OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 20 October 2022(1)
Case C‑365/21
MR
joined party:
Generalstaatsanwaltschaft Bamberg
(Request for a preliminary ruling from the Oberlandesgericht Bamberg (Higher Regional Court, Bamberg, Germany))
(Convention implementing the Schengen Agreement – Article 54 – Reservation in relation to the application of the principle ne bis in idem – Article 55 – Offence against national security or other equally essential interests – National declarations – Compatibility with Articles 50 and 52 of the Charter of Fundamental Rights of the European Union)
I. Introduction
1. The Court has been faced numerous times with questions of the principle ne bis in idem contained in Article 54 of the Convention Implementing the Schengen Agreement (‘the CISA’), (2) but only once with the compatibility of declarations restricting that principle, based on Article 55 of the CISA. In that previous case, the Court did not need to reply to a question on that point, given that the Court’s answer to another question in the same case removed the need to rule on the validity of a declaration. (3) The present case provides the Court with the opportunity to clarify that question.
II. Legal framework
A. European Union law
1. The CISA
2. Title III of the CISA on ‘Police and security’ includes inter alia Chapter 3, entitled ‘Application of the ne bis in idem principle’, which contains Articles 54 and 55 of that convention. Article 54 of the CISA provides:
‘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.’
3. Article 55 of the CISA is worded as follows:
‘1. A Contracting Party may, when ratifying, accepting or approving this Convention, declare that it is not bound by Article 54 in one or more of the following cases:
(a) where the acts to which the foreign judgment relates took place in whole or in part in its own territory; in the latter case, however, this exception shall not apply if the acts took place in part in the territory of the Contracting Party where the judgment was delivered;
(b) where the acts to which the foreign judgment relates constitute an offence against national security or other equally essential interests of that Contracting Party;
(c) where the acts to which the foreign judgment relates were committed by officials of that Contracting Party in violation of the duties of their office.
2. A Contracting Party which has made a declaration regarding the exception referred to in paragraph 1(b) shall specify the categories of offences to which this exception may apply.
3. A Contracting Party may at any time withdraw a declaration relating to one or more of the exceptions referred to in paragraph 1.
4. The exceptions which were the subject of a declaration under paragraph 1 shall not apply where the Contracting Party concerned has, in connection with the same acts, requested the other Contracting Party to bring the prosecution or has granted extradition of the person concerned.’
4. Under Article 56 of the CISA:
‘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.’
5. The CISA was incorporated into EU law by the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and to the Treaty establishing the European Community by the Treaty of Amsterdam. (4) Subsequently, Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union was annexed to the Treaty of Lisbon (‘Protocol (No 19)’). (5)
6. Under Article 7 of Protocol (No 19): (6)
‘For the purposes of the negotiations for the admission of new Member States into the European Union, the Schengen acquis and further measures taken by the institutions within its scope shall be regarded as an acquis which must be accepted in full by all States candidates for admission.’
2. Framework Decision 2008/841/JHA
7. Under Article 2 of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime, (7) headed ‘Offences relating to participation in a criminal organisation’: ‘Each Member State shall take the necessary measures to ensure that one or both of the following types of conduct related to a criminal organisation are regarded as offences: (a) conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organisation or its intention to commit the offences in question, actively takes part in the organisation’s criminal activities, including the provision of information or material means, the recruitment of new members and all forms of financing of its activities, knowing that such participation will contribute to the achievement of the organisation’s criminal activities; (b) conduct by any person consisting in an agreement with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences referred to in Article 1, even if that person does not take part in the actual execution of the activity.’
B. German law
8. When ratifying the CISA, the Federal Republic of Germany made a ‘reservation’ (8) in relation to Article 54 of the CISA, pursuant to Article 55(1)(b) thereof (BGBl. 1994 II, p. 631), providing, inter alia, that the Federal Republic of Germany is not bound by Article 54 of the CISA where the acts to which the foreign judgment relates constitute the offence provided for in Paragraph 129 of the Strafgesetzbuch (German Criminal Code, ‘StGB’).
9. Paragraph 129 of the StGB, entitled ‘Forming criminal organisations’, in the version applicable to the main proceedings, reads as follows:
‘(1) Whoever forms an organisation or participates as a member in an organisation the objectives or activities of which are directed at the commission of offences which incur a penalty of a maximum term of imprisonment of at least two years incurs a penalty of imprisonment for a term not exceeding five years or a fine. Whoever supports such an organisation or recruits members or supporters for such an organisation incurs a penalty of imprisonment for a term not exceeding three years or a fine.
