The ne bis in idem principle is one of the most fundamental guarantees in criminal procedure law. It prohibits a second prosecution in cases that have already been concluded by a final decision. According to the traditional understanding, the principle excludes a duplication of proceedings only within the same jurisdiction. Art. 50 CFR, however, which was incorporated into primary EU law by Art. 6 TEU, extends the principle’s scope to the transnational sphere to the effect that a final decision in one Member State constitutes a bar to new proceedings in other Member States of the EU as well. While this transnational ne bis in idem guarantee in principle allows for limitations, these must meet the requirements provided for by Art. 52 para. 1 CFR.

The pending Case C-27/22, which has its roots in the diesel scandal involving German automobile producer Volkswagen, gives the Court of Justice of the European Union an opportunity to set new standards in this regard, which might be of high relevance for the future understanding of the ne bis in idem guarantee in a single area of freedom, security, and justice. In particular, it offers the Court the chance to provide guidance on the conditions that an EU secondary law provision must meet in order to be qualified a legitimate legal basis for a limitation to the transnational ne bis in idem principle. Furthermore, it gives the Court the opportunity to clarify whether all of the specifications of the criteria for limitations to the intra-state ne bis in idem guarantee that have been developed in Menci and Garlsson Real Estate, and were elaborated in BV and bpost also apply at inter-state level.

This article sheds light on these questions by discussing the criteria for limitations of the ne bis in idem principle, including their specifications originally established for intra-state cases, against the background of the Volkswagen Case C-27/22, which is transnationally structured.

Lees verder: