Ministerio Fiscal v MSIG (C-802/23)

Contents

Judgment of the Court (First Chamber)11 September 2025^note(Reference for a preliminary ruling — Convention implementing the Schengen Agreement — Article 54 — Article 50 of the Charter of Fundamental Rights of the European Union — Principle ne bis in idem — Concept of same acts — Member of a terrorist association found guilty, in a Member State, of involvement in that association with a view to preparing an act of terrorism — Prosecution in another Member State for the same terrorist acts)In Case C‑802/23,REQUEST for a preliminary ruling under Article 267 TFEU from the Audiencia Nacional (National High Court, Spain), made by decision of 4 December 2023, received at the Court on 28 December 2023, in the criminal proceedings againstTHE COURT (First Chamber),composed of F. Biltgen, President of the Chamber, T. von Danwitz (Rapporteur), Vice-President of the Court, A. Kumin, I. Ziemele and S. Gervasoni, Judges,Advocate General: D. Spielmann,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Ministerio Fiscal, by C. García-Berro Montilla, fiscal,– the Spanish Government, by A. Gavela Llopis, acting as Agent,– the Hungarian Government, by Zs. Biró-Tóth and M.Z. Fehér, acting as Agents,– the European Commission, by J. Baquero Cruz 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 reference 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 on 19 June 1990 and 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 criminal proceedings brought against MSIG for terrorism offences consisting in damage to property, attempted murder and actual bodily harm.

Legal context

European Union law

3Article 54 of the CISA – which appears in Chapter 3, entitled ‘Application of the ne bis in idem principle’, of Title III thereof – 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

Organic Law 7/2014

4Under Article 14 of Ley Orgánica 7/2014, sobre intercambio de información de antecedentes penales y consideración de resoluciones judiciales penales en la Unión Europea (Organic Law 7/2014 on exchanging information on criminal records and taking account of convictions in the European Union), of 12 November 2014 (BOE No 275, of 13 November 2014, p. 93204), in the version in force on the date on which the request for a preliminary ruling was made (‘Organic Law 7/2014’):1.The legal effects of a previous final conviction in another Member State in respect of the same person for different acts shall be equivalent, in the course of new criminal proceedings, to those which would have resulted from that conviction if it had been imposed in Spain, provided that the following conditions are met:(a) The convictions were imposed for offences punishable under Spanish law in force at the time of their commission.(b) Sufficient information regarding those convictions has been obtained through the applicable mutual legal assistance instruments or the exchange of information extracted from criminal records.2.Without prejudice to the provisions contained in the previous paragraph, final convictions imposed in another Member State shall not affect the following acts and shall not entail their annulment or review:(a) Previous final decisions of the Spanish courts and decisions relating to their enforcement.(b) Convictions imposed in subsequent proceedings in Spain in connection with offences committed prior to conviction by the courts of the other Member State.(c) Orders made or to be made pursuant to the third paragraph of Article 988 of the Ley de Enjuiciamiento Criminal [(Code of Criminal Procedure)] setting limits on the execution of sentences, including those referred to in point (b).3. Criminal record entries appearing in the Central Register shall be deemed removed, even if they concern convictions imposed in other States, for the purposes of being taken into account in Spain by courts and tribunals in accordance with Spanish law, unless their removal by the convicting State has been notified beforehand.’

5The sole supplementary provision of that law provides:‘Convictions imposed by a court of a Member State of the European Union before 15 August 2010 shall under no circumstances be taken into account for the purposes of this Law.’

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

6After having been arrested by the French police on 3 October 2004, MSIG was surrendered to the Spanish authorities on 4 September 2019 pursuant to a European arrest warrant issued by the Juzgado Central de Instrucción n.°2 de la Audiencia Nacional (Central Court of Preliminary Investigation No 2 of the National High Court, Spain).

7The criminal proceedings brought against MSIG as the perpetrator of a terrorist attack that took place in Oviedo (Spain) on 21 July 1997 are being heard by the Audiencia Nacional (National High Court), which is the referring court. MSIG is accused of having committed terrorism offences consisting in damage to property, attempted murder and actual bodily harm.