(2) An organisation is a structured association of more than two persons, established to exist for a longer period of time, regardless of whether it has formally defined roles for its members, continuous membership or a developed structure and whose purpose is the pursuit of an overriding common interest.
...
(5) In especially serious cases under subparagraph (1), sentence 1, the penalty is imprisonment for a term of between six months and five years. An especially serious case typically occurs where the offender is one of the ringleaders or persons operating behind the scenes of the organisation. …’
III. Facts, procedure and the questions referred
10. The Generalstaatsanwaltschaft Bamberg/Zentralstelle Cybercrime Bayern (Bamberg Prosecution Service/Bavaria Central Cybercrime Division, Germany) is, among other things, conducting an investigation, including against MR, an Israeli national, on suspicion of formation of a criminal organisation and of engaging in investment fraud.
11. On 8 December 2020, the investigating judge of the Amtsgericht Bamberg (Local Court, Bamberg, Germany) ordered that MR be detained on remand (national arrest warrant). The reason given for his arrest was the risk of absconding. The investigating judge of the Amtsgericht Bamberg (Local Court, Bamberg) took the view that there was good cause to suspect that the offence of formation of a criminal organisation had been committed in multiple offences involving commercial fraud as a member of an organised gang within the meaning of Paragraph 129(1), the first and second sentences of Paragraph 129(5), Paragraph 263(1), point 1 of the second sentence of Paragraph 263(3), Paragraph 263(5), Paragraph 25(2) and Paragraph 53 of the StGB. On 11 December 2020, that court issued a European arrest warrant on the basis of the national arrest warrant.
12. MR has previously been sentenced by final judgment of the Landesgericht Wien (Regional Court, Vienna, Austria) of 1 September 2020 to a term of imprisonment of four years for serious commercial fraud and money laundering. MR has since served part of the four-year custodial sentence imposed by that judgment. He was released on parole for the remainder of his custodial sentence with effect from 29 January 2021.
13. However, on the same date, following an order by the Landesgericht Wien (Regional Court, Vienna) of 29 January 2021, MR was remanded in custody in Austria pursuant to the European arrest warrant issued by the investigating judge of the Amtsgericht Bamberg (Local Court, Bamberg). MR was held in custody until 18 May 2021. Since then, he has been in immigration detention pending removal (to Israel). According to unofficial information, he may have already arrived in Israel.
14. MR brought appeals against the national arrest warrant and the European arrest warrant issued on the basis of that national warrant. By order of 8 March 2021, the Landgericht Bamberg (Regional Court, Bamberg, Germany) dismissed those appeals as unfounded. That court held that the sentence imposed on MR by the Landesgericht Wien (Regional Court, Vienna) was handed down only in respect of the acts of fraud committed to the detriment of injured parties in Austria. MR is now being prosecuted for acts of fraud committed to the detriment of injured parties in Germany. Since those two appeals do not concern the same injured parties, they do not constitute the same offence within the meaning of Article 54 of the CISA and Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In the alternative, the Landgericht Bamberg (Regional Court, Bamberg) referred to Article 55(1)(b) of the CISA since, in the present case, MR is being prosecuted for an offence under Paragraph 129 of the StGB, in respect of which the Federal Republic of Germany expressed a reservation to that effect when ratifying the CISA.
15. MR brought a subsequent appeal against that order of the Landgericht Bamberg (Regional Court, Bamberg). That subsequent appeal is pending before the referring court, which has requested a preliminary ruling for the purpose of its adjudication.
16. The referring court asks whether there is any impediment to prosecution under EU law. If that is the case, the national arrest warrant would have to be annulled and thus the European arrest warrant would no longer have any basis.
17. The question of whether there is any impediment to prosecution depends upon whether the German arrest warrant and the European arrest warrant have been issued in order to prosecute MR for an act in relation to which he has already been prosecuted and sentenced by the Austrian authorities.
18. That depends upon the facts on which the German national arrest warrant was based and the facts on which the judgment of the Landesgericht Wien (Regional Court, Vienna) was based.
