WS

On the 12 May 2021, the Grand Chamber of the Court delivered its judgement in case C-505/19 regarding the application of the ne bis in idem principle, enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, in a context of the application of a red notice published by Interpol requested by a third state. The case concerns WS, who was targeted by a red notice published by Interpol under the request of the U.S.A authorities for accusations of corruptions. Before the notice was published, the Public prosecutor office of Munich discontinued criminal proceedings regarding WS for the same facts after he had paid a sum of money in accordance with German Law. WS thus requested the Federal Republic of Germany to take all necessary measures to arrange for the red notice to be withdrawn. Because of this red notice, WS was forbidden to travel among the Member States of the Schengen area without risking arrest. He further claimed in front of the German Administrative Courts that this constituted a violation of Article 54 CISA and Article 21 TFEU and that the processing of his personal data appearing in the red notice constituted an infringement of the provisions contained in Directive 2016/680. In this regard, the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden) referred to the Grand Chamber a preliminary ruling on the interpretation of Article 54 CISA, Article 50 of the Charter, Article 21 (1) TFEU and Directive 2016/80 regarding the red notice published by Interpol in as requested by a third state.

The Grand Chamber decided to approach this case with two main considerations. Firstly whether Article 54 CISA and Article 21(1) TFEU, read in the light of Article 50 of the Charter would preclude the arrest of a person targeted by a red notice published by Interpol, where the facts under which the red notice was published led to criminal proceedings at the national level of a Member State and ultimately discontinued by the Public Prosecutor office and where the same State have informed Interpol that the proceedings relate to the same facts targeted by the red notice. Secondly, whether the provisions of Directive 2016/680 read in light of Article 54 CISA and Article 50 of the Charter should be read as precluding the processing of data of a person appearing in a red notice, where this notice was built on acts that where previously discontinued by a Member State and whether the ne bis in Idem principle should apply.

The Grand Chamber answered the first question by assessing that the application of Article 54 CISA and Article 21(1) TFEU as read in the light of Article 50 of the Charter should not preclude the provisional arrest of a person by the authorities of a contracting State under the scope of a red notice published by Interpol and requested by a Third State; unless it can be demonstrated that, under a final judicial decision taken in a Contracting State, the acts on which the red notice is based have been finally disposed. Regarding the second question, the Grand Chamber interpreted the provisions of Directive 2016/680 in the light of Article 54 CISA and Article 50 of the Charter as not precluding the processing of personal data appearing in a red notice published in the case where it has not been established through a final judicial decision taken in member states that the principle of ne bis in idem would apply to the same acts on which the notice is based.