OPINION OF ADVOCATE GENERAL
BOT
delivered on 7 September 2010 1(1)
Case C‑261/09
Criminal proceedings
against
Gaetano Mantello
(Reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany))
(Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Ground for mandatory non‑execution – Ne bis in idem principle – Fundamental right – Application where the final judgment was delivered in the issuing Member State – Concept of ‘the same acts’ – Autonomous concept – Scope)
1. The European arrest warrant, established by Council Framework Decision 2002/584/JHA, (2) replaced the formal extradition procedure between Member States with a system of surrender between judicial authorities, based on a high level of confidence between those authorities. It is regarded, rightly, as the instrument of judicial cooperation in criminal matters which produces the best results.
2. The Framework Decision exhaustively lists the grounds which may preclude execution of a European arrest warrant. This reference for a preliminary ruling is concerned for the first time with the scope of the ground set out in Article 3(2) of the Framework Decision, under which a European arrest warrant must not be executed when the requested person has already been finally judged in respect of the same acts, if, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed.
3. It arises from the European arrest warrant issued by the Italian judicial authority against an Italian national staying in Germany, whom that authority accuses of having participated in the trafficking of cocaine as part of a criminal organisation between Germany and Italy over a period of several months during 2004 and 2005.
4. The Oberlandesgericht Stuttgart (Germany) questions whether Article 3(2) of the Framework Decision may apply in this case in the light of the following facts. First, the requested person was convicted by an Italian court of the offence of unlawful possession of cocaine committed on 13 September 2005 and, secondly, the Italian investigators already had in their possession, at the time of that conviction, sufficient evidence to prosecute that person on the basis of his participation in the trafficking referred to in the European arrest warrant, but they refrained from doing so in order not to jeopardise the proper conduct of their investigation into that trafficking.
5. It asks the Court two questions, the first relating to whether the concept of ‘the same acts’ set out in Article 3(2) of the Framework Decision must be understood by reference to the law of the issuing Member State or to that of the executing Member State, or else whether it must be given an autonomous interpretation. The referring court asks, by its second question, whether that concept applies to a situation in which the investigators, where the requested person was convicted for a single act of possessing narcotic drugs, had evidence of his participation in trafficking on a larger scale but decided, in the interests of the investigation, not to prosecute him on the basis of that participation.
6. Those two questions are based on the premiss that Article 3(2) of the Framework Decision is also intended to apply where the acts referred to in the European arrest warrant formed the subject-matter of a final judgment in the Member State in which that warrant was issued.
7. That premiss is vigorously disputed by most of the Member States which have intervened in these proceedings, according to which it runs counter to the principle of mutual recognition underpinning the system of the European arrest warrant. Those Member States are of the view that the ground for non-execution at issue is applicable solely where a final judgment in respect of the acts referred to in the European arrest warrant has been delivered in a Member State other than the issuing Member State.
8. Before examining the questions raised by the referring court, I will therefore invite the Court to rule on the validity of the premiss which underlies those questions, not only because a question of principle is involved, but also because it is very probable that it arises in a large number of cases.
9. I will show that, although the system of the European arrest warrant does indeed rely on a high degree of mutual trust, the fact remains that the surrender of the person referred to in such a warrant stems from a decision by the judicial authority of the executing Member State, (3) which must be taken in a manner consistent with fundamental rights. I will point out that Article 3(2) of the Framework Decision is an expression of the ne bis in idem principle, which constitutes a fundamental right recognised by the legal systems of all the Member States and enshrined in the Charter of Fundamental Rights of the European Union. (4)
10. I will thus infer that, although, in accordance with the principle of mutual recognition, it is not for the executing judicial authority to ascertain of its own motion whether that principle is being observed, the fact remains that it cannot execute a European arrest warrant if it has sufficient evidence that that principle has been infringed, including in cases in which the acts have already formed the subject-matter of a final judgment in the issuing Member State.
11. I will then propose that the Court should rule that the concept of ‘the same acts’, as set out in Article 3(2) of the Framework Decision, in the absence of reference to the law of the Member States as regards its meaning, must, in accordance with settled case-law, be interpreted uniformly within the European Union. I will also argue that that concept must be interpreted in the same way as the concept set out in Article 54 of the Convention implementing the Schengen Agreement, (5) on account of the identity of the terms and the similarity of the aims of those two provisions.
12. Finally, in answer to the second question, I will propose that the Court should state, in the light of the case-law on the interpretation of Article 54 of the CISA, that the fact that the investigating authorities had at their disposal, at the time of the judgment of the person requested for a single act of unlawful possession of narcotic drugs, evidence of that person’s involvement, for several months, in drug trafficking as part of a criminal organisation and that, at that time, for the purpose of the investigation, they refrained from prosecuting that person on that basis is irrelevant in assessing the concept of the same acts.
I – The legal context
A – The Framework Decision
13. The aim of the Framework Decision is to abolish, as between the Member States, the formal extradition procedure provided for under the various Conventions to which those States are parties and to replace it with a system of surrender as between judicial authorities. It seeks, in particular, to ‘remove the complexity and potential for delay inherent in the present extradition procedures’, which are to ‘be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions’. (6)
14. The Framework Decision is based on the principle of mutual recognition of judicial decisions in criminal matters, which constitutes the ‘cornerstone’ of judicial cooperation. (7) The European arrest warrant mechanism established by the Framework Decision is based on a ‘high degree of confidence’ between the Member States. (8)
15. None the less, according to Recital 8 in the preamble to the Framework Decision, decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested must take a decision on his or her surrender.
16. Similarly, according to Recital 12 in its preamble, the Framework Decision respects fundamental rights and observes the principles recognised by Article 6 EU and reflected in the Charter.
