Ne bis in idem – addition of criminal and fiscal or administrative proceedings. The case of Italy

Abstract

The purpose of the ne bis in idem principle, one of the fundamental principles of European criminal law, is to protect the individual against the arbitrary power of a state and to prevent a state from prosecuting someone for the same offence twice.

In the case of Hans Åkerberg Fransson, C-617/10, the European Court of Justice established that applying a fiscal sanction to a person, that through its nature and effects has a punitive character, prevents the prosecution of the same person for committing the same tax evasion crimes.

The Italian cases of Luca Menci, C‑524/15, and Garlsson Real Estate S.A., C‑537/16, offered the opportunity of a reorientation in the case law of the European Court of Justice, by bringing up for the first time the issue of determining in which circumstances could the level of protection offered by the ne bis in idem principle be lowered by a duplication of criminal and punitive administrative or fiscal proceedings, for the same conduct, in the area of VAT and market abuse. The two judgements were rendered in a context where the European Court of Human Rights had just lowered the protection provided by Article 4 of Protocol no. 7 of the European Convention of Human Rights, through the decision delivered in the case of A and B v. Norway.

This article focuses on the comparative analysis of the Italian cases and it aims to emphasize the reasons why the European Court of Justice came to two apparently different conclusions in these judgements, even though the facts were similar.

According to the European Court of Justice case law, the duplication of a criminal proceeding and a punitive administrative or punitive fiscal one is regarded as being a limitation of the ne bis in idem principle, as it is recognized by Article 50 of the Charter of Fundamental Rights. This infringement is only justified when the laws of those estates who allow such a combination of proceedings are able to guarantee that the proportionality of the overall amount of penalties is ensured.