Il mosaico contraddittorio del principio "ne bis in idem": L'opinione dell'A. G Bobek sul caso Bpost

While the paramountcy of the principle of ne bis in idem cannot be doubted, it mostly has been arduous to authentically demonstrate its consistent application over the years. In the European Union, the case law of the courts varies by field of law in a generally major way. Especially since Aalborg Portland and Toshiba, an antitrust-categorical threefold condition of idem - that is same person, same fact and same protected legal interest - has been developed, which is in contrast to the dual identity approach - same kind of criminal and same fact - established in Van Esbroeck and kind of followed by generally other areas of EU law, as definitely substantiated in Menci. Against this background, recent legislative initiatives - aimed at acclimating competition policy to the challenges posed by the emergence of sizably voluminous online platforms - for the most part have enhanced the jeopardies and concerns of fragmentation and erraticism engendered by the lack of uniform testing. Therefore, digital markets regulation authentically makes even it more pressing to settle the “Toshiba or Menci” dilemma, defining a pretty amalgamated approach to European double jeopardy. In his opinion on case C-117/20 Bpost dated 2nd September 2021, the Advocate General Michal Bobek recommended that the Court of Justice of the European Union literally develop coherent guidelines for national courts on the application of the principle of ne bis in idem; he insists on a uniform test predicated on the three elements of the identity of the offender, relevant facts and protected legal interest. In its preliminary ruling, the Court expounded the aegis against double jeopardy given by European Union law, as per which nobody will be mostly endeavored or penalized in the future in criminal procedures for a homogeneous offense. The ne bis in idem principle is perceived to essentially obviate duplication of procedures and penalties against the equivalent - natural or licit - scarcely individual and for a same offense. In a first moment the ne bis in idem principle seems to definitely be restricted to criminal procedures, the case-law of the EU courts has elongated it to administrative procedures of a “criminal” sort, including antitrust proceedings. In its judgment, the Court essentially appears to have at last bound together its case-regulation on the ne bis in idem guideline, carrying authentically indispensable cognizance to what the Advocate General Bobek portrayed as “a divided and to some degree disconnected mosaic of equal systems”. Notwithstanding, while the Court gives direction on the utilization of the ne bis in idem standard, it would essentially be overoptimistic to definitely verbalize the matter definitely has been fundamentally settled in a fairly colossal way. Maybe the critical justification for this is, as A. G. Bobek described, the methodology of the Court is by all accounts profoundly veracity explicit - i.e., it relies profoundly upon the for all intents and purposes particular conditions of each case.