1.Introduction

1.1.Setting the scene: the European ne bis in idem dialogue

The ne bis in idem principle is codified at many levels, has manifold rationales and, accordingly, ‘does not easily lend itself to a brief characterisation.’Michiel Luchtman, ‘Transnational Law Enforcement in the European Union and the Ne Bis in Idem Principle’, Review of European Administrative Law (2011), 5 and 7. In essence, the ne bis in idem principle prevents repeated prosecution or punishment for the same acts or offences, thereby protecting both the authority of final judgments (res judicata) and the individual citizen against abuse of the state’s right to impose punishment (ius puniendi).Ibid. For additional rationales see e.g. Bas van Bockel, The ne bis in idem principle in EU law (Kluwer International, 2010), 28-33; Anne Weyembergh & Inés Armada, ‘The principle of ne bis in idem in Europe’s Area of Freedom, Security and Justice’, Valsamis Mitsilegas; Maria Bergström & Theodore Konstadinides (eds.), Research Handbook on EU Criminal Law (Edward Elgar Publishing, 2016), 191-194. At the European level, the ne bis in idem principle is codified as an individual right in A4P7 ECHR, Article 50 of the Charter and Article 54 of the Convention Implementing the Schengen Agreement (CISA).The principle can also be found in the domestic law of many European states, sometimes as a constitutional right (e.g. Art. 103(3) of the German Constitution), as well as in other international instruments (e.g. Art. 14(7) of the International Covenant on Civil and Political Rights and Art. 20 of the Rome Statute of the International Criminal Court). The principle also serves as a bar to cooperation in criminal matters between States (e.g. Art. 3(2) of the Framework Decision on the European Arrest Warrant). These provisions do not operate in isolation. Under the homogeneity clause of Article 52(3) of the Charter, the meaning and scope of A4P7 ECHR and Article 50 of the Charter ‘shall be the same’, notwithstanding the possibility for EU law to provide more protection.As to the relation between Art. 54 CISA and Art. 50 of the Charter: the former article being secondary EU law, must be interpreted in light of the latter. See C-398/12, M., ECLI:EU:C:2014:1057, para. 35 and C-486/14, Kossowski, ECLI:EU:C:2016:483, para. 31. The development of the ne bis in idem principle in the EU legal order is in large part determined by the interrelated case law of the two courts vested with the responsibility to protect these ne bis in idem provisions: the CJEU and ECtHR. This interrelation can be framed in terms of judicial dialogue, which, in this article, refers to the cross-fertilisation and mutual influence between both courts, as appears from references made to each other’s case law.See infra s. 1.2 on the use of the term ‘judicial dialogue’.

When observed through the prism of judicial dialogue, the judgments of Menci,C-524/15, Luca Menci, ECLI:EU:C:2018:197.GarlssonC-537/16, Garlsson Real Estate and Others, ECLI:EU:C:2018:193. and Di PumaC-596/16 and C-597/16, Enzo di Puma and Antonio Zecca, ECLI:EU:C:2018:192. – all issued on 20 March 2018 – are the latest step of the CJEU in its ‘ne bis in idem dialogue’ with the ECtHR. The judgments occupy an important position in this dialogue, as they constitute the response of the CJEU to A and B v Norway.ECtHR 15 November 2016, A and B v Norway, Appl. Nos. 24130/11 and 29758/11, ECLI:CE:ECHR:2016:1115JUD002413011. In that case, the ECtHR restricted the protective scope of A4P7 ECHR by allowing the combination of punitive administrative and criminal proceedings, provided that they are sufficiently connected in substance and time. The judgment was criticised strongly.Not in the last place by Judge Pinto de Albuquerque in an extensive dissenting opinion, see ECtHR 15 November 2016, A and B v Norway, Appl. Nos. 24130/11 and 29758/11, ECLI:CE:ECHR:2016:1115JUD002413011, Dissenting Opinion of Judge Pinto De Albuquerque. In deciding the cases of Menci, Garlsson and Di Puma, the CJEU faced an important choice. It could either reject the limitation of the ne bis in idem principle by the ECtHR and stick to a more protective interpretation in line with its own previous case law,C-617/10, Åkerberg Fransson, ECLI:EU:C:2013:105. or it could follow the ECtHR in allowing for dual-track (administrative and criminal) enforcement in response to the same acts and thereby lower the protection afforded by the ne bis in idem principle of Article 50 of the Charter. It appears that the CJEU allows for a combination of punitive administrative and criminal proceedings on its own conditions. These conditions largely resemble that of the ECtHR, but some distinctive differences can be identified between the respective approaches of the two courts. While these differences lead to a higher level of protection under the Charter in some cases, the ECHR might provide more protection in others

This article discusses the choices made by the CJEU in Menci, Garlsson and Di Puma and positions the judgments in the context of the ongoing ne bis in idem dialogue between the two courts. First, in section 1.2 some preliminary observations will be made on the term judicial dialogue. The subsequent analysis is conducted chronologically by looking at the past, present and future of the ‘ne bis in idem dialogue’ between the CJEU and ECtHR. Section 1.3 contains a discussion of several milestones in the dialogue on the principle before the CJEU issued its judgments in the cases under consideration (reflecting ‘the past’). Menci, Garlsson and Di Puma, being the most recent judgments of the CJEU on the matter, constitute the ‘present’ of the dialogue. The facts of these cases will be summarised (section 2), followed by a description of the Advocate General’s Opinion (section 3) and an examination of the reasoning of the CJEU (section 4). In section 5.1 the present dialogue is analysed by comparing the judgments to A and B v Norway and evaluating the present state of the ne bis in idem principle in the EU. In section 5.2 the present ne bis in idem dialogue is framed in the broader dialogue between the CJEU and ECtHR. Finally, in section 5.3, some tentative predictions on the direction of ‘the future’ of the ne bis in idem dialogue are provided.

1.2.​Judicial dialogue: preliminary observations

Some brief, preliminary observations on the term judicial dialogue are to be made, as widespread and inconsistent use has mystified its meaning.See e.g. Aida Torres Perez, Conflicts of Rights in the European Union. A Theory of Supranational Adjudication (OUP, 2009), 106. In this article, judicial dialogue will be used to describe the mutual influence between the CJEU and ECtHR as appears from the cross-citation and discussion of each other’s judgments.Cf. the use of the term (albeit in a different substantive context) by e.g. Philippa Webb, ‘Immunities and Human Rights: Dissecting the Dialogue in National and International Courts’ in Ole Kristian Fauchald & André Nollkaemper (eds.), The Practice of International and National Courts and the De-Fragmentation of International Law (Hart Publishing, 2012), 245. It is to be noted that judicial dialogue can be given a wide range of (other) meanings, especially in the area of (European and comparative) constitutional law and international law.E.g. Carla Zoethout, ‘On the Different Meanings of Judicial Dialogue’, European Constitutional Law Review (2014), 175, and, elaborately, Lize Glas, The Theory, Potential and Practice of Procedural Dialogue in the European Convention on Human Rights System (Intersentia, 2016), 70-105.

In a general sense, judicial dialogue can be defined as a process of engagement in which the decision of one court influences the opinion and judgments of the other court. This ‘activity’ can take numerous shapes and forms, occurring between courts belonging to different jurisdictions, as well as between courts within the same legal system.Antonios Tzanakopoulos, ‘Judicial Dialogue as A Means of Interpretation’, in Helmut Philipp Aust and Georg Nolte (eds.), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (OUP, 2016), especially s. II ‘Judicial dialogue defined and categorised’ and Anne-Marie Slaughter, ‘A Typology of Transjudicial Communication’, University of Richmond Law Review 99 (1994). For analytical purposes, it is useful to acknowledge that next to dialogue in a descriptive sense – aimed at depicting interaction and mutual influence between courts – a normative use of the term has come to rise, in which attention is paid to dialogue as a source of legitimacy of adjudication by (particularly) supranational courts.Torres Peres 2016 (n 12), 106-109. Also, a distinction can be drawn between ‘formal’ and ‘informal’ dialogue. While the former focuses on interaction between courts as appears from the texts of their judgments, the latter encapsulates conversation and dialogue through ‘other means’, such as bilateral meetings between judges or judicial networks.E.g. Monica Claes & Maartje de Visser, ‘Are You Networked Yet? On Dialogues in European Judicial Networks’, Utrecht Law Review (2012), 100-114.

In light of the foregoing, judicial dialogue as interpreted at the start of this sub-section signifies a descriptive, analytical focus on the formal dialogue between the CJEU and ECtHR. As the analysis is limited to the dialogue on the substantive topic of the ne bis in idem principle, this article specifically deals with – what will be referred to as – the ‘ne bis in idem dialogue’ between both European courts.

