CJEU Case C-27/22 / Judgment

Volkswagen Group Italia S.p.A. and Volkswagen Aktiengesellschaft v Autorità Garante della Concorrenza e del Mercato
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Type
Decision
Decision date
14/09/2023
ECLI (European case law identifier)
ECLI:EU:C:2023:663
  • CJEU Case C-27/22 / Judgment

    Key facts of the case: 

    Reference for a preliminary ruling – Article 50 of the Charter of Fundamental Rights of the European Union – Principle ne bis in idem – Penalty imposed concerning unfair commercial practices – Criminal nature of the penalty – Criminal penalty imposed in a Member State after the adoption of a penalty concerning unfair commercial practices in another Member State but which became final before the latter penalty – Article 52(1) – Limitations to the principle ne bis in idem – Conditions – Coordination of proceedings and penalties.

     

    Outcome of the case: 

    On those grounds, the Court (First Chamber) hereby rules:

    1.      Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that an administrative fine provided for under national legislation, which is imposed on a company by the competent national consumer protection authority for unfair commercial practices, although classified as an administrative penalty under national legislation, constitutes a criminal penalty, for the purposes of that provision, where it has a punitive purpose and has a high degree of severity.

    2.      The principle ne bis in idem enshrined in Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation which allows a fine of a criminal nature imposed on a legal person for unfair commercial practices to be maintained where that person has been the subject of a criminal conviction in respect of the same facts in another Member State, even if that conviction is subsequent to the date of the decision imposing that fine but became final before the judgment in the judicial proceedings brought against that decision acquired the force of res judicata.

    3.      Article 52(1) of the Charter of Fundamental Rights of the European Union must be interpreted as authorising the limitation of the application of the principle ne bis in idem, enshrined in Article 50 of that charter, so as to permit a duplication of proceedings or penalties in respect of the same facts, provided that the conditions laid down in Article 52(1) of the abovementioned charter, as defined by the case-law, are satisfied, namely (i) that such duplication does not represent an excessive burden for the person concerned, (ii) that there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication, and (iii) that the sets of proceedings in question have been conducted in a manner that is sufficiently coordinated and within a proximate timeframe.

  • Paragraphs referring to EU Charter

    23) In the proceedings pending before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio), VWGI and VWAG alleged, inter alia, that the decision at issue had subsequently become unlawful on the ground of infringement of the principle ne bis in idem referred to in Article 50 of the Charter and in Article 54 of the CISA.

    ...

    27) In that regard, it notes that it is apparent from the case-law of the Court, in particular from its judgment of 20 March 2018, Garlsson Real Estate and Others (C‑537/16, EU:C:2018:193, paragraph 63), that Article 50 of the Charter must be interpreted as precluding national legislation which permits the possibility of bringing proceedings for an administrative fine of a criminal nature against a person in respect of unlawful conduct consisting in market manipulation for which the same person has already received a final criminal conviction, in so far as that conviction is, given the harm caused to society by the offence committed, such as to punish that offence in an effective, proportionate and dissuasive manner.

    ...

    31) In the third and last place, the referring court notes that it is apparent from the case-law of the Court that a limitation of the application of the principle ne bis in idem guaranteed by Article 50 of the Charter may be justified on the basis of Article 52(1) thereof. It therefore considers that the question also arises as to whether the provisions of the Consumer Code applied in the decision at issue, which transpose Directive 2005/29 and are aimed at protecting the consumer, may be relevant in the light of Article 52 of the Charter.

    32) The referring court notes in that regard that, according to that case-law, any limitations of Article 50 of the Charter are permitted only where they satisfy a certain number of conditions. In particular, it states that such limitations must be based on an objective of general interest which would justify the duplication of penalties, be laid down by clear and precise rules, ensure coordination of proceedings and comply with the principle of proportionality of the penalty. However, in the referring court’s view, it appears, in the present case, that there is no clear and precise rule which would enable the duplication of penalties to be predicted, that no coordination has been provided for in respect of the sets of proceedings at issue, and that the maximum penalty was imposed in the context of those sets of proceedings.

    33) In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    (...)

    (2) Must Article 50 of the [Charter] be interpreted as precluding a national provision that makes it possible to uphold in court proceedings and make final a criminal [financial] administrative penalty against a legal person in respect of unlawful conduct in the form of unfair commercial practices, for which a final criminal conviction has been handed down against that person in the meantime in a different Member State, where the latter criminal conviction became final before the [decision in the judicial proceedings brought against] the former criminal [financial] administrative penalty became res judicata?

    (3) Can the provisions laid down in Directive 2005/29, with particular reference to [Article] 3(4) and [Article] 13(2)(e) [of that directive], justify a derogation from the principle … ne bis in idem established by Article 50 of the [Charter] and by Article 54 of the [CISA]?’

