Åkerberg Fransson and its Progeny

The Fransson decision – though handed down as recently as 2013 – can already be counted among the major constitutional judgments rendered by the Court of Justice. By making it clear that the EU Charter of Fundamental Rights – itself only in force since December 2009 – applies to the Member States whenever national legislation falls within the scope of Union law, the Court adopted a wide understanding of the scope of the Charter. It is axiomatic that this results in a greater number of domestic cases having to comply with (a rather large number of) Charter rights. This alone does not, however, capture the full picture. Forming part of EU law, the Charter benefits from the primacy of EU law over conflicting national law,[1] to which every national court – no matter how low down in the hierarchy – is obliged to give effect by setting aside conflicting national law.[2] Apart from clarifying the scope of the Charter, the Fransson decision is further relevant for confirming that the ne bis in idem principle contained in Article 50 of the Charter does not as such prohibit a Member State from subsequently imposing an administrative (tax) penalty and a criminal penalty for the same acts. While this finding is fully compatible with the European Convention on Human Rights, the decision in Fransson also marked the departure point for a problematic set of cases that water down the ne bis in idem guarantee under the Charter and set the Court of Justice on a course which may result in a conflict with the European Court of Human Rights.