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 further developed its case law on the principle of ne bis in idem (Article 50 CFREU, also known as the right not to be punished twice). Bpost had been received two separate administrative penalties of punitive character for its a new tariff system for the distribution of addressed advertising material and administrative mail items. The Belgian Postal Regulator considered the new tariffs to discriminate between consolidators and direct clients. According to the Belgian Competition Authority, the same also constituted an abuse of a dominant market position. The question rose whether the imposition of two fines violated the principle of ne bis in idem.
In addressing that question, the ECJ continues struggle to define the essence of ne bis in idem. The Court had previously implied a convincing and clear definition of that essence in case C-129/14 PPU Spasic: An individual must never actually be sanctioned twice for the same act. This definition was subsequently narrowed down in case C-524/15 Menci, where the Court opened the door to the actual imposition of two sanctions, provided it occurs ‘only under conditions which are exhaustively defined’. The definition in Menci is diametrically opposed to the very wording and idea of ne bis in idem (literally ‘not twice for the same’) and has drawn considerable critique from AG Bobek in his Opinion in bpost. The Court did not address this critique in bpost, and instead disimproved the essence of ne bis in idem further: The duplication of sanctions will not violate the essence if it is provided for under different sets of legislation.
We will begin with a brief note on the concept of essence in EU fundamental rights law in order to contextualise bpost. Next, it examines the Court’s definition of the essence of ne bis in idem in the case law leading up to bpost and AG Bobek’s critique thereof, before evaluating the Court’s latest definition. The contribution concludes with discussion on what bpost reveals about the Court’s approach to defining the essence of fundamental rights more broadly.
The Essence of EU Fundamental Rights
The concept of ‘essence’ is not a complex one per se, but certainly elusive. Essence has been present in the CJEU’s fundamental rights case law since case 4/73 Nold. The concept is now codified in the general limitations clause of the Charter, article 52(1) CFREU:
‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must […] respect the essence of those rights and freedoms’.
The CJEU now distinguishes essence and proportionality mostly clearly and treats the former as an absolute bar. Every right has an absolute core that must not be interfered with under any circumstances and irrespective of any justifying countervailing interests. The core is separate from the remainder of the right (the ‘periphery’), which may be restricted subject to proportionality.
The concept of essence is relatively straightforward; The challenge lies in its practical application. How should the essence of a given right be defined? The CJEU has yet to provide a framework for this in its fundamental rights jurisprudence. In the case law that actively engages with the question of whether the essence of a given right had been violated, the Court appears to assess whether the right has been rendered meaningless to the individual right holder. A good example of this is paragraph 39 of cases C-293/12 and 594/12 Digital Rights Ireland:
even though the retention of data required by Directive 2006/24 constitutes a particularly serious interference with those rights, it is not such as to adversely affect the essence of those rights given that […] the directive does not permit the acquisition of knowledge of the content of the electronic communications as such [emphasis added].
It follows that data retention, if limited to meta-data, does not render the right to private life practically meaningless. Yet it is important to recall that this does not immediately render the interference lawful; It must also respect the proportionality principle.
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 the same act of organised fraud. Whilst proceedings against him were still ongoing in Germany, where 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 principle of ne bis in idem, because of his conviction in Italy. The German prosecutor relied on Article 54 CISA, which did not prohibit prosecution in Germany because the Italian sanction was neither (in the process of) being enforced nor had it become unenforceable.
In reviewing whether the Article 54 CISA violated the principle of ne bis in idem by permitting the duplication of proceedings, the Court ruled in paragraphs 58 and 59 of its judgment:
As regards the essence of that principle, it must be noted that […] the execution condition laid down in Article 54 CISA does not call into question the ne bis in idem principle as such. That condition is intended, inter alia, to avoid a situation in which a person definitively convicted and sentenced in one Contracting State can no longer be prosecuted for the same acts in another Contracting State and therefore ultimately remains unpunished if the first State did not execute the sentence imposed […].
It follows that a provision such as Article 54 CISA must be regarded as respecting the essence of the ne bis in idem principle enshrined in Article 50 of the Charter.