8The facts giving rise to that accusation are described by the referring court as follows:‘During her stay in France – which she did not leave from an unspecified date until her arrest there in October 2004 – [MSIG], as a leader of the terrorist organisation Euskadi Ta Askatasuna (ETA), was allegedly the person responsible for transmitting the instructions issued by the highest levels of command of the organisation and for setting, in accordance with those instructions, the course of action of the terrorist commandos operating in Spain, by sending them information from France, usually by means of notes which were placed in predetermined locations, and the material resources (weapons, grenades and explosives) to carry out their campaigns, usually through third parties, in whose custody the weapons were placed. It was generally for the members of those commandos, in accordance with the general instructions received from ETA’s leadership, to decide on the specific terrorist action to be carried out, to plan it in detail, using the material resources and weapons which had been handed over to them, and, once the action had been executed, to report its outcome to the leadership of the terrorist organisation.In the specific case giving rise to the proceedings, two members of ETA – at that time not known to the police – who operated within a ‘commando of legales’ (‘KATU’ or ‘KATTU’) …, probably assisted by other persons who were not known [to the police], and acting in accordance with the general instructions they had received to attack police or military targets, decided to attack the police station of the town of Oviedo, the capital of the Comunidad Autónoma de Asturias [(Autonomous Community of Asturias, Spain)], by fabricating, for that purpose – using the weapons which they had received and stored – a homemade automated device for the launch of anti-tank grenades, which they positioned at around 08:00 on 21 July 1997, at a certain distance from the police station; they also placed a time-delayed homemade explosive device in the surrounding area so that it would explode at the time when they expected the police might inspect the launch structure.Only three of the planned grenades were launched, none of which hit the target, those grenades having randomly exploded in a number of nearby locations, causing only material damage and, as a result of the noise of the explosion, hearing loss to one person in the vicinity. The explosive booby-trap was detected by the police during the inspection of the site and was immediately defused.’

9It is apparent from the order for reference that, according to the Spanish Public Prosecutor, MSIG must be regarded as the actual perpetrator of the offences at issue because, first, she was responsible, at the material time, for ETA’s ‘commandos of legales’ and, second, for the supply, from France, of various weapons to the ‘commando of legales’ ‘KATU’ or ‘KATTU’ (‘KATTU’) with a view to carrying out terrorist attacks. The sentence sought by that public prosecutor for the acts at issue amounts, according to the information provided by that court, to a total of 71 years’ imprisonment. The referring court states that a cap of a maximum of 30 years’ imprisonment should, by operation of law, be applied to the enforcement of that sentence, in accordance with the provisions of the Criminal Code.

10However, MSIG has already been convicted in absentia in France for acts involving her ‘involvement in a criminal association with a view to preparing a terrorist act’. In that regard, the referring court refers to four judgments, delivered in France, convicting MSIG (‘the French judgments’). The first three, dated 21 February 2000, 23 February 2000 and 13 February 2003, respectively, cover various periods during 1996 and 1997; a sentence of five years’ imprisonment was handed down in each of those judgments. The fourth, dated 17 December 2010, concerned the period ending on 10 March 2004, excluding the period starting in the course of 1996 and ending on 31 December 1997; a sentence of 20 years’ imprisonment was handed down in that judgment.

11By virtue of a decision of the cour d’appel de Paris (Court of Appeal, Paris, France) of 13 February 2014 requiring that the sentences be served concurrently, the sentences handed down in the French judgments were merged into a single sentence of 20 years’ imprisonment, which was served by MSIG in France before she was surrendered to the Spanish authorities.

12The referring court also states that, after being surrendered to the Spanish authorities, MSIG was prosecuted and convicted in Spain in proceedings relating, in some cases, to acts committed entirely in Spain, as a member of ETA, before she moved to France, and, in other cases, including the one at issue in the main proceedings, to her involvement from France, as a leader of ETA, in terrorist acts carried out in Spain.

13That court states that, by order of 20 February 2023, it merged the sentences handed down against MSIG in eight final judgments delivered in Spain and set a cap of 30 years’ imprisonment for the purpose of the execution of all the final convictions, in accordance with Article 76(1) of the Criminal Code and Article 988 of the Code of Criminal Procedure, since it was considered, in accordance with the latter provision, that the offences concerned were connected and that they could be prosecuted in a single set of proceedings.

