Justice
Article 47 of the Charter: Right to an effective remedy and to a fair trial
Case number | C–492/22 PPU |
Case name | CJ (Décision de remise différée en raison de poursuites pénales) |
Document | Judgment ECLI:EU:C:2022:964 |
Date | 08/12/2022 |
Source of the question referred for a preliminary ruling | Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) |
Name of the parties | CJ |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | CJ – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Determination of the competent judicial authorities – Decision to postpone surrender adopted by a body not having the status of executing judicial authority – Expiry of the time limits provided for surrender – Consequences – Keeping the requested person in detention for the purposes of criminal proceedings in the executing Member State – Right of the accused person to appear in person at his trial |
Question referred for a preliminary ruling | ‘(1) Do Articles 12 and 24(1) of Framework Decision [2002/584], read in conjunction with Article 6 of the [Charter], preclude a requested person, whose surrender for the purpose of executing a custodial sentence was definitively authorised but has been postponed ‘so that he or she may be prosecuted in the executing Member State … for an act other than that referred to in the European arrest warrant’, from being detained for the duration of that criminal prosecution in order to execute the European arrest warrant? (2) (a) Is the decision to exercise the power to postpone surrender provided for in Article 24(1) of Framework Decision [2002/584] a decision on the execution of the European arrest warrant which, pursuant to Article 6(2) of Framework Decision [2002/584], read in conjunction with recital 8 thereof, must be taken by the executing judicial authority? (b) If so, does the fact that that decision was taken without the intervention of an executing judicial authority within the meaning of Article 6(2) of Framework Decision [2002/584] have the consequence that the requested person may no longer be detained for the purpose of executing the European arrest warrant issued against him? (3) (a) Does Article 24(1) of Framework Decision [2002/584], read in conjunction with Articles 47 and 48 of the [Charter], preclude the surrender of the requested person for the purpose of a criminal prosecution in the executing Member State for the sole reason that, upon request, the requested person does not wish to waive his right to be present at that criminal prosecution ? (b) If so, which factors should the executing judicial authority then take into account when deciding whether to postpone the actual surrender?’ |
Decision | 1. Article 24(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that: the decision to postpone a surrender referred to in that provision constitutes a decision on the execution of the European arrest warrant which, pursuant to Article 6(2) of that framework decision, must be taken by the executing judicial authority. Where such a decision has not been taken by that authority and the time limits referred to in Article 23(2) to (4) of that framework decision have expired, the person who is the subject of a European arrest warrant must be released, in accordance with Article 23(5) of that same framework decision. 2. Article 12 and Article 24(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with Article 6 of the Charter of Fundamental Rights of the European Union, must be interpreted as: not precluding a person who is the subject of a European arrest warrant, whose surrender to the authorities of the issuing Member State has been postponed for the purposes of a criminal prosecution instituted against him or her in the executing Member State, from being kept in detention on the basis of the European arrest warrant whilst the criminal prosecution is being conducted. 3. Article 24(1) of Framework 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second and third paragraphs of Article 47 and Article 48(2) of the Charter of Fundamental Rights must be interpreted as: not precluding the postponement of the surrender of a person who is the subject of a European arrest warrant, for the purposes of a criminal prosecution instituted against that person in the executing Member State, solely on the ground that that person has not waived their right to appear in person before the courts seised in connection with that prosecution. |
Case number | C–242/22 PPU |
Case name | TL () and de traduction) |
Document | Judgment ECLI:EU:C:2022:611 |
Date | 01/08/2022 |
Source of the question referred for a preliminary ruling | Tribunal da Relação de Évora (Court of Appeal, Évora, Portugal) |
Name of the parties | TL intervening parties Ministério Público |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; failure to provide the assistance of an interpreter and to translate various documents |
Key words | TL – Right to interpretation and translation – Concept of an ‘essential document’ – Right to information in criminal proceedings – Not implemented in domestic law – Direct effect – Charter of Fundamental Rights of the European Union – European Convention for the Protection of Human Rights and Fundamental Freedoms – Suspended prison sentence with probation – Breach of the probation conditions – Failure to translate an essential document and absence of an interpreter when that document was being drawn up – Revocation of the suspension of the prison sentence – Failure to translate the procedural acts relating to that revocation – Consequences for the validity of that revocation – Procedural defect resulting in relative nullity |
Question referred for a preliminary ruling | ‘Is it possible to interpret Articles 1 to 3 of [Directive 2010/64] and Article 3 of [Directive 2012/13], alone or in conjunction with Article 6 of the ECHR, as meaning that they do not preclude a provision of national law which imposes a penalty of relative nullity, which must be pleaded, for failure to appoint an interpreter and to translate essential procedural documents for an accused person who does not understand the language of the proceedings, and which permits the rectification of that type of nullity owing to the passage of time?’ |
Decision | Article 2(1) and Article 3(1) of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings and Article 3(1)(d) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, read in the light of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union and the principle of effectiveness, must be interpreted as precluding national legislation under which the infringement of the rights provided for by those provisions of those directives must be invoked by the beneficiary of those rights within a prescribed period, failing which that challenge will be time–barred, where that period begins to run before the person concerned has been informed, in a language which he or she speaks or understands, first, of the existence and scope of his or her right to interpretation and translation and, secondly, of the existence and content of the essential document in question and the effects thereof. |
Case number | C–562/21 PPU |
Case name | Openbaar Ministerie (Tribunal établi par la loi dans l’État membre d’émission) |
Document | Judgment ECLI:EU:C:2022:100 |
Date | 22/02/2022 |
Source of the question referred for a preliminary ruling | Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) |
Name of the parties | X and Y |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | Openbaar – X and Y – European arrest warrant – Surrender procedures between Member States – Conditions for execution – Charter of Fundamental Rights of the European Union – Fundamental right to a fair trial before an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies – Two–step examination – Criteria for application |
Question referred for a preliminary ruling | ‘(1) Is it appropriate to apply the test set out in the judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586), and affirmed in the judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033), where there is a real risk that the person concerned will stand trial before a court not previously established by law? (2) Is it appropriate to apply the test set out in the judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586), and affirmed in the judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033), where the requested person seeking to challenge his [or her] surrender cannot meet that test by reason of the fact that it is not possible at that point in time to establish the composition of the courts before which he [or she] will be tried by reason of the manner in which cases are randomly allocated? (3) Does the absence of an effective remedy to challenge the validity of the appointment of judges in Poland, in circumstances where it is apparent that the requested person cannot at this point in time establish that the courts before which he [or she] will be tried will be composed of judges not validly appointed, amount to a breach of the essence of the right to a fair trial, thus requiring the executing judicial authority to refuse the surrender of the requested person?’ |
Decision | Article 1(2) and (3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where the executing judicial authority called upon to decide on the surrender of a person in respect of whom a European arrest warrant has been issued has evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the issuing Member State, in particular as regards the procedure for the appointment of the members of the judiciary, that authority may refuse to surrender that person: – in the context of a European arrest warrant issued for the purposes of executing a custodial sentence or detention order, only if that authority finds that, in the particular circumstances of the case, there are substantial grounds for believing that, having regard inter alia to the information provided by that person relating to the composition of the panel of judges who heard his or her criminal case or to any other circumstance relevant to the assessment of the independence and impartiality of that panel, there has been a breach of that person’s fundamental right to a fair trial before an independent and impartial tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, and – in the context of a European arrest warrant issued for the purposes of conducting a criminal prosecution, only if that authority finds that, in the particular circumstances of the case, there are substantial grounds for believing that, having regard inter alia to the information provided by the person concerned relating to his or her personal situation, the nature of the offence for which that person is prosecuted, the factual context surrounding that European arrest warrant or any other circumstance relevant to the assessment of the independence and impartiality of the panel of judges likely to be called upon to hear the proceedings in respect of that person, the latter, if surrendered, runs a real risk of breach of that fundamental right. |
Case number | C–428/21 PPU |
Case name | Openbaar Ministerie (Droit d’être entendu par l’autorité judiciaire d’exécution) |
Document | Judgment ECLI:EU:C:2021:876 |
Date | 26/10/2021 |
Source of the question referred for a preliminary ruling | In Joined Cases C–428/21 PPU and C–429/21 PPU, made by Rechtbank Amsterdam (District Court, Amsterdam, Netherland) |
Name of the parties | HM and TZ |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | Openbaar – HM and TZ – European arrest warrant – Request for consent to prosecution for offences other than those on which the surrender was based – Request for consent to subsequent surrender of the person concerned to another Member State –– Right to effective judicial protection – Right of the person concerned to be heard by the executing judicial authority – Arrangement |
Question referred for a preliminary ruling | Case C–428/21PPU – a surrendered person must be able to exercise his or her right to be heard in relation to a request for an extension of the offences in the issuing Member State when a judicial authority of that Member State grants him or her a hearing relating to the possible renunciation of the entitlement to the speciality rule as referred to in Article 27(3)(f) of the framework decision, or – must that person be able to exercise his or her right to be heard in the Member State which previously surrendered him or her to the executing judicial authority in the proceedings relating to the request for consent to extend the offences? – that a person who has been surrendered to the issuing Member State and in respect of whom a third Member State has subsequently issued [a European arrest warrant] for offences committed prior to that surrender, must be able to exercise his or her right to be heard in relation to the request for consent for subsequent surrender, as referred to in Article 28(3) of Framework Decision 2002/584/JHA, in the issuing Member State before a judicial authority of that Member State during the proceedings on the execution of the EAW issued by the third Member State; or – that that person must be able to exercise his right to be heard in the Member State which previously surrendered him to the executing judicial authority during the proceedings on the giving of consent for subsequent surrender? |
Decision | Article 27(3)(g) and (4) and Article 28(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in the light of the right to effective judicial protection guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a person who has been surrendered to the issuing judicial authority pursuant to a European arrest warrant is entitled to be heard by the executing judicial authority when the latter receives from the issuing judicial authority a request for consent under those provisions of Framework Decision 2002/584; that hearing may take place in the issuing Member State – in which case the latter’s judicial authorities must ensure that the right to be heard of the person concerned is exercised properly and effectively – and may be held without the direct participation of the executing judicial authority. However, the executing judicial authority must ensure that it has sufficient information, in particular as regards the position of the person concerned, to allow it – while fully respecting his or her rights of defence – to take a fully informed decision on the request for consent made under Article 27(4) or Article 28(3) of Framework Decision 2002/584 and must ask, where appropriate, the issuing judicial authority to provide it, as a matter of urgency, with supplementary information. |
Case number | C–348/21 |
Case name | HYA and Others (Impossibilité d’interroger les témoins à charge) |
Document | Judgment ECLI:EU:C:2022:965 |
Date | 08/12/2022 |
Source of the question referred for a preliminary ruling | Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) |
Name of the parties | HYA, IP, DD, ZI, SS, when attending Spetsializirana prokuratura, |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; attendance at trials |
Key words | HYA – Strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings – Right of an accused person to be present at their trial – Right to a fair trial and rights of the defence – Examination of prosecution witnesses in the absence of the accused person and their lawyer during the pre–trial stage of criminal proceedings – Impossibility to examine prosecution witnesses during the pre–trial stage of criminal proceedings – National legislation allowing a criminal court to base its decision on the previous testimony of said witnesses |
Question referred for a preliminary ruling | ‘Is a national law which provides that the right of an accused person to be present in proceedings is safeguarded and the public prosecutor’s office properly discharges its obligation to prove the guilt of the accused person compatible with Article 8(1) and Article 6(1) of Directive 2016/343, read in conjunction with recitals 33 and 34 thereof and the second paragraph of Article 47 of the Charter, if the testimony given at the pre–trial stage of the proceedings by witnesses who cannot be examined for objective reasons is introduced at the trial stage of the criminal proceedings, whereby those witnesses were examined solely by the prosecution and without the participation of the defence, but before a judge, and the prosecution could have provided the defence with the opportunity to participate in that examination at the pre–trial stage, but did not do so?’ |
Decision | Article 8(1) of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, read in conjunction with the second paragraph of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding the application of national legislation which allows a national court, where it is not possible to examine a prosecution witness during the judicial stage of criminal proceedings, to base its decision on the guilt or innocence of the accused person on the witness testimony obtained during a hearing before a judge during the pre–trial stage of those proceedings, but without the participation of the accused person or their lawyer, unless there is a good reason warranting the non–appearance of the witness at the judicial stage of the criminal proceedings, the testimony given by that witness does not constitute the sole or decisive basis for the conviction of the accused person, and there are sufficient counterbalancing factors to compensate for the handicaps faced by the accused person and their lawyer as a result of the taking into account of that testimony. |
Case number | C–289/21 |
Case name | Varhoven administrativen sad (Abrogation de la disposition contestée) |
Document | Judgment ECLI:EU:C:2022:920 |
Date | 24/11/2022 |
Source of the question referred for a preliminary ruling | Administrativen sad Sofia–grad (Administrative Court, Sofia, Bulgaria) |
Name of the parties | IG v Varhoven administrativen sad |
Subject matter | Energy; compensation |
Key words | IG – Varhoven – Energy – Charter of Fundamental Rights of the European Union – Effective judicial protection – National procedural rule – Annulment of a provision – Procedure – Action lacking jurisdiction – Damages |
Question referred for a preliminary ruling | ‘(1) Does the amendment of a provision of a national normative legal act previously declared by a court of appeal to be incompatible with an applicable provision of EU law relieve the Court of Cassation of the obligation to examine the legality of the provision applicable in the version prior to the amendment and accordingly to assess whether it is compatible with EU law? (2) Does the presumption that the provision at issue has been withdrawn constitute an effective remedy with regard to rights and freedoms guaranteed by EU law (in casu, Articles 9 and 10 of Directive [2012/27]), or does the possibility provided for in national law to examine whether the national provision in question was compatible with EU law before it was amended constitute such a remedy if it exists only if the competent court is seised of a specific action for damages on account of that provision and only in relation to the person who brought the action? (3) If Question 2 is answered in the affirmative, is it permissible for the provision in question to continue to regulate, during the period between its adoption and its amendment, legal relationships in respect of an unlimited group of persons who have not brought actions for damages on account of that provision, or for the assessment of the compatibility of the national rule with the EU law provision in respect of the period prior to the amendment not to have been carried out in relation to those persons?’ |
Decision | The principle of effectiveness as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding a procedural rule of a Member State according to which, where a provision of domestic law challenged by an action for annulment on the ground that it is contrary to EU law is repealed and therefore ceases to have any effect for the future, the dispute is deemed to have become devoid of purpose with the result that there is no longer any need to adjudicate on it, without the parties having first been able to assert any interest they may have in the continuation of the proceedings and without any account having been taken of any such interest. |
Case number | C–175/21 |
Case name | Harman International Industries |
Document | Judgment ECLI:EU:C:2022:895 |
Date | 17/11/2022 |
Source of the question referred for a preliminary ruling | Sąd Okręgowy v Warszawie (Regional Court, Warsaw, Poland) |
Name of the parties | Harman International Industries Inc. and AB S.A. |
Subject matter | Free movement of goods; intellectual, industrial and commercial property; trade marks |
Key words | Harman – Intellectual property – EU trade mark –– Exhaustion of the rights conferred by a trade mark – Placing on the market within the European Economic Area (EEA) – Consent of the proprietor of the trade mark – Place of first marketing of products by the proprietor of the trade mark or with its consent – Proof – Charter of Fundamental Rights of the European Union – Effective judicial protection – Operative part of judicial decisions not identifying the products covered – Difficulties in implementation – Restricted scope of action before the competent court for enforcement – Fair trial – Rights of the defence – Principle of the equality of arms |
Question referred for a preliminary ruling | ‘Must the second sentence of Article 36 TFEU, read in conjunction with Article 15(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, and in conjunction with the second sentence of Article 19(1) of the Treaty on European Union, be interpreted as precluding the practice of the national courts of the Member States, which is that the courts: – when upholding claims by a proprietor of an EU trade mark to prohibit the importation, putting on the market, offering, advertising of goods bearing the EU trade mark, to order their withdrawal from the market or to order their destruction; – when ruling, in protective proceedings relating to the seizure of products bearing an EU trade mark, refer in their rulings to ‘goods which have not been put on the market within the [EEA] by the right holder or with its consent’, with the result that it is left to the enforcement authority, in view of the general wording of the ruling, to determine which items bearing the EU trade mark are subject to the injunctions and prohibitions granted (that is to say, which items have not been put on the market within the European Economic Area by the right holder or with its consent) which basis that determination on the statement of the right holder or tools provided by it (including its IT tools and databases), while the possibility of challenging the aforementioned findings of the enforcement authority before a court in declaratory proceedings is excluded or limited by the nature of the legal remedies available to the defendant in protective proceedings and in enforcement proceedings?’ |
Decision | Article 15(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, read in combination with the second sentence of Article 36 TFEU, Article 47 of the Charter of Fundamental Rights of the European Union. and Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, must be interpreted as not precluding a judicial practice by which the operative part of the decision upholding an action for infringement of an EU trade mark is drafted in terms which, owing to their general nature, leaves it to the authority with competence to enforce that decision to determine the products to which that decision applies, provided that, in the context of the enforcement procedure, the defendant is permitted to contest the determination of the products covered by that procedure and that a court may examine and decide, in compliance with the provisions of Directive 2004/48, which products have in fact been placed on the market in the EEA by the proprietor or with its consent. |
Case number | C–159/21 |
Case name | Országos Idegenrendeszeti Főigazgatóság and Others |
Document | Judgment ECLI:EU:C:2022:708 |
Date | 22/09/2022 |
Source of the question referred for a preliminary ruling | Fővárosi Törvényszék (Budapest High Court, Hungary) |
Name of the parties | GM v Országos Idegenrendészeti Főigazgatóság, Alkotmányvédelmi Hivatal,Terrorelhárítási Központ |
Subject matter | Area of freedom, security and justice; asylum policy; border control; withdrawal of refugee status |
Key words | GM – Orszagos – Common asylum and immigration policy – Standards for granting refugee status or subsidiary protection status – Withdrawal of the status – Common procedures for granting and withdrawing international protection – Danger to national security – Position taken by a specialist authority – Access to the file |
Question referred for a preliminary ruling | (1) Must Article 11(2), Article 12(1)(d) and (2), Article 23(1)(b) and Article 45(1) and (3) to (5) of [Directive 2013/32] – in the light of Article 47 of [the Charter] – be interpreted as meaning that, where the exception for reasons of national security referred to in Article 23(1) of [Directive 2013/32] applies, the Member State authority that has adopted a decision to refuse or withdraw international protection based on a reason of national security and the national security authority that has determined that the reason is confidential must ensure that it is guaranteed that in all circumstances the applicant, a refugee or a foreign national beneficiary of subsidiary protection status, or that person’s legal representative, is entitled to have access to at least the essence of the confidential or classified information or data underpinning the decision based on that reason and to make use of that information or those data in proceedings relating to the decision, where the responsible authority alleges that their disclosure would conflict with the reason of national security? (2) If the answer is in the affirmative, what precisely should be understood by the ‘essence’ of the confidential reasons on which that decision is based, for the purposes of applying Article 23(1)(b) of [Directive 2013/32] in the light of Articles 41 and 47 of the Charter? (3) Must Article 14(4)(a) and Article 17(1)(d) of [Directive 2011/95] and Article 45(1)(a) and (3) to (4) and recital 49 of [Directive 2013/32] be interpreted as meaning that they preclude national legislation according to which refugee or foreign national beneficiary of subsidiary protection status may be withdrawn or excluded by a non–reasoned decision which is based solely on automatic reference to the – likewise non–reasoned – binding and mandatory report of the national security authority and finds that there is a danger to national security? (4) Must recitals 20 and 34, Article 4 and Article 10(2) and (3) – particularly subparagraph (d) – of [Directive 2013/32] and [Article] 14(4)(a) and [Article] 17(1)(d) of [Directive 2011/95] be interpreted as meaning that they preclude national legislation according to which that national security authority examines the ground for exclusion and takes a decision on the substance in a procedure that does not comply with the substantive and procedural provisions of [Directive 2013/32] and [Directive 2011/95]? (5) Must Article 17(1)(b) of [Directive 2011/95] be interpreted as meaning that it precludes an exclusion based on a circumstance or crime that was already known before the judgment or final decision granting refugee status was adopted but which was not the basis of any ground for exclusion in relation to either the grant of refugee status or to subsidiary protection?’ |
Decision | (1) Must Article 11(2), Article 12(1)(d) and (2), Article 23(1)(b) and Article 45(1) and (3) to (5) of [Directive 2013/32] – in the light of Article 47 of [the Charter] – be interpreted as meaning that, where the exception for reasons of national security referred to in Article 23(1) of [Directive 2013/32] applies, the Member State authority that has adopted a decision to refuse or withdraw international protection based on a reason of national security and the national security authority that has determined that the reason is confidential must ensure that it is guaranteed that in all circumstances the applicant, a refugee or a foreign national beneficiary of subsidiary protection status, or that person’s legal representative, is entitled to have access to at least the essence of the confidential or classified information or data underpinning the decision based on that reason and to make use of that information or those data in proceedings relating to the decision, where the responsible authority alleges that their disclosure would conflict with the reason of national security? (2) If the answer is in the affirmative, what precisely should be understood by the ‘essence’ of the confidential reasons on which that decision is based, for the purposes of applying Article 23(1)(b) of [Directive 2013/32] in the light of Articles 41 and 47 of the Charter? (3) Must Article 14(4)(a) and Article 17(1)(d) of [Directive 2011/95] and Article 45(1)(a) and (3) to (4) and recital 49 of [Directive 2013/32] be interpreted as meaning that they preclude national legislation according to which refugee or foreign national beneficiary of subsidiary protection status may be withdrawn or excluded by a non–reasoned decision which is based solely on automatic reference to the – likewise non–reasoned – binding and mandatory report of the national security authority and finds that there is a danger to national security? (4) Must recitals 20 and 34, Article 4 and Article 10(2) and (3) – particularly subparagraph (d) – of [Directive 2013/32] and [Article] 14(4)(a) and [Article] 17(1)(d) of [Directive 2011/95] be interpreted as meaning that they preclude national legislation according to which that national security authority examines the ground for exclusion and takes a decision on the substance in a procedure that does not comply with the substantive and procedural provisions of [Directive 2013/32] and [Directive 2011/95]? (5) Must Article 17(1)(b) of [Directive 2011/95] be interpreted as meaning that it precludes an exclusion based on a circumstance or crime that was already known before the judgment or final decision granting refugee status was adopted but which was not the basis of any ground for exclusion in relation to either the grant of refugee status or to subsidiary protection?’ |
Case number | C–19/21 |
Case name | Staatssecretaris van Justitie en Veiligheid (Refus de prise en charge d’un mineur égyptien non accompagné) |
Document | Judgment ECLI:EU:C:2022:605 |
Date | 01/08/2022 |
Source of the question referred for a preliminary ruling | Rechtbank Den Haag zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem, Netherlands) |
Name of the parties | I, S v Staatssecretaris voor Justitie en Veiligheid |
Subject matter | Area of freedom, security and justice; asylum policy; refusal of an application for admission |
Key words | I, S – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Unaccompanied minor with a relative legally present in another Member State – Refusal by that Member State of that minor’s take charge request – Right to an effective remedy of that minor or of that relative against the refusal decision – Charter of Fundamental Rights of the European Union – Best interests of the child) |
Question referred for a preliminary ruling | ‘(1) Must Article 27 of the [Dublin III Regulation] be interpreted as requiring the requested Member State, whether or not in conjunction with Article 47 of the Charter, to provide the applicant residing in the requesting Member State and seeking transfer pursuant to Article 8 (or Article 9 or 10) of the [Dublin III Regulation], or the applicant’s family member referred to in Article 8, 9 or 10 of the [Dublin III Regulation], with an effective remedy before a court or tribunal against the refusal of the request to take charge? (2) If the answer to the first question is in the negative and Article 27 of the [Dublin III Regulation] does not provide a basis for an effective remedy, must Article 47 of the Charter – read in conjunction with the fundamental right to family unity and the best interests of the child (as laid down in Articles 8 to 10 and recital 19 of the [Dublin III Regulation]) – be interpreted as requiring the requested Member State to provide the applicant residing in the requesting Member State and seeking transfer pursuant to [Articles 8 to 10)] of the [Dublin III Regulation] or the [relative] of the applicant referred to in [that provision], with an effective remedy before a court or tribunal against the refusal of the request to take charge? (3) If Question [1] or Question [2] (second part) is answered in the affirmative, in what way and by which Member State should the requested Member State’s decision to refuse the request and the right to appeal against it be communicated to the applicant or the applicant’s [relative]?’ |
Decision | Article 27(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national or a stateless person, read in conjunction with Articles 7, 24 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that: it requires a Member State to which a take charge request has been made, based on Article 8(2) of that regulation, to grant a right to a judicial remedy against its refusal decision to the unaccompanied minor, within the meaning of Article 2(j) of that regulation, who applies for international protection, but not to the relative of that minor, within the meaning of Article 2(h) of that regulation. |
Case number | C–7/21 |
Case name | LKW WALTER |
Document | Judgment ECLI:EU:C:2022:527 |
Date | 07/07/2022 |
Source of the question referred for a preliminary ruling | Bezirksgericht Bleiburg (District Court, Bleiburg, Austria) |
Name of the parties | LKW WALTER Internationale Transportorganisation AG v CB and Others |
Subject matter | Area of freedom, security and justice; judicial cooperation in civil matters; claim for damages against lawyers' liability |
Key words | LKW Walter – Judicial cooperation in civil matters – Service of documents – One–week period within which the right to refuse to accept a document is to be exercised – Enforcement order made in one Member State and served in another Member State in the language of the first Member State only – Legislation of that first Member State laying down an eight–day period to lodge an objection to that order – Period for lodging an objection starting to run at the same time as the period laid down for the purpose of exercising the right to refuse to accept the document – Charter of Fundamental Rights of the European Union – Right to an effective remedy) |
Question referred for a preliminary ruling | ‘(1) Are Articles 36 and 39 of Regulation [No 1215/2012], read in conjunction with Article 47 of the [Charter] and the principles of effectiveness and equivalence (principle of sincere cooperation under Article 4(3) TEU), to be interpreted as precluding legislation of a Member State which provides for, as the sole remedy against a decision on enforcement issued by the court without prior adversarial proceedings and without an instrument permitting enforcement, and solely on the basis of the allegations of the party seeking enforcement, an objection, which must be lodged within 8 days in the language of that Member State, even if the decision on enforcement is served in another Member State in a language which the addressee does not understand, and the objection is already rejected as being out of time if it is lodged within 12 days? (2) Is Article 8 of Regulation [No 1393/2007], read in conjunction with the principles of effectiveness and equivalence, to be interpreted as precluding a national measure which provides that, upon service of the standard form set out in Annex II informing the addressee of his or her right to refuse to accept the document within a period of one week, the period also begins to run in respect of bringing the appeal provided for against the decision on enforcement served at the same time, for which a period of eight days is laid down? (3) Is Article 18(1) of [TFEU] to be interpreted as precluding a legislation of a Member State which provides for, as the remedy against a decision on enforcement, an objection, which must be lodged within eight days, and that time limit also applies where the addressee of the decision on enforcement is established in another Member State and the decision on enforcement is not written either in the official language of the Member State in which the decision on enforcement is served or in a language which the addressee of the decision understands?’ |
Decision | Article 8(1) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislation of the Member State of the authority which issued a document to be served, pursuant to which the starting point of the one–week period referred to in Article 8(1) of that regulation, within which the addressee of such a document may refuse to accept it on one of the grounds set out in that provision, is the same as the starting point for the period within which a remedy is to be sought against that document in that Member State. |
Case number | C–704/20 |
Case name | Staatssecretaris van Justitie en Veiligheid (Examen d’office de la rétention) |
Document | Judgment ECLI:EU:C:2022:858 |
Date | 08/11/2022 |
Source of the question referred for a preliminary ruling | Raad van State (Council of State, Netherlands) (in Case C–704/20) and Rechtbank Den Haag, zittingsplaats 's–Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands) (in Case C–39/21) |
Name of the parties | Staatssecretaris van Justitie en Veiligheid v C, B (C–704/20) |
Subject matter | Area of freedom, security and justice; asylum policy; border control; legality of detention measures |
Key words | X – Area of freedom, security and justice – Detention of third–country nationals – Fundamental right to liberty – Charter of Fundamental Rights of the European Union – Conditions governing the lawfulness of detention – Review of the lawfulness of detention and of the continuation of a detention measure – Ex officio review – Fundamental right to an effective judicial remedy |
Question referred for a preliminary ruling | Joined Cases: Case C–704/20): (2) Having regard to Article 24(2) of the Charter, read in conjunction with Article 3(9) of [Directive 2008/115], Article 21 of [Directive 2013/33] and Article 6 of [Regulation No 604/2013], does the answer to Question 1 differ if the foreign national detained by the authorities concerned is a minor? (3) Does the right to an effective remedy guaranteed by Article 47 of the Charter, read in conjunction with Article 6 of the Charter and Article 53 of the Charter and in the light of Article 15(2)(b) of [Directive 2008/115], Article 9(3) of [Directive 2013/33] and Article 28(4) of [Regulation No 604/2013], mean that, where a foreign national requests a court of any instance to end the detention measure to which he or she has been subject and order his or her release, that court must give an adequate substantive statement of reasons for any decision on that request, if the remedy is otherwise structured in the same manner as it is in this Member State? If the Court of Justice considers a national legal practice in which the court of second, and therefore highest, instance may confine itself to ruling without giving any substantive reasons to be incompatible with EU law, having regard to the way in which the legal remedy is otherwise structured in this Member State, does that then mean that such a power for the court of second and therefore highest instance in asylum and ordinary immigration cases must also be regarded as being incompatible with EU law, in the light of the vulnerable position of the foreign national, the considerable importance of immigration procedures and the fact that, in contrast to all other administrative procedures, in terms of legal protection, those procedures contain the same weak procedural guarantees for the foreign national as the detention procedure? Having regard to Article 24(2) of the Charter, are the answers to these questions different if the foreign national challenging a decision of the authorities concerning matters of immigration law is a minor?’ |
Decision | Article 15(2) and (3) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, Article 9(3) and (5) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, and Article 28(4) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national or a stateless person, read in conjunction with Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a judicial authority’s review of compliance with the conditions governing the lawfulness of the detention of a third–country national which derive from EU law must lead that authority to raise of its own motion, on the basis of the material in the file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, any failure to comply with a condition governing lawfulness which has not been invoked by the person concerned. |
Case number | C–669/20 |
Case name | Veridos |
Document | Judgment ECLI:EU:C:2022:684 |
Date | 15/09/2022 |
Source of the question referred for a preliminary ruling | Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) |
Name of the parties | Veridos GmbH v Ministar na vatreshnite raboti na Republika Bulgaria, Mühlbauer ID Services GmbH – S&T |
Subject matter | Freedom to provide services; public procurement; choice of supplier |
Key words | Veridos – Coordination of procedures for the award of certain works contracts, supply contracts and service contracts – Obligation to verify whether an abnormally low tender exists – Criterion laid down by a piece of national legislation for assessing the abnormally low nature of a tender – Not applicable – Requirement that there be at least three tenders – Criterion based on the requirement that a tender be more than 20% lower than the mean value of the tenders submitted by the other tenderers – Judicial review |
Question referred for a preliminary ruling | ‘(1) Is Article 56 of Directive [2014/24] in conjunction with Article 69 thereof, or, respectively, Article 38 of Directive [2009/81] in conjunction with Article 49 thereof, to be interpreted as meaning that a contracting authority, where it is objectively impossible to apply the criterion laid down in national law for the evaluation of an abnormally low tender and in the absence of a different criterion selected by the contracting authority and announced in advance, is not required to verify whether an abnormally low tender exists? (2) Is Article 56 of Directive 2014/24 in conjunction with Article 69 thereof, or, respectively, Article 38 of Directive 2009/81 in conjunction with Article 49 thereof, to be interpreted as meaning that the contracting authority is required to verify whether abnormally low tenders exist only if there is a suspicion regarding any tender; or, conversely, is the contracting authority required to always ensure that the received tenders are genuine, and state the relevant reasons? (3) Does such a requirement apply to the contracting authority if only two tenders have been received during the procedure for the award of a public contract? (4) Is Article 47 of the [Charter] to be interpreted as meaning that the contracting authority’s assessment as regards a lack of suspicion that an abnormally low tender exists, or, respectively, that contracting authority’s conviction that the first–ranked tenderer has submitted a genuine tender, is subject to judicial review? (5) Should the previous question be answered in the affirmative: is Article 47 of the [Charter] to be interpreted as meaning that a contracting authority in a procedure for the award of a public contract which has not verified whether an abnormally low tender exists is required to provide justification and reasons as to why there is no suspicion that an abnormally low tender has been submitted, in other words, that the first–ranked tender is genuine?’ |
Decision | 1. Articles 38 and 49 of Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC, must be interpreted as meaning that a contracting authority, where there is suspicion that a tender is of an abnormally low nature, is required to verify whether this is actually the case by taking account of all the relevant components of the invitation to tender and the contract documents, without the impossibility of applying the criteria laid down for that purpose by a piece of national legislation or the number of tenders submitted being relevant in that regard. 2. Article 55(2) of Directive 2009/81, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, where a contracting authority has failed to initiate a procedure to verify whether a tender might be of an abnormally low nature, on the ground that it considered that none of the tenders submitted to it was of such a nature, its assessment may be subject to judicial review in the context of proceedings against the decision to award the contract at issue. |
Case number | C–648/20 PPU |
Case name | Svishtov Regional Prosecutor;s Off |
Document | Judgment ECLI:EU:C:2021:187 |
Date | 10/03/2021 |
Source of the question referred for a preliminary ruling | Westminster Magistrates’ Court (United Kingdom) |
Name of the parties | PI |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | PI – Judicial cooperation in criminal matters – European arrest warrant –European arrest warrant issued by the public prosecutor’s office of a Member State for the purposes of a criminal prosecution on the basis of a detention order issued by the same authority – No judicial review prior to surrender of the requested person – Consequences – Effective judicial protection – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | Where surrender is sought in order to prosecute a requested person, and where the decision to issue an underlying national arrest warrant (‘NAW’) and the decision to issue a European arrest warrant (‘EAW’) are both taken by a public prosecutor, without any involvement of a court prior to surrender, does a requested person receive the dual level of protection envisaged by the Court [in the judgment of 1 June 2016] in Bob–Dogi (C‑241/15, EU:C:2016:385) if: (a) the effect of the NAW is limited to detaining the individual for a maximum of 72 hours for the purpose of bringing him before a court; and (b) on surrender, it is solely a matter for the court whether to order release, or to continue detention, in light of all the circumstances of the case?’ |
Decision | Article 8(1)(c) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union and the case–law of the Court, must be interpreted as meaning that the requirements inherent in the effective judicial protection that must be afforded to a person who is the subject of a European arrest warrant for the purpose of criminal prosecution are not satisfied where both the European arrest warrant and the judicial decision on which that warrant is based are issued by a public prosecutor – who may be classified as an ‘issuing judicial authority’ within the meaning of Article 6(1) of that framework decision – but cannot be reviewed by a court in the issuing Member State prior to the surrender of the requested person by the executing Member State. |
Case number | C–519/20 |
Case name | Landkreis Gifhorn |
Document | Judgment ECLI:EU:C:2022:178 |
Date | 10/03/2022 |
Source of the question referred for a preliminary ruling | Amtsgericht Hannover (Local Court, Hanover, Germany) |
Name of the parties | K v Landkreis Gifhorn |
Subject matter | Area of freedom, security and liberty; asylum policy; border control |
Key words | K – Detention for the purpose of removal – Direct effect – Specialised detention facility – Detention in prison accommodation – Conditions – Emergency situation – Charter of Fundamental Rights of the European Union – Effective judicial review |
Question referred for a preliminary ruling | ‘(1) Must EU law, in particular Article 18(1) and (3) of Directive 2008/115, be interpreted as meaning that a national court deciding on detention for the purpose of removal must, in each individual case, examine the conditions laid down in that provision, in particular whether the exceptional situation persists, where the national legislature, on the basis of Article 18(1) [of that directive], has derogated from the conditions laid down in Article 16(1) [thereof] in national law? (2) Must EU law, in particular Article 16(1) of Directive 2008/115, be interpreted as precluding national legislation which on a temporary basis, until 1 July 2022, allows the placement of detainees awaiting removal in a prison facility despite specialised detention facilities being provided in the Member State and despite the fact that there is no emergency situation within the meaning of Article 18(1) of [that directive] which would make [this] absolutely necessary? (3) Must Article 16(1) of Directive 2008/115 be interpreted as meaning that a ‘specialised detention facility’ to detain persons awaiting removal is not deemed to exist merely because: – the ‘specialised detention facility’ [is indirectly] subject to supervision by the same government body as detention facilities for [ordinary] prisoners, namely the Minister for Justice, – the ‘specialised detention facility’ is organised as a division of a prison and, while it has its own governor, is under the overall management of the prison facility as it is one of a number of divisions of that prison? (4) If Question 3 is answered in the negative: Must Article 16(1) of Directive 2008/115 be interpreted as meaning that accommodation in a ‘specialised detention facility’ for detainees awaiting removal exists if a prison facility sets up a specific division as a detention facility, if that division operates for detainees awaiting removal a specific area with three buildings within the perimeter fence and one of those three buildings temporarily solely houses prisoners serving custodial sentences for default of payment of a fine or short custodial sentences, where the prison facility takes care to ensure detainees awaiting removal are separated from prisoners and where, in particular, every house has its own facilities (its own clothing store, medical facilities, gym) and, while the yard/outside space is visible from all houses, each house has its own area for use by the detainees which is surrounded by a wire–mesh fence that prevents direct access between houses?’ |
Decision | 1. Article 16(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals must be interpreted as meaning that a specific division of a prison facility which, first, while having its own director, is subject to the management of that establishment and is subject to the authority of the minister who has authority over prison facilities and in which, second, third–country nationals are detained, for the purpose of removal, in specific buildings which have their own facilities and are isolated from other buildings in that division in which those with a criminal conviction are held, may be regarded as a ‘specialised detention facility’ within the meaning of that provision, provided that the conditions of detention applicable to those nationals avoid, as much as possible, that detention resembling detention in a prison environment and provided that they are designed in such a way that the rights guaranteed by the Charter of Fundamental Rights of the European Union and the rights enshrined in Article 16(2) to (5) and Article 17 of that directive are respected. 2. Article 18 of Directive 2008/115, read in conjunction with Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that a national court which is called upon, in the exercise of its jurisdiction, to order the detention or an extension of the detention, in a prison facility, of a third–country national for the purpose of removal must be able to verify compliance with the conditions laid down in Article 18 of that directive under which it is possible for a Member State to provide that that national is to be detained in a prison facility.
