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The ne bis in idem principle in the European Union legal order: between scope and substance

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Abstract

The contribution focuses on the relationship between the substantive interpretation of the ne bis in idem principle in the case law of the European Court of Justice in competition matters in particular and the scope of application of the principle in the light of Article 51 of the Charter of Fundamental Rights of the European Union. In its case law on Article 54 of the Convention on the Implementation of the Schengen Agreement the European Court of Justice emphasises the wording and function of the principle in the context of enhanced cooperation whilst in competition matters, the Courts’ interpretation of the ne bis in idem principle derives from the contours of the enforcement landscape. By contrast, the European Court of Human Rights precisely emphasises the uniform and coherent development of the ne bis in idem principle in its case law, revealing differences in the attitudes taken by the two European courts to the realisation of the ne bis in idem principle on the European level. Now that the Charter is legally binding, the scope and substance of the ne bis in idem principle must be considered in the light of Articles 50, 51, and 52 of the Charter. When read in the light of Article 51 of the Charter, the requirement of the ‘unity of the protected legal interest’ in the case law concerning the ne bis in idem principle in competition matters implies that the member states are bound by the ne bis in idem principle in European Union law when they are “implementing European Union law” within the meaning of that provision.

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Notes

  1. Case C-17/10, Toshiba and others (judgment of 14 February 2012, n.y.r.), para. 99.

  2. Fletcher [1].

  3. Where the subject has tried and convicted in absentia, extradition laws often provide for additional safeguards.

  4. This also depends on the applicable extradition treaty.

  5. Article 4 section 2 of the Framework Decision on the European Arrest Warrant furthermore refers to pending criminal proceedings as an optional ground for refusal of a European Arrest Warrant, and section 5 of Article 4 of the Framework Decision allows for optional refusal if the requested person has been finally judged by a third state.

  6. For an overview, see Van Bockel [3], pp. 10 et seq.

  7. The European Arrest Warrant later replaced the extradition provisions of the Schengen agreements.

  8. Vervaele [5], p. 109; and: Van Bockel [3], p. 19 et seq.

  9. Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij (PVC; appeal) [2002] ECR I-8375.

  10. Case C-397/03 P Lysine [2006] ECR I-4429.

  11. Case 137/85 Maizena [1987] ECR 4587, para. 15.

  12. European Court of Human Rights (Grand Chamber), Sergey Zolotukhin v. Russia 10 Feb. 2009 (Application No. 1493/03).

  13. Evidence for the same point is seen in the decision of the European Court of Justice in Lysine (above).

  14. European Court of Human Rights (Grand Chamber), Sergey Zolotukhin v. Russia 10 Feb. 2009 (Application No. 1493/03), para. 107.

  15. The possibility of bringing extraordinary remedies under national law however does not affect the final nature of the previous decision. European Court of Human Rights (Grand Chamber), Sergey Zolotukhin v. Russia 10 Feb. 2009 (Application No. 1493/03), para. 107.

  16. Although there is no case law on this point it must be assumed that the continuation of an ongoing procedure, after the time at which the outcome of an earlier or concurrent procedure has become final, will violate the ne bis in idem principle of Article 4 of Protocol No. 7 to the European Convention on Human Rights, Article 54 of the Convention on the Implementation of the Schengen Agreement and Article 50 of the Charter of Fundamental Rights of the European Union. There is nothing to suggest that the terms “tried” or “prosecuted” contained in those provisions are to be understood solely as the bringing of a new prosecution.

  17. See, in this regard, Council Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (2009 OJ L 328/42), which establishes a soft-law mechanism for the prevention and resolution of conflicts of jurisdictions.

  18. Case C-462/05 Commission v. Portugal [2008] ECR I-04183, para. 23.

  19. Case C-469/03 Miraglia [2005] ECR I-2009.

  20. Case C-419/07 Criminal proceedings against Vladimir Turansky [2008] ECR I-11039.

  21. Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij [2002] ECR I-8375.

  22. 2004 OJ L 123/18; see also the Commission Notice on the conduct of settlements in cartel cases.

  23. It is even questionable whether any such thing as a “purely factual” or “purely juridical” approach can exist, especially in the context of legal proceedings.

  24. Van Bockel [3], p. 45.

  25. Van Bockel [3], p. 44 et seq.

  26. Van Hattum [4].

  27. This approach must be distinguished from that formerly taken in the case law of the European Court of Human Rights. In its judgment in Gradinger v. Austria, 23 Oct. 1995 (Appl. No. 15963/90), para. 54, for instance, the Court distinguished between the interest of “traffic regulation” and “public safety” (although it is difficult to see how traffic regulation would serve any other interest than that of public safety).

  28. De la Cuesta, 707. One exception is Art. 68(2) of the Dutch penal code (Wetboek van Strafrecht), which applies to earlier prosecutions in any jurisdiction.

  29. In particular if the crime was committed on their own territory or affects their own national interests.

  30. Case C-17/10, Åkerberg Fransson (case pending).

  31. And therefore both share the same “repressive finality”; see Huet & Koering-Joulin [2], p. 60.

  32. By way of a rules requiring the authorities to choose between one of several possible enforcement trajectories (“una via”), or through the concentration of proceedings.

