Opinion of the Advocate General — ECLI:EU:C:2021:992
Date: 2021-12-09
Language of the case: French
Subject matter: Taxation;Value added tax;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: France

Summary C-570/20 – 1 
Case C-570/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
28 October 2020 
Referring court: 
Cour de cassation (France) 
Date of the decision to refer: 
21 October 2020 
Appellant in the appeal on a point of law: 
BV 
Respondent in the appeal on a point of law: 
Direction départementale des finances publiques de la Haute-Savoie 
  
1. Subject matter and facts of the dispute: 
1 BV was practising as an accountant until 14 June 2011. Following audits of the 
years 2009, 2010 and 2011, on 10 March 2014 the tax authorities lodged a 
complaint alleging accounting irregularities and income tax and VAT fraud, 
committed in particular by means of the concealment of revenue collected, in 
respect of evaded VAT of EUR 82 507. 
2 By judgment of 23 June 2017, the tribunal correctionnel d’Annecy (Criminal 
Court, Annecy) convicted BV and sentenced him to twelve months’ 
imprisonment, inter alia for having fraudulently excluded transactions from the 
assessment and the payment, in full or in part, of VAT between 1 January 2010 
and 14 June 2011. 
3 Before the cour d’appel de Chambéry (Court of Appeal, Chambéry), BV sought 
his acquittal on the grounds that his conviction runs counter to the ne bis in idem 
principle enshrined in Article 50 of the Charter of the Fundamental Rights of the 
European Union. He explained that he had already personally been subject to a tax 
adjustment procedure in relation to the same acts; the outcome of that procedure 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-570/20 
 
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was the imposition of tax penalties amounting to 40% of the charges evaded. In 
BV’s view, the overall severity of the system of penalties is disproportionate. 
4 By judgment of 13 February 2019, the Court of Appeal, Chambéry, found that the 
ne bis in idem rule did not apply on the grounds that: 
– Article 1741 of the code général des impôts (General Tax Code) provides for 
the possibility of a combination of criminal penalties and tax penalties further 
to criminal proceedings and administrative proceedings that are independent of 
another, have different subject matter and serve different purposes; 
– the abovementioned rule is consistent with Article 50 of the Charter since the 
Conseil constitutionnel (Constitutional Council, France) has specified its scope, 
stating that: 
– it applies only to the most serious cases of fraudulent concealment of 
sums liable to tax, with that seriousness potentially arising from the 
amount of the charges evaded, the nature of the actions of the person 
prosecuted and the circumstances of their commission; 
– the total amount of any penalties imposed must not exceed the 
maximum amount of one of the penalties incurred, in accordance with 
the principle of proportionality. 
5 The Court of Appeal, Chambéry, upheld the operative part of the judgment at first 
instance regarding BV’s guilt and sentenced BV to eighteen months’ 
imprisonment. 
6 On 15 February 2019BV lodged an appeal on a point of law with the Cour de 
cassation (Court of Cassation, France). 
2. Provisions at issue: 
A. EU law 
Charter of Fundamental Rights of the European Union 
7 Article 50, which is entitled ‘Right not to be tried or punished twice in criminal 
proceedings for the same criminal offence’, reads as follows: 
‘No one shall be liable to be tried or punished again in criminal proceedings for an 
offence for which he or she has already been finally acquitted or convicted within 
the Union in accordance with the law.’ 
8 Article 52 clarifies the scope of the rights guaranteed as follows: 
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‘1. Any limitation on the exercise of the rights and freedoms recognised by this 
Charter must be provided for by law and respect the essence of those rights and 
freedoms. Subject to the principle of proportionality, limitations may be made 
only if they are necessary and genuinely meet objectives of general interest 
recognised by the Union or the need to protect the rights and freedoms of others.’ 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax 
9 Article 273 provides: 
‘Member States may impose other obligations which they deem necessary to 
ensure the correct collection of VAT and to prevent evasion, subject to the 
requirement of equal treatment as between domestic transactions and transactions 
carried out between Member States by taxable persons and provided that such 
obligations do not, in trade between Member States, give rise to formalities 
connected with the crossing of frontiers.’ 
