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Some Reflections on Schengen Free Movement Rights and the Principle of Ne Bis In Idem

  • Eleanor Sharpston and José Maria Fernández-Martín


This chapter makes no attempt to present a definitive exposé of the relationship between Schengen free movement rights and the principle of ne bis in idem. Although elements of the basic structure of that relationship are relatively fixed, the questions that it raises are complex and sensitive. In the absence, thus far, of legislative action by the Council, it has fallen to the European Court of Justice (ECJ) to define a number of core concepts in the contexts of references for preliminary rulings that have been made to it by national courts. In so doing, it has necessarily found itself choosing between two desirable goals that are partially irreconcilable with each other: liberalised free movement of persons within the ‘Schengen Area’, on the one hand, and the Union’s objective of ‘provid[ing] citizens a high level of safety within an area of freedom, security and justice’, on the other hand.



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1 Both authors would like to thank their former colleague, Vanessa Edwards, for her reactions to an earlier draft, and Dr Geert de Baere and Catherine Howdle, both current référendaires in AG Sharpston’s chambers, for their help in getting this (extended) project ready for publication.

2 The notions of ne bis in idem, res iudicata, as defined in criminal law, and double jeopardy are used in this chapter interchangeably. However, it should be noted that the meaning of res judicata goes beyond that of ne bis in idem and double jeopardy, particularly in continental legal systems where it also applies in the context of civil law. See McDermott, P, Res Judicata and Double Jeopardy (Dublin, Butterworths, 1999).

3 For a description of the mechanism of the preliminary reference procedure and the respective roles played by national courts and the ECJ therein, see any standard work on EU law, eg Craig, P and De Burca, G, EU Law Cases and Materials 3rd edn (Oxford, Oxford University Press, 2002).

4 Art 29 TEU.

5 Case C-467/04 Gasparini [2006] ECR I-9199.

6 Case C-288/05 Kretzinger [2007] ECR I-6441.

7 Case C-367/05 Kraaijenbrink [2007] ECR I-6619.

8 Cf Monsieur Jourdain speaking prose without realising it: J-BP Molière, Le Bourgeois Gentilhomme (1670), II, iv.

9 Cf Case 175/78 R v Saunders [1979] ECR 1129, paras 10–12. It is interesting to note that, in the context of the avowedly federal system of the United States, the double jeopardy clause of the Fifth Amendment is not breached by successive state and/or federal prosecutions for the same underlying conduct. In respect of each other and of the federal government, states are considered as separate sovereigns for the purposes of the double jeopardy clause (Heath v Alabama [1985] 474 US 82).

10 Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837.

11 Case C-66/85 Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121.

12 Case 2/74 Jean Reyners v Belgian State [1974] ECR 63.

13 Case C-33/74 Van Binsbergen [1974] ECR 1299.

14 Speech ‘Against Leptines’ in 355 BC, in Vince, JH (tr), Demosthenes I (Harvard, Harvard University Press, 1962).

15 Corpus Juris Civilis (Dig. and Cj.9.2.9pr).

16 Itself based on St Jerome’s comment (AD 391) to I Nahum 9: (in the King James version) ‘… affliction shall not rise up the second time’, from which he constructed the maxim ‘For God judges not twice for the same offence’. See 25 Migne, Patrologia Latina (1845).

17 On the history of the principle, see, generally, Sigler, JA, ‘A History of Double Jeopardy’ (1963) 7 American Journal of Legal History 283 . On the history of the principle in English law, see also Friedland, M, Double Jeopardy (Oxford, Oxford University Press, 1969) 5–15; and P McDermott, above n 2, 199–201.

18 W Blackstone, Commentaries on the Laws of England (1772) 335.

19 The principle also seeks to compel police forces and public prosecutors to prepare and make their cases as effectively as possible. In that respect, see Wils, WPJ, ‘The principle of ne bis in idem in EC antitrust enforcement: a legal and economic analysis’ (2003) World Competition 26(2) 131, in particular at 138. The principle of finality of criminal proceedings also underlies the principle of ne bis in idem. However, the finality value is closely related to the main rationale of the principle, namely the protection of the individual against the jus puniendi of the state. On this point, see further The Law Commission, Double Jeopardy and Prosecution Appeals (March 2001), Law Com No 267 available at <> accessed 26 August 2008, 37–8.

20 For a discussion of the rationale behind the principle of ne bis in idem, both in the common and continental law traditions, see Friedland, above n 17, 3–5; and McDermott, above n 2, chs 21 and 22. A more recent in-depth discussion can be found in The Law Commission, above n 19.

