Competition Fine Against bpost Annulled On “Double Jeopardy” Grounds

On 10 November 2016, the Brussels Court of Appeal (the “Court”) annulled a fine imposed on bpost by the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence) (“BCA”). Bpost is the Belgian government-controlled incumbent postal services company.

On 10 December 2012, the BCA had imposed a fine of EUR 37,399,786 on bpost (then called De Post / La Poste) on account of an anticompetitive quantitative rebate scheme granted to large clients and intermediaries that had been applied from January 2010 until July 2011 (See VBB on Belgian Business Law, Volume 2012, No. 12, p. 3-4, available at www.vbb.com).

This was not the first time bpost had been fined in relation to this rebate scheme. In July 2011, the Belgian Institute for Postal Services and Telecommunications (“BIPT”) (Belgisch Instituut voor Postdiensten en Telecommunicatie / Institut belge des services postaux et des télécommunications), Belgium’s federal telecommunications and postal regulator, had fined bpost EUR 2,300,000 because it considered the rebate scheme discriminatory and in breach of the postal regulatory framework. In its subsequent decision, the BCA decided to deduct this amount from the fine which it imposed for breach of competition law.

Bpost appealed both decisions to the Brussels Court of Appeal. In a judgment dated 10 March 2016, the Court annulled the BIPT’s decision as it found that there was no discrimination. Eight months later, on 10 November 2016, the same Court also annulled the BCA’s decision, this time on “double jeopardy” grounds (“non bis in idem”).

Pursuant to the non bis in idem principle, no one can be tried or punished for an offence for which he/she has already been convicted or acquitted (Article 4 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms). The Court found that the BCA had infringed this principle as BIPT had already fined bpost for the rebate scheme at issue. Although BIPT had based its fine on a different legal ground than the BCA, the Court found that the three conditions for the application of the non bis in idem principle were satisfied: (i) both the BIPT’s and the BCA’s fines were of a criminal nature; (ii) both proceedings concerned the same facts (i.e., the same rebate scheme); and (iii) the judgment of the Court of 10 March 2016 made the BIPT proceedings final. As a result, the non bis in idem principle prevented the BCA from investigating and penalising bpost a second time. The Court noted that it was not sufficient for the BCA to deduct the fine already imposed by BIPT to avoid the application of the non bis in idem principle. Therefore, the Court annulled the decision of the BCA in its entirety.

The BCA can appeal this judgment to the Supreme Court (Hof van Cassatie / Cour de cassation) on points of law only.