28 févr. 2013

ECJ: Imposing administrative and criminal sanctions does not breach the ne bis in idem principle, Fransson, C 617/10

Mr. Åkerberg Fransson was accused by Swedish prosecution of non payment of about 83 000 € of taxes (income tax, VAT, social security and employer’s part deductions, § 12). He was subjected to tax penalty (administrative one), and then criminal proceedings started. Tax evasion may lead to 2 years of imprisonment. Mr. Fransson insists that he has already got an administrative sanction, and therefore the criminal one would breach the principle that none may be subjected to a double sanction for the same crime (Article 50 of the EU Charter of Fundamental Rights).

The ECJ Grand Chamber replies that in principle there is no double punishment in imposing both administrative and criminal sanctions, however the sanctions must pass a test in order not to be considered as punishing twice (§§ 34-35):
  1. Classification of the offence under national law;
  2. The very nature of the offence;
  3. The nature and degree of severity of the penalty.

This test gives a slight chance to avoid a sanction in certain cases.