Abstract
It is not unlikely for a criminal-law jurist who approaches the matter of banking and financial investigation for the first time to report an impression of mild bewilderment.
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Notes
- 1.
See below, Sect. 2.3.
- 2.
Cf., e.g., Franssen and Ligeti (2017), p. 1 et seq.
- 3.
31 U.S.C. § 5312(2), lett. (W).
- 4.
That is, for instance, the case of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS 198, Warsaw, 16.05.2005), or of the EU AML directives (see Directive 2018/843, “5th AML Directive”).
- 5.
Directive (EU) 2017/1371 of 5.07.2017 on the fight against fraud to the Union’s financial interests by means of criminal law (hereinafter “PIF Directive”).
- 6.
Directive 2014/57/EU of 16.04.2014 on criminal sanctions for market abuse (hereinafter “II Market Abuse Directive”), and Regulation (EU) No 596/2014 of 16.04.2014 on market abuse (hereinafter “Market Abuse Regulation”).
- 7.
Cf. Tricot and Martìn (forthcoming). The analysis of the critical issues concerning real-time monitoring of banking data in the EU and in the US is carried out below in Chaps. 7 and 8.
- 8.
Regulation (EU) No 575/2013 of 26.06.2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (hereinafter “CRR”), and Directive 2013/36/EU of 26.06.2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms (hereinafter “CRD IV”). CRD IV was recently amended by Directive (EU) 2019/878 of 20.05.2019 (“CRD V”), that shall be transposed by 28.12.2020. CRR will be substituted by CRR II (Regulation (EU) 2019/876 of 20.05.2019) from 28.06.2021, although a few provisions enter into force earlier. Those already into force and relevant for the present work will be highlighted in the following analysis.
- 9.
- 10.
Cf. Annex 7, Second Council Directive 89/646/EEC of 15.12.1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC.
- 11.
Cf. Annex I, CRD IV, List of Activities Subject to Mutual Recognition: 1. Taking deposits and other repayable funds. 2. Lending including […] 3. Financial leasing. 4. Payment services […] 5. Issuing and administering other means of payment […] 6. Guarantees and commitments. 7. Trading for own account or for account of customers […] 8. Participation in securities issues […] 9. Advice to undertakings on capital structure, industrial strategy and related questions and advice as well as services relating to mergers and the purchase of undertakings. 10. Money broking. 11. Portfolio management and advice. 12. Safekeeping and administration of securities. 13. Credit reference services. 14. Safe custody services. 15. Issuing electronic money.
- 12.
- 13.
Cf. Article 13, Second Council Directive 89/646/EEC, and Article 3, First Council Directive 77/780/EEC of 12.12.1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions.
- 14.
And precisely those listed “in points 2 to 12 and point 15 of Annex I” CRD IV. Cf. also Article 1, First Council Directive. According to CRR II (in this part entered into force since 27.06.2019) also “other than a pure industrial holding company”.
- 15.
Cf. Article 4(1)(1) and (3) CRR, not modified by CRR II.
- 16.
Cf. Article 4(1)(5) and (27, lett. h-j) CRR.
- 17.
31 U.S.C. § 5312(2), letters (A),(B),(D),(G),(H),(I),(M).
- 18.
Idem, letters (N),(Q),(S),(T),(U),(V),(X).
- 19.
Idem, letters (Y) and (Z).
- 20.
The role played by the FATF will be illustrated in Sect. 3.2.
- 21.
Cf. definition of “Financial Institutions” in FATF (2012), p. 117–118.
- 22.
Cf. also Sect. 3.2.
- 23.
This model reduced the relevance on distinguishing the type of activities exercised by banks, which previously were the bases for identifying Commercial banks (which “is authorized to receive both demand and time deposits, to make loans, to engage in trust services, to issue letter of credit, to rent time-deposit boxes, and to provide similar services”) and Investment banks (“whose primary purpose is to acquire financial businesses, esp. through the sale of securities” and “does not accept deposits, and apart from selling securities, does not deal with the public at large”), cf. Garner (2014), p. 173; Ferran (2012), p. 39 et seq
- 24.
Although also before the lifting of the ban similar results were often achieved establishing financial groups composed by corporations of different nature and sector of activities.
- 25.
Glas-Steagall Act of 1933, also known as the Banking Act, P.L. 73–66.
- 26.
Gramm-Leach-Bliley Act of 1999, also known as the Financial Services Modernization Act, P.L. 106–102.
- 27.
The term TBTF became popular since 1984, when it was used by a Connecticut Congressman, Stewart B. McKinney, during a debate concerning the Federal Deposit Insurance Corporation’s intervention to rescue the Continental Illinois Bank, and it does not imply, of course, the impossibility for those entities to fail, as the Lehman Brothers example clearly showed. Currently, the TBTF problem, that includes also a substantial inability to prosecute, is monitored by the Financial Stability Board (FSB) that explicitly deals with Systemically Important Financial Institutions (SIFIs), cf. FSB (2017). The same institution has also released a list of the SIFIs or TBTF banks, recently updated, which includes 30 institutions such as (in descending order): JP Morgan Chase, Bank of America, Citigroup, Deutsche Bank, HSBC, Bank of China, Barclays, BNP Paribas […] Goldman Sachs […] Morgan Stanley […], Royal Bank of Scotland, Santander, Société Générale […], Unicredit Group. The critical issues related to those huge banking groups are taken into account also at EU level, see, e.g., European Commission, European Financial Stability and Integration Report 2012, 24.04.2013, SWD(2013) 156 final, p. 56 et seq. http://ec.europa.eu/internal_market/economic_analysis/docs/efsir/130425_efsir-2012_en.pdf. Accessed 17 July 2018. Cf. Black (2010), p. 6. Reporting how this concept could be set aside in light of the Holder banking investigation’s policy, Vervaele (2017), p. 167; contra Rakoff (2014).
- 28.
Cf. Annex, 7(c), Second Council Directive 89/646/EEC. In Italy, for instance, the removal of the separation of activities (realized with R.D.L. 12.03.1936, no 375 “legge bancaria”), begun with the law, 30.07.1990, no 218 (“legge Amato”) and was completed with the issuing of the new banking code in 1993 (d.lgs. 1.09.1993, no 385, “Testo Unico delle leggi in materia bancaria e creditizia–T.U.B.”). Recently, the Parliamentary Committee on banking investigations issued a final report in which several proposals concerning also the banking system have been included, among which the recommendation to pursue a separation of investment and commercial banks at the European level, cf. Senato della Repubblica, Legislatura 17a, Commissione parlamentare di inchiesta sul sistema bancario e finanziario, Resoconto sommario n. 47, 30 January 2018, at 9.5, no. 21, http://www.parlamento.it/japp/bgt/showdoc/frame.jsp?tipodoc=SommComm&leg=17&id=01064008&part=doc_dC-sedetit_a1&parse=no#_Toc505072310. Accessed 18 July 2018.
- 29.
Cf., e.g., Barth et al. (2004), pp. 43–45.
- 30.
Black (2010), p. 3 et seq
- 31.
- 32.
Cf. “Volcker Rule,” Section 619 of the Dodd–Frank Wall Street Reform and Consumer Protection Act, P.L. 111–203, H.R. 4173, better known as Dodd–Frank Act, effective from July 21, 2010. For some critical considerations on the external jurisdiction contained in this rule, and in the Dodd-Frank Act, see Vervaele (2017), pp. 185–187.
- 33.
Cf. Liikanen (2012)(chaired by), p. 100 et seq.
- 34.
- 35.
A proposal to regulate equity crowdfunding was issued by the Commission, cf. Proposal for a Regulation of The European Parliament and of The Council on European Crowdfunding Service Providers (ECSP) for Business, Brussels, 8.3.2018 COM(2018) 113 final, see e.g., p. 10.
- 36.
The Hawala (transfer, in Arabic, from which also derives the Italian word avallo) is believed to have developed with the need of financing long-distance trades, especially among Italian cities and the Muslim world, in the early medieval period, introducing the concept of transfer of debt, otherwise not allowed under Roman law. Even if hawala is not a universal term, there is a universal recognition of the existence of hawala or hawala-like providers across jurisdictions, characterized by similar and unique mechanisms; see Badr (1978). For a comparative analysis on the impact of HOSSPs, see also FATF (2013).
- 37.
“HOSSPs, for the purpose of the typology, are defined as money transmitters, particularly with ties to specific geographic regions or ethnic communities, which arrange for transfer and receipt of funds or equivalent value and settle through trade, cash, and net settlement over a long period of time”, see FATF (2013), p. 9.
- 38.
For an overview on the bit-coins, see, e.g., EBA (2014); Bryans (2014), p. 441 et seq.; Christopher (2014), p. 1 et seq.; Marian (2015), p. 53 et seq.; Ajello (2015), pp. 435–461; Malone (2014); Brito et al. (2015); Tapscott and Tapscott (2017); Zou (2014); Stokes (2012); Pflaum and Hateley (2014); Kleiman (2013); Gruber (2013).
- 39.
Cf. Articles 16 and 7, Charter of Fundamental Rights of The European Union (CFREU), OJ C 326, 26.10.2012, pp. 391–407.
- 40.
Cf. Article 8 Convention for the Protection of Human Rights and Fundamental Freedoms (better known as European Convention on Human Rights-ECHR), CETS 005, Roma, 04.11.1950, and Article 1, Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS 009, Paris, 20.03.1952.
- 41.
Cf. Articles 21 and 11, American Convention on Human Rights, adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22.11.1969, and entered into force in 18.07.1978 (signed but never ratified by the US).
- 42.
Analysing the digital dimension of banking data in real-time monitoring Sect. 8.1.
- 43.
Notwithstanding the international support for the development and financing of supervisory practices, cf. Special Recommendation VI and its interpretative note, in FATF (2001).
