Case C‑435/22 PPU

Criminal proceedings

v

HF

(Request for a preliminary ruling from the Oberlandesgericht München)

Judgment of the Court (Grand Chamber), 28 October 2022

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – Charter of Fundamental Rights of the European Union – Article 50 – Convention implementing the Schengen Agreement – Article 54 – Principle ne bis in idem – Extradition agreement between the European Union and the United States of America – Extradition of a third-country national to the United States under a bilateral treaty concluded by a Member State – National who has been convicted by final judgment for the same acts and has served his sentence in full in another Member State)

1. Judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Principle ne bis in idem – Scope – Execution of an extradition request for a third-country national – Included – Lawful or unlawful nature of the stay of the third-country national concerned – Irrelevant

   (Charter of Fundamental Rights of the European Union, Art. 50; Convention implementing the Schengen Agreement, Art. 20(1) and Art. 54)

   (see paragraphs 64, 65, 68-86)

2. Judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Principle ne bis in idem – Extradition, by a Member State, of a third-country national to another third country – National concerned who has been convicted by final judgment in another Member State for the same acts as those referred to in the extradition request – National concerned having served the sentence imposed on him or her – Extradition request based on a bilateral extradition treaty limiting the scope of the principle ne bis in idem to judgments delivered in the requested Member State – Not permissible

   (Charter of Fundamental Rights of the European Union, Art. 50; Convention implementing the Schengen Agreement, Art 20(1) and Art. 54)

   (see paragraphs 71-78, 90-94, 106, 108-110, 114, 136, operative part)

3. International agreements – Criminal law international agreements – EU-USA agreement on extradition – Scope – Extradition request made, on the basis of a bilateral extradition treaty, after the entry into force of that agreement – Included – Provision of that agreement providing for the existence of impediments to the obligation to extradite due to constitutional principles of the requested Member State or due to final judicial decisions – Bilateral agreement and treaty concerned not enabling the question to be resolved – Provision constituting an autonomous judicial basis subsidiary to the application of the principle ne bis in idem

   (EU-USA Agreement of 25 June 2003, Arts 16(1) and 17(2))

   (see paragraphs 98-104, 112)

4. International agreements – Agreements concluded by the Member States – Agreements concluded before the EC Treaty or before the accession of a Member State – Respect for the rights and obligations relating thereto – Scope – Obligation to eliminate any incompatibilities between a prior agreement and the Treaty – Inapplication of a bilateral treaty concluded between a Member State and a third-country after the EC Treaty or the date of its accession

   (Art. 351 TFEU)

   (see paragraphs 119-122, 126, 127)

5. Fundamental rights – Principle ne bis in idem – Conditions for application – Existence of the same offence – Criterion for assessment – Identity of the material facts

   (Charter of Fundamental Rights of the European Union, Art 50)

   (see paragraphs 128-130, 133)

6. 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 – Meaning – Identity of the material acts – 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 128-130, 133-135)

Résumé

In January 2022, HF, a Serbian national, was temporarily arrested in Germany on the basis of a red notice published by the International Criminal Police Organisation (Interpol) at the request of the authorities of the United States of America. The latter request the extradition of HF with a view to criminal proceedings for offences consisting of a conspiracy to participate in racketeer-influenced corrupt organisations and conspiracy to commit bank fraud and fraud by means of telecommunication, committed between September 2008 and December 2013. When he was arrested, HF stated that he was resident in Slovenia and produced, inter alia, a Slovenian residence permit which had expired in November 2019.

The person concerned has already been convicted by final judgment in Slovenia for the same acts as those referred to in the extradition request, as regards the offences committed up to June 2010. In addition, he has already served his sentence in full.

Accordingly, the Oberlandesgericht München (Higher Regional Court, Munich, Germany), called upon to rule on HF’s extradition request, decided to ask the Court of Justice whether the principle ne bis in idem requires it to refuse that extradition for offences for which final judgment has been passed in Slovenia. That principle, which is enshrined in both Article 54 of the Convention implementing the Schengen Agreement (‘the CISA’) ( 1 ) and Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), prohibits, inter alia, a person against whom final judgment has been passed in a Member State from being tried again in another Member State for the same offence. In that context, the referring court also asks whether the extradition treaty concluded between Germany and the United States, ( 2 ) in so far as it allows extradition to be refused on the basis of the principle ne bis in idem only in the case of a conviction in the requested State (here, Germany), is likely to affect the application of that principle in the dispute in the main proceedings.

By its judgment, delivered in the context of the urgent preliminary ruling procedure, the Court, sitting as the Grand Chamber, rules that Article 54 of the CISA, read in the light of Article 50 of the Charter, precludes the extradition, by the authorities of a Member State, of a third-country national to another third country, where final judgment has been passed in another Member State, as regards that national, in respect of the same acts as those referred to in the extradition request and he or she has served the sentence which has been imposed there. The fact that the extradition request is based on a bilateral extradition treaty limiting the scope of the principle ne bis in idem to judgments delivered in the requested Member State is irrelevant in that regard.

