Two instruments but a difficult relationship? Some upcoming decisions of the CJEU on the ne bis in idem

By Michele Simonato

The principle of the ne bis in idem in criminal matters (i.e. the right not to be prosecuted or punished twice for the same criminal conduct) is a key safeguard against arbitrary use of the ius puniendi. Furthermore, it offers an interesting perspective from which we can observe the development of an area of freedom, security and justice in Europe, and how the relationships between the two main European human rights instruments – the Charter of Fundamental Rights of the EU (‘CFREU’) and the European Convention of Human Rights (‘ECHR’) and the related case law emanating from the courts of Luxembourg and Strasbourg – are evolving. Indeed, the way in which the CJEU will answer in the near future the questions that are submitted to it in several pending cases (see cases C-524/15, Menci; C-537/16, Garlsson et al.; C-596/16 and C-597/16, Di Puma) might have a ‘constitutional’ impact that goes well beyond the ne bis in idem principle. This post will take a closer look at some of these pending questions.

One of these questions is whether the CFREU should guarantee the same level of protection as provided by the ECHR in the case law of the European Court of Human Rights (‘ECtHR’), or whether it should be interpreted in the sense that it goes beyond that level and offers a higher protection of the right not to be tried or punished twice. The answer is not so straightforward because Article 52(3) CFREU provides, on the one hand, that if a right in the CFREU corresponds to a right guaranteed by ECHR, the meaning and scope of that right will be the same as those laid down by the ECHR. However, on the other hand, the same Article states that EU law can provide ‘more extensive protection’.

The ne bis in idem dialogue between the CJEU and the ECtHR

To begin, it is important to bear in mind that both the ECHR (Art. 4 Prot. No. 7 to the ECHR) and the CFREU (Art. 50) provide for the principle of ne bis in idem, although the respective legal provisions have a different wording and scope: while the ECHR applies only in a national context (i.e. it applies to the state-individual relationship), the CFREU also offers a transnational protection (i.e. it protects an individual tried in one Member State against new criminal proceedings in another Member State). In the aforementioned cases pending before the CJEU, however, only the national dimension is relevant: the interested persons risk being subject to double proceedings in the same Member State (Italy). Nevertheless, despite the intra-Member State situation, the CFREU is clearly applicable because the relevant national laws concern VAT and market abuse, both fields of law that are regulated by EU law (as established by the CJEU in Åkerberg Fransson, previously discussed on the blog).

Over the last fifteen years, the CJEU has issued several judgments aiming to clarify the EU concept of ne bis in idem (at the beginning only with regard to Art. 54 of the Convention implementing the Schengen Agreement, and later also Art. 50 CFREU). In doing so, the CJEU has taken into consideration the case law of the ECtHR, particularly as regards the assessment of the criminal nature of a sanction. Most remarkably, the ECtHR has paid increasing attention to the CJEU case law in order to overcome previous fluctuating interpretations and to define what amounts to ‘idem’ according to the ECHR, i.e. the material conduct and not the legal classification, notwithstanding that Prot. No. 7 ECHR refers to ‘offence’ instead of facts (see ECtHR, Zolotukhin v. Russia, §33-38).

As a result, one can observe a constructive judicial dialogue, which has resulted in a substantial alignment (despite some diverging nuances) of the case law of both European courts. And, up to now, one could argue that they have been walking together in the direction of increasing the protection of individuals. Several authors have commented upon the evolving approach of the two courts and the consequences for national enforcement approaches; among them, a good overview is offered by the chapters contained in the volume of the Swedish studies in European law edited by J. Nergelius and E. Kristoffersson, Human Rights in Contemporary European Law (Oxford, Hart, 2015).

Future changes?

The alignment described above might, however, change soon in light of the questions currently raised before the CJEU. These questions concern one specific aspect of enforcement strategies adopted mostly – but not only – in the field of economic and financial crime: a ‘double track’ enforcement regime that provides for the possibility to apply both administrative and criminal sanctions to the same conduct. The referring Italian judges wonder whether such double track regime is compatible with the CFREU. Why is this question so delicate and difficult?