17. Those objectives of the Framework Decision are expressed as follows in its legislative provisions.
18. Article 1 of the Framework Decision provides:
‘1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.’
19. Article 3 of the Framework Decision lists three grounds for mandatory non-execution of the European arrest warrant. Article 3(2) of the Framework Decision is worded as follows:
‘The [executing judicial authority] shall refuse to execute the European arrest warrant in the following cases:
…
(2) if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State’.
20. Article 4 of the Framework Decision governs, in seven paragraphs, the grounds for optional non-execution of the European arrest warrant. Article 4(3) and (5) of the Framework Decision is worded as follows:
‘The executing judicial authority may refuse to execute the European arrest warrant:
…
(3) where the [executing judicial authorities] have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings;
…
(5) if the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country’.
21. Article 8 of the Framework Decision lists the mandatory pieces of information that must be contained in a European arrest warrant. In addition to the identity of the requested person, the European arrest warrant must set out, inter alia, the circumstances of the offence and information on the participation of the requested person. That information must be translated into the official language of the executing judicial authority.
22. Article 15 of the Framework Decision deals with the surrender decision. It states:
‘1. The executing judicial authority shall decide, within the time‑limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.
2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.
3. The issuing [Member State’s] judicial authority [(9)] may at any time forward any additional useful information to the executing judicial authority.’
23. Article 17 of the Framework Decision covers the time‑limits and the procedures for the decision to execute the European arrest warrant. It reads as follows:
‘1. A European arrest warrant shall be dealt with and executed as a matter of urgency.
2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.
3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.
4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days.
5. As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled.
6. Reasons must be given for any refusal to execute a European arrest warrant.
7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council [of the European Union] with a view to evaluating the implementation of this Framework Decision at Member State level.’
24. Finally, the Framework Decision sets out the rights of a requested person. When that person is arrested, the executing judicial authority, pursuant to Article 11 of the Framework Decision, must inform him or her of the contents of the European arrest warrant. The arrested person may consent to his or her surrender or oppose it. He or she may also choose whether or not to renounce the speciality rule, according to which a person surrendered under a European arrest warrant may not be prosecuted for an offence committed prior to his or her surrender other than that for which he or she was surrendered. (10) Where the arrested person does not consent to his or her surrender, he or she is to be entitled to be heard by the executing judicial authority. (11)
B – The ne bis in idem principle
25. Article 3(2) of the Framework Decision is an expression of the ne bis in idem principle.
1. The basis of the ne bis in idem principle
26. The principle expressed by the Latin maxim ne bis in idem or non bis in idem, which means ‘not the same thing twice’, implies that a person cannot be sentenced twice in respect of the same act.
27. That principle is inherent in the concept of the rule of law. Indeed, when society has exercised its legitimate right to punish the perpetrator of an offence contrary to its rules, it has exhausted its right to prosecute and therefore has no further authority to punish a person already convicted in respect of that act. That principle is therefore inseparable from the principles of res judicata and of the proportionality of penalties, according to which the sanction must be proportionate to the seriousness of the acts in respect of which the prosecution has been brought.
28. Considered at the level of the individual, the ne bis in idem principle is intended to provide a convicted person with a guarantee that, when he has served his sentence, he has ‘paid his debt’ to society and can therefore regain his place in it without having to fear further prosecution. It therefore fulfils a two-fold requirement for fairness and for legal certainty.
29. The ne bis in idem principle is a very ancient principle. (12) However, far from having fallen into disuse, it has been progressively strengthened and extended by the development of criminal law in modern societies as regards, in particular, the role of penalties. Indeed, the modern development of criminal law, common to all the Member States, makes rehabilitation a basic function of a sentence. It no longer has the sole aim of being punitive and deterrent, but also has the objective of encouraging the rehabilitation of the convicted person. That rehabilitation necessarily presupposes that the obligation should be regarded as discharged in full and that an interested person who has been finally judged no longer has anything to fear from the law.
30. The ne bis in idem principle has been enshrined by several international measures both in the Member States’ national laws and in the European Union framework.
31. In national law, the ne bis in idem principle thus finds expression in Article 4 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 22 November 1984, at least for the Member States which have acceded thereto. (13) Article 4 of Protocol No 7 provides:
‘1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
…’
32. At the level of relations between Member States, the ne bis in idem principle is affirmed in Article 54 of the CISA (14) in the following terms:
‘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.’
33. Article 54 of the CISA has the objective of guaranteeing the freedom of movement of the citizens of the European Union within the Union. It seeks to ensure that no one is prosecuted for the same acts in several Contracting States on account of his having exercised his right to freedom of movement. (15)
34. In the absence of harmonisation of the criminal laws of the Member States, the application of such a principle necessarily implies that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied. (16)
35. Finally, the ne bis in idem principle was enshrined in Article 50 of the Charter as a bar to being sentenced twice either by the courts of the same Member State or by the courts of different Member States, provided that the situation is covered by European Union law (‘EU law’). (17) Article 50 of the Charter states:
‘No one shall 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 Union in accordance with the law.’ (18)
2. The meaning of the ne bis in idem principle
36. The precise meaning of the ne bis in idem principle, apart from the very general definition above, is hard to define. (19) It may vary very considerably from one Member State to another. The differences may relate to both the elements governing application of that principle, namely bis and idem.
37. The concept of bis is used in determining the decisions to which the principle may be applied.
38. Article 4 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 54 of the CISA and Article 50 of the Charter relate, like Article 3(2) of the Framework Decision, to a final acquittal or sentence. Article 54 of the CISA and Article 3(2) of the Framework Decision add, however, as a further condition that, where there has been sentence, the sentence has been served or is being served or may no longer be executed under the law of the sentencing State.
