CJEU Case C-505/19 / Judgment

WS v Bundesrepublik Deutschland
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
12/05/2021
ECLI (European case law identifier)
ECLI:EU:C:2021:376
  • CJEU Case C-505/19 / Judgment

    Key facts of the case:

    Request for a preliminary ruling from the Verwaltungsgericht Wiesbaden.

    Reference for a preliminary ruling – Convention implementing the Schengen Agreement – Article 54 – Charter of Fundamental Rights of the European Union – Article 50 – Ne bis in idem principle – Article 21 TFEU – Freedom of movement of persons – Interpol red notice – Directive (EU) 2016/680 – Lawfulness of the processing of personal data contained in such a notice.

     

    Outcome of the case:

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

    1. Article 54 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 and which entered into force on 26 March 1995, and Article 21(1) TFEU, read in the light of Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the provisional arrest, by the authorities of a State that is a party to the Agreement 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 14 June 1985, or by those of a Member State, of a person in respect of whom the International Criminal Police Organisation (Interpol) has published a red notice, at the request of a third State, unless it is established, in a final judicial decision taken in a State that is a party to that agreement or in a Member State, that the trial of that person in respect of the same acts as those on which that red notice is based has already been finally disposed of by a State that is a party to that agreement or by a Member State respectively.
    2. The provisions of Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, read in the light of Article 54 of the Convention implementing the Schengen Agreement, signed on 19 June 1990, and of Article 50 of the Charter of Fundamental Rights, must be interpreted as not precluding the processing of personal data appearing in a red notice issued by the International Criminal Police Organisation (Interpol) in the case where it has not been established in a final judicial decision taken in a State that is a party to the Agreement 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 14 June 1985, or in a Member State that the ne bis in idem principle applies in respect of the acts on which that notice is based, provided that such processing satisfies the conditions laid down by that directive, in particular in that it is necessary for the performance of a task carried out by a competent authority, within the meaning of Article 8(1) of that directive.

         
    3.

    The fifth question referred for a preliminary ruling is inadmissible.

  • Paragraphs referring to EU Charter

    1) This request for a preliminary ruling concerns the interpretation of Article 54 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 and which entered into force on 26 March 1995 (OJ 2000 L 239, p. 19; ‘the CISA’), of Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of Article 21 TFEU and of Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ 2016 L 119, p. 89) and, in particular, Article 4(1)(a) and Article 8(1) of that directive.

    ...

    33) The referring court notes that the processing of personal data contained in a red notice issued by Interpol is governed by Article 4(1) and Article 8(1) of Directive 2016/680. It follows from the latter provision that such processing is lawful only in so far as, first, it is necessary for the performance of a task carried out by a competent authority for the purposes set out in Article 1(1) of that directive and, second, it is based on EU law or on the law of a Member State. In the present case, the processing of WS’s personal data contained in the red notice concerning him could therefore be lawful only if it was consistent with Article 54 of the CISA, read in conjunction with Article 50 of the Charter and Article 21 TFEU.

    34) According to settled case-law, the ne bis in idem principle, enshrined in Article 50 of the Charter and in Article 54 of the CISA, seeks to prevent, in the area of freedom, security and justice provided for in Article 3(2) TEU, a person whose trial has been finally disposed of in a Member State or in a Contracting State from being prosecuted, while exercising his or her right to freedom of movement, for the same acts as those on the basis of which a final penalty has been imposed on him or her in another Member State or in another Contracting State.

    ...

    36) According to the referring court, the inclusion, in national lists of wanted persons, of personal data contained in a red notice issued by Interpol constitutes a processing of personal data within the meaning of Article 2(1) of Directive 2016/680, read in conjunction with Article 1(1) of that directive. If the processing of personal data contained in such a notice is lawful only if it complies with Article 54 of the CISA, read in conjunction with Article 50 of the Charter and Article 21 TFEU, wanted-persons notices recorded in the Member States’ lists of wanted persons following the publication of that notice should therefore, where that processing is not in accordance with Article 54 of the CISA, read in conjunction with Article 50 of the Charter and Article 21(1) TFEU, be erased, in accordance with Article 7(3) and Article 16 of Directive 2016/680.

    ...

    38) According to the referring court, the outcome of the dispute in the main proceedings therefore depends on how Article 54 of the CISA, Article 50 of the Charter, Article 21(1) TFEU and the provisions of Directive 2016/680 are to be interpreted. If the ne bis in idem principle were to apply in the present case, which would mean that it was unlawful to continue to display, in national lists of wanted persons, a wanted-person notice in respect of WS, which had been issued by a third State and transmitted by means of an Interpol red notice, Member States would not be allowed to process the personal data appearing in that notice. Consequently, the wanted-person notices in respect of WS recorded in the Member States’ lists of wanted persons following the publication of that red notice should be erased, which would thus ensure that WS can exercise his freedom of movement within the European Union and the Schengen Area.

