# C_2006048EN.01001003.xml

| 25.2.2006 | EN | Official Journal of the European Union | C 48/10 |
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25.2.2006

EN

Official Journal of the European Union

C 48/10

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Reference for a preliminary ruling from the Court of Cassation, Belgium, by order of that court of 6 September 2005 in the criminal proceedings against Norma Kraaijenbrink

(Case C-367/05)

(2006/C 48/21)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Court of Cassation, Belgium, of 6 September 2005, received at the Court Registry on 29 September 2005, in the criminal proceedings against Norma Kraaijenbrink on the following questions:

| 1. | ‘Must Article 54 of the Schengen (1) implementing agreement of 19 June 1990, read with Article 71 of that agreement be construed as meaning that the criminal offences of acquiring or having available in the Netherlands or transferring from there sums of money in foreign currencies originating from the trade in narcotics (offences which were prosecuted and in respect of which a conviction was obtained in the Netherlands for receiving and handling in breach of Article 416 of the Criminal Code), which differ from the criminal offences consisting in the exchanging at exchange bureaus in Belgium of the relevant sums of money from the trade in narcotics received in the Netherlands (prosecuted in Belgium as the offence of receiving and handling and performing other acts in regard to goods resulting from crime, in breach of Article 505 of the Criminal Code), are to be regarded as the “same acts” for the purposes of Article 54 aforesaid where the courts establish that they share a common intention and thus legally constitute a single act?’ |
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1.

‘Must Article 54 of the Schengen (1) implementing agreement of 19 June 1990, read with Article 71 of that agreement be construed as meaning that the criminal offences of acquiring or having available in the Netherlands or transferring from there sums of money in foreign currencies originating from the trade in narcotics (offences which were prosecuted and in respect of which a conviction was obtained in the Netherlands for receiving and handling in breach of Article 416 of the Criminal Code), which differ from the criminal offences consisting in the exchanging at exchange bureaus in Belgium of the relevant sums of money from the trade in narcotics received in the Netherlands (prosecuted in Belgium as the offence of receiving and handling and performing other acts in regard to goods resulting from crime, in breach of Article 505 of the Criminal Code), are to be regarded as the “same acts” for the purposes of Article 54 aforesaid where the courts establish that they share a common intention and thus legally constitute a single act?’

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| 2. | If Question 1 is answered affirmatively:
  ‘Must the expression “may not be prosecuted ... for the same acts” in Article 54 of the Convention implementing the Schengen Agreement be interpreted as meaning that the “same acts” may also be constituted by different acts sharing the same intention, and thus constituting a single act, which would mean that a defendant can no longer be prosecuted for the offence of money-laundering in Belgium once he has been duly convicted in the Netherlands of other offences committed with the same intention, regardless of any other offences committed during the same period but which became known or in respect of which prosecutions were brought in Belgium only after the date of the definitive foreign judgment or, in such a case, must that expression be interpreted as meaning that the court determining the merits may enter a conviction in respect of these other acts on a subsidiary basis, taking into account the sentences already imposed, unless it considers that those other sentences in its view constitute sufficient punishment of all the offences, and ensuring that the totality of the penalties imposed may not exceed the maximum of the severest penalty?’ |
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2.

If Question 1 is answered affirmatively:

‘Must the expression “may not be prosecuted ... for the same acts” in Article 54 of the Convention implementing the Schengen Agreement be interpreted as meaning that the “same acts” may also be constituted by different acts sharing the same intention, and thus constituting a single act, which would mean that a defendant can no longer be prosecuted for the offence of money-laundering in Belgium once he has been duly convicted in the Netherlands of other offences committed with the same intention, regardless of any other offences committed during the same period but which became known or in respect of which prosecutions were brought in Belgium only after the date of the definitive foreign judgment or, in such a case, must that expression be interpreted as meaning that the court determining the merits may enter a conviction in respect of these other acts on a subsidiary basis, taking into account the sentences already imposed, unless it considers that those other sentences in its view constitute sufficient punishment of all the offences, and ensuring that the totality of the penalties imposed may not exceed the maximum of the severest penalty?’

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(1)  OJ 2000, L 239, p. 19.

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