39. The question arises, however, of whether that latter condition covers cases of pardons and amnesties, or of establishing whether the decisions on the basis of which the ne bis in idem principle may apply are limited solely to decisions of courts or whether they include those of prosecuting authorities, where the latter’s decisions are a definitive bar to further prosecution, and, where appropriate, under which conditions.
40. The concept of idem relates to the elements which must be regarded as having already formed the subject-matter of a judgment. This may, understood in a manner which is advantageous to the individual, include identity solely of the material acts or, with a stricter meaning, identity of the offences, that is to say those acts together with their legal classification.
41. The Court has already addressed several of those questions in the context of the interpretation of Article 54 of the CISA.
42. With regard to bis, it has interpreted the condition that a penalty imposed by a court of a Contracting State ‘has been enforced’ or ‘is actually in the process of being enforced’ as meaning that it covers a situation in which the defendant has been given a suspended custodial sentence. However, that concept does not cover cases where the defendant was for a short time taken into police custody and/or held on remand pending trial, including where that detention would count towards any subsequent enforcement of the custodial sentence under the law of the State in which judgment was given. (20)
43. The Court has also held that the ne bis in idem principle applies in respect of a decision of a court of a Contracting State, made after criminal proceedings have been brought, by which the accused is acquitted finally because prosecution of the offence is time-barred. (21)
44. Similarly, that principle applies to a final decision acquitting the accused for lack of evidence. (22) Finally, it covers a judgment in absentia delivered by the judicial authority of a Member State beyond the territory to which the CISA applies. (23)
45. As regards the author of the decision which may entail application of the ne bis in idem principle, the Court held that that principle also applies to procedures whereby further prosecution is barred, by which the Public Prosecutor of a Member State discontinues criminal proceedings brought in that State, without the involvement of a court, once the accused has fulfilled certain obligations and, in particular, has paid a certain sum of money determined by the Public Prosecutor. (24)
46. On the other hand, the ne bis in idem principle does not apply 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. (25)
47. Nor does that principle fall to be applied to a decision by which an authority of a Contracting State, after examining the merits of the case brought before it, makes an order, at a stage before the charging of a person suspected of a crime, suspending the criminal proceedings, where the suspension decision does not, under the national law of that State, definitively bar further prosecution and therefore does not preclude new criminal proceedings, in respect of the same acts, in that State. (26)
48. As regards idem, the Court has held that Article 54 of the CISA must be interpreted as meaning that the relevant criterion for the purposes of the application of that article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected. (27)
49. It has stated, as regards offences relating to narcotic drugs, that 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, so that it is possible that a situation in which such identity is lacking involves a set of facts which, by their very nature, are inextricably linked. The definitive assessment in that respect is the task of the competent national courts. (28)
50. That case-law establishes only the minimum scope of the ne bis in idem principle in inter-State relations. In accordance with Article 58 of the CISA, Article 54 thereof must not preclude the application of broader national provisions on the ne bis in idem principle with regard to judicial decisions taken abroad.
51. In the purely domestic legal systems of the Member States, the European Court of Human Rights defines the minimum content which the ne bis in idem principle must have. As regards the concept of idem, it has adopted the case-law of the Court, according to which it is necessary to be concerned solely with the material acts, without taking into consideration the legal interest protected. (29)
C – National laws
1. German law
52. Article 3(2) of the Framework Decision was transposed into German law by Paragraph 83(1) of the Law on international mutual assistance in criminal matters (Gesetz über die internationale Rechtshilfe in Strafsachen) of 23 December 1982, as amended by the Law on the European arrest warrant (Europäisches Haftbefehlsgesetz) of 20 July 2006. (30) That paragraph, entitled ‘Supplementary conditions governing authorisation’, provides:
‘Extradition shall not be authorised where
1. The accused’s trial in respect of the same acts for which extradition is sought has been disposed of in another Member State by way of final judgment, provided that, where a sentence has been imposed, it has already been served, is currently being served or can no longer be executed under the law of the sentencing State … .
…’
2. Italian law
53. Articles 73 and 74 of Decree No 306/90 of the President of the Republic laying down ‘the consolidated text of the laws governing narcotic drugs and psychotropic substances’ of 9 October 1990 read as follows:
‘Article 73. Unlawful production, trafficking and possession of narcotic drugs or psychotropic substances
1. Any person who, in the absence of the authorisation referred to in Article 17, grows, produces, manufactures, extracts, refines, sells, offers or provides for sale, transfers, distributes, markets, transports, procures, sends, passes on, places in transit or delivers for whatever purpose narcotic drugs or psychotropic substances … shall be liable to a term of imprisonment of between six and twenty years and to a fine of between EUR 26 000 and EUR 260 000.
…
6. If the offence is committed by three or more persons acting jointly the penalty shall be increased.
Article 74. Association for the purpose of unlawful trafficking in narcotic drugs or psychotropic substances
1. When three or more persons associate for the purpose of committing several of the offences provided for in Article 73, the person who promotes, constitutes, directs, organises or finances the association shall be liable solely to a term of imprisonment of not less than 20 years.
2. Any person who participates in the association shall be liable to a term of imprisonment of not less than 10 years.
3. The penalty shall be increased if the number of persons associated is 10… .
…’
54. Under Article 649 of the Italian Code of Criminal Procedure, an ‘accused person who has been acquitted or convicted in criminal proceedings by way of a judgment or order which has become final may not have fresh criminal proceedings brought against him in respect of the same act, even if the latter is treated differently in terms of legal classification, degree of seriousness or circumstances’.
