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: Proceedings that may lead to the imposition of sanctions and related investigatory activities

Several fundamental rights granted in the Charter act as constraints in the context of proceedings instituted by the Union, which may lead to the imposition of sanctions. Notably, this is the case of some guarantees relating to the ‘right to good administration’ under Article 41 CFR, which every person is entitled to in their relationship with the Union.

According to Article 41(1), ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the European Union’. Even though the term ‘right’ is used in the singular, the requirements of impartiality, fairness and reasonable time-limit for taking decisions have some degree of autonomy from one other, so that they can provide distinct parameters by which to assess the lawfulness of the Union’s action which is at issue. Moreover, Article 41(2) outlines three additional subjective guarantees which the right stated in the previous paragraph ‘includes’, namely: the right of every person to be heard before any individual measure which would affect him or her adversely is taken; the right of every person to have access to his or her file; and the obligation on the part of the administration to give reasons for its decisions. The expression ‘includes’ clearly indicates that Articles 41(2) reflects only some components of the right under Article 41(1), which remain open to interpretation by the ECJ.55 The EU legislature can also contribute to shaping the content of the right in specific areas. However, the rights stated in Article 41, or grounded on it by the Court, must be observed regardless of whether the relevant legislation makes express provision for them.

Of course, the rights encompassed by Article 41 do not constitute unfettered prerogatives. Echoing the case law of the Court in competition cases,[1] Article 41(2) expressly refers to ‘the respect for the legitimate interests of confidentiality and of professional and business secrecy’ as a limit to the right of access to the file. Beyond this specific provision, the general rule laid down by Article 52(1) CFR applies. For instance, the ECJ has acknowledged that the effectiveness of restrictive measures such as the freezing of funds would be jeopardised if the addressee had to be informed in advance, so that, as an exception to Article 41(2) CFR ‘it is as a rule enough if the institution notifies the person or entity concerned of the grounds and affords it the right to be heard at the same time as, or immediately after, the decision is adopted’. Moreover, concerns related to ‘overriding considerations connected with State security’ may justify the decision not to disclose, in the context of an administrative (or judicial) proceedings, some information to the person concerned. However, for this limitation to be legitimate, Member States must ensure effective judicial review over the secrecy claim and put in place mechanisms enabling the court in charge of the decision to strike a balance between security needs and due process guarantees. One can infer that the addressee of a sanction should always know at least the essence of the case against him or her.

Based on the wording of Article 41, the right to good administration is granted only vis-à-vis the EU institutions, bodies, offices and agencies. This is an exception to the general provision in Article 51(1) CFR, whereby the Charter is binding also on the Member States ‘when they are implementing Union law’ (i.e., when they act within the scope of EU law). It follows that national administrative proceedings concerning the application of EU law fall outside the scope of Article 41, and the same applies to the national element in composite administrative procedures where both Union institutions (or other bodies) and Member States’ authorities are involved. However, according to the ECJ, Article 41 ‘reflects a general principle of EU law’, which, as such, is also binding in the context of national administrative procedures located within the scope of Union law. One can note that this doubletrack solution works if the protected scope of the general principle concerning the right to good administration is the same as Article 41. At the same time, the status of the right as a general principle implies that ‘the EU institutions are required to observe [it] in the context of administrative procedures that are initiated against Member States and are liable to result in decisions adversely affecting them’,[2] such as an infringement procedure or a procedure under Article 7 TEU.

Some additional constraints derive from Article 48(2) CFR on the rights of defence. The ECJ has indeed clarified that ‘[in] all proceedings in which sanctions, especially fines or penalty payments, may be imposed observance of the rights of the defence is a fundamental principle of European Union law’.

A provision that deserves attention is Article 50 CFR on the ne bis in idem principle, which prohibits the duplication of ‘criminal’ proceedings ‘within the Union’. The latter expression implies that - speaking in the abstract - the scope of the prohibition encompasses different scenarios, which include the duplication of ‘criminal’ proceedings instituted by one or more Union institutions, or by an EU institution and a Member State or a third State. As regards the ‘criminal’ character of the proceedings, according to a well-settled interpretative approach of the ECJ, which draws on the Strasbourg case law, the scope of the ne bis in idem rule extends to proceedings that, though being classified as administrative, are ‘criminal’ by virtue of their nature and the degree of severity of the penalty that the person is liable to incur. This interpretation triggers the relevance of the ne bis in idem in relation to Union sanctions, for instance in the field of competition law.

