Criminal proceedings against Leopold Henri Van Esbroeck.

• Jurisdiction: European Union
• Celex Number: 62004CJ0436
• ECLI: ECLI:EU:C:2006:165
• Docket Number: C-436/04
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 09 March 2006

Case C-436/04

Criminal proceedings

against

Leopold Henri Van Esbroeck

(Reference for a preliminary ruling from the Hof van Cassatie)

(Convention implementing the Schengen Agreement – Articles 54 and 71 – Ne bis in idem principle – Application ratione temporis – Concept of ‘the same acts’ – Import and export of narcotic drugs subject to legal proceedings in different Contracting States)

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

(Protocol No 7 to the European Convention for the Protection of Human Rights, Art. 4; International Covenant on Civil and Political Rights, Art. 14(7); 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, must be applied to criminal proceedings brought in a Contracting State for acts for which a person has already been convicted in another Contracting State even though the Convention was not yet in force in the latter State at the time at which that person was convicted, in so far as the Convention was in force in the Contracting States in question at the time of the assessment, by the court before which the second proceedings were brought, of the conditions of applicability of the ne bis in idem principle.

(see para. 24, operative part 1)

2. Contrary to Article 14(7) of the International Covenant on Civil and Political Rights and Article 4 of Protocol No 7 to the European Convention of Human Rights, which enshrine the ne bis in idem principle by using the term ‘offence’, Article 54 of the Convention implementing the Schengen Agreement (CISA) must be interpreted as meaning that the relevant criterion for the purposes of the application of that article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected.

Nowhere in Title VI of the Treaty on European Union relating to police and judicial cooperation in criminal matters, or in the Schengen Agreement or the CISA itself, is the application of Article 54 of the CISA made conditional upon harmonisation, or at the least approximation, of the criminal laws of the Member States. The ne bis in idem principle thus necessarily implies that the Contracting States have mutual trust in their criminal justice systems and that, since there is no harmonisation of national criminal laws, 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.

The definitive assessment of the identity of the material acts belongs to 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.

It follows that punishable acts consisting of exporting and importing the same narcotic drugs and which are prosecuted in different Contracting States to the CISA are, in principle, to be regarded as ‘the same acts’ for the purposes of Article 54, the definitive assessment in that respect being the task of the competent national courts.

(see paras 28-30, 35-36, 38, 42, operative part 2)

JUDGMENT OF THE COURT (Second Chamber)

9 March 2006 (*)

(Convention implementing the Schengen Agreement – Articles 54 and 71 – Ne bis in idem principle – Application ratione temporis – Concept of ‘the same acts’ – Import and export of narcotic drugs subject to legal proceedings in different Contracting States)

In Case C-436/04,

REFERENCE for a preliminary ruling under Article 35 EU from the Hof van Cassatie (Belgium), made by decision of 5 October 2004, received at the Court on 13 October 2004, in the criminal proceedings against

Leopold Henri Van Esbroeck,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen (Rapporteur), R. Silva de Lapuerta, G. Arestis and J. Klučka, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: K. Sztranc, Administrator,

having regard to the written procedure and further to the hearing on 22 September 2005,

after considering the observations submitted on behalf of:

– Mr Van Esbroeck, by T. Vrebos, advocaat,

– the Czech Government, by T. Boček, acting as Agent,

– the Netherlands Government, by H.G. Sevenster and C.M. Wissels, acting as Agents,

– the Austrian Government, by C. Pesendorfer, acting as Agent,

– the Polish Government, by T. Nowakowski, acting as Agent,

– the Slovak Government, by R. Procházka, acting as Agent,

– the Commission of the European Communities, by W. Bogensberger and R. Troosters, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 October 2005,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Articles 54 and 71 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 (OJ 2000 L 239, p. 19; ‘the CISA’), signed on 19 June 1990 in Schengen (Luxembourg).

2 The question was raised in the context of criminal proceedings initiated in Belgium against Mr Van Esbroeck for the trafficking of narcotic drugs.

Legal context

The Convention implementing the Schengen Agreement

3 Under Article 1 of the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and to the Treaty establishing the European Community by the Treaty of Amsterdam (‘the Protocol’), 13 Member States of the European Union, including the Kingdom of Belgium, are authorised to establish closer cooperation among themselves within the scope of the Schengen acquis, as set out in the annex to the Protocol.

4 The Schengen acquis thus defined includes, inter alia, the Agreement, signed in Schengen on 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 (OJ 2000 L 239, p. 13; ‘the Schengen Agreement’) and the CISA.

5 By virtue of the first paragraph of Article 2(1) of the Protocol, from the date of entry into force of the Treaty of Amsterdam, 1 May 1999, the Schengen acquis is to apply immediately to the 13 Member States referred to in Article 1 of the Protocol.

6 In accordance with the second sentence of the second paragraph of Article 2(1) of the Protocol, the Council of the European Union adopted, on 20 May 1999, Decision 1999/436/EC determining, in conformity with the relevant provisions of the Treaty establishing the...