Direction départementale des finances publiques de la Haute-Savoie

On 5 May 2022, the First Chamber of the Court rendered a judgement regarding the interpretation of the ne bis in idem principle as enshrined in Article 50 of the Charter, and the limitations thereof.

Further to the complaint lodged with the public prosecutor’s office by the tax authorities against BV, criminal proceedings were brought against him for tax offences. Finally, BV was convicted and sentenced to 12 months’ imprisonment. Before his conviction, BV had been the subject of a tax adjustment procedure in respect of the same acts which resulted in the imposition of final tax penalties amounting to 40% of the charges evaded. BV brought an appeal before the Court de Cassation claiming that the combination of criminal penalties and tax penalties to which he had been subject was contrary to the principle of ne bis in idem.

In this context, the Court de Cassation filed a request for a preliminary ruling to the Court of Justice in order to ask, first, whether Article 50 read in conjunction with Article 52(1) of the Charter precludes a situation whereby the limitation of the duplication of proceedings and penalties of a criminal nature to the most serious cases is based only on settled case-law interpreting restrictively the legal provisions defining the conditions for the application of that duplication; and secondly, whether the said Articles preclude national legislation which does not ensure, in cases of the combination of a financial penalty and a custodial sentence, by means of clear and precise rules, that all of the penalties imposed do not exceed the seriousness of the offence identified.

The Court assessed jointly the two preliminary questions. First, it stated that the duplication of proceedings in question does constitute a limitation of the ne bis in idem principle which could be justified on the basis of Article 52(1) of the Charter provided that the following conditions are met: the limitations are provided for by law (1), they respect the essence of the right enshrined in Article 50 of the Charter (2) and they comply with the principle of proportionality (3). In order to answer both questions, the Court examined mainly the conformity of the limitation in question with the last condition, that is the principle of proportionality, as it emphasized that the first condition – that any limitation must be provided for by law – is broadly indissociable from the requirements of clarity and precision arising from the principle of proportionality.

While examining the first requirement of the proportionality principle, which requires national legislation to provide for clear and precise rules that make the duplication of proceedings and penalties foreseeable, the Court pointed out that this also reflects the nullum crimen, nulla poena sine lege principle enshrined in Article 49(1) of the Charter – which is applicable in cases of duplication of proceedings as the latter is capable of leading to a more serious outcome, for the person concerned, than that resulting from criminal proceedings alone. After recalling its case-law in terms of the legality principle, the Court ruled that the fact that the conditions required for a duplication of proceedings derive not only from legislative provisions but also from their interpretation by national courts is not, in itself, such as to call into question the clear and precise nature of the national legislation and therefore it is not contrary to Article 52(1) of the Charter, provided that the individual is in a position to ascertain from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, which acts and omissions may give rise to such a duplication of proceedings and penalties.

As far as the second question is concerned, the Court held that the third component of the proportionality principle which requires the competent authorities to ensure that the severity of all of the penalties imposed does not exceed the seriousness of the offence identified applies, without exception, to all of the penalties imposed cumulatively and, therefore, to both the duplication of penalties of the same kind and the combination of penalties of a different kind.