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STUDIA
PRAWNICZE THE LEGAL
STUDIES
37
2019, No. 4 (220), pp. 37–58
ISSN 0039–3312
doi 10.5281/zenodo.3694890
Prof. ILS PAS dr hab. Monika Szwarc
Institute of Legal Studies, Polish Academy of Sciences
Monika.szwarc@post.pl
Effectiveness of EU law and protection of
fundamental rights – in search of balance in the
context of the ne bis in idem principle
Abstract
The article undertakes the current and important issue of balancing between the
Member States’ obligations to ensure effectiveness of EU law and to respect fun-
damental rights, taking as an example the ne bis in idem principle, enshrined in
Article 50 of the Charter of the Fundamental Rights of the European Union.
The recent case law of the CJEU in Di Puma, Garlsson and others and Menci is
analysed. These rulings exemplify the growing importance of the issue of how
to balance the two obligations in a situation when the repression undertaken by
a Member State in order to ensure the full effect of EU law may infringe a funda-
mental right provided for in the Charter. The main objective is thus to formulate
proposals on how to balance these interests, as well as to define their conse-
quences for national courts.
1. Introduction
The Member States’ obligations to ensure the effectiveness of EU law and to
respect fundamental rights are (among others) two cornerstones of the Euro-
pean Union edifice, both subject to continual attention and efforts undertaken
by EU institutions, in particular, the European Commission and the Court of
Justice of the European Union. The effectiveness of EU law (effet utile) is the
subject of ongoing interest of European and Polish researchers, but it still escapes
Monika Szwarc
38
unequivocal definitions1. For the purpose of the following analysis, effective-
ness is understood in the broadest meaning possible as a general obligation of
Member States to give full effect to EU law in their domestic legal orders2. This
includes an obligation – resulting from the principle of loyal cooperation as
enshrined in Article 5(3) TEU – to impose sanctions for infringements of EU law
by individuals under their jurisdiction (within the implementation of EU law).
At the same time, the Member States shall respect the fundamental rights, as
enshrined in the Charter of Fundamental Rights of the European Union (here-
inafter referred to as the Charter), “when they are implementing Union law”
(according to its Article 51 (1)). Thus, when implementing Union law (includ-
ing imposing sanctions for infringements of EU law) the Member States are,
among others, bound by the ne bis in idem principle provided for in Article 50 of
the Charter. The recent rulings of the CJEU of 20 March 2018 in the Di Puma3,
Garlsson and others4 and Menci5 cases, in which the ne bis in idem principle has
been interpreted, exemplify the difficult choices that have to be made when the
repression undertaken by a Member State in order to ensure the full effect of EU
law may infringe a fundamental right provided for in the Charter. Those judicial
decisions also reflect the growing importance of such questions and envisage the
crucial role of national courts in seeking a balance between the effectiveness of
EU law and protection of fundamental rights. The following analysis is divided
into three parts: two introductory sections relating to the role of sanctions as
a tool to ensure effectiveness of EU law and the obligation to respect the ne bis
in idem principle in the context of criminal repressions. The third part is devoted
to analysis of recent case law of the ECtHR and the CJEU, concluded with pro-
posals for solving the conflict described above, as well as their consequences for
national courts.
1 In the Polish literature see in particular D. Miąsik, Zasada efektywności [in:]
A. Wróbel (ed.), Stosowanie prawa Unii Europejskiej przez sądy, vol. I, Warszawa 2010,
pp. 225–228 and the literature referred to therein.
2 A. Wróbel, Autonomia proceduralna państw członkowskich. Zasada efektywności i zas-
ada efektywnej ochrony sądowej w prawie Unii Europejskiej, ”Ruch Prawniczy, Ekonomiczny
i Społeczny” 2005, no. 1, pp. 38, 46.
3 Judgement of the Court of Justice of 20 March 2018, Di Puma, C-596/16 and
C-597/16, ECLI:EU:C:2018:192.
4 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193.
5 Judgement of the Court of Justice of 20 March 2018, Menci, C-524/15,
ECLI:EU:C:2018:197.
EFFECTIVENESS OF EU LAW AND PROTECTION OF FUNDAMENTAL RIGHTS... 39
2. Obligation to impose sanctions in order to ensure
effectiveness of EU law
The effectiveness of EU law in the broad sense is strictly dependent on the
enforcement of EU rules by the Member States’ competent bodies. For that rea-
son, the obligation of the Member States to introduce laws, regulations and
administrative measures in order to ensure that Union law is effectively applied
and complied with in the national legal orders stems from the general principle
of loyal cooperation. As the Court of Justice confirmed in case 68/88 Commis-
sion v. Greece, the principle of loyal cooperation “requires the Member States
to take all measures necessary to guarantee the application and effectiveness
of Community law”. This results in the obligation to ensure in particular “that
infringements of Community law are penalized under conditions, both proce-
dural and substantive, which are analogous to those applicable to infringements
of national law of a similar nature and importance and which, in any event, make
the penalty effective, proportionate and dissuasive” and that “national authori-
ties must proceed, with respect to infringements of Community law, with the
same diligence as that which they bring to bear in implementing corresponding
national laws”6. Since that time, the Court of Justice has consequently upheld
the strict relation between the obligation to ensure effectiveness of EU law and
the obligation to introduce sanctions for infringements of it7. At present, it is
beyond doubt that the Member States have the right not only to introduce and
impose civil and administrative sanctions, but also – if the effectiveness of EU
law thus requires – criminal sanctions, as long as they are dissuasive, effective
and proportionate, and applied in a non-discriminatory manner. At the same
time, as long as EU law does not impose such an obligation to introduce crimi-
nal sanctions in order to give full effect to EU law8, the Member States are free to
choose what kind of sanctions are the most appropriate in this context, including
administrative penalties, criminal penalties or a combination of them9. Still, the
combination of criminal proceedings leading to the imposition of criminal sanc-
tions and administrative proceedings leading to the imposition of administrative
6 Judgement of the Court of Justice of 21 September 1988, Commission v. Greece,
68/88, ECLI:EU:C:1989:339.