This definition is emblematic of the Court’s practical and pragmatic approach to the essence of rights. It focuses exclusively on the actual effects for the person concerned. If there has been no actual duplication of sanctions, the essence of ne bis in idem is respected. This is a plausible and clear-cut initial definition that should be supported, even if it leaves an important question unanswered: When are two sanctions imposed for the same conduct? The idem criterion could be a useful means for adjusting the scope of the principle and thereby the extent to which its essence imposes an absolute ban on dual sanctioning.
The Grand Chamber revisited the essence of ne bis in idem four years later in Menci and blurred its previously clear line. Mr. Menci had received an administrative penalty of punitive character for failing to pay VAT, and was subsequently being prosecuted for the same act. Under national law, the administrative penalty could only be enforced if the criminal proceedings did not ultimately result in a conviction. This approach clearly respected the essence of ne bis in idem, as formulated in Spasic, because no two sanctions could actually be enforced. Yet the question rose whether this also applied to duplication of proceedings.
In addressing this question, the Court muddled it previously clear-cut definition (paragraph 41) and opened the door to the imposition of two sanctions by holding that
national legislation, such as that at issue in the main proceedings, respects the essential content of Article 50 of the Charter, since, according to the information in the case file before the Court, it allows such a duplication of proceedings and penalties only under conditions which are exhaustively defined, thereby ensuring that the right guaranteed by Article 50 is not called into question as such (emphasis added).
It is noticeable that the Court neither recalls 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 conditions are exhaustively defined, the Court appears to be shifting away from its previously clear line. The implication is that an individual can now be punished twice for the same act if the conditions for doing so are exhaustively defined.
This outcome is problematic, from a practical and conceptual perspective. After all, whether the right not to be punished twice is rendered meaningless depends solely on the outcome for the individual concerned. Are they subjected to two sanctions for the same act or not? Whether the circumstances in which two sanctions can be imposed are narrowly circumscribed is irrelevant if both are imposed at the end of the day. Since the Court did not reiterate its previous definition of essence (the prohibition of an actual duplication of sanctions), it paved the 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 received explicit critique from AG Bobek in his Opinion in bpost as part of a wider challenge to the ECJ’s overall approach to reviewing possible violations of the principle. In points 110 and 113 of his Opinion, the AG writes:
I am rather puzzled as to how the principle ne bis in idem, designed in such a way, is able to continue protecting the very essence of the right enshrined in Article 50 of the Charter. The explanation provided specifically in Menci does not clarify the matter any further. In its judgment, the Court simply axiomatically stated that the legislation at issue ‘respects the essential content of Article 50 of the Charter, since … it allows [the] duplication of proceedings and penalties only under conditions which are exhaustively defined’. To me, that statement appears to relate more to the condition of legality of the limitation at issue (‘prescribed by law’). As far as the essence of the rights is concerned, I have difficulty in seeing how the essence of ne bis in idem is protected by a clear and express statement in national law that there will be a second set of proceedings.
[T]he actual level of individual protection provided by Menci appears to be rather low. The essence of the right to be protected against a second set of criminal proceedings for the same offence is considered to be preserved simply because the accused could foresee that he or she would be prosecuted for a second time.
The AG ultimately concludes that in Menci, ‘the very essence of Article 50 of the Charter was lost’. Granted, the Court had previously permitted a second set of proceedings in Spasic as long as no second sanction was actually enforced, and this was not at stake in Menci. However, the wording in Menci and the Court’s failure to recall the absolute prohibition from Spasic paved the way for the actual imposition of two sanctions for the same act, thereby rendering the right meaningless to the individual right-holder.
Unfortunately, the AG’s subsequent comprehensive proposal of a new test for reviewing alleged violations of ne bis in idem did not explicitly provide a new definition of the essence of that principle. Still, AG Bobek’s proposal does not conflict with the definition of essence in Spasic. The main innovation of his proposal was to take the objective pursued by a sanction into account as part of the idem element, thereby limiting the scope of ne bis in idem and of its essence. The scope of the principle and its essence are narrowed without introducing a wider permission of dual sanctioning.
The Grand Chamber does not follow the AG’s proposal and instead maintains, in paragraph 36 of the judgment, that the idem element requires merely an identity of material facts, ‘a set of concrete circumstances stemming from events which are […] the same, in that they involve the same perpetrator and are inextricably linked together in time and space’. While the Court leaves it to the national judge to determine whether the idem element is met in the underlying case, it continues to provide guidance on how a possible interference with Article 50 CFREU should be assessed.
