Criminal proceedings against HF.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:852
• Date: 28 October 2022
• Docket Number: C-435/22
• Celex Number: 62022CJ0435
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

28 October 2022 (*)

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – Charter of Fundamental Rights of the European Union – Article 50 – Convention implementing the Schengen Agreement – Article 54 – Principle ne bis in idem – Extradition agreement between the European Union and the United States of America – Extradition of a third-country national to the United States under a bilateral treaty concluded by a Member State – National who has been convicted by final judgment for the same acts and has served his sentence in full in another Member State)

In Case C‑435/22 PPU,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht München (Higher Regional Court, Munich, Germany), made by decision of 21 June 2022, received at the Court on 1 July 2022, in the criminal proceedings against

HF,

intervening party:

Generalstaatsanwaltschaft München,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, A. Prechal, E. Regan, P.G. Xuereb, L.S. Rossi, D. Gratsias, M.L. Arastey Sahún (Rapporteur), Presidents of Chambers, S. Rodin, F. Biltgen, N. Piçarra, N. Wahl, I. Ziemele and J. Passer, Judges,

Advocate General: A.M. Collins,

Registrar: D. Dittert, Head of Unit,

having regard to the written procedure and further to the hearing on 13 September 2022,

after considering the observations submitted on behalf of:

– HF, by S. Schomburg and M. Weber, Rechtsanwälte,

– the Generalstaatsanwaltschaft München, by F. Halabi, acting as Agent,

– the German Government, by J. Möller, P. Busche, M. Hellmann and U. Kühne, acting as Agents,

– the European Commission, by L. Baumgart and M. Wasmeier, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 October 2022,

gives the following

Judgment

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 (OJ 2000 L 239, p. 19), signed in Schengen on 19 June 1990 and entered into force on 26 March 1995 (‘the CISA’), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182, p. 1), as well as of Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in the context of an extradition request made by the authorities of the United States of America to the authorities of the Federal Republic of Germany with a view to criminal proceedings against HF, a Serbian national.

Legal context

European Union law

The CISA

3 The CISA was concluded in order to ensure the application of 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).

4 Article 20 of the CISA, which is included in Chapter 4, entitled ‘Conditions governing the movement of aliens’, of Title II thereof, provides in paragraph 1:

‘Aliens not subject to a visa requirement may move freely within the territories of the Contracting Parties for a maximum period of 90 days in any 180-day period, provided that they fulfil the entry conditions referred to in Article 5(1)(a), (c), (d) and (e).’

5 Article 54 of the CISA, which is in Chapter 3, headed ‘Application of the ne bis in idem principle’, of Title III thereof, provides as follows:

‘A person whose trial has been finally disposed of in one [c]ontracting [p]arty may not be prosecuted in another [c]ontracting [p]arty for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing [c]ontracting [p]arty.’

The Protocol integrating the Schengen acquis into the framework of the European Union

6 The CISA was integrated into EU law by 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 (OJ 1997 C 340, p. 93), as part of ‘the Schengen acquis’, as defined in the annex to that protocol.

7 Under the second subparagraph of Article 2(1) of that protocol:

‘The Council [of the European Union] … shall determine, in conformity with the relevant provisions of the Treaties, the legal basis for each of the provisions or decisions which constitute the Schengen acquis.’

8 Pursuant to that provision, on 20 May 1999 the Council 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 1999 L 176, p. 17). It can be seen from Article 2 of that decision and from Annex A thereto that the Council designated Article 34 EU and Article 31 EU as the legal bases for Article 54 of the CISA.

The EU-USA Agreement

9 Article 1 of the Agreement on extradition between the European Union and the United States of America of 25 June 2003 (OJ 2003 L 181, p. 27; ‘the EU-USA Agreement’) reads as follows:

‘The Contracting Parties undertake, in accordance with the provisions of this Agreement, to provide for enhancements to cooperation in the context of applicable extradition relations between the Member States and the United States of America governing extradition of offenders.’

10 Article 3 of the EU-USA Agreement, entitled ‘Scope of application of this Agreement in relation to bilateral extradition treaties with Member States’, provides the conditions and methods according to which the provisions in Articles 4 to 14 of that agreement replace or supplement the provisions of the bilateral extradition treaties concluded by the Member States with the United States.

11 Article 16 of that agreement, entitled ‘Temporal application’, provides:

‘1. This Agreement shall apply to offences committed before as well as after its entry into force.

2. This Agreement shall apply to requests for extradition made after its entry into force. …’

12 Article 17 of that agreement, headed ‘Non-derogation’, states:

‘1. This Agreement is without prejudice to the invocation by the requested State of grounds for refusal relating to a matter not governed by this Agreement that is available pursuant to a bilateral extradition treaty in force between a Member State and the United States of America.

2. Where the constitutional principles of, or final judicial decisions binding upon, the requested State may pose an impediment to fulfilment of its obligation to extradite, and resolution of the matter is not provided for in this Agreement or the applicable bilateral treaty, consultations shall take place between the requested and requesting States.’

The Schengen Borders Code

13 The first subparagraph of Article 6(1) of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1), as amended by Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 on the establishment of a European Information and Authorisation System in respect of travel (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ 2018 L 236, p. 1) (‘the Schengen Borders Code’), provides:

‘For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:

(a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria:

(i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived;

(ii) it shall have been issued within the previous 10 years;

(b) they are in possession of a valid visa, if required pursuant to [Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2018 L 303, p. 39)] or a valid travel authorisation if required pursuant to [Regulation 2018/1240], except where they hold a valid residence permit or a valid long-stay visa;

…’

14 That provision replaced Article 5(1) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1), which itself replaced Article 5(1) of the CISA. Accordingly, Article 20(1) of the CISA must be understood as now referring to Article 6(1) of the Schengen Borders Code.

Regulation 2018/1806

15 Under Article 3(1) of Regulation 2018/1806:

‘Nationals of third countries listed in Annex I shall be required to be in possession of a visa when crossing the external borders of the Member States.’

16 Article 4(1) of that regulation is worded as follows:

‘Nationals of third countries listed in Annex II shall be exempt from the requirement set out in Article 3(1) for stays of no more than 90 days in any 180-day period.’

17 The Republic of Serbia...