Ne Bis In Idem: Towards a Transnational Constitutional Principle in the EU?

Citizens and companies globalize: they are increasingly making use of their rights to free movement, to free settlement, to offer services and goods, to realize financial transactions, etc. Enforcement systems, including the criminal justice system, have to follow suit. They are obliged to go abroad to gather evidence, for the detention and extradition or surrender of suspects, to confiscate assets, to deal with conflicts of jurisdiction and the choice of allocating a criminal investigation and adjudication. Globalizing criminal justice systems increases the risk of double prosecution and/or double punishment. Do (legal) persons have the (fundamental) right not to be prosecuted or punished twice for the same facts in a globalizing and integrating world. Are they protected against these forms of double jeopardy in settings of transnational criminal justice, such as for instance in the EU area of freedom, security and justice? Does the ne bis in idem principle have a transnational reach? If so, what does this mean and what are the obstacles and exceptions thereto? In posing these questions, this article asks whether a (legal) person can derive a right to transnational protection in the area of freedom, security and justice from the different sources of ne bis in idem obligations in domestic law, in public international law (human rights law and mutual legal assistance) and in EU law. By analysing these sources and the case law thereon, I come to the conclusion that (legal) persons are unprotected against transnational double jeopardy, with the exception of the transnational ne bis in idem in the EU area of freedom, security and justice. However, even in the case of the latter exceptions, derogations, reservations and draw back interpretations based on national sovereignty undermine the rationale and scope of a real transnational ne bis in idem principle in a common space of transnational criminal justice.

section_content: Many areas of regulation and enforcement have been substantially affected by the increasing European integration process in the last few decades. The result is not only visible through the implementation, application and enforcement of EU policies in every Member State (the vertical dimension of integration), but also in the creation of common areas such as the customs union, the internal market and the area of freedom, security and justice (the horizontal dimension of integration). Thanks to the four freedoms of the internal market citizens can enjoy a whole set of basic economic and non-economic freedoms. Thanks to the Lisbon Treaty citizens can expect that the Union will offer them free movement, in conjunction with appropriate measures to prevent and combat crime (Article 3(2) TEU) and to offer security in a common area of freedom, security and justice. Both the vertical and horizontal dimension of European integration are part of a EU legal order (with European and national components) in which the rule of law and human rights standards do apply. The Lisbon Treaty has strengthened this in Article 6 TEU by recognizing the EU Charter of Fundamental Rights (CFREU) as a source of binding primary EU law. 

When it comes to the enforcement of EU policies in the Member States (the vertical dimension) or the enforcement of EU policies in a transnational setting (the horizontal dimension) there is a double EU interest at stake: effective enforcement and compliance with the EU human rights standards. 

With the growing impact of EU regulations at the domestic level and the increasing mobility of goods, persons, services and capital in the EU and the related increasing transnational dimension of domestic criminal justice activities, there is an increasing risk that a person might suffer double jeopardy or be prosecuted and/or be punished twice, at the national level (when enforcing EU policies) or at the EU level by several EU Member States or even by an EU Member State and the Commission, in a field like competition, where the Commission has punitive adjudicative jurisdiction. 

In a setting of an integrated internal market and a common area of freedom, security and justice citizens and legal persons might expect equivalent human rights protection between the Member States of the EU and at the European level. They might also expect that this protection complies at least with the common binding standards of the European Convention on Human Rights (ECHR). Today, in the EU, do we have an equivalent transnational protection of ne bis idem that applies both in the vertical and horizontal dimension of European integration? Is the domestic regulation of ne bis in idem in each EU Member State or is the ne bis in idem principle enshrined in public international law (human rights law) able to offer this equivalent protection? Or do we need a proper transnational ne bis idem principle in the EU? If so, what are the modalities of this transnational principle in order to comply with equivalent protection for citizens and legal persons?
section_name: Introduction

section_content: The ne bis in idem principle is a general principle of (criminal) law in many national legal orders, sometimes even codified as a constitutional right such as the clause relating to ne bis in idem (prohibiting dual punishment -double jeopardy) of the Fifth Amendment of the Constitution of the United States of America or Article 103 of the German Constitution. Historically the ne bis in idem principle only applies nationally and is limited to criminal justice; this means precluding application to punitive administrative enforcement. Recently, some states have widened the scope to punitive proceedings and penalties. 

The rationale of the ne bis in idem principle is manifold. Traditionally it was very much linked to the sovereignty and legitimacy of the state and its legal system, as well as respect for the res judicata (pro veritate habitur) of final judgments. 1 The link with res judicata and the international recognition of criminal verdicts could of course also give international effect to the ne bis in idem principle. However, few countries recognize the validity of a foreign judgment in criminal matters for execution or enforcement in their national legal systems without this being founded on a treaty. Even the recognition of res judicata in respect of a foreign criminal judgment is problematic, certainly when it concerns territorial offences. The recognition of foreign res judicata means that the prospect of a new prosecution or punishment is no longer possible (the negative effect) or that the decision has to be taken into account in the context of judgements pending in other cases (the positive effect). The majority of common law legal systems do actually recognize the res judicata effect of foreign judgments. In civil law systems, the Netherlands has the most far-reaching and liberal provisions. The Dutch Criminal Code contains a general ne bis in idem provision that is applicable to both domestic and foreign judgements, regardless of where the offence was committed. 2 However, even the Netherlands excludes punitive administrative penalties from the scope of application. 

In every single Member State the ne bis in idem principle raises many questions concerning both the idem and bis element of the principle. In order to consider the meaning of the same/idem, it may be asked whether the legal definition of the offences should be considered as the basis of the definition of the term the same (idem), or should it be the set of facts (idem factum)? Does it depend on the judicial rights protected by the legal provisions and their scope? Are natural and legal persons different with regard to the application of the principle? Is the reach of the principle limited to double punishment under criminal law or does it include other punitive sanctions that may be imposed under private law or administrative law? What is a firm and final sentence? Does it include settlements with the public prosecutor or with other judicial authorities? Must the sentence have been enforced or executed? In other words, there is no common and equivalent standard of ne bis in idem between the EU Member States. This can create a lack of equivalent protection for the citizen or legal person when it comes to the enforcement of EU law in the domestic legal order. Why would a EU citizen or legal person be punished twice with a punitive administrative fine and a criminal penalty for EU subsidy fraud in one EU Member State while he is protected against that type of double punishment in another EU Member State? Second, the domestic ne bis in idem principles only have domestic effect and cannot cover transnational situations in the EU. Third, very few EU Member States have a system in place by which to recognize the validity of foreign judgments in punitive matters so that it would bar double punishment. It thus becomes clear that the non-harmonised domestic ne bis in idem principle is not able to offer adequate and equivalent protection for citizens and legal persons, either at home, or in the horizontal internal market or the common area of freedom, security and justice. 