1.3.The past of the ne bis in idem dialogue between the CJEU and ECtHR

1.3.1.Ne bis in idem in Europe: an example of convergence

The ne bis in idem principle has four constituent elements: (1) there are two sets of punitive proceedings (bis), (2) one of which has led to a final decision; (3) the person who is the subject of those proceedings is the same; and (4) the acts being judged are the same (idem).See C-524/15, Menci, Opinion AG Campos Sánchez-Bordona, ECLI:EU:C:2017:667, para. 38. All four elements have to be satisfied for a ne bis in idem situation to exist. As the discussion below shows, in interpreting these elements, the CJEU and ECtHR took due notice of each other’s case law. Consequently, the interpretation of the principle by the CJEU and ECtHR turned out to be largely similar. This made the ne bis in idem principle ‘an example of convergence’ between the Charter and the ECHR.Koen Lenaerts & José Antonio Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’ in Steve Peers, Tamara Hervey, Jeff Kenner & Angela Ward (eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014), 1582. See also Piet Hein van Kempen & Joeri Bemelmans, ‘EU protection of the substantive criminal law principles of guilt and ne bis in idem under the Charter of Fundamental rights: underdevelopment and overdevelopment in an incomplete criminal justice framework’, New Journal of European Criminal Law 247 (2018), 260.

To satisfy the bis-requirement (element 1), the two proceedings or penalties must qualify as punitive. In Engel, the ECtHR established its three-step test to determine what counts as a ‘criminal charge’ under Article 6 ECHR.ECtHR 8 June 1976, Engel and Others v the Netherlands, Appl. Nos. 5100/71; 5101/71; 5102/71; 5354/72 and 5370/72, ECLI:CE:ECHR:1976:0608JUD000510071. The three criteria are the classification of the offence under national law, the nature of the offence and the severity of the penalty. The Engel-test has also been adopted by the ECtHR in cases concerning A4P7 ECHR.See ECtHR 10 February 2015, Kiiveri v Finland, Appl. No. 53753/12, ECLI:CE:ECHR:2015:0210JUD005375312, para. 30 and the cases referred to in that paragraph. An important further question that can been raised in this regard is whether the ne bis in idem principle covers a combination of punitive administrative and criminal proceedings. In the seminal case of Åkerberg Fransson, the CJEU faced this issue, as it had to rule on the lawfulness of a combination of administrative tax penalties and criminal prosecution under Article 50 of the Charter.Åkerberg Fransson (n 11). To answer this question, the CJEU first had to decide whether the tax penalties are of a criminal nature. In doing so, the CJEU referred to its previous judgment in Bonda,C-489/10, Bonda, ECLI:EU:C:2012:319. in which it incorporated the Engel-criteria, thereby ensuring homogeneity between the two courts on this important issue. Subsequently, the CJEU held that Article 50 of the Charter does not preclude the successive imposition of tax penalties and criminal penalties for the same conduct, provided that the first penalty is not criminal in nature. The CJEU left the question whether the tax penalty in the case under consideration was criminal in nature to the referring court and thereby refrained from deciding explicitly on the question whether Article 50 of the Charter allows a combination of administrative and criminal sanctions. It has been suggested that the CJEU did not pass an explicit judgment on the matter as it did not want to get ‘under the ECtHR’s feet’ while several Swedish tax cases on ne bis in idem were pending before the ECtHR.Peter Wattel, ‘Ne Bis in Idem and Tax Offences in EU law and ECHR law’ in Bas van Bockel (ed.), Ne Bis in Idem in EU Law (CUP, 2016), 184. However, in Janosevic v Sweden,ECtHR 21 May 2003, Janosevic v Sweden, Appl. No. 34619/97, ECLI:CE:ECHR:2002:0723JUD003461997. the ECtHR – applying the Engel-criteria – had already held that nearly identical tax surcharges as imposed in Åkerberg Fransson are of a criminal nature. The subsequent incorporation of the Engel-criteria in Bonda, as referred to in Åkerberg Fransson, made it hardly possible for the referring court in Åkerberg not to qualify the tax sanction under review as punitive. In light of the foregoing, and even in the absence of an explicit judgment of the CJEU on the matter, it can be deduced from Åkerberg Fransson that Article 50 prevents the combination of administrative tax penalties and criminal sanctions for the same factual conduct.See e.g. Rob Widdershoven, HvJ EU 26-02-2013 (Åkerberg Fransson) [2013] Administratiefrechtelijke Beslissingen (AB) 2013/131 (case note), pt. 7 and A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), paras 14 and 80. At the very least, this appears to be the interpretation of Åkerberg Fransson by the ECtHR in Grande Stevens.ECtHR 4 March 2014, Grande Stevens v Italy, Appl. No. 18640/10, ECLI:CE:ECHR:2014:0304JUD001864010, para. 229 as to which see A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), paras 66 and 80. In that case, the ECtHR rejected the combination of administrative and criminal penalties under A4P7 ECHR. The indirect incorporation of the Engel-criteria in Åkerberg and the alignment on the issue of combined administrative and criminal proceedings resulted in remarkable convergence between both courts.A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), para. 14; Lenaerts and Gutiérrez-Fons 2014 (n 19), 1583. The fact that the CJEU did not directly cite ECtHR case law in Åkerberg, however, has also led some to argue that the Luxembourg Court refuses to engage with arguments drawn from the ECHR and that it gives a limited meaning to Art. 52(3) of the Charter. See Xavier Groussot and Angelica Ericsson, ‘Ne Bis in Idem in the EU and ECHR Legal Orders. A Matter of Uniform Interpretation’ in Bas van Bockel (ed.), Ne Bis in Idem in EU Law (CUP, 2016), 86. This was recognised explicitly by the ECtHR.See ECtHR 30 April 2015, Kapetanios and Others v Greece, Appl. Nos. 3453/12, 42941/12 and 9028/13, ECLI:CE:ECHR:2015:0430JUD000345312, para. 73.

Dialogue can also be identified with regard to the notion of finality (element 2). The ECtHR has held that a judicial decision is final if it has acquired the force of res judicata, i.e. when no further ordinary remedies are available (anymore).ECtHR 10 February 2009, Sergey Zolotukhin v Russia, Appl. No. 14939/03, ECLI:CE:ECHR:2009:0210JUD001493903, paras 107-108. In M., with due regard to the approach of the ECtHR, the CJEU held that the final nature of a procedure is not affected by the possibility of reopening criminal investigations if new facts and/or evidence become available.C-398/12, M., ECLI:EU:C:2014:1057, paras 37-41.

A similar development can be observed with regard to the personal scope of the principle (element 3). In cases concerning subsequent punishment of a legal person and the natural person representing it, the CJEU and ECtHR adopt a similar approach. In Pirttimäki v Finland, the ECtHR held that the ne bis in idem principle is not violated where multiple penalties are imposed on natural and legal persons who are legally distinct.ECtHR 20 May 2014, Pirttimäki v Finland, Appl. No. 35232/11, ECLI:CE:ECHR:2014:0520JUD003523211, paras 49-52. In Orsi and Baldetti, the CJEU equally reasoned that where a tax penalty is imposed on a company and criminal charges are brought against the natural person representing the company, Article 50 of the Charter is not infringed.C-217/15 and C-350/15, Orsi and Baldetti, ECLI:EU:C:2017:264, para. 27. In deciding these cases, the Luxembourg Court referred to Pirttimäki to ensure that the protection afforded by the Charter does not fall below the standards of the ECHR.Ibid, paras 24-25.

For a long time, the element of idem (element 4) was considered the most challenging element of the ne bis in idem principle.Van Bockel 2010 (n 2), 11. In this regard, a distinction can be made between an idem crimen and an idem factum approach. Whereas a ne bis in idem principle based on idem factum protects against repeated prosecution for the same factual conduct, the idem crimen approach takes into account the legal qualification of that conduct and prevents double prosecution for the same offence. A factual idem approach provides more protection, as it rules out double prosecution based on different offences relating to the same factual circumstances. The ECtHR struggled with the choice between these two types of idem. The Strasbourg Court referred to factual idem,In e.g. ECtHR 23 October 1995, Gradinger v Austria, Appl. No. 15963/90, ECLI:CE:ECHR:1995:1023JUD001596390. as well as legal idem,In e.g. ECtHR 30 July 1998, Oliveira v Switzerland, Appl. No. 25711/94, ECLI:CE:ECHR:1998:0730JUD002571194, ECtHR 2 July 2002, Göktan v France, Appl. No. 33402/96, ECLI:CE:ECHR:2002:0702JUD003340296; ECtHR 24 June 2003, Gauthier v France, Appl. No. 61178/00, ECLI:CE:ECHR:2003:0624DEC006117800 and ECtHR 10 October 2006, Öngün v Turkey, Appl. No. 15737/02, ECLI:CE:ECHR:2009:0623JUD001573702. and also introduced an intermediate idem-test in Franz Fischer v Austria,ECtHR 29 May 2001, Franz Fischer v Austria, Appl. No. ECLI:CE:ECHR:2001:0529JUD003795097. based on the ‘essential elements’ of the offences concerned.See John Vervaele, ‘Ne Bis In Idem: Towards a Transnational Constitutional Principle in the EU?’, Utrecht Law Review 211 (2013), 214-215. On the contrary, the CJEU did make a clear choice, at least for the purposes of Article 54 CISA.In competition law the CJEU adheres to a different definition of idem, which leads to a lack of internal consistency. See e.g. Renato Nazzini, ‘Parallel Proceedings in EU Competition Law. Ne Bis in Idem as a Limiting Principle’, in Bas van Bockel (ed.), Ne Bis in Idem in EU Law (CUP, 2016), 141-145, and the Opinion of AG Kokott in Case C-17/10, Toshiba Corporation, ECLI:EU:C:2017:299, paras 116-118. In a line of cases beginning with Van Esbroeck, the CJEU held that the only relevant idem-criterion is identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together.C-436/04, Van Esbroeck, ECLI:EU:C:2006:165, para. 36; C-150/05, Van Straaten, ECLI:EU:C:2006:614, para. 48; C-467/04, Gasparini, ECLI:EU:C:2006:610, para. 54 and