55. According to information provided by the Italian Government, it is none the less clear from the case-law of the Corte suprema di cassazione (Supreme Court of Cassation) (Italy) that the ‘exception laid down in Article 649 of the Code of Criminal Procedure may not be relied upon if the act which gave rise to a final judgment concerns a situation in which several offences are committed by means of a single act, where the conduct in respect of which a final judgment has already been delivered may be factually redefined and classified, according to a separate or even alternative assessment, within a broader category of criminal offences’.
II – Facts and procedure in the main action
A – The European arrest warrant at issue
56. On 7 November 2008, the Tribunale di Catania, Sezione del Giudice per le indagini preliminari (Court of Catania, chamber of the judge responsible for preliminary investigations) (Italy) issued a European arrest warrant against Mr Mantello, based on a national arrest warrant dated 5 September 2008 relating to Mr Mantello and 76 other co‑accused.
57. In the European arrest warrant, two acts are attributed to Mr Mantello.
58. First, from shortly before January 2004 until November 2005, he allegedly participated, in the context of a criminal organisation comprising at least 10 other persons, in the organised trafficking of cocaine in Vittoria (Italy), in other Italian cities and in Germany. Mr Mantello is alleged not only to have acted as a courier and middleman, but also to have been responsible for obtaining the cocaine and marketing it.
59. Secondly, it is alleged that, over that period and in the same places, either alone or as an accomplice with others, he unlawfully took possession of cocaine, had it in his possession and transported, sold or disposed of it to others.
B – The decision which may preclude execution of the European arrest warrant
60. According to the information provided in the national arrest warrant, since January 2004 various Italian authorities have been investigating the unlawful trafficking of cocaine in the Vittoria region. The interception of Mr Mantello’s telephone calls during the period from 19 January to 13 September 2005 confirmed his participation in that trafficking. Mr Mantello was also shadowed by investigators during some of his trips, in particular between Sicily (Italy) and Milan (Italy) on 28 July 2005 and on 12 August 2005 and between Sicily, Esslingen (Germany) and Catania on 12 September 2005.
61. During that last trip, Mr Mantello purchased 150 g of cocaine in Esslingen and, on his return in the evening of 13 September 2005, he was taken into custody by the railway police as he alighted from a train in the station at Catania. He was carrying two packets containing 9.5 g and 145.96 g of cocaine, respectively, equivalent to a quantity of 599 to 719 individual doses.
62. By judgment of 30 November 2005, the Tribunale di Catania sentenced Mr Mantello to a term of imprisonment of 3 years, 6 months and 20 days, together with a fine of EUR 13 000 for having, in Catania on 13 September 2005, been in unlawful possession of 155.46 g of cocaine intended for onward sale. That judgment was upheld by a judgment of 18 April 2006 of the Corte d’apello di Catania (Court of Appeal, Catania).
C – The proceedings before the executing judicial authority
63. Having become aware of the European arrest warrant on the Schengen Information System (SIS), the Generalstaatsanwaltschaft Stuttgart (Public Prosecutor of Stuttgart) had Mr Mantello arrested on 3 December 2008 at his home and required him to appear before the Amtsgericht Stuttgart (District Court, Stuttgart) (Germany). When he made his appearance in court, Mr Mantello opposed his surrender to the issuing judicial authority and did not renounce entitlement to the speciality rule. At the request of the Generalstaatsanwaltschaft Stuttgart, on 22 January 2009 the Oberlandesgericht Stuttgart asked the Italian authorities to provide certain documents in order to determine whether execution of the European arrest warrant was precluded by the fact that the judgment of 30 November 2005 had acquired the force of res judicata.
64. Having received no information from those authorities, on 20 March 2009 the Oberlandesgericht Stuttgart then decided to suspend execution of the European arrest warrant and to assign Mr Mantello a court-appointed lawyer.
65. On 4 April 2009, the investigating judge of the Tribunale di Catania stated in reply that the ne bis in idem principle did not fall to be applied. The Generalstaatsanwaltschaft Stuttgart therefore asked the referring court to execute the European arrest warrant.
66. The Oberlandesgericht Stuttgart, however, seeks to ascertain whether it may refuse to execute the European arrest warrant in view of the following circumstances. At the time of the investigation which led to the conviction of Mr Mantello for possession of doses of cocaine intended for onward sale, the investigators already had sufficient evidence to charge and prosecute him in connection with the criminal charges set out in the European arrest warrant, in particular for drug trafficking as part of a criminal organisation. However, in the interests of the investigation, so as to be able to dismantle that traffic and arrest the other persons involved, those investigators neither communicated the information and evidence in their possession to the investigating judge nor at the time requested that a prosecution be brought in connection with those acts.
67. According to the referring court, in German law as interpreted by the Bundesgerichtshof (Federal Court of Justice) (Germany), an offence relating to participation in a criminal organisation could, in principle, still form the subject-matter of subsequent proceedings if, first, only single acts of the member of such an organisation formed the subject‑matter of the previous indictment and judicial investigation and if, secondly, the accused does not have a legitimate expectation that the previous proceedings encompassed all the acts carried out in the context of the organisation. The referring court considers that it would also be necessary that, at the time of the decision by the court concerning the single act, the investigating authorities had no knowledge that other individual offences and an offence relating to participation in a criminal organisation had been committed, which was specifically not the case with the investigating authorities in Italy.
68. Moreover, that court points out that, in the case in the main proceedings, there is no cross-border element in that the potential idem is a judicial decision originating in the issuing Member State itself and not in another Member State. It also emphasises that the concept of ‘the same acts’ as referred to in the Framework Decision has not yet been interpreted by the Court. The referring court seeks to ascertain, in that connection, whether the case-law developed in the context of the CISA may be applied in the context of the European arrest warrant.
