Disimproving the Essence of ne bis in idem – Ecu Regulation Weblog

Disimproving the Essence of ne bis in idem – Ecu Regulation Weblog


In its judgment in case C-117/20 bpost SA v Autorité belge de los angeles concurrence (hereinafter bpost), rendered on 22 march 2022, the Grand Chamber of the ECJ additional evolved its case legislation at the idea of ne bis in idem (Article 50 CFREU, sometimes called the proper to not be punished two times). Bpost have been gained two separate administrative consequences of punitive personality for its a brand new tariff gadget for the distribution of addressed promoting subject material and administrative mail pieces. The Belgian Postal Regulator thought to be the brand new price lists to discriminate between consolidators and direct purchasers. In line with the Belgian Festival Authority, the similar additionally constituted an abuse of a dominant marketplace place. The query rose whether or not the imposition of 2 fines violated the main 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 in the past implied a resounding and clean definition of that essence in case C-129/14 PPU Spasic: A person should by no means in reality be sanctioned two times for a similar act. This definition was once therefore narrowed down in case C-524/15 Menci, the place the Court docket opened the door to the real imposition of 2 sanctions, supplied it happens ‘handiest below stipulations which might be exhaustively outlined’. The definition in Menci is diametrically antagonistic to the very wording and thought of ne bis in idem (actually ‘no longer two times for a similar’) and has drawn really extensive critique from AG Bobek in his Opinion in bpost. The Court docket didn’t deal with this critique in bpost, and as an alternative disimproved the essence of ne bis in idem additional: The duplication of sanctions won’t violate the essence whether it is supplied for less than other units of regulation.  

We can start with a temporary word on the idea that of essence in EU elementary rights legislation so as to contextualise bpost. Subsequent, it examines the Court docket’s definition of the essence of ne bis in idem within the case legislation main as much as bpost and AG Bobek’s critique thereof, sooner than comparing the Court docket’s newest definition. The contribution concludes with dialogue on what bpost finds concerning the Court docket’s method to defining the essence of elementary rights extra widely. 

The Essence of EU Basic Rights

The idea that of ‘essence’ isn’t a fancy one consistent with se, however undoubtedly elusive. Essence has been provide within the CJEU’s elementary rights case legislation since case 4/73 Nold. The idea that is now codified within the normal obstacles clause of the Constitution, article 52(1) CFREU: 

‘Any limitation at the workout of the rights and freedoms recognised through this Constitution should […] recognize the essence of the ones rights and freedoms’.

The CJEU now distinguishes essence and proportionality most commonly obviously and treats the previous as an absolute bar. Each and every appropriate has an absolute core that should no longer be interfered with below any cases and regardless of any justifying countervailing pursuits. The core is cut loose the rest of the proper (the ‘outer edge’), that could be limited matter to proportionality.

The idea that of essence is slightly simple; The problem lies in its sensible utility. How will have to the essence of a given appropriate be outlined? The CJEU has but to supply a framework for this in its elementary rights jurisprudence. Within the case legislation that actively engages with the query of whether or not the essence of a given appropriate have been violated, the Court docket seems to evaluate whether or not the proper has been rendered meaningless to the person appropriate holder. A excellent instance of that is paragraph 39 of instances C-293/12 and 594/12 Virtual Rights Eire

even if the retention of knowledge required through Directive 2006/24 constitutes a in particular severe interference with the ones rights, it’s not corresponding to to adversely impact the essence of the ones rights for the reason that […] the directive does no longer allow the purchase of information of the content material of the digital communications as such [emphasis added].

It follows that records retention, if restricted to meta-data, does no longer render the proper to personal lifestyles nearly meaningless. But it is very important recall that this doesn’t right away render the interference lawful; It should additionally recognize the proportionality idea.

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 once prosecuted in Italy and Germany for a similar act of organised fraud. While lawsuits towards him had been nonetheless ongoing in Germany, the place mr. Spasic was once being detained, he had already been convicted in absentia in Italy. The Italian sanction had no longer been performed. Mr. Spasic argued that his prosecution in Germany violated the main of ne bis in idem, as a result of his conviction in Italy. The German prosecutor depended on Article 54 CISA, which didn’t limit prosecution in Germany for the reason that Italian sanction was once neither (within the technique of) being enforced nor had it transform unenforceable. 

In reviewing whether or not the Article 54 CISA violated the main of ne bis in idem through allowing the duplication of lawsuits, the Court docket dominated in paragraphs 58 and 59 of its judgment: 

As regards the essence of that idea, it should be famous that […] the execution situation laid down in Article 54 CISA does no longer name into query the ne bis in idem idea as such. That situation is meant, inter alia, to steer clear of a state of affairs by which an individual definitively convicted and sentenced in a single Contracting State can not be prosecuted for a similar acts in every other Contracting State and due to this fact in the end stays unpunished if the primary State didn’t execute the sentence imposed […].

