Judgment;Summary — ECLI:EU:C:2025:688
Date: 2025-09-11
Language of the case: Spanish
Court formation: First Chamber
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-802/23 – 1 
Case C-802/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
28 December 2023 
Referring court: 
Audiencia Nacional (Spain) 
Date of the decision to refer: 
4 December 2023 
Criminal proceedings against: 
MSIG 
  
Subject matter of the main proceedings 
Leader of a Spanish terrorist organisation – Clandestine activities in France – 
Planning of terrorist campaigns and facilitating the resources for carrying them 
out in Spain – Direct perpetration of terrorist attacks in Spain by other members of 
the organisation – Arrest of the leader in France – Prosecution and deprivation of 
liberty in France for such activities – Surrender to Spain – Prosecution in Spain 
for those attacks – Acquittal with a declaration of ne bis in idem covering those 
activities and some of those attacks – Setting aside of the judgment by the 
Tribunal Supremo (Supreme Court, Spain) 
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling for interpretation – Article 267 TFEU – 
International ne bis in idem principle – Concept of ‘the same acts’ and related 
acts – Cumulation of criminal judgments of several Member States – 
Compatibility of national legislation with the Charter of Fundamental Rights and 
the CISA – Proportionality of the penalties 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-802/23 
 
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Questions referred 
A question is referred to the Court of Justice of the European Union (‘the Court of 
Justice’) for a preliminary ruling, pursuant to Article 19(3)(b) of the Treaty on 
European Union (‘TEU’), Article 267 of the Treaty on the Functioning of the 
European Union (‘TFEU’) and Article 4a of the Ley Orgánica del Poder Judicial 
(Spanish Organic Law on the Judiciary, ‘the LOPJ’); for this court (the Sección 
Segunda de la Sala de lo Penal de la Audiencia Nacional [Second Criminal 
Chamber of the National High Court, Spain]) takes the view that the Court of 
Justice should interpret the scope of Article 50 of the Charter of Fundamental 
Rights of the European Union (‘the Charter’) and of Article 54 of the Convention 
implementing the Schengen Agreement (‘the CISA’), as regards the question of 
whether the ‘ne bis in idem’ principle applies for the acts and offences being tried 
in Spain and those which were tried in France in relation to MSIG. Otherwise, 
interpretation is also sought of the scope of Article 49(3) of the Charter, in 
conjunction with fully established Community principles developed, inter alia, in 
Council Framework Decision 2008/675/JHA of 24 July 2008, concerning the 
mutual recognition of judicial decisions and their effects on proceedings in other 
States, and the absence in Spanish law of any corrective measures aimed at 
avoiding the lack of proportionality of penalties in the punishment of offences, 
where there are concurrent foreign judgments which form factual or legal unity 
with other (related) judgments handed down by Spanish courts, in particular 
because they cannot be taken into account in Spain for any purpose; this is due to 
the express exclusion of that possibility in Articles 14(2)(b) and 14(2)(c) and the 
single additional provision of Organic Law 7/2014 of 12 November 2014 on the 
exchange of criminal record information and the taking into account of 
criminal-court decisions in the European Union, transposing Council Framework 
Decision 2008/675/JHA of 24 July 2008, the compatibility of those legal 
provisions with EU law also being subject to assessment by the Court of Justice. 
That legislation completely prevents any final conviction handed down previously 
by the courts of another Member State, including in relation to the same acts, from 
being taken into account, which also renders the provisions of Article 50 of the 
Charter and Article 54 of the CISA inapplicable in the latter case. 
The aforementioned ruling is requested in the form of the following questions: 
1. In the present case, according to the factual circumstances described and the 
legal reasons taken into account in the criminal case against MSIG in Spain, and 
in view of the various convictions previously handed down in France in relation to 
her, does the ‘ne bis in idem’ principle apply under Article 50 of the Charter and 
Article 54 of the CISA, in relation to the charge brought against MSIG in Spain, 
in that it concerns ‘the same acts’, in accordance with the scope given to that 
concept in European case-law? 
2. In any event, is the lack of a regulatory provision in Spanish law allowing 
the recognition of effects of final convictions previously handed down by the 
courts of other Member States, for the possible assessment in the case under 
MSIG 
 
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examination of the applicability of the ne bis in idem principle, on the ground of 
identical acts, compatible with Article 50 of the Charter and Article 54 of the 
CISA, and also with Articles 1(3), 3(2), 4(3) and 4(5) of Council Framework 
Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the 
surrender procedures between Member States? 
3. In the present case, or generally speaking, is the absence of any legislative, 
practical or, ultimately, legal mechanism or procedure in Spanish law allowing 
recognition of effects of final convictions previously handed down by the courts 
of the Member States, (i) with a view to determining the sentence, cumulating, 
adapting or limiting the maximum execution of sentences, either at trial and 
judgment stage or at the later stage of enforcement of the sentence and (ii) in order 
to, in the alternative, in the event of a failure to find that the ne bis in idem 
principle applies on the ground of identical acts, ensure the proportionality of the 
criminal penalty – where, as in the proceedings under examination, a prior 
conviction has been handed down by the courts of another Member State for 
serious penalties, which have already been completed, due to concomitant acts 
(concurrent in time, which are closely related or connected or have a criminal or 
similar connection) with those being tried in Spain – contrary to Articles 45 and 
49(3) of the Charter, or to recitals 7, 8, 9, 13 and 14 and Articles 3(1), 3(2), 3(4) 
and 3(5) of Council Framework Decision 2008/675/JHA of 24 July 2008 on 
taking account of convictions in the Member States of the European Union in the 
course of new criminal proceedings, and recital 12 and Article 1(3) of Council 
Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest 
warrant and the surrender procedures between Member States? 
4. In the light of the circumstances of the present case and, generally speaking, 
is the total exclusion of the effects of earlier final judgments delivered in other EU 
Member States – as expressly provided for in Article 14(2)(b) on convictions to be 
imposed in Spain, Article 14(2)(c) on judgment execution orders and the single 
additional provision (in both cases prior to 15 August 2010) of Organic Law 
7/2014 of 12 November 2014 on the exchange of criminal record information and 
the taking into account of criminal-court decisions in the European Union, 
transposing European Union law – compatible with: 
(1) Article 50 of the Charter and Article 54 of the CISA, both relating to the 
international ne bis in idem principle; 
(2) and recitals 7, 8, 9, 13 and 14 and Articles 3(1), 3(2), 3(4) and 3(5) of 
Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of 
convictions in the Member States of the European Union in the course of new 
criminal proceedings, as well as with Articles 45 and 49(3) of the Charter and the 
principle of mutual recognition of legal judgments within the European Union? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-802/23 
 
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International law and case-law relied on 
Judgment of the European Court of Human Rights of 9 July 2013, Vinter and 
Others v. the United Kingdom, CE:ECHR:2013:0709JUD006606909 
Judgment of the European Court of Human Rights of 20 May 2014, Magyar v. 
Hungary, CE:ECHR:2014:0520JUD007359310 
Judgment of the European Court of Human Rights of 28 October 2021, Bancsók 
and Magyar v. Hungary, CE:ECHR:2021:1028JUD005237415 
Convention for the Protection of Human Rights and Fundamental Freedoms, 
signed in Rome on 4 November 1950 
Provisions of European Union law and case-law relied on 
Judgment of the Court of Justice of 9 March 2006, Van Esbroeck, C-436/04, 
EU:C:2006:165 
Judgment of the Court of Justice of 28 September 2006, Van Straaten, C-150/05, 
EU:C:2006:614 
Judgment of the Court of Justice of 18 July 2007, Kretzinger, C-288/05, 
EU:C:2007:441 
TEU; in particular Article 19(3)(b) 
TFEU; in particular Article 267 
Charter of Fundamental Rights of the European Union; in particular Articles 45, 
49(3) and 50 
Convention implementing the Schengen Agreement; in particular Article 54 
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European 
arrest warrant and the surrender procedures between Member States (OJ 2002 
L 190, p. 1); in particular recital 12 and Article 1(3), Article 3(2) and Article 4(3) 
and (5) 
Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of 
convictions in the Member States of the European Union in the course of new 
criminal proceedings (OJ 2008 L 220, p. 32); in particular recitals 7, 8, 9, 13 and 
14 and Article 3(1), (2), (4) and (5) 
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The case-law and provisions of Spanish law relied on 
Judgment No 18/2016 of the Tribunal Supremo (Supreme Court) (Chamber II), 
26 January 2016 
Judgment No 238/2023 of the Supreme Court (Chamber II), 30 March 2023 
Judgment No 53/1998 of the Audiencia Nacional (National High Court) (Criminal 
Chamber) of 28 December 1998 
Judgment No 32/2014 of the National High Court (Criminal Chamber) of 
11 December 2014 
Judgment No 1/2021 of the National High Court (Criminal Chamber) of 
21 January 2021 
Royal Decree of 14 September 1882 adopting the Law of Criminal Procedure; in 
particular Articles 17 and 988 
Organic Law 6/1985 of 1 July 1985 (LOPJ) (Official State Gazette No 157 of 
2 July 1985, p. 20632) 
Organic Law 10/1995 of 23 November 1995 on the Criminal Code (Official State 
Gazette No 281 of 24 November 1995, p. 33987); in particular Articles 28, 73, 74, 
76, 77, 78, 571 and 572 
Organic Law 7/2003 of 30 June 2003 on reform measures for the full and effective 
enforcement of sentences (Official State Gazette No 156 of 1 July 2003, p. 25274) 
Organic Law 7/2014 of 12 November 2014 on the exchange of criminal record 
information and the taking into account of criminal-court decisions in the 
European Union (Official State Gazette No 275 of 13 November 2014, p. 93204); 
in particular Article 14(2)(b) and (c) and Single Additional Provision 
The provisions of French law relied on 
Code pénal (French Criminal Code); in particular Article 421-1 
Succinct presentation of the facts and procedure in the main proceedings 
1 MSIG is, in general terms, classed as having been a leader of the terrorist 
organisation ETA for the duration of her stay in France, from an unspecified date 
until her detention in France in October 2004. She was responsible for 
transmitting the instructions drawn up in France by the senior leadership of the 
terrorist organisation and for setting the course of action of the terrorist commands 
operating in Spain, sending them both the information and the material resources 
for their terrorist campaigns, normally through third parties, from France. In 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-802/23 
 
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general, it was the members of the commands who, following the general 
instructions, decided what specific terrorist action was to be taken, planned that 
action and reported the outcome to the terrorist leadership. 
2 This request for a preliminary ruling concerns, more specifically, the ordinary 
procedure followed by the Criminal Chamber of the Audiencia Nacional (National 
High Court) against MSIG for offences of attempted terrorist assassination, 
terrorist injuries and terrorist destruction committed in Spain: MSIG is accused of 
having participated in certain terrorist acts committed directly by two other 
members of ETA. 
3 At the time, those two terrorists were ‘legals’ (that is, not known to police) and 
were members of the ‘Katu’ command. Assisted by other unknown persons, and 
acting under the general instructions they had received, they decided to attack the 
Oviedo police station. To that end, using armaments received from ETA, they 
manufactured an automated device to launch anti-tank grenades and a booby-trap 
bomb, which they placed in position on 21 July 1997. Only three grenades 
worked, exploding at random in various locations close to the intended target and 
causing only property damage and injuries to one person who was nearby. The 
booby-trap bomb was located and deactivated by the police. 
4 Those two terrorists have already been convicted for those acts in earlier trials 
before the referring court in 1998 and 2014. 
5 The prosecutor maintains that MSIG is the actual perpetrator of those offences 
committed in Oviedo, in her capacity as the person responsible at that time for the 
‘legal’ commands of the terrorist organisation ETA, and for the supply that she 
carried out, from France and to the specific command of the two terrorists 
mentioned above, of various armaments, including grenades. 
6 The total sentence requested by the prosecutor for those acts is a term of 
imprisonment of 71 years, the execution of which was to be limited, by operation 
of law, to a maximum term of imprisonment of 30 years. 
7 Irrespective of those criminal proceedings before the referring court, MSIG had 
already been prosecuted in France. 
8 After several years of living clandestinely in France, MSIG was arrested by the 
French police in 2004. She was sentenced and deprived of her liberty in France 
until she was surrendered to Spain in 2019 pursuant to several European arrest 
warrants. 
9 In total, MSIG served a total cumulative sentence of 20 years in France, handed 
down in various sets of judicial proceedings, which gave rise to convictions, from 
which some passages of text are reproduced by the referring court: 
10 Conviction in absentia, sentenced to a term of imprisonment of 5 years, by 
judgment of the Tribunal Correctionnel de Paris (Criminal Court, Paris) of 
MSIG 
 
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21 February 2000, for ‘participation à une association de malfaiteurs en vue de la 
préparation d’un acte de terrorisme’ (participation in a conspiracy to prepare a 
terrorist act), in 1996 and on French territory, within the meaning of Article 421-1 
of the French Criminal Code. 
11 According to the French judgment, MSIG appears with one of her terrorist aliases 
(‘Amboto’) in certain documents intercepted from another individual, who met 
with MSIG and instructed her, using coded language, to create explosives. A 
document intercepted from another individual mentions a vehicle licence plate 
which was expressly intended for MSIG. 
12 That French judgment also described ETA as a hierarchical organisation which, 
with the aim of ensuring the independence of the Spanish Basque Country and the 
French Basque Country, was preparing and committing assassinations and damage 
to buildings and cars using explosives. It stated that those actions were part of an 
overall strategy and were financed through extortion. The organisation provided 
its members with weapons, training in how to use them, falsified documents and 
clandestine accommodation, and it facilitated their travel. 
13 Conviction in absentia, sentenced to a term of imprisonment of 5 years, by 
judgment of the Criminal Court, Paris, of 23 February 2000, for ‘participation à 
une association de malfaiteurs en vue de la préparation d’un acte de terrorisme’ 
(participation in a conspiracy to prepare a terrorist act), in 1996 and 1997 and on 
French territory, also within the meaning of Article 421-1 of the French Criminal 
Code. 
14 According to the French judgment, MSIG appears with one of her terrorist aliases 
(‘Tomasa’) in certain documents intercepted in France from another individual, 
concerning a sum of money; MSIG is mentioned as the recipient of explosives and 
training materials on how to use them. A document intercepted in France from 
another individual is signed by MSIG; that other individual was to carry the 
document to Spain. Other documents intercepted in France from other members of 
ETA are also signed by ‘Tomasa’. 
15 That French judgment also stated that, according to the information received by 
the French authorities from the Spanish authorities, MSIG had belonged to the 
terrorist commands ‘Araba’ and ‘Madrid’. 
16 Conviction in absentia, sentenced to a term of imprisonment of 5 years and a 
permanent ban on entering France, by judgment of the Criminal Court, Paris, of 
13 February 2003, also for ‘participation à une association de malfaiteurs en vue 
de la préparation d’un acte de terrorisme’ (participation in a conspiracy to prepare 
a terrorist act), in 1997 and on French territory, also within the meaning of 
Article 421-1 of the French Criminal Code. 
17 That French judgment reiterated that MSIG had belonged to the ‘Araba’ and 
‘Madrid’ commands. It stated that she was assumed to have been responsible for 
ETA’s ‘legal’ commands since 1993 and that she had been pursued in France for 
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two arrest warrants issued by a French investigating judge and three international 
arrest warrants from judges in Madrid. 
18 It added that MSIG appeared on a list of ETA members which was intercepted in 
France in 1987. In 1996, another terrorist admitted that MSIG, using her ‘Marisol’ 
and ‘Amboto’ aliases, organised a training session in Bordeaux (France). Her 
‘Amboto’ alias appears in a document intercepted in France from another 
individual. Another typewritten document, signed by ‘Amboto’, was intercepted 
in France in 1998. In 1999, MSIG’s fingerprints were identified on two vehicle 
licence plates intercepted in France from another individual. Another terrorist 
extradited from Mexico to Spain in 2000 admitted that MSIG was present in 
France in 1997 at an organisation meeting. 
19 That French judgment therefore held it to have been established that MSIG had 
participated in a group dedicated to the preparation of terrorist acts. It also 
mentioned previous convictions handed down in France against MSIG for similar 
acts. 
20 The three previous conviction judgments handed down in absentia became final in 
2013. 
21 Conviction, sentenced to a term of imprisonment of 20 years by judgment of the 
Cour d’Appel de Paris (Court of Appeal, Paris) of 17 December 2010, upheld on 
appeal by judgment of 22 November 2012 of the Paris criminal court. 
22 The decision concerned acts which were not time-barred, were not covered by the 
earlier judgments and occurred on French territory up to March 2004. Those acts 
consist of participation in ETA’s political apparatus for the preparation of terrorist 
acts under Article 421-1 of the French Criminal Code, including the possession of 
weapons, ammunition and falsified documents, receiving stolen goods and 
extortion. 
23 Sentences to run concurrently, such that the previous French convictions are 
cumulated into a single sentence of a term of imprisonment of 20 years, by 
judgment of the Court of Appeal, Paris, of 13 February 2014. MSIG served that 
sentence in France before her surrender to Spain. 
24 Next, the referring court refers generally to investigations carried out into criminal 
acts committed in France by MSIG. 
25 It points out that the police, the public prosecutor’s office and the French courts 
carried out in-depth investigations concerning MSIG, even before her arrest in 
France, and that they had precise knowledge of her criminal activities linked to 
ETA’s terrorism in Spain and France. In particular, they gathered a large amount 
of information from the physical documents and digital media found in the search 
of the residence that MSIG was sharing with another leader of ETA, alias 
‘Sergio’, at the time of her arrest. 
MSIG 
 
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26 Similarly, through investigations carried out by the Brigade de Recherches de 
Bayonne (Bayonne Investigation Unit) (France) and the 14th section of the 
Parquet de Paris (Public Prosecutor’s Office, Paris), the French investigators had 
acquired extensive knowledge of MSIG’s role in the terrorist organisation ETA, to 
whom they attributed the aliases of ‘Amboto’ and ‘Tomasa’, due to the fortuitous 
discovery, in 1998, in the service area of a petrol station near Bidart (France), of a 
word-processed letter signed by ‘Amboto’, addressed to the ‘Katu’ command 
(which actually committed the Oviedo attack which is the subject of the criminal 
proceedings before the referring court). 
27 In the letter that was found, it appears that the individual whose alias was 
‘Tomasa’ organised communications with that command (which operated within 
Spain at the time), determined the manner in which meetings were arranged with 
the members of the command, established deliveries of materials for that 
command, provided the relevant technical instructions concerning the use of those 
materials and was involved, as a leader of ETA, in directing terrorist activities and 
marking their potential targets. 
28 The referring court points out that all the information gathered by the French 
investigators was indeed dealt with in the criminal proceedings brought against 
MSIG in France and that the extensive information available to the French courts 
on the activities carried out by MSIG in France is reflected in the judgments 
delivered against her in France, both in absentia and after her arrest. The referring 
court infers from this that the French courts have ruled in various proceedings on 
all the criminal activities carried out by MSIG in France in relation to the terrorist 
commands of ETA operating in Spain, including the ‘Katu’ command. 
29 Much of the information obtained and prepared by the French police was also 
forwarded to the Spanish police so that it could use it to complete its 
investigations. 
30 As regards the proceedings which took place in Spain, after MSIG was 
surrendered by France in 2019, having served the cumulative sentence handed 
down in France, she was tried in several sets of criminal proceedings, some of 
which related to acts committed entirely in Spain as a member of ETA before 
going to France and others related to her participation in France, as a leader of 
ETA, in terrorist acts conducted in Spain. One of the latter is the subject of the 
present request for a preliminary ruling. 