C-288/05, Kretzinger, ECLI:EU:C:2007:441, para. 34 and C-367/05, Kraaijenbrink,

ECLI:EU:C:2007:444, para. 27. The CJEU’s idem factum approach is largely motivated by the fact that the objective of Article 54 CISA, which only applies transnationally, is to ensure that no one is prosecuted for the same acts in several Member States on account of having exercised his right to freedom of movement. As the legal definitions of offences may vary between Member States, adopting a legal idem approach would frustrate free movement.E.g. Van Esbroeck (n 41), paras 33-35. In Zolotukhin, the ECtHR acknowledges the legal uncertainty engendered by the existence of a variety of answers to the idem-question.Zolotukhin (n 30), para. 78. After extensively quoting the case law of other (international) courts, including the CJEU,E.g. Van Esbroeck (n 41) & Kraaijebrink (n 41); Zolotukhin (n 30), paras 33-38. the ECtHR adopts an idem factum approach. The Strasbourg Court concludes that A4P7 prohibits repeated prosecution or trial relating to ‘identical facts or facts which are substantially the same’, and therefore ‘[t]he Court’s inquiry should (…) focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space.’Zolotukhin (n 30), paras 82 and 84. Zolotukhin has been confirmed in a number other cases, see e.g. ECtHR 18 October 2011, Tomasović v Croatia, Appl. No. 73053/01, ECLI:CE:ECHR:2011:1018JUD005378509; ECtHR 27 November 2014, Lucky Dev v Sweden, Appl. No. 7356/10, ECLI:CE:ECHR:2014:1127JUD000735610 and A and B v Norway (n 9). The extensive references to the case law of the CJEU and the use of nearly identical language indicate that the ECtHR intended to safeguarded homogeneity with the CJEU’s interpretation of Article 54 CISA.Wattel 2016 (n 24), 179; Groussot & Ericsson 2016 (n 28), 57. This convergence might strike one as odd, as the idem-criterion adopted by the CJEU was clearly inspired by the transnational application of Article 54 CISA and the free movement rationale behind it. As A4P7 ECHR only applies within a state, these underlying motives for a broad, factual interpretation of idem are absent.Wattel 2016 (n 24), 180. Nevertheless, what stands out is that a constructive dialogue on the idem-element led to clear convergence between the case law of both courts, which increased the minimum level of protection afforded by the ECtHR.Magnus Gulliksson, ‘Effective Sanctions as the One-dimensional Limit to the Ne Bis in Idem Principle in EU Law’ in Joakim Nergelius & Eleonor Kristoffersson, Human Rights in Contemporary European Law (Hart Publishing, 2015), 141-143. For a critical assessment of this convergence, see Michael O. Floinn, ‘The Concept of Idem in the European Courts: Extricating the Inextricable Link in European Double Jeopardy Law’, Columbia Journal of European Law (2017), 75.

The past of the ne bis in idem dialogue is characterised by alignment and a high level of protection. Both courts opted for a broad, factual definition of idem and – so it appears – rejected the combination of punitive administrative and criminal penalties.

1.3.2.The ECtHR’s revirement in A and B v Norway

In November 2016, the ECtHR changed its course on the bis-element in A and B v Norway, which concerned a combination of tax sanctions and criminal proceedings. A and B were confronted with tax penalties, which became final in December 2008, and criminal proceedings for tax fraud, leading to a final sentence in October 2010. The ECtHR held that dual criminal and administrative proceedings, irrespective of the order in which they take place,A and B v Norway (n 9), para. 128. are allowed provided that they are ‘sufficiently closely connected in substance and time’.While it as assumed that ‘the fundamental change of direction really occurred in the judgment in A and B v. Norway.’ (Menci, Opinion AG (n 18), para. 69, footnote 67), this criterion did not come out of nowhere. See A and B v Norway (n 9), paras 112-116. With regard to the existence of a sufficiently close connection in substance, the ECtHR defined a set of ‘material factors’,A and B v Norway (n 9), para. 132. The ECtHR elaborates on these criteria in paras 133-134. which include:

1. whether the different proceedings pursue complementary purposes and thus address different aspects of the social misconduct involved;
2. whether the dual proceedings are a foreseeable consequence, in law and in practice, of the prohibited conduct;
3. whether the proceedings are conducted in such a manner as to avoid as far as possible any duplication in the collection as well as the assessment of the evidence;
4. and, above all, whether the sanction imposed in the proceedings which become final first is taken into account in those which become final last, so that the proportionality of the overall amount of penalties is ensured.

Where the connection in substance is sufficiently strong, the requirement of a connection in time nonetheless remains and must be satisfied.Ibid, para. 134. If there is a sufficiently close connection in both substance and time, then it would be ‘artificial’ to view the administrative and criminal proceedings concerned as the repeated exercise of the ius puniendi. Rather, the proceedings then form a coherent whole, no bis exists and the situation does not fall within the scope of A4P7 ECHR.Ibid, paras 112 and 130. Applying these criteria to the facts of the case, the ECtHR concludes that there has been no violation of A4P7 ECHR.

A and B v Norway has not been warmly received . The ECtHR has been said to have cracked under the pressure of several intervening states who were keen on maintaining their system of dual-track law enforcement.See e.g. Menci, Opinion AG (n 18), para. 71. It has allegedly opened the floodgates for maximum repression through double punitive proceedings with respect to the same factual conduct and used vague criteria engendering legal uncertainty.A and B v. Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), e.g. paras 46 and 79-80. While others expressed more moderate views on the judgment,E.g. Bas van Bockel, EHRM, 15-11-2016, 24130/11, 29758/11 [2017] European Human Rights Cases 2017/61 (case note). one thing is clear: in A and B v Norway, the ECtHR lowered the level of protection afforded by A4P7 ECHR. It did so in at least two important respects.See e.g. Peter Wattel, ‘Bis in idem’, Nederlands Juristenblad (2017), 239. Firstly, contrary to what was assumed thus far,Infra notes 26 and 27. dual punitive administrative and criminal proceedings can be allowed under certain circumstances. Secondly, prior to A and B v Norway, the ECtHR held that once a first proceeding of a criminal nature had become final, a second proceeding could no longer commence or must be halted.See e.g. Grande Stevens (n 27), para. 220; Zolotukhin (n 30), para. 83 and ECtHR 25 June 2009, Maresti v Croatia, Appl. No. 55759/07, ECLI:CE:ECHR:2009:0625JUD005575907, para. 65. This so-called ‘finality system’, based on the Erledigungsprinzip, protects against double prosecution (ne bis vexari) and is also considered to be the system of Article 54 CISA and Article 50 of the Charter.Wattel 2016 (n 24), 175-176. In A and B v Norway, with its heavy emphasis on the proportionality of the total ‘package’ of sanctions, the ECtHR has moved towards a less protective ‘credit system’, based on the Anrechnungsprinzip. In this system, the first sanction merely has to be taken into account when the second sanction is imposed (ne bis punieri; no double punishment).For a discussion of these two ‘versions’ of the principle, see Van Bockel 2010 (n 2), 33-39.

In his Dissenting Opinion, Judge Pinto de Albuquerque concludes that the ECtHR ‘willingly distances itself from the Luxembourg Court’, thereby putting the ‘progressive and mutual collaboration between the two European courts’ at risk.A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), paras 67 and 80. In Menci, Garlsson and Di Puma the CJEU sets out how the ECtHR’s revirement impacts the ne bis in idem principle as defined in the Charter and, in doing so, provides an answer to the question whether the risk predicted by the Dissenting Judge in A and B v Norway has materialised.

2.The facts of the cases

As a result of the non-payment of VAT, Luca Menci became subject of administrative proceedings, which resulted in the imposition of a tax penalty of nearly € 85.000 in 2013. After the conclusion of the administrative proceedings, criminal proceedings regarding the same act were initiated against Mr Menci before the District Court of Bergamo in 2014.Menci (n 6), paras 11-15. The facts of this case largely resemble that of Åkerberg Fransson (n 11), see Menci, Opinion AG (n 18), para. 29. The District Court subsequently referred a preliminary question to the CJEU.

In Garlsson, the public authority responsible for regulating the Italian financial markets (CONSOB) imposed an administrative penalty of €10.2 million on a natural person and two legal persons for acts amounting to market manipulation in September 2007. Appeals were lodged against this fine and meanwhile criminal proceedings were initiated. The latter proceedings led to a prison sentence that became final in September 2009, while the administrative proceedings were still pending.Garlsson (n 7), paras 11-19. The Supreme Court of Cassation, deciding on the appeal against the administrative fine, referred a preliminary question to the CJEU in September 2016.

In September 2009, CONSOB imposed an administrative fine on Mr Di Puma and Mr Zecca for insider trading. The defendants appealed against the fines and, in the meantime, criminal proceedings commenced in December 2011. These proceedings led to the acquittal of both defendants, while the administrative proceedings were still pending.Di Puma (n 8), paras 13-21. The Supreme Court of Cassation, eventually deciding on the appeal against the administrative fines, subsequently referred preliminary questions to the CJEU in November 2016.

