Ne Bis in Idem and the Enforcement Condition: Balancing Freedom, Security and Justice?

DOI10.1177/203228441400500408
AuthorMartin Wasmeier
Date01 December 2014
Published date01 December 2014
Subject MatterUpdate
534 Intersentia
NE BIS IN IDEM AND THE
ENFORCEMENT CONDITION
Balancing Freedom, Security and Justice?
M W*
Case C-129/14 PPU Spasic, Judgment of the Court (Grand Chamb er) of 27May 2014
ABSTRACT
A transnational ne bis in idem rul e (or: prohibition of double jeopardy) i s a core element
of the area of freedom, security and ju stice. It has been given di erent expressions in
Article50 of the Charter and Ar ticle54 of the Convention Implementing the Schengen
Convention (CISA). In its judgment of 27May 2014, the Court dealt with the relation
between these provisions.  is article critically discu sses the judgment’s reasoning and
its co nclusion that the “e nforceme nt claus e” (which subje cts ne bi s in idem to additi onal
conditions regarding the enforcement of a penalty) is fully compatible with the Ch arter.
It is submitted that additional elements should be taken into account in the necessity
and proportionality test under Article52(1) of the Charter, such as: a clari cation of
the right’s rationale, possible alternatives to the enforcement clause and a thorough
balancing between security conce rns, free movement, procedural fairness and material
justice.  e Court’s core argument, according to which the existing framework for
judicial cooperation in criminal matters is insu cient to prevent risks of impunity is
put under particular scrutiny. Furthermore, in the light of the previous case law on
double jeopardy and the judgment in Case “M” of 5June 2014, the article underlines the
need to ensure consiste ncy in the reasoning.
1. INTRODUCTION
Ne bis in idem, or the prohibition of double jeopardy, is a common legal principle in
public international law as well as i n Union and national law.1 Article50 of the Charter
of Fundamental Rights (herea er: “Charter” or “CFR “) constitutes it as a right for
* PhD, S enior E xper t at th e Europ ean C ommis sion L egal S erv ice.  e views e xpressed are exclus ively
those of the author a nd may not in any circumsta nce be regarded as expres sing an o cial position
of the European C ommission.
1 For an overview, see J.Vervaele, Ne Bis in Id em: Towards a Transnational Cons titutional Pri nciple in
the EU, 9 Utrecht Law Rev iew 4 (2013), p.211–229.
Ne bis in idem and t he Enforcement Condition
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 4, 2014 535
persons who were  nally acquitted or convicted not to be tried or to be punished
again for the same o ence. Under Article 54 of the Convention Implementing the
Schengen Agreement (herea er: “CISA”),2 however, it is subject to the condition “that,
if a penalty has been i mposed, it has been enforced, is actually i n the process of being
enforced or can no longer be enforced under the laws of the sentencing Contracting
Party”.3 In Spasic, t he question whether this enforcement condition or clause is
compatible with the Char ter, which has been a matter of fervent controversy, was
brought before the European Cour t of Justice.
e apparent di erence between the Charter and t he CISA can be explained by the
fact that the latter wa s signed in 1985 in the context of intergovernmental cooperation
when setting up the Schengen Area – before the Charter, the objective of an a rea of
freedom, security a nd justice and a Union competence in criminal law were added
to the Treaties. Article 54 CISA was an innovative provision: for the  rst time,4 it
introduced a transnational ne bis in idem rule, i.e. one that applies not only within a
State, as in public international law5 and the national law of most Member States , but
between di erent States.
e CISA was later incorporated i nto the Union’s legal order by the Schengen
Protocol6 and is now applicable to all Member States apar t from Ireland and the
UK.7 A Council Decision based on that Protocol8 determines the legal status of
Article54 CISA in analogy to legal ac ts under the former “third pillar” (ex-Title VI
TEU on cooperation in crimi nal matters). In brief and simple terms, this means t hat
Article 54 CISA is to be considered secondar y Union law and its interpretation is
subject to the procedure on preliminary rulings (Article 267 TFEU, ex-Article 35
TEU).9 In contrast, the Charter has now the same legal value as the Treaties
(Article6(1) TFEU), i.e. it is part of primary Union law. As Article50 CFR is the lex
superior,10 a reference for a preliminary ruling was to be expected. It has a lso been
2 Convention of 14June 1985, OJ 2000 L 239, p.19.
3 Cf. EU Conventions on the prote ction of the Europea n Communities’  nancial interests (OJ 1995 C
316, p.48), Article7 and on the  ght against corruption (OJ 1997 C 195, p.1), Article10.
4 e Convention between the Member States of the European Community on Double Jeopardy of
25May 1987 contains an al most identical tex t but did not enter into force due to a lack of r ati cation.
5 In particu lar, see International Covenant on Civ il and Political Right s of 16December 196 6 and
Article4 of Proto col No 7 to the ECHR of 22November 1984.
6 Treaty Protocol no. 19, OJ 1997 C 340, p.93.
7 However, an application of Ar ticle54 CISA was accepte d by/for the UK and Ireland (see Council
Decisions OJ 200 0 L 131, p.43 and 2002 L 64, p.20); the situation i s under development, also i n view
of the UK’s “opt-out” according t o Article10 of Treaty Protocol no. 36. Irel and provisionally a pplies
the 19 87 EU C onvent ion (supra note 4). Fur ther more, A rti cle54 CISA i s appli cable in som e non-E U
states.
8 Decision 1999/436/EC (OJ 1999 L 176, p.17), Article2 , Annex A.
9 Ex-Article35 TEU rema ins applicable on such acts unt il 1December 2014; see Treaty Protocol no.
36 (cf. para 42  . of the Spasic judgment).
10 It may be less relevant th at it is also lex poster ior (cf. decision by the referri ng court, para 43).

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