The Situation: On May 12, 2021, the Court of Justice for the European Union ("CJEU") held that European Union ("EU") and Schengen Area member states cannot make an arrest pursuant to an Interpol Red Notice if the person to be arrested has already resolved identical allegations in an EU or Schengen Area member state.
The Result: This decision will impact the ability of the U.S. Department of Justice and other sovereign enforcement agencies to effect arrests in Europe through Interpol Red Notices.
Looking Ahead: The ruling protects individuals living in the EU and Schengen Area from arrest pursuant to Interpol Red Notices in certain limited situations and may incentivize individuals under investigation in the United States or other jurisdictions outside of the EU and Schengen Area to resolve investigations in EU and Schengen member states on more favorable terms.
On May 12, 2021, the CJEU ruled that EU and Schengen Area citizens cannot be arrested pursuant to an Interpol Red Notice if they have already settled identical allegations in a member state. ("CJEU Judgment"). The ruling stems from a now decade-old German criminal case. In 2012, Interpol issued a Red Notice for the arrest of a German citizen pursuant to criminal charges brought by the U.S. Department of Justice ("DOJ") related to alleged corruption. The CJEU decision referred to the German citizen as "WS" and did not describe the underlying offense in detail. However, in December 2008, German conglomerate Siemens AG resolved high-profile U.S. Department of Justice and Munich Public Prosecutor's Office investigations into alleged violations of the U.S. Foreign Corrupt Practice Act. Seven of the eight indicted individuals were German citizens. CJEU's generic description of the DOJ case against WS, the timeline of key events, and the involvement of the Munich Public Prosecutor's Office are all consistent with publicly available information about the Siemens matter.
By the time Interpol issued the Red Notice in 2012, WS had already been investigated by the Munich Public Prosecutor's Office in Germany for the same conduct at issue in the DOJ case that led to the Red Notice and paid a fine to resolve those allegations in Germany. WS challenged issuance of the Red Notice in German court, and the court then sought guidance from the CJEU for a ruling on whether sovereign double jeopardy precluded enforcement of the Red Notice.
The CJEU found that freedom of movement within the EU was a fundamental right and that a "person whose case has already been finally disposed of must be able to move freely without having to fear a fresh prosecution for the same acts in another Contracting State." See CJEU Judgment at ⁋ 79.
In reaching this conclusion, the court relied on the ne bis in idem ("not twice about the same") principle of double jeopardy embodied in Article 54 of the Convention Implementing the Schengen Agreement ("CISA") and Article 50 of the EU's Charter on Fundamental Rights ("the Charter"). Article 54 of the CISA precludes a Contracting State from taking action against a person for the same acts as those in respect of which the person's trial has been finally disposed of in another Contracting State if a penalty has been imposed and the penalty has been enforced, is in the process of being enforced, or can no longer be enforced under the laws of that state. Article 50 of the Charter establishes the ne bis in idem principle as a fundamental right under EU law and provides that no EU citizen can be "tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the European Union in accordance with the law." See CJEU Judgment at ⁋ 78.
Importantly, the court left room for EU and Schengen Area member states to execute a provisional Red Notice arrest if necessary to determine whether double jeopardy applies. See CJEU Judgment at ⁋ 84.
The CJEU ruling has significant and far-reaching implications for the ability of DOJ and other sovereign enforcement agencies outside of Europe to effect arrests in Europe. Enforcement agencies that criminally charge defendants living outside the country often rely on Interpol Red Notices to apprehend the defendants and extradite them to the country where charges were filed. DOJ, in particular, has done this in several high-profile fraud and corruption cases. The ruling may incentivize individuals under investigation by DOJ or other non-EU enforcement agencies to resolve investigations in member states on favorable terms (such as the fine at issue in this case) to avoid the risk of arrest in the EU or Schengen Area pursuant to Interpol Red Notices.