The Recommendation has been transposed at EU level by Directive 2007/64/EC of 13.11.2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, under the Commission initiative, see Communication from the Commission to the Council and the European Parliament on the Prevention of and the Fight against Terrorist Financing through measures to improve the exchange of information, to strengthen transparency and enhance the traceability of financial transactions, Brussels, 20.10.2004 COM(2004) 700 final, p. 7.
- 44.
- 45.
Such as in India, or Pakistan. “Among the 33 surveyed countries, 18 countries treat hawala and other similar service providers as illegal while 15 countries consider them legal if registered or licensed. Interestingly, most developed countries allow licensing or registration of HOSSPs, while developing countries do not. Within the developed countries respondents, only six out of 17 countries define hawala and other similar service providers as “illegal” and the remaining eleven have legalised hawala and other similar activity if service providers are either registered or licensed. On the other hand, 12 out of 16 developing countries respondents define hawala and other similar activity as “illegal” and only 4 countries allow them to operate legally if licensed or registered (See Table 3.1). One of the reasons put forward by developing countries”, cf. FATF (2013), p. 45; see also pp. 11–25: “In the first decade after 9/11, the globe has been largely ineffective in supervising HOSSPs […] the scale of unregulated hawalas is unknown and is impossible to generalize. Most countries have difficulties reaching credible estimates of the size of unregulated hawala and other similar service providers”.
- 46.
HSI, Hawalas, in The Cornerstone Report, Volume VII, 2, Summer 2010, pp. 1–2. https://www.ice.gov/doclib/news/library/reports/cornerstone/cornerstone7-2.pdf. Accessed 18 July 2018.
- 47.
The FinCEN represents the US Financial Intelligence Unit; cf. Sect. 3.3.
- 48.
Also the approval of the EU Directive on Payment Services (PSD) represents an important step towards a comprehensive registration of the transmitters, taking into account the risk-profile of the providers, cf. Directive (EU) 2015/2366 of 25.11.2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC.
- 49.
Cf. FATF (2013), p. 68.
- 50.
- 51.
- 52.
Presenting though critical profiles originated by the need to adapt rules of criminal procedure to legal persons as defendants, such as: the identification of the liable subjects within the legal person; the nature of legal corporate liability; the value of corporate compliance programmes; and the potential conflicts in terms of defence rights between the physical members of the legal entity and the entity itself. See Beale (2014), pp. 27–54; Lupária (2010), p. 801; Cerqua et al. (2014); Zagaris (2017), pp. 19–56; Cappel (2017), pp. 57–78; Renzetti (2017).
- 53.
212 U.S. 481 (1909).
- 54.
- 55.
Also in the Model Penal Code adopted by some States, in fact, the principle of corporation’s criminal liability is not denied, even if the burden of proof is significantly higher for the Government, cf., e.g., Section 2.07(1); see also Strader (2011), p. 20 et seq.
- 56.
United States v Arthur Andersen, LLP, 374 F.3d 281, 284 (6th Cir. 2004), rev’d, 125 S. Ct. 2129 (2005). According to the Sentencing Commission’s yearly reports of corporate convictions, from 2007 to 2012 fewer than 200 corporations were convicted per year in the federal courts, see, e.g., U.S. Sentencing Commission (2016), Organisational Sentencing Practice-Table 51, reported also (in its 2012 version) by Beale (2014), p. 22.
For opposite comment to the impact of such a practice related to the financial crisis, see Rakoff (2014) and Uhlmann (2013).
- 57.
Who nowadays are reported to be increasingly charged and convicted, see Brickey (2006), p. 15, according to whom “The corporate fraud prosecution cycle following Enron’s collapse has produced an unparalleled number of criminal trials of senior corporate executives in just three years. While guilty pleas and cooperation agreements are strategically significant in developing these cases, the number of CEOs, CFOs, and other senior managers who have been charged and tried belies critics’ assertions that mid- level managers who plead guilty become scapegoats, while their superiors go scot free”. Giving reason of the shifting towards lower-level employees Rakoff (2014) and Garrett (2014).
- 58.
That was the case for instance of relevant financial institutions, such as Merrill Lynch & Co, and Monsanto, see Beale (2014), p. 24, citing Garrett (2007). On Deferred Prosecution Agreements see, e.g., Cunningham (2014), Kaal and Lacine (2014) and Ruggiero (2015). On the extent of prosecutorial powers with regard to compliance programs, see Zagaris (2017), p. 57 et seq.
- 59.
Beale and Safwat (2004), pp. 97–98.
- 60.
Cf. Articles 5–6, Directive 2011/36/EU of 5.04.2011 on preventing and combating trafficking in human beings and protecting its victims; Article 12, Directive 2011/92/EU of 13.12.2011 on the assessment of the effects of certain public and private projects on the environment; Recital (18) and Article 8, Market Abuse Directive; Article 30, lett. j), Market Abuse Regulation; Article 6, Directive 2014/62/EU of 15.05.2014 on the protection of the euro and other currencies against counterfeiting by criminal law; Article 17, Directive (EU) 2017/541 of 15.03.2017 on combating terrorism; Article 6 PIF Directive; Articles 7–8, Directive (EU) 2018/1673 of 23.10.2018 on combating money laundering by criminal law.
- 61.
This expression is typically repeated in most legislative acts of the Union when it comes to impose sanctions (independently from the administrative or criminal nature) since the notorious Greek Maize case (Commission of the European Communities v Hellenic Republic, Case 68/88, 21.09.1989, ECLI:EU:C:1989:339, § 24), cf., e.g., European Commission, Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law, Brussels, 20.9.2011 COM(2011) 573 final, p. 9; and the current version of Article 325 TFEU.
- 62.
- 63.
Also AT, BG, SE, SK and PL opted for a hybrid system, cf. Mongillo (2012), p. 85.
- 64.
- 65.
- 66.
Id., p. 36.
- 67.
- 68.
The London Interbank Offered Rate (Libor) consists of “a daily compilation by the British Bankers Association of the rates that major international banks charge each other for large-volume, shorT-term loans of Eurodollars, with monthly maturity rates calculated out to one year. These daily rates are used as the underlying interest rates for derivative contracts in currencies other than the euro”; while the Euro Interbank Offered Rate (Euribor) is “a measure of what major international banks charge each other for large-volume, shorT-term loans of euros, based on interesT-rate data provided daily by a panel of representative banks across Europe” cf. Garner (2014), respectively p. 1085 and p. 671.
- 69.
Cf. European Commission, Antitrust: Commission fines banks € 1.49 billion for participating in cartels in the interest rate derivatives industry, Brussels, 4.12.2013, http://europa.eu/rapid/press-release_IP-13-1208_en.htm#footnote-1. Accessed 18 July 2018. Citicorp, JPMorgan Chase & Co., Barclays PLC, The Royal Bank of Scotland PLC, and UBS AG agreed to plead guilty to felony charges to the US Department of Justice, cf. DOJ, Five Major Banks Agree to ParenT-Level Guilty Pleas, 20.05.2015. https://www.justice.gov/opa/pr/five-major-banks-agree-parenT-level-guilty-pleas. Accessed 18 July 2018. For an analysis of the Fortis Bank case, see Vervaele (2014), p. 61 et seq., and more recently also on Libor/Euribor and BNP Paribas (the latter concerning however an embargo violation), Vervaele (2017), pp. 10–174. For an analysis of the changes in bank corporate governance after the financial crisis, see Hopt (2012), p. 343 et seq.
- 70.
Singh (2015), p. 458, that underlines how “The growth in the use of administrative sanctions is nevertheless based on a systematic process of decriminalising regulatory offences, which has curtailed the use of criminal sanctions for all but the most serious offences. It is only in more recent times, in the aftermath of the global financial crisis, that we have seen a re-emergence of criminal sanctions to complement other enforcement sanctions”.
- 71.
- 72.
- 73.
- 74.
On the increasingly blurring difference between administrative and criminal law see, e.g., Franssen and Ligeti (2017), pp. 10–11.
- 75.
- 76.
- 77.
Engel and o. v the Netherlands, 8.06.1976, Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72. Among the extensive body of literature that examined the implications of the Engel case-law in general terms see, e.g., Van Dijk (2006), pp. 543–554; Trechsel (2005), p. 13 et seq.; Harris et al. (2014), p. 373 et seq.; Ubertis (2009), p. 25 et seq.; Mazzacuva (2013), p. 1899 et seq.; Manes (2012), p. 258 et seq.; Lupária (2017), p. 940; Weyemberg and Galli (2014).
- 78.
- 79.
Cf., e.g., Bendenoun v France, 24.02.1994, Application no. 12547/86, § 47. See Trechsel (2005), p. 30, according to which this criteria should be the “essential one”.
- 80.
Cf. e.g. Öztürk v Germany, 21.02.1984, Application no. 8544/79 § 53; Bendenoun v France § 47.
- 81.
Cf., e.g., Benham v the United Kingdom, 10.06.1996, Application no. 19380/92, § 56; A.P., M.P. et T.P. v Switzerland, 29.08.1997, 71/1996/690/882, § 42. Cf. also Trechsel (2005), pp. 19–21, and in particular p. 19, underlining the ambiguity in jurisprudence of the Court, that in Benham refers to the nature of the proceedings, rather than of the offence.
- 82.
Weber v Switzerland, 22.05.1990, Application no. 11034/84 § 33, see also Demicoli v Malta§ 33.
- 83.
Cf. Trechsel (2005), p. 21, according to whom “these two types of sanctions should be determined in different sets of proceedings. At any rate, if there is only one set of proceedings, it must be criminal”, and p. 27, recognizing the “weakness” of this criterion.
- 84.
Cf. Van Dijk (2006), p. 544.
- 85.
Cf. e.g., Bendenoun v France, § 47; J.J. v The Netherlands, 27.03.1998, 9/1997/793/994, § 37; E.L., R.L. and J.O.–L. v Switzerland, 29.08.1997, 75/1996/694/886, § 46; J.B. v Switzerland, 3.05.2001, Application no. 31827/96, § 47–49.
- 86.
- 87.
