3. Legal framework . . . Art. 50 of the Charter of fundamental rights of the European Union (hereinafter: Charter):
“No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.”
According to the explanatory notes to the Charter this stipulation has “the same contents and scope as the corresponding law of the ECHR”(Official Journal EC 2007, C 303/31).
Article 51 of the Charter lays down the scope of the Charter:
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.
2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.
. . .
(iv) In its judgement of 20 March 2018, case C-524/15, ECLI:EU:C:2018/197 (Menci) the ECJ has considered the following with regards tot he meaning of a “criminal proceedings for an offence” as laid down in Art. 50 of the Charter:
26 As regards assessing whether proceedings and penalties, such as those at issue in the main proceedings, are criminal in nature, it must be noted that, according to the Court’s case-law, three criteria are relevant. The first criterion is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty that the person concerned is liable to incur (see, to that effect, judgments of 5 June 2012, Bonda, C‑489/10, EU:C:2012:319, paragraph 37, and of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 35).
(. . . )
29 In that regard, concerning the first criterion referred to in paragraph 26 of the present judgment, it is apparent from the case file before the Court that national law classifies the procedure giving rise to the imposition of that penalty as an administrative procedure.
30 Nevertheless, the application of Article 50 of the Charter is not limited to proceedings and penalties which are classified as ‘criminal’ by national law, but extends regardless of such a classification to proceedings and penalties which must be considered to have a criminal nature on the basis of the two other criteria referred to in paragraph 26 of the present judgment.
31 As regards the second criterion, relating to the intrinsic nature of the offence, it must be ascertained whether the purpose of the penalty at issue is punitive (see judgment of 5 June 2012, Bonda, C‑489/10, EU:C:2012:319, paragraph 39). It follows therefrom that a penalty with a punitive purpose is criminal in nature for the purposes of Article 50 of the Charter, and that the mere fact that it also pursues a deterrence purpose does not mean that it cannot be characterised as a criminal penalty. As the Advocate General stated in point 113 of his Opinion, it is of the intrinsic nature of criminal penalties that they seek both to punish and to deter unlawful conduct. By contrast, a measure which merely repairs the damage caused by the offence at issue is not criminal in nature.
60 Finally, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, Article 52(3) of the Charter provides that their meaning and scope are the same as those laid down by that convention. It is therefore necessary to take account of Article 4 of Protocol No 7 to the ECHR for the purpose of interpreting Article 50 of the Charter (see, to that effect, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 77, and of 5 April 2017, Orsi and Baldetti, C‑217/15 and C‑350/15, EU:C:2017:264, paragraph 24).
4.3.2. Pursuant to Article 51 of the Charter the stipulations laid down in this Charter are addressed to the Member States, only when they implement Union law. This is the case here, as the accused has been charged with violating the stipulations laid down in Art. 16 of Regulation (EC) 850/98. It follows that Article 50 of the Charter applies to this case. Apparently the Court of Appeal, considering that the suspension of the fishing permit must be regarded as “criminal charge” and that, therefore, there is a violation of the ne bis in idem principle, has held that that suspension in this case must be seen as a conviction for an offence within the meaning of Article 50 of the Charter and that therefore the prosecution of the accused on the basis of an act contrary to Article 16 of the Regulation (EC) 850/98 is in conflict with Article 50 of the Charter.
4.4.1. The Court of Appeal has determined that a suspension of the fishing permit for a period of four weeks was imposed on the accused – in administrative proceedings – and that that suspension aimed at the compensation of the consequences which the act, in conflict with Article 16 of the Regulation (EC) 850/98, has caused. The Court of Appeal was therefore right in taking as a starting point that the aim of the suspension of the fishing permit was not repressive (cf. also ABRvS 6 February 2008, ECLI:NL:RVS:2008:BC3625 as regardsFishing Permit Regulation).).
4.4.2. However, the Supreme Court disagrees with the Court of Appeal that the circumstance that the accused as a result of the suspension of the fishing permit did not earn an amount of € 88,275.00. The Supreme Court holds that the loss of income is not of such a nature that the suspension of the fishing permit must nonetheless be seen as “criminal charge” and it is therefore not a verdict of the accused for a criminal offence in the meaning of Article 50 of the Charter. The judgement based on the Court of Appeal’s consideration, saying that there are “prohibited double proceedings” therefore shows a wrong interpretation of the law.