Abstract
The ne bis in idem protection in Art. 50 CFR restricts the ability of EU
and national enforcement authorities to prosecute or punish the same defendant
for the same criminal offence more than once. Under the Member States’ legal
traditions, the notion of “same offence“ or idem requires a triple identity: of
the offenders, the material facts, and the protected legal interests. A broader
notion of idem that only requires a double identity is laid down in Art. 54
CISA, which entails the prohibition of double prosecution of the same offender
for the same “material acts”. The CJEU’s case law is inconsistent: sometimes
the Court requires double identity, thus giving effect to Art 54 CISA (as far
as intra-state judicial cooperation is concerned), while requiring triple
identity in other cases, in particular in the area of competition law. With the
Menci judgment the CJEU aligned the interpretation of the notion “same offence”
in Art. 50 CFR to “same acts” in Art. 54 CISA, and hence based it on the double
identity test. The two pending cases C-117/20 bpost and C-151/20 Nordzucker
e.a., both relating to the area of parallel competition proceedings, cast a new
light on the interpretation of the idem concept. With two opinions rendered on
2 September 2021, AG Bobek proposed a unified triple identity test. He argued
that the CJEU should reverse its jurisprudence based on double identity because
it gives rise to legal uncertainty. The present article argues that the AG
failed to suggest a viable solution to interpret the idem notion in accordance
with ECtHR case law. It is suggested not to get rid of the broader standard of
protection against double jeopardy in the EU when justified but to supplement
the requirement of “same acts” with the familiar conditions for extracontractual
liability, including the conduct, its effects, and casual link.
Table of contents
I. Background
II. The Equivocal Case Law of the ECtHR and the CJEU on the Idem Concept
III. A New Opportunity to Clarify the Idem Concept
IV. A Reasoned Approach to Idem
I. Background
In the EU, the application of the ne bis in idem principle
protecting defendants from double criminal proceedings has never been more
confusing. National judicial and administrative authorities competent to
enforce criminal, competition, tax, or other offences are increasingly
confronted with legal uncertainties as to whether it is legitimate for them to
pursue penalty proceedings in parallel with each other, both domesticly and
across borders, for the same acts or for acts that are partially congruent. As
an established general principle of law, ne bis in idem restricts
their ability to prosecute or punish the same offence more than once if it can
be qualified as “criminal“.1 The aim of the principle is essentially
procedural as it is to prohibit the repetition of criminal proceedings after a
first acquittal or conviction. However, it also has repercussions on
substantive criminal law as it may preclude duplicate punishments for the same
acts, even if they qualify as multiple offences, when pursued in succession.
As far as the EU is concerned, the ne bis in idem principle
is enshrined in Art. 50 of the Charter of Fundamental Rights (CFR),2 proclaimed on 7 December 2000 in Nizza, and now
attached to the Treaty of Lisbon. The ne bis in idem guarantee
under the CFR has the purpose of bringing clarity to the right established in
different forms in the various EU Member States as it is intended to cover
cross-border situations.
Prior to the CFR, the ne bis in idem principle was
included in Art. 4 of Protocol No 7 to the European Convention on Human Rights
(ECHR), signed on 22 November 1984 by the Contracting States.3 Art. 4 of Protocol No 7 to the ECHR only applies
internally within the individual Contracting States but is nevertheless
relevant for interpreting the ne bis in idem principle at the
EU level, considering that Art. 52(3) CFR states:
[i]n so far as this Charter contains rights which correspond to rights
guaranteed by the Convention for the Protection of Human Rights and Fundamental
Freedoms, the meaning and scope of those rights shall be the same as those laid
down by the said Convention.
The European Courts (i.e., the Court of Justice of the EU(CJEU) and the
European Court of Human Rights (ECtHR)) have traditionally given similar
interpretations of the principle, since they both agreed that it prohibits the
undue cumulation of proceedings of the same kind, namely criminal, for the same
offence.
Hence, the CJEU followed the ECtHR case law whenever the criminal nature
of an offence had to be determined. As the ECtHR held in Engel,4 this determination needs to consider not only
the classification of the legal provision in domestic law (nomen juris) but
also the punitive and deterrent nature and the degree of severity of the penalties
that may be imposed under the law for the offence.
The judicial assimilation of administrative penalties into criminal ones
irrespective of the legal classification has caused an array of concurring
administrative and criminal penalties and of successive administrative and
criminal proceedings against the same defendant for substantially the same
misconduct; normatively, the offences could be qualified to constitute
different offences, but materially they were the same. Hence, the question was
whether such cases concerned an idem.
Moreover, in accordance with Art. 50 CFR, the ne bis in idem protection
also applies between the jurisdictions of several Member States.5 This corresponds to the EU law acquis as it
resulted from Art. 54 of the Convention Implementing the Schengen Agreement
(CISA),6 Art. 7 of the Convention on the protection of
the financial interests of the Communities,7 and Art. 10 of the Convention on the fight
against corruption.8
As regards the application of the principle within the same Member State
(purely domestic situations), the guaranteed right in Art. 50 CFR has the same
meaning and the same scope as the corresponding right in the ECHR as referred
to by Art. 4 of Protocol No 7.
Whereas the principle is worded as an absolute right under the ECHR,
Art. 50 CFR entails that it can be subject to exceptions covered by the
horizontal clause in Art 52(1) CFR laying down the conditions for limitations
on the exercise of the rights and freedoms recognised by the Charter. In other
words, ne bis in idem, as guaranteed in Art. 50 CFR, entails
that a person cannot be judged again for acts for which he or she was already
finally acquitted or convicted, except if such acts do not constitute the same
offence (idem) or if authorised by a law that maintains certain
conditions.9
In the two judgments of 20 March 2018 in Menci10 and Garlsson,11 the CJEU specified the conditions the concerned
national legislations must meet to cumulate administrative and criminal
penalties in successive proceedings, and thus to limit the right not to be
punished twice under Art. 50 CFR in accordance with Art. 52(1) CFR.