21 The concept is, for example, so described in the Fifth Amendment to the US Constitution, which states that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb’.

22 In Green v United States (1957) 355 US 184, 187–8, cited by Friedland, above n 17, 4.

23 Emphasis added.

24 Emphasis added.

25 On this point, see the dissenting Opinion of Repki J in Oliveira v Switzerland, No 25711/94, judgment of 30 July 1998, ECHR Reports of Judgments and Decisions 1998-V.

26 For a comprehensive review of the international instruments relating to ne bis in idem adopted in the context of the Council of Europe, and the difficulties in applying the principle in a transnational context, see J Vervaele, ‘The transnational ne bis in idem principle in the EU: Mutual Recognition and equivalent protection of human rights’ (2005) Utrecht Law Review 100, 103 et seq. See also C Van den Wyngaert and G Stessens, ‘The international non bis in idem principle: resolving the unanswered questions’ 1999 ICLQ 779.

27 See P McDermott, above n 2, at 201.

28 As evidenced by the reports for the hearings for each case in which the Member States observations are summarised.

29 Joined Cases 18 & 35/65 Gutmann [1967] ECR 61.

30 Joined Cases C-238, 244, 245, 247, 250–252 & 254/99 Limburgse Vinyl Maatschappij v Commission [2002] ECR I-8375.

31 Ibid, para 59.

32 Ibid, para 62.

33 Joined Cases C-204, 205, 211, 213, 217 & 219/00 P Aalborg Portland v Commission [2004] ECR I-123 (Cement).

34 Ibid, para 338. The ‘threefold condition’ has since been applied consistently by the Court of First Instance in the competition law cases before it in which the principle of ne bis in idem has been alleged. See, for instance, Case T-71/03 Tokai Carbon v Commission [2005] ECR II-210, paras 130 et seq; and more recently Case T-38/02 Danone v Commission [2005] ECR II-4407, paras 134 et seq.

35 In full, Art 50 of the Charter of Fundamental Rights states that: ‘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.’

36 Although at the time of writing (July 2008), 23 Member States had already ratified the Treaty of Lisbon, its rejection in the referendum in Ireland on 12 June 2008 has, of course, placed a question mark over what will now happen.

37 Community secondary legislation in force which refer to the principle of ne bis in idem include Art 6 (read with recital 10) of Council Regulation 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests, [1995] OJ L312/1; Art 7 of the Convention on the protection of the European Communities’ financial interests, [1995] OJ C316/49; Art 10 of the Convention on the Fight against Corruption involving Officials of the European Communities or Officials of the Member States of the EU, [1997] OJ C195/1; and Arts 3(2), 4(3) and 4(5) of the Framework Decision on the European Arrest Warrant, [2002] OJ L190/1.

38 The text of these provisions was inspired by the 1987 Convention on Double Jeopardy. The Schengen ‘acquis ‘ was ‘communitarised’—that is, brought within mainstream EU law—by the Protocol Integrating the Schengen Acquis into the Framework of the EU agreed at Amsterdam. For the benefit of UK readers, it is worth noting that Arts 54–58 of CISA are of application to the UK. See Art 1 of Council Decision 2000/365/EC of 29 May 2000 concerning the request of the UK to take part in some of the provisions of the Schengen ‘acquis‘ [2000] OJ L131/43) and Council Decision 2004/926 of 22 Dec 2004 on the putting into effect of parts of the Schengen ‘acquis ‘ by the UK [2004] OJ L395/70).

39 [2003] OJ C100/24.

40 COM(2005)696, 23 December 2005.

42 The scope of Art 4 of Protocol No 7 to the ECHR is explicitly restricted to the domestic context (ie that of each state signatory to the Protocol): see the Explanatory Report to Protocol No 7, para 27. For that reason, neither its actual text nor the interpretation given to it by the ECHR are ultimately helpful as a guide to the proper interpretation of Schengen ne bis in idem or ne bis in idem as a general principle to be applied in a purely supranational context. Most of the issues that arise in the latter context are not present in the former and vice versa. Art 14(7) of the 1966 International Covenant on Civil and Political Rights is likewise intended to apply only to the domestic context of each individual state signatory.

43 The formulation employed by the late Judge Mancini, in ‘The free movement of workers in the case-law of the ECJ’ in Curtin, D and O’Keefe, D (eds), Constitutional Adjudication in EC and National Law (Dublin, Butterworths, 1992) 67 . From the outset, the Court has given a Community definition to key concepts of the EC Treaty. See, for instance, the case law concerning the definition of ‘worker’ or ‘employment’ (respectively commencing with Case 75/63 Hoekstra (née Unger) [1964] ECR 177, 184; and Case 53/81 Levin [1982] ECR 1035, para 11). It is now settled case law that ‘the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question’ (see, inter alia, Case C-373/00, Adolf Truley [2003] ECR I-1931, para 35 and the case law cited therein).