14However, the referring court notes that Spanish law does not allow the merging of sentences handed down pursuant to convictions in the French courts and in the Spanish courts, despite there being in many cases a legal link between those convictions. Accordingly, after having served a sentence of 20 years’ imprisonment in France, MSIG would have to serve a sentence of 30 years’ imprisonment, that is to say, a total period of at least 50 years’ imprisonment, without it being possible to set a maximum sentence.

15The referring court notes that the French judgments cover, from a temporal point of view, all of MSIG’s activities carried out from France as a leader of ETA. Those judgments gave rise to sentences of a total of 35 years’ imprisonment, which were merged, by virtue of the decision of 13 February 2014 of the cour d’appel de Paris (Court of Appeal, Paris) ruling that the sentences be served concurrently, into a single sentence of 20 years’ imprisonment, on the ground that those judgments concerned the same illegal activities, covering acts committed by the person concerned as a leader responsible for ‘commandos of legales’ operating in Spain, which related both to the planning of ETA’s operations and to the supply of resources for the purpose of carrying out attacks. MSIG thus was involved, at various times, in the preparation of terrorist attacks which took place in Spain.

16Both the acts of MSIG which were tried in France and those at issue in the main proceedings were entirely carried out from France, without MSIG ever travelling to Spain. In addition, the acts against which proceedings were brought in Spain concerned her organisation, as a leader of ETA, of the actions of the ‘commandos of legales’, in this case KATTU, whose members decided for themselves the objectives to be achieved, using the material supplied and informing ETA’s leadership ex post, in particular, of the outcome of the attacks carried out or of any failed attempts. The proceedings brought in Spain against MSIG therefore relate to the same activities as those concerned by the French judgments.

17The referring court states that the French authorities investigated and ruled on all the illegal activities of MSIG as a leading member of ETA and gained precise and detailed knowledge of MSIG’s acts linked to ETA’s terrorist actions in Spain and in France, which is reflected in the French judgments.

18According to the referring court, there is no doubt that all the information gathered by the French investigators was used in the proceedings brought against MSIG. Indeed, the French courts had in-depth information concerning MSIG’s activities and it may be considered that they have ruled on all of MSIG’s illegal activities in France which are connected with ETA’s terrorist commandos operating in Spain, which include KATTU. Furthermore, all the investigative material relating to ETA, which made it possible to establish the precise role played by MSIG within that organisation, was surrendered to the Spanish police by the French authorities in order for it to supplement the investigative work carried out in Spain, concerning unresolved issues.

19The referring court considers that the French judgments relate to all the acts committed by MSIG from France as a leader of ETA. It notes that a judgment of the tribunal de grande instance de Paris (Regional Court, Paris, France) of 13 February 2003 states that ‘[the] accused was involved, in 1997 …, in a group formed, or in a collaboration established, with a view to preparing terrorist acts, in this case ETA-MILITAIRE’, and refers to the actions she carried out during the period in which the terrorist attack in Oviedo took place on 21 July 1997.

20Furthermore, the referring court states that, by a judgment of 21 January 2021, it took the view that it was presented with a ‘bis in idem situation’ in view of the various convictions imposed by the French courts against MSIG in respect of her activities carried out from France as a leader of ETA and her involvement in the preparation of attacks, which encompassed, from a temporal point of view, acts which were the subject of the proceedings brought before it. However, that judgment was set aside by a judgment of the Tribunal Supremo (Supreme Court, Spain) of 21 March 2023, which found, in essence, that MSIG’s conviction in France did not cover, even in a general or indefinite manner, involvement in specific terrorist actions, and which held that there was no ‘bis in idem situation’, stating in that regard that a matter that has not been dealt with by the courts cannot be considered to have been tried. The Tribunal Supremo (Supreme Court) set aside that judgment for failure to state reasons and referred the case back to the referring court for a new ruling. Although the majority of the members of the referring court are convinced of the existence of a ‘bis in idem situation’, that court states that the Tribunal Supremo (Supreme Court) does not share that assessment, a circumstance which, in view of the autonomous nature of the concept ‘ne bis in idem’, led the referring court to make a reference to the Court of Justice.

