Dual-Track Administrative and Criminal Law Enforcement Systems : Setting Limitations to the Ne Bis In Idem Principle within the EU

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Dual-Track Administrative and Criminal Law Enforcement Systems:

Setting Limitations to the Ne Bis In Idem Principle within the EU

Supervisor:

Prof. Dr. H. G. van der Wilt Student Name: Viola Pendl

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ABSTRACT

This paper critically analyses the most recent judgments rendered by the CJEU on 20 March 2018 in relation to the principle of ne bis in idem as enshrined in Art. 50 CFR and answers the questions whether it is feasible to blur the dividing line between administrative and criminal penalties, whether the CJEU follows the interpretation given by the ECtHR to the interpretation of Art. 4P7 ECHR, and what interests the CJEU choses to prefer in its most recent judgments when striking a balance between fundamental rights protection and effectiveness of Union law enforcement. It will be shown that the recent judgments rendered by the CJEU align with the interpretation of the ECtHR in the case of A and B v. Norway to a considerable extend. Just like the ECtHR reviewed the case of Zolotukhin with its judgment in A and B v. Norway, so did the CJEU review the judgment of Åkerberg Fransson.

Moreover, it will be proven that the blurring of the dividing line between administrative and criminal law is inevitable since some administrative penalties are punitive in nature. The distinction between the primary objectives of encouraging and discouraging certain behaviors and merely ancillary sanctions or remedial steps is the only possible way to distinguish between administrative and criminal penalties. Since many administrative sanctions have also as their goal to deter future offences, this distinction cannot be set clearly and precisely. In order to ensure the individual’s right, it would be necessary for MS to provide for a mechanism, in which administrative and criminal proceedings form part of an integrated and coordinated legal response.

Lastly, it will be shown that both the CJEU and the ECtHR opt for a pro auctoritate approach when balancing the interests between the individual’s right and the authority of state to enforce the law. Nevertheless, AG Campos Sánchez-Bordona as well as Judge de Albuquerque make a strong case in favour of the individual’s right as main focus of the underlying rationale. They find that by posing limitations on Art. 50 CFR and Art. 4P7 ECHR, the European Courts add further complexity and uncertainty as to the application of ne bis in idem principle.

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ABBREVIATIONS

AG Advocate General

Art. Article

Art. 4P7 ECHR Article 4 of Protocol no. 7 to the European Convention on Human Rights

CFR Charter of Fundamental Rights of the European

Union

CISA Convention on the Implementation of the Schengen

Agreement

CJEU Court of Justice of the European Union

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EU European Union

ICCPR International Covenant on Civil and Political Rights

MS Member State(s)

TEU Treaty on European Union

TFEU Treaty on the Functioning of the European Union

VAT Value added tax

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TABLE OF CONTENTS

ABSTRACT...2

ABBREVIATIONS...3

CHAPTER I – INTRODUCTION...5

CHAPTER II – CONCEPTS AND DIMENSIONS TO THE NE BIS IN IDEM PRINCIPLE WITHIN THE EU LEGAL SPHERE...6

2.1 Relevant Sources of the Principle within the EU Legal Order...6

2.1.1 Art. 54 CISA...6

2.1.2 Art. 4P7 ECHR...8

2.1.3 Art. 50 CFR...9

2.2 Aspects of the Ne Bis In Idem Principle...9

2.2.1 Rationale of the Principle...9

2.2.2 Anrechnungsprinzip vs. Erledigungsprinzip...11

2.2.3 The Elements of Bis and Idem...11

CHAPTER III – THE BLURRING OF THE DIVIDING LINE BETWEEN ADMINISTRATIVE AND CRIMINAL LAW...13

3.1 Recent Issues Relating to Dual-Track Systems Referred to the CJEU...13

3.1.1 Final Administrative Decisions to Prevent Criminal Proceedings?...13

3.1.2 Final Acquittals in Criminal Proceedings to Prevent Administrative Penalties?...16

3.1.3 Pardoned Convictions in Criminal Proceedings to Prevent Administrative Penalties?...18

3.2 Alignment of the Interpretations at the European Courts...22

3.3 Critical Analysis in the Light of A and B v. Norway...24

3.3.1 The ‘Criminal Nature’ of Administrative Proceedings...24

3.3.2 Dual-Track Administrative and Criminal Systems...26

3.3.3 Call for a Shift in the Underlying Rationale...30

CHAPTER IV – CONCLUSION...31

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CHAPTER I – INTRODUCTION

Even though the ne bis in idem principle counts as general principle in various legal orders, there is neither a universally accepted interpretation of this principle available on the international level, nor are the constitutional traditions of EU Member States homogeneous on the interpretation of said principle.1_{Due to the various sources of the}

principle of ne bis in idem within the EU legal order, issues on the interpretation of said principle are inevitable and the CJEU as well as the ECtHR have the task of solving said problems.2_{Recently the CJEU ruled on three cases that triggered some new aspects as}

regards the interpretation of the principle of ne bis in idem as incorporated by Art. 50 CFR. Questions raised before the CJEU concerned issues, such as dual-track enforcement systems adopted in the area of economic and financial crime that concern the interrelation of administrative and criminal law sanctions. This paper critically analyses the most recent judgments rendered by the CJEU on 20 March 2018 in relation to the principle of ne bis in idem as enshrined in Art. 50 CFR and answers the questions whether it is feasible to blur the dividing line between administrative and criminal penalties, whether the CJEU follows the interpretation given by the ECtHR to the interpretation of Art. 4P7 ECHR, and what interests the CJEU choses to prefer in its most recent judgments when striking a balance between fundamental rights protection and effectiveness of Union law enforcement.

Chapter II outlines an introduction to the principle of ne bis in idem and elaborates on the relevant sources and concepts. Section 2.1 provides for the relevant sources, which include Art. 54 CISA, Art. 4P7 ECHR and Art. 50 CFR. Section 2.2 discusses the underlying rationale of the principle, the difference between the

Anrechnungsprinzip and the Erledigungsprinzip, as well as the elements of bis and idem. Chapter III discusses the blurring of the dividing line between administrative and

criminal law and the effects it has on the ne bis in idem principle. Section 3.1 elaborates on the three recent rulings given by the CJEU on the emerging issues of dual-track enforcement systems and their compliance with the ne bis in idem principle. Section 3.2 shows the continuing alignment of the European Courts as regards the interpretation of principle. Section 3.3 provides a critical analysis of the recent CJEU judgments in the 1Van Bockel 2010, p. 7; Vervaele, The transnational ne bis in idem principle in the EU: Mutual

recognition and equivalent protection of human rights, Utrecht Law Review (2005), p. 275; de La Cuesta, Concurrent national and international criminal jurisdiction and the principle ‘ne bis in idem,’ Revue

internationale de droit pénal (2002), p. 754.

2 Keeping in mind especially cases such as CJEU, C-617/10, Åklagaren v. Hans Åkerberg Fransson ECLI:EU:C:2013:105, and ECtHR, Sergey Zolotukhin v. Russia [2009] Application no. 14939/03.

