COMBATTING WASTE CRIME

Recent case law on the ne bis in idem principle has developed in the field of economic and financial crime. However, its conclusions also apply to practices in other fields, which allow a joint imposition of administrative and criminal sanctions in respect of the same conduct, including environmental matters. In this respect, the ECtHR in A and B v Norway made a reference to opinion of Advocate General in case Case C-617/10 Åkerberg Fransson, and noticed that “the imposition of penalties under both administrative law and criminal law in respect of the same offence is a widespread practice in the EU Member States, especially in fields such as taxation, environmental policies and public safety” (para. 118). Here, environmental policies are listed among other complex fields which often allow or require coordination of multiple administrative authorities and criminal investigators.

As to the connection in substance, the dual proceedings must satisfy the following four conditions (see also Johannesson and Others v Iceland, 22007/11, Ragnar Thorisson v. Iceland, 52623/14):

• They pursue complementary purposes and thus address, not only in abstracto but also in concreto, different aspects of the social misconduct involved;
• They are a foreseeable consequence, both in law and in practice, of the same impugned conduct;
• They avoid, as far as possible, any duplication in the collection and assessment of the evidence;
• They ’above all’ put in place an offsetting mechanism designed to ensure that the sanction imposed in the first proceedings is taken into account in the other proceedings, so that the overall amount of any penalties imposed is proportionate.
• In addition to the connection in substance, a relationship in time must also be present, though the proceedings do not need to be conducted simultaneously and the order in which the processes take place is irrelevant.

To sum up, it is possible to set the ne bis in idem principle aside where dual proceedings represent ’complementary responses to socially offensive conducts’ and are combined in an integrated manner to form a ’coherent whole’ to address the different aspects of the offence.

The CJEU confirms that the conditions laid down in Article 52(1) of the EU Charter are satisfied if

1. the duplication of the sanctions does not represent an excessive burden for the person concerned,
2. that there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication, and
3. that the sets of proceedings in question have been conducted in a manner that is sufficiently coordinated and within a proximate timeframe (see Case C-27/22 Volkswagen Group Italia and Volkswagen Aktiengesellschaft).