Criminal proceedings against Piotr Kossowski.
Date: 2016-06-29
25


It is undisputed in this regard that the system laid down in Article 267 TFEU applies to the Court’s jurisdiction to give preliminary rulings under Article 35 EU, itself applicable until 1 December 2014, subject to the conditions laid down by that latter provision (judgment of 27 May 2014 in Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 43).
27


In those circumstances, the fact that the order for reference does not mention Article 35 EU, but instead refers to Article 267 TFEU, cannot of itself mean that the Court does not have jurisdiction to answer the questions raised by the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) (see, to that effect, judgment of 27 May 2014 in Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 45).
31


It should be recalled at the outset that the Court has already held — at paragraph 35 of the judgment of 5 June 2014 in M (C‑398/12, EU:C:2014:1057) — that, since the right not to be tried or punished twice in criminal proceedings for the same offence is set out both in Article 54 of the CISA and in Article 50 of the Charter, Article 54 must be interpreted in the light of Article 50.
34


For a person to be regarded as someone whose trial has been ‘finally disposed of’ within the meaning of Article 54 of the CISA, in relation to the acts which he is alleged to have committed, it is necessary, in the first place, that further prosecution has been definitively barred (see, to that effect, judgment of 5 June 2014 in M, C‑398/12, EU:C:2014:1057, paragraph 31 and the case-law cited).
35


That first condition must be assessed on the basis of the law of the Contracting State in which the criminal-law decision in question has been taken. A decision which does not, under the law of the Contracting State which instituted criminal proceedings against a person, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another Contracting State (see, to that effect, judgments of 22 December 2008 in Turanský, C‑491/07, EU:C:2008:768, paragraph 36, and 5 June 2014 in M, C‑398/12, EU:C:2014:1057, paragraphs 32 and 36).
39


Article 54 of the CISA is also applicable where an authority responsible for administering criminal justice in the national legal system concerned, such as the Kołobrzeg District Public Prosecutor’s Office, issues decisions definitively discontinuing criminal proceedings in a Member State, although such decisions are adopted without the involvement of a court and do not take the form of a judicial decision (see, to that effect, judgment of 11 February 2003 in Gözütok and Brügge, C‑187/01 and C‑385/01, EU:C:2003:87, paragraphs 28 and 38).
42


In order to determine whether a decision such as that at issue in the main proceedings constitutes a decision finally disposing of the case against a person for the purposes of Article 54 of the CISA, it is necessary, in the second place, to be satisfied that that decision was given after a determination had been made as to the merits of the case (see, to that effect, judgments of 10 March 2005 in Miraglia, C‑469/03, EU:C:2005:156, paragraph 30, and 5 June 2014 in M, C‑398/12, EU:C:2014:1057, paragraph 28).
43


It is necessary, for that purpose, to take into account both the objective of the rules of which Article 54 of the CISA forms part and the context in which it occurs (see, to that effect, judgment of 16 October 2014 in Welmory, C‑605/12, EU:C:2014:2298, paragraph 41 and the case-law cited).
44


In that regard, it is clear from the Court’s case-law that the ne bis in idem principle in Article 54 of the CISA is intended, on the one hand, to ensure, in the area of freedom, security and justice, that a person whose trial has been finally disposed of is not prosecuted in several Contracting States for the same acts on account of his having exercised his right to freedom of movement, the aim being to ensure legal certainty — in the absence of harmonisation or approximation of the criminal laws of the Member States — through respect for decisions of public bodies which have become final (see, to that effect, judgments of 28 September 2006 in Gasparini and Others, C‑467/04, EU:C:2006:610, paragraph 27; 22 December 2008 in Turanský, C‑491/07, EU:C:2008:768, paragraph 41; and 27 May 2014 in Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 77).
45


On the other hand, however, whilst Article 54 of the CISA aims to ensure that a person, once he has been found guilty and served his sentence, or, as the case may be, been acquitted by a final judgment in a Contracting State, may travel within the Schengen area without fear of being prosecuted in another Contracting State for the same acts, it is not intended to protect a suspect from having to submit to investigations that may be undertaken successively, in respect of the same acts, in several Contracting States (judgment of 22 December 2008 in Turanský, C‑491/07, EU:C:2008:768, paragraph 44).
46


Article 54 of the CISA should in this respect be interpreted in the light of Article 3(2) TEU, which states that the European Union is to offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with regard to, amongst other matters, the prevention and combating of crime.
47


Therefore, the interpretation of the final nature, for the purposes of Article 54 of the CISA, of a decision in criminal proceedings in a Member State must be undertaken in the light not only of the need to ensure the free movement of persons but also of the need to promote the prevention and combating of crime within the area of freedom, security and justice.
49


The consequence of applying Article 54 of the CISA to such a decision would be to make it more difficult, indeed impossible, actually to penalise in the Member States concerned the unlawful conduct alleged against the accused. First, that decision to terminate proceedings was adopted by the judicial authorities of a Member State when there had been no detailed assessment whatsoever of the unlawful conduct alleged against the accused. Second, the bringing of criminal proceedings in another Member State in respect of the same acts would be jeopardised. Such a consequence would clearly run counter to the very purpose of Article 3(2) TEU (see, to that effect, judgment of 10 March 2005 in Miraglia, C‑469/03, EU:C:2005:156, paragraphs 33 and 34).
50


Finally, as the Court has already stated, Article 54 of the CISA necessarily implies 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 (judgment of 11 December 2008 in Bourquain, C‑297/07, EU:C:2008:708, paragraph 37 and the case-law cited).