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light of the ECtHR case A and B v. Norway. Chapter IV provides for a conclusion, which is drawn from the aforementioned chapters, especially from the critical analysis. Moreover, precise answers to the posed research questions are stated in this section.

CHAPTER II – CONCEPTS AND DIMENSIONS TO THE NE BIS IN IDEM PRINCIPLE WITHIN THE EU LEGAL SPHERE

2.1 Relevant Sources of the Principle within the EU Legal Order

Within the EU legal order, there are several agreements applicable that incorporate the principle of ne bis in idem, such as the CFR, ECHR, and CISA. These instruments do not form an exhaustive representation of the implementation of said principle when considering the ICCPR or even EU secondary law, which is aimed at establishing judicial cooperation in criminal matters within the EU.3_{Due to the various sources of}

the principle of ne bis in idem within the EU legal order, issues on the interpretation of said principle are inevitable and the CJEU and the ECtHR have the task of solving said problems.4_{For the purpose of this paper, the principle of ne bis in idem is considered as}

incorporated by Art. 4P7 ECHR, Art. 50 CFR, and Art. 54 CISA. These, however, differ in wording and scope of application, as the following sections lay out.

2.1.1 Art. 54 CISA

With a Protocol to the Treaty of Amsterdam, the Schengen acquis, and with that a transnational ne bis in idem provision applying between MS, was incorporated into the third pillar of the EU.5_{Articles 54 to 58 CISA provide for the most elaborate wording of}

the ne bis in idem rule.6_{Unlike Art. 4P7 ECHR or Art. 50 CFR, which apply within the} 3 Codifications include various Council Framework decisions, most notably however, might be Articles 3(2), 4(3), and 4(5) of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L-190/1; Van Bockel 2010, p. 11.

4 Keeping in mind especially cases such as CJEU, C-617/10, Åklagaren v. Hans Åkerberg Fransson ECLI:EU:C:2013:105, and ECtHR, Sergey Zolotukhin v. Russia [2009] Application no. 14939/03. 5 Wasmeier, The principle of ne bis in idem, Revue internationale de droit pénal, Vol. 77, No. 1 (2006), p. 122; see also: van Bockel 2010, p. 1.

6 Art. 54 CISA: ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Art. 55 CISA: ‘(1) A Contracting Party may, when ratifying, accepting or approving this Convention, declare that it is not bound by Article 54 in one or more of the following cases: (a) where the acts to which the foreign judgments relates took place in whole or in part in its own territory; in the latter case, however, this exception shall not apply if the acts took place in part in the territory of the Contracting Party where the judgment was delivered; (b) where the acts to which the foreign judgment relates

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same MS, Art. 54 CISA does only apply to situations in which there is a second prosecution within a different MS.7_{In this sense, the scope of application of Art. 54}

CISA solely covers situations between Member States, however, not situations of EU law per se.8

As elaborated on by Klip and van der Wilt, under the CISA it is possible for MS to make an explicit declaration in order to enjoy an exception to the ne bis in idem.9

This exception can be invoked where the crime has been partially or fully committed on the territory of the MS that wishes to prosecute the offender; however, this exception cannot be invoked if the crime has been partially or fully committed in the territory of the other MS, which already imposed a final sentence on the same crime. Moreover, Art. 54 CISA does not only imply protection in case of prison sentences, but also triggers the ne bis in idem in case of punishment by a fine.10_{Furthermore, it becomes}

clear from Art. 56 that the CISA applies the Anrechnungsprinzip.11

constitute an offence against national security or other equally essential interests of that Contracting Party; (c) where the acts to which the foreign judgment relates were committed by officials of that Contracting Party in violation of the duties of their office. (2) A Contracting Party which has made a declaration regarding the exception referred to in paragraph 1(b) shall specify the categories of offences to which this exception may apply. (3) A Contracting Party may at any time withdraw a declaration relating to one or more of the exceptions referred to in paragraph 1. (4) The exceptions which were the subject of a declaration under paragraph 1 shall not apply where the Contracting Party concerned has, in connection with the same act, requested the other Contracting Party to bring the prosecution or has granted extradition of the person concerned.’

Art. 56 CISA: ‘If a further prosecution is brought in a Contracting Party against a person whose trial, in respect of the same acts, has been finally disposed of in another Contracting Party, any period of

deprivation of liberty served in the latter Contracting Party arising from those acts shall be deducted from any penalty imposed. To the extent permitted by national law, penalties not involving deprivation of liberty shall also be taken into account.’

Art. 57 CISA: ‘(1) Where a Contracting Party charges a person with an offence and the competent authorities of that Contracting Party have reason to believe that the charge relates to the same acts as those in respect of which the person's trial has been finally disposed of in another Contracting Party, those authorities shall, if they deem it necessary, request the relevant information from the competent

authorities of the Contracting Party in whose territory judgment has already been delivered. (2) The information requested shall be provided as soon as possible and shall be taken into consideration as regards further action to be taken in the proceedings under way. (3) Each Contracting Party shall, when ratifying, accepting or approving this Convention, nominate the authorities authorised to request and receive the information provided for in this Article.’

Art 58 CISA: ‘The above provisions shall not preclude the application of broader national provisions on the ne bis in idem principle with regard to judicial decisions taken abroad.’

7 Van Bockel 2010, p. 22. 8 Van Bockel 2010, p. 23.

9 Klip & van der Wilt, The Netherlands: National Report on Non Bis in Idem, in: 73 Revue Internationale de droit penal (2002), p. 1103.

10 Klip & van der Wilt, The Netherlands: National Report on Non Bis in Idem, in: 73 Revue Internationale de droit penal (2002), p. 1103.

11 Klip & van der Wilt, The Netherlands: National Report on Non Bis in Idem, in: 73 Revue Internationale de droit penal (2002), p. 1111.

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2.1.2 Art. 4P7 ECHR

The principle of ne bis in idem rule under the ECHR is to find in Art. 4P7.12_Even

though the principle of ne bis in idem has only been added at a later point by way of Protocol, it counts as a human right of absolute nature, which cannot be derogated from even in times of war or public emergency.13_{The wording of said ECHR Article limits}

the scope of the ne bis in idem rule contained therein clearly and precisely to the jurisdiction of one and the same state, irrespective of whether the jurisdiction is universal, territorial or personal in nature.14

The ECtHR has certainly not limited the scope of application strictu sensu to the domain of criminal law, but expanded it to other areas, such as that of administrative law.15_{In the case of Zolotukhin v. Russia, the ECtHR made an effort to bring in line the}

interpretation of the principle of ne bis in idem as incorporated in Art. 4P7 ECHR with the interpretation provided for by the CJEU in regard to Art. 54 CISA.16_{To expand the}

scope of application three points are to be taken into account, which are the classification of the offence under national law, the nature of the offence, and the nature and degree of the severity of the penalty imposed.17

Once a person is finally acquitted or convicted under Art. 4P7 ECHR, the ne bis

in idem applies irrespective of whether the penalty is or has been enforced.18_{Contrary to}

Art. 50 CFR, Art. 4P7 ECHR provides for the opportunity of a second trial in case there has been a fundamental defect to the first trial or if there is new evidence that could change the outcome of the case.19_{It is clear from case law that the ECtHR applies both,}

the Erledigunsprinzip as well as the Anrechnungsprinzip in a complementary manner.20

12 Art. 4P7 ECHR: ‘(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 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 derogations from this Article shall be made under Article 15 of the Convention.’

