Case C-469/03

Criminal proceedings

against

Filomeno Mario Miraglia

(Reference for a preliminary ruling from the Tribunale di Bologna)

(Article 54 of the Convention implementing the Schengen Agreement – Principle ne bis in idem – Scope – Decision of a Member State’s judicial authorities to discontinue prosecution by reason solely of the initiation of similar proceedings in another Member State)

Judgment of the Court (Fifth Chamber), 10 March 2005 ………...

Summary of the Judgment

European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Principle ne bis in idem – Scope – Decision of the judicial authorities of one Member State closing a case on the ground that similar proceedings have been started in another Member State without any determination whatsoever as to the merits of the case – Excluded

(Art. 2, fourth indent, first subpara, EU; Convention implementing the Schengen Agreement, Art. 54)

The principle ne bis in idem , enshrined in Article 54 of the Convention implementing the Schengen Agreement, the purpose of which is to ensure that no one is prosecuted on the same facts in several Member States on account of his having exercised his right to freedom of movement, does not fall to be applied to a decision of the judicial authorities of one Member State declaring a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without any determination whatsoever as to the merits of the case. Such a decision cannot in fact constitute a decision finally disposing of the case against that person within the meaning of Article 54.

The consequence of applying that principle to such a decision to close criminal proceedings would be to make it more difficult, indeed impossible, actually to penalise in the Member States concerned the unlawful conduct with which the defendant is charged. Such a consequence would clearly run counter to the very purpose of the provisions of Title VI of the Treaty on European Union, as set out in the fourth indent of the first subparagraph of Article 2 EU.

(see paras 30, 33-35, operative part)

JUDGMENT OF THE COURT (Fifth Chamber) 10 March 2005 (1)

(Article 54 of the Convention implementing the Schengen Agreement – Principle ne bis in idem – Scope – Decision of a Member State's judicial authorities to discontinue prosecution by reason solely of the initiation of similar proceedings in another Member State)

In Case C-469/03,REFERENCE for a preliminary ruling under Article 35 EU, from the Tribunale di Bologna (Italy), made by decision of 22 September 2003, registered at the Court on 10 November 2003, in the criminal proceedings brought against

THE COURT (Fifth Chamber),,

composed of R. Silva de Lapuerta, President of the Chamber, R. Schintgen (Rapporteur) and P. Kūris, Judges,

Advocate General: A. Tizzano,

having regard to the written procedure and further to the hearing on15 December 2004,after considering the observations submitted on behalf of:

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

‘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.’

‘Assistance may be refused:

…

(b)

‘The Government of the Kingdom of the Netherlands reserves the right not to grant a request for assistance:

…

‘1.

2.

3.

4.‘1.

2.

3.‘1.

…

‘Must Article 54 of the [CISA] apply when the decision of a court in the first State consists of discontinuing the prosecution without any adjudication on the merits of the case and on the sole ground that proceedings have already been initiated in another State?’

On those grounds, the Court (Fifth Chamber) rules as follows:

[Signatures]