Klaus Bourquain.
Date: 2008-12-11
28. Second, it should be noted that Article 54 of the CISA applies ratione temporis to criminal proceedings such as those in the main proceedings. Although it is true that the CISA was not yet in force in France at the time when Mr Bourquain’s first conviction was pronounced by a competent judicial authority of that State, it was however in force in the two States concerned when the court before which the second proceedings were brought considered the conditions governing the applicability of the ne bis in idem  principle, which prompted this reference for a preliminary ruling (see, to that effect, Case C-367/05 Kraaijenbrink [2007] ECR I-6619, paragraph 22).
32. Moreover, it should be added that, in any case, Article 58 of the CISA permits the Federal Republic of Germany to apply broader national provisions on the ne bis in idem  principle. Contracting States may therefore apply that principle to judicial decisions other than those falling within Article 54 (see, concerning procedures whereby further prosecution is barred, Joined Cases C-187/01 and C-385/01 Gözütok and Brügg e [2003] ECR I-1345, paragraph 45).
The question referred for a preliminary ruling
36. In the second place, it must be pointed out that the application of Article 54 of the CISA is not conditional on the harmonisation or approximation of the criminal laws of the Member States concerning in absentia judgments (see, to that effect, concerning procedures whereby further prosecution is barred, Gözütok and Brügge , paragraph 32).
37. In those circumstances, Article 54 of the CISA, applied to a judgment in absentia delivered in accordance with the national legislation of a Contracting State or to an ordinary judgment, 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 (see, to that effect, Gözütok and Brügge , paragraph 33).
41. Thus, in order to observe 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), it is necessary to comply within the European Union with a judgment such as that delivered on 26 January 1961 by the permanent military tribunal for the eastern zone of Constantine, ruling finally on the acts of which the person concerned was accused under the legislation of the Contracting State which instituted the first criminal proceedings.
49. That interpretation is 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.
50. That right to freedom of movement is effectively guaranteed only if, in a situation such as that at issue in the main proceedings, the person can be sure that, once he has been convicted and when the penalty imposed on him can no longer be enforced under the laws of the sentencing Contracting State, he may travel within the Schengen area without fear of prosecution in another Contracting State on the ground that the penalty could not, on account of the specific features of the national legal procedures of the first Contracting State, have been directly enforced.