In the last few centuries the ne bis in idem principle also mainly became a principle by which to offer judicial protection for the citizen against the ius puniendi of the state and, as such, it forms part of the principles of due process and a fair trial, in other words it was converted into a fundamental right protecting against cumulative criminal punishment. 3 This not only resulted in the elaboration of domestic constitutional ne bis in idem principles, but also in ne bis in idem provisions in public international law/human rights law (IHRL). Besides, nation states have been increasingly subscribing to bilateral and multilateral conventions on mutual legal assistance (MLA) in criminal matters. Can these human rights and MLA conventions offer adequate and equivalent protection for citizens and legal persons?
section_name: The rationale and scope of the domestic ne bis in idem principle

section_content: As a starting point we must underline that there is no general rule of international law that imposes an international obligation to comply with ne bis in idem. 4 Its application is conventional and thus depends solely on the content of international treaties. We can find public international law treaty-based ne bis in idem provisions in three sources: international human rights law (IHRL), the law regulating international criminal tribunals and multilateral treaties dealing with judicial cooperation in criminal matters, also called mutual legal assistance (MLA).
section_name: Public international law and ne bis in idem

section_content: The conversion of ne bis in idem into a domestic fundamental right protecting the citizen against the cumulative use of the ius puniendi by the state also found its way into IHRL after World War II. The ne bis in idem principle has been enshrined as an individual right in international human rights treaties, such as in Article 14(7) of the International Covenant on Civil and Political Rights of 19 December 1966. 5 We must however take into account that some states formulated reservations to the principle. 6 he ECHR does not contain such a provision and the former European Commission of Human Rights 7 denied the existence of the principle as such under Article 6 of the ECHR, without however precluding in absolute terms that certain double prosecutions might violate the fair trial rights under Article 6 ECHR. The provision has meanwhile been elaborated in Article 4 of the 7th Protocol to the ECHR, 8 but it is not a binding instrument for all EU Member States. Neither the Netherlands nor Germany has ratified this Protocol. The UK is the only member of the Council of Europe that did not even sign it. Moreover, countries like France and Luxembourg have formulated reservations when ratifying. Many EU countries also deposited limiting declarations at the moment of signature. It is clear that several EU countries, 9 like Austria, France, Germany, Italy and the Netherlands, have limited the scope of application of the principle by precluding its application to punitive penalties outside of the criminal code. Germany, for instance, has done this in line with Article 103 of its Constitution. The ne bis in idem principle has also been laid down in the Inter-American Convention on Human Rights in Article 8(4). 10 What can we derive from the case law of both regional human right courts and from the UN Human Rights Committee? To start with the latter, the Human Rights Committee has 11 made it clear in its case law that Article 14(7) does not apply to foreign res judicata, in other words the UN ne bis in idem principle only has effect in the domestic legal order of each Member State. Also the regional human rights courts are in line with the IHRL jurisdiction and have given domestic legal effect to the IHRL ne bis in idem principles. That means that the persons concerned cannot claim the international or transnational effect of the principle under IHRL. 

From the case law of the Inter-American Court on Human Rights it has also become clear that the ne bis in idem principle is not an absolute human right. The positive duty to investigate, prosecute and punish serious violations of human rights (that include core international crimes) can result in setting aside fraudulent res judicata in criminal matters, because of the symbolic punishment, or because of the way in which evidence was gathered during the investigation and presented in the indictment, or because of the way in which the trial court came to its verdict. 12 This is very much in line with the approach under the law regulating international criminal courts. Although Article 10 of the ICTY Statute and Article 20 of the Rome Statute of the ICC recognize that the ne bis in idem principle should apply in the combined jurisdiction of national and international criminal courts, both international criminal courts can activate their jurisdiction, even in the case of final national judgments, if the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility or the case was not diligently prosecuted. 

This analysis has made clear that the IHRL ne bis in idem principle is unable to offer international or transnational protection for the principle. Has it possibly been able to harmonise, in a praetorian way, the domestic application of the principle? The case law of the Human Rights Committee on ne bis in idem is so limited that we can exclude this from the outset. From the case law of the European Court of Human Rights (ECtHR) we can deduce that it has not been easy for the Court to define in a clear way the rationale and the scope of the ne bis in idem principle. The Court has been asked in the majority of cases to deal with the definition of idem. After some contradictory judgements on the application of Article 4 of the Seventh Protocol, based either on idem factum in Gradinger v Austria or on the concept that the same conduct may constitute several offences in Oliviera v Switzerland, 13 in the case of Franz Fischer v Austria 14 the ECtHR elaborated an idem factum concept based on the 'essential elements' of the two offences, although in the case of Götktan v France 15 the Court once again seemed to place its trust in the legal idem. In recent years the Court has again relied on the idem factum concept based on the 'essential elements' of the offences, such as in the Bachmaier v Austria case, 16 the Hauser-Sporn v Austria case 17 and the Garretta v France case. 18 Very recently, in the case of Zolutukhin v Russia, the Grand Chamber 19 admitted that its case law lacked legal certainty and guidance and accepted the necessity of a harmonised interpretation. In Zolutukhin v Russia the ECtHR also confirmed its case law on the bis element of the principle. The Court defines the bis element as the commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. 20 This means that the element of bis also includes the combination of two criminal charges in the sense of Article 6, for instance the imposition of a criminal punitive sanction and an administrative punitive sanction. 21 In the case of Zolotukhin v Russia the Court qualified the first administrative offence, by using the Engel criteria, as penal for the purposes of Article 4 of Protocol 7, mostly due to the nature of the offence and the severity of the penalty imposed. 

On the harmonising effect at the domestic level the conclusion is thus mitigated. First, not all Member States of the EU have ratified the Protocol. Second, some have formulated reservations. This means from the very start that the effect is unequal between the Member States. Third, the case law of the ECtHR has not been abundant and is not, as is recognized by the Court itself, a scholarly example of clarity and guidance. However, the ECtHR has opted for a harmonising interpretation in its recent case law. The problem remains that this harmonising effect is legally not binding on all EU Member States. 

To conclude, we can underline that the binding effect of the IHRL is limited to every single jurisdiction and that the effect of the IHRL ne bis in idem principles cannot be qualified as offering equivalent protection in the EU.
section_name: IHRL and ne bis in idem

section_content: Within the framework of the Council of Europe efforts have been made since the 1950s to introduce a regional international ne bis in idem principle when it comes to MLA. This means that ne bis in idem can play a role when it comes to the extradition of a person or to the gathering of evidence abroad through coercive measures. However, in this cooperation framework the ne bis in idem principle only applies inter partes, which means that it can be or must be applied between the Contracting States in case of a concrete request. It is not considered to be an individual right erga omnes. 