19. MR is accused in the national arrest warrant of having created and maintained, with his accomplices, a network of ‘cybertrading’ companies in which the so-called agents employed for customer acquisition and support (‘conversion agents’ and ‘retention agents’) in accordance with a plan of action offered investments promising financial rewards to bona fide investors (customers) in a number European countries, including Germany and Austria, from call centres abroad, including in Bulgaria. In that way, the agents encouraged investors to make payments which were collected directly as the proceeds of crime. Special software was used to make investors believe that they had lost their investment. The profit from the proceeds of crime, after deduction of staff and non-staff costs for the call centres and the persons working there (including the agents), was channelled to MR and his accomplices via circuitous routes to conceal the money flows. MR’s role, and that of his accomplices, was to organise the business that was a prerequisite for the individual acts of fraud committed by the agents to the detriment of the individual injured parties. Thus, MR only assumed managerial duties, while the agents in the call centres, who were grouped in divisions based on the injured parties’ mother tongue (on the ‘German Desk’ for Germany and Austria), were managed by heads of department. According to the findings of the referring court, the acts of which MR stands charged, and which formed the basis of the German national arrest warrant and the conviction by the Landesgericht Wien (Regional Court, Vienna) are the same in that regard.
20. The referring court clarifies that, under German law, there is no impediment to prosecution. Moreover, it clarifies that it does not share the view of the Landgericht Bamberg (Regional Court, Bamberg), according to which the fact of the acts being the same is automatically precluded as the victims were different (the German national arrest warrant refers to financial losses incurred in Germany and to German injured parties, whereas the judgment of the Landesgericht Wien (Regional Court, Vienna) refers to losses incurred in Austria and Austrian injured parties). Also, unlike the Landgericht Bamberg (Regional Court, Bamberg), the referring court has doubts as to whether or not there is any impediment to prosecution under EU law.
21. As there is no impediment to prosecution under national law, the only question that arises is whether there is any procedural impediment due to the principle ne bis in idem laid down in Article 54 of the CISA and Article 50 of the Charter. Should such impediment exist, it would then be necessary to clarify whether Article 54 of the CISA would still be relevant in the present case. That article would not apply if Article 55 of the CISA and the declaration made by the Federal Republic of Germany under that article when ratifying the CISA remain valid.
22. Moreover, the referring court seeks guidance on whether the declaration made in respect of Paragraph 129 of the StGB by the Federal Republic of Germany when ratifying the CISA is compatible with Article 55(1)(b) of the CISA to that extent (that is to say, where the organisation engages exclusively in financial crime, but does not, in addition, pursue political, ideological, religious or world-view objectives).
23. It that context, the Oberlandesgericht Bamberg (Higher Regional Court, Bamberg, Germany), by order of 4 June 2021, received at the Court on 11 June 2021, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Article 55 of the [CISA] compatible with Article 50 of the [Charter] and does it continue to be valid in so far as it admits, as an exception to the prohibition of double prosecution, that a Contracting Party may, when ratifying, accepting or approving that Convention, declare that it is not bound by Article 54 of the CISA where the acts to which the foreign judgment relates constitute an offence against national security or other equally significant interests of that Contracting Party?
(2) If Question 1 is answered in the affirmative:
Do Articles 54 and 55 of the CISA and Articles 50 and 52 of the Charter preclude an interpretation by the German courts of the declaration made by the Federal Republic of Germany when ratifying the CISA in relation to Paragraph 129 of the [StGB] that the declaration also covers criminal organisations, such as those at issue in the main proceedings, which engage exclusively in financial crime and do not, in addition, pursue any political, ideological, religious or world-view objectives and also do not seek to gain influence by dishonest means over politics, the media, the public administration, the judiciary or the economy?’
24. Written observations were submitted by MR, the Austrian, French and German Governments and the European Commission. At the hearing on 7 July 2022, those parties and the Generalstaatsanwaltschaft Bamberg presented oral argument.
IV. Analysis
A. The first question
25. By its first question, the referring court asks, in essence, whether a declaration based on Article 55(1)(b) of the CISA is compatible with Article 50 and Article 52(1) of the Charter.
26. That calls for a brief classification and categorisation of Article 54 and Article 55(1)(b) of the CISA in the EU legal framework.
1. Article 54 of the CISA
27. Article 54 of the CISA enshrines the principle ne bis in idem in the CISA by declaring that a person whose trial has been finally disposed of in a Contracting Party (9) 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.
