Case C‑365/21

MR

v

Generalstaatsanwaltschaft Bamberg

(Request for a preliminary ruling from the Oberlandesgericht Bamberg)

Judgment of the Court (Fifth Chamber), 23 March 2023

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Convention implementing the Schengen Agreement – Article 54 – Principle ne bis in idem – Article 55(1)(b) – Exception to the application of the principle ne bis in idem – Offence against the security or other essential interests of the Member State – Article 50 of the Charter of Fundamental Rights of the European Union – Principle ne bis in idem – Article 52(1) – Limitations to the principle ne bis in idem – Compatibility of a national declaration providing for an exception to the principle ne bis in idem – Criminal organisation – Financial crime)

1. Judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Principle ne bis in idem – Condition for application – Same acts – Concept – Identity of the material facts – Assessment of identity coming under the competence of national courts and tribunals

   (Charter of Fundamental Rights of the European Union, Art. 50; Convention implementing the Schengen Agreement, Art. 54)

   (see paragraphs 31-39)

2. Judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Principle ne bis in idem – Exception – Offence against the security or other essential interests of the Member State – Limitation – Conditions – Limitation provided for by law – Respect for the essence of that principle – Observance of the principle of proportionality – Validity in the light of Article 50 of the Charter

   (Charter of Fundamental Rights of the European Union, Arts 50 and 52(1); Convention implementing the Schengen Agreement, Arts 54, 55(1)(b) and 56)

   (see paragraphs 46-50, 52, 53, 56-67, operative part 1)

3. Judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Principle ne bis in idem – Declaration by a Member State that it is not bound by that principle in the case of offences against its security or other essential interests – Declaration covering participation in a criminal organisation that has engaged exclusively in financial crime – Whether permissible – Conditions

   (Charter of Fundamental Rights of the European Union, Arts 50 and 52(1); Convention implementing the Schengen Agreement, Arts 54 and 55(1))

   (see paragraphs 74-81, 83, operative part 2)

Résumé

In September 2020, MR, an Israeli national, last resident in Austria, was sentenced by an Austrian court to a term of imprisonment of four years for serious commercial fraud and money laundering. After having served part of that sentence and having been released on parole for the remainder, he was remanded in custody in Austria pending his surrender pursuant to a European arrest warrant (EAW) issued in December 2020 by a German court for formation of a criminal organisation and investment fraud.

By an order made in March 2021, MR’s appeal against that EAW was dismissed on the ground that the acts with which those two sets of proceedings were concerned were different, so that the principle ne bis in idem, laid down in the CISA, ( 1 ) did not apply. In the alternative, it was noted that MR was being prosecuted for an offence covered by the declaration made by the Federal Republic of Germany when ratifying the CISA. As a result of that declaration, that Member State is not bound by the principle ne bis in idem where the acts to which the foreign judgment relates constitute an offence against Germany’s national security or other equally essential interests. ( 2 )

In those circumstances, the referring court, before which a further appeal was brought against that order, is uncertain as to whether the authorisation to make such a declaration that is granted to Member States by the CISA is compatible with Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which lays down the principle ne bis in idem. If it is, the referring court asks whether that declaration can also cover criminal organisations engaged exclusively in financial crime.

The Court of Justice answers both questions in the affirmative and specifies the conditions under which such a declaration can cover that type of criminal organisation.

Findings of the Court

In the first place, while confirming the validity, in the light of Article 50 of the Charter, of the provision of the CISA that provides for the possibility of making the declaration concerned, ( 3 ) the Court finds, first of all, that that provision of the CISA represents a limitation of the fundamental right guaranteed by that article. However, such a limitation may be justified in so far as it is provided for by law and respects the essence of that right. ( 4 ) Furthermore, subject to the principle of proportionality, that limitation must be necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. ( 5 )

In that context, the Court recalls that a limitation of the principle ne bis in idem respects the essence of Article 50 of the Charter where that limitation does no more than allow for further proceedings and penalties in respect of the same acts in pursuit of a distinct objective. In that regard, the exception to that principle provided for by the CISA ( 6 ) applies only where the acts to which the foreign judgment relates constitute an offence against the security or other equally essential interests of the Member State intending to rely on it. The Court considers that the concept of ‘national security’ must be compared to the same term as referred to in the EU Treaty, ( 7 ) and emphasises that the objective of safeguarding national security corresponds to the primary interest in protecting the essential functions of the State and the fundamental interests of society. It follows that the offences in respect of which the CISA permits an exception to that principle must affect the Member State itself. The same applies to offences against the other interests of the Member State. Consequently, the contested provision of the CISA ( 8 ) respects the essence of the principle ne bis in idem, since it permits the Member State applying it to punish offences which affect the Member State itself and, in so doing, to pursue objectives that necessarily differ from those for which the person prosecuted has already been tried in another Member State.