Findings of the Court

In the first place, as regards whether the concept of ‘person’ referred to in Article 54 of the CISA includes a third-country national, the Court observes first of all that that article guarantees the protection of the principle ne bis in idem where a person’s trial has been finally disposed of in a Member State. Accordingly, the wording of that provision does not establish a condition relating to possession of the nationality of a Member State. Next, the context of that article supports such an interpretation. Article 50 of the Charter, ( 3 ) in the light of which Article 54 of the CISA must be interpreted, also does not establish a link with the status of citizen of the European Union. Finally, the objectives pursued by that provision, namely, in particular, to ensure legal certainty through respect for decisions of public bodies which have become final, and fairness, support the interpretation that the application of that provision is not limited solely to nationals of a Member State. In that regard, the Court also states that there is nothing in Article 54 of the CISA to suggest that enjoyment of the fundamental right provided for therein is subject, as regards third-country nationals, to compliance with conditions relating to the lawful nature of their stay or to a right to freedom of movement within the Schengen area. In a case such as that in the main proceedings, irrespective of the lawful nature of his or her stay, the person concerned must therefore be regarded as falling within the scope of Article 54 of the CISA.

In the second place, the Court finds that the Agreement on extradition between the European Union and the United States of America (‘the EU-USA Agreement’), ( 4 ) which applies to relations existing between the Member States and that third State on extradition, is applicable to the dispute in the main proceedings, since the extradition request was made, on the basis of the Germany-USA Extradition Treaty, after the entry into force of that EU-USA Agreement. While it is true that the latter does not expressly provide that the applicability of the principle ne bis in idem may allow a Member State to refuse extradition requested by the United States, however, Article 17(2) thereof, ( 5 ) which in principle allows a Member State to prohibit the extradition of persons who have already been finally judged in respect of the same offence for which extradition is sought, constitutes an autonomous and subsidiary legal basis for the application of that principle where the applicable bilateral treaty does not enable that question to be resolved. However, the Germany-USA Extradition Treaty settles prima facie the question raised in the dispute in the main proceedings since it does not envisage that extradition can be refused if the person prosecuted has been finally judged, for the offense referred to in the request for extradition, by the competent authorities of a State other than the requested State. ( 6 ) On this point, the Court nevertheless recalls that, as required by the principle of primacy, it is for the referring court to ensure the full effect of Article 54 of the CISA and Article 50 of the Charter in the dispute in the main proceedings, by disapplying, of its own motion, any provision of the Germany-USA Extradition Treaty which proves to be incompatible with the principle ne bis in idem enshrined in those articles. Although the provisions of the Germany-USA Extradition Treaty relating to the application of the principle ne bis in idem are set aside on the ground that they are contrary to EU law, that treaty no longer allows the question of extradition raised in the dispute in the main proceedings to be resolved, so that the application of that principle may be based on the autonomous and subsidiary legal basis of Article 17(2) of the EU-USA Agreement.

In the last place, although it finds that the first paragraph of Article 351 TFEU ( 7 ) is not a priori applicable to the dispute in the main proceedings having regard to the date on which the Germany-USA Extradition Treaty was concluded, the referring court wonders whether that provision should not be interpreted broadly as also referring to agreements concluded by a Member State after 1 January 1958 or the date of its accession, but before the date on which the European Union became competent in the field covered by those agreements. In that regard, noting in particular that exceptions must be interpreted strictly so that general rules are not negated, the Court specifies that that derogating provision must be interpreted as applying only to agreements concluded before 1 January 1958 or, in the case of acceding States, before the date of their accession, so that it is not applicable to the Germany-USA Extradition Treaty.

( 1 ) 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), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013.

( 2 ) Auslieferungsvertrag zwischen der Bundesrepublik Deutschland und den Vereinigten Staaten von Amerika (Extradition Treaty between the Federal Republic of Germany and the United States of America) of 20 June 1978 (BGBl. 1980 II, p. 647; ‘the Germany-USA Extradition Treaty’).

( 3 ) Article 50 of the Charter provides that ‘no one’ is to be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the European Union in accordance with the law.

( 4 ) Agreement on extradition between the European Union and the United States of America of 25 June 2003 (OJ 2003 L 181, p. 27).

( 5 ) Article 17 of that EU-USA Agreement, headed ‘Non-derogation’, provides, in paragraph 2 thereof, that ‘where the constitutional principles of, or final judicial decisions binding upon, the requested State may pose an impediment to fulfilment of its obligation to extradite, and resolution of the matter is not provided for in this Agreement or the applicable bilateral treaty, consultations shall take place between the requested and requesting States’.

( 6 ) Under Article 8 of the Germany-USA Extradition Treaty, extradition is not to be granted when the person whose extradition is requested has been tried and discharged or punished with final and binding effect by the competent authorities of the requested State for the offence for which his or her extradition is requested. However, that provision does not provide for such a possibility where a final judgment has been passed in another State.

( 7 ) Under that provision, ‘the rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties’.