28. The principle ne bis in idem constitutes a fundamental right, known to any legal order based on the rule of law. Since its inception, it has served to protect individuals against the arbitrariness of being tried several times for the same act under different descriptions. (10) In an area of freedom, security and justice marked by the abolition of internal borders, it serves the ‘additional purpose’ (11) of ensuring freedom of movement. In a wider sense, it also falls within the principle of mutual trust between Member States: if the authorities of Member State A have convicted or acquitted a person in criminal proceedings, those of Member State B should trust the outcome of such proceedings and should no longer be able to bring proceedings. In such a situation, as is common in other areas of EU law, the principle of territoriality inherent in any national criminal justice system is disrupted by the area of freedom of security and justice.
29. The Court has accordingly ruled, in its first case on ne bis in idem under the CISA – which was incidentally the first case on the interpretation of the CISA – (12) that whether the principle ne bis in idem enshrined in Article 54 of the CISA is applied to procedures whereby further prosecution is barred (regardless of whether a court is involved) or to judicial decisions, there is a necessary implication 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. (13)
30. With respect to the compatibility of Article 54 of the CISA with the Charter, the Court held in the Spasic judgment (14) that while a provision such as Article 54 of the CISA must be regarded as respecting the essence of the principle ne bis in idem enshrined in Article 50 of the Charter, (15) the question of whether the restriction entailed by the execution condition referred to in Article 54 of the CISA is proportionate must be assessed in line with Article 52(1) of the Charter. The Court came to the conclusion that the restriction is proportionate. (16)
31. In a similar vein, the non-binding but nevertheless instructive (17) explanations relating to the Charter as regards Article 50 expressly mention Article 54 of the CISA among the provisions covered by the horizontal clause in Article 52(1) of the Charter. (18)
2. Article 55(1)(b) of the CISA – declarations on exceptions to ne bis in idem
(a) General considerations
32. Article 55(1) of the CISA provides for a range of exceptions to the principle ne bis in idem by enabling Contracting Parties to declare not to be bound by Article 54 of the CISA under certain circumstances. That provision thus stipulates that a Contracting Party may, when ratifying, accepting or approving the CISA, declare that it is not bound by Article 54 in one or more of the following cases: (a) where the acts to which the foreign judgment relates took place in whole or in part in its own territory; in the latter case, however, that exception is not to apply if the acts took place in part in the territory of the Contracting Party where the judgment was delivered; (b) where the acts to which the foreign judgment relates constitute an offence against national security or other equally essential interests of that Contracting Party; and (c) where the acts to which the foreign judgment relates were committed by officials of that Contracting Party in violation of the duties of their office.
33. In accordance with Article 139(1) of the CISA, the instruments of ratification, acceptance or approval are to be deposited with the Government of the Grand Duchy of Luxembourg, which is to notify all the Contracting Parties thereof.
34. Following the incorporation of the Schengen acquis into the EU legal order by the Treaty of Amsterdam, the CISA constitutes an act of EU law.
35. At the outset it should be stressed that, concerning the legal nature of such declarations, they should not be understood to constitute ‘reservations’ in the sense of Article 2(1)(d) of the Vienna Convention on the Law of Treaties. (19) That results not only from the fact that, further to the integration of the Schengen acquis into the EU legal order, the CISA is considered an EU act which, by definition, leaves no room for a ‘reservation’ under the Vienna Convention, but also from Article 137 of the CISA which allows for ‘reservations’ only in the context of Article 60 of the CISA. (20) As a consequence, the term ‘declaration’ should be resorted to rather than the term ‘reserve’. (21) Such declaration should be analysed purely from an EU law perspective and it is not appropriate to resort to general public international law in that context.
(b) Compatibility with Article 50 and Article 52(1) of the Charter
36. The question then arises – and it is here that the referring court seeks guidance – as to whether a declaration based on Article 55(1)(b) of the CISA, in particular, is compatible with the Charter, more specifically, with Article 50 and Article 52(1) of the Charter. Such an exception falls within the scope of the Charter (22) as is expressly provided for in the CISA, which is an act of (what is now) EU law and which allows Member States to restrict a fundamental right, requiring them to notify such a restriction.