7 From the abundant literature on this topic, in the Polish literature M. Szwarc,
Wpływ prawa wspólnotowego na prawo karne państw członkowskich, Warszawa 2006; J. Łacny,
Sankcje za naruszenie prawa wspólnotowego [in:] K. Kowalik-Bańczyk, M. Szwarc-Kuczer (ed.),
Stosowanie prawa Unii Europejskiej przez sądy, vol. II. Zasady-orzecznictwo-piśmiennictwo, War-
szawa 2007, pp. 762–830.
8 At present the EU competence in this field is expressly stated in Article 83(2) TFEU.
9 Judgement of the Court of Justice of 26 February 2013, Åkerberg Fransson, C-617/10,
ECLI:EU:C:2013:105, paragraph 34.
Monika Szwarc
40
sanctions may, in particular circumstances, raise doubts as to the compatibility
of such dual repression with the ne bis in idem principle.
3. Obligation to respect the ne bis in idem principle in the
context of criminal repression
As has already been established, under Article 51(1) of the Charter the Mem-
ber States are bound by the obligation to respect its provisions “when they are
implementing Union law”. The interpretation of this criterion is particularly
important in all situations where the link with EU law may seem not as obvi-
ous as in the clear-cut cases of implementation of EU directives (or framework
decisions10) or the application of EU regulations. Nevertheless, the CJEU has
already had an occasion to confirm, in particular, that the Member States are
bound by the obligation to respect the fundamental rights of individuals in the
context of mutual recognition of judgements in criminal matters11 and – par-
ticularly relevant for the analyses that follow – in the context of application of
national sanctions for infringements of EU law in order to ensure the full effec-
tiveness of that law12.
The ne bis in idem principle enshrined in Article 50 of the Charter is
intended to protect individuals against being “tried or punished again in crim-
inal proceedings for an offence for which he or she has already been finally
acquitted or convicted within the Union in accordance with the law”. Before it
was codified in the Charter, this principle was recognised by the Court of Jus-
tice as part of the general principles of EU law in the context of EU competition
10 Judgement of the Court of Justice of 16 June 2005, Pupino, C-105/03,
ECLI:EU:C:2005:386, judgement of the Court of Justice of 3 May 2005, Advocaten voor de
Wereld, C-303/05, ECLI:EU:C:2007:261, judgement of the Court of Justice of 27 February
2007, Gestoras pro Amnistia, C-354/04 P, ECLI:EU:C:2007:115.
11 Judgement of the Court of Justice of 5 April 2016, joined cases C-404/15 and
C-659/15 PPU, Aranyosi and Căldăraru, ECLI:EU:C:2016:198, paragraphs 84, 100–101; see
also T. Ostropolski, Naruszenie praw podstawowych jako przesłanka wykonania ENA – uwagi
do wyroku Trybunału Sprawiedliwości z 5.04.2016 r. w sprawach połączonych C-404/15 Aran-
yosi i C-659/15 PPU Caldararu, “Europejski Przegląd Sądowy” 2016, no 11, pp. 20–26 and
G. Agnostaras, Mutual confidence is not blind trust! Fundamental rights protection and the execu-
tion of the European arrest warrant: Aranyosi and Căldăraru, “Common Market Law Review”
2016, no. 53, pp. 1975–1704.
12 Starting with the judgement of 26 February 2013, Fransson, C-617/10,
ECLI:EU:2013:105, then continued in the judgement of 8 September 2015, Taricco, C-105/14,
ECLI:EU:C:2015:555, for more comprehensive analysis see recently M. Szwarc, Zakres
związania państw członkowskich Kartą Praw Podstawowych Unii Europejskiej w kontekście
stosowania prawa karnego (uwagi na tle orzecznictwa TSUE), “Studia Prawnicze” 2017,
no. 3, pp. 47–79 and the literature referred to therein.
EFFECTIVENESS OF EU LAW AND PROTECTION OF FUNDAMENTAL RIGHTS... 41
rules13. It was also confirmed that Member States were bound by Article 50
of the Charter when applying EU law in the context of the protection of EU
financial interests14, as well as framework decisions in the context of mutual rec-
ognition15 and Article 54 CISA16. In recent rulings the CJEU has also confirmed
that a Member State is bound by Article 50 of the Charter when introducing
administrative sanctions into national law for infringements of an EU Direc-
tive17, and when its competent bodies (i.e. national tax authorities) – in order to
ensure the proper collection of VAT and to combat fraud – impose administra-
tive penalties and initiate criminal proceedings in respect of VAT offences, as it
constitutes implementation of the respective provisions of an EU Directive and
Article 325 TFEU18.
The principle provided for in Article 50 of the Charter corresponds to the ne
bis in idem principle as enshrined in Article 4 (1) of Protocol No. 7 to the Euro-
pean Convention on Human Rights, according to which “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”. Despite
the considerable differences in the scope of application of the principle in the
EU and Council of Europe systems19, when Article 50 of the Charter is applied
within the same Member State it must be given the same meaning and scope as
the corresponding right in the Protocol and case law of the ECtHR20. The Court
of Justice had, for a considerable period of time, consistently followed the inter-
pretation of the ne bis in idem principle adopted by the ECtHR. In general, the
13 Judgement of the Court of Justice of 14 February 2012, Toshiba Corporation,
C-17/10, ECLI:EU:C:2012:72, paragraph 94 and the case law referred to therein.
14 Judgement of the Court of Justice of 21 July 2011, Beneo-rafti, C-150/10,
paragraph 68.
15 Judgement of the Court of Justice of 16.11.2010, Mantello, C-261/09,
ECLI:EU:C:2010:683.
16 On the ne bis in idem principle in Article 54 CISA see, in particular, B. Nita, O zasa-
dzie ne bis in idem w świetle art. 54 Konwencji wykonawczej z Schengen, “Europejski Przegląd
Sądowy” 2007, no. 7, pp. 4–10; A. Sołtysińska, Zasada ne bis in idem z art. 54 konwencji wyko-
nawczej z Schengen, “Europejski Przegląd Sądowy” 2007, no. 7, pp. 35–40.
