OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 5 December 2006 (1)

Case C-367/05

Norma Kraaijenbrink

(Article 54 of the Convention implementing the Schengen Agreement (CISA) – Principle of ‘ne bis in idem’ – Notion of ‘same acts’ – Article 56 of the CISA – Taking earlier penalties into account – Acts penalised in one Member State – Right to penalise ancillary acts committed in another Member State)

1.        To what extent is a common intention relevant in determining whether, in the context of laundering the proceeds of drug trafficking, the acts for which a defendant has been prosecuted in two different Member States are ‘the same acts’ for the purposes of Article 54 of the Convention Implementing the Schengen Agreement (‘CISA’)? (2) Are acts that were unknown to the prosecuting authorities or the adjudicating courts of the first Member State covered by that concept? And if a further prosecution is brought in the second Member State, and a conviction is secured, must the sentencing court take into account the sentence passed in the first Member State? Those, essentially, are the questions referred to the Court by the Belgian Hof van Cassatie (Court of Cassation).

 Relevant provisions

 The CISA

2.        Pursuant to Article 1 of the Protocol integrating the Schengen acquis into the framework of the European Union (3) (‘the Protocol’), 13 Member States are authorised to establish closer cooperation among themselves within the scope of the so-called ‘Schengen acquis’.

3.        The annex to the Protocol defines the ‘Schengen acquis’ as including the Agreement 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, signed at Schengen on 14 June 1985 (4) (the ‘Schengen Agreement’) and, in particular, the CISA.

4.        The Protocol provides that, from the date of entry into force of the Treaty of Amsterdam, namely 1 May 1999, the Schengen acquis is to apply immediately to the 13 Member States referred to in Article 1 of the Protocol, including the Netherlands and Belgium. (5)

5.        Articles 54 to 58 of the CISA together constitute Chapter 3, entitled ‘Application of the ne bis in idem principle’, of Title III, which deals with ‘Police and Security’.

6.        Article 54 provides 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’.

7.        Article 55(1) entitles a Contracting Party, ‘when ratifying, accepting or approving this Convention, to declare that it is not bound by Article 54’ where the acts to which the foreign judgment relates took place in whole or in part in its own territory, constitute an offence against national security or other equally essential interests of that Contracting Party and/or were committed by officials of that Contracting Party in violation of the duties of their office.

8.        Article 56 provides that ‘if a further prosecution is brought in a Contracting Party against a person whose trial, in respect of the same acts, has been finally disposed of in another Contracting Party, any period of deprivation of liberty served in the latter Contracting Party arising from those acts shall be deducted from any penalty imposed. To the extent permitted by national law, penalties not involving deprivation of liberty shall also be taken into account’.

9.        Article 58 provides that ‘the above provisions shall not preclude the application of broader national provisions on the ne bis in idem principle with regard to judicial decisions taken abroad’.

10.      Pursuant to Article 71(1), which is in Chapter 6 of the CISA entitled ‘Narcotic Drugs’, Contracting Parties undertake ‘to adopt in accordance with the existing United Nations Conventions, all necessary measures to prevent and punish the illicit trafficking in narcotic drugs and psychotropic substances’. Article 71(2) requires Contracting Parties ‘to prevent and punish by administrative and penal measures’ the illegal export, the sale, supply and handing over of narcotic drugs and psychotropic substances. Under Article 71(5) Contracting Parties are required to ‘do their utmost to prevent and combat the negative effects arising from the illicit demand for narcotic drugs and psychotropic substances’.

 The 1961 UN Single Convention on Narcotic Drugs

11.      The 1961 UN Single Convention on Narcotic Drugs, as amended by the 1972 Protocol (‘the Single Convention’) is part of the acquis of the European Union under Title VI of the TEU. Member States are either party to it or required, upon accession to the EU, to become party to it.

12.      Article 36(1)(a) of the Single Convention, entitled ‘Penal Provisions’, provides that subject to its constitutional limitations, each Party shall adopt the measures to ensure that a range of drugs-related offences including offering for sale, distribution or any other action which in the opinion of such Party may be contrary to the provisions of the Single Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.

13.      Under Article 36(2)(a)(i) and (ii), subject to the constitutional limitations of a Party, its legal system and domestic law, each of those offences shall be considered as a distinct offence if committed in different countries and financial operations in connection with those offences shall also be punishable offences in accordance with Article 36(1).

