OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 9 December 2021 ( 1 )

Case C‑570/20

BV

v

Direction départementale des finances publiques de la Haute-Savoie

(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France))

(Reference for a preliminary ruling – Fundamental rights – Article 50 and Article 52 of the Charter of Fundamental Rights of the European Union – Value added tax (VAT) – Directive 2006/112/EC – National legislation which provides for the duplication of administrative and criminal penalties in relation to the same acts – Requirements of the ne bis in idem principle – Clarity and foreseeability – Necessity and proportionality)

1. The Court is seised once again of a case concerning the difficulties arising from the duplication of administrative and criminal penalties which are imposed on the same person, in relation to the same acts, in order to punish, simultaneously or consecutively, tax offences related to, inter alia, valued added tax (VAT).

2. In the judgments of 20 March 2018, Menci ( 2 ) and Garlsson Real Estate and Others, ( 3 ) the Court specified the conditions to be met by national legislation for the purposes of limiting, in accordance with Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), the fundamental right not to be punished twice for the same acts, which is guaranteed by Article 50 of the Charter.

3. In this reference for a preliminary ruling, the Cour de cassation (Court of Cassation, France) questions whether the national provisions on which its judgment must be based are compatible with the case-law of the Court, as regards in particular: – the clarity and precision of the provisions which permit the duplication of proceedings and penalties; and – the proportionality between the seriousness of the offence committed, on the one hand, and the severity of all the combined penalties, on the other.

I. Legislative framework

A. European Union law

1. The Charter

4. Article 50 provides: ‘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.’

5. Article 51 stipulates: ‘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.’

6. Article 52 states: ‘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. … 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. … 6. Full account shall be taken of national laws and practices as specified in this Charter. …’

2. Treaty on the Functioning of the European Union (TFEU)

7. Article 325 provides: ‘1. The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies. 2. Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests. …’

3. Directive 2006/112/EC ( 4 )

8. 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. National law

1. Code général des impôts (General Tax Code; ‘the GTC’)

9. Pursuant to the version of Article 1729 applicable to the proceedings: ( 5 ) ‘Inaccuracies or omissions identified in a return or a document which refer to items that are relevant for the purposes of the taxable amount or calculation of the tax, and the reimbursement of a tax credit the payment of which has been wrongly obtained from the State, shall result in the application of an increase of: a. 40% where the offence is intentional; …’

10. The version of Article 1741 applicable to the acts being judged, ( 6 ) stated: ‘Subject to the special provisions contained in this code, anyone who has fraudulently evaded or who has attempted fraudulently to evade the determination or the full or partial payment of the taxes covered by this code, whether by deliberately failing to file his or her return within the periods laid down, by deliberately concealing a portion of the sums liable to tax, by contriving his or her own insolvency or by impeding, by other stratagems, the collection of the tax, or by acting in any other fraudulent way, shall, regardless of the tax penalties applicable, be liable to a fine of EUR 37500 and a term of imprisonment of five years. If the acts were carried out or enabled by means of purchases or sales without invoices or with invoices which do not refer to real transactions or were designed to obtain unjustified reimbursements from the State, the perpetrator of those acts shall be punished with a fine of EUR 75000 and a term of imprisonment of five years. However, in the case of concealment, this provision shall apply only if that concealment concerns more than one tenth of the taxable amount or the sum of EUR 153. Anyone convicted and sentenced under this article may be deprived of civic, civil and family rights, in accordance with Article 131‑26 of the Criminal Code. In addition, the court may order that the judgment given be displayed and disseminated under the conditions provided for in Articles 131‑35 or 131‑39 of the Criminal Code. The proceedings shall be commenced under the conditions laid down in Articles L. 229 to L. 231 of the Code of Tax Procedures.’

2. Livre des procédures fiscales (Code of Tax Procedures)

11. The version of Article L. 228 applicable to the case lays down the conditions under which the tax authorities may lodge a complaint with the public prosecutor’s office concerning acts which constitute tax evasion: ‘A complaint seeking the application of criminal penalties in matters relating to direct taxes, value added tax and other turnover taxes, registration fees, the tax on immovable property and the tax on the transfer of assets and documented legal transactions shall be lodged by the tax authorities after consent has been given by the Committee on tax offences, failing which the complaint will be inadmissible.’

II. Facts and questions referred for a preliminary ruling

12. BV, a sole trader, practised as an accountant until 14 June 2011. As such, and in view of his turnover, he was liable for VAT (ordinary assessment procedure) and required to file monthly returns.