13 Van Bockel 2010, p. 16; Bantekas & Oette 2013, p. 223. 14 Van Bockel 2010, p. 15.

15 Van Bockel 2010, p. 16.

16 ECtHR, Case of Sergey Zolotukhin v. Russia [2009] Application no. 14939/03; Van Bockel 2010, p. 1. 17 Van Bockel 2010, p. 16, referring to ECtHR, Case of Sergey Zolotukhin v. Russia [2009] Application no. 14939/03.

18 Van Bockel 2010, p. 16. 19 Van Bockel 2010, p. 16.

20 Vervaele, The transnational ne bis in idem principle in the EU: Mutual recognition and equivalent

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2.1.3 Art. 50 CFR

Since the Lisbon Treaty entered into force in 2009, the CFR has become legally binding due to Art. 6 TEU.21_{Art. 52 (3) CFR provides, that if a right in the CFR corresponds to}

a right guaranteed by ECHR, the meaning and scope of that right will be the same as those laid down by the ECHR. However, the same article states that EU law may provide for a more extensive protection. Art. 50 CFR incorporates the principle of ne

bis in idem and was drafted with regard to Art. 4P7 ECHR and Art. 54 CISA.

Nevertheless, Art. 50 CFR differs considerably in wording.22_{As elaborated on by van} Bockel, the wording of this article does not add any clarity or substance as regards the

scope of application due to the ambiguity of the notions ‘within the Union’ and ‘in accordance with the law.’23

As regards the scope, Art. 4P7 ECHR provides for national protection only, whereas Art. 50 CFR also provides for transnational protection within the EU legal system.24_{In this sense, Art. 50 CFR ‘expands its geographical scope of application from}

the national level to the level of the EU.’25_{Similar to the approach of the ECtHR, the}

CJEU also ruled on the notion of criminal proceedings to give it a wide interpretation. It is clear that the CJEU perceives the principle of ne bis in idem as general principle of community law, which does not only cover criminal sanctions but expands to other fields of EU competences, such as competition law.26_{Nevertheless, the CJEU has}

broadened the scope concerning the ne bis in idem beyond the third pillar of the EU.27 2.2 Aspects of the Ne Bis In Idem Principle

2.2.1 Rationale of the Principle

Since the principle of ne bis in idem is perceived with considerable differences in various states, there is no common definition of said principle to find within the

21 J. A. E. Vervaele, Ne Bis In Idem: Towards a Transnational Constitutional Principle in the EU?, Utrecht Law Review, Vol. 9, Issue 4 (September 2013), p. 223.

22 Article 50 CFR: ‘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.’

23 Van Bockel 2010, p. 18.

24 Vervaele, Ne Bis In Idem: Towards a Transnational Constitutional Principle in the EU?, Utrecht Law Review, Vol. 9, Issue 4 (2013), p. 217.

25 Van Bockel 2010, p. 11.

26 Vervaele, The transnational ne bis in idem principle in the EU: Mutual recognition and equivalent

protection of human rights, Utrecht Law Review (2005), pp. 258-259.

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international legal sphere.28_{Rationale that can be found within national legal spheres}

include the protection of human rights, the protection of individual freedom, the protection of individuals against the state’s arbitrary use of ius puniendi, ensuring legal certainty, ensuring the res judicata effect of judgements, procedural efficiency, and ensuring peace and order within society.29_{Whereas in civil law systems the principle of} ne bis in idem is to function as both an individual’s right and a guarantee for legal

certainty, in common law systems it serves more prominently as an individual’s right.30

From an individual right’s perspective, the ne bis in idem principle protects the individual from the arbitrary use of the state’s ius puniendi.31_{Moreover, the principle}

safeguards the individual against ‘duplicated costs of legal representation, coercive measures to the person and property, and psychological burdens associated with the extended procedures and absence of finality.’32_{In this sense, the right to a fair trial}

would be undermined if said principle were not in place or not respected. As Klip and

van der Wilt put it, ‘at a certain point in time, the accused is entitled to be left alone.’33

However, it should be born in mind that the ne bis in idem rule under Art. 4P7 ECHR counts as separate guarantee and not as part of the right to fair trail under Art. 6 ECHR.34

The rationale of the principle of ne bis in idem as guarantee for legal certainty is not only in the interest of the individual but also of the judicial authority that rendered the judgment, as well as society as a whole.35_{In this regard, it is closely related to the}

principle of legality, the rule of law and the Rechtsstaatsprinzip (the legitimacy of the state).36_{A final decision of an authority of the state has to be respected. This is so since}

it would undermine the Rechtsstaatsprinzip, if the res judicata would not be final.37_In

other words, if the legitimacy of the state is questioned and outcomes of judgments not

28 Van Bockel 2010, p. 25. 29 Van Bockel 2010, p. 25. 30 Van Bockel 2010, pp. 25-26. 31 Van Bockel 2010, pp. 25-26.

32 Fletcher, The Problem of Multiple Criminal Prosecutions: Building an Effective EU Response, Yearbook of European Law, Vol. 26, Issue 1 (2007), p. 39.

34 Van Bockel 2010, p. 26; ECtHR, Ponsetti & Chesnel v. France [1999] Application no. 36855/97; 41731/98.

35 Van Bockel 2010, pp. 26-27. 36 Van Bockel 2010, p. 27.

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respected, no legal certainty is guaranteed, neither for individuals or society nor for authorities of the state.

2.2.2 Anrechnungsprinzip vs. Erledigungsprinzip

The principle of ne bis in idem can be split into two categories: that of the prohibition against double punishment (Anrechnungsprinzip) and that of the prohibition against double prosecution (Erledigungsprinzip).

The Erledigungsprinzip is procedural in nature and stipulates that a second prosecution is generally inadmissible. Some exceptions exist to the Erledigunsprinzip, such as the introduction of new evidence or defects in previous prosecution. It is this principle that is in direct connection with the Rechtsstaatsprinzip described above. It is important to keep in mind though that the Erledigungsprinzip does not hinder several penalties being imposed within the same proceedings.38

The Anrechnungsprinzip is substantive in nature and implies that in a second prosecution, the penalty of the first prosecution must be taken into account and deducted from the new punishment. A second prosecution is not hindered by said principle and therefore it is not linked to the Rechtsstaatsprinzip as such and hence, offers less legal certainty than the Erledigungsprinzip.39

Nevertheless, these two principles may overlap in certain cases. For instance, if there is an exception given to the Erledigunsprinzip and a second prosecution is opened, the Anrechnungsprinzip might be applicable. However, this does not have to be the case as becomes clear from the national legal system of the Netherlands, to which the

Anrechnungsprinzip is officially unknown.40 2.2.3 The Elements of Bis and Idem

There exist even more variations of the principle of ne bis in idem between common and civil law jurisdictions due to different interpretations of bis and idem.41

The bis-element concerns the question of when there is a second prosecution and is often related to the finality of a judgment.42_{As regards the meaning of bis, it is not} 38 Van Bockel 2010, pp. 31-32.

