More confusion about « ne bis in idem »: judgment of the CJEU in the case of MV – 98

In the case of MV – 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 – 98, in addition to the sealing of its business premises. All of this because MV – 98 had failed to record the sale of a packet of cigarettes worth approximately 2.60 euros!

The CJEU first had to determine whether both sanctions were criminal in nature, as only then did ne bis in idem 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 Engel criteria: the legal classification of the offence under national law, the intrinsic nature of the offence, and the degree of severity of the penalty (§ 38).

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

What should be pointed out about this ruling, from a Convention point of view, is yet again a regrettable lack of consistency as regards the requirements to be met under Article 52(1) of the EU-Charter when applied to ne bis in idem. It resulted from the introduction of yet another criterion to be applied under that provision, the “coordination of the procedures” (§§ 57, 58, 61 and 63).

Whereas the Grand Chamber ruling in bpost had appeared to increase the convergence with the Strasbourg criteria introduced in A and B v. Norway 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 if they are ”combined in an integrated manner so as to form a coherent whole”, notably through a sufficiently close connection in substance and in time (A and B, § 130), MV – 98 now seems to suggest that it is sufficient for such proceedings to be “coordinated” so as to enable “the 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” (§ 58). Thus, simple “coordination” instead of a “close connection in substance and in time”, leading to a relaxing of the Strasbourg requirements, at variance with bpost? One is left guessing about the exact meaning and purpose of such differences (see also BV).

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