CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION … a preliminary question from the Swedish court which concerned criminal proceedings against H. Å. Fransson for serious tax evasion. H. Å. Fransson was charged for stating false information in tax returns and for failing to declare employers’ contributions for certain accounting periods. The problem was that two years before Swedish tax authorities had ordered him to pay a tax surcharge for the same tax misconduct. The national court therefore faced the problem of whether the previous administrative sanction and new criminal prosecution fall under the prohibition of double jeopardy. And, since the Charter confirms the principle of ne bis in idem in Article 50, it was confronted with the potential conflict of national rules with the EU human rights catalogue. Therefore, it decided to stay the proceedings and turned to the Court of Justice with the preliminary question. The circumstances of the case opened the initial question whether tax penalties and related criminal proceedings represent the implementation of EU law within the meaning of Article 51(1) of the Charter. Some of the Member States, 27 the European Commission and the Advocate General (Cruz Villalón) reflected on this question negatively and rejected the applicability of the Charter and therefore the Court’s jurisdiction to decide the case. However, the Court of Justice took the opposite view and recognized the applicability of the Charter despite the fact that it was neither a classic case of the implementation of EU law (the Wachauf situation), nor a case of derogation from EU rules (the ERT situation). It extended the scope of application of the Charter vis-á-vis the Member States also to other (much broader) situations. According to the Court: ‘Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.’ 28 The wide understanding of the Court of Justice lies in the fact that the term ‘applicability’ in its view does not mean a concrete situation of application of EU rules in a specific case but basically just a sort of their factual abstract existence. It is not important whether EU law was used (directly or indirectly) in a specific case. The key feature for applicability of the Charter is that circumstances of the case fall within the scope of EU law. To meet this test even a partial or indirect connection to Union law is sufficient. 29 This requirement was met in the case of H. Å. Fransson. His tax offenses were partly related to the area of value added tax, which forms an area harmonized by EU law. Moreover, part of the revenue from VAT constitutes one of the resources of the Union budget. According to the Court of Justice, these facts were satisfactory enough to build a bridge between prosecution at the national level and vnútroštátnym súdom o aplikovateľnosti a pôsobnosti Charty základných práv EÚ: Rozsudky vo veciach Aklagaren Fransson a Melloni | A Message of the Court of Justice of the EU to National Courts on the Scope of Application of the Charter of Fundamental Rights of the EU: Aklagaren Fransson and Melloni Judgments. Právny obzor: teoretický časopis pre otázky štátu a práva , 2014, vol. 97, pp. 115-130. 29 HANCOX, E., The meaning of “implementing” EU law under Article 51(1) of the charter: Åkerberg Fransson. Common Market Law Review , 2013, vol. 50, pp. 1411–1431 or MAZÁK, J., DOBROVIČOVÁ, G., OROSZ, L., JÁNOŠÍKOVÁ, M., Odkaz Súdneho dvora EÚ vnútroštátnym súdom o aplikovateľnosti a pôsobnosti Charty základných práv EÚ: Rozsudky vo veciach Aklagaren Fransson a Melloni | A Message of the Court of Justice of the EU to National Courts on the Scope of Application of the Charter of Fundamental Rights of the EU: Aklagaren Fransson and Melloni Judgments. Právny obzor , 2014, vol. 97, pp. 115-130. 27 Sweden, Czech Republic, Denmark, Ireland and Netherlands. 28 Åkerberg Fransson (C-617/10, EU:C:2013:105, para 21).

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