EU Advocat General: Opinion in Case C-27/22 Volkswagen Group Italia and Volkswagen Aktiengesellschaft

Thursday 30th March 2023

Opinion in Case C-27/22 Volkswagen Group Italia and Volkswagen Aktiengesellschaft

(Approximation of Laws)

The principle of non bis in idem prohibits the joinder of criminal proceedings or penalties for the same acts against the same person. This principle is enshrined in Article 50 of the Charter of Fundamental Rights of the European Union (“Charter”). This case is concerned with the cross-border application of that principle and the difficulties it raises.

The Volkswagen group marketed worldwide 10.7 million diesel vehicles fitted with devices which altered the measurement of pollutant emissions for the purposes of their type-approval under European regulations. Seven hundred thousand of these vehicles were sold in Italy.

On August 4, 2016, the Italian Competition Authority fined Volkswagen and its Italian subsidiary €5 million on the grounds that the sale of these vehicles and the misleading advertising of them – by highlighting their compliance with environmental regulations – constituted unfair commercial practices. Volkswagen challenged before the Italian courts the fine, which was the highest fine for such an infringement. Under Italian law, such infringements and their sanction are administrative in nature.

Before the Italian courts could rule, the Brunswick Public Prosecutor’s Office, which had instituted criminal proceedings in Germany against Volkswagen, notified Volkswagen that it had been ordered to pay a penalty of €1 billion for the worldwide marketing of the aforementioned vehicles and its advertising of them. The penalty responded to the negligent behavior in installing the tricked devices. Volkswagen did not contest the penalty and paid the fine on June 18, 2018.

On April 3, 2019, the Italian courts dismissed Volkswagen’s appeal, despite the fact that it would have been ordered to pay the penalty in Germany, as they found that the penalty imposed by the Italian competition authority had a different legal basis, so that the non bis in idem principle did not represent any obstacle for the company to be sanctioned in Italy.

Volkswagen appealed the judgment to the Italian Council of State, which has referred several questions to the Court of Justice for a preliminary ruling on the application of the non bis in idem principle to this case.

Background Documents C-27/22