17 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraph 23.
18 Judgement of the Court of Justice of 20 March 2018, Menci, C-524/15,
ECLI:EU:C:2018:197, paragraph 21.
19 Which are immaterial in the context of this analysis, but the main one is that Arti-
cle 4(1) of Protocol No. 7 concerns only “intrastate” proceedings, meaning a prosecution in
only one state, whereas Article 50 of the Charter concerns “interstate” proceedings, meaning
a prosecution between two different states.
20 Explanations to the Charter of Fundamental Rights, Official Journal of the Euro-
pean Union C 303/17 – 14.12.2007.
Monika Szwarc
42
reasoning necessary to answer the question whether ne bis in idem is applicable
in a particular case rests (according to the case law of both European courts) on
assessment of the following elements: a) whether the proceedings are criminal
in nature; b) whether the second proceedings are for the same act (“idem”); c)
whether the first proceedings ended with a final decision; and d) whether there
is a duplication of proceedings against the same person for the same act (“bis”)21.
Before moving forward to an examination of “bis”, which is a central issue for the
following analyses, let us briefly return to interpretation of “criminal proceed-
ings” and “same act” in the case law of the ECtHR and the CJEU.
As far as the criminal nature of proceedings is concerned, it should be
recalled that when assessing whether there was a “criminal charge” (in a particu-
lar case) in the meaning of Article 6 of the Convention, the ECtHR applies three
criteria, namely: the legal classification of the offence under national law, the
very nature of the offence, and the degree of severity of penalty that the person
concerned risks incurring (the so-called Engel criteria)22. Then, this three-
pronged test was applied by the ECtHR in the Zolotukhin case for the purpose of
interpreting the term “criminal proceedings” in the meaning of Article 4 of Pro-
tocol No. 723. Such an approach was fully adopted by the CJEU in the Bonda case
when assessing the character of measures provided for in the second and third
subparagraphs of Article 138(1) of Regulation No 1973/200424. In this particu-
lar case, the Court of Justice concluded that the penalties envisaged in the EU
regulation could not be equated to criminal penalties in the meaning of the Engel
criteria. As a consequence, the dual system of administrative sanctions under
the EU regulation and criminal sanctions under the PIF convention, thus a sys-
tem established by the EU law itself, could not be considered to infringe the ne
bis in idem principle25. Since that time, the Engel/Bonda criteria have been con-
sequently applied by the Court of Justice in assessing compatibility with the ne
21 For comprehensive analysis see A. Sakowicz, Zasada ne bis in idem w prawie karnym,
Białystok 2011, including the EU and Council of Europe rules.
22 Judgement of the ECtHR of 8 June 1976, Engel and Others v. the Netherlands,
application No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, paragraphs 80–82.
23 Judgement of the ECtHR of 10 February 2009, Zolotukhin v. Russia, application No.
14939/03, paragraphs 52–53, see also M. Jackowski, Zasada ne bis in idem w orzecznictwie
Europejskiego Trybunału Praw Człowieka, “Państwo i Prawo” 2012, no. 9, pp. 18–30.
24 Judgment of the Court of Justice of 5 June 2012, Bonda, C-489/10,
ECLI:EU:C:2012:319, paragraph 37.
25 See also J. Łacny, M. Szwarc, Legal Nature of European Union Agricultural Penalties,
The European Criminal Law Associations‘ FORUM 2012 / 4 eucrim; J. Łacny, M. Szwarc,
Sankcje w unijnych przepisach rolnych a zasada a zasada ne bis in idem – uwagi na tle
wyroku Trybunału Sprawiedliwości w sprawie C-489/10 postępowanie karne v. Ł. Bonda [in:]
A. Błachnio-Parzych, J. Jakubowska-Hara, J. Kosonoga, H. Kuczyńska (ed.), Problemy wymi-
aru sprawiedliwości karnej. Księga Jubileuszowa Profesora Jana Skupińskiego, Warszawa 2013,
pp. 894–921.
EFFECTIVENESS OF EU LAW AND PROTECTION OF FUNDAMENTAL RIGHTS... 43
bis in idem principle of the dual system of administrative and criminal sanctions
adopted by the Member States in order to ensure the effectiveness of EU law in
the context of VAT offences26 and insider dealing offences27.
In respect of interpretation of the “same act”, the ECtHR ruled in Zolo-
tukhin that “Article 4 of Protocol No.7 must be understood as prohibiting the
prosecution or trial of a second ‘offence’ in so far as it arises from identical facts
or facts which are substantially the same”28. There is no doubt that this standard
of interpretation is also applied by the CJEU, interpreting the concept of “same
acts” as “referring only to the nature of the acts, encompassing a set of concrete
circumstances which are inextricably linked together, irrespective of the legal
classification given to them or the legal interest protected”29. Thus, in the light
of the CJEU case law the criterion of “the identity of the protected legal inter-
est” is immaterial for assessment of the “same act”, which is fully aligned with
the ECtHR approach.
Therefore, the interpretation of notions crucial for the application of
the ne bis in idem principle evolved. First, both courts – the ECtHR and the
CJEU – departed from the “formal understanding” of “criminal proceedings” or
“criminal sanction” (based on the legal classification in national law) towards
their “material understanding” based on the repressive character of the sanc-
tion. Then, both courts decided to interpret an “offence” or the “same act”
without reference to the legal classification in the national order, which also
means adopting a “material understanding” instead of “formal understanding”
based on the legal classification in national law. This judicial evolution resulted
in widening the scope of application of the ne bis in idem principle, and thus
the scope of protection of individuals against excessive repression. But this may
also cause problems for those Member States which base their systems of repres-
sion on the dual system of criminal and administrative law. Departing from the
formal approach based on the formal division between criminal and adminis-
trative law means that the ne bis in idem principle may apply also in situations
where administrative sanctions are treated as “criminal in nature”, and so the
26 Judgement of the Court of Justice of 26 February 2013, Åkerberg Fransson, C-617/10,
ECLI:EU:C:2013:105, paragraph 35, judgement of the Court of Justice of 20 March 2018,
Menci, C-524/15, ECLI:EU:C:2018:197, paragraph 26.