III – The questions referred
69. In the light of those considerations, the Oberlandesgericht Stuttgart decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is the existence of “the same acts” within the meaning of Article 3(2) of [the Framework Decision] to be determined:
(a) according to the law of the issuing Member State,
(b) according to the law of the executing Member State, or
(c) according to an autonomous interpretation, based on the law of the European Union, of the phrase “the same acts”?
2) Are acts consisting in the unlawful importation of drugs “the same acts”, within the meaning of Article 3(2) of the Framework Decision, as participation in an organisation the purpose of which is illicit trafficking in such drugs, in so far as the investigating authorities had information and evidence, at the time at which sentence was passed in respect of such importation, which supported a strong suspicion of participation in such an organisation, but omitted for tactical reasons relating to their investigation to provide the relevant information and evidence to the court and to initiate criminal proceedings on that basis?’
IV – Analysis
70. The reference for a preliminary ruling from the Oberlandesgericht Stuttgart is admissible in the light of Article 35 EU. According to the information published in the Official Journal of the European Communities of 1 May 1999 (31) concerning the date of entry into force of the Treaty of Amsterdam, the Federal Republic of Germany declared, pursuant to Article 35(2) EU, that it accepted the jurisdiction of the Court of Justice to give preliminary rulings in accordance with the arrangements laid down in Article 35(3)(b) EU, that is to say on questions raised by all its courts.
71. Before examining the questions raised by the referring court, it seems necessary to examine whether the ground for mandatory non‑execution provided for in Article 3(2) of the Framework Decision is applicable where the final judgment which might justify its application was delivered in the issuing Member State.
A – The application of Article 3(2) of the Framework Decision where the acts referred to in the European arrest warrant formed the subject-matter of a final judgment in the issuing Member State
72. Several Member States intervening in these proceedings submit that the ground for mandatory non-execution provided for in Article 3(2) of the Framework Decision is not applicable in this situation. (32) In support of that argument, they claim that the ne bis in idem principle constitutes a general principle of law and that the judicial authorities which issue a European arrest warrant are required to ensure observance of it. They point out that those authorities are best placed to verify that the person against whom a European arrest warrant is issued has not already been sentenced in their State for the same acts.
73. According to the Governments of those Member States, application of Article 3(2) of the Framework Decision in such a situation would therefore run counter to the principle of mutual recognition and to the high level of confidence that the executing judicial authority must have in relation to the issuing judicial authority.
74. According to the Italian Government, the assessment of the issuing judicial authority that the ne bis in idem principle does not apply is binding for the executing judicial authority.
75. The Spanish Government points out that Article 3(2) of the Framework Decision must be strictly interpreted, as is clear from the grounds of the judgment in Wolzenburg. (33) It claims, like the Czech Government, that the ne bis in idem principle covered by Article 3(2) of the Framework Decision is necessarily transnational, in the same way as that covered by Article 54 of the CISA. The Spanish Government further submits that any infringement of the ne bis in idem principle would be committed not during surrender, but at the time when the issuing judicial authority, depending on the circumstances, after hearing the requested person none the less places him under judicial investigation.
76. I do not concur with the view put forward by those Governments because, in my view, it goes against the system of the European arrest warrant as defined by the Framework Decision and because Article 3(2) of the Framework Decision is the expression of a fundamental right.
77. Accordingly, although the system of the Framework Decision is based on the principle of mutual recognition, the European Union legislature (‘EU legislature’) did not wish to treat a European arrest warrant in the same way as a national arrest warrant, the execution of which falls directly to the police forces of the executing Member State. It provided that the European arrest warrant was based on cooperation between the judicial authorities of the Member States concerned and that the surrender of a requested person was to result in a decision by the executing judicial authority, which could refuse surrender on one of the grounds listed in the Framework Decision.
78. In making the ground set out in Article 3(2) of the Framework Decision a ground for mandatory non-execution, although the issuing judicial authority is supposed to have itself verified that the acts attributed to the person concerned have not already been judged, the EU legislature expressly intended, first, that the ne bis in idem principle should constitute not only an obstacle to a second trial of the person concerned, but also an obstacle to his surrender and, secondly, that observance of that principle should not be left solely to the discretion of the issuing judicial authority, but should also be guaranteed by the executing judicial authority.
79. For that purpose, the Framework Decision lays down a whole series of rules allowing the executing judicial authority to ensure observance of that principle in practice. For example, the European arrest warrant must contain relevant information concerning the acts which may be attributed to the requested person. Provision is also made for the executing judicial authority to be required to hear that person. Finally, that authority may, if appropriate, request from the issuing judicial authority any necessary supplementary information in connection with the ground for mandatory non-execution.
80. I well understand, at this stage of the analysis, the Governments’ argument that the two-fold verification established by that system is actually only helpful when the requested person has already been judged in a Member State other than the issuing Member State. Indeed, the issuing judicial authority, which has perhaps not had the opportunity to hear the requested person, may, in the absence of a European criminal record centralising all the sentences delivered by the courts of all the Member States, reasonably be unaware that the case has already been judged in another Member State. On the other hand, such a risk would not exist in connection with a decision delivered in the issuing Member State, a fortiori where, as in the present case, the final judgment relied on by the requested person and the European arrest warrant were issued by the same court.
81. I do not believe that that argument can justify ruling out the application of Article 3(2) of the Framework Decision in the case of a final judgment delivered in the issuing Member State.
