Bpost is the main postal service provider in Belgium (the controller), providing services to the general public but also to bulk mailers (end consumers) and mail preparation firms (consolidators)

Facts — Bpost is the main postal service provider in Belgium (the controller), providing services to the general public but also to bulk mailers (end consumers) and mail preparation firms (consolidators). In 2011, Bpost implemented a new tariff system which calculated quantity discounts for consolidators based on the volume of mail items lodged individually by each sender. Previously, this tariff had been calculated based on the total volume of items from all senders. On the 20 July 2011, the Belgian Institute for Postal Services and Telecommunications – IBPT (Institut belge des services postaux et des télécommunications) imposed a €2,300,000 fine on the controller based on a Belgian provision, namely the Law of the 21 March 1991 on the reform of certain public commercial undertakings (Article 144bis et point 5 de l'Article 144ter(1) loi du 21 mars 1991 portant réforme de certaines entreprises publiques économiques).

The IBPT found that the new system unjustly favoured direct clients as opposed to consolidators. On the 10 December 2012, the Belgian Competition Authority (CA) also issued a decision stating that bpost had abused its dominant postion under Article 3 of the Law on the protection of competition (Article 3 of the loi du 10 juin 2006 sur la protection de la concurrence économique) and by Article 102 TFEU. With this decision, the CA also issued a €37,399,786 fine for the abuse. The decision by the IBPT was annulled in 2016 by the Court of Appeal of Brussels (Cour d’appel de Bruxelles) as the court found that the new system was not discriminatory. In 2016 then the Court of Appeal of Brussels annulled the decision of the CA based on the non bis in idem principle (it means that a legal action can’t be constituted twice for the same cause of action) as the decision of the CA and the IBPT concerned the same facts.

However, in 2018, the Court of Cassation (Cour de cassation) set aside the judgment and referred the case back to the Court of Appel of Brussels who then requested a preliminary ruling from the CJEU. Holding — The court held that in essence it had to determine whether the non bis in idem principle which is laid down in Article 50 of the EU Charter must be interpreted as precluding a legal person from being fined for an infringement of EU competition law if they were already subject to a decision on the same facts. The court analysed that the referring court had to assess whether the facts of the two decision were actually identical. Further, it stated that the referring court must assess whether the principle under Article 50 of the Charter could be disregarded on the basis of national law as provided for under Article 52(1) of the Charter. The court highlighted that the laws based on which the two institutions made their decisions pursue different aims.

Additionally, it held that although institutions should follow the proportionality principle, they can choose to complementary legal responses to an offence that is harmful to society. The different legal responses can therefore address different aspects of the problem. However, the cumulative legal responses cannot bear an excessive burden on the concerned party. The court noted that the two decisions were proximate in time and the institutions seemed to have taken their decisions in parallel. It also pointed out that the fact that the second fine was higher than the first did not automatically mean that the penalties were disproportionate. The court concluded that Article 50 of the Charter read in conjunction with Article 52(1) of the Charter must be interpreted as not precluding a legal person from being fined for an infringement of EU competition law even if they were already fined based on an infringement of sectoral rules concerning the liberalization of the market if the following requirements are met: There are clear and precise rules allowing prediction on which acts are liable to be subject to a duplication of proceedings and penalties.

These rules can also predict that there will be coordination between the two authorities. The proceedings have been conducted in a coordinated manner with a proximate timeframe. The overall penalties imposed correspond to the severity of the offence. Holding — The court held that in essence it had to determine whether the non bis in idem principle which is laid down in Article 50 of the EU Charter must be interpreted as precluding a legal person from being fined for an infringement of EU competition law if they were already subject to a decision on the same facts. The court analysed that the referring court had to assess whether the facts of the two decision were actually identical. Further, it stated that the referring court must assess whether the principle under Article 50 of the Charter could be disregarded on the basis of national law as provided for under Article 52(1) of the Charter.

The court highlighted that the laws based on which the two institutions made their decisions pursue different aims. Additionally, it held that although institutions should follow the proportionality principle, they can choose to complementary legal responses to an offence that is harmful to society. The different legal responses can therefore address different aspects of the problem. However, the cumulative legal responses cannot bear an excessive burden on the concerned party. The court noted that the two decisions were proximate in time and the institutions seemed to have taken their decisions in parallel. It also pointed out that the fact that the second fine was higher than the first did not automatically mean that the penalties were disproportionate. The court concluded that Article 50 of the Charter read in conjunction with Article 52(1) of the Charter must be interpreted as not precluding a legal person from being fined for an infringement of EU competition law even if they were already fined based on an infringement of sectoral rules concerning the liberalization of the market if the following requirements are met: There are clear and precise rules allowing prediction on which acts are liable to be subject to a duplication of proceedings and penalties. These rules can also predict that there will be coordination between the two authorities. The proceedings have been conducted in a coordinated manner with a proximate timeframe. The overall penalties imposed correspond to the severity of the offence. Comment — Share your comments here!