Campbell and Fell v the United Kingdom, § 38; on the issue, see also Trechsel (2005), p. 26.
- 88.
Öztürk v Germany, § 53; Nicoleta Gheorghe v Romania, 3.04.2012, Application no. 23470/05, § 26; Garyfallou Aebe v. Greece, 24.09.1997, 93/1996/712/909, § 34. However, not all imprisonment sanctions are per se implying a criminal nature, cf. Van Dijk (2006), p. 550 and case-law there mentioned.
- 89.
“On the basis of the following elements: (1) the law setting out the penalties covered all citizens in their capacity as taxpayers; (2) the surcharge was not intended as pecuniary compensation for damage but essentially as a punishment to deter reoffending; (3) it was imposed under a general rule with both a deterrent and a punitive Purpose; (4) the surcharge was substantial”, cf. Jussila v. Finland, 23.11.2006, Application no. 73053/01, § 32.
- 90.
Salabiaku v France, 7.10.1988, Application no. 10519/83.
- 91.
Cf. Lilly France S.A. v France, 14.10.2003, Application no. 53892/00; Dubus S.A. v France, 11.06.2009, Application no. 5242/04; A. Menarini Diagnostics S.r.l. v Italy; 27.09.2011, Application no. 43509/08; Grande Stevens and others v Italy, 4.03.2014, Application no. 18640/10; Nodet v France, 6.06.2019, Application no. 4732/14, see De Amicis (2014), p. 201; Viganò (2014), p. 219.
- 92.
- 93.
Cf. e.g. Öztürk v Germany, § 54; Lutz v Germany, 25.08.1987, Application no. 9912/82, § 55; Ravnsborg v Sweden, Application no. 14220/88, 23.03.1994, §§ 30 and 35; Garyfallou, § 33 although the Court has not always been consistent in this respect, cf. Trechsel (2005), pp. 27–28.
- 94.
- 95.
Cf. Montecatini v Commission, Case C-235/92 P, 8.07.1999, ECLI:EU:C:1999:362, §§ 175–176; Groupe Danone v Commission, Case T-38/02, 25.10.2005, ECLI:EU:T:2005:367, §§ 215–216.
- 96.
Romana Tabacchi Srl v European Commission, Case T-11/06, 5.10.2011, ECLI:EU:T:2011:560, §§ 129.
- 97.
FRANSSEN Rørindustri A/S (C-189/02 P), Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH and Others (C-202/02 P), KE KELIT Kunststoffwerk GmbH (C-205/02 P), LR af 1998 A/S (C-206/02 P), Brugg Rohrsysteme GmbH (C-207/02 P), LR af 1998 (Deutschland) GmbH (C-208/02 P) and ABB Asea Brown Boveri Ltd (C-213/02 P) v Commission of the European Communities, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P, 28.06.2005, ECLI:EU:C:2005:408, § 202.
- 98.
Cf. Volkswagen v Commission, Case C-338/00 P, 18.09.2003, ECLI:EU:C:2003:473, §§ 96–97; Compagnie maritime belge v Commission, Case T-276/04, 1.07.2008, ECLI:EU:T:2008:237, § 66.
- 99.
- 100.
Article 23(5), Council Regulation (EC) No 1/2003 of 16.12.2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, which was already contained also in the previous version of the Regulation, see Article 15(4) Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty, of 6.02.1962.
- 101.
Cf., e.g., Shell v Commission, Case T-11/89, 10.03.1992, ECLI:EU:T:1992:33, §§ 39 and 349; Tetra Pak International SA v Commission of the European Communities, Case T-83/91, 6.10.1994, ECLI:EU:T:1994:246, § 235; Cimenteries Cbr and Others v Commission, Joined Cases T-25/95, T-26/95, T-30/95 TO T-32/95, T-34/95 TO T-39/9S, T-42/95 TO T-46/95, T-48/95, T-50/95 TO T-65/95, T-68/95 TO T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95, 15.03.2000, ECLI:EU:T:2000:77, § 718; HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG and Others v Commission, Case T-9/99, 20.03.2002, ECLI:EU:T:2002:70, § 390; Schindler Holding Ltd and others, Case T-138/07, 13.07.2011, ECLI:EU:T:2011:362, § 54; Bolloré v European Commission, Case T-372/10, 27.07.2012, ECLI:EU:T:2012:325, § 54; Coats Holdings Ltd v European Commission, Case T-439/07, 27.06.2012, ECLI:EU:T:2012:320, §§ 169 and 171; and, de facto, in Powszechny Zaklad Ubezpieczen na Zycie S.A., Case C-617/17, 3.04.2019, ECLI:EU:C:2019:283.
- 102.
- 103.
Criminal proceedings against Łukasz Marcin Bonda, 5.06.2012, C-489/10, ECLI:EU:C:2012:319, § 36–46; see also Opinion of Advocate General Kokott, in Case C-489/10, delivered on 15.12.2011, §§ 42–71.
- 104.
Judgement in Åklagaren v Hans Åkerberg Fransson, C-617/10 [GC], 26.02.2013, ECLI:EU:C:2013:280, §§ 35–37 (analysed below with regard to the scope of application of the Charter and to the extent of the ne bis in idem protection in the EU legal order, see Sect. 2.3.3).
- 105.
Criminal proceedings against Luca Menci, Case C-524/15, 20.03.2018, ECLI:EU:C:2018:197, §§ 26–33, cf. Galluccio (2018).
- 106.
Garlsson Real Estate SA and Others v Commissione Nazionale per le Società e la Borsa (Consob), Case C-537/16, 20.03.2018, ECLI:EU:C:2018:193, §§ 28–35; Enzo Di Puma v Commissione Nazionale per le Società e la Borsa (Consob) and Commissione Nazionale per le Società e la Borsa (Consob) v Antonio Zecca, Joined Cases C-596/16 and C-597/16, 20.03.2018, ECLI:EU:C:2018:192, § 38; cf. Galluccio (2018).
- 107.
Cf. Opinions of Advocate General Campos Sánchez-Bordona, delivered on 12.09. 2017, in case Menci (C-524/15), §§ 28–31 and note 20; in case Garlsson Real State SA (C-537/16), §§ 62–68; and in Joined cases Di Puma (C-596/16) and Zecca (C-597/16), §§ 58–63. See Simonato (2017).
- 108.
Bashir Mohamed Ali Mahdi, Case C-146/14 PPU, 5.06.2014, ECLI:EU:C:2014:1320, §§ 79 and case-law there cited.
- 109.
Cf. Menci, Case C-524/15, § 27; Garlsson Real Estate SA, Case C-537/16, § 29. This interpretation was also supported by Advocate General Campos Sánchez-Bordona, that called for a smoother application of the Engel case-law at national level, encouraging the Court to provide some additional criteria (Opinions cit., especially in Menci, §§ 110–119).
- 110.
Cf. Menci, Case C-524/15, § 31; Garlsson Real Estate SA, Case C-537/16, §§ 33–34.
- 111.
Cf. Menci, Case C-524/15, § 33; Garlsson Real Estate SA, Case C-537/16, § 35.
- 112.
European Parliament position, 1st reading or single reading, OJ [2002] C 72/236, 21.03.2002.
- 113.
See, among others, Bronckers and Vallery (2011), p. 542; Ehlermann (1994); Slater et al. (2008), pp. 7–8; Jones and Sufrin (2016), pp. 897–898 and literature mentioned there, reporting how “in the EU it had already been generally accepted that the Commission’s fining procedures were ‘criminal’ within Article 6 ECHR”; D’Ambrosio (2017), p. 1032.
- 114.
- 115.
Cf. Wils (2004), p. 209, according to which “it appears difficult to deny that the application of the criteria set out in the case law of the European Court of Human Rights leads to the conclusion that proceedings based on Regulation No 1/2003, leading to decisions in which the Commission finds violations of Articles 81 or 82 EC, orders their termination and imposes fines relate to “the determination of a criminal charge” within the meaning of Article 6 ECHR”; Veenbrink (2015), p. 131.
- 116.
See Advocate General Ruiz-Jarabo Colomer in the Cement cases (cf. also below, Sect. 2.3.3); Opinion of Adovcate General Sharpston, delivered on 10.02.2011, in Case C-272/09 P, KME Germany AG, KME France SAS and KME Italy SpA v European Commission, ECLI:EU:C:2011:63, §§ 60–67 and in particular § 64 “In the light of those criteria, I have little difficulty in concluding that the procedure whereby a fine is imposed for breach of the prohibition on price-fixing and markeT-sharing agreements in Article 81(1) EC falls under the ‘criminal head’ of Article 6 ECHR as progressively defined by the European Court of Human Rights”; Opinion of Advocate General Ruiz-Jarabo Colomer, delivered on 11.02.2003, in Case C-217/00 P, Buzzi Unicem v Commission, ECLI:EU:C:2003:83, § 29: “The procedure for finding infringements of Articles 81 EC and 82 EC is sanctionative by nature. As well as putting an end to anti-competitive practices, it seeks to punish the conduct which gave rise to them and confers on the Commission the power to impose financial penalties on those responsible. To that end, the Commission has wide powers of investigation and inquiry but, precisely because of that nature and because one and the same body is invested with the power to conduct investigations and the power to take decisions, the rights of defence of those subject to the procedure must be recognised without reservation and respected”; Opinion of Advocate General Léger, delivered on 3.02.1998, in Case C-185/95 P, Baustahlgewebe GmbH v Commission of the European Communities, ECLI:EU:C:1998:37, at 31 “It cannot be disputed—and the Commission does not dispute—that, in the light of the case-law of the European Court of Human Rights and the opinions of the European Commission of Human Rights, the present case involves a ‘criminal charge’”; Opinion of Advocate General Vesterdorf, delivered on 10.07.1991, in Case T-1–4 and 6–15/89, Rhône–Poulenc SA v Commission of the European Communities, ECLI:EU:T:1991:38, pp. 884–885 “In view of the fact—in my view confirmed to some extent by the judgment of the Court of Human Rights in the Öztürk case10—that the fines which may be imposed on undertakings pursuant to Article 15 of Regulation No 17/62 do in fact, notwithstanding what is stated in Article 15(4), have a criminal law character […]”.
