The principle of ne bis in idem and the European Arrest Warrant as vehicles for the CJEU for redefining the powers of national prosecutions in EU law

Balázs Gellér ^*

• Eötvös Loránd University, Budapest, Hungary

The article examines how the Court of Justice of the European Union (CJEU) through its judgments enlarged the ambit of the ne bis in idem principle in a certain aspect and redefined attributes of national prosecutions. More poignantly, how the Court's recognition of a possible res iudicata effect of prosecutorial decisions binding on other EU Member States triggering ne bis in idem protection not only empowered national prosecutions, but also implicitly pushed Member States to further harmonize their criminal justice systems. At the same time, by finding that prosecutions may not only issue European arrest warrants (EAW) but also terminate criminal proceedings with res iudicata consequences obligatory for other Member States initiating EU wide recognition of the termination's ne bis in idem force, the CJEU elevated national prosecutions -depending on domestic legal prerequisites -to the level of national courts. It is argued, that by reading these judgments together the CJEU's jurisprudence might have created frictions between the Member States' criminal justice systems, and reshaped terms such as 'judicial authority' and 'effective judicial protection' in a way which lowers the level of protection afforded to the individual, be that, to make cooperation in criminal matters more effective between Member States.The research employs the general methodology of legal analysis, more specifically it looks at fundamental principles of law and legal institutions by examining the relevant case-law of the CJEU.In the course of this, it was necessary to explore certain national laws of Member States to understand why the Luxembourg Court reached different conclusions. The paper tried to find similarities between the utilisation of the ne bis in idem principle and cases concerning the EAW by searching for their effect on the powers of national prosecutions as a common dominator. By studying the thus selected jurisprudence it strives to understand the CJEU's aspirations and motivations by also pointing out some secondary, possibly adverse consequences.