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CJEU Case C-524/15 / Opinion

Criminal proceedings against Luca Menci.

Policy area:
Justice, freedom and security
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Decision
Decision date:
12/09/2017

Key facts of the case:

Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Failure to pay VAT due — Penalties — National legislation which provides for an administrative penalty and a criminal penalty for the same acts — Charter of Fundamental Rights of the European Union — Article 50 — Ne bis in idem principle — Criminal nature of the administrative penalty — Existence of the same offence — Article 52(1) — Limitations to the ne bis in idem principle — Conditions.

Outcome of the case:

In the light of the foregoing considerations, I propose that the Court reply as follows to the question referred for a preliminary ruling by the Tribunale di Bergamo (District Court, Bergamo, Italy):

Article 50 of the Charter of Fundamental Rights of the European Union:

  • Requires for its application the existence of the same material facts which, regardless of their legal classification, must be the basis for the imposition of the tax penalties and the criminal penalties.
  • Is infringed if criminal proceedings are commenced or a penalty of a criminal nature is imposed on a person who, in respect of the same act has previously had a tax penalty imposed on him by a judgment which has become final, where, despite its name, that penalty is in fact criminal in nature. The national court must establish that fact using the following criteria: the legal classification of the offence under national law; the nature of the offence, which is to be assessed by reference to the aim of the provision, the persons to whom it is addressed and the legal right which it protects; and the nature and degree of severity of the penalty.