13. BV was also liable for income tax, under the non-commercial profits (‘NCPs’) category, as a result of which he was required to file, each year, an NCP return in addition to a return detailing all his personal income.

14. As a result of inspections carried out in 2009, 2010 and 2011, the tax authorities discovered that BV had declared less professional income than he had actually received, resulting in tax evasion in the amounts of EUR 82507 in respect of VAT and EUR 108833 in respect of NCPs.

15. On 10 March 2014, the tax authorities forwarded to the public prosecutor’s office a complaint alleging accounting irregularities and evasion of income tax and VAT, acts which involved the concealment of income received. ( 7 )

16. BV was summoned to appear before the tribunal correctionnel d’Annecy (Criminal Court, Annecy, France) to be tried for two offences: tax evasion by the concealment of taxable amounts and the omission of records from an accounting document. At all stages of the proceedings, BV admitted that he had committed the acts of which he was accused.

17. By judgment of 23 June 2017, the tribunal correctionnel d’Annecy (Criminal Court, Annecy) sentenced BV to 12 months’ imprisonment after finding him guilty of the offences of which he was accused.

18. BV appealed before the cour d’appel de Chambéry (Court of Appeal, Chambéry, France), claiming that his conviction and the sentence imposed were contrary to the ne bis in idem principle because he had already been the subject of an adjustment procedure in respect of the same acts, which had resulted in tax penalties in the amount of 40% of the charges evaded. In BV’s submission, the overall severity of the system of penalties applied to him was disproportionate.

19. The appeal was dismissed by judgment of 13 February 2019 of the cour d’appel de Chambéry (Court of Appeal, Chambéry), which upheld the lower court’s judgment as regards the accused’s guilt and increased the punishment, ( 8 ) sentencing him to 18 months’ imprisonment, 6 of which were suspended.

20. The appeal court held that there was no breach of the ne bis in idem principle because the combination of criminal penalties and tax penalties had been imposed under Article 1741 of the GTC, a provision which is compatible with Article 50 of the Charter in so far as it complies with the ruling of the Conseil constitutionnel (Constitutional Council, France).

21. BV appealed on a point of law to the Cour de cassation (Court of Cassation), arguing that the first-instance and appeal courts: – disregarded Article 50 of the Charter by applying Article 1741 of the GTC, the rules laid down in which, as interpreted by the Conseil Constitutionnel (Constitutional Council), are neither clear nor precise; – failed to justify their decisions in accordance with the requirements under EU law, since they did not ensure that the charge resulting from all the penalties imposed was not excessive in the light of the seriousness of the offence.

22. According to the Cour de cassation (Court of Cassation): – The national provisions are aimed, inter alia, at combating VAT offences. They are thus based on an objective of general interest, thereby justifying the duplication of proceedings and penalties of a criminal nature which pursue additional objectives. – As regards clarity and foreseeability, Articles 1729 and 1741 of the GTC precisely define the acts or omissions which can be the subject of criminal and tax proceedings and penalties. – As regards necessity and proportionality, the option of combining penalties is limited by the prohibition on exceeding the maximum amount of one of the penalties already imposed. That rule concerns only penalties of the same kind (that is to say, financial penalties). – However, it cannot be claimed that the correct application of EU law is so clear as to leave no room for any reasonable doubt.

23. Against that background, the Cour de cassation (Court of Cassation) has referred the following questions to the Court of Justice for a preliminary ruling: ‘(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?’

III. Procedure before the Court of Justice

24. The request for a preliminary ruling was received at the Registry of the Court on 28 October 2020.

25. Written observations were lodged by BV, the French Government and the European Commission.

26. It was not considered necessary to hold a hearing.

IV. Analysis

A. Preliminary remarks concerning the national legislation at issue and the subject matter of the reference for a preliminary ruling

27. The ‘national rules’ to which the referring court refers are the result of the judicial interpretation of two legislative provisions becoming an integral part of those provisions.

28. Those legislative provisions are Articles 1729 and 1741 of the GTC, the wording of which was set out above. ( 9 ) In summary, they provide for administrative penalties (increase of 40% for intentional offences, in accordance with Article 1729) and for criminal penalties in the form of fines and prison sentences (under Article 1741) for certain acts in breach of the tax provisions.

29. Article 1741 of the GTC expressly states that fines and prison sentences may be imposed irrespective of any tax penalties (in other words, penalties which are formally administrative in nature) ( 10 ) in relation to the same acts.

