OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 12 January 2017 ( 1 )

Cases C‑217/15 and C‑350/15

Massimo Orsi

(Request for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (District Court, Santa Maria Capua Vetere, Italy))

‛Charter of Fundamental Rights of the European Union — National law which provides for an administrative penalty and a criminal penalty for the same offence, relating to non-payment of VAT — Infringement of the principle ne bis in idem’

Luciano Baldetti

(Request for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (District Court, Santa Maria Capua Vetere, Italy))

‛Charter of Fundamental Rights of the European Union — National law which provides for an administrative penalty and a criminal penalty for the same offence, relating to non-payment of VAT — Infringement of the principle ne bis in idem’

1. Under what conditions does the principle ne bis in idem apply when the laws of some Member States make it possible to combine administrative and criminal penalties to punish non-payment of high amounts of value added tax (VAT)? That is, in summary, the difficulty with which the Court is once again faced.

2. In its judgment of 26 February 2013, Åkerberg Fransson (‘the Åkerberg Fransson judgment’), ( 2 ) the Court established the line to be taken by national courts with regard to a person’s right not to be tried twice for a single breach of the obligation to pay VAT. It did so by incorporating solutions developed by the European Court of Human Rights (ECtHR) but the reply given in that judgment has created difficulties and disagreements between the courts of some Member States, such as Italy.

3. The Court is called upon to develop and refine its case-law on this matter, especially after the recent judgment of the ECtHR of 15 November 2016. ( 3 ) However, this is not the best time to do so, since the answer to both references for a preliminary ruling depends on the least problematic element of the principle ne bis in idem, which concerns whether the person on whom sanctions are imposed is the same.

I – Legal framework

A – European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 ( ‘ECHR ’)

4. Article 4 of Protocol No 7 annexed to the ECHR, signed in Strasbourg on 22 November 1984 (‘Protocol No 7’) governs the ‘Right not to be tried or punished twice’, as follows: ‘1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and the penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.’

B – EU law

5. Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’) states: ‘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.’

6. Article 51 of the Charter defines its field of application: ‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. 2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’

C – Italian law

7. Article 13(1) of Legislative Decree No 471 of 18 December 1997 on the reform of non-criminal tax penalties in the field of direct taxation, value added tax and tax collection, in accordance with Article 3(113q) of Law No 662 of 23 December 1996 states: ( 4 ) ‘Any person who fails to pay, in whole or in part, within the prescribed periods, instalments, periodic payments, the equalisation payment or the balance of tax due on the tax return, after deduction in those cases of the amount of the periodic payments and instalments, even if they have not been paid, shall be liable to an administrative penalty amounting to 30% of each outstanding amount, even where, after the correction of clerical or calculation errors noted during the inspection of the annual tax return, it transpires that the tax is greater or that the deductible surplus is less. For payments made with a delay not exceeding 15 days, the penalty referred to in the first sentence, in addition to the provisions of Article 13(1) of Legislative Decree No 472 of 18 December 1997, shall be further reduced to an amount equivalent to one-fifteenth for each day of delay. The same penalty shall apply in the case of assessment of the tax increased under Articles 36a and 36b of Decree No 600 of the President of the Republic of 29 September 1973, and Article 54a of Decree No 633 of the President of the Republic of 26 October 1972.’ ( 5 )

8. Article 10b of Legislative Decree No 74/2000 of 10 March 2000 ( 6 ) on offences relating to direct taxes and VAT (‘Legislative Decree 74/2000’) governs ‘Failure to pay VAT’ as follows: ‘Article 10a shall also apply, within the limits there determined, to any person who fails to pay the value added tax owed on the basis of the annual return by the deadline for the payment on account relating to the subsequent tax period.’

9. In accordance with Article 10a of Legislative Decree 74/2000:

‘Any person who fails to pay, by the deadline fixed for the filing of the withholding agent’s annual tax return, the withholding tax resulting from the certification issued to the taxpayers in respect of whom tax is withheld shall be liable to a term of imprisonment of between six months and two years in the case where that amount exceeds EUR 50000 for each tax period.’

10. Articles 19 to 21 of Legislative Decree 74/2000, under the heading ‘Relationships with the administrative penalty system and between procedures’ provide, in short, that: (a) the special rule applies where the same offence is punished under a provision in Title II and a provision which provides for an administrative penalty; (b) criminal proceedings and administrative proceedings are to progress separately, that is to say, neither may be stayed pending the outcome of the other; (c) the competent authority is to impose the administrative penalties relating to the tax breaches that are the subject of the criminal offence; and (d) nevertheless, such penalties are not enforceable unless the criminal proceedings are brought to an end by dismissal of the case or by a final decision to acquit which excludes criminal liability, in which case the period for recovery is to run from the date of notification of the exculpatory measure.

