Opinion of the Advocate General — ECLI:EU:C:2002:516
Date: 2002-09-19
Based on: Treaty on European Union (1992)
Subject matter: Provisional data;Justice and home affairs
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. European Union — Police and judicial cooperation in criminal matters — Protocol 
integrating the Schengen acquis — Convention implementing the Schengen Agree-
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SUMMARY — JOINED CASES C-187/01 AND C-385/01 
ment — Ne bis in idem principle — Scope — Decision of the Public Prosecutor 
definitively discontinuing criminal proceedings against an accused provided the accused 
fulfils certain obligations — Whether included 
(Convention implementing the Schengen Agreement, Arts 54, 55 and 58) 
2. European Union — Police and judicial cooperation in criminal matters — Protocol 
integrating the Schengen acquis — Convention implementing the Schengen Agree­
ment — Ne bis in idem principle — Application as regards a decision of the Public 
Prosecutor definitively discontinuing criminal proceedings against an accused provided 
the accused fulfils certain obligations — Scope limited to acts of public authorities, not 
affecting the victim's civil rights of action 
(Convention implementing the Schengen Agreement, Art. 54) 
1. The ne bis in idem principle, laid down 
in Article 54 of the Convention imple­
menting the Schengen Agreement, the 
objective of which is to ensure that no 
one is prosecuted on the same facts in 
several Member States on account of 
his having exercised his right to free­
dom of movement, also applies to 
procedures whereby further prosecu­
tion is barred, by which the Public 
Prosecutor of a Member State discon­
tinues criminal proceedings brought in 
that State, without the involvement of 
a court, once the accused has fulfilled 
certain obligations and, in particular, 
has paid a certain sum of money 
determined by the Public Prosecutor. 
On conclusion of such a procedure, the 
person concerned must be regarded as 
someone whose case has been 'finally 
disposed of' for the purposes of 
Article 54 aforesaid and, once the 
accused has complied with the obli­
gations imposed on him, the penalty 
entailed in the procedure must be 
regarded as having been 'enforced' for 
the purposes of Article 54. 
The effects of such a procedure must, 
in the absence of an express indication 
to the contrary in Article 54, be 
regarded as sufficient to allow the ne 
bis in idem principle laid down by that 
provision to apply, even though no 
court is involved in the procedure and 
the decision in which the procedure 
culminates does not take the form of a 
judicial decision. 
Furthermore, nowhere in Title VI of 
the Treaty on European Union relating 
to police and judicial cooperation in 
criminal matters, or in the Schengen 
Agreement or the Convention imple­
menting that agreement, is the appli­
cation of Article 54 made conditional 
upon harmonisation, or at the least 
approximation, of the criminal laws of 
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GÖZÜTOK AND BRÜGGE 
the Member States relating to pro­
cedures whereby further prosecution 
is barred. 
In those circumstances, the ne bis in 
idem principle necessarily implies that, 
regardless of the way in which the 
penalty is imposed, the Member States 
have mutual trust in their criminal 
justice systems and that each of them 
recognises the criminal law in force in 
the other Member States even when the 
outcome would be different if its own 
national law were applied. 
(see paras 27-33, operative part) 
2. The only effect of the ne bis in idem 
principle, as set out in Article 54 of the 
Conven t ion implemen t ing the 
Schengen Agreement, is to ensure that 
a person whose case has been finally 
disposed of in a Member State is not 
prosecuted again on the same facts in 
another Member State. The principle, 
when it applies to decisions definitively 
discontinuing prosecutions in a 
Member State, adopted without the 
involvement of a court and not taking 
the form of a judicial decision, does not 
preclude the victim or any other person 
harmed by the accused's conduct from 
bringing a civil action to seek com­
pensation for the damage suffered. 
(see para. 47) 
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