 National rules

14.      The Netherlands Government explained at the hearing that at the material time there was no specific provision in the Netherlands Penal Code dealing with the offence of money laundering. However, until 2002 laundering the proceeds of drug trafficking fell within the scope of Article 416 of the Netherlands Penal Code, under which it is an offence to handle stolen property or proceeds arising therefrom. To be convicted of that offence the person handling the property or its proceeds must have been aware that it was obtained by committing a serious offence. Trafficking in illicit drugs is considered to be such an offence.

15.      Article 505 of the Belgian Criminal Code prohibits the trafficking, acquisition, possession, handling or trading of goods defined under Article 42(3) of the Code as having been obtained by criminal conduct. On that basis, the handling and laundering of proceeds of illicit drug trafficking are prohibited in Belgium.

16.      Article 65 of the Belgian Criminal Code provides as follows:

‘Where several offences are founded on the same conduct, or where several offences simultaneously before the same court demonstrate successive and continuous criminal intention, sentence shall be passed only in respect of the most serious offence.

When a court finds that offences considered in an earlier final judgment and other conduct – assuming it is factually proven – which is currently before it both predates that judgment and, together with those offences, demonstrates successive and continuous criminal intention, the sentence already imposed shall be taken into account in determining the sentence to be imposed. If the sentence already imposed seems adequate as a penalty for the whole course of criminal conduct, the court shall make a finding of guilt and shall refer in its judgment to the sentence already imposed. The total sentence imposed under this article may not exceed the maximum sentence for the most serious offence.’ (6)

 National proceedings and questions referred

17.      In December 1998, Ms Kraaijenbrink, a Dutch national, was sentenced by the Arrondissementsrechtbank Middelburg (‘Middelburg District Court’), Netherlands, to a suspended six month term of imprisonment for several offences under Article 416 of the Netherlands Penal Code of receiving and handling the proceeds of drug trafficking between October 1994 and May 1995 in the Netherlands. (7)

18.      In April 2001, the Correctionele Rechtbank te Gent (‘the Ghent Criminal Court’), Belgium, sentenced Ms Kraaijenbrink to two years’ imprisonment for committing several offences under Article 505 of the Belgian Criminal Code by exchanging in Belgium sums received from trading narcotics in the Netherlands between November 1994 and February 1996. That judgment was confirmed by the Criminal Chamber of the Hof van Beroep te Gent (Appeal Court of Ghent) in March 2005.

19.      Referring to Article 71 of the CISA and Article 36(2)(a)(i) and (ii) of the Single Convention, both courts in Belgium held that the appellant could not rely on Article 54 of the CISA. They considered that the offences of receiving and handling proceeds of drug trafficking committed in the Netherlands and the offences committed in Belgium which related to exchanging sums received from trading narcotics in the Netherlands must be regarded as separate offences. That was so notwithstanding the common intention underlying the money laundering offences in the Netherlands and Belgium.

20.      On a further appeal to the Hof van Cassatie, Ms Kraaijenbrink argued that the criminal proceedings in Belgium were barred according to the principle of ne bis in idem in Article 54 of the CISA.

21.      The Hof van Cassatie decided to stay proceedings and ask the Court for a preliminary ruling on the following questions:

‘(1)      Must Article 54 of the [CISA], read with Article 71 of that agreement, be construed as meaning that the criminal offences of acquiring or having available in the Netherlands or transferring from there sums of money in foreign currencies originating from the trade in narcotics (offences which were prosecuted and in respect of which a conviction was obtained in the Netherlands for receiving and handling in breach of Article 416 of the Criminal Code), which differ from the criminal offences consisting in the exchanging at exchange bureaux in Belgium of the relevant sums of money from the trade in narcotics received in the Netherlands (prosecuted in Belgium as the offence of receiving and handling and performing other acts in regard to goods resulting from crime, in breach of Article 505 of the Criminal Code), are to be regarded as the “same acts” for the purposes of Article 54 aforesaid where the courts establish that they share a common intention and thus legally constitute a single act?

(2)      If Question 1 is answered affirmatively:

Must the expression “may not be prosecuted … for the same acts” in Article 54 of the Convention implementing the Schengen Agreement be interpreted as meaning that the “same acts” may also be constituted by different acts sharing the same intention, and thus constituting a single act, which would mean that a defendant can no longer be prosecuted for the offence of money-laundering in Belgium once he has been duly convicted in the Netherlands of other offences committed with the same intention, regardless of any other offences committed during the same period but which became known or in respect of which prosecutions were brought in Belgium only after the date of the definitive foreign judgment or, in such a case, must that expression be interpreted as meaning that the court determining the merits may enter a conviction in respect of these other acts on a subsidiary basis, taking into account the sentences already imposed, unless it considers that those other sentences in its view constitute sufficient punishment of all the offences, and ensuring that the totality of the penalties imposed may not exceed the maximum of the severest penalty?’

