Criminal proceedings against Swiftair SA (C-701/23)

Contents

Judgment of the Court (Sixth Chamber)3 April 2025^note(Reference for a preliminary ruling — Principle ne bis in idem — Convention implementing the Schengen Agreement — Article 54 — Charter of Fundamental Rights of the European Union — Article 50 — Order for provisional dismissal made in a Member State in respect of natural persons deceased and previously employed by a legal person — Criminal proceedings brought against that legal person in another Member State — Inadmissibility)In Case C‑701/23,REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal judiciaire de Paris (Court of Paris, France), made by decision of 4 July 2023, received at the Court on 14 November 2023, in the criminal proceedings againstTHE COURT (Sixth Chamber),composed of A. Kumin, President of the Chamber, T. von Danwitz (Rapporteur), Vice-President of the Court, and S. Gervasoni, Judge,Advocate General: D. Spielmann,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Swiftair SA, by R. Lindon and P. Spinosi, avocats,– the Syndicat ALTER, by A. Lyon-Caen, avocat,– the association AH5017-Ensemble, by E. Piwnica, avocat,– the French Government, by R. Bénard, B. Dourthe and B. Fodda, acting as Agents,– the Spanish Government, by A. Gavela Llopis, acting as Agent,– the European Commission, by F. Blanc and I. Zaloguin, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of 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 (OJ 2000 L 239, p. 19), signed in Schengen (Luxembourg) on 19 June 1990 and which entered into force on 26 March 1995 (‘the CISA’), read in the light of Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2The request has been made in the context of criminal proceedings brought against the company Swiftair SA, charged with the offence of involuntary homicide committed in Mali on 24 July 2014.

Legal context

European Union law

3The recitals of the CISA state:‘Taking as their basis the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders,Having decided to fulfil the resolve expressed in that Agreement to abolish checks at their common borders on the movement of persons and facilitate the transport and movement of goods at those borders,Whereas the Treaty establishing the European Communities, supplemented by the Single European Act, provides that the internal market shall comprise an area without internal frontiers,…’

4Article 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.’

Spanish law

5Article 637 of the Ley de Enjuiciamiento Criminal (Spanish Code of Criminal Procedure) is worded as follows:‘Definitive dismissal:1. Where there are no reasonable grounds for believing that the act on which the proceedings are based was committed;2. Where the act does not constitute an offence;3. Where it is apparent from the proceedings that those under judicial investigation are exempt from criminal responsibility, as perpetrators, accomplices or persons who aid and abet.’

6Article 641 of the Spanish Code of Criminal Procedure provides:‘Provisional dismissal:1. Where the commission of the offence on which the proceedings are based does not appear to be duly established;2. Where it is apparent from the investigation that, although an offence was committed, there are not sufficient grounds to accuse one or more specific persons as perpetrators, accomplices or persons who aid and abet.’

French law

7Article 113-9 of the code pénal (French Criminal Code) provides:‘In the cases provided for in Articles 113-6 and 113-7, no prosecution may be brought against a person who demonstrates that his or her trial has been finally disposed of abroad for the same acts and, in case of a conviction, that the sentence has been served or is time-barred.’

8Article 692 of the code de procédure pénale (French Code of Criminal Procedure) provides:‘In the cases provided for in the preceding chapter, no prosecution may be brought against a person who demonstrates that his or her trial has been finally disposed of abroad for the same acts and, in case of a conviction, that the sentence has been served or is time-barred.’

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

9On 24 July 2014, an aircraft belonging to Swiftair and registered in Spain was chartered for a flight from Ouagadougou (Burkina Faso) to Algiers (Algeria). That aircraft crashed in a desert zone in northern Mali. All of the occupants, including 54 French nationals, were killed in the accident.

10Following that accident, a judicial investigation was opened by the Juzgado Central de Instrucción n^o 6 (Central Court of Preliminary Investigation No 6, Spain), by order of 24 July 2014. Subsequently, by order of 23 September 2014, and after having ruled out the possibility of a terrorist attack, that court found that it was necessary to conduct an investigation in order to determine whether the events might have been caused by inexperience or lack of care on the part of the natural persons piloting the aircraft.

