Court of Justice 12 June 2012, C‑617/10 (Åklagaren v Hans Åkerberg Fransson.)

Also known as

In this Opinion in Case C-617/10 (Åklagaren v. Hans Åkerberg Fransson), Advocate General Cruz Villalón proposes that the Court of Justice should declare it lacks jurisdiction, on the ground that Sweden's dual administrative and criminal penalty system for VAT-related tax offences does not constitute 'implementation of Union law' within the meaning of Article 51(1) of the Charter of Fundamental Rights, as the connection between Directive 2006/112 and the Swedish penalty regime is too remote to justify transferring responsibility for guaranteeing fundamental rights from the Member State to the Union. In the alternative, the Advocate General argues that Article 50 of the Charter (the ne bis in idem principle, or prohibition of being tried or punished twice) requires a partially autonomous interpretation distinct from Article 4 of Protocol No. 7 to the ECHR, given the significant lack of consensus among Member States on that Protocol, and that Article 50 does not categorically preclude cumulative administrative and criminal proceedings for the same conduct, provided the criminal court retains the power to take the prior administrative penalty into account as a mitigating factor. Regarding the Swedish Supreme Court's 'clear support' requirement, the Advocate General concludes that Union law does not preclude such a clarity condition when applied to Charter provisions, so long as it does not impede national courts from exercising their full powers of interpretation and disapplication under Union law.AI