22.      Ms Kraaijenbrink, Austria, the Czech Republic, Greece, Poland, Spain and the Commission have submitted written observations. Oral submissions were made by Ms Kraaijenbrink, Austria, Greece, Spain and the Commission at the hearing on 4 July 2006. The Netherlands made submissions at the hearing alone. As in Kretzinger, (8) the written observations were submitted before the judgment in Van Esbroeck. (9) However, the hearing took place after judgment in that case was delivered.

 Assessment

 Preliminary remarks

23.      First, it appears from the file that the defendant has been convicted for handling and laundering the proceeds of illicit drug trafficking both in Belgium and in the Netherlands. It is however unclear from the order for reference, as several parties have noted,  whether the sums of money handled and laundered in both countries derived from the same illicit drug trafficking operations or formed part of the same criminal proceeds.

24.      Secondly, the referring court indicates that since ‘the exchange in [Belgium] at exchange bureaux of sums of money originating from dealing in narcotics and the receipt in [the Netherlands] of sums of money from dealing in narcotics, […] are connected by the same intention to deal in illicit goods’, those acts would constitute a single act under Article 65 of the Belgian Criminal Code law. In other words, if the conduct on which the convictions in the Netherlands and Belgium were based were assessed solely under Belgian law, it would be characterised as a single act by virtue of the common intention which underlies it.

 The first question

25.      By its first question the referring court is essentially asking whether two distinct offences committed in two different Member States which are linked by a common criminal intention fall, by virtue of that fact, within the definition of ‘same acts’ in Article 54 of the CISA. It also wishes to know whether the answer to that question is affected by Article 71 of the CISA, and the Single Convention indirectly referred to therein, concerning the obligations on Member States as regards the fight against the illicit trafficking of narcotic drugs and psychotropic substances.

26.      The order for reference refers to ‘criminal offences’ rather than acts. In Van Esbroeck the Court stated that the legal interest protected or legal classification of the acts is irrelevant for the purposes of Article 54 of the CISA. Therefore it is appropriate to rephrase the first question as asking to what extent a common criminal intention is relevant in determining whether the acts for which a defendant has been prosecuted in two different Member States are the ‘same acts’ for the purposes of Article 54 of the CISA.

 Assessment

–       The ‘same acts’

27.      As I pointed out in my Opinion in Kretzinger, (10) the matters raised in the first question have now been resolved by Van Esbroeck (11) as confirmed by subsequent case-law. (12) It follows from that case-law that only the identity of the material facts, understood as ‘the existence of a set of concrete circumstances which are inextricably linked together’, (13) is relevant when determining whether Article 54 of the CISA applies. That assessment, according to the Court, requires ‘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’. (14)

28.      On that basis, I agree with the majority of the parties who have submitted observations that a common criminal intention underlying the material acts is insufficient in itself to classify them as the ‘same acts’ within the meaning of Article 54 of the CISA. Common intention may indeed be a factor to be taken into account, as I pointed out in my Opinion in Kretzinger. (15) But the acts must also be linked in time and space.

29.      As the Court also made clear in Van Esbroeck, (16) it is for national courts to decide whether, on the facts of the particular case, the acts in question are inextricably linked together. However, it may prove useful in the main proceedings if the Court can give some guidance in that regard.

30.      The succinct nature of the order for reference does not make that task particularly straightforward. The referring court indicates that it has not been established definitively in the main proceedings whether the sums of money laundered in Belgium derived from trading the narcotics in the Netherlands for receiving and handling the proceeds of which Ms Kraaijenbrink was convicted by the Netherlands court. However, referring to the findings of the lower Belgian courts, Ms Kraaijenbrink insists that the money laundering operations in the Netherlands and Belgium concerned the same sums of money arising from the same illicit trafficking.

31.      Money laundering generally involves a chain of financial transactions intended to disguise the unlawful origin of the money and to recycle it into circulation as legal currency. A sum of money is usually laundered through several transactions, some of which may include exchanges of currency which are carried out in quick succession in different places. The resulting sum of money is frequently less than the original sum and may be in a different currency.

32.      I agree with the Commission that if the laundering operations in Belgium concerned sums of money which are inextricably related to the sums of money which were handled in the Netherlands and for receiving or handling which Ms Kraaijenbrink was there convicted, they would amount to ‘the same acts’ under Article 54 of the CISA. That might be the case, for instance, where the money laundered in the second Member State formed part of the original proceeds of the illicit drug trafficking in the first Member State, but at a later stage in the laundering chain. In addition to the common criminal intention that those acts share, they would also be linked materially, in space and in time.