39 Van Bockel 2010, pp. 32-33.

40 Klip & van der Wilt, The Netherlands: National Report on Non Bis in Idem, in: 73 Revue Internationale de droit penal (2002), p. 1111.

41 Cryer et al. 2014, p. 86.

42 N. Neagu, The Ne Bis in Idem Principle in the Interpretation of European Courts: Towards Uniform

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always clear what other decisions than convictions and acquittals hamper new proceedings. Other examples that could amount to a hindrance of new proceedings include out-of-court settlements, plea-bargaining agreements, and judgments on procedural matters, such as lack of evidence, limitations periods, or a pardon.43_{The case}

law regarding the interpretative issues regarding the bis-element is less overwhelming than the case law regarding issues of idem. Nevertheless, for instance, the CJEU addressed the issue of bis in the case of Åkerberg Fransson in order to establish when a procedure is of criminal nature, since otherwise a second criminal procedure would not exist to trigger the ne bis in idem.44

The idem-element concerns the question of what constitutes the ‘same.’45_{On the}

one hand, a more narrow interpretation of idem only covers conduct in law or the legal classification of the offence, which is often referred to as idem crimen. On the other hand, a broader interpretation covers both conduct in law and in fact, and is often referred to as idem factum. Most national legal systems, however, make the idem factum the decisive element for the determination of idem.46_{As regards the principle of ne bis}

in idem within the EU, the CJEU arrived at a broader interpretation of idem in the case

of Van Esbroeck.47 _{Despite the previously fluctuating conclusions, the ECtHR took}

inspiration from the CJEU’s ruling and also opted for a broader interpretation of idem in the case of Zolotukhin v. Russia.48

CHAPTER III – THE BLURRING OF THE DIVIDING LINE BETWEEN ADMINISTRATIVE AND CRIMINAL LAW

43 Cryer et al. 2014, p. 86; N. Neagu, The Ne Bis in Idem Principle in the Interpretation of European

Courts: Towards Uniform Interpretation, Leiden Journal of International Law, Vol. 25, Issue 4

(December 2012), p. 962.

44 CJEU, Åklagaren v. Hans Åkerberg Fransson ECLI:EU:C:2013:105, paras. 34-35.

45 N. Neagu, The Ne Bis in Idem Principle in the Interpretation of European Courts: Towards Uniform

Interpretation, Leiden Journal of International Law, Vol. 25, Issue 4 (December 2012), p. 966-970.

46 Van Bockel 2010, p. 45.

47 Cryer et al. 2014, p. 86; CJEU, C-436/04, Van Esbroeck ECLI:EU:C:2006:165, paras 35-36.

48 ECtHR, Sergey Zolotukhin v. Russia [2009] Application no. 14939/03, paras. 70-84; Nergelius & Kristoffersson 2017, pp. 132, 143; Cryer et al. 2014, p. 86; for previous fluctuating case law of the ECtHR see for a broad interpretation of idem: Franz Fischer v. Austria [2001] Application no. 37950/97; see for a narrow interpretation of idem: Oliveira v. Switzerland [1998] Application no. 84/1997/868/1080.

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3.1 Recent Issues Relating to Dual-Track Systems Referred to the CJEU

3.1.1 Final Administrative Decisions to Prevent Criminal Proceedings?

In the case of Menci, an administrative penalty was imposed on Mr Menci since he had failed to pay VAT in the year of 2011, which did not only constitute the amount of the missing difference but also an additional fee. The decision of the Italian tax authority had become final with the instalment payments of the penalty by Mr Menci. Subsequently, however, criminal proceedings were initiated relating to the same offence at the District Court in Italy.49_{The question arose whether Art. 50 CFR, taking into}

account Art. 4P7 ECHR, precludes national legislation providing the possibility to conduct criminal proceedings after an administrative penalty has become final as regards to the same offence.50_{In its considerations, the CJEU elaborates swiftly on the}

relationship between the CFR and the ECHR and concludes that the referred issue is to be solved by applying the rights guaranteed under the CFR, and particularly Art. 50 thereof.51

The CJEU then starts to answer the question by assessing the criminal nature of the proceedings and penalties with the three criteria set out in Bonda and Åkerberg

Fransson, implicitly referring to the Engel criteria.52_{Firstly, the legal classification of}

the offence is to be assessed under national law. Even though the Italian national law classifies the procedure giving rise to the penalty as administrative, Art. 50 CFR may still be triggered since the three criteria are not cumulative as such. Secondly, the intrinsic nature of the offence is determined by whether the purpose of the penalty at issue is punitive. If a penalty merely repairs the damage caused by the offence, it cannot be said to have a punitive purpose or to be criminal in nature. Since Mr Menci did not only pay back the difference but had a considerably higher amount to pay as penalty, the penalty is considered to have a punitive purpose and thus, is criminal in nature. The CJEU refers to this as ‘the hallmark of a penalty of a criminal nature for the purposes of

49 CJEU Press Release No 34/18, The ne bis in idem principle may be limited for the purpose of

protecting the financial interests of the EU and the financial markets thereof, Luxembourg, 20 March

2018 https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-03/cp180034en.pdf

50 CJEU, C-524/15, Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197, para. 16.

51 CJEU, C-524/15, Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197, paras. 22-24.

52 CJEU, C-524/15, Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197, paras. 26-33; referring to CJEU, C-617/10, Åklagaren v. Hans Åkerberg Fransson ECLI:EU:C:2013:105, para. 35; and referring to CJEU, C-489/10, Lukasz Marcin Bonda ECLI:EU:C:2012:319, para. 37.

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Art. 50 CFR.’53_{Thirdly, the degree of severity of the penalty is to be assessed. Since the}

additional amount to be paid by Mr Menci constitutes about 30% of the initial damage, the measure is concluded to be criminal in nature as regards Art. 50 CFR. The CJEU also stresses, however, that it is for the national courts to verify said assessment.

Then the CJEU assesses the existence of the same offence, which is determined by the identity of material acts.54_{What is required is ‘a set of concrete circumstances}

which are inextricably linked together which resulted in the final acquittal or conviction of the person concerned.’55_{The Court established that the two prosecutions of criminal}

nature existed for the same offence, which again is to be verified by the referring court, and concluded that such double proceedings and penalties amount to a limitation of the fundamental right guaranteed by Art. 50 CFR.

Lastly, the CJEU discusses the possibility to justify the limitation of the right guaranteed in Art. 50 CFR on the basis of Art. 52 (1) CFR, as set out in the case of

Spasic.56_{Firstly, any limitation must be provided for by law and respect the fundamental}

rights and freedoms as set forth by the CFR. The CJEU notes that the Italian legislation allows only for a limitation to the ne bis in idem under conditions that are exhaustively defined and regards this requirement as fulfilled. Secondly, the limitation has to comply with the principle of proportionality, meaning that the limitation needs to be necessary in order to achieve the goal pursued and genuinely have as its purpose either the general interest of the EU or the protection of individual’s rights and freedoms.57_{In this respect,}

the CJEU concludes that the general interest of said limitation is to ensure the collection of all VAT due. As said VAT collection is set out in Council Directive 2006/112/EC, it is to be viewed as a general interest of the EU. A limitation to the ne bis in idem principle may be justified where a duplication of such proceedings and penalties aim at complementary goals pursued to various aspects of the same offence.58_{In casu, it seems} 53 CJEU, C-524/15, Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197, para. 32.

