Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The CJEU explains the field of application of the Charter and interprets the ne bis in idem principle.
The judgement has been interpreted by many scholars as showing an “expansionist streak” in the of CJEU.
The case concerns Mr Hans Åkerberg Fransson, who is self-employed fisherman. The Swedish tax authorities accused him of having infringed his declaration obligations by incorrectly reporting his income, which resulted in a loss of revenue from various taxes. In 2007, the Swedish tax authorities therefore imposed tax penalties upon him.
In 2009, criminal proceedings for tax evasion were brought against Mr. Fransson by the Public Prosecutor’s Office. The acts of providing false information which have given rise to those proceedings are the same as the acts that led to the tax penalties.
(1) In its judgement, the Court had to decide whether the Charter was applicable in this case. The Court recalled that Article 51 of the Charter, together with the ‘Explanations relating to the Charter of Fundamental Rights of the European Union’, limits the scope of the Charter for Member States to situations in which they are “implementing Union law”/ “acting within the scope of Union law”. Thus, the Charter confirms the Court’s case-law according to which the fundamental rights guaranteed by the Charter must be complied with where national legislation falls within the scope of EU law.
(2) Does the admissibility of a charge of tax offences come under the ne bis in idem principle under Article 4 of Protocol No 7 to the ECHR and Article 50 of the Charter where a certain financial penalty (tax surcharge) was previously imposed on the defendant in administrative proceedings by reason of the same act of providing false information?
(1) The Court found the Charter to be applicable because the tax penalties and criminal proceedings were connected “in part” to breaches of obligations to declare VAT and hence constituted implementation of a number of provisions of EU law, which relate to VAT and to protection of the financial interests of the EU. According to the Court, this link to EU law was sufficient to trigger the applicability of the Charter. The fact that the national measures, on the basis of which the tax penalties were imposed, did not actually refer to/transpose the relevant EU directive did not matter since the overall goal of the national measures corresponded to the goal of the directive.
(2) With respect to the ne bis in idem principle, the Court observed that principle does not preclude a Member State from imposing, for the same acts of evading declaration obligations in the field of VAT, a combination of tax penalties and criminal penalties. In order to ensure that all VAT revenue is collected and, in so doing, that the financial interests of the EU are protected, the Member States have freedom to choose the applicable penalties. It is only if the tax penalty is criminal in nature and has become final within the meaning of the Charter that the principle preventing a person from being punished twice precludes criminal proceedings in respect of the same acts from being brought against the same person. The question as to whether tax penalties are criminal in nature must be assessed by national courts taking into account the following three criteria: classification in national law; nature of the offence; and nature and degree of severity of the penalty (para. 32-37).
Case Study - How often can a violation of a tax provision be sanctioned?