In the MLA conventional instruments the ne bis in idem principle is an important mandatory or optional ground for refusal. The ne bis in idem principle was included in the milestone multilateral Extradition Convention of the Council of Europe of 13 December 1957. Article 9 provided not only for the classic formulation of the ne bis in idem principle dealing with final judgments (res judicata), but also included final decisions of a procedural character. The former ground for refusal is mandatory, however, whereas the latter is only optional: 'Extradition shall not be granted if a final judgment has been passed by the competent authorities of the requested Party upon the person claimed in respect of the offence or offences for which extradition is requested. Extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offence or offences. ' Article 8 also provides an optional ground for a ne bis in idem refusal in the case of lis pendens: 'The requested Party may refuse to extradite the person claimed if the competent authorities of such Party are proceeding against him in respect of the offence or offences for which extradition is requested. '

The Extradition Convention deals with ne bis in idem in a classic intergovernmental setting between the requesting and requested state, but the Additional Protocol of 15 October 1975 supplements Article 9 of the Convention with Paragraphs 2 and 3 which also cover other Contracting Parties. 22 n the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters, dealing with the gathering of evidence, there is no ne bis in idem provision included, either in the Additional Protocol of 1978 or that of 2001. Neither is this the case in the EU Convention of 2000 on Mutual Assistance in Criminal matters or its Additional Protocol of 2001. In other words European states are willing to accept ne bis in idem as a ground of refusal in the MLA when it comes to extradition (including the deprivation of liberty), but not for other investigative coercive measures. 

Ne bis in idem is a mandatory ground of refusal under the 1970 Convention of the Council of Europe on the International Validity of Criminal Judgements (Articles 53-57) and under the 1972 Convention on the Transfer of Proceedings in Criminal Matters (Articles 35-37). However, both conventions have a rather low ratification rate and contain quite a number of exceptions to the ne bis in idem principle. In the 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Article 18, Paragraph 1e), which has been more widely ratified, it is optional, but some Contracting States have included it in their ratification declaration as a ground for the refusal of cooperation requests. 

With the coming into force of the Amsterdam Treaty on the European Union in 1998 the European Council introduced an ambitious mutual recognition programme with the aim of replacing the Council of Europe MLA instruments with proper MR instruments of the EU. The first flagship was the European arrest warrant (EAW), replacing the extradition regime. In the EAW a mandatory non-execution in case of ne bis in idem is included in Article 3(2): 'If the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State. ' However, when there is no final judgment, but only prosecution or where the final judgment is from a third state, the ne bis in idem provision is optional in Article 4: '2. where the person who is the subject of the European arrest warrant is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based (…) 5. if the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country. '

In the European evidence warrant (EEW), the mutual recognition regime which has replaced the mutual assistance system, a ne bis in idem provision has been introduced in Article 13(1) (a), but as an optional ground for non-execution. In the European Investigation Order (EIO) 23 in criminal matters, which is currently being negotiated and which should replace the EEW, it remains an optional ground for nonexecution in Article 10(1) (e). 

What can we conclude from this overview from MLA to MR in criminal matters when it comes to the application of ne bis in idem? First of all, it is clear that the principle only comes into play when competent authorities (states or judicial authorities) request MLA or order MR. In other words it is not a person's right but a ground of refusal (MLA) or a ground for non-execution (MR) between states (MLA) or between judicial authorities (MR). It bars cooperation between the parties involved and does not give a right to the subject. Second, only in a couple of situations is ne bis in idem a mandatory bar to cooperation; in quite a few situations it is optional or is even not foreseen. Third, the MLA-MR regime does not cover the whole field of punitive penalties. Most instruments do not include punitive penalties under administrative law enforcement. We can conclude that the regional cooperation framework in criminal matters, be it MLA or MR, does not provide for a transnational ne bis in idem application in the territories of the Council of Europe Member States or in the territories of the EU Member States in the sense that citizens or legal persons can derive a protective right not to be punished or prosecuted twice. 

Overall it has also become clear that the so-called international ne bis in idem does not offer an international or transnational protection for the subject in question. De facto public international law only imposes obligations in the domestic legal order or conditions the cooperation between the domestic legal orders, without introducing a transnational regional or global right to ne bis in idem protection. This protection against double jeopardy has no international reach or transnational reach for the subject. 

Does the process of European integration under the former European Community (EC) and the actual European Union (EU) offer us another panorama of needs and solutions?
section_name: Mutual legal assistance (MLA) and EU mutual recognition (MR) in criminal matters

section_name: European integration and ne bis in idem

section_content: It comes as no surprise that the EC stumbled upon the issue of the transnational application of the ne bis in idem principle before the coming into force of the Treaty of Maastricht and the justice and home affairs policy. In the field of competition policy both the European Commission and the national competition authorities were competent authorities to impose punitive administrative sanctions. 24 In some countries the criminal courts also had jurisdiction in competition cases. The risk of double punitive penalties was thus more than real for the legal persons concerned. In 1969 the European Court of Justice (ECJ) already had an occasion to address the issue of ne bis in idem in the field of competition. The ECJ held in Wilhelm v Bundeskartellamt 25 that double prosecution, once by the Commission and once by the national authorities, was in line with Regulation 17/62 26 and did not violate the ne bis in idem principle, given the fact that the scope of the European rules and the national rules differed. However, if this would result in the imposition of two consecutive sanctions, a general requirement of natural justice demands that any previous punitive decisions be taken into account in determining any sanction which is to be imposed (Anrechnungsprinzip). In the meantime it has become settled ECJ case law to confirm the ne bis in idem principle as a general principle of Community law 27 which means that it is not limited to criminal sanctions, but that it also applies in competition matters. However, in Cement 28 the ECJ made the application of the general principle of ne bis in idem in the area of EC competition law subject to a 'threefold condition' of the 'identity of the facts, the unity of the offender and the unity of the legal interest protected'. This means that the threefold condition of the ECJ to define the idem element is not in line with the idem factum definition of the ECtHR as established recently in the Zolutukhin case. 29 The fact that the ECJ seems to limit the ne bis in idem principle to double punishment and still accepts the accounting principle instead of barring the second punishment is another point of conflict with the ECtHR case law. These problems have not been solved by the actual competition Regulation 1/2003 either. 30 This Regulation provides that, besides the European Commission, national competition authorities will also apply European competition rules, including the rules concerning enforcement (Article 35). The European Commission and the national authorities will form a network based on close cooperation. In practice, conflicts of jurisdiction and problems regarding ne bis in idem should be avoided through best practices of cooperation, after which competition authorities can suspend or terminate their proceedings (Article 13). There is however no obligation, which means that double prosecution is not excluded as such. 

In the field of competition we cannot speak of a fullly elaborated transnational ne bis in idem principle either. The legislator remained silent and the ECJ has been limiting the rationale of the principle, both when it comes to the definition of idem and the definition of double punishment. There has been no legislative action on the harmonization of the application of ne bis in idem in the domestic application and enforcement of EU law, such as for instance in areas of EU policies in which punitive penalties have been prescribed, like for instance in the area of common agricultural and fisheries policies.
section_name: Ne bis in idem in Community law

section_content: Things started to change with the increasing integration in the field of justice and home affairs after the coming into force of the Maastricht Treaty. Ne bis in idem clauses were included in several instruments, imposing upon Member States the duty to respect the principle within their national jurisdiction when dealing with aspects of justice and home affairs. The Convention on the protection of the European Communities' financial interests and its several protocols contain various provisions on ne bis in idem 32 as does the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union. 33 These clauses aim at respect for ne bis in idem in every single jurisdiction of the EU Member States and does not aim at any transnational regulation of the principle. 