54 CJEU, C-524/15, Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197, paras. 34-39.

56 Art. 52 (1) CFR: ‘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 rights and freedoms of others.’

Referring to CJEU, C-129/14 PPU, Zoran Spasic ECLI:EU:C:2014:586, paras. 55-56.

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legitimate to the CJEU that VAT offences are firstly punished by imposing a fixed administrative penalty which is criminal in nature, and secondly to further punish and deter more serious violations of such VAT rules. As regards the principle of proportionality, the CJEU does not find that the Italian measure exceeds what is appropriate and necessary in order to reach the objectives pursued, meaning that there is no better alternative available in order to attain the same goal. Since there is no harmonisation of EU law on this matter, MS are free to choose their own system to ensure proper VAT collection.

As regards necessity strictu sensu, the principle of legal certainty has to be fulfilled so that individuals can predict such a duplication of proceedings and penalties. Since in casu it is clearly set out by Italian law that a failure to pay VAT in an amount greater than EUR 50.000 triggers an additional penalty in form of imprisonment, the measure seems to comply with the principle of legal certainty for the CJEU.59_Moreover,

the disadvantages resulting for individuals from said limitation have to be limited to what is strictly necessary in order to achieve to goal pursued. The opportunity for double prosecution only exists for offences, which are particularly serious, and is thus legitimized by the severity of such offences. Furthermore, the severity of all penalties imposed has to correspond to the severity of the offence committed. In casu, legislation provides for the opportunity of a criminal prosecution after an administrative penalty of criminal nature has been imposed, however, definitely prevents any further enforcement after the criminal conviction of the offender. Moreover, administrative penalties of criminal nature constitute as mitigating factor as regards criminal proceedings. With these aspects taken into account, the CJEU concludes that the Italian measures do not exceed what is strictly necessary in order to achieve the desired objective. These assessments, however, are merely guidelines and it remains for the national court to assess the balance between the seriousness of the tax offence and the disadvantage resulting for the individual.60

Finally, Art. 4P7 ECHR is taken into consideration by way of Art. 52 (3) CFR, which lays out that the meaning and scope of rights contained in both the CFR and the ECHR have to correspond to each other. The CJEU refers to the judgment of A and B v.

Norway, in which the ECtHR ruled that where administrative and criminal proceedings 59 CJEU, C-524/15, Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197, para. 51.

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are sufficiently closely related in substance and time, there is no violation of Art. 4P7 ECHR. Hence, Art. 50 CFR providing for the possible duplication of proceedings and penalties of a criminal nature is not in conflict with Art. 4P7 ECHR.

3.1.2 Final Acquittals in Criminal Proceedings to Prevent Administrative

Penalties?

In this case, administrative penalties were imposed on Mr Di Puma and Mr Zecca for insider dealing, while the criminal proceedings relating to the same offences resulted in an acquittal. According to Italian national legislation, such a judgment of acquittal in criminal proceedings has res judicata effect on administrative proceedings. The question arose whether this Italian national legislation is line with Art. 50 CFR.

The CJEU noted in its considerations that under Italian national law, insider dealing is subject to both criminal and administrative proceedings, which could lead to an infringement of Art. 4P7 ECHR if administrative penalties are criminal in nature.61

Moreover, under Art. 14 (1) Directive 2003/6, EU MS are to punish insider dealing with effective, proportionate and dissuasive administrative penalties.

As set out in Åkerberg Fransson, Art. 50 CFR precludes criminal proceedings in relation to the same acts against the same person after imposing a final administrative penalty of criminal nature, which remains however for the national court to assess. One possible danger is that administrative proceedings could create a conflict of judgments and would thereby question the res judicata effect of the final criminal judgment.62

In Spector Photo, the CJEU held that Art. 14 (1) Directive 2003/6 obliges MS to implement administrative penalties presenting specific characteristics, however, this article does not impose any obligations for MS to implement additional criminal sanctions for offences of insider dealing.63_{Nevertheless, MS are free to impose}

additional criminal and administrative sanctions, as long as they stay within the limits set by EU law, and specifically with the limits set by Art. 50 CFR.64_{No provision of}

Directive 2003/6 clarifies the effect of a final criminal judgment on proceedings for an

61 Referring to ECtHR, Grande Stevens v. Italy [2014] Application no. 18640/10.

62 CJEU, Joined Cases C-596/16 and C-597/16, Enzo Di Puma v. Commissione Nationale per le Società

e la Borsa (Consob) (C-596/16) and Commissione Nazionale per le Società e la Borsa (Consob) v. Antonio Zecca (C-597/16) ECLI:EU:C:2018:192, paras. 18-21.

63 Referring to CJEU, C-45/08, Spector Photo Group and Van Raemdonck, ECLI:EU:C:2009:806, para. 42.

e la Borsa (Consob) (C-596/16) and Commissione Nazionale per le Società e la Borsa (Consob) v. Antonio Zecca (C-597/16) ECLI:EU:C:2018:192, para. 26.

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administrative fine. Moreover, EU law does not preclude the application of national procedural rules conferring res judicata effects on judicial decisions.

In casu, the Italian law extends res judicata effects of criminal proceedings to

administrative proceedings, but such res judicata effects are limited to the factual conclusions by a criminal judgment delivered following adversarial proceedings.65

Therefore, the res judicata effects of a national provision on the factual conclusions of such criminal proceedings relating to punitive administrative proceedings concerning the same acts prevent neither the finding of violations of the legislation on insider dealing nor that they be effectively punished if the facts at issue are established. Such an assessment is without prejudice to the possibility, provided for in Art. 4P7 ECHR, to reopen criminal proceedings where there is evidence of newly discovered facts or in case of a fundamental defect in the previous proceedings.66_{The CJEU assesses in the}

present case that the administrative proceedings of a criminal nature based on the same acts are limiting the right guaranteed by Art. 50 CFR.67

Nevertheless, limitations may be justified on the basis of Art. 52 (1) CFR if the principle of proportionality is complied with and proceedings have additional complementary objectives dealing with different aspects of the same acts.68_{In casu, the}

objective of protecting the integrity of financial markets and public confidence in financial instruments may limit ne bis in idem. The situation, so the CJEU adds, is different to the case of Åkerberg Fransson because in said case criminal proceedings have been initiated after an administrative penalty of criminal nature had been imposed, but in the present case the question is whether administrative proceedings of a criminal nature can be initiated if criminal proceedings concluded an acquittal.69

Due to the acquittal, which concluded that there was no offence in the first place, the necessity requirement is not fulfilled, as it is not necessary to limit the ne bis in idem

68 Referring to CJEU, 129/14 PPU, Zoran Spasic ECLI:EU:C:2014:586, paras. 55-56; CJEU, C-524/15, Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197, para. 40; CJEU, C-537/16, Garlsson et al. v. Commissione Nazionale per le Società e la Borsa (Consob) ECLI:EU:C:2018:193, paras. 42, 46, 48.

