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(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 311-335 | Article | (Table of Contents) I. Setting the scene: introductory remarks. – II. The possibility to reopen a case and ne bis in idem: main theoretical issues. – III. Retrial and ne bis in idem in Europe through the lens of the Charter, the ECHR and the CISA. – IV. A focus on the ECHR: Art. 4 of Protocol 7 as a benchmark for cases reopening in Europe. – IV.1. New or newly discovered facts. – IV.2. Fundamental defects in proceedings. – IV.3. The influence on the outcome of the case. – V. Concluding remarks. | (Abstract) The principle of ne bis in idem, intrinsically linked to the concept of res iudicata, constitutes a fundamental cornerstone of criminal justice, ensuring protection against multiple prosecutions or punishments for the same offense. Nevertheless, the ever-evolving legal landscape has engendered extensive discussions concerning the potential reopening of criminal cases, particularly in light of novel evidentiary findings or fundamental procedural irregularities in the criminal proceedings at stake. This Article embarks upon a comprehensive and exhaustive inquiry into the intricate interplay between the re-examination of criminal proceedings and the ne bis in idem principle in Europe. By concentrating on key legal instruments, including the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights (ECHR), and the Convention Implementing the Schengen Agreement (CISA), this study aims at exploring the theoretical, legal, and human rights implications associated with such a course of action. At the heart of this analysis lies a meticulous examination of art. 4 of Protocol 7 to the ECHR, which serves as a pivotal benchmark governing the permissibility and justifiability of reopening criminal proceedings. Within this context, it will be demonstrated that, unfortunately, the interpretation of the latter provision by the Strasbourg Court – which provides for the minimum standards of protection of ne bis in idem in EU law – has not been consistent, creating potential issues concerning legal certainty and clarity that could undermine the essence of the said principle. Against this composite background, the primary objective of this Article is to illuminate the extent to which the principle of ne bis in idem may be rendered less stringent, in exceptional circumstances, to accommodate legitimate grounds warranting the reopening of criminal proceedings within the European legal framework.

L’objecte d’aquest article és analitzar com afecta la interpretació del ne bis in idem que fa el Tribunal de Justícia de la Unió Europea sobre el dret de la competència europeu. Una exegesi expansiva reforça el sistema de protecció dels drets humans a la Unió, incrementa la seguretat jurídica i afavoreix l’optimització de recursos per part de les administracions públiques; però pot perjudicar l’eficàcia del dret de la competència, que tan necessària és per a la resiliència de l’economia europea. Per dur a terme aquesta anàlisi responem tres preguntes. En primer lloc, si l’article 50 de la Carta de Drets Fonamentals de la Unió Europea, que plasma aquest principi, s’aplica a l’àmbit de la competència. Segona, com ha interpretat la jurisprudència comunitària aquest precepte. Finalment, com afecta aquesta interpretació l’eficàcia del dret de la competència europeu.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 853-878 | Article | (Table of Contents) I. Dual-track proceedings and the current scope of protection. – II. The need for a clear notion of “idem”. – III. The “sufficiently close connection in substance and time”: ECtHR case-law post A and B v Norway. – IV. The “sufficiently close connection in substance and time”: the unspoken balancing act engaged in by the ECtHR and an alternative criterion to assess whether there was a duplication of proceedings. – V. Lis pendens and ne bis in idem. – VI. Conclusion. | (Abstract) This Article analyses the issue of the compatibility with the ne bis in idem principle of the double-track sanctioning systems present in various European legal orders in the light of the case-law of the European Court of Human Rights and the Court of Justice of the European Union. In particular, after a reconstruction of the most significant case-law after the famous ruling A and B v. Norway, three main critical points are brought into focus: the divergences between the national and European case-law on the interpretation of the notion of idem factum, the difficult practical application of the close connection test between proceedings developed by the European Court of Human Rights, which can be seen as the precipitate of an unsatisfactory balancing act of opposing interests, and the possible extension of the ne bis in idem principle also to cases of lis pendens.

In this article, the author reviews the European Union law regarding market abuse from a human rights perspective. Setting the foundation for the discussion from a historical perspective on the different legislative approaches on the issue of market abuse, the article continues with the ECHR’s and CJEU’s relevant case-law on the subject. Mainly, the right to a fair trial and the ne bis in idem rule are the fundamental rights that should be looked at closely when placing the market abuse regulations under scrutiny. Certain irregularities of the legislation are outlined. Also, the article tries to point out on which aspects improvements should be pursued.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1341-1356 | Article | (Table of Contents) I. A principle of European law. - II. Building coherence across European legal systems. - II.1. The challenging construction of compatible European standards. - II.2. The problem of the idem: what is criminal? - III. The attempted compromise. - IV. The revived schism. - V. Conclusion. | (Abstract) This Article analyses the recent divergence between the two European Courts on the application of ne bis in idem to double-track procedures from the perspective of judicial dialogue and constitutional pluralism. Although major efforts have been made towards convergence over the past decades, recent case law shows that the potential for conflict - and, possibly, incompatibility - remains wherever the incentive to follow the lead of one authority is insufficient. Pushed to find solutions by the resistance of certain national courts to their converging standards, the European Court of Human Rights and the Court of Justice have chosen very different paths to reach a similar, but not identical, compromise solution. The Article examines the causes of this divergence and its consequences for the protection of this fundamental right in EU Member States.