11. Following the commission of the offences giving rise to the present requests for a preliminary ruling, the Italian legislation was amended by Legislative Decree No 158 of 24 September 2015 ( 7 ) revising the sanctioning system pursuant to Article 8(1) of Law No 23 of 11 March 2014 (‘Legislative Decree 158/2015’), which affected Articles l0a and l0b of Legislative Decree 74/2000 and inserted a further ground for exemption from punishment through the new Article 13 of Legislative Decree 74/2000.

12. In accordance with Article 7 of Legislative Decree 158/2015, Article 10a of Legislative Decree 74/2000 is now worded as follows: ‘Anyone who fails to make payment, by the deadline fixed for the filing of the annual tax return for the withholding tax resulting from the certification issued to withholding agents, shall be liable to a term of imprisonment of between six months and two years in the case where that amount exceeds EUR 150000 for each tax period.’

13. In accordance with Article 8 of Legislative Decree 158/2015, the wording of Article 10b of Legislative Decree 74/2000 changed with effect from 22 October 2015: ‘Whoever fails to pay, within the period fixed for payment on account in relation to the following tax period, the value added tax payable on the basis of the annual return, shall be sentenced to a term of imprisonment of six months to two years when that amount exceeds EUR 250000 for each tax period.’

14. According to Article 7 of Decree-Law No 269 of 30 September 2003 ( 8 ) on the applicability of administrative tax penalties exclusively to legal persons: ‘1. Administrative penalties relating to the specific tax liabilities of a company or an entity having legal personality apply exclusively to those legal persons. 2. The provisions of paragraph 1 apply to infringements which have not yet been contested or in respect of which the penalty has not been decided by the date of entry into force of this Decree. In the cases provided for in this article, the provisions of Legislative Decree No 472 of 18 December 1997 shall apply provided that they are compatible.’

II – The national proceedings and the questions referred for a preliminary ruling

15. The Court is required to rule on two references for a preliminary ruling which have been referred by the Tribunale di Santa Maria Capua Vetere (District Court, Santa Maria Capua Vetere, Italy).

16. Case C‑217/15 has arisen from criminal proceedings brought against Mr Massimo Orsi, in his capacity as the legal representative of Servizi Ambiente e Commercio s.r.l., for non-payment, within the period laid down, of EUR 1014288.00 in respect of VAT for the tax year 2011.

17. The criminal proceedings were initiated by a complaint by the Agenzia dell’Entrate (Taxation Agency, Italy) to the Procura della Repubblica (Public Prosecutor’s Office, Italy), claiming that the undertaking which Mr Orsi represented had failed to pay VAT, which was an offence under Article 10b, in conjunction with Article 10a, of Legislative Decree 74/2000. In the course of those criminal proceedings, Mr Orsi challenged the measure ordering the precautionary seizure of his assets.

18. Before the criminal proceedings were commenced, the tax offence was investigated by the Italian tax authorities which, in addition to calculating Mr Orsi’s tax liability, imposed a fine on him equivalent to 30% of the amount owed. At the end of the procedure, both parties reached a settlement as a result of which the Taxation Agency waived the penalty provided for and agreed that Mr Orsi would pay only the amounts of VAT owed; that brought the procedure to a definitive conclusion as it had not been contested.

19. In those circumstances, the Tribunale di Santa Maria Capua Vetere (District Court, Santa Maria Capua Vetere) decided to refer the following question to the Court of Justice for a preliminary ruling: ‘On a proper construction of Article 4 of [Protocol No 7 to the ECHR] and Article 50 [of the Charter], is the provision made under Article 10b of Legislative Decree No 74/[2000] consistent with [EU] law, in so far as it permits the criminal liability of a person to whom a final assessment by the tax authorities of the State has already been issued imposing an administrative penalty in the sum of 30% of the unpaid amount to be assessed in respect of the same act or omission (non-payment of VAT)?’

20. Case C‑350/15 has its origin in very similar facts. Mr Luciano Baldetti, in his capacity as the legal representative of Evoluzione Maglia s.r.l., declared that he was liable to pay to the State the sum of EUR 1071836 in respect of VAT for 2010 and 2011, but he did not pay that sum within the time limit laid down. The Taxation Agency began an investigation procedure against Mr Baldetti, as the representative of that undertaking, during which it proceeded to calculate the tax liability and imposed the corresponding fines. At the end of the investigation procedure, the Agency agreed with the taxable person that he should pay the amounts of tax owed and 50% of the penalties, waiving its claim to the remaining 50%, whereupon the procedure, which had not been contested either, came to a definitive conclusion.

