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
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 already 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
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