In the questions referred to it, the CJEU was asked whether Article 50 of the Charter (interpreted in light of A4P7 ECHR) precludes the possibility of:

• conducting criminal proceedings after the imposition of a final administrative penalty with respect to the same acts constituting the non-payment of VAT (in Menci);Menci (n 6), para. 16.
• conducting administrative proceedings after the imposition of a sentence in criminal proceedings with respect to the same acts constituting market manipulation (in Garlsson);Garlsson (n 7), para. 20. The Court of Cassation also referred a second question, in response to which the CJEU confirmed the direct effect of Art. 50 the Charter.
• conducting administrative proceedings after an acquittal on counts of insider trading in criminal proceedings with respect to the same acts (in Di Puma).The reference as understood by the CJEU, Di Puma (n 8), para. 25.

3.The Advocate General’s Opinions

In his Opinions, the Advocate General sets out the two main options available to the CJEU in response to the recent case law of the ECtHR: (1) accept the exception to the bis-element made in A and B v Norway, or (2) reject this limitation, maintain a higher level of protection and further develop its own autonomous approach.

The first option is rejected by the Advocate General. The ECtHR’s reasoning in A and B v Norway was based on a position of deference towards the arguments of the State Parties to the ECHR, as the ECtHR emphasised the autonomy of the States in organising their legal system and took due notice of the fact that several State Parties have not ratified A4P7 ECHR. On the contrary, according to the Advocate General, the interpretation of Article 50 of the Charter cannot depend on the willingness of Member States to comply with it. Furthermore, the ECtHR’s criteria led to significant uncertainty and complexity, whereas the rights of the Charter should be easily understood by all and their exercise calls for foreseeability and certainty.Menci, Opinion AG (n 18), paras 69-73.

The Advocate General then considers the second option. A rejection of the ECtHR’s bis-exception would lead to the conclusion that double punitive proceedings infringe Article 50 of the Charter. This would lead to a higher level of protection under the Charter, as allowed by Article 52(3). However, under the horizontal clause of Article 52(1) of the Charter, infringements of the rights contained in the Charter can be justified if certain conditions are met, i.e. limitations must be provided by law and respect the essence of the Charter right concerned. Moreover, subject to the principle of proportionality, limitations must be necessary and meet the objectives of general interest recognised by Union law. The Advocate General therefore discusses whether, pursuant to Article 52(1), the joint imposition of criminal sanctions and administrative penalties of a criminal nature with respect to the same acts qualifies as a justified limitation of Article 50 of the Charter. The Advocate General comes to a negative conclusion in this regard. He briefly hints at the possibility that a duplication of punitive proceedings does not respect the essence of the ne bis in idem principle,Menci, Opinion AG (n 18), para. 82. but, most importantly, sticks to the view that the limitation is unnecessary. Several Member States adopt a single-track (una via) enforcement system and thereby prevent limiting the ne bis in idem principle.Ibid, paras 82-94; C-537/16, Garlsson, Opinion AG Campos Sánchez-Bordona, ECLI:EU:C:2017:668, paras 77-78; C-596/16 and C-597/16, Di Puma, Opinion AG Campos Sánchez-Bordona, ECLI:EU:C:2017:669, paras 80-85. If a dual-track enforcement system were necessary, it would be necessary in all, not only in some, Member States.According to Simonato, this argument is probably the ‘least persuading ‘comparative’ argument’. The reasoning employed by the Advocate General makes it very difficult to find a ‘necessary limitation’ of a Charter right, as this limitation should apparently be provided in every Member State. See Michele Simonato, ‘Two Instruments but a Difficult Relationship? Some Upcoming Decisions of the CJEU on the Ne Bis in Idem’ (European Law Blog, 15 November 2017), https://europeanlawblog.eu/tag/ne-bis-in-idem/ (last accessed 10 September 2018). This argument shapes the Advocate General’s conclusion that dual-track punitive proceedings cannot be justified in the cases under consideration. The Advocate General thus advices the CJEU to maintain a high level of protection and depart from the recent case law of the ECtHR.

4.Judgments

In Menci, the Court first emphasises the importance of the adequate enforcement of Union law. After stressing the obligation of the Member States to counter fraud affecting the financial interests of the EU (including VAT fraud),Menci (n 6), paras 18-20. In this regard the CJEU refers to its decision in C-42/17, M.A.S. and M.B. (Taricco II), ECLI:EU:C:2017:936. the CJEU confirms that the Charter is applicable in the present case and discusses the relationship with the EC(t)HR in general terms. While Article 52(3) of the Charter provides that Charter rights with an equivalent in the ECHR are to have the same meaning and scope as the Convention rights, the ECHR does not (yet) constitute a legal instrument formally incorporated into EU law. Referring to its recent decisions in J.N.C-601/15 PPU, J.N., ECLI:EU:C:2016:84. and K.,C-18/16 K., ECLI:EU:C:2017:680. the Luxembourg Court emphasises the autonomy of the Charter by pointing out that Article 52(3) of the Charter intends to ensure consistency between the ECHR and the Charter ‘without thereby affecting the autonomy of Union law and… that of the Court of Justice of the European Union’.Menci (n 6), paras 22-23. It follows that the preliminary question must be answered in light of the Charter, and, in particular, Article 50 thereof.

The CJEU establishes that both proceedings are of a criminal natureReferring to Bonda (n 23); Menci (n 6), paras 26-33. and relate to the same offence (idem).Ibid, paras 34-38. In line with the Advocate General, the CJEU concludes that the duplication of those proceedings amounts to a limitation of Article 50, which must be justified under Article 52(1) of the Charter.Ibid, paras 39-40. The CJEU swiftly concludes that the duplication of punitive proceedings is provided by law and respects the essence of Article 50 of the Charter.Ibid, paras 42-43. In assessing whether the other requirements of Article 52(1) are met, the CJEU develops criteria that largely mirror that of the ECtHR in A and B v Norway:

1. In determining whether the limitation of ne bis in idem meets an objective of general interest, the CJEU stresses the importance attached to the objective of combatting VAT fraud, which is served by legislation allowing for a duplication of punitive proceedings. Such a duplication ‘may be justified where those proceedings and penalties pursue, for the purpose of achieving such an objective, complementary aims relating, as the case may be, to different aspects of the same unlawful conduct at issue’;Ibid, para. 44.
2. With regard to the necessity of the limitation, the national legislation allowing for a duplication of punitive proceedings must ‘provide for clear and precise rules allowing individuals to predict which acts or omissions are liable to be subject to such a duplication of proceedings and penalties’;Ibid, para. 49.
3. Moreover, the notion of strict necessity ‘implies the existence of rules ensuring coordination so as to reduce to what is strictly necessary the additional disadvantage associated with such a duplication for the persons concerned’;Ibid, para. 53.
4. Also, and line with the principle of proportionality of penalties laid down in Article 49(3) of the Charter, when a second penalty is imposed, it must be ensured that ‘the severity of all of the penalties imposed does not exceed the seriousness of the offence identified.’Ibid, para. 55.

In applying the first criterion to the facts of the case, the CJEU indicates that. in relation to VAT offences, it appears legitimate to adopt a system in which fixed administrative penalties are followed by more severe criminal penalties to deter and punish particularly serious violations. Regarding the second criterion, the Italian legislation at issue meets the requirement of foreseeability as it clearly and precisely lays down when a person can become subject of a duplication of proceedings. In the present case, criminal proceedings took place after the administrative proceedings were finished, with no overlap between the two. While one might expect this to be problematic in light of the third criterion, the CJEU deems it sufficient that under Italian law criminal proceedings may only be brought after completion of administrative proceedings if they concern particularly serious cases of VAT fraud. As Italian law prevents enforcement of a previously imposed administrative fine after a criminal conviction for the same offence, the fourth criterion is also satisfied. Bearing in mind the aforementioned conditions and their application in the present case, the CJEU explicitly adds that the level of protection afforded by Article 50 of the Charter does not fall below that of A4P7 ECHR as interpreted in A and B v Norway.Menci (n 6), paras 62-63. Though the CJEU eventually leaves it up to the referring District Court to decide on the excessiveness of the duplication of procedures, the Court’s own application of the criteria indicate that the limitation of Article 50 of the Charter in Menci can be justified under Article 52 of the Charter.

The reasoning of the CJEU in Garlsson is similar to that in Menci.Subject to modification with regard to the legal regime applicable to market abuse and the facts of the case, the paras 21-56 in Garlsson (n 7) are similar to Menci (n 6). However, in applying the criteria developed under Article 52(1) to the facts of Garlsson, the CJEU adopts a stricter stance. The CJEU states that once criminal proceedings have led to a conviction on counts of market abuse, the bringing of administrative proceedings relating to an administrative fine for the same acts exceeds what is strictly necessary, at least in as far as the criminal conviction led to effective, proportionate and dissuasive punishment.Garlsson (n 7), paras 57 and 59. It follows that if the violation of market abuse rules has been adequately dealt with in criminal proceedings, administrative proceedings no longer have a role to play. Moreover, the requirement of proportionate sanctioning is not met, as the Italian market abuse legislation ensuring the proportionality of sanctions for the same offence only applies to pecuniary sanctions and does not cover terms of imprisonment.Ibid, para. 60. Article 50 of the Charter thus precludes the duplication of proceedings as it occurred in Garlsson.