- 117.
Such as Article 14(7) of the International Convenant on Civil and Political Rights of 19 December 1995 (United Nations, Treaty Series, vol. 999, p. 171); Article 20 of the Rome Statute establishing the International Criminal Court (UN Doc A/CONF 183/9). For an historical reconstruction of the origin of the principle see, e.g., Dissenting Opinion of Judge Pinto De Albuquerque in ECtHR, A and B v Norway, 15.11.2016, Applications nos. 24130/11 and 29758/11, §§ 3–15; see also Nascimbene (2018).
- 118.
Cf. Adler (2014), p. 475.
- 119.
- 120.
Cf. Adler (2014), p. 477.
- 121.
For the notion of multi-level systems and their relevance to this analysis cf. below Sect. 2.4.
- 122.
On the hybrid nature of EU law, see below Sect. 2.4.
- 123.
Cf. Article 10, Council Framework Decision 2009/948/JHA of 30.11.2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings.
- 124.
Cf. Article 12(2), Council Framework Decision 2009/948/JHA.
- 125.
Cf. Article 7(2), Council Decision 2009/426/JHA of 16.12.2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime. For an analysis of the issue see, e.g., Vervaele (2013a), p. 173; Id. (2017), pp. 180–183; Amalfitano (2017), pp. 1027–1028; Id. (2009), p. 1293 et seq.
- 126.
The principle is also provided, with little practical effect on US courts, by the American Convention on Human Rights (as interpreted by the Inter-American Court of Human Rights), cf. Article 8(4), American Convention on Human Rights: “An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause”.
- 127.
85 U.S. 163 (1873). In that case, even if the relevant statute only authorized one of two punishments (fine or imprisonment), the defendant was convicted with both. The decision was overruled by the Supreme Court. The caselaw was confirmed also over the years, see e.g., North Carolina v. Pearce, 395 U.S. 711, 716-18 (1969); and Whalen v. United States, 445 U.S. 684, 689 (1980) according to which, “If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers”.
- 128.
Cf., e.g., Böse (2017), p. 211 et seq.
- 129.
284 U.S. 299 (1932), in conformity with the Supreme Court of Massachusetts in Morey v Commonwealth, 108 Mass. 433 (1871).
- 130.
Contra, affirming that Blockburger represents an example that should be followed also by the European Court on Human Rights, see Trechsel (2005), p. 398.
- 131.
Cf., e.g., Amar (1997), p. 1819.
- 132.
As occurred in Garrett v. United States, 471 U.S. 773 (1985).
- 133.
Collateral estoppel is “A doctrine barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one” cf. Garner (2014), p. 318.
- 134.
Cf. Amar (1997), p. 1809.
- 135.
Adler (2014), pp. 451–483.
- 136.
Against a similar conclusion, in the European academic debate, e.g. authoritatively Cordero (2012), p. 1204 et seq.
- 137.
495 U.S. 508 (1990).
- 138.
509 U.S. 688 (1993), according to which: “The double-jeopardy clause’s protection attaches in non-summary criminal contempt prosecutions just as it does in other criminal prosecutions. In the contexts of both multiple punishments and successive prosecution, the double–jeopardy bar applies if the two offenses for which the defendant is punished or tried cannot survive the ‘same elements’ or ‘Blockburger’ test”.
- 139.
Amar (1997), pp. 1831–1835.
- 140.
Cf. Ashe v. Swenson, 397 U.S. 436, 453 (1970).
- 141.
114 S. Ct. 1937 (1994).
- 142.
Cf., e.g., Texas v. Cobb, 532 U.S. 162 (2001).
- 143.
For a complete list, see Klein (2000), notes 44–49.
- 144.
32 U.S. (7 Pet.) 243 (1833). See also Fox v. Ohio, 46 U.S. (5 How.) 410 (1847).
- 145.
Benton v. Maryland, 395 U.S. 784 (1969).
- 146.
Moore v. Illinois, 55 U.S. (14 How.) 13 (1852), at 20.
- 147.
Heath v. Alabama, 474 U.S. 82, 88 (1985) (citations omitted). For an analysis of the dual–sovereignty doctrine, see Amar and Marcus (1995), proposing to abolish the dual sovereignty doctrine except for offenses “committed by state officials and implicating the federal government’s unique role under Section 5 of the Fourteenth Amendment”; cf. also Dawson (1992); Hellmann (1994).
- 148.
For a reference on the impact of the doctrine, cf., e.g., Adler (2014), p. 456, note 27 where he reports the following cases “Heath v. Alabama, 474 U.S. 82 (1985) (Alabama obtained a conviction and the death penalty after the defendant pleaded guilty to avoid the death penalty in Georgia); United States v. Wheeler, 435 U.S. 313 (1978) (a defendant pleaded guilty in a tribal court to disorderly conduct and contributing to delinquency of a minor, only to be charged by the federal government for statutory rape); Abbate v. United States, 359 U.S. 187 (1959) (defendants pleaded guilty in Illinois to conspiring to destroy property and were subsequently charged and convicted by the federal government for conspiring to destroy a telephone system); United States v. Lanza, 260 U.S. 377 (1922) (defendants were convicted of and punished for violating state prohibition laws in Washington and were then charged for the same offense by the federal government); United States v. Ng, 699 F.2d 63 (2d Cir. 1983) (defendants pleaded guilty to state firearms charges in Massachusetts and were then convicted of federal firearms charges); United States v. Grimes, 641 F.2d 96 (3d Cir. 1981) (Grimes was found guilty of armed robbery by the federal government and was sentenced to twenty years in prison; he then pleaded guilty to state charges for the same offense and received an additional twenty-two to twenty-four year prison sentence, to be served consecutively); Evans v. State, 481 A.2d 1135 (Md. 1984) (defendants were convicted in federal court of conspiracy to violate victims’ civil rights and were then indicted in state court for murder and conspiracy to commit murder for the same offense); Commonwealth v. Mills, 286 A.2d 638 (Pa. 1971) (defendants pleaded guilty to federal bank robbery charges and were then convicted under a similar state statute in Pennsylvania)”. See also Henning (2012).
- 149.
Adler (2014), p. 483. See also pp. 450–451, where the author reports how scholars either opted for the doctrine to be totally abolished (see, e.g., Cranman (2000); Braun (1992)); replaced (see, e.g., Camina (1981), proposing a system that would avoid successive state-federal prosecutions by allowing the federal government to intervene and selectively preempt a state prosecution); or modified (see, e.g., Amar and Marcus (1995), proposing to abolish the dual sovereignty doctrine except for offenses committed by state officials and implicating the federal government’s unique role under Section 5 of the Fourteenth Amendment).
- 150.
See Crist v. Bretz, 437 U.S. 28, 32–38 (1978). According to early American doctrine, the Clause attached once the jury renders its verdict, see Story (1991), pp. 659–660.
- 151.
See Amar (1997), p. 1808 et seq.
- 152.
Cf. United States v. Jerry, 487 F.2d 600, 606 (3d Cir. 1973); United States v. Vaughan, 715 F.2d 1373, 1378 n.2 (9th Cir. 1983); United States v. Patterson, 381 F.3d 859, 864 (9th Cir. 2004) (citing Vaughan, 715 F.2d at 1378 n.2); see also Hammond (2005), pp. 467–468.
- 153.
Cf. Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012), as reported by Chinn (2013). The Court recognized that 97% of convictions in the federal system and 94% of convictions in the state system result from guilty pleas. As it has been highlighted, the high rate of guilty pleas signifies widespread judicial acceptance of the assumption “that the screening processes operated by police and prosecutors are reliable indicators of probable guilt”, cf. Packer (1964), p. 11.
- 154.
Full discretion is granted for agreements to move for dismissal or not to bring other charges (Rule 11(c)(1)(A)) and agreements to “recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply” (Rule 11(c)(1)(B)). The only type of plea which binds the court once it is accepted is that in which the prosecution and defendant agree on “a specific sentence or sentencing range… or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply” (Rule 11(c)(1)(C)), cf. also Chinn (2013), pp. 300–301.
- 155.
Morris v. Reynolds, 264 F.3d 38 (2d Cir. 2001), at 49.
- 156.
Ohio v. Johnson, 467 U.S. 493 (1984).
- 157.
Ohio v. Johnson, p. 502.
- 158.
Cf. Chinn (2013), p. 302.
- 159.
United States v. Soto, 825 F.2d 616, 620 (1st Cir. 1987), pp. 619–620. In this case, Mr. Soto, a postal service inspector, pleaded guilty to a misdemeanor charge of obstructing the passage of correspondence, but professed his innocence. Ex officio, the judge decided to dismiss the charges and the plea. About 4 months later, Mr. Soto was indicted by a grand jury on two felony charges related to the previous allegations: theft of mail matter and obstruction of correspondence; his motion to dismiss the charges was denied and he was he was found guilty by the jury.
- 160.
- 161.
Helvering v. Mitchell, 303 US 391 (1938). See also United States v Ward, 448 US 242, 249–250 (1984); United States v Halper, 490 US 435 (1989); Hudson v United States, 552 US 93, 99 (1997). For a brief but complete recollection of the case-law evolution of the USSC on the matter, see Böse (2017), pp. 212–215.
- 162.
For a complete overview on forfeiture in the US federal legal system, see U.S. Department of Justice, Criminal Division, Asset Forfeiture and Money Laundering Section, 2015. https://www.justice.gov/sites/default/files/criminal-afmls/legacy/2015/04/24/statutes2015.pdf. Accessed 18 July 2018. In the EU, a parallel to civil forfeiture might be drawn to a certain extent with the Italian system of misure di prevenzione applicable in the field of organised crime, and established by Legislative Decree no. 159 of 6.09.2011, which results highly critical in light of the ECtHR case-law, before which several cases have been presented.
