Request for a preliminary ruling from the Tribunal Judiciaire de Paris (France) lodged on 14 November 2023 – Procureur de la République v SWIFTAIR (a company)

(Case C-701/23, SWIFTAIR)

Language of the case: French

Referring court

Tribunal Judiciaire de Paris

Parties to the main proceedings

Applicant: Procureur de la République

Defendant: SWIFTAIR (a company)

Questions referred

Is Article 54 of the CISA, ¹ read in the light of Article 50 of the Charter, ² to be interpreted as meaning that an order for provisional dismissal made in a Contracting State by a judicial body, from which an appeal lies, which follows a detailed investigation of the case, and prevents continuation of the proceedings unless there is new evidence, is to be regarded as a final disposal within the meaning of that article, even if, in the Contracting State in which that order for provisional dismissal was made, it does not have all the effects of a decision conferring full and complete res judicata status?

Is Article 54 of the CISA, read in the light of Article 50 of the Charter, to be interpreted as meaning that, in the case of an order for dismissal which constitutes a final disposal, and is capable of conferring the ne bis in idem protection provided for by that text, the ‘person whose trial has been finally disposed of’ is to be understood as referring to any person who was considered as a potential offender in the course of the investigation, and whose acts or omissions were investigated, even if no formal notice of proceedings or summons was issued in relation to that person?

3(a)    Is Article 54 of the CISA, read in the light of Article 50 of the Charter, to be interpreted as meaning that there is identity of persons between, on the one hand, natural persons who acted in the exercise of their company functions, on behalf and for the benefit of the legal person which they represent, and, on the other hand, the legal person itself, preventing any prosecution of a legal person in a Contracting State, if a trial of its legal representatives has been ‘finally disposed of’, within the meaning of EU law, in another Contracting State, even if the legal person was never prosecuted, in its own name, in that State?

3(b)    If the preceding question is answered in the affirmative, is Article 54 of the CISA, read in the light of Article 50 of the Charter, to be interpreted, in such a case, as meaning that ne bis in idem protection must be available to the legal person, even if the legal person could not in any circumstances have been prosecuted in the Contracting State of final disposal, either because legal persons do not have direct criminal responsibility in that State, or because legal persons have criminal responsibility only in respect of offences which could not be constituted by the facts to which the proceedings relate?

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¹ The Schengen acquis – Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common border (OJ 2000 L 239, p. 19).

¹ Charter of Fundamental Rights of the European Union.