30. As regards the judicial interpretation of those national provisions, the referring court states that the duplication of criminal and administrative penalties provided for therein is subject to three interpretative reservations formulated by the Conseil constitutionnel (Constitutional Council). ( 11 )

31. Those reservations – which define the conditions under which it is possible combine the penalties laid down in Articles 1729 and 1741 of the GTC – are the following: – a taxable person who is exempted from payment of tax by a judgment which has become final on substantive grounds cannot be convicted of tax evasion in criminal proceedings (first reservation, irrelevant in this case); – Article 1741 of the GTC is to apply only to the most serious cases of fraudulent concealment of taxable sums or omissions in relation to the duty to file a return. Seriousness may relate to the amount of the charges evaded, the nature of the accused’s actions or the circumstances in which those actions occurred (second reservation); – although the possibility of commencing two sets of proceedings 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).

32. As regards the second reservation, the referring court states that its own case-law has clarified the relevant rules governing the seriousness of the conduct concerned in the following terms: ‘Where the person charged with tax evasion provides proof that he or she 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 accused’s actions or the circumstances of his or her involvement, including any aggravating circumstances.’ ( 12 )

33. As regards the third reservation, the referring court points out that it has stipulated the conditions for the application of that reservation as follows: – ‘Where the person charged provides proof that he or she 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.’ – ‘The principle of proportionality is not infringed where a court sentences an accused, on whom final administrative penalties have already been imposed, to a term of imprisonment, provided that no criminal fine is imposed on him or her.’

34. That, in short, is the legislative landscape – resulting from the interaction between two statutory provisions and the judicial interpretation of those provisions – which, in French law, permits the combination of administrative and criminal penalties in relation to the same acts which constitute a criminal offence and a tax offence, if the tax authorities have notified the public prosecutor’s office of those acts. ( 13 )

35. The Cour de cassation (Court of Cassation) does not harbour any doubts in relation to the Court’s case-law on the ne bis in idem principle as regards: – the criminal nature of the administrative penalty provided for in Article 1729 of the GTC; ( 14 ) – the existence of a general interest which justifies combining the administrative penalty with a criminal penalty, as provided for in Article 1741 of the GTC. ( 15 )

36. The questions referred by the Cour de cassation (Court of Cassation) therefore come down to a determination of whether national law satisfies the conditions laid down in the judgment in Menci, regarding the clarity, foreseeability, necessity and proportionality of provisions which enable the duplication of proceedings and penalties.

37. It is important to define the subject matter of this reference for a preliminary ruling in those terms in order to make clear that the following issues remain outside its scope: – the identification of the ‘same acts’ (idem factum); – the existence of the same legal interest protected by the double (bis) criminal and administrative punishment of the acts; – the ‘substantively criminal’ nature of an administrative penalty which increases by 40% the amount of the tax, in the case of a tax offence; and – the close temporal and substantive connection between the administrative and criminal proceedings which result in the same person being punished by a financial penalty and a prison sentence in relation to the same acts. ( 16 )

B. The substance

1. Question 1

38. The question concerns the alleged lack of clarity and precision of the national provisions pursuant to which certain acts constituting tax offences may be the subject of a combination of administrative and criminal proceedings and penalties.

39. BV submits that the need to refer to national case-law in order to determine the conditions under which it is lawful to combine administrative and criminal penalties shows on its own that the legislation at issue is not sufficiently clear and precise.

40. BV adds that that case-law is not capable of remedying the defect complained of because it does not define in an objective and accessible manner the decisive criteria for determining whether the seriousness which justifies duplication exists.

41. The French Government and the Commission both submit that the legislation applied satisfies the conditions of clarity and foreseeability. The criteria taken into account for those purposes by the national case-law are in themselves sufficiently clear (and also relevant to this case).

42. The French Government and the Commission argue in addition that, according to the Court, the principle that offences and penalties must be defined by law does not preclude the use of judicial interpretation to specify the rules governing criminal liability.

43. My assessment of this matter is essentially the same as that of the French Government and the Commission.

44. In accordance with the Court’s case-law, the duplication of proceedings and penalties like those at issue in this case constitutes a limitation of the fundamental right not to be tried or punished twice in criminal proceedings for the same criminal offence. ( 17 )

45. Pursuant to Article 52(1) of the Charter, a national provision may only lay down such a limitation by making it subject to a number of cumulative conditions: – It must be provided for by law. – It must respect the essence of the right concerned. – It must be necessary, subject to the principle of proportionality. – It must genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

46. The limitation at issue in these proceedings was laid down by law and therefore, in principle, it satisfies the first condition. The possibility of combining administrative and criminal proceedings and penalties is not provided for merely in administrative acts or judicial practices but rather in two specific legislative provisions: – first, Article 1729 of the GTC, which, in so far as is important for the present purposes, penalises by an increase of 40% certain intentional inaccuracies or omissions in matters relating to taxation; – second, Article 1741 of the GTC, which, without prejudice to the former provision, provides for the imposition of a fine and a prison sentence in cases of fraudulent conduct which are categorised as an offence.

