• The case of Case C-617/10 Fransson [26 February 2013] concerned the interpretation of the ne bis in idem principle. It established the scope of the Charter, requiring every Member State to comply with the fundamental rights the Community law guarantees. Where the Member State is obliged to implement an EU measure, it is deemed to have done so – even if transposition has not occurred.

Facts of Case C-617/10 Fransson [26 February 2013]

  • Fransson was summoned before a Swedish District Court in relation to alleged tax fraud
  • He was subjected to these criminal proceedings following previous tax fines
  • F argued that the previous fines were criminal in nature, and therefore he could not be tried nor punished twice – as per Article 50 of the Charter of Fundamental Rights?
  • The Swedish Court requested a preliminary ruling as to whether the Article applied to the present case
  • Article 51(1) states that the previous is addressed to Member States only when they are implementing Community law – limiting its scope
  • Directive 2006/112/EC requires the national state to take all necessary means to collect VAT, alongside Article 325 TFEU – this imposes an obligation on the Member State

Issues in Case C-617/10 Fransson [26 February 2013]

  • Were the Swedish Court correct in taking all the necessary measures to collect Value Added Tax?
  • Or was Fransson correct in his argument that he could not be punished twice?
  • Did the Charter apply?

Held by the European Court of Justice

  • The Charter applied here. However, the CJEU does not have the power to examine the compatibility of such on national law where it lies outside the scope of Community law.

Findings of the Court

Jurisdiction of the court:

  • “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.” [21]
  • However, it is not the same where “a legal situation does not come within the scope of European Union law” as “the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction” [22]

The application of Directive 2006/112 constitutes the implementation of the measure, the fact that the national laws have “not been adopted to transpose” it “cannot call that conclusion into question, since its application is designed to penalise an infringement of that directive and is therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union” [28]

The ne bis in idem principle does not preclude a Member State from successful imposition of punishment in the area of the present case – this is a matter for the national court to determine. [37]

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