33.      If, on the contrary, the ‘dirty’ money which Ms Kraaijenbrink laundered in Belgium is unrelated to the ‘dirty’ money handled in the Netherlands, those acts are not inextricably linked although they may both relate to illicit drug trafficking operations and share a common criminal intention, namely to benefit financially from criminal proceeds. That would be the case, for instance, where the proceeds stem from drugs-related offences committed in different places at different times and where those proceeds were received or were laundered at times sufficiently different to break the temporal link.

34.      In Van Straaten (17) the referring court essentially asked whether two acts of heroin possession in two Member States constituted ‘the same acts’ under Article 54 of the CISA where the first act concerned a small part of the larger consignment of heroin which the offender was accused of possessing in the second Member State and where the accomplices alleged to have been party to the acts in the two Member States differed.

35.      The Court held that ‘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’ for Article 54 of the CISA to apply. (18) It is therefore possible that a situation in which such identity is lacking nevertheless involves a set of facts which, by their very nature, are inextricably linked. (19)

36.      I must start by noting that applying those statements literally to any drug trafficking offence could produce undesirable results. A conviction for possessing or handling a small quantity of drugs in one Member State should not in my view automatically foreclose further criminal proceedings for possessing or handling substantially larger quantities of the same drugs in another, irrespective of whether they form part of the same consignment. (20) It seems better to read the statements I have just cited from Van Straaten as an ad hoc application of the general rule that complete identity of the material facts – in this case represented by the quantity of drugs and the identity of the accomplices – is not a requirement for Article 54 of the CISA to apply. Rather, those statements afford the national court a discretion in assessing what constitutes the same acts in the circumstances of the case.

37.      Bearing in mind those qualifications, Van Straaten supports the view that a difference in the sums handled in the Netherlands and Belgium does not per se prevent the acts from being regarded as the same for the purposes of Article 54 of the CISA. However, as I have already said, that ‘inextricable link’ is a matter for the referring court to decide on the evidence before it in the main proceedings.

38.      For the sake of completeness, I add that under Article 58 of the CISA Member States are allowed to apply a more generous interpretation of the principle of ne bis in idem under national law. Consequently, it would not be contrary to Article 54 of the CISA for national law to be interpreted so that the acts in question are to be treated as the same acts for which Ms Kraaijenbrink was prosecuted in the Netherlands because they share the same intention, even if they are not based on the same material facts for the purposes of Article 54 of the CISA.

–       Articles 71 of the CISA and 36(2) of the Single Convention

39.      As regards Article 71 of the CISA and Article 36(2) of the Single Convention, the majority of the parties submit that neither is relevant to the interpretation of Article 54 of the CISA. I agree.

40.      It is true that Article 36(2) of the Single Convention, to which Article 71 of the CISA refers, requires that the offences falling within its scope, if committed in different countries, are to be considered as distinct offences. However, assuming that laundering the proceeds of drug trafficking is an offence falling with the scope of Article 36(2), (21) the Court has expressly held in Van Esbroeck that ‘Article 71 of the [CISA] does not contain any element which might restrict the scope of Article 54’. (22) In the Court’s view, ‘it follows that the reference made in Article 71 of the CISA to existing United Nations Conventions cannot be understood as hindering the application of the ne bis in idem principle laid down in Article 54 of the CISA, which prevents only the plurality of proceedings against a person for the same acts and does not lead to decriminalisation within the Schengen territory’. (23)

41.      In my view those statements apply equally in the present case. Article 71 of the CISA, which is drafted in very general terms and imposes on Contracting Parties a general obligation to penalise all offences relating to drug trafficking, does not provide for any derogation from the principle of ne bis in idem in that area or allow a drugs-related offence to be penalised twice in the Schengen context.

42.      As regards the Single Convention, it was adopted in 1961 by an intergovernmental convention and was intended to apply to independent sovereign States. The Commission argues, in my view persuasively, that it would be incongruous to apply the Single Convention to the Schengen area, which was created over 30 years later and intended to achieve further integration in the field of police and judicial cooperation amongst its Contracting Parties. (24)

43.      In such an integrated area, which is based on the mutual trust principle (25) and in which measures to fight illicit drug trafficking are to be adopted progressively at a supranational rather than national level, (26) the obligation in Article 36 of the Single Convention to consider as distinct offences committed in different countries loses its purpose. In my view, the obligation under Article 71 of the CISA on Contracting Parties to adopt the necessary measures to combat illicit drug trafficking in accordance with the existing United Nations Conventions can apply only to the extent that those conventions are relevant for the purposes of the Schengen agreements.