Three clarifications are necessary at this point. First, both Art. 50 CFREU and Art. 4 Prot. No. 7 ECHR are limited to the criminal law domain, since their aim is to preclude a new prosecution after a final decision in previous criminal proceedings. It would not be necessary to further discuss this issue if the administrative procedures were truly ‘administrative’. Nevertheless, it often occurs that administrative measures are as punitive as criminal measures. Ever since the Engel judgment, the ECtHR has clarified that the national label is not the only criterion to assess the nature of an afflictive measure, and the situation might occur in which a formally administrative measure should be considered criminal in nature, thereby triggering the safeguards provided by criminal law (including the ne bis in idem: see also Grande Stevens v. Italy). Therefore, the question is relevant inasmuch as an administrative sanction should eventually be considered as criminal.

Second, the ‘double track’ enforcement regime is not a peculiarity of the Italian legal system. For a series of reasons, which I cannot examine in full detail in this blog post, several countries provide for a combination of administrative and criminal responses to similar violations of substantive regulations. For example, this two-pronged architecture of enforcement can be justified by the fact that each type of sanction pursues a different goal, that administrative sanctions better comply with demands of speediness and effectiveness, and that otherwise criminal investigations against organised criminal networks would be prevented by previous administrative sanctions (see ECtHR, A. and B. v. Norway, §95). Yet, despite these justifications, only in some cases is there a clear mechanism of coordination between criminal and administrative enforcement provided at national level, e.g. a mechanism precluding the continuation of administrative proceedings if there are some elements that justify the application of criminal law, and vice-versa.

Third, it is not the first time that the CJEU has been called upon to deal with this issue. In Bonda and Åkerberg Fransson, the CJEU clarified that, also according to the CFREU, if the first administrative sanction is criminal in nature, then the EU ne bis in idem principle applies, and this should be directly assessed by the national judge – without waiting for the enactment of new legislation. In doing so, the CJEU applied the criteria developed by the ECtHR to assess the real nature of a sanction. The novelty, however, is represented by the evolving approach of the ECtHR. In particular, in November 2016, the Grand Chamber of the ECtHR issued a controversial judgment in A. and B. v. Norway. In brief, the ECtHR held that a duplication of punitive sanctions does not necessarily violate Art. 4 Prot. No. 7 ECHR, if the two proceedings are ‘closely connected in time and in substance’. Without analysing the details of that case, it suffices to observe that the (vague) criteria identified by the ECtHR in order to determine such a close connection do not shield this judgment from virulent critiques (as can be seen in the elaborate dissenting opinion of Judge Pinto de Albuquerque).

It is precisely this ‘revirement’ in Strasbourg that has triggered the new question in Luxembourg. Hence, should the CJEU follow the ECtHR, or should it rather retain a higher level of protection?

The Opinion of the Advocate General

On 12 September 2017, the Advocate General Campos Sánchez-Bordona presented his Opinions in the three cases mentioned above, in which he clearly argues for the development of an autonomous EU concept of ne bis in idem, different from the one emerging from the most recent ECtHR case law. This is necessary because the ‘fundamental rights recognised in the Charter must be easily understood by all and the exercise of those rights calls for a foreseeability and certainty’, which is not ensured by the new approach of the ECtHR (Opinion AG in Menci, §73).

He starts his reasoning with an implicit criticism of the A. and B. judgment of the ECtHR which, in his view, was ‘based on a position of deference towards the arguments of the State Parties to the ECHR’ (§71). He then continues with the examination of the question in the light of the interpretation rules laid down in Article 52 CFREU.