    39) In those circumstances, the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

    1. Is Article 54 of the [CISA] in conjunction with Article 50 of the [Charter] to be interpreted as meaning that even the initiation of criminal proceedings for the same act is prohibited in all the [Contracting States] where a German public prosecutor’s office discontinues initiated criminal proceedings once the accused has fulfilled certain obligations and, in particular, paid a certain sum of money determined by the public prosecutor’s office?
    2. Does Article 21(1) [TFEU] result in a prohibition on the Member States implementing arrest requests by third States in the scope of an international organisation such as [Interpol] if the person concerned by the arrest request is a Union citizen and the Member State of which he is a national has communicated concerns regarding the compatibility of the arrest request with the prohibition of double jeopardy to the international organisation and therefore also to the remaining Member States?
    3. Does Article 21(1) TFEU preclude even the initiation of criminal proceedings and temporary detention in the Member States of which the person concerned is not a national where this is contrary to the prohibition of double jeopardy?
    4. Are Article 4(1)(a) and Article 8(1) of Directive (EU) 2016/680 in conjunction with Article 54 of the CISA and Article 50 of the Charter to be interpreted as meaning that the Member States are obliged to introduce legislation ensuring that, in the event of proceedings whereby further prosecution is barred in all the [Contracting States], further processing of red notices of [Interpol] intended to lead to further criminal proceedings is prohibited?
    5. Does an international organisation such as [Interpol] have an adequate data protection level where there is no adequacy decision under Article 36 of Directive (EU) 2016/680 and/or there are no appropriate safeguards under Article 37 of Directive (EU) 2016/680?
    6. Are the Member States only allowed to further process data filed at [Interpol] in a red notice by third States when a third State has used the red notice to disseminate an arrest and extradition request and apply for an arrest which is not in breach of European law, in particular the prohibition of double jeopardy?’

    ...

    67) By its first, second and third questions, which it is appropriate to examine together, the referring court seeks to ascertain, in essence, whether Article 54 of the CISA and Article 21(1) TFEU, read in the light of Article 50 of the Charter, preclude the provisional arrest, by the authorities of a Contracting State or by those of a Member State, of a person in respect of whom Interpol has published a red notice, at the request of a third State, in the case where, first, that person has already been the subject of criminal proceedings in a Contracting State or in a Member State which have been discontinued by the public prosecutor after the person concerned fulfilled certain conditions and, second, the authorities of that Contracting State or of that Member State have informed Interpol that, in their opinion, those proceedings relate to the same acts as those covered by that red notice.

    ...

    70) Furthermore, as is apparent from Article 54 of the CISA and Article 50 of the Charter, the ne bis in idem principle derives from the constitutional traditions common to both Member States and Contracting States. It is therefore appropriate to interpret Article 54 of the CISA in the light of Article 50 of the Charter, Article 54 serving to ensure respect for the essence of Article 50 (judgment of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 14 and the case-law cited).

    ...

    72) In order to answer the first, second and third questions, it is therefore necessary to examine whether, first, the ne bis in idem principle may also apply in the case of a decision adopted by a body other than a criminal court and, second, whether a person covered by that decision, who is subsequently provisionally arrested following the publication by Interpol of a red notice in respect of him or her, may be regarded as being ‘prosecuted’, within the meaning of Article 54 of the CISA, and as thereby being subject to a restriction on his or her freedom of movement which is incompatible with Article 21(1) TFEU, those two articles being read in the light of Article 50 of the Charter, in the case where the applicability of the ne bis in idem principle has not been established but the authorities of a Member State or of a Contracting State have informed the competent authorities of other Member States or Contracting States of their doubts as to whether new criminal proceedings to which that notice relates are compatible with that principle.

    ...

    74) As is apparent from the information provided by the national court, WS was the subject of criminal proceedings in Germany, which were definitively discontinued by a decision of 27 January 2010, after WS had paid a sum of money, in accordance with Paragraph 153a(1) of the StPO. It follows that the ne bis in idem principle, enshrined in both Article 54 of the CISA and Article 50 of the Charter, is capable of applying to the acts to which that decision relates.

    ...

    78) As regards the context of Article 54 of the CISA, Article 50 of the Charter, which establishes the ne bis in idem principle as a fundamental right under EU law, provides that no one is to 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 European Union in accordance with the law. As the Court has noted previously, it is apparent from that provision that the ne bis in idem principle prohibits a duplication both of proceedings and of penalties which are criminal in nature for the purposes of that article in respect of the same acts and against the same person (judgment of 20 March 2018, Garlsson Real Estate and Others, C‑537/16EU:C:2018:193, paragraph 27 and the case-law cited).

    ...

    85) The same interpretation must apply with regard to Article 21(1) TFEU, read in the light of Article 50 of the Charter.

    ...

