The CJEU was requested to interpret (requests for preliminary ruling) the principle
of ne bis in idem in the context of the VAT directive and of the
directive concerning financial markets in four cases brought forward by Italian
courts:
- Case C-524/15, Menci - the Italian tax authorities imposed on Mr Luca Menci an administrative penalty for
having failed to pay VAT for the year 2011. Criminal proceedings were then
brought against Mr Menci with respect to the same acts before the Tribunale di
Bergamo (District Court, Bergamo, Italy).
- Case C-537/16, Garlsson Real Estate and Others - in
2007, the Italian National Companies and Stock Exchange Commission (Commissione
Nazionale per le Società e la Borsa) (‘Consob’) imposed an administrative
penalty on Mr Stefano Ricucci for market manipulation. Mr Ricucci contested
that decision before the Italian courts. In the context of his appeals on a
point of law before the Corte suprema di cassazione (Court of Cassation,
Italy), he claimed that he had already been finally convicted and sentenced in
2008, with respect to the same acts, to a criminal penalty extinguished as a
result of a pardon.
By their requests for a preliminary ruling, the Tribunale di Bergamo and the Corte
Suprema di Cassazione in particular question the CJEU concerning the
compatibility of the duplication of proceedings and penalties with the ne
bis in idem principle.
In the judgments, the CJEU considers that, in the situations referred to, there
could be a duplication of ‘criminal proceedings/penalties’ and ‘administrative
proceedings/penalties of a criminal nature’ against the same person with respect
to the same acts. Such a duplication of proceedings and penalties
constitutes a limitation of the ne bis in idem principle.
[…]
- Joined Cases C-596/16 and C-597/16, Di Puma and Zecca - in 2012, Consob imposed administrative
penalties on Mr Enzo Di Puma and Mr Antonio Zecca with respect to insider
dealing. In the actions before the Corte Suprema di Cassazione, they claimed
that, in the criminal proceedings with respect to the same acts brought in
parallel to the administrative proceedings, the criminal court had held that
the insider dealing was not established. The res judicata effect of that final
criminal judgment of acquittal prohibits, according to national procedural law,
the act of bringing administrative proceedings with respect to the same acts.
In that context, the Corte Suprema di Cassazione asks the CJEU whether, in the
light of the ‘ne bis is idem’ principle, the directive concerning
financial markets precludes such national legislation. That directive obliges
Member States to provide for effective, proportionate and dissuasive penalties
for infringements of the prohibition of insider dealing.
In its judgment, the CJEU holds that such national legislation does not infringe EU law, in the
light of the principle of res judicata, which is very important both in
the EU legal order and in the national legal orders. Moreover, where there
exists a final criminal judgment of acquittal finding that there is no offence,
the act of bringing proceedings for an administrative fine of a criminal nature
infringes the ne bis in idem principle. In such a situation, the act of
bringing those proceedings clearly exceeds what is necessary in order to
achieve the objective of guaranteeing the integrity of the financial markets of
the EU and public confidence in financial instruments.
The information is extracted from the official press release of the CJEU
– No 34/18, Luxembourg 20 March 2018
The full judgments are available on the Curia website in all EU languages (click on the
relevant case listed above).