- 163.
As reported by Oliver (2014).
- 164.
- 165.
Cf. Oliver (2014).
- 166.
Giving raise to what has been defined by the Institute for Justice (IJ), a “policing for profit”, as reported in The Economist explains, What civil-asset forfeiture means, April 15th 2014. https://www.economist.com/the-economisT-explains/2014/04/14/whaT-civil-asseT-forfeiture-means. Accessed 18 July 2018.
- 167.
Austin v. United States, 509 U.S. 602 (1993).
- 168.
116 S. Ct. 2135, 2142–41 (1996).
- 169.
Cf. Amar (1997), p. 1836: “and so the deepest lesson here is that when the Supreme Court overreads a clause in a prodefendant way, it often sets in motion a chain of events that can result in a rather drastic curtailment of citizens’ rights somewhere else”.
- 170.
See, e.g., In re John P., 311 Md. 700, 706, 537 A.2d 263, 266 (1988); In re Blessen H., 392 Md. 684, 706, 898 A.2d 980, 993–94 (2006); even if the possibility to recognize a violation of the double jeopardy clause in case of civil penalty has been admitted exceptionally in United States v Halper, 490 U.S. 435 (1989).
- 171.
- 172.
- 173.
Cf., among others, Franz Fischer v Austria, 29.05.2001, Application no. 37950/97, §§ 25–32; Zolotukhin v Russia, 10.02.2009, Application no. 14939/03 [GC], §110. Although the principle does not prevent from the re-opening of the case if evidence of new or newly discovered facts emerge; on the ambiguity of Article 4 on this issue, see, e.g., Bleichrodt (2006), p. 983; Harris et al. (2014), pp. 971 and 973.
- 174.
- 175.
The identity of the notion of “criminal matter” under Articles 6 and 4, Protocol No. 7 ECHR had already been underlined by the Court in Göktan v France, 2.07.2002, Application no. 33402/96, § 48, then restated in the renown cases Zolotukhin v Russia, § 53 and A and B v Norway, § 107, discussed below (although in Knut Haarvig v. Norwey, 11.12.2007, Application no. 11187/05, the Court had added further requirements, then overcome with Zolotukhin, cf. Allegrezza (2012), pp. 897–899). See also Bleichrodt (2006), p. 980; see Trechsel (2005), p. 387; Harris et al. (2014), p. 970; Böse (2017), p. 215 et seq.
- 176.
- 177.
Cf. http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/117/signatures?p_auth=MdUPhQMD. Accessed 18 July 2018.
- 178.
Cf. Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, Final Report to the CDDH, Strasbourg, April 5th 2013. https://www.echr.coe.int/Documents/UE_Report_CDDH_ENG.pdf. Accessed 18 July 2018. Protocols 1 and 6 to the Convention concern, respectively, the right to peaceful enjoyment of property, the right to education, and the right to free elections by secret ballot (ETS No. 009); and the abolition of death penalty (ETS No. 114).
- 179.
Cf., e.g., Nikitin v Russia, 20.07.2004, Application no. 50178/99, §§ 35–36. Cf. Trechsel (2005), pp. 389–390, which has repeatedly identified the concept in the moment in which a decision 933 acquires the force of res judicata according to the applicable national law.
- 180.
Cf., e.g., Oliveira v Switzerland, 30.07.1998, Application no. 25711/94, § 26.
- 181.
Franz Fischer, §§ 25–30; see also Sailer v Austria, 6.06.2002, Application no. 38237/97, § 26. Highlighting the ambiguous jurisprudence of the Court on this criterion, Bleichrodt (2006), p. 982.
- 182.
Gradinger v Austria, 23.10.1995, Application no. 15963/90, § 55. Contra, see Trechsel (2005), p. 393, according to whom “it is not for the Court in Strasbourg to interfere with the way in which these matters are dealt with in domestic law”.
- 183.
- 184.
Zolotukhin v Russia, § 84.
- 185.
Also Germany, that signed the Protocol, but did not ratify it, lodged nonetheless the same reservation. For a more detailed analysis, see Tomkin (2014), p. 1373 et seq.
- 186.
Cf. Gradinger, § 51; highlighting (before A and B) the restrictive interpretation of the Court with regard to the definition of bis, see Allegrezza (2012), p. 899.
- 187.
Grande Stevens and others v Italy, 4.03.2014, Application no. 18640/10, §§ 204–212.
- 188.
There are still no cases concerning the German and Portuguese reservation; regarding France, the declaration was partially acknowledged in Göktan v France, 2.07.2002, Application no. 33402/96, § 51, and not declared invalid—but in that case the reservation was not an argument of the proceeding, as it was not raised by the Government, so it was not really examined by the Court.
- 189.
Cf. A and B v Norway, 15.11.2016, Applications nos. 24130/11 and 29758/11, §§ 121–134.
- 190.
Zolotukhin v Russia, §§ 52–57.
- 191.
Zolotukhin v Russia, § 110 et seq.
- 192.
- 193.
Cf. Article 14(1), Directive 2003/6/EC of the European Parliament and of the Council of 28.01.2003 on insider dealing and market manipulation (market abuse), now substituted by Directive 2014/57/UE, cit., which at Recital (23) takes into account (but only in broad and general terms) the need to comply with the principle of ne bis in idem. On the changes brought by the new Market Abuse package under this perspective, see D’Ambrosio (2017), p. 1034.
- 194.
In the aforementioned Grande Stevens case, the Court, recognized the substantial criminal nature of the administrative sanction against market abuse, found (among others) a violation of the principle of ne bis in idem for the carrying out of a criminal proceeding for the same conduct after the first had already been imposed by Consob. On this very sensitive issue for the Italian legal system see, among others, Flick (2014a, b); Flick and Napoleoni (2015); Viganò (2016a); Labianca (2017), p. 115 et seq.; Zagrebelsky (2014), p. 1196 et seq.; D’Ambrosio (2017), p. 1033. In the aftermath of Grande Stevens, two questions of constitutionality have been raised before the Italian Constitutional Court, again with regard to market abuse and ne bis in idem, which were however declared inadmissible with decision of 12.05.2016, no. 102 (cf., e.g., Viganò 2016a; Dova 2015).
Whether this situation continues to be critical in light of Article 4, Protocol no. 7 ECHR appears nowadays downsized against the “overruling” of the ECtHR on the matter of ne bis in idem carried out by the notorious 2016 decision A and B v Norway (cf. C. Cost., decision of 2.03.2018, no. 43 on tax matter; Ufficio del Massimario Penale, Relazione di orientamento. Ne bis in idem. Percorsi interpretativi e recenti approdi della giurisprudenza nazionale ed europea, Rel. n. 26/17, Roma, 21 marzo 2017), partially followed also by the Court of Justice in the aforementioned 2018 decisions Menci, Garlsson, and Di Puma-Zecca, cf. above Sect. 2.3 (on the definition of criminal matter) and below Sect. 2.3.3 (on the application of ne bis in idem). A third question of constitutionality, concerning the scope of the right to remain silent in market abuse proceedings, was considered relevant by the Constitutional Court, that asked the CJEU for a preliminary ruling (order no. 117 of 10.05.2019, cf. Ruggeri (2019)).
- 195.
For the impact of this case-law to banking supervision, see below Sect. 6.3.7.
- 196.
Although relevant in the specific case, this is a rather recurring event in the case-law of the ECtHR. In A and B, third-party comments were received from Bulgaria, Czech Republic, Greece, France, the Republic of Moldova and Switzerland.
- 197.
- 198.
Cf., e.g., Nilsson v. Sweden, 13.12.2005, Application no. 73661/01; Boman v. Finland, 17.02.2015, Application no. 41604/11, § 41; Nykänen v. Finland, 20.05.2014, Application no. 11828/11; Lucky Dev v. Sweden, 27.11.2014, Application no. 7356/2010.
- 199.
A and B v Norway, § 132.
- 200.
Cf. A and B v Norway, § 107; for the Government’s position, see § 67.
- 201.
A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque, § 46.
- 202.
- 203.
Dissenting Opinion of Judge Pinto De Albuquerque, § 54.
- 204.
Cf. Nodet v France, Application no. 4732/14, 6.06.2019, §§ 51–53, on which see Scoletta (2019).
- 205.
Cf. Nodet v France, § 48. It shall be noticed, however, that in that case the evaluation on the substantial identity of purposes had been already made at the national level, by the French Conseil constitutionnel. The assessment of the ECtHR on this profile, therefore, essentially follows the finding at domestic level.
- 206.
- 207.
A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque, cit., §§ 49 and 79.
- 208.
Cf. Viganò (2017), p. 394.
- 209.
- 210.
Cf. Bjarni Armannsson v Iceland, 16.04.2019, Application no.72098/14, §§ 55–57.
- 211.
Nodet v France, § 49.
- 212.
Cf. Council Framework Decisions 2002/584/JHA of 13.06.2002 on the European arrest warrant and the surrender procedures between Member States. For a critical analysis on this issue see, among others, Panzavolta (2009), p. 179; Bulnes (2008), p. 289; Marletta (2013), p. 47 et seq.; JUSTICE, European Arrest Warrant. Ensuring an Effective Defence, 2012, p. 22. https://2bquk8cdew6192tsu41lay8T-wpengine.netdna-ssl.com/wp-content/uploads/2015/01/JUSTICE-European-ArresT-Warrants.pdf. Accessed 18 July 2018; Fair Trials International, The European Arrest Warrant seven years on-the case for reform, May 2011. https://www.fairtrials.org/documents/FTI_Report_EAW_May_2011.pdf. Accessed 18 July 2018.
- 213.
- 214.
- 215.
A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque, § 64 “Between the Charybdis of the risk of contradictory findings in administrative and criminal proceedings owing to different evidentiary standards (deux poids, deux mesures) and the Scylla of the manipulation of the administrative evidence for criminal purposes, the defendant is in any event placed in an unfair position in the Norwegian double-track system”.