47. Pursuant to the principle of legality of penalties, guaranteed by Article 49 of the Charter, the law must also be clear and precise in relation to the definition of the situations in which it is possible to duplicate proceedings and penalties in relation to the same acts.

48. The Court has linked the requirement that legislation must be clear and precise with the ‘strict necessity’ of such legislation, for the purposes of compliance with the principle of proportionality. ( 18 )

49. In analysing the ‘strict necessity’ of the applicable legislation, the judgment in Menci held that that legislation must ‘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’. ( 19 )

50. After considering whether, subject to the necessary verification by the referring court, the Italian legislation examined in that case was ‘clear and precise’, the Court stipulated in the judgment in Menci that the required correspondence between the seriousness of the offence concerned and the severity of all of the penalties imposed must be guaranteed. ( 20 )

51. In my view, the requirement that the legislation must be clear and precise has its basis in the principle that a limitation on the exercise of fundamental rights must be provided for by law, to which the first condition under Article 52(1) of the Charter refers.

52. Only if the legislation which allows the duplication of administrative and tax proceedings and penalties does so in clear and precise terms will it be possible to assess accurately the subject matter and scope of that double punishment. On that basis, it will then be necessary to verify whether the duplication of proceedings and penalties is proportionate.

53. The requirement that the law must be clear and precise serves a prior, conceptually separate purpose from that of the principle of proportionality. It satisfies, inter alia, the requirement that it is the law and only the law which defines the application of the ne bis in idem principle.

54. In order to comply with that principle, only a clear and precise definition of the situations in which proceedings and penalties may be duplicated will be sufficient, rather than simply any legislative definition.

55. Otherwise, the guarantee inherent in the principle of legality as regards the legislature’s exclusive power to restrict fundamental rights would be distorted. Therefore, the legislature cannot assign the exercise of that power to the administrative authorities or the courts.

56. In addition, the legality required by Article 52(1) of the Charter for the purpose of limiting the right guaranteed by Article 50 of the Charter is additional to the legality required by Article 49 of the Charter in relation to the definition of penalties.

57. In so far as the duplication of administrative and criminal proceedings and penalties is capable as a whole of leading to a more serious outcome than that provided exclusively by criminal legislation, that additional punitive element will be acceptable only if it is preceded by a clear and precise definition, by the legislature, of the situations and circumstances which make it possible.

58. The principle that offences and penalties must be defined by law is, therefore, applicable to the duplication of administrative and criminal proceedings and penalties. It follows from this that provisions which authorise double punishment must comply with certain conditions of accessibility and foreseeability. ( 21 )

59. It is in that context, rather than that of the principle of proportionality under Article 52(1) of the Charter, that the requirement of clarity and precision examined in the judgment in Menci must be considered.

60. The uncertainty pointed out by the referring court is whether the ‘clarity and precision’ required by the principle of legality must already – and only – exist in the wording of the legislation or whether, on the other hand, it is possible to refer in that regard to the case-law of the courts.

61. The French Government and the Commission have both observed that, according to the Court, the principle that offences and penalties must be defined by law does not exclude the interpretation of the law by the courts.

62. In the Court’s own words, while the principle that offences and penalties must be defined by law ‘requires the law to give a clear definition of offences and the penalties which they attract’, that requirement ‘is satisfied where the individual concerned is in a position to ascertain from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable’. ( 22 )

63. The Court goes on to state that ‘the principle that offences and penalties must be defined by law cannot therefore be interpreted as precluding the gradual, case-by-case clarification of the rules on criminal liability by judicial interpretation, provided that the result was reasonably foreseeable at the time the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time’. ( 23 )

64. As I have already observed, in this case, both the Conseil constitutionnel (Constitutional Council) and the Cour de cassation (Court of Cassation) have interpreted Articles 1729 and 1741 of the GTC. The former, in particular, has made the constitutionality of both provisions – that is, their validity – conditional on compliance with the reservations set out above.

65. Pursuant to those reservations, the combined application of Articles 1729 and 1741 of the GTC – in other words, the combination of the proceedings and penalties provided for separately by each one – is constitutionally permissible only ‘in the most serious cases of fraudulent pretence of the sums liable to tax’.

