“Non bis in idem” in dual proceedings: CJEU judgment in the bpost case

In the case of bpost (C-117/20, 22.3.2022) a Grand Chamber of the CJEU gave another ruling on the requirements of the non bis in idem principle (prohibition of double jeopardy), enshrined in Article 50 of the EU-Charter, when applied to dual proceedings concerning the same facts. In the present case, the company bpost was successively fined by two national authorities: first by the Belgian postal regulator, on account of discrimination against some of its clients, and subsequently by the Belgian competition authority, on grounds of abuse of a dominant position.

From a Convention point of view, the ruling is noteworthy in that it represents some evolution of the CJEU’s doctrine on the application of the non bis in idem principle to dual proceedings, i.e. a combination of administrative and/or criminal proceedings applied in respect of the same reprehensible conduct. To the extent that the administrative part of such dual proceedings is to be considered, by virtue of an autonomous interpretation, as criminal for the purposes of the Convention and/or the Charter, an issue about non bis in idem may indeed arise. Yet the methodological differences which existed between the Strasbourg and the Luxembourg approach in this field and resulted in different protection levels had given rise to some concerns (on this, see Do we still need Article 6(2) TEU?, at pp. 1707 et seq.).

In A and B v. Norway, the ECtHR upheld the ban on duplication of trial or punishment laid down in Article 4 of Protocol No. 7 to the Convention, but accepted that depending on the circumstances, some dual proceedings could be seen as complementing each other so as to form a single coherent whole not breaching that provision. This required that they be combined in an integrated manner, notably through a sufficiently close connection in substance and in time. By contrast, in Menci and two other cases decided on the same day, the CJEU accepted the possibility of a duality of criminal proceedings in certain circumstances, by considering such a duality as a limitation permitted under Article 52(1) of the EU-Charter.

This resulted in two different approaches to the same provision, based on criteria which partly overlap and partly differ from each another. While these different criteria did not necessarily appear mutually exclusive or incompatible, their coexistence nonetheless confronted the domestic courts, who may have to combine them, with a new source of complexity and legal uncertainty.

In the bpost case, while sticking to its own methodology based on Article 52(1) of the EU-Charter, the CJEU now took on board some of the Strasbourg criteria which it had previously ignored in Menci. It did so notably by referring to the notion of the “coherent whole” which, according to the ECtHR, the two sets of proceedings at stake must build in order for them to be complementary (A. and B., § 130) and by adding the requirement of a proximate timeframe to the relevant criteria for determining whether that is the case (§§ 51, 53 and 56). It now also relied on A. and B. in confirming its own case-law on the requirement that dual proceedings must be foreseeable and proportionate in their effects. Most significantly, the CJEU mentioned side by side, as the source of its relevant case-law, the Luxembourg judgment in Menci and the Strasbourg judgment in A. and B. (§§ 51 and 53), thereby suggesting that its case-law had a common basis. This is a significant move towards common standards, considerably facilitating the work of domestic courts.

Overall, there would therefore appear to be increasing convergence between Strasbourg and Luxembourg as regards the application of non bis in idem on dual proceedings, despite the remaining methodological differences. This, it is suggested, should hardly come as a surprise in light of the fact that, as recalled by the CJEU itself (§ 23), Article 50 of the EU-Charter, when applied within the same Member State, corresponds to Article 4 of Protocol No. 7 to the Convention and should therefore, by virtue of Article 52(3) of the EU-Charter, be given the same meaning and scope.