44.      Accordingly, I consider that the phrase ‘same acts’ in Articles 54 and 56 of the CISA refers to identity of material facts, understood as a set of concrete circumstances which are inextricably linked together in time, in space and by their subject-matter. The existence of a common criminal intention may be relevant when assessing whether those three criteria are met but is not itself a criterion. That interpretation is unaffected by Article 71 of the CISA or by Article 36(2) of the 1961 UN Single Convention on Narcotic Drugs.

 The second question

45.      The second question arises only in the event that the first question receives the (affirmative) answer that a common intention is a sufficient condition in itself for offences to be classified as ‘the same acts’ within the meaning of Article 54 of the CISA. I have indicated that I do not consider that to be the case. I nevertheless propose to examine the second question briefly in case the Court decides to answer the first question in the affirmative.

46.      The wording of the second question is imprecise and open to different interpretations. As I read it, it consists of two branches.

47.      First, the referring court wishes to know whether, assuming that the concept of ‘the same acts’ in Article 54 of the CISA covers acts which are different but which are unified by the same criminal intention, that notion can be extended to cover other offences committed during the same period which are subsidiary or additional to the offence penalised in the first judgment, but which became known or in respect of which prosecutions were brought in the second Member State after the first judgment, or whether the court in the second Member State may enter a conviction in respect of these other acts on a subsidiary basis.

48.      If the latter is the case the referring court asks, in the second branch of its question, whether the court in the second Member State is to take into account sentences already imposed in the first Member State in determining under national law the sentence to be imposed.

49.      In my view the answer to the first branch must follow the same reasoning that I have set out in response to the first question. Applying Van Esbroeck, if the acts giving rise to the subsidiary offences are inextricably linked in time, space and by their subject-matter to the acts forming the basis of the conviction in the first Member State, Article 54 of the CISA will apply, provided all its other conditions are met. (27) If that is not the case, the national court may try the defendant for the subsidiary offences, since the alleged acts fall outside the notion of ‘the same acts’ under that provision.

50.      The fact that the ancillary acts were not known at the time, or were not adjudicated upon in the course of proceedings in the first Member State, does not undermine that conclusion. Nothing in the case-law of the Court on the notion of ‘the same acts’ in Article 54 of the CISA indicates that its scope is limited to acts that were known at the material time to the prosecuting authorities or adjudicating courts of the first Member State. Accordingly, nothing prevents the courts of the second Member State from finding that such acts are ‘inextricably linked’ to the acts constituting the subject-matter of the earlier proceedings, and therefore from regarding them as ‘the same acts’.

51.      On the contrary, the Court in Van Straaten (28) stated that Article 54 of the CISA does not require all material facts considered in the two sets of proceedings to be identical. In that case, circumstances which had not been considered by the court in the first Member State but were considered by the court in the second (29) did not prevent the Court from finding that the acts in question were capable of amounting to the same acts under Article 54 of the CISA.

52.      Similar reasoning can be applied in the present case. Acts which are ancillary or additional to the main acts forming the subject of the earlier proceedings, but which were not themselves considered in those proceedings, fall within the concept of ‘same acts’ for the purposes of Article 54 of the CISA if all the acts are inextricably linked together in time, in space and by their subject-matter. Whether that is the case on the facts is a matter for the national court to determine.

53.      The second branch of the question essentially asks whether the court hearing the second set of proceedings is to take into account penalties imposed in the first set of proceedings for the same acts if it decides to impose a sentence on the defendant in respect of those ancillary or additional acts.

54.      Clearly, if the ancillary or additional acts are considered to be the same acts within the meaning of Article 54 of the CISA, the court hearing the second set of proceedings is, if all other conditions are met, prevented from prosecuting and, a fortiori, sentencing the defendant. The issue of whether previous penalties are to be taken into account therefore does not arise.

55.      The situation is different where, even though the ancillary or additional acts are considered to be the same acts, the other conditions for the application of Article 54 of the CISA are not satisfied. (30) In that case an answer to the second branch is to be reached in the light of both the general principle of set-off and Article 56 of the CISA. I recall that Article 56 of the CISA requires a Contracting Party that prosecutes a person whose trial, in respect of the same acts, has been finally disposed of in another Contracting Party, to deduct any period of deprivation of liberty served in the latter Contracting Party arising from those acts from any penalty imposed. That provision also requires Member States, to the extent permitted by national law, to take into account penalties not involving deprivation of liberty.