27 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193.
28 Judgement of the ECtHR of 10 February 2009, Zolotukhin v. Russia, application No.
14939/03, paragraph 82.
29 In the context of mutual recognition of judgements in criminal matters: judgements
of the Court of Justice: of 9 March 2006, C-436/04, Van Esbroeck, ECLI:EU:C:2006:165, par-
agraphs 27, 32 and 36, and of 28 September 2006, Van Straaten, C-150/05, paragraphs 41,
47 and 48; in the context of Article 54 CISA – judgement of the Court of Justice of 16 Novem-
ber 2010, Mantello, C-261/09, ECLI:EU:C:2010:683, paragraph 40.
Monika Szwarc
44
duplication of sanctions of a criminal and administrative-criminal nature may
infringe the ne bis in idem principle.
4. When effectiveness of EU law and protection of
fundamental rights collide – different approaches of
European courts
This is exactly the junction where the effectiveness of EU law and the obligation
to respect the ne bis in idem principle may collide. As stated at the beginning
of this article, generally a cumulation of administrative and criminal sanctions
introduced by the Member States for the same act in order to ensure effective-
ness of EU law is not contrary to the ne bis in idem principle, but only as long as
the administrative sanction is not of a “criminal nature” as understood in Engel/
Bonda rulings30. In some cases, such as in the context of protection of finan-
cial interests of the EU, such a cumulation is even imposed by EU law itself, as
was exemplified in Bonda case31. The same holds true in other cases when – in
order to give full effect to EU rules – the Member States introduce a dual sys-
tem based on administrative and criminal proceedings, for example, to combat
fraud in VAT32 or manipulating the market (insider dealing)33. The Court of Jus-
tice also consistently affirms the Member States’ freedom to choose appropriate
sanctions for infringements of EU law (as long as they are effective, dissuasive,
proportionate and applied in a non-discriminatory manner). Still, choices made
by the Member States may not compromise fundamental rights, in particular
the ne bis in idem principle. The risk of such an infringement is more probable
in these legal systems in which the reaction of the Member State to unlawful
acts is based on a combination of criminal and administrative proceedings. On
the one hand, giving priority to the protection of an individual against repres-
sion (which would be contrary to the ne bis in idem principle) might undermine
the effectiveness of EU law, as it would prevent application of the dual system
30 Judgement of the Court of Justice of 26 February 2013, Åkerberg Fransson, C-617/10,
ECLI:EU:C:2013:105, paragraph 37.
31 As a consequence, from the perspective of the ne bis in idem principle it was admis-
sible for the Polish authorities to impose the administrative sanction in administrative
proceedings for “irregularity” under the EU regulation (loss of entitlement to the single area
payment for a certain period of time) and then to initiate criminal proceedings in order to
impose criminal sanctions for “subsidy fraud” under the PIF convention (imprisonment and
a fine).
32 Judgement of the Court of Justice of 26 February 2013, Åkerberg Fransson, C-617/10,
ECLI:EU:C:2013:105.
33 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193.
EFFECTIVENESS OF EU LAW AND PROTECTION OF FUNDAMENTAL RIGHTS... 45
of administrative (yet criminal in nature) and criminal sanctions. On the other
hand, prioritising the effectiveness of EU law would, in turn, compromise a fun-
damental right which is one of the cornerstones of the EU edifice. Thus, both
European courts initially applied a uniform interpretation of “criminal proceed-
ings” and the “same act/offence”. However, their case law later began to diverge.
4.1. ECtHR
When confronted with the question of whether the duplication of crimi-
nal and administrative (of a criminal nature) sanctions infringed the ne bis in
idem principle, the ECtHR confirmed in Grande Stevens v. Italy the existence of
such a violation34. The ECtHR based its reasoning on its earlier interpretation
of “criminal proceedings” and “offence” and stated firstly that the administra-
tive procedure resulting in fines for manipulating the market (established in the
national system) “involved a ‘criminal charge’ against applicants”, and secondly
that the new set of criminal proceedings “clearly concerned the same conduct
by the same persons on the same date”35. As these two elements were present
in the case before the ECtHR, the Court itself had no doubts that the principle
had been violated. It is important to note in this context that the Italian authori-
ties imposed administrative fines for manipulating the market and then criminal
sanctions for the same acts in fulfilment of the obligation to impose sanctions for
unlawful conduct stemming from the EU Directive on market abuse. For that
reason, the ECtHR referred also to EU law and the recognition of the ne bis in
idem principle in the context of duplication of proceedings by the CJEU in its
Fransson ruling as well.
In November 2016, however, the ECtHR adopted a somewhat new
approach to the duplication of proceedings, which unfortunately raises more
questions rather than offers clear answers. In A and B v. Norway, the ECtHR
was confronted with the question of whether the imposition of tax penalties
for VAT offences and then the initiation of criminal prosecution for the same
acts amounts to a violation of the ne bis in idem principle (Article 4 of Proto-
col No. 7). When assessing the condition of whether a duplication of criminal
proceedings was present (“bis”), the ECtHR stated that “Article 4 of Protocol
No. 7 does not exclude the conduct of dual proceedings, even to their term,
provided that certain conditions are fulfilled. In particular, for the Court to be
satisfied that there is no duplication of trial or punishment (bis) as proscribed by
Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly
34 Judgement of ECtHR of 4 March 2014, Grande Stevens and others v. Italy, Applica-
tions No. 18640/10,18647/10,18663/10,18668/10et18698/10.