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in order to protect the integrity of financial markets and public confidence in financial instruments.70_{The judgment of acquittal has res judicata effect on any further}

proceedings. Art. 50 CFR thus precludes in casu the imposition of administrative penalties of a criminal nature after the acquittal by the criminal proceedings, without prejudice to the option of reopening a case where new evidence has been found or where a fundamental defect of the previous proceedings could be established. For these reasons, the CJEU concludes that the Italian legislation is in line with Art. 50 CFR.71

3.1.3 Pardoned Convictions in Criminal Proceedings to Prevent

Administrative Penalties?

In the case of Garlsson, an administrative penalty was imposed on Mr Ricucci for the offence of market manipulation in the year of 2007. Mr Ricucci, however, appealed said administrative decision, which was then reduced in 2009. Moreover, the offence gave rise to criminal proceedings that were ruled on in 2008, whereby that sentence was extinguished by a pardon. The defendant claimed that he had already been finally convicted as regards the same acts in 2008, and thus, he could not be punished again by way of an administrative penalty.72_{Subsequently, two questions were referred to the}

CJEU.

The first question raised is whether Art. 50 CFR precludes the possibility of administrative proceedings for offences of market manipulation for which the same person has been convicted by a decision that has res judicata effect.73_{The CJEU noted}

in its considerations that under Art. 14 (1) of Directive 2003/6, MS are to impose effective, proportionate and dissuasive administrative penalties for offences of market manipulation, without prejudice to the imposition of criminal penalties.74_Moreover,

rights guaranteed by the ECHR are not part of EU law as long as the EU has not acceded to it.75_{Art. 52 (3) CFR ensures the necessary consistency between the CFR and} 70 CJEU, Joined Cases C-596/16 and C-597/16, Enzo Di Puma v. Commissione Nationale per le Società

72 CJEU Press Release No 34/18, The ne bis in idem principle may be limited for the purpose of

protecting the financial interests of the EU and the financial markets thereof, Luxembourg, 20 March

2018 https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-03/cp180034en.pdf

73 CJEU, C-537/16, Garlsson et al. v. Commissione Nazionale per le Società e la Borsa (Consob) ECLI:EU:C:2018:193, para. 20.

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the ECHR without affecting the autonomy of EU law.76

The CJEU started to answer the first question like in the case of Menci, by assessing the criminal nature of the administrative proceedings and penalties with the three criteria set out in Bonda and Åkerberg Fransson.77_{Firstly, Italian national law}

classifies the procedure to impose the fine as administrative. Secondly, if the penalty has a punitive purpose then it can be said to be criminal in nature.78_{Since the penalty}

imposed is not only intended to repair the damage caused by the market abuse, it is considered to be criminal in nature. Thirdly, the criterion of severity of the penalty also seems established to the CJEU since the amount of the administrative penalty imposed may add up to an amount 10 times greater than the profits obtained by the offence. Also here, the CJEU merely provides for guidelines, since it remains for the national court to provide for this assessment.79

The CJEU then moves on to establish the existence of the same offence, which is identified by material facts and concludes that the proceedings were initiated towards the same person for the same offence, which again remains for the national court to assess. In this sense, Italian national law seems to provide for the possibility to prosecute the same person for the same offence as regards market manipulation twice, in form of criminal proceedings and administrative proceedings of criminal nature.80

Subsequently, it discusses the possibility for justification based on Art. 52 (1) CFR for the limitation of the right guaranteed by Art. 50 CFR.81_{Art. 52 (1) CFR}

requires that any limitation to rights under the CFR must be provided for by law and must respect the essence of those rights. Moreover, the limitation must meet an objective of general interest and comply with the principle of proportionality, meaning that limitations must be necessary and genuinely meet objectives of general interest of the EU or to protect the rights and freedom of others.82_{In casu, the CJEU finds that the}

duplication of proceedings is provided for by law and that Italian national legislation

77 Referring to CJEU, C-617/10, Åklagaren v. Hans Åkerberg Fransson ECLI:EU:C:2013:105, para. 35; and to CJEU, C-489/10, Lukasz Marcin Bonda ECLI:EU:C:2012:319, para. 37.

78 Referring to CJEU, C-489/10, Lukasz Marcin Bonda ECLI:EU:C:2012:319, para. 39.

80 CJEU, C-537/16, Garlsson et al. v. Commissione Nazionale per le Società e la Borsa (Consob) ECLI:EU:C:2018:193, paras. 28-41.

81 CJEU, C-537/16, Garlsson et al. v. Commissione Nazionale per le Società e la Borsa (Consob) ECLI:EU:C:2018:193, paras. 42-63.

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respects the essence of Art. 50 CFR since it only allows for such a limitation under exhaustively defined conditions. The objective of general interest is to ensure the integrity of the financial markets of the EU and public confidence in financial instruments by combating offences of market manipulation.83_{In order to combat market}

manipulation, a duplication of criminal proceedings may be justified when such penalties pursue complementary goals concerning different aspects of the same offence.84_{This again, however, remains for the national court to be finally assessed.}85

The CJEU specifically notes in this respect that for violations to the prohibition of market manipulation, a dual-track administrative and criminal law enforcement system may be legitimate in order for MS to firstly impose a penalty on a flat-rate basis on any infringement, irrespective of the mens rea, and secondly, to punish intentional and serious violations by way of further criminal proceedings.86

Furthermore, the principle of proportionality requires that such a limitation on the ne bis in idem rule does not exceed what is appropriate and necessary in order to achieve the goal pursued. Like in the case of Menci, the CJEU points out that Art. 14 (1) in conjunction with Art. 5 of Directive 2003/6 leave MS of the EU the free choice of applicable penalties as regards offences relating to market abuse.87_{Thus, in the absence}

of EU harmonisation, EU MS are free to provide for proceedings either once or twice in relation to offences of market abuse and may not be deprived of that choice.88_{In this}

sense, the CJEU concludes that the Italian national legislation is capable of achieving the pursued objective referred to above. When it comes to the strict necessity requirement, the national legislation has to constitute of clear and precise rules in order to retain legal certainty for individuals that may be prosecuted twice. In casu, the CJEU states that the Italian national legislation fulfils this requirement. The disadvantages resulting for individuals from the duplication of proceedings may only stay within the limits of what is strictly necessary in order to achieve the desired objective.

83 CJEU, C-537/16, Garlsson et al. v. Commissione Nazionale per le Società e la Borsa (Consob) ECLI:EU:C:2018:193, para. 46. Referring to CJEU, C-45/08, Spector Photo Group and Van Raemdonck, ECLI:EU:C:2009:806, paras. 37, 42.

84 With this requirement, the CJEU is implicitly referring to ECtHR, A and B v. Norway [2016] Applications nos. 24130/11 and 29758/11, paras. 144-146.

