Opinion of the Advocate General — ECLI:EU:C:2023:240
Date: 2023-03-23
Language of the case: Croatian
Subject matter: Immigration and asylum policy;Approximation of laws;Public health;Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Croatia

Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
30 November 2021 
Referring court:  
Županijski sud u Puli (Croatia) 
Date of the decision to refer:  
24 November 2021 
Criminal proceedings against:  
GR 
HS 
INTER CONSULTING d.o.o., in liquidation 
IT  
  
Subject matter of the main proceedings  
Criminal proceedings against GR, HS and IT, and also Inter Consulting d.o.o. (a 
private limited company), in liquidation, accused of having committed or 
instigated, or assisted in committing, acts classified as offences of breach of trust 
in commercial transactions in the Republic of Croatia. 
Subject matter and legal basis of the request  
The request for a preliminary ruling under Article 267 of the Treaty on the 
Functioning of the European Union 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). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-726/21 
 
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Question referred for a preliminary ruling 
In assessing whether there has been an infringement of the ne bis in idem 
principle, is it possible to compare only the facts cited in the enacting terms of the 
indictment of the Županijsko državno odvjetništvo u Puli (Pula Public 
Prosecutor’s Office, Croatia) … of 28 September 2015 with the key facts cited in 
the enacting terms of the indictment of the Staatsanwaltschaft Klagenfurt 
(Klagenfurt Public Prosecutor’s Office, Austria) … of 9 January 2015, and in the 
operative part of the judgment of the Landesgericht Klagenfurt (Klagenfurt 
Regional Court) … of 3 November 2016, upheld by the judgment of the Oberster 
Gerichtshof (Supreme Court of the Republic of Austria) … of 4 March 2019, or is 
it possible to compare the facts cited in the enacting terms of the indictment of the 
Županijsko državno odvjetništvo u Puli (Pula Public Prosecutor’s Office) … with 
the facts cited in the grounds of the judgment of the Landesgericht Klagenfurt 
(Klagenfurt Regional Court) … of 3 November 2016, upheld by the judgment of 
the Oberster Gerichtshof (Supreme Court of the Republic of Austria) …, and 
which were the subject of the preliminary investigation conducted by the 
Staatsanwaltschaft Klagenfurt (Klagenfurt Public Prosecutor’s Office) … against 
several persons, in particular against GR and HS, and which were subsequently 
omitted from the indictment by the Staatsanwaltschaft Klagenfurt (Klagenfurt 
Public Prosecutor’s Office) … of 9 January 2015 (and were not cited in those 
enacting terms)? 
Provisions of EU law cited 
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  
Provisions of national law cited 
Under Article 31(2) of the Ustav Republike Hrvatske (Constitution of the 
Republic of Croatia) (Narodne novine, No 56/90, 135/97, 08/98, 113/00, 124/00, 
28/01, 41/01, 55/01, 76/10, 85/10, 05/14), no one is to be liable to be tried or 
punished a second time in criminal proceedings for an offence in respect of which 
he or she has already been finally acquitted or convicted in accordance with the 
law. 
Under Article 12(1) of the Zakon o kaznenom postupku (Law establishing the 
Code of Criminal Procedure) [Narodne novine, No 152/08, 76/09, 80/11, 121/11 – 
consolidated text, 91/12 – judgment of the Ustavni sud (Constitutional Court, 
Croatia), 143/12, 56/13, 145/13, 152/14, 70/17 and 126/19), no one is to be liable 
to be punished a second time in criminal proceedings for an offence for which he 
or she has already been tried and for which a final court judgment has been given. 
INTER CONSULTING 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 At the time material to the main proceedings, GR was a member of the 
management board of the company Skiper Hoteli d.o.o. (‘Skiper Hoteli’) and of 
Interco Umag d.o.o., which later became Inter Consulting (‘Interco’). GR was also 
a member of the management board of the company Rezidencija Skiper d.o.o. 
(‘Rezidencija Skiper’) and owned shares in the company Alterius d.o.o. 
(‘Alterius’). HS, for his part, was a director of Interco, while IT carried out 
valuations of immovable property. 
2 On 28 September 2015, the Županijsko državno odvjetništvo u Puli (Pula Public 
Prosecutor’s Office) (Croatia) issued an indictment against GR, HS, IT and 
Interco. By that indictment, it accused GR and Interco of the offence of breach of 
trust in commercial transactions within the meaning of Article 246(1) and (2) of 
the Kazneni zakon (Criminal Code of Croatia), in the version applicable to the 
facts in the main proceedings. By that indictment, it further accused HS of having 
instigated that offence and IT of having aided the commission thereof.  
3 More specifically, the indictment in question, as set out in the request for a 
preliminary ruling, accuses GR and HS of having acted, between December 2004 
and June 2006, for the purposes of a Skiper Hoteli project for the construction of 
new tourist accommodation in the municipality of Savudrija, to ensure that Interco 
benefited from an unlawful financial advantage at the expense of Skiper Hoteli. 
For the purposes of that project, Skiper Hoteli planned to acquire immovable 
property located on several adjacent plots of land in the aforementioned 
municipality. However, HS asked GR, who did so, to ensure that Skiper Hoteli did 
not acquire the immovable property directly from the vendors – the owners of the 
immovable property – but that it be acquired beforehand, without justified ground, 
by Interco, of which HS was a director and GR a member of the management 
board. Skiper Hoteli subsequently acquired the immovable property in question 
from Interco at prices significantly above those paid to the owners thereof and 
above market prices. Interco thus benefited from an unlawful financial advantage 
in the amount of at least 21 830 000.00 Croatian kuna (HRK) at the expense of 
Skiper Hoteli. Interco was also accused of committing the offence in question, in 
addition to GR and HS, as the third accused. 
4 That indictment further states that, between November 2004 and November 2005, 
GR, HS and IT acted in such a way that GR and the other companies represented 
by him sold to Skiper Hoteli, at a price significantly above their real value, shares 
which GR and the above companies held in Alterius, the initial asset contribution 
to that company consisting of immovable property built on adjacent plots of land 
within the territory of the municipality of Savudrija. To that end, HS asked GR to 
obtain from IT a valuation of the immovable property in question in an amount 
higher than its market value in order to justify the higher price of the shares and 
then sell the shares in question to Skiper Hoteli. GR and IT acted in the manner 
described, thereby causing damage to Skiper Hoteli totalling 49 115 621.64 
Croatian kuna (HRK). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-726/21 
 