It follows {that a} provision corresponding to Article 54 CISA should be thought to be respecting the essence of the ne bis in idem idea enshrined in Article 50 of the Constitution.

This definition is emblematic of the Court docket’s sensible and pragmatic method to the essence of rights. It focuses solely on the real results for the individual involved. If there was no precise duplication of sanctions, the essence of ne bis in idem is revered. This can be a believable and simple preliminary definition that are supposed to be supported, despite the fact that it leaves crucial query unanswered: When are two sanctions imposed for the identical behavior? The idem criterion is usually a helpful method for adjusting the scope of the main and thereby the level 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 in the past clean line. Mr. Menci had gained an administrative penalty of punitive personality for failing to pay VAT, and was once therefore being prosecuted for a similar act. Below nationwide legislation, the executive penalty may just handiest be enforced if the prison lawsuits didn’t in the end lead to a conviction. This means obviously revered the essence of ne bis in idem, as formulated in Spasic, as a result of no two sanctions may just in reality be enforced. But the query rose whether or not this additionally implemented to duplication of lawsuits. 

In addressing this query, the Court docket muddled it in the past simple definition (paragraph 41) and opened the door to the imposition of 2 sanctions through preserving that

nationwide regulation, corresponding to that at factor in the primary lawsuits, respects the crucial content material of Article 50 of the Constitution, since, in line with the tips within the case report sooner than the Court docket, it permits any such duplication of lawsuits and consequences handiest below stipulations which might be exhaustively outlined, thereby making sure that the proper assured through Article 50 isn’t known as into query as such (emphasis added).

It’s noticeable that the Court docket neither recollects nor references its findings at the essence of ne bis in idem from Spasic. By way of noting that the duplication of lawsuits and consequences respects the essence of ne bis in idem if the stipulations are exhaustively outlined, the Court docket seems to be moving clear of its in the past clean line. The implication is that a person can now be punished two times for a similar act if the stipulations for doing so are exhaustively outlined. 

This consequence is problematic, from a realistic and conceptual standpoint. In any case, whether or not the proper to not be punished two times is rendered meaningless is dependent only at the consequence for the person involved. Are they subjected to 2 sanctions for a similar act or no longer? Whether or not the cases by which two sanctions may also be imposed are narrowly circumscribed is inappropriate if each are imposed on the finish of the day. For the reason that Court docket didn’t reiterate its earlier definition of essence (the prohibition of a real duplication of sanctions), it prepared the ground for forsaking that definition. 

The Essence of ne bis in idembpost

The Grand Chamber’s disimprovement of the essence of ne bis in idem in Menci gained particular critique from AG Bobek in his Opinion in bpost as a part of a much broader problem to the ECJ’s general method to reviewing imaginable violations of the main. In issues 110 and 113 of his Opinion, the AG writes:

I’m fairly perplexed as to how the main ne bis in idem, designed in any such means, is in a position to proceed protective the very essence of the proper enshrined in Article 50 of the Constitution. The rationale supplied particularly in Menci does no longer explain the topic to any extent further. In its judgment, the Court docket merely axiomatically said that the regulation at factor ‘respects the crucial content material of Article 50 of the Constitution, since … it permits [the] duplication of lawsuits and consequences handiest below stipulations which are exhaustively outlined’. To me, that commentary seems to narrate extra to the situation of legality of the limitation at factor (‘prescribed through legislation’). So far as the essence of the rights is anxious, I’ve problem in seeing how the essence of ne bis in idem is secure through a transparent and specific commentary in nationwide legislation that there shall be a 2d set of lawsuits.

[T]he precise degree of particular person coverage supplied through Menci seems to be fairly low. The essence of the proper to be secure towards a 2d set of prison lawsuits for a similar offence is regarded as to be preserved merely for the reason that accused may just foresee that she or he can be prosecuted for a 2d time. 

The AG in the end concludes that during Menci, ‘the very essence of Article 50 of the Constitution was once misplaced’. Granted, the Court docket had in the past authorized a 2d set of lawsuits in Spasic so long as no 2d sanction was once in reality enforced, and this was once no longer at stake in Menci. Alternatively, the wording in Menci and the Court docket’s failure to recall absolutely the prohibition from Spasic prepared the ground for the real imposition of 2 sanctions for a similar act, thereby rendering the proper meaningless to the person right-holder. 

Sadly, the AG’s next complete proposal of a brand new check for reviewing alleged violations of ne bis in idem didn’t explicitly supply a brand new definition of the essence of that idea. Nonetheless, AG Bobek’s proposal does no longer war with the definition of essence in Spasic. The primary innovation of his proposal was once to take the target pursued through a sanction into consideration as a part of the idem part, thereby restricting the scope of ne bis in idem and of its essence. The scope of the main and its essence are narrowed with out introducing a much broader permission of twin sanctioning.  

