DB and LY v Nachalnik na Rayonno upravlenie Silistra pri Oblastna direktsia na Ministerstvo na vatreshnite raboti (C-520/20)

Contents

Judgment of the Court (First Chamber)16 June 2022^note(Reference for a preliminary ruling — Judicial cooperation in criminal matters — Second generation Schengen Information System (SIS II) — Decision 2007/533/JHA — Articles 38 and 39 — Alert on an object sought — Objectives of the alert — Seizure or use as evidence in criminal proceedings — Execution — Measures to be taken and action based on an alert — Surrender of the object seized to the Member State issuing the alert — National legislation not permitting a refusal to execute the alert)In Case C‑520/20,REQUEST for a preliminary ruling under Article 267 TFEU from the Administrativen sad – Silistra (Administrative Court, Silistra, Bulgaria), made by decision of 14 October 2020, received at the Court on 16 October 2020, in the proceedingsDB,LYvNachalnik na Rayonno upravlenie – Silistra pri Oblastna direktsia na Ministerstvo na vatreshnite raboti – Silistra,THE COURT (First Chamber),composed of A. Arabadjiev, President of the Chamber, L. Bay Larsen (Rapporteur), Vice-President of the Court, and A. Kumin, Judge,Advocate General: P. Pikamäe,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– LY and DB, by G. Ganeva, advokat,– the Bulgarian Government, by M. Georgieva and L. Zaharieva, acting as Agents,– the European Commission, by J. Tomkin and I. Zaloguin, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 13 January 2022,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 38(1) and Article 39(3) of Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ 2007 L 205, p. 63; ‘the SIS II Decision’).

2The request has been made in proceedings between, on the one hand, DB and LY, and, on the other, the Nachalnik na Rayonno upravlenie – Silistra pri Oblastna direktsia na Ministerstvo na vatreshnite raboti – Silistra (Head of the District Police Department, Silistra, under the Municipal Directorate of the Ministry of the Interior, Silistra, Bulgaria), concerning the latter’s decision to surrender to the issuing Member State an object seized following an alert entered by that State in the second generation Schengen Information System (‘SIS II’).

Legal context

European Union law

The SIS II Decision

3Recital 5 of the SIS II Decision is worded as follows:‘SIS II should constitute a compensatory measure contributing to maintaining a high level of security within the area of freedom, security and justice of the European Union by supporting operational cooperation between police authorities and judicial authorities in criminal matters.’

4Article 1 of that decision, entitled ‘Establishment and general purpose of SIS II’, provides, in paragraph 2 thereof:‘The purpose of SIS II shall be, in accordance with this Decision, to ensure a high level of security within the area of freedom, security and justice of the European Union including the maintenance of public security and public policy and the safeguarding of security in the territories of the Member States, and to apply the provisions of Title IV of Part Three of the EC Treaty relating to the movement of persons in their territories, using information communicated via this system.’

5Article 2(1) of that decision provides:‘This Decision establishes the conditions and procedures for the entry and processing in SIS II of alerts on persons and objects, the exchange of supplementary information and additional data for the purpose of police and judicial cooperation in criminal matters.’

6Article 3 of that decision, entitled ‘Definitions’, states, in paragraph 1 thereof:‘For the purposes of this Decision, the following definitions shall apply:(a) “alert” means a set of data entered in SIS II allowing the competent authorities to identify a person or an object with a view to taking specific action;(b) “supplementary information” means information not stored in SIS II, but connected to SIS II alerts, which is to be exchanged:(i) in order to allow Member States to consult or inform each other when entering an alert;(ii) following a hit in order to allow the appropriate action to be taken;…’

7Article 20(1) and (2) of the SIS II Decision provides:1. Without prejudice to Article 8(1) or the provisions of this Decision providing for the storage of additional data, SIS II shall contain only those categories of data which are supplied by each of the Member States, as required for the purposes laid down in Articles 26, 32, 34, 36 and 38.2.The categories of data shall be as follows:…(b) objects referred to in Articles 36 and 38.’

8Article 21 of that decision states:‘Before issuing an alert, Member States shall determine whether the case is adequate, relevant and important enough to warrant entry of the alert in SIS II.’

