{"id":2762,"date":"2023-07-22T18:27:48","date_gmt":"2023-07-22T16:27:48","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=2762"},"modified":"2023-07-22T18:36:26","modified_gmt":"2023-07-22T16:36:26","slug":"more-confusion-about-ne-bis-in-idem-judgment-of-the-cjeu-in-the-case-of-mv-98","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/de\/more-confusion-about-ne-bis-in-idem-judgment-of-the-cjeu-in-the-case-of-mv-98\/","title":{"rendered":"More confusion about \u00ab\u00a0ne bis in idem\u00a0\u00bb: judgment of the CJEU in the case of MV – 98"},"content":{"rendered":"\n

In the case of MV \u2013 98 <\/em>(C-97\/21, 4.5.2023), the CJEU made another application of the ne bis in idem <\/em><\/strong>principle to dual proceedings<\/strong>. This time, these resulted from the Bulgarian tax authorities imposing a financial penalty on MV \u2013 98, in addition to the sealing of its business premises. All of this because MV \u2013 98 had failed to record the sale of a packet of cigarettes worth approximately 2.60 euros!<\/p>\n\n\n\n

The CJEU first had to determine whether both sanctions were criminal in nature<\/strong>, as only then did ne bis in idem <\/em>come into play. In view of the severity of both sanctions, this was answered in the affirmative, after an assessment based on the same criteria as those which are used by the ECtHR and are known as the \u201cEngel criteria<\/a>\u201d<\/strong>: the legal classification of the offence under national law, the intrinsic nature of the offence, and the degree of severity of the penalty (\u00a7 38). <\/p>\n\n\n\n

In line with its settled case-law according to which such dual proceedings<\/strong> are to be seen as a limitation <\/strong>to ne bis in idem <\/em>(see, among others, Menci <\/a><\/em>and bpost<\/a><\/em>), the CJEU then examined whether in the present case this limitation met the requirements of Article 52(1) of the EU-Charter<\/strong>. In the CJEU\u2019s opinion, this was not the case, mainly because this double sanction contravened the principle of proportionality<\/strong> in two different respects: first, in that national law provided for the automatic and mandatory cumulation<\/strong> of those two severe sanctions (\u00a7 59), and, secondly, in that their cumulative effect seemed to exceed the seriousness of the offence <\/strong>committed (\u00a7 62).<\/p>\n\n\n\n

What should be pointed out about this ruling, from a Convention point of view, is yet again a regrettable lack of consistency<\/strong> as regards the requirements <\/strong>to be met under Article 52(1) of the EU-Charter when applied to ne bis in idem<\/em>. It resulted from the introduction of yet another criterion<\/strong> to be applied under that provision, the \u201ccoordination of the procedures<\/strong>\u201d (\u00a7\u00a7 57, 58, 61 and 63). <\/p>\n\n\n\n

Whereas the Grand Chamber ruling in bpost <\/a><\/em>had appeared to increase the convergence with the Strasbourg criteria introduced in A and B v. Norway<\/a><\/em> by referring to the latter and taking on board the idea that dual proceedings can only be seen as not breaching ne bis in idem <\/em>if they are \u201dcombined in an integrated manner so as to form a coherent whole<\/strong>\u201d, notably through a sufficiently close connection in substance and in time<\/strong> (A and B<\/em>, \u00a7 130), MV \u2013 98 now seems to suggest that it is sufficient for such proceedings to be \u201ccoordinated<\/strong>\u201d so as to enable \u201cthe additional disadvantage associated with the cumulation of measures imposed to be reduced to what is strictly necessary and to ensure that the severity of all of those measures is commensurate with the seriousness of the offence concerned\u201d (\u00a7 58). Thus, simple \u201ccoordination\u201d<\/strong> instead of a \u201cclose connection in substance and in time\u201d<\/strong>, leading to a relaxing of the Strasbourg requirements, at variance with bpost<\/em>? One is left guessing about the exact meaning and purpose of such differences (see also BV<\/a><\/em>).<\/p>\n\n\n\n

At any rate, it is difficult to predict at this stage whether these repeated terminological and methodological differences<\/strong> between the Strasbourg and Luxembourg case-law, and even within the latter, are to result in different levels of protection<\/strong>. What seems clear, however, is that with MV \u2013 98 another level of inconsistency and confusion<\/strong> in the field of ne bis in idem <\/em>has been reached, to the detriment of legal certainty<\/strong>.<\/p>\n\n\n\n

MV-98<\/a>Download PDF<\/a><\/div>\n","protected":false},"excerpt":{"rendered":"

In the case of MV \u2013 98 (C-97\/21, 4.5.2023), the CJEU made another application of the ne bis in idem principle to dual proceedings. This time, these resulted from the Bulgarian tax authorities imposing a financial penalty on MV \u2013 98, in addition to the sealing of its business premises. All of this because MV […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,19],"tags":[],"class_list":["post-2762","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"de","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/2762","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/comments?post=2762"}],"version-history":[{"count":7,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/2762\/revisions"}],"predecessor-version":[{"id":2772,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/2762\/revisions\/2772"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/media?parent=2762"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/categories?post=2762"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/tags?post=2762"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}