56.      At the hearing, the Commission made it clear that in its view Article 56 of the CISA reflected a general principle of criminal law, namely the proportionality principle, which applies to any situation in which the principle of ne bis in idem in Article 54 of the CISA does not apply. 

57.      That argument was vehemently opposed by the Netherlands. It argued that the principle of set-off contained in Article 56 of the CISA is restricted to cases in which the derogations in Article 55(1) of the CISA apply. In any other case, whether that principle applies is a matter of national law. Accepting the Commission’s argument would amount to veiled harmonisation of national criminal law, circumventing the provisions of the CISA.

58.      I can find no textual or logical link between Articles 55 and 56 of the CISA to support such an interpretation. More fundamentally, I share the Commission’s view that there is a general principle of set-off (31) in EU law whereby previous penalties must be taken into account if the offender is penalised under a second set of proceedings for the same acts. (32)

59.      Not only does the criminal law of each Member State, so far as I have been able to ascertain, contain variations of that principle, (33) but the Court has also recognised its existence in the context of applying concurrent national and EC sanctions in competition law. In Wilhelm the Court stated that if ‘the possibility of two procedures being conducted separately were to lead to the imposition of consecutive sanctions [for the same acts], a general requirement of natural justice … demands that any previous punitive decision must be taken into account in determining any sanction which is to be imposed’. (34) That case-law was later confirmed in Boehringer Mannheim, where the Court held that ‘in fixing the amount of a fine, the Commission must take account of penalties which have already been borne by the same undertaking for the same action, where penalties have been imposed for infringements of the cartel law of a Member State and, consequently, have been committed on Community territory’. (35) The Court of First Instance has faithfully followed that case-law. (36)

60.      Although the case-law on this point is not yet settled, (37) I am of the view that the principle of set-off can be construed as a general principle of criminal law in all Member States and by extension, as a general principle of Community law arising from the requirements of natural justice and the principle of proportionality in criminal justice. (38)

61.      The principle of set-off is in my view conceptually distinct from the principle of ne bis in idem, even though both are manifestations of a general requirement of natural justice or fairness in criminal proceedings. (39) By definition, the principle of set-off is relevant only when the principle of ne bis in idem is, for whatever reason, not applicable even though the facts forming the basis of the prosecution are the same. (40) Otherwise, the court seized with the second set of criminal proceedings must dismiss those proceedings as contrary to the principle of ne bis in idem.

62.      It follows from the foregoing that Article 56 of the CISA merely codifies the principle of set-off for the purposes of Schengen. If I am right, two consequences follow from that conclusion. First, Article 56 of the CISA aside, the principle of set-off would still apply as a general principle of Community law. Second, as a general principle of law it is superior to Article 56 of the CISA in the hierarchy of norms. As a result, the fact that the scope of that provision is limited to penalties concerning deprivation of liberty is superseded by the wider scope of the general principle: all penalties imposed and served for the same acts in the first Member State should be taken into account in the proceedings in the second Member State.

63.      Therefore, as a matter solely of EU law, when the principle of ne bis in idem does not apply national criminal courts are bound at the sentencing stage to take into account penalties, whether or not they involve deprivation of liberty, which have already been imposed on and served (or otherwise satisfied) by the defendant in other Member States for the same acts. That will be the case where one of the derogations in Article 55 of the CISA applies, but also where the trial in the first Member State has been disposed of but the enforcement condition in Article 54 of the CISA is not fulfilled. (41)

64.      However, should the Court not accept the proposition that there is such a general principle of set-off, in my view it is clear that Article 56 of the CISA would apply in any event. Member States that are parties to the Schengen agreement are required to offset any previous periods of deprivation of freedom suffered by the defendant in other Member States against any custodial sentence imposed in the Schengen context.

65.      Here, I disagree with the Netherlands Government’s restrictive interpretation of Article 56 of the CISA. Nothing in the broad terms of that provision indicates that its scope is limited to cases where Article 55(1) of the CISA applies. A literal interpretation clearly suggests on the contrary that it should apply to cases in which, for whatever reason, a prosecution against the same defendant is initiated in a Member State despite the fact that his trial for the same acts has been disposed of in another Member State. (42)

66.      Obviously, the foregoing analysis applies where the defendant is being tried and sentenced for the same acts a second time in another Member State and he cannot avail himself of Article 54 of the CISA. Where the acts are found not to be the same, no obligation arises under Article 56 of the CISA, or, as I have argued, under the general principle of set-off.