9Article 24 of that decision, entitled ‘General provisions on flagging’, provides, in paragraph 1 thereof:‘Where a Member State considers that to give effect to an alert entered in accordance with Articles 26, 32 or 36 is incompatible with its national law, its international obligations or essential national interests, it may subsequently require that a flag be added to the alert to the effect that the action to be taken on the basis of the alert will not be taken in its territory. The flag shall be added by the SIRENE Bureau of the Member State which entered the alert.’

10Article 38 of that decision provides:1. Data on objects sought for the purposes of seizure or use as evidence in criminal proceedings shall be entered in SIS II.2.The following categories of readily identifiable objects shall be entered:(a) motor vehicles with a cylinder capacity exceeding 50cc, boats and aircrafts;…’

11Article 39 of the SIS II Decision, entitled ‘Execution of the action based on an alert’, provides:1. If a search brings to light an alert for an object which has been located, the authority which matched the two items of data shall contact the authority which issued the alert in order to agree on the measures to be taken. For this purpose, personal data may also be communicated in accordance with this Decision.2. The information referred to in paragraph 1 shall be communicated through the exchange of supplementary information.3. The Member State which located the object shall take measures in accordance with national law.’

12Article 49 of the SIS II Decision states:1. A Member State issuing an alert shall be responsible for ensuring that the data are accurate, up-to-date and entered in SIS II lawfully.2. Only the Member State issuing an alert shall be authorised to modify, add to, correct, update or delete data which it has entered.3. If a Member State other than that which issued an alert has evidence suggesting that an item of data is factually incorrect or has been unlawfully stored, it shall, through the exchange of supplementary information, inform the Member State that issued the alert thereof at the earliest opportunity and not later than 10 days after the said evidence has come to its attention. The Member State that issued the alert shall check the communication and, if necessary, correct or delete the item in question without delay.…’

The SIRENE Manual

13The annex to Commission Implementing Decision 2013/115/EU of 26 February 2013 on the Sirene Manual and other implementing measures for the second generation Schengen Information System (SIS II) (OJ 2013 L 71, p. 1), as amended by Commission Implementing Decision (EU) 2017/1528 of 31 August 2017 (OJ 2017 L 231, p. 6) (‘the SIRENE Manual’), provides, in section 2.1 thereof:‘Definitions– “Issuing Member State”: Member State which entered the alert in SIS II.– “Executing Member State”: Member State which takes the required actions following a hit.– “Providing SIRENE Bureau”: SIRENE Bureau of a Member State which has fingerprints or pictures of the person for whom an alert was entered by another Member State.– “Hit”: a hit occurs in SIS II when:…(d) further actions are requested as a result of the hit.…’

14Section 8.3 of the SIRENE Manual, entitled ‘The exchange of information after a hit’, states:‘The SIRENE Bureaux may transmit further information on alerts entered under Article 38 of the SIS II Decision and in so doing may act on behalf of judicial authorities, if this information falls within the scope of mutual judicial assistance in accordance with national law.…’

Bulgarian law

The Zakon za Ministerstvoto na vatreshnite raboti

15The Zakon za Ministerstvoto na vatreshnite raboti (Law on the Ministry of the Interior) of 28 May 2014 (DV No 53 of 27 June 2014, p. 2), in the version applicable to the dispute in the main proceedings, provides, in Article 84 thereof:(1) Police authorities may temporarily seize an object for which an alert has been issued for the purpose of searches in the SIS and/or in the databases of the International Criminal Police Organisation (Interpol).…(6) … The surrender or seizure shall be notified to the Member State which entered the alert for the purpose of searches in the SIS and/or in Interpol.…(8) … If, within a period of 60 days, the Member State which entered the alert requests the return of the object, that object shall be returned to the person indicated in the request within a period of 7 days, on the decision of the head of the competent unit referred to in paragraph 6.…(13) … In the case of the surrender or seizure of … registration certificates and number plates which have been stolen, misappropriated, lost or invalidated, if these do not come within the categories referred to in paragraph 11, they shall be surrendered to the diplomatic mission or consulate of the Member State that issued the document, on the decision of the head of the competent unit referred to in paragraph 6, according to the established procedure.…’