11In parallel, in France, the gendarmerie des transports aériens (air transport gendarmerie, France) was instructed to conduct an investigation into the facts. By an application made by the public prosecutor on 29 July 2014, a pre-trial judicial investigation was opened for the offence of involuntary homicide.

12Between 2014 and 2016, the Spanish and French judicial authorities collaborated, inter alia by way of international requests for mutual legal assistance. The exchanges between those authorities did not, however, lead to any advance decision being taken as to what should be done in the event of conflicting decisions being made at the conclusion of the parallel investigations by those authorities.

13On 18 July 2016, the Spanish investigating judge made an order for provisional dismissal under Article 641 of the Spanish Code of Criminal Procedure on the grounds that, ‘in relation to the personal and professional qualities of the crew members’ and the condition of the aircraft, the judge had found ‘no proof of the commission by [Swiftair] of any irregularities potentially relating to the aviation accident …’. In particular, in the words of that order, ‘no infringement of the objective duty of care or attention imposed on aircraft pilots’ had been identified.

14In France, the technical investigations had been entrusted to a panel of three experts, whose final report, filed on 23 December 2016, found factors contributing to that accident; these included the fact that pilots worked on a seasonal basis, which contributed to a reduction in their capacity to deal with unusual situations, and the fact that ground and flight simulator training was insufficient in volume and incomplete in content, which contributed, in particular, to a failure to respond appropriately to the situation concerned.

15On 29 June 2017, Swiftair was charged, by the French investigating judge, with involuntary homicide on the basis that it had not ensured that the crew had ‘sufficient training’ and had, as a result, involuntarily caused the death of all those on board, some of whom were French. By application of 24 November 2017, Swiftair sought to have the charges against it annulled on the basis that it should benefit from the order to dismiss made in Spain, as that order was final and should be binding in France under Article 54 of the CISA and the principle ne bis in idem, enshrined in Article 54. On 16 November 2018, that application was held to be inadmissible by the investigating chamber.

16By order of 18 May 2021, the French investigating judge ordered that Swiftair be tried before the tribunal judiciaire de Paris (Court of Paris, France), which is the referring court, while rejecting the arguments put forward by that company concerning a failure to observe the principle ne bis in idem, on the ground that the order to dismiss was not res judicata and was not final. In particular, that order, which has no equivalent in French law, did not have the effect of definitively barring further prosecution and did not preclude other criminal proceedings for the same acts.

17The referring court observes, inter alia, that in accordance with the applicable Spanish legislation, the criminal responsibility of a legal person, such as Swiftair, cannot be incurred and that, on that basis, that company had not been subject to any formal notice of proceedings or summons in Spain. Accordingly, that court asks whether, in so far as it may be final, the order to dismiss made in Spain covers, for the purpose of applying Article 54 of the CISA, not only natural persons to which it relates directly, but also the legal person that is indirectly implicated, so that that legal person should also be regarded as having had its trial ‘finally disposed of’ within the meaning of Article 54 of the CISA.

18In those circumstances the tribunal judiciaire de Paris (Court of Paris) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Is Article 54 of the CISA, read in the light of Article 50 of the Charter, 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?(2) 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) 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?(4) 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 the [protection afforded by the principle ne bis in idem] 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?’

Admissibility

19In accordance with settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 36 and the case-law cited).

20Nevertheless, the Court must examine the circumstances in which cases are referred to it by the national court, in order to assess whether it has jurisdiction or whether the request submitted to it is admissible (judgment of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 37 and the case-law cited).

21In that context, it should be borne in mind that, in accordance with settled case-law, the Court may refuse to rule on a question referred for a preliminary ruling by a national court where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 30 April 2024, M.N. (EncroChat), C‑670/22, EU:C:2024:372, paragraph 65 and the case-law cited).

22In that regard, the requirements relating to the content of a request for a preliminary ruling are expressly stated in Article 94 of the Rules of Procedure of the Court of Justice, of which the referring court is supposed – in the context of the cooperation established in Article 267 TFEU – to be aware and which it is bound to observe scrupulously. In accordance with those requirements, as set out in paragraph 15 of the Recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1), any request for a preliminary ruling is to contain ‘a summary of the subject matter of the dispute in the main proceedings and the relevant findings of fact as determined by the referring court or tribunal, or, at the very least, an account of the facts on which the questions referred are based’, ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’ and ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings’.

