WRITTEN QUESTION P-1476/01

by Baroness Sarah Ludford (ELDR) to the Commission

(11 May 2001)

Subject: Nec bis in idem double jeopardy rule

Is the Commission aware that proceedings brought in the English High Court by the Kuwait Investment Office through their Spanish holding company Grupo Torra were dismissed in 1999 by an English judge after trial against my constituent, Carin Parker, and were not appealed against, and that identical proceedings are being pursued by the Kuwait Investment Office in Spain?

Has the European Commission considered the problems of double jeopardy in cases where international agencies by virtue of their financial resources can abuse national legal systems in order to obtain a legal result which is most favourable to them?

Answer given by Mr Vitorino on behalf of the Commission

(21 June 2001)

The question asked leads to different solution depending on whether it is considered from a civil or from a criminal point of view.

From the criminal point of view, it would first be necessary to examine whether the criminal pursuits issued in the two Member States concern exactly the same case, in all of their components. It is very possible that the two pursuits concern similar activities, taking place in two Member States at the same time but with no real connections between their author. In this case, it is possible that pursuits would take place in both Member States, but on different offences. If the offence is effectively the same, it will be up to the person concerned to invoke the rule of non bis in idem before the pursuing authority or before the court of the second Member State.

In order to escape these kind of difficulties, the Commission will issue a Communication before the end of this year, on the rules of jurisdiction in criminal matters within the Union. At the same time, it will be the responsibility of Eurojust, in its area of competence, to avoid that such situations of double pursuits will occur.

As far as the question is related to civil and commercial proceedings, the crucial issue at stake is the force of law that a judgment delivered in one Member State carries in another Member State.

At present, the legal issues raised are dealt with by the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (the Brussels I Regulation that enters into force on 1 March 2002 is identical in substance in that respect). Article 26 of the Brussels Convention reads:

A judgment given in a Contracting State shall be recognized in the other Contracting States without any special procedure being required.

Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in sections 2 and 3 of this Title, apply for a decision that the judgment be recognized.

If the outcome of proceedings in a court in a Contracting State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.

Since both the United Kingdom and Spain are Contracting States, the judgment delivered in the United Kingdom should be recognized in Spain (unless one of the exceptions laid down in Article 27 of the Convention applies) with the obvious implications for the current proceedings in Spain. The case would have to be dismissed if the same cause of action between the same parties has already been finally decided by the British courts (not knowing the particulars of the case it is, of course, not possible to assess if the subject matter of procedures in Spain and the United Kingdom is identical). The defendant can bring up the final decision by the courts of another Contracting State as a defense in these new proceedings.