31 It should be noted that, by order of 2023 of the referring court, the sentences 
imposed on MSIG in Spain were cumulated into eight final judgments. Their 
cumulation set a cumulative term limit of 30 years, in accordance with the Spanish 
Criminal Code and the Law of Criminal Procedure, on the ground that they are 
related offences. 
32 However, despite the legal link between the French convictions and the Spanish 
convictions, it is not legally possible to cumulate them together. As a result, after 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-802/23 
 
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having served the cumulative sentence imposed in France (20 years), MSIG will 
have to serve the cumulative sentence imposed in Spain (at least 30 years), that is 
to say, a minimum total term of imprisonment of 50 years. 
33 Furthermore, sentences imposed in Spain for terrorist offences are subject to a 
special enforcement regime which limits the possibility of obtaining prison leave, 
prison transfer to more favourable conditions and obtaining release on licence, 
which introduces additional extraordinary hardship compared to the ordinary 
prison system. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
34 In the abovementioned French judgments, the French courts investigated and 
judged all MSIG’s criminal activities in France as a leading member of ETA. 
35 Those activities consisted of being in charge of ETA’s ‘legal’ commands 
operating in Spain, in this case the ‘Katu’ command (design of ETA’s operations 
and provision of resources to carry out the attacks), with participation in various 
periods in the preparation of terrorist attacks which were carried out in Spain in 
the same time span as covered by the French judgments. The members of the 
commands were free to decide on the targets, using the materials received and 
reporting the outcome of the attack to ETA’s leadership afterwards. 
36 Those judgments gave rise to sentences totalling a term of 35 years of 
imprisonment, which were cumulated in 2014 into a single sentence of 20 years, 
with the four judgments having been regarded as penalising the same criminal 
activity. 
37 In handing down those judgments, the French courts had access to all of the ETA 
materials intercepted in France, which were used to accurately determine MSIG’s 
role in the terrorist organisation. Those investigation materials were then 
forwarded to the Spanish police in order to complete investigations into acts 
which had not yet been clarified, in which various members of ETA could have 
been involved. 
38 It is assumed that both the activities of the accused ruled on in the French 
judgments and the activities being tried in the present Spanish proceedings were 
carried out entirely in France, without MSIG having travelled to Spain at any 
time. 
39 Although the French judgments, due to their specific drafting technique, do not 
contain a list of the specific proven acts in the manner of the Spanish judgments, 
but refer to activities, they do rule on all the acts committed by MSIG in France, 
as a leader of ETA, carrying out activities with a view to the preparation, through 
various material actions, of a number of terrorist acts referred to in Article 421-1 
of the French Criminal Code. 
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40 In particular, according to the referring court, the judgment of the Tribunal de 
Grande Instance de Paris (Regional Court, Paris) of 13 February 2003 states that 
‘the accused participated, in 1997 and for a non-time-barred period, in a group 
formed or in an entity established for the purpose of preparing terrorist acts, 
within ETA-MILITAR’, and relates to her conduct during the time span in which 
the Oviedo attack took place. 
41 The referring court has already delivered, in 2021, a judgment on the Oviedo 
attack, in which it found that there was an international dimension to the res 
judicata principle, on the ground that the ne bis in idem principle applied across 
the various French convictions handed down against MSIG for her activities in 
France as a leader of ETA and her involvement in the preparation of attacks that 
overlap in time with the acts of the present case. 
42 However, the judgment of the referring court was overturned in 2023 by judgment 
No 238/2023 of the Second Chamber of the Tribunal Supremo (Supreme Court). 
43 The Supreme Court has essentially adopted the arguments of the public 
prosecutor, who maintains that ‘[France’s] conviction does not even cover, in a 
general or indeterminate manner, participation in specific terrorist acts’ and that, 
as a result, the ne bis in idem principle does not apply. The Supreme Court noted 
that it was not possible to hold that ‘that which was not dealt with by the courts 
has been ruled on’, held that the judgment of the referring court was vitiated by a 
failure to state reasons and ordered the referring court to deliver a new judgment. 
44 In its own words, the referring court is currently conducting criminal proceedings 
in order to deliver that new judgment. 