The case of DiPuma differs from that of Garlsson as the criminal proceedings in the former case resulted in an acquittal rather than a conviction.The case also differs from the other two cases because of the res judicata issues raised by it. This subject is dealt with separately by the CJEU (see Di Puma (n 8), paras 28-36) and will not be discussed as such in this article. This led the referring Court to ask whether, in light of the obligation to ensure effective, proportionate and dissuasive sanctioning of the EU rules on market abuse, the subsequent bringing of proceedings for an administrative fine is authorised by Article 50 of the Charter. The CJEU maintains that, in those circumstances, subsequent administrative proceedings ‘clearly exceed’ what is strictly necessary. If a criminal court issues a judgment of acquittal, holding that there are no factors constituting an offence amounting to market abuse, the bringing of administrative proceedings ‘seems to be devoid of any basis.’Ibid, paras 44-45. Article 50 of the Charter precludes such a duplication of proceedings.

5.Analysis

5.1.The current state of the ne bis in idem principle in the EU

The CJEU, contrary to the Advocate General, largely follows the lines set out by the Strasbourg Court, but it does so on its own terms. As a consequence, there are differences between the approaches of both European courts which lead to a higher level of protection under the Charter in some circumstances, while in others the ECHR provides more protection.

5.1.1.Similarities

There is a striking resemblance between the criteria adopted by the CJEU and ECtHR. Both courts: 1) deem it relevant that the proceedings pursue complementary aims, 2) desire the foreseeability of double proceedings, 3) require coordination between the two authorities involved in the proceedings, and 4) insist on the proportionality of the combination of sanctions.Compare the four criteria of both courts as listed in infra s. 1.3.2 and s. 4. Based on these similarities, it can indeed be argued that, in ne bis in idem cases concerning a duplication of punitive administrative and criminal proceedings, the outcome before both European courts will likely be the same.Cf Michiel Luchtman, ‘The ECJ’s recent case law on ne bis in idem: implications for law enforcement in a shared legal order’, Common Market Law Review (2018), 1732.

5.1.2.Differences

However, some differences between the approaches of the courts can be discerned. Since they might not be as evident as the similarities, they merit further discussion.

The first difference is of a conceptual nature and relates to the respective systems of rights limitation under the ECHR and the Charter. The ECtHR regards the permissibility of dual proceedings as a question regarding the scope of A4P7 ECHR. If two punitive proceedings are sufficiently connected in substance and time, they are to be regarded as one. As a consequence, the bis-requirement is not fulfilled, and the situation is not covered by the ne bis in idem principle of the ECHR. By contrast, the CJEU still considers two parallel or consecutive set of punitive proceedings to be two proceedings (bis), and not one. A duplication of punitive administrative and criminal proceedings for the same acts amounts to an infringement of the ne bis in idem principle of Article 50 Charter, which can be justified under Article 52(1) of the Charter. The approach of the ECtHR can be explained by the fact that A4P7 is of an apparently absolute nature. Its text does not allow for limitations and the Article has a non-derogable character, which is apparent from Article 4(3) of Protocol 7 to the ECHR – no derogation is allowed even in times of war or other public emergency.See Explanatory report – ETS 117 – Human Rights (Protocol No. 7), para. 33; Hans-Jürgen Bartsch, ‘Council of Europe ne bis in idem: the European perspective’ (2002-2003), Revue Internationale de droit pénal 2002-3/4 1163, 1164; Luchtman 2011 (n 1) 7; A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), paras 10, 49, 61 and 76. On the category of ECHR rights of an ‘apparently absolute’ nature, see Steve Peers & Sacha Prechal, ‘Article 52 - Scope and Interpretation of Rights and Principles’, in Steve Peers, Tamara Hervey, Jeff Kenner & Angela Ward (eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014), 1462. By inserting a ‘balancing test’ in the determination of the scope of A4P7, the ECtHR sidestepped this absolute character in A and B v Norway to meet the demands of present-day, dual-track law enforcement. Given the fact that inroads on the protective scope of A4P7 ECHR can be made with such ease, the perceived absolute status of that Article can now be put in doubt. As Article 52(1) provides for a general limitation clause, the CJEU did not have to employ the artificial reasoning of the ECtHR and could introduce a balancing test at a more logical place, i.e. in assessing the justification of the limitation of a fundamental right. Moreover, one might argue that, with this approach, the CJEU in fact introduced a higher standard than the ECtHR. The CJEU inherently qualifies double punitive proceedings for the same conduct as a limitation of Article 50, which always requires a justification under Article 52 of the Charter. The ECtHR, on the contrary, does not necessarily regard the duplication of punitive proceedings as a limitation of A4P7.Luchtman 2018 (n 92), 1748. However, it remains to be seen whether this difference leads to a higher level of protection under the Charter inpractice. After all, both courts lay down largely similar criteria when deciding on the lawfulness of a duplication of administrative and criminal proceedings with respect to the same conduct.

A second difference relates to the order in which the punitive proceedings take place. In A and B v Norway, the ECtHR explicitly held that ‘the order in which the proceedings are conducted cannot be decisive of whether dual or multiple processing is permissible under Article 4 of Protocol No. 7.’A and B v Norway (n 9), para. 128, infra s. 1.3.2. The CJEU appears to disagree in Garlsson and Di Puma. While the Luxembourg Court allows administrative proceedings to take place prior to criminal proceedings,Garlsson (n 7), para. 47 and Menci (n 6), para. 45. proceedings cannot take place in reverse order, at least in cases of market manipulation. Bringing administrative proceedings after a criminal procedure has finished – irrespective of whether this procedure led to an acquittal or an effective, proportionate and dissuasive sanction – does not constitute a necessary limitation of Article 50 of the Charter. In this regard, the Charter provides more protection, as according to the ECtHR there is no problem in principle with subsequent administrative proceedings, provided that they are sufficiently connected to previous criminal proceedings. The CJEU’s approach, in which regard must be had to the sequence of the proceedings, makes sense. Under the national laws of the EU Member States, the effect of a conviction or acquittal in criminal proceedings on subsequent administrative proceedings may differ from the impact of a final administrative decision on criminal proceedings.A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), para. 39. Moreover, double-track enforcement systems mainly aim at ensuring a quick and fixed administrative response, possibly followed by criminal proceedings in serious cases. Allowing for administrative proceedings after the completion of criminal proceedings would undermine an important rationale of dual-track law enforcement.Cf Floris Tan, HvJ EU, C-524/15, C-537/16, C-596/16 & C-597/16, [2018] European Human Rights Cases 2018/123 (case note), pt. 5. This being said, it should be noted that the exact meaning of the judgments in Garlsson and Di Puma is still unclear and it remains to be seen whether the CJEU imposes an absolute bar to administrative proceedings after criminal proceedings are completed.Luchtman 2018 (n 92), 1736, for instance, wonders what the exact rationale of this position is and whether the CJEU’s bar on subsequent administrative proceedings will also apply if the criminal procedure takes the shape of e.g. an out-of-court settlement. In addition, one might doubt whether the reasoning in Garlsson and Di Puma also applies outside the area of market abuse, what happens if an earlier criminal sentence is not regarded as effective, proportionate and dissuasive sanction and what if an acquittal in an earlier criminal case is based on points of law, rather than fact.

In one important respect, the protection afforded by the CJEU may fall below the standards set by Strasbourg. Although the ECtHR emphasizes that dual proceedings have to be sufficiently connected in both substance and time,A and B v Norway (n 9), paras 130 and 134. the CJEU does not impose such a ‘temporality requirement’. While this can be applauded in terms of legal certainty as the requirement is arbitrary,A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), para. 46 and Menci, Opinion AG, para. 56 who speaks of ‘the almost insurmountable obstacles which national courts must address in order to ascertain a priori (n 18) when that temporal connection exists.’ necessitating a temporal connection does provide for additional protection against a duplication of administrative and criminal proceedings. This appears, for instance, from the judgment in Jóhannesson v Iceland.ECtHR 18 May, Jóhannesson v Iceland, Appl. No. 22007/11,

ECLI:CE:ECHR:2017:0518JUD002200711. In that case, the ECtHR concluded that, if the overall length of dual proceedings is nine years and the overlap between them only one year, there is no sufficient connection in time.Ibid, paras 54-55. In the CJEU’s defence, it can be argued that its insistence on the need for coordination between both procedures implies that the proceedings must also be connected in time. However, the fact that the CJEU did not regard the lack of overlap between the administrative and criminal proceedings in Menci problematic runs counter to this argument. The absence of a temporality requirement can lead to a situation in which the protection afforded by the Charter falls below the minimum standard set by the ECtHR.

