Greater Coherence for the Ne Bis in Idem Principle, at Last: The Bpost Judgment (C-117/20)

 

 

Victor Davio and Ilaria Gambardella*

 

*Victor is a PhD Researcher at the Institute for European Law, KU Leuven and Assistant in Constitutional Law at University Saint-Louis Brussels and Ilaria is Teaching Assistant and Research Associate at the Institute for European Law, KU Leuven. They are part of the RESHUFFLE research project hosted by KU Leuven under the direction of Prof. Elise Muir, and supported by the European Research Council (European Union’s Horizon 2020 research and innovation programme, grant agreement No 851621). 

 

Photo credit: Jean Housen, via Wikimedia commons

 

 

Introduction

 

On 22 March 2022, the European Court of Justice (‘the ECJ’) delivered in Grand Chamber its judgment in the bpost case (C-117/20), which brings significant developments regarding the principle of ne bis in idem as enshrined in Article 50 of the EU Charter of Fundamental Rights (‘the Charter’). On the same day, the ECJ, also in Grand Chamber, rendered its judgment in the Nordzucker case (C‑151/20) which concerned the ne bis in idem principle in the field of competition law and in which the ECJ developed a similar approach to the bpost judgment in several respects. We will refer to the Nordzucker judgement to the extent that it is relevant for the analysis.

 

These judgments, and in particular the bpost judgment which will be discussed below, constitute a step forward towards greater coherence on ne bis in idem, a principle which has been deemed ‘among the most complex legal issues involving fundamental rights’. Also known as the prohibition of double jeopardy, the ne bis in idem principle has a double rationale: on the one hand, it is a rule of criminal procedure which aims to ensure legal certainty and a fair administration of criminal justice; on the other hand, it is an individual right which seeks to protect the individual from abuses of the ius puniendi. This principle is notably relevant in the context of the so-called dual proceedings, namely where a natural or legal person is subject to both criminal and administrative proceedings for the same misconduct and the latter proceedings are criminal within the meaning of the Charter or the European Convention of Human Rights (‘the ECHR’).

 

In the European landscape, the ne bis in idem principle has been characterised by a phenomenon of double fragmentation. The first is within EU law itself: the principle has been scattered in various legal instruments and has been subject to divergent interpretations by the ECJ depending on the area concerned, including between competition law and other areas of EU law. The second is between EU law and the ECHR: over the past years, the ECJ and the ECtHR have developed different methodologies for the application of the ne bis in idem principle, which places difficulties on national judges who are bound by both sets of rules.

 

The judgment commented upon provides a welcome, albeit partial, solution to this double fragmentation. Firstly, the ECJ departs from the dichotomy between competition law and other fields of EU law, by holding that the scope of protection of ne bis in idem is the same in all fields of EU law. Secondly, the ECJ aligns its case-law on the ECtHR case-law, and in particular on the Grand Chamber judgment A and B v. Norway of 15 November 2016. There is no perfect coherence between the ECJ and ECtHR case-law, however, since the CJEU confirmed its approach developed in the Menci judgment (C-524/15) which entails that the ne bis in idem principle must be submitted to the proportionality test under Art. 52(1) Charter, as we shall see below.

 

The facts of the case

 

Bpost, the incumbent postal services provider in Belgium, offers its services to two main categories of clients: the bulk mailers, which are end consumers, and the mail preparation firms, which are consolidators. As for 2010, bpost established a new tariff system for advertising and administrative mail items based on the ‘per sender’ model. Under the new system, the discounts granted to the consolidators are calculated on the volume of mail items deposited individually by each sender and no longer on the total amount of items from all senders for which the consolidators provided their services.

 

Due to this new tariff system, bpost was fined twice. First, the Belgian Postal Regulator imposed a fine for infringement of the non-discrimination rule related to tariffs in the postal sector. It considered that the new tariff system created an unjustified difference of treatment between the two main categories of clients. The decision was annulled by the Brussels Court of Appeal in a decision which became final. Second, the Belgian Competition Authority imposed on bpost a fine on the ground of abuse of dominant position. It estimated that the new tariff had an exclusionary effect on consolidators and potential competitors. Once again, the Brussels Court of Appeal annulled the decision on the ground that it was contrary to the ne bis in idem principle. After the decision was set aside by the Court of Cassation, the case came back to the Court of appeal which, therefore, submitted a request for a preliminary ruling to the ECJ.

