The ‘ne bis in idem’ principle may be limited for the purpose of protecting the financial interests of the EU and the financial markets thereof

The Court of Justice of the European Union considers that the ne bis in idem principle may be limited for the purpose of protecting the financial interests of the EU and the financial markets thereof. However, such a limitation must not exceed what is strictly necessary to achieve those objectives (Judgment of March, 20, 2018).

The ne bis in idem principle provides that a person cannot be criminally prosecuted or punished twice for the same offence. That fundamental right is recognised both by the Charter of Fundamental Rights of the European Union (Charter)2 and by the European Convention on Human Rights (ECHR). According to the Court, in four Italian cases, the Court is requested to interpret that principle in the context of the VAT directive and of the directive concerning financial markets.

The Court considers that, in the situations referred to, there could be a duplication of ‘criminal proceedings/penalties’ and ‘administrative proceedings/penalties of a criminal nature’ against the same person with respect to the same acts. Such a duplication of proceedings and penalties constitutes a limitation of the ne bis in idem principle. The Court holds that such limitations require a justification, the latter being subject to requirements under EU law.

Requirements

In that regard, it states that national legislation authorising a duplication of proceedings and penalties of a criminal nature must:

– Pursue an objective of general interest which is such as to justify a duplication of proceedings and penalties, it being necessary for those proceedings and penalties to pursue additional objectives;

– Establish clear and precise rules allowing individuals to predict which acts or omissions are liable to be subject to such a duplication of proceedings and penalties;

– Ensure that the proceedings are coordinated in order to limit to what is strictly necessary the additional disadvantage which results, for the persons concerned, from a duplication of proceedings, and ensure that the severity of all of the penalties imposed is limited to what is strictly necessary in relation to the seriousness of the offence concerned.

It is for the national court to determine whether those conditions are satisfied in the present case and to ensure also that the disadvantages actually resulting from such a duplication for the person concerned are not excessive in relation to the seriousness of the offence committed. The Court considers finally that the conditions to which EU law subjects a possible duplication of proceedings and penalties of a criminal nature guarantee a level of protection of the ne bis in idem principle which does not infringe that guaranteed by the ECHR. On the basis of those considerations, the Court holds, in its Menci judgment, that the objective of ensuring the collection of all the VAT due in the territories of Member States is capable of justifying a duplication of proceedings and penalties of a criminal nature.

As regards the national legislation allowing criminal proceedings to be brought even after the imposition of a final administrative penalty of a criminal nature, the Court notes, subject to verification by the national court, that that legislation makes it possible in particular to ensure that the duplication of proceedings and penalties which it authorises does not exceed what is strictly necessary in order to achieve the objective.

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