‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’
How can the ECJ effectively alter a democratically passed piece of legislation which allowed you to be tried twice in Sweden for a VAT offence? Quite a few Govts intervened to make this point to the Court (although not the UK):
The Swedish, Czech and Danish Governments, Ireland, the Netherlands Government and the European Commission dispute the admissibility of the questions referred for a preliminary ruling. In their submission, the Court would have jurisdiction to answer them only if the tax penalties imposed on Mr Åkerberg Fransson and the criminal proceedings brought against him that are the subject-matter of the main proceedings arose from implementation of European Union law. However, that is not so in the case of either the national legislation on whose basis the tax penalties were ordered to be paid or the national legislation upon which the criminal proceedings are founded. In accordance with Article 51(1) of the Charter, those penalties and proceedings therefore do not come under the ne bis in idem principle secured by Article 50 of the Charter.
The Court held that the underlying criminal law did not have to be based upon EU Law - it just had to be in a field in which EU Law operates:
So, in other words, if you can squeeze your case into are area of law in which the EU has an interest, then you can rely on lots of rights under the EU Charter which your national legislature has not enacted. For example Protocol 7, in use here, has not been 'brought home' under Human Rights Act 1998 which would be just as well as you can in certain circumstances be tried twice under our domestic law (Part 0, CJA 2003) - although if the prosecution could possibly come within some piece of EU Law, then think again prosecutors....
Mostyn J has just realised what is going on in a recent judgment:
The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed
& the usual suspects are warming up:
Watch this space...........