 

The referring court stated that the two proceedings conducted by the Belgian Postal Regulator and the Belgian Competition Authority lead both to the imposition of administrative penalties of criminal nature. However, these penalties aimed to punish different offences: in one case, the infringement of non-discrimination in the postal sector and in the other case, the infringement of competition law. In the field of competition law, three criteria are required to verify whether the ‘idem’ condition is fulfilled, namely the same facts, the same offender and the same legal interest protected. However, the latter criterion is not applied in the case law relating to other fields of EU law. Therefore, the referring court asked the ECJ whether it had to rely on the case law on the application of ne bis in idem in the field of competition law (Toshiba (C-17/10)) or rather on the line of cases related to the Menci judgement.

 

The Opinion of Advocate General Bobek

 

The starting point for Advocate General Bobek’s Opinion is that the ECJ case-law on the ne bis in idem principle is ‘marked by fragmentation and partial incoherence’ (§3) and can ‘be described as a mosaic of parallel regimes’ (§85). In a pedagogical manner, the Advocate General paints a picture of this mosaic by discussing successively the protected legal interest in EU competition law (§43-52), ne bis in idem in the area of freedom, security and justice (§53-62), the case-law of the ECtHR (§63-74) and the developments in the Menci judgment (§75-84).

 

In his view, such a situation of fragmentation is untenable for three reasons. First, because the area of competition law cannot, per se and in the abstract, be considered different from other areas of EU law and therefore be subject to a different test (§92). Secondly, because of the unpredictability of the tests since there is no rule to determine which test applies when two of the areas of application of the ne bis in idem principle overlap in a case (§93). Thirdly, because the same provision of primary law, Art. 50 of the Charter, should not have a different content depending on the area of EU law to which it is applied (§95).

 

Should the test developed by the ECJ in Menci prevail across all EU areas? According to the Advocate General, this question requires a negative answer. In his opinion, the Menci judgment is a problematic decision in that it submits the ne bis in idem principle to the Article 52 Charter test and analyses this principle in the light of proportionality. He submits that: ‘Article 50 of the Charter is a bar. If validly triggered, it prevents the other proceedings from even starting. Such a bar must be defined ex ante and normatively’ (§107). The Advocate General thus favours a procedural version of the ne bis idem principle (which prevents ex ante the introduction of new proceedings) over a substantive version of this principle (which analyses ex post the proportionality of different sanctions under Article 52 of the Charter).

 

Then, the Advocate General argues in favour of the introduction of a threefold test for the assessment of the idem for the purposes of Article 50 of the Charter. This test would be based on a triple identity: an identity (1) of the offender, (2) of the relevant facts, and (3) of the protected legal interest (§133). What should be understood as a protected legal interest? In his view, it corresponds to ‘the societal good or social value that the given legislative framework or part thereof is intended to protect and uphold’ (§136). Insofar as the ‘bis’ condition (i.e. the existence of a prior final decision) and this triple identity of idem are met, the ne bis in idem principle would preclude the introduction of new proceedings.

In the bpost case, the Advocate General suggests that the triple identity, subject to verification by the referring court, has not been met, in particular in view of a difference in the protected legal interest. While the Belgian postal regulator fined bpost in order to avoid discrimination and ensure the transparency of the internal market for postal services, the Belgian Competition Authority sanctioned bpost’s anti-competitive practices (§160-162). The aim pursued by the two regulators was therefore different.

 

The judgment of the ECJ

 

The ECJ starts its reasoning by reminding that the ne bis in idem is a fundamental principle of EU law which is now enshrined in Article 50 of the Charter. The principle, which corresponds to that provided in Article 4 Protocol 7 ECHR, prohibits a duplication of proceedings or penalties of a criminal nature for the same acts and against the same person (§23).

 

The application of the ne bis in idem principle is subject to a twofold condition: (1) there must be a prior final decision as to the merits of the case (the ‘bis’ condition) and (2) the prior decision or the subsequent proceedings must concern the same facts (the ‘idem’ condition). The identity of material facts is the criterion to assess the existence of the same offence and is defined by the ECJ as ‘a set of concrete circumstances stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space’ (§37). The ECJ adds that, for the purpose of establishing the existence of the same offence, the legal interest protected is not relevant, ‘in so far as the scope of the protection conferred by Article 50 cannot vary from one field of law to another’ (§34-35). Therefore, the ECJ explicitly rejects the condition of the legal interest protected which was traditionally only required in the field of competition law (Toshiba (C-17/10)). In doing so, the ECJ accepts the suggestion of Advocate General Bobek to harmonise its case law on the application of the ne bis in idem principle. The ECJ had been already invited in the past to depart from the different approach to the application of the ne bis in idem in competition law by both AG Kokott in Toshiba (§ 114-118) and AG Wahl in Powszechny (§45).