67.      For the sake of completeness, I add that EU law does not prevent national courts before which the second set of proceedings are brought from applying more generous national rules on sentencing in circumstances where Articles 54 or 56 of the CISA – or the principles which they contain – are not applicable because the acts before the national court are found not to be ‘the same acts’ as those considered by the court hearing the first set of proceedings.

68.      That conclusion follows from general principles of subsidiarity and attribution of powers. In addition, as the Commission notes, Articles 56 in fine and 58 of the CISA explicitly allow Member States to apply national law containing a more generous interpretation of the principles of ne bis in idem and of set-off in the context of the Schengen acquis.

69.      Accordingly, I consider that the concept of ‘the same acts’ in Articles 54 and 56 of the CISA covers acts which are ancillary or additional to the main acts forming the subject of the proceedings in the first Member State, but which were not themselves considered in those proceedings, if those acts are inextricably linked together in time, in space and by their subject-matter. Nothing in EU law prevents Member States from applying to an offender more favourable criminal rules than those required under Articles 54 to 57 of the CISA.

 Conclusion

70.      In view of the foregoing I consider that the Court should rule as follows in answer to the questions posed by the Hof van Cassatie:

–        The phrase ‘same acts’ in Articles 54 and 56 of the CISA refers to identity of material facts, understood as a set of concrete circumstances which are inextricably linked together in time, in space and by their subject-matter. Article 71 of the CISA or Article 36(2) of the 1961 UN Single Convention on Narcotic Drugs does not affect that interpretation.

–        The existence of a common criminal intention may be relevant when assessing whether those three criteria are met, but is not itself a criterion.

–        Acts which are ancillary or additional to the main acts forming the subject of the proceedings in the first Member State, but which were not themselves considered in those proceedings, fall within the concept ‘same acts’ for the purposes of Article 54 of the CISA if those acts are inextricably linked together in time, in space and by their subject-matter.

–        In any event, EU law does not prevent a Member State from applying rules more favourable to an offender than those required under Articles 54 and 56 of the CISA.

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1 – Original language: English.

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2 – OJ 2000 L 239, p. 19.

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3 – Annexed by the Treaty of Amsterdam to the Treaty on the European Union (‘TEU’) and to the Treaty establishing the European Community.

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4 – OJ 2000 L 239, p. 13.

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5 – Article 2(1), first subparagraph. The Court has jurisdiction to interpret provisions of the CISA by virtue of Article 35 EU.

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6 –      My translation. The original text states: ‘Lorsque un même fait constitue plusieurs infractions ou lorsque différentes infractions soumises simultanément au même juge du fond constituent la manifestation successive et continue de la même intention délictueuse, la peine la plus forte sera seule prononcée.

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Lorsque le juge de fond constate que des infractions ayant antérieurement fait l’objet d’une décision définitive et d’autres faits dont il est saisi et qui, à les supposer établis, sont antérieurs à ladite décision et constituent avec les premières la manifestation successive et continue de la même intention délictueuse, il tient compte, pour la fixation de la peine, des peines déjà prononcées. Si celles-ci lui paraissent suffire à une juste répression de l’ensemble des infractions, il se prononce sur la culpabilité et renvoie dans sa décision aux peines déjà prononcées. Le total des peines prononcées en application de cet article ne peut excéder le maximum de la peine la plus forte’.

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7 – In the same judgment, Ms Kraaijenbrink was also convicted of intentionally breaching the Netherlands’ Opium Law between October 1994 and February 1997.

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8 – Case C-288/05, currently pending before the Court, in which I have also delivered my Opinion today.

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9 – Case C-436/04 [2006] ECR I-2333.

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10 – Cited in footnote 8 above, points 35 to 37.

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11 – Cited in footnote 9 above. See also point 22 above.

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12 – See Cases C-150/05 Van Straaten [2006] ECR I-0000 and C-467/04 Gasparini [2006] ECR I-0000.

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13 – At paragraph 36.

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14 – At paragraph 38.

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15 – At point 39.

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16 – Paragraph 38.

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17 – Cited in footnote 12 above.

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18 – At paragraph 49.

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19 – At paragraph 50.

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20 – Thus, I doubt that handling 50 grams of heroin in one Member State and 5 kilos of the same drug in another should automatically be treated as the same act, even if the two lots are part of the same consignment.

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21 – The Commission takes the position that that is not the case. Given how widely Article 36(2) is framed (see point 11 above), it is difficult to see how that could be correct.

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22 – At paragraph 40.

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23 – At paragraph 41.

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24 – In the same vein, see Advocate General Ruiz-Jarabo Colomer’s Opinion in Van Esbroeck, cited in footnote 9 above, points 53 to 58.

