Different batches, no application of the "ne bis in idem" principle

Clients often enquire whether an administrative penalty can be imposed once only or per product in connection with the placing on the market of products. Answering this question (which is rarely relevant in practice) is difficult and depends on the circumstances.

In a recent ruling, the Administrative Court of Vienna dealt with a related issue (10/02/2020, LVwG-S-2070/001-2019). In that case, the commercial director of a food manufacturer was initially prosecuted by the municipal authorities of Vienna because he had placed an impaired foodstuff on the market by distributing it to a customer. A few months later, the District Commission of Mistelbach imposed an administrative fine against the same director because an identical impaired foodstuff had been held for sale and, thereby, placed on the market as well.

The director charged with the offence argued that the impairment of both identical products resulted from the same cause, a defective temperature sensor in a heating drawer. For this reason, the second fine constituted, in his opinion, double punishment, which is inadmissible under constitutional law ("ne bis in idem").

The Administrative Court of Vienna did not follow this argument. It took the view that two individual offences had been committed, requiring separate prosecutions. The court justified this essentially on the grounds that both of the products were from different batches with different dates of manufacturing and minimum durability. This gives rise to the question (not addressed in the proceedings) of whether the court would have ruled differently if both products had been part of the same batch.