Opinion of the Advocate General — ECLI:EU:C:2010:501
Date: 2010-09-07
Language of the case: German
Based on: Treaty on European Union (1992)
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. European Union – Police and judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant (Convention implementing the Schengen Agreement, Art. 54; Council Framework Decision 2002/584, Art. 3(2)) 2. European Union – Police and judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant (Council Framework Decision 2002/584, Art. 3(2)) 1. For the purposes of the issue and execution of a European arrest warrant, the concept of ‘same acts’ in Article 3(2) of Council Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States constitutes an autonomous concept of European Union law. In addition, that concept of the ‘same acts’ also appears in Article 54 of the Convention implementing the Schengen Agreement and has, in that context, been interpreted as referring only to the nature of the acts, encompassing a set of concrete circumstances inextricably linked together, irrespective of the legal classification given to them or the legal interest protected. In view of the shared objective of Article 54 of the Schengen Convention and Article 3(2) of the Framework Decision, which is to ensure that a person is not prosecuted or tried more than once in respect of the same acts, an interpretation of that concept given in the context of the Schengen Implementing Convention is equally valid for the purposes of Framework Decision 2002/584. (see paras 39-40, 51, operative part) 2. In circumstances in which, in response to a request for information within the meaning of Article 15(2) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States made by the executing judicial authority, the issuing judicial authority, applying its national law and in compliance with the requirements deriving from the concept of ‘same acts’ as set forth in Article 3(2) of the Framework Decision, expressly stated that the earlier judgment delivered under its legal system did not constitute a final judgment covering the acts referred to in the arrest warrant issued by it and therefore did not preclude the criminal proceedings referred to in that arrest warrant, the executing judicial authority has no reason to apply, in connection with such a judgment, the ground for mandatory non-execution provided for in Article 3(2) of the Framework Decision. A requested person is considered to have been finally judged in respect of the same acts within the meaning of Article 3(2) of Framework Decision 2002/584 when, following criminal proceedings, further prosecution is definitively barred or when the judicial authorities of a Member State have adopted a decision by which the accused is finally acquitted in respect of the alleged acts. Whether a person has been ‘finally’ judged for the purposes of Article 3(2) of the Framework Decision is determined by the law of the Member State in which judgment was delivered. Thus, a decision which, under the law of the Member State which instituted criminal proceedings against a person, does not definitively bar further prosecution at national level in respect of certain acts cannot, in principle, constitute a procedural obstacle to the possible opening or continuation of criminal proceedings in respect of the same acts against that person in one of the Member States of the European Union. That is the case, in particular, where the issuing judicial authority states expressly that, under its national law, the accused had been finally judged in respect of the individual acts consisting in illegal possession of drugs but that the criminal proceedings covered by the arrest warrant were based on different acts related to organised crime offences and other offences of illegal possession of drugs intended for resale, which were not covered by its earlier judgment, and that is so even if the investigating authorities already held certain factual information concerning those offences. When it is clear from the reply given by the issuing judicial authority that the first judgment delivered by a national court cannot be regarded as having definitively barred further prosecution at national level in respect of the acts referred to in the arrest warrant issued by it, the executing judicial authority was obliged to draw all the appropriate conclusions from the assessments made by the issuing judicial authority in its response. (see paras 45-47, 49-51, operative part)