 

Subsequently, the ECJ clarifies that when the two conditions are met, the duplication of proceedings or penalties does not constitute a violation, but a limitation of the fundamental rights guaranteed by Article 50 of the Charter. On that point, the ECJ rejects the suggestion of the Advocate General to consider the ne bis in idem ‘as a bar’. Hence, a limitation to the ne bis in idem principle might be justified according to Article 52(1) of the Charter if the duplication of proceedings is aimed to protect distinct legitimate objectives and does not exceed what is appropriate and necessary in order to obtain these objectives. The ECJ affirms that ‘the the fact that two sets of proceedings are pursuing distinct objectives of general interest which it is legitimate to protect cumulatively can be taken into account, in an analysis of the proportionality of the duplication of proceedings and penalties, as a factor that would justify that duplication, provided that those proceedings are complementary and that the additional burden which that duplication represents can accordingly be justified by the two objectives pursued’ (§49). In this paragraph, as it will be stressed in the comments below, the Court heavily relies on the ECHR case-law (A and B v Norway).

 

Regarding the circumstances of the case, the ECJ recognises that the two proceedings pursue two distinct legitimate objectives which are, in one case, the liberalisation of the internal market for postal services and, in the other case, the protection of a fair competition on the market. The ECJ leaves to the national authorities to ascertain whether the duplication of proceedings was justified in the specific case. In conclusion, according to the ECJ, Article 50 Charter does not preclude the duplication of proceedings in circumstances such as those of the case, provided that a series of circumstances are respected, which is an evaluation that belongs to the referring Court.

 

Comments 

 

A salient feature of the ECJ’s judgment in the bpost case is that it brings more coherence and consistency to the ne bis in idem principle, which was marked by its high degree of fragmentation. It does so, first and foremost, by harmonising its application within EU law itself, by holding that the scope of protection of the ne bis in idem principle enshrined in Article 50 of the Charter is the same in all areas of EU law, unless otherwise provided by EU law (see also Nordzucker, §40). In doing so, the ECJ set aside the dichotomy between competition law and other areas of EU law, the former having historically been the subject of separate case law as to the application of the ne bis in idem principle (Toshiba (C-17/10) and Slovak Telekom (C-857/19)).

 

Furthermore, the ECJ further develops a common understanding of the ne bis in idem principle at a pan-European level by aligning its approach on the ECtHR case-law. That the ECJ relies on the latter case-law may not come as a surprise in the light of Article 52(3) of the Charter, according to which the Charter rights shall have the same meaning and scope as those of the corresponding rights guaranteed by the ECHR. Since Article 50 corresponds to Article 4 of Protocol No 7 to the ECHR, its meaning and scope must be similar to those established by the ECHR. The explanations to the Charter indicate that the meaning and the scope of the guaranteed rights are determined not only by the text of the ECHR and its Protocols, but also by the ECtHR case-law.

 

Yet, what is singular about the bpost case is the extent to which the ECJ draws on the latter case-law. While the ECJ had referred to the ECtHR case-law in its Menci judgment (Menci, §61), the ECJ relies on the latter case-law in a more explicit and clear manner. Notably, the ECJ embraces the concept of ‘coherent whole’ developed in the ECtHR A and B v. Norway judgment. Repeating almost identically the wording of the latter’s judgment (A and B v. Norway, §121), the ECJ considers that: ‘public authorities can legitimately choose complementary legal responses to certain conduct that is harmful to society through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned’ (bpost, §49). Furthermore, in order to determine whether the duplication of procedures and sanctions pursuing distinct legitimate aims is strictly necessary, the CJEU identifies a series of factors largely inspired by the case-law of the ECtHR, namely that (1) there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication of proceedings and penalties and that there will be coordination between the different authorities; that (2) the two sets of proceedings have been conducted in a manner that is sufficiently coordinated and within a proximate timeframe; and that (3) any penalty that may have been imposed in the proceedings that were first in time was taken into account in the assessment of the second penalty burden (bpost, §51; compare with A and B v. Norway, §132-134).

 

In spite of the increasing convergence between the case-law of the ECJ and the ECHR, some differences still persist regarding the scope of the principle and the methodology adopted by the two European Courts when they apply the ne bis in idem principle.

