A new crack in the wall of mutual recognition and mutual trust: ne bis in idem and the notion of final decision determining the merits of the case

The article considers the case law of the Court of Justice concerning the notion of “finally disposed”, i.e. a constitutive element of the European ne bis in idem principle. In order to trigger the right not to be tried or punished twice, a national decision must be final and has to contain a sufficient determination of the merits of the case. So far, the Court of Justice has interpreted these requirements extensively, by identifying mutual recognition and mutual trust as the engines of the European ne bis in idem. Nonetheless, the Court’s recent preliminary ruling in Kossowski clarifies that a lack of an adequate investigation can amount to limiting the scope of the principle at stake. Mutual trust is not blind and national judicial authorities are entitled to make a critical appraisal on the foreign authority’s activity, insofar as the reasons stated in its decision closing a case evidently show the lack of a detailed investigation. Following the recent judgment Aranyosi and Căldăraru, Kossowski adds a new crack in the wall of mutual recognition and mutual trust. However, the Court shows a clear favor integrationis: these principles can be limited only in exceptional circumstances, where it is necessary to provide a cure for severe pathologies affecting the foreign decision.