The Grand Chamber does no longer apply the AG’s proposal and as an alternative maintains, in paragraph 36 of the judgment, that the idem part calls for simply an id of subject material info, ‘a suite of concrete cases stemming from occasions which might be […] the similar, in that they contain the similar culprit and are inextricably related in combination in time and area’. Whilst the Court docket leaves it to the nationwide pass judgement on to decide whether or not the idem part is met within the underlying case, it continues to supply steerage on how a imaginable interference with Article 50 CFREU will have to be assessed.

On the subject of the essence of the proper to not be punished two times, the Court docket continues to clutter the water. As soon as once more, the Grand Chamber does no longer explicitly reference the definitions it in the past followed in Spasic or Menci when it laws that 

The sort of risk of a duplication of lawsuits and consequences respects the essence of Article 50 of the Constitution, only if the nationwide regulation does no longer permit for lawsuits and consequences in recognize of the similar info at the foundation of the similar offence or in pursuit of the similar purpose, however supplies just for the potential for a duplication of lawsuits and consequences below other regulation (emphasis added).

The Grand Chamber narrows the definition of the essence of ne bis in idem down additional, in large part erasing its which means within the procedure. If bpost had in reality been sanctioned two times for the identical behavior, the Court docket does no longer imagine this a contravention of the essence of ne bis in idem for the reason that sanctions glide from two other units of regulation. The case legislation now signifies that a contravention of the essence of ne bis in idem calls for 3 cumulative stipulations to be met: 

  1. Two sanctions are in reality imposed for a similar behavior;
  2. The stipulations for the duplication of sanctions aren’t exhaustively outlined;
  3. The sanctions are imposed below the similar regulation. 

This definition is not puzzling, however staggering. The core of the proper to not be punished two times is now so slim that it should smartly lack any which means in instances the place a person is sanctioned below each administrative and prison legislation, without reference to whether or not the previous has a punitive personality or no longer. The similar applies to instances by which a person is prosecuted and in reality sanctioned for a similar act through two Member States below their nationwide rules. What stays of the proper to not be punished two times in instances the place a person is in reality sanctioned two times 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 supplies in bpost is emblematic of the demanding situations that the Court docket faces when defining the essence of rights. At the beginning, the essence of rights is an elusive idea, particularly in follow; It’s tricky to offer a normal definition of the core of a appropriate, or the purpose at which restrictions render it meaningless. Secondly, the essence of a appropriate leaves little room for flexibility as soon as it’s been outlined. The impenetrable core of a appropriate should no longer be matter to any restrictions, without reference to how fascinating or justified they are going to appear. This can be a really extensive judicial intervention within the powers of the legislature. The essence of a appropriate could also be extremely proof against changes through its very nature. Against this to proportionality assessment, the place in the past prohibited restrictions may also be justified through a next trade of cases, the very thought of an essence is undermined if its scope is incessantly altered. 

This precisely seems to be going down within the line of judgments from Spasic by means of Menci to bpost. The Court docket progressively reduces the scope of the essence of ne bis in idem, and thereby the variability of measures which are by no means permissible. But at nearer inspection, it turns into clean that the Court docket’s method to reviewing whether or not the essence of ne bis in idem has been violated avoids this downside. The Court docket handiest supplies destructive definitions of essence in Spasic, Menci, and bpost – it handiest concludes that the measure to hand does no longer 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 divulge. It’s similarly legitimate for the Court docket to reason why therefore that the core of ne bis in idem is in reality even smaller. This means contrasts with the sure definition of the essence of the proper to personal reside that the Court docket formulated in Schrems I (cited above) and which isn’t open to next shrinking. The implication is that we can not know the essence of a appropriate with walk in the park till the Court docket has given a favorable definition. 

Nonetheless, even destructive definitions might ultimately achieve the purpose the place the core can’t be reduced in size to any extent further with out lowering the proper to felony fiction. Following bpost, and consistent with AG Bobek’s critique, this has arguably came about to ne bis in idem. With enough justification, the similar particular person might now be subjected to 2 distinct sanctions for a similar act, with the one limitation being that the ones sanctions should be exhaustively outlined and glide from other items of regulation. The latter requirement is met through default when a person is prosecuted in a couple of Member State, and the previous supplies very restricted coverage, as AG Bobek notes in level 113 of his Opinion.

The Grand Chamber’s method to defining the essence of ne bis in idem in Spasic, Menci and bpost addresses the primary demanding situations of defining the essence of elementary rights via restraint and ambiguity. This permits the Court docket to offer judgment with out overreaching or interfering with the powers of the Ecu and Member States’ legislatures. But the end result of this means in bpost is that the main of ne bis in idem has successfully been disadvantaged of its essence and might now be rendered meaningless if there are enough countervailing pursuits. 



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