TIM Obtains Major Victory on Ne Bis in Idem Principle

June 27, 2022

Cleary Gottlieb represented Telecom Italia (TIM) in obtaining a major victory on the ne bis in idem principle.

By a judgment rendered on June 27, 2022, the Italian Administrative Supreme Court (Council of State) upheld the ruling of the Regional Administrative Court of Lazio and confirmed the annulment of a decision by which the Italian Competition Authority (ICA) fined TIM for alleged unsolicited supplies of TIM-branded products (such as cordless phones and laptops), in violation of the ban on unfair practices.

At the time the ICA issues its decision, the same facts had already been investigated by the Italian Communications Authority (AGCom), which had partly acquitted and partly sanctioned TIM.

In these circumstances, the Council of State held that the ICA’s decision amounted to a violation of the ne bis in idem principle set out in Article 4 of the Protocol 7 of the European Convention of Human Rights (ECHR) and Article 50 of the Charter of Fundamental Rights of the European Union (Charter). In reaching its conclusion, the Council of State confirmed that the ne bis in idem principle applies to consumer protection investigations in Italy insofar as they may lead to the application of “criminal” sanctions pursuant to ECHR and the Charter.

The judgement is the first case of annulment of an ICA’s decision on unfair practices for violation of the ne bis in idem principle. It acts as a warning for administrative authorities responsible for consumer protection in Italy to avoid any duplication of investigations on the same facts, which regrettably has often occurred, in particular in regulated sectors.