The European ne bis in idem at the Crossroads of Administrative and Criminal Law

Abstract

This article discusses the recent developments in the case laws of the European Courts on the principle of ne bis in idem at the interface between criminal and administrative law, in particular with regard to the legitimacy of double-track enforcement systems. It is argued that both, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), have aligned not only in lowering their previously more protective standards, but also in laying down new rules that, though partially converging, remain highly unclear. Through an analysis of the case law following the ECtHR’s judgment in A and B v Norway and the three CJEU 2018 decisions in Menci, Garlsson and Di Puma and Zecca, it is demonstrated that the uncertainty generated as to the precise conditions under which dual criminal and administrative proceedings are permissible leads to unforeseeable outcomes. The potential consequences, most importantly, also tend to put pressure on other aspects of this fundamental guarantee, as well as on the standard of protection of other fundamental rights that to date are considered as given. Against this background, we will discuss at last whether the slight differences in the approach adopted by the CJEU to that of the ECtHR could reveal a silent effort on its part to take a more right-friendly stance