3. Article 16(1) of Directive 2008/115, read in conjunction with the principle of the primacy of EU law, must be interpreted as meaning that a national court must disapply legislation of a Member State which makes it possible, on a temporary basis, for illegally staying third–country nationals to be detained, for the purpose of their removal, in prison accommodation, separated from ordinary prisoners, where the conditions laid down in Article 18(1) and the second sentence of Article 16(1) of that directive for such national legislation to comply with EU law are not or are no longer satisfied. |
Case number | C–497/20 |
Case name | Randstad Italia |
Document | Judgment ECLI:EU:C:2021:1037 |
Date | 21/12/2021 |
Source of the question referred for a preliminary ruling | Corte suprema di cassazione (Supreme Court of Cassation, Italy) |
Name of the parties | Randstad Italia SpA v Umana SpA and Others |
Subject matter | Freedom to provide services; public procurement; review procedure |
Key words | Randstad Obligation of Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law – Public procurement – Charter of Fundamental Rights of the European Union – Judgment of a Member State’s highest administrative court declaring inadmissible, in breach of the case–law of the Court of Justice, an action brought by a tenderer excluded from a public procurement procedure – No remedy against that judgment before the highest court in that Member State’s judicial order – Principles of effectiveness and equivalence |
Question referred for a preliminary ruling | ‘(1) Do Article 4(3) TEU, Article 19(1) TEU, Article 2(1) and (2) TFEU, and Article 267 TFEU, read in the light of Article 47 of the [Charter], preclude an interpretative practice such as that regarding the eighth paragraph of Article 111 of the Italian Constitution, Article 360(1) … and Article 362(1) of the Italian Code of Civil Procedure, and Article 110 of the Italian Code of Administrative Procedure – under which provisions an appeal in cassation against a judgment of the Consiglio di Stato (Council of State) may be brought for ‘reasons of jurisdiction’ – such as that which emerges from Judgment No 6/2018 of the Corte costituzionale (Constitutional Court) …, in which it has been held, marking a departure from the approach previously taken, that the remedy of an appeal in cassation, on grounds of a ‘lack of jurisdiction’, is not available for the purpose of challenging judgments in which the Consiglio di Stato (Council of State) has applied interpretative practices developed nationally but in conflict with judgments of the Court of Justice, in sectors governed by EU law (in the present case, public procurement) and with regard to which the Member States have waived their right to exercise sovereign powers in a manner incompatible with EU law, with the effect of consolidating infringements of EU law that might have been rectified using the remedy of an appeal in cassation and of undermining the uniform application of EU law and the effectiveness of the judicial protection afforded to individuals in legal situations of EU significance, contrary to the requirement that EU law be fully and duly applied by every court in a manner necessarily consistent with its correct interpretation by the Court of Justice, regard being had to the limits on the ‘procedural autonomy’ of the Member States in the structuring of their rules of procedure? (2) Do Article 4(3) TEU, Article 19(1) TEU, and Article 267 TFEU, read in the light of Article 47 of the [Charter], preclude the eighth paragraph of Article 111 of the Italian Constitution, Article 360(1) … and Article 362(1) of the Italian Code of Civil Procedure, and Article 110 of the Italian Code of Administrative Procedure from being interpreted and applied, as they have been in national judicial practice, in such a manner that an appeal in cassation before the Combined Chambers [of the Corte suprema di cassazione (Supreme Court of Cassation)] for ‘reasons of jurisdiction’, on grounds of a ‘lack of jurisdiction’, cannot be brought for the purpose of challenging a judgment in which the Consiglio di Stato (Council of State), ruling in a dispute involving issues concerning the application of EU law, refrains, without reason, from making a reference to the Court of Justice for a preliminary ruling, where the conditions relieving a national court of that obligation, which have been exhaustively listed by the Court of Justice [in its judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335)] and which must be strictly interpreted, are absent, contrary to the principle that national rules and procedural practices, even those arising from legislation or the Constitution, are incompatible with EU law if they prevent a national court (of last instance or otherwise), even temporarily, from making a reference for a preliminary ruling, with the effect of usurping the Court of Justice’s exclusive jurisdiction to interpret EU law correctly and in binding fashion, of making any conflicts of interpretation between the law applied by national courts and EU law irremediable (and promoting the consolidation of such conflicts of interpretation), and of undermining the uniform application and effective judicial protection of the rights enjoyed by individuals under EU law? (3) Do the principles expressed by the Court of Justice in its judgments of 5 September 2019, Lombardi [(C‑333/18, EU:C:2019:675)], of 5 April 2016, PFE [(C‑689/13, EU:C:2016:199)], and of 4 July 2013, Fastweb [(C‑100/12, EU:C:2013:448)], in connection with Article 1(1) and (3) and Article 2(1) of Directive [89/665], as amended by Directive [2007/66], apply to the case in the main proceedings in which an undertaking has challenged its exclusion from a tendering procedure and the award of the contract to another undertaking and the Consiglio di Stato (Council of State) has examined the substance only of the ground of appeal whereby the excluded undertaking disputed the points awarded to its technical offer, which were below the ‘minimum threshold’, and has examined as a matter of priority the cross–appeals brought by the contracting authority and the successful tenderer, has upheld them and has declared inadmissible (and refrained from examining the substance of) the other grounds of the main appeal disputing the outcome of the tendering procedure for other reasons (imprecise tender assessment criteria in the tendering specifications, failure to justify the marks awarded, unlawful appointment and composition of the tender committee), in accordance with national judicial practice according to which an undertaking that has been excluded from a tendering procedure has no standing to bring a claim disputing the award of the contract to a competitor undertaking, even by way of the lapse of the tendering procedure, it being necessary to determine the compatibility with EU law of the effect of depriving the undertaking of the right to submit for the court’s examination each and every reason for which it disputes the outcome of the tendering procedure, in a situation where that undertaking’s exclusion has not been definitively established and where every competitor may argue a similar legitimate interest in the exclusion of its competitors’ tenders, which could make it impossible for the contracting authority to choose a regular tender and make it necessary to launch a new tendering procedure in which every tenderer might participate?’ |
Decision | Article 4(3) and Article 19(1) TEU, and Article 1(1) and (3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a provision of a Member State’s domestic law which, according to national case–law, has the effect that individual parties, such as tenderers who participated in a procedure for the award of a public contract, cannot challenge the conformity with EU law of a judgment of the highest court in the administrative order of that Member State by means of an appeal before the highest court in that Member State’s judicial order. |
Case number | C–414/20 PPU |
Case name | MM |
Document | Judgment ECLI:EU:C:2021:4 |
Date | 13/01/2021 |
Source of the question referred for a preliminary ruling | Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) |
Name of the parties | Criminal proceedings against MM |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; review of detention measures |
Key words | MM – Judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – European arrest warrant issued on the basis of a national measure putting a person under investigation – Concept of an ‘arrest warrant or any other enforceable judicial decision having the same effect’ – No national arrest warrant – Consequences – Effective judicial protection –Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Is a national law which provides that the European arrest warrant and the national decision on the basis of which that warrant has been issued are to be adopted only by the public prosecutor, and does not permit [a] court to participate in or to exercise prior or subsequent review, consistent with Article 6(1) of Framework Decision 2002/584? (2) Is a European arrest warrant which has been issued on the basis of the order for the requested person to be put under investigation, and that order does not involve his or her detention, consistent with Article 8(1)(c) of Framework Decision 2002/584? (3) If the answer is in the negative: if a court is not permitted to participate in the issue or review of the European arrest warrant, and that warrant has been issued on the basis of a national decision which does not provide for the detention of the requested person, [and] that European arrest warrant is in fact executed and the requested person is surrendered, should the requested person be granted an effective remedy in the same criminal proceedings as those during which that European arrest warrant was issued? Should the effective remedy involve placing the requested person in the situation in which he or she would have been if the infringement had not taken place?’ |
Decision | 1. Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the status of ‘issuing judicial authority’, within the meaning of that provision, is not conditional on there being review by a court of the decision to issue the European arrest warrant and of the national decision upon which that warrant is based. 2. Article 8(1)(c) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that a European arrest warrant must be regarded as invalid where it is not based on a ‘[national] arrest warrant or any other enforceable judicial decision having the same effect’ for the purposes of that provision. That concept covers national measures adopted by a judicial authority to search for and arrest a person who is the subject of a criminal prosecution, with a view to bringing that person before a court for the purpose of conducting the stages of the criminal proceedings. It is for the referring court to determine whether a national measure putting a person under investigation, such as that on which the European arrest warrant at issue in the main proceedings is based, produces such legal effects. 3. Where no provision is made in the legislation of the issuing Member State for an action to be brought before a court for the purpose of obtaining review of the conditions under which a European arrest warrant was issued by an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in the light of the right to effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as permitting the national court hearing an action seeking to challenge the lawfulness of the continued pre–trial detention of a person who has been surrendered pursuant to a European arrest warrant issued on the basis of a national measure that cannot be regarded as a ‘[national] arrest warrant or any other enforceable judicial decision having the same effect’ for the purposes of Article 8(1)(c) of that framework decision, and in the context of which a plea in law is raised alleging that that European arrest warrant is invalid in the light of EU law, to find that it has jurisdiction to conduct such a review of validity. Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in the light of the right to effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights, must be interpreted as not requiring the effect of a finding by the national court that the European arrest warrant at issue has been issued in breach of Article 8(1)(c) of that framework decision, in so far as it is not based on a ‘[national] arrest warrant or any other enforceable judicial decision having the same effect’ for the purposes of that provision, to be the release of the person placed in pre–trial detention following his or her surrender by the executing Member State to the issuing Member State. It is therefore for the referring court to decide, in accordance with its national law, what consequences the absence of such a national measure, as a legal basis for the European arrest warrant at issue, may have on deciding whether or not to keep the accused person in pre–trial detention. |
Case number | C–353/20 |
Case name | Skeyes |
Document | Judgment ECLI:EU:C:2022:423 |
Date | 02/06/2022 |
Source of the question referred for a preliminary ruling | Tribunal de l’entreprise du Hainaut, division de Charleroi (Companies Court, Hainaut, Charleroi Division, Belgium) |
Name of the parties | Skeyes v Ryanair DAC |
Subject matter | Freedom to provide services; transport; airspace closure |
Key words | Skeyes – Air transport – Air traffic services provider – Decision to close airspace – Exercise of the powers of a public authority – Airspace user – Airlines – Right of appeal against a decision to close airspace – Freedom to provide services in the field of transport – Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Right to an effective remedy |
Question referred for a preliminary ruling | ‘(1) Must Regulation No 550/2004, in particular Article 8 thereof, be interpreted as meaning that it authorises the Member States to remove from review by the courts of that Member State any alleged failures to fulfil the obligation to provide services by the air traffic services provider, or must the provisions of [Regulation No 550/2004] be interpreted as meaning that they require the Member States to provide an effective remedy against any such alleged breaches, account being taken of the nature of the services to be provided? (2) Must Regulation No 550/2004, inasmuch as it states that ‘the provision of air traffic services, as envisaged by this Regulation, is connected with the exercise of the powers of a public authority, which are not of an economic nature justifying the application of the Treaty rules on competition’, be interpreted as precluding not only the rules on competition per se, but also any other rules applicable to public undertakings active on a market for goods and services which have an indirect effect on competition, such as those prohibiting hindrances to the freedom to conduct business and to provide services?’ |
Decision | 1. Article 8 of Regulation (EC) No 550/2004of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky, as amended by Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009, read in conjunction with Article 2(4) of Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (‘the framework Regulation’), as amended by Regulation No 1070/2009, and in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as conferring on airspace users, such as airlines, the right to an effective remedy before the national courts against the air traffic services provider in order to submit to judicial review any alleged failures by the latter to fulfil its obligation to provide services. 2. Regulation No 550/2004, as amended by Regulation No 1070/2009, read in the light of recital 5 thereof and of Article 58(1) TFEU and Article 16 of the Charter of Fundamental Rights, must be interpreted as precluding application of the rules on competition laid down in the FEU Treaty to the provision of air navigation services connected with the exercise of the powers of a public authority, such as those provided for by that regulation, but as not precluding application of the rules of the FEU Treaty and of that Charter relating to the rights and freedoms of airspace users, such as those connected with the freedom to provide services in the field of transport and the freedom to conduct a business. |
Case number | C–132/20 |
Case name | Getin Noble Bank |
Document | Judgment ECLI:EU:C:2022:235 |
Date | 29/03/2022 |
Source of the question referred for a preliminary ruling | Sąd Najwyższy (Supreme Court, Poland) |
Name of the parties | BN and Others v Getin Noble Bank S.A. |
Subject matter | Consumer protection; Unfair Terms – Powers and obligations of the national court |
Key words | BN – Admissibility – Concept of ‘court or tribunal’ – Charter of Fundamental Rights of the European Union – Rule of law – Effective judicial protection – Principle of judicial independence – Tribunal previously established by law – Judicial body, a member of which was appointed for the first time to the position of judge by a political body within the executive branch of an undemocratic regime – Way in which the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) operates – Unconstitutionality of the law on the basis of which that council was composed – Whether that body is to be considered to be an impartial and independent court or tribunal within the meaning of EU law |
Question referred for a preliminary ruling | (1) Must Article 2, Article 4(3), Article 6(1) and (3) and the second subparagraph of Article 19(1) [TEU] in conjunction with the first and second paragraphs of Article 47 of the [Charter] and the third paragraph of Article 267 TFEU, Article 38 of the Charter and Article 7(1) and (2) of [Directive 93/13] be interpreted as meaning that a body which includes a person appointed to the position of judge for the first or a subsequent time (to a higher court) by a political body within the executive branch of a State characterised by a totalitarian, undemocratic and communist system of power (‘the Council of State of the Polish People’s Republic’) at the request of the Minister for Justice of that State, is a duly qualified independent and impartial tribunal within the meaning of EU law, in particular given … the lack of transparency of the appointment criteria, … the possibility that the judge may be removed from office at any time, and the lack of participation in the appointment procedure of … judicial self–government or … suitable public authorities elected through democratic elections, all of which could undermine the confidence which the judiciary should inspire in a democratic society? (2) Is it relevant for resolving the issue referred to in Question 1 that appointment to the position of judge in subsequent posts (in higher courts) could take place due to the acknowledgement of an appropriate period of work (length of service) and on the basis of an assessment of work in the post to which that person was appointed at least for the first time by the political body referred to in Question 1 and on the basis of the procedure described therein, which could undermine the confidence which the judiciary should inspire in a democratic society? (3) Is it relevant for resolving the issue referred to in Question 1 that appointment to the position of judge in subsequent posts (in higher courts, not including the Sąd Najwyższy (Supreme Court)) was not conditional upon taking a judicial oath to respect the values of a democratic society, and that when appointed for the first time the person concerned promised to uphold the political system of the communist State and the ‘people’s rule of law’, which could undermine the confidence which the judiciary should inspire in a democratic society? (4) Must Article 2, Article 4(3), Article 6(1) and (3) and the second subparagraph of Article 19(1) TEU in conjunction with the first and second paragraphs of Article 47 of the Charter and the third paragraph of Article 267 TFEU, Article 38 of the Charter and Article 7(1) and (2) of Directive 93/13 be interpreted as meaning that a body which includes a person appointed to the position of judge for the first or a subsequent time (to a higher court) in flagrant breach of the constitutional provisions of a Member State of the European Union, since the composition of the body selecting that person as a candidate for subsequent appointment to the position of judge (the Krajowa Rada Sądownictwa (National Council of the Judiciary)) does not comply with the constitution of the Member State, as established by the constitutional court of that Member State, and which could consequently undermine the confidence which the judiciary should inspire in a democratic society, is a duly qualified independent and impartial tribunal within the meaning of EU law? (5) Must Article 2, Article 4(3), Article 6(1) and (3) and the second subparagraph of Article 19(1) TEU in conjunction with the first and second paragraphs of Article 47 of the Charter and the third paragraph of Article 267 TFEU, Article 38 of the Charter and Article 7(1) and (2) of Directive 93/13 be interpreted as meaning that a body which includes a person appointed to the position of judge for the first or a subsequent time (to a higher court) who was selected as a candidate for appointment to that office in proceedings before the body which assesses candidates (the National Council of the Judiciary), where those proceedings did not fulfil the criteria of open and transparent rules for the selection of candidates, which could undermine the confidence which the judiciary should inspire in a democratic society, is a duly qualified independent and impartial tribunal within the meaning of EU law? (6) Must Article 2, Article 4(3), Article 6(3) and the second subparagraph of Article 19(1) TEU in conjunction with the first and second paragraphs of Article 47 of the Charter and the third paragraph of Article 267 TFEU, Article 38 of the Charter and Article 7(1) and (2) of Directive 93/13 be interpreted as meaning that the court of last instance of a Member State of the European Union (the Sąd Najwyższy (Supreme Court)), in order to ensure effective judicial protection as a means of preventing the continued use of unfair terms in contracts concluded by sellers and suppliers with consumers, is obliged to assess ex officio at each stage of the proceedings: (a) whether the court referred to in Questions 1 and 4 fulfils the criteria of a duly qualified independent and impartial tribunal within the meaning of EU law, regardless of the impact the assessment of the criteria set out in those questions has on the substance of the decision as to whether a contractual term is unfair and, in addition, (b) whether the proceedings before the court referred to in Questions 1 and 4 are valid? (7) Must Article 2, Article 6(1) and (3) and the second subparagraph of Article 19(1) TEU in conjunction with the first and second paragraphs of Article 47 of the Charter and the third paragraph of Article 267 TFEU, Article 38 of the Charter and Article 7(1) and (2) of Directive 93/13 be interpreted as meaning that the constitutional provisions of a Member State of the European Union concerning the organisation of courts or the appointment of judges which make it impossible to assess the effectiveness of a judicial appointment may, in accordance with EU law, prevent determination of the lack of independence of a court or the lack of independence of a judge sitting in that court by reason of the circumstances referred to in Questions 1 to 5?’ |
Decision | 1. The second subparagraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights of the European Union and Article 7(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the circumstance that a judge’s initial appointment in a Member State to such a position or subsequent appointment to a higher court resulted from a decision adopted by a body of an undemocratic regime in place in that Member State prior to its accession to the European Union, including where that judge’s appointments to courts after the regime ended were based, inter alia, on the length of service acquired by that judge when that regime was in place or where the judge took a judicial oath only when first appointed to judicial office by a body of that regime, is not capable per se of giving rise to legitimate and serious doubts, in the minds of individuals, as to the independence and impartiality of that judge or, consequently, of calling into question the status as an independent and impartial tribunal previously established by law of a court formation which includes that judge. 2. The second paragraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights and Article 7(1) and (2) of Directive 93/13 must be interpreted as not precluding the formation of a court of a Member State which includes a judge whose initial appointment as a judge or subsequent appointment to a higher court was made either following that judge’s selection as a candidate for a judicial position by a body composed on the basis of legislative provisions subsequently declared unconstitutional by the constitutional court of that Member State or following that judge’s selection as a candidate for a judicial position by a body properly composed but following a procedure that was neither transparent nor public nor open to challenge before the courts, provided that such irregularities are not of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to serious and legitimate doubts, in the minds of individuals, as to the independence and impartiality of the judge concerned, from being considered to be an independent and impartial tribunal previously established by law. |
Case number | C–55/20 |
Case name | Minister Sprawiedliwości |
Document | Judgment ECLI:EU:C:2022:6 |
Date | 13/01/2022 |
Source of the question referred for a preliminary ruling | Sąd Dyscyplinarny Izby Adwokackiej w Warszawie (Bar Association Disciplinary Court, Warsaw, Poland) |
Name of the parties | Minister Sprawiedliwości v Prokurator Krajowy – Pierwszy Zastępca Prokuratora Generalnego and Rzecznik Dyscyplinarny Izby Adwokackiej w Warszawie |
Subject matter | Freedom to provide services; internal market; principles; disciplinary liability of lawyers |
Key words | Minister Sprawiedliwości – Admissibility – Definition of ‘court or tribunal of a Member State’ – Bar Association Disciplinary Court – Disciplinary investigation initiated against a lawyer – Decision of the Disciplinary Agent finding that there was no disciplinary offence and terminating the investigation – Appeal by the Minister for Justice to the Bar Association Disciplinary Court – Services in the internal market – Authorisation scheme – Withdrawal of authorisation – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Are the provisions of Chapter III of Directive [2006/123], including Article 10(6) [thereof], applicable to proceedings concerning the disciplinary liability of Polish advocates and foreign lawyers registered with a Bar Association, in connection with which liability an advocate may, inter alia, be fined, suspended, or expelled from the Bar, and a foreign lawyer may, inter alia, be fined, have his right to provide legal assistance in the Republic of Poland suspended, or be prohibited from providing legal assistance in the Republic of Poland? If the answer to the above question is in the affirmative, do the provisions of the [the Charter], including Article 47 thereof, apply to the above proceedings before Bar Association [Disciplinary] Courts in cases where there is no right of appeal against the rulings of those courts to national courts or where such rulings are subject only to an extraordinary appeal, such as an appeal on a point of law to the Sąd Najwyższy (Supreme Court), also in cases where all the essential elements are present within a single Member State? (2) In a case where, in the proceedings referred to in Question 1, under the national legislation in force the body competent to hear an appeal on a point of law against a ruling or decision of a Bar Association Disciplinary Court or an objection to an order refusing such an appeal on a point of law is a body that, in the view of that court, which is consistent with the view expressed by the Sąd Najwyższy (Supreme Court) in its judgment of 5 December 2019 …, is not an independent and impartial tribunal for the purposes of Article 47 of the Charter, is it necessary to disregard the national provisions establishing the jurisdiction of that body and is it the duty of the Bar Association Disciplinary Court to refer such an appeal on a point of law or objection to a judicial body which would have jurisdiction if those national provisions had not precluded it? (3) In a case where – in the proceedings referred to in Question 1 – no appeal on a point of law can be lodged against a ruling or decision of a Bar Association Disciplinary Court, according to the position of that court, either by the Prosecutor General or the Ombudsman, and that position is: (a) contrary to the position expressed in the resolution of 27 November 2019, … adopted by a seven–judge panel of the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court), that is, the body which, under the national legislation in force, is competent to hear an objection to an order refusing an appeal on a point of law, but which, in the view of the Bar Association Disciplinary Court, which is consistent with the view expressed by the Sąd Najwyższy (Supreme Court) in its judgment of 5 December 2019, … is not an independent and impartial tribunal for the purposes of Article 47 of the Charter; (b) in accordance with the position previously expressed by the Criminal Chamber of the Sąd Najwyższy (Supreme Court), that is to say, the judicial body which would have jurisdiction to examine that appeal if the abovementioned provisions did not preclude it, may (or should) the Bar Association Disciplinary Court disregard the position expressed by the Disciplinary Chamber of the Sąd Najwyżsy (Supreme Court)? (4) If in the case referred to in Question 3, an appeal by the Minister for Justice has been lodged with a Bar Association Disciplinary Court, and: (a) one of the factors which in the view of the Sąd Najwyższy (Supreme Court) as expressed in its judgment of 5 December 2019, … as well as in the view of the Bar Association Disciplinary Court, justify the assumption that the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court), that is, the body referred to in Question 3(a), is not an independent and impartial tribunal for the purposes of Article 47 of the Charter, is the influence of the executive, including the Minister for Justice, on its composition; (b) the function of Prosecutor General, who – according to the position expressed by the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court), that is, the body referred to in Question 3(a), would be entitled to lodge an appeal on a point of law against the decision made on appeal, and according to the position of the Criminal Chamber of the Sąd Najwyższy (Supreme Court), that is, the judicial body referred to in Question 3(b), and also according to the position of the Bar Association Disciplinary Court, is not entitled to lodge such an appeal, is by operation of law actually performed by the Minister for Justice, should the Bar Association Disciplinary Court ignore that appeal if it is the only way in which it can ensure that the proceedings are compatible with Article 47 of the Charter and, in particular, prevent interference in those proceedings by a body which is not an independent and impartial tribunal for the purposes of that provision?’ |
Decision | Article 10(6) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as not having the effect of rendering Article 47 of the Charter of Fundamental Rights of the European Union applicable to appeal proceedings brought by a State authority before a Bar Association Disciplinary Court and seeking annulment of a decision by which a Disciplinary Agent closed an investigation into a lawyer after finding that there was no disciplinary offence attributable to that lawyer and, should that decision be annulled, to the referral back of the file to that disciplinary agent. |
Case number | C–927/19 |
Case name | Klaipėdos regiono atliekų tvarkymo centras |
Document | Judgment ECLI:EU:C:2021:700 |
Date | 07/09/2021 |
Source of the question referred for a preliminary ruling | Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania) |
Name of the parties | UAB ‘Klaipėdos regiono atliekų tvarkymo centras’ v UAB ‘Ecoservice Klaipėda’ and Others |
Subject matter | Freedom to provide services; public procurement; award of public contracts for the collection and transport of municipal waste |
Key words | UAB – Public procurement – Conduct of procurement procedures – Selection of participants – Selection criteria – Methods of proof – Economic and financial standing of economic operators – Whether the leader of a temporary association of undertakings may rely on income received in relation to a previous public contract in the same area as the public contract at issue including where it did not itself exercise the activity which is the subject matter of the public contract at issue – Technical and professional ability of economic operators – Exhaustive nature of means of proof permitted by the directive – Award of public service contracts – Non–compulsory grounds for exclusion from participation in a procurement procedure – Inclusion on a list of economic operators excluded from procurement procedures – Joint liability of members of a temporary association of undertakings – Personal nature of the penalty – Protection of the confidentiality of information submitted to the contracting authority by an economic operator – Confidentiality – Protection of trade secrets – Applicability to procurement procedures – Right to an effective remedy |
Question referred for a preliminary ruling | (1) Does a tender condition under which suppliers are required to demonstrate a certain level of average annual operating income derived from carrying out activities relating only to specific services (mixed municipal waste management) fall within the scope of Article 58(3) or (4) of Directive 2014/24? (2) Does the method of assessment of the supplier’s capacity, which is set out by the Court of Justice in its judgment of 4 May 2017, Esaprojekt (C‑387/14, EU:C:2017:338), depend on the answer to the first question? (3) Does a tender condition under which suppliers are required to demonstrate that the vehicles necessary for the provision of [refuse management] services comply with the specific technical requirements, including polluting emissions (Euro 5 standard), installation of a GPS transmitter, appropriate capacity and so forth, fall within the scope of Article 58(4) of Directive 2014/24, Article 42 of that directive in conjunction with the provisions of Annex VII, and/or Article 70 of that directive? (4) Are the [fourth] subparagraph of Article 1(1) of Directive 89/665, which lays down the principle of the effectiveness of review procedures, Article 1(3) and (5) thereof, Article 21 of Directive 2014/24 and the provisions of Directive [2016/943], in particular recital 18 and the third subparagraph of Article 9(2) thereof (together or separately, but without limitation thereto), to be interpreted as meaning that, where a binding pre–litigation dispute settlement procedure is laid down in the national legal rules governing public procurement: (a) the contracting authority has to provide to the supplier who initiated the review procedure all information regarding another supplier’s tender (regardless of its confidential nature), if the subject matter of that procedure is specifically the lawfulness of the evaluation of that tender and the supplier who initiated the procedure had explicitly requested the contracting authority, prior thereto, to disclose that information; (b) irrespective of the answer to the previous question, the contracting authority, when rejecting a complaint submitted by a supplier regarding the lawfulness of the evaluation of a competitor’s tender, must in any event give a clear, comprehensive and specific reply, regardless of the risk of disclosing confidential tender information entrusted to it? (5) Are the [fourth] subparagraph of Article 1(1), Article 1(3) and (5) and Article 2(1)(b) of Directive 89/665, Article 21 of Directive 2014/24 and Directive 2016/943, in particular recital 18 thereof (together or separately, but without limitation thereto), to be interpreted as meaning that the contracting authority’s decision not to grant a supplier access to the confidential details of another participant’s tender is a decision which may be challenged separately before the courts? (6) If the answer to the previous question is in the affirmative, is Article 1(5) of Directive 89/665 to be interpreted as meaning that the supplier must file a complaint with the contracting authority in respect of such a decision by it and, if need be, bring an action before the courts? (7) If the answer to the previous question is in the affirmative, are the [fourth] subparagraph of Article 1(1) and Article 2(1)(b) of Directive 89/665 to be interpreted as meaning that the supplier may, depending on the extent of the information available on the content of the other supplier’s tender, bring an action before the courts concerning exclusively the refusal to provide information to it, without separately calling the lawfulness of other decisions of the contracting authority into question? (8) Irrespective of the answers to the previous questions, is the third subparagraph of Article 9(2) of Directive 2016/943 to be interpreted as meaning that, where the court is requested to order the other party to the dispute to produce evidence and make it available to the applicant, it must grant such a request regardless of the actions on the part of the contracting authority during the procurement or review procedures? (9) Is the third subparagraph of Article 9(2) of Directive 2016/943 to be interpreted as meaning that, if the court rejects the request to disclose confidential information of the other party to the dispute, the court should of its own motion assess the relevance of the requested information and its effects on the lawfulness of the public procurement procedure? (10) May the ground for exclusion of suppliers which is laid down in Article 57(4)(h) of Directive 2014/24, regard being had to the judgment of the Court of Justice of 3 October 2019, Delta Antrepriză de Construcții și Montaj 93 (C‑267/18, EU:C:2019:826), be applied in such a way that the court, when examining a dispute between a supplier and the contracting authority, may decide of its own motion, irrespective of the assessment of the contracting authority, that the tenderer concerned, acting intentionally or negligently, submitted misleading, factually inaccurate information to the contracting authority and therefore should be excluded from public procurement procedures? (11) Is Article 57(4)(h) of Directive 2014/24, read in conjunction with the principle of proportionality set out in Article 18(1) of that directive, to be interpreted and applied in such a way that, where national law provides for additional penalties (besides exclusion from procurement procedures) in respect of the submission of false information, those penalties may be applied only on the basis of personal responsibility, in particular where factually inaccurate information is submitted only by some of the joint participants in the public procurement procedure (for example, one of several partners)?’ |