44 Case 26/62 Van Gend en Loos [1963] ECR 3, 12.

45 This reasoning finds support in the case law of the Court applying Art 6 TEU. See, for instance, Case C-109/01 Akrich [2003] ECR I-9607, para 58; and Joined Cases C-465/00 and 138 & 139/01 Österreichischer Rundfunk [2003] ECR I-4989, paras 68 and 69. Indeed, in Case C-436/04 Van Esbroeck [2006] ECR I-2333, the Court seems implicitly to have accepted this point, inasmuch as it referred (para 40) to Vinyl Maatschappij, above n 30, when stating that the principle in Art 54 CISA has been recognised as a fundamental principle of Community law.

46 Joined Cases C-187 & 385/01 [2003] ECR I-1345.

47 Case C-469/03 [2005] ECR I-2009.

48 Above n 46.

49 Case C-150/05 Van Straaten [2006] ECR I-9327.

50 Above n 5.

51 Above n 6.

52 Above n 7.

53 Para 30.

54 Para 29.

55 Para 31.

56 See Joined Cases 389 and 390/87 Echternach and Moritz [1989] ECR-723, where the Court found that the enjoyment of the free movement rights directly derived from the Treaty by individuals could not be made conditional upon the fulfilment of administrative formalities, in that case the issue of a residence permit by the host State.

57 Para 32.

58 Case 2/74 [1974] ECR 631, paras 25–27.

59 See also Art 14(7) of the 1966 International Covenant on Civil and Political Rights, which provides that ‘no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’.

60 Cement, above n 33, para 338.

61 Para 36.

62 Para 37. Indeed, goods which are transported over a border are by the same act both exported from the territory of one contacting authority and imported into the territory of another. Considering such course of action to be composed of two distinct acts would, as duly stressed by AG Ruiz-Jarabo Colomer in Van Esbroeck, go against the aims and principles underlying the whole internal market ideals of the EC Treaty: see his Opinion in Van Esbroeck, above n 46, para 52.

63 Cement, above n 33, para 338. See also Case 137/85 Maizena [1987] ECR 4587, in which the Court rejected the application of the principle of ne bis in idem because the two Community law provisions (imposing on the plaintiffs in the national proceedings the provision of two securities in connection with the same export licence) had different purposes. The Court thus implicitly applied the criterion of the unity of the legal interest protected as a prerequisite for ne bis in idem. See likewise Case C-304/02 Commission v France [2005] ECR I-6263, para 84; and see also the case law above n 34.

64 Thus, we doubt that handling 50 grammes of heroin in one Member State and five kilos of the same drug in another should automatically be treated as the same act, even if the two lots are part of the same consignment.

65 Above n 6.

66 Para 34.

67 See also paras 36–9 of the Opinion in Kretzinger, above n 6.

68 In democratic societies, the general rule is that citizens may not be deprived of their individual freedom unless they have been convicted of a criminal offence by a competent court following a process established by law. For precisely that reason, preventive detention is subject to strict procedural and material safeguards under the European Convention of Human Rights. Similarly, persons subjected to pre-trial detention who are subsequently released without charge or tried but acquitted, may, under certain circumstances, be entitled to compensation.

69 See for instance, Smirnova v Russia, nos 46133/99 and 48183/99, § 59 ECHR 2003-IX and the case-law cited therein.

70 That principle is also referred to as the principle of ‘taking into account’ (see, for instance, Fletcher, M, ‘Some developments to the ne bis in idem principle in the EU: Criminal proceed ings against Hüssein Gözütok and Klaus Brügge ‘ [2003] MLR 769, n 5) or the ‘accounting principle’ (see J Vervaele, above n 26, 106–7).

71 Case 14/68 Walt Wilhelm v Bundeskartellamt [1969] ECR 1, para 11.

72 See, eg, Case T-244/00 Archer Daniels Midlands Co [2003] II-2597, para 87 and the case law there cited. See also Case T-322/01 Roquette Frères [2006] ECR II-3137, paras 279–92.

