Criminal proceedings against Leopold Henri Van Esbroeck.
Date: 2006-03-09
24. In those circumstances, the answer to the first question must be that the ne bis in idem  principle, enshrined in Article 54 of the CISA, 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 CISA was not yet in force in the latter State at the time at which that person was convicted, in so far as the CISA 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.
The second question
27. In the first place, however, the wording of Article 54 of the CISA, ‘the same acts’, shows that that provision refers only to the nature of the acts in dispute and not to their legal classification.
29. In the second place, it should be pointed out that, as the Court found in Joined Cases C-187/01 and C-385/01 Gözütok and Brügge  [2003] ECR I-1345, paragraph 32, nowhere in Title VI of the Treaty on European Union relating to police and judicial cooperation in criminal matters (Articles 34 and 31 of which were stated to be the legal basis for Articles 54 to 58 of the CISA), or in the Schengen Agreement or the CISA itself, is the application of Article 54 of the CISA made conditional upon harmonisation, or at the least approximation, of the criminal laws of the Member States.
30. There is a necessary implication in the ne bis in idem  principle, enshrined in that article, that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied ( Gözütok and Brügge , paragraph 33).
31. It follows that the possibility of divergent legal classifications of the same acts in two different Contracting States is no obstacle to the application of Article 54 of the CISA.
32. For the same reasons, the criterion of the identity of the protected legal interest cannot be applicable since that criterion is likely to vary from one Contracting State to another.
33. The above findings are further reinforced by the objective of Article 54 of the CISA, which is to ensure that no one is prosecuted for the same acts in several Contracting States on account of his having exercised his right to freedom of movement ( Gözütok and Brügge , paragraph 38, and Case C-469/03 Miraglia  [2005] ECR I-2009, paragraph 32).
34. As pointed out by the Advocate General in point 45 of his Opinion, that right to freedom of movement is effectively guaranteed only if the perpetrator of an act knows that, once he has been found guilty and served his sentence, or, where applicable, been acquitted by a final judgment in a Member State, he may travel within the Schengen territory without fear of prosecution in another Member State on the basis that the legal system of that Member State treats the act concerned as a separate offence.
35. Because there is no harmonisation of national criminal laws, a criterion based on the legal classification of the acts or on the protected legal interest might create as many barriers to freedom of movement within the Schengen territory as there are penal systems in the Contracting States.
36. In those circumstances, the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together.
38. However, the definitive assessment in that regard belongs, as rightly pointed out by the Netherlands Government, to the competent national courts which are charged with the task of determining whether the material acts at issue constitute a set of facts which are inextricably linked together in time, in space and by their subject-matter.
40. As rightly submitted by the Netherlands Government, the CISA does not lay down an order of priority amongst the different provisions, and, in addition, Article 71 of the Convention does not contain any element which might restrict the scope of Article 54, which enshrines, within the Schengen territory, the ne bis in idem  principle, which is recognised in the case-law as a fundamental principle of Community law (see, to that effect, Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission  [2002] ECR I-8375, paragraph 59).
41. It follows that the reference made in Article 71 of the CISA to existing United Nations Conventions cannot be understood as hindering the application of the ne bis in idem principle laid down in Article 54 of the CISA, which prevents only the plurality of proceedings against a person for the same acts and does not lead to decriminalisation within the Schengen territory.
42. In the light of the above, the answer to the second question must be that Article 54 of the CISA must be interpreted as meaning that:
– the relevant criterion for the purposes of the application of that article of the CISA 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;
– punishable acts consisting of exporting and importing the same narcotic drugs and which are prosecuted in different Contracting States to the CISA are, in principle, to be regarded as ‘the same acts’ for the purposes of Article 54 of the Convention, the definitive assessment in that respect being the task of the competent national courts.
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