# C_2006131EN.01001801.xml

| 3.6.2006 | EN | Official Journal of the European Union | C 131/18 |
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3.6.2006

EN

Official Journal of the European Union

C 131/18

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Judgment of the Court (Second Chamber) of 9 March 2006 (reference for a preliminary ruling from the Hof van Cassatie van België) — Criminal proceedings against Léopold Henri van Esbroeck

(Case C-436/04) (1)

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(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)

(2006/C 131/31)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Party in the main proceedings

Léopold Henri van Esbroeck

Re:

Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Arts. 54 and 71 of the Convention implementing the Schengen Agreement — Ne bis in idem principle — Person prosecuted in a Member State for illegally exporting drugs after having been prosecuted and convicted in Norway for illegal importing drugs before the Schengen Agreement was applicable to that State

Ne bis in idem

Operative part of the judgment

| 1. | The ne bis in idem principle, enshrined in 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 on 19 June 1990 in Schengen, 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. |
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1.

The ne bis in idem principle, enshrined in 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 on 19 June 1990 in Schengen, 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.

ne bis in idem

ne bis in idem

| 2. | Article 54 of the Convention 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; |
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2.

Article 54 of the Convention must be interpreted as meaning that:

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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;

| — | punishable acts consisting of exporting and importing the same narcotic drugs and which are prosecuted in different Contracting States to the Convention 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. |
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punishable acts consisting of exporting and importing the same narcotic drugs and which are prosecuted in different Contracting States to the Convention 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.

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(1)  OJ C 300 of 4.12.2004.

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