The evolution of European Union criminal law (1957-2012)

prosecuted elsewhere in the EU. Rather than an active obligation Member States are thus
under an obligation to refrain from prosecuting or stopping prosecution.
Mutual recognition in the light of the ne bis in idem principle can thus protect individual
rights. This was significantly explored by the CJEU which has delivered important
judgements on the principle of ne bis in idem. This case law has been welcomed for
focusing mostly on the protection of the individual and hence striking some balance to
the enhanced punitive framework of mutual recognition. It will be seen however how
such wide protection can have a second effect of favouring a fast justice and an
allocation of jurisdiction on a first come first served basis.
The exact meaning and extent of the CISA provision has proven to be unclear and
requests for its clarification have reached the CJEU. The first dispute on the
interpretation of the provision reached the CJEU in 2003 in the joint cases Gozotuk and
Brugge. 877 Both cases involved the termination of criminal proceedings by public
prosecutors via out of court settlements (by Belgium and Germany respectively) with
another Schengen State seeking to prosecute and punish after that first settlement had
been finalised. The question raised before the CJEU was in essence whether ne bis in
idem applied to such out of court settlements. The Court took a broad view on the matter
highlighting that any procedure which barred further prosecution - when taken by an
authority playing a part in the administration of criminal justice in national systems -
would be regarded as ‘finally disposed of’ for the purposes of Article 54 of the CISA. 878
The Court noted that the Schengen acquis is aimed at enhancing European integration
and, in particular, at enabling the EU to more rapidly become an area of freedom,
security and justice. It continued by remarking that the objective of Article 54 CISA was
to ensure that no individual would be prosecuted twice for the same facts in several
Member States because of having exercised his free movement rights. This goal would
not be fully attained if it would not apply to decisions definitely discontinuing
877 Joined cases C-187/01 and C-385/01 [2003] ECR I-345. For a detailed analysis of the facts
and the decision see J. Vervaele, Case note (2004) 41 Common Market Law Review 795.
878 In fact, it had been noted by for example Germany, Belgium and France that the application of
ne bis in idem to cases where no court has been involved in the reaching of the final decision was
not envisaged by the Contracting Parties to the Schengen Convention nor to other international
instruments which also have a narrower interpretation of bis in this case. The Court disagreed and
found that nothing in the wording of Article 54 precluded such an interpretation and further noted
that when the Convention had been drafted it had been so not at the light of its future
incorporation in the framework of the EU, hence that historical and teleogical argument would no
longer be accurate, see para 41, 42 and 46, ibid..
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