B. French law 
The General Tax Code 
10 Article 1729 imposes tax penalties, in the form of increases ranging from 40% to 
80% of the tax evaded, for wilful inaccuracies or omissions that vitiate a return. 
11 Article 1741, in the version thereof applicable to the case at issue, inserted by Law 
No 2010-1658 of 29 December 2010, criminalises and makes liable to criminal 
penalties the offence of tax fraud, which, regardless of the applicable tax 
penalties, may attract a fine of EUR 37 500 and a five-year term of imprisonment. 
The case-law of the Constitutional Council 
12 The Constitutional Council has found that the duplication of criminal and tax 
proceedings and penalties in cases of concealment of sums liable to tax, such as 
cases of non-declaration, is consistent with the principles of the necessity and 
proportionality of offences and penalties. 
13 The Constitutional Council has taken the view that criminal proceedings and tax 
proceedings are complementary: 
‘… the provisions of Article 1729, like the contested provisions of Article 1741, 
together make it possible to ensure the protection of the financial interests of the 
State and equality in matters of taxation by pursuing common objectives, which 
are both dissuasive and punitive in nature. Recovery of the necessary public 
contribution and the aim of combatting tax fraud justify the initiation of 
complementary proceedings in the most serious cases of fraud. Thus, criminal 
prosecutions in circumstances and subject to procedures organised by law can be 
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initiated in parallel to the audits following which the tax authorities impose 
financial penalties.’ 
14 However, the Constitutional Council has issued three reservations on 
interpretation which restrict such duplication: 
– a taxpayer who has been relieved of liability for the tax by a judicial decision 
that has become final on a substantive ground cannot be the subject of a 
criminal conviction for tax fraud (first reservation); 
– Article 1741 of the General Tax Code, under which tax fraud is punishable, 
applies only to the most serious cases of fraudulent concealment of sums liable 
to tax or of omissions in tax returns; that seriousness may arise from the 
amount of the charges evaded, the nature of the actions of the person 
prosecuted or the circumstances in which they occurred (second reservation); 
– if the possibility of two sets of proceedings being initiated may result in a 
duplication of penalties, the principle of proportionality means that, in any 
case, the total amount of any penalties imposed must not exceed the maximum 
amount of one of the penalties incurred (third reservation). 
Case-law of the Court of Cassation 
15 With regard to the second reservation concerning the seriousness of the acts 
capable of justifying the imposition of criminal penalties as well as administrative 
penalties, the Court of Cassation has clarified the detailed rules governing its 
application as follows: 
‘Where the person charged with tax fraud provides proof that he has personally 
been subject to a tax penalty in relation to the same acts, it is for the criminal 
court, after determining that the constituents of that offence are made out having 
regard to Article 1741 of the General Tax Code, and prior to the imposition of 
criminal penalties, to establish that the acts alleged are of the degree of 
seriousness capable of justifying additional criminal penalties. The court is 
required to state the reasons for its decision, with the seriousness potentially 
arising from the amount of the charges evaded, the nature of the actions of the 
person prosecuted or the circumstances of their commission, including any 
aggravating circumstances. If no such degree of seriousness exists, the court 
cannot consider a conviction.’ 
16 Certain factual elements deemed to characterise the criteria laid down by the 
Constitutional Council can be found in judgments given by the Court of 
Cassation, in particular repeated omissions in returns over a long period despite 
several letters of formal notice, one of the two persons charged being an elected 
official of the French Republic, the use of intermediaries established in another 
country and the amount of the charges evaded. 
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17 With regard to the third reservation concerning the proportionality of the 
duplication of criminal and tax penalties, the Court of Cassation has similarly 
clarified the detailed rules governing its application as follows: 
‘Where the person charged provides proof that he has been personally subject to a 
tax penalty imposed with final effect in relation to the same acts, the criminal 
court is required to ensure that the requirement of proportionality is observed only 
where it imposes a penalty of the same kind.’ 
18 It follows from the foregoing, in the view of the Court of Cassation, that the 
principle of proportionality is not infringed where a court sentences an accused, 
on whom final tax penalties have been imposed, to a suspended term of 
imprisonment since a criminal fine has not been imposed on him (judgments cited 
above). 