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25 – See Joined Cases C-187/01 and C-385/01 Gözütok and Brügge [2003] ECR I-1345, at paragraphs 32 and 33.

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26 – See Articles 70 and 71(3) of the CISA which require Contracting Parties to increase their efforts towards cooperation in the fight against illicit drug trafficking.

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27 – On the other conditions for Article 54 of the CISA to apply, namely, that the trial has been finally disposed of (the ‘finality’ condition) and, if a penalty has been imposed, that 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 (the ‘enforcement’ condition), see my Opinions in Kretzinger, cited in footnote 8, and Gasparini, cited in footnote 12 above.

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28 – Cited in footnote 12 above.

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29 – Namely, the possession of four extra kilos of heroin and the participation of a different accomplice.

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30 – See footnote 27 above.

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31 – That principle is also referred to as the principle of ‘taking into account’ (see, for instance, M. Fletcher, ‘Some developments to the ne bis in idem principle in the EU: Criminal proceedings against Hüssein Gözütok and Klaus Brügge’ [2003] 66 Modern Law Review 769, at footnote 5) or the ‘accounting principle’ (see J. Vervaele, ‘The transnational ne bis in idem principle in the EU: Mutual Recognition and equivalent protection of human rights’, (2005) Utrecht Law Review Vol. I, Issue 2 (December) 100, at 106 and 107).

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32 – In so saying, I should make it clear that I both understand and share the Netherlands’ underlying concern that criminal law should not be harmonised by the back door (see, in that vein, my Opinion in Gasparini, cited in footnote 12 above). As I explain below, it seems to me that the origins in EC law of a general principle of set-off derived from the requirements of natural justice can be traced back to 1969 and the judgment of the Court in Case 14/68 Wilhelm [1969] ECR 1.

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33 – See also points 64 to 70 of my Opinion in Kretzinger, cited in footnote 8.

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34 – Cited in footnote 32 above, at paragraph 11.

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35 – Case 7/72 [1972] ECR 1281, at paragraph 3.

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36 – See, for instance, Case T-224/00 Archer Daniels Midlands v Commission [2003] ECR II-2597, at paragraph 87 and the case-law cited therein. See also Case T-322/01 Roquette Frères v Commission [2006] ECR II-0000, at paragraphs 279 to 292.

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37 – Despite the reference made in previous case-law to the requirements of ‘natural justice’, which would in my view necessarily imply that the principle of set-off is of universal application, the Court has been reluctant to accept explicitly that such a principle obliges the Commission to set off a penalty imposed by a third country when determining a penalty under EC competition rules. In two recent cases heard on appeal, the Court neither confirmed nor denied the universal nature of the principle of set-off, but resolved the cases on other grounds. See the judgment of the first chamber of the Court of 18 May 2006 in Case C-397/03 P Archer Daniels Midland v Commission [2006] ECR I-0000, at paragraph 52; a similar approach was applied by the second chamber of the Court in its judgment of 29 June 2006 in Case C-308/04 P SGL Carbon v Commission [2006] ECR I-0000, at paragraph 27. In paragraph 33 of the same judgment the Court seems, however, implicitly to reject the universal nature of the principle of set-off.

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38 – That principle is included as a fundamental right in Article II-109(3) of the Draft EU Constitution, that is, as part of the Charter of Fundamental Rights of the Union. That provision, which is entitled, ‘Principles of Legality and proportionality of criminal offences and penalties’ provides that ‘the severity of penalties must not be disproportionate to the criminal offence’.

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39 – In the same vein see the Opinion of Advocate General Ruiz-Jarabo Colomer in Van Straaten, cited in footnote 12 above, at point 58. That is also the position that the Court seems implicitly to have followed in SGL Carbon and Archer Daniels Midland, both cited in footnote 37 above. The close affinity between those two principles may also explain why Article 56 of the CISA is included, together with Article 54, in Chapter 3 of Title III of the CISA, under the heading ‘Application of the ne bis in idem principle’. However, as I have suggested in footnote 29 of my Opinion in Kretzinger, that should not alter the conclusion that they constitute two autonomous principles of EU law. See also, J-L. de la Cuesta “Concurrent national and international criminal jurisdicition and the principle ‘ne bis in idem’ – general Report [of the XVII International Congress of Penal Law]”, International Review of Penal Law, Vol. 73, 2002/3 -4, 707, at 717 and 724.

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40 – See point 63 below.

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41 – See my Opinion in Kretzinger, cited in footnote 8 above, at point 72.

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42 – See point 63 above.