In its judgment of 5 April 2017 delivered in the joined Cases C-217/15 Orsi and C-350/15 Baldetti (ne bis in idem), the Court of Justice of the European Union (CJEU) interpreted the meaning of the “same person” requirement for the application of the ne bis in idem principle guaranteed in Article 50 of the Charter of Fundamental Rights of the EU.
The CJEU ruled that Article 50 of the Charter must be interpreted as not precluding national legislation which permits criminal proceedings to be brought for non-payment of VAT, after the imposition of a definitive tax penalty with respect to the same act or omission, where that penalty was imposed on a company with legal personality, while those criminal proceedings were brought against a natural person. The main arguments for this decision were:
The application of the ne bis in idem principle guaranteed in Article 50 of the Charter presupposes that it is the same person who is the subject of the penalties or criminal proceedings at issue (para 17).
In this case, the tax penalties were imposed on two companies with legal personality, namely S.A. COM Servizi Ambiente e Commercio and Evoluzione Maglia, whereas the criminal proceedings relate to Mr Orsi and Mr Baldetti, who are natural persons. Consequently, as noted by the Advocate General in point 36 of his Opinion, the tax penalties and the criminal charges concerned distinct persons. Therefore, the condition for the application of the ne bis in idem principle, according to which the same person must be subject to the penalties and criminal proceedings at issue, appears not to be satisfied (paras 21 and 22).
The fact that criminal proceedings have been brought against Mr Orsi and Mr Baldetti in respect of acts or omissions committed in their capacity as legal representatives of companies which were subject to tax penalties is not capable to change the conclusion reached in the previous point (para 23).