66. The Conseil constitutionnel (Constitutional Council) adds that that seriousness ‘may arise from the amount of the charges evaded, the nature of the accused’s actions or the circumstances in which those actions took place’. ( 24 )

67. The interpretation of Articles 1729 and 1741 of the GTC by the Conseil constitutionnel (Constitutional Council) does not amount simply to ‘assistance’ which, according to the Court’s case-law referred to above, ( 25 ) courts may provide when it comes to identifying which acts and omissions create criminal liability.

68. Its constitutional nature means that the interpretation provided by the Conseil constitutionnel (Constitutional Council) becomes, for legislative purposes, an integral part of the legal provisions interpreted such that it forms an inseparable whole with those provisions.

69. Accordingly, Articles 1729 and 1741 of the GTC include the legislative content that is derived from their constitutional interpretation and are, in that sense, the result of the positive law of the legislature, on the one hand, and of the ‘negative law’ of the Conseil constitutionnel (Constitutional Council), ( 26 ) on the other.

70. Pursuant to the constitutional interpretation to which their validity has been made subject, Articles 1729 and 1741 of the GTC provide that the administrative penalty laid down in Article 1729 in relation to certain inaccuracies or omissions may be accompanied by a criminal penalty under Article 1741 of the GTC only in the most serious cases of fraudulent pretence.

71. The national legislation examined in the judgment in Menci was not substantially different to that under consideration here, although, in that case, duplication was restricted to offences in excess of EUR 50000.

72. The Court found that that legislation, which the referring court was required to verify, clearly and precisely laid down the circumstances in which the failure to pay VAT may be subject to a duplication of proceedings and penalties. ( 27 )

73. The question is, therefore, whether the reference to ‘the most serious cases of fraudulent pretence’, to which the Conseil constitutionnel (Constitutional Council) refers, constitutes a condition that is equivalent, in terms of clarity and precision, to the condition relating to the quantitative threshold which, in Menci, was set at a minimum of EUR 50000.

74. In another judgment, the Court held that legislation which permitted the duplication of proceedings and penalties in cases of market manipulation liable to ‘affect significantly the value of financial instruments’ was sufficiently clear and precise. ( 28 ) Therefore, the Court did not prohibit the use of indeterminate clauses as long as provision is made for a proper judicial definition of such clauses.

75. In this case, the Conseil constitutionnel (Constitutional Council) has provided details of the seriousness which can justify the duplication of proceedings and penalties. As has already been said, that seriousness ‘may arise from the amount of the charges evaded, the nature of the accused’s actions or the circumstances in which those actions took place’. ( 29 )

76. As a supplement to that clarification, which, I stress, must be deemed to be an integral part of the content of the legislative provisions at issue, the Cour de cassation (Court of Cassation) has set out the criteria for assessment of whether the seriousness required by the Conseil constitutionnel (Constitutional Council) exists. ( 30 )

77. In doing so, the Cour de cassation (Court of Cassation), now indeed accomplishing the task of specifying in detail the scope of the legislative provisions, which the judgment in AC-Treuhand v Commission assigns to the ordinary courts, makes the French system of double criminal and administrative punishment easier to understand. ( 31 )

78. Depending on the corresponding types of offence and the taxes concerned, the criteria referred to are: – repeated ‘acts of omission’ in returns over a long period despite several letters of formal notice; – the accused being an elected official of the French Republic; – the use of intermediaries established in another country; and – the amount of the charges evaded. ( 32 )

79. Although a better systematisation of all the applicable criteria would be desirable, the clarifications provided by France’s highest criminal court, under the conditions set out by the referring court, exceed the minimum necessary for national legislation – in this case, the sum of the law as constitutionally interpreted and its gradual precise definition by that high-ranking court – to determine, in a reasonably foreseeable manner, the situations in which double punishment is possible.

80. It may be accepted, as BV argues, that the clarity of that legislation will not be obvious to laypersons, and professional advice will need to be taken. However, the Court has held that: – ‘a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’; ( 33 ) – that ‘is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation’ and who ‘can therefore be expected to take special care in evaluating the risk that such an activity entails’. ( 34 )

81. It should be recalled, in that connection, that the acts which BV is alleged to have committed were carried out in the course of his professional activity as an accountant and, therefore, in a context in which legal advice tends to be the rule and not the exception.