73 Despite the references made in previous case law to the requirements of ‘natural justice’, which we believe necessarily imply that the principle of set-off is of universal application, the Court has been reluctant to accept explicitly that such a principle obliges the Commission to set off a penalty imposed by a third country when determining a penalty under EC competition rules. In two recent cases heard on appeal, the Court neither confirmed nor denied the universal nature of the principle of set-off—it resolved the cases on other grounds. See the judgment of the first chamber of the Court in Case C-397/03 P Archer Daniels Midland Co [2006] ECR I-4429, para 52. A similar approach was applied by the second chamber of the Court in Case C-308/04 P SGL Carbon [2006] ECR I-5977, para 27. In para 33 of that judgment, the Court seems, however, to reject implicitly the universal nature of the principle of set-off.

74 The principle of proportionality in criminal justice was included as a fundamental right in Art II-109(3) of the European Constitution, that is, as part of the Charter of Fundamental Rights of the Union. Entitled, ‘Principles of Legality and proportionality of criminal offences and penalties’, that article provides inter alia that ‘the severity of penalties must not be disproportionate to the criminal offence’.

75 In the same vein, see the Opinion of AG Ruiz-Jarabo Colomer in Van Straaten, above n 50, para 58. That is also the position that the Court seems to have implicitly followed in SGL Carbon and Archer Daniels Midland Co, both above n 74. The close affinity between those two principles may also explain why Art 56 CISA is inserted, together with Art 54, in Chapter 3 of Title III CISA, under the heading ‘Application of the ne bis in idem principle’. They are nevertheless two autonomous principles of EU law.

76 Above n 48, para 34, emphasis added.

77 Gözütok and Brügge and Van Esbroeck: ‘[nowhere in Title VI of the Treaty on European Union relating to police and judicial cooperation in criminal matters (Arts 34 and 31 of which were stated to be the legal basis for Articles 54–58 CISA), or in the Schengen Agreement or the CISA itself, is the application of Article 54 CISA made conditional upon harmonisation, or at the least approximation, of the criminal laws of the Member States relating to procedures whereby further prosecution is barred’, paras 32 and 29, respectively.

78 That is obviously the case when a final verdict on the substance is returned. We would not, however, go so far to require a formal verdict of ‘guilty’ or ‘not guilty’ for the principle to apply.

79 The analogy may be drawn with the operation of the public policy/public security/public health derogations in respect of economic free movement rights.

80 Art 2 TEU gives equal importance to the realisation of free movement of persons and to the prevention and combating of crime.

81 Art 29 TEU (the first provision of Title VI ‘Provisions on police and judicial cooperation in criminal matters’, on which Arts 54–8 CISA are based), states that ‘… [t]he Union’s objective shall be to provide citizens a high level of safety within an area of freedom, security and justice by developing common action amongst Member States in the fields of police and judicial cooperation in criminal matters’ (our emphasis).

82 As explicitly recognised in Miraglia, see above n 48, para 34.

83 It is not, indeed, an absolute in traditional EC Treaty terms. Arts 39(3) EC (workers), 46 EC (establishment) and 55 EC (services) all explicitly allow for derogations from the principle of free movement of persons on grounds of public policy, public security and public health. Those derogations have been further expanded by the Court’s case law on ‘mandatory requirements’.

84 Above n 80.

85 Gözütok and Brügge and Van Esbroeck, paras 33 and 30 respectively.

86 Compare, in classic ‘economic’ free movement of persons, the arrangements for the mutual recognition of diplomas and the rights retained by the host Member State to impose control and/or additional requirements in respect of matters that are not covered by what has already been certified in the home Member State.

87 See, eg, Bieber, R et al 1992: One European Market?: A Critical Analysis of the Commission’s Internal Market Strategy (Nomos, Baden-Baden, 1988). It should be noted that in recent communications on the implementation of the ‘Tampere’ programme, the Commission has laid stress upon the importance of achieving harmonisation of certain procedural guarantees and basic rules so that citizens have confi dence in the application of any principle of mutual trust between Member States in the fi eld of criminal law. See below n 98.

88 A brief comparative survey shows that, even though the question of whether the prosecution is time-barred is normally decided ex officio by the competent court at the start of the trial (if, indeed, the prosecution has not already realised this before the defendant is ever charged), the point can also be raised at any stage of the criminal proceedings by any party, even after the hearing has taken place and the evidence presented. In the latter event, the merits of the case have clearly been examined, even if no formal judgment on the substance is in fact passed upon them. A defendant who has sat through criminal proceedings up until that point has clearly been placed at jeopardy by the state. The principle of ne bis in idem should therefore apply. What this means in practice may vary from one Member State to another. The national court in the ‘second’ Member State may have to make additional enquiries. However, those practical difficulties can be reduced by invoking existing mechanisms for cooperation between national criminal courts. It may also be that national criminal law itself defines the point at which the defendant is placed ‘in jeopardy’. That is, for example, the case in the United States, where jeopardy attaches in a jury trial when the jury is selected and sworn. Such a rule is considered to be part of the core of the double jeopardy principle enshrined in the Fifth Amendment. See Crist v Bretz (1978) 437 US 28. For a discussion of this issue in the context of common law systems, see Friedland, cited above n 12, chs 2 and 3.

