A new course for mutual trust in the AFSJ? Transnational ne bis in idem and the determination of the merits of the case in Kossowski

Abstract

This article analyses the decision of the Court of Justice of the European Union in the Kossowski case. In the judgement the Court, dealing with the application of the transnational ne bis in idem, further elaborated on the concept of “final decision” under Article 54 of the Convention Implementing the Schengen Agreement and specified the requirement of “merits of the case” in regard to a pre-trial dismissal for lack of evidence. Starting from the Court’s argumentation, the author reflects on the interactions between the security-related objectives of the Area of Freedom, Security and Justice and the new “dialectical approach” to mutual trust inaugurated by the Court.