In the 1980s, however, the European Justice Ministers of the former European Community (EC) were already fully aware that the deepening and widening of European integration would lead to an increase in cross-border crime and a need for transnational justice in Europe, going beyond the classic concepts of national jurisdiction. Within the framework of the European Political Cooperation, 34 before the coming into force of the Maastricht Treaty's third pillar on justice and home affairs, the 1987 Convention on double jeopardy was elaborated between the Member States of the EC. This Convention dealt with the ne bis in idem principle in a transnational setting in the EC. The Convention has however been poorly ratified, 35 but its substance has been integrated into Chapter 3 (Articles 54-58) of the intergovernmental 1990 Convention implementing the Schengen Agreement of 1985 (CISA). These Schengen agreements were the conventional legal basis for enhanced cooperation in the fields of justice and home affairs. However, they had been elaborated by a minority of the EC states and outside of the legal framework of the EC. Nevertheless, The CISA Convention can be qualified as the first multilateral convention that establishes an international ne bis in idem principle as an individual right erga omnes, be it limited to the regional Schengen area. 

The ne bis in idem principle is laid down in Article 54 CISA as follows:

' A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party. ' From this reading it becomes clear that the application of ne bis in idem depends on an enforcement clause that refers to the effective application of the penalty in order to avoid impunity. 

Article 55 further limits the reach of Article 54 by introducing the possibility for Schengen States to include reservations at the moment of approval or ratification. Reservations can be made in relation to cases '(a) where the acts to which the foreign judgment relates took place in whole or in part in its own territory; in the latter case, however, this exception shall not apply if the acts took place in part in the territory of the Contracting Party where the judgment was delivered; (b) where the acts to which the foreign judgment relates constitute an offence against national security or other equally essential interests of that Contracting Party; (c) where the acts to which the foreign judgment relates were committed by officials of that Contracting Party in violation of the duties of their office. ' It is also clear that the Schengen ne bis in idem does not stand in the way of broader national protection, as Article 58 CISA provides that: 'The above provisions shall not preclude the application of broader national provisions on the ne bis in idem principle with regard to judicial decisions taken abroad. '

The transnational Schengen ne bis in idem principle is an important improvement and clearly shows that the increasing justice integration cannot be based solely and decisively on effective enforcement considerations. However, CISA is an intergovernmental scheme without judicial supervision and is limited to the common territory of the Schengen States and the Schengen States can use, and and indeed have used, Article 55 to limit the scope of the principle by introducing national territoriality clauses or broad interpretations of the essential interests of the national jurisdiction. Not all Schengen States were convinced that CISA was providing rights to citizens, as some of them refused to publish the text as a public source of legislation.
section_name: The first basis for a regional transnational criminal ne bis in idem principle: the Schengen space 31

section_content: What was politically still impossible at the intergovernmental conference leading to the Maastricht Treaty became finally a reality with the coming into force in 1999 of the Amsterdam Treaty, albeit that it took until the last meeting of the Heads of State in Amsterdam to push it through. The Schengen intergovernmental agreements of 1985 and 1990 and the related Schengen acquis were incorporated into EU Law through Protocol 19 annexed to the Treaty of Amsterdam on European Union (TEU). 36 either the Protocol, nor the Council Decision on the integration of the Schengen acquis 37 refer to the reservations made under Article 55 CISA. The result was that the Schengen ne bis in idem of Chapter 3 CISA became a transnational ne bis in idem principle for the Union in the area of justice and home affairs (third pillar), being part of the area of freedom, security and justice. Second, the EU Charter of Fundamental Rights (CFREU) also became a binding text, which means that the ne bis in idem provision of Article 50 CFREU became a binding fundamental right with a transnational reach in the EU. From the Amsterdam Treaty on the ECJ the ECJ was also entrusted with (limited) jurisdiction in the area.
section_name: From a transnational Schengen principle to a transnational Union principle and a EU fundamental right

section_content: 'No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. ' Although the wording of the article is very classic and seems to refer only to criminal offences, it is clear that the text has to be interpreted in the light of the case law of the ECtHR. Article 52(3) CFREU states clearly that the meaning and the scope of the Charter rights will be the same as the corresponding rights in the Convention. This means in concreto that the application of the Article 6 ECHR criminal charge concept, and the related Engel criteria, to the definition of ne bis in idem results in an Article 50 CFREU ne bis in idem principle that does apply to double punishment stemming from punitive administrative penalties and criminal penalties. The fact that the ECHR ne bis in idem has a domestic application only and Article 50 CFREU an application within the scope of EU law (which can be domestic, transnational and/or at the European level) does not mean that we do not have a similar right with a similar function. Moreover, under Article 52(3) the EU can provide more extensive protection. That means that the ECJ case law providing for a wider protection than the ECtHR is perfectly compatible with Article 50 CFREU. This means that ECJ case law giving broader protection is fully in line with the Charter. 

At the moment of the integration of the Schengen ne bis in idem into the Union, the EU and its Member States were not only convinced of the need for a transnational ne bis in idem principle in the area of freedom, security and justice, given the diversity of the principle in each jurisdiction of the Member States and its domestic reach, but stressed also the need for further legislation on the matter. In fact in the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice 38 it is stated that measures will be established within five years of the entry into force of the Treaty 'for the coordination of criminal investigations and prosecutions in progress in the Member States with the aim of preventing duplication and contradictory rulings, taking account of better use of the ne bis in idem principle'. In the Draft programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters, 39 the ne bis in idem principle is included among the immediate priorities of the EU. However, the EU Member States have been struggling and are still struggling until today with both aspects of the problem: What should be the rationale for and the reach of the ne bis in idem principle and what system should be put in place in order to settle conflicts of jurisdiction in criminal matters or to provide for mechanisms or criteria on which to make a deliberate choice of jurisdiction? 40 In 2003 Greece came up with a proposal for a framework decision on ne bis in idem 41 that had the aim of replacing Articles 54-58 of the CISA by new EU legal rules in order to ensure uniformity in both the interpretation of those rules and their practical implementation. First of all, it is surprising that the proposal aims at codifying in EU law the Schengen reservation exceptions as general exceptions to the principle. Second, the drafters of the proposal have opted for an approach to the bis element of the principle that is not in line with the case law 42 of the ECtHR. In fact, the proposal defines criminal offences as offences sensu strictu, thereby distinguishing them from administrative offences or breaches punished with an administrative fine on condition that they may be appealed before a criminal court. The proposal does prefer the German tradition of administrative criminal law (Ordnungswidrigkeiten) instead of applying the Article 6 Engel criteria on punitive sanctions. The initiative was discussed in the Council of Ministers, but the multitude of divergent opinions between Member States rapidly brought to light the unviability of this legislative solution. No new legislative initiatives, neither from the Commission nor from the Member States, have been submitted to the Council. Concerning the avoidance of ne bis in idem problems by settling, in due time, conflicts of jurisdiction, in 2005 the European Commission drafted a Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings, 43 preparing the way for a framework decision on the matter. Finally the Commission did not come up with a proposal. In 2009 the Czech Presidency submitted a proposal for a framework decision on the prevention and settlement of conflicts of jurisdiction in criminal proceedings. 44 However, the content of the approved framework decision 45 does not really contain any prioritisation of jurisdiction or stringent criteria for centralised prosecutions. It is very much concentrated on information exchange and mediation between Member States concerning jurisdiction issues. 

