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CJEU clarifies field of application of Fundamental Rights Charter

March 4th 2013

The Court of Justice of the EU explains the field of application of the Charter of Fundamental Rights and the ne bis in idem principle.


On 26 February 2013, the CJEU delivered a judgment in a case referred by the Haparanda tingsrätt (Swedish court) for a preliminary ruling. The case concerned a Swedish self-employed fisherman accused by the Swedish tax authorities of having infringed his declaration obligations with regard to tax in 2004 and 2005. The tax authorities imposed administrative tax penalties in 2007. In 2009, the Public Prosecutor’s Office accused Mr. Hans Åkerberg Fransson of tax evasion and started criminal procedures. The Swedish Court requested a preliminary ruling to the Court as it wasn’t certain whether the criminal charges against Mr. Åkerberg Fransson must be dismissed since he had already received administrative penalties for the same acts and also wanted to clarify the conditions for the application of the European Convention of Human Rights and the Charter of Fundamental Rights of the EU (see the reference for the preliminary ruling here).

The European Commission and a number of Member State Governments disputed the admissibility of the questions referred for a preliminary ruling stating that the provisions of the Charter are addressed to the Member States only when they are implementing European Union law and this was not the case in the main proceedings. However, the CJEU held that tax penalties and criminal proceedings for tax evasion constitute implementation of a number of provisions of EU law, even if they have not been specifically and exclusively designed to transpose EU law, and held that it has jurisdiction to rule on the substance.

The Court decided that the ne bis in idem principle laid down in Article 50 of the Charter of Fundamental Rights of the European Union does not preclude a Member State from imposing successively a tax penalty and a criminal penalty and the national court should determine that. Also the Court ruled that the European Union law does not control the relations between the European Convention for the Protection of Human Rights and Fundamental Freedoms and the legal systems of the Member States, neither does it define the conclusions drawn by a national court if a dispute between the rights guaranteed by that convention and a rule of national law, arises. In its judgment the Court made clear that the Charter is addressed to the Member States only when they are implementing EU law as defined in Article 51(1) and the fundamental rights guaranteed in the EU legal framework are applicable in all situations governed by European Union law, but only within these situations. Despite the fact that the Court has no jurisdiction to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law, if such legislation falls within the scope of European Union law, then the Court, when requested to give a preliminary ruling, must provide all the guidance and assist the national court to determine whether that legislation is compatible with the fundamental rights guaranteed by the Charter.

You can read the full judgment here and the Opinion of the Advocate General here.