Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence
Article 51 - Field of application
Key facts of the case:
Reference for a preliminary ruling – Charter of Fundamental Rights of the European Union – Article 50 – Principle ne bis in idem – Criminal proceedings brought in rem – Order that no further action be taken adopted by a public prosecutor’s office – Admissibility of later criminal proceedings brought in personam in respect of the same facts – Conditions to be satisfied for it to be held that a person has been finally acquitted or convicted – Requirement for a detailed investigation – No interview of a potential witness – No interview of the person concerned as a ‘suspect’.
Outcome of the case:
On those grounds, the Court (First Chamber) hereby rules:
The principle ne bis in idem enshrined in Article 50 of the Charter of Fundamental Rights of the European Union
must be interpreted as meaning that a person may not be regarded as having been finally acquitted, within the meaning of Article 50, as a result of an order that no further action be taken adopted by a public prosecutor in the absence of an examination of the legal situation of that person as criminally liable for the acts constituting the offence prosecuted.
36 In the context of that reconsideration, the referring court raises a question of the interpretation to be given to the principle ne bis in idem, within the meaning of Article 50 of the Charter, in circumstances such as those at issue in the main proceedings. It states that, as in the case that gave rise to the judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393), in the present case, Article 50 of the Charter applies because the national law in question in the main proceedings seeks to achieve the benchmarks set out in the Annex to Decision 2006/928, more specifically, the first of those benchmarks.
37 In those circumstances, the Curtea de Apel Craiova (Court of Appeal, Craiova) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is the ne bis in idem principle, as guaranteed by Article 50 of [the Charter], in conjunction with Romania’s obligations to address the benchmarks set out in [the annex to Decision 2006/928], to be interpreted as meaning that a decision to take no further action, issued by the public prosecutor after obtaining essential evidence in the case, precludes another public prosecution from being brought against the same person, for the same acts, albeit with a different legal classification, since that decision is final – unless it is established that the circumstance on which the discontinuance was based does not exist, or new facts or circumstances have emerged which show that the circumstance on which the discontinuance was based no longer exists?’
38 The Romanian Government considers that the request for a preliminary ruling must be dismissed as being inadmissible as Article 50 of the Charter does not apply in the present case, which does not concern a situation in which EU law is being implemented, within the meaning of Article 51(1) of the Charter. According to that government, the referring court wrongly relied on the benchmarks set out in the annex to Decision 2006/928 and on paragraphs 158, 159 and 172 of the judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393), in support of the applicability of the Charter, whereas those benchmarks were defined due to the deficiencies ‘identified’ by the Commission before the accession of Romania to the European Union in respect, inter alia, of the field of justice and the fight against corruption. In those circumstances, it should be held, having regard, inter alia, to the case-law resulting from the judgment of 19 November 2019, TSN and AKT (C‑609/17 and C‑610/17, EU:C:2019:981, paragraph 53 and the case-law cited), that the aspect connected with the protection of the principle ne bis in idem falls outside the scope of the Charter, with the result that the situation at issue in the main proceedings cannot be assessed in the light of the provisions of the Charter, in particular Article 50 thereof.
39 As regards the Romanian Government’s line of argument set out in the preceding paragraph, which, in actual fact, relates to the jurisdiction of the Court to give a ruling, it should be noted that it is clear from Article 19(3)(b) TEU and the first paragraph of Article 267 TFEU that the Court has jurisdiction to give preliminary rulings on the interpretation of EU law or the validity of acts of the EU institutions.
40 In that regard, it should also be noted that the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. Where, on the other hand, a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (judgment of 14 September 2023, Volkswagen Group Italia and Volkswagen Aktiengesellschaft, C‑27/22, EU:C:2023:663, paragraph 36 and the case-law cited).
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45 Having regard to the reasons set out in the request for a preliminary ruling, in order to give a useful reply to the referring court, it must be considered that, by its question, that court asks, in essence, whether the principle ne bis in idem enshrined in Article 50 of the Charter must be interpreted as meaning that a person may be regarded as having been finally acquitted, within the meaning of that article, as a result of an order that no further action be taken adopted by a public prosecutor in the absence of an examination of the legal situation of that person as criminally liable for the acts constituting the offence prosecuted.
46 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’. Therefore, the principle ne bis in idem prohibits a duplication both of proceedings and of penalties of a criminal nature, for the purposes of that article, for the same acts and against the same person (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 24 and the case-law cited).
48 As regards the ‘bis’ condition, for a person to be regarded as someone who has been ‘finally acquitted or convicted’ in relation to the acts which he or she is alleged to have committed, within the meaning of Article 50 of the Charter, it is necessary, in the first place, that further prosecution has been definitively barred, in accordance with national law. A decision which does not definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings, in respect of the same acts, against that person (see, to that effect and by analogy, judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraphs 34 and 35 and the case-law cited).
49 It should be recalled, in addition, that the Court has already held that the fact that a decision has been adopted by a public prosecutor is not decisive in the assessment of whether that decision definitively bars further prosecution. First, Article 50 of the Charter is also applicable where an authority responsible for administering criminal justice in the national legal system concerned, such as the public prosecutor, issues decisions definitively discontinuing criminal proceedings, although such decisions are adopted without the involvement of a court and do not take the form of a judicial decision (see, to that effect and by analogy, judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraphs 38 and 39 and the case-law cited).
53 In that regard it should be recalled that, according to the Court’s settled case-law, in order for a person to be regarded as having been ‘finally acquitted or convicted’, within the meaning of Article 50 of the Charter, in relation to the acts which he or she is alleged to have committed, it is necessary to be satisfied that that decision was taken after a determination as to the merits of the case in question (see, to that effect, judgment of 14 September 2023, Bezirkshauptmannschaft Feldkirch, C‑55/22, EU:C:2023:670, paragraph 49 and the case-law cited).
65 As regards 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 23 March 2023, Generalstaatsanwaltschaft Bamberg (Reservation in relation to the principle ne bis in idem), C‑365/21, EU:C:2023:236, paragraph 34 and the case-law cited).
66 The delivery of a decision by which a person has been ‘finally acquitted or convicted’, within the meaning of Article 50 of the Charter thus implies that criminal proceedings had previously been instituted against the person concerned. In that regard, the Court has already stated that the principle ne bis in idem applies only to persons who have been finally judged in a Member State (see, to that effect, by analogy, judgment of 25 July 2018, AY (Arrest warrant – Witness), C‑268/17, EU:C:2018:602, paragraphs 43 and 44 and the case-law cited).
67 In addition, it must be noted that, according to the Court’s 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 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 72 and the case-law cited).
68 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 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 73 and the case-law cited).