- 216.
The Schengen Acquis-Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, reproducing the provisions of the 1987 Convention on Double Jeopardy (AT, BE, DK, FR, DE, IT, EI, NL and PT). On the integration of the CISA into EU law under this perspective, see Tomkin (2014), p. 1376 et seq.
- 217.
The principle is included as a ground for refusal in Article 4(2) EAW; Article 9(1)(c) Council Framework Decision 2008/909/JHA of 27.11.2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union; Article 11(1)(d) of the EIO Directive. Ne bis in idem is also mentioned in several EU secondary legislation (e.g. 2014 Market Abuse Directive), and recognized by multiple national Constitutional or legislative provisions; the panorama however is so diverse among Member States that its analysis could represent the subject of a separate analysis, which necessarily falls out of the scope of this work. Cf. Vervaele (2005), Galantini (2011).
- 218.
- 219.
Cf. Article 55 CISA, “1. A Contracting Party may, when ratifying, accepting or approving this Convention, declare that it is not bound by Article 54 in one or more of the following cases:
(a) where the acts to which the foreign judgment relates took place in whole or in part in its own territory; in the latter case, however, this exception shall not apply if the acts took place in part in the territory of the Contracting Party where the judgment was delivered; (b) where the acts to which the foreign judgment relates constitute an offence against national security or other equally essential interests of that Contracting Party; (c) where the acts to which the foreign judgment relates were committed by officials of that Contracting Party in violation of the duties of their office. 2. A Contracting Party which has made a declaration regarding the exception referred to in paragraph 1(b) shall specify the categories of offences to which this exception may apply. 3. A Contracting Party may at any time withdraw a declaration relating to one or more of the exceptions referred to in paragraph 1. 4. The exceptions which were the subject of a declaration under paragraph 1 shall not apply where the Contracting Party concerned has, in connection with the same acts, requested the other Contracting Party to bring the prosecution or has granted extradition of the person concerned”.
- 220.
BGBl. 1994 II, p. 631.
- 221.
BGBl. III of 27.05.1997, p. 2048.
- 222.
Cf., e.g., Vervaele (2013b), p. 228 (according to whom the reservations are incompatible with the mutual trust that should be existing among Member States); Weyembergh (2013), p. 556 (according to whom maintaining the reservations in force would create an asymmetric context, as not all the Member States did lodged declarations); see also Jagla (2007), p. 93 et seq. On a more neutral and open position, Amalfitano (2012), p. 1620 et seq.
- 223.
Currently indicated in Protocol 19 TFEU.
- 224.
Cf. Article 4(7) EAW Council Framework Decisions; Article 11(1)(e) EIO Directive; Article 9(2) Council Framework Decision 2008/909/JHA.
- 225.
Cf. Amalfitano (2017), p. 1027.
- 226.
The issue was also raised in Criminal proceedings against Vladimir Turanský, Case C-491/07, 22.12.2008, ECLI:EU:C:2008:768, § 29, where the Austrian reservation seems implicitly to had been taken into account by the Court, although just to exclude its applicability.
- 227.
The Court of Justice, however, did not explicitly deal with this issue in its following decision, cf. Criminal proceedings against Piotr Kossowski, case C-486/14, Opinion of Advocate General Bot, delivered on 15.12.2015, §§ 46 to 68, according to which “the reservation did not become obsolete simply because of the integration of the Schengen acquis into EU law, nevertheless it cannot work against it […] It is beyond doubt that the effect of the reservation provided for by Article 55(1)(a) of the CISA is to deprive the ne bis in idem principle of its content. Having regard to the considerations referred to above in relation to the link between this principle and that of mutual recognition and to the fundamental importance of the latter principle for the construction of the area of freedom, security and justice, this consideration alone is sufficient to conclude that the reservation should be declared invalid. An exception could only be made to this conclusion if it were justified by the need to give the reservation useful effect in favour of a superior interest which would not hinder the development of the area of freedom, security and justice. Accordingly, I shall consider, from this perspective and on the basis of the German Government’s argument, the possibility that the reservation may be useful or necessary […] It seems to me to follow from the foregoing that there is in fact no longer any necessity for the reservation provided for by Article 55(1)(a) of the CISA, either in the present case or any other. Since the Court’s case-law and the Charter make it possible to ensure that regard is had to differences of substance between offences, permitting a Member State to block the operation of the ne bis in idem principle in different circumstances would make it an empty principle, and would cast doubt over the system which forms the basis of the area of freedom, security and justice. Having regard to all the foregoing considerations, I am of the opinion that the reservation provided for by Article 55(1)(a) of the CISA does not respect the essence of the ne bis in idem principle as expressed in Article 50 of the Charter, and must therefore be declared invalid”, cf. also Marletta (2017), pp. 108–115.
- 228.
Cf. Article 2(1) Protocol No. 2, Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts–Final Act, OJ C 340, 10.11.1997, p. 115: “From the date of entry into force of the Treaty of Amsterdam, the Schengen acquis, including the decisions of the Executive Committee established by the Schengen agreements which have been adopted before this date, shall immediately apply to the thirteen Member States referred to in Article 1, without prejudice to the provisions of paragraph 2 of this Article. From the same date, the Council will substitute itself for the said Executive Committee.
The Council, acting by the unanimity of its Members referred to in Article 1, shall take any measure necessary for the implementation of this paragraph. The Council, acting unanimously, shall determine, in conformity with the relevant provisions of the Treaties, the legal basis for each of the provisions or decisions which constitute the Schengen acquis […]”.
- 229.
Council Decision 1999/435/EC of 20.05.1999 concerning the definition of the Schengen acquis for the purpose of determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the acquis, which identified the legal basis for Articles 54–58 CISA in Articles 31 and 34 Treaty of the EU, now repealed by Articles 82, 82 and 85 TFEU.
- 230.
According to the case-law of the CJEU, also the suspension of the execution of the penalty is equalized to the execution itself, cf. Criminal proceedings against Jürgen Kretzinger, Case C-288/05, 18.07.2007, ECLI:EU:C:2007:441, §§ 44 and 52.
- 231.
Cf. Amalfitano (2017), pp. 1023–1024.
- 232.
- 233.
Even if in Criminal proceedings against M., C-398/12, 6.02.2014, ECLI:EU:C:2014:65, the Court affirmed rather the opposite approach, that is “since the right not to be tried or punished twice in criminal proceedings for the same criminal offence is also set out in Article 50 of the Charter, Article 54 of the CISA must be interpreted in the light of that provision”. Cf. also Draft Charter of Fundamental Rights of the European Union. Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4487/00 CONVENT 50, Brussels, 11.10.2000, sub Article 50, p. 45. http://www.europarl.europa.eu/charter/pdf/04473_en.pdf. Accessed 18 July 2018, according to which “In accordance with Article 50, the “non bis in idem” principle applies not only within the jurisdiction of one State but also between the jurisdictions of several Member States. That corresponds to the acquis in Union law; see Articles 54 to 58 of the Schengen Convention, Article 7 of the Convention on the Protection of the European Communities’ Financial Interests and Article 10 of the Convention on the fight against corruption. The very limited exceptions in those Conventions permitting the Member States to derogate from the “non bis in idem” principle are covered by the horizontal clause in Article 52(1) of the Charter concerning limitations. As regards the situations referred to by Article 4 of Protocol No 7, namely the application of the principle within the same Member State, the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR”.
- 234.
Spasic, §§ 55–64.
- 235.
Idem, §§ 59. Briefly recollecting the arguments of the Court, also Amalfitano (2017), p. 1024.
- 236.
- 237.
Given the substantial identity between the ECtHR and the CJEU interpretation of what is a “final” decision, as long as the decision considered the merit of the case, cf., e.g., Criminal proceedings against Hüseyin Gözütok (C-187/01) and Klaus Brügge (C-385/01), 11.02.2003, ECLI:EU:C:2003:87, §§ 25–31; Turanský, Case C-491/07, cit., §§ 35–36; Criminal proceedings against Filomeno Mario Miraglia, Case C-469/03, 10.03.2005, ECLI:EU:C:2005:156, § 35; Criminal proceedings against Giuseppe Francesco Gasparini and Others, Case C-467/04, 28 September 2006, ECLI:EU:C:2006:610, §§ 22–33; Klaus Bourquain, Case C-297/07, 11.12.2008, ECLI:EU:C:2008:708, §§ 34–37. On this issue see, for all, Amalfitano (2017), pp. 1021–1022; D’Ambrosio (2017), p. 1041; Tomkin (2014), p. 1391 et seq.
- 238.
- 239.
Criminal proceedings against Leopold Henri Van Esbroeck, C-436/04, 9.03.2006, ECLI:EU:C:2006:165, §§27, 35 and 36; Gasparini, Case C-467/04, cit., §§ 53–56; Van Straaten, cit., §§ 40–53; Kretzinger, cit., §§ 28–36; Criminal proceedings against Norma Kraaijenbrink, C-367/05, 18.07.2007, ECLI:EU:C:2007:444, §§ 23–29. With regard to the EAW, see Gaetano Mantello, Case C-261/09, 16.11.2010, ECLI:EU:C:2010:683, §§ 32–51.
- 240.
Loayza-Tamayo v. Peru, 17.09.1997, Series C No. 33, § 66: “This principle is intended to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause. Unlike the formula used by other international human rights protection instruments (for example, the United Nations International Covenant on Civil and Political Rights, Article 14(7), which refers to the same ‘crime’), the American Convention uses the expression ‘the same cause’, which is a much broader term in the victim’s favour”.
- 241.
Cf., e.g., Gaetano Mantello, C-261/09, § 39.
- 242.
- 243.
Menci, Case C-524/15, § 36; Garlsson Real Estate SA, Case C-537/16, § 38.
- 244.
Menci, Case C-524/15, § 38; Garlsson Real Estate SA, Case C-537/16, § 40.