21. However, the Italian tax authorities complained to the Public Prosecutor’s Office that Mr Baldetti, in his capacity as the undertaking’s legal representative, had failed to pay VAT, conduct which it considered to constitute an offence contrary to Article 10b of Legislative Decree 74/2000. In those criminal proceedings, Mr Baldetti appealed against the decision ordering the precautionary seizure of his assets.

22. In those circumstances, the Tribunale di Santa Maria Capua Vetere (District Court, Santa Maria Capua Vetere) took the view that it was necessary to refer the following question to the Court for a preliminary ruling, which is identical to that referred in Case C‑217/15: ‘On a proper construction of Article 4 of [Protocol No 7 to the ECHR] and Article 50 [of the Charter], is the provision made under Article 10b of Legislative Decree No 74/[2000] consistent with [EU] law, in so far as it permits the criminal liability of a person to whom a final assessment by the tax authorities of the State has already been issued imposing an administrative penalty in the sum of 30% of the unpaid amount to be assessed in respect of the same act or omission (non-payment of VAT)?’

23. Given its similarity, the Court of Justice joined those two cases with Case C‑524/15, Menci, also relating to the double application in Italy of fiscal and criminal penalties for unpaid VAT. On 8 September 2016, at the end of the written phase, a joint hearing was held for the three cases, in which neither Mr Orsi nor Mr Baldetti took part, and only Mr Menci’s lawyer, the Italian Government and the European Commission presented their arguments.

24. Although the delivery of the Advocate General’s joint Opinion for the three cases which, until then had been joined, which had been announced for 17 November 2016, the delivery of the judgment of the ECtHR in A and B v. Norway ( 9 ) led to its postponement. For the same reason, the President of the Fourth Chamber of the Court of Justice decided, on 30 November 2016, to disjoin the Menci case from the Orsi and Baldetti cases, on the basis of Article 54(2) and (3) and Article 11(4) of the Rules of Procedure of the Court of Justice.

III – Analysis of the questions referred for a preliminary ruling

25. In the two references for a preliminary ruling, the Court is asked, in summary, whether national legislation, like the Italian legislation, which makes it possible to combine tax penalties and criminal penalties to punish the same offence — consisting of non-payment of VAT — is compatible with Article 50 of the Charter, in conjunction with Article 4 of Protocol No 7.

26. There are several variants of the principle ne bis in idem in EU law ( 10 ) and the approach to these has not yet been harmonised by the Court despite calls for it to do so by a number of advocates general. ( 11 )

27. The case-law of the Court on the application of the principle ne bis in idem to concurrent tax and criminal penalties as a response by the State to non-payment of taxes (in particular, VAT) was laid down in the Åkerberg Fransson judgment.

28. In the Åkerberg Fransson judgment, ( 12 ) after accepting that it had jurisdiction to give a preliminary ruling, ( 13 ) the Court observed that the principle ne bis in idem‘does not preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of VAT, a tax penalty and a criminal penalty in so far as the first penalty is not criminal in nature, a matter which is for the national court to determine’. ( 14 ) The freedom of Member States to choose penalties is justified by the need to ensure that all VAT revenue is collected and, in so doing, that the financial interests of the European Union are protected. ( 15 )

29. However, the Court of Justice imposed a limit on the imposition of both tax and criminal penalties: ‘if the tax penalty is criminal in nature for the purposes of Article 50 of the Charter and has become final … that provision precludes criminal proceedings in respect of the same acts from being brought against the same person’. Therefore, it is possible to impose tax and criminal penalties concurrently but not to impose a nominally administrative penalty which is really of a criminal nature in addition to another criminal penalty. ( 16 )

30. In order to establish, for its part, whether a tax penalty is criminal in nature, the Court used the ‘Engel criteria’ which it had previously adopted in Bonda. ( 17 ) In fact, since its judgment in Engel and Others v. Netherlands, ( 18 ) the ECtHR has developed specific and independent criteria in order to clarify the concept of ‘charged with a criminal offence’ in Article 6 of the ECHR and the concept of ‘penalty’ in Article 7 of the ECHR, in view of administrative law penalties of a repressive nature. In particular, in order to interpret Article 4 of Protocol No 7, the ECtHR has used those criteria, namely ( 19 ) the legal classification of the offence under national law, the nature of the offence, and the degree of severity of the penalty that the person concerned risks incurring.