 

First, regarding the scope, in the ECHR context the ne bis in idem applies only within the jurisdiction of one Member State, while under EU law it also applies between several Member States. In other words, at EU level, the ne bis in idem principle has developed from a domestic to a transnational level. This is also attested by the Nordzucker case, which concerns two proceedings before two national competition authorities of different Member States.

Second, the two Courts still adopt a slightly different methodological approach to achieve the same result. On the one hand the ECHR only recognises the possibility of a duplication of proceedings when the two proceedings are complementary to each other, so that they can be considered ‘as a whole’, i.e. as one single set of proceedings. In principle, no exceptions and limitations to the principle are possible. On the other hand, in bpost the ECJ explicitly confirms that a duality of proceedings is accepted and refers to the concept of ‘coherent whole’.  However, the duplication of proceedings is considered by the ECJ as a limitation of the principle of ne bis in idem which is subject to the Article 52(1) Charter test and the fulfilment of a series of conditions that are shaped on the ECHR case-law.

 

Overall, the bpost judgment can be seen as a positive development for the ne bis in idem principle in Europe. It is an important step out of the ne bis idem maze, so to speak. It contributes to greater coherence and clarity regarding this principle, which has long been difficult to grasp for EU (fundamental rights) lawyers. In doing so, this judgment also eases the work of national courts which are at the intersection of at least three fundamental rights legal systems, namely the ECHR, EU fundamental rights and national fundamental rights, and whose role should be facilitated by the ECJ and the ECtHR in view of the increasing complexity of human rights in Europe.

 

 

Double Jeopardy and EU Law: Court clarifications and Commission reports

Steve Peers

It’s just like buses. You wait almost four years for a CJEU judgment on the Schengen double jeopardy rules, and then two judgments come along almost at once. What’s more, the Commission has also just released two reports on the application of related EU legislation. The judgments have provided a number of useful clarifications of the rules, which the reports paint the familiar disappointing story of tardy implementation of Member States’ legal obligations.

Background

Double jeopardy (or ne bis in idem) in criminal cases, ie trying the same person for the same crime more than once, is banned by many national constitutions and by the Seventh Protocol to the European Convention on Human Rights (although a few Member States have not ratified this Protocol).  However, these rules generally only apply the rule to trials within the same State.

EU law goes further than this, by establishing a cross-border rule. Article 54 of the Schengen Convention, which applies in all Member States except Ireland, as well as the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein), states that ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Article 55 of the Convention allows for a limited number of exceptions to this rule, and Article 56 provides that if there is a second prosecution, any period of deprivation of liberty arising from the same acts in the first Member State must be deducted from any sentence imposed in the second Member State. Article 57 sets up a process of consultation between Member States to implement the rules, while Article 58 allows Member States to apply more generous rules between themselves.

Despite the current limits on the CJEU’s jurisdiction over EU criminal law measures adopted before the Treaty of Lisbon, there have been a considerable number of judgments on these rules over the years, since about two-thirds of Member States have opted into the Court’s jurisdiction. We might expect more cases being sent to the CJEU on these issues after December 1 this year, when those limits will be removed. Cases could even be sent from the UK courts, since the UK intends to opt back in to (among other things) these provisions of the Schengen Convention when it opts out of a lot of pre-Lisbon EU criminal law measures on that date.

EU law does not generally regulate the application of the double jeopardy principle within the same Member State, although it might be relevant where the proceedings concern a substantive criminal law issue linked to EU law (see, for instance, the Fransson judgment).

While national, international and EU law on substantive criminal law often provides for extraterritorial jurisdiction, an investigation into the same person for the same acts in multiple Member States is in prlnciple a waste of time and money, since the person concerned cannot usually be tried twice in both Member States. So back in 2009, the EU adopted a Framework Decision on conflicts of jurisdiction, setting up a process of information and consultation between national authorities if there was an indication that there multiple proceedings concerning the same acts committed by the same person.

On the other hand, if the same person has committed different crimes, national criminal law systems usually impose some form of added penalty, in the form (for instance) of harsher bail conditions or a longer sentence in the event of a conviction. It follows from the cross-border nature of EU Justice and Home Affairs cooperation that this principle should apply even if a prior conviction was handed down by another Member State. So another Framework Decision, adopted in 2008, sets out the details of how this rule applies.

