CJEU Case C-365/21 / Judgement

Criminal proceedings against MR
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Fifth Chamber)
Type
Decision
Decision date
23/03/2023
ECLI (European case law identifier)
ECLI:EU:C:2023:236
  • CJEU Case C-365/21 / Judgement

    Key facts of the case:

    Reference for a preliminary ruling – Judicial cooperation in criminal matters – Convention implementing the Schengen Agreement – Article 54 – Principle ne bis in idem – Article 55(1)(b) – Exception to the application of the principle ne bis in idem – Offence against the security or other essential interests of the Member State – Article 50 of the Charter of Fundamental Rights of the European Union – Principle ne bis in idem – Article 52(1) – Limitations to the principle ne bis in idem – Compatibility of a national declaration providing for an exception to the principle ne bis in idem – Criminal organisation – Financial crime

    Outcome of the case:

    On those grounds, the Court (Fifth Chamber) hereby rules:

    1. Consideration of the first question has disclosed no factor of such a kind as to affect the validity of Article 55(1)(b) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen on 19 June 1990, which entered into force on 26 March 1995, in the light of Article 50 of the Charter of Fundamental Rights of the European Union.

    2. Article 55(1)(b) of the Convention implementing the Schengen Agreement, read in conjunction with Article 50 and Article 52(1) of the Charter of Fundamental Rights of the European Union,

    must be interpreted as not precluding the courts of a Member State from interpreting the declaration made by that Member State under Article 55(1) of that convention as meaning that, so far as concerns the offence of forming a criminal organisation, that Member State is not bound by the provisions of Article 54 of that convention where the criminal organisation in which the person prosecuted participated has engaged exclusively in financial crime, in so far as the prosecution of that person is, in the light of the actions of that organisation, intended to punish harm to the security or other equally essential interests of that Member State.

  • Paragraphs referring to EU Charter

    1 This request for a preliminary ruling concerns (i) the validity of Article 55(1)(b) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19), signed in Schengen on 19 June 1990, which entered into force on 26 March 1995 (‘the CISA’), in the light of Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and (ii) the interpretation of Articles 54 and 55 of the CISA and of Articles 50 and 52 of the Charter.

    ...

    22 However, the referring court indicates that the question as to whether the declaration made by the Federal Republic of Germany is compatible with Article 55(1)(b) of the CISA arises only in so far as it is first established that the option envisaged by that provision is itself compatible with Article 50 of the Charter.

    23 In those circumstances, the Oberlandesgericht Bamberg (Higher Regional Court, Bamberg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    ‘(1) Is Article 55 of the [CISA] compatible with Article 50 of the [Charter] and does it continue to be valid in so far as it admits, as an exception to the prohibition of double prosecution, that a Contracting Party may, when ratifying, accepting or approving that Convention, declare that it is not bound by Article 54 of the CISA where the acts to which the foreign judgment relates constitute an offence against national security or other equally significant interests of that Contracting Party?

    (2) If Question 1 is answered in the affirmative:

    Do Articles 54 and 55 of the CISA and Articles 50 and 52 of the Charter preclude an interpretation by the German courts of the declaration made by the Federal Republic of Germany when ratifying the CISA in relation to Paragraph 129 of the [StGB] that the declaration also covers criminal organisations, such as those at issue in the main proceedings, which engage exclusively in financial crime and do not, in addition, pursue any political, ideological, religious or world-view objectives and also do not seek to gain influence by dishonest means over politics, the media, the public administration, the judiciary or the economy?’

    ...

    31 In that regard, it should be recalled that that principle is a fundamental principle of EU law, which is now enshrined in Article 50 of the Charter (judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 64 and the case-law cited).

    32 Furthermore, the principle ne bis in idem, which is also enshrined in Article 54 of the CISA, derives from the constitutional traditions common to the Member States. It is therefore appropriate to interpret that article in the light of Article 50 of the Charter, Article 54 serving to ensure respect for the essence thereof (judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 65 and the case-law cited).

    33 Article 50 of the Charter provides that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law’. Thus, the application of the principle ne bis in idem is subject to a twofold condition, namely, first, that there must be a prior final decision (the ‘bis’ condition) and, second, that the prior decision and the subsequent proceedings or decisions must concern the same facts (the ‘idem’ condition) (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 28).

    34 As regards, in particular, the ‘idem’ condition, it follows from the very wording of Article 50 of the Charter that that provision prohibits the same person from being tried or punished in criminal proceedings more than once for the same offence (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 31).

    35 In that regard, in the light of the information provided by the referring court and the considerations raised by the interested parties in their written observations and at the hearing, it must be noted that, according to settled case-law, the relevant criterion for the purposes of assessing the existence of the same offence, within the meaning of Article 50 of the Charter, is identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together and which have resulted in the final acquittal or conviction of the person concerned. Therefore, that article prohibits the imposition, with respect to identical facts, of several criminal penalties as a result of different proceedings brought for those purposes (judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 128 and the case-law cited).

    36 Moreover, it is also apparent from the case-law of the Court that the legal classification under national law of the facts and the legal interest protected are not relevant for the purposes of establishing the existence of the same offence, in so far as the scope of the protection conferred by Article 50 of the Charter cannot vary from one Member State to another (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 34 and the case-law cited).

    ...

    45 By its first question, the referring court asks, in essence, whether, in so far as it enables a Member State to declare that it is not bound by the provisions of Article 54 of the CISA where the acts to which a foreign judgment relates constitute an offence against the security or other equally essential interests of that Member State, Article 55(1)(b) of the CISA is valid in the light of Article 50 of the Charter.