Decision | 1. Article 58 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC must be interpreted as meaning that the obligation on economic operators to demonstrate that they have a certain average annual turnover in the area covered by the public contract at issue constitutes a selection criterion relating to the economic and financial standing of those operators, within the meaning of paragraph 3 of that provision. 2. Article 58(3) in conjunction with Article 60(3) of Directive 2014/24 must be interpreted as meaning that, where the contracting authority has required that economic operators have achieved a certain minimum turnover in the area covered by the public contract in question, an economic operator may, in order to prove its economic and financial standing, rely on income received by a temporary group of undertakings to which it belonged only if it actually contributed, in the context of a specific public contract, to the performance of an activity of that group analogous to the activity which is the subject matter of the public contract for which that operator seeks to prove its economic and financial standing. 3. Article 58(4), Article 42 and Article 70 of Directive 2014/24 must be interpreted as meaning that they can apply simultaneously to a technical requirement set out in a call for tenders. 4. The fourth subparagraph of Article 1(1), Article 1(3) and (5) and Article 2(1)(b) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, must be interpreted as meaning that a decision of a contracting authority refusing to disclose to an economic operator the information deemed confidential in the application file or in the tender of another economic operator is a measure amenable to review and that, where the Member State in which the public procurement procedure in question takes place has provided that any person wishing to challenge decisions taken by the contracting authority is required to seek administrative review before bringing an action before the courts, that Member State may also provide that judicial proceedings against that decision refusing access have to be preceded by such a prior administrative review procedure. 5. The fourth subparagraph of Article 1(1) and Article 1(3) and (5) of Directive 89/665, as amended by Directive 2014/23, and Article 21 of Directive 2014/24, read in the light of the general principle of EU law relating to good administration, must be interpreted as meaning that a contracting authority, when requested by an economic operator to disclose information deemed confidential contained in the tender of a competitor to which the contract has been awarded, is not required to communicate that information where its disclosure would infringe the rules of EU law relating to the protection of confidential information, even if that request is made in the context of an action brought by that operator challenging the lawfulness of the contracting authority’s assessment of the competitor’s tender. Where it refuses to disclose such information or where, while refusing such disclosure, it dismisses the application for administrative review lodged by an economic operator concerning the lawfulness of the assessment of the tender of the competitor concerned, the contracting authority is required to balance the applicant’s right to good administration with its competitor’s right to protection of its confidential information in order that the refusal or dismissal decision is supported by a statement of reasons and the unsuccessful tenderer’s right to an effective remedy is not rendered ineffective. 6. The fourth subparagraph of Article 1(1) and Article 1(3) and (5) of Directive 89/665, as amended by Directive 2014/23, and Article 21 of Directive 2014/24, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the competent national court, hearing an action brought against a decision of a contracting authority refusing to disclose to an economic operator information deemed confidential in the documents submitted by the competitor to which the contract has been awarded or an action brought against the decision of a contracting authority dismissing an application for administrative review lodged against such a decision, is required to weigh the applicant’s right to an effective remedy against its competitor’s right to protection of its confidential information and trade secrets. To that end, that court, which must necessarily have at its disposal the information required, including confidential information and trade secrets, in order to be able to determine, with full knowledge of the facts, whether that information can be disclosed, must examine all the relevant matters of fact and of law. It must also be able to annul the refusal decision or the decision dismissing the application for administrative review if they are unlawful and, where appropriate, refer the case back to the contracting authority, or itself adopt a new decision if it is permitted to do so under national law. 7. Article 57(4) of Directive 2014/24 must be interpreted as meaning that a national court, hearing a dispute between an economic operator excluded from the award of a contract and a contracting authority, may depart from the latter’s assessment of the lawfulness of the conduct of the economic operator to which the contract was awarded and, accordingly, draw all the necessary inferences in its decision. However, in accordance with the principle of equivalence, such a court may raise of its own motion the issue of an error of assessment made by the contracting authority only if permitted to do so under national law. 8. Article 63(1) of Directive 2014/24, read in conjunction with Article 57(4) and (6) of that directive, must be interpreted as precluding national legislation under which, where an economic operator which is a member of a group of economic operators has been guilty of serious misrepresentation in supplying the information required for the verification, as regards that group, of the absence of grounds for exclusion or the fulfilment of the selection criteria, without the other members of that group having been aware of that misrepresentation, all of the members of that group may be excluded from participation in any public procurement procedure. |
Case number | C–924/19 PPU |
Case name | Országos Idegenrendészeti Főigazgatóság Dél–alföldi Regionális Igazgatóság |
Document | Judgment ECLI:EU:C:2020:367 |
Date | 14/05/2020 |
Source of the question referred for a preliminary ruling | Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged, Hungary) |
Name of the parties | FMS and Others v Országos Idegenrendészeti Főigazgatóság Dél–alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság |
Subject matter | Area of freedom, security and justice; asylum policy; border control; rejection of asylum applications |
Key words | FMS – Orszagos – Asylum and immigration policy – Application for international protection – Grounds of inadmissibility – Subsequent applications – Border procedures – Whether lawful – Effective remedies – Whether lawful – Right to an effective remedy – Charter of Fundamental Rights of the European Union – Principle of primacy of EU law |
Question referred for a preliminary ruling | ‘(1) [New ground of inadmissibility] Must the provisions on inadmissible applications in Article 33 of [Directive 2013/32] be interpreted as precluding a Member State’s legislation under which an application made in the context of the asylum procedure is inadmissible when the applicant reached Hungary via a country where he or she was not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed? (2) [Conduct of an asylum procedure] (a) Must Article 6 and Article 38(4) of [Directive 2013/32], and recital 34 thereof, which imposes an obligation to examine applications for international protection, read in the light of Article 18 of the Charter, be interpreted as meaning that the competent asylum authority of a Member State must ensure that the applicant has the opportunity to initiate the asylum procedure if it has not examined the substance of the application for asylum by relying on the ground of inadmissibility mentioned in [Question 1] and has subsequently ordered the return of the applicant to a third country which has however refused to readmit him or her [to its territory]? (b) If the answer to Question 2(a) is in the affirmative, what is the exact extent of that obligation? Does it imply an obligation guaranteeing the possibility to submit a new application for asylum, thereby excluding the negative consequences of subsequent applications referred to in Article 33(2)(d) and Article 40 of [Directive 2013/32], or does it imply the automatic start or conduct of the asylum procedure? (c) If the answer to Question 2(a) is in the affirmative, taking account also of Article 38(4) of [Directive 2013/32], can the Member State – the factual situation remaining unchanged – re–examine the inadmissibility of the application in the context of that new procedure (thereby giving it the possibility of applying any type of procedure provided for in Chapter III, for example reliance once again on a ground of inadmissibility) or must it examine the substance of the application for asylum in the light of the country of origin? (d) Does it follow from Article 33(1) and (2)(b) and (c) and Articles 35 and 38 of [Directive 2013/32], read in the light of Article 18 of the Charter, that readmission by a third country is one of the cumulative conditions for the application of a ground of inadmissibility, that is to say, for the adoption of a decision based on such a ground, or is it sufficient to verify that that condition is satisfied at the time of the enforcement of such a decision? (3) [Transit zone as a place of detention in the context of an asylum procedure] [Question 3 is relevant] if, in accordance with the answer to Question 2, an asylum procedure must be conducted. (a) Must Article 43 of [Directive 2013/32] be interpreted as precluding legislation of a Member State under which the applicant may be detained in a transit zone for more than four weeks? b) Must Article 2(h) of [Directive 2013/33], applicable pursuant to Article 26 of [Directive 2013/32], read in the light of Article 6 and Article 52(3) of the Charter, be interpreted as meaning that accommodation in a transit zone in circumstances such as those in the main proceedings (a zone which an applicant cannot lawfully leave on a voluntary basis regardless of his destination) for a period exceeding the four–week period referred to in Article 43 of [Directive 2013/32] constitutes detention? (c) Is the fact that the detention of the applicant for a period exceeding the four–week period referred to in Article 43 of [Directive 2013/32] takes place only because he cannot meet his needs (accommodation and food) due to a lack of material resources to cover those needs compatible with Article 8 of [Directive 2013/33], applicable pursuant to Article 26 of [Directive 2013/32]? (d) Is the fact that (i) accommodation which constitutes de facto detention for a period exceeding the four–week period referred to in Article 43 of [Directive 2013/32] has not been ordered by a detention order, (ii) no guarantee that the lawfulness of the detention and its continuation may be challenged before the courts has been provided, (iii) the de facto detention takes place without any examination of the necessity or proportionality of that measure, or whether there are any alternative measures and (iv) the exact duration of the de facto detention is not fixed, including the date on which it ends, compatible with Articles 8 and 9 of [Directive 2013/33], applicable pursuant to Article 26 of [Directive 2013/32]? (e) Can Article 47 of the Charter be interpreted as meaning that, when a manifestly unlawful detention is brought for consideration before a court of a Member State, that court may, as an interim measure, until the administrative proceedings come to an end, require the authority to designate for the benefit of the third–country national a place of stay outside the transit zone which is not a place of detention? (4) [Transit zone as place of detention in the context of an asylum procedure] [Question 4 is relevant] if, in accordance with the answer to Question 2, there is a need to conduct not an asylum procedure but a procedure within the field of competence of the Aliens Police: (a) Must recitals 17 and 24 and Article 16 of [Directive 2008/115], read in the light of Article 6 and Article 52(3) of the Charter, be interpreted as meaning that accommodation in a transit zone in circumstances such as those in the main proceedings (a zone which an applicant cannot lawfully leave on a voluntary basis regardless of his destination) constitutes deprivation of liberty for the purposes of those provisions? (b) Is the fact that the detention of an applicant, national of a third country, takes place solely because he is subject to a return order and cannot meet his needs (accommodation and food) due to a lack of material resources to cover those needs compatible with recital 16 and Article 15(1) of [Directive 2008/115], read in the light of Articles 6 and 52(3) of the Charter? (c) Is the fact that (i) accommodation which constitutes de facto detention has not been ordered by a detention order, (ii) no guarantee that the lawfulness of the detention and its continuation may be challenged before the courts has been provided and (iii) the de facto detention takes place without any examination of the necessity or proportionality of that measure, or whether there are any alternative measures, compatible with recital 16 and Article 15(2) of [Directive 2008/115], read in the light of Articles 6, 47 and Article 52(3) of the Charter? (d) Can Article 15(1) and (4) to (6) and recital 16 of [Directive 2008/115], read in the light of Articles 1, 4, 6 and 47 of the Charter, be interpreted as precluding detention from taking place without its exact duration being fixed, including the date on which it ends? (e) Can EU law be interpreted as meaning that, when a manifestly unlawful detention is brought for consideration before a court of a Member State, that court may, as an interim measure, until the administrative proceedings come to an end, require the authority to designate for the benefit of the third–country national a place of stay outside the transit zone which is not a place of detention? (5) [Effective judicial protection with regard to the decision amending the country of return] Must Article 13 of [Directive 2008/115], under which a third–country national is to be afforded an effective remedy to appeal against or seek review of ‘decisions related to return’, read in the light of Article 47 of the Charter, be interpreted as meaning that, where the remedy provided for under domestic law is not effective, a court must review the application lodged against the decision amending the country of origin at least once?’ |
Decision | 1. Article 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislation of a Member State under which the amendment by an administrative authority of the country of destination stated in an earlier return decision can be contested by the third–country national concerned only by means of an action brought before an administrative authority, without a subsequent judicial review of the decision of that authority being guaranteed. In such a situation, the principle of primacy of EU law and the right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights, must be interpreted as requiring the national court dealing with an action contesting the legality, under EU law, of the return decision consisting in such an amendment of the country of destination to declare that it has jurisdiction to hear that action. 2. Article 33 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as precluding national legislation which allows an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on the territory of the Member State concerned via a State in which that person was not exposed to persecution or a risk of serious harm, within the meaning of the national provision transposing Article 15 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third–country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, or in which a sufficient degree of protection is guaranteed. 3. Directive 2013/32, read in conjunction with Article 18 of the Charter of Fundamental Rights of the European Union and the principle of sincere cooperation arising under Article 4(3) TEU must be interpreted as meaning that, when an application for asylum has been the subject of a rejection decision that was confirmed by a judicial decision that became final before the incompatibility of that rejection with EU law was found, the determining authority, within the meaning of Article 2(f) of Directive 2013/32, is not required to re–examine that application ex officio. Article 33(2)(d) of Directive 2013/32 must be interpreted as meaning that the existence of a judgment of the Court finding that national legislation which allows an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on the territory of the Member State concerned via a State in which he or she was not exposed to persecution or to a risk of serious harm or in which a sufficient degree of protection is guaranteed is incompatible with EU law constitutes a new element relating to the examination of an application for international protection, within the meaning of that provision. Furthermore, that provision is not applicable to a subsequent application, within the meaning of Article 2(q) of that directive, where the determining authority finds that the definitive rejection of the earlier application is contrary to EU law. Such a finding must necessarily be made by that authority when that incompatibility arises from a judgment of the Court or was established, as an ancillary finding, by a national court. 4. Directive 2008/115 and Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection must be interpreted as meaning that the obligation imposed on a third–country national to remain permanently in a transit zone the perimeter of which is restricted and closed, within which that national’s movements are limited and monitored, and which he or she cannot legally leave voluntarily, in any direction whatsoever, appears to be a deprivation of liberty, characterised by ‘detention’ within the meaning of those directives. 5. Article 43 of Directive 2013/32 must be interpreted as not authorising the detention of an applicant for international protection in a transit zone for a period of more than four weeks. 6. Articles 8 and 9 of Directive 2013/33 must be interpreted as precluding, first, an applicant for international protection being detained on the sole ground that he or she is unable to provide for his or her needs; second, such detention taking place without a reasoned decision ordering the detention having first been adopted and without the necessity and proportionality of such a measure having been examined; and, third, there being no judicial review of the lawfulness of the administrative decision ordering the detention of that applicant. Conversely, Article 9 of that directive must be interpreted as not requiring Member States to set a maximum period for continuing detention provided that their national law guarantees that the detention lasts only so long as the ground on which it was ordered continues to apply and that the administrative procedures linked with that ground are carried out diligently. 7. Article 15 of Directive 2008/115 must be interpreted as precluding, first, a third–country national being detained for the sole reason that he or she is the subject of a return decision and is unable to provide for his or her needs; second, such detention taking place without a reasoned decision ordering detention having first been adopted and without the necessity and proportionality of such a measure having been examined; third, there being no judicial review of the lawfulness of the administrative decision ordering detention; and, fourth, such detention being capable of exceeding 18 months and being maintained when the removal arrangements are no longer in progress or are no longer being executed with due diligence. 8. The principle of primacy of EU law and the right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court, in the absence of a national provision providing for judicial review of the lawfulness of an administrative decision ordering the detention of applicants for international protection or of third–country nationals whose applications for asylum have been rejected, to declare that it has jurisdiction to rule on the lawfulness of such detention and permit that court to release the persons concerned immediately if it considers that such detention constitutes detention contrary to EU law. Article 26 of Directive 2013/33 must be interpreted as requiring that an applicant for international protection whose detention, which is held to be unlawful, has come to an end may rely, before the court with jurisdiction under national law, on his or her right to receive either a financial allowance enabling that applicant to house himself or herself, or housing in kind, as that court has, under EU law, the possibility to grant interim relief pending its final decision. The principle of primacy of EU law and the right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court, in the absence of a national provision providing for judicial review of the right to housing, within the meaning of Article 17 of Directive 2013/33, to declare that it has jurisdiction to hear and determine the action seeking to guarantee such a right. |
Case number | C–896/19 |
Case name | Repubblika |
Document | Judgment ECLI:EU:C:2021:311 |
Date | 20/04/2021 |
Source of the question referred for a preliminary ruling | Prim’Awla tal–Qorti Ċivili – Ġurisdizzjoni Kostituzzjonali (First Hall of the Civil Court, sitting as a Constitutional Court, Malta) |
Name of the parties | Repubblika v Il–Prim Ministru |
Subject matter | Procedure for the appointment of judges; compatibility of provisions of the Maltese Constitution |
Key words | Repubblika – PEU – Values of the European Union – Rule of law – Accession to the European Union – No reduction in the level of protection of the values of the European Union – Effective judicial protection – Fundamental Rights of the European Union – Independence of the members of the judiciary of a Member State – Appointments procedure – Power of the Prime Minister – Involvement of a judicial appointments committee |
Question referred for a preliminary ruling | ‘(1) Should the second [subparagraph] of Article 19(1) TEU and Article 47 of the [Charter], read separately or together, be considered to be applicable with respect to the legal validity of Articles 96, 96A and 100 of the Constitution of Malta? (2) If the first question elicits an affirmative answer, should the power of the Prime Minister in the process of the appointment of members of the judiciary in Malta be considered to be in conformity with Article 19(1) TEU and with Article 47 of the [Charter], considered as well in the light of Article 96A of the Constitution, which entered into effect in 2016? (3) If the power of the Prime Minister is found to be incompatible, should this fact be taken into consideration with regard to future appointments or should it affect previous appointments as well?’ |
Decision | 1. The second subparagraph of Article 19(1) TEU must be interpreted as meaning that it may be applied in a case in which a national court is seised of an action provided for by national law and seeking a ruling on the conformity with EU law of national provisions governing the procedure for the appointment of members of the judiciary of the Member State to which that court belongs. Article 47 of the Charter of Fundamental Rights of the European Union must be duly taken into consideration for the purposes of interpreting that provision. 2. The second subparagraph of Article 19(1) TEU must be interpreted as not precluding national provisions which confer on the Prime Minister of the Member State concerned a decisive power in the process for appointing members of the judiciary, while providing for the involvement, in that process, of an independent body responsible for, inter alia, assessing candidates for judicial office and giving an opinion to that Prime Minister. |
Case number | C–873/19 |
Case name | Deutsche Umwelthilfe (Réception des véhicules à moteur) |
Document | Judgment ECLI:EU:C:2022:857 |
Date | 08/11/2022 |
Source of the question referred for a preliminary ruling | Schleswig–Holsteinisches Verwaltungsgericht (Administrative Court, Schleswig–Holstein, Germany) |
Name of the parties | Deutsche Umwelthilfe (Réception des véhicules à moteur) |
Subject matter | Environment, sustainable development and climate; diesel emissions |
Key words | Environment – Access to justice – Charter of Fundamental Rights of the European Union – Right to effective judicial protection – Environmental association – Standing of such an association to bring an action before a national court against EC type–approval granted to certain vehicles – Motor vehicles – Diesel engine – Pollutant emissions – Valve for exhaust gas recirculation (EGR valve) – Reduction of nitrogen oxide (NOx) emissions limited by a ‘temperature window’ – Defeat device – Authorisation of such a device where the need is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle – State of the art |
Question referred for a preliminary ruling | ‘(1) Is Article 9(3) of the [Aarhus Convention], in conjunction with Article 47 of the [Charter], to be interpreted as meaning that it must in principle be possible for environmental associations to challenge before the courts a decision approving the manufacture of diesel passenger cars with defeat devices that are potentially in breach of Article 5(2) of Regulation [No 715/2007]? (2) If Question 1 is answered in the affirmative: (a) Is Article 5(2) of Regulation [No 715/2007] to be interpreted as meaning that the yardstick for determining whether the need for a defeat device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle is, in principle, the state of the art, in the sense of what is technically feasible at the time when the EC type approval is granted? (b) In addition to the state of the art, should account be taken of other circumstances which may lead to the permissibility of a defeat device, even though, according to the current state of the art alone, the ‘need’ for such a device would not be ‘justified’ within the meaning of Article 5(2)(a) of [Regulation No 715/2007]?’ |
Decision | 1. Article 9(3) of the Convention on access to information, public participation in decision–making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a situation where an environmental association, authorised to bring legal proceedings in accordance with national law, is unable to challenge before a national court an administrative decision granting or amending EC type–approval which may be contrary to Article 5(2) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information. 2. Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device can be justified under that provision only where it is established that that device strictly meets the need to avoid immediate risks of damage or accident to the engine, caused by a malfunction of a component of the exhaust gas recirculation system, of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. Furthermore, the ‘need’ for a defeat device, within the meaning of that provision, exists only where, at the time of the EC type–approval of that device or of the vehicle equipped with it, no other technical solution makes it possible to avoid immediate risks of damage or accident to the engine, which give rise to a specific hazard when driving the vehicle. |
Case number | C–845/19 |
Case name | Okrazhna prokuratura – Varna |
Document | Judgment ECLI:EU:C:2021:864 |
Date | 21/10/2021 |
Source of the question referred for a preliminary ruling | Apelativen sad – Varna (Court of Appeal, Varna, Bulgaria) |
Name of the parties | Okrazhna prokuratura – Varna v DR |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; confiscation of property |
Key words | Okrazhna – Freezing and confiscation of instrumentalities and proceeds of crime in the European Union – Confiscation of illegally obtained assets – Economic benefit derived from a criminal offence which has not been the subject of a conviction – Confiscation – Extended confiscation – Confiscation from a third party – Conditions – Confiscation of money allegedly belonging to a third party – Third party having no right to appear as a party in the confiscation proceedings – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Are [Directive 2014/42/EU] and [the Charter] applicable with respect to a criminal offence consisting of possession of narcotics for the purpose of distribution thereof, committed by a Bulgarian citizen in the territory of the Republic of Bulgaria, and where the potential economic proceeds are also realised and located in [Bulgaria]? (2) Should the answer to the first question be in the affirmative, how should the concept of ‘economic advantage derived … indirectly from a criminal offence’ in Article 2(1) of [Directive 2014/42] be understood, and can a sum of money, found in and confiscated from the home of the convicted person and his family and from a car driven by him, constitute such an advantage? (3) Is Article 2 of [Directive 2014/42] to be interpreted as precluding a legal provision such as that of Article 53(2) of [the NK], which does not provide for the confiscation of an ‘economic advantage derived … indirectly from a criminal offence’? (4) Is Article 47 of [the Charter] to be interpreted as precluding a national legal provision such as that of Article 306(1)(1) of [the NPK], which allows for the confiscation for the benefit of the State of a sum of money in respect of which it is claimed that it belongs to a person other than the person who committed the criminal offence, without that third party being able to take part in those proceedings in his or her own right and having direct access to the courts?’ |
Decision | 1. Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union must be interpreted as meaning that the possession of narcotics for the purposes of their distribution comes within its scope, even though all the elements inherent in the commission of that offence are confined within a single Member State. 2. Directive 2014/42 must be interpreted as meaning that it not only provides for the confiscation of property constituting an economic benefit derived from the criminal offence in respect of which the perpetrator has been convicted, but also provides for the confiscation of property belonging to that perpetrator in respect of which the national court hearing the case is satisfied that it derives from other criminal conduct, in compliance with the safeguards provided for in Article 8(8) of that directive and on condition that the offence in respect of which its perpetrator has been convicted is among those listed in Article 5(2) of that directive and that that offence is liable to give rise, directly or indirectly, to economic benefit within the meaning of the same directive. 3. Article 8(1), (7) and (9) of Directive 2014/42, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which allows for the confiscation, in favour of the State, of property which is claimed to belong to a person other than the perpetrator of the criminal offence, without that person having the right to appear as a party in the confiscation proceedings. |
Case number | C–653/19 PPU |
Case name | Spetsializirana prokuratura |
Document | Judgment ECLI:EU:C:2019:1024 |
Date | 28/11/2019 |
Source of the question referred for a preliminary ruling | Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) |
Name of the parties | Criminal proceedings against DK |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; detention |
Key words | DK – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – Strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings – Burden of proof – Continuation of the detention on remand pending trial of an accused person |
Question referred for a preliminary ruling | ‘Is a national law that, during the trial stage of criminal proceedings, requires a change in circumstances as a condition for granting the defence’s application for the release of the accused person from detention, consistent with Article 6 and recital 22 of Directive 2016/343 and with Articles 6 and 47 of the [Charter]?’ |
Decision | Article 6 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, and Articles 6 and 47 of the Charter of Fundamental Rights of the European Union do not apply to a national law that makes the release of a person held in detention on remand pending trial conditional on that person establishing the existence of new circumstances justifying that release. |
Case number | C–649/19 |
Case name | Spetsializirana prokuratura (Déclaration des droits) |
Document | Judgment ECLI:EU:C:2021:75 |
Date | 28/01/2021 |
Source of the question referred for a preliminary ruling | Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) |
Name of the parties | Spetsializirana prokuratura v IR |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; illicit trade in cigarettes |
Key words | IR – Judicial cooperation in criminal matters – Right to information in criminal proceedings – Letter of Rights on arrest – Right to be informed of the accusation – Right of access to the materials of the case – Person arrested on the basis of a European arrest warrant in the executing Member State |
Question referred for a preliminary ruling | ‘(1) Do the rights of an accused person under Article 4 (in particular the right under Article 4(3)), Article 6(2) and Article 7(1) of Directive 2012/13 apply to an accused person who has been arrested on the basis of a European arrest warrant? (2) If the first question is answered in the affirmative: Is Article 8 of Framework Decision 2002/584 to be interpreted as meaning that it allows the content of a European arrest warrant to be amended with regard to the form specified in the annex, in particular the insertion of new text into that form, in relation to the rights of the requested person against the judicial authorities of the issuing Member State to challenge the validity of the national arrest warrant and of the European arrest warrant? (3) If the second question is answered in the negative: Is it compatible with recital 12 and Article 1(3) of Framework Decision 2002/584, [Article 4, Article 6(2) and Article 7(1)] of [Directive 2012/13], and Articles 6 and 47 of the Charter if a European arrest warrant is issued in strict compliance with the form set out in the annex (that is to say without informing the requested person about his rights against the issuing judicial authority) and the issuing judicial authority informs him about the rights to which he is entitled and sends him the relevant documents immediately after that authority becomes aware of the arrest? (4) If there are no other legal means for safeguarding the rights of a person arrested on the basis of a European arrest warrant under Article 4 [(in particular the right under Article 4(3))], Article 6(2) and Article 7(1) of [Directive 2012/13], is Framework Decision 2002/584 valid?’ |
Decision | 1. Article 4 (in particular Article 4(3)), Article 6(2) and Article 7(1) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings must be interpreted as meaning that the rights referred to therein do not apply to persons who are arrested for the purposes of the execution of a European arrest warrant. 2. The examination of the third and fourth questions referred for a preliminary ruling has revealed nothing that is capable of affecting the validity of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union. |
Case number | C–645/19 |
Case name | Facebook Ireland and Others |
Document | Judgment ECLI:EU:C:2021:483 |
Date | 15/06/2021 |
Source of the question referred for a preliminary ruling | Hof van beroep te Brussel (Court of Appeal, Brussels, Belgium) |
Name of the parties | Facebook Ireland Limited and Others v Gegevensbeschermingsautoriteit |
Subject matter | Personal data protection; cross–border data processing |
Key words | Facebook – Protection of natural persons with regard to the processing of personal data – Charter of Fundamental Rights of the European Union – Cross–border processing of personal data – ‘One–stop shop’ mechanism – Sincere and effective cooperation between supervisory authorities – Competences and powers – Power to initiate or engage in legal proceedings |
Question referred for a preliminary ruling | ‘(1) Should Article 55(1), Articles 56 to 58 and Articles 60 to 66 of [Regulation 2016/679], read together with Articles 7, 8 and 47 of the [Charter], be interpreted as meaning that a supervisory authority which, pursuant to national law adopted in implementation of Article 58(5) of that regulation, has the competence to initiate or engage in legal proceedings before a court in its Member State against infringements of that regulation cannot exercise that competence in connection with cross–border data processing if it is not the lead supervisory authority for that cross–border data processing? (2) Does the answer to the first question referred differ if the controller of that cross–border data processing does not have its main establishment in that Member State but does have another establishment there? (3) Does the answer to the first question referred differ if the national supervisory authority initiates the legal proceedings against the main establishment of the controller in respect of the cross‑border data processing rather than against the establishment in its own Member State? (4) Does the answer to the first question referred differ if the national supervisory authority had already initiated the legal proceedings before the date on which [Regulation 2016/679] entered into force (25 May 2018)? (5) If the first question referred is answered in the affirmative, does Article 58(5) of [Regulation 2016/679] have direct effect, meaning that a national supervisory authority can rely on that provision to initiate or continue legal proceedings against private parties even if Article 58(5) of [Regulation 2016/679] has not been specifically transposed into the legislation of the Member States, notwithstanding the requirement to do so? (6) If questions (1) to (5) are answered in the affirmative, could the outcome of such proceedings prevent the lead supervisory authority from making a contrary finding when the lead supervisory authority investigates the same or similar cross–border processing activities in accordance with the mechanism laid down in Articles 56 and 60 of [Regulation 2016/679]?’ |
