Enforcement or no Enforcement?

Interpreting the "ne bis in idem" principle in the European Union

Masterarbeit , 2011 , 45 Seiten , Note: 1,3

Jura - Europarecht, Völkerrecht, Internationales Privatrecht

This thesis looks at the EU ne bis in idem principle. In particular it examines if this principle that no one shall be held liable twice for the same act, contains an enforcement requirement. Because the ne bis in idem principle is codified in different sources of EU law which all have slightly different wordings, a (national) judge may be confronted with the difficult question as to what provision to apply in a given case. The author of this thesis has selected a judgment of a German Court that well illustrates this dilemma and which shows the relevance and topical interest of this problem, for which as yet no clear guidance has been provided by the European Court of Justice (ECJ). In this Boere case a German Court applied the ne bis in idem principle as laid down in Article 54 CISA and concluded that enforcement was an essential element of the ne bis in idem principle. The thesis introduces this case in a well-structured manner and critically reflects upon the judgment of the German Court. By taking this case a starting point, the author sets out clearly which underlying questions concerning the hierarchy between the different sources of EU law must be answered before a conclusion in a particular ne bis in idem case can be drawn.

The author of this thesis argues that Article 54 CISA – as applied by the German Court in the Boere case – is incompatible with Article 50 EuCFR, a provision which does not contain an enforcement requirement. She thereby analyses the relation between these two source of law – the Schengen acquis and the EU Charter of Fundamental Rights – in a profound, refreshing and well-substantiated manner. Particularly the discussion of relevant ECJ case-law is good and comprehensive. The author subsequently assesses whether the incompatibility of Art 54 CISA with Art 50 EuCFR (with EU law in general) can be justified. Here again, she addresses a relatively new question.

This thesis is well-researched and reasonably convincing. The author has persuasively shown that it would be desirable if the ECJ would give a ruling on the question.

TABLE OF CONTENTS

1. Introduction and background
1.1 Introduction
1.2 The origin of the sources of the ne bis in idem principle in the European Union
1.3 Ne bis in idem-analysis and comparison of the relevant articles
1.4 The case of Boere
1.4.1 Facts of the case
1.4.2 Judgment and reasoning
1.4.3 Criticism of thejudgment

2. Is an enforcement requirement mandatory?
2.1 Status of Schengen Law
2.2 Status of the Charter
2.3 Hierarchy between Article 54 CISA and Article 50 EuCFR
2.4 The compatibility of Article 54 CISA with EU Law
2.4.1 Incompatibility of Art 54 CISA with Article 50 EuCFR
2.4.2 The influence of general principles
2.4.2.1 Ne bis in idem as a general principle
2.4.2.2 The fundamental rights as enshrined in the ECHR as general principles
2.4.2.3 Scope of the ne bis in idem general principle regarding enforcement
2.4.3 Interim conclusion
2.5 Justification of the enforcement requirement
2.5.1 Justification on the basis of Article 52 (1) EuCFR
2.5.2 Proportionality
2.5.2.1 The impact of mutual recognition
2.5.2.2 Influence ofFree Movement Rights
2.5.2.3 Interim conclusion
2.5.3 Justification using Article 54 CISA as a concretization of Article 50 EuCFR
2.5.4 Interim conclusion

3. The implication of this outcome for European Union Law
3.1 Consequences for Article 54 CISA
3.2 Consequences for the European Arrest Warrant

4. Final conclusion

• Hochschule: Universiteit Leiden (Europäisches Rechtsinstitut)
• Note: 1,3
• Autor: LL.M. European Law (Leiden University) Jana Seydel (Autor:in)
• Erscheinungsjahr: 2011
• Seiten: 45
• Katalognummer: V174432
• ISBN (eBook): 9783640949236
• ISBN (Buch): 9783640949038
• Sprache: Englisch
• Schlagworte: Ne bis in idem, EU, Schengen, Grundrechtecharta, Doppelbestrafungsverbot, Grundprinzipien der EU, Artikel 54 SDÜ, Article 54 CISA, Article 50 EuCFR, Artikel 50 GRCh, non bis in idem, EU Charter of Fundamental Rights and Freedoms, EuCFR