CELEX: 62020CO0089
Language: en
Date: 2020-10-01 00:00:00
Title: Order of the Court (Seventh Chamber) of 1 October 2020.#Reference for a preliminary ruling – Article 53(2) and Article 94 of the Rules of Procedure of the Court of Justice – Convention implementing the Schengen Agreement – Article 54 – Ne bis in idem principle – Scope – Identity of the material facts – Absence of sufficient information concerning the factual background and the reasons justifying the need for an answer to the question referred for a preliminary ruling – Manifest inadmissibility.#Case C-89/20.

ORDER OF THE COURT (Seventh Chamber)
   1 October 2020 (
         *1
      )
   (Reference for a preliminary ruling – Article 53(2) and Article 94 of the Rules of Procedure of the Court of Justice – Convention implementing the Schengen Agreement – Article 54 – Ne bis in idem principle – Scope – Identity of the material facts – Absence of sufficient information concerning the factual background and the reasons justifying the need for an answer to the question referred for a preliminary ruling – Manifest inadmissibility)
   In Case C‑89/20,
   REQUEST for a preliminary ruling under Article 267 TFEU from the Županijski sud u Puli (Pula County Court, Croatia), made by decision of 17 February 2020, received at the Court on 20 February 2020, in the criminal proceedings against
   
      GR,
   
   
      HS,
   
   
      IT,
   
   
      INTER CONSULTING d.o.o., in liquidation,
   THE COURT (Seventh Chamber),
   composed of P.G. Xuereb (Rapporteur), President of the Chamber, T. von Danwitz and A. Kumin, Judges,
   Advocate General: J. Richard de la Tour,
   Registrar: A. Calot Escobar,
   having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 53(2) of the Rules of Procedure of the Court of Justice,
   makes the following
   
      Order
   
   
            1
         
         
            This request for a preliminary ruling concerns the interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19), signed in Schengen on 19 June 1990, which entered into force on 26 March 1995 (‘the CISA’).
         
      
            2
         
         
            The application was submitted in the context of criminal proceedings against GR, HS, IT and Inter Consulting d.o.o., in liquidation, who allegedly committed, or incited or aided the commission of, in Croatia, acts classified as breach of trust in commercial transactions.
         
      
      Legal context
   
   
      
         European Union law
      
   
   
      The Act of Accession
   
   
            3
         
         
            Article 4(1) of the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (OJ 2012 L 112, p. 21; ‘the Act of Accession’) states:
            ‘The provisions of the Schengen acquis as referred to in the Protocol on the Schengen acquis integrated into the framework of the European Union …, annexed to the TEU and the TFEU, and the acts building upon it or otherwise related to it, listed in Annex II, as well as any further such acts adopted before the date of accession, shall be binding on, and applicable in, Croatia from the date of accession.’
         
      
            4
         
         
            Annex II to the Act of Accession is entitled ‘List of provisions of the Schengen acquis as integrated into the framework of the European Union and the acts building upon it or otherwise related to it, to be binding on, and applicable in, the Republic of Croatia as of accession (referred to in Article 4(1) of the Act of Accession)’. In this respect, point 2 of that Annex refers to ‘the following provisions of [the CISA], its related Final Act and Joint Declarations …, as amended by certain of the acts listed in paragraph 8 of this Annex:
            … Articles 54 to 58 …’
         
      
      The CISA
   
   
            5
         
         
            Article 54 of the CISA is contained in Chapter 3 thereof, entitled ‘Application of the ne bis in idem principle’. That article provides:
            ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’
         
      
      
         Croatian law
      
   
   
            6
         
         
            Article 31(2) of the Constitution of the Republic of Croatia is worded as follows:
            ‘No person may be tried anew or sentenced in criminal proceedings for an act for which such person has already been acquitted or sentenced by a final court judgment in accordance with law.’
         
      
            7
         
         
            Article 246(1) and (2) of the Kazneni zakon (Criminal Code), in the version applicable to the facts in the main proceedings, makes breach of trust in commercial transactions a criminal offence of an economic nature.
         
      
      The dispute in the main proceedings and the question referred for a preliminary ruling
   
   
            8
         
         
            At the material time in the main proceedings, GR was a member of the management board of Skiper Hoteli d.o.o. and Interco Umag d.o.o., Umag (‘Interco’), which later became Inter Consulting. He was also a partner at Rezidencija Skiper d.o.o. and owned shares in Alterius d.o.o. HS, for his part, was the president of Interco’s management board and also owned shares in Alterius, whereas IT carried out valuations of immovable property.
         