35 Ibid., paragraphs 222–229.
Monika Szwarc
46
that the dual proceedings in question have been ‘sufficiently closely connected
in substance and in time’”36. Thus, according to the ECtHR there may be situ-
ations when two proceedings are integrated to such an extent that they form
a coherent response of the State to unlawful conduct, which implies, however,
that “not only that the purposes pursued and the means used to achieve them
should in essence be complementary and linked in time, but also that the pos-
sible consequences of organizing the legal treatment of the conduct concerned
in such a manner should be proportionate and foreseeable for the persons
affected”37. Hence, according to the ECtHR, if criminal proceedings resulting
in the imposition of criminal sanctions and administrative proceedings result-
ing in the imposition of an administrative sanction criminal in nature are so
linked in time and in substance, than the ne bis in idem principle is not infringed
because the second consecutive proceedings (immaterial whether criminal or
administrative) are not treated as “bis”. This may raise doubts as to whether the
protection against dual prosecution or punishment is still effective, even if the
ECtHR has elaborated the catalogue of material factors to determine the exist-
ence of “such a sufficient close connection in substance”. These factors include:
1) the two proceedings pursue complementary purposes, which enables finding
that they address in abstracto and in concreto different aspects of social miscon-
duct; 2) the duality of proceedings for the same act is foreseeable in law and in
practice; 3) the two proceedings are conducted in a manner which enables avoid-
ing “as far as possible any duplication in the collection as well as the assessment
of the evidence, notably through adequate interaction between the various com-
petent authorities to bring about that the establishment of facts in one set is also
used in the other set”; 4) the sanction which has become final as the first is taken
into account in the second proceedings “so as to prevent that the individual con-
cerned is in the end made to bear an excessive burden, this latter risk being least
likely to be present where there is in place an offsetting mechanism designed to
ensure that the overall amount of any penalties imposed is proportionate”38. As
will be seen below, even if the CJEU decided to take a different path of reasoning
as far as bis is concerned, it still adopted the reasoning of the ECtHR concerning
the above catalogue.
36 Judgement of the ECtHR of 15 November 2016, A and B v. Norway, Applications
nos.24130/11 and 29758/11, paragraph 130.
37 Ibid., paragraph 130.
38 Ibid., paragraphs 130–132.
EFFECTIVENESS OF EU LAW AND PROTECTION OF FUNDAMENTAL RIGHTS... 47
4.2. CJEU
In the context of the possible duplication of criminal proceedings and admin-
istrative proceedings resulting in the imposition of an administrative sanction
criminal in nature, the CJEU ruled in Fransson that “[t]he ne bis in idem prin-
ciple laid down in Article 50 of the Charter does not preclude a Member State
from imposing successively, for the same acts of non-compliance with declara-
tion obligations in the field of VAT, a tax penalty and a criminal penalty in so far
as the first penalty is not criminal in nature, a matter which is for the national
court to determine”39. At that time, such an approach was consistent with the
case law concerning the ne bis in idem principle of the ECtHR and of the CJEU
itself, as it was based on the material understanding of “criminal sanction” and
the “same act”. Also, the ECtHR in Grande Stevens v. Italy recalled the Fransson
ruling regarding the conceptualisation of the ne bis in idem principle in EU law.
Until that moment, a coherent interpretation of the ne bis in idem by the two
European courts could be observed.
After that, however, the CJEU decided not to follow the reasoning of the
ECtHR (in A and B v. Norway) and elaborated its own interpretation of “bis”
in the context of the permissible duplication of repressive proceedings. The
catalyst for this departure were the preliminary questions addressed by Italian
courts regarding the interpretation of Article 50 in the context of the dupli-
cation of criminal and administrative proceedings and sanctions envisaged in
national law: for the purpose of combatting VAT evasion (Menci) and for the
purpose of combatting insider dealing and market manipulation (Garlsson and
others and Di Puma). The point of departure in all those rulings was the state-
ment from Fransson that “the ne bis in idem principle prohibits a duplication
both of proceedings and of penalties of a criminal nature for the purposes of
that article for the same acts and against the same person”40. Then the CJEU
followed its analysis with an assessment of the criminal nature of proceedings
and penalties (recalling the Engel/Bonda criteria, but leaving for the refer-
ring national court to determine that)41 and the existence of the same offence
(applying the standard from Kraaijenbrink and Mantello and stating that
“pecuniary administrative penalty of a criminal nature and the criminal pro-
ceedings at issue in the main proceedings appear therefore to relate to the same
39 Judgement of the Court of Justice of 26 February 2013, Åkerberg Fransson, C-617/10,
ECLI:EU:C:2013:105, paragraph 37.
40 Judgement of the Court of Justice of 20 March 2018, Garlsson and others,
[C-537/16], paragraph 27.
41 Ibid., paragraphs 28–35, judgement of the Court of Justice of 20 March 2018, Menci,
C-524/15, ECLI:EU:C:2018:197, paragraphs 26–33.
Monika Szwarc
48
offence”)42. If the Court of Justice had applied the reasoning from Fransson
case, it would have had to rule consequently that because these two require-
ments were fulfilled, the ne bis in idem principle prevented the application of
the second set of sanctions.
It decided instead to treat such a duplication of criminal proceedings and
administrative proceedings resulting in the imposition of an administrative pen-
alty of a criminal nature as a limitation of the fundamental right guaranteed by
Article 50 of the Charter43. This results in the necessity to conduct the analysis
from the perspective of Article 52(1) of the Charter, establishing the conditions
for permissible limitations of rights.
5. Balancing effectiveness of EU law and protection of
a fundamental right – an exercise in proportionality
This takes the discussion of the ne bis in idem principle into a different dimen-
sion, as it reflects the idea that the right not to be punished or prosecuted twice
is not an absolute one, but may be restricted if the premises of Article 52(1) of
the Charter are satisfied. Let us recall that for a limitation of a right to be in
conformity with the Charter, such a limitation must be provided for by law and
respect the essence of that right. In addition, such a limitation is permissible
only if it is necessary and genuinely meets the objectives of general interest rec-
ognised by the Union or the requirement to protect the rights and freedoms of
others, subject to the principle of proportionality. The Court referred to the Spa-
sic case, where it had already concluded that “a limitation to the ne bis in idem
principle guaranteed by Article 50 of the Charter may be justified on the basis
of Article 52(1) thereof”44. But Spasic was decided in a different context, namely
that of Article 54 CISA, according to which “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”.
