We resume in this round the analysis of the objections raised by the Italian Data Protection Authority’s decision of June 6, 2024 against ENI Plenitude, regarding telemarketing and teleselling (web doc. no. 10029424) adding some reflections originated from the subsequent decision, also related to the energy sector, against Hera Comm of July 17, 2024 (web doc. no. 10053211), which was announced in the authority’s newsletter of 09/13/2024.
The ENI Plenitude decision includes the order for the imposition of an administrative fine of approximately 6 million 500 thousand euros and that of its publication on the official website of the authority, as a result of promotional calls made without the consent of the interested party or addressed to numbers registered in the Register of Public Oppositions as well as for the absence of controls on contracts acquired through illicit contacts.
The decision against Hera Comm includes the imposition of a fine of 5 million euros for deficient organizational measures for verification and control of the work of its agents as data processors and for inadequate controls over contracts acquired through illicit contacts as well as for delayed or incomplete response to the exercise of rights.

Ne bis in idem
Considering the prior cases involving ENI Plenitude in relation to the same matters of law – telemarketing activities in the absence of legally valid consent and execution of unsolicited contracts – the question arose as to whether the 2024 decision violated “the prohibition against subjecting to a new trial a defendant who has been acquitted or definitively convicted for the same fact, even if considered differently in terms of title, level or circumstances” (“ne bis in idem,” Article 699 of the Code of Criminal Procedure).
On this issue, see also the commentary that appeared in Agenda Digitale regarding the Constitutional Court’s ruling on copyright.
The Supervisory Authority, after reiterating that this principle represents a canon of civilization and a fundamental human right, recalls how it is provided for both by the Charter (Art. 50) and the ECHR (Prot. No. 7, Art. 4).
Without prejudice to the fact that for proceedings before the Guarantor, the relevant decisions become final and unobjectionable if
- the time limits for appeal have expired or
- all means of appeal provided for (appeal before the court and appeal to the Supreme Court) have been exhausted,
the principle of “ne bis in idem” finds application only in the presence of the requirement of the identity of the naturalistic fact that is the subject of the decision, rather than the coincidence of the “normative basis of the reproach.”
With cogent argumentation, the authority notes that if the contrary interpretation were to be followed, it would reach the paradox that – once it had incurred a first measure – “the data controller could violate the same provisions again and ad libitum, going exempt from any reprimand and/or sanction.”