82. Admittedly, in accordance with the high level of confidence which must govern relations between the executing and issuing judicial authorities, it is not incumbent on the executing judicial authorities to ascertain of their own motion whether or not the acts referred to in the European arrest warrant have already been judged in the issuing Member State or in another Member State. Article 3(2) of the Framework Decision does not require such preliminary verification, since it provides that it is to apply ‘if the executing judicial authority is informed’ that the requested person has already been finally judged in respect of the same acts.
83. The question which arises is whether the reaction of that judicial authority, where it has such information, must differ according to whether the final judgment was delivered in the issuing Member State or in another Member State.
84. I do not think so for the following reasons. First, as the Commission of the European Communities has pointed out, Article 3(2) of the Framework Decision and the system intended to ensure compliance with it are not limited to cases in which the acts referred to in the European arrest warrant formed the subject-matter of a final judgment in a Member State other than the issuing Member State.
85. Secondly, the fundamental right which that provision of the Framework Decision seeks to protect has the same value in both cases.
86. The ne bis in idem principle, it should be recalled, is a fundamental right, which forms part of the legal system of all the Member States, as a principle inherent in the concept of the rule of law, and which has been expressly enshrined in the Charter.
87. It is settled case-law that the Member States, when implementing EU law, must do so in a manner consistent with fundamental rights. (34) That case-law is not limited to measures adopted in the context of the EC Treaty. It applies to all the measures taken in the context of the European Union, (35) since, by virtue of Article 6 EU, the Union is founded on the principle of the rule of law and it respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and as they result from the constitutional traditions common to the Member States.
88. Consequently, in the same way as the lawfulness of a measure adopted under the third pillar, such as the Framework Decision, may be reviewed in the light of fundamental rights, (36) the action of the Member States, when they implement such a measure, must be consistent with those same rights. The executing judicial authority is therefore bound by that obligation where it is responsible for executing a European arrest warrant, as is expressly stated in Article 1(3) of the Framework Decision.
89. By providing that the ne bis in idem principle constitutes a ground for mandatory non-execution and not solely a bar on a trial in the issuing Member State, the EU legislature took into consideration and sought to prevent any consequences detrimental to individual liberties which might result from the execution of a European arrest warrant in breach of that principle.
90. It must be remembered that the execution of a European arrest warrant results in the arrest of the requested person, then, where appropriate, his placing in custody for a period of up to 60 days in the executing Member State if the requested person does not consent to his surrender and finally his forced transfer to the issuing judicial authority in another Member State. In the light of the effects of those measures on individual liberties, the EU legislature rightly considered that the execution of a European arrest warrant must be regarded as forming an integral part of the proceedings brought by the issuing judicial authority.
91. Moreover, the situation in which the acts referred to in the European arrest warrant have been judged in the issuing Member State is not a purely internal situation, in relation to which respect for fundamental rights should be assessed solely in the light of the law of that Member State, subject to review by the European Court of Human Rights.
92. Indeed, from the moment that a requested person is the subject of a European arrest warrant, his situation is covered by EU law and the execution of that warrant must be consistent with the general principles of law governing the action of the European Union and that of the Member States when they implement that law.
93. In assessing whether or not Article 3(2) of the Framework Decision is applicable, the executing judicial authority does not actually verify whether the ne bis in idem principle as defined in the legal system of the issuing Member State has been respected by the issuing judicial authority, but verifies compliance with the principle set out in that provision of EU law, as defined by the Court.
94. Finally, the harmful effects for the requested person of executing a European arrest warrant in breach of that principle are equally serious, whether the acts were judged in the issuing Member State or in another Member State.
95. The executing judicial authority must therefore apply the ground for non-execution provided for in Article 3(2) of the Framework Decision if, by some unlikely chance, it so happens that the acts referred to in the European arrest warrant have already been the subject-matter of a final judgment in the issuing Member State, or if, after having received information to that effect and questioned the issuing judicial authority in order to ascertain the accuracy of that information, the executing judicial authority does not receive a satisfactory response from the issuing judicial authority.
96. It follows that, in this case, the German executing judicial authority, after the requested person confirmed to it that he had already been judged in Italy in respect of the acts referred to in the European arrest warrant issued by the Tribunale di Catania, rightly questioned the Italian judicial authorities in connection with the existence and content of that judgment in order to assess, in the light of that judgment, whether or not the ground for non-execution referred to in Article 3(2) of the Framework Decision was applicable.
97. Then, the German executing judicial authority, since it has doubts as to the scope of Article 3(2) of the Framework Decision in the circumstances of the case in the main proceedings and since the Court has not yet defined the meaning of the concept of ‘the same acts’ as referred to in that provision, reasonably submitted the present reference to the Court for a preliminary ruling.
98. The questions it referred, seeking clarification of the criteria on the basis of which that concept must be assessed, are entirely relevant for the resolution of the dispute in the main proceedings and are therefore admissible.
B – The first question referred
99. By its first question, the referring court asks, in essence, whether Article 3(2) of the Framework Decision must be interpreted as meaning that the concept of ‘the same acts’ as referred to in that provision must be determined according to the law of the issuing Member State or according to the law of the executing Member State or whether it is an autonomous concept, specific to the European Union.
100. The United Kingdom Government submits that the concept at issue must be determined in accordance with the law of the executing Member State for the following reasons.
101. First, according to that Government, Article 3(2) of the Framework Decision must be implemented in the same way as the other grounds for non-execution provided for in that article, which refer to the law of the executing Member State. (37)
102. Secondly, in the circumstances of the present case, the question of the degree of overlap between the relevant acts and the issue of whether it was an abuse of process or an infringement of the rights of the defence not to bring proceedings in respect of all the known offences at the time when proceedings were brought in respect of those offences in part only, fall within the scope of the substantive criminal law of each Member State.