42 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraphs 36–40, judgement of the Court of Justice of 20 March
2018, Menci, C-524/15, ECLI:EU:C:2018:197, paragraphs 34–38.
43 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraph 41, judgement of the Court of Justice of 20 March 2018,
Menci, C-524/15, ECLI:EU:C:2018:197, paragraph 39.
44 Judgment of 27 May 2014, Spasic C-129/14 PPU, EU:C:2014:586, paragraphs
55 and 56.
EFFECTIVENESS OF EU LAW AND PROTECTION OF FUNDAMENTAL RIGHTS... 49
In its reasoning the CJEU expressed doubt as to whether the first condi-
tion enshrined in Article 52(1) of the Charter was fulfilled, as the possibility
of duplication of criminal proceedings and penalties as well as administrative
proceedings and penalties of a criminal nature in cases before the Italian courts
were provided for by law45. Such a conclusion raises no doubts, as the Direc-
tive on insider dealing had been implemented into the national legal system by
Italian law (enacted by the parliament), and the provisions concerning combat-
ting VAT fraud had also been contained in the law enacted by the parliament.
In general, this condition is easily fulfilled and it will not cause problems, as the
administrative proceedings and criminal proceedings are in general envisaged in
national laws, which is necessary from the point of view of Member States’ con-
stitutional standards.
Further, the Court argued that since the national legislation “allow(ed)
such a duplication of proceedings and penalties only under conditions which are
exhaustively defined, thereby ensuring that the right guaranteed by Article 50 is
not called into question as such”, the requirement to respect the essential con-
tent of Article 50 of the Charter was satisfied46. Such a statement, however, may
raise considerable doubts as there is no logic and visible link between the exhaus-
tive definition of conditions of duplication of proceedings and the conclusion that
such a duplication respects the essential content of ne bis in idem. As has been
already observed, it is impossible to limit the ne bis in idem principle without vio-
lating its essential substance47. The right contained in Article 50 of the Charter
may only be exercised (the person interested is protected from the second pros-
ecution or conviction for the same act) or not exercised at all. The fact that the
conditions of duplication of proceedings were exhaustively defined in law is rather
an argument in favour of assessing the first requirement under Article 52(1) of
the Charter, namely, that such a limitation is provided for by law. It is not relevant,
however, for assessing whether it respects the essence of a right or not.
In the next stage, the Court of Justice admitted that limitation of the ne bis
in idem principle might be justified by the general interest, when the national
legislation aims at combatting VAT offences48 or protecting the integrity of
45 Confirmed by the Court in paragraph 44 of Garlsson judgement and paragraph 42 of
Menci judgement.
46 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraph 46, judgement of the Court of Justice of 20 March 2018,
Menci, C-524/15, ECLI:EU:C:2018:197, paragraph 43.
47 A. Błachnio-Parzych, Zasada ne bis in idem a obowiązek ustanowienia sankcji skutec-
znych, proporcjonalnych i odstraszających. Glosa do wyroku TS z dnia 20 marca 2018 r.,
C-596/16 i C-597/16, “Europejski Przegląd Sądowy” 2018, no. 12, p. 42.
48 Judgement of the Court of Justice of 20 March 2018, Menci, C-524/15,
ECLI:EU:C:2018:197, paragraph 44.
Monika Szwarc
50
financial markets of the European Union and public confidence in financial
instruments49. Such legislation is justified when it pursues “complementary aims
relating as the case may be, to different aspects of the same unlawful conduct
at issue”. In Menci the Court admitted that “it appears legitimate for a Member
State to seek, first, to deter and punish any violation […] of the rules relative to
VAT returns and collection by imposing fixed administrative penalties, where
appropriate, on a flat-rate basis and secondly, to deter and punish serious viola-
tions of those rules, which are particularly damaging for the society and which
justify the adoption of more severe criminal penalties”50. Similarly, in Garlsson
it was admitted that “a Member State may wish, first to dissuade and punish
any infringement […] of the prohibition of market manipulation by imposing
administrative penalties set, as the case may be, on a flat-rate basis and secondly,
to dissuade and punish serious infringements of such prohibition, which have
particularly negative effects on society and which justify the adoption of the
most severe criminal penalties”51. The reasoning of the CJEU may be understood
to mean that there is general acceptance that the effectiveness of EU law may be
achieved by the Member States not only [simply] by the cumulation of criminal
and administrative (also administrative in nature) sanctions, but also allows for
the duplication of criminal proceedings and administrative proceedings result-
ing in imposing administrative sanctions criminal in nature. This is a new thread
in the reasoning of the Court in comparison with the Fransson case. It results in
the admission that considerations of general interest, namely the effectiveness of
EU law, may be prioritised before the protection of fundamental rights. On the
basis of rulings in Menci, Garlsson and Di Puma, the Member States are author-
ised to maintain existing legislation or even enact new legislation providing for
the cumulation of criminal proceedings and sanctions and administrative pro-
ceedings resulting in administrative sanctions criminal in nature in at least two
fields: combatting VAT offences and combatting manipulation of the market.
Still, the catalogue of other possible unlawful conduct subjected to such a dupli-
cation remains open. It may not be excluded that the CJEU would accept such
a cumulation also in other areas where unlawful conduct is defined in EU law,
for example in environmental law. The only limit to such a duplication is, thus,
the principle of proportionality, as it stems from Article 52(1) of the Charter.
Thus, the key issue in the application of the ne bis in idem principle to the
duplication of proceedings is the proper balancing between the effectiveness of
49 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraph 46; Di puma, paragraph 42.
50 Judgement of the Court of Justice of 20 March 2018, Menci, C-524/15,
ECLI:EU:C:2018:197, paragraph 45.
51 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraph 47.
EFFECTIVENESS OF EU LAW AND PROTECTION OF FUNDAMENTAL RIGHTS... 51
EU law and protection of individuals in the framework of the proportionality test.
According to the CJEU, the duplication of proceedings and penalties provided
for by national legislation shall 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”52.