Naredba No 8121z-465

16Article 7 of Naredba No 8121z-465 za organizatsiyata i funktsioniraneto na Natsionalnata Shengenska informatsionna sistema na Republika Bulgaria (Regulation No 8121h-465 on the organisation and operation of the National Schengen Information System of the Republic of Bulgaria) of 26 August 2014 (DV No 74 of 5 September 2014, p. 33), in the version applicable to the dispute in the main proceedings, provides:(1)The [National Schengen Information System (N.SIS)] shall process alerts on the following categories of objects:1. objects sought for the purposes of seizure or use as evidence in criminal proceedings (Article 38 of [the SIS II Decision]);(a) motor vehicles with a cylinder capacity exceeding 50cc, boats and aircrafts;…’

The dispute in the main proceedings and the question referred for a preliminary ruling

17EF, a Bulgarian national, purchased a motor vehicle by taking out a bank loan, on 23 December 2014, from Santander Consumer Bank AS, a bank established in Norway. That bank loan was secured by the financed vehicle.

18In May 2016, for an unspecified reason, EF ceased making repayments on that bank loan, and informed the bank that the vehicle was now in Bulgaria. The bank then instructed Lindorff AS to recover the debts relating to that vehicle.

19It is apparent from the request for a preliminary ruling that the same vehicle was subsequently purchased in Bulgaria by AB, who in turn sold it to DB in Varna (Bulgaria) in March 2017.

20On 24 May 2017, the Kingdom of Norway entered in the N.SIS an alert for the seizure of a vehicle as a ‘stolen, misappropriated or lost’ object.

21On 26 May 2017, the Bulgarian police authorities identified, in a car park in the municipality of Silistra (Bulgaria), a vehicle with a chassis number which fully matched the chassis number of the vehicle that was the subject of the alert. On the same day, that vehicle and its registration certificate were seized from DB, in whose name the vehicle had been registered.

22The Bulgarian SIRENE Bureau subsequently exchanged information with the Norwegian SIRENE Bureau; the latter indicated that the vehicle concerned had been the subject of an alert following the commission, on 23 December 2014, in Hordaland (Norway), of fraud or a breach of trust.

23On 6 June 2017, the Bulgarian authorities received a request from the Norwegian authorities that the vehicle be surrendered to its owner as designated, namely Santander Consumer Bank, via Lindorff, represented in Bulgaria by Plam EOOD.

24On 4 July 2017, that vehicle was surrendered to Plam’s managing director, CD.

25On 28 August 2019, the Head of the District Police Department, Silistra, under the Municipal Directorate of the Ministry of the Interior, Silistra, rejected the request made on 13 August 2019 by the applicants in the main proceedings for the immediate return of that vehicle.

26The applicants in the main proceedings then disputed, before the Administrativen sad – Silistra (Administrative Court, Silistra, Bulgaria), the lawfulness of the decision to surrender the vehicle concerned to the authorities of the issuing Member State, claiming that (i) there was no convincing evidence that criminal proceedings had actually been initiated in Norway in respect of that vehicle and (ii) they had acted in good faith when they purchased the vehicle.

27Taking the view that the relationship between Santander Consumer Bank and EF was a private-law one and that it had not been established that any criminal offences had been committed, the referring court requested the Head of the District Police Department, Silistra, under the Municipal Directorate of the Ministry of the Interior, Silistra, to inquire of the Norwegian police authorities whether any criminal proceedings had been initiated in Norway in respect of that vehicle and to produce an extract from the relevant provisions of the Norwegian Criminal Code, together with a translation thereof into Bulgarian, including the passages forming the basis for entering the alert on the vehicle concerned. That court also requested an official reply from the Norwegian authorities concerning the exact nature of the criminal offence which was the subject of the criminal proceedings concerned, as well as the current stage of those proceedings.

28By a letter submitted at a hearing before the referring court on 26 August 2020, that court was informed of the fact that, since the vehicle concerned had been located and repatriated to Norway, the case file had been closed on 10 July 2017.

29The referring court considers that, if no such criminal proceedings existed, the alert on the vehicle concerned in SIS II would not come within the scope of the SIS II Decision as defined in Article 2 thereof and, consequently, would have been entered in that system in disregard of the objectives pursued by such alerts, which are to be issued for the purposes of seizure or use as evidence in criminal proceedings in the Member State issuing those alerts.

30That court has doubts as regards the consistency with the SIS II Decision of national legislation which imposes on the competent authorities of the Member State that has located the object sought, which therefore act within the framework of circumscribed powers, an obligation to seize any object that is the subject of an alert for the purpose of searches in SIS II, where there are indications that the alert concerned has not been entered in SIS II in accordance with the objectives set out in Article 38(1) of that decision.