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5 The referring court upheld the indictment of the Županijsko državno odvjetništvo 
u Puli (Pula Public Prosecutor’s Office) in question. 
6 Since HS claimed that he was already the subject of criminal proceedings in 
Austria in respect of the same acts, the Županijsko državno odvjetništvo u Puli 
(Pula Public Prosecutor’s Office) contacted the Staatsanwaltschaft Klagenfurt 
(Klagenfurt Public Prosecutor’s Office) at the investigation stage in 2014 in order 
to check whether similar proceedings were under way and at what stage they 
were. In addition, the Državno odvjetništvo Republike Hrvatske (National Public 
Prosecutor’s Office of the Republic of Croatia) made a similar request to the 
Ministry of Justice of Austria in 2016. According to the findings of the referring 
court, the answers from the public prosecutor’s office in Klagenfurt and from the 
Ministry of Justice of the Republic of Austria show that the Austrian prosecuting 
authorities had essentially initiated criminal proceedings against two former 
members of the management board of Hypo Alpe Adria Bank International AG 
(‘Hypo bank’), a banking institution established in Austria, in relation to the 
offence of breach of trust within the meaning of Paragraph 153(1) and (2)(2) of 
the Strafgesetzbuch (Austrian Criminal Code) and against GR and HS as 
accessories in the offences committed by those two former members of the 
management board. 
7 According to the indictment which the Klagenfurt Public Prosecutor’s Office 
brought before the Landesgericht Klagenfurt (Klagenfurt Regional Court, Austria) 
on 9 January 2015, the abovementioned former members of the management 
board, BB and CC, were accused of approving, between September 2002 and July 
2005, the grant of several loans to the companies Rezidencija Skiper and Skiper 
Hoteli, without having either complied with the requirements relating to the 
provision of sufficient own funds and the monitoring of the use of the funds or 
taking into account, first, the lack of documentation relating to the implementation 
of the projects justifying the grant of those loans and, second, the inadequacy of 
both the payment guarantee instruments and the repayment capacity of the 
companies concerned, thereby causing financial damage to Hypo bank in an 
amount of at least EUR 105 million. GR and HS are accused of having incited, by 
having sought the grant of those loans, BB and CC to commit the alleged offence 
or of having aided in its commission. 
8 On 3 November 2016, the Landesgericht Klagenfurt (Klagenfurt Regional Court) 
delivered a judgment in which BB and CC were found guilty in part of the acts in 
respect of which they were accused in the indictment of the Klagenfurt Public 
Prosecutor’s Office. They were convicted for having approved loan HR/1061 to 
Skiper Hoteli in an amount in excess of EUR 70 million, but were acquitted in 
respect of the other loans. GR and HS, for their part, were acquitted of the charge 
in that regard. HS was acquitted of the charge of having incited, between 2002 and 
2005, the accused BB and CC, in his capacity as the president of the management 
board of Hypo bank, to commit crimes by repeatedly seeking loans and submitting 
loan documentation. He was accused of having repeatedly sought a loan and 
submitted loan documentation, which had led to Skiper Hoteli being granted loan 
INTER CONSULTING 
 
