• Non Bis In Idem Doctrine
  • February 12, 2016 | Authors: Nicolas Andre; Siamak Mostafavi; Alexios Theologitis
  • Law Firm: Jones Day - Paris Office
  • Literally "not twice in the same," non bis in idem is basically a legal doctrine whereby no legal action can be initiated twice for the same course of action.

    A case, currently before a French criminal court, has provided the occasion to establish whether the non bis in idem rule may be applied in a situation where a person may be potentially sanctioned under both tax and criminal rules.

    The case concerns a famous art dealer family, the Wildensteins, who did not declare their full assets to the tax authorities. They are potentially liable to the relevant inheritance tax reassessment and subject to criminal prosecution.

    The family's lawyers pleaded before the criminal court, and the latter agreed, that the non bis in idem question should be remitted to the Cour de Cassation to decide whether it should be then transferred to the Conseil Constitutionnel.

    The case law of the Conseil Constitutionnel (EADS decision in 2015) suggests that four conditions need to be met for the non bis in idem rule to apply: (i) the relevant facts must be the same under both procedures, (here, the same facts are effectively used for the tax and criminal prosecutions and the FTA is the one initiating the criminal case), (ii) the interest protected, under the relevant underlying legislations, must be the same, (iii) the relevant sanctions must be the same under both procedures (the penalty due, under the tax reassessment, is indeed analyzed as a sanction, i.e., exceeding the financial loss of the French Treasury, and (iv) the relevant jurisdictions must be the same (inheritance tax matters are decided by judicial courts as opposed to administrative courts).

    The Cour de Cassation has three months to decide whether or not to transfer the question to the Conseil Constitutionnel.

    If the case is indeed referred to the Conseil Constitutionnel, and if the latter rules in favor of application of non bis in idem, it would mean that the FTA would have, potentially, to decide between a tax reassessment or the prosecution for tax fraud.