(Charter of Fundamental Rights of the European Union — Field of application — Article 51 — Implementation of European Union law — Punishment of conduct prejudicial to own resources of the European Union — Article 50 — Ne bis in idem principle — National system involving two separate sets of proceedings, administrative and criminal, to punish the same wrongful conduct — Compatibility)
SOURCE: Court of Justice of the European Union, Annual report 2013
In Case C-617/10 Åkerberg Fransson (judgment of 26 February 2013), the Court observed, first of all, referring to its consistent case-law on the scope of fundamental rights in the European Union and to the explanations relating to Article 51 of the Charter of Fundamental Rights, that the fundamental rights guaranteed by that charter must be complied with where national legislation falls within the scope of European Union law. Situations which are covered in that way by European Union law cannot therefore exist without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter of Fundamental Rights.
As regards the tax penalties and criminal proceedings for tax evasion — owing to false information concerning value added tax (VAT) being provided — which formed the subject matter of the main proceedings, the Court held that they constituted implementation of a number of provisions of European Union law on VAT and the protection of the financial interests of the European Union and, accordingly, implementation of European Union law within the meaning of Article 51(1) of the Charter. The fact that the national legislation upon which those tax penalties and criminal proceedings were based was not adopted in order to transpose Directive 2006/112 cannot call that conclusion into question, since the application of that legislation is designed to penalise an infringement of that directive and is therefore intended to implement the obligation imposed on the Member States to impose effective penalties for conduct prejudicial to the financial interests of the European Union.
Referring to its judgment in Melloni, delivered on the same day, the Court also observed that, where a national court is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter, national courts and authorities remain free to apply national standards of protection of fundamental rights. However, the level of protection provided for by the Charter of Fundamental Rights, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law must not be thereby compromised.
Next, as regards the ne bis in idem principle laid down in Article 50 of the Charter of Fundamental Rights, the Court observed that that principle does not preclude a Member State from imposing successively, for the same fraudulent acts in connection with declaration obligations in the field of VAT, a tax penalty and a criminal penalty, in so far as the first penalty is not criminal in nature. The question of whether tax penalties are criminal in nature must be assessed on the basis of three criteria: the legal classification of the offence under national law, the very nature of the offence and the nature and degree of severity of the penalty that the person concerned is liable to incur.
Last, the Court held that European Union law precludes a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter of Fundamental Rights conditional on that infringement being clear from the text of that charter or from the relevant case-law, since that practice withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice, whether that provision is compatible with the Charter of Fundamental Rights.
(Reference for a preliminary ruling — Competition — Article 82 EC — Abuse of a dominant position — Regulation (EC) No 1/2003 — Article 3(1) — Application of national competition law — Decision of a national competition authority to impose one fine on the basis of national law and another on the basis of EU law — Charter of Fundamental Rights of the European Union — Article 50 — Principle of ne bis in idem — Whether applicable)
SOURCE: Court of Justice of European Union, Annual Report 2019
In the judgment in Powszechny Zakład Ubezpieczeń na Życie delivered on 3 April 2019, the Court ruled, in essence, on the interpretation of the principle ne bis in idem enshrined in Article 50 of the Charter. The request was made in proceedings between Powszechny Zakład Ubezpieczeń na Życie S.A., an insurance company, on the one hand, and the Polish competition authority, on the other, concerning a decision of the latter to fine the former for an abuse of a dominant position on the basis of infringements of national and EU competition law.
In that context, the Court held that the principle ne bis in idem does not preclude a national competition authority from fining an undertaking in a single decision for an infringement of national competition law and for an infringement of Article 82 EC (now Article 102 TFEU). In such a situation, the national competition authority must nevertheless ensure that, taken together, the fines are proportionate to the nature of the infringement.
The Court stated that it followed from its case-law that that principle aims to prevent an undertaking from being found liable or proceedings being brought against it afresh, which assumes that that undertaking was found liable or declared not liable by an earlier decision that can no longer be challenged.
Consequently, the Court held that the principle ne bis in idem should not apply to a situation in which the national competition authority applies, in accordance with Article 3(1) of Regulation No 1/2003, national competition law and EU competition rules in parallel and, under Article 5 of that regulation, fines an undertaking in a single decision for an infringement of that law and for disregarding those rules.