Decision | 1. Article 55(1), Articles 56 to 58 and Articles 60 to 66 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), read together with Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a supervisory authority of a Member State which, under the national legislation adopted in order to transpose Article 58(5) of that regulation, has the power to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where necessary, to initiate or engage in legal proceedings, may exercise that power in relation to an instance of cross‑border data processing even though it is not the ‘lead supervisory authority’, within the meaning of Article 56(1) of that regulation, with respect to that data processing, provided that that power is exercised in one of the situations where Regulation 2016/679 confers on that supervisory authority a competence to adopt a decision finding that such processing is in breach of the rules contained in that regulation and that the cooperation and consistency procedures laid down by that regulation are respected. 2. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, in the event of cross–border data processing, it is not a prerequisite for the exercise of the power of a supervisory authority of a Member State, other than the lead supervisory authority, to initiate or engage in legal proceedings, within the meaning of that provision, that the controller or processor with respect to the cross–border processing of personal data against whom such proceedings are brought has a main establishment or another establishment on the territory of that Member State. 3. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that the power of a supervisory authority of a Member State, other than the lead supervisory authority, to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where appropriate, to initiate or engage in legal proceedings, within the meaning of that provision, may be exercised both with respect to the main establishment of the controller which is located in that authority’s own Member State and with respect to another establishment of that controller, provided that the object of the legal proceedings is a processing of data carried out in the context of the activities of that establishment and that that authority is competent to exercise that power, in accordance with the terms of the answer to the first question referred. 4. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, where a supervisory authority of a Member State which is not the ‘lead supervisory authority’, within the meaning of Article 56(1) of that regulation, has brought a legal action, the object of which is an instance of cross–border processing of personal data, before 25 May 2018, that is, before the date when that regulation became applicable, that action may, from the perspective of EU law, be continued on the basis of the provisions of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which remains applicable in relation to infringements of the rules laid down in that directive committed up to the date when that directive was repealed. That action may, in addition, be brought by that authority with respect to infringements committed after that date, on the basis of Article 58(5) of Regulation 2016/679, provided that that action is brought in one of the situations where, exceptionally, that regulation confers on a supervisory authority of a Member State which is not the ‘lead supervisory authority’ a competence to adopt a decision finding that the processing of data in question is in breach of the rules contained in that regulation with respect to the protection of the rights of natural persons as regards the processing of personal data, and that the cooperation and consistency procedures laid down by that regulation are respected, which it is for the referring court to determine. 5. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that that provision has direct effect, with the result that a national supervisory authority may rely on that provision in order to bring or continue a legal action against private parties, even where that provision has not been specifically implemented in the legislation of the Member State concerned. |
Case number | C–579/19 |
Case name | Food Standards Agency |
Document | Judgment ECLI:EU:C:2021:665 |
Date | 02/09/2021 |
Source of the question referred for a preliminary ruling | Supreme Court of the United Kingdom |
Name of the parties | Association of Independent Meat Suppliers, Cleveland Meat Company Ltd, v Food Standards Agency |
Subject matter | Agriculture and fisheries; public health; hygiene rules |
Key words | Protection of health – Hygiene rules applicable to food of animal origin – Post–mortem inspection of the carcass and offal – Official veterinarian – Health marking – Refusal – Meat declared unfit for human consumption – Right of appeal against a decision of the official veterinarian – Effective judicial protection –Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Do Regulations (EC) Nos 854/2004 and 882/2004 preclude a procedure whereby pursuant to section 9 of the 1990 Act a justice of the peace decides on the merits of the case and on the basis of the evidence of experts called by each side whether a carcass fails to comply with food safety requirements? (2) Does Regulation (EC) No 882/2004 mandate a right of appeal in relation to a decision of an [official veterinarian] under article 5.2 of Regulation (EC) No 854/2004 that the meat of a carcass was unfit for human consumption and, if it does, what approach should be applied in reviewing the merits of the decision taken by the [official veterinarian] on an appeal in such a case?’ |
Decision | 1. Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption, as amended by Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004, and Regulation No 882/2004 must be interpreted as precluding national legislation under which, where an official veterinarian refuses to affix a health mark to a carcass and the owner of that carcass does not concur with that decision, the official veterinarian must bring the matter before a court so that the latter may give a decision on the merits and on the basis of the evidence of experts called by each side whether a carcass fails to comply with food safety requirements, without being able formally to annul decisions of the official veterinarian or order the lifting of the effects of such decisions. 2. Article 54 of Regulation No 882/2004, read in conjunction with recital 43 thereof and in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation according to which the decision made by the official veterinarian, in accordance with Article 5(2) of Regulation No 854/2004, as amended by Regulation No 882/2004, not to affix a health mark to a carcass may be subject to limited judicial review only, in the context of which the court seised may annul that decision on any ground rendering it unlawful, including where that veterinarian has acted for a purpose other than that for which his or her powers have been conferred on him or her, fails to apply the correct legal test or reaches a decision that is irrational or has no sufficient evidential basis. |
Case number | C–504/19 |
Case name | Banco de Portugal and Others |
Document | Judgment ECLI:EU:C:2021:335 |
Date | 29/04/2021 |
Source of the question referred for a preliminary ruling | Tribunal Supremo (Supreme Court, Spain) |
Name of the parties | Banco de Portugal and Others v VR |
Subject matter | Free movement of persons and services; supervision of banks; contracts for the sale of preference shares |
Key words | Banco de Portugal – VR – Banking supervision – Reorganisation and winding up of credit institutions – Reorganisation measure adopted by an administrative authority in the home Member State of a credit institution – Transfer of rights, assets or liabilities to a ‘bridge institution’ – Transfer back to the credit institution subject to the reorganisation measure – Lex concursus – Effect of a reorganisation measure in other Member States – Mutual recognition – Effects of a reorganisation measure on a pending lawsuit – Exception to the application of the lex concursus – Charter of Fundamental Rights of the European Union – Effective judicial protection – Principle of legal certainty |
Question referred for a preliminary ruling | ‘Is an interpretation of Article 3(2) of Directive [2001/24] under which, in legal proceedings pending in other Member States, the courts must, without any further formalities, recognise the effects of a decision by the competent administrative authority of the home Member State that is intended retrospectively to change the legal framework that existed at the time the proceedings were commenced and that renders ineffective any judgments that do not accord with the provisions of the new decision, compatible with the fundamental right to an effective remedy in Article 47 of the [Charter], the principle of the rule of law in Article 2 [TEU] and the general principle of legal certainty?’ |
Decision | Article 3(2) and Article 32 of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding–up of credit institutions, read in the light of the principle of legal certainty and of the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding recognition, without further conditions, in legal proceedings on the merits pending in a Member State other than the home Member State relating to a liability which a credit institution had been relieved of by a first reorganisation measure taken in the latter Member State, the effects of a second reorganisation measure seeking to transfer back, with retroactive effect at a date prior to the opening of such proceedings, that liability to that credit institution, where such recognition has the result that the credit institution to which the liabilities had been transferred by the first measure can no longer be sued, with retroactive effect, the purposes of those proceedings, thereby calling into question judicial decisions already adopted in favour of the applicant who is the subject of those same proceedings. |
Case number | C–488/19 |
Case name | JR (Mandat d’arrêt – Condamnation dans un État tiers, membre de l’EEE) |
Document | Judgment ECLI:EU:C:2021:206 |
Date | 17/03/2021 |
Source of the question referred for a preliminary ruling | High Court (Ireland) |
Name of the parties | JR |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | JR European arrest warrant – Framework Decision 2002/584/JHA – Concept of ‘enforceable judgment’ – Offence giving rise to a conviction by a court of a third State – Kingdom of Norway – Judgment recognised and enforced by the issuing State by virtue of a bilateral agreement – Grounds for optional non–execution of the European arrest warrant – Extra–territorial offence |
Question referred for a preliminary ruling | ‘(1) Does Framework Decision [2002/584] apply to the situation where the requested person was convicted and sentenced in a third State but, by virtue of a bilateral treaty between that third State and the issuing State, the judgment in the third State was recognised in the issuing State and enforced according to the laws of the issuing State? (2) If so, in circumstances where the executing Member State has applied in its national legislation the optional grounds for non–execution of the European arrest warrant set out in Article 4(1) and Article 4(7)(b) of Framework Decision [2002/584], how is the executing judicial authority to make its determination as regards an offence stated to be committed in the third State, but where the surrounding circumstances of that offence display preparatory acts that took place in the issuing State?’ |
Decision | 1. Article 1(1) and Article 8(1)(c) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that a European arrest warrant may be issued on the basis of a judicial decision of the issuing Member State ordering the execution, in that Member State, of a sentence imposed by a court of a third State where, pursuant to a bilateral agreement between those States, the judgment in question has been recognised by a decision of a court of the issuing Member State. However, the issuing of the European arrest warrant is subject to the condition, first, that a custodial sentence of at least four months has been imposed on the requested person and, second, that the procedure leading to the adoption in the third State of the judgment recognised subsequently in the issuing Member State has complied with fundamental rights and, in particular, the obligations arising under Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. 2. Article 4(7)(b) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that, in the case of a European arrest warrant issued on the basis of a judicial decision of the issuing Member State allowing execution in that Member State of a sentence imposed by a court of a third State, where the offence concerned was committed in the territory of the latter State, the question whether that offence was committed ‘outside the territory of the issuing Member State’ must be resolved by taking into consideration the criminal jurisdiction of that third State – in this instance, the Kingdom of Norway – which allowed prosecution of that offence, and not that of the issuing Member State. |
Case number | C–481/19 |
Case name | Consob |
Document | Judgment ECLI:EU:C:2021:84 |
Date | 02/02/2021 |
Source of the question referred for a preliminary ruling | Corte costituzionale (Constitutional Court, Italy) |
Name of the parties | DB v Commissione Nazionale per le Società e la Borsa (Consob) |
Subject matter | Financial services; insider dealing and market abuse |
Key words | Consob – DB – Approximation of laws – Market abuse – Administrative sanctions of a criminal nature – Failure to cooperate with the competent authorities – Charter of Fundamental Rights of the European Union – Right to remain silent and to avoid self–incrimination |
Question referred for a preliminary ruling | ‘(1) Are Article 14(3) of Directive 2003/6, in so far as it continues to apply ratione temporis, and Article 30(1)(b) of Regulation No 596/2014 to be interpreted as permitting Member States to refrain from penalising individuals who refuse to answer questions put to them by the competent authorities and which might establish their liability for an offence that is punishable by administrative sanctions of a ‘punitive’ nature? (2) If the answer to the first question is in the negative, are Article 14(3) of Directive 2003/6, in so far as it continues to apply ratione temporis, and Article 30(1)(b) of Regulation No 596/2014 compatible with Articles 47 and 48 of the [Charter] – including in the light of the case–law of the European Court of Human Rights on Article 6 of the ECHR and the constitutional traditions common to the Member States – in so far as they require sanctions to be applied even to individuals who refuse to answer questions put to them by the competent authorities and which might establish their liability for an offence that is punishable by administrative sanctions of a ‘punitive’ nature?’ |
Decision | Article 14(3) of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) and Article 30(1)(b) of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6 and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, must be interpreted as allowing Member States not to penalise natural persons who, in an investigation carried out in respect of them by the competent authority under that directive or that regulation, refuse to provide that authority with answers that are capable of establishing their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability. |
Case number | C–437/19 |
Case name | État luxembourgeois (Informations sur un groupe de contribuables) |
Document | Judgment ECLI:EU:C:2021:953 |
Date | 25/11/2021 |
Source of the question referred for a preliminary ruling | Cour administrative (Higher Administrative Court, Luxembourg) |
Name of the parties | État du Grand–duché de Luxembourg v L |
Subject matter | Administrative cooperation: tax assessment |
Key words | Etat Administrative cooperation in the field of taxation – Request for information – Decision ordering that information be provided – Refusal to comply with the order – Penalty – ‘Foreseeable relevance’ of the requested information – Absence of identification of the taxpayers concerned individually and by name – Concept of ‘identity of the person under examination or investigation’ – Statement of reasons of the request for information – Scope – Charter of Fundamental Rights of the European Union – Right to an effective remedy against the decision ordering that information be provided – Limitation – Respect for the essence of the right |
Question referred for a preliminary ruling | ‘(1) Must Article 20(2)(a) of Directive 2011/16 be interpreted as meaning that where a request for exchange of information formulated by an authority of a requesting Member State designates the taxpayers to which it relates simply by reference to their status as shareholders and beneficial owners of a company, without those taxpayers having been identified by the requesting authority in advance, individually and by name, the request satisfies the identification requirements laid down by that provision? (2) If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of that directive be interpreted as meaning that the standard of foreseeable relevance may be met, if the requesting Member State, in order to establish that it is not engaged in a fishing expedition, despite the fact that it has not individually identified the taxpayers concerned, provides a clear and sufficient explanation evidencing that it is conducting a targeted investigation into a limited group of persons, and not simply an investigation by way of general fiscal surveillance, and that its investigation is justified by reasonable suspicions of non–compliance with a specific legal obligation? (3) Must Article 47 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that, where – a person who has had imposed upon him [or her] by the competent authority of a Member State an administrative financial penalty for non–compliance with an administrative decision, requiring him [or her] to provide information in connection with an exchange of information between national tax authorities pursuant to Directive 2011/16, where the national law of the requested Member State does not make provision for an action to be brought against the latter decision, and where the person concerned has challenged the legality of that decision within an action brought against the financial penalty, and – has only obtained disclosure of the minimal information referred to in Article 20(2) of Directive 2011/16 in the course of the judicial procedure set in motion by the bringing of that action, that person is entitled, in the event of a definitive incidental finding upholding the validity of the decision requiring the requested information and of the decision imposing a fine on him [or her], to a period of grace for the payment of that fine, so that he [or she] has an opportunity, having thus been given disclosure of the material supporting the contention – definitively accepted by the competent court – that the test of foreseeable relevance is met, to comply with the decision requiring the requested information?’ |
Decision | 1. Article 1(1), Article 5 and Article 20(2) of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC must be interpreted as meaning that a request for information must be regarded as relating to information which does not appear to be manifestly devoid of any foreseeable relevance, where the persons under examination or investigation within the meaning of that latter provision are not identified individually and by name by that request but the requesting authority provides a clear and sufficient explanation that it is conducting a targeted investigation into a limited group of persons, justified by reasonable suspicions of non–compliance with a specific legal obligation. 2. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a person holding information who: – has had an administrative financial penalty imposed on him or her for failure to comply with an information order in the context of an exchange between national tax authorities pursuant to Directive 2011/16, where that order is itself not open to challenge under the domestic law of the requested Member State, and – has contested the legality of that order indirectly in an action against the decision imposing a penalty for failure to comply with that order, having thus obtained disclosure of the minimum information referred to in Article 20(2) of that directive in the course of the judicial proceedings relating to that action, must, following the definitive recognition of the legality of that order and that decision issued against him or her, be given the opportunity to comply with the information order within the time limit initially prescribed for that purpose by national law, without that entailing the continued application of the penalty which that person had to incur in order to exercise his or her right to an effective remedy. It is only if that person does not comply with that order within that time limit that the penalty imposed would legitimately become payable. |
Case number | C–402/19 |
Case name | CPAS de Seraing |
Document | Judgment ECLI:EU:C:2020:759 |
Date | 30/09/2020 |
Source of the question referred for a preliminary ruling | Cour du Travail de Liège (Higher Labour Court, Liège, Belgium) |
Name of the parties | LM v Centre public d'action sociale de Seraing |
Subject matter | Area of freedom, security and justice; asylum policy, border control; social assistance withdrawn |
Key words | LM – CPAS – Area of freedom, security and justice – Return of illegally staying third–country nationals – Parent of an adult child suffering from a serious illness – Return decision – Judicial remedy – Automatic suspensory effect – Safeguards pending return – Basic needs – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘Does point 1 of the first subparagraph of Article 57(2) of the Organic Law of 8 July 1976 on public social welfare centres infringe Articles 5 and 13 of Directive 2008/115/EC, read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, and Article 14(1)(b) of that directive and Articles 7 and 12 of the Charter of Fundamental Rights of the European Union as interpreted by … the judgment [of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453)]: – first, in so far as it results in depriving a third–country national, staying illegally on the territory of a Member State, of provision, in so far as possible, for his basic needs pending resolution of the action for suspension and annulment that he has brought in his own name as the representative of his child, who was at that time a minor, against a decision ordering them to leave the territory of a Member State; – where, second, on the one hand, that child who has now come of age suffers from a serious illness and the enforcement of that decision may expose that child to a serious risk of grave and irreversible deterioration in her state of health and, on the other, the presence of that parent alongside his daughter who has now come of age is considered to be imperative by the medical professional given that she is particularly vulnerable as a result of her state of health (recurrent sickle cell crises and the need for surgery in order to prevent paralysis)?’ |
Decision | Articles 5, 13 and 14 of Directive 2008/115 of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in the light of Article 7, Article 19(2) and Articles 21 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which does not provide, as far as possible, for the basic needs of a third–country national to be met where: – that national has appealed against a return decision made in respect of him or her; – the adult child of that third–country national is suffering from a serious illness; – the presence of that third–country national with that adult child is essential; – an appeal was brought on behalf of that adult child against a return decision taken against him or her, the enforcement of which may expose that adult child to a serious risk of grave and irreversible deterioration in his or her state of health, and – that third–country national does not have the means to meet his or her needs himself or herself. |
Case number | C–393/19 |
Case name | Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv |
Document | Judgment ECLI:EU:C:2021:8 |
Date | 14/01/2021 |
Source of the question referred for a preliminary ruling | Apelativen sad – Plovdiv (Court of Appeal, Plovdiv, Bulgaria) |
Name of the parties | Criminal proceedings against OM |
Subject matter | Free movement of goods and capital; judicial cooperation in criminal cases; confiscation of assets |
Key words | OM – Right to property – Charter of Fundamental Rights – Right to an effective remedy – Confiscation of crime–related proceeds, instrumentalities and property – Freezing and confiscation of instrumentalities and proceeds of crime in the European Union – National legislation providing for the confiscation, for the benefit of the State, of property used to commit the offence of smuggling – Property belonging to a third party acting in good faith |
Question referred for a preliminary ruling | ‘(1) Is Article 17(1) of the [Charter] to be interpreted as meaning that a national provision such as that pursuant to Article 242(8) of the [NK], according to which a means of transport used to commit aggravated smuggling which belongs to a third person who neither knew nor could or should have known that its employee was committing the offence must be confiscated for the benefit of the State, is unlawful on the grounds that it undermines the fair balance between the public interest and the need to protect the right to property? (2) Is Article 47 of the [Charter] to be interpreted as meaning that a national provision such as that pursuant to Article 242(8) of the [NK], according to which a means of transport owned by a person who is not the person who committed the offence can be confiscated without the owner being guaranteed direct access to the courts to state its case, is unlawful?’ |
Decision | 1. Article 2(1) of Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime–Related Proceeds, Instrumentalities and Property, read in the light of Article 17(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a national law which permits the confiscation of an instrumentality used to commit an aggravated smuggling offence where that property belongs to a third party acting in good faith. 2. Article 4 of Framework Decision 2005/212/JHA, read in the light of Article 47 of the Charter of Fundamental Rights, must be interpreted as precluding a national law which permits the confiscation, in the context of criminal proceedings, of property belonging to a person other than the person who committed the criminal offence, without the former being afforded an effective remedy. |
Case number | C–357/19 |
Case name | Euro Box Promotion and Others |
Document | Judgment ECLI:EU:C:2021:1034 |
Date | 21/12/2021 |
Source of the question referred for a preliminary ruling | Inalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) in Cases (C–357/19), (C–547/19), (C–811/19), (C–840/19) and Tribunalul Bihor Regional Court, Bihor, Romania) (C–379/19), |
Name of the parties | Criminal proceedings against PM and Others |
Subject matter | Institutional provisions; budget; own resources; corruption |
Key words | PM – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Legal nature and effects – Binding on Romania – Rule of law – Judicial independence – Charter of Fundamental Rights of the European Union – Fight against corruption – Protection of the European Union’s financial interests – Criminal proceedings – Decisions of the Curtea Constituțională (Constitutional Court, Romania) concerning the legality of the taking of certain evidence and the composition of judicial panels in cases of serious corruption – Duty on national courts to give full effect to the decisions of the Curtea Constituțională (Constitutional Court) – Disciplinary liability of judges in case of non–compliance with such decisions – Power to disapply decisions of the Curtea Constituțională (Constitutional Court) that conflict with EU law – Principle of primacy of EU law |
Question referred for a preliminary ruling | In Joined Cases: C–357/19 (2) Must [the second paragraph of Article 47] of the [Charter] be interpreted as precluding a finding by a body outside the judicial system – binding under national law – of the lack of independence and impartiality of a Chamber which includes a judge responsible for judicial administration who has not been randomly appointed, but on the basis of a transparent rule known to the parties and unchallenged by them, applicable to all the cases dealt with by that same chamber? (3) Must the primacy of EU law be interpreted as allowing the national court to disapply a decision of the constitutional court, handed down in a case concerning a constitutional dispute, binding under national law?’ Case 379/19 ‘(1) Are the [CVM], established by [Decision 2006/928], and the requirements laid down in reports prepared in accordance with that mechanism binding on Romania? (2) Is Article 2 [TEU], in conjunction with Article 4(3) [TEU], to be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in reports prepared in accordance with the [CVM], established by [Decision 2006/928], forms part of the Member State’s obligation to comply with the principles of the rule of law, including in so far as concerns a constitutional court (a politico–judicial institution) refraining from intervening in order to interpret the law and to establish the specific and mandatory rules for the application of the law by judicial bodies, a task which falls within the exclusive jurisdiction of the judicial authorities, and in order to introduce new legislative measures, a task which falls within the exclusive competence of the legislative authorities? Does EU law require that the effects of any such decision, adopted by a constitutional court, should be disregarded? Does EU law preclude a provision of national law which governs the liability to disciplinary action of the judge who disapplied the decision of the Curtea Constituțională (Constitutional Court), in the context of the question referred? (3) Does the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of the [Charter], as interpreted by the [Court] (… judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117), preclude the competences of courts being replaced by decisions of the Curtea Constituțională (Constitutional Court) ([Decisions No 51/2016, No 302/2017 and No 26/2019]), the result of which is that criminal proceedings are unforeseeable (retroactive application) and that it is impossible to interpret the law and apply it in the case under consideration? Does EU law preclude a provision of national law which governs the liability to disciplinary action of the judge who disapplied the decision of the Curtea Constituțională (Constitutional Court), in the context of the question referred?’ Case C–547/19 (2) Must Article 2 [TEU] and [the second paragraph of Article 47] of the [Charter] be interpreted as precluding a body outside the judicial system from declaring unlawful the composition of the panel seised of the case of a chamber of the supreme court (panel composed of judges in office who, at the time of their promotion, satisfied, inter alia, the specialisation requirement laid down for promotion to the criminal chamber of the supreme court)? (3) Must the principle of the primacy of European Union law be interpreted as permitting a national court to disapply a decision of the constitutional court which interprets a rule of lower ranking than the Constitution, concerning the organisation of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), contained in domestic legislation on the prevention, detection and punishment of offences of corruption, a rule which has been consistently interpreted in the same way, for 16 years, by a court? (4) On a proper interpretation of Article 47 of the [Charter][,] [d]oes the principle of unfettered access to justice encompass the specialisation of judges and the establishment of specialist panels in a supreme court?’ |
Decision | 1. Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption is, as long as it has not been repealed, binding in its entirety on Romania. The benchmarks in the annex to that decision are intended to ensure that Romania complies with the value of the rule of law, set out in Article 2 TEU, and are binding on it, to the effect that Romania is required to take the appropriate measures to meet those benchmarks, taking due account, under the principle of sincere cooperation laid down in Article 4(3) TEU, of the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports. 2. [As rectified by order of 15 March 2022] Article 325(1) TFEU, read in conjunction with Article 2 of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Brussels on 26 July 1995, and Decision 2006/928 are to be interpreted as precluding national rules or a national practice under which judgments in matters of corruption and value added tax (VAT) fraud, which were not delivered, at first instance, by panels specialised in such matters or, on appeal, by panels all the members of which were selected by drawing lots, are rendered absolutely null and void, such that the cases of corruption and VAT fraud concerned must, as the case may be further to an extraordinary appeal against final judgments, be re–examined at first and/or second instance, where the application of those national rules or that national practice is capable of giving rise to a systemic risk of acts constituting serious fraud affecting the European Union’s financial interests or corruption in general going unpunished. The obligation to ensure that such offences are subject to criminal penalties that are effective and act as a deterrent does not exempt the referring court from verifying the necessary observance of the fundamental rights guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union, but does not allow that court to apply a national standard of protection of fundamental rights entailing such a systemic risk of impunity. 3. Article 2 TEU, the second subparagraph of Article 19(1) TEU and Decision 2006/928 are to be interpreted as not precluding national rules or a national practice under which the decisions of the national constitutional court are binding on the ordinary courts, provided that the national law guarantees the independence of that constitutional court in relation, in particular, to the legislature and the executive, as required by those provisions. However, those provisions of the EU Treaty and that decision are to be interpreted as precluding national rules under which any failure to comply with the decisions of the national constitutional court by national judges of the ordinary courts can trigger their disciplinary liability. 4. The principle of primacy of EU law is to be interpreted as precluding national rules or a national practice under which national ordinary courts are bound by decisions of the national constitutional court and cannot, by virtue of that fact and without committing a disciplinary offence, disapply, on their own authority, the case–law established in those decisions, even though they are of the view, in the light of a judgment of the Court of Justice, that that case–law is contrary to the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU or Decision 2006/928. |
Case number | C–245/19 |
Case name | État luxembourgeois (Droit de recours contre une demande d’information en matière fiscale) |
Document | Judgment ECLI:EU:C:2020:795 |
Date | 06/10/2020 |
Source of the question referred for a preliminary ruling | Cour administrative (Higher Administrative Court, Luxembourg) |
Name of the parties | État luxembourgeois v B and Others |
Subject matter | Administrative cooperation in the field of taxation; assessment; exchange of information |
Key words | Etat – Administrative cooperation in the field of taxation – Decision ordering that information be provided to the competent authority of a Member State, acting in response to a request for exchange of information from the competent authority of another Member State – Person holding the information the production of which is ordered by the competent authority of the first Member State – Taxpayer concerned by the investigation giving rise to the request from the competent authority of the second Member State – Third parties with whom that taxpayer maintains legal, banking, financial or, more broadly, economic relations – Judicial protection – Charter of Fundamental Rights of the European Union – Right to an effective remedy –Limitation – Legal basis – Respect for the essence of the right to an effective remedy – Existence of a remedy enabling the individuals in question to obtain an effective review of all the relevant issues of fact and of law, as well as effective judicial protection of the rights guaranteed to them by EU law – Objective of general interest recognised by the Union – Combating international tax fraud and tax evasion – Proportionality – Whether the information referred to in the information order is ‘foreseeably relevant’ – Judicial review – Personal, temporal and material factors to be taken into consideration |
Question referred for a preliminary ruling | Joined Cases: C–245/19 (2) If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of Directive 2011/16 be interpreted, if necessary taking account of the evolving nature of the interpretation of Article 26 of [the Organisation for Economic Cooperation and Development (OECD) Model Tax Convention on Income and on Capital], as meaning that a request for exchange of information, and a consequent information order from the competent authority of the requested Member State, satisfy the condition that there is not a manifest lack of foreseeable relevance where the requesting Member State states the identity of the taxpayer concerned, the period covered by the investigation in the requesting Member State and the identity of the holder of the information in question, [although] seeking information concerning contracts and the associated invoices and payments which are unspecified, but which are defined by criteria concerning, first, the fact that the contracts were concluded by the identified holder of the information, secondly, their applicability to the tax years covered by the investigation by the authorities in the requesting State and, thirdly, their [connection] with the identified taxpayer concerned?’ (2) If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of Directive 2011/16 be interpreted, if necessary taking account of the evolving nature of the interpretation of Article 26 of the OECD Model Tax Convention [on Income and on Capital], as meaning that a request for exchange of information, and a consequent information order from the competent authority of the requested Member State, satisfy the condition that there is not a manifest lack of foreseeable relevance where the requesting Member State states the identity of the taxpayer concerned, the period covered by the investigation in the requesting Member State and the identity of the holder of the information in question, [although] seeking information concerning bank accounts and financial assets which are unspecified, but which are defined by criteria concerning, first, the fact that they are owned by an identified holder of information, secondly, their applicability to the tax years covered by the investigation by the authorities in the requesting State and, thirdly, their [connection] with the identified taxpayer concerned?’ |
Decision | 1. Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Articles 7 and 8 and Article 52(1) thereof, must be interpreted as: – precluding legislation of a Member State implementing the procedure for the exchange of information on request established by Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as amended by Council Directive 2014/107/EU of 9 December 2014, which prevents a person holding information from bringing an action against a decision by which the competent authority of that Member State orders that person to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, and as – not precluding such legislation from preventing the taxpayer concerned, in that other Member State, by the investigation giving rise to that request for exchange of information and the third parties concerned by the information in question from bringing actions against that decision. 2. Article 1(1) and Article 5 of Directive 2011/16, as amended by Directive 2014/107, must be interpreted as meaning that a decision by which the competent authority of a Member State orders a person holding information to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, is to be considered, taken together with that request, as concerning information which is not manifestly devoid of any foreseeable relevance where it states the identity of the person holding the information in question, that of the taxpayer concerned by the investigation giving rise to the request for exchange of information, and the period covered by that investigation, and where it relates to contracts, invoices and payments which, although not specifically identified, are defined by criteria relating, first, to the fact that they were concluded or carried out by the person holding the information, secondly, to the fact that they took place during the period covered by that investigation and, thirdly, to their connection with the taxpayer concerned. |
Case number | C–233/19 |
Case name | CPAS de Liège |
Document | Judgment ECLI:EU:C:2020:757 |
Date | 30/09/2020 |
Source of the question referred for a preliminary ruling | Cour du Travail de Liège (Higher Labour Court, Liège, Belgium) |