103. Article 3(2) of the Framework Decision is therefore intended to apply precisely where the executing Member State confers on the ne bis in idem principle a broader scope than that given by the issuing Member State. If that were not the case and if the concept of ‘the same acts’ were to be given an autonomous and uniform definition, the issuing Member State would be unlikely to have issued the European arrest warrant in the first place.
104. I do not concur with that view. I am of the opinion, like the other Governments of the Member States which intervened in these proceedings and the Commission, that it is necessary to have regard to the fact that Article 3(2) of the Framework Decision, unlike Article 3(1) and (3) thereof, refers not to the law of the executing Member State for the purpose of determining its meaning, but solely to the law of the sentencing Member State and only as regards the particular point of whether the final judgment, where there has been a sentence, may no longer be executed.
105. I therefore support the view put forward by the other interveners that it is necessary to apply the settled case-law in accordance with which a provision of Community or EU law, where it makes no express reference to the law of the Member States for the purpose of determining its meaning and scope, must be given an autonomous and uniform interpretation throughout the Member States, having regard to the context of that provision and the objective pursued by the legislation of which it forms part. (38) The Court has already applied that case-law, as regards the Framework Decision, in order to interpret the terms ‘staying’ and ‘resident’ as referred to in Article 4(6) thereof. (39)
106. Article 3(2) of the Framework Decision must therefore be interpreted, in my view, as meaning that the concept of ‘the same acts’ as referred to in that provision constitutes an autonomous concept of EU law.
107. The Commission and the Governments supporting that approach propose that the Court should go further in its answer and rule that that concept must be interpreted in the same way as the concept of ‘the same acts’ as referred to in Article 54 of the CISA. I concur with their view.
108. It is necessary to define the meaning of the concept of ‘the same acts’ as referred to in Article 3(2) of the Framework Decision in order to answer the referring court’s second question. I also agree with the reasons put forward by those interveners for proposing to refer to Article 54 of the CISA.
109. First, the concepts are expressed in identical terms in most of the language versions. Admittedly, that is not the case in German, since Article 3(2) of the Framework Decision refers to the concept of ‘derselben Handlung’ whereas Article 54 of the CISA refers to that of ‘derselben Tat’. Nevertheless, the German Government itself points out in its observations that that terminological difference should not prevent the two provisions at issue from being interpreted in the same way.
110. Secondly, as that Government submits, the same interpretation is justified, in particular, by the similarity of the objectives pursued by the two provisions at issue.
111. Article 54 of the CISA, as we have seen, has the objective of ensuring that no one is prosecuted for the same acts in several Contracting States on account of his having exercised his right to freedom of movement. (40) In the circumstances of the present case, Article 54 of the CISA, assuming that a final judgment has been delivered in Italy in respect of the acts attributed to Mr Mantello in the European arrest warrant, would therefore preclude his retrial in respect of the same acts in Germany.
112. Article 3(2) of the Framework Decision is, in a sense, the measure complementing Article 54 of the CISA as regards the Italian Republic. By prohibiting the judicial authorities from executing the European arrest warrant issued against Mr Mantello, the latter provision is also intended to prevent his stay in Germany or in another Member State from being impeded where the acts referred to in that warrant have already been the subject-matter of a final judgment.
113. The ne bis in idem principle set out in Article 3(2) of the Framework Decision therefore works towards the same objective as Article 54 of the CISA. The latter provision has the objective of ensuring that a person who has already been judged is able to move freely without having to fear a fresh prosecution for the same acts in the Member State to which he goes. (41) Article 3(2) of the Framework Decision, for its part, has the aim of preventing that person’s stay in that State from being disturbed by the execution of a European arrest warrant issued by another Member State.
114. I therefore propose that the Court should supplement the answer to the first question by stating that the concept of ‘the same acts’ as referred to in Article 3(2) of the Framework Decision must be interpreted in the same way as the concept of ‘the same acts’ as referred to in Article 54 of the CISA.
C – The second question referred
115. By its second question, the Oberlandesgericht Stuttgart seeks to ascertain whether the fact that the Italian investigators, on 30 November 2005 when Mr Mantello was sentenced for possessing cocaine on 13 September 2005 with a view to its onward sale, already had evidence of his participation for several months in the trafficking of narcotic drugs between Germany and Italy is relevant for the purpose of assessing whether his surrender must be refused under Article 3(2) of the Framework Decision.
116. The referring court is therefore asking, essentially, whether Article 3(2) of the Framework Decision must be interpreted as meaning that the fact that the investigators, at the time when a person was prosecuted and convicted in respect of single act of possession of narcotic drugs, already had evidence of that person’s participation, for several months, in a criminal organisation for the purpose of trafficking in narcotic drugs, but failed to disclose it to the court having jurisdiction in the interests of the investigation justifies treating that participation in the criminal organisation and the single act of possession of narcotic drugs as constituting the same acts.
117. The referring court raises that question because that fact, within its national legal order, could, under certain circumstances, bar further prosecution in connection with the participation in the criminal organisation.
118. I take the view, like the Governments of the Member States and the Commission, which have intervened in these proceedings, that that fact is not relevant and that it cannot justify treating a single act of possession of narcotic drugs and the participation for several months in the trafficking of narcotic drugs as constituting ‘the same acts’, as that concept has been defined in the context of Article 54 of the CISA.
119. Indeed, we have seen that, according to settled case-law, the relevant criterion for assessing the idem element is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected. (42) That interpretation seeks to protect the legitimate expectations of a person who has already been sentenced and who has exercised his right to freedom of movement that he will not be prosecuted again for the same acts on account of the fact that they infringe a different rule of criminal law in each Member State and could be subject to a different classification.