As to the appropriateness of national legislation, the Court of Justice
assumed that as long as there are no harmonising measures concerning sanctions
at the EU level, “Member States have the right to provide either for a system in
which infringements of the prohibition of market manipulation may be subject
to proceedings and penalties only once, or for a system allowing duplication of
proceedings and penalties”, and as a result “the proportionality of national legis-
lation […] cannot be called into question of the mere fact that the Member State
would be deprived of that freedom of choice”53. Again, such reasoning raises
doubts, because it lacks a sufficient logical link between the fact that Member
States are free to do something and the conclusion that whatever they do within
this freedom will be appropriate. Such an interpretation of appropriateness in
this context makes the requirement illusory, because it leads to the conclusion
that any duplication of the proceedings in a Member State is appropriate as
long as the EU harmonising measure does not define the sanctions for infringe-
ments of EU law. As has been already noted, the most important issue should
instead be the analysis of the sanctions envisaged in the national legislation and
the assessment of whether they are effective, dissuasive and proportionate54. As
a result, when the reaction to the same act may consist of criminal sanctions and
administrative sanctions criminal in nature, those sanctions which are effective,
dissuasive and proportionate should be chosen and maintained in the national
legal system55.
As to the necessity, the Court of Justice requires that the national legisla-
tion “provide[s] 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
52 Judgement of the Court of Justice of 20 March 2018, Menci, C-524/15,
ECLI:EU:C:2018:197, paragraph 46.
53 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraph 49, judgement of the Court of Justice of 20 March 2018,
Menci, C-524/15, ECLI:EU:C:2018:197, paragraph 47; in particular in Garlsson case the
Court emphasized that the Directive on manipulating the market left a margin of choice to
the Member States, see to that effect A. Błachnio-Parzych, Sankcja karna a sankcja administra-
cyjna jako środek przeciwdziałania manipulacji instrumentami finansowymi w wybranych krajach
europejskich, “Studia Prawnicze” 2013, no. 1, pp. 165–187.
54 A. Błachnio-Parzych, Zasada ne bis in idem..., p. 40.
55 Ibid., p. 41.
Monika Szwarc
52
penalties”56. Again, the link between the necessity of the national legislation and
the clear definition of rules can be hardly seen. The necessary measures are those
without which the objective pursued would not [have been] attained. The fact
that the rules for the possible duplication of proceedings are clear and precise is
rather a question of legal certainty, and thus falls under the first requirement of
Article 52(1) of the Charter, namely that the limitation is provided by law. If the
necessity of duplication of proceedings is interpreted in the way proposed by the
CJEU, then it will be very easy for the Member States to prove such a necessity.
What is more, the national court which is asked to assess the necessity of such
a duplication will have a rather easy task, because it will “only” have to make
sure that the rules for duplication are clear and precise. This will not be difficult
to assess as long as such rules stem from the law.
Finally, as far as proportionality sensu stricto is concerned, the CJEU for-
mulated two general requirements, namely that the national legislation provides
for “rules ensuring coordination which limits to what is strictly necessary the
additional disadvantage which results, for the persons concerned, from a dupli-
cation of proceedings” and “provides for rules making it possible to ensure that
the severity of all of the penalties imposed is limited to what is strictly necessary
in relation to the seriousness of the offence concerned”57. Such requirements
correspond, in fact, to the rules formulated by the ECtHR in A. and B. v. Norway
for the purpose of assessing “a sufficiently close connection in substance” of the
criminal proceedings resulting in criminal sanctions and administrative pro-
ceedings resulting in administrative sanctions criminal in nature.
The CJEU has explicitly referred to that case in the Menci case58, and thus
opened the door for the national court to assess whether proportionality sensu
stricto is respected or not. As a consequence, even if both European courts
have adopted a different approach towards the interpretation of the ne bis in
idem principle in the context of the duplication of criminal and administrative
proceedings, in the end it will be a matter for the proportionality test. The pro-
portionality of repression is also a requirement stemming from Article 49(3) of
the Charter, as emphasized by the CJEU in the Menci case. The approach was
completely different in Garlsson, where the CJEU stated that “in the event of
a criminal conviction […] following criminal proceedings, the bringing of the
proceedings relating to an administrative fine of a criminal nature exceeds what
56 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraph 51, judgement of the Court of Justice of 20 March 2018,
Menci, C-524/15, ECLI:EU:C:2018:197, paragraph 49.
57 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraphs 55–56, judgement of the Court of Justice of 20 March
2018, Menci, C-524/15, ECLI:EU:C:2018:197, paragraph 63.
58 Ibid., paragraph 61.
EFFECTIVENESS OF EU LAW AND PROTECTION OF FUNDAMENTAL RIGHTS... 53
is strictly necessary in order to achieve the objective referred to in paragraph 46 of
the present judgment, in so far as that criminal conviction is such as to punish
the offence committed in an effective, proportionate and dissuasive manner”59.
Then it analysed the national legislation, taking into account that the sanctions
include a prison sentence and a criminal fine liable to be imposed in the criminal
proceedings, [corresponding] to the administrative fine of a criminal nature lia-
ble to be imposed in the administrative proceedings. For that reason, the CJEU
concluded (subject to the final determination by the referring court) that bring-
ing proceedings for an administrative fine of a criminal nature “exceeds what is
strictly necessary in order to achieve the objective referred to in paragraph 46 of
the present judgment, in so far as the final criminal conviction is, given the harm
caused to the company by the offence committed, such as to punish that offence
in an effective, proportionate and dissuasive manner”60. Further, the Court
considered that the rule of moderation of sanctions applies only to the dupli-
cation of pecuniary penalties, and not to the duplication of an administrative
fine of a criminal nature and a term of imprisonment, and concluded that such
a rule “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”61.
