CJEU – Recent Developments in Direct Taxation 2018

1. S. 122The Menci case: a step forward, back, or nowhere in construing the ne bis in idem principle in tax matters?

1.1. Introduction

The first section of this chapter analyses case C-524/15 (Menci), decided by the CJEU on 20 March 2018, which concerned a request for a preliminary ruling on the interpretation of Article 50 of the Charter of Fundamental Rights of the European Union (“Charter”), read in light of Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), with regard to the possible duplication of administrative and criminal proceedings as a consequence of the failure to pay VAT.

Article 50 of the Charter corresponds to Article 4 of Protocol No 7 to the ECHR, as both provisions lay down the ne bis in idem principle with a similar wording. Over the years this has led the CJEU and the European Court of Human Rights (“ECtHR”) to maintain an open dialogue, which has ensured, until recently, a substantial alignment of their respective case law.

1.2. The facts of the case

Mr. Menci is an individual entrepreneur who failed to pay the VAT due for the tax year 2011, as calculated in the annual VAT return, and received a not...