37. The Court has not as yet ruled on the question of the compatibility with higher-ranking law of the exceptions provided for in Article 55 of the CISA. In Kossowski (23) it declined to rule on the question of whether declarations made pursuant to Article 55(1)(a) of the CISA, that is to say, declarations that a Member State is not bound by Article 54 of the CISA where the acts to which the foreign judgment relates took place in whole or in part in its own territory, (24) remain in force following the integration of the Schengen acquis into the EU legal order, given that in that case there was no longer any need to answer the question, as a result of the Court’s reply to another question. Nevertheless, Advocate General Bot, after a thorough analysis, found that the exception contained in Article 55(1)(a) did ‘not respect the essence of the ne bis in idem principle as expressed in Article 50 of the Charter’. (25) I shall come back to Advocate General Bot’s Opinion below. (26)
38. Exceptions to the principle enshrined in Article 50 of the Charter are, in principle, possible, as long as they meet the requirements of Article 52(1) of the Charter. (27) It must therefore, just as in the Spasic judgment, referred to above, be ascertained whether the exception provided for in Article 55(1)(b) of the CISA satisfies the test of Article 52(1) of the Charter.
39. Pursuant to Article 52(1) of the Charter, any limitations on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
(1) Limitation
40. A declaration based on Article 55(1)(b) of the CISA undoubtedly constitutes a limitation to the fundamental right of ne bis in idem, given that the very purpose of that provision is to offset that fundamental right under certain circumstances.
(2) Provided for by law
41. As the possibility to make declarations and, therefore, to provide for limitations to the principle ne bis in idem, figures in Article 55(1)(b) of the CISA, which is under examination here, one might, at first sight, assume that it is provided for by law, as required by Article 52(1) of the Charter.
42. Nevertheless, I would submit that the legal situation is not as straightforward as it may appear at first sight. Indeed, the question of whether Article 55(1)(b) of the CISA still applies at all is inextricably linked to the question of whether the declarations made on that basis apply. Put differently, if there is no possibility to rely on a declaration, the entire mechanism established by Article 55(1)(b) of the CISA no longer applies.
43. As the Austrian Government correctly points out in its written observations, in order to meet the test of being provided for by law, the law must, first, be adequately accessible, meaning that the person concerned must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case and must be able to foresee the consequences which a given action may entail and, secondly, be formulated with sufficient precision to enable the person concerned to regulate his or her conduct.(28)
44. Article 55(1)(b) of the CISA, on the face of it, appears to fulfil the abovementioned criteria: it is clearly formulated and allows anyone to ascertain that Member States can provide for exceptions to the principle ne bis in idem so as to safeguard their national security or other equally essential interests. Nevertheless, courts in some Member States (Italy (29) and Greece (30)) appear to harbour doubts as to the validity of the declarations of their respective Member States under Article 55(1)(b) of the CISA. Here, the reasoning is that declarations are no longer valid because Article 55(1)(b) of the CISA should no longer be applied.
45. As for the declarations of the Member States based on that provision, another picture emerges.
46. As a preliminary remark, further to the integration of the CISA into the EU legal order, it is difficult to comprehend how Article 139 of the CISA, according to which the instruments of ratification, acceptance or approval are to be deposited with the Government of the Grand Duchy of Luxembourg, which is to notify all the Contracting Parties thereof, can still be upheld. The publication of exceptions to a fundamental right, guaranteed by the Charter, in a situation in which the possibility to make exceptions is provided for by an act of EU law, cannot be left to the government of a Member State but should be done at the EU level, preferably in the Official Journal. Indeed, the fact that the declarations have not been published by the European Union (whether in the Official Journal or elsewhere) makes it difficult to determine precisely which Contracting Parties have made such declarations.
47. There is an absolute lack of accessibility and foreseeability, as required by the European Court of Human Rights, regarding the existence and, as the case may be, the publication of the exceptions adopted by Member States. That is due to the fact that it is unclear, for Member States as well as for holders of fundamental-right, whether Article 55(1)(b) of the CISA still applies.