    46 As recalled in paragraphs 31 and 32 of the present judgment, Article 54 of the CISA, which was incorporated into EU law by the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and to the Treaty establishing the European Community by the Treaty of Amsterdam (OJ 1997 C 340, p. 93), like Article 50 of the Charter, lays down the principle ne bis in idem.

    47 Consequently, the possibility, provided for in Article 55(1)(b) of the CISA, of a Member State derogating from that principle where the acts to which the foreign judgment relates constitute an offence against the security or other equally essential interests of that Member State, represents a limitation of the fundamental right guaranteed by Article 50 of the Charter.

    ...

    49 In accordance with the first sentence of Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. According to the second sentence of that provision, subject to the principle of proportionality, limitations on those rights and freedoms may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

    ...

    52 Second, it is apparent from the case-law of the Court that a limitation of the principle ne bis in idem respects the essence of Article 50 of the Charter where that limitation does no more than allow for further proceedings and penalties in respect of the same acts in pursuit of a distinct objective (see, to that effect, judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 43).

    ...

    59 Fourth, as regards the principle of proportionality, that principle requires that the limitations which may, in particular, be imposed by acts of EU law on rights and freedoms enshrined in the Charter do not exceed the limits of what is appropriate and necessary in order to meet the legitimate objectives pursued or the need to protect the rights and freedoms of others; where there is a choice between several appropriate measures, recourse must be had to the least onerous. In addition, an objective of general interest may not be pursued without having regard to the fact that it must be reconciled with the fundamental rights affected by the measure, by properly balancing the objective of general interest against the rights at issue, in order to ensure that the disadvantages caused by that measure are not disproportionate to the aims pursued. Thus, the possibility of justifying a limitation of the principle ne bis in idem guaranteed in Article 50 of the Charter must be assessed by measuring the seriousness of the interference which such a limitation entails and by verifying that the importance of the objective of general interest pursued by that limitation is proportionate to that seriousness (see, to that effect, judgment of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraph 41 and the case-law cited).

    ...

    61 Furthermore, in view of the nature and the particular seriousness of such harm, the importance of that general interest objective goes beyond that of combating crime in general, even serious crime. Subject to meeting the other requirements laid down in Article 52(1) of the Charter, such an objective is, therefore, capable of justifying measures entailing interferences with fundamental rights which would not be authorised for the purpose of prosecuting and punishing criminal offences generally (see, to that effect, judgments of 6 October 2020, La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 136, and of 5 April 2022, Commissioner of An Garda Síochána and Others, C‑140/20, EU:C:2022:258, paragraph 57 and the case-law cited).

    ...

    67 Having regard to the above, consideration of the first question has disclosed no factor of such a kind as to affect the validity of Article 55(1)(b) of the CISA in the light of Article 50 of the Charter.

    68 By its second question, the referring court asks, in essence, whether Article 55(1)(b) of the CISA, read in conjunction with Article 50 and Article 52(1) of the Charter, must be interpreted as precluding the courts of a Member State from interpreting the declaration made by that Member State under Article 55(1) of the CISA as meaning that, so far as concerns the offence of forming a criminal organisation, that Member State is not bound by the provisions of Article 54 of the CISA where the criminal organisation in which the person prosecuted participated has engaged exclusively in financial crime.

    69 Where a Member State intends, by a declaration under Article 55(1) of the CISA, to exercise the option of derogating from the principle ne bis in idem as provided for in Article 55(1)(b) of the CISA, by indicating that, as regards the offences referred to, it is not bound by the provisions of Article 54 of the CISA, such a declaration is capable of respecting Article 50 and Article 52(1) of the Charter, provided that the requirements laid down for that purpose by the CISA, and which, as is apparent from the answer to the first question, ensure that such an option is compatible with Article 50 of the Charter, are met.

    ...

    83 Having regard to all of the above, the answer to the second question is that Article 55(1)(b) of the CISA, read in conjunction with Article 50 and Article 52(1) of the Charter, must be interpreted as not precluding the courts of a Member State from interpreting the declaration made by that Member State under Article 55(1) of the CISA as meaning that, so far as concerns the offence of forming a criminal organisation, that Member State is not bound by the provisions of Article 54 of the CISA where the criminal organisation in which the person prosecuted participated has engaged exclusively in financial crime, in so far as the prosecution of that person is, in the light of the actions of that organisation, intended to punish harm to the security or other equally essential interests of that Member State.

    ...

    On those grounds, the Court (Fifth Chamber) hereby rules:

    1. Consideration of the first question has disclosed no factor of such a kind as to affect the validity of Article 55(1)(b) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen on 19 June 1990, which entered into force on 26 March 1995, in the light of Article 50 of the Charter of Fundamental Rights of the European Union.

    2. Article 55(1)(b) of the Convention implementing the Schengen Agreement, read in conjunction with Article 50 and Article 52(1) of the Charter of Fundamental Rights of the European Union,

    must be interpreted as not precluding the courts of a Member State from interpreting the declaration made by that Member State under Article 55(1) of that convention as meaning that, so far as concerns the offence of forming a criminal organisation, that Member State is not bound by the provisions of Article 54 of that convention where the criminal organisation in which the person prosecuted participated has engaged exclusively in financial crime, in so far as the prosecution of that person is, in the light of the actions of that organisation, intended to punish harm to the security or other equally essential interests of that Member State.

  • Paragraphs referring to EU Charter (original language)