CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TWICE ABOUT NE BIS IN IDEM : CONFLICTING APPROACH OF EUROPEAN COURTS … was released and escorted back to Belgium, he was sentenced there for trafficking narcotics out of Belgium. CJ EU recalled the abovementioned difference in wording and stressed that the fact that national criminal laws are not harmonized makes the legal criterion inapplicable in practice, as it would vary from state to state; therefore, there needs to be “mutual trust” of individual member states to their respective criminal law systems. 22 On the basis of these considerations, the CJ EU concluded that: “In those circumstances, the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts [l’identité des faits matériels] , understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together ”. 23 It ought to be mentioned that the CJ EU did not even refer to its original approach to the ne bis in idem principle in competition law matters. This issue was however raised in the subsequent Gasparini case, 24 where the AG Sharpston drew attention to this issue; 25 she concluded that “ as a matter of logic the principle of ne bis in idem should not be substantially different depending on whether it applies under Article 54 of the CISA or as a fundamental principle of Community law ”. 26 Unfortunately, the CJ EU did not expressly address this issue. The same line of argumentation was retained in other CJ EU Schengen cases. For our further deliberations, it will be important to recall that the principal reason why the CJ EU adopted the interpretation of idem based solely on the facts of the case was the lack of harmonization among member states, which makes the legal criterion practically inapplicable. 27 It also needs to be stressed that the ECtHR came for similar reasons to the same conclusions, despite interpreting different wording of the ne bis in idem principle based on “offence”, not “act”, as described above. Before concluding that the ECtHR adopted the CJ EU’s approach to the ne bis in idem principle, and that their jurisprudence is therefore in line, we must nonetheless first review a different line of CJ EU’s case-law. 3.2 Competition law As we have already observed, because of the “three-prong test”, the ne bis in idem principle in the area of competition law takes into account not only the actual facts of the case, but also the legal qualification of the infringement. This criterion was originally used as a distinction between EU and national law, as is evident from the landmark Walt Wilhelm judgement. 28 The case was concerned with an international cartel, investigated by the Commission, part of which was also investigated by the German competition authority; the CJ EU did not 22 Ibid , par. 30. 23 Ibid , par. 36; emphasis added. 24 CJ EU judgement of 28 September 2006 C-467/04 Gasparini . 25 As the AG Sharpston observed in her opinion, par. 155: “In Cement, in the context of applying ne bis in idem as a fundamental principle of EC law to competition law, the Court made its application subject to the ‘threefold condition’ of ‘identity of the facts, unity of offender and unity of the legal interest protected’. In contrast, in Van Esbroeck the Court explicitly stated that the existence of a ‘unity of the legal interest protected’ is not a condition under Article 54 of the CISA. A mere identity of material facts is sufficient”. 26 Ibid , par. 156. 27 CJ EU judgement Van Esbroeck , par. 32: “ the criterion of the identity of the protected legal interest cannot be applicable since that criterion is likely to vary from one Contracting State to another ”. 28 CJ EU judgement of 13 February 1969 14/68 Walt Wilhelm .

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