The Court has jurisdiction to answer the questions referred and to provide all the guidance as to interpretation needed in order for the referring court to determine whether the national legislation is compatible with the ne bis in idem principle laid down in Article 50 of the Charter.
The protection against double jeopardy is ensured by Swedish law, EU law and the ECHR law. The Swedish system allows the prosecution of the tax avoider after the administrative court already has imposed a tax penalty. The double punishment consists in a tax penalty followed by an eventual criminal law sanction. The judgment in Åkerberg Fransson, Case C-617/10 clarifies some important issues.
First it must be said that all the questions referred have been found admissible in contrast with the advice of the AG Cruz Villalón. Moreover it is clear now that before the accession to ECHR, the EU does not have the formal competence to give any guidance in relation to a possible direct conflict between the Swedish law and the ECHR law. Thirdly the referring court is exclusively competent to deem the matter whether the tax penalty is a criminal sanction in nature.
The most interesting part refers to Swedish judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter of Fundamental Rights of the European Union conditional upon that infringement being clear from the text of the Charter or the case-law relating to it.
This judicial practice is not permissible under EU law since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice of the European Union, whether that provision is compatible with the Charter. EU law empowers the national courts since the whole foundation of EU law would be endangered if the preliminary ruling procedure could be so easily annihilated.
Please visit the site at:
http://www.echr.coe.int/Documents/FS_Non_bis_in_idem_ENG.pdf