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On 19 November 2020, AG Bobek delivered his opinion on Case C-505/19, which concerns the application within the Schengen area of the principle ne bis in idem in relation to acts for which the International Criminal Police Organisation (Interpol) has published a red notice at the request of a third State. Interpol red notices are requests issued to law enforcement authorities worldwide, in order to locate and restrict the movements of persons, pending a request for their extradition for prosecution or to serve a sentence.

In 2012, the competent US authorities requested Interpol to issue a red notice concerning the applicant, a German citizen residing in that country. The red notice was based on an arrest warrant for, inter alia, charges of corruption, money laundering and fraud. However, the Public Prosecutor’s Office in Munich (Germany) had already initiated an investigation procedure against the applicant concerning the same acts as those covered by the red notice. Those proceedings were discontinued in 2009 after the applicant paid a certain sum of money, in accordance with German law. In 2013, upon request of the applicant, the Federal Office of Criminal Police (BKA) requested and obtained the publication of an addendum to the red notice in question, stating that the BKA considered that the principle ne bis in idem was applicable to the charges mentioned in the notice. The German authorities also asked the US authorities, albeit unsuccessfully, to delete the red notice.

In 2017, the applicant brought an action before a German Administrative Court (the referring court) against the Federal Republic of Germany requesting that the German authorities be ordered to take the necessary measures to remove the red notice, as it did not allow the applicant to travel to any State party to the Schengen Agreement without risking arrest. That situation was, according to the applicant, contrary to Article 54 of the Convention Implementing the Schengen Agreement (CISA) and Article 21 TFEU. In addition, the applicant maintained that, in such a situation, the further processing by Member States’ authorities, of his personal data contained in the red notice was contrary to the provisions of the EU Directive 2016/680 of 27 April 2016, on the protection of natural persons with regard to the processing of personal data in the context of criminal proceedings. Against this background, the Administrative Court stayed the proceedings and referred six questions to the CJEU on the proper interpretation of the relevant provisions of EU law.

The AG rephrases the questions of the referring court. One set of questions therefore refers to whether EU Member States are authorised to implement an Interpol red notice, and thus restrict the requested person’s movements, where another EU Member State has notified Interpol and its members that that notice relates to acts for which the principle ne bis in idem may be applicable (Questions 1-3). The other set of questions of the referring court concerns whether EU Member States are allowed, where the principle ne bis in idem does apply, to further process the personal data of the requested person contained in the Interpol red notice (Questions 4 and 6). The fifth question, on whether Interpol has an adequate level of data protection for the purposes of Directive 2016/680 is instead considered as manifestly inadmissible for lack of relevance in the facts at hand.

The first set of questions refers to the implementation of Article 54 of the Convention Implementing the Schengen Agreement of 14 June 1985, which regulates the application of the ne bis in idem principle withing the Schengen Area, in conjunction with Article 50 of the Charter of Fundamental Rights of the European Union, and Article 21(1) TFEU.

As first, the AG clarifies that, according to the consistent case-law of the Court, a decision of a public prosecutor that, after having assessed the case on its merits and with the agreement of the competent court, definitely discontinuing criminal proceedings once the accused has satisfied certain conditions, falls within the scope of Article 54 of the CISA. Then, the AG states that such a decision, that bars any further prosecution for the same act in one Member State, must have the same effects within the whole EU area of freedom, security and justice. This interpretation does not conflict with the principle of precedence of international law over provisions of EU law, with regard to the Agreement on extradition between the European Union and the United States of America, of 25 June 2003. Indeed, the precedence of international law does not extend to the general principles of EU law, meaning that neither the Union nor the Member States can justify a possible breach of fundamental rights by their duty to comply with international instruments.

Concerning the first set of questions, therefore, the AG concludes that a final determination adopted by the competent authority of a Member State as to the actual application of the principle ne bis in idem in relation to the specific charges precludes all Member States from implementing a red notice issued by Interpol at a request of a third State and concerning the same charges. Nonetheless, the AG notes that in the case at hand such a final determination on the identity of the facts between the criminal proceedings in Germany and those in the US was yet to be issued.

Coming to the second set of questions, the AG starts his reasoning by specifying that the processing of personal data contained in an Interpol red notice does fall within the scope of Directive 2016/680, whose Article 4(1) establishes, inter alia, that Member States must ensure that personal data are “processed lawfully and fairly”. The AG considers that it is the very application of the principle ne bis in idem in a specific case that may require further processing of the personal data contained in the red notice. Further processing may be carried out in the interest of the individuals referred to in the notice, in order to remind the applicability of the principle ne bis in idem in possible other requests for red notices. However, the further processing must be limited to the one that, according to a case-by-case assessment, may be considered “necessary” for the purposes of Articles 4 and 8(1) of Directive 2016/680.

Concerning the second set of questions, therefore, the AG concludes that Directive 2016/680, read in conjunction with Article 54 of the CISA and Article 50 of the Charter, does not preclude the further processing of personal data contained in a red notice issued by Interpol, even if the principle ne bis in idem applies to the charges referred to in the notice, provided that the processing is carried out in accordance with the rules set out in that directive.