CJEU – Recent Developments in Value Added Tax 2019

S. 241. Introduction

In the Charter of Fundamental Rights of the European Union (Charter), Title VI on Justice, Arts. 47 to 50 concern the procedural fundamental rights protecting, among others, taxable persons comprised by the VAT Directive. This chapter examines Art. 50 of the Charter, particularly the ne bis in idem principle, i.e. the right not to be tried or punished twice for the same crime, and the definition of a “criminal sanction” within the area of VAT. Further, the paper discusses the denial of input VAT deduction where there has been involvement in fraud, and why this may not be considered as a criminal sanction. For this discussion, it is also relevant to examine Art. 49 of the Charter, which lays down the principles of legality and proportionality of criminal offences and penalties in regard to the definition of a “criminal penalty” seen in conjunction with the definition of a criminal sanction in Art. 50 of the Charter.

The analysis of what the content of the ne bis in idem principle is and what constitutes a criminal sanction or penalty pursuant to, respectively, Arts. 50 and 49 of the Charter, is based on a legal dogmatic analysis of relevant EU regulation and the case l...