19 The reservation on interpretation can relate to penalties of the same kind only, 
since implementation of that reservation assumes that the court ruling last is able 
to compare the maximum thresholds of the criminal and tax penalties incurred in 
order to determine the maximum amount, which is thus the ceiling. 
3. Position of the appellant: 
20 The appellant complains that the court of appeal (i) infringed Article 50 of the 
Charter of Fundamental Rights by refusing to disapply Article 1741 of the General 
Tax Code, the provisions of which – as interpreted by the Constitutional Council – 
are neither clear nor precise, and (ii) did not ensure that the cumulative burden of 
all the penalties imposed on him was not excessive having regard to the 
irregularities alleged. 
4. Assessment of the Court of Cassation: 
21 According to the Court of Justice, where they seek to ensure the correct collection 
of VAT and combat fraud, administrative penalties imposed by the national tax 
authorities and criminal proceedings initiated in respect of VAT-related offences 
constitute implementation of Articles 2 and 273 of Directive 2006/112 and 
Article 325 TFEU and, therefore, of EU law, within the meaning of Article 51(1) 
of the Charter, and must therefore respect the right guaranteed in Article 50 of the 
Charter (see judgment of 26 February 2013, Âkerberg Fransson, C-617/10, 
EU:C:2013:105). 
22 The Court of Justice has also held that a limitation of the ne bis in idem principle 
enshrined in Article 50 of the Charter can be justified on the basis of Article 52(1) 
of the Charter (see judgment of 27 May 2014, Spasic, C-129/14 PPU, 
EU:C:2014:586). 
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23 By judgment of 20 March 2018, Menci, C-524/15, EU:C:2018:197, the Court of 
Justice ruled: 
‘1. Article 50 of the Charter of Fundamental Rights of the European Union must 
be interpreted as not precluding national legislation in accordance with which 
criminal proceedings may be brought against a person for failing to pay value 
added tax due within the time limits stipulated by law, although that person has 
already been made subject, in relation to the same acts, to a final administrative 
penalty of criminal nature for the purposes of Article 50 of the Charter, on 
condition that that legislation: 
– pursues an objective of general interest which is such as to justify such a 
duplication of proceedings and penalties, namely combating value added tax 
offences, it being necessary for those proceedings and penalties to pursue 
additional objectives, 
– contains rules ensuring coordination which limits to what is strictly necessary 
the additional disadvantage which results, for the persons concerned, from a 
duplication of proceedings, and 
– provides for rules making it possible to ensure that the severity of all of the 
penalties imposed is limited to what is strictly necessary in relation to the 
seriousness of the offence concerned. 
2. It is for the national court to ensure, taking into account all of the 
circumstances in the main proceedings, that the actual disadvantage resulting for 
the person concerned from the application of the national legislation at issue in the 
main proceedings and from the duplication of the proceedings and penalties that 
that legislation authorises is not excessive in relation to the seriousness of the 
offence committed.’ 
24 There can be no question that the legislation at issue seeks, inter alia, to combat 
VAT-related offences, with a view to guaranteeing that all the VAT due is 
collected, and thus addresses an objective of general interest capable of justifying 
a duplication of proceedings and penalties of a criminal nature which pursue 
additional objectives. 
25 First, according to the Court of Justice, a limitation may be placed on the ne bis in 
idem principle only if it is necessary, and it must therefore ‘provide for clear and 
precise rules allowing individuals to predict which acts or omissions are liable to 
be subject to such a duplication of proceedings and penalties’ (judgment of 
20 March 2018, Menci, C-524/15, EU:C:2018:197, paragraph 49). 
26 In that judgment, the Court of Justice found that the Italian legislation ‘clearly and 
precisely lays down the circumstances in which the failure to pay VAT due may 
be subject to a duplication of proceedings and penalties of a criminal nature’. The 
Court thus stated that that legislation defines the ‘conditions according to which 
the failure to pay VAT due within the time limits prescribed by law may give rise 
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to the imposition of an administrative penalty of a criminal nature … and also, if it 
relates to an annual tax return covering an amount of VAT greater than 
EUR 50 000, be subject to a term of imprisonment of between six months and two 
years’ (judgment of 20 March 2018, Menci, C-524/15, EU:C:2018:197, 
paragraphs 50 and 51). 