It is worth noting that the abovementioned cumulation does not necessarily infringe Article 50 CFR, which tolerates limitations that are justified on the basis of Article 52(1) CFR. Interestingly, the ECJ has not adhered to the case law of the Strasbourg Court whereby a duplication of administrative and criminal proceedings and penalties does not infringe the ne bis in idem principle where proceedings at issue ‘have a sufficiently close connection in substance and time’. Proportionality is the main thread of the ECJ’s reasoning. First, it has observed that ‘a duplication of criminal proceedings and penalties may be justified where those proceedings and penalties pursue (...) complementary aims relating (...) to different aspects of the same unlawful conduct’.[3] That said, however, the Court has relied not only on the proportionality test required by Article 52(1) CFR, but also to the ad hoc principle of proportionality of penalties, now affirmed by Article 49(3) CFR, in order to circumscribe the possibility of duplication. The legislation which allows it ‘must provide for the obligation for the competent authorities, in the event of the imposition of a second penalty, to ensure that the severity of all of the penalties imposed correspond with the seriousness of the offence concerned’.

Finally, Article 7 CFR on the respect for private and family life circumscribes the power of Union institutions (or bodies) to carry out investigatory activities aimed at ascertaining, for instance, breaches of EU competition rules or conducts incompatible with the financial interest of the Union, which may be preliminary to the imposition of sanctions. Activities such as searches of a person’s premises, interceptions of communications or the seizure of documents or e-mails constitute restrictions on the fundamental right guaranteed in Article 7 CFR, which encompasses the protection of the private and family life, home and communications. The lawfulness of these activities depends on whether the requirements in Article 52(1) CFR have been satisfied. Given that Article 7 CFR corresponds to Article 8 ECHR, the rule of parallel interpretation provided by Article 52(3) CFR must be observed (unless a more extensive protection is granted under Union law). Adhering to that rule, the Court of Justice has recognised that the protection afforded by Article 8 ECHR may encompass certain professional and commercial premises and activities, but the interference by a public authority could be more intrusive than in other cases. For instance, the EÇJ has stated that a post-inspection judicial review covering both questions of fact and questions of law, such as that which Regulation 1/2003 entrusts on Union courts, may counterbalance the absence of prior judicial authorisation. In another competition case, the Court pointed out that the undertaking concerned could not rely on Article 7 CFR ‘to complain of a loss of reputation which is the foreseeable consequence of his own actions’; the violation alleged stemmed from the disclosure of information directly relevant to the infringement contested and to the undertaking’s participation in it. '3

  • [1] See Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 and C-219/00 P, Aalborg Portland and Others v. Commission, EU:C:2004:6, para. 64. 2 Similarly, with respect to the right to good administration as a general principle, see Case C-383/13 PPU, para. 33. 3 See, for instance, Case C-27/09 P, France v. People's Mojahedin Organization of Iran, EU:C:2011:853, paras 61 and 72. 4 5sSee Case C-300/11, ZZ, EU:C:2013:363, para. 54. In the context of judicial proceedings (this was the case in ZZ), the reference provision in the Charter is Article 47 on the right to an effective remedy and a fair trial, on which see section III.3 infra. 5 Ibidem, para. 58. 6 “See supra note 2. 7 See, ex multis, Case C-230/18, PI, EU:C:2019:383, paras 56-57.
  • [2] Commission v. Spain, cit., paras 89-90. 2 6> Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission, EU:C:2010:512, para. 92. This corresponds with the court’s long-established case law: see Case C-85/76, Hoffmann-La Roche v. Commission, EU:C:1979:36, para. 9. 3 See J. Tomkin, ‘Article 5Г, in Rhe EU Charter of Fundamental Rights: A Commentary, 1374. 4 See ECtHR, Engel and Others v. the Netherlands, application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, paras 80 to 82, and Case C-489/10, Bonda, EU:C:2012:319, para. 37. 5 On the qualification of sanctions in competition cases, see, within this Book, the chapter by L. Calzolari. 6 Case C-129/14 PPU (Grand Chamber), Spasic, EU:C:2014:586, paras 55 and 56 7 “ECtHR, 15 November 2016, A and B v. Norway, para. 132.
  • [3] Case C-524/15, Mend, EU:C:2018:197, para. 44. 2 Ibidem, para. 55. As regards the role of proportionality in Menci, see, within this Book, the chapter by S. Montaldo. 3 Case C-419/14, WebMindLicenses, EU:C:2015:832. 4 Case C-583/13 P, Deutsche Bahn and Others v. Commission, EU:C:2015:404, para. 20. 5 Curia C-162/15 P, Evonik Degussa v. Commission, EU:C:2017:205, paras 117-118.
 
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