23As regards the present case, it should be recalled that, under Article 54 of the CISA, 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.

24According to settled case-law, Article 54 of the CISA aims to ensure that a person, once he or she has been found guilty and served his or her sentence, or, as the case may be, been acquitted by a final judgment in a Member State, may travel within the Schengen area without fear of being prosecuted in another Member State for the same acts (judgment of 14 September 2023, Volkswagen Group Italia and Volkswagen Aktiengesellschaft, C‑27/22, EU:C:2023:663, paragraph 81 and the case-law cited).

25That article should be interpreted in the light of, first, Article 3(2) TEU, which states that the European Union is to offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured (see, to that effect, judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraph 46) and, second, the recitals in the CISA, from which it apparent that the purpose of that convention is to abolish checks, at the common borders, on the movement of persons and to facilitate the transport and movement of goods at those borders, within an area without internal frontiers.

26Consequently, Article 54 of the CISA is irrelevant where the possibility of travelling freely within that area is not at issue and, in particular, where only legal persons are concerned (see, to that effect, judgment of 14 September 2023, Volkswagen Group Italia and Volkswagen Aktiengesellschaft, C‑27/22, EU:C:2023:663, paragraph 82).

27In the present case, it is common ground that the criminal proceedings brought in France, which are the subject matter of the main proceedings, are exclusively directed against a legal person, namely Swiftair. The natural persons whose criminal responsibility has been assessed in Spain died during the accident in question in the main proceedings. Consequently, since the possibility for natural persons to travel freely is clearly not at issue in the dispute in the main proceedings, Article 54 of the CISA is not applicable to that dispute.

28According to the case-law, where the provisions of EU law to which the questions referred for a preliminary ruling relate are not applicable to the dispute in the main proceedings and are, therefore, irrelevant in resolving that dispute, it must be held that the questions referred for a preliminary ruling are not necessary to enable the referring court to give judgment and that those questions are, therefore, inadmissible (see, to that effect, judgment of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraphs 38 and 68). It follows that the questions referred in the present case by the referring court are, for that reason, inadmissible in so far as they relate to Article 54 of the CISA.

29Although the referring court also refers to Article 50 of the Charter, it must be noted that under Article 51(1) thereof, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. The concept of ‘implementing Union law’, within the meaning of Article 51(1), presupposes a degree of connection between an act of EU law and the national measure in question, above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other (see, to that effect, judgment of 28 November 2024, PT (Agreement concluded between the prosecutor and the perpetrator of an offence), C‑432/22, EU:C:2024:987, paragraph 35 and the case-law cited).

30In the present case, since the referring court has not set out, in its request for a preliminary ruling, the connection that it has established between the national legislation applicable to the dispute in the main proceedings and the relevant provisions of EU law, that request does not, as it stands, make it possible to determine that the situation at issue in the main proceedings falls within the implementation of EU law. According to the Court’s case-law, in such a case, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (order of 17 May 2024, VGG and Others, C‑190/23, EU:C:2024:420, paragraph 57 and the case-law cited).

31Consequently, as regards the interpretation sought of Article 50 of the Charter, it must be found that, as matters stand, the Court does not have the factual and legal material necessary to give a useful answer to the questions submitted to it, within the meaning of the settled case-law referred to in paragraph 21 above. The request for a preliminary ruling does not satisfy the requirements recalled in paragraph 22 above and, in particular, those laid down in Article 94(c) of the Rules of Procedure, since it does not set out the connection which the referring court establishes between the national legislation applicable to the dispute in the main proceedings and the relevant provisions of EU law.

32It follows that the request for a preliminary ruling is inadmissible in its entirety.

33However, the referring court retains the right to submit a new request for a preliminary ruling containing all the information enabling the Court to give a ruling (see, to that effect, order of 20 May 2021, ENR Grenelle Habitat and Others, C‑88/20, EU:C:2021:407, paragraph 38 and the case-law cited).

Costs

34Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Sixth Chamber) hereby rules: The request for a preliminary ruling made by the tribunal judiciaire de Paris (Court of Paris, France), by decision of 4 July 2023, is inadmissible.