45 Although the majority of the Criminal Chamber of the referring court is convinced 
that the international ne bis in idem principle applies, that view is not shared by 
the Supreme Court, leading the referring court to have the doubts brought to the 
attention of the Court of Justice, in the light of the independent and European 
nature of the ne bis in idem principle and the usefulness in the present case of the 
viewpoint of what it calls European law. 
46 The referring court finds that the conceptual debate relating to the ne bis in idem 
principle at European level entails taking into account the identity of the material 
acts, which is understood to be the existence of a set of acts or factual 
circumstances which are inextricably linked together, irrespective of their legal 
classification or the legal interest protected. It refers to the judgments of the Court 
of Justice in Van Esbroeck (C-436/04), Van Straaten (C-150/05) and Kretzinger 
(C-288/05). 
47 However, the referring court finds that the problem before it is not easily resolved, 
due to the difficulties entailed in the very concept of an ‘act’ for the purposes of 
the assessment of applicability of the ne bis in idem principle in the different 
systems and the different way of setting out the ‘acts’ in the judicial decisions of 
the different Member States. 
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48 For the referring court, in the first place, two possible interpretations have 
traditionally been accepted in Comparative Law: on the one hand, it can be 
understood that ‘act’ refers to the historical event that occurred, disconnected from 
its legal qualification (naturalistic theory or ‘factual idem’), which is applicable in, 
for example, German law. On the other hand, ‘act’ can be understood as an 
expression of legal content, one that refers not to the historical natural act but to 
its inclusion in one of the existing types of crime (normative theory, ‘legal idem’ 
or ‘crime idem’), which is the interpretation applied in Spanish practice (Judgment 
No 18/2016 of the Supreme Court of 26 January 2016) and, seemingly to an even 
greater extent, in French practice. 
49 This conceptual divergence is important in this case: focusing more on ‘legal 
idem’ rather than ‘factual idem’ does not readily support the finding that the 
French judgments analysed include the act that is being tried in Spain. 
50 In the second place, there is a further difficulty, as mentioned, in that, in French 
practice, judgments often do not contain a narrative of the acts the way they do in 
Spanish practice, with the acts being described in a more general manner in 
French practice, by referring to the descriptions contained in criminal offence 
definitions. This does not allow for an easy comparison of material acts, even 
when dealing with all or some of the same acts. 
51 In the present case, it is clear that there is no alignment in the legal classifications 
of the same acts. French justice refers to the activities of MSIG as a leader of a 
terrorist organisation, with a view to preparing (multiple) terrorist acts, through 
one or more acts (although the terrorist acts were directly carried out by others). In 
contrast, the accusation relating to the same act in the Spanish courts attributes to 
MSIG a form of criminal participation equivalent to direct perpetration, while 
taking the view that the act was actually carried out by others. 
52 According to the referring court, despite that divergence in legal treatment, the 
two cases refer to the same acts. However, as regards a possible application of the 
international ne bis in idem principle and the application of EU law that poses the 
difficulties expressed, the referring court finds it necessary to submit its doubts to 
the Court of Justice. 
53 The referring court raises another issue which it considers to be equally relevant: 
even if it were to be confirmed that the ne bis in idem principle does apply due to 
the identity of the acts covered by the French judgments and the acts being tried in 
Spain, it has serious doubts as to whether that application of the ne bis in idem 
principle can be taken into account in its judgment, on account of the Spanish 
legislation. 
54 Similarly, another related difficulty may arise. The Court of Justice may find that 
there is no absolute identity of the acts in the present case. However, even if that 
were the case, the referring court considers that these are at least closely linked 
acts; therefore, the French judgments already delivered should be able to be taken 
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into account (for the purpose of determining the sentence to be imposed or in 
order to be able to assess, in the Spanish judgment, a legal situation in which the 
acts already ruled on may have an impact on those being ruled on, or on the 
limitation of the cumulative sentences to be effected at the judgment enforcement 
stage). However, the referring court has raised serious doubts about whether it 
would be possible for it to take into account, in such a case, the principle of 
proportionality of penalties. 