The judgments

The first recent judgment, in Spasic, raised two points. First of all, is the rule limiting the double jeopardy rule to cases where the penalty (if there is one) has been enforced, can no longer be enforced or is being enforced (the ‘execution condition’), valid in light of the EU Charter of Rights? Secondly, how does that condition apply where a criminal conviction has resulted in both a custodial penalty and a fine, where the fine has been paid but the custodial penalty has not been served?

These questions were relevant in this case because Mr. Spasic had paid a fine of 800 euros imposed as a sentence by an Italian court for passing counterfeit currency, but had not served the one-year sentence which was imposed for the same acts. So could he still be prosecuted in Germany for them, given that the double jeopardy right in Article 50 of the Charter does not mention any execution condition?

In the Court’s view, the execution condition was valid in light of Article 52(1) of the Charter, which sets out the rules for limiting Charter rights. Limitations must be provided for by law, respect the essence of the rights and freedoms and be necessary and proportionate in pursuit of an objective of general interest.

Here, the limitation was clearly provided for by (EU) law. It respected the essence of the right, since it only limited the double jeopardy rule where the person concerned had escaped punishment. It aimed at securing objectives of general interest, since the Treaty rules on JHA objectives implicitly aimed to avoid situations of impunity. 

As for proportionality, while there were other relevant EU measures, the Framework Decision on conflicts of jurisdiction did not ensure that the person would be punished, and the Framework Decision on transfer of prisoners was subject to the conditions of consent of the person concerned and of the sentencing State. However, the CJEU accepted that it would not be proportionate to bring a second set of proceedings in Germany, if Italy wanted to enforce its sentence (Mr. Spasic had not served that sentence simply because he was imprisoned in Austria for different offences at the time).

On the second point, the Court ruled that custodial and non-custodial penalties were severable for the purpose of applying the execution condition. So paying an 800-euro fine did not equate to partial satisfaction of a one-year jail term, and so did not exempt the person concerned from being prosecuted in a second Member State.

The second case, M, concerned allegations of child abuse against an Italian man living in Belgium. The Belgian authorities investigated these, but a pre-trial chamber gave a ‘non-lieu’ ruling, meaning that the case could not proceed to trial due to insufficient evidence. This ruling was eventually upheld on appeal. In the meantime, the Italian courts had begun their own investigation, and wanted to know if the Belgian ruling was a ‘final judgment’ which prevented them from proceeding to trial.

In the Court’s view, it was. A final judgment could include a pre-trial measure (like the plea bargain accepted by prosecutors in the earlier Gozutok and Brugge case), as long as it finally determined the case on the merits according to national law (applying the test in Turansky). That was the case here, once the appeal was decided. Referring to the Zolukhtunin judgment of the European Court of Human Rights, the CJEU ruled that a possibility of an extraordinary remedy did not preclude a trial from being final. Nor did the possibility, referred to in the ECHR Protocol and Belgian law, of bringing a fresh prosecution, as a derogation from the double jeopardy rule, in the event of new or newly discovered evidence. The Court confirmed that in that case, only the first Member State, not the second, could bring a fresh prosecution.

The reports

For the Framework Decision on conflicts of jurisdiction, the Commission report notes first of all that only about half of the Member States have implemented it (the deadline was June 2012). This makes sense for the UK, since it does not seek to opt back in to this measure. It should be noted that infringement proceedings against Member States will also be possible when the 1 December deadline soon expires.

Overall, while the Commission refers to this measure as a ‘first step’, it states that it cannot draw ‘general conclusions’ about the quality of implementation, because few Member States have practical experience in its implementation. But it does note that some Member States have not applied the key rules on the information to be transferred between authorities. Most Member States permit parallel investigations to take place, even after the consultation process, although they are a waste of time and money. Only Croatia has an express rule (corresponding to the M judgment) that a final judgment in one Member State must terminate a pending prosecution in another.

As for the report on the Framework Decision on the consequences of convictions, six Member States have still not applied it (the deadline was back in 2010). This time, the UK, which seeks to opt back in to this measure, has applied it.

The Commission is rightly concerned that Member States limit the mutual recognition obligation to cases of a final conviction, for otherwise they would be infringing the presumption of innocence. Overall, the Commission expresses dissatisfaction mainly with a group of nine Member States which have claimed to implement the Framework Decision without giving further detail. Obviously it would be wise for those Member States to provide that further detail over the next six months, before infringement actions can be launched. The Commission does not assess the practical application of the European Criminal Records Information system (ECRIS), established by separate EU legislation, which is the main way of ensuring that the relevant information is transferred between Member States in the first place.