Next, as regards the principle of proportionality, the possibility of justifying a limitation of the principle ne bis in idem must be assessed by measuring the seriousness of the interference which such a limitation entails and by verifying that the importance of the objective of general interest pursued by that limitation is proportionate to that seriousness. On that basis, the option provided for in the abovementioned provision of the CISA ( 9 ) is appropriate for achieving the general interest objective of punishment by a Member State of harm to its security or to its other equally essential interests.

Lastly, in view of the nature and the particular seriousness of such harm, the importance of that general interest objective goes beyond that of combating crime in general, even serious crime. Such an objective is, therefore, capable of justifying measures entailing interferences with fundamental rights which would not be authorised for the purpose of prosecuting and punishing criminal offences generally.

In the second place, the Court finds that the CISA, ( 10 ) read in the light of the Charter, ( 11 ) does not preclude the courts of a Member State from interpreting the declaration made by that Member State under the CISA as meaning that, so far as concerns the offence of forming a criminal organisation, that Member State is not bound by the provisions of the CISA enshrining the principle ne bis in idem ( 12 ) where the criminal organisation in which the person prosecuted participated has engaged exclusively in financial crime, in so far as the prosecution of that person is, in the light of the actions of that organisation, intended to punish harm to the security or other equally essential interests of that Member State.

In that regard, the Court observes, first, that the exception provided for by the CISA ( 13 ) primarily covers offences – such as espionage, treason or serious harm to the functioning of public authorities – which, by their very nature, relate to the security or other equally essential interests of the Member State concerned. However, it does not follow from this that the scope of that exception is necessarily limited to such offences. Indeed, it cannot be ruled out that a prosecution for offences whose constituent elements do not specifically include harm to the security or other equally essential interests of the Member State may be equally capable of falling within that exception where, in the light of the circumstances in which the offence was committed, it can be duly established that the prosecution in respect of the acts in question is intended to punish harm to that security or to those other equally essential interests.

Secondly, a prosecution conducted in respect of an offence referred to in a declaration exercising the option provided for in the abovementioned provision of the CISA ( 14 ) must relate to acts which, particularly seriously, affect the Member State concerned itself. However, not every criminal organisation necessarily and in itself harms the security or other equally essential interests of the Member State concerned. Thus, the offence of forming a criminal organisation can give rise to a prosecution as an exception to the principle ne bis in idem only in the case of organisations whose actions may, due to the elements that distinguish them, be regarded as constituting such harm.

In that context, as regards the relevance to be attached to the fact that a criminal organisation engages exclusively in financial crime, the Court states that, in order to characterise the actions of such an organisation as harming the security or other equally essential interests of the Member State concerned, it is necessary to take into account the seriousness of the damage which its activities have caused to that Member State. Moreover, those actions must, irrespective of the actual intention of that organisation and over and above the breaches of public order which every offence entails, affect the Member State itself.

( 1 ) Schengen acquis – Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19), signed in Schengen on 19 June 1990 and which entered into force on 26 March 1995 (‘the CISA’). The principle ne bis in idem is laid down in Article 54 of the CISA, which states that ‘a person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party’.

( 2 ) The possibility of making such a declaration is provided for in Article 55(1)(b) of the CISA.

( 3 ) See Article 55(1)(b) of the CISA.

( 4 ) See the first sentence of Article 52(1) of the Charter.

( 5 ) See the second sentence of Article 52(1) of the Charter.

( 6 ) See, in particular, Article 55(1)(b) of the CISA.

( 7 ) That concept is included in Article 4(2) TEU.

( 8 ) See Article 55(1)(b) of the CISA.

( 9 ) See Article 55(1)(b) of the CISA.

( 10 ) The Court of Justice refers to Article 55(1)(b) of the CISA.

( 11 ) See Article 50 and Article 52(1) of the Charter.

( 12 ) See Article 54 of the CISA.

( 13 ) See Article 55(1)(b) of the CISA.

( 14 ) See Article 55(1)(b) of the CISA.