# C_2005006EN.01003101.xml

| 8.1.2005 | EN | Official Journal of the European Union | C 6/31 |
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Reference for a preliminary ruling by the Audiencia Provincial de Málaga, Sección Primera, by order of that court of 8 July 2004 in the appeal brought by G. Francesco Gasparini and Others against the order of 21 November 2003 commencing summary proceedings

(Case C-467/04)

(2005/C 6/57)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of the Audiencia Provincial de Málaga, Sección Primera, (Provincial Court, Málaga), of 8 July 2004, which was received at the Court Registry on 4 November 2004, for a preliminary ruling in the appeal brought by G. Francesco Gasparini and Others against the order of 21 November 2003 commencing summary proceedings.

The Audiencia Provincial de Málaga asks the Court of Justice to give a preliminary ruling on the following question:

| — | As regards res judicata in criminal proceedings ('cosa juzgada penal'): this court requests an interpretation of Article 54 of the Schengen Implementing Convention:
1.
Is a finding by the courts of one Member State that an offence is time-barred binding on the courts of the other Member States? 2.
Does the acquittal of a defendant on account of the fact that prosecution of the offence is time-barred benefit, by extension, persons being prosecuted in another Member State where the facts are identical? In other words, can persons being prosecuted in another Member State on the basis of the same facts also benefit from a limitation period? 3.
If the criminal courts of one Member State declare that the extra-Community nature of goods has not been established for the purposes of an offence of smuggling and acquit the defendant, may the courts of another Member State broaden the investigation in order to prove that the introduction of goods without payment of customs duties was from a non-Member State? | 1. | Is a finding by the courts of one Member State that an offence is time-barred binding on the courts of the other Member States? | 2. | Does the acquittal of a defendant on account of the fact that prosecution of the offence is time-barred benefit, by extension, persons being prosecuted in another Member State where the facts are identical? In other words, can persons being prosecuted in another Member State on the basis of the same facts also benefit from a limitation period? | 3. | If the criminal courts of one Member State declare that the extra-Community nature of goods has not been established for the purposes of an offence of smuggling and acquit the defendant, may the courts of another Member State broaden the investigation in order to prove that the introduction of goods without payment of customs duties was from a non-Member State? |
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| 1. | Is a finding by the courts of one Member State that an offence is time-barred binding on the courts of the other Member States? | | | | | | |
| 2. | Does the acquittal of a defendant on account of the fact that prosecution of the offence is time-barred benefit, by extension, persons being prosecuted in another Member State where the facts are identical? In other words, can persons being prosecuted in another Member State on the basis of the same facts also benefit from a limitation period? | | | | | | |
| 3. | If the criminal courts of one Member State declare that the extra-Community nature of goods has not been established for the purposes of an offence of smuggling and acquit the defendant, may the courts of another Member State broaden the investigation in order to prove that the introduction of goods without payment of customs duties was from a non-Member State? | | | | | | |

| — | As regards the notion of goods in free circulation, this court requests an interpretation of Article 24 EC as to whether:
‘Where a criminal court in a Member State has declared either that it is not established that goods have been unlawfully introduced into the Community or that the offence of smuggling is time-barred’:
(a)
can the goods be regarded as being in free circulation in the rest of the Community? (b)
can the sale of the goods in another Member State following their importation into the Member State where the acquittal was given be regarded as independent conduct which may therefore be punished or, instead, as conduct forming an integral part of the importation? | (a) | can the goods be regarded as being in free circulation in the rest of the Community? | (b) | can the sale of the goods in another Member State following their importation into the Member State where the acquittal was given be regarded as independent conduct which may therefore be punished or, instead, as conduct forming an integral part of the importation? |
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| (a) | can the goods be regarded as being in free circulation in the rest of the Community? | | | | |
| (b) | can the sale of the goods in another Member State following their importation into the Member State where the acquittal was given be regarded as independent conduct which may therefore be punished or, instead, as conduct forming an integral part of the importation? | | | | |

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