31. The Court of Justice, in its judgment in Åkerberg Fransson, did not itself apply the ‘Engel criteria’ to a law like the Swedish law, but entrusted the referring court with the task, warning that it would only be able to find that the imposition of both tax and criminal penalties was contrary to Article 50 of the Charter if the remaining penalties were effective, proportionate and dissuasive. ( 20 )

32. Based on that premiss, it must be determined whether, in the disputes in the main proceedings, the three elements necessary for the application of the principle ne bis in idem, which are (a) the person on whom the penalty is imposed is the same; (b) the existence of two sets of proceedings in which a penalty is imposed; and (c) the acts being judged are the same, are satisfied.

33. As regards the fact that the person on whom the penalty is imposed is the same, there are no specific rulings of the Court of Justice and there is little case-law from the ECtHR, because this is the least problematic element of the principle ne bis in idem. In some judgments, the ECtHR and the Court of Justice practically subsume the element of the person on whom the sanction is imposed is the same within the situation in which the acts being judged are the same (idem). ( 21 )

34. The ECtHR, in its judgment in Pirttimäki v. Finland, ( 22 ) considered the situation in which the Finnish tax authorities imposed tax penalties on various limited liability companies of British ownership, but in reality controlled by Mr Pirttimäki and other Finnish citizens. Subsequently, criminal proceedings were brought against Mr Pirttimäki and the others for tax fraud for failing to declare dividends received from those companies. The ECtHR held that the principle ne bis in idem in Article 4 of Protocol No 7 was not applicable because in the administrative proceedings the tax penalties were imposed on the companies, whereas the criminal proceedings were directed against natural persons (Mr Pirttimäki and others) who had a legal personality separate from those companies, although they had participated in the adoption of their resolutions. ( 23 )

35. I take the view that this approach is also the most suitable for interpreting Article 50 of the Charter.

36. According to the respective orders for reference, in those disputes, the tax penalty was imposed on two legal persons in the form of a company (Servizi Ambiente e Commercio s.r.l., in the first case, and Evoluzione Maglia s.r.l. in the second), whereas the criminal proceedings were brought against the respective legal representatives of those companies. I agree with the Italian Government that, in those circumstances, it is not possible to refer to double punishment (or to double prosecution) of the same person, since a tax penalty imposed on a limited liability company is not comparable to the commencement of criminal proceedings against that company’s legal representative even though, in both cases, the same non-payment of VAT is at issue.

37. I repeat that, in those two cases, the condition concerning the same persons being tried or punished in administrative proceedings and criminal proceedings, which is essential in order to apply the right guaranteed by Article 50 of the Charter, is not fulfilled. The absence of that condition makes it unnecessary for the Court of Justice to decide whether the remainder of the specific criteria for the application of the principle ne bis in idem have been met.

38. Accordingly, I suggest that the answer to the questions referred for a preliminary ruling in Cases C‑217/15 and C‑350/15 should be that the right protected by Article 50 of the Charter does not come into play where, although concerned with the same non-payment of VAT, the tax penalties were imposed on a company and the criminal proceedings were initiated against its legal representative.

IV – Conclusion

39. In the light of the arguments set out, I propose that the Court reply as follows to the questions referred for a preliminary ruling: Article 50 of the Charter of Fundamental Rights of the European Union, is not applicable where there are two sets of proceedings and both administrative and criminal penalties in respect of the same offence and the tax penalties are imposed on a legal person, such as a company, while the criminal proceedings are brought against a natural person, even if that person is the legal representative of the company.

( 1 ) Original language: Spanish.

( 2 ) C‑617/10, EU:C:2013:105.

( 3 ) A and B v. Norway (CE:ECHR:2016:1115:JUD002413011).

( 4 ) Decreto Legislativo 18 dicembre 1997, No 471, Riforma delle sanzioni tributarie non penali in materia di imposte dirette, di imposta sul valore aggiunto e di riscossione dei tributi, a norma dell’articolo 3, comma 133, lettera q), della legge 23 dicembre 1996, n. 662 (GURI No 5 of 8 January 1998 — Ordinary Supplement No 4).

( 5 ) Decreto Legislativo 18 dicembre de 1997, n. 472, Disposizioni generali in materia di sanzioni amministrative per le violazioni di norme tributarie, a norma dell’articolo 3, comma 133, della legge 23 dicembre 1996, n. 662 (Legislative Decree No 472 of 18 December 1997 laying down general provisions on administrative penalties for infringement of tax laws in accordance with Article 3(133) of Law No 662 of 23 December 1996 (GURI No 5 of 8 January 1998 — Ordinary Supplement No 4), Article 13 of which provides that penalties for non-payment of taxes may be reduced.