87 Referring to CJEU, C-45/08, Spector Photo Group and Van Raemdonck, ECLI:EU:C:2009:806, paras. 71-72.

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Furthermore, the Italian legislation and authorities must ensure that the severity of the total penalties imposed must reflect the severity of the offence committed not only according to Art. 52 (1) but also Art. 49 (3) CFR.89_{This requirement is, however, not}

fulfilled in the view of the CJEU since the potential penalties combined provided for by Italian national legislation seem to exceed what is strictly necessary in order to achieve the desired objective.90_{This conclusion is not questioned by the pardon granted to Mr}

Ricucci, as Art. 50 CFR is to be interpreted as granting protection against double prosecution where a person has been finally acquitted or convicted, irrespective of a subsequent extinguishment of said sentence due to a pardon.

Hence, Art. 50 CFR precludes national legislation allowing for potential administrative proceedings against offences of market manipulation, if the same person has already been finally convicted for the offence, and said punishment corresponds to the damage caused in an effective, proportionate and dissuasive manner.91

The second question posed to the CJEU is whether Art. 50 CFR confers a right to individuals, which is directly applicable in national courts. In this regard, the CJEU notes that primary EU law creates directly applicable right for individuals where said provisions are sufficiently precise and unconditional as to their application by national authorities of the MS. Since Art. 50 CFR is not subject to any further conditions of implementation and the wording of said article is sufficiently clear and precise, it is directly applicable by national courts. Moreover, reference is made to the case of

Åkerberg Fransson, in which the CJEU already set out that the rights granted by Art. 50

CFR have direct effect.92_{Hence, the ne bis in idem principle under Art. 50 CFR confers}

rights on individuals, which are directly applicable in the legal systems of EU MS.

3.2 Alignment of the Interpretations at the European Courts

Since the CJEU judgment of Gözütok and Brügge in 2003, the principle of ne bis in

idem has been evolving considerably within the EU.93_{That judgment concerned Art. 54} 89 CJEU, C-537/16, Garlsson et al. v. Commissione Nazionale per le Società e la Borsa (Consob) ECLI:EU:C:2018:193, paras. 53-56.

92 CJEU, C-537/16, Garlsson et al. v. Commissione Nazionale per le Società e la Borsa (Consob) ECLI:EU:C:2018:193, para. 67; referring to CJEU, C-617/10, Åklagaren v. Hans Åkerberg Fransson ECLI:EU:C:2013:105, para. 45.

93 CJEU, Joined Cases C-187/01 and C-385/01, Hüseyin Gözütok and Klaus Brügge ECLI:EU:C:2003:87.

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CISA, since the CFR only became binding in 2009 with the entry into force of the Lisbon Treaty.94_{However, since then, the CJEU has also ruled on several important}

judgments as regards Art. 50 CFR, especially in relation to Art. 4P7 ECHR, which should correspond in so far as to set the minimum standard for Art. 50 CFR by Art. 4P7 ECHR.95_{As mentioned above, the CJEU arrived at a broad interpretation of}

idem-element in the case of Van Esbroeck in 2006, opting for the factual circumstances of the act instead of the legal characterization of the offence.96_{In the 2009 judgment regarding}

the case of Zolotukhin v. Russia, the ECtHR took the opportunity to overrule some previously fluctuating conclusions as to the interpretation of the idem-element, inter

alia due to the inspiration of the CJEU judgment in Van Esbroeck, and set out that

identical facts are to be understood as ‘a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space.’97_This

overruling ECtHR judgment led to some questions concerning the exact implications within the national judicial systems, as for instance, whether a tax penalty imposed would trigger the ne bis in idem as regard further criminal prosecutions.98

In the case of Åkerberg Fransson, the CJEU ruled in 2013 on the interpretation and application of the ne bis in idem principle as enshrined in Art. 50 CFR as regards the combination of administrative and criminal penalties.99_{Firstly, the CJEU laid out}

that in cases of non-payment of VAT, EU MS are free to impose either administrative, criminal or a combination of both penalties. Only if a combination of both penalties is imposed, whereby the tax penalty is also criminal in nature, and the decision to impose such a tax penalty has become final, Art. 50 CFR precludes a further criminal penalty against the same person regarding the same acts.100_{Secondly, the CJEU listed the three}

conditions for an administrative procedure to be considered punitive, and therefore criminal in nature by referring to the case of Bonda, thereby implicitly using the criteria as set out by the ECtHR in the case of Engel.101_{Firstly, the legal classification under}

national law is to be considered. Secondly, the nature of the offence is to be assessed.

94 Nergelius & Kristoffersson 2017, pp. 141-142.

95 Nergelius & Kristoffersson 2017, p. 141; ECtHR, Zolotukhin v. Russia [2009] Application no. 14939/03.

96 Cryer et al. 2014, p. 86; CJEU, C-436/04, Van Esbroeck ECLI:EU:C:2006:165, paras. 25-42, especially paras 35-36.

97 ECtHR, Sergey Zolotukhin v. Russia [2009] Application no. 14939/03, paras. 82, 84; Nergelius & Kristoffersson 2017, pp. 132, 143; Cryer et al. 2014, p. 86; for previous fluctuating case law of the ECtHR see for a broad interpretation of idem: Franz Fischer v. Austria [2001] Application no. 37950/97; see for a narrow interpretation of idem: Oliveira v. Switzerland [1998] Application no. 84/1997/868/1080. 98 Nergelius & Kristoffersson 2017, p. 146.

99 CJEU, C-617/10, Åklagaren v. Hans Åkerberg Fransson ECLI:EU:C:2013:105.

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Thirdly, the nature and degree of the severity of the penalty imposed is to be taken into account.

In 2016 the ECtHR ruled on the case A and B v. Norway, in which it granted an exception to dual-track systems and allowed combined proceedings despite their criminal nature if they are ‘sufficiently closely connected in time and in substance.’102_In

order to determine whether this is the case, four conditions must be satisfied. The proceedings must pursue complementary goals; the combination of proceedings must be foreseeable; no duplication in the collection and the assessment of the evidence is allowed; and there must be an offsetting mechanism to ensure that the overall amount of the penalties is proportionate.103_{In the three cases described above, the CJEU aligned}

the interpretation of the ne bis in idem rule once more with the interpretation given by the ECtHR in A and B v. Norway. The CJEU mentions explicitly the first two criteria, whereby the last criterion in mentioned implicitly.104_{The only condition, which the}

CJEU did not impose, is the prohibition on the duplication in the collection and the assessment of the evidence. It is fair to say that the three recent judgments of the CJEU form the review of the Åkerberg Fransson case, just like ECtHR reviewed the case of

Zolotukhin v. Russia with the judgment rendered in A and B v. Norway.105

3.3 Critical Analysis in the Light of A and B v. Norway

101 CJEU, C-617/10, Åklagaren v. Hans Åkerberg Fransson ECLI:EU:C:2013:105, para. 35, referring to the case of CJEU, C-489/10, Lukasz Marcin Bonda ECLI:EU:C:2012:319, paras. 36-44; ECtHR, Case of

Engel and Others v. the Netherlands [1976] Application no. 5100/71; 5101/71; 5102/71; 5354/72;

5370/72.

102 ECtHR, A and B v. Norway [2016] Applications nos. 24130/11 and 29758/11, para. 130. 103 ECtHR, A and B v. Norway [2016] Applications nos. 24130/11 and 29758/11, para. 132.