21In that regard, the referring court recalls that the principle ne bis in idem, as interpreted by the Court, requires identity of the material acts, understood as the existence of a set of facts or factual circumstances which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected. However, the referring court raises the question of how the concept of ‘act’ is to be understood for the purposes of assessing the principle ne bis in idem, in particular in the light of the different ways in which ‘acts’ are presented in judgments delivered in the Member States. That concept could relate solely to the occurrence of an event, disconnected from its legal classification, or could be regarded as having legal content and as relating, not to an objective act, but to its connection to one of the existing criminal classifications or to the qualified legal act.

22The referring court notes that, in the present case, the same acts were the subject of different legal classifications by the French and Spanish courts. The French courts referred to MSIG’s activities as a leader of a terrorist organisation, with a view to preparing terrorist acts, by means of one or more acts, even if the terrorist acts themselves were physically carried out by other persons. By contrast, in Spain, MSIG is instead considered to be the direct perpetrator of the offence concerned, even though account is taken of the fact that the terrorist act itself was physically carried out by third parties. According to the referring court, the proceedings before the French courts and before the Spanish courts concern the same acts by MSIG.

23The referring court notes that, in a situation where the acts are not the same but they merely occurred at the same time, MSIG would most probably have to serve a sentence of 30 years’ imprisonment in Spain after serving a sentence of 20 years’ imprisonment in France, which would be a seriously disproportionate sentence, giving rise, inter alia, to discriminatory treatment of MSIG as compared to persons against whom convictions are imposed in a single Member State.

24In those circumstances, the Audiencia Nacional (National High Court) decided to stay the proceedings and to refer to following questions to the Court of Justice for a preliminary ruling:(1) In the present case, according to the factual circumstances described and the legal reasons taken into account in the criminal case against MSIG in Spain, and in view of the various convictions previously handed down in France in relation to her, does the [principle “ne bis in idem”] apply under Article 50 of the [Charter] and Article 54 of the [CISA], in relation to the charge brought against MSIG in Spain, in that it concerns “the same acts”, in accordance with the scope given to that concept in European case-law?(2) In any event, is the lack of a regulatory provision in Spanish law allowing the recognition of effects of final convictions previously handed down by the courts of other Member States, for the possible assessment in the case under examination of the applicability of the [principle ne bis in idem], on the ground of identical acts, compatible with Article 50 of the Charter and Article 54 of the CISA, and also with [Article 1(3), Article 3(2), Article 4(3) and (5)] of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [(OJ 2002 L 190, p. 1)]?(3) In the present case, or generally speaking, is the absence of any legislative, practical or, ultimately, legal mechanism or procedure in Spanish law allowing recognition of effects of final convictions previously handed down by the courts of the Member States, (i) with a view to determining the sentence, cumulating, adapting or limiting the maximum execution of sentences, either at trial and judgment stage or at the later stage of enforcement of the sentence and (ii) in order to, in the alternative, in the event of a failure to find that the [principle ne bis in idem] applies on the ground of identical acts, ensure the proportionality of the criminal penalty – where, as in the proceedings under examination, a prior conviction has been handed down by the courts of another Member State for serious penalties, which have already been completed, due to concomitant acts (concurrent in time, which are closely related or connected or have a criminal or similar connection) with those being tried in Spain – contrary to [Article 45 and Article 49(3)] of the Charter, or to recitals 7, 8, 9, 13 and 14 and [Article 3(1), (2), (4) and (5)] of Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings [(OJ 2008 L 220, p. 32)], and recital 12 and Article 1(3) of Council Framework Decision [2002/584]?(4) In the light of the circumstances of the present case and, generally speaking, is the total exclusion of the effects of earlier final judgments delivered in other EU Member States – as expressly provided for in Article 14(2)(b) [of Organic Law 7/2014] on convictions to be imposed in Spain, Article 14(2)(c) [of Organic Law 7/2014] on judgment execution orders and the [sole supplementary] provision [of Organic Law 7/2014] (in both cases prior to 15 August 2010) … transposing European Union law – compatible with:(a) Article 50 of the Charter and Article 54 of the CISA, both relating to the international [principle ne bis in idem];(b) and recitals 7, 8, 9, 13 and 14 and [Article 3(1), (2), (4) and (5)] of [Framework Decision 2008/675], as well as with [Article 45 and Article 49(3)] of the Charter and the principle of mutual recognition of legal judgments within the European Union?’