- 245.
Opinion of Advocate General Cruz Villalón, in Case C-617/10, delivered on 12.06.2012, §§ 81–87. Highlighting arguments contrary to this reconstruction Böse (2017), p. 220.
- 246.
Joined cases Tele2 Sverige AB (C-203/15) v PosT- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (C-698/15), 21.12.2016, ECLI:EU:C:2016:970, § 127 and case-law there cited, which will be further analysed with regard to real-time monitoring of banking data in Sect. 8.2.
- 247.
Garlsson Real Estate SA, Case C-537/16, § 24; Menci, Case C-524/15, § 24.
- 248.
Garlsson Real Estate SA, Case C-537/16, § 26; Menci, Case C-524/15, § 24; Criminal proceedings against Massimo Orsi and Luciano Baldetti, Joined Cases C-217/15 and C-350/15, 5.04.2017, ECLI:EU:C:2017:264, § 15 and case-law there cited.
- 249.
Cf., among others, Joined cases Aalborg Portland A/S (C-204/00 P), Irish Cement Ltd (C-205/00 P), Ciments français SA (C-211/00 P), Italcementi-Fabbriche Riunite Cemento SpA (C-213/00 P), Buzzi Unicem SpA (C-217/00 P) and Cementir-Cementerie del Tirreno SpA (C-219/00 P) v Commission of the European Communities, 7.01.2004, ECLI:EU:C:2004:6, §§ 338–340; Toshiba Corporation and Others v Úřad pro ochranu hospodářské soutěže, C-17/10, 14.02.2012, ECLI:EU:C:2012:72, § 97. On the CJEU exceptionalism in competition law cf. also Van Bockel (2010), p. 170 et seq; Di Federico (2011); Amalfitano (2017), p. 1019; Tomkin (2014), p. 1399.
- 250.
Along this line, see Amalfitano (2017), p. 1020. These arguments, together with the need to ensure a uniform approach to the principle at the EU level, brought the Court to (at least implicitly) revise its case-law in competition law in the recent case Powszechny Zaklad Ubezpieczen na Zycie S.A., C-617/17, 3.04.2019, ECLI:EU:C:2019:283, § 32.
- 251.
Besides for the applicability of the conditions of Article 54 CISA to the definition of the principle established in the Charter, previously discussed.
- 252.
- 253.
Fransson, Case C-617/10, § 34.
- 254.
Fransson, Case C-617/10, § 36.
- 255.
See, for all, Tomkin (2014), pp. 1387–1388; 1385; 1391 et seq. and 1405 et seq.
- 256.
Garlsson Real Estate SA, Case C-537/16, §§ 64–68 and case-law there mentioned; Fransson, Case C-617/10, § 45.
- 257.
Garlsson Real Estate SA, Case C-537/16, §§ 42–43; Menci, Case C-524/15, §§ 41–42; Di Puma–Zecca, Joined Cases C-596/16 and C-597/16, § 41, as already affirmed in Spasic, Case C-129/14 PPU, §§ 55–56.
- 258.
Garlsson Real Estate SA, Case C-537/16, §§ 44 and 46; Di Puma-Zecca, Joined Cases C-596/16 and C-597/16, § 42; Menci, Case C-524/15, § 44. On the European interests in VAT collection, long disputed between EU institutions and Member States, but now included among the PIF crimes (if particularly serious) see, if you please, Lasagni (2016), p. 341 et seq.
- 259.
Garlsson Real Estate SA, Case C-537/16, § 45; Menci, Case C-524/15, § 43.
- 260.
Cf. above Sect. 2.3.2.
- 261.
Garlsson Real Estate SA, Case C-537/16, § 48; Menci, Case C-524/15, § 46.
- 262.
Garlsson Real Estate SA, Case C-537/16, §§ 46–47; Menci, Case C-524/15, §§ 44–46.
- 263.
Garlsson Real Estate SA, Case C-537/16, § 49; Menci, Case C-524/15, § 47.
- 264.
Garlsson Real Estate SA, Case C-537/16, §§ 51–63; Menci, Case C-524/15, §§ 49–64.
- 265.
See above, Sect. 2.3.
- 266.
Menci, Case C-524/15, § 59.
- 267.
As provided for in Article 187i of Legislative Decree No 58 of 24 February 1998, consolidating all provisions in the field of financial intermediation (the so-called TUF); cf. Garlsson Real Estate SA, Case C-537/16, § 57.
- 268.
Menci, Case C-524/15, § 56.
- 269.
Menci, Case C-524/15, §§ 54–56.
- 270.
See above note 195.
- 271.
Garlsson Real Estate SA, Case C-537/16, §§ 58-59-60.
- 272.
Di Puma-Zecca, Joined Cases C-596/16 and C-597/16, §§ 43–44.
- 273.
Cf. above Sect. 2.3.2.
- 274.
Cf. Opinion of Advocate General Campos Sánchez-Bordona, delivered on 12.09.2017, in case Menci (C-524/15), §§ 55–56.
- 275.
Besides for what affirmed by the Advocate General Wahl in C-617/17 delivered on 29.11.2018, ECLI:EU:C:2018:976, § 22.
- 276.
Id., §§ 60; 74–77; cf. also Galluccio (2018).
- 277.
Menci, Case C-524/15, §§ 60–62 and in particular, § 62.
- 278.
Cf. above Sect. 2.3.1.
- 279.
Garlsson Real Estate SA, Case C-537/16, § 57.
- 280.
Id., § 62.
- 281.
Unless that in intended at certifying a different notion of the ne bis in idem principle in its domestic and transnational dimensions.
- 282.
The applicability of the Charter specifically towards legal entities was underlined by the Court of Justice also in cases concerning banks, such as Bank Saderat Iran v Council, Case T-494/10, 5.02.2013, ECLI:EU:T:2013:59, §§ 33–44.
- 283.
- 284.
Cf. Opinion of Advocate General Kokott, in Case C-489/10, delivered on 15.12.2011, §§ 13–20; this interpretation had already been expressed in Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft, Case 5/88, 13.07.1989, ECLI:EU:C:1989:321; Elliniki Radiophonia Tiléorassi (ERT) AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others, Case C-260/89, 18.06.1991, ECLI:EU:C:1991:254; Daniele Annibaldi v Sindaco del Comune di Guidonia and Presidente Regione Lazio, Case C-309/96, 18.12.1997, ECLI:EU:C:1997:631. More recently, see Fransson, cit., § 21 “Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter”. Affirming instead that the assessment shall be made exclusively in relation to EU provisions was J. McB v L.E., Case C-400/10 PPU, 5.10.2010, ECLI:EU:C:2010:582, § 51–53. For a recollection of the criminal law matters falling under the scope of Article 50 CFREU, see Tomkin (2014), pp. 1386–1387.
- 285.
Joined cases N.S. (C-411/10) v Secretary of State for the Home Department and M. E. and Others (C-493/10) v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, 21.12.2011, ECLI:EU:C:2011:865, § 68; on the point see, for all, Ward (2017), pp. 1437–1439. Specific limitations to the application of the Charter, and above all to the possibility of its provisions to be judicially cognizable by the Court of Justice, are in place for UK and PL (while CZ is on the process to join the Protocol), due to Article 1(1) of Protocol No. 30 TFEU. This provision however was not considered by the ECJ as justifying and exemption for such States from the obligation to comply with the Charter, at least with regard to the rights and principles that are not part of Title IV of the Charter (economic, social and cultural rights), cf. N. S., Joined Cases C-411/10 and 493/10, § 50.
- 286.
Cf., e.g., Vervaele (2014), p. 192.
- 287.
Concerning the primacy of EU law in these contexts, also when the rights provided for by EU law provided for a lower standard of protection than that established at national level, see famously Stefano Melloni v Ministerio Fiscal, Case C-399/11, 26.02.2013, ECLI:EU:C:2013:107.
- 288.
The issue had actually been already examined by the Court in Murat Dereci and others v Bundesministerium für Inneres, Case C-256/11, 15.11.2011, ECLI:EU:C:2011:734, § 72.
- 289.
Fransson, Case C-617/10, § 29; cf. Sarmiento (2013), pp. 1294–1296; Ward (2017), pp. 1433–1437. Different criterion was instead adopted in the Opinion of Advocate General Cruz Villalón, in Case C-617/10, delivered on 12.06.2012, according to which judicial review should be carried out at national level, while the exceptional cases where the CJEU should be competent shall be based on a “reference to a specific interest of the Union in ensuring that that exercise of public authority accords with the interpretation of the fundamental rights by the Union. The mere fact that such an exercise of public authority has its ultimate origin in Union law is not of itself sufficient for a finding that there is a situation involving the ‘implementation’ of Union law” (§ 40).
- 290.
Sarmiento (2013), p. 1295.
- 291.
Robert Pfleger and others, Case C-390/12, 30.04.2014, ECLI:EU:C:2014:281, §§ 30–37, and in particularly § 36. In that case, the legislation at stake was acting within the area of games of chance, which is not harmonized at the EU level; nonetheless, the Court considered that “where it is apparent that national legislation is such as to obstruct the exercise of one or more fundamental freedoms guaranteed by the Treaty, it may benefit from the exceptions provided for by EU law in order to justify that fact only in so far as that complies with the fundamental rights enforced by the Court. That obligation to comply with fundamental rights manifestly comes within the scope of EU law and, consequently, within that of the Charter”; see also Fransson, Case C-617/10, § 19, and Lenaertes (2011), p. 88; Ward (2017), pp. 1428–1429.
- 292.
Cf. Cruciano Siragusa v Regione Sicilia, Case C-206/13, 6.03.2014, EU:C:2014:126, §§ 16–36 (concerning environmental restrictions); Sindicato dos Bancários do Norte and Others v BPN, Order of the Court C-128/12, 7.03.2013, EU:C:2013:149, §§ 8–14 (concerning salary treatment); Criminal proceedings against Magatte Gueye (C-483/09) and Valentín Salmerón Sánchez (C-1/10), 15.09.2011, ECLI:EU:C:2011:583, § 69 (on the interest of victims), where the Court declared it was not competent as there was no “implementation of EU law”.
