Copyright and the dual-track sanctions system: limits on combining criminal and administrative penalties (Supreme Sourt No. 15440/2026)

When an administrative penalty is only formally “administrative”

The key issue is whether the sanction provided for by Article 174-bis of the Copyright Act is genuinely an administrative penalty in the strict sense, or whether, despite being labelled “administrative”, it is in fact punitive in nature.

In ordinary language, criminal and administrative penalties tend to be clearly distinguished. Criminal law evokes proceedings, conviction and punishment. Administrative law, by contrast, brings to mind fines, administrative orders and enforcement action by public authorities. In legal terms, however, this distinction is not always sufficient.

European case law has long established that a sanction may be regarded as “criminal” not only where domestic law expressly classifies it as such, but also where, in substance, it performs a repressive, punitive and deterrent function. This assessment is based on the three Engel criteria, developed by the European Court of Human Rights in its judgment in Engel and Others v. the Netherlands of 8 June 1976.

The first criterion concerns the classification under domestic law: it is necessary to determine whether, under national law, the offence is classified as criminal, administrative, disciplinary or otherwise. This criterion, however, is only the starting point.

The second concerns the nature of the offence: the function of the relevant rule must be examined to determine whether it pursues general punitive purposes.

The third concerns the degree of severity of the penalty: the more serious, burdensome and deterrent the sanction is, the closer it comes to the criminal sphere.

The Supreme Court follows precisely this approach. In Judgment No. 15440/2026, it refers to the case law of the European Court of Human Rights and, in particular, to the “well-known Engel criteria”, stressing that the formal classification of the proceedings and sanction under domestic law is not decisive; what matters is their substantively punitive nature. In other words, the mere fact that Article 174-bis of the Copyright Act refers to an “administrative financial penalty” is not, in itself, sufficient to exclude the application of the safeguards associated with criminal proceedings.

Drawing on previous Supreme Court case law on the subject, the Court places particular emphasis on the structure of the penalty under Article 174-bis: as a general rule, it is calculated at twice the market price of the work or medium involved in the infringement, multiplied by the number of unlawfully duplicated or reproduced copies. According to the Court, this method of calculation clearly demonstrates the “strongly deterrent” function of the penalty.

It is therefore not a measure designed merely to recover an amount due or compensate for loss. The penalty is structured to have an economic impact on the offender and to deter repetition of the infringement. In this sense, although formally administrative, it may be substantively criminal in nature.

This is where the problem of cumulative sanctions arises: if the administrative penalty is substantively punitive, the dual-track system no longer combines a criminal punishment with a genuinely distinct administrative measure. Instead, it combines two punitive responses: one expressly criminal and the other administrative in name only.

The ne bis in idem limit: no one may be punished twice for the same act

At this point, the ne bis in idem principle comes into play. It is recognised under Italian law by Article 649 of the Italian Code of Criminal Procedure and, at the supranational and European level, by Article 4 of Protocol No. 7 to the ECHR and Article 50 of the Charter of Fundamental Rights of the European Union.

The expression may sound technical, but the principle is straightforward: a person may not be tried or punished twice for the same act once that matter has already been determined by a final decision. The principle is intended to prevent individuals from remaining indefinitely exposed to multiple punitive proceedings based on the same conduct.

The ne bis in idem principle does not merely protect against the risk of receiving two penalties. It also protects against the burden of having to undergo a second set of proceedings: costs, uncertainty, duration and repeated exposure to the State’s punitive power. For this reason, the issue arises not only where there are two convictions, but also where, after one proceeding has been finally concluded, another substantively punitive proceeding continues in respect of the same facts.

In copyright law, as we have seen, this risk is particularly evident because Article 171-ter and Article 174-bis of the Copyright Act may apply to the same material conduct. If criminal and administrative proceedings continue without coordination, the person concerned may be exposed to duplicate punishment.

This is precisely the aspect emphasised by the Supreme Court in Judgment No. 15440/2026. Referring also to the case law of the Italian Constitutional Court, it observed that the administrative penalty under Article 174-bis of the Copyright Act may be substantively criminal in nature and that, where there is already a final criminal judgment concerning the same facts, continuation of the administrative sanctioning proceedings breaches the ne bis in idem principle.

The point is not to weaken copyright protection. Infringements of copyright and related rights must be subject to sanctions that are effective, proportionate and dissuasive. Effectiveness and deterrence, however, do not justify the unlimited duplication of penalties.

The system should therefore distinguish more clearly between the functions performed by the different sanctions or introduce coordination mechanisms between criminal and administrative proceedings. Otherwise, the dual-track system risks turning into two punitive proceedings for the same conduct.