104 For the first condition relating to the complementary goals pursued see: CJEU, C-537/16, Garlsson et

al. v. Commissione Nazionale per le Società e la Borsa (Consob) ECLI:EU:C:2018:193, para. 46; CJEU,

C-524/15, Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197, para. 44; CJEU, Joined Cases C-596/16 and C-597/16, Enzo Di Puma v. Commissione Nationale per le Società e la

Borsa (Consob) (C-596/16) and Commissione Nazionale per le Società e la Borsa (Consob) v. Antonio Zecca (C-597/16) ECLI:EU:C:2018:192, para. 42.

For the second condition relating to foreseeability for individuals see: CJEU, C-537/16, Garlsson et al. v.

Commissione Nazionale per le Società e la Borsa (Consob) ECLI:EU:C:2018:193, para. 51; CJEU,

C-524/15, Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197, para. 49. For the condition of proportionality see: CJEU, C-537/16, Garlsson et al. v. Commissione Nazionale per

le Società e la Borsa (Consob) ECLI:EU:C:2018:193, para. 48; CJEU, Joined Cases 596/16 and

C-597/16, Enzo Di Puma v. Commissione Nationale per le Società e la Borsa (Consob) (C-596/16) and

Commissione Nazionale per le Società e la Borsa (Consob) v. Antonio Zecca (C-597/16)

ECLI:EU:C:2018:192, para. 43; CJEU, C-524/15, Luca Menci, intervening parties: Procura della

Repubblica ECLI:EU:C:2018:197, para. 46.

105 Dissention Opinion of Judge Pinto de Albuquerque in A and B v. Norway [2016] Applications nos. 24130/11 and 29758/11, paras. 50-77.

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3.3.1 The ‘Criminal Nature’ of Administrative Proceedings

Both Art. 50 CFR and Art. 4P7 ECHR are applicable to ‘criminal proceedings’ only. The ECtHR applies the Engel criteria in order to determine whether administrative proceedings are to be considered punitive and hence, criminal in nature for the purposes of Art. 4P7 ECHR.106_{The first criterion is the legal classification of the offence under}

national law. The second criterion relates to the very nature of the offence. The third criterion concerns the degree of severity of the penalty that the person concerned risks incurring. It is not clear whether the second and the third criteria are cumulative or alternative.107_{Also the CJEU applies said Engel criteria for the purposes of Art. 50 CFR}

in the case of Åkerberg Fransson as well as the three recent judgments discussed above.108_{Especially the second criterion raises the question how administrative offences}

can be criminal in nature and if such offences should rather be listed in the domain of criminal law. As Judge Pinto de Albuquerque notes in his dissenting opinion in A and B

v. Norway, the dividing line between administrative law and criminal law is blurred.

Criminal offences with a lesser degree of social offensiveness are often relocated to the field of administrative law.109_{The blurring line between administrative and criminal law}

that Judge de Albuquerque mentions has already been addressed many years ago. As set out by Hart, a criminal punishment consists of five elements: (1) it must inflict pain or suffering (2) for an offence against legal rules (3) on an offender, (4) which is intentionally administered (5) by an authority of a corresponding legal system.110_{With this definition, the question arises why certain actions are deemed}

criminal and therefore punished within a society. According to Hart, certain actions are criminalized in order to communicate to society to refrain from them and to minimize them within society. Criminal law sets standards of behavior by discouraging specific activities, which sets a clear dividing line between criminal as opposed to a administrative penalties.111_{Criminal punishment, as opposed to ordinary administrative}

penalties, has reprobative or condemnatory features in order to express societal 106 ECtHR, Sergey Zolotukhin v. Russia [2009] Application no. 14939/03.

107 ECtHR, A and B v. Norway [2016] Applications nos. 24130/11 and 29758/11, para. 105.

108 CJEU, C-617/10, Åklagaren v. Hans Åkerberg Fransson ECLI:EU:C:2013:105; CJEU, C-524/15,

Luca Menci, intervening parties: Procura della Repubblica ECLI:EU:C:2018:197; CJEU, Joined Cases

C-596/16 and C-597/16, Enzo Di Puma v. Commissione Nationale per le Società e la Borsa (Consob)

(C-596/16) and Commissione Nazionale per le Società e la Borsa (Consob) v. Antonio Zecca (C-597/16)

ECLI:EU:C:2018:192; CJEU, C-537/16, Garlsson et al. v. Commissione Nazionale per le Società e la

Borsa (Consob) ECLI:EU:C:2018:193.

110 H. L. A. Hart, The Presidential Address: Prolegomenon to the Principles of Punishment, Oxford University Press on behalf of The Aristotelian Society, New Series, Vol. 60 (1959-1960), p. 4.

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condemnation.112_{This general distinction may be blurred, however, since also tax}

penalties may have as their goal to discourage certain behavior. On the other hand, some criminal penalties amount to such small fines that they neither inflict pain on the offender, nor reduce said prohibited actions.113_{Nevertheless, the distinction between the}

primary goal of encouraging and discouraging certain behaviors and merely ancillary sanction or remedial steps is the only possible way to distinguish between administrative and criminal offences.114

The blurring line brings several disadvantages since there are different rules applying to each domain.115_{The area of administrative law offers fewer guarantees and}

differs in various other aspects from the area of criminal law. Administrative penalties usually consist in the imposition of fines and coercive imprisonment can only be imposed due to the failure to pay such fines. On the contrary, in the field of criminal law, imprisonment can be seen as an alternative to the payment of a fine imposed. Additionally, there is a criminal record for criminal offences committed, which is not always the case for administrative penalties imposed. Furthermore, there are way shorter limitation periods applicable in the field of administrative law.116_{Judge de}

Albuquerque calls for strict European supervision as regards the principles of legal certainty and ne bis in idem, and warns that this relocation of offences to the administrative law domain often aims at circumventing ordinary guarantees of criminal law, thereby punishing more expediently and more severely.117

As regards the combination of administrative and criminal penalties, idem

factum is the only plausible solution in order to determine the legal characterisation of

the offence. This is so since the determination according to idem crimen would be able to undermine the guarantees of the ne bis in idem principle in two ways. Firstly, various MS may characterise the same crime in different ways, thereby referring to the same

111 H. L. A. Hart, The Presidential Address: Prolegomenon to the Principles of Punishment, Oxford University Press on behalf of The Aristotelian Society, New Series, Vol. 60 (1959-1960), p. 6. 112 A. Duff & Z. Hoskins, Legal Punishment, The Stanford Encyclopedia of Philosophy (Fall 2018 Edition).

113 H. L. A. Hart, The Presidential Address: Prolegomenon to the Principles of Punishment, Oxford University Press on behalf of The Aristotelian Society, New Series, Vol. 60 (1959-1960), p. 6, especially footnote 7.

114 H. L. A. Hart, The Presidential Address: Prolegomenon to the Principles of Punishment, Oxford University Press on behalf of The Aristotelian Society, New Series, Vol. 60 (1959-1960), pp. 6-7. 115 Dissention Opinion of Judge Pinto de Albuquerque in A and B v. Norway [2016] Applications nos. 24130/11 and 29758/11, paras. 16-17.