Name of the parties | B. v Centre public d'action sociale de Líège |
Subject matter | Area of freedom, security and justice; asylum policy; withdrawal of social assistance |
Key words | B – CPAS – Area of freedom, security and justice – Return of illegally staying third–country nationals – Third–country national suffering from a serious illness – Return decision – Judicial remedy – Automatic suspensory effect – Conditions – Grant of social assistance – Charter of Fundamental Rights of the European Union) |
Question referred for a preliminary ruling | ‘Must Articles 5 and 13 of Directive 2008/115 … read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, and Article 14(1)(b) of that directive, read in the light of the judgment [of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453)], be interpreted as endowing with suspensive effect an appeal brought against a decision ordering a third–country national suffering from a serious illness to leave the territory of a Member State, in the case where the appellant claims that the enforcement of that decision is liable to expose him or her to a serious risk of grave and irreversible deterioration in his or her state of health: – without it being necessary to examine the appeal, its mere introduction being sufficient to suspend the enforcement of the decision ordering the third–country national to leave the territory of that Member State; or – following a marginal review as to whether there is an arguable complaint, lack of grounds for inadmissibility or whether the action brought before the Council for asylum and immigration proceedings is manifestly unfounded; or – following a full and comprehensive judicial review carried out by the labour courts in order to determine whether the enforcement of that decision is indeed liable to expose the appellant to a serious risk of grave and irreversible deterioration in his or her state of health?’ |
Decision | Articles 5 and 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in the light of Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a national court, hearing a dispute on social assistance, the outcome of which is linked to the possible suspension of the effects of a return decision taken in respect of a third–country national suffering from a serious illness, must hold that an action for annulment and suspension of that decision leads to automatic suspension of that decision, even though suspension of that decision does not result from the application of national legislation, where: – that action contains arguments seeking to establish that the enforcement of that decision would expose that third–country national to a serious risk of grave and irreversible deterioration in his or her state of health, which does not appear to be manifestly unfounded, and that – that legislation does not provide for any other remedy, governed by precise, clear and foreseeable rules, which automatically entail the suspension of such a decision. |
Case number | C–225/19 |
Case name | Minister van Buitenlandse Zaken |
Document | Judgment ECLI:EU:C:2020:951 |
Date | 24/11/2020 |
Source of the question referred for a preliminary ruling | Rechtbank Den Haag, zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem, Netherlands) |
Name of the parties | R.N.N.S. and K.A. v Minister van Buitenlandse Zaken |
Subject matter | Area of freedom, security and justice; asylum policy; border control; visa refusal |
Key words | R.N:N.S.– Area of freedom, security and justice – Decision to refuse a visa – Standard form – Statement of reasons – Threat to public policy, internal security or public health, or to the international relations of any of the Member States –– Procedure of prior consultation of central authorities of other Member States – Objection to the issuing of a visa – Appeal against a decision to refuse a visa – Scope of judicial review – Charter of Fundamental Rights of the European Union – Right to an effective remedy |
Question referred for a preliminary ruling | ‘(1) In the case of an appeal as referred to in Article 32(3) of the Visa Code against a final decision refusing a visa on the ground referred to in Article 32(1)(a)(vi) of the Visa Code, can it be said that there is an effective remedy within the meaning of Article 47 of the [Charter] under the following circumstances: – where, in its reasons for the decision, the Member State merely stated: ‘you are regarded by one or more Member States as a threat to public policy, internal security, public health as defined in Article 2(19) or 2(21) of the Schengen Borders Code, or to the international relations of one or more Member States’; – where, in the decision or in the appeal, the Member State does not state which specific ground or grounds of those four grounds set out in Article 32(1)(a)(vi) of the Visa Code is being invoked; – where, in the appeal, the Member State does not provide any further substantive information or substantiation of the ground or grounds on which the objection of the other Member State (or Member States) is based? (2) In the circumstances outlined in [the first question], can there be said to be good administration within the meaning of Article 41 of the Charter, in particular as far as the duty of the public administration to give reasons for its decisions is concerned? (3) (a) Should [the first and second questions] be answered differently if, in the final decision on the visa, the Member State refers to an actual and sufficiently clearly specified possibility of appeal in the other Member State against the specifically named authority responsible in that other Member State (or Member States) that has (or have) raised the objection referred to in Article 32(1)(a)(vi) of the Visa Code, in which that ground for refusal can be examined? (b) Does an affirmative answer to [the first question] in connection with [part (a) of the third question] require that the decision in the appeal in and against the Member State that made the final decision be suspended until the applicant has had the opportunity to make use of the option of appealing in the other Member State (or Member States) and, if the applicant does make use of that option, until the (final) decision on that appeal has been obtained? (4) For the purpose of answering the questions, does it matter whether (the authority in) the Member State (or Member States) that has (or have) objected to the issuing of the visa can be given the opportunity, in the appeal against the final decision on the visa, to act as second defendant and on that basis to be given the opportunity to introduce a substantiation of the ground or grounds on which the objection is based?’ |
Decision | Article 32(2) and (3) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning, first, that a Member State which has adopted a final decision refusing to issue a visa on the basis of Article 32(1)(a)(vi) of Regulation No 810/2009, as amended by Regulation No 610/2013, because another Member State objected to the issuing of that visa is required to indicate, in that decision, the identity of the Member State which raised that objection, the specific ground for refusal based on that objection, accompanied, where appropriate, by the essence of the reasons for that objection, and the authority which the visa applicant may contact in order to ascertain the remedies available in that other Member State and, secondly, that, where an appeal is lodged against that decision on the basis of Article 32(3) of Regulation No 810/2009, as amended by Regulation No 610/2013, the courts of the Member State which adopted that decision cannot examine the substantive legality of the objection raised by another Member State to the issuing of the visa. |
Case number | C–223/19 |
Case name | YS (Occupational pensions of managerial staff) |
Document | Judgment ECLI:EU:C:2020:753 |
Date | 24/09/2020 |
Source of the question referred for a preliminary ruling | Landesgericht Wiener Neustadt (V) |
Name of the parties | YS v NK AG |
Subject matter | Employment and social policy; equal treatment in employment and occupation; deduction of the amount from the occupational pension paid by and the contractually agreed valorisation of the occupational pension for 2018 |
Key words | YS – Equal treatment in employment and occupation – Prohibition of indirect discrimination on grounds of age or sex – Justifications – National legislation providing for an amount to be withheld from pensions paid directly to their recipients by undertakings in which the State has a majority participation and for the cancellation of the indexation of the amount of those pensions – Charter of Fundamental Rights of the European Union – Applicability – Discrimination on grounds of property – Infringement of the freedom of contract – Infringement of the right to property –– Right to an effective remedy |
Question referred for a preliminary ruling | ‘1. Does the scope of [Directive 79/7/EEC] and/or of [Directive 2006/54] include legislation of a Member State if the effect of that legislation is that the former employer is to withhold sums of money from a considerably higher proportion of men entitled to an occupational pension than from women entitled to an occupational pension when those occupational pensions are paid out and those sums may be freely used by the former employer, and are such provisions discriminatory within the meaning of those directives? 2. Does the scope of [Directive 2000/78] include legislation of a Member State that discriminates on the ground of age because the financial burden is borne exclusively by older people who are entitled under private law to the benefits of an occupational pension that was agreed as a ‘direct defined benefit pension’, whereas young and relatively young people who have entered into occupational pension contracts are not financially burdened? 3. Are the provisions of the [Charter], in particular the prohibitions of discrimination laid down in Articles 20 and 21 of the Charter, to be applied to occupational pensions even if the Member State’s legislation does not cover forms of discrimination as prohibited pursuant to [Directives 79/7, 2000/78 and 2006/54]? 4. Are Article 20 et seq. [of the Charter] to be interpreted as precluding legislation of a Member State that implements Union law within the meaning of Article 51 [of the Charter] and that discriminates, on grounds of sex, age, property or on other grounds, such as, for example, on the basis of the former employer’s current ownership, against persons entitled under private law to an occupational pension as compared with other persons entitled to an occupational pension, and does the [Charter] prohibit such forms of discrimination? 5. Are national rules that place only a small group of people who are contractually entitled to an occupational pension in the form of a direct defined benefit pension under an obligation to make financial payments to their former employer also discriminatory on the basis of property within the meaning of Article 21 [of the Charter] if they cover only people with relatively large occupational pensions? 6. Is Article 17 [of the Charter] to be interpreted as precluding legislation of a Member State that provides for expropriatory intervention, directly by law and without compensation, in an agreement relating to an occupational pension in the form of a ‘direct defined benefit pension’ entered into between two private parties to the detriment of a former employee of a company that has made provision for the payment of the occupational pension and is not experiencing financial difficulties? 7. Does a statutory obligation on the part of the former employer of a person entitled to an occupational pension not to pay out parts of the agreed remuneration (of the agreed occupational pension) represent, as an infringement of freedom of contract, an interference with the employer’s right to property? 8. Is Article 47 [of the Charter] to be interpreted as precluding legislation of a Member State that expropriates directly by law and makes no provision for any challenge to the expropriation other than by way of a claim against the beneficiary of the expropriation (the former employer and the debtor under the pension contract) for damages and reimbursement of the expropriated sum of money?’ |
Decision | 1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted as meaning that the scope of those directives includes provisions of the law of a Member State pursuant to which (i) part of the amount of the occupational pension which the employer is contractually bound to pay directly to its former employee must be withheld at source by that employer and (ii) the contractually agreed indexation of the amount of that benefit is ineffective. 2. Article 5(c) and Article 7(1)(a)(iii) of Directive 2006/54 must be interpreted as not precluding legislation of a Member State pursuant to which the recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, even though the percentage of former workers the amount of whose occupational pension has been affected by that legislation is considerably higher among male former workers coming within the scope of that legislation than among female former workers coming within its scope, provided that those consequences are justified by objective factors wholly unrelated to any discrimination based on sex, which it is for the referring court to verify. 3. Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, on the sole ground that that legislation affects only recipients above a certain age. 4. Articles 16, 17, 20 and 21 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension. 5. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a Member State’s failure to provide, in its legal system, for a free–standing legal remedy for, primarily, an examination of whether national provisions implementing that right are compatible with EU law, provided that it is possible for such examination to take place indirectly. |
Case number | C–194/19 |
Case name | Belgian State (Éléments postérieurs à la décision de transfert) |
Document | Judgment ECLI:EU:C:2021:270 |
Date | 15/04/2021 |
Source of the question referred for a preliminary ruling | Conseil d’État (Council of State, Belgium) |
Name of the parties | H. A. v État belge |
Subject matter | Area of freedom, security and justice; asylum policy; border control; refusal of asylum applications |
Key words | H.A. – Determination of the Member State responsible for examining an application for international protection – Remedy – Whether account should be taken of circumstances subsequent to the transfer decision – Effective judicial protection |
Question referred for a preliminary ruling | ‘Must Article 27 of [the Dublin III Regulation], considered alone or in conjunction with Article 47 of the [Charter], be interpreted as requiring a national court, in order to guarantee the right to an effective remedy, to take into consideration, where appropriate, circumstances arising subsequent to a ‘Dublin transfer’ decision?’ |
Decision | Article 27(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national or a stateless person, read in the light of recital 19 thereof, and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation which provides that the court or tribunal seised of an action for annulment of a transfer decision may not, in the context of the examination of that action, take account of circumstances subsequent to the adoption of that decision which are decisive for the correct application of that regulation, unless that legislation provides for a specific remedy entailing an ex nunc examination of the situation of the person concerned, the results of which are binding on the competent authorities, a remedy which may be exercised after such circumstances have arisen and which, in particular, is not made conditional on the deprivation of that person’s liberty or on the fact that implementation of that decision is imminent. |
Case number | C–133/19 |
Case name | Belgian State (Regroupement familial – Enfant mineur) |
Document | Judgment ECLI:EU:C:2020:577 |
Date | 16/07/2020 |
Source of the question referred for a preliminary ruling | Conseil d’État (Council of State, Belgium, In Joined Cases C–133/19, C–136/19 and C–137/19 |
Name of the parties | B. M. M. and Others v État belge |
Subject matter | Area of freedom, security and justice; asylum policy; rights of the child |
Key words | B.M.M. – Area of freedom, security and justice – Immigration policy – Right to family reunification – Concept of a ‘minor child’ –Charter of Fundamental Rights of the European Union – Best interests of the child– Right to an effective remedy – Children of the sponsor who have reached majority during the decision–making procedure or court proceedings against the decision refusing the family reunification application |
Question referred for a preliminary ruling | In cases C–133/19 and C–136/19: 2. Must Article 47 of the [Charter] and Article 18 of [Directive 2003/86] be interpreted as precluding an action for annulment, brought against the refusal of a right to family reunification of a minor child, being held to be inadmissible on the ground that the child has attained his majority during the judicial proceedings, since he would be deprived of the possibility of securing a determination of his action against that decision and there would be a breach of his right to an effective remedy?’ |
Decision | 1. Point (c) of the first subparagraph of Article 4(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that the date which should be referred to for the purpose of determining whether an unmarried third–country national or refugee is a minor child, within the meaning of that provision, is that of the submission of the application for entry and residence for the purpose of family reunification for minor children, and not that of the decision on that application by the competent authorities of that Member State, as the case may be, after an action brought against a decision rejecting such an application. 2. Article 18 of Directive 2003/86, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding an action against the rejection of an application for family reunification of a minor child from being dismissed as inadmissible on the sole ground that the child has reached majority during the court proceedings. |
Case number | C–223/19 |
Case name | YS (Occupational pensions of managerial staff) |
Document | Judgment ECLI:EU:C:2020:753 |
Date | 24/09/2020 |
Source of the question referred for a preliminary ruling | Landesgericht Wiener Neustadt (V) |
Name of the parties | YS v NK AG |
Subject matter | Employment and social policy; equal treatment in employment and occupation; deduction of the amount from the occupational pension paid by and the contractually agreed valorisation of the occupational pension for 2018 |
Key words | YS – Equal treatment in employment and occupation – Prohibition of indirect discrimination on grounds of age or sex – Justifications – National legislation providing for an amount to be withheld from pensions paid directly to their recipients by undertakings in which the State has a majority participation and for the cancellation of the indexation of the amount of those pensions – Charter of Fundamental Rights of the European Union – Applicability – Discrimination on grounds of property – Infringement of the freedom of contract – Infringement of the right to property –– Right to an effective remedy |
Question referred for a preliminary ruling | ‘1. Does the scope of [Directive 79/7/EEC] and/or of [Directive 2006/54] include legislation of a Member State if the effect of that legislation is that the former employer is to withhold sums of money from a considerably higher proportion of men entitled to an occupational pension than from women entitled to an occupational pension when those occupational pensions are paid out and those sums may be freely used by the former employer, and are such provisions discriminatory within the meaning of those directives? 2. Does the scope of [Directive 2000/78] include legislation of a Member State that discriminates on the ground of age because the financial burden is borne exclusively by older people who are entitled under private law to the benefits of an occupational pension that was agreed as a ‘direct defined benefit pension’, whereas young and relatively young people who have entered into occupational pension contracts are not financially burdened? 3. Are the provisions of the [Charter], in particular the prohibitions of discrimination laid down in Articles 20 and 21 of the Charter, to be applied to occupational pensions even if the Member State’s legislation does not cover forms of discrimination as prohibited pursuant to [Directives 79/7, 2000/78 and 2006/54]? 4. Are Article 20 et seq. [of the Charter] to be interpreted as precluding legislation of a Member State that implements Union law within the meaning of Article 51 [of the Charter] and that discriminates, on grounds of sex, age, property or on other grounds, such as, for example, on the basis of the former employer’s current ownership, against persons entitled under private law to an occupational pension as compared with other persons entitled to an occupational pension, and does the [Charter] prohibit such forms of discrimination? 5. Are national rules that place only a small group of people who are contractually entitled to an occupational pension in the form of a direct defined benefit pension under an obligation to make financial payments to their former employer also discriminatory on the basis of property within the meaning of Article 21 [of the Charter] if they cover only people with relatively large occupational pensions? 6. Is Article 17 [of the Charter] to be interpreted as precluding legislation of a Member State that provides for expropriatory intervention, directly by law and without compensation, in an agreement relating to an occupational pension in the form of a ‘direct defined benefit pension’ entered into between two private parties to the detriment of a former employee of a company that has made provision for the payment of the occupational pension and is not experiencing financial difficulties? 7. Does a statutory obligation on the part of the former employer of a person entitled to an occupational pension not to pay out parts of the agreed remuneration (of the agreed occupational pension) represent, as an infringement of freedom of contract, an interference with the employer’s right to property? 8. Is Article 47 [of the Charter] to be interpreted as precluding legislation of a Member State that expropriates directly by law and makes no provision for any challenge to the expropriation other than by way of a claim against the beneficiary of the expropriation (the former employer and the debtor under the pension contract) for damages and reimbursement of the expropriated sum of money?’ |
Decision | 1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted as meaning that the scope of those directives includes provisions of the law of a Member State pursuant to which (i) part of the amount of the occupational pension which the employer is contractually bound to pay directly to its former employee must be withheld at source by that employer and (ii) the contractually agreed indexation of the amount of that benefit is ineffective. 2. Article 5(c) and Article 7(1)(a)(iii) of Directive 2006/54 must be interpreted as not precluding legislation of a Member State pursuant to which the recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, even though the percentage of former workers the amount of whose occupational pension has been affected by that legislation is considerably higher among male former workers coming within the scope of that legislation than among female former workers coming within its scope, provided that those consequences are justified by objective factors wholly unrelated to any discrimination based on sex, which it is for the referring court to verify. 3. Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, on the sole ground that that legislation affects only recipients above a certain age. 4. Articles 16, 17, 20 and 21 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension. 5. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a Member State’s failure to provide, in its legal system, for a free–standing legal remedy for, primarily, an examination of whether national provisions implementing that right are compatible with EU law, provided that it is possible for such examination to take place indirectly. |
Case number | C–83/19 |
Case name | Asociaţia ‘Forumul Judecătorilor din România’ |
Document | Judgment ECLI:EU:C:2021:393 |
Date | 18/05/2021 |
Source of the question referred for a preliminary ruling | Tribunalul Olt (Regional Court, Olt, Romania) (C‑83/19); the Curtea de Apel Piteşti (Court of Appeal, Piteşti, Romania) (C‑127/19); the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) (C‑195/19); the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania) (C‑291/19); the Curtea de Apel Piteşti (Court of Appeal, Piteşti, Romania) (C‑355/19); and the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) (C‑397/19) |
Name of the parties | Asociaţia ‘Forumul Judecătorilor din România’ and Others v Inspecţia Judiciară and Others |
Subject matter | Accession to the European Union; Romania |
Key words | Treaty of Accession of the Republic of Bulgaria and Romania to the European Union – Act concerning the conditions of accession to the European Union of the Republic of Bulgaria and Romania – Appropriate measures – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Legal nature and effects of the cooperation and verification mechanism and of the reports established by the Commission on the basis of that mechanism – Rule of law – Judicial independence – Charter of Fundamental Rights of the European Union – Laws and government emergency ordinances adopted in Romania in the course of 2018 and 2019 concerning the organisation of the judicial system and the liability of judges – Interim appointment to management positions of the Judicial Inspectorate – Establishment of a section within the Public Prosecutor’s Office for the investigation of offences committed within the judicial system – Financial liability of the State and personal liability of judges in the event of judicial error |
Question referred for a preliminary ruling | Case C–83/19 (2) Do the terms, nature and duration of the [CVM], established by [Decision 2006/928], come within the scope of the [Treaty of Accession]? Are the requirements laid down in the reports prepared in the context of that mechanism binding on Romania? (3) Must the second subparagraph of Article 19(1) [TEU] be interpreted as meaning that it obliges the Member States to take the measures necessary to ensure effective legal protection in the fields covered by EU law, that is to say, guarantees of an independent disciplinary procedure for Romanian judges, by eliminating all risks of political influence over the conduct of those procedures, such as direct Government appointment of the management of the [Judicial Inspectorate], even on a provisional basis? (4) Must Article 2 [TEU] be interpreted as meaning that the Member States are obliged to comply with the rule of law criteria, also required in the reports prepared in the context of the [CVM], established by [Decision 2006/928], in the case of procedures whereby the Government directly appoints the management of the [Judicial Inspectorate], even on a provisional basis?’ (2) Do the terms, nature and duration of the [CVM], established by [Decision 2006/928], fall within the scope of the [Treaty of Accession]? Are the requirements laid down in the reports prepared in accordance with that mechanism binding on Romania? (3) Must Article 2, in conjunction with Article 4(3) TEU be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports prepared in accordance with the [CVM], established by [Decision 2006/928], forms part of the Member State’s obligation to comply with the principles of the rule of law? (4) Does Article 2 TEU, and more specifically the obligation to comply with the values of the rule of law, preclude legislation which establishes and organises the [SIIJ], within the [prosecutor’s office attached to the High Court of Cassation and Justice], because of the possibility of indirect pressure being exerted on members of the judiciary? (5) Does the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of [the Charter], as interpreted by the case–law of [the Court] (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117), preclude the establishment of the [SIIJ], within the [prosecutor’s office attached to the High Court of Cassation and Justice], in the light of the rules governing the appointment/removal of prosecutors as members of [the SIIJ], the rules governing the exercise of functions within that section and the way in which competence is established, in connection with the limited number of positions in that section?’ (2) Do Article 67(1) TFEU and both the first sentence of Article 2 and the first sentence of Article 9 TEU preclude national legislation establishing a section of the prosecution office which has exclusive competence to investigate any type of offence committed by judges or prosecutors? (3) Does the principle of the primacy of [EU] law, as enshrined in the judgment of 15 July 1964, Costa (6/64, EU:C:1964:66), and by subsequent settled case–law of the [Court], preclude national legislation which allows a politico–judicial institution, such as the Curtea Constituțională ([Constitutional Court]), to infringe the aforementioned principle by means of decisions which are not open to appeal?’ (2) Are the requirements set out in the reports drawn up under that mechanism binding on Romania, in particular (but not only) as regards the need to make legislative amendments which comply with the conclusions of the [CVM] and with the recommendations made by the Venice Commission and the [GRECO]? (3) Must Article 2, in conjunction with Article 4(3) TEU, be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports prepared in accordance with the [CVM], established by [Decision 2006/928], forms part of the Member State’s obligation to comply with the principles of the rule of law? (4) Does the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of [the Charter], as interpreted by the case–law of the [Court] (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117), preclude the establishment of [the SIIJ], within the prosecutor’s office attached to the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), in the light of the rules governing the appointment and removal of prosecutors as members of [the SIIJ], the rules governing the exercise of functions within that section and the way in which competence is established, in connection with the limited number of positions in [the SIIJ]? (5) Does [the second paragraph of] Article 47 of the [Charter] relating to the right to a fair trial by means of a hearing within a reasonable time, preclude the establishment of the [SIIJ] within the prosecutor’s office attached to the Curte de Casație și Justiție (High Court of Cassation and Justice), in the light of the rules governing the exercise of functions within [the SIIJ] and the way in which competence is established, in connection with the limited number of positions in [the SIIJ]?’ (2) Do the terms, nature and duration of the [CVM] established by [Decision 2006/928] fall within the scope of the [Treaty of Accession]? Are the requirements set out in the reports drawn up in the context of that mechanism binding on the Romanian State? (3) Must Article 2 [TEU] be interpreted as meaning that the Member States are obliged to comply with the criteria of the rule of law, also requested in the reports drawn up in the context of the [CVM] established by [Decision 2006/928], in the event of the creation, as a matter of urgency, of a section of the prosecutor’s office charged with the exclusive investigation of offences committed by members of the judiciary, which gives rise to particular concerns as regards the fight against corruption and may be used as an additional means of intimidating members of the judiciary and putting pressure on them? (4) Must the second subparagraph of Article 19(1) [TEU] be interpreted as meaning that the Member States are obliged to adopt the necessary measures to ensure effective legal protection in the fields covered by EU law through the removal of any risk of political influence on criminal proceedings before certain judges, [in] the event of the creation, as a matter of urgency, of a section of the prosecutor’s office charged with the exclusive investigation of offences committed by members of the judiciary, which gives rise to particular concerns as regards the fight against corruption and may be used as an additional means of intimidating members of the judiciary and putting pressure on them?’ (2) Does the [CVM], established by [Decision 2006/928], constitute an integral part of the [Treaty of Accession], and must it be interpreted and applied in the light of the provisions of that treaty? Are the requirements set out in the reports drawn up in the context of that mechanism binding on Romania and, if so, is a national court which is responsible for applying, within its sphere of jurisdiction, provisions of EU law required to ensure the application of those rules, where necessary refusing, of its own motion, to apply provisions of national legislation that are contrary to the requirements set out in the reports drawn up pursuant to that mechanism? (3) Is Article 2 [TEU], read in conjunction with Article 4(3) [TEU], to be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports drawn up pursuant to the [CVM], established by [Decision 2006/928], forms part of the Member State’s obligation to observe the principles of the rule of law? (4) Does Article 2 [TEU], read in conjunction with Article 4(3) [TEU], and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as Article 96(3)(a) of [Law No 303/2004 as amended], which defines, succinctly and in the abstract, a ‘judicial error’ as the performance of a procedural act in clear breach of provisions of substantive or procedural law, without specifying the nature of the provisions infringed, the scope of those provisions, ratione materiae and ratione temporis, in the proceedings, the methods, time limits and procedures for establishing infringement of legal provisions, or the authority competent to establish infringement of those legal provisions, and thus creates a risk of pressure being indirectly exerted on the judiciary? (5) Does Article 2 [TEU], read in conjunction with Article 4(3) [TEU], and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as Article 96(3)(b) of [Law No 303/2004 as amended], which defines a ‘judicial error’ as the delivery of a final judgment that is manifestly contrary to the law or inconsistent with the factual situation established by the evidence taken in the course of the proceedings, without defining the procedure for establishing inconsistency and without defining in specific terms what is meant by that inconsistency of the judgment vis–à–vis the applicable legal provisions or the factual situation, and thus creates a risk that the interpretation of the law and the evidence by the judiciary (judges and prosecutors) will be hindered? (6) Does Article 2 [TEU], read in conjunction with Article 4(3) [TEU], and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as Article 96(3) of [Law No 303/2004 as amended], pursuant to which the civil liability of a member of the judiciary (a judge or prosecutor) vis–à–vis the State is established solely on the basis of the State’s own assessment, and, where appropriate, the advisory report of the [Judicial Inspectorate], regarding the question of the intention or gross negligence of the judge or prosecutor in the commission of the material error, without that judge or prosecutor having the opportunity fully to exercise his or her rights of defence, and which thus creates the risk of the procedure for establishing the liability of the judge or prosecutor vis–à–vis the State being commenced and completed arbitrarily? (7) Does Article 2 [TEU], and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as the last sentence of Article 539(2) of the [Code of Criminal Procedure], read together with Article 541(2) and (3) thereof, whereby a defendant who has been acquitted on the merits, implicitly and sine die is provided with an extraordinary sui generis means of appeal against a final judgment on the lawfulness of pre–trial detention, an appeal which is to be heard solely by a civil court, in the event that the unlawfulness of the pre–trial detention has not been established by a decision of a criminal court, in breach of the principle that legal provisions must be predictable and accessible, the principle of the specialisation of judges and the principle of legal certainty?’ |
Decision | 1. Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, and the reports drawn up by the Commission on the basis of that decision, constitute acts of an EU institution, which are amenable to interpretation by the Court under Article 267 TFEU. 2. Articles 2, 37 and 38 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded, read in conjunction with Articles 2 and 49 TEU, must be interpreted as meaning that as regards its legal nature, content and temporal effects, Decision 2006/928 falls within the scope of the Treaty between the Member States of the European Union and the Republic of Bulgaria and Romania, concerning the accession of the Republic of Bulgaria and Romania to the European Union. That decision is binding in its entirety on Romania, as long as it has not been repealed. The benchmarks in the Annex to Decision 2006/928 are intended to ensure that Romania complies with the value of the rule of law, set out in Article 2 TEU, and are binding on it, in the sense that Romania is required to take the appropriate measures for the purposes of meeting those benchmarks, taking due account, under the principle of sincere cooperation laid down in Article 4(3) TEU, of the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports. 3. The legislation governing the organisation of justice in Romania, such as that relating to the interim appointment to the management positions of the Judicial Inspectorate and that relating to the establishment of a section of the Public Prosecutor’s Office for the investigation of offences committed within the judicial system, falls within the scope of Decision 2006/928, with the result that it must comply with the requirements arising from EU law and, in particular, from the value of the rule of law, set out in Article 2 TEU. 4. Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation adopted by the government of a Member State, which allows that government to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down by national law, where that legislation is such as to give rise to reasonable doubts that the powers and functions of that body may be used as an instrument to exert pressure on, or political control over, the activity of those judges and prosecutors. 5. Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation providing for the creation of a specialised section of the Public Prosecutor’s Office with exclusive competence to conduct investigations into offences committed by judges and prosecutors, where the creation of such a section – is not justified by objective and verifiable requirements relating to the sound administration of justice, and – is not accompanied by specific guarantees such as, first, to prevent any risk of that section being used as an instrument of political control over the activity of those judges and prosecutors likely to undermine their independence and, secondly, to ensure that that exclusive competence may be exercised in respect of those judges and prosecutors in full compliance with the requirements arising from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. 6. Article 2 and the second subparagraph of Article 19(1) TEU must be interpreted as not precluding national legislation governing the financial liability of the State and the personal liability of judges for the damage caused by a judicial error, which defines the concept of ‘judicial error’ in general and abstract terms. By contrast, those same provisions must be interpreted as precluding such legislation where it provides that a finding of judicial error, made in proceedings to establish the State’s financial liability and without the judge concerned having been heard, is binding in the subsequent proceedings relating to an action for indemnity to establish the personal liability of that judge, and where that legislation does not, in general, provide the necessary guarantees to prevent such an action for indemnity being used as an instrument of pressure on judicial activity and to ensure that the rights of defence of the judge concerned are respected, so as to dispel any reasonable doubt, in the minds of individuals, as to the imperviousness of the judges to external factors liable to have an effect on their decisions and so as preclude a lack of appearance of independence or impartiality on the part of those judges likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals. 7. The principle of the primacy of EU law must be interpreted as precluding legislation of a Member State having constitutional status, as interpreted by the constitutional court of that Member State, according to which a lower court is not permitted to disapply of its own motion a national provision falling within the scope of Decision 2006/928, which it considers, in the light of |
