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

definitely bar further prosecution at the national level does not constitute a procedural
obstacle to the possible opening or continuation of criminal proceedings. 895
This wide interpretation of ne bis in idem by the Court goes hand in hand with other
mutual recognition instruments in that it validates the national decision beyond the
national territory, potentially to the entire European Union. 896 Furthermore, mutual
recognition as a punitive and protective tool raises questions regarding the nature and
reach of the principle. As Mitsilegas puts it,
“While the maximum mutual recognition of coercive measures such as the European
Arrest Warrant leads to concerns regarding the extension of the State’s punitive sphere,
a broad application of ne bis in idem (viewed as a facilitator of free movement) has thus
far led to the opposite results – an extension of the protective sphere for the individual in
the ‘area of freedom, security and justice’.” 897
4.1 Ne bis in idem as reassertion of ius puniendi
However, the principle of ne bis in idem as it has been shaped, does not favour the
individual alone but also the fastest State to give closure to a criminal process in
whatever form. As shown above, the fact that a State gives closure to criminal
proceedings will, in most cases, prevent other EU jurisdictions from prosecuting the
same person for the same crime. This is tantamount to allocating adjudication on a ‘first
come, first serve basis’, raising questions of policy, opportunity and legitimacy in the
adjudication of criminal decisions across the EU. 898 The Commission voiced these
concerns in its Green Paper on ne bis idem noting that,
“(...) without a system for allocating cases to an appropriate jurisdiction while
proceedings are ongoing, ne bis in idem can lead to accidental or even arbitrary results:
by giving preference to whichever jurisdiction can first take a final decision, its effects
amount to a ‘first come first served’ principle. The choice of jurisdiction is currently left
895 Para 46-47, ibid..
896 As noted above, the principle of ne bis in idem was introduced in the context of ECL via the
incorporation of the Schengen acquis in EC and EU law by the Treaty of Amsterdam (TEU(A)),
see supra note 194.
897 V. Mitsilegas, EU Criminal Law, supra note 14, 149.
898 See AG Sharspton points on the shortcomings of preventing decisions on the merits of the
case, in her Conclusions in the Gasparini case, supra note 889.
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