Procedure before the Court

25By letter of 4 December 2024, received at the Registry of the Court of Justice on 19 December 2024, the referring court informed the Court of (i) the entry into force, on 8 November 2024, of a new organic law which amended substantive aspects of Organic Law 7/2014 and (ii) the fact that its doubts as to the consistency of Organic Law 7/2014 with the provisions of EU law referred to in the second to fourth questions referred for a preliminary ruling had been dispelled. Since the referring court takes the view that those questions have become devoid of purpose, it is therefore necessary to rule solely on the first question referred.

The first question

Admissibility

26The Spanish Government expresses doubts as to the admissibility of the first question on the ground that the referring court did not set out the facts and the reasons which prompted it to query the interpretation of EU law, with the result that it is not possible to answer it. In the alternative, that government considers that the factual and legal elements provided by the referring court do not make it possible to assess the identity of the acts at issue. Indeed, the order for reference does not refer to the facts taken into account in connection with the terrorist attack carried out in Oviedo on 21 July 1997, so far as MSIG is concerned, with the result that it is difficult to find that the acts at issue and those concerned by the convictions imposed against MSIG by the French courts are identical.

27Under Article 94(a) and (b) of the Rules of Procedure of the Court of Justice, a request for a preliminary ruling must contain ‘a summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based’ and ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’. Furthermore, as stated in Article 94(c) of the Rules of Procedure, a request for a preliminary ruling must contain ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation … of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings’.

28According to the Court’s case-law, the information provided in orders for reference serves not only to enable the Court to give useful answers but also to ensure that it is possible for the governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is the Court’s duty to ensure that that opportunity is safeguarded, given that, under that provision, only the orders for reference are notified to the interested parties (judgment of 28 November 2023, Commune d’Ans, C‑148/22, EU:C:2023:924, paragraph 47 and the case-law cited).

29In the present case, the request for a preliminary ruling sets out both the acts alleged against MSIG which took place in Spain and the acts which were tried in France, as set out in the French judgments, while providing details of the information available to the French authorities. In addition, the referring court states the reasons which led it to refer the first question and sets out the tenor of the national provisions applicable in the present case.

30Accordingly, the first question is admissible.

Substance

31By its first question, the referring court asks, in essence, whether the concept of ‘same acts’, within the meaning of Article 54 of the CISA, read in the light of Article 50 of the Charter, must be interpreted as covering acts of which a person is accused in criminal proceedings brought in a Member State in respect of terrorist acts where that person has already been convicted in another Member State, for the same acts, of involvement in a terrorist association with a view to preparing a terrorist act.

32Article 54 of the CISA, which 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 (OJ 1997 C 340, p. 93), lays down the principle ne bis in idem (judgment of 23 March 2023, Generalstaatsanwaltschaft Bamberg (Reservation in relation to the principle ne bis in idem), C‑365/21, EU:C:2023:236, paragraph 46).

33Since that principle stems from the constitutional traditions common to the Member States, Article 54 of the CISA must be interpreted in the light of Article 50 of the Charter, Article 54 serving to ensure respect for the essence thereof (judgments of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 65, and of 23 March 2023, Generalstaatsanwaltschaft Bamberg (Reservation in relation to the principle ne bis in idem), C‑365/21, EU:C:2023:236, paragraph 32).

34It is apparent from the wording of Article 54 of the CISA that no person may be prosecuted in a Member State for the same acts as those in respect of which, as regards that person, final judgment has been passed in another Member State, provided that, if a penalty has been imposed, it has been enforced, it is actually in the process of being enforced or it can no longer be enforced under the laws of the latter State.

35Thus, the application of the principle ne bis in idem is subject to a twofold condition, namely, first, that there must be a prior final decision (the ‘bis’ condition) and, second, that the prior decision and the subsequent proceedings or decisions must concern the same acts (the ‘idem’ condition) (judgments of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 45, and of 19 October 2023, Központi Nyomozó Főügyészség, C‑147/22, EU:C:2023:790, paragraph 26).