Once again, it fell to the European Court of Justice to assume its praetorian role and to fill the legal vacuum concerning many relevant legal points, related to the rationale and the scope of the principle, but also the transition from Schengen to the EU. In fact, at the very moment of the integration of Schengen into Union law several Schengen States had reservations in place. Finally, the relationship between the Charter ne bis in idem clause of Article 50 and the Schengen ne bis in idem clauses have to be clarified. 46 rom the joined cases of Gözütok and Brügge 47 onwards the national courts have referred constantly to the ECJ for preliminary rulings under Article 35 TEU on the interpretation of Article 54 of the CISA, raising interesting questions 48 on the rationale and scope of the bis element (Gözütok and Brügge, Miraglia, 49 Van Straaten, 50 Turansky 51 ) and the related enforcement clause (Klaus Bourquain 52 and Kretzinger 53 ) and on the rationale and scope of the idem element (Van Esbroeck, 54 Van Straaten, 55 Gasparini, 56 Kretzinger, 57 Kraaijenbrink 58 and Gasparini 59 ).
section_name: Article 50 CFREU stipulates:

section_content: Due to the extensive case law of the ECJ we can deduce that the ECJ has given an autonomous interpretation to the principle, setting aside the rationale of the Schengen legislator. The new EU context has changed the rationale, scope and function of the ne bis in idem principle as it became part of the scheme of mutual trust in the EU area of freedom, security and justice. Due to this case law we can speak of a real transnational principle, as its application did not depend on further legislation or substantive harmonisation. Following this approach the ECJ has opted for an extensive application of the principle by not limiting the bis situation to final judgments but including out of court settlements on the merits of the case and by opting for a factual idem interpretation and not limiting the idem to de iure definitions of legal qualifications or res judicata. However, the ECJ has elaborated its principle within the area of freedom, security and justice only and has not attempted to elaborate a harmonised approach with the ne bis in idem principle in the internal market/competition policy. This means that we cannot speak of a transnational ne bis in idem principle of the Union for all policy areas, but that we still have to make a distinction between the area of freedom, security and justice on the one side and the internal market/ competition policy on the other. 

Nevertheless, the ECJ's case law has had a harmonising impact beyond the EU, as it did inspire the ECtHR on some modalities of the principle. The most striking example can be found in the case Zolutuhkin v Russia, in which the Grand Chamber 60 has referred very extensively to relevant comparative international law sources, including the ECJ case law on ne bis in idem in the field of competition law and in the field of justice and home affairs as well as the case law of the US Supreme Court on double jeopardy. The Court also admits that: '(…) the body of case-law that has been accumulated throughout the history of application of Article 4 of Protocol No. 7 by the Court demonstrates the existence of several approaches to the question whether the offences for which an applicant was prosecuted were the same'. 61 he Court underlines the necessity of a harmonised interpretation of the idem element of the ne bis in idem principle, in the light of the variety of approaches in the case law of the Court in order to guarantee legal certainty, foreseeability and equality. The Court expressly opted for the idem factum approach: ' Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second "offence" in so far as it arises from identical facts or facts which are substantially the same (…) The Court's inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings. ' 62 The harmonised concept of idem by the ECtHR is fully inspired by the idem definition of the ECJ, as elaborated in the area of freedom, security and justice in the EU. 

Thanks to the case law of the ECJ the ne bis in idem principle has become a living instrument of transnational protection in the common area of freedom, security and justice. However, due to the lack of binding criteria of choice of jurisdiction in criminal matters, the principle has also been converted into an improper mechanism for a preference of jurisdiction. The first jurisdiction that comes to a decision on the merit bars any further prosecution and punishment in the same case for the same person. As it stands there is no guarantee at all that the first jurisdiction is also the best placed jurisdiction, not only from the point of view of effective justice, but also from the point of view of the protection of the victim and even from the point of view of the suspect. In other words, the ne bis in idem principle cannot function properly in a common area without the coordination of jurisdiction and binding criteria on choice of jurisdiction and a proper allocation of cases in the common justice area. 

Finally, the ECJ has not been able to clarify all the legal aspects of the principle and there remain some striking differences with the case law of the ECtHR. From the case law of the ECtHR, also confirmed in the case Zolotukhin v Russia, we can deduce that the ECtHR defines the bis element as the commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. 63 In other words, in the Strasbourg case law the ne bis in idem principle is not limited to double punishment, but also includes double prosecution. In addition, the element of bis also includes the combination of two criminal charges in the sense of Article 6, for instance the imposition of a criminal punitive sanction and an administrative punitive sanction. In the case Zolotukhin v Russia 64 the ECtHR qualified the first administrative offence, by using the Engel criteria, as penal for the purposes of Article 4 of Protocol 7, mostly due to the nature of the offence and the severity of the penalty imposed. We have already underlined that the case law of the ECJ, by accepting the accounting principle as compensation for double punishment, 65 is not in line with the case law of the ECtHR. There are however signs that the ECJ is aware of the problems and is willing to apply the ECtHR reasoning. Recently the ECJ has followed the ECtHR's reasoning in the Bonda case, 66 dealing with the accumulation of a criminal sanction and the administrative exclusion of a subsidy in the field of the common agricultural policy. The ECJ applied the Engel criteria to the ne bis in idem principle of Article 4 of Protocol 7 and came to the conclusion that the exclusion of a subsidy is not criminal/punitive in nature and does not therefore trigger the ne bis in idem principle in this case. This means, however, that in the future the ECJ could come to the conclusion that some punitive administrative sanctions cannot be cumulated with criminal sanctions in EU law as a result of the prohibition of double penalties, an interpretation that would be fully in line with that adopted by the ECtHR.
section_name: The rationale and the scope of the transnational ne bis in idem principle based on Article 54 CISA

section_name: The EU fundamental right to ne bis in idem in Article 50 CFREU: rationale, limitations and exceptions

section_content: Due to Article 51(1) CRFREU the Charter applies to the institutions and bodies of the EU and to the Member States only when they are implementing EU law. Due to Article 6 TEU, the Charter has become binding as a primary source of EU law. However, the exact meaning of 'when they are implementing EU law' and thus of the scope of application of the Charter ratione materiae in the Member States remains open, as the ECJ has not yet expressed a definitive opinion on the matter. 67 In their interventions in cases before the ECJ, however, some Member States are advocating a narrow interpretation, by which 'a connection with EU law, acting in the scope of EU law or in the field of application of EU law', the actual criterion for the application of general principles of EU law, would not be enough to trigger the application of the Charter. 