( 6 ) Decreto Legislativo 10 marzo 2000, n. 74, Nuova disciplina dei reati in materia di imposte sui redditi e sul valore aggiunto, a norma dell’art. 9 della legge 25 giugno 1999, n. 205 (GURI No 76 of 31 March 2000).

( 7 ) Decreto Legislativo 24 settembre 2015, n. 158, Revisione del sistema sanzionatorio, in attuazione dell’articolo 8, comma 1, della legge 11 marzo 2014, n. 23 (GURI No 233 of 7 October 2015 — Ordinary Supplement No 55).

( 8 ) Decreto-legge 30 settembre 2003, n. 269, Disposizioni urgenti per favorire lo sviluppo e per la correzione dell’andamento dei conti pubblici (GURI No 229 of 2 October 2003 — Ordinary Supplement No 157).

( 9 ) Judgment of the ECtHR of 15 November 2016, A and B v. Norway, CE:ECHR:2016:1115JUD002413011.

( 10 ) I refer to the work by Van Bockel, B., The principle ne bis in idem in EU Law, Kluwer, 2010. See also Oliver, P., and Bombois, T., ‘Ne bis in idem en droit européen: un principe à plusieurs variantes’, Journal de droit européen, 2012, pp. 266 to 272; and Tomkin, J., ‘Article 50, Right not to be tried or punished twice in criminal proceedings for the same criminal offence’, in Peers, S., Hervey, T., Kenner, J., and Ward, A., The EU Charter of Fundamental Rights: a commentary, Hart Publishing, Oxford, 2014, pp. 1373 to 1412.

( 11 ) See the Opinion of Advocate General Kokott in Bonda, C‑489/10, EU:C:2011:845, point 33 and the other Opinions cited therein.

( 12 ) The situation at issue in that case was almost identical to this one: Mr Åkerberg Fransson had received a penalty in administrative proceedings for failure to pay large sums of VAT and, at the end of those proceedings, further proceedings, this time of a criminal nature, were brought against him in relation to the same acts.

( 13 ) The Court declared that it had jurisdiction because Articles 2, 250(1) and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) and Article 325 TFEU were applicable, since it was a situation involving the implementation of EU law for the purposes of Article 51(1) of the Charter. Since then, the application of the Charter to such cases has not been in doubt. However, the tax and criminal penalties adopted in Italy for non-payment of income tax do not involve the implementation of EU law for the purposes of Article 51(1) of the Charter, which is the reason why the Court held that it manifestly lacked jurisdiction to give a preliminary ruling in the order of 15 April 2015, Burzio (C‑497/14, EU:C:2015:251).

( 14 ) Judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 37.

( 15 ) Ibid., paragraph 34.

( 16 ) Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1) includes, in Article 6, provisions intended to ensure respect for the principle ne bis in idem which seek to prevent the joint imposition of EU administrative penalties and criminal penalties of the Member States.

( 17 ) Judgment of 5 June 2012, C‑489/10, EU:C:2012:319, paragraph 37, which concerned criminal proceedings in Poland which were brought in addition to the imposition of EU administrative penalties on recipients of agricultural aid; see also the Åkerberg Fransson judgment, paragraph 35.

( 18 ) Judgment of the ECtHR of 8 June 1976, CE:ECHR:1976:1123JUD000510071, § 82.

( 19 ) Judgment of the ECtHR of 10 February 2015, Kiiveri v. Finland (CE:ECHR:2015:0210JUD005375312), § 30 and the case-law cited.

( 20 ) Åkerberg Fransson judgment, paragraph 36. As a result of that judgment, the Swedish Supreme Court changed its case-law and, in two decisions in June and July 2013, it held that the Swedish legislation which permitted the combining of tax and criminal penalties for non-payment of VAT infringed the principle ne bis in idem.

( 21 ) For example, the ECtHR in its judgment of 10 February 2009, Zolotukhin v. Russia (CE:ECHR:2009:0210JUD001493903), § 84, describes the same facts as ‘a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space’.

( 22 ) Judgment of the ECtHR of 20 May 2014, Pirttimäki v. Finland (CE:ECHR:2014:0520JUD00352321), §§ 5 and 52.

( 23 ) See also the decisions of 2 October 2003, Isaksen v. Norway (CE:ECHR:2003:1002DEC001359602), and of 14 September 1999, Ponsetti and Chesnel v. France (CE:ECHR:1999:0914DEC003685597).