Sweden / The Court of Appeal for Upper Norrland / Case No. B625-23

Chamber prosecutor (Kammaråklagare), Swedish Economic Crime Authority (Ekobrottsmyndigheten), Economic Crimes Chamber in Umeå (Ekobrottskammaren i Umeå) v Applicant 1, Applicant 2 and Bottnia Berg AB
Type
Decision
Decision date
15/02/2024
  • Sweden / The Court of Appeal for Upper Norrland / Case No. B625-23

    Key facts of the case:

    The first and the second applicant were representatives of the company Bottnia Berg AB based in Övertorneå. They were both responsible for the company's reporting of taxes and fees. The Swedish Tax Agency (Skatteverket) decided to do an audit of the company on 21 August, 2019. 

    The first and the second applicant submitted incorrect information to the Swedish Tax Agency in the company's tax return regarding employer contributions. The result of the incorrect submissions was that the company paid a lower tax than was owed. In the District Court (Tingsrätt), the applicants were found guilty of tax crimes. The company, Bottnia Berg AB, received a corporate fine and were ordered to pay a tax surcharge. All three parties appealed their verdicts before the Court of Appeal (Hovrätten). On appeal, the judgments against the first and second applicant were upheld while the judgment against the company was overturned.  

    In the Court of Appeal, the applicant company argued that the corporate fine be dismissed or lowered. The Court had to answer the question whether the corporate fine could be issued together with the tax surcharge or whether that was a breach of Article 50 of the EU Charter, the prohibition of double jeopardy. The Court of Appeal assessed the Swedish system of trying a party judicially for tax crimes as well as trying a party administratively to assess tax surcharges as inconsistent with Charter rights.

    Key legal question raised by the Court:

    The key legal question was whether the Swedish standard of issuing both a corporate fine as well as a tax surcharge was incompatible with Article 50 of the EU Charter.  

    Outcome of the case: 

    The Court of Appeal cites both Article 50 of the EU Charter as well as Article 4(1) of Additional Protocol No. 7 to the European Convention. The Court holds that the incompatibility between the Swedish standard of issuing both a corporate fine as well as a tax surcharge and Article 50 of the EU Charter has been addressed regarding natural persons through the passing of domestic legislation (2015:632). However, the Court notes that no equivalent legislation exists which covers the circumstance at hand regarding legal persons. The Court compares the case at hand with equivalent cases from other appellate courts in Sweden and guidelines of the Swedish Economic Crime Authority. In similar cases, the prohibition of double jeopardy has hindered both a corporate fine and tax surcharges from being issued. The Court of Appeal took the same approach in this case.  The EU Charter, as well as the European Convention prohibiting double jeopardy, were the sole reason for the Court of Appeal to overturn the District Court decision. It therefore was a deciding factor in the case.

  • Paragraphs referring to EU Charter

    7. Article 4(1) of the Additional Protocol No. 7 to the European Convention states that no one may be prosecuted or punished twice for the same crime (ne bis in idem). The corresponding provision is found in Article 50 of the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights of the EU), which states that no one may be prosecuted or punished again for an offense for which he or she has already been acquitted or convicted in the Union by a final criminal conviction in accordance with the law. These regulations do not prevent a person from being sentenced to multiple penalties for the same act, but state that a person may not be tried or punished on two different occasions, the so-called double trial ban.

  • Paragraphs referring to EU Charter (original language)

    7. Av artikel 4.1 i sjunde tilläggsprotokollet till Europakonventionen framgår att ingen får lagföras eller straffas två gånger för samma brott (ne bis in idem). Motsvarande bestämmelse finns i artikel 50 i den Europeiska unionens stadga om de grundläggande rättigheterna (EU:s rättighetsstadga) som anger att ingen får lagföras eller straffas på nytt för en lagöverträdelse för vilken han eller hon redan har blivit frikänd eller dömd i unionen genom en lagakraftvunnen brottmålsdom i enlighet med lagen. Dessa bestämmelser innebär inte ett hinder mot att en person döms till flera straff för samma agerande, utan anger att en person inte får prövas eller straffas slutligt vid två olika tillfällen, det så kallade dubbelprövningsförbudet.