Case number | C–30/19 |
Case name | Braathens Regional Aviation |
Document | Judgment ECLI:EU:C:2021:269 |
Date | 15/04/2021 |
Source of the question referred for a preliminary ruling | Högsta domstolen (Supreme Court, Sweden) |
Name of the parties | Diskrimineringsombudsmannen v Braathens Regional Aviation AB |
Subject matter | Non–discrimination and Union citizenship; the air passenger as a victim of discrimination |
Key words | AB – Equal treatment between persons irrespective of racial or ethnic origin – Protection of rights – Sanctions – Action for compensation based on an allegation of discrimination – Defendant acquiescing to claim for compensation without recognition on its part of the discrimination alleged – Connection between the compensation paid and the discrimination alleged – Charter of Fundamental Rights of the European Union – Right to effective judicial protection – National procedural rules preventing the court seised from ruling on whether there was discrimination as alleged, despite the express request of the claimant |
Question referred for a preliminary ruling | ‘In a case concerning an infringement of a prohibition laid down in [Directive 2000/43] where the person wronged claims compensation for discrimination, must a Member State, if so requested by the person wronged, always examine whether discrimination has occurred – and where appropriate conclude that that was the case – regardless of whether the person accused of discrimination has or has not admitted that discrimination has occurred, in order for the requirement in Article 15 [of that directive] for effective, proportionate and dissuasive sanctions to be regarded as satisfied?’ |
Decision | Articles 7 and 15 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a national law which prevents a court that is seised of an action for compensation based on an allegation of discrimination prohibited by that directive from examining the claim seeking a declaration of the existence of that discrimination where the defendant agrees to pay the compensation claimed without however recognising the existence of that discrimination. It is for the national court hearing a dispute between private persons to ensure, within its jurisdiction, the judicial protection for litigants flowing from Article 47 of the Charter of Fundamental Rights by disapplying as necessary any contrary provision of national law. |
Case number | C–785/18 |
Case name | GAEC Jeanningros |
Document | Judgment ECLI:EU:C:2020:46 |
Date | 29/01/2020 |
Source of the question referred for a preliminary ruling | Conseil d’État (Council of State, France) |
Name of the parties | GAEC Jeanningros v Institut national de l’origine et de la qualité (INAO) and Others |
Subject matter | Agriculture and fisheries; protected names; amendments to the product specification for the protected designation of origin (PDO) ‘Comté’ |
Key words | GAEC – Agriculture – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Protected designation of origin ‘Comté’ – Minor amendment to a product specification – Action before national courts contesting an application for an amendment – Case–law of the national courts according to which the action becomes devoid of purpose when the European Commission has approved the amendment – Effective judicial protection – Obligation to rule on the action |
Question referred for a preliminary ruling | ‘Must Article 53 of [Regulation No 1151/2012], Article 6 of [Delegated Regulation No 664/2014] and Article 10 of [Implementing Regulation No 668/2014], in conjunction with Article 47 of the [Charter], be interpreted as meaning that, in the specific case where the … Commission has granted the application by the national authorities of a Member State seeking to have the specification of a name amended and to secure registration of the [PDO], although that application is still the subject of an action pending before the national courts of that State, those courts may decide that there is no longer any need to adjudicate on the dispute, or, in view of the effects attached to a possible annulment of the contested measure on the validity of the registration by the … Commission, must those courts rule on the lawfulness of that measure adopted by the national authorities?’ |
Decision | Article 53(2) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs, Article 6 of Commission Delegated Regulation (EU) No 664/2014 of 18 December 2013 supplementing Regulation No 1151/2012 of the European Parliament and of the Council with regard to the establishment of the Union symbols for protected designations of origin, protected geographical indications and traditional specialities guaranteed and with regard to certain rules on sourcing, certain procedural rules and certain additional transitional rules, and Article 10 of Commission Implementing Regulation (EU) No 668/2014 of 13 June 2014 laying down rules for the application of Regulation No 1151/2012 of the European Parliament and of the Council, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, when the European Commission has granted an application made by the authorities of a Member State seeking a minor amendment to a product specification for a protected designation of origin, the national courts hearing an action concerning the lawfulness of the decision made by those authorities on that application with a view to submitting it to the Commission, in accordance with Article 53(2) of Regulation No 1151/2012, cannot, on that ground alone, decide that there is no longer any need to adjudicate on the dispute pending before them. |
Case number | C–752/18 |
Case name | Deutsche Umwelthilfe |
Document | Judgment ECLI:EU:C:2019:1114 |
Date | 19/12/2019 |
Source of the question referred for a preliminary ruling | Bayerischer Verwaltungsgerichtshof ((Higher Administrative Court of Bavaria, Germany) |
Name of the parties | Deutsche Umwelthilfe eV v Freistaat Bayern |
Subject matter | Environment; ambient air quality and cleaner air for Europe; administrative cooperation |
Key words | Deutsche Umwelthilfe – Environment –Charter of Fundamental Rights of the European Union – Atmospheric pollution – Ambient air quality – Air quality plan – Limit values for nitrogen dioxide – Obligation to adopt appropriate measures to ensure that any exceedance period is very short – Obligation on the national courts to take any necessary measure – Refusal of a regional government to comply with an injunction – Coercive detention contemplated in respect of senior political representatives or senior officials of the region concerned – Effective judicial protection – Right to liberty of the person – Legal basis – Proportionality |
Question referred for a preliminary ruling | ‘Are – the requirement laid down in the second subparagraph of Article 4(3) [TEU], according to which the Member States must take any appropriate measure to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union, – the principle of effective implementation of EU law by the Member States, which is established in, inter alia, Article 197(1) [TFEU], – the right to an effective remedy guaranteed by the first paragraph of Article 47 of the [Charter], – the obligation devolving on the Contracting States to ensure effective remedies in environmental matters, which arises from the first sentence of Article 9(4) of the [Aarhus Convention], – the obligation devolving on the Member States to ensure effective legal protection in the fields covered by EU law, which is established in the second subparagraph of Article 19(1) TEU, to be interpreted as meaning that a German court is entitled – and possibly even obliged – to impose coercive detention on office holders involved in the exercise of the official authority … of a German Federal Land in order thereby to enforce the obligation of that Federal Land to update an air quality plan, within the meaning of Article 23 of Directive [2008/50], with specific minimum content if that Federal Land has been ordered, by way of a final judgment, to carry out an update having that specific minimum content, and – the Federal Land has been threatened with and subjected to financial penalties on several occasions without success, – threats of financial penalties and the imposition of financial penalties do not result in a significant persuasive effect even if higher amounts than before are threatened and imposed, for the reason that the payment of penalties does not involve actual losses for the Federal Land against which a final judgment has been given, but rather, in this respect, there is merely a transfer of the amount imposed in each case from one accounting item within the Land’s budget to another accounting item within the Land’s budget, – the Federal Land against which a final judgment has been given has stated to the courts and publicly – inter alia before parliament via its most senior political office–holder – that it will not fulfil the judicially imposed obligations in connection with air quality planning, – while national law does in principle provide for the instrument of coercive detention for the purpose of enforcing judicial decisions, case–law of the national constitutional court precludes the application of the relevant provision to a situation of the nature involved here, and – for a situation of the nature involved here, national law does not provide for coercive instruments that are more expedient than threats and imposition of financial penalties but are less invasive than detention, and recourse to such coercive instruments does not come into consideration from a substantive point of view either?’ |
Decision | EU law, in particular the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, it is incumbent upon the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority where provisions of domestic law contain a legal basis for ordering such detention which is sufficiently accessible, precise and foreseeable in its application and provided that the limitation on the right to liberty, guaranteed by Article 6 of the Charter of Fundamental Rights, that would result from so ordering complies with the other conditions laid down in that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis in domestic law, EU law does not empower that court to have recourse to such a measure. |
Case number | C–659/18 |
Case name | VW (Right of access to a lawyer in the event of non–appearance) |
Document | Judgment ECLI:EU:C:2020:201 |
Date | 12/03/2020 |
Source of the question referred for a preliminary ruling | Juzgado de Instrucción n. 4 de Badalona (Court of Preliminary Investigation No 4, Badalona, Spain) |
Name of the parties | Criminal proceeding against VW |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; offences of driving without a licence and forgery of public documents |
Key words | VW – Right of access to a lawyer – Circumstances in which the right of access to a lawyer must be guaranteed – Non–appearance – Derogations from the right of access to a lawyer – Article 47 of the Charter of Fundamental Rights of the European Union – Right to effective judicial protection |
Question referred for a preliminary ruling | ‘Must Article 47 of the [Charter] and, in particular, Article 3(2) of Directive [2013/48] be interpreted as meaning that the right of access to a lawyer may justifiably be delayed where the suspect or accused fails to appear when first summoned by the court and a national, European or international arrest warrant is issued, and that the assistance of a lawyer and the entering of an appearance by the lawyer in the proceedings may be delayed until the warrant is executed and the suspect is brought to court by the police?’ |
Decision | Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, and in particular Article 3(2) thereof, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation, as interpreted by national case–law, according to which the exercise of the right of access to a lawyer may, at the pre–trial stage, be delayed because the suspect or accused person has failed to appear following a summons to appear before an investigating judge until the national arrest warrant issued against the person concerned has been executed. |
Case number | C–585/18 |
Case name | A.K. (Independence of the Disciplinary Chamber of the Supreme Court) |
Document | Judgment ECLI:EU:C:2019:982 |
Date | 19/11/2019 |
Source of the question referred for a preliminary ruling | In Joined Cases C–585/18, C–624/18 and C–625/18, Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber), Poland) |
Name of the parties | A. K. v Krajowa Rada Sądownictwa and CP and DO v Sąd Najwyższy |
Subject matter | Employment and social policy; equal treatment in employment and occupation; early retirement |
Key words | A.K. – Equal treatment in employment and occupation – Non–discrimination on the ground of age – Lowering of the retirement age of judges of the Sąd Najwyższy (Supreme Court, Poland) – Right to a remedy – Charter of Fundamental Rights of the European Union – Effective judicial protection – Principle of judicial independence – Creation of a new chamber of the Sąd Najwyższy (Supreme Court) with jurisdiction inter alia for cases of retiring the judges of that court – Chamber formed by judges newly appointed by the President of the Republic of Poland on a proposal of the National Council of the Judiciary – Independence of that council – Power to disapply national legislation not in conformity with EU law – Primacy of EU law |
Question referred for a preliminary ruling | In Joined Cases: C–585/18 ‘(1) On a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear an action by a national court judge and which must be composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts (the [KRS]), which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law? (2) If the answer to the first question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter of Fundamental Rights], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court and is seised of an appeal in a case falling within the scope of EU law should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?’ ‘(1) Should Article 47 of the [Charter], read in conjunction with Article 9(1) of [Directive 2000/78], be interpreted as meaning that, where an appeal is brought before a court of last instance in a Member State against an alleged infringement of the prohibition of discrimination on the ground of age in respect of a judge of that court, together with a motion for granting security in respect of the reported claim, that court – in order to protect the rights arising from EU law by ordering an interim measure provided for under national law – must refuse to apply national provisions which confer jurisdiction, in the case in which the appeal has been lodged, on a chamber of that court which is not operational by reason of a failure to appoint judges to be its members? (2) In the event that judges are appointed to adjudicate within the chamber with jurisdiction under national law to hear and determine the action brought, on a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear the case of a national court judge at first or second instance and which is composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts, namely the [(KRS)], which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law? (3) If the answer to the second question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court seised with an appeal in an EU case should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?’ |
Decision | 1. It is no longer necessary to answer questions referred by the Izba Pracy i Ubezpieczeń Społecznych (Labour and Social Insurance Chamber) of the Sąd Najwyższy (Supreme Court, Poland) in Case C‑585/18 or the first question referred by the same court in Cases C‑624/18 and C‑625/18. 2. The answer to the second and third questions referred by the referring court in Cases C‑624/18 and C‑625/18 is as follows: Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court). If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field. |
Case number | C–564/18 |
Case name | Bevándorlási és Menekültügyi Hivatal (Tompa) |
Document | Judgment ECLI:EU:C:2020:218 |
Date | 19/03/2020 |
Source of the question referred for a preliminary ruling | Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest, Hungary) |
Name of the parties | LH v Bevándorlási és Menekültügyi Hivatal |
Subject matter | Area of freedom, security and justice; asylum policy; border control; refusal of an application |
Key words | LH – Asylum policy – Common procedures for granting and withdrawing international protection – Application for international protection – Grounds of inadmissibility – National legislation under which an application is inadmissible if the applicant has arrived in the Member State concerned via a country in which he or she is not exposed to persecution or the risk of serious harm, or if that country provides sufficient protection – Right to an effective remedy – Judicial review of administrative decisions concerning the inadmissibility of applications for international protection – Time limit of eight days within which to give a decision – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) May the provisions on inadmissible applications in Article 33 of [Directive 2013/32] … be interpreted as not precluding a Member State’s legislation pursuant to which an application is inadmissible in the context of the asylum procedure when the applicant has arrived in that Member State, Hungary, via a country where he or she is not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed? (2) May Article 47 of the [Charter] and Article 31 of Directive [2013/32] – having regard also to the provisions of Articles 6 and 13 of the [European Convention on Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950] – be interpreted as meaning that a Member State’s legislation complies with those provisions when it lays down a mandatory time limit of eight days for the administrative–law proceedings before a court in respect of applications declared inadmissible in asylum procedures?’ |
Decision | 1. Article 33 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as precluding national legislation which allows an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on the territory of the Member State concerned via a State in which that person was not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed. 2. Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which sets a time limit of eight days within which a court hearing an appeal against a decision rejecting an application for international protection as inadmissible is to give a decision, where that court is unable to ensure, within such a time limit, that the substantive rules and procedural guarantees enjoyed by the applicant under EU law are effective. |
Case number | C–546/18 |
Case name | Adler Real Estate and Others |
Document | Judgment ECLI:EU:C:2021:711 |
Date | 09/09/2021 |
Source of the question referred for a preliminary ruling | Bundesverwaltungsgericht (Federal Administrative Court, Austria) |
Name of the parties | FN and Others v Übernahmekommission |
Subject matter | Free movement of persons and services; company law; infringements of the obligation to submit a takeover bid |
Key words | Adler Real Estate –Company law – Takeover bids – Mandatory bid – Supervisory authority – Final decision making a finding of infringement of the obligation to submit a takeover bid – Binding effect of that decision in subsequent proceedings for an administrative penal sanction initiated by the same authority – Principle of effectiveness of EU law – General principles of EU law – Rights of the defence – Charter of Fundamental Rights of the European Union – Right to silence – Presumption of innocence – Access to an independent and impartial tribunal |
Question referred for a preliminary ruling | ‘(1) Do Articles 4 and 17 of Directive [2004/25] – read in the light of the principle of effectiveness under EU law – preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a natural person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is not given binding effect in the context of proceedings for an administrative penal sanction subsequently conducted by that supervisory authority against that same person, as a consequence of which that person once again has all the factual and legal pleas and evidence available to him or her to challenge the breach of law established in the decision that already has the force of res judicata? (2) Do Articles 4 and 17 of Directive [2004/25] – read in the light of the principle of effectiveness under EU law – preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a legal person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is not given binding effect in the context of proceedings for an administrative penal sanction subsequently conducted by that supervisory authority against the body authorised to represent that legal person, as a consequence of which that legal person (the body) once again has all the factual and legal pleas and evidence available to it to challenge the breach of law established in the decision that already has the force of res judicata? (3) (If Question 1 is answered in the negative) Does Article 47 of the [Charter] preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a natural person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is given binding effect in the context of administrative–penal proceedings subsequently conducted by that supervisory authority against that same person, with the result that that person is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata? (4) (If Question 2 is answered in the negative) Does Article 47 of the [Charter] preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a legal person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is given binding effect in the context of administrative–penal proceedings subsequently conducted by that supervisory authority against the body authorised to represent that legal person, with the result that that person (the body) is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata?’ |
Decision | Articles 4 and 17 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, as amended by Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014, read in the light of the rights of the defence guaranteed by EU law, and particularly the right to be heard, and of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, are to be interpreted as precluding a practice of a Member State under which a decision making a finding of infringement of that directive, having become final, has binding effect in subsequent proceedings for the imposition of an administrative penal sanction for infringement of that directive, in so far as the parties to those proceedings did not have the opportunity, in the earlier proceedings for a finding that that infringement had been committed, fully to exercise the rights of the defence, and particularly the right to be heard, or to invoke the right to silence or the presumption of innocence in relation to the matters of fact to be used, subsequently, in support of the allegation, or in so far as they were unable to exercise the right to an effective remedy against such a decision before a court or tribunal empowered to determine matters of both fact and law. |
Case number | C–542/18 RX–II |
Case name | Réexamen Simpson v Council |
Document | Judgment ECLI:EU:C:2020:232 |
Date | 26/03/2020 |
Source of the question referred for a preliminary ruling | Uradnika Simpson and HG |
Name of the parties | Erik Simpson, official of the Council of the European Union, residing in Brussels (Belgium), v Council of the European Union (C‑542/18 RX–II), and HG, official of the European Commission, v European Commission (C‑543/18 RX–II) |
Subject matter | Staff Regulations applicable to officials and Conditions of employment of other servants; review of judgments of the General Court of the EU |
Key words | Simpson in HG – Review of the judgments of the General Court of the European Union in Simpson v Council (T‑646/16 P) and HG v Commission (T‑693/16 P) – Civil service – Composition of the panel of judges which delivered the judgments at first instance – Procedure for the appointment of a judge to the European Union Civil Service Tribunal – Charter of Fundamental Rights of the European Union – Tribunal established by law – Incidental review of legality – Effect on the unity and consistency of EU law |
Question referred for a preliminary ruling | 1 The purpose of these proceedings is to review the judgments of the General Court of the European Union (Appeal Chamber) of 19 July 2018, Simpson v Council (T‑646/16 P, not published, ‘the first judgment under review’, EU:T:2018:493), and HG v Commission (T‑693/16 P, not published, ‘the second judgment under review’, EU:T:2018:492) (together, ‘the judgments under review’). 2 By the first judgment under review, the General Court set aside the order of the European Union Civil Service Tribunal of 24 June 2016, Simpson v Council (F‑142/11 RENV, EU:F:2016:136), by which the Tribunal had dismissed the action brought by Mr Erik Simpson for (1) annulment of the decision of the Council of the European Union of 9 December 2010 rejecting his request that he be upgraded to grade AD 9 after he had passed Open Competition EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, inter alia those with Estonian as their main language, and of the Council’s decision of 7 October 2011 rejecting his complaint against that first decision of 9 December 2010 (‘the decision of 7 October 2011); and (2) an order that the Council pay compensation for the damage sustained. That order had been made following the judgment of the General Court of 22 October 2015, Council v Simpson (T‑130/14 P, EU:T:2015:796), setting aside the judgment of the Civil Service Tribunal of 12 December 2013, Simpson v Council (F‑142/11, EU:F:2013:201), and referring the case back to the Civil Service Tribunal. 3 By the second judgment under review, the General Court set aside the judgment of the Civil Service Tribunal of 19 July 2016, HG v Commission (F‑149/15, EU:F:2016:155), by which the Tribunal had dismissed the action brought by HG for, principally (1) annulment of the decision of the European Commission of 10 February 2015 imposing on him the disciplinary penalty of deferment of advancement to a higher step for a period of 18 months and ordering him to pay compensation for the damage sustained by the Commission in the amount of EUR 108 596.35 (‘the decision of 10 February 2015’), and, so far as necessary, of the decision rejecting the complaint; and (2) an order that the Commission pay compensation for the damage allegedly sustained. 4 The review concerns the question whether, having regard, in particular, to the general principle of legal certainty, the judgments under review affect the unity or consistency of EU law in so far as the General Court, as court of appeal, held that the composition of the panel of judges of the Civil Service Tribunal which had made the order of 24 June 2016, Simpson v Council (F‑142/11 RENV, EU:F:2016:136), and the judgment of 19 July 2016, HG v Commission (F‑149/15, EU:F:2016:155) (together, ‘the contested decisions’), had been irregular, on the basis of an irregularity affecting the procedure for the appointment of one of the members of that panel of judges, leading to a breach of the principle of the lawful judge, laid down in the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). 5 The review also concerns the question whether, like acts covered by Article 277 TFEU, the appointment of a judge may form the subject matter of an incidental review of legality or whether such an incidental review of legality is – as a matter of principle or after the passage of a certain period of time – excluded or limited to certain types of irregularity in order to ensure legal certainty and the force of res judicata. |
Decision | 1. Orders that Cases C‑542/18 RX‑II and C‑543/18 RX‑II be joined for the purposes of the judgment; 2. Declares that the judgments of the General Court of the European Union (Appeal Chamber) of 19 July 2018, Simpson v Council (T‑646/16 P, not published, EU:T:2018:493) and HG v Commission (T‑693/16 P, not published, EU:T:2018:492) affect the unity and consistency of EU law in so far as the General Court, as court of appeal, held that the composition of the panel of judges of the European Union Civil Service Tribunal which had delivered the order of 24 June 2016, Simpson v Council (F‑142/11 RENV, EU:F:2016:136) and the judgment of 19 July 2016, HG v Commission (F‑149/15, EU:F:2016:155), respectively, had been irregular, on the basis of an irregularity affecting the procedure for the appointment of one of the members of that panel of judges, leading to a breach of the principle of the lawful judge, laid down in the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, and set aside those decisions; 3. Sets aside those judgments; 4. Refers the cases back to the General Court of the European Union; 5. Orders Mr Erik Simpson, the Council of the European Union, HG, the European Commission and the Bulgarian Government to bear their own costs in relation to the review proceedings. |
Case number | C–467/18 |
Case name | Rayonna prokuratura Lom |
Document | Judgment ECLI:EU:C:2019:765 |
Date | 19/09/2019 |
Source of the question referred for a preliminary ruling | Rayonen sad Lukovit (District Court, Lukovit, Bulgaria) |
Name of the parties | Criminal proceedings against EP |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal cases; admission of an EP to a special ward of a psychiatric hospital |
Key words | EP – Judicial cooperation in criminal matters –Charter of Fundamental Rights of the European Union – National legislation authorising, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society – Right to information about rights – Right of access to a lawyer – Right to an effective remedy – Presumption of innocence – Vulnerable persons |
Question referred for a preliminary ruling | ‘(1) Do the present proceedings for an order for the adoption of compulsory medical measures, constituting a form of State compulsion in relation to persons who, according to the findings of the Public Prosecutor’s Office, have committed an act representing a danger to society, fall within the scope of Directive [2012/13] and Directive [2013/48]? (2) Do the Bulgarian procedural provisions governing the special procedure for an order for the adoption of compulsory medical measures provided for in Article 427 et seq. of the Code of Criminal Procedure, under which a court is not empowered to refer the proceedings back to the Public Prosecutor’s Office with the instruction to rectify the procedural errors committed in the course of the pre–trial procedure, but can either grant the application for an order for the adoption of compulsory medical measures or reject it, constitute an effective remedy, within the meaning of Article 12 of Directive 2013/48 and Article 8 of Directive 2012/13 read in conjunction with Article 47 of the Charter, which confers on the person concerned the right to challenge before a court any infringements of their rights which may have been committed in the course of the pre–trial procedure? (3) Are Directive 2012/13 and Directive 2013/48 applicable to (pre–trial) criminal proceedings in the case where the national law, that is to say the Code of Criminal Procedure, does not recognise the legal concept of ‘suspect’ and the Public Prosecutor’s Office does not formally regard the person in question as a defendant during the pre–trial procedure, since, on the assumption that the homicide forming the subject of the investigations was committed by that person in a state of mental disorder such as to exclude criminal responsibility, it closes criminal proceedings without informing the person concerned and applies to the court for an order for the adoption of compulsory medical measures against that person? (4) Is a person in relation to whom compulsory medical treatment has been applied for to be regarded as being ‘suspected’ within the meaning of Article 2(1) of Directive 2012/13 and Article 2(3) of Directive 2013/48 in the case where, in the course of the first inspection of the crime scene and the initial investigative measures at the home of the victim and her son, a police officer, after identifying traces of blood on the son’s body, questioned him about his reasons for killing his mother and taking her body out into the street and, after the son had answered those questions, handcuffed him? If so, must the person in question be provided with information pursuant to Article 3(1) in conjunction with (2) of Directive 2012/13 even at that stage, and how are the particular needs of that person to be taken into account, pursuant to paragraph 2, when information is provided to him in such circumstances, that is to say where the police officer was aware that the person in question suffered from a psychiatric disorder? (5) Are national rules such as those at issue, which effectively allow a person to be deprived of his liberty by being committed to a psychiatric hospital under a procedure provided for in the Health Law (a precautionary compulsory measure ordered where there is evidence that the person concerned suffers from a mental illness and is at risk of committing a criminal offence, but not where an offence has already been committed), compatible with Article 3 of Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence, in the case where the real reason for initiating the procedure is the offence on account of which criminal proceedings have been brought against the person committed for treatment, and does this circumvent the right, on arrest, to a fair trial which must satisfy the conditions laid down in Article 5(4) of the [ECHR], that is to say a trial in which the court is empowered to review not only compliance with the rules of procedure but also the suspicion justifying the arrest and the lawfulness of the objective pursued by that measure, the court being obliged to carry out such a review in the case where the person in question was arrested under the procedure laid down in the Code of Criminal Procedure? (6) Does the concept of the presumption of innocence in Article 3 of Directive 2016/343 also include the presumption that persons lacking criminal responsibility by reason of mental disorder did not commit the offence representing a danger to society of which they are accused by the Public Prosecutor’s Office, until such time as proof to the contrary is established in accordance with the rules of procedure (in criminal proceedings, with due regard for the rights of the defence)? (7) Do national rules which confer on the adjudicating court different powers in relation to the examination as to the lawfulness of the pre–trial procedure which it must carry out ex officio, depending on whether: (a) the court examines an indictment from the Public Prosecutor’s Office in which the latter maintains that a particular person of unsound mind has committed homicide (Article 249(1) in conjunction with (4) of the Code of Criminal Procedure), or (b) the court examines an application from the Public Prosecutor’s Office in which the latter maintains that the person concerned has committed homicide but that act does not constitute a criminal offence because the perpetrator suffers from a psychiatric disorder, and by which it seeks a court order for the imposition by the State of compulsory treatment, afford vulnerable persons an effective remedy as stipulated in Article 13 in conjunction with Article 12 of Directive 2013/48 and Article 8(2) in conjunction with Article 3(2) of Directive 2012/13, and are the various powers available to the court depending on the nature of the procedure, the latter being itself dictated by whether the mental health of the person identified as the perpetrator is such as to render him criminally responsible, compatible with the principle of non–discrimination laid down in Article 21(1) of the Charter?’ |
Decision | 1. Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, and Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, must be interpreted as applying to judicial proceedings, such as those provided for by the national legislation at issue in the main proceedings, which authorise, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society. Directive 2012/13 must be interpreted as meaning that persons suspected of having committed a criminal offence must be informed as soon as possible of their rights from the moment when they are subject to suspicions which justify, in circumstances other than an emergency, the restriction of their liberty by the competent authorities by means of coercive measures and, at the latest, before they are first officially questioned by the police. 2. Article 47 of the Charter of Fundamental Rights of the European Union, Article 8(2) of Directive 2012/13 and Article 12 of Directive 2013/48 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for judicial proceedings authorising, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society, where that legislation does not enable the court with jurisdiction to verify that the procedural rights covered by those directives were respected in proceedings prior to those before that court, which were not subject to such judicial review. 3. Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, and Article 51(1) of the Charter of Fundamental Rights must be interpreted as meaning that neither that directive nor that provision of the Charter of Fundamental Rights applies to judicial proceedings for the committal to a psychiatric hospital for therapeutic purposes, such as those provided for in Article 155 et seq. of the Zakon za zdraveto (Health Law), at issue in the main proceedings, on the ground that there is a risk that, in view of his state of health, the person concerned represents a danger to himself or others. 4. The principle of the presumption of innocence referred to in Article 3 of Directive 2016/343 must be interpreted as requiring, in judicial proceedings for the committal to a psychiatric hospital, on therapeutic and safety grounds, of persons who, in a state of insanity, have committed acts representing a danger to society, such as that at issue in the main proceedings, that the Public Prosecutor’s Office provides proof that the person whose committal is sought is the perpetrator of acts deemed to constitute such a danger. |
Case number | C–406/18 |
Case name | PG |
Document | Judgment ECLI:EU:C:2020:216 |
Date | 19/03/2020 |
