- Behind the apparent simplicity of the case – punishment of a fisherman operating in the Gulf of Bothnia for failure to comply with tax obligations – the present reference for a preliminary ruling raises for the Court two particularly tricky issues and a rather perplexing situation.
- The first of those issues concerns the admissibility of the reference for a preliminary ruling, since, in view of the unquestionably domestic nature of the case, the determination of whether the Court has jurisdiction to rule on a question of fundamental rights calls for an assessment of the case as an instance of the implementation of European Union (also ‘Union’) law by a Member State, which is now covered by Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
- The other, substantive, issue concerns the way in which the ne bis in idem principle operates in a situation where the power to impose administrative penalties and the penalising authority of a Member State are accumulated to punish the same conduct, and that issue takes us to Article 50 of the Charter.
- The perplexing situation is derived from the first question submitted by the referring court, in which the issue, taken on its own, appears to be comparatively simpler than those mentioned above. That question concerns the scope of the principle of the primacy of Union law when it comes up against a requirement laid down by a national supreme court, such as the requirement that there must be clear support or evidence in order to supplant national law. The perplexity stems from a situation where, on the one hand, the clear support required now appears to be enshrined in the most recent case-law of the European Court of Human Rights and, on the other, rather than simplifying the reply regarding the scope of the ne bis in idem principle in Union law, that development makes it more complicated.
- As far as the issue of admissibility is concerned, I shall propose that the Court of Justice should find that it lacks jurisdiction, since the Member State concerned is not implementing Union law within the meaning of Article 51(1) of the Charter. I believe, as I shall attempt to explain, that a careful examination of the circumstances of the case militates in favour of reaching that conclusion. However, there is a strong possibility that, for those purposes, the Court must adopt a number of views which I shall put forward regarding this vexed question. I must admit that those views do not follow in the wake of the case-law laid down to date.
- In the alternative, should the Court hold that it has jurisdiction to give a ruling on the substance, I shall suggest an autonomous definition of the ne bis in idem principle in Union law. As I shall attempt to explain, as far as that principle is concerned, the rule in Article 52(3) of the Charter, which provides that the meaning and scope of the rights contained in the Charter are ‘the same’ as the corresponding rights laid down in the European Convention on Human Rights (‘ECHR’), raises singular difficulties.
- Finally, with regard to the requirement that there must be a clear basis in the ECHR and in Union law, I shall propose an interpretation of that requirement which is compatible with the principle of primacy.
Results (sanctions) and key consequences of the case:
- In the current state of the process of European integration, Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that it does not preclude the Member States from bringing criminal proceedings relating to facts in respect of which a final penalty has already been imposed in administrative proceedings relating to the same conduct, provided that the criminal court is in a position to take into account the prior existence of an administrative penalty for the purposes of mitigating the punishment to be imposed by it.
It falls to the national court to assess whether, in the present case, and in the light of the national provisions which govern the matter, it is necessary to take into account the prior administrative penalty which would mitigate the decision of the criminal court.
- The Court of Justice lacks jurisdiction to rule on the compatibility with the European Convention on Human Rights of a requirement of Swedish law pursuant to which there must be ‘clear support’ in order for national courts to disapply a domestic provision.
European Union law must be interpreted as meaning that it does not preclude a national court from assessing, prior to disapplying a national provision, whether a provision of the Charter of Fundamental Rights of the European Union is ‘clear’, provided that that requirement does not hinder the national courts in exercising the powers of interpretation and disapplication assigned to them under European Union law.