27 According to the appellant, the French legislation does not satisfy the condition 
that the duplication of criminal and tax proceedings and penalties is clear and 
foreseeable. 
28 It should be noted, in the first place, that Articles 1741 and 1729 of the General 
Tax Code, cited above, precisely define the acts or omissions capable of forming 
the subject of criminal and tax proceedings and penalties. 
29 In the second place, in accordance with the reservation on interpretation issued by 
the Constitutional Council, the ability to impose criminal penalties on a taxpayer 
who has already been the subject of tax penalties is limited to certain cases that 
can be classified as the most serious cases of fraudulent concealment or omissions 
in returns. That seriousness may stem from the amount of the charges evaded, the 
nature of the actions of the person prosecuted or the circumstances of their 
commission. 
30 In addition, certain factual elements have been identified in the case-law of the 
Court of Cassation which help to clarify the detailed rules governing the 
implementation of those criteria. That court has also added that the aggravating 
circumstances provided for in Article 1741 of the General Tax Code can 
characterise the criterion of seriousness. 
31 However, the pre-requisite that the acts of tax fraud are serious does not follow 
solely from the amount of the charges evaded; rather account can also be taken of 
other circumstances relating to the nature and the context of the actions of the 
person concerned. 
32 In those circumstances, it cannot be claimed that the proper application of EU law 
is so clear as to leave no room for any reasonable doubt. 
33 Second, according to the Court of Justice, ‘the duplication of penalties of a 
criminal nature requires rules allowing it to be guaranteed that the severity of all 
of the penalties imposed corresponds with the seriousness of the offence 
concerned, that requirement resulting not only from Article 52(1) of the Charter, 
but also from the principle of proportionality of penalties set out in Article 49(3) 
thereof. Those rules must provide for the obligation for the competent authorities, 
in the event of the imposition of a second penalty, to ensure that the severity of all 
of the penalties imposed does not exceed the seriousness of the offence identified’ 
(judgment of 20 March 2018, Menci, C-524/15, EU:C:2018:197, paragraph 55). 
34 By contrast, in another judgment given on the same day, the Court of Justice 
found that the Italian legislation on market manipulation does not guarantee that 
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the severity of all of the penalties imposed is limited to what is strictly necessary 
in relation to the seriousness of the offence concerned (judgment of 20 March 
2018, Garlsson Real Estate and Others, C-537/16, EU:C:2018:193). The Court 
thus stated that that legislation merely provides that, where, with respect to the 
same acts, a criminal fine and an administrative fine of a criminal nature have 
been imposed, recovery of the former is limited to the part exceeding the amount 
of the latter, and that that legislation covers only the duplication of pecuniary 
penalties and not the duplication of an administrative fine of a criminal nature and 
a term of imprisonment (paragraph 60). 
35 The appellant alleges that the court of appeal failed to ensure that the disadvantage 
resulting from all of the penalties imposed on him was not excessive having 
regard to the offence concerned, which involves first considering whether the 
French legislation satisfies the condition that the duplication of the criminal and 
tax penalties is proportionate in abstracto. 
36 It should be noted, in the first place, that, in accordance with the reservation on 
interpretation set out by the Constitutional Council, the French legislation restricts 
criminal prosecutions to offences exhibiting a certain degree of seriousness, in 
respect of which the national legislature has made provision inter alia, in addition 
to the imposition of a fine, for a term of imprisonment. 
37 In the second place, in accordance with another reservation on interpretation 
issued by the Constitutional Council, the option of combining penalties is limited 
by the condition that the total must not exceed the maximum amount of one of the 
penalties incurred. However, that rule concerns only penalties of the same kind, 
namely financial penalties. 
38 In those circumstances, it cannot be claimed that the proper application of EU law 
is so clear as to leave no room for any reasonable doubt. 
5. The questions referred for a preliminary ruling: 
39 The following questions should be submitted to the Court of Justice: 
1) Is the requirement of the clarity and the foreseeability of the circumstances in 
which concealments in returns relating to VAT payable may be the subject of a 
duplication of proceedings and penalties of a criminal nature satisfied by national 
rules such as those described above? 
2) Is the requirement of the necessity and the proportionality of the duplication of 
such penalties satisfied by national rules such as those described above?