În ultimul deceniu, am constatat o evoluţie cu privire la înţelegerea câmpului de aplicare a principiului ne bis in idem. Jurisprudenţa recentă a Curţii Europene a Drepturilor Omului demonstrează această afirmaţie. Prezentul studiu pune în discuţie una dintre problemele de înţelegere a principiului - cea a aplicabilităţii acestuia în cazul cumulului de calificări a infracţiunilor. Autorul analizează problema din perspectiva sistemului european al drepturilor omului și din perspectiva sistemului common-law, citând mai multe cauze relevante din jurisprudenţa Curţii Europene și din jurisprudenţa Curţii Supreme de Justiţie a Statelor Unite ale Americii.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(2), 523-561 | Article | (Table of Contents) I. Introduction. - I.1. The perils of parallel proceedings in EU competition law. - I.2. The classification of parallel proceedings and the resumption of proceedings following the annulment of a decision on procedural grounds as an instance of horizontal parallel proceedings. - I.3. The inadequacy of the discretionary prosecutorial restraint and the ne bis in idem principle as a limit to parallel proceedings - II. The current freedom to resume proceedings following the annulment of a decision on procedural grounds vis-à-vis a broader way to construe the ne bis in idem principle as a limit to such resumption. - II.1. The current PVC II case law or the freedom to resume proceedings following the annulment of a decision on procedural grounds. - II.2. A broader way to construe the ne bis in idem principle as a better-balanced limit to further proceedings following the annulment of a decision on procedural grounds. - III. The Commission's Rebar cartel: an endless saga. - III.1. Considerations on the case selection. - III.2. The 2002 infringement decision and its first annulment. - III.3. The 2009 readopted decision and its second annulment. - III.4. The 2018 resumption of proceedings. - III.5. The adoption of a third decision and further considerations on the outcome of the case. - IV. The ne bis in idem as a limit to further proceedings in the Rebar cartel case. - IV.1. The failure to meet the first requirement: the effective enforcement of EU competition law does not require a further resumption of the Rebar cartel case. - IV.2. The failure to meet the second requirement: the procedural defect affecting the validity of the 2009 decision was objectively attributable to the Commission and was subjectively caused in bad faith or with gross negligence. - V. Conclusions. | (Abstract) This Article analyses the risks posed by the ability of EU competition authorities to resume proceedings following the judicial annulment of an infringement decision on procedural grounds. After introducing the notion of parallel proceedings in EU competition public enforcement, a taxonomy of possible instances of parallel proceedings is presented, whose resumption following the judicial annulment of a decision on procedural grounds is categorized as horizontal parallel proceedings either at the national level or at Union level. It is argued that although the only viable way to limit the proliferation of parallel proceedings is a coherent and reliable application of the ne bis in idem principle, this approach is currently impaired by the principle's narrow construction by the CJEU in competition matters. After a critical review of the current PVC II case law, which enables an enforcer to resume proceedings and readopt a decision annulled on procedural grounds, the Article proposes a twofold test underlying a broader application of the ne bis in idem principle as a limit to this type of parallel proceedings. The test is then applied via a detailed case study of the Rebar cartel litigation, a concrete and ongoing instance of horizontal parallel proceedings at the Union level. The Article concludes that in the Rebar cartel case, the ne bis in idem principle should have prevented the Commission from resuming proceedings.

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(Series Information) European Papers - A Journal on Law and Integration, 2017 2(1), 243-250 | European Forum Insight of 18 April 2017 | (Table of Contents) I. Introduzione. - II. La pregressa giurisprudenza della Corte europea sul criterio della sufficiente connessione temporale e sostanziale tra i procedimenti penale e amministrativo. - III. Analisi dei principi di diritto enunciati nella decisione della Grande Camera. - IV. La soluzione del caso di specie. - V. Conclusioni. | (Abstract) In A and B v. Norway (judgment of 15 November 2016, nos 24130/11 and 29758/11) the Grand Chamber of the European Court of Human Rights restricted the scope of the ne bis in idem principle. Partly relaying on its previous case law, the Court upheld that Art. 4 of the Protocol no. 7 of the European Convention of Human Rights is not violated by dual proceedings conducted against an individual for the same conduct, if the proceedings are closely connected to each other in substance and in time. In A and B, the European Court also listed a number of elements to test the intensity of the connection in substance and in time.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 1183-1193 | European Forum Insight of 5 January 2017 | (Table of Contents) I. A way out of the rush to prosecute: the principles of mutual recognition and mutual trust and the European ne bis in idem. - II. Has the trial been "finally disposed"? The case law of the Court of Justice and the recent clarifications provided in Kossowski. - II.1. The procedural criterion: the final nature of a decision. - II.2. The substantive criterion: the determination of the merits of the case. - III. Mutual trust is not blind: the lack of a detailed investigation as a limit to the application of the ne bis in idem principle. | (Abstract) The Insight considers the case law of the Court of Justice concerning the notion of "finally disposed", i.e. a constitutive element of the European ne bis in idem principle. In order to trigger the right not to be tried or punished twice, a national decision must be final and has to contain a sufficient determination of the merits of the case. So far, the Court of Justice has interpreted these requirements extensively, by identifying mutual recognition and mutual trust as the engines of the European ne bis in idem. Nonetheless, the Court's recent preliminary ruling in Kossowski clarifies that a lack of an adequate investigation can amount to limiting the scope of the principle at stake. Mutual trust is not blind and national judicial authorities are entitled to make a critical appraisal on the foreign authority's activity, insofar as the reasons stated in its decision closing a case evidently show the lack of a detailed investigation. Following the recent judgment Aranyosi and Căldăraru, Kossowski adds a new crack in the wall of mutual recognition and mutual trust. However, the Court shows a clear favor integrationis: these principles can be limited only in exceptional circumstances, where it is necessary to provide a cure for severe pathologies affecting the foreign decision.