      
            9
         
         
            On 28 September 2015, the Županijsko državno odvjetništvo u Puli (Pula public prosecutor’s office, Croatia) (‘the Pula Public Prosecutor’s Office’) adopted an indictment against GR, HS, IT and Interco. By that act, it accused, first, GR and Interco, of breach of trust in commercial transactions within the meaning of Article 246(1) and (2) of the Criminal Code, in the version applicable to the facts in the main proceedings, and, second, HS and IT of having incited and aided the commission of that offence, respectively.
         
      
            10
         
         
            It is apparent from that indictment, as reproduced in the reference for a preliminary ruling that, between December 2004 and June 2006, GR and HS worked together so that Interco purchased immovable property located on several neighbouring plots of land in the municipality of Savudrija (Croatia), the location envisaged by Skiper Hoteli for a real estate project for tourist accommodation. It is alleged that those persons subsequently ensured that Skiper Hoteli bought that immovable property at a price significantly above the market price, so that Interco benefited from an unlawful advantage at the expense of Skiper Hoteli.
         
      
            11
         
         
            That indictment further states that, between November 2004 and November 2005, GR and HS also acted with the aim of GR, and other companies represented by him, selling to Skiper Hoteli, at a price significantly higher than their real value, the shares held by GR and those other companies in Alterius, since the latter’s initial asset contribution consisted of immovable property built on neighbouring plots of land within the territory of the municipality of Savudrija. To that end, GR and HS carried out, through Rezidencija Skiper and with the complicity of IT, a valuation which overestimated the value of the immovable property concerned.
         
      
            12
         
         
            The indictment of the Pula Public Prosecutor’s Office was upheld by a decision of 5 May 2016 of the Criminal Chamber of the referring court, the Županijski sud u Puli (Pula County Court, Croatia).
         
      
            13
         
         
            At the preliminary hearing before the referring court, GR and HS requested the stay of the criminal proceedings on the ground that the ne bis in idem principle precludes their prosecution for the charges brought against them before that court. In that regard, they argued that they had already been prosecuted for the same acts in Austria and that those criminal proceedings had been closed by a final judgment.
         
      
            14
         
         
            In that context, the referring court states that the Austrian criminal authorities had indeed brought proceedings against two former members of the management board of Hypo Alpe Adria Bank International AG (‘Hypo Alpe Adria Bank’), a banking institution situated in Austria, and against GR and HS as accomplices of those two former members. According to the indictment drawn up by the Staatsanwaltschaft Klagenfurt (Klagenfurt Public Prosecutor’s Office, Austria), brought before the Landesgericht Klagenfurt (Klagenfurt Regional Court, Austria) on 9 January 2015, those former members of the management board were accused of breach of trust within the meaning of the Strafgesetzbuch (Criminal Code) for having approved, between September 2002 and July 2005, the grant of loans to Rezidencija Skiper and Skiper Hoteli, in a total amount of at least EUR 105 million, without having either complied with the requirements relating to the provision of sufficient own funds and the monitoring of the use of the funds or taken into account, first, the lack of documentation relating to the implementation of the projects justifying the grant of those loans and, second, the inadequacy of both the payment guarantee instruments and the repayment capacity of the companies concerned. GR and HS were also accused of having incited, by having sought the grant of those loans, those former members to commit the alleged breach of trust or of having aided in its commission.
         
      
            15
         
         
            Following a request from HS, the Klagenfurt Public Prosecutor’s Office further confirmed, by letter of 16 July 2015 addressed to his lawyers, that, as regards the proceedings against GR and HS, the indictment it had drawn up also covered the sale of immovable property to Skiper Hoteli through Alterius at an excessively high price and the suspicious payment of project management fees.
         
      
            16
         
         
            By judgment of the Landesgericht Klagenfurt (Klagenfurt Regional Court, Austria) of 3 November 2016, the two former members of the management board of Hypo Alpe Adria Bank were found guilty in part of the acts of which they were accused and convicted for having approved one of the loans granted to Skiper Hoteli, in an amount exceeding EUR 70 million. Conversely, GR and HS were acquitted in relation to the charge alleging that they had incited or contributed to the commission of the criminal offences of which the former members of the management board of Hypo Alpe Adria Bank were accused, respectively. That judgment became final following the dismissal, on 4 March 2019, of the appeal brought against it before the Oberster Gerichtshof (Supreme Court, Austria).
         