In this respect, he immediately excludes the relevance of national law and practices (Art. 52(6) CFREU) and of the constitutional traditions common to the Member States (Art. 52(4) CFREU) for the purpose of the interpretation of Article 50 CFREU with regard to the combination of administrative and criminal sanctions. On the other hand, he takes into consideration Art. 52(1) CFREU, which permits limitations to fundamental rights only (a) if provided by law, (b) if they respect the essence of those rights and freedoms, (c) if they are necessary, and (d) if they meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

In this regard, the Advocate General does not consider the double-track approach a ‘necessary’ limitation of the ne bis in idem in order to ensure an effective enforcement, as argued by some national governments. To support his point of view, he uses perhaps the least persuading ‘comparative’ argument of his opinion, whereby that limitation would not be necessary because there are other Member States that manage not to limit the same right: ‘If the limitation were really necessary, in accordance with Article 52(1) of the Charter, it would be necessary for all and not only some of the Member States’ (Menci, §83). Yet, if one applies this reasoning, and neglects the specific context in which a limitation to a fundamental right takes place, it would be very difficult to find a ‘necessary’ limitation that is provided in every Member State.

Therefore, his argument concerning the relationship between effectiveness goals and respect of the essence of the rights enshrined in the CFREU seems more decisive. According to the Advocate General, there are no good reasons for administrative proceedings to be more expeditious by nature when they have punitive features and they must thereby respect the same safeguards provided by criminal law. In other words, the CJEU should not turn a blind eye purely in the name of effectiveness, and it is up to the Member States to combine effective response with fundamental rights protection (AG Opinion in Garlsson, §80).

Finally, he outlines the consequences of his reasoning, which differ with regard to tax offences and market abuse respectively. In the first case, he suggests that national courts should assess whether the first administrative sanction is punitive in nature or not. For this purpose, he proposes some guidance to further specify the Engel criteria and apply them to this scenario (Menci, §§95-119). In the second case, he directly concludes in the sense of the criminal nature of the measure, identifying therefore a violation of Article 50 CFREU (AG Opinion in Garlsson, §65; and in Di Puma, §76-80, with regard to administrative punitive sanctions applied after a criminal acquittal).

In other words, in the three opinions presented on the same day, the Advocate General Campos Sánchez-Bordona invites the CJEU to take some distance from their colleagues in Strasbourg, by maintaining the level of protection that was established before A. and B. At the same time, he invites the CJEU to have more influence on the determination of the criminal nature of a sanction, either by clarifying the Engel criteria or suggesting a ‘solution’ to the national courts that have to deal with a ‘double-track’ enforcement approach.

Some remarks

The CJEU has the possibility to issue a landmark judgment in the protection of fundamental rights in Europe, explicitly refusing to follow the ECtHR and setting a higher level of protection for those individuals who face multiple sanctions. In waiting for the decision, it is difficult to find good reasons to disagree with the Advocate General, and to not pursue a ‘better’ integration in the ‘small’ Europe, at least in those areas falling within the scope of the CFREU.

On the other hand, national policy makers might perceive such a proposed interpretation as a threat for effective enforcement policies in various field. From a citizen’s perspective, however, the opinion of the Advocate General certainly sounds very convincing and reasonable. In particular, as stressed in the opinion, the ne bis in idem principle does not apply to truly administrative sanctions, and – most importantly – this would not mean that Member States cannot provide for both responses ‘in the books’. What is essential is that they provide for a coordination mechanism that avoids a double exercise of punitive powers in concreto, and that does not seem to be a prohibitive task for national legislators.

Of course, this approach would not answer all the questions about the exact boundary between criminal and administrative domains. But nor does the ECtHR do that, and instead it adds instead further uncertainty. Unfortunately, therefore, one may expect that the prophecy of Judge Pinto de Albuquerque expressed at the time of the ECtHR judgment in A. and B. v. Norway – according to which the ‘progressive and mutual collaboration between the two European courts will evidently once again be deeply disturbed, Strasbourg going the wrong way and Luxembourg going the right way’ (§80) – comes true.