82. It is also the case – and BV draws attention to this ( 35 ) – that, for the purposes of the assessment of concepts such as ‘intentional offence’, ‘deception’ and ‘fraudulent evasion’, courts are granted a broad (and, in my opinion, inevitable) interpretative discretion. However, those terms ( 36 ) must be viewed in conjunction with the other abovementioned criteria drawn up by the Cour de cassation (Court of Cassation) in order to provide a more accurate image of the body of rules which permits the double punishment of tax offences.

83. In summary, I believe that the answer to question 1 should be that the national legislation contains the minimum information necessary to make it possible to determine, in a clear and foreseeable manner, the situations in which the duplication of administrative and criminal proceedings and penalties is possible in respect of the same person and in relation to the same acts.

2. Question 2

84. By its second question, the Cour de cassation (Court of Cassation) asks whether the national legislation at issue satisfies the requirements of necessity and proportionality that are mandatory for the duplication of criminal and administrative proceedings and penalties.

85. The answer must be no if that legislation goes further than what is strictly necessary to achieve the aims legitimately pursued by double punishment. That is the position taken by BV and the Commission, who argue that it does not guarantee, inter alia, that the severity of all the combined punishments is proportional to the seriousness of the offence committed.

86. The French Government submits, on the other hand, that it is decisive that, in this case, the criminal court gave judgment after the definitive imposition of the administrative penalty. That means that, when it applied the rule which requires courts to take into account all the circumstances of the case, that court will have considered the existence of that (first) penalty.

87. The French Government adds that proportionality is ensured not only by limitation of the amount of the penalties but also by the stipulation that duplication is permitted only in the most serious cases.

88. I do not agree with that assertion of the French Government, since the reference to the most serious cases is, rather, relevant in assessing whether the provisions which permit double punishment are sufficiently precise. The fact that a tax offence is serious does not allow the requirements of proportionality simply to be ignored for the purpose of verifying whether the (double) penalties imposed comply with them.

89. I shall refer again to the case-law of the Court on the necessity of national legislation which limits the right referred to in Article 50 of the Charter.

90. In the Court’s words, – the duplication of proceedings requires ‘the existence of rules ensuring coordination so as to reduce to what is strictly necessary the additional disadvantage associated with such a duplication for the persons concerned’; ( 37 ) – the duplication of penalties‘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’. ( 38 )

91. That requirement is aimed, in short, at ensuring that the duplication of penalties occurs in such a way that that the correspondence (proportionality) between the seriousness of the offence, on the one hand, and the severity of all the penalties imposed, on the other, is duly guaranteed.

92. According to the referring court, the Conseil constitutionnel (Constitutional Council) has held, to that effect, that, in the event of duplication of penalties, the principle of proportionality stipulates that the total amount of the penalties must not exceed the maximum amount of one of the penalties imposed.

93. Although the power to duplicate penalties is limited by the prohibition on exceeding the highest amount of one of the penalties already imposed, ‘that rule concerns only penalties of the same kind (in other words, financial penalties)’. ( 39 )

94. The Cour de cassation (Court of Cassation) asks whether, having thus confined the principle of proportionality to situations involving the duplication of financial penalties, the requirement of ensuring that the seriousness of the offence corresponds with the severity of all the penalties (that is, including any prison terms) is satisfied.

95. In the judgment in Garlsson Real Estate, the Court found that national legislation which ‘appears solely to apply to the duplication of pecuniary penalties and not to the duplication of an administrative fine of a criminal nature and a term of imprisonment’ was contrary to the principle of proportionality. That legislation ‘does not guarantee that the severity of all of the penalties imposed are limited to what is strictly necessary in relation to the seriousness of the offence concerned’. ( 40 )

96. In view of the national legislative landscape presented by the referring court, the French legislation only makes it possible to balance the severity of duplicated penalties where all these are of a pecuniary nature.

97. If that is the case, the application of the case-law of the Court which I have cited above would lead to the finding (as BV and the Commission argue) that the legislation at issue is not compatible with Article 50 of the Charter. In particular, it does not fulfil the obligation for competent authorities, in the event that a second penalty is imposed, to ensure that ‘the severity of the sum of all of the penalties imposed does not exceed the seriousness of the offence identified’. ( 41 )

98. The French Government counters that national law ensures proportionality also in the case of different types of penalties, since tax proceedings and criminal proceedings are connected in law: the latter rely on the former in order to impose a penalty additional to the tax penalties imposed in the course of an administrative review. ( 42 )

99. The French Government also points out that, in cases like this, the criminal proceedings take place once the administrative proceedings have ended. In any event, the criminal court is required to respect the principle of proportionality of penalties, to which end it has the power to adjust the criminal penalty. That power enables the criminal court to guarantee that the penalty is strictly necessary and proportionate, by making it fit the circumstances of the case. ( 43 )

100. In particular, under Article 132‑1 of the Criminal Code, the court must determine the nature, quantum and scheme of the penalties by reference to the circumstances of the offence and the character of the perpetrator, in addition to that person’s material, family and social situation. ( 44 )

101. In that connection, the French Government submits that, in the event of duplication of penalties, the criminal court has a duty to take into account the prior imposition of an administrative penalty. ( 45 )

102. The Court may not intervene in the difference of opinions between the referring court and the French Government concerning the interpretation of domestic law. Answers to requests for a preliminary ruling must be given in the light of the national factual and legal framework as presented by referring courts.