89 The holding of a trial in which the defendant’s conduct is considered on its legal merits by the criminal court (and consequently his or her conduct is assessed) seems to us to be a necessary and sufficient requirement. We would not, however, go so far to require a formal verdict of ‘guilty’ or ‘not guilty’ for the principle to apply. That would in our view subject the application of Art 54 CISA to unduly stringent conditions and reduce its practical relevance to an unacceptable degree.

90 That conclusion follows also from Art 6 TEU, inserted in Title I ‘Common provisions’, which is applicable to all pillars under the EU Treaty. Art 6(1) states that the ‘Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’. Art 6(2) further provides that ‘the Union shall respect fundamental rights, as guaranteed by the European Convention of Human Rights and Fundamental Freedoms … and as they result from the constitutional traditions common to the Member States, as general principles of Community law’.

91 See above p 429.

92 This is far from a theoretical issue. By way of illustration, it appears that because of their lenient treatment of offences relating to trade in stolen works of art, both Belgium and the Netherlands have long been the preferred location for dealers in such items.

93 Another case on Art 54 CISA is currently pending before the Court (Case C-491/07) Vladimir Turansky (2008) OJ C22/6) in which the issue of the examination of the merits is explicitly raised. Perhaps the Court will take the opportunity to clarify its case-law.

94 This concept clearly has close affinities with the ‘mutual recognition’ that forms a traditional part of the four freedoms under the EC Treaty.

95 The principle of mutual recognition in criminal matters was endorsed, at the suggestion of the UK, by the European Council of Tampere in 1999. That Council’s conclusions state that ‘the European Council … endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union. The principle should apply both to judgments and to other decisions of judicial authorities’ (at point 33 of the Presidency Conclusions). According to the introduction to the Programme of measures to implement the principle of mutual recognition of decisions in criminal matters adopted subsequently by the Council and the Commission (OJ [2001] C12/10), implementation of that principle ‘presupposes that Member States have trust in each others’ criminal justice systems. That trust is grounded, in particular, on their shared commitment to the principles of freedom, democracy and respect for human rights, fundamental freedoms and the rule of law’. We understand the terms ‘mutual recognition’ and ‘mutual trust’ here to be used synonymously.

96 It is noteworthy that the Commission believes that some of these aspects do need to be harmonised if citizens across Europe are going to sign up to trusting Europe-wide criminal justice.

97 In this instance, it would moreover be the Court that acted de facto as the legislator, which adds to the undesirability of such an approach.

98 Indeed, ‘Le crime et la peine sont donc des phénomènes sociaux, soumis aux lois de la sociologie, et ainsi conditionnés par tous les changements apportés à l’organisation sociale, par exemple, par les variations du milieu économique et, plus encore, par l’état des croyances morales et du degré de culture de chaque époque et de chaque peuple ‘ (É Garçon, Le droit pénal, origines, évolution, état actuel (Payot, 1922) 3). The Court has in the past avoided questioning the moral choices made by Member States when dealing with conflicts between fundamental freedoms and those moral choices made by Member States in areas of competence falling outside EC law which nevertheless encroach on those fundamental freedoms: Case C-159/90, Grogan [1991] ECR I-4685 provides the classic example, albeit not the only one, in that context. See, generally, O’Leary, S and Fernández-Martín, JM, ‘Judicially created exceptions to the free provision of services’ in Andenas, M and Wulf-Henning, R (eds), Services and Free movement in EU Law (Oxford, Oxford University Press, 2002) 163 .

99 In the EU, depending on the Member States, the age of criminal responsibility is set at 7, 8, 13, 14, 16 and 18 years old.

100 See, to this effect, Schermers, H, ‘Non bis in idem’ in Capotorti, F et al (eds), Du Droit International au Droit de l’Intégration, Liber Amicorum Pierre Pescatore (Baden-Baden, Nomos, c 1987) 601 at 611. See also van den Wyngaert and Stessens, cited above n 25, 792.

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Some Reflections on Schengen Free Movement Rights and the Principle of Ne Bis In Idem

  • Eleanor Sharpston and José Maria Fernández-Martín


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