Charter does not prevent two types of penalties for same offence
By Anca Gurzu | Tuesday 12 June 2012
The Charter of Fundamental Rights of the European Union does not prevent a member state from sanctioning a person in criminal proceedings over facts for which administrative penalties had already been imposed, the advocate-general of the Court of Justice of the European Union stated, on June 12 (Case C-617/10).
Pedro Cruz Villalón gave his opinion on the case of Swedish national Hans Akerberg Fransson, who during 2004 and 2005 did not abide by his obligation to provide tax information in Sweden. As a result, the Swedish tax authorities imposed two fines on Fransson for tax offences. Both these fines also concerned infringements related to VAT (value-added tax), which is regulated by a 2006 EU directive. Since Fransson did not appeal the measures, the penalties became final.
In 2009, the Swedish public prosecutor brought criminal proceedings against Fransson, accusing him of tax evasion in the 2004 and 2005 fiscal years, an offence punishable by up to six years in prison. The facts at the core of the public prosecutor’s charge were the same as the ones that had led to the 2007 administrative penalty.
In this context, the ECJ was asked to give a ruling on the
ne bis in idem principle, which would prevent a member state from imposing both an administrative and a criminal penalty regarding an infringement of VAT legislation based on the same facts. This principle is a legal right recognised in the Charter of Fundamental Rights that became binding upon the adoption of the Lisbon Treaty in 2009.
The advocate-general noted that member states are affected by the provisions of the charter only when they apply EU law. In this case, he said that while the 2006 directive lays down the provisions for a common VAT system, it does not regulate the penalty system for VAT-related infringements. Hence, the advocate-general argued the case does not fall within the ECJ’s jurisdiction.
However, in case the ECJ decides it does have jurisdiction, the advocate-general noted that if a right is laid out both in the charter and in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the charter stipulates that the right must be given the same meaning and scope as in the ECHR.
ne bis in idem principle, the ECHR precludes the imposition of both an administrative and a criminal penalty based on the same facts, if the first penalty has become final. However, the advocate-general noted that there are some EU member states that have expressed reservations about this right enshrined in the ECHR. In such a case, placing the level of protection of the charter on an equal footing as that provided by the ECHR is not as effective, he stated.
Hence, the advocate-general argued that a member state can indeed bring forward criminal proceedings over facts for which administrative penalties had already been imposed. But he also noted that the national court must take into account the penalty that already exists with the purpose of mitigating the criminal penalty. The Swedish national court must decide whether such ‘offsetting’ is permitted.