Does the prohibition of double jeopardy ("ne bis in idem") also apply in administrative law? According to the ECJ: No (with exemptions)

On 28 March 2023, the Tribunalul București (Romania) had submitted a request for a preliminary ruling to the ECJ on, inter alia, the question of whether two national authorities can fine entrepreneurial misconduct twice, but based on two different violations of the law. On 30 January 2025, the ECJ (C205/23) ruled that a restriction of the principle "ne bis in idem" is permissible under certain conditions.

Background: The principle of "ne bis in idem"

Generally, the principle of the prohibition of double jeopardy ("ne bis in idem") applies in German law as well as in European law.  It is laid out in Article 103 (3) of the German Basic Law (and at the EU level in Article 50 in conjunction with Article 52 of the EU Charter of Fundamental Rights). This principle states that no one may be punished more than once for the same wrongdoing.

In administrative law, however, the application of this principle is not always straight forward. Particularly in cases where different legal norms are affected, the question arises as to whether the provision on the prohibition of double jeopardy applies. At the center of the discussion is the question of whether the administrative measure is of a criminal nature or only represents an administrative law consequence.

In its previous rulings, the ECJ has established that the application of the "ne bis in idem" principle in administrative law is not always possible without restrictions. According to the ECJ this principle applies only if the administrative measure has a punitive effect or replaces a criminal measure.

Previous ECJ case law

In previous proceedings, the ECJ had already dealt with the question of the extent to which this has to be applied. Previous case law draws a distinction between cross-border and non-cross-border cases.

In the Toshiba matter (C-17/10) and Intel matter (C-413/14 P), cross-border situations, the ECJ considered a second sanction to be permissible only if it did not concern the same conduct under the same legal and factual aspects.

In addition, the ECJ had already in the matter of bpost (C-117/20), a purely national case, laid down the general principles of application in a purely domestic setting. According to the ECJ, a double sanction is only permissible if it pursues different protective interests, is proportionate and has been sufficiently coordinated.

The request for a preliminary ruling

The Romanian request for a preliminary ruling was based on a situation in which a natural gas supplier was fined by both the national consumer protection authority and national the energy regulator for the same measure, namely a unilateral price increase without sufficiently informing consumers. The Romanian court asked the ECJ whether in the matter at hand it was permissible to restrict the rights granted under the Charter of Fundamental Rights of the EU, or – to put if differently –  whether there was a violation of this fundamental right. Based on the previous case law of the ECJ, the core question turned on the issue of whether the restriction of the principle "ne bis in idem" was proportionate or not.

ECJ: Double sanctioning may be permissible

In the ECJ's view, a restriction of the principle of ne bis in idem may be permissible if the following cumulatively necessary conditions are met:

• (a) there must be a clear legal basis,
• (b) the sanctions must (i) pursue different public interests and (ii) be proportionate, and
• (c) sufficient coordination between the authorities must be ensured.

Consequently, in the opinion of the court, a double sanction is inadmissible if (i) there is no clear delimitation of the respective official competences and (ii) a disproportionate burden on the company concerned is the result. Whether this is the case or not, however, is to be examined by the national court and not by the ECJ.

Assessment

The validity or non-applicability of the principle of "ne bis in idem" in administrative law has so far been the subject of controversial and sometimes intense debate in case law and literature. The focus of the German discussion was in particular on the question of how broadly the term (criminal) "act" is to be interpreted for purposes of the prohibition of double jeopardy. So far, the special circumstances of the individual case have been in the limelight, and the courts have primarily examined whether multiple punishments are proportionate and legally justified.

The ECJ case law increasingly focused on the question of the affected area of protection and the affected protected interests and also emphasized the "proportionality" of the fine / penalty. With the present decision, these criteria have been formulated even more nuanced. However, these criteria are likely to lead to more frequent (permissible) double punishment in the future.

Practical note

For companies, the ECJ's decision means that they may be sanctioned multiple times in administrative proceedings and administrative sanctions for one and the same misconduct.

In order to minimize the risk of multiple sanctions, an effective compliance management system (so-called CMS) is crucial for companies. Such a system should not only ensure compliance with legal requirements, but also include mechanisms to prevent and respond to violations to minimize risks.