a) Which (types of) decisions bar further prosecution ?

11Several preliminary rulings deal with the term “finally disposed of” in Art. 54 CISA, in other words : with the type of decisions that trigger a ne bis effect. In cases Gözütok and Brügge, the Court held that Art. 54 CISA would not necessarily imply the involvement of a court or tribunal, as “matters of procedure and form do not impinge on the effects of the procedure” [23]. A decision by “an authority required to play a part in the administration of criminal justice in the national legal systems concerned” would suffice [24]. The Court concluded that the ne bis in idem principle "also applies to procedures whereby further prosecution is barred … by which the Public Prosecutor of a Member State discontinues criminal proceedings brought in that State, without the involvement of a court, once the accused has fulfilled certain obligations and, in particular, has paid a certain sum of money determined by the Public Prosecutor." This is remarkable, since it expands to the limit of the wording in several languages [25] and goes beyond the historic intentions of the parties to the CISA : at the time of conception of the provision, the Contracting Parties intended to exclude out-of-court settlements (“transactions”) from the application of the ne bis in idem principle, since a proposal to include them was ruled out [26]. The ECJ stated that such intentions of the parties were “no longer of value” as they predate the Treaty of Amsterdam’s integration of the Schengen acquis into the EU framework [27].

12In the following case (Miraglia), it became clear that the grounds for a decision may also play a role. The Court found that ne bis in idem applied not to “a decision of the judicial authorities of one Member State declaring a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without any determination whatsoever as to the merits of the case” [28]. The reasoning in this case implies that ne bis in idem does not necessarily apply in all situations where national law bars further prosecution : its interpretation may not lead to results that would run contrary to the objectives of the principle and the Treaties (including the guarantee a high level of safety, Art. 29 EU). While it would be too rash to conclude that the Court considered the determination of the merits of a case a conditio sine qua no for a barring effect [29], the Miraglia judgment leaves room for reflection on decisions that are not based on such a determination, such as time lapse or absence of public interest [30].

13The recent ruling in the Gasparini case makes clear that ne bis in idem applies to decisions "…by which the accused is acquitted finally because the prosecution of the offence is time barred" [31]. By the way, this also confirms that the principle applies to acquittals (and not only convictions and or decisions with a sanctioning character [32] ); a finding that clearly can be derived from the general guidelines of the ECJ case law outlined above, but was perhaps not obvious in some of the original language versions of Art. 54 CISA [33].

14Furthermore, in its judgment on the case van Straaten, the ECJ ruled that the ne bis in idem "falls to be applied in respect of a decision of the judicial authorities of a Contracting State by which the accused is acquitted finally for lack of evidence", because otherwise the principles of legal certainty and the protection of legitimate expectations would be undermined and the right of free movement could be jeopardised [34]. It also underlines that Art. 54 CISA "makes no reference to the content of the judgment", and – with a view to the Miraglia judgment–that an acquittal for lack of evidence is based on a determination as to the merits of the case [35].

b) Scope ratione tempore :

15Another preliminary ruling was rendered on 9 March 2006 in the Van Esbroeck case, where one question presented to the Court dealt with the scope ratione temporis of Articles 54-58 CISA. Insofar, the Court concluded that ne bis in idem should apply to criminal proceedings brought in a Contracting State for acts which a person had already been tried in another Contracting State (Norway) “even though the Convention …[CISA] was not yet in force in the latter State at the time at which that person was convicted, in so far as the Convention was in force in the Contracting States in question at the time of the assessment by the court before which the second proceedings were brought (…)” [36].

c) “Same acts” (idem):

16In several judgments the Court had the opportunity to clarify what is meant by the "same acts", the “idem” component of the principle. The Van Esbroeck judgment states that the notion of “same acts” is to be construed as the "identity of the material acts understood as the existence of a set of facts which are inextricably linked together", and not as the identity of the legal qualification of these acts in the various Member States [37] or, as expressed in the later ruling on the van Straaten case, "irrespective of the legal classification given to them or the legal interest protected" [38].

17To underpin this, the Court referred first to the language of the CISA, suggesting that it refers to the nature of the acts and not to their legal classification [39]. Indeed, the wording of Article 54 CISA is based on a factual approach to “idem” in the sense that it prohibits a second prosecution on the same facts rather than on the same offence : while the official English translation (“same acts”) might leave some scope for interpretation, this is manifest in most of the other language versions [40]. The ECJ had already used the expression “same facts” in its previous case-law (Gözütok and Brügge, Miraglia) [41]. Such is also the formulation used by the European Communities Convention on Double Jeopardy of 1987 [42].

18Secondly , the ECJ confirmed this interpretation by comparing it with the different wording of other international instruments which rather refer to the legal classification of the acts [43], such as Article 4 of Protocol 7 to the European Convention on Human Rights where the term “offence” is used (although interestingly and despite this different basis/approach, it could be said that the European Court of Human Rights reached a comparable result by ruling that “idem” applies to the “same essential elements” [44] ).

19Once again, the Court took a mutual recognition perspective, observing that the identity of legal classification would be likely to vary from one State to another [45]. It added that “a criterion based on the legal classification of the acts or on the protected legal interest might create as many barriers to freedom of movement within the Schengen territory as there are penal systems in the Contracting States. In those circumstances, the only relevant criterion for the application of Article 54 CISA is the identity of material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together” [46].

20Thus, the Court has brought an end to a long and controversial debate on the factual or legal nature of the idem component [47], giving a clear preference for a factual approach. This case law has strengthened the character of ne bis in idem as a fundamental right even further than it was envisaged in a previous Member State initiative for a framework decision (which spoke of “idem” in terms of “a second criminal offence arising solely from the same, or substantially same, facts, irrespective of its legal character”) [48].

21The concept of facts "inextricably linked" was put into concrete terms with regard to illegal smuggling of drugs and other goods : the Court held that an illegal export of the same drugs from one State to another is to be considered identical with the import into the latter [49]. In the van Straaten case, it went further, saying that "the quantities of the drug that are at issue … or the persons alleged to have been party to the acts ... are not required to be identical" [50]. It also found that "the marketing of goods in another Member State, after their importation into the Member State where the accused was acquitted, …may form part of the 'same acts' within the meaning of Art. 54 CISA". [51] However, it should not be overlooked that in Van Esbroeck, the ECJ also underlined that the definitive assessment of what facts are to be considered identical should rest within the realm of the competent national courts [52].

22It could be noted that the ECJ’s approach differs from the wording of Article 50 of the EU Charter of Fundamental Rights, which refers to the “same offence”. However, this provision only sets a minimum standard. The factual approach is fully in line with both the spirit of the Charter and with its Articles 52 and 53, according to which the EU is allowed to go beyond this minimum protection and offer a higher standard of protection and free movement [53]. After all, a factual idem may generally provide a higher standard of protection to the prosecuted individual than a legal interpretation based on the concept of “same offence”, as the latter would often allow for a second prosecution of the same behaviour [54].

d) Majority of offenders

23In the Gasparini case, the Court was asked whether an acquittal of one of several offenders that are accused of having committed a criminal act together would bar prosecution of the remaining offenders. It replied that the ne bis in idem principle "does not apply to persons other than those whose trial has been finally disposed of in a Contracting State" [55]. The question by the national Court only referred to an acquittal based on a time limit, but the language of the reply seems to suggest that this was a general principle [56].