Maasimo Orsi and Luciano Baldetti

On 5 April 2017, the Court of Justice (Fourth Chamber) delivered its judgment in joined cases C‑217/15 and C‑350/15 on the meaning of the “same person” requirement for the application of the ne bis in idem principle guaranteed in Article 50 of the EU Charter.

Criminal proceedings have been brought against Mr Orsi and Mr Baldetti on the ground that they failed, in their capacity as legal representatives of, respectively, S.A. COM Servizi Ambiente e Commercio Srl and Evoluzione Maglia Srl, to pay within the time limit stipulated by law, VAT due on the basis of the annual return in respect of the tax periods at issue in the main proceedings.

Before those criminal proceedings were initiated, the amounts of VAT at issue in the main proceedings were subject to an assessment by the tax authorities, which not only calculated that tax liability, but also imposed a tax penalty on S.A. COM Servizi Ambiente e Commercio and on Evoluzione Maglia, equivalent to 30% of the amount of VAT owed. Following a transaction relating to those assessment measures, they became definitive, without being contested.

In this context, the referring court asks, in essence, whether Article 50 of the EU Charter must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which allows criminal proceedings to be brought for non-payment of VAT, after the imposition of a definitive tax penalty with respect to the same act or omission.

The Court first noted that the application of the ne bis in idem principle guaranteed in Article 50 of the EU Charter presupposes that it is the same person who is the subject of the penalties or criminal proceedings at issue.

In this case, the tax penalties were imposed on two companies with legal personality, namely S.A. COM Servizi Ambiente e Commercio and Evoluzione Maglia, whereas the criminal proceedings relate to Mr Orsi and Mr Baldetti, who are natural persons.

The Court therefore considered that the condition for the application of the ne bis in idem principle, according to which the same person must be subject to the penalties and criminal proceedings at issue, appears not to be satisfied.

The Court further specified that, the fact that criminal proceedings have been brought against Mr Orsi and Mr Baldetti in respect of acts or omissions committed in their capacity as legal representatives of companies which were subject to tax penalties is not capable to change the conclusion reached in the previous point.

The Court concluded that Article 50 of the EU Charter must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which permits criminal proceedings to be brought for non-payment of value added tax, after the imposition of a definitive tax penalty with respect to the same act or omission, where that penalty was imposed on a company with legal personality, while those criminal proceedings were brought against a natural person.