  33. Unless a specific rule like una via regulates the relationship between the two. This should not however be confused with ne bis in idem.

  34. Case C-436/04 Leopold Henri van Esbroek [2006] ECR I-2333; see also case C-297/07, Klaus Bourquain [2008] I-09425.

  35. European Court of Human Rights, Gradinger v. Austria, 23 Oct. 1995 (Appl. No. 15963/90).

  36. Case 14-68 Walt Wilhelm and others v. Bundeskartellamt [1969] ECR 1.

  37. Case 7/72 Boehringer Mannheim v. Commission [1972] ECR 1281.

  38. It is worth noting that the first judgment in which the application ratione materiae of the ne bis in idem principle in competition matters was explicitly confirmed was the judgment of the Court of First Instance in the PVC cartel cases (Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 PVC [1999] ECR II-9931).

  39. Para. 3 of the judgment.

  40. Para. 3 of the judgment.

  41. Para. 4 of the judgment.

  42. Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 PC-217/00 P, and C-219/00 P, Aalborg Portland and others vs. Commission [2004] ECR I-123, para. 338; Opinion of Advocate General Colomer delivered on 11 Feb. 2003 in case C-217/00 P, Buzzi Unicem vs. Commission [2004] ECR I-123, para. 171.

  43. Although no formal harmonisation obligation has even existed for the “old” member states in respect of the competition rules, a de facto legal obligation to fully align national competition law with Article 101 TFEU follows directly from Article 3(2) of Regulation 1/2003; for Article 102 TFEU this obligation is only partial. New member states are obliged to implement the European Union competition acquis under the Copenhagen Criteria.

  44. Para. 173 of the Opinion.

  45. Case C-17/10, Toshiba and others (judgment of 14 February 2012, n.y.r.), para. 99

  46. The reason for this was the entry into force of the Czech competition law as amended in the light of accession to the European Union.

  47. Para 101 of the judgment.

  48. See European Court of Human Rights, Gradinger v. Austria, 23 Oct. 1995 (Appl. No. 15963/90); Case C-436/04 Leopold Henri van Esbroek [2006] ECR I-2333; C-297/07, Klaus Bourquain [2008] I-09425 (aforementioned). European Court of Human Rights, Gradinger v. Austria, 23 Oct. 1995 (Appl. No. 15963/90).

  49. Case C-436/04 Van Esbroeck [2006] ECR I-2333.

  50. See also: Case C-150/05 Van Straaten [2006] ECR I-9327; and Case C-367/05 Kraaijenbrink [2007] ECR I-6619.

  51. What is referred to here is the distinction between the term “acts” in Art. 54 CISA and the term “offence” in arts. 50 of the Charter and Article 4 of Protocol No. 7 to the European Convention on Human Rights.

  52. European Court of Human Rights, Oliveira v. Switzerland, 30 Jul. 1998 (Appl. No. 25711/94).

  53. See in particular European Court of Human Rights, Franz Fischer v. Austria 29 May 2001 (Appl. No. 37950/97); and European Court of Human Rights, Mishel Manasson v. Sweden 17 Feb. 1998 (Application no. 41265/98).

  54. Van Bockel [3], p. 190.

  55. Paras 81-84 of the judgment.

  56. It must be assumed that the plaintive will have to demonstrate an actual difference between the level of protection afforded by Article 4 of Protocol No. 7 to the European Convention on Human Rights, and that enjoyed by the subject under national ne bis in idem rules.

  57. Opinion in case C-467/04 Gasparini, paras. 80 and 81.

  58. Case 7/72 Boehringer v. Commission [1972] ECR 1281, paras. 4 & 5.

  59. So that it could even be argued that the new member states have “implemented” European Union competition law in the more technical sense of the term.

  60. When comparing the wording of the provision to the earlier case law (the so-called ERT and Wachauf doctrines) it is clear that there are both similarities and differences. Post-Lisbon, the “old” case law has not necessarily lost its validity but it will have to be reconsidered in the light of the wording of the provision and the intentions of the drafters. There is little doubt that the member states sought to limit the scope of application of the rights contained in the charter through the wording of Article 51.

  61. Speech given at the European University Institute, Florence, 23 June 2012.

  62. For more background on the debate see Pech/Groussot [6].

  63. The French expression mise en oeuvre in particular does not correspond well to the English term ‘implementation’. The same could arguably be said for the German term Durchfuehrung which perhaps has a less “technical” connotation than the term ‘implementation’. Differences with other language versions are more subtle, yet clearly there.

  64. The question of the interpretation of Article 51 of the Charter has been put before the Court in case C-17/10 Akerberg Fransson (pending). A decision in this case is expected shortly.

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Correspondence to Bas van Bockel.

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The author is Jean Monnet Fellow at the European University Institute and Assistant Professor and Director of the MA European Union Studies.

This paper is based on a presentation given at the conference Ne bis in idem as a general principle of EU law, organised by ERA on 3–4 May 2012 at the Cour de Cassation in Paris for which I am indebted to Corina Badea.

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van Bockel, B. The ne bis in idem principle in the European Union legal order: between scope and substance. ERA Forum 13, 325–347 (2012). https://doi.org/10.1007/s12027-012-0267-7

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