36As regards the ‘idem’ condition, which must be examined in the light of the case-law referred to in paragraph 33 above, it follows from the very wording of Article 50 of the Charter that that provision prohibits the same person from being tried or punished in criminal proceedings more than once for the same offence (see, to that effect, judgments of 12 May 2021, Bundesrepublik Deutschland (Interpol red notice), C‑505/19, EU:C:2021:376 paragraph 78, and of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 71).

37The ‘idem’ condition requires, according to settled case-law, that the material acts be identical. Consequently, the principle ne bis in idem is not intended to be applied where the acts at issue are not identical, but merely similar (judgments of 18 July 2007, Kraaijenbrink, C‑367/05, EU:C:2007:444, paragraph 27; of 23 March 2023, Generalstaatsanwaltschaft Bamberg (Reservation in relation to the principle ne bis in idem), C‑365/21, EU:C:2023:236, paragraph 37, and of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 74).

38The concept of identity of the material acts is understood to mean a set of concrete circumstances stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space (see, to that effect, judgments of 18 July 2007, Kraaijenbrink, C‑367/05, EU:C:2007:444, paragraphs 26 and 27; of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 128; and of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 75).

39By contrast, if the material acts do not make up such a set, the mere fact that the court before which the second prosecution is brought finds that the alleged perpetrator of those acts acted with the same criminal intention does not suffice to indicate that there is a set of concrete circumstances which are inextricably linked together covered by the notion of ‘same acts’ within the meaning of Article 54 of the CISA (judgments of 18 July 2007, Kraaijenbrink, C‑367/05, EU:C:2007:444, paragraphs 29 and 30, and of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 76).

40Moreover, it is settled case-law that both Article 54 of the CISA and Article 50 of the Charter refer only to the nature of the acts irrespective of the legal classification given to them or of the legal interest protected, in so far as the protection conferred by those provisions cannot vary from one Member State to another (see, to that effect, judgments of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraph 39; of 22 March 2022, Nordzucker and Others, C‑151/20, EU:C:2022:203, paragraph 39; and of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 73 and the case-law cited).

41It follows that the possibility of divergent legal classifications of the same acts, within the meaning of Article 54 of the CISA, read in the light of Article 50 of the Charter, in two different Member States or even the pursuit of different legal interests in those States cannot preclude the application of the principle ne bis in idem.

42In the present case, it is for the referring court, which alone has jurisdiction to rule on the facts, and not for the Court, to determine whether the acts which are the subject of the criminal proceedings at issue in the main proceedings are the same as those in respect of which final judgment has been passed by the French courts. That being so, the Court may provide the referring court with elements of interpretation of EU law in the context of the assessment of the identity of the acts (judgments of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 133, and of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 79 and the case-law cited).

43From that point of view, it must be stated at the outset that, in the light of the case-law referred to in paragraph 40 of the present judgment, and in so far as it is established that the criminal proceedings in the main proceedings and the French judgments to which the referring court refers related to materially identical acts, the fact that those judgments concerned offences different from those at issue in the main proceedings is irrelevant for the purposes of assessing the ‘idem’ condition (see, to that effect, judgment of 25 January 2024, Parchetul de pe lângă Curtea de Apel Craiova, C‑58/22, EU:C:2024:70, paragraph 70).

44The relevant question, in that regard, is not whether or not the constituent elements of the offences at issue in the French judgments were identical, but whether the acts alleged against the person concerned in those judgments and in the criminal proceedings in the main proceedings refer to the same conduct. Where the same conduct on the part of the same person and within the same time frame is at issue, it is necessary to verify whether the facts of the offence for which the applicant was initially convicted, and those which are the subject of the subsequent criminal proceedings are identical or substantially the same (ECtHR, 19 December 2017, Ramda v. France, CE:ECHR:2017:1219JUD007847711, § 87 and the case-law cited).

45Thus, it is for the referring court to assess whether, in the present case, the specific acts alleged against MSIG which allow MSIG’s criminal liability in Spain to be established are identical to those which led the French criminal courts to convict her.