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HR/1061 in the amount of EUR 70.3 million on 4 July 2005, despite the fact that 
it had not submitted sufficient project documentation and a loan repayment 
capacity forecast. GR was acquitted of the charge of having aided, between 2003 
and 2005, the commission of offences by the accused BB and CC, in that he 
sought, as a director of the companies Rezidencija Skiper and Skiper Hoteli, the 
grant of loans, inter alia the abovementioned loan HR/1061, negotiated the loan, 
submitted loan documentation, and signed the loan agreements. According to the 
findings of the referring court, the foregoing is apparent from the operative part of 
the judgment in question, while it is apparent from the grounds thereof that Skiper 
Hotel used loan HR/1061 to acquire immovable property and shares at prices 
significantly above market prices. 
9 That judgment became final following the dismissal by the Oberster Gerichtshof 
(Austria), on 4 March 2019, of the appeal brought against it. 
10 It is further apparent from the abovementioned reply from the Ministry of Justice 
and the reply which the Klagenfurt Public Prosecutor’s Office gave to GR, and 
from the letter sent to HS, that the Klagenfurt Public Prosecutor’s Office 
conducted and finally discontinued, on the ground of lack of evidence, the 
investigation against the accused GR and HS for offences under Paragraph 153(1) 
and (2)(2) of the Criminal Code, other than those covered by the indictment of the 
Klagenfurt Public Prosecutor’s Office and subsequently by the judgment of the 
Landesgericht Klagenfurt (Klagenfurt Regional Court). According to the findings 
of the referring court, the investigation was discontinued in relation to the facts 
concerning the use of loan HR/1061 for the project of Skiper Hoteli, which had 
acquired for that purpose immovable property and shares in the Republic of 
Croatia at prices significantly above market prices. The referring court further 
notes that the Klagenfurt Public Prosecutor’s Office did not issue an order to 
initiate or discontinue an investigation showing precisely which facts were the 
subject of the investigation in question, but merely sent GR and HS information 
on the discontinuation of the investigation into the offence under 
Paragraph 153(1) and (2)(2) of the Criminal Code in so far as it is not covered by 
the indictment on the basis of which the judgment of the Landesgericht Klagenfurt 
(Klagenfurt Regional Court) was delivered. 
The essential arguments of the parties in the main proceedings 
11 In his defence, HS emphasised that criminal proceedings had already been 
conducted against him in Austria in respect of the same acts. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The Županijski sud u Puli (Pula County Court) notes that it is possible that the 
facts cited in the enacting terms of the indictment of the Županijsko državno 
odvjetništvo u Puli (Pula Public Prosecutor’s Office), the facts cited in the 
enacting terms of the indictment of the Klagenfurt Public Prosecutor’s Office, the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-726/21 
 
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facts cited in the operative part and the grounds of the final judgment of the 
Klagenfurt Regional Court, and those which were the subject of the discontinued 
investigation conducted by the Klagenfurt Prosecutor’s Office), are inextricably 
linked together in substance, time, and space. 
13 The acts were committed almost simultaneously. The operative part of the final 
judgment of the Klagenfurt Regional Court shows that the offences concerned 
were committed between 2002 and 2005, while the indictment of the Županijsko 
državno odvjetništvo u Puli (Pula Public Prosecutor’s Office) concerns the period 
from 2004 to 2006. The acts committed in the Republic of Croatia must 
necessarily have occurred later since they are predated by the grant of loan 
HR/1061 by Hypo bank, without which the purchase of the immovable property 
and shares in question in the Republic of Croatia would not have been possible. 
14 The link ratione loci between the acts is indicated by the fact that the final 
judgment of the Klagenfurt Regional Court states that loan HR/1061 was intended 
for the purchase of immovable property and shares for the purposes of the project 
of the company Skiper Hoteli in the Republic of Croatia.  
15 As regards the substantive link, the referring court takes the view that a 
comparison of the facts cited in the operative part of the final judgment of the 
Klagenfurt Regional Court, under which GR and HS were acquitted of the 
charges, and subsequently the facts arising from the grounds of that judgment, in 
respect of which the Klagenfurt Public Prosecutor’s Office discontinued the 
criminal proceedings against GR and HS, namely the fact that loan HR/1061 was 
used to purchase immovable property and shares in the Republic of Croatia at 
prices significantly above market prices, and the facts cited in the indictment of 
the Županijsko državno odvjetništvo u Puli (Pula District Prosecutor’s Office), 
indicate that the matter may be res judicata. 
16 The referring court explains that it requires an answer to the question referred 
since, in accordance with the practice of the Croatian courts, in the application of 
the ne bis in idem principle a comparison is made only of the facts referred to in 
specific parts of a procedural act [*such as the enacting terms of an indictment or 
the operative part of a judgment], and not in the other parts thereof. This practice 
is based on the fact that it is only to this extent that the procedural acts become 
final. 
 
* Translator’s note.