31In those circumstances, the Administrativen sad – Silistra (Administrative Court, Silistra) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Must Article 39 of [the SIS II Decision], and in particular Article 39(3) thereof, be interpreted as meaning that it allows national rules and administrative practices under which, if the competent executing authority has valid reason to conclude that the alert entered in the SIS is not covered by the objectives for which it has been registered, and in particular the objectives laid down in Article 38(1), that authority can and must refuse to execute it?’

Consideration of the question referred

32By its question, the referring court asks, in essence, whether Article 39 of the SIS II Decision is to be interpreted as precluding national legislation pursuant to which the competent authorities of the executing Member State are required to execute an alert on an object entered in SIS II, even though those authorities have doubts regarding the reasons, set out in Article 38(1) of that decision, for the entry of that alert.

33As a preliminary point, it is apparent from the order for reference that the subject of the alert concerned is a motor vehicle with a cylinder capacity exceeding 50 cc.

34In that regard, under Article 38(1) and Article 38(2)(a) of the SIS II Decision, data on such vehicles, sought for the purposes of seizure or use as evidence in criminal proceedings, are to be entered in SIS II.

35The execution of the action based on such an alert is governed by Article 39 of the SIS II Decision. That article refers to standardised actions and measures, which are essentially protective in nature, on the part of the authorities that have established that there is an alert on an object and refers, in paragraph 3 thereof, to national law as regards the choice of measures to be taken.

36Article 39(1) of that decision provides that, where a search brings to light an alert for an object which has been located, the authority which matched the two items of data is to contact the authority which issued the alert in order to agree on the measures to be taken.

37Point 2.2.2 of Appendix 2 to the SIRENE Manual states in that regard that, in accordance with the national law of the executing Member State, the actions to be taken are (i) seizing the object that has been located or taking all necessary protective measures, (ii) identifying the person in possession of that object, and (iii) contacting the SIRENE Bureau of the issuing Member State.

38Furthermore, Article 39(2) of the SIS II Decision adds that the information referred to in paragraph 1 of that article is to be communicated through the ‘exchange of supplementary information’, which is defined in Article 3(1)(b) of that decision as information not stored in SIS II, but connected to SIS II alerts, which is to be exchanged, inter alia, first, in order to allow Member States to consult or inform each other when entering an alert, and, second, following a hit in order to allow the appropriate action to be taken.

39Section 8.3 of the SIRENE Manual states that, when a hit is achieved on an alert for seizure or use as evidence issued, inter alia, on a vehicle pursuant to Article 38 of the SIS II Decision, supplementary information is to be sent by the SIRENE Bureaux ‘as quickly as possible’.

40In the light of that need for quick action, on which the operational cooperation in criminal matters between police authorities and judicial authorities implemented under the SIS II Decision depends, the authorities of the executing Member State must, for the purpose of executing the alert issued, take the necessary protective measures, without being exposed to a risk that the validity of that alert could be challenged on the grounds of uncertainty as to whether the authorities of the Member State which issued it have acted in line with the objectives referred to in Article 38(1) of that decision; in this instance, whether there are criminal proceedings relating to the object that is the subject of the alert in the Member State that issued that alert.

41That conclusion is all the more compelling since, in accordance with Article 1(2) of the SIS II Decision, the purpose of SIS II is, inter alia, to ensure a high level of security within the area of freedom, security and justice of the European Union including the maintenance of public security and public policy and the safeguarding of security in the territories of the Member States.

42It is in that context that, under Article 2(1) thereof, the SIS II Decision establishes the conditions and procedures for the entry and processing in SIS II of alerts on, inter alia, objects, the exchange of supplementary information and additional data for the purpose of police and judicial cooperation in criminal matters.

43As can be seen from Article 20(1) and (2) of the SIS II Decision, SIS II is to contain only those categories of data which are required for the purposes laid down in, inter alia, Article 38 thereof.

44Although it is apparent from this that alerts on objects must, under Article 38 of the SIS II Decision, pursue the objectives laid down therein, Article 21 of that decision states that it is for the Member States to determine, before issuing an alert, whether the case is adequate, relevant and important enough to warrant entry of the alert in SIS II.