Comments

The Court’s ruling that the ‘execution condition’ in the Schengen rules was valid is convincing in light of the great public interest in preventing impunity for those convicted of criminal offences. For the same reasons the Court was right to reject the argument that payment of an 800-euro fine was equivalent to serving a year in jail. That would have amounted to de facto impunity.

Crucially, the Court rightly applied the principle of proportionality to rule that on the facts of the case, a second prosecution could nonetheless not take place if it was still possible in practice to serve the initial sentence instead. This rule ensures that the person concerned does not end up serving two separate sentences for the same crime (recalling that any time served in one Member State would have to be deducted from the time served in another one), and could prevent the cost and waste of time of a second prosecution if it proves to be unnecessary after all.

It should be noted that the Court did not rule here on whether the national derogations permitted by Article 55 of the Schengen Convention are valid. Unlike the execution condition, these rules do not aim to avoid impunity, but rather allow a second prosecution to be brought where: the act took place on a Member State’s territory; the act concerned national security or ‘equally essential’ interests; or the person concerned was an official of the State concerned. In all these cases, justice would best be served by giving the Member State concerned the first opportunity to bring a prosecution, and the Framework Decision on conflicts of jurisdiction should facilitate that. But it may be questioned whether those interests are strong enough to justify the power to bring a second prosecution (although again it must be recognised that any time served in the first Member State must be deducted from any sentence in the second).  

As for the M case, it answers a number of important issues. It is now clear that the double jeopardy rule is triggered only on disposition of a final appeal in the first Member State, and (implicitly) that the rule not only prevents the start of proceedings in a second Member State, but also terminates proceedings that are already underway. Again, the relevance of the Framework Decision on conflicts of jurisdiction becomes clear: whichever of the Member States concerned lost the ‘race’ to a final judgment (stereotypically, this was Italy) would end up having wasted its time and money.

The clarification of what happens in the event of new evidence is also important. It should be noted that, as the Advocate-General pointed out, if new evidence surfaces in Italy (or any other Member State), EU rules can facilitate its transfer to Belgium for the authorities to consider it. Also, the Court makes a general statement that only a ruling on the ‘merits’ counts as a final judgment. This sits oddly with its judgment in Gasparini, where it ruled that a proceeding which was time-barred in one Member State counted as a final judgment, so that case must be seen now as an anomaly.

More broadly, the two new judgments go a long way to reconcile the Schengen double jeopardy rules with human rights law. Oddly, the Court had never before mentioned Article 50 of the Charter in the context of the Schengen rules, until the Spasic case forced it to. Afterward, in the M case, the Court now refers to interpreting the Schengen rules in light of the Charter. As for the ECHR, the CJEU positively dismissed its relevance back in the Van Esbroeck judgment, but since the Strasbourg Court aligned itself with the CJEU's interpretation of the principle in Zolukhtunin, the CJEU is now happy to rely upon the other Court's rulings as a source of interpretation.   

What about the EU legislation? The Court itself, in the Spasic case, said in effect that the Framework Decision on conflicts of jurisdiction was too weak to affect its interpretation of the double jeopardy rules, since it did not ensure that the person concerned would be punished (although actually, that isn’t its main purpose). The M case shows, as noted above, how an early decision on conflicts of jurisdiction is necessary to avoid wasting time and money, and to reduce complications for suspects, particularly given that (in the view of the Belgian courts) there was insufficient evidence to prosecute in that case.

Overall, there seems to be plenty of reason to fear that, as I predicted some time ago, the Framework Decision on conflicts of jurisdiction has done nothing much to avoid multiple prosecutions, in particular because it lacks an obligation in principle to centralise prosecutions, never mind a list of criteria to apply to determine where the prosecution should take place. It has obviously had no effect in the half of Member States which have not bothered to transpose it at all. Since the Commission regards this measure as a ‘first step’, it should have considered measures to amend it to this end at the earliest opportunity.

As for the Framework Decision on the consequences of prior convictions, the Commission assesses its implementation on paper, but not its implementation on the ground. The real question is how it works in conjunction with the ECRIS system, and in particular whether there are any problems as regards the classification of convictions rendered in other Member States.

These reports are released as justice ministries begin their last lazy summer before the prospect of infringement proceedings to make them to live up to their legal obligations (as we have seen previously on this blog, these failures extend also to legislation on prisoners and probation, and to hate crime law too). Time will soon tell whether the Commission will step up to the plate and assume its role as the guardian of EU law in this field.

Barnard & Peers: chapter 9, chapter 25