The discussion is important for our topic, as it affects the scope of application of Article 50 CFREU. Some interesting cases dealing with the enforcement of EU policies in the domestic legal order of the Member States and ne bis in idem issues have been submitted to the ECJ since the coming into force of the Lisbon Treaty. 

In Case C-617/10, Aklagaren v Hans Akerberg Fransson, one of the legal points of interest is exactly the field of the material application of the CFREU. The Swedish tax authorities had accused Mr Fransson of VAT irregularities and a related failure to comply with information obligations and in 2007 they had fined him with administrative tax penalties. In 2009 Mr Fransson was prosecuted for the same facts and faced punishment of up to six years' imprisonment. The case was submitted by the Haparanda District Court to the ECJ for a preliminary ruling. In his opinion of 12 June 2012 Advocate General Cruz Villalón 68 elaborated upon the interpretation of Article 51(1) CFREU. What does it mean when it is stated that the Member States are bound by the provisions of the Charter 'only when they are implementing Union law?' The AG pointed rather to continuity with the existing case law on the application of general principles of Community/Union law, which means 'in the field of application of Union law'. This brought him to the following triad: scope-field of application-implementation. In his view, the competence of the Union to assume responsibility for guaranteeing the fundamental rights vis-à-vis the exercise of a public authority by the Member States, when they are implementing Union law, must be explained by reference to a specific interest of the Union in ensuring that the exercise of public authority accords with the interpretation of fundamental rights by the Union. 69 However, he is of the opinion that the mere fact that such an exercise of public authority, expressly the power of the State to impose penalties in this particular case, if ultimately based on a provision of Union law, is not, in itself, sufficient for a finding that there is a situation involving the implementation of Union law. The result of his reasoning is that the link is not sufficient to transfer the review of any constitutional guarantees applicable to the exercise of that power from the sphere of the responsibility of the Member States to that of the Union. 70 The premise for finding that the Union has an interest in assuming responsibility for guaranteeing the fundamental right concerned in this case is the degree of connection between Union law, which is in principle being implemented, and the exercise of the public authority of the State. He considered the VAT Directive 71 to be an extremely weak link and not, in any event, a sufficient basis for a clearly identifiable interest on the part of the Union in assuming responsibility for guaranteeing that specific fundamental right vis-à-vis the Union. 72 t is interesting to compare the opinion of Advocate General Cruz Villón with the one of Advocate General Kokott in the similar Bonda case. 73 In this Polish case Bonda, accused of an incorrect declaration under the EU agricultural subsidy scheme, was excluded by the administrative Agricultural Restructuring and Modernisation Agency from receiving a EU subsidy for several years and was subsequently convicted and given a suspended custodial sentence by the criminal district court. The appeal court decided, however, that the criminal proceedings against Bonda were inadmissible because of the ne bis in idem principle. After an appeal to the Supreme Court in the interest of the law, the Supreme Court referred to the ECJ for a preliminary ruling. In my view the ne bis in idem problem is quite similar in the Bonda case and Fransson case, as in both cases there is a risk of double punitive penalties (administrative and criminal) in one jurisdiction. Is there a different degree of connection with the implementation of EU law? In the case of Bonda, there is a Commission regulation that explicitly imposes the exclusion of subsidies as an administrative sanction. However, criminal enforcement is not specifically prescribed by Union law and is thus only imposed under the general enforcement obligations of the ECJ (effet utile and effective, proportionate and deterrent sanctions). 74 In the case of Fransson there is no explicit provision in the VAT Directive, but only a reference thereto in Article 273: 'Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion (…). '

In the case of VAT the Member States have in any case the duty to comply with the same enforcement obligations imposed by the ECJ, which means that this 'may' become a must and can include administrative and criminal penalties. 

In the Bonda case AG Kokott clearly underlined that the ne bis in idem principle enjoys the status of a fundamental right of the EU under Article 50 CFREU and that this case is within the scope of the Charter, 75 whatever interpretation -restrictive or not -may be given to the material scope of the Charter. Despite several references by AG Kokott to Article 50 CFREU as an applicable human right, the ECJ completely neglected Article 50 CFREU in its analysis and reasoning. This is more than striking, as in both cases there is a substantial degree of connection with Union law. The scope and the interest are similar: an effective application and enforcement of the common agricultural policy and the common VAT regime. In case of the ineffective application of both, they potentially affect the budget of the Union. In other words, there is a direct link with the protection of the financial interest of the Union, which is one of the core interests of the Union, as laid down in Article 235 of the TFEU. 

From the point of view of the alleged party, in both cases his fundamental right to ne bis in idem protection is at stake not only as part of an enforcement policy of a sovereign state, but also as the consequence of the policy and enforcement choices of a Member State in applying and enforcing EU obligations. In other words we are not speaking here of a purely internal case falling outside the scope of the application of EU law. When we are aiming at the effective and equivalent protection of the financial interests of the Union, it is logical that we are aiming at equivalent human rights protection at the same time, as provided for by and under the Charter. This is a sufficient reason to trigger the material application of the Charter and to trigger the jurisdiction of the Court to ensure uniform application through preliminary rulings. 

In its judgment of 28 February 2013 in the Aklagaren v Hans Akerberg Fransson case the ECJ has excluded from the very start that Member States can act within the scope of EU law, but excluding the application of the Charter: '21. Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter. ' 76 It is clear to the Court that that tax penalties and criminal proceedings for tax evasion, such as those to which the defendant in the main proceedings has been or is subject because the information concerning VAT that was provided was false, constitute the implementation of EU directives and of Article 325 TFEU and, therefore, of EU law. The mere fact that the national legislation was not formally enacted to transpose the directive is not an argument as its enforces an EU obligation: imposing effective penalties for conduct prejudicial to the financial interest of the EU. 

Applied to the concrete case, the ECJ has underlined that the Charter does not preclude a Member State from imposing, for the same acts of non-compliance with declaration obligations in the field of VAT, a combination of tax penalties and criminal penalties. To assess whether tax penalties are criminal in nature the Engel criteria of the ECtHR, also clearly used in the Bonda case, are applicable. In this case, contrary to the case of Bonda, 77 the ECJ considered that it is for the referring court to determine, in the light of those criteria, whether the combining of tax penalties are punitive in character. When it is considered punitive, however, double punishment is barred by Article 50 CFREU. 

With its judgment in the Akerberg Fransson case the ECJ has confirmed the autonomous interpretation of Article 50 CFREU, its application to the national enforcement of EU legislation and its applicability to all punitive sanctioning in line with the Engel criteria on punitive sanctions. In other words Member States that do limit ne bis in idem, when implementing and enforcing EU law, to criminal law sensu strictu, will have to widen their scope of protection in order to include punitive administrative sanctioning. 