      
            17
         
         
            In addition, the referring court states that the Pula Public Prosecutor’s Office, before which other criminal offences with a connection to Hypo Alpe Adria Bank were brought, had, on several occasions in the course of 2014, asked the Klagenfurt Public Prosecutor’s Office to check whether it was conducting proceedings in Austria in parallel to those brought in Croatia. In the light of the information provided by the Klagenfurt Public Prosecutor’s Office, which is identical, in substance, to that subsequently set out in the operative part of the indictment of the Klagenfurt Public Prosecutor’s Office referred to in paragraph 14 of the present order, the Pula Public Prosecutor’s Office took the view that the facts examined by the Klagenfurt Public Prosecutor’s Office and the Landesgericht Klagenfurt (Klagenfurt Regional Court) were not legally relevant for the purposes of the classification of the criminal offence which is the subject of the criminal proceedings in the main proceedings, had no connection with the facts described in its indictment of 28 September 2015 and, accordingly, were not to be regarded as having already been tried.
         
      
            18
         
         
            It is against this background that the Županijski sud u Puli (Pula County Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
            ‘Does an infringement of the ne bis in idem principle concern only the facts which have a bearing on the outcome of the case set out in the operative part of the indictment of the Pula Public Prosecutor’s Office of 28 September 2015 as opposed to the facts which have a bearing on the outcome of the case referred to in the operative part of the indictment of the Klagenfurt Public Prosecutor’s Office of9 January 2015 and in the operative part of the judgment of the Landesgericht Klagenfurt (Klagenfurt Regional Court) of 3 November 2016, upheld by the judgment of the Oberster Gerichtshof (Supreme Court) of 4 March 2019, or does such an infringement also concern another finding relating to:
            
                     –
                  
                  
                     the facts set out in the grounds of the judgment of the Landesgericht Klagenfurt (Klagenfurt Regional Court) of 3 November 2016, upheld by the judgment of the Oberster Gerichtshof (Supreme Court);
                  
               
                     –
                  
                  
                     the facts which were the subject of the preliminary investigation conducted by the Klagenfurt Public Prosecutor’s Office against several persons, inter alia against GR and HS, and which were subsequently omitted from the indictment by the Klagenfurt Public Prosecutor’s Office of 9 January 2015?’
                  
               
      
      Admissibility of the request for a preliminary ruling
   
   
            19
         
         
            Under Article 53(2) of the Rules of Procedure, where a request for a preliminary ruling is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
         
      
            20
         
         
            It is appropriate to apply that provision in the present case.
         
      
            21
         
         
            For that purpose, it must be recalled that, according to settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 44 and the case-law cited).
         
      
            22
         
         
            In the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 4 June 2020, Kancelaria Medius, C‑495/19, EU:C:2020:431, paragraph 21 and the case-law cited).
         
      
            23
         
         
            It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer to the questions submitted to it (judgment of 4 June 2020, Kancelaria Medius, C‑495/19, EU:C:2020:431, paragraph 22 and the case-law cited).
         
      
            24
         
         
            Thus, since the order for reference constitutes the basis for the procedure adopted before the Court, it is essential that the national court should, in that decision, expand on its definition of the factual and legislative context of the dispute in the main proceedings and give at the very least some explanation of the reasons for the choice of the EU law provisions which it seeks to have interpreted and of the link it establishes between those provisions and the national law applicable to the proceedings pending before it (judgment of 4 June 2020, C.F. (Contrôle fiscal), C‑430/19, EU:C:2020:429, paragraph 23 and the case-law cited).
         
      
            25
         
         
            Those cumulative requirements concerning the content of a request for a preliminary ruling are expressly set out in Article 94 of the Rules of Procedure of the Court, of which the national court should be aware and which it is bound to observe scrupulously (judgment of 7 November 2019, UNESA and Others, C‑80/18 to C‑83/18, EU:C:2019:934, paragraph 33 and the case-law cited). Those requirements are also set out, inter alia, in the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1).
         
      
            26
         
         
            Finally, it should be borne in mind that the information in orders for reference not only enables the Court to give useful answers but also to give the governments of the Member States and other interested persons the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is the Court’s duty to ensure that that opportunity is safeguarded, given that, under that provision, only the orders for reference are notified to the interested parties (see, inter alia, judgments of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 25, and order of 15 May 2019, MC, C‑827/18, not published, EU:C:2019:416, paragraph 35).
         
      
            27
         
         
            In the present case, it must be noted that the request for a preliminary ruling clearly does not satisfy the requirements referred to in paragraphs 24 and 25 of the present order.
         
