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.
Inhaltsverzeichnis (Table of Contents)
- Introduction and background
- Introduction
- The origin of the sources of the ne bis in idem principle in the European Union
- Ne bis in idem-analysis and comparison of the relevant articles
- The case of Boere
- Facts of the case
- Judgment and reasoning
- Criticism of the judgment
- Is an enforcement requirement mandatory?
- Status of Schengen Law
- Status of the Charter
- Hierarchy between Article 54 CISA and Article 50 EuCFR
- The compatibility of Article 54 CISA with EU Law
- Incompatibility of Art 54 CISA with Article 50 EuCFR
- The influence of general principles
- Ne bis in idem as a general principle
- The fundamental rights as enshrined in the ECHR as general principles
- Scope of the ne bis in idem general principle regarding enforcement
- Interim conclusion
- Justification of the enforcement requirement
- Justification on the basis of Article 52 (1) EuCFR
- The impact of mutual recognition
- Influence of Free Movement Rights
- Interim conclusion
- Proportionality
- The impact of mutual recognition
- Influence of Free Movement Rights
- Interim conclusion
- Justification using Article 54 CISA as a concretization of Article 50 EuCFR
- Interim conclusion
- The implication of this outcome for European Union Law
- Consequences for Article 54 CISA
- Consequences for the European Arrest Warrant
- Final conclusion
- The interpretation of the ne bis in idem principle in the European Union
- The legal status of the principle in EU law, including the relationship between the Charter of Fundamental Rights and the Schengen Convention
- The implications of the principle for the enforcement of sentences in cross-border situations
- The compatibility of the enforcement requirement with fundamental rights principles
- The potential impact of the principle on the European Arrest Warrant
- Introduction and background This chapter introduces the research question and provides context by exploring the origins of the ne bis in idem principle in EU law. It examines the relevant articles in EU law and analyzes the case of Mr Boere, highlighting the difficulties of applying the principle in a cross-border situation where a sentence has not been enforced.
- Is an enforcement requirement mandatory? This chapter delves into the legal status of the ne bis in idem principle in both Schengen law and the Charter of Fundamental Rights. It examines the relationship between Article 54 of the Schengen Convention and Article 50 of the Charter, exploring whether there is a hierarchy between the two provisions and whether the principle is a fundamental right in EU law. It also considers the broader implications of the principle as a general principle of EU law.
- The implication of this outcome for European Union Law This chapter explores the consequences of the analysis on the application of the ne bis in idem principle for both the Schengen Convention and the European Arrest Warrant. It considers the potential impact of the principle on future enforcement actions in the EU.
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This thesis aims to examine the application of the ne bis in idem principle in the European Union, specifically in situations where a sentence has not been enforced. The focus is on the legal status of the principle in EU law and its implications for both the Schengen Convention and the European Arrest Warrant.
Zusammenfassung der Kapitel (Chapter Summaries)
Schlüsselwörter (Keywords)
The key terms and concepts explored in this thesis include ne bis in idem, European Union law, enforcement of sentences, fundamental rights, Charter of Fundamental Rights, Schengen Convention, European Arrest Warrant, mutual recognition, proportionality, general principles of law, and cross-border justice.
- Arbeit zitieren
- LL.M. European Law (Leiden University) Jana Seydel (Autor:in), 2011, Enforcement or no Enforcement?, München, GRIN Verlag, https://www.grin.com/document/174432