48. It is safe to state that eight Member States (31) (then ‘Contracting Parties’) (Denmark, Germany, Greece, France, Italy, Austria, Finland, and Sweden) made declarations pursuant to Article 55(1) of the CISA before the Schengen acquis was integrated into the EU legal order. (32) Nevertheless, the French declaration never reached the depositary (the Luxembourg Government). (33) Furthermore, there is no proof that Italy notified the depositary. Moreover, no single declaration appears to have been made by any Member State subsequent to the integration of the Schengen acquis into the EU legal order. (34) The Accession Treaties of 2003, 2005 and 2012 thus provided that the provisions of Protocol (No 19), and the acts building upon it or otherwise related to it, are binding on and applicable in the new Member States from the date of accession. (35) However, there are no indications about the possibility of those Member States making declarations, the time limit for doing so and the obligation to deposit them with the depositary or publish them. This creates a state of considerable uncertainty.
49. Given that none of the declarations have been published at the EU level, I do not see the requirement of accessibility as being fulfilled. It is not reasonable to expect individuals potentially concerned by such declarations to inform themselves on each national level, as the French Government implied during the hearing.
50. Against the background I have just described, I have great difficulty in regarding the declarations made by the eight Member States as still constituting good law. The entire situation appears too unclear and confusing as to provide certainty regarding the legal basis of the restriction. (36)
51. As a consequence, I consider the declarations made on the basis of Article 55(1)(b) of the CISA not to be in conformity with the requirement of Article 52(1) of the Charter that a restriction must be provided for by law. Since those declarations are, as shown above, inextricably linked with Article 55(1)(b) of the CISA, the entire mechanism of that provision is affected and can no longer be applied by national courts.
(3) The essence of ne bis in idem
52. As to the question of whether Article 55(1)(b) ‘respect[s] the essence’ of the fundamental right of ne bis in idem, it should be stressed that the Court held, with respect to the execution condition contained in Article 54 of the CISA that that condition ‘does not call into question the ne bis in idem principle as such.’ (37) Yet, the exception contained in Article 55(1)(b) of the CISA, much like the other exceptions provided by Article 55(1) of the CISA, does call into question that principle as such, given that a Member State can declare not to be bound by that principle at all, in certain situations. As MR submits in his written observations, in contrast to the execution condition of Article 54 of the CISA, which serves to prevent an avoidance of punishment, the exception provided for in Article 55(1)(b) of the CISA enables a renewed prosecution, conviction and enforcement of a sentence despite a conviction that has become final and has been enforced. That runs directly counter to the very purpose of the principle ne bis in idem. (38)
53. Moreover, I should like to refer to Advocate General Bot who stressed, in that connection, the particular importance of the area of freedom, security and justice as a supporting dimension to the internal market, which encompasses ‘a legal framework containing the individual rights of citizens of the Union’ (39) and which thus contributes to giving the concept of Union citizenship ‘concrete reality’. (40) He also emphasised the fundamental importance of the principle of mutual recognition (and mutual trust) in relation to the principle ne bis in idem. (41) In essence, his claim was that the Court’s case-law on Article 54 of the CISA already allows a substantial range of offences to be taken into account; an additional application of the territoriality proviso would not sufficiently take into account the principle ne bis in idem.
54. I must admit that I not only have sympathy with that reasoning, but also think it can be transposed to the situation of Article 55(1)(b) of the CISA. The exceptions contained in both Article 55(1)(a) and Article 55(1)(b) of the CISA relate to the territoriality principle underlying criminal law: while in the case of point (a), a state wishes to retain criminal jurisdiction if an act has been committed on its territory, in the case of point (b), it wishes to retain criminal jurisdiction regarding offences against its national security and other equally essential interests it holds dear. As a consequence, the reasoning deployed by Advocate General Bot in Kossowski applies mutatis mutandis in the present case.
55. The area of freedom, security and justice has come a long way since the adoption of the CISA. In particular, with the gradual development of the principles of mutual trust and recognition and the entry into force of the Charter, the exceptions provided for in Article 55(1) of the CISA appear to me to be redundant. I should also like to recall that the principle of mutual trust has been decisive in the Court’s finding that the draft accession agreement to the ECHR was not compatible with the Treaties. (42) Against that background, it would be difficult to justify upholding exceptions such as the one at issue, which clearly runs contrary to that principle. (43)
(4) Conclusion
56. For all the reasons set out above, I take the view that the declarations no longer apply. They are not provided for by law and, moreover, Article 55(1)(b) of the CISA does not respect the essence of the principle ne bis in idem. The declarations should be put to rest.
57. I therefore propose to the Court that the answer to the first question should be that declarations made on the basis of Article 55(1)(b) of the CISA are not compatible with Article 50 and Article 52(1) of the Charter. Provisions referred to in such declarations cannot be applied in judicial proceedings.