In A and B v Norway, the ECtHR held that the individual proceedings must address ‘different aspects of the social misconduct involved.’A and B v Norway (n 9), paras 112 and 132. In applying this criterion to the facts of the case, the ECtHR deems it important that the administrative fines were imposed without regard to guilt (strict liability), whereas the criminal conviction concerned an additional mens rea element.That of ‘culpable fraud’. Ibid, para. 144. The subjective element thus is a distinct aspect of the social misconduct involved.This reasoning was criticized by Judge De Pinto Albuquerque. The Dissenting Judge regards this as an inherently substantive issue, dealing with the definition of idem, rather than relating to the bis element. According to De Pinto the majority in A and B v Norway introduces elements of an idem crimen test through the backdoor of the bis-element. See A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), para. 56 and Fanny de Graaf, Meervoudige aansprakelijkstelling. Een analyse van rechtsfiguren die aansprakelijkstelling voor meer dan één strafbaar feit normeren (Boom Juridisch, 2018), 275-276. The CJEU seems less concerned with whether the procedures focus on the exact same conduct. The different proceedings can relate to different aspects of the conduct ‘as the case may be’, which is for the referring court to decide.Menci (n 6), para. 44. See also Menci (n 6) para. 45 and Garlsson (n 7), para. 47 (‘whether intentional or not’). Moreover, the ‘different aspects’ requirement is missing from the list of requirements laid down in the CJEU’s final answer to the preliminary questions.Menci (n 6), para. 63. In light of the importance attached by the CJEU to combatting VAT-fraud and market abuse, it can be explained why the exact same conduct, without regard to guilt or intent, can become subject of two proceedings and be punished twice.The importance of the effectiveness of Union law in these areas is emphasised in Menci (n 6), paras 18-20 and 44 and Garlsson (n 7), para. 22. Be that as it may, the ECtHR’s ‘different aspects’ requirement raises an additional stumbling block for the state in doubling the exercise of its ius puniendi. As the CJEU does not clearly and convincingly lay down this additional criterion, the ECHR provides more protection in this respect.

These distinctions are of special relevance for litigants in Member States which have ratified Protocol 7 to the ECHR. When subjected to double punitive proceedings in intrastate situations within the scope of Union law, they can rely either on the ECHR or the Charter depending on the circumstances of the case at hand. The Charter provides more protection in cases where criminal proceedings are followed by administrative proceedings, whereas in other cases – for instance when there is a clear disconnection in time between the two proceedings – the ECHR contains the higher standard. The latter situation, as such, runs counter to Article 52(3) of the Charter.See the Explanations relating to the Charter of Fundamental Rights, OJ 2007/C/303/33, Art. 52: ‘In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR’; Peers & Prechal 2014 (n 93), 1496. Consequently, if new preliminary questions on the duplication of punitive proceedings are referred to the CJEU, the differences that might lead to a lower level of protection under Article 50 of the Charter require clarification.

5.1.3.Evaluating the substantial alignment between both European Courts

The situation sketched above is one of predominant convergence, despite the observed differences. Both the CJEU and ECtHR do not impose absolute restrictions on the duplication of punitive proceedings for the same conduct, and the criteria established by both courts in this regard are largely similar. This raises the question of how the ne bis in idem principle in the EU legal order in its present state, i.e. after the CJEU’s recent judgments in the Italian cases, is to be evaluated. In this regard, an important preliminary point needs to be made. The recent CJEU and ECtHR case law does not affect the possibility for states to organise their law enforcement in a way that provides ‘maximum’ ne bis in idem protection, that is, by responding to prohibited conduct only once in a single-track procedure which bars further proceedings. As recognised by the ECtHR, this is the surest manner of complying with the principle.A and B v Norway (n 9), para. 130; infra note 124 below. The discussion below focuses on the permissive attitude of both European courts towards states with systems in which this high level of protection is not pursued.

For a long time, the development of the ne bis in idem principle by the two European courts moved in an upward spiral.Infra s. 1.3.1.A and B v Norway broke that spiral,Infra s. 1.3.2. and the CJEU followed suit. The ne bis in idem principle no longer primarily serves to prevent the duplication of proceedings, but instead merely mitigates the disadvantages resulting from that duplication.Jan Crijns & Michiel van Emmerik, ‘Samenloop tussen strafrecht en punitief bestuursrecht: Zoeken naar evenredige bestraffing’, Nederlands Juristenblad 1094 (2018), 1103.A and B v Norway and Menci signal the move towards a less protective version of the principle based on the Anrechnungsprinzip. From these cases, it follows that the same person can be disturbed twice for the same conduct, essentially because this disturbance occurs in two proceedings of a different nature. This indeed maximises the ‘possible repressive effect’ in response to the same factual conduct.A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), para. 79. In addition, there are some other points of criticism that can be raised. A ‘credit system’ does not protect the interest of the res judicata of final judgments because it does not uphold the finality of a first conviction and creates a risk of diverging verdicts concerning the same facts. Moreover, a system based on the Anrechnungsprinzip ‘to a much lesser degree serves the interest of legal certainty.’Van Bockel 2010 (n 2), 36-37. This clearly applies to the criteria laid down in A and B v Norway. By incorporating these criteria into EU law in Menci, the CJEU ignored a firm warning by its Advocate General, who stated that alignment with the ECtHR would ‘add significant uncertainty and complexity to the right of individuals not to be tried or punished twice for the same acts.’Menci, Opinion AG (n 18), paras 69-73 (infra note 69) and Fabio Giuffrida, ‘Taricco principles beyond Taricco: Some thoughts on three pending cases (Scialdone, Kolev & Menci)’, New Journal of European Criminal Law 31 (2018), 35-37. For instance, it remains unclear what the requirement of foreseeability entails and whether it provides additional protection,Art. 7 ECHR already requires a certain degree of foreseeability and in A and B v Norway the ECtHR does not seem to adhere to a strict assessment of this requirement. See A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), para. 57. Nor does the CJEU. In Menci (n 6), paras 49-51 and Garlsson (n 7), paras 52-53 the Court merely states that Italian law provides for the conditions in accordance with which a duplication of proceedings can take place and leaves verification of this point to the national court. However, a limitation of a Charter right must also be ‘provided for by law’ and the ‘law’ concerned must have a certain quality, which includes a guarantee of foreseeability. See Peers & Prechal 2014 (n 93), 1473. One might therefore wonder whether the foreseeability requirement – as introduced by both the ECtHR and CJEU - has any additional value. how courts are to decide on the issue of the proportionality of sanctions (and what is to be done when in the proceeding finishing first no sanction is imposed)See A and B v Norway, Dissenting Opinion of Judge Pinto De Albuquerque (n 10), para. 65 on clearer alternatives for the abstract proportionality requirement and paras 68 and 72 on problems with an offsetting mechanism if there is nothing to offset. and how much weight both courts attach to each of the criteria in their multi-pronged ne bis in idem assessment.For instance, while the requirement on coordination between the relevant authorities was considered an obiter dictum by Judge De Pinto Albuquerque in his Dissenting Opinion (n 10), para. 61, this criterion turned out to be decisive in the case of Jóhannesson v Iceland (n 102), paras 53-55. The CJEU, to the contrary, does not scrutinise this requirement strictly, as the mere existence of rules ensuring coordination appears to suffice. See Menci (n 6), para. 53 and Luchtman 2018 (n 92), 1732-1733. In Garlsson and Di Puma, the CJEU appears to put a hold on the move towards a less protective ne bis in idem principle where criminal proceedings precede administrative proceedings. After all, in those cases, the CJEU has held – in essence – that administrative proceedings may no longer be brought once a final judgment in criminal proceedings has been reached. In those cases, ne bis in idem entails a prohibition on a second administrative ‘prosecution’ (ne bis vexari). While this is to be applauded in light of the arguments expressed above,Respectively the arguments against a credit system in this section and the criticism of A and B v Norway in infra s. 1.3.2. the exact meaning of these judgments is yet unclear, and it is most certainly possible that the CJEU still allows for criminal punishment followed by administrative fines in particular circumstances.Infra note 99. In addition, little seems to be gained by lowering the level of protection afforded by the ne bis in idem principle; a high level of coordination between law enforcement authorities will be required under the case law of both European courts.Cf Luchtman 2018 (n 92), 1728 with regard to the position of the ECtHR in A and B v Norway (n 9) and Jóhannesson v Iceland (n 102). Although the CJEU appears to take a less strict stance (infra note 120), Art. 52(3) might require the Court to raise its standards in this regard, as the level of protection afforded by the Charter may not be lower than that of the ECHR. One might wonder why the ECtHR and CJEU do not require this coordination to entail that a single-track procedure is provided for (ab initio).Especially in light of the fact that, as noted above (infra note 111), the ECtHR itself recognizes that ‘the surest manner of ensuring compliance with Art. 4 of Protocol No. 7 is the provision, at some appropriate stage, of a single-track procedure enabling the parallel strands of legal regulation of the activity concerned to be brought together, so that the different needs of society in responding to the offence can be addressed within the framework of a single process’. See A and B v Norway (n 9), para. 130. See also Menci, Opinion AG (n 18), para. 70. The level of protection afforded by the ne bis in idem principle has thus been lowered, leading to a large degree of legal uncertainty whilst still putting a significant strain on how law enforcement authorities go about combining punitive procedures.

