Article 45 - Freedom of movement and of residence
Article 49 - Principles of legality and proportionality of criminal offences and penalties
Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence
Key facts of the case:
Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Grounds for non-execution – Point 2 of Article 3 – Principle ne bis in idem – Concept of ‘same acts’ – Set of concrete circumstances which are inextricably linked together – Fraudulent activities carried out by the requested person in two Member States, through two separate legal entities and to the detriment of different victims.
Outcome of the case:
On those grounds, the Court (First Chamber) hereby rules:
Point 2 of Article 3 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009,
must be interpreted as precluding the execution of a European arrest warrant issued by a Member State in a situation where the requested person has already been finally judged in another Member State and is serving a prison sentence there for the offence established in that judgment, provided that that person is being prosecuted in the issuing Member State in respect of the same acts, without it being necessary, in order to establish the existence of the ‘same acts’, to take account of the classification of the offences in question under the law of the executing Member State.
26) In those circumstances, without it being necessary to rule on Article 50 of the Charter or on Article 54 of the CISA, it must be considered that, by its first question, the referring court asks, in essence, whether point 2 of Article 3 of Framework Decision 2002/584 must be interpreted as precluding the execution of a European arrest warrant issued by a Member State in a situation where the offence for which the requested person has been finally judged in the executing Member State and the offence for which that person is being prosecuted in the issuing Member State are, according to the law of the executing Member State, to be classified as a ‘continuing criminal offence’.
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28) The purpose of that provision is to ensure that a person is not prosecuted or tried more than once in respect of the same acts, and reflects the principle ne bis in idem enshrined in Article 50 of the Charter, according to which no one may be tried or punished twice in criminal proceedings for the same criminal offence.
39) By its second question, the referring court asks, in essence, whether, if it were necessary to refuse to execute the European arrest warrant at issue on the basis of point 6 of Article 4 of Framework Decision 2002/584 and not on the basis of point 2 of Article 3 of that framework decision, Article 45 and Article 49(3) of the Charter, provisions which enshrine, respectively, the principles of free movement and of proportionality of penalties, read in conjunction with Framework Decision 2002/584, as well as Framework Decision 2008/675 on taking account of convictions in the Member States in the course of new criminal proceedings and Framework Decision 2008/909 on the application of the principle of mutual recognition to judgments in criminal matters, preclude national legislation which does not allow a single sentence to be imposed for a set of acts that may be classified as a ‘continuing criminal offence’, committed both in Spain and in another Member State, or the national mechanism for combining sentences to be applied to sentences handed down by the courts of that other Member State which must be served in Spain.
