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Netherlands / Supreme Court / 16/01180

Accused v Public Prosecutor

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court
Type:
Decision
Decision date:
31/10/2017

Key facts of the case: 

A legal person transferred two containers with used paper from the United Kingdom to Saudi Arabia by ship, against the rules of the European Waste Shipment Regulation 1013/2006 for the transfer of waste products. It had been warned in writing in Scotland by the Scottish Environmental Protection Agency (hereinafter: SEPA) after it had checked the containers that it had not met the requirements of the Regulation and that a future infringement of the legislation would lead to the submission oof a report to the Scottish Procurator Fiscal, recommending the prosecution of the legal person. When the ship arrived in the Netherlands, the Public Prosecutor prosecuted the legal person due to infringement of the Regulation. The legal person alleged that it could not be prosecuted, as it had already been warned in Scotland (“ne bis in idem”). The Supreme Court judges that the Court of Appeal, which held that the warning by the SEPA did not meet the requirements of the following stipulation from 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  (Article 54): A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party. The SEPA has no power to finalize criminal proceedings. The same reasoning goes for Article 50 of the Charter, which also prohibits double proceedings. This is not the case here, however, so the Dutch Public Prosecutor can prosecute the legal person in spite of the final warning by the SEPA.

Outcome of the case:

The SEPA in Scotland is not a body that finalizes criminal proceedings, so prosecution in another Member State, the Netherlands, is still possible.