120. According to Kraaijenbrink, (43) the mere fact that the court before which the second prosecution is brought finds that the alleged perpetrator acted with the same criminal intention does not suffice to infer that the acts form part of the same inseparable whole, for the purposes of Article 54 of the CISA. (44)
121. In the light of that case-law, the assessment of the concept of ‘the same acts’ within the meaning of Article 3(2) of the Framework Decision must therefore be carried out on the basis of a comparison of the acts objectively judged in the course of the first proceedings with those referred to in the European arrest warrant. It is necessary to determine whether, during the first proceedings, the person concerned was judged in respect of the acts referred to in the European arrest warrant.
122. It follows, first, that the moment at which the acts referred to in the European arrest warrant were discovered by the investigators is not relevant for the purpose of determining whether they are inextricably linked to the acts already judged.
123. It follows, secondly, that, in that comparison, the executing judicial authority must not take into consideration subjective factors. Accordingly, that authority must no more take into account the criminal intent of the requested person than have regard to the strategy of the investigating authorities.
124. Furthermore, as the Commission states, the question of what opportunities are available to those authorities for the purpose of effectively conducting ongoing investigations in difficult and major cases, such as those relating to organised crime, is a matter for the rules of criminal procedure of their Member State and that question is not relevant for the purpose of determining whether acts are identical, for the purposes of Article 3(2) of the Framework Decision.
125. Since the concept of the same acts is an autonomous concept of EU law, the fact that a similar situation would, where appropriate, result in a bar on further prosecution in the executing Member State under national law cannot justify a different assessment.
126. In the light of the case-law on the scope of the ne bis in idem principle in the context of Article 54 of the CISA, that principle therefore cannot be understood as meaning that it would require the investigating authorities to bring a prosecution, when charges are first brought, in respect of all the acts which may be attributed to the person concerned and to put them before the court.
127. Consequently, the fact that the investigating authorities, at the time when the requested person was prosecuted and convicted in respect of a single act of unlawful possession of narcotic drugs, had evidence of that person’s participation for several months in the trafficking of narcotic drugs, but chose not to bring a prosecution in connection with that evidence and not to disclose it to the court having jurisdiction in order not to jeopardise the proper conduct of the investigation and in order to allow the entire network to be dismantled cannot justify treating the latter acts as forming with the first act an inseparable whole covered by Article 3(2) of the Framework Decision.
128. Moreover, as stated by the French Government, the fact that the police authority chose, at the time of the prosecution which led to the sentence being passed on 30 November 2005, not to prosecute, in addition, the acts referred to in the European arrest warrant, in order not to prejudice the conduct of the investigation cannot be treated in the same way as a ‘final judgment’ in respect of those acts, for the purposes of Article 3(2) of the Framework Decision.
129. Indeed, in the light of the interpretation of that concept in the context of Article 54 of the CISA, given by the Court in Gözütok and Brügge, Miraglia and Turanský, all cited above, it should be recalled that the acts at issue were made known to neither the court before which the first case was brought nor the Public Prosecutor and that, in consequence, those acts were subject to no assessment as to their substance by an authority responsible for administering criminal justice in the legal system concerned. Moreover, the decision of the police authority not to bring a prosecution did not bar further prosecution within that legal order.
130. In this case, the fact that the Italian investigating authorities, when Mr Mantello was judged in November 2005 by the Tribunale di Catania for having possessed and transported, in Catania on 13 September 2005, 155.46 g of cocaine with a view to its onward sale, had evidence of his participation, from January 2004 to November 2005, in a criminal organisation for the purpose of trafficking cocaine does not therefore preclude his surrender to the Italian judicial authority under a European arrest warrant referring to his participation in that organisation.
131. Admittedly, it is for the Italian judicial authority to preclude further proceedings against Mr Mantello in connection with the acts in respect of which he has already been finally judged. However, compliance with that obligation is its responsibility and not that of the executing judicial authority. In accordance with the principle of mutual trust which underpins the system of the European arrest warrant, the executing judicial authority, once it has been able to verify that the facts referred to in the European arrest warrant are not indissociable from the facts already judged, has fulfilled its obligations to monitor compliance with the ne bis in idem principle and must decide whether the requested person is to be surrendered.
132. I therefore propose that the answer to the referring court’s question should be that Article 3(2) of the Framework Decision must be understood as meaning that the fact that the investigators, at the time when a person was prosecuted and convicted in respect of a single act of possession of narcotic drugs, already had evidence of that person’s participation, for several months, in a criminal organisation for the purpose of trafficking in narcotic drugs, but failed to disclose that evidence to the court having jurisdiction in the interests of the investigation does not justify treating that participation in the criminal organisation and the single act of possession of narcotic drugs as constituting ‘the same acts’ within the meaning of that provision.
V – Conclusion
133. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Oberlandesgericht Stuttgart as follows:
(1) Article 3(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States must be interpreted as meaning that the concept of ‘the same acts’ as referred to in that provision constitutes an autonomous concept of European Union law.
That concept has the same meaning as the concept of ‘the same acts’ as referred to in Article 54 of the 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, signed at Schengen on 19 June 1990.
(2) The fact that the investigators, at the time when a person was prosecuted and convicted in respect of a single act of possession of narcotic drugs, already had evidence of that person’s participation, for several months, in a criminal organisation for the purpose of trafficking in narcotic drugs, but failed to disclose that evidence to the court having jurisdiction in the interests of the investigation does not justify treating that participation in the criminal organisation and the single act of possession of narcotic drugs as constituting ‘the same acts’ within the meaning of that provision.