103. If matters are as the Cour de cassation (Court of Cassation) presents them, the national legislation does not make it possible to ensure that the seriousness of the offence is properly reflected in the severity of all the combined penalties, and therefore that legislation is incompatible with Article 50 of the Charter, as interpreted by the Court.

104. If, on the other hand, national law provides the appropriate criteria for ensuring that a criminal court may adjust a criminal penalty (also in the case of a prison sentence and not a financial penalty) in light of the fact that it will be added to an administrative financial penalty, Article 50 of the Charter will not be infringed.

105. In summary, if national law does not make it possible to ensure that the seriousness of the offence is properly reflected in the severity of all the combined penalties (regardless of their nature), which is a matter for the referring court to determine, the legislation at issue will be incompatible with EU law on the grounds that it infringes Article 50 of the Charter.

V. Conclusion

106. In the light of the foregoing considerations, I suggest that the Court of Justice give the following reply to the Cour de cassation (Court of Cassation, France): Article 50 of the Charter of Fundamental Rights of the European Union is to be interpreted as meaning that: – It does not preclude national legislation which permits the duplication of administrative and criminal proceedings and penalties in situations defined on the basis of clear and precise criteria that are laid down by law and properly defined by case-law. – It precludes national legislation which does not make it possible to ensure the required proportionality between the seriousness of the offence, on the one hand, and the severity of all the combined penalties, on the other, whether they be financial administrative penalties of a substantively criminal nature or prison sentences.

( 1 ) Original language: Spanish.

( 2 ) C‑524/15, EU:C:2018:197; ‘judgment in Menci’.

( 3 ) C‑537/16, EU:C:2018:193; ‘judgment in Garlsson Real Estate’.

( 4 ) Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

( 5 ) Loi No 2008-1443 of 30 December 2008.

( 6 ) Loi No 2010-1658 of 29 December 2010.

( 7 ) In particular, according to the order for reference, the tax authorities complained that BV ‘had filed irregular accounts (income not accounted for, omission of documents substantiating income and use of personal bank accounts for the payment of professional income); filed VAT returns omitting the majority of his income, thereby evading VAT in the amount of EUR 82507; filed reduced NCP returns; filed reduced returns for his overall income, recording an NCP lower than that actually received, thereby evading income tax in the amount of EUR 108883’.

( 8 ) The public prosecutor’s office had also appealed.

( 9 ) Points 9 and 10 of this Opinion.

( 10 ) From now on, I shall use the term ‘administrative penalties’ to refer to penalties which are imposed by the administrative authorities but which are substantively criminal in nature because they satisfy the conditions set out in paragraphs 26 to 33 of the judgment in Menci.

( 11 ) According to the order for reference, the Conseil constitutionnel (Constitutional Council) ‘has ruled in four decisions that the duplication of criminal and tax proceedings and penalties in cases of concealment of taxable sums and omissions from the tax return is compatible with the principles of necessity and proportionality (decisions No 2016-545 QPC of 24 June 2016; No 2016-546 QPC of 24 June 2016; No 2016-556 QPC of 22 July 2016; and No 2018-745 QPC of 23 November 2018)’.

( 12 ) Order for reference, paragraph 28.

( 13 ) Decision of the Conseil constitutionnel (Constitutional Council) No 2016-555 QPC of 25 July 2016 did not object to the view that a charge of tax evasion by the public prosecutor’s office must be preceded by a complaint from the tax authorities.

( 14 ) That is, furthermore, an assessment which the referring court is required to perform, as the judgment in Menci (paragraph 27) points out, subject always to the possibility that the Court may, where appropriate, provide clarification designed to give the national court guidance in its assessment.

( 15 ) According to the Cour de cassation (Court of Cassation), ‘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’ (paragraph 48 of the order for reference).