55 According to the information provided by the referring court, this is due to the fact 
that there is no provision in the Spanish legal system that allows other previous 
judgments in other Member States to be taken into account, regarding either 
identical acts or related or connected acts. 
56 Moreover, Organic Law 7/2014 (which transposes, inter alia, Council Framework 
Decision 2008/675/JHA) provides as follows: 
57 Article 14(2): ‘… final convictions handed down in other Member States shall 
have no effect on the following decisions and may not lead to their revocation or 
review: […] 
58 (b) convictions handed down in subsequent proceedings in Spain in 
connection with offences committed before the court of the other Member State 
handed down a conviction; 
59 (c) orders made or to be made pursuant to the third paragraph of Article 988 of 
the Ley de Enjuiciamiento Criminal (Law of Criminal Procedure) which sets 
limits on the execution of sentences, including those referred to in point (b).’ 
60 Single Additional Provision: ‘Convictions handed down by a court of a Member 
State of the European Union before 15 August 2010 shall in no circumstances be 
taken into account […].’ 
61 The referring court infers from the foregoing that the absolute nature of the 
wording of that provision: 
62 (1) Expressly prevents the French final judgments mentioned (for which the 
sentence has already been served) from being taken into account in judgments 
relating to the same acts that are to be handed down in Spain. That even prevents 
any assessment of the applicability of the ne bis in idem principle. The latter is 
also prevented, in relation to judgments delivered before 15 August 2010, by the 
Single Additional Provision of Organic Law 7/2014. 
63 (2) Of course, where it is found that the ne bis in idem principle is not 
applicable but that there is deemed to be overlapping conduct (because there is 
unity, a close relationship, a connection, and so forth, between the acts), it also 
prevents earlier French judgments from being recognised as having effect at the 
trial stage, for the purposes of the handing down of the judgment. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-802/23 
 
14  
64 (3) It also prevents earlier French judgments from being recognised as having 
any effect in relation to the subsequent enforcement of the judgment, since such 
French judgments are expressly excluded from the cumulation and fixing of a 
limit for the enforcement of sentences. 
65 As regards the matter of enforcement of the judgment, the referring court also 
points out that, as the aforementioned Spanish legislation currently stands, the 
consequence of double prosecution in France and Spain would be that MSIG, if 
she is ultimately convicted in Spain, in addition to serving the 20-year sentence in 
its entirety in France, would have to serve the 30-year sentence which would most 
probably be imposed on her in Spain, following its cumulation with other 
sentences imposed in Spain. This would mean a total minimum sentence to be 
executed of 50 years of actual imprisonment, as it is not possible to set a single 
cumulative sentence that is limited in time for cumulative convictions in France 
and cumulative convictions in Spain. For the referring court, such a situation 
would be seriously punitively disproportionate, which discriminates against MSIG 
as compared with persons convicted in a single country (for example, the direct 
perpetrators of the acts in Oviedo). 
66 In addition to that long period, the full and effective execution of the sentence 
imposed in Spain is ensured by the existence of special legislation in relation to 
terrorism, Organic Law 7/2003, which establishes conditions for and makes more 
unlikely the possibility of obtaining release on licence and transfer to a category 
three prison, as compared with the ordinary execution system, by introducing 
additional extraordinary hardship. 
67 Moreover, the sentence imposed on MSIG in Spain would also not be eligible for 
application of the review mechanisms that would be applicable to her if she were 
sentenced to life imprisonment subject to review. It follows that, de facto, the 
execution of MSIG’s sentences is even more onerous than life imprisonment 
subject to review. 
68 The referring court holds that such a prison situation exceeds any acceptable and 
civilised constitutional standard for the enforcement of custodial sentences and 
that it is in direct contradiction with the case-law of the European Court of Human 
Rights regarding custodial sentences and Article 3 of the European Convention on 
Human Rights. Such a prison situation would even considerably exceed the 
standards for reviewing prison sentences established by the judgments of the 
European Court of Human Rights in Vinter v. the United Kingdom, Magyar v. 
Hungary and Bancsók and Magyar v. Hungary.