On a positive note, the decisions in Menci, Garlsson and Di Puma highlight that the CJEU again engaged in a ne bis in idem dialogue with the ECtHR, thereby preventing conflicting approaches.On the positive effects of convergence through dialogue, see Rob Widdershoven, ‘The art of dialogue’, Review of European Administrative Law 1 (2017), 2. This convergence does not come as a surprise. The CJEU is not solely a fundamental rights court,See e.g. Steven Greer, Janneke Gerards & Rose Slowe, Human Rights in the Council of Europe and the European Union. Achievements, Trends and Challenges (CUP, 2018), 294-295. but positions itself as the ‘Supreme Court of the Union’ with tasks extending beyond the protection of fundamental rights.A statement made by the President of the CJEU, as referred to by Leonard Besselink, ‘Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13’ (VerfBlog, 23 December 2014), https://verfassungsblog.de/acceding-echr-notwithstanding-court-justice-opinion-213-2/, (last accessed 10 September 2018). One of those tasks is to safeguard the effectiveness of Union law, the importance of which has been repeatedly emphasised.See C-399/11, Melloni, ECLI:EU:C:2013:107, para. 60 and, with regard to the effectiveness of the rules on VAT and market abuse in the cases under discussion, infra note 109. Since the ne bis in idem principle limits the duplication of proceedings and the imposition of sanctions, it hampers the effective enforcement of Union law.See Gulliksson 2015 (n 48), 157-158. At the same time, the CJEU is keen on avoiding open conflict with the ECtHR.Avoiding divergence with the ECtHR is one of the main reasons for the examination and citation of ECtHR case law by the CJEU. See Jasper Krommendijk, ‘The use of ECtHR case law by the Court of Justice after Lisbon. The view of Luxembourg Insiders’, Maastricht Journal of European and Comparative Law 812 (2015), 820. By following the ECtHR’s approach in A and B v Norway, the CJEU achieved those two objectives; it avoided divergence and, at the same time, preserved the effectiveness of Union law.In this respect the decisions differ from e.g. C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, ECLI:EU:C:2016:198 paras 86-90 (discussed below in infra s. 5.2), as in that case the preservation of peace between both courts had possible detrimental effects on the effectiveness of EU law. Moreover, while criticism can be voiced against the current state of ne bis in idem in the EU, the CJEU is able to move forward on a case by case basis. The criteria developed under Article 52(1) of the Charter allow the CJEU to weigh effectiveness-based considerations against the importance of protecting Article 50 of the Charter, depending on the circumstances of the case at hand, and possibly fostering higher standards of protection under the Charter. In this regard, Garlsson and Di Puma are cases in point. With its judgments in Menci, Garlsson and Di Puma, the CJEU found a way to balance the interests of effectiveness, fundamental rights protection and an amicable relationship with the Strasbourg Court.

5.2.The cases framed in the broader judicial dialogue between the CJEU and ECtHR

Given its multiple sources in the European legal order and the dynamic context of law enforcement in which it operates, the interpretation of the ne bis in idem principle by the ECtHR and CJEU can serve as a ‘litmus test’ shining a light on wider developments in EU fundamental rights protection.Bas van Bockel, ‘Introduction and Set-up of the Study’ in Bas van Bockel (ed.), Ne Bis in Idem in EU Law (CUP, 2016), 1. Against this background – and primarily from the perspective of the CJEU – this section positions the recent steps in the ne bis in idem dialogue in the broader dialogue between the CJEU and ECtHR, that is, the dialogue between both courts on other subjects than the ne bis in idem principle.

The so-called ‘homogeneity clause’A term introduced by Advocate General Kokott in her Opinion in Case C-109/10 P, Solvay v Commission, ECLI:EU:C:2011:686, paras 252 and 257. enshrined in Article 52(3) of the Charter provides the interpretative bridge between the CJEU and ECtHR.See Dean Spielmann, ‘The Judicial Dialogue between the European Court of Justice and the European Court of Human Rights. Or how to remain good neighbours after the Opinion 2/13’ (Brussels, 27 March 2017 FRAME conference) providing a succinct overview of the development of the relations between the CJEU and ECtHR. See also, specifically with regard to the ne bis in idem principle, Xavier and Groussot 2016 (n 28). Under this article, the meaning and scope of Charter rights with an equivalent in the ECHR shall be the same as the rights contained in the latter document, although the Charter might provide for more protection. It might thus be expected that the CJEU has a keen interest in citing the case law of the Strasbourg Court. Indeed, for a long time, the cross-fertilisation and mutual influence between the courts was a hallmark of the relationship between the two courts.Krommendijk, ‘The CJEU’s reliance on the case law of by the ECtHR since 2015. Opinion 2/13 as a game changer?’ in Emmanuelle Bribosia & Isabelle Rorive (eds.), A Global And Multilayered Approach Of Human Rights. Promises and Challenges (Intersentia, 2018), 2, http://repository.ubn.ru.nl/bitstream/handle/2066/177477/177477.pdf?sequence=1 (last accessed 10 September 2018). However, this cordial relationship has come under strain,Greer, Gerards & Slowe 2018 (n 126), 325-326. especially since the CJEU handed down Opinion 2/13 through which it put a hold on the EU’s accession to the ECHR by declaring the agreement on the accession to the ECHR to be incompatible with the autonomy of EU law.Opinion 2/13, ECLI:EU:C:2014:2454.

Following Opinion 2/13, roughly two strands of cases can be discerned with regard to the CJEU’s treatment of ECtHR case law.For the broader typology on which this distinction is based, see Krommendijk 2018 (n 135), Lize Glas & Jasper Krommendijk, ‘From Opinion 2/13 to Avotiņš. Recent Developments in the Relationship between the Luxembourg and Strasbourg Court’ [2017] Human Rights Law Review 567, 572-576. This is not to say that these lines of cases first emerged after the Opinion. For a post-Charter, but pre-Opinion 2/13 overview, see Sionaidh Douglass-Scott, ‘The relationship between the EU and the ECHR Five Years On From the Treaty of Lisbon’ Legal Research Paper Series, January 2015, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2533207 (last accessed 10 September 2018). The first branch concerns cases of ‘Charter centrism’ in which the ECHR is not referred to at all or only cited as ‘afterthought’. For instance, in J.N. and K., the CJEU held that the ECHR is not a formal legal instrument of Union law and that the secondary EU law concerned ‘must’ be reviewed ‘solely’ in light of the Charter. In the final paragraphs of the latter two judgments, the CJEU merely checks whether the outcome it arrived at on the basis of the Charter is compatible with the ECHR.J.N. (n 74), paras 45-46 and 77-81; K. (n 75), paras 32 and 50-52. The second line consists of cases in which a constructive dialogue has taken place. In those cases, the CJEU relies extensively on ECtHR case law to prevent divergence between the two courts. Aranyosi is a case in point. Article 3 ECHR and the case law of the ECtHR play a prominent role in this judgment, in which the CJEU eventually concludes that the execution of a European Arrest Warrant must be postponed if a real risk of inhuman or degrading treatment exists because of the detention conditions in the issuing Member State.Aranyosi (n 131), paras 86-90.

The question remains how Menci, Garlsson and Di Puma fit in this bifurcated picture of judicial dialogue. It is important to note that there are differences between the judgments in terms of their explicit references to the ECHR. In Menci and Garlsson, the CJEU, citing Åkerberg Fransson, emphasises that the Charter is not a formal instrument of Union law and, referring to J.N. and K., adds that Article 52(3) intends to ensure consistency between the Charter and the ECHR without thereby adversely affecting the autonomy of EU law.Infra note 76; Garlsson (n 7), para. 24. Therefore, in line with the judgment in Orsi & Baldetti, the Charter, and in particular Article 50 thereof, is the standard of review.However, the CJEU uses a slightly different wording than it does in Orsi and Baldetti (n 33), para. 15: Art. 50 is mentioned in particular, and in the phrase ‘the examination of the question referred must be undertaken in light of the Charter’, the word ‘solely’ is omitted; Garlsson (n 7), para. 26. These considerations are absent in Di Puma, which can be explained by the fact that the prime yardstick in that case is the principle of res judicata and, in the reasoning of the CJEU, Article 50 of the Charter only confirms the outcome reached based on that self-standing principle.Infra note 89 and Di Puma (n 8), para. 37. Only in Menci does the CJEU explicitly refer to A and B v Norway, albeit summarily. This seminal ECtHR judgment functions merely as an afterthought, as the CJEU assures that the level of protection afforded by Article 50 of the Charter as interpreted in Menci does not fall below that of the ECHR.Infra note 85. The reason for the absence of this assurance in Garlsson and Di Puma might be that the CJEU only allowed for the duplication of punitive proceedings in Menci. In Garlsson and Di Puma, the CJEU provides more protection as it bars the bringing of administrative proceedings after a criminal trial has finished. Menci is thus the only case in which the Charter might provide less protection than the ECHR.Cf Tan 2018 (n 98), pt. 6 and the discussion of the absence of the temporality-requirement under the Charter in infra s. 5.1.2. In this respect the brief ‘Strasbourg-check’ in Menci is unconvincing as in some respects the Charter does provide less protection. When looking at the explicit references to the ECHR in the Italian cases, it appears that the CJEU ‘flies solo’ by emphasising the central role of the Charter and referring to A and B v Norway as an afterthought, or not at all.There are many possible reasons for this ‘Charter centrist’ reasoning. Krommendijk 2015 (n 130), 823-835 for qualitative research into this matter. However, as discussed above, A and B v Norway permeates the substantive reasoning of the CJEU.Infra s. 5.1.1. This also follows from an interesting procedural fact concerning the case of Menci. After the ECtHR issued the judgment in A and B v Norway, the CJEU reassigned Menci to the Grand Chamber and reopened the oral procedure in that case, which signifies that the CJEU was willing to take into account the case law of the ECtHR on this matter.Order of the Court (Grand Chamber) of 25 January 2017, ECLI:EU:C:2017:64. A more in-depth look at the cases thus leads to the conclusion that a constructive dialogue does take place, leading to convergence. Menci, Garlsson and Di Puma appear to combine the strands of cases identified above, by formally preserving the autonomy of the Charter while achieving convergence at a substantive level.In this regard the judgments resemble Åkerberg Fransson (n 11). This contributes to the CJEU’s ‘mixed bag’ of dialogue judgments. Although fitting the CJEU’s increasingly formal Charter centrism,Glas & Krommendijk 2017 (n 138), 586 and Krommendijk 2018 (n 135), 20. this discrepancy is peculiar. By pretending to arrive at its conclusions independently, the CJEU seems to overstate its autonomous position vis-à-vis the ECtHR.Cf the criticism directed at Åkerberg Fransson by Groussot & Xavier (n 28), 86 and Bas van Bockel, ‘Conclusions. The Changing Geometry of Fundamental Rights Protection in the EU’ in Bas van Bockel (ed.), Ne Bis in Idem in EU Law (CUP, 2016), 239.

