Opinion of the Advocate General — ECLI:EU:C:2006:760
Date: 2006-12-05
Language of the case: Dutch
Based on: Treaty on European Union (1992)
Subject matter: Justice and home affairs;Closer cooperation
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Ne bis in idem principle (Convention implementing the Schengen Agreement, Art. 54) 2. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Ne bis in idem principle (Convention implementing the Schengen Agreement, Arts 58 and 71) 1. Article 54 of the Convention implementing the Schengen Agreement 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; – different acts consisting, in particular, first, in holding in one Contracting State the proceeds of drug trafficking and, second, in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘the same acts’ within the meaning of that article merely because the competent national court finds that those acts are linked together by the same criminal intention; – it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible, in the light of the said relevant abovementioned criterion, to find that they are ‘the same acts’ within the meaning of the said Article 54. (see para. 36, operative part) 2. It is apparent from Article 58 of the Convention implementing the Schengen Agreement (CISA) that the Contracting States are entitled to apply broader national provisions on the ne bis in idem principle with regard to judicial decisions taken abroad. However, that article does not in any way authorise a Contracting State to refrain from trying a drugs offence, in breach of its obligations under Article 71 of the CISA, read in conjunction with Article 36 of the Single Convention on Narcotic Drugs, concluded in New York on 30 March 1961 under the aegis of the United Nations, on the sole ground that the person charged has already been convicted in another Contracting State in respect of other offences motivated by the same criminal intention. On the other hand, those provisions do not mean that in national law the competent courts before which a second set of proceedings is brought are precluded from taking account, when fixing the sentence, of penalties which may have already been imposed in the first set of proceedings. (see paras 33-35)