The Ne Bis in Idem Principle in the Age of Balancing

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 853-878 | Article | (Table of Contents) I. Dual-track proceedings and the current scope of protection. – II. The need for a clear notion of “idem”. – III. The “sufficiently close connection in substance and time”: ECtHR case-law post A and B v Norway. – IV. The “sufficiently close connection in substance and time”: the unspoken balancing act engaged in by the ECtHR and an alternative criterion to assess whether there was a duplication of proceedings. – V. Lis pendens and ne bis in idem. – VI. Conclusion. | (Abstract) This Article analyses the issue of the compatibility with the ne bis in idem principle of the double-track sanctioning systems present in various European legal orders in the light of the case-law of the European Court of Human Rights and the Court of Justice of the European Union. In particular, after a reconstruction of the most significant case-law after the famous ruling A and B v. Norway, three main critical points are brought into focus: the divergences between the national and European case-law on the interpretation of the notion of idem factum, the difficult practical application of the close connection test between proceedings developed by the European Court of Human Rights, which can be seen as the precipitate of an unsatisfactory balancing act of opposing interests, and the possible extension of the ne bis in idem principle also to cases of lis pendens.

Keywords

• ne bis in idem
• double-track enforcement systems
• proportionality
• tax
• market abuse
• lis pendens