Nevertheless, the substantive convergence reached through the judgments expresses a continuing insistence on dialogue and reliance on ECtHR case law. This is in line with landmark judgments of the Strasbourg Court signalling considerable respect and comity towards the CJEU.ECtHR 30 June 2005, Bosphorus v Ireland, Appl. No. 45036/98, ECLI:CE:ECHR:2005:0630JUD004503698 and ECtHR 23 May, Avotiņš v Latvia, Appl. No. 17502/07, ECLI:CE:ECHR:2016:0523JUD001750207. A CJEU-friendly approach can also be found in more recent ne bis in idem case law. In Krombach v France, exactly one month before the CJEU issued its judgments in the Italian cases, the ECtHR was confronted with an application concerning the transnational effect of A4P7.ECtHR 20 February 2018, Krombach v France, ECLI:CE:ECHR:2018:0220DEC006752114. Consistent with the text of the article and its own case law, the ECtHR denied this extension of the territorial scope of A4P7 ECHR. Importantly, the Court further considers that the fact that Article 54 CISA and Article 50 of the Charter do apply to transnational situations does not affect the scope of A4P7. The Court also explicitly states that it has no jurisdiction to apply EU law or assess alleged violations of it, except in cases where these violations might infringe the ECHR.Ibid, paras 35-36 and 39. In deciding the case this way, the Court behaves itself ‘in the most diplomatic and respectful way possible’ towards the Luxembourg Court.Bas van Bockel, ‘Krombach returns to Strasbourg’ (ECHR Blog, 16 May 2018), http://echrblog.blogspot.com/2018/05/guest-blog-commentary-on-ne-bis-in-idem.html (last accessed 10 September 2018).

5.3.The future of the ne bis in idem dialogue between the CJEU and ECtHR

Regarding the future of the ne bis in idem dialogue in Europe, a distinction must be made between ‘internal’ (intra-state) and cross-border (transnational) applications of the principle.Ne bis in idem situations can also have other territorial dimensions. For an overview see Wattel 2016 (n 24), 167-171. The cases that are the object of this analysis all concerned ne bis in idem situations within one Member State. As made clear once again by the ECtHR in Krombach, A4P7 ECHR is limited to those internal situations. Article 50 of the Charter, however, also extends to transnational cases, that is cases of double proceedings in multiple Member States.The transnational effect of Art. 50 of the Charter appears from its text and is confirmed in the Explanations relating to the Charter of Fundamental Rights, OJ 2007, 2007/C 303/31, Art. 50.

In the absence of yet another revirement, the future of the dialogue between both courts in intra-state cases will focus on clarifying the criteria developed by the CJEU and ECtHR. Due to their yet unclear meaning, some of these conditions need further interpretation,Infra notes 118-120. as do the elements that lead to diverging levels of protection under the Charter and ECHR, especially where the Charter appears to provide less protection.Infra s. 5.1.2. The intricate scheme developed by the courts to decide on questions of ne bis in idem in relation to dual administrative and criminal proceedings will require both courts to keep a particularly close eye on each other’s interpretations of the separate requirements. Besides a dialogue through case law, interaction between the courts at informal meetings on this issue can be helpful in determining the future direction of the principle in a proactive way.On this latter type of ‘informal’ dialogue (infra s. 1.2), see press release no. 75 issued by the Registrar of the ECtHR on 27 January 2011, ‘Joint Communication from Presidents Costa and Skouris’, https://www.echr.coe.int/Documents/UE_Communication_Costa_Skouris_ENG.pdf (last accessed 10 September 2018); Press release by Court of Justice of the European Union of 7 March 2016, ‘A delegation from the European Court of Human Rights visits the Court of Justice of the European Union’, Luxembourg 7 March 2016’,

https://curia.europa.eu/jcms/upload/docs/application/pdf/2016-03/cp160025en.pdf (last accessed 10 September 2018); see also e.g. F.G. Jacobs, ‘Judicial dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice’, Texas International Law Journal (2003), 552; Spielmann 2017 (n 134) and Glas and Krommendijk 2018 (n 138), 570. Mutual influence and cross-fertilisation between the CJEU and ECtHR are necessary in this regard as they may lead to increasing uniformity and coherence in the approach of both courts. This will provide useful guidance to domestic courts when dealing with issues of ne bis in idem, which is particularly necessary in intra-state cases within the scope of Union law since these cases fall within the territorial scope of both A4P7 ECHR and the Charter.Provided, of course, that the Member State concerned has ratified A4P7 ECHR. In any case, based on Menci, Garlsson and Di Puma, more substantive convergence is to be expected.

As A4P7 ECHR is limited to situations within one state, the ECtHR does not have jurisdiction over a transnational ne bis in idem principle. The homogeneity clause of Article 52(3) only applies in as far as the rights in the ECHR and Charter correspond, and Article 50 of the Charter and A4P7 ECHR only correspond in intra-state situations. Therefore, the ne bis in idem dialogue between the CJEU and the ECtHR will not extend explicitly to transnational cases. Through A and B v Norway, however, the ECtHR might have a lasting influence on the development of the principle in cross-border situations. In Menci, Garlsson and Di Puma, the CJEU tied its interpretation of Article 50 of the Charter to the ECtHR’s interpretation of A4P7 ECHR. It is unlikely that the CJEU will adhere to a fundamentally different approach in transnational cases. As noted by Luchtman, the CJEU seeks to develop a common European standard.Luchtman 2018 (n 92), 1744. Differentiating between transnational and intra-state situations is hard to reconcile with this ambition.Van Kempen & Bemelmans 2018 (n 19), 261 note that ‘[it] is hard to imagine that the ECJ would create a level of protection for transnational situations that differs from the level for national situations.’ It remains to be seen how the ECtHR’s ‘solution’ developed in A and B v Norway, as incorporated into EU law in Menci, Garlsson and Di Puma, works out in cross-border situations. Several questions can be raised in this regard. How, for instance, can foreseeability of the duplication of proceedings be guaranteed if administrative and criminal proceedings can be commenced in multiple Member States? How is the duplication of the collection and assessment of evidence to be avoided if several law enforcement authorities in various Member States open investigations? And how are courts to take into account previous penalties by foreign authorities, bearing in mind the large number of different sanction systems in the Member States?Crijns & Van Emmerik 2018 (n 114), 1101-1102 point out that ensuring the proportionality of multiple sanctions might already be hard to realise within a single Member State. In brief, criteria that are already troublesome when applied within one Member State acquire an additional dimension of practical and legal arduousness when applied in a transnational situation. The foregoing highlights that if the CJEU remains keen to prevent divergence with the ECtHR in intra-state cases and will not adopt a different standard in transnational cases, the ongoing dialogue with the ECtHR in the former type of cases will influence the application of Article 50 of the Charter in the latter type of cases. This would extend the ECtHR’s influence to cases beyond the territorial scope of its own ne bis in idem principle as laid down in A4P7 ECHR.

6.Conclusion

The past of the ne bis in idem dialogue between the CJEU and ECtHR is characterised by a high level of protection and significant convergence. The ECtHR’s judgment in A and B v Norway, in which the Strasbourg Court adopted a lenient position towards the combination of punitive administrative and criminal proceedings, constituted a possible turning point in the dialogue. The judgment lowered the level of protection under the ECHR and led to significant legal uncertainty. In Menci, Garlsson and Di Puma the CJEU largely followed the course of the ECtHR. Despite the differences between the current approaches of the CJEU and ECtHR, the present of the ne bis in idem dialogue is again dominated by the alignment between the two European courts. The European ne bis in idem principle still serves as an example of convergence. Assuring continuing convergence will not be an easy task, given the intricacies surrounding the bis-criteria developed in A and B v Norway as adopted by the CJEU in Menci, Garlsson and Di Puma under the flag of Article 52(1) of the Charter. An ongoing ne bis in idem dialogue will be necessary, both to avoid conflict in future cases and to further the development of the European ne bis in idem principle.