B. The second question
58. As a result of my analysis of the first question, there is no longer any need to examine the second question. The assessment which follows is, therefore, made for the sake of completeness, should the Court arrive at a different conclusion regarding the first question.
59. By its second question, the referring court, in essence, seeks to ascertain whether Articles 54 and 55 of the CISA and Articles 50 and 52 of the Charter preclude an interpretation under which the declaration made pursuant to Article 55(1)(b) of the CISA also covers criminal organisations which engage exclusively in financial crime and do not, in addition, pursue any political, ideological, religious or world-view objectives and also do not seek to gain influence by dishonest means over politics, the media, the public administration, the judiciary or the economy.
60. In that respect, I note that the term ‘national security’ has been chosen in Article 55(1)(b) of the CISA by the Contracting Parties. The same term appears in Article 4(2) TEU where it is stated that the Union is to respect Member States’ essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. That same provision goes on to specify that, in particular, national security remains the sole responsibility of each Member State. (44)
61. The Court has been careful to distinguish such ‘national security’ exceptions from regular ‘public security’ exceptions justified on grounds of public policy (ordre public), which are, above all, prevalent in the domain of the internal market. (45) It has held that national security corresponds to the primary interest in protecting the essential functions of the State and the fundamental interests of society and encompasses the prevention and punishment of activities capable of seriously destabilising the fundamental constitutional, political, economic or social structures of a country and, in particular, of directly threatening society, the population or the State itself, such as terrorist activities. (46) The objective of safeguarding national security goes beyond the objectives of combating crime in general, even serious crime, and of safeguarding public security. Threats to national security can be distinguished, by their nature and particular seriousness, from the general risk that tensions or disturbances will arise, even those of a serious nature, affecting public security. The objective of safeguarding national security is therefore capable of justifying measures entailing more serious interferences with fundamental rights than those which might be justified by those other objectives. (47)
62. Under the German declaration, made pursuant to Article 55(1)(b) of the CISA, Germany is not bound by Article 54 of the CISA for a number of criminal offences, including that of Paragraph 129 of the StGB. Under that provision, the formation or support of an organisation the objectives or activities of which are directed at the commission of offences is punishable. Since the transposal, by Germany, of Framework Decision 2008/841, (48) an ‘organisation’ has been defined under that provision as ‘a structured association of more than two persons, established to exist for a longer period of time, regardless of whether it has formally defined roles for its members, continuous membership or a developed structure and whose purpose is the pursuit of an overriding common interest’.
63. It is common ground in Germany, both in the case-law and in legal doctrine that that provision, which has the objective of protecting public policy (ordre public), (49) targets the abstract danger and high ‘criminal intensity’ (50) inherent in the formation of a criminal gang. That has as a consequence that criminal penalties are imposed at a stage when (other) crimes are typically in their preparatory stage.
64. Paragraph 129 of the StGB prohibits criminal activity beyond the rather narrow scope of safeguarding national security. Indeed, forming an organisation in order to pursue any other criminal activity is caught by that provision. The case at issue is a good illustration of that: MR and his accomplices engaged in financial crime, primarily in fraud. No further objectives were pursued or implemented. In such a situation, there is no indication whatsoever that Germany’s national security is at stake. Defrauding a considerable number of people does not come close to shaking the foundations of the Federal Republic of Germany. (51)
65. As a consequence, I propose to the Court that the answer to the second question should be that Articles 54 and 55 of the CISA and Articles 50 and 52 of the Charter preclude an interpretation under which the declaration made pursuant to Article 55(1)(b) of the CISA also covers criminal organisations which engage exclusively in financial crime and do not, in addition, pursue any political, ideological, religious or world-view objectives and also do not seek to gain influence by dishonest means over politics, the media, the public administration, the judiciary or the economy.
V. Conclusion
66. In the light of all the foregoing considerations, I propose that the Court should answer the questions referred by the Oberlandesgericht Bamberg (Higher Regional Court, Bamberg, Germany) as follows:
Declarations made on the basis of Article 55(1)(b) 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 are not compatible with Article 50 and Article 52(1) of the Charter of Fundamental Rights of the European Union. Provisions referred to in such declarations cannot be applied in judicial proceedings.