    89) By contrast, where the authorities of a Contracting State or of a Member State to which that person travels have become aware of the fact that a final judicial decision has been taken in another Contracting State or in another Member State establishing that the ne bis in idem principle applies with regard to the acts covered by that red notice, where appropriate after obtaining the necessary information from the competent authorities of the Contracting State or of the Member State in which it is alleged that a public prosecution in respect of the same acts has been barred, both the mutual trust which is required between Contracting States under Article 54 of the CISA, as noted in paragraph 80 above, and the right to freedom of movement guaranteed in Article 21(1) TFEU, read in the light of Article 50 of the Charter, preclude those authorities from making a provisional arrest of that person or, as the case may be, from keeping that person in custody.

    ...

    91) As regards, second, Article 21(1) TFEU, read in the light of Article 50 of the Charter, the restriction of the right of the person who is the subject of the red notice to freedom of movement entailed by his or her provisional arrest would not, in a situation such as that described in paragraph 89 above, be justified by the legitimate objective of preventing the risk of impunity, since the trial of that person in respect of the acts covered by the red notice has already been finally disposed of.

    92) In order to ensure, in such a situation, the effectiveness of Article 54 of the CISA and of Article 21(1) TFEU, read in the light of Article 50 of the Charter, the Member States and the Contracting States must ensure the availability of legal remedies enabling the persons concerned to obtain a final judicial decision establishing that the ne bis in idem principle applies, as referred to in paragraph 89 above.

    93) The interpretation of Article 54 of the CISA and of Article 21(1) TFEU, read in the light of Article 50 of the Charter, referred to in paragraphs 89 to 91 above, is not called into question by the arguments raised by a number of the governments which participated in the procedure before the Court to the effect that Article 54 of the CISA is applicable only within the Schengen Area and that the ne bis in idem principle does not constitute an absolute ground justifying a refusal to extradite under the EU-USA Agreement.

    ...

    102) Consequently, it must be held that, in accordance with what has been set out in paragraph 88 above, the provisional arrest of WS in a Contracting State or in a Member State does not infringe, at that stage, either Article 54 of the CISA or Article 21(1) TFEU, read in the light of Article 50 of the Charter.

    ...

    106) In the light of the foregoing, the answer to the first, second and third questions is that Article 54 of the CISA and Article 21(1) TFEU, read in the light of Article 50 of the Charter, must be interpreted as not precluding the provisional arrest, by the authorities of a Contracting State or by those of a Member State, of a person in respect of whom Interpol has published a red notice, at the request of a third State, unless it is established, in a final judicial decision taken in a Contracting State or in a Member State, that the trial of that person in respect of the same acts as those on which that red notice is based has already been finally disposed of by a Contracting State or by a Member State respectively.

    107) By its fourth and sixth questions, which it is appropriate to examine together, the referring court asks, in essence, whether the provisions of Directive 2016/680, read in the light of Article 54 of the CISA and of Article 50 of the Charter, must be interpreted as precluding the processing, by the authorities of the Member States, of personal data appearing in a red notice issued by Interpol in the case where the trial of the person covered by that red notice in respect of the same acts as those on which that red notice is based has already been finally disposed of by a Member State and where, consequently, the ne bis in idem principle applies.

    ...

    120) However, it must be borne in mind that, where it has been established, by means of a final judicial decision taken in a Contracting State or in a Member State, that a red notice issued by Interpol does indeed relate to the same acts as those in respect of which the trial of the person to whom that notice relates has been finally disposed of and that, consequently, the ne bis in idem principle applies, that person can no longer, as is apparent from the reply given to the first, second and third questions and having regard to Article 54 of the CISA read in the light of Article 50 of the Charter, be the subject of criminal proceedings in respect of those same acts and, consequently, can no longer be arrested in the Member States on the basis of those acts. It must therefore be held that, in those circumstances, the recording, in the Member States’ lists of wanted persons, of the personal data contained in an Interpol red notice is no longer necessary, with the result that the data subject must be able to request, under Article 16(2) of Directive 2016/680, that the controller erase personal data relating to him or her without undue delay. However, if those data remain recorded, they must be accompanied by a note that the person in question may no longer be prosecuted in a Member State or in a Contracting State for the same acts by reason of the ne bis in idem principle.

    121) In the light of the foregoing considerations, the answer to the fourth and sixth questions is that the provisions of Directive 2016/680, read in the light of Article 54 of the CISA and of Article 50 of the Charter, must be interpreted as not precluding the processing of personal data appearing in a red notice issued by Interpol in the case where it has not been established in a final judicial decision taken in a Contracting State or in a Member State that the ne bis in idem principle applies in respect of the acts on which that notice is based, provided that such processing satisfies the conditions laid down by that directive, in particular in that it is necessary for the performance of a task carried out by a competent authority, within the meaning of Article 8(1) of that directive.