With regards to the essence of the right not to be punished twice, the Court continues to muddle the water. Once again, the Grand Chamber does not explicitly reference the definitions it previously adopted in Spasic or Menci when it rules that
Such a possibility of a duplication of proceedings and penalties respects the essence of Article 50 of the Charter, provided that the national legislation does not allow for proceedings and penalties in respect of the same facts on the basis of the same offence or in pursuit of the same objective, but provides only for the possibility of a duplication of proceedings and penalties under different legislation (emphasis added).
The Grand Chamber narrows the definition of the essence of ne bis in idem down further, largely erasing its meaning in the process. If bpost had actually been sanctioned twice for the same conduct, the Court does not consider this a violation of the essence of ne bis in idem because the sanctions flow from two different sets of legislation. The case law now implies that a violation of the essence of ne bis in idem requires three cumulative conditions to be met:
- Two sanctions are actually imposed for the same conduct;
- The conditions for the duplication of sanctions are not exhaustively defined;
- The sanctions are imposed under the same legislation.
This definition is no longer puzzling, but staggering. The core of the right not to be punished twice is now so narrow that it may well lack any meaning in cases where an individual is sanctioned under both administrative and criminal law, regardless of whether the former has a punitive character or not. The same applies to cases in which an individual is prosecuted and actually sanctioned for the same act by two Member States under their national laws. What remains of the right not to be punished twice in cases where an individual is actually sanctioned twice at the end of the day?
Conclusion: Insights from the Judgment
The new definition of the essence of ne bis in idem that the ECJ provides in bpost is emblematic of the challenges that the Court faces when defining the essence of rights. Firstly, the essence of rights is an elusive concept, especially in practice; It is difficult to give a general definition of the core of a right, or the point at which restrictions render it meaningless. Secondly, the essence of a right leaves little room for flexibility once it has been defined. The impenetrable core of a right must not be subject to any restrictions, regardless of how desirable or justified they may seem. This is a considerable judicial intervention in the powers of the legislature. The essence of a right is also highly resistant to adjustments by its very nature. In contrast to proportionality review, where previously prohibited restrictions can be justified by a subsequent change of circumstances, the very idea of an essence is undermined if its scope is continuously altered.
This exactly appears to be happening in the line of judgments from Spasic via Menci to bpost. The Court gradually reduces the scope of the essence of ne bis in idem, and thereby the range of measures that are never permissible. Yet at closer inspection, it becomes clear that the Court’s approach to reviewing whether the essence of ne bis in idem has been violated avoids this problem. The Court only provides negative definitions of essence in Spasic, Menci, and bpost – it only concludes that the measure at hand does not violate the essence of ne bis in idem. We may conclude that this suggests that a more restrictive measure would have violated the essence, but that is not necessarily so, as Menci and bpost reveal. It is equally valid for the Court to reason subsequently that the core of ne bis in idem is actually even smaller. This approach contrasts with the positive definition of the essence of the right to private live that the Court formulated in Schrems I (cited above) and which is not open to subsequent shrinking. The implication is that we cannot know the essence of a right with certainty until the Court has given a positive definition.
Nevertheless, even negative definitions may eventually reach the point where the core cannot be shrunk any further without reducing the right to legal fiction. Following bpost, and in line with AG Bobek’s critique, this has arguably happened to ne bis in idem. With sufficient justification, the same individual may now be subjected to two distinct sanctions for the same act, with the only limitation being that those sanctions must be exhaustively defined and flow from different pieces of legislation. The latter requirement is met by default when an individual is prosecuted in more than one Member State, and the former provides very limited protection, as AG Bobek notes in point 113 of his Opinion.
The Grand Chamber’s approach to defining the essence of ne bis in idem in Spasic, Menci and bpost addresses the main challenges of defining the essence of fundamental rights through restraint and ambiguity. This allows the Court to give judgment without overreaching or interfering with the powers of the European and Member States’ legislatures. Yet the outcome of this approach in bpost is that the principle of ne bis in idem has effectively been deprived of its essence and may now be rendered meaningless if there are sufficient countervailing interests.