Source of the question referred for a preliminary ruling | Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest, Hungary) |
Name of the parties | PG v Bevándorlási és Menekültügyi Hivatal |
Subject matter | Area of freedom, security and justice; asylum policy; border control; refusal of an application |
Key words | PG – Common policy on asylum and subsidiary protection – Common procedures for granting international protection – Full and ex nunc examination – Charter of Fundamental Rights of the European Union – Right to an effective remedy – Powers and obligations of the first–instance court or tribunal – No power to vary the decisions of the authorities competent in the area of international protection – National legislation providing for an obligation to adjudicate within a time limit of 60 days |
Question referred for a preliminary ruling | ‘(1) Can Article 47 of the [Charter] and Article 31 of Directive 2013/32 … be interpreted, in the light of Articles 6 and 13 of the [Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950], as meaning that it is possible for effective judicial protection to be guaranteed in a Member State even if its courts cannot amend decisions given in asylum procedures but may only annul them and order that a new procedure be conducted? (2) Can Article 47 of the [Charter] and Article 31 of Directive 2013/32 … be interpreted, again in the light of Articles 6 and 13 of the [Convention for the Protection of Human Rights and Fundamental Freedoms], as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?’ |
Decision | ‘(1) Can Article 47 of the [Charter] and Article 31 of Directive 2013/32 … be interpreted, in the light of Articles 6 and 13 of the [Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950], as meaning that it is possible for effective judicial protection to be guaranteed in a Member State even if its courts cannot amend decisions given in asylum procedures but may only annul them and order that a new procedure be conducted? (2) Can Article 47 of the [Charter] and Article 31 of Directive 2013/32 … be interpreted, again in the light of Articles 6 and 13 of the [Convention for the Protection of Human Rights and Fundamental Freedoms], as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?’ |
Case number | C–347/18 |
Case name | Salvoni |
Document | Judgment ECLI:EU:C:2019:661 |
Date | 04/09/2019 |
Source of the question referred for a preliminary ruling | Tribunale di Milano (District Court, Milan, Italy) |
Name of the parties | Alessandro Salvoni v Anni Marii Fiermonte |
Subject matter | Area of freedom, security and justice; asylum policy; border control; refusal of an application |
Key words | Salvoni – Judicial cooperation in civil matters – Powers of the court of origin – Automatic verification whether there have been breaches of the rules on jurisdiction concerning consumer contract |
Question referred for a preliminary ruling | ‘Should Article 53 of Regulation … No 1215/2012 and Article 47 of the [Charter] be interpreted as meaning that it is not possible for the court of origin, which has been requested to issue the certificate provided for in Article 53 of [that] regulation … with regard to a judgment that has acquired the force of res judicata, to exercise powers of its own motion to ascertain whether there has been a breach of the rules set out in Chapter II, Section 4 of [that regulation], so that it may inform the consumer of any breach that is established and enable the consumer to consider, in full knowledge of the facts, the possibility of availing himself of the remedy provided for in Article 45 of [that regulation]?’ |
Decision | Article 53 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as amended by Commission Delegated Regulation (EU) 2015/281 of 26 November 2014 read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding the court of origin which has been requested to issue the certificate provided for in Article 53 of that regulation in respect of a judgment which has acquired the force of res judicata from being able to ascertain of its own motion whether there has been a breach of the rules set out in Chapter II, Section 4 of that regulation, so that it may inform the consumer of any breach that is established and enable him to assess, in full knowledge of the facts, the possibility of availing himself of the remedy provided for in Article 45 of that regulation. |
Case number | C–325/18 PPU |
Case name | C.E. and N.E. |
Document | Judgment ECLI:EU:C:2018:739 |
Date | 19/09/2018 |
Source of the question referred for a preliminary ruling | Court of Appeal (Ireland), In Joined Cases C–325/18 PPU and C–375/18 PPU |
Name of the parties | Hampshire County Council v C.E., N.E., other parties: Child and Family Agency, Attorney General |
Subject matter | Area of freedom, security and justice; judicial cooperation in civil matters; matrimonial and parental responsibility disputes; termination of adoptions of children |
Key words | C.E., N.E. – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in matters of parental responsibility – International child abduction – Application for return – Application for a declaration of enforceability – Appeal – Charter of Fundamental Rights of the European Union – Right to an effective remedy – Time limit for bringing the appeal – Order authorising enforcement – Enforcement prior to service of the order |
Question referred for a preliminary ruling | In Case C–325/18 (2) In a case concerning the enforcement provisions of [Regulation No 2201/2003] is there a jurisdiction to extend time for the purposes of Article 33(5) where the delays are essentially de minimis and an extension of time would otherwise have been granted by reference to national procedural law? (3) Without prejudice to question 2 where a foreign public authority removes the children, the subject matter of the dispute, from the jurisdiction of a Member State pursuant to an enforcement order made ex parte in accordance with Article 31 of [Regulation No 2201/2003] but before the service of such order on the parents thereby depriving them of their rights to apply for a stay of such an order pending an appeal, does such conduct compromise the essence of parents’ entitlement under Article 6 [of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950] or Article 47 of the Charter such that an extension of time (for the purposes of Article 33(5) of that Regulation) should otherwise be granted? In case C–375/18 |
Decision | 1. The general provisions of Chapter III of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that, where it is alleged that children have been wrongfully removed, the decision of a court of the Member State in which those children were habitually resident, directing that those children be returned and which is entailed by a decision dealing with parental responsibility, may be declared enforceable in the host Member State in accordance with those general provisions. 2. Article 33(1) of Regulation No 2201/2003, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in a situation such as that at issue in the main proceedings, enforcement of a decision of a court of a Member State which directs that children be made wards of court and that they be returned and which is declared enforceable in the requested Member State, prior to service of the declaration of enforceability of that decision on the parents concerned. Article 33(5) of Regulation No 2201/2003 must be interpreted as meaning that the period for lodging an appeal laid down in that provision may not be extended by the court seised. 3. Regulation No 2201/2003 must be interpreted as not precluding, in a situation such as that at issue in the main proceedings, a court of one Member State from adopting protective measures in the form of an injunction directed at a public body of another Member State, preventing that body from commencing or continuing, before the courts of that other Member State, proceedings for the adoption of children who are residing there |
Case number | C–311/18 |
Case name | Facebook Ireland and Schrems |
Document | Judgment ECLI:EU:C:2020:559 |
Date | 16/07/2020 |
Source of the question referred for a preliminary ruling | High Court (Ireland) |
Name of the parties | Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems |
Subject matter | Protection of personal data; transfer to a third country |
Key words | Facebook Ireland – Protection of individuals with regard to the processing of personal data – Charter of Fundamental Rights of the European Union – Transfers of personal data to third countries for commercial purposes – Commission adequacy decision –Transfers subject to appropriate safeguards– Powers of the supervisory authorities – Processing of the data transferred by the public authorities of a third country for national security purposes – Assessment of the adequacy of the level of protection in the third country – Protective standard clauses on the transfer of personal data to third countries – Suitable safeguards provided by the data controller – Validity – Adequacy of the protection provided by the EU–US Privacy Shield – Validity – Complaint by a natural person whose data was transferred from the European Union to the United States |
Question referred for a preliminary ruling | (1) In circumstances in which personal data is transferred by a private company from a European Union (EU) Member State to a private company in a third country for a commercial purpose pursuant to [the SCC Decision] and may be further processed in the third country by its authorities for purposes of national security but also for purposes of law enforcement and the conduct of the foreign affairs of the third country, does EU law (including the Charter) apply to the transfer of the data notwithstanding the provisions of Article 4(2) TEU in relation to national security and the provisions of the first indent of Article 3(2) of Directive [95/46] in relation to public security, defence and State security? (2) (a) In determining whether there is a violation of the rights of an individual through the transfer of data from the [European Union] to a third country under the [SCC Decision] where it may be further processed for national security purposes, is the relevant comparator for the purposes of [Directive 95/46]: (i) the Charter, the EU Treaty, the FEU Treaty, [Directive 95/46], the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950] (or any other provision of EU law); or (ii) the national laws of one or more Member States? (b) If the relevant comparator is (ii), are the practices in the context of national security in one or more Member States also to be included in the comparator? (3) When assessing whether a third country ensures the level of protection required by EU law to personal data transferred to that country for the purposes of Article 26 of [Directive 95/46], ought the level of protection in the third country be assessed by reference to: (a) the applicable rules in the third country resulting from its domestic law or international commitments, and the practice designed to ensure compliance with those rules, to include the professional rules and security measures which are complied with in the third country; or (b) the rules referred to in (a) together with such administrative, regulatory and compliance practices and policy safeguards, procedures, protocols, oversight mechanisms and non–judicial remedies as are in place in the third country? (4) Given the facts found by the High Court in relation to US law, if personal data is transferred from the European Union to the United States under [the SCC Decision] does this violate the rights of individuals under Articles 7 and/or 8 of the Charter? (5) Given the facts found by the High Court in relation to US law, if personal data is transferred from the European Union to the United States under [the SCC Decision]: (a) does the level of protection afforded by the United States respect the essence of an individual’s right to a judicial remedy for breach of his or her data privacy rights guaranteed by Article 47 of the Charter? If the answer to Question 5(a) is in the affirmative: (b) are the limitations imposed by US law on an individual’s right to a judicial remedy in the context of US national security proportionate within the meaning of Article 52 of the Charter and do not exceed what is necessary in a democratic society for national security purposes? (6) (a) What is the level of protection required to be afforded to personal data transferred to a third country pursuant to standard contractual clauses adopted in accordance with a decision of the Commission under Article 26(4) [of Directive 95/46] in light of the provisions of [Directive 95/46] and in particular Articles 25 and 26 read in the light of the Charter? (b) What are the matters to be taken into account in assessing whether the level of protection afforded to data transferred to a third country under [the SCC Decision] satisfies the requirements of [Directive 95/46] and the Charter? (7) Does the fact that the standard contractual clauses apply as between the data exporter and the data importer and do not bind the national authorities of a third country who may require the data importer to make available to its security services for further processing the personal data transferred pursuant to the clauses provided for in [the SCC Decision] preclude the clauses from adducing adequate safeguards as envisaged by Article 26(2) of [Directive 95/46]? (8) If a third country data importer is subject to surveillance laws that in the view of a data protection authority conflict with the [standard contractual clauses] or Article 25 and 26 of [Directive 95/46] and/or the Charter, is a data protection authority required to use its enforcement powers under Article 28(3) of [Directive 95/46] to suspend data flows or is the exercise of those powers limited to exceptional cases only, in light of recital 11 of [the SCC Decision], or can a data protection authority use its discretion not to suspend data flows? (9) (a) For the purposes of Article 25(6) of [Directive 95/46], does [the Privacy Shield Decision] constitute a finding of general application binding on data protection authorities and the courts of the Member States to the effect that the United States ensures an adequate level of protection within the meaning of Article 25(2) of [Directive 95/46] by reason of its domestic law or of the international commitments it has entered into? (b) If it does not, what relevance, if any, does the Privacy Shield Decision have in the assessment conducted into the adequacy of the safeguards provided to data transferred to the United States which is transferred pursuant to the [SCC Decision]? (10) Given the findings of the High Court in relation to US law, does the provision of the Privacy Shield ombudsperson under Annex A to Annex III to the Privacy Shield Decision when taken in conjunction with the existing regime in the United States ensure that the US provides a remedy to data subjects whose personal data is transferred to the United States under the [SCC Decision] that is compatible with Article 47 of the Charter]? (11) Does the [SCC Decision] violate Articles 7, 8 and/or 47 of the Charter?’ |
Decision | 1. Article 2(1) and (2) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that that regulation applies to the transfer of personal data for commercial purposes by an economic operator established in a Member State to another economic operator established in a third country, irrespective of whether, at the time of that transfer or thereafter, that data is liable to be processed by the authorities of the third country in question for the purposes of public security, defence and State security. 2. Article 46(1) and Article 46(2)(c) of Regulation 2016/679 must be interpreted as meaning that the appropriate safeguards, enforceable rights and effective legal remedies required by those provisions must ensure that data subjects whose personal data are transferred to a third country pursuant to standard data protection clauses are afforded a level of protection essentially equivalent to that guaranteed within the European Union by that regulation, read in the light of the Charter of Fundamental Rights of the European Union. To that end, the assessment of the level of protection afforded in the context of such a transfer must, in particular, take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country, in particular those set out, in a non–exhaustive manner, in Article 45(2) of that regulation. 3. Article 58(2)(f) and (j) of Regulation 2016/679 must be interpreted as meaning that, unless there is a valid European Commission adequacy decision, the competent supervisory authority is required to suspend or prohibit a transfer of data to a third country pursuant to standard data protection clauses adopted by the Commission, if, in the view of that supervisory authority and in the light of all the circumstances of that transfer, those clauses are not or cannot be complied with in that third country and the protection of the data transferred that is required by EU law, in particular by Articles 45 and 46 of that regulation and by the Charter of Fundamental Rights, cannot be ensured by other means, where the controller or a processor has not itself suspended or put an end to the transfer. 4. Examination of Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EU of the European Parliament and of the Council, as amended by Commission Implementing Decision (EU) 2016/2297 of 16 December 2016 in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights has disclosed nothing to affect the validity of that decision. 5. Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU–US Privacy Shield is invalid. |
Case number | C–216/18 PPU |
Case name | Minister for Justice and Equality (Deficiencies in the system of justice) |
Document | Judgment ECLI:EU:C:2018:586 |
Date | 25/07/2018 |
Source of the question referred for a preliminary ruling | High Court (Ireland) |
Name of the parties | LM |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | LM – Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Conditions for execution – Charter of Fundamental Rights of the European Union – Right of access to an independent and impartial tribunal |
Question referred for a preliminary ruling | ‘(1) Notwithstanding the conclusions of the Court of Justice in [the judgment of 5 April 2016,] Aranyosi and Căldăraru [(C‑404/15 and C‑659/15 PPU, EU:C:2016:198)], where a national court determines there is cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law, is it necessary for the executing judicial authority to make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial where his trial will take place within a system no longer operating within the rule of law? (2) If the test to be applied requires a specific assessment of the requested person’s real risk of a flagrant denial of justice and where the national court has concluded that there is a systemic breach of the rule of law, is the national court as executing judicial authority obliged to revert to the issuing judicial authority for any further necessary information that could enable the national court discount the existence of the risk to an unfair trial and if so, what guarantees as to fair trial would be required?’ |
Decision | Article 1(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where the executing judicial authority, called upon to decide whether a person in respect of whom a European arrest warrant has been issued for the purposes of conducting a criminal prosecution is to be surrendered, has material, such as that set out in a reasoned proposal of the European Commission adopted pursuant to Article 7(1) TEU, indicating that there is a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary, that authority must determine, specifically and precisely, whether, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant, and in the light of the information provided by the issuing Member State pursuant to Article 15(2) of Framework Decision 2002/584, as amended, there are substantial grounds for believing that that person will run such a risk if he is surrendered to that State. |
Case number | C–189/18 |
Case name | Glencore Agriculture Hungary |
Document | Judgment ECLI:EU:C:2019:861 |
Date | 16/10/2019 |
Source of the question referred for a preliminary ruling | Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) |
Name of the parties | Glencore Agriculture Hungary Kft. v Nemzeti Adó– és Vámhivatal Fellebbviteli Igazgatósága |
Subject matter | Taxation; value added tax |
Key words | Glencore – Value added tax (VAT) – Right to deduct VAT – Refusal – Fraud – Taking of evidence – Principle of respect for the rights of the defence – Right to be heard – Access to the file – Charter of Fundamental Rights of the European Union – Effective judicial review – Principle of equality of arms – Inter partes principle – National legislation or practice according to which, when checking the right to deduct VAT exercised by a taxable person, the tax authorities are bound by the findings of fact and the legal classifications which they have made in the context of related administrative procedures to which that taxable person was not a party |
Question referred for a preliminary ruling | ‘(1) Must the provisions of the VAT Directive and, in so far as they are concerned, the fundamental principle of respect for the rights of the defence and Article 47 of the [Charter], be interpreted as precluding the legislation of a Member State and national practice based on that legislation, under which the findings, in the context of an inspection carried out of the parties to a legal relationship (contract, transaction) to which the tax liability relates, made by the tax authorities at the conclusion of a procedure instigated in respect of one of the parties to the legal relationship (the issuer of the invoices in the main proceedings) and entailing a reclassification of that legal relationship, must be taken into account as a matter of course by the tax authorities when carrying out an inspection of another party to the legal relationship (the recipient of the invoices in the main proceedings), it being understood that the other party to the legal relationship has no rights, in particular rights attaching to the status of a party, in the original inspection procedure? (2) If the Court of Justice answers the first question in the negative, do the provisions of the VAT Directive and, in so far as they are concerned, the fundamental principle of respect for the rights of the defence and Article 47 of the [Charter], preclude a national practice that allows a procedure such as that referred to in the first question whereby the other party to the legal relationship (the recipient of the invoices) does not have, in the original inspection procedure, rights attaching to the status of a party, and cannot therefore exercise any right of appeal with respect to an inspection procedure the findings of which must be taken into account as a matter of course by the tax authorities in the inspection procedure concerning the other party’s tax liability and may be adopted as evidence against that other party, it being understood that the tax authorities do not make available to the other party the relevant files concerning the inspection carried out in respect of the first party to the legal relationship (the issuer of the invoices), in particular documents underpinning the findings, the reports and administrative decisions, but discloses only part of them to that other party in the form of a summary, the tax authorities thus apprising the other party of the contents of the file only indirectly, making a selection according to their own criteria, over which the other party may not exercise any control? (3) Must the provisions of the VAT Directive and, in so far as they are concerned, the fundamental principle of respect for the rights of the defence and Article 47 of the [Charter], be interpreted as precluding a national practice under which the findings, in the context of the inspection of the parties to a legal relationship to which the tax liability relates, made by the tax authorities at the conclusion of a procedure instigated in respect of the issuer of the invoices and including the finding that that issuer actively participated in tax evasion, must be taken into account as a matter of course by the tax authorities when carrying out an inspection in respect of the recipient of the invoices, it being understood that that recipient has no rights attaching to the status of a party in the inspection procedure carried out at the premises of the issuer of the invoices, and cannot therefore exercise any right of appeal in an inspection procedure the findings of which must be taken into account as a matter of course by the tax authorities in the inspection procedure concerning the tax liability of the recipient and may be adopted as evidence against that recipient, and that [the tax authorities] do not make available to the recipient the relevant files relating to the inspection carried out in respect of the issuer, in particular the documents underpinning the findings, the reports and administrative decisions, but disclose only part of them to the recipient in the form of a summary, the tax authorities thus apprising the recipient of the contents of the files only indirectly, making a selection according to their own criteria and over which the recipient may exercise no control?’ |
Decision | Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, the principle of respect for the rights of the defence and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding, in principle, legislation or a practice of a Member State according to which, during a check of the right to deduct value added tax (VAT) exercised by a taxable person, the tax authorities are bound by the findings of fact and the legal classifications which they have already made in the context of related administrative procedures initiated against suppliers of that taxable person, on which decisions which have become final finding the existence of VAT fraud committed by those suppliers are based, on condition, first, that it does not relieve the tax authorities of the obligation to disclose to the taxable person the evidence, including that originating in those related administrative procedures, on the basis of which they intend to take a decision, and that that taxable person is not thus deprived of the right effectively to challenge those findings of fact and legal classifications during the procedure brought against him; second, that the taxable person may have access during that procedure to all the evidence obtained during those related administrative procedures or any other procedure on which those authorities intend to base their decision or which may assist the exercise of the rights of the defence, unless objectives of public interest justify restricting that access; and, third, that the court hearing an action challenging that decision may check the legality of the way in which that evidence was obtained and used and the findings made in the administrative decisions taken with respect to those suppliers that are decisive for the outcome of the action. |
Case number | C–54/18 |
Case name | Cooperativa Animazione Valdocco |
Document | Order ECLI:EU:C:2019:118 |
Date | 14/02/2019 |
Source of the question referred for a preliminary ruling | Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont, Italy) |
Name of the parties | Cooperativa Animazione Valdocco Soc. coop. soc. Impresa Sociale Onlus v Consorzio Intercomunale Servizi Sociali di Pinerolo and Azienda Sanitaria Locale To3 di Collegno e Pinerolo |
Subject matter | Public procurement; appeal procedures; public procurement of home care services |
Key words | Cooperativa Animazone – Public procurement – Review procedures – Action brought against decisions to allow tenderers to participate in, or to exclude them from, a tendering procedure – Time limit for applying for review – 30–day time limit – National legislation excluding the possibility to plead the illegality of an admission decision in an action brought against subsequent decisions – Charter of Fundamental Rights of the European Union – Right to effective judicial protection |
Question referred for a preliminary ruling | ‘(1) Do the European rules on the rights of defence, due process and effective substantive operation of the protection afforded, in particular, by Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, Article 47 of [the Charter] and Article 1(1) and (2) of [Directive 89/665] preclude a provision of national law, such as Article 120(2–bis) of [the Administrative Procedure Code], which requires an operator taking part in a tendering procedure to challenge the admission of/failure to exclude another entity, within a period of 30 days of the communication of the decision to admit/exclude participants? (2) Do the European rules on the rights of defence, due process and effective substantive operation of the protection afforded, in particular, by Articles 6 and 13 ECHR, Article 47 of [the Charter] and Article 1(1) and (2) of [Directive 89/665], preclude a provision of national law, such as Article 120(2–bis) of [the Administrative Procedure Code], which prevents an economic operator from claiming, upon conclusion of the procedure, even by cross–appeal, that the decision to admit other operators is unlawful, in particular the one awarded the contract or the applicant in the main action, if they had not previously challenged the decision to admit in the manner set out in the preceding question?’ |
Decision | 1. Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, and in particular Articles 1 and 2c thereof, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it does not preclude a national law, such as that at issue in the main proceedings, which provides that actions against the decisions of contracting authorities to allow or exclude tenderers from participation in public procurement award procedures must be brought within 30 days from their communication to the parties concerned, failing which they will be time–barred, provided that decisions communicated contain a summary of the relevant reasons, ensuring that the persons concerned knew or ought to have known of the infringement of EU law alleged. 2. Directive 89/665, as amended by Directive 2014/23, and in particular Articles 1 and 2c thereof, read in the light of Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, which provides that, in the absence of an action against the decisions of contracting authorities allowing tenderers to participate in public procurement procedures within 30 days from the communication of those decisions, it is no longer possible for the persons concerned to plead the illegality of the decisions in an action against subsequent decisions and, in particular, against award decisions, subject to the proviso that such a time limit may be relied on only if the persons concerned knew or ought to have known from that notification of the illegality they allege. |
Case number | C–556/17 |
Case name | Torubarov |
Document | Judgment ECLI:EU:C:2019:626 |
Date | 29/07/2019 |
Source of the question referred for a preliminary ruling | Pécsi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Pécs, Hungary) |
Name of the parties | Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal |
Subject matter | Area of freedom, security and justice; asylum policy; border control; refusal of an application for international protection |
Key words | Torubary – Common policy on asylum and subsidiary protection – Common procedures for granting international protection – Full and ex nunc examination – Charter of Fundamental Rights of the European Union – Right to an effective remedy – Extent of the powers of the first–instance court or tribunal – No power to vary – Refusal by the competent administrative or quasi–judicial body to comply with a decision of that court or tribunal |
Question referred for a preliminary ruling | ‘Is Article 46(3) of [Directive 2013/32], in conjunction with Article 47 of [the Charter], to be interpreted as meaning that the Hungarian courts have the power to vary administrative decisions of the competent asylum authority refusing international protection, and also to grant such protection?’ |
Decision | Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances, such as those at issue in the main proceedings, where a first–instance court or tribunal has found – after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection – that, under the criteria laid down by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third–country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted, that applicant must be granted such protection on the ground that he or she relied on in support of his or her application, but after which the administrative or quasi–judicial body adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court or tribunal must vary that decision which does not comply with its previous judgment and substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way. |
Case number | C–396/17 |
Case name | Leitner |
Document | Judgment ECLI:EU:C:2019:375 |
Date | 08/05/2019 |
Source of the question referred for a preliminary ruling | Bundesverwaltungsgericht (Federal Administrative Court, Austria) |
Name of the parties | Martin Leitner v Landespolizeidirektion Tirol |
Subject matter | Employment and social policy; age discrimination; promotion and grading |
Key words | Leitner – Social policy – Prohibition of all discrimination on grounds of age – Directive 2000/78/EC – Exclusion of professional experience acquired before the age of 18 – New system of remuneration and advancement – Maintaining a difference in treatment – Right to an effective remedy – Justifications |
Question referred for a preliminary ruling | ‘(1) Is EU law, in particular Articles 1, 2 and 6 of [Directive 2000/78], in conjunction with Article 21 of the [Charter], to be interpreted as precluding national legislation that, for the purpose of eliminating discrimination against currently employed civil servants, establishes a transitional rule under which, on the basis of a ‘transition amount’, which is indeed calculated in money, but nevertheless corresponds to a certain grading that can be specifically allocated, the reclassification is effected from the previous biennial system to a new biennial system (that in and of itself is non–discriminatory for newly hired civil servants), such that age discrimination against currently employed civil servants still continues? (2) Is EU law, in particular Article 17 of [Directive 2000/78] and Article 47 of the [Charter], to be interpreted as precluding national legislation that prevents currently employed civil servants from having –– in accordance with the interpretation of Articles 9 and 16 of [that directive] in the judgment of 11 November 2014, Schmitzer (C‑530/13, EU:C:2014:2359) –– their remuneration status determined, in reliance on Article 2 of Directive 2000/78, as at the time prior to transition to the new system, in that it declares that the corresponding legal bases are no longer applicable retroactively to the date on which its historical original law entered into force and, in particular, that previous service periods completed before the age of 18 may not be accredited? (3) If Question 2 is answered in the affirmative: Does the principle of primacy of EU law, affirmed, inter alia, in the judgment of the Court of Justice of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709) require that provisions applicable to currently employed civil servants at the time prior to transition, which have been retroactively repealed, must continue to be applied so that those civil servants can be retroactively classified in the old system in a non–discriminatory manner and are thus reclassified in the new remuneration system in a non–discriminatory manner? (4) Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78, in conjunction with Articles 21 and 47 of the Charter, to be interpreted as precluding national legislation that eliminates existing age discrimination (with respect to the accreditation of previous service periods completed before the age of 18) in a merely declaratory manner by specifying that the periods actually completed under conditions of discrimination are retroactively to be considered no longer discriminatory even though discrimination in fact still continues?’ |
Decision | 1. Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, read in conjunction with Article 21 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which entered into force retroactively, and which, for the purpose of putting a stop to discrimination on grounds of age, provides for the transfer of currently employed civil servants to a new remuneration and advancement system under which the initial classification of those civil servants is determined on the basis of the last salary they received under the previous system. 2. Article 47 of the Charter of Fundamental Rights of the European Union and Article 9 of Directive 2000/78 must be interpreted as precluding national legislation which, in a situation such as that at issue in the main proceedings, reduces the scope of the review which national courts are entitled to conduct, by excluding questions concerning the basis of the ‘transition amount’ calculated according to the rules of the previous remuneration and advancement system. 3. In a situation where national provisions cannot be interpreted in a manner which is consistent with Directive 2000/78, the national court is obliged, within the scope of its powers, to guarantee the legal protection conferred on individuals by that directive and to guarantee that that protection is fully effective, by disapplying, if need be, any contrary provision of national law. EU law must be interpreted as meaning that where there has been a finding of discrimination which is contrary to EU law, and for as long as measures reinstating equal treatment have not been adopted, the reinstatement of equal treatment, in a case such as that at issue in the main proceedings, involves granting civil servants disadvantaged by the previous remuneration and advancement system the same benefits as those enjoyed by the civil servants treated more favourably by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the pay scale and, accordingly, the award of financial compensation to those civil servants discriminated against in the sum of the difference between the amount of remuneration that the civil servant concerned ought to have received had he not been treated in a discriminatory manner and the remuneration which he in fact received. |
Case number | C–300/17 |
Case name | Hochtief |
Document | Judgment ECLI:EU:C:2018:635 |
Date | 07/08/2018 |
Source of the question referred for a preliminary ruling | Kúria (Supreme Court, Hungary) |
Name of the parties | Hochtief AG v Budapest Főváros Önkormányzata |
Subject matter | Public procurement; damages action |
Key words | Hochtief – Public procurement – Review procedures – Action for damages – National rules making the admissibility of any action for damages subject to a prior and definitive determination of the illegality of the decision of the contracting authority giving rise to the damage alleged – Actions for annulment – Prior action before an arbitration committee – Judicial review of arbitral decisions – National rules excluding pleas not raised before the arbitration committee – Charter of Fundamental Rights of the European Union – Right to effective judicial protection – Principles of effectiveness and equivalence |
Question referred for a preliminary ruling | ‘(1) Does EU law preclude a procedural provision of a Member State which makes the possibility of asserting any civil right of action resulting from an infringement of a public procurement provision conditional on a final declaration by [an arbitration committee] or a court (hearing an appeal against a decision of the [arbitration committee]) that the provision has been infringed?
