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
34 Lex ET Scientia. Juridical Series
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.
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
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
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.

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