Jean Leon Van Straaten v Staat der Nederlanden and Republiek Italië.
Date: 2006-09-28
31. In the present case, the Court has jurisdiction to rule on the interpretation of Article 54 of the CISA since the system under Article 234 EC is capable of applying to references for a preliminary ruling pursuant to Article 35 EU, subject to the conditions laid down in the latter article (see, in this regard, Case C-105/03 Pupino  [2005] ECR I-5285, paragraph 28), and the Kingdom of the Netherlands made a declaration in accordance with Article 35(3)(b) EU taking effect on 1 May 1999, the date upon which the Treaty of Amsterdam entered into force.
33. In that regard, it must be borne in mind that 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 (see Case C-437/97 EKW and Wein & Co.  [2000] ECR I‑1157, paragraph 52, and Case C-448/01 EVN and Wienstrom  [2003] ECR I‑14527, paragraph 74). Consequently, where the questions submitted concern the interpretation of Community law, the Court is, in principle, bound to give a ruling.
34. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39; Case C-35/99 Arduino  [2002] ECR I-1529, paragraph 25; and Case C-13/05 Chacón Navas  [2006] ECR I-0000, paragraph 33).
37. As to those submissions, although the Court has no jurisdiction under Article 234 EC to apply a rule of Community law to a particular case, it may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of the provision in question (Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C‑540/99 Reisch and Others  [2002] ECR I-2157, paragraph 22).
41. The Court held in Case C-436/04 Van Esbroeck  [2006] ECR I-2333, at paragraph 27, that 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.
44. The possibility of divergent legal classifications of the same acts in two different Contracting States is therefore no obstacle to the application of Article 54 of the CISA ( Van Esbroeck , paragraph 31).
45. The above findings are further reinforced by the objective of Article 54 of the CISA, which seeks 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 ( Van Esbroeck , paragraph 33, and the case-law cited).
46. 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 Contracting State, he may travel within the Schengen area without fear of prosecution in another Contracting State on the basis that the legal system of that Member State treats the act concerned as a separate offence (see Van Esbroeck , paragraph 34).
47. Because there is no harmonisation of national criminal law, a criterion based on the legal classification of the acts or on the legal interest protected might create as many barriers to freedom of movement within the Schengen area as there are penal systems in the Contracting States ( Van Esbroeck , paragraph 35).
48. In those circumstances, the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together ( Van Esbroeck , paragraph 36).
51. In addition, the Court has already held that punishable acts consisting of exporting and of importing the same narcotic drugs and which are prosecuted in different Contracting States party to the CISA are, in principle, to be regarded as ‘the same acts’ for the purposes of Article 54 ( Van Esbroeck , paragraph 42).
52. However, as rightly pointed out by the Netherlands Government, the definitive assessment in this regard is a matter for 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 ( Van Esbroeck , paragraph 38).
53. In the light of the foregoing, the answer to the first 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 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;
– in the case of offences relating to narcotic drugs, the quantities of the drug that are at issue in the two Contracting States concerned or the persons alleged to have been party to the acts in the two States are not required to be identical;
– punishable acts consisting of exporting and of importing the same narcotic drugs and which are prosecuted in different Contracting States party to that Convention 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.
Question 2
56. The main clause of the single sentence comprising Article 54 of the CISA makes no reference to the content of the judgment that has become final. It is only in the subordinate clause that Article 54 refers to the case of a conviction by stating that, in that situation, the prohibition of a prosecution is subject to a specific condition. If the general rule laid down in the main clause were applicable only to judgments convicting the accused, it would be superfluous to provide that the special rule is applicable in the event of conviction.
57. It is settled case-law that Article 54 of the CISA has the objective of ensuring that no one is prosecuted for the same acts in several Contracting States on account of the fact that he exercises his right to freedom of movement (see Joined Cases C‑187/01 and C-385/01 Gözütok and Brügge  [2003] ECR I-1345, paragraph 38).
58. Not to apply that article to a final decision acquitting the accused for lack of evidence would have the effect of jeopardising exercise of the right to freedom of movement (see, to this effect, Van Esbroeck , paragraph 34).
60. It should be added that, in Case C-469/03 Miraglia  [2005] ECR I-2009, at paragraph 35, the Court held that the ne bis in idem  principle, enshrined in Article 54 of the CISA, does not fall to be applied in respect of a decision of the judicial authorities of one Member State declaring a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without any determination whatsoever as to the merits of the case. While there is no need to give a ruling in the present case as to whether an acquittal which is not based on a determination as to the merits of the case may fall within that article, it must be found that an acquittal for lack of evidence is based on such a determination.
61. Consequently, the answer to the second question must be that the ne bis in idem  principle, enshrined in Article 54 of the CISA, falls to be applied in respect of a decision of the judicial authorities of a Contracting State by which the accused is acquitted finally for lack of evidence.
Costs