Zoran Spasic.
Date: 2014-05-27
43. It is settled case-law, in that respect, 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 provision (see, to that effect, Case C‑296/08 PPU Santesteban Goicoechea  EU:C:2008:457, paragraph 36).
45. In those circumstances, the fact that the order for reference does not mention Article 35 EU but rather refers to Article 267 TFEU cannot of itself make the reference for a preliminary ruling inadmissible (see, to that effect, Santesteban Goicoechea  EU:C:2008:457, paragraph 38).
53. The Court has recognised that the application of the ne bis in idem  principle laid down in Article 50 of the Charter to criminal prosecutions such as those which are the subject of the main proceedings presupposes that the measures which have already been adopted against the accused by means of a decision that has become final are of a criminal nature (Case C‑617/10 Åkerberg Fransson  EU:C:2013:105, paragraph 33), which is not disputed in the present case.
54. In that context, in order to reply to the first question referred, it must first of all be noted that the explanations relating to the Charter as regards Article 50 — which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, were drawn up in order to provide guidance in the interpretation of the Charter and must be duly taken into consideration both by the Courts of the European Union and by the courts of the Member States — expressly mention Article 54 CISA among the provisions covered by the horizontal clause in Article 52(1) of the Charter.
55. It follows that the additional condition laid down in Article 54 CISA constitutes a limitation of the ne bis in idem  principle that is compatible with Article 50 of the Charter, since that limitation is covered by the explanations relating to the Charter as regards Article 50 which are directly referred to in the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter. In any event and irrespective of the wording used in the explanations relating to the Charter as regards Article 50, the execution condition which subjects the more extensive protection offered by Article 50 to an additional condition constitutes a limitation of the right enshrined in that article within the meaning of Article 52 of the Charter.
56. In accordance with the first sentence of Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. In accordance with the second sentence of that paragraph, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
59. It follows that a provision such as Article 54 CISA must be regarded as respecting the essence of the ne bis in idem  principle enshrined in Article 50 of the Charter.
62. As can be seen from Article 67(3) TFEU, in order to achieve its objective of constituting an area of freedom, security and justice, the European Union endeavours to ensure a high level of security through measures to prevent and combat crime, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
63. The execution condition laid down in Article 54 CISA is to be seen in that context since it is intended, as noted in paragraph 58 of the present judgment, to prevent, in the area of freedom, security and justice, the impunity of persons definitively convicted and sentenced in an EU Member State.
65. As regards whether the execution condition is necessary to meet the objective of general interest of preventing, in the area of freedom, security and justice, the impunity of persons definitively convicted and sentenced in one EU Member State, it must be noted that, as the Commission pointed out in its written observations and at the hearing, there are numerous instruments at the EU level intended to facilitate cooperation between the Member States in criminal law matters.
66. In that respect, regard must be had to Framework Decision 2009/948, Article 5 of which requires the authorities of different Member States claiming concurrent jurisdiction to bring criminal proceedings in relation to the same acts to initiate direct consultations in order to reach a consensus on effective solutions aimed at avoiding the adverse consequences arising from such parallel proceedings.
67. Where appropriate, such direct consultations may lead, on the basis of Framework Decision 2002/584, to the issue of a European Arrest Warrant by the authorities of the Member State in which the court which delivered a final decision on sentencing is located, for the purpose of execution of the penalties imposed. Alternatively, those consultations may lead, on the basis of the Framework Decisions 2005/214 and 2008/909, to the penalties imposed by a criminal court of one Member State being executed in another Member State (see, on the interpretation of the Framework Decision 2005/214, Case C‑60/12 Baláž  EU:C:2013:733).
68. However, such instruments of mutual assistance do not lay down an execution condition similar to that of Article 54 CISA and, accordingly, are not capable of fully achieving the objective pursued.
77. The ne bis in idem  principle set out in Article 54 CISA is intended not only to prevent, in the area of freedom, security and justice, the impunity of persons definitively convicted and sentenced in the European Union but also to ensure legal certainty through respect for decisions of public bodies which have become final, in the absence of harmonisation or approximation of the criminal laws of the Member States.