    34) The AGCM contends that the questions referred should be dismissed as inadmissible since they are not relevant for the purposes of resolving the dispute in the main proceedings. First, it argues that Article 50 of the Charter and Article 54 of the CISA are not applicable in the present case since the German legislation relating to liability of legal persons, on the basis of which the German decision was adopted, does not arise from EU law. Second, it contends that, whereas the principle ne bis in idem prohibits the duplication of proceedings and penalties in respect of the same facts, there is no identity of the facts in the present case, given that the decision at issue and the German decision relate to different persons and conduct. According to the AGCM, Article 3(4) of Directive 2005/29 in any event precludes such identity.

    ...

    36) As regards, first, the interpretation of Article 50 of the Charter, it should be noted that the scope of that charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 23 March 2023, Dual Prod, C‑412/21, EU:C:2023:234, paragraph 22 and the case-law cited). Where, on the other hand, a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 22).

    37) In the present case, it is apparent from the explanations provided by the referring court that the decision at issue was adopted on the basis of Italian legislation transposing Directive 2005/29 and therefore constitutes an implementation of EU law for the purposes of Article 51(1) of the Charter. It follows that the Charter is applicable to the dispute in the main proceedings.

    ...

    44) Article 50 of the Charter provides that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law’. Therefore, the principle ne bis in idem prohibits a duplication both of proceedings and of penalties of a criminal nature, for the purposes of that article, for the same acts and against the same person.

    ...

    46)  Although it is for the referring court to assess, in the light of those criteria, whether the criminal and administrative proceedings and penalties at issue in the main proceedings are criminal in nature for the purposes of Article 50 of the Charter, the Court, when giving a preliminary ruling, may nevertheless provide clarification designed to give the national court guidance in its assessment.

    ...

    55) In the light of the foregoing considerations, the answer to the first question is that Article 50 of the Charter must be interpreted as meaning that an administrative fine provided for under national legislation, which is imposed on a company by the competent national consumer protection authority for unfair commercial practices, although classified as an administrative penalty under national legislation, constitutes a criminal penalty, for the purposes of that provision, where it has a punitive purpose and has a high degree of severity.

    56)  By its second question, the referring court asks, in essence, whether the principle ne bis in idem enshrined in Article 50 of the Charter is to be interpreted as precluding national legislation which allows a fine of a criminal nature imposed on a legal person for unfair commercial practices to be maintained where that person has been the subject of a criminal conviction in respect of the same facts in another Member State, even if that conviction is subsequent to the date of the decision imposing that fine but became final before the judgment in the judicial proceedings brought against that decision acquired the force of res judicata.

    ...

    61) Contrary to what the AGCM contends in its written observations, the fact that the German decision became final after VWAG paid the fine prescribed by that decision and waived its right to challenge it cannot call that finding into question. The principle ne bis in idem enshrined in Article 50 of the Charter applies once a decision of a criminal nature has become final, irrespective of the manner in which that decision has become final.

    ...

    66) According to settled case-law, the relevant criterion for the purposes of assessing the existence of the same offence is identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together and which have resulted in the final acquittal or conviction of the person concerned. Therefore, Article 50 of the Charter prohibits the imposition, with respect to identical facts, of several criminal penalties as a result of different proceedings brought for those purposes.

    67) Moreover, it is apparent from the case-law of the Court that the legal classification under national law of the facts and the legal interest protected are not relevant for the purposes of establishing the existence of the same offence, in so far as the scope of the protection conferred by Article 50 of the Charter cannot vary from one Member State to another.

    ...

    77)  In the light of the foregoing considerations, the answer to the second question is that the principle ne bis in idem enshrined in Article 50 of the Charter must be interpreted as precluding national legislation which allows a fine of a criminal nature imposed on a legal person for unfair commercial practices to be maintained where that person has been the subject of a criminal conviction in respect of the same facts in another Member State, even if that conviction is subsequent to the date of the decision imposing that fine but became final before the judgment in the judicial proceedings brought against that decision acquired the force of res judicata.

    ...

    88) In accordance with the first sentence of Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by that charter must be provided for by law and respect the essence of those rights and freedoms. According to the second sentence of Article 52(1) of the Charter, subject to the principle of proportionality, limitations of those rights and freedoms may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

    ...

    90) Such a possibility of a duplication of proceedings and penalties respects the essence of Article 50 of the Charter, provided that the pieces of national legislation concerned do 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 provide only for the possibility of a duplication of proceedings and penalties under different legislation.

    ...

    106) In the light of the foregoing considerations, the answer to the third question is that Article 52(1) of the Charter must be interpreted as authorising the limitation of the application of the principle ne bis in idem, enshrined in Article 50 of the Charter, so as to permit a duplication of proceedings or penalties in respect of the same facts, provided that the conditions laid down in Article 52(1) of the Charter, as defined by the case-law, are satisfied, namely (i) that such duplication does not represent an excessive burden for the person concerned, (ii) that there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication, and (iii) that the sets of proceedings in question have been conducted in a manner that is sufficiently coordinated and within a proximate timeframe.