46In that regard, it is apparent from the request for a preliminary ruling that MSIG is accused in Spain of terrorism offences consisting of one offence of damage to property, three offences of attempted murder and one offence of actual bodily harm, committed on 21 July 1997 in Oviedo by two members of KATTU. According to the referring court, she is being prosecuted as the perpetrator of those offences, in her capacity, as the person responsible, at the time of the facts in the main proceedings, for ETA’s ‘commandos of legales’, and for supplying various weapons to KATTU with a view to carrying out terrorist attacks.

47At the time of the facts in the main proceedings, according to the information provided by the referring court, MSIG was responsible for transmitting the instructions drawn up by the highest ETA chain of command and for determining, in accordance with those instructions, the course of action of the terrorist commandos which operated in Spain. MSIG acted exclusively from France.

48According to that information, the two members of KATTU who carried out the attack of 21 July 1997 in Oviedo acted in accordance with the general instructions which they had received and took the decision to attack the police station in the town of Oviedo themselves.

49Again according to the referring court, the French judgments do not contain any reference to the terrorist attack at issue in the main proceedings and merely refer to the acts committed by MSIG in France. Therefore, the acts of which MSIG is accused in the main proceedings do not appear, prima facie, to be the same as those which were the subject of the French judgments.

50However, the referring court states that those judgments cover, from a temporal and material point of view, all the acts carried out by MSIG in France as leader responsible for the ‘commandos of legales’ operating in Spain, including both the planning of ETA’s operations and the supply of the means to carry out attacks.

51According to the explanations of the referring court, it appears that the acts which MSIG is specifically accused of in the context of the main proceedings, which allow her criminal liability for the attack at issue to be established, are, in essence, those which consisted in giving general lines of action from France to terrorist commandos operating in Spain and in supplying those commandos with the material resources to carry out the actions which those commandos, for their part, decided to execute and planned in detail themselves. In that regard, it appears that, according to the explanations provided by the referring court, MSIG is not accused of any other specific act in connection with the attack carried out in Oviedo, and that it was the same acts which led the French courts to establish that MSIG was criminally liable for its actions carried out in France.

52It should be added that, for the purposes of assessing the identity of the acts at issue, the referring court will have to take into consideration not only the facts mentioned in the operative part of the final judgments delivered in France and in the operative part of the indictments drawn up by the competent French authorities, but also the facts mentioned in the grounds of those judgments and those to which the investigation procedure related, but which were not included in the indictment, and all relevant information concerning the material acts referred to in the earlier criminal proceedings initiated in France and closed by a final decision (see, to that effect, judgment of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 85).

53In that regard, it must be recalled that, under Article 57(1) of the CISA, where a person is charged with an offence in a Member State and the competent authorities of that State have reason to believe that the accusation relates to the same acts as those in respect of which a final decision has been passed in another Member State, those authorities may, if they deem it necessary, request the relevant information from the competent authorities of the Member State in whose territory the decision was made. The cooperation mechanism put in place by that provision allows the competent authorities of the second Member State responsible for the criminal proceedings against the same person to request relevant legal information from the authorities of the first Member State, in order to clarify, for example, the precise nature of a decision adopted in the territory of the first Member State or the specific acts to which that decision relates (judgment of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraphs 50 and 51).

54In the light of all of the foregoing considerations, the answer to the first question is that Article 54 of the CISA, read in the light of Article 50 of the Charter, must be interpreted as meaning that the concept of ‘same acts’ covers acts of which a person is accused in criminal proceedings brought in a Member State in respect of terrorist acts where that person has already been convicted in another Member State, for the same acts, of involvement in a terrorist association with a view to preparing a terrorist act.

Costs

55Since 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 (First Chamber) hereby rules: Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen on 19 June 1990 and entered into force on 26 March 1995, read in the light of Article 50 of the Charter of Fundamental Rights of the European Union,must be interpreted as meaning that the concept of ‘same acts’ covers acts of which a person is accused in criminal proceedings brought in a Member State in respect of terrorist acts where that person has already been convicted in another Member State, for the same acts, of involvement in a terrorist association with a view to preparing a terrorist act.