- 293.
Cf. Joined cases Tele2 Sverige AB (C-203/15) and Watson (C-698/15), §§ 65–81, for the implications of this decision in real-time monitoring of personal (banking) data, cf. also Chap. 8.
- 294.
Cf. Judgment in Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others, 8.04.2014, C-293/12, ECLI:EU:C:2014:238, in which the Court declared invalid Directive 2006/24/EC of 15.03.2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC; for the implications of this decision in the context of real-time monitoring of personal (banking) data, cf. also Chap. 8.
- 295.
Directive 2002/58/EC of 12.07.2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.
- 296.
- 297.
Cf. Criminal proceedings against Emil Milev, C-439/16 PPU, 27.10.2016, ECLI:EU:C:2016:818; Criminal proceedings against Gianluca Moro, C-646/17, 13.06.2019, ECLI:EU:C:2019:489.
- 298.
DEB Deutsche Energiehandels– und Beratungsgesellschaft mbH v Bundesrepublik Deutschland, C-279/09, 22.12.2010, ECLI:EU:C:2010:811.
- 299.
For the Court of Justice see, e.g., Commission of the European Communities v SGL Carbon AG, Case C-301/04 P, 29.06.2006, ECLI:EU:C:2006:432, § 406; Mannesmannröhren-Werke AG v Commission of the European Communities, Case T-112/98, 20.02.2001, ECLI:EU:T:2001:61, §§ 36–77; Orkem v Commission of the European Communities, Case C-374/87, 18.10.1989, ECLI:EU:C:1989:387, § 30–31. For the European Court of Human Rights, see, e.g., Synnelius & Edsbergs Taxi AB v. Sweden, 17.06.2008, Application no. 44298/02, §1; Haralambidis, Y. Haralambidis-Liberpa S.A. & Liberpa Ltd v. Greece, 23.03.2000, Application no. 36706/97, § 4; Zegwaard & Zegwaard B.V. v. the Netherlands, 9.09.1998, Application no. 26493/95, §§ 34–51.
- 300.
Cf. Recitals (12) to (15), Directive (EU) 2016/343 of the European Parliament and of the Council of 9.03.2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. For the first general comments on the Directive see, e.g., Cras and Erbežnik (2016), p. 25 et seq.; Lamberigts (2016a), p. 36 et seq.; Id. (2016b); Camaldo (2016); Canestrini (2016), p. 2224 et seq.; De Caro (2016).
- 301.
- 302.
See, e.g. Garlsson Real Estate SA, Case C-537/16.
- 303.
- 304.
The competence and powers of these authorities in the US are illustrated in Chap. 5.
- 305.
- 306.
Cf. Commission Decision of 28.04.1999 establishing the European Anti-fraud Office (OLAF), 1999/352/EC, ECSC, EURATOM, and following amendments (Commission Decision 2013/478/EU of 27.09.2013; Commission Decision (EU) 2015/512 of 25.03.2015). In 1999, Jacques Santer, the head of the European Commission, and his fellow commissioners, were forced to resign en masse over a corruption scandal, concerning fraud and nepotism for serious management failings. For press reports of the scandal see, e.g., Bates (1999); BBC, EU plunges into crisis, 16.03.1999. http://news.bbc.co.uk/2/hi/europe/297457.stm. Accessed 18 July 2018.
- 307.
Cf. Article 11, Regulation (EU, Euratom) No 883/2013 of 11.09.2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 and Council Regulation (Euratom) No 1074/1999. The Regulation is currently under revision, see European Commission, Proposal for a Regulation of The European Parliament and of the Council amending Regulation (EU, Euratom) No 883/2013 as regards the establishment of a Controller of procedural guarantees, Brussels, 11.6.2014 COM(2014) 340 final 2014/0173 (COD); see also Luchtman and Vervaele (2017).
- 308.
As defined by the PIF Directive (2017/1371), cit., substituting the previous “PIF Convention” (Council Act of 26.07.1995 drawing up the Convention on the protection of the European Communities’ financial interests), and its Protocols, from 6.07.2019. These offences include: Fraud (VAT fraud only if the damage involved is of at least 10 million euros), corruption, and misappropriation affecting the EU financial interests, as implemented by national law.
- 309.
Cf. Article 22, of the Council Regulation (EU) 2017/1939 of 12.10.2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (hereinafter “EPPO Regulation”).
- 310.
After long and troubled negotiations, the procedure was launched on 3.04.2017. Up until now [June 2019] 22 Member States have joined the enhanced cooperation (PL, SE, HU, IE, DK and UK have still not accessed the EPPO). Cf. https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/networks-and-bodies-supporting-judicial-cooperation/european-public-prosecutors-office_en. Accessed on 15 June 2019.
- 311.
- 312.
The role and powers of these authorities, and of the other authorities composing the European System of Financial Supervision will be illustrated in Chap. 4.
- 313.
- 314.
The Core Principles are analysed in Sect. 3.5.
- 315.
That is particularly evident in the field of the so-called “spontaneous cooperation” “one of the most innovative and interesting tools for closer co-operation in fighting serious crimes. The boosted circulation of information is, in fact, indicative of a renovated and advanced conception of relationships between judicial authorities, which finds its most meaningful expression in the co-ordination of parallel investigations”, cf. Simonato (2011), p. 220; Calvanese (2003).
- 316.
- 317.
- 318.
Consolidated version of the Treaty on European Union, C 326/13 Official Journal of the EU, 26.10.2012, Article 4(3) “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives”.
- 319.
- 320.
According to Articles 101–102 of the Treaty (former Articles 81–82), cf. Article 12, Council Regulation (EC) No 1/2003 of 16.12.2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty; Article 15(4), Commission Regulation (EC) No 773/2004 of 7.04.2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty; Articles 107–142, Commission Notice on Best Practices for the Conduct Of Proceedings Concerning Articles 101 and 102 TFEU, 2011/C 308/06; Article 48, Commission Notice on the Rules for Access to the Commission File in Cases Pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004, OJ C 325, 22.12.2005, p. 7–15; Recital (33), Commission Notice on Immunity from Fines and Reduction of Fines in Cartel Cases, 2006/C 298/11.
- 321.
- 322.
Directive 2014/41/EU of 3.04.2014 regarding the European Investigation Order in criminal matters. For an overall analysis on the EIO Directive, see, e.g., Ruggeri (2013), p. 279 et seq.; Daniele (2017b); Allegrezza (2014), p. 51 et seq.; Caianiello (2015), p. 1; Caianiello and Di Pietro (2016); Daniele (2017a), p. 418 et seq. For an analysis of the impact of the directive with regard to banking investigations, and especially real-time monitoring of banking records see below Sect. 7.5.
- 323.
- 324.
The structure of the US supervisory financial system is dealt with in Chap. 5.
- 325.
The difference between harmonization and approximation methods, both explicitly specified by Articles 81–82 TFEU, is not always clearly identifiable, since they share the same goals, even if the latter is mainly oriented towards the concurrence of legislative texts, rather than principles, and represents a weaker stimulus for the integration process, cf. Klip (2016), p. 33; Kostoris (2017), p. 68 et seq. In general terms on the fragmentation and hybrid legal basis of EU law concerning economic and financial criminal law, see Blomsma (2017), p. 225 et seq.
- 326.
Cf. Consolidated version–Treaty on the Functioning of the European Union, C 326/52 Official Journal of the European Union 26.10.2012, Title V, Area of Freedom, Security and Justice, Articles 67–89, and especially Articles 82–89.
- 327.
Cf. Article 10(1)–(3), Protocol (No 36) on Transitional Provisions concerning acts adopted on the basis of Titles V and VI of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon.
- 328.
Such as the possibility of opting-in (DK) and out (IE, UK); the emergency break procedure, and the substantial limitation in the subject (both on a substantive and procedural law perspective).
- 329.
Cf. above, Sect. 2.3.4.
- 330.
Cf. Article 4(2)(j) TFEU: “Shared competence between the Union and the Member States applies in the following principal areas: […] area of freedom, security and justice” and Article 325, para 3 and 5: “Without prejudice to other provisions of the Treaties, the Member States shall coordinate their action aimed at protecting the financial interests of the Union against fraud. To this end they shall organise, together with the Commission, close and regular cooperation between the competent authorities […] The Commission, in cooperation with Member States, shall each year submit to the European Parliament and to the Council a report on the measures taken for the implementation of this Article”.
- 331.
Cf., e.g., Article 5(3)—determining the applicable legal basis—and Articles 36 and 42—determining the jurisdiction of national Courts and of the CJEU-of the EPPO Regulation.
- 332.
Even if it is “a cornerstone principle of Community law”, the principle of primacy of EU law is not explicitly stated in the Treaties, even if this fact “shall not in any way change the existence of the principle and the existing case-law of the Court of Justice, which firstly developed its content” (see Judgment in Flaminio Costa v E.N.E.L., Case 6–64, 15.07.1964, ECLI:EU:C:1964:66), cf. 17. Declaration concerning primacy, in TFEU, A.1.Declarations Concerning Provisions of the Treaties (“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law”), and attached Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260).
In the US, the same principle, expressed by article VI, Sec. 2 US Constitution (“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”) has also been affirmed in several leading cases, see, e.g., McCulloch v Maryland, 17 U.S. 316 (1819); Gibbons v Ogden, 22 U.S. 1 (1824); Hammer v Dagenhart 247 U.S. 251 (1918).
- 333.
For instance, as provided by the Tenth Amendment of the US Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”.
- 334.
Cf. Klip (2016), p. 1 et seq.
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Lasagni, G. (2019). Finding the Way in a Complex Multi-Level Legal Framework. In: Banking Supervision and Criminal Investigation. Comparative, European and International Criminal Justice, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-030-12161-7_2
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