Criminal proceedings against Giuseppe Francesco Gasparini and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Colneric
• ECLI: ECLI:EU:C:2006:610
• Docket Number: C-467/04
• Date: 28 September 2006
• Procedure Type: Reference for a preliminary ruling

Case C-467/04

Criminal proceedings

against

Giuseppe Francesco Gasparini and Others

(Reference for a preliminary ruling from the Audiencia Provincial de Málaga)

(Convention implementing the Schengen Agreement – Article 54 – Ne bis in idem principle – Scope – Acquittal of the accused because their prosecution for the offence is time-barred)

Summary of the Judgment

1. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Ne bis in idem principle

(Convention implementing the Schengen Agreement, Art. 54)

2. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Ne bis in idem principle

(Art. 2, first para., fourth indent, EU; Convention implementing the Schengen Agreement, Art. 54)

3. Free movement of goods – Products in free circulation

(Art. 24 EC; Convention implementing the Schengen Agreement, Art. 54)

4. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Ne bis in idem principle

(Convention implementing the Schengen Agreement, Art. 54)

1. The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the Schengen Agreement, applies in respect of a decision of a court of a Contracting State, made after criminal proceedings have been brought, by which the accused is acquitted finally because prosecution of the offence is time-barred.

The main clause of the single sentence comprising Article 54 of the Convention makes no reference to the content of the judgment that has become final. It is not applicable solely to judgments convicting the accused.

Furthermore, not to apply Article 54 where the accused is finally acquitted because prosecution for the offence is time-barred would undermine the implementation of the objective of that provision which is to ensure that no one is prosecuted for the same acts in several Contracting States on account of the fact that he exercises his right to freedom of movement. Such a person must therefore be regarded as having had his trial finally disposed of for the purposes of that provision.

It is true that the laws of the Contracting States on limitation periods have not been harmonised. However, nowhere in Title VI of the EU Treaty, relating to police and judicial cooperation in criminal matters, or in the Schengen Agreement or the Convention implementing the latter is the application of Article 54 made conditional upon harmonisation, or at the least approximation, of the criminal laws of the Member States relating to procedures whereby further prosecution is barred or, more generally, upon harmonisation or approximation of their criminal laws. There is a necessary implication in the ne bis in idem principle that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied.

Finally, Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States does not preclude the ne bis in idem principle from applying in the case of a final acquittal because prosecution of the offence is time-barred. Exercise of the power, provided for in Article 4(4) of the framework decision, to refuse to execute a European arrest warrant inter alia where the criminal prosecution of the requested person is time-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that State under its own criminal law is not conditional on the existence of a judgment whose basis is that a prosecution is time-barred. The situation where the requested person has been finally judged by a Member State in respect of the same acts is governed by Article 3(2) of the framework decision, a provision which lays down a mandatory ground for non-execution of a European arrest warrant.

(see paras 24, 27-31, 33, operative part 1)

2. The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the Schengen Agreement, does not apply to persons other than those whose trial has been finally disposed of in a Contracting State. This interpretation, based on the wording of Article 54 of the Convention, is borne out by the purpose of the provisions of Title VI of the Treaty on European Union, as set out in the fourth indent of the first paragraph of Article 2 EU.

(see paras 36-37, operative part 2)

3. A criminal court of a Contracting State cannot hold goods to be in free circulation in national territory solely because a criminal court of another Contracting State has found, in relation to the same goods, that prosecution for the offence of smuggling is time-barred.

In order for products coming from a third country to be considered to be in free circulation in a Member State the three conditions laid down in Article 24 EC must be met. A finding by a court of a Member State that prosecution of a defendant for the offence of smuggling is time-barred does not alter the legal classification of the products in question, since the ne bis in idem principle, enshrined in Article 54 of the Convention implementing the Schengen Agreement, binds the courts of a Contracting State only in so far as it precludes a defendant who has already had his case finally disposed of in another Contracting State from being prosecuted a second time for the same acts.

(see paras 49-52, operative part 3)

4. The only relevant criterion for applying the concept of ‘the same acts’ within the meaning of Article 54 of the Convention implementing the Schengen Agreement is identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together. Accordingly, the marketing of goods in another Member State, after their importation into the Member State where the accused was acquitted because prosecution for the offence of smuggling was time-barred, constitutes conduct which may form part of the ‘same acts’ within the meaning of Article 54 of the Convention. However, the definitive assessment in this regard is a matter for the competent national courts which are charged with the task of determining whether the material acts at issue constitute a set of facts which are inextricably linked together in time, in space and by their subject-matter.

(see paras 54, 56-57, operative part 4)

JUDGMENT OF THE COURT (First Chamber)

28 September 2006 (*)

(Convention implementing the Schengen Agreement – Article 54 – Ne bis in idem principle – Scope – Acquittal of the accused because their prosecution for the offence is time-barred)

In Case C-467/04,

REFERENCE for a preliminary ruling under Article 35 EU from the Audiencia Provincial de Málaga (Spain), made by decision of 8 July 2004, received at the Court on 2 November 2004, in the criminal proceedings against

Giuseppe Francesco Gasparini,

José M^a L.A. Gasparini,

Giuseppe Costa Bozzo,

Juan de Lucchi Calcagno,

Francesco Mario Gasparini,

José A. Hormiga Marrero,

Sindicatura Quiebra,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, N. Colneric (Rapporteur), J.N. Cunha Rodrigues, M. Ilešič and E. Levits, Judges,

Advocate General: E. Sharpston,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 16 March 2006,

after considering the observations submitted on behalf of:

– G.F. Gasparini, by H. Oliva García, L. Pinto, I. Ayala Gómez and P. González Rivero, abogados,

– J. Mª L.A. Gasparini, by C. Font Felíu, abogado,

– G. Costa Bozzo, by L. Rodríguez Ramos, abogado, and J.C. Randón Reyna, procurador,

– J. de Lucchi Calcagno, by F. García Guerrero-Strachan, abogado, and B. De Lucchi López, procuradora,

– F.M. Gasparini, by J. García Alarcón, abogado,

– the Spanish Government, by M. Muñoz Pérez, acting as Agent,

– the French Government, by J.-C. Niollet, acting as Agent,

– the Italian Government, by I.M. Braguglia...