to personal stay that the Court docket formulated in Schrems I (cited above) and which isn’t open to subsequent shrinking. The implication is that we can not know the essence of a proper with certainty till the Court docket has given a optimistic definition.
Nonetheless, even unfavourable definitions might ultimately attain the purpose the place the core can’t be shrunk any additional with out decreasing the proper to authorized fiction. Following bpost, and in keeping with AG Bobek’s critique, this has arguably occurred to ne bis in idem. With adequate justification, the identical particular person might now be subjected to 2 distinct sanctions for a similar act, with the one limitation being that these sanctions have to be exhaustively outlined and circulate from completely different items of laws. The latter requirement is met by default when a person is prosecuted in multiple Member State, and the previous offers very restricted safety, as AG Bobek notes in level 113 of his Opinion.
The Grand Chamber’s strategy to defining the essence of ne bis in idem in Spasic, Menci and bpost addresses the principle challenges of defining the essence of basic rights via restraint and ambiguity. This permits the Court docket to offer judgment with out overreaching or interfering with the powers of the European and Member States’ legislatures. But the end result of this strategy in bpost is that the precept of ne bis in idem has successfully been disadvantaged of its essence and should now be rendered meaningless if there are adequate countervailing pursuits.
