Opinion of the Advocate General — ECLI:EU:C:2006:759
Date: 2006-12-05
Language of the case: German
Based on: Treaty on European Union (1992)
Subject matter: Justice and home affairs;Closer cooperation
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 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, Art. 54) 3. 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) 4. 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; Council Framework Decision 2002/584, Art. 3(2)) 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; – acts consisting in receiving contraband foreign tobacco in one Contracting State and of importing that tobacco into another Contracting State and being in possession of it there, characterised by the fact that the defendant, who was prosecuted in two Contracting States, had intended from the outset to transport the tobacco, after first taking possession of it, to a final destination, passing through several Contracting States in the process, constitute conduct which may be covered by the notion of ‘same acts’ within the meaning of Article 54. It is for the competent national courts to make the final assessment in that respect. (see para. 37, operative part 1) 2. For the purposes of Article 54 of the Convention implementing the Schengen Agreement (CISA), a penalty imposed by a court of a Contracting State ‘has been enforced’ or is ‘actually in the process of being enforced’ if the defendant has been given a suspended custodial sentence. A suspended custodial sentence, which penalises the unlawful conduct of a convicted person, constitutes a penalty within the meaning of Article 54 of the CISA. That penalty must be regarded as ‘actually in the process of being enforced’ as soon as the sentence has become enforceable and during the probation period. Subsequently, once the probation period has come to an end, the penalty must be regarded as ‘having been enforced’ within the meaning of that provision. (see paras 42, 44, operative part 2) 3. For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting State is not to be regarded as ‘having been enforced’ or ‘actually in the process of being enforced’ where the defendant was for a short time taken into police custody and/or held on remand pending trial and that detention would count towards any subsequent enforcement of the custodial sentence under the law of the State in which judgment was given. The purpose of detention on remand pending trial is very different from that underlying the enforcement condition laid down in Article 54 of the CISA. Although the purpose of the first is of a preventative nature, that of the second is to avoid a situation in which a person whose trial has been finally disposed of in the first State can no longer be prosecuted for the same acts and therefore ultimately remains unpunished if the State in which sentence was first passed did not enforce the sentence imposed. (see paras 51-52, operative part 3) 4. The fact that a Member State in which a person has been sentenced by a final and binding judgment under its national law may issue a European arrest warrant for the arrest of that person in order to enforce the sentence under Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States cannot affect the interpretation of the notion of ‘enforcement’ within the meaning of Article 54 of the CISA. That enforcement condition could not, by definition, be satisfied where a European arrest warrant were to be issued after trial and conviction in a first Member State precisely in order to ensure the execution of a custodial sentence which had not yet been enforced within the meaning of Article 54 of the CISA. That is confirmed by the Framework Decision itself which, in Article 3(2), requires the Member State addressed to refuse to execute a European arrest warrant if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts and that, where there has been sentence, the enforcement condition has been satisfied. That outcome is supported by the fact that the interpretation of Article 54 of the CISA cannot depend on the provisions of the Framework Decision without giving rise to legal uncertainty that would result, first, from the fact that the Member States bound by the Framework Decision are not all bound by the CISA which, moreover, applies to certain non-Member States and, second, from the fact that the scope of the European arrest warrant is limited, which is not case in respect of Article 54 of the CISA, which applies to all offences punished by the States which have acceded to that agreement. Accordingly, the fact that a final and binding custodial sentence could possibly be enforced in the sentencing State following the surrender by another State of the convicted person cannot affect the interpretation of the notion of ‘enforcement’ within the meaning of Article 54 of the CISA. (see paras 60-64, operative part 4)