45In addition, it should be noted that, as is apparent from Article 49(1) of the SIS II Decision, it is the Member State issuing the alert that is responsible for ensuring that the data are accurate, up-to-date and entered in SIS II lawfully, and Article 49(2) of that decision states that only that Member State is authorised to modify, add to, correct, update or delete data which it has entered.

46If a Member State other than that which issued an alert has evidence suggesting that an item of data is factually incorrect or has been unlawfully stored, Article 49(3) of that decision specifies that the Member State which has such evidence is to inform, through the exchange of supplementary information, the Member State that issued the alert thereof at the earliest opportunity and not later than 10 days after the said evidence has come to its attention. The Member State that issued the alert is to check the communication and, if necessary, correct or delete the item in question without delay.

47While it is true that, in certain situations, the SIS II Decision allows the executing Member State to require that a ‘flag’ be added to an alert, to the effect that the action to be taken on the basis of that alert will not be taken in its territory, as provided for by Article 24(1) of that decision, it should nevertheless be noted that that article applies, in the light of its wording, only to alerts entered in accordance with Articles 26, 32 or 36 of that decision, namely alerts on persons or objects for discreet checks or specific checks. It should be noted that that is not the case here, since the present case concerns an alert on an object entered for purposes other than those relating to a discreet check or a specific check, that is to say, for seizure or use as evidence in criminal proceedings.

48Furthermore, as the European Commission has submitted in its written observations, the exchange of information between the issuing Member State and the executing Member State and the adoption of necessary measures on the part of the Member State that has located the object that is the subject of the alert follow from the application of the principle of genuine cooperation. As is apparent from recital 5 of the SIS II Decision, the system established in that decision should support operational cooperation between police authorities and judicial authorities in criminal matters.

49In that regard, the Court has, moreover, held that the principle of genuine cooperation underpinning the Schengen acquis implies that the State consulting the SIS should give due consideration to the information provided by the Member State which issued the alert. In addition, the network of SIRENE Bureaux was set up specifically to provide information to national authorities faced with difficulties in enforcing an alert (judgment of 31 January 2006, Commission v Spain, C‑503/03, EU:C:2006:74, paragraphs 56 and 57).

50As the Advocate General noted in point 44 of his Opinion, if, in the context of the execution of an alert on an object, it were open to the authorities of the executing Member State to call into question the validity of an alert on an object, on the sole ground that there are indications that the objectives set out in Article 38(1) of the SIS II Decision have not been complied with, this could undermine the effectiveness of the operational cooperation between police authorities and judicial authorities in criminal matters implemented under that decision.

51As regards the object seized being potentially surrendered to the authorities of the Member State that issued the alert, as provided for in the present case in Article 84(8) of the Law on the Ministry of the Interior, in the version applicable to the dispute in the main proceedings, it should be noted that, while such a measure is not expressly apparent from the wording of Article 39 of the SIS II Decision, paragraph 3 of that article provides that the Member State which located the object is to take measures ‘in accordance with national law’.

52That provision thus refers to national law and in no way defines the precise measures which must be taken in that context by the authorities of the executing Member State. It follows that that provision cannot be interpreted as precluding those measures from encompassing measures for the surrender to the issuing Member State of the object that is the subject of the alert.

53Accordingly, having regard to the discretion enjoyed by the executing Member State as regards the choice of those measures pursuant to Article 39(3) of the SIS II Decision, that provision also does not preclude that Member State, once it has chosen to provide for such a surrender obligation, from being required to execute it, even if the competent authorities of that Member State have doubts regarding the fact that the alert has been entered for the reasons set out in Article 38(1) of that decision.

54In the light of all the foregoing considerations, the answer to the question referred is that Article 39 of the SIS II Decision must be interpreted as not precluding national legislation pursuant to which the competent authorities of the executing Member State are required to execute an alert on an object entered in SIS II, even though those authorities have doubts regarding the reasons, set out in Article 38(1) of that decision, for the entry of that alert.

Costs

55Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (First Chamber) hereby rules: Article 39 of Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) must be interpreted as not precluding national legislation pursuant to which the competent authorities of the executing Member State are required to execute an alert on an object entered in the second generation Schengen Information System, even though those authorities have doubts regarding the reasons, set out in Article 38(1) of that decision, for the entry of that alert.