Case C-467/04: Reference for a preliminary ruling by the Audiencia Provincial de Málaga, Sección Primera, by order of that court of 8 July 2004 in the appeal brought by G. Francesco Gasparini and Others against the order of 21 November 2003 commencing summary proceedings
Date: 2005-01-08
Institutions: Court of Justice
Subjects: Schengen Agreement, criminal court, free circulation, illicit trade, interpretation of the law, judicial cooperation in criminal matters in the EU, limitation of legal proceedings, offence

8.1.2005

EN

Official Journal of the European Union

C 6/31

Pleas in law and main arguments

The period prescribed for transposition expired on 2 December
2002.

(1) OJ L 149 of 2.6.2001, p. 34.

Reference for a preliminary ruling by the Audiencia
Provincial de Málaga, Sección Primera, by order of that
court of 8 July 2004 in the appeal brought by G. Francesco
Gasparini and Others against the order of 21 November
2003 commencing summary proceedings

(Case C-467/04)

(2005/C 6/57)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Audiencia Provincial de
Málaga, Sección Primera, (Provincial Court, Málaga), of 8 July
2004, which was
the Court Registry on 4
November 2004, for a preliminary ruling in the appeal brought
by G. Francesco Gasparini and Others against the order of 21
November 2003 commencing summary proceedings.

received at

The Audiencia Provincial de Málaga asks the Court of Justice to
give a preliminary ruling on the following question:

— As regards

res judicata in criminal proceedings

('cosa
this court requests an interpretation of

juzgada penal'):
Article 54 of the Schengen Implementing Convention:

1. Is a finding by the courts of one Member State that an
offence is time-barred binding on the courts of the other
Member States?

2. Does the acquittal of a defendant on account of the fact
that prosecution of the offence is time-barred benefit, by
extension, persons being prosecuted in another Member
State where the facts are identical? In other words, can
persons being prosecuted in another Member State on
the basis of the same facts also benefit from a limitation
period?

3. If the criminal courts of one Member State declare that
the extra-Community nature of goods has not been
established for the purposes of an offence of smuggling
and acquit the defendant, may the courts of another
Member State broaden the investigation in order to
prove that the introduction of goods without payment
of customs duties was from a non-Member State?

— As regards the notion of goods in free circulation, this
court requests an interpretation of Article 24 EC as to
whether:

‘Where a criminal court in a Member State has declared
either that it is not established that goods have been unlaw-
fully introduced into the Community or that the offence of
smuggling is time-barred’:

(a) can the goods be regarded as being in free circulation

in the rest of the Community?

(b) can the sale of the goods in another Member State
following their
importation into the Member State
where the acquittal was given be regarded as indepen-
dent conduct which may therefore be punished or,
forming an integral part of the
instead, as conduct
importation?

Action brought on 4 November 2004 by Commission of
the European Communities against Italian Republic

(Case C-472/04)

(2005/C 6/58)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 4 November
2004 by the Commission of the European Communities, repre-
sented by Knut Simonsson and Claudio Loggi, acting as Agents,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by failing to adopt (all) the laws, regulations
and administrative provisions needed to comply with Direc-
tive 2001/96/EC (1)of the European Parliament and of the
Council of 4 December 2001 establishing harmonised
requirements and procedures for the safe loading and
unloading of bulk carriers, and by failing in any event to
give the Commission notice thereof, the Italian Republic
has failed to fulfil its obligations under Article 17 of that
directive;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition expired on 5 August
2003.

(1) OJ L 13 of 16.1.2002, p. 9.