      
            28
         
         
            By its question, the referring court asks, in substance, whether Article 54 of the CISA must be interpreted as meaning that, in order to determine whether the ne bis in idem principle is infringed by reason of the identity of the material facts in criminal proceedings brought in two Member States, the competent authorities of the Member State in which the criminal proceedings are still ongoing must take into account not only the facts referred to in the indictment drawn up by the competent authorities of the other Member State and in the operative part of the final judgment delivered in that Member State, but also those referred to in the grounds of that judgment and those which were the subject of the preliminary investigation but which were not included in the indictment.
         
      
            29
         
         
            In order to answer that question, it should be recalled that the relevant criterion for the purpose of determining whether Article 54 of the CISA is intended to apply is that of the identity of the material facts, understood in the sense that the material facts underlying the criminal proceedings brought in the two Member States concerned must constitute a set of facts which are inextricably linked together in time, in space and by their subject matter (see, to that effect, inter alia, judgment of 18 July 2007, Kraaijenbrink, C‑367/05, EU:C:2007:444, paragraphs 26 to 28).
         
      
            30
         
         
            In order for the Court to be able to give a useful answer to the question referred, it is necessary for the factual circumstances underlying the criminal proceedings brought in Croatia and Austria respectively, and the reasons why the referring court might be led to consider that those circumstances are inextricably linked, to be set out with a sufficient degree of clarity and precision in the request for a preliminary ruling; this is without prejudice to the fact that, as is clear from the Court’s case-law referred to in the previous paragraph, it is for the referring court alone, rather than the Court, to determine whether or not the material facts are identical.
         
      
            31
         
         
            In the present case, first, the referring court fails to indicate, even in a summary but precise way, the link that binds the facts examined in those respective criminal proceedings, the facts referred to in the grounds of the final judgment delivered on 3 November 2016 by the Landesgericht Klagenfurt (Klagenfurt Regional Court), the facts which were examined by the Klagenfurt Public Prosecutor’s Office but which were not formally included in the indictment it drew up and the reasons why the Pula Public Prosecutor’s Office had investigated offences connected to those which had already been the subject of criminal proceedings in Austria. Second, that court merely reproduces the content of the indictments drawn up by those two national public prosecutors’ offices and the operative part of the judgment of the Landesgericht Klagenfurt (Klagenfurt Regional Court), without explaining the facts in a way that gives a logical and comprehensible overview of them. It follows that the referring court has not set out with a sufficient degree of clarity and precision all the relevant facts or all the facts on which the question is based and has thus failed to satisfy the requirement laid down in Article 94(a) of the Rules of Procedure.
         
      
            32
         
         
            Moreover, by merely summarising GR and HS’s claims, based on an alleged infringement of the ne bis in idem principle without explaining, in the light of the documents relied on by those persons, to what extent it could possibly be found that the material facts are identical and by failing, moreover, to explain the tenor of the question referred, both in law and in the light of the relevant facts, as well as the doubts which it has as to the application of the principle of ne bis in idem in relation to the criterion of the identity of the facts and, where appropriate, to the case-law of the Court of Justice on the matter, the referring court has not set out with sufficient clarity and precision the reasons which led it to refer that question and has therefore failed to satisfy the requirement laid down in Article 94(c) of the Rules of Procedure.
         
      
            33
         
         
            Having regard to all of the foregoing considerations, it must be held that, pursuant to Article 53(2) of the Rules of Procedure, the present request for a preliminary ruling is manifestly inadmissible.
         
      
            34
         
         
            That being so, it should be borne in mind that the referring court retains the right to submit a new request for a preliminary ruling when it is in a position to provide the Court with all the information enabling the Court to give a ruling on the question referred (see, to that effect, orders of 23 May 2019, Trapeza Peiraios, C‑105/19, not published, EU:C:2019:452, paragraph 17, and of 11 July 2019, Jadransko osiguranje, C‑651/18, not published, EU:C:2019:613, paragraph 31).
         
      
      Costs
   
   
            35
         
         
            Since these proceedings are, for the parties in the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court.
         
       
         
            On those grounds, the Court (Seventh Chamber) hereby orders:
         
       
            
               
                  The request for a preliminary ruling made by the Županijski sud u Puli (Pula County Court, Croatia), made by decision of 17 February 2020, is manifestly inadmissible.
               
            
          
            
               
                  [Signatures]
               
            
         (
         *1
      )	Language of the case: Croatian.