The Akerberg Fransson case is a national case of ne bis in idem application, but Article 50 CFREU has transnational effect. This means that Member States will have to face the transnational application of ne bis in idem for all punitive sanctioning in the EU when implementing and enforcing EU law.
section_name: Applicability of Article 50 CFREU

section_content: Although Article 50 CFREU is a primary source of Union law, it does co-exist with Article 54 CISA, ne bis in idem clauses in the MLA and MR regimes, and Article 4 of Protocol 7 ECHR. Although these multiplicity of ne bis in idem clauses have different functions, they do not contribute to a comprehensive constitutional legal principle in the Union. Moreover, many of the ne bis in idem clauses outside of Article 50 CFREU have a restricted application because of certain exceptions, derogations or reservations. In the MLA and MR regimes the ne bis in idem clause cannot only be optional, but is also limited by exceptions if it is mandatory. The same exceptions are also derogations or reservations to Protocol 7 ECHR or Article 54 CISA. In practice some Member States have formulated restricted or no application at all of ne bis in idem in the following situations: offences that have been committed on national territory (territoriality clause); the preclusion of punitive administrative sanctions from the scope of application; the interests of national security or other related interests and/or offences committed by national civil servants. 

Several national criminal courts have been obliged to deal with this legal patchwork, including the relationship between Article 50 CFREU and Article 54 CISA. In an interesting Italian case the judge of preliminary investigations of the Tribunal of Milan ruled on this matter. 78 In this case he had to decide 76 <http://eur-lex. europa. eu/LexUriServ/LexUriServ. do?uri=CELEX:62010CJ0617:EN:HTML> (last visited 31 May 2013). 77 In the bonda case the administrative sanction was prescribed by the EU regulation and the referring court did ask for a ruling on the legal character of the sanction. 78 Tribunale di Milano, ufficio del Giudice per le indagini preliminary, N. 12396/92 RG N. R-N. 3351/94 RG G. I. P., 6 July 2011. on a committal procedure against two German suspects of a murder in Italy in 1989, for which they had already been sentenced to 5 years and 6 months imprisonment in Germany. After having served these German sentences and having used their EU right of freedom of movement, they were arrested and charged by the Italian prosecutorial authorities for the same facts. At the moment of ratifying the CISA provisions, Italy had used its prerogative to make a reservation 79 under Article 55 CISA, in order to bar the application of Article 54 CISA when the acts to which the foreign judgment relates took place in whole or in part in its own territory (the territoriality clause). 80 he point of departure of the Italian judge was the Union interest in the freedom of movement within the area of freedom, security and justice. In his view Article 50 CFREU and Article 6 TEU that do not contain exceptions to the fundamental right and have direct and immediate application in the legal order of the Member States are de iure abrogated by the Schengen derogations. By applying his reasoning to the ne bis in idem principle of Article 50 CFREU and Article 6 TEU, he decided not to commit both suspects to trial. 81 t is a pity that the Italian judge did not submit his questions to the ECJ for a preliminary ruling, at least concerning the validity of the CISA reservations after the integration of the Schengen acquis in the Union (given the fact that they were not mentioned in the Schengen Protocol to the Amsterdam Treaty and in the Council Decision on the Schengen integration), the applicability of Article 50 CFREU to the limitation on the freedom of movement and the consequences for the relationship with the CISA provisions on ne bis in idem. This can be seen as a missed opportunity to receive uniform answers from the ECJ. 

The Greek Supreme Court 82 has ruled in the same sense as the Italian Milan Court judge. Greece had filed a reservation 83 according to Article 55 CISA to exempt inter alia drug trafficking offences from the application of the ne bis in idem rule. The Hellenic Supreme Court linked the ne bis in idem protection to the principle of the mutual recognition of court judgments and orders. The Court considered Article 50 CFREU to be a directly applicable provision that does not need further harmonisation to be triggered and it came to the conclusion that the reservations by Greece under Article 55 CISA had been repealed by the entry into force of the Treaty of Lisbon and the CFREU. 

The German criminal courts have had to deal with cases in which a penalty had been imposed against a person, but not enforced or was in the process of being enforced. The enforcement clause is a substantial part of Article 54 CISA, but is not mentioned in Article 50 CFREU. The German District Court of Aachen 84 and the German Federal Court of Justice 85 decided that due to Article 52(1) CFREU the rights enshrined in the Charter can be restricted by laws that respect the essence of the Charter. In their view Article 54 CISA represents such a restriction, by which Article 50 CFREU only applies in accordance with Article 54 CISA. This interpretation has been confirmed by the German Federal Constitutional Court. 86 None of these courts have submitted a preliminary ruling to the ECJ, however. The interpretation by the Hellenic Supreme Court and the Milan district court aim at the effective protection of the ne bis in idem right in a common area of freedom, security and justice, without any restrictions stemming from the intergovernmental cooperation regime under Schengen. They have opted for an autonomous application and interpretation of Article 50 CFREU. However, they have not dealt with the material scope of the Charter, as defined under Article 51(1) CFREU. What does it mean when Member States are only bound by the Charter when implementing EU law? Is the fact that restrictions to the ne bis in idem right affect the freedom of movement within the EU enough to trigger the application of the Charter? 87 At least the question should have been tackled and answered or should have been submitted to the ECJ for a preliminary ruling. 

It think that they are right, however, when they consider that the reservations under the CISA, being reservations of sovereign states, and not restrictions decided by EU Member States, make little sense in the common area of freedom, security and justice and should be set aside. 

The interpretation by the German Courts is problematic from other points of view, however. First of all, the restrictions on the rights have been made in an intergovernmental context, not in a common context of the area of freedom, security and justice. To which extent does the enforcement clause make sense in the area of freedom, security and justice? The clause is also not included in Article 4 of Protocol 7 ECHR. In any case restrictions to the right are only acceptable under Article 52(1) if they comply with four conditions: legality, respect for the essence of the right protected, necessity and proportionality. 88 Second, the interpretation by the German Courts limits the scope of Article 50 CFREU for the area of freedom, security and justice through Article 54 CISA. This means that the limitation is of no value for other EU areas, such as in the field of the internal market and competition policy. The result is a diverging application of Article 50 CFREU. 

Although Article 4 of Protocol 7 ECHR has no transnational application as is the case with Article 50 CFREU, it can lead to conflicting situations for Member States, as Article 50 CFREU can also apply in domestic situations only. What happens if Member States have not ratified Protocol 7 ECHR or have formulated a reservation as to its application and are not willing to accept the application of the ne bis in idem principle to the bis combination of punitive administrative and criminal penalties? This is however how the principle has been filled in by the ECtHR and is thus the basic line of Article 50 CFREU. In my opinion Article 50 CFREU de facto sets aside the non-ratification of declarations or reservations, as long as the Charter applies in a domestic situation of the ne bis in idem right. In such a case all Member States should apply the substance of Article 50 CFREU, in line with Article 4 of Protocol 7 ECHR. It would be a strange situation that in a common area of freedom, security and justice national reservations could still prevail as a claw-back clause concerning a fundamental right of primary law. 89
section_name: Limitations and exceptions to the ne bis in idem principle: claw-back clauses of national sovereignty?

section_content: In the EU do we today have an equivalent transnational protection of ne bis idem that applies both in the vertical and horizontal dimension of European integration? We have come to the conclusion that neither the domestic ne bis in idem principle, nor the public international law equivalent in human rights conventions or in MLA conventions can offer this protection. 