(2) Can a provision of national law providing, as a precondition for being able to assert a claim for compensation, that [an arbitration committee] or a court (hearing an appeal against a decision of the [arbitration committee]) must have made a final declaration that a provision has been infringed be replaced by another provision taking account of EU law or, in other words, can the injured party prove the infringement of the provision by other means? (3) In an action seeking compensation, is a procedural provision of a Member State which allows judicial proceedings to be brought against an administrative decision only on the basis of the legal arguments submitted in proceedings before the public procurement arbitration committee – and the injured party can rely, as a ground for the alleged infringement, on the unlawfulness, in accordance with the case–law of the Court of Justice, of his exclusion on the basis of a conflict of interest only in a manner which, in accordance with the actual rules of the negotiated procedure for the award of a public contract, would result in his exclusion from the contract award procedure for another reason, as there has been a change in his application – contrary to EU law and, in particular, to the principles of effectiveness and equivalence, or capable of having an effect which runs counter to that law or those principles?’ |
Decision | 1. Article 2(6) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, must be interpreted as not precluding a national procedural rule, such as that at issue in the main proceedings, which makes the possibility of asserting a claim under civil law in the event of an infringement of the rules governing public procurement and the award of public contracts subject to the condition that the infringement be definitively established by an arbitration committee or, in the context of judicial review of an decision of that arbitration committee, by a court. 2. European Union law, and in particular Article 1(1) and (3) of Directive 89/665, as amended by Directive 2014/23, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in the context of an action for damages, it does not preclude a national procedural rule, such as that at issue in the main proceedings, which restricts the judicial review of arbitral decisions issued by an arbitration committee responsible at first instance for the review of decisions taken by contracting authorities in public procurement procedures to examine only the pleas raised before that committee. |
Case number | C–180/17 |
Case name | Staatssecretaris van Veiligheid en Justitie (suspensory effect of the appeal) |
Document | Judgment ECLI:EU:C:2018:775 |
Date | 26/09/2018 |
Source of the question referred for a preliminary ruling | Raad van State (Council of State, Netherlands) |
Name of the parties | X and Y v Staatssecretaris van Veiligheid en Justitie |
Subject matter | Area of freedom, security and justice; asylum policy; border control; suspensive effect of an appeal; refusal of an application for international protection |
Key words | X and Y – Common policy on asylum and subsidiary protection – Charter of Fundamental Rights of the European Union – Right to an effective remedy – Principle of non–refoulement – Decision rejecting an application for international protection and imposing an obligation to return – National legislation providing for a second level of jurisdiction – Automatic suspensory effect limited to the action at first instance |
Question referred for a preliminary ruling | ‘(1) Must Article 13 of Directive 2008/115, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of Directive 2008/115, the legal remedy of an appeal has automatic suspensory effect where the third–country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non–refoulement? In other words, in such a case, should the expulsion of the third–country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third–country national concerned being required to submit a separate request to that effect? (2) Must Article 46 of Directive 2013/32, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for the granting of international protection, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of an applicant be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the applicant concerned being required to submit a separate request to that effect? (3) In order for there to be such automatic suspensory effect, is it still relevant whether the application for international protection which prompted the procedures of bringing an action in law and a subsequent appeal has been rejected on one of the grounds mentioned in Article 46(6) of Directive 2013/32? Alternatively, does that requirement apply for all categories of asylum decisions as set out in that directive?’ |
Decision | Article 46 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection and Article 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in the light of Articles 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non–refoulement. |
Case number | C–175/17 |
Case name | Belastingdienst v Toeslagen (suspensory effect of the appeal) |
Document | Judgment ECLI:EU:C:2018:776 |
Date | 26/09/2018 |
Source of the question referred for a preliminary ruling | Raad van State (Council of State, Netherlands) |
Name of the parties | X v Belastingdienst/Toeslagen |
Subject matter | Area of freedom, security and justice; asylum policy; border control; suspensive effect of an appeal; reimbursement of subsidies for rent and health care |
Key words | X – Common policy on asylum and subsidiary protection – Charter of Fundamental Rights of the European Union – Right to an effective remedy – Principle of non–refoulement – Decision rejecting an application for asylum and imposing an obligation to return – National legislation providing for a second level of jurisdiction – Automatic suspensory effect limited to the action at first instance |
Question referred for a preliminary ruling | ‘(1) Must Article 13 of Directive 2008/115 …, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of that directive, the legal remedy of an appeal has automatic suspensory effect where the third–country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non–refoulement? In other words, in such a case, should the expulsion of the third–country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third–country national concerned being required to submit a separate request to that effect? (2) Must Article 39 of Directive 2005/85 …, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for asylum within the meaning of Article 2 of that directive, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of the asylum–seeker concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the asylum–seeker concerned being required to submit a separate request to that effect?’ |
Decision | Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and Article 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in the light of Articles 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non–refoulement. |
Case number | C–118/17 |
Case name | Dunai |
Document | Judgment ECLI:EU:C:2019:207 |
Date | 14/03/2019 |
Source of the question referred for a preliminary ruling | Budai Központi Kerületi Bíróság (Central District Court, Buda, Hungary) |
Name of the parties | Zsuzsanna Dunai v ERSTE Bank Hungary Zrt |
Subject matter | Consumer protection; exchange rate; unfair terms |
Key words | Dunai – Consumer protection – Unfair terms in consumer contracts – Loan contract denominated in a foreign currency – Exchange difference – Substitution of a legislative provision for an unfair term declared void – Exchange rate risk – Continued existence of the contract after the unfair term has been deleted – National system for a uniform interpretation of law |
Question referred for a preliminary ruling | ‘(1) Should point 3 [of the operative part] of the judgment [of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282),] be interpreted as meaning that a national court may remedy the fact that a term of a contract concluded between a seller or supplier and a consumer is invalid where the continuation of the contract is contrary to the economic interests of the consumer? (2) Is it consistent with the powers conferred on the European Union in order to ensure a high level of consumer protection and with the fundamental EU principles of equality before the law, non–discrimination, the right to an effective judicial remedy and the right to fair legal process, for the parliament of a Member State to alter, by the adoption of an act, private law contracts in similar categories concluded between a seller or supplier and a consumer? (3) If the answer to the previous question is in the affirmative, is it consistent with the powers conferred on the European Union in order to ensure a high level of consumer protection and with the fundamental EU principles of equality before the law, non–discrimination, the right to an effective judicial remedy and the right to fair legal process, for the parliament of a Member State to alter, by the adoption of an act, various parts of loan contracts denominated in a foreign currency, supposedly for consumer protection purposes but triggering an effect which is in fact contrary to the fair interests of consumer protection, in that the loan contract remains valid following those alterations and the consumer is required to continue to bear the costs resulting from the foreign exchange risk? (4) With regard to the content of contracts concluded between a seller or supplier and a consumer, is it consistent with the powers conferred on the European Union in order to ensure a high level of consumer protection and with the fundamental EU principles of the right to an effective judicial remedy and the right to fair legal process in respect of any civil law matter for the standardisation panel of the highest court of a Member State to direct the rulings of courts hearing such proceedings by means of ‘decisions adopted with a view to ensuring uniform interpretation of the law’? (5) If the answer to the previous question is in the affirmative, is it consistent with the powers conferred on the European Union in order to ensure a high level of consumer protection and with the fundamental EU principles of the right to an effective judicial remedy and the right to fair legal process in respect of any civil law matter for the standardisation panel of the highest court of a Member State to direct the rulings of courts hearing such proceedings by means of ‘decisions adopted with a view to ensuring uniform interpretation of the law’ where the appointment of judges as members of the standardisation panel is not carried out transparently, in accordance with predetermined rules, where the procedure before that panel is not public, and where it is not possible to know a posteriori the procedure followed, namely the expert evidence and academic works relied on and the way in which the various members have voted (for or against)?’ |
Decision | 1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that: – it does not preclude national legislation which prevents the court seised of the case from granting an application for the cancellation of a loan contract on the basis of the unfair nature of a term relating to the exchange difference, such as that at issue in the main proceedings, provided that a finding that terms in such an agreement were unfair would restore the legal and factual situation that the consumer would have been in had that unfair term not existed; and – it precludes national legislation which prevents, in circumstances such as those at issue in the main proceedings, the court seised of the case from granting an application for the cancellation of a loan contract on the basis of the unfair nature of a term relating to exchange rate risk where it is found that that term is unfair and that the contract cannot continue to exist without that term. 2. Directive 93/13, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, does not preclude a supreme court of a Member State from adopting, in the interest of ensuring uniform interpretation of the law, binding decisions concerning the modalities for implementing that directive, in so far as those decisions do not prevent the competent court from ensuring the full effect of the norms laid down in that directive and from offering consumers an effective remedy for the protection of the rights that they can derive therefrom, or from referring a question for a preliminary ruling to the Court in that regard, which it is for the referring court to determine. |
Case number | C–34/17 |
Case name | Donnellan |
Document | Judgment ECLI:EU:C:2018:282 |
Date | 26/04/2018 |
Source of the question referred for a preliminary ruling | High Court (Ireland) |
Name of the parties | Eamonn Donnellan v The Revenue Commissioners |
Subject matter | Free movement of capital; recovery of claims |
Key words | Donnellan – Reference for a preliminary ruling – Mutual assistance for the recovery of claims – Right to an effective remedy – Charter of Fundamental Rights of the European Union – Possibility for the requested authority to refuse recovery assistance on the basis that the claim was not duly notified |
Question referred for a preliminary ruling | ‘Is the High Court of Ireland precluded by Article 14(1) and (2) of Directive 2010/24 when determining the enforceability in Ireland of a ‘uniform instrument permitting enforcement’ issued on 14 November 2012 by the customs office of Patras for administrative penalties and fines in the sum of EUR 1 097 505 imposed on 15 July 2009 for alleged smuggling on 26 July 2002 [increased to EUR 1 507 971.88 by virtue of interest and penalties] from: – applying the right to an effective remedy and to a fair trial within a reasonable time for a citizen of Ireland and of the European Union in relation to the enforcement request [Article 47 of the Charter and Articles 6 and 13 of the ECHR, which correspond with rights for citizens under Articles 34, 38 and 40.3 of the Irish Constitution, in circumstances where the procedure involved was only first explained to [the person concerned] in a ‘non–official translation’ to English … in a letter dated [29 December 2015] from the Ministry of Finance of the Hellenic Republic … to the Irish Revenue and the solicitors in Ireland for [the person concerned]]; – taking account of the objectives of Directive 2010/24 to provide mutual assistance (recital 20 of Directive 2010/24) and to abide by the obligation to provide wider assistance ensuing from the ECHR (recital 17 of Directive 2010/24) such as the right to an effective remedy for citizens under Article 47 of the Charter and Article 13 of the ECHR; – considering the full effectiveness of EU law for its citizens [having regard, in particular, to paragraph 63 of the judgment of 14 January 2010, Kyrian, C‑233/08, [EU:C:2010:11]]?’ |
Decision | Article 14(1) and (2) of Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding an authority of a Member State from refusing to enforce a request for recovery concerning a claim relating to a fine imposed in another Member State, such as that at issue in the main proceedings, on the ground that the decision imposing that fine was not properly notified to the person concerned before the request for recovery was made to that authority pursuant to that directive. |
Case number | C–585/16 |
Case name | Alheto |
Document | Judgment ECLI:EU:C:2018:584 |
Date | 25/07/2018 |
Source of the question referred for a preliminary ruling | Administrativen sad Sofia–grad (Sofia Administrative Court, Bulgaria) |
Name of the parties | Serin Alheto v Zamestnik–predsedatel na Darzhavna agentsia za bezhantsite |
Subject matter | Area of freedom, security and justice; asylum policy; refusal of an application for international protection |
Key words | Alheto – Common policy on asylum and subsidiary protection – Standards for the qualification of third–country nationals or stateless persons as beneficiaries of international protection – Exclusion from refugee status – Persons registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) – Existence of a ‘first country of asylum’, for a refugee from Palestine, in the UNRWA area of operations – Common procedures for granting international protection – Right to an effective remedy – Full and ex nunc examination – Scope of the powers of the court of first instance – Examination by the courts of international protection needs – Examination of grounds of inadmissibility |
Question referred for a preliminary ruling | ‘(1) Does it follow from Article 12(1)(a) of Directive 2011/95, read in conjunction with Article 10(2) of Directive 2013/32 and Article 78(2)(a) of the Treaty on the Functioning of the European Union, that: (a) it is permissible for an application for international protection made by a stateless person of Palestinian origin who is registered as a refugee with [UNRWA] and who, before making that application, was resident in that agency’s area of operations (the Gaza Strip) to be examined as an application under Article 1(A) of the [Geneva Convention] rather than as an application for international protection under the second [paragraph] of Article 1(D) of that convention, where responsibility for examining the application has been assumed on grounds other than compassionate or humanitarian grounds and the examination of the application is governed by Directive 2011/95; (b) it is permissible for such an application to be examined without taking into account the conditions laid down in Article 12(1)(a) of Directive 2011/95, with the result that the interpretation of that provision by the Court of Justice … is not applied? (2) Is Article 12(1)(a) of Directive 2011/95, read in conjunction with Article 5 thereof, to be interpreted as precluding provisions of national law such as Article 12(1)(4) of the ZUB, at issue in the main proceedings, which, in the version currently in force, does not contain any express clause on ipso facto protection for Palestinian refugees and does not lay down the condition that the assistance must have ceased for some reason, and as meaning that Article 12(1)(a) of Directive 2011/95, being sufficiently precise and unconditional and therefore directly effective, is applicable even if the person seeking international protection does not expressly rely on it, where the application is of a kind that must be examined in accordance with the second sentence of Article 1(D) of the Geneva Convention relating to the Status of Refugees? (3) Does it follow from Article 46(3) of Directive 2013/32, read in conjunction with Article 12(1)(a) of Directive 2011/95, that, in an appeal before a court or tribunal against a decision refusing international protection adopted in accordance with Article 10(2) of Directive 2013/32, it is permissible, taking into account the facts in the main proceedings, for the court or tribunal of first instance to treat the application for international protection as an application under the second sentence of Article 1(D) of the Geneva Convention relating to the Status of Refugees and to carry out the assessment provided for in Article 12(1)(a) of Directive 2011/95 where the application for international protection has been made by a stateless person of Palestinian origin who is registered as a refugee with the UNRWA and who, before making that application, was resident within that agency’s area of operations (the Gaza Strip) and where, in the decision refusing international protection, that application was not examined in the light of the abovementioned provisions? (4) Does it follow from the provisions of Article 46(3) of Directive 2013/32, concerning the right to an effective remedy incorporating the requirement of a ‘full and ex nunc examination of both facts and points of law’, interpreted in conjunction with Article 33, Article 34 and the second paragraph of Article 35 of that directive, Article 21(1) of Directive 2011/95 and Articles 18, 19 and 47 of the [Charter], that, in an appeal before a court or tribunal against a decision refusing international protection adopted in accordance with Article 10(2) of Directive 2013/32, those provisions permit the court or tribunal of first instance: (a) to decide for the first time on the admissibility of the application for international protection and on the refoulement of the stateless person to the country in which he or she was resident before making the application for international protection, after requiring the determining authority to produce the evidence necessary for that purpose and after giving the person in question the opportunity to present his or her views on the admissibility of the application; or (b) to annul the decision for breach of an essential procedural requirement and to require the determining authority, following directions on the interpretation and application of the law, to re–examine the application for international protection, inter alia, by conducting the admissibility interview provided for in Article 34 of Directive 2013/32 and deciding whether it is possible to return the stateless person to the country in which he or she was resident before making the application for international protection; (c) to assess the security status of the country in which the person had been resident, at the time of the hearing or, where there have been fundamental changes in the situation that must be taken into account in the person’s favour in the decision to be taken, at the time when judgment is given? (5) Does the assistance provided by [UNRWA] constitute ‘sufficient protection’ otherwise enjoyed, within the meaning of point (b) of the first paragraph of Article 35 of Directive 2013/32, in the relevant country within the agency’s area of operations where that country applies the principle of non–refoulement, within the meaning of the 1951 Geneva Convention …, to persons assisted by the agency? (6) Does it follow from Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, that the right to an effective remedy incorporating the requirement, ‘where applicable, [for] an examination of the international protection needs pursuant to Directive 2011/95’ compels the court or tribunal of first instance, in an appeal against a decision examining the substance of an application for international protection and refusing to grant such protection, to give a judgment: (a) which has the force of res judicata in relation not only to the question of the lawfulness of the refusal but also to the applicant’s need for international protection pursuant to Directive 2011/95, including in cases where, under the national law of the Member State concerned, international protection may be granted only by decision of an administrative authority; (b) on the necessity of granting international protection, by carrying out a proper examination of the application for international protection, irrespective of any breaches of procedural requirements committed by the determining authority when assessing the application?’ |
Decision | 1. Article 12(1)(a) of Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third–country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, read in conjunction with Article 10(2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that the processing of an application for international protection lodged by a person registered with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) requires an examination of the question whether that person receives effective protection or assistance from that agency, provided that that application has not been previously rejected on the basis of a ground of inadmissibility or on the basis of a ground for exclusion other than that laid down in the first sentence of Article 12(1)(a) of Directive 2011/95. 2. The second sentence of Article 12(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and the second sentence of Article 12(1)(a) of Directive 2011/95 must be interpreted as: – precluding national legislation which does not lay down or which incorrectly transposes the ground for no longer applying the ground for exclusion from being a refugee contained therein; – having direct effect; and – being applicable even if the applicant for international protection has not expressly referred to them. 3. Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a court or tribunal of a Member State seised at first instance of an appeal against a decision relating to an application for international protection must examine both facts and points of law, such as the applicability of Article 12(1)(a) of Directive 2011/95 to the applicant’s circumstances, which the body that took that decision took into account or could have taken into account, and those which arose after the adoption of that decision. 4. Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that the requirement for a full and ex nunc examination of the facts and points of law may also concern the grounds of inadmissibility of the application for international protection referred to in Article 33(2) of that directive, where permitted under national law, and that, in the event that the court or tribunal hearing the appeal plans to examine a ground of inadmissibility which has not been examined by the determining authority, it must conduct a hearing of the applicant in order to allow that individual to express his or her point of view in person concerning the applicability of that ground to his or her particular circumstances. 5. Point (b) of the first paragraph of Article 35 of Directive 2013/32 must be interpreted as meaning that a person registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) must, if he or she is a beneficiary of effective protection or assistance from that agency in a third country that is not the territory in which he or she habitually resides but which forms part of the area of operations of that agency, be considered as enjoying sufficient protection in that third country, within the meaning of that provision, when it: – agrees to readmit the person concerned after he or she has left its territory in order to apply for international protection in the European Union; and – recognises that protection or assistance from UNRWA and supports the principle of non–refoulement, thus enabling the person concerned to stay in its territory in safety under dignified living conditions for as long as necessary in view of the risks in the territory of habitual residence. 6. Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that it does not establish common procedural standards in respect of the power to adopt a new decision concerning an application for international protection following the annulment, by the court hearing the appeal, of the initial decision taken on that application. However, the need to ensure that Article 46(3) of that directive has a practical effect and to ensure an effective remedy in accordance with Article 47 of the Charter of Fundamental Rights requires that, in the event that the file is referred back to the quasi–judicial or administrative body referred to in Article 2(f) of that directive, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision. |
Case number | C–557/16 |
Case name | Astellas Pharma |
Document | Judgment ECLI:EU:C:2018:181 |
Date | 14/03/2018 |
Source of the question referred for a preliminary ruling | Korkein hallinto–oikeus (Supreme Administrative Court, Finland) |
Name of the parties | Request by Astellas Pharma GmbH joined parties: Helm AG, Lääkealan turvallisuus– ja kehittämiskeskus (Fimea), |
Subject matter | Public health; medicinal products for human use |
Key words | Astellas Pharma –Medicinal products for human use – Decentralised procedure for marketing authorisation for a medicinal product – Generic medicinal product – Data exclusivity period for the reference medicinal product – Power of the competent authorities of the Member States concerned to determine the point in time from which the exclusivity period starts to run – Jurisdiction of the courts of the Member States concerned to review the determination of the point in time from which the exclusivity period starts to run – Effective judicial protection – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Are Articles 28(5) and 29(1) of Directive 2001/83 … to be interpreted as meaning that the competent authorities of the concerned Member State in the decentralised procedure for [MAs] for generic medicinal products in accordance with Article 28(3) of that directive are not themselves competent when issuing a national marketing authorisation to determine the time from which the data exclusivity period for the reference medicinal product begins to run? (2) If the answer to the first question is that, when issuing a national marketing authorisation, the competent authorities of a Member State are not competent to determine the time from which the period of data exclusivity of the reference medicinal product starts to run: – is the court of that Member State when dealing with an appeal by the holder of the [MA] for the reference medicinal product required to determine the time from which the period of data exclusivity starts to run, or is it subject to the same limit as the national authorities of that Member State? – In those circumstances, how is the national court to give effect to the right of the holder of the [MA] of the reference medicinal product under Article 47 of the Charter of Fundamental Rights of the European Union and Article 10 of Directive 2001/83 to effective legal protection with regard to data exclusivity? – Does the claim for effective legal protection require the national court to examine whether the original marketing authorisation granted in another Member State was issued in accordance with the rules laid down by Directive 2001/83?’ |
Decision | 1. Article 28 and Article 29(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2012/26/EU of the European Parliament and of the Council of 25 October 2012, must be interpreted as meaning that, in a decentralised marketing–authorisation procedure for a generic medicinal product, the competent authority of a Member State concerned by that procedure cannot itself determine the point in time from which the data exclusivity period for the reference medicinal product starts to run when adopting, under Article 28(5) of that directive, its decision on the placing on the market of that generic medicinal product in that Member State. 2. Article 10 of Directive 2001/83, as amended by Directive 2012/26, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a court of a Member State involved in a decentralised procedure for marketing authorisations, hearing an action brought by the holder of the marketing authorisation for the reference medicinal product against the marketing–authorisation decision for a generic medicinal product in that Member State taken by its competent authority, has jurisdiction to review the determination of the point in time from which the data exclusivity period for the reference medicinal product starts to run. By contrast, that court does not have jurisdiction to review whether the initial marketing authorisation for the reference medicinal product granted in another Member State was granted in accordance with that directive. |
Case number | C–414/16 |
Case name | Egenberger |
Document | Judgment ECLI:EU:C:2018:257 |
Date | 17/4/2018 |
Source of the question referred for a preliminary ruling | Bundesarbeitsgericht (Federal Labour Court, Germany) |
Name of the parties | Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV |
Subject matter | Employment and social policy; discrimination claims |
Key words | Egenberger – Equal treatment – Difference of treatment on grounds of religion or belief – Occupational activities within churches and other organisations the ethos of which is based on religion or belief – Religion or belief constituting a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos – Nature and context of the activities |
Question referred for a preliminary ruling | ‘(1) Is Article 4(2) of Directive [2000/78] to be interpreted as meaning that an employer, such as the defendant in the present case, or the church on its behalf, may itself authoritatively determine whether a particular religion of an applicant, by reason of the nature of the activities or of the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement, having regard to the employer or church’s ethos? (2) If the answer to Question 1 is in the negative: In a case such as the present, is it necessary to disapply a provision of national law – such as, in this case, the first alternative of Paragraph 9(1) of the AGG – which provides that a difference of treatment on the ground of religion in the context of employment with religious bodies and the organisations affiliated to them is also lawful where a particular religion, in accordance with the self–perception of the religious community, having regard to its right of self–determination, constitutes a justified occupational requirement? (3) If the answer to Question 1 is in the negative: What requirements are there as regards the nature of the activity or the context in which it is carried out, as genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Article 4(2) of Directive [2000/78]?’ |
Decision | (1) Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in conjunction with Articles 9 and 10 of the directive and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, where a church or other organisation whose ethos is based on religion or belief asserts, in support of an act or decision such as the rejection of an application for employment with it, that by reason of the nature of the activities concerned or the context in which the activities are to be carried out, religion constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the church or organisation, it must be possible for such an assertion to be the subject, if need be, of effective judicial review by which it can be ensured that the criteria set out in Article 4(2) of that directive are satisfied in the particular case. (2) Article 4(2) of Directive 2000/78 must be interpreted as meaning that the genuine, legitimate and justified occupational requirement it refers to is a requirement that is necessary and objectively dictated, having regard to the ethos of the church or organisation concerned, by the nature of the occupational activity concerned or the circumstances in which it is carried out, and cannot cover considerations which have no connection with that ethos or with the right of autonomy of the church or organisation. That requirement must comply with the principle of proportionality. (3) A national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in conformity with Article 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from Articles 21 and 47 of the Charter of Fundamental Rights of the European Union and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law. |
Case number | C–403/16 |
Case name | El Hassani |
Document | Judgment ECLI:EU:C:2017:960 |
Date | 13/12/2017 |
Source of the question referred for a preliminary ruling | Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) |
Name of the parties | Soufiane El Hassani v Minister Spraw Zagranicznych |
Subject matter | Area of freedom, security and justice; asylum policy; border control; visas |
Key words | El Hassani – Area of freedom, security and justice – Community Visa Code – Decision to refuse a visa – Right of the applicant to bring an appeal against that decision – Obligation of a Member State to guarantee the right to a judicial appeal |
Question referred for a preliminary ruling | ‘Must Article 32(3) of the Visa Code, having regard to recital 29 thereof and the first paragraph of Article 47 of the Charter, be interpreted as requiring the Member States to guarantee an effective remedy (appeal) before a court of law?’ |
Decision | Article 32(3) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it requires Member States to provide for an appeal procedure against decisions refusing visas, the procedural rules for which are a matter for the legal order of each Member State in accordance with the principles of equivalence and effectiveness. Those proceedings must, at a certain stage of the proceedings, guarantee a judicial appeal. |
Case number | C–360/16 |
Case name | Hasan |
Document | Judgment ECLI:EU:C:2018:35 |
Date | 25/01/2018 |
Source of the question referred for a preliminary ruling | Bundesverwaltungsgericht (Federal Administrative Court, Germany) |
Name of the parties | Bundesrepublik Deutschland v Azizu Hasanu |
Subject matter | Area of freedom, security and justice; asylum policy; refusal of asylum applications |
Key words | Hasan – Determination of the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national –– Procedures and periods laid down for making a take back request –– Unlawful return of a third–country national to a Member State that has transferred him – Take back procedure –– Remedy – Scope of judicial review – Circumstances after the transfer |
Question referred for a preliminary ruling | ‘(1) In a case where a third–country national, after lodging a second asylum application in another Member State (here, Germany), was transferred to the Member State having original responsibility for the first asylum application (here, Italy) because of a court’s rejection of his application for suspension of the transfer decision under [the Dublin III Regulation] and then immediately returned illegally to the second Member State (here, Germany): (a) According to the principles of the Dublin III Regulation, is the factual situation that is relevant for a court’s review of a transfer decision the situation that pertained at the time of the transfer, because responsibility was definitively determined by transfer within the time limit and therefore the rules in the Dublin III Regulation concerning responsibility are no longer applicable to further developments, or is it necessary to take into consideration subsequent developments in the circumstances relevant to responsibility in general, for example, expiry of time limits for a take back or (renewed) transfer? (b) Following determination of responsibility on the basis of the transfer decision, can further transfers be made to the Member State having original responsibility, and does that Member State remain obligated to take charge of the third–country national? (2) If responsibility is not definitively determined by the transfer: Which of the provisions listed below applies in such a case to a person described in Article 18(1)(b), (c), or (d) of the Dublin III Regulation on account of an ongoing appeal against the already enforced transfer decision: (a) Article 23 of the Dublin III Regulation (analogously), with the result that, in the case of a new take back request that is not submitted within the time limit, responsibility can shift in accordance with Article 23(2) and (3) of the Dublin III Regulation, or (b) Article 24 of the Dublin III Regulation (analogously), or (c) neither of the provisions set forth in (a) and (b)? (3) In the event that neither Article 23 nor Article 24 applies (analogously) to such a person (question 2(c)): Can further transfers be made to the Member State having original responsibility (here, Italy) on the basis of the challenged transfer decision until conclusion of the appeal against such decision, and does that Member State remain obligated to take charge of the third–country national, irrespective of whether further take back requests have been submitted without complying with the time limits in Article 23(3) or Article 24(2) of the Dublin III Regulation and irrespective of the transfer time limits in Article 29(1) and (2) [of that] regulation? (4) In the event that Article 23 of the Dublin III Regulