By Foo Yun Chee
BRUSSELS (Reuters) - Volkswagen (ETR:VOWG_p)'s attempt to avoid being penalised twice for the same offence in the dieselgate scandal will depend on whether the wrongdoing is identical or just similar, Europe's top court said on Thursday.
An Italian court will have the final say based on the reference provided by the Luxembourg-based Court of Justice of the European Union (CJEU).
The case centred on Volkswagen's challenge against a 5-million-euro ($5.4 million) Italian antitrust fine levied in 2016 for its misleading advertising about cars fitted with illegal emissions control devices.
The German carmaker said it should not be sanctioned twice for the same offence after it separately paid a 1 billion euro German fine in 2018. The diesel emissions scandal has cost Volkswagen more than 32 billion euros in refits, fines and legal costs so far.
The Italian court in its 2019 ruling dismissed Volkswagen's appeal, saying there was no double jeopardy involved as the Italian fine derived from a different legal basis. The company took its case to the Italian Council of State which then sought advice from the CJEU.
Double jeopardy "may apply only where the facts to which the two sets of proceedings or the two penalties at issue relate are identical; it is therefore not sufficient that those facts be merely similar," CJEU judges said.
The case is Opinion in Case C-27/22 Volkswagen Group Italia and Volkswagen Aktiengesellschaft.
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