Conclusions
First, in Menci, Garlsson and Di Puma the CJEU decided to interpret the ne bis in
idem principle autonomously with reference to Article 50(1) of the Charter only,
and without taking ECtHR case law into consideration (at least in part, as in the
Garlsson case). On the one hand, it admitted that Article 52(3) of the Charter
required that “the rights contained in the Charter which correspond to rights
guaranteed by the ECHR are to have the same meaning and scope as those laid
down by that convention”, but at the same time recalled that the Convention was
not “a legal instrument which has been formally incorporated into EU law”. It
also argued that the requirement to interpret the Charter in a manner consistent
with the Convention might not adversely affect the autonomy of Union law and
of the CJEU62. Thus, the argument of preserving the autonomy of EU law served
as the basis for the CJEU of shaping its own reasoning in the context of ne bis in
59 Judgement of the Court of Justice of 20 March 2018, Garlsson and others, C-537/16,
ECLI:EU:C:2018:193, paragraph 57.
60 Ibid., paragraph 59.
61 Ibid., paragraph 60.
62 Ibid., paragraphs 23–24, judgement of the Court of Justice of 20 March 2018, Menci,
C-524/15, ECLI:EU:C:2018:197, paragraphs 22–23.
Monika Szwarc
54
idem. Having admitted that the ne bis in idem principle may be limited, because
Article 52(1) of the Charter is applicable, the Court did not take into account
the fact that under Protocol No. 7 the only limitation to the ne bis in idem princi-
ple is enshrined in its Article 4 (2), and refers only to the “reopening of the case
in accordance with the law and penal procedure of the State concerned, if there
is evidence of a new or newly discovered facts, or if there has been a fundamen-
tal defect in the previous proceedings, which can affect the outcome of the case”.
As has already been emphasized, under Protocol No. 7 no other limitations are
envisaged, and under its Article 4(3) ne bis in idem may not be suspended on
the basis of Article 15 of the European Convention, which means that the right
derived from the ne bis in idem principle is a right which may not be subject to
derogations, even in exceptional situations63. It even concluded that the stand-
ard of protection offered by the CJEU is lower than that offered by the ECtHR,
which amounts to an infringement of Article 52(3) of the Charter64.
Secondly, the decisions of both European courts, even if different in rea-
soning, lead to a gradual erosion of the protection offered by the ne bis in idem
principle. The ECtHR decided that the duplication of criminal proceedings
and administrative proceedings, leading to the imposition of administrative
sanctions of a criminal nature, does not constitute a duplication (“bis”) when
the particular requirements of “sufficiently close connection in time and in
substance” are met. Thus, the prohibition of prosecution or conviction is not
actualised, because the ne bis in idem principle does not apply. The CJEU decided
that in such a situation the ne bis in idem principle applies in general, but at the
same time such a duplication was a limitation that could be authorised when
the requirements under Article 52(3) of the Charter were met. Again, prohibi-
tion of prosecution or conviction is actualised only when it is proved that any
requirement from this provision of the Charter is not fulfilled. As has already
been remarked above, some of these requirements are interpreted by the CJEU
in a manner that raises doubts as to when these requirements would not be met.
Thirdly, as far as the tasks resting upon the national courts are concerned,
the analysis – whether the ne bis in idem principle prevents prosecution or con-
viction in the case of duplication of proceedings – necessitates quite elaborate
reasoning. It consists of: 1) assessment of whether the administrative proceed-
ings and resulting sanctions are criminal in nature; 2) assessment of whether the
second set of proceedings is initiated for the same offences (“idem”); 3) assess-
ment of whether the first judicial decision has become final; 4) assessment of
whether the second set of proceedings has been initiated (“bis”). If all of the
above questions are answered affirmatively, the national court – when the case
63 A. Błachnio-Parzych, Zasada ne bis in idem…, p. 41.
64 Ibid., p. 41.
EFFECTIVENESS OF EU LAW AND PROTECTION OF FUNDAMENTAL RIGHTS... 55
involves implementation of EU law in the meaning of Article 51(1) of the Char-
ter – should conduct detailed analyses from the point of view of Article 52(1)
of the Charter of: 1) whether the limitation to the ne bis in idem is provided by
law; 2) whether it respects the essential content of the ne bis in idem principle;
3) whether the limitation may be justified by an objective of general inter-
est; 4) whether it is proportionate, namely: a) appropriate; b) necessary; and
c) proportionate sensu stricto. In general, the discussion is focused on the pro-
portionality test both in the meaning of Article 52(1) of the Charter, and more
particularly in the aspect of repression under Article 49(3) of the Charter, which
may be a difficult task.
Monika Szwarc
56
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Monika Szwarc
58
SUMMARY
The Member States’ obligations to ensure effectiveness of EU law and to respect
fundamental rights are two cornerstones of the EU edifice. For the purpose of
the analyses in the article, effectiveness is understood in the broadest mean-
ing possible as the general obligation of the Member States to give full effect
to EU law in their domestic legal orders. At the same time, the Member States
shall respect the fundamental rights as enshrined in the Charter of Fundamental
Rights of the European Union “when they are implementing Union law”. This
includes Art. 50 of the Charter, where the ne bis in idem principle is enshrined.
The recent rulings of the CJEU of 20 March 2018 in the Di Puma, Garls-
son and others and Menci cases, in which the ne bis in idem principle has been
interpreted, exemplify the difficult choices that have to be made in a situation
when the repression undertaken by a Member State in order to ensure the full
effect of EU law may infringe a fundamental right provided for in the Charter.
The analyses undertaken in the article concern: the role of sanctions as a tool to
ensure effectiveness of EU law, the obligation to respect the ne bis in idem princi-
ple in the context of criminal repression, and the recent case law of the European
Court of Human Rights and the Court of Justice of the European Union con-
cerning interpretation of the ne bis in idem principle in the context of cumulation
of criminal and administrative proceedings.
The main conclusion is that the decisions of both European courts (ECtHR
and CJEU), even if different in reasoning, lead to a gradual erosion of the protec-
tion offered by the ne bis in idem principle. It is also concluded that, as far as the
tasks resting upon the national courts are concerned, analysis of whether the ne
bis in idem principle prevents prosecution or conviction in the case of duplication
of proceedings necessitates quite elaborated reasoning, in which proportionality
is the main issue.
Key words: ne bis in idem, effectiveness of EU law, fundamental rights, effective-
ness of EU law, fundamental rights