( 16 ) The exclusion of those matters from the dispute saves me having to set out my own views on the approach taken in the judgment in Menci in that regard. For a detailed criticism of the case-law in that judgment, see the Opinions of Advocate General Bobek in bpost (C‑117/20, EU:C:2021:680) and in Nordzucker (C‑151/20, EU:C:2021:681), in particular points 101 to 117 of the former.

( 17 ) For example, judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 34).

( 18 ) Judgment in Menci, paragraph 46: compliance with the principle of proportionality ‘requires that the duplication of proceedings and penalties provided for by national legislation, such as that at issue in the main proceedings, does not exceed what is appropriate and necessary in order to attain the objectives legitimately pursued by that legislation, it being understood that, when there is a choice between several appropriate measures, recourse must be had to the least onerous and the disadvantages caused must not be disproportionate to the aims pursued’.

( 19 ) Judgment in Menci, paragraph 49.

( 20 ) Judgment in Menci, paragraphs 50 to 59. To the same effect, judgment in Garlsson Real Estate, paragraphs 51 to 56.

( 21 ) In relation to the principle that offences and penalties must be defined by law, see, for example, judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku (C‑634/18, EU:C:2020:455), paragraph 49 of which points out that ‘the law must define clearly offences and the penalties which they attract. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him or her criminally liable’. And, in so far as is important for the present purposes, what acts and omissions will result in a duplication of proceedings and penalties.

( 22 ) Judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717; ‘judgment in AC-Treuhand v Commission’; paragraph 40).

( 23 ) Judgment in AC-Treuhand v Commission, paragraph 41.

( 24 ) Decision No 2016-545 QPC of 24 June 2016, paragraph 21; ‘the Decision of the Conseil constitutionnel (Constitutional Council)’.

( 25 ) Judgment in AC-Treuhand v Commission, paragraph 40.

( 26 ) The role of ‘negative legislatures’, which constitutional courts perform when they review the law, leads to those courts removing from the legal system (or not allowing into that system, where they are adjudicating on legal texts which have not yet entered definitively into force) provisions enacted by the legislature which are contrary to their respective constitutions.

( 27 ) Judgment in Menci, paragraphs 50 and 51.

( 28 ) Judgment in Garlsson Real Estate, paragraphs 52 and 53.

( 29 ) Decision of the Conseil constitutionnel (Constitutional Council), paragraph 21.

( 30 ) The Cour de cassation (Court of Cassation) has held, in accordance with the constitutional case-law, that ‘where the person charged with tax fraud provides proof that he or she 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 [GTC], 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’ (order for reference, paragraph 28).

( 31 ) In paragraph 75 of his written observations, BV acknowledges that the Cour de cassation (Court of Cassation) attempted to ‘specify the scope of the [second] reservation’, but, in his view, ‘did not succeed in making it clearer and more foreseeable’.

( 32 ) Order for reference, paragraph 31. With regard to the amount of tax evaded, the referring court refers to sums of more than EUR 200000 in relation to income tax and wealth tax. In any event, the court must give a reasoned ruling on the seriousness of the offence and, before its ruling, on the choice of and reasons for the penalty to be imposed (paragraph 29 of the order for reference).

( 33 ) Judgment in AC-Treuhand v Commission, paragraph 42.

( 34 ) Loc. ult. cit.

( 35 ) In paragraph 73 of his written observations, BV refers to an ‘official commentary’ of the Conseil constitutionnel (Constitutional Council) in which that judicial discretion is recognised.

( 36 ) The compatibility of those terms with the requirement that the description of offences must be exhaustive may, perhaps, raise some objections. However, that is not the context in which those terms are used when they assist with the definition of the rules on the duplication of criminal and administrative penalties.

( 37 ) Judgment in Menci, paragraph 53.

( 38 ) Judgment in Menci, paragraph 55. Italics added.

( 39 ) Order for reference, paragraph 63.

( 40 ) Judgment in Garlsson Real Estate, paragraph 60.

( 41 ) Judgment in Garlsson Real Estate, paragraph 56. No italics in the original.

( 42 ) Paragraph 71 of the French Government’s written observations.

( 43 ) Paragraph 75 of the French Government’s written observations.

( 44 ) Paragraph 77 of the French Government’s written observations.

( 45 ) Paragraph 78 of the French Government’s written observations. However, it remains striking that those observations conclude with the proposal that the answer to question 2 should be that Article 50 of the Charter does not preclude a ‘duplication of penalties … limited by the prohibition on exceeding the highest amount of one of the penalties, by applying that limit solely to penalties of the same nature, in other words, financial penalties’. That proposal disregards the possibility that penalties of a different nature may be offset against one another.