The 'ne bis in idem' principle in the caselaw of the european court of justice (I). The 'idem' issue

• Author: Norel Neagu
• Position: Researcher, Centre for Legal, Economic and Socio-Administrative Studies, 'Nicolae Titulescu' University, Bucharest, Romania
• Pages: 34-54

34 Lex ET Scientia. Juridical Series 

LESIJ NR. XVIII, VOL. 2/2011

THE “NE BIS IN IDEM” PRINCIPLE IN THE CASE-LAW OF THE

EUROPEAN COURT OF JUSTICE (I). THE ‘IDEM’ ISSUE

Norel NEAGU∗

Abstract

Two major events occurred in the recent years have triggered a series of cases in the field of

criminal law, having transnational dimension and requiring an identical interpretation of the

European law in the Member States. The first one is the “communautarisation” of the Schengen

Aquis. The second one is the extension of the jurisdiction of the European Court of Justice over the

(former) third pillar (Police and Judicial Cooperation in Criminal Matters). As a result, several

cases were referred to the European Court of Justice for the interpretation, inter alia, of the

dispositions of the Schengen Convention dealing with criminal matters. This article gives a

general overview of the case-law of the European Court of Justice in the field of “ne bis in idem”

principle, shortly presenting the legal framework, the facts, the questions addressed to the Court

by the national jurisdictions, the findings of the Court, as well as some conclusions on the

interpretation of the principle. In the first study we will deal with the notion of ‘idem’.

Keywords: case-law, European Court of Justice, ‘idem’ issue.

1. Introduction

1.1. The Schengen Aquis

In the context of the European integration process, “Schengen” stands for the realisation of

the concept of free movement of persons and the creation of a citizens’ Europe. In 1985, five

European countries – Belgium, France, Germany, Luxembourg, and the Netherlands – signed an

agreement “on the gradual abolition of checks at their common borders” in Schengen – a small

village in Luxembourg at the geographical nexus of these countries.

The agreement aims at establishing a common travel area without internal borders and with

common external borders. This became known as the “Schengen area”. Schengen countries

normally do not require citizens to show their passports when crossing borders between one

Schengen country and another. A common “Schengen visa” allows tourist or visitor access to the

area as a whole. In 1990, the countries signed in Schengen the Convention Implementing the

Schengen Agreement of 1985 (in short: the Schengen Implementing Convention, CISA). The

Convention lays down detailed rules and measures necessary for the lifting of checks at internal

borders (i.e. land, sea, and air borders) between the Schengen states and sets out measures which

should compensate the perceived loss of security after the removal of such barriers.

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∗ Researcher, Centre for Legal, Economic and Socio-Administrative Studies, “Nicolae Titulescu” University,

Bucharest, Romania. This paper is part of a broader research activity which is carried out under the CNCSIS PN II

Contract no.27/2010.

Norel Neagu

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LESIJ NR. XVIII, VOL. 2/2011

It should be mentioned that the Schengen Agreement and the Schengen Convention were

concluded outside the structure of the European Union/European Communities. Although linked

closely with the policy of the European Union, they originally represent conventional multilateral

treaties concluded under the rules of international public law. Later however, in 1999, the

Schengen rules were incorporated into the EU framework.1

Today, the Schengen Agreement, the Schengen Convention, and the subsequent decisions and

measures thereupon are implemented by 29 European countries, leading to the abolition of

systematic border controls between these participating countries. Among these countries are also

countries which are not members of the European Union.2

Of interest for criminal law is that the CISA also contains detailed rules on enhanced police

and judicial cooperation. It foresees, for instance, that the police may cooperate through central

bodies or, in case of urgency, also directly with each other. Likewise, a direct exchange of

rogatory letters between the judicial authorities is possible, thus avoiding the use of diplomatic

channels. Articles 54-58 contain the renowned conditions which prohibit citizens from being

sentenced twice in the Schengen area. These rules can be regarded as the birth of a European-wide

ne bis in idem principle.

1.2. ECJ’s Jurisdiction

On the other hand, the Treaty of Amsterdam has extended the jurisdiction of the Court of

Justice to give preliminary rulings to the (former) third pillar (justice and home affairs) and opened

the way for the Court, at the request of the national courts, to give rulings on the validity and

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1 The Schengen acquis comprises all the acts which were adopted in the framework of the Schengen

cooperation till the incorporation of the rules governing the Schengen cooperation into the EU framework by the

Treaty of Amsterdam. Accordingly, it is composed of: (1) the Schengen Agreement, signed on 14 June 1985,

between Belgium, France, Germany, Luxembourg, and the Netherlands on the gradual abolition of checks at their

common borders; (2) the Schengen Convention, signed on 19 June 1990, between Belgium, France, Germany,

Luxembourg, and the Netherlands, implementing the 1985 Agreement (CISA) with related Final Acts and

declarations; (3) the Accession Protocols and Agreements to the 1985 Agreement and the 1990 implementing

Convention with Italy (signed in Paris on 27 November 1990), Spain and Portugal (signed in Bonn on 25 June

1991), Greece (signed in Madrid on 6 November 1992), Austria (signed in Brussels on 28 April 1995) as well as

Denmark, Finland and Sweden (signed in Luxembourg on 19 December 1996), with related Final Acts and

declarations; (4) decisions and declarations of the Schengen Executive Committee which was the administrative

body of the Schengen cooperation and generally mandated by the CISA “to ensure that this Convention [CISA] is

implemented correctly”; (5) further implementing acts and decisions taken by subgroups to which respective powers

were conferred by the Executive Committee. The latter two Paragraphs regarding the Schengen acquis refer to

further decisions and declarations, which were made in order to implement the 1990 Implementing Convention

itself. The Schengen acquis was published in the Official Journal L 239 of 22 September 2000. In order to reconcile

the overlap between the Schengen cooperation and Justice and Home Affairs cooperation as introduced by the 1992

Maastricht Treaty, the Member States decided to integrate the Schengen acquis into the legal framework of the

European Union. This was achieved in 1997 by means of a Protocol attached to the Treaty of Amsterdam. The

Council allocated each provision or measure taken to date under the Schengen cooperation to the corresponding

legal basis in the EC Treaty and EU Treaty as amended by the Treaty of Amsterdam (COUNCIL DECISION of 20

May 1999 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 Schengen acquis, 1999/436/EC, L 176/17, 10.7.1999). As a further result of the incorporation, the

Schengen acquis is binding on and applicable in the new Member States from the date of accession onwards (Article

3 Act of Accession, OJ L 236 of 23 September 2003, p. 33).

2 Thomas Wahl & Sarah Schultz, The Enlargement of the Schengen Area, Eucrim 3-4/2007, 66-67.