The legal principle of ne bis in idem restricts the possibility of a defendant
being prosecuted repeatedly on the basis of the same offence, act, or facts.
Although few would dispute its relevance to the regulation of transnational
justice, there is as yet no universally accepted ne bis in idem rule or
provision available at the international level, although it is to some extent
recognized and respected in Europe, via Article 54 of the Convention on the
Implementation of the Schengen Agreement (CISA; integrated into EU law by the
Treaty of Amsterdam) and Article 4 of the 7th Protocol of the European
Convention on Human Rights. The relevant case law of the ECJ and the ECtHR has
implications for the systems of criminal and administrative law in European
states, as well as for the interpretation and application of the principle in
some areas of EU law, such as competition law. This book analyses these
important implications, fulfilling a genuine need to assess the need for – and
the prospects of – a ‘European’ ne bis in idem principle. The author
identifies and describes obstacles that stand in the way of a single,
autonomous, and uniformly applicable general ne bis in idem principle of EU
law – differently worded provisions within the different ‘European’
frameworks; a measure of confusion and conflict within the case law of the
Community courts; positive conflicts of jurisdiction and the allocation of
cases between the Member States; and the vague exception possibilities laid
down in Article 55 CISA. Among the issues examined are the following:
• the problem of defining the substance of the guarantee;
• scope of application of the guarantee;
• mechanisms for the coordination of the allocation of cases between Member
State authorities and the role of Eurojust;
• developments in enhanced cooperation in criminal matters;
• fining in competition law;
• extraterritoriality and convergence issues;
The author approaches the subject along two lines: first by way of conceptual
analysis, and then through a jurisprudential analysis of the relevant case law
of the ECJ and the ECtHR, offering well-informed, insightful recommendations
and suggestions along the way. As the first contribution to an in-depth
understanding of the fundamental problems and issues associated with the
interpretation and application of a ‘European’ ne bis in idem principle, this
study takes a giant step towards developing and refining the principle within
the legal order of the EU. Jurists and legal scholars concerned with the
foundations of European law will welcome the book, as will competition law
practitioners and officials concerned with transnational police and judicial
enforcement.
1. Introduction. 2. Introducing the Principle of ne bis in idem:
Sources and Concepts. 3. The Supranational Context: The Criminal Law
Dimension of the EU. 4. The Case Law of the European Court of Justice
on the ne bis in idem Principle. 5. The Case Law of the European Court
of Human Rights on the ne bis in idem Principle in Article 4 of Protocol 7
ECHR. 6. Analysis: The ne bis in idem Principle in the Legal Order of
the EU.