Review of European Administrative Law (REALaw)

The Application of the EU Charter of Fundamental Rights (CFR) and its Ne bis in idem Principle in the Member States of the EU

John Vervaele - Professor in Economic and European Criminal Law, Utrecht School of Law; Professor in European Crimin

This article discusses the CJEU judgment in Case C-617/10, Ă…klagaren v Hans Ă…kerberg Fransson. The judgment is a landmark decision for several reasons. Does the CFR, and its ne bis in idem principle, apply to the legal order of the Member States when they are imposing administrative tax penalties and criminal penalties in relation to VAT irregularities and fraud? Does it make a difference if these penalties have been directly prescribed by EU law or not? The CJEU sticks firmly to its classic case law regarding the application of general principles of EU law in the domestic legal order. It is essential to the CJEU that applicability of Union law and applicability of fundamental rights go hand in hand. The fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law; situations cannot exist which are covered by European Union law without those fundamental rights being applicable.

A second problem is the interaction between the CFR ne bis in idem principle and the ne bis in idem principle of article 4 ECHR-PR 7. Must the CFR ne bis idem principle be fully applied in line with the ne bis in idem principle of article 4 ECHR-PR 7, as elaborated in the case law of the ECtHR, or does it have an autonomous meaning? Could this autonomous meaning result in more restricted protection, given that not all Member States are bound or fully bound by article 4 ECHR- PR 7?

A third problem is related to the criteria to be applied in order to decide whether a sanction qualifies for a ne bis in idem application. When does a finally imposed administrative tax penalty bar a second prosecution under criminal law in the light of the ne bis in idem principle? What are the criteria for defining the criminal nature of the penalty and what are the consequences? The CJEU imposes the Engel-Bonda criteria in order to define the criminal nature of the penalty.

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