Within the proper EU context we have a multiple set of ne bis in idem with a transnational character: a general principle of EU law in competition law; Article 54 CISA in the area of freedom, security and justice; provisions in MLA and MR instruments; and Article 50 CFREU. The ECJ has elaborated Article 54 CISA into a real transnational human rights principle. However, Article 54 CISA does not apply in all fields of EU policy and law, as it is limited to the area of freedom, security and justice and it remains unclear even in that area if the derogations and reservations of the former Schengen States are still of any legal value. 

It would be logical if the ne bis in idem principle of primary EU law, Article 50 CFREU, would become the overall transnational ne bis idem principle for all EU policies, both at the EU level and in the Member States, when acting within the scope or field of application of EU law. However, it remains unclear, as it stands, whether the ECJ is willing to follow this interpretation and to use the Charter as an autonomous standard of applicable human rights in the Member States, when acting within the scope of Union law. It also remains unclear whether the ECJ is willing to elaborate a unified and comprehensive ne bis in idem principle at the EU level for all EU policies and law. The ECJ should follow the reasoning of AG Sharpston in the Zambrano case 90 by which she advocates applying the Charter in all fields of competence that have been conferred upon the EU (exclusive or shared). The applicability of EU fundamental rights would neither be dependent on the direct applicability of a specific Treaty provision nor on the adoption and implementation of EU secondary law. 91 he divergent rationale and scope of the principle in the area of competition policy and criminal justice has been upheld by the ECJ. One may wonder if this is compatible with Article 50 CFREU. Does ne bis in idem have another function when enforcing competition rules in the internal market than in the area of freedom, security and justice? I doubt it. Moreover, in both situations ne bis in idem and choice of jurisdiction (allocation of cases) are intertwined. In both situations the EU legislator has competence to regulate on conflicts of jurisdiction. However, the ECJ has shown that it is aware of the need for consistency, at least in the area of justice and home affairs. Traditionally, as we have seen under 2. 3, ne bis in idem can be a (mandatory or optional) ground of refusal or a ground for non-execution within the framework of MLA requests or MR orders. Article 54 CISA does not deal as such with MLA or MR, as the material scope of its application is not dependent on requests or orders. Recently, in the Mantello case, 92 the ECJ has clearly opted for a converging approach, linked to shared objectives in the area of freedom, security and justice: 'In view of the shared objective of Article 54 of the CISA and Article 3(2) of the Framework decision, which is to ensure that a person is not prosecuted or tried more than once in respect of the same acts, it must be accepted that an interpretation of that concept given in the context of the CISA is equally valid for the purposes of the Framework Decision. ' 93 The result is in concreto that the idem definition based on idem factum is now the standard not only for CISA cases but also for MLA and MR cases and has also become the standard under Article 4 of Protocol 7 ECHR. It is thus clear that Article 50 CFREU can here rely on a common approach in the area of freedom, security and justice. However, the problem remains that this standard does not yet apply to Union policies outside of the area of freedom, security and justice such as the internal market and competition policy. 

We do not only have a problem with the scope of application in the EU, but also with the rationale of the principle. In sovereign state interests it seems that in the area of freedom security still prevails over the fundamental rights of citizens and legal persons. The legal battle on the status and legal value of reservations to the CISA ne bis in idem and to Article 4 Protocol 7 ECHR in relation to Article 50 CFREU is a good example. Member States have to accept that the intergovernmental state-orientated approach, excluding the individual as a subject of rights, is no longer compatible with the basic concepts of the area of freedom, security and justice. The model of international cooperation between states in criminal matters has been replaced by a shared policy between the EU and Member States in dealing with transnational criminal justice. The individual has become a subject with rights and obligations in relation to transnational criminal justice in the area of freedom, security and justice. 94 The Article 54 CISA and Article 50 CFREU ne bis in idem principles do not depend on the harmonization of substantive procedural criminal law or on applicable schemes of MLA or MR cooperation. It is a fundamental right that is no longer connected to the respective jurisdictions of each Member State and thus creates subjective rights for EU citizens and legal persons in the Union. In transnational cases there is always a clear link with the freedom of movement of persons. That freedom can be restricted for proportionate and justified reasons in concrete cases. It is however unacceptable under EU law that a restrictive interpretation of the material scope of Article 50 CFREU would result in a structural limitation on the freedom of movement because of the risk of double jeopardy. The right to ne bis in idem can no longer depend in a single area of freedom, security and justice on sovereign claims of national jurisdiction based on national territoriality clauses. Claw-back provisions inspired by national sovereignty are undermining the basics of a common area. 

The fundamental right to ne bis in idem is of course not absolute and can be restricted. The restrictions must however be clearly foreseeable and serve a legitimate aim in the area of freedom, security and justice in the EU. It is not enough that they serve that aim in the single jurisdiction of one Member State. For this reason the EU Member States must be compelled to set aside the reservations and to elaborate a common European scheme, and/or the ECJ has to clarify the legal situation from the common EU perspective. 

The legal framework of the Treaties (TEU and TFEU) offers a good opportunity to elaborate a transnational constitutional ne bis in idem principle that can protect citizens and legal persons at the EU level and in Member States (both in the vertical and horizontal dimension). Given the increasing impact of EU regulation both in the jurisdictions of the Member States and in the transnational EU setting, there is a real need for such a transnational application. 

We must however be aware of the fact that the rationale of a transnational ne bis in idem principle is not to prevent and settle conflicts of jurisdiction, 95 nor to allocate prosecution and adjudication in punitive proceedings in the EU. A proper EU system of prevention and choice of jurisdiction is necessary in the interest of justice, but also in the interest of citizens and legal persons, as it can avoid many problems of double prosecution and punishment. 

Finally, the EU has embarked on the task of providing real transnational ne bis in idem protection within the common territory. When it comes to ne bis in idem problems between EU countries and third countries or outside the EU we fall back on the provisions in MLA treaties or in specific agreements (like in the competition field). In other words ne bis in idem protection is regionalizing in the EU, but not globalizing and so it is not yet a general principle of transnational criminal justice. ¶ 95 M. Luchtman, 'Transnational Law Enforcement in the European Union and the ne bis in idem principle', 2011 review of European Administrative law 4, pp. 5-29 and M. Luchtman (ed. ), Choice of forum in cooperation against Eu financial crime, 2013.
section_name: Conclusion