Case C-436/04: Judgment of the Court (Second Chamber) of  9 March 2006  (reference for a preliminary ruling from the Hof van Cassatie van België) — Criminal proceedings against Léopold Henri van Esbroeck (Convention implementing the Schengen Agreement — Articles 54 and 71 — Ne bis in idem principle — Application ratione temporis — Concept of  the same acts  — Import and export of narcotic drugs subject to legal proceedings in different Contracting States)
Date: 2006-06-03
Institutions: Court of Justice
Subjects: Belgium, Norway, Schengen Agreement, export, import, interpretation of the law, judicial cooperation in criminal matters in the EU, legal process, narcotic, psychotropic substance

C 131/18

EN

Official Journal of the European Union

3.6.2006

Operative part of the judgment

Article 3(1)(b) and (c) of First Council Directive 89/104/EEC of 21
the Member States
December 1988 to approximate the laws of
relating to trade marks does not preclude the registration in a
Member State, as a national trade mark, of a term borrowed from the
language of another Member State in which it is devoid of distinctive
character or descriptive of the goods or services in respect of which
registration is sought, unless the relevant parties in the Member State
in which registration is sought are capable of identifying the meaning
of the term.

(1) OJ C 300, 04.12.2004.

Judgment of the Court (Second Chamber) of 9 March 2006
(reference for a preliminary ruling from the Hof van
Cassatie van België) — Criminal proceedings against
Léopold Henri van Esbroeck

(Case C-436/04) (1)

(Convention implementing the Schengen Agreement — Arti-
cles 54 and 71 — Ne bis in idem principle — Application
ratione temporis — Concept of ‘the same acts’ — Import and
to legal proceedings in
export of narcotic drugs subject

different Contracting States)

(2006/C 131/31)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Party in the main proceedings

Léopold Henri van Esbroeck

Re:

Reference for a preliminary ruling — Hof van Cassatie van
België — Interpretation of Arts. 54 and 71 of the Convention
implementing the Schengen Agreement — Ne bis in idem prin-
ciple — Person prosecuted in a Member State for illegally
exporting drugs after having been prosecuted and convicted in
Norway for illegal importing drugs before the Schengen Agree-
ment was applicable to that State

Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at
their common
borders, signed on 19 June 1990 in Schengen, must be applied to
criminal proceedings brought in a Contracting State for acts for
which a person has already been convicted in another Contracting
State even though the Convention was not yet in force in the latter
State at the time at which that person was convicted, in so far as
the Convention was in force in the Contracting States in question
at the time of the assessment, by the court before which the second
proceedings were brought, of the conditions of applicability of the
ne bis in idem principle.

2. Article 54 of the Convention 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 exis-
tence of a set of facts which are inextricably linked together,
irrespective of the legal classification given to them or the legal
interest protected;

— punishable acts consisting of exporting and importing the
same narcotic drugs and which are prosecuted in different
Contracting States to the Convention are, in principle, to be
regarded as ‘the same acts’ for the purposes of Article 54, the
definitive assessment
the
competent national courts.

in that respect being the task of

(1) OJ C 300 of 4.12.2004.

Judgment of the Court (Third Chamber) of 23 February
2006 (reference for a preliminary ruling from the Landes-
gericht Klagenfurt) — A-Punkt Schmuckhandels GmbH v
Claudia Schmidt

(Case C-441/04) (1)

(Free movement of goods — Articles 28 EC and 30 EC —
Measures having equivalent effect — Doorstep selling —
Sale of silver jewellery — Prohibition)

(2006/C 131/32)

Language of the case: German

Referring court

Landesgericht Klagenfurt (Austria)

Operative part of the judgment

Parties to the main proceedings

1. The ne bis in idem principle, enshrined in Article 54 of

the
Convention implementing the Schengen Agreement of 14 June
the Benelux
1985 between the Governments of

the States of

Applicant: A-Punkt Schmuckhandels GmbH

Defendant: Claudia Schmidt