Jean Leon Van Straaten v Staat der Nederlanden and Republiek Italië.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Colneric
• ECLI: ECLI:EU:C:2006:614
• Docket Number: C-150/05
• Date: 28 September 2006
• Procedure Type: Reference for a preliminary ruling

Case C-150/05

Jean Leon Van Straaten

v

Staat der Nederlanden

and

Republiek Italië

(Reference for a preliminary ruling from the Rechtbank ’s-Hertogenbosch)

(Convention implementing the Schengen Agreement – Ne bis in idem principle – Meaning of ‘the same acts’ and of ‘trial disposed of’ – Exporting in one State and importing in another State – Acquittal of the accused)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits

(Art. 234 EC)

2. Preliminary rulings – Jurisdiction of the Court – Limits

(Art. 234 EC)

3. 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)

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. In the context of the cooperation between the Court of Justice and national courts that is provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is, in principle, bound to give a ruling.

The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

(see paras 33-34)

2. Although the Court has no jurisdiction under Article 234 EC to apply a rule of Community law to a particular case and thus to judge a provision of national law by reference to such a rule, it may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of the provision in question.

(see para. 37)

3. Article 54 of the Convention implementing the Schengen Agreement 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.

In the case of offences relating to narcotic drugs, first, the quantities of the drug that are at issue in the two Contracting States concerned or the persons alleged to have been party to the acts in the two States are not required to be identical. It is therefore possible that a situation in which such identity is lacking involves a set of facts which, by their very nature, are inextricably linked. Second, punishable acts consisting of exporting and of importing the same narcotic drugs and which are prosecuted in different Contracting States party to the Convention are, in principle, to be regarded as ‘the same acts’ for the purposes of Article 54 of the Convention, the definitive assessment in that respect being the task of the competent national courts.

(see paras 48-51, 53, operative part 1)

4. The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the Schengen Agreement, a provision which has the objective of ensuring 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, falls to be applied in respect of a decision of the judicial authorities of a Contracting State by which the accused is acquitted finally for lack of evidence.

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 only in the subordinate clause that Article 54 refers to the case of a conviction by stating that, in that situation, the prohibition of a prosecution is subject to a specific condition. If the general rule laid down in the main clause were applicable only to judgments convicting the accused, it would be superfluous to provide that the special rule is applicable in the event of conviction.

Furthermore, not to apply Article 54 of the Convention to a final decision acquitting the accused for lack of evidence would have the effect of jeopardising exercise of the right to freedom of movement.

Finally, in the case of a final acquittal for lack of evidence, the bringing of criminal proceedings in another Contracting State for the same acts would undermine the principles of legal certainty and of the protection of legitimate expectations. The accused would have to fear a fresh prosecution in another Contracting State although a case in respect of the same acts has been finally disposed of.

(see paras 56-59, 61, operative part 2)

JUDGMENT OF THE COURT (First Chamber)

28 September 2006 (*)

(Convention implementing the Schengen Agreement – Ne bis in idem principle –Meaning of ‘the same acts’ and of ‘trial disposed of’ – Exporting in one State and importing in another State – Acquittal of the accused)

In Case C-150/05,

REFERENCE for a preliminary ruling under Article 35 EU from the Rechtbank ’s-Hertogenbosch (Netherlands), made by decision of 23 March 2005, received at the Court on 4 April 2005, in the proceedings

Jean Leon Van Straaten

v

Staat der Nederlanden,

Republiek Italië,

THE COURT (First Chamber),

composed of K. Schiemann, President of the Fourth Chamber, acting for the President of the First Chamber, N. Colneric (Rapporteur), J.N. Cunha Rodrigues, M. Ilešič and E. Levits, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the written procedure and further to the hearing on 4 May 2006,

after considering the observations submitted on behalf of:

– the Netherlands Government, by H.G. Sevenster and D.J.M. de Grave, acting as Agents,

– the Italian Government, by I.M. Braguglia, acting as Agent, and G. Aiello, avvocato dello Stato,

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

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

– the French Government, by G. de Bergues and J.-C. Niollet, acting as Agents,

– the Austrian Government, by E. Riedl, acting as Agent,

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

– the Swedish Government, by K. Wistrand, 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 8 June 2006,

gives the following

Judgment

1 This reference 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 (OJ 2000 L 239, p. 19; ‘the CISA’), signed in Schengen (Luxembourg) on 19 June 1990.

2 The reference was made in proceedings between, first, Mr Van Straaten and, second, the Staat der Nederlanden (the Netherlands State) and the Republiek Italië (the Italian Republic) relating to the alert concerning Mr Van Straaten’s conviction in Italy for drug trafficking which the Italian authorities had entered in the Schengen Information System (‘the SIS’) for the purpose of his extradition.

Legal context

Community law

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, amongst them the Italian Republic and the Kingdom of the Netherlands, 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 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 (OJ 2000 L 239, p. 13; the Schengen Agreement’), and the CISA. The Italian Republic signed an agreement for its accession to the CISA on 27 November 1990 (OJ 2000 L 239, p. 63), and it entered into force on 26 October 1997.

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

6 Pursuant to the second sentence of the second subparagraph of Article 2(1) of the Protocol, on 20 May 1999 the Council of the European Union adopted Decision 1999/436/EC determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen acquis (OJ...