The Menci case concerned duplicate criminal proceedings
preceded by administrative penalty proceedings (with a criminal nature) for the
same non-payment of VAT; the CJEU notoriously held that, under the escape
clause of Art. 52(1) CFR, a limitation of the ne bis in idem principle
due to the second prosecution was justified
for the purpose of achieving … complementary aims relating, as the case
may be, to different aspects of the same unlawful conduct at issue.12
The CJEU further concluded that the cumulative punishments met an
objective of general interest, and that the national laws at issue providing
for two distinct prosecutions contained rules ensuring that the duplicate
administrative/criminal proceedings would only lead to cumulative punishments
where strictly necessary and proportionate.13 This followed an attentive review of the
relevant national provisions, and, subject to the confirmation by the referring
court, the CJEU concluded that the double penalty proceedings system applicable
in Italy in that case could be considered proportionate and did not go beyond
what was strictly necessary to sanction the same VAT non-payment.
However, the Garlsson case, which concerned a similar
constellation of a cumulation of an administrative fine for market abuse
following a criminal detention penalty for the same acts, gave rise to
unjustified ne bis in idem because the CJEU noted that the
previous conviction was taken into account only if it consisted in a prior
criminal fine. The CJEU found that, under the legislation at issue, the
mitigation of penalties under the national legislation at stake appeared
solely to apply to the duplication of pecuniary penalties and not to the
duplication of an administrative fine of a criminal nature and a term of
imprisonment.
For this reason the Court concluded that the double proceedings were
contrary to the principle of proportionality. The CJEU found that this
legislation
does not guarantee that the severity of all of the penalties imposed are
limited to what is strictly necessary in relation to the seriousness of the
offence concerned.14
Hence, the CJEU concluded in Garlsson that the
legislation at issue did not fulfil the obligation for competent authorities,
in the event that a second penalty was imposed, to ensure that
the severity of the sum of all of the penalties imposed does not exceed
the seriousness of the offence identified.15
Such discordant judgments give rise to uncertainty about when the
limitations of the ne bis in idem protection in case of
successive punitive proceedings brought separately are acceptable. The reason
is that the CJEU acknowledges that cumulative penalties can in principle be
applied for concurring offences in different proceedings. However, a violation
of the double jeopardy prohibition can only be justified if the second
proceedings serve complementary purposes and the concerned person’s burden for
defence is limited to the necessary minimum. This, in turn, is only possible if
the two distinct proceedings show a sufficiently close connection, both in
substance and in time – an antinomy that is difficult to attain in practice.
The uncertainty concerns the existence of concurring penalties and,
therefore, the idem concept. More precisely, the question is
notably whether the notion of ”same offence” should correspond to “same
criminally punishable conduct”, which requires a triple identity: of the
offender, the material facts (idem factum), and the protected legal
interests (idem crimen), and not a double identity of the offender and
the material acts. In that respect, both the ECtHR and the CJEU have developed
diverging case laws on the notion of idem, which I will address in
the following section.
II. The Equivocal Case Law of the ECtHR and the CJEU on the Idem Concept
As regards the interpretation of the idem concept, the
ECtHR developed a vast jurisprudence on the duplication of administrative
penalties of a criminal nature and proper criminal penalties. Considering the
scope of the ne bis in idem guarantee in Protocol No 7 to the
ECHR, these cases concerned the same national legal order. The traditional
interpretation of idem was based on the triple identity test
including the requirement of idem crimen. This entailed that the
same conduct could legitimately produce a combination of separate
administrative/criminal proceedings that, due to their distinct legal
qualifications, are separate offences.16
A turning point was the ECtHR’s Grand Chamber judgment in Zolotukhin.17 The judges in Strasbourg had to deal with a
duplication of penalty proceedings, including a first set of disciplinary
proceedings, which were qualified as criminal under the Engel criteria,
followed by a second set of proper criminal proceedings – all based on the same
acts of indiscipline.18 The ECtHR made the examination of the identity
of the offences subject to a test of their essential elements rather than their
legal qualifications. It concluded that the idem crimen approach
should be abandoned to allow a broader application of the ne bis in
idem protection and held that:19
[the previous] approach which emphasises the legal characterisation of
the two offences [was] too restrictive on the rights of the individual.
[Therefore,] Article 4 of Protocol No 7 must be understood as prohibiting the
prosecution or trial of a second ‘offence’ in so far as it arises from
identical facts or facts which are substantially the same.
The ECtHR concluded20 that from that moment onward the examination of
the idem notion should thus
focus on those facts which constitute a set of concrete factual
circumstances involving the same defendant and inextricably linked together in
time and space, the existence of which must be demonstrated in order to secure
a conviction or institute criminal proceedings.
In the subsequent landmark judgment, A and B vs Norway, the
ECtHR partially reconsidered the broad interpretation of the ne bis in
idem protection in Zolotukhin, since the principle does
not permit derogations under the ECHR.21 It allowed a duplication of proceedings whenever
these were “combined in an integrated manner so as to form a coherent whole”.
The combination of administrative and criminal penalties in separate
proceedings was held permissible under four conditions, including: (i) the
complementary purposes pursued by both proceedings addressing different aspects
of social misconduct; (ii) whether the duality of proceedings concerned is a
foreseeable consequence, both in law and in practice, of the same impugned
conduct; (iii) whether there is a coordination between the relevant sets of
proceedings that have to be conducted in such a manner so as to avoid
duplication in both the collection and assessment of the evidence; and (iv),
the proportionality of the overall amount of the penalties imposed.22
