Sunday, 17 November 2013

This will get the Europsceptics going....

Some Swedish chap did not like being tried twice for some domestic VAT offence.  So off he popped to the ECJ in Luxembourg who ruled that he could have the benefit of Protocol 7 of the European Convention of Human Rights because it is mirrored in article 50 of Charter of Fundamental Rights of the European Union which states

‘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:

The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. On the other hand, if such legislation falls within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures

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 usual suspects are warming up:

Bill Cash, Tory chairman of Parliament’s EU scrutiny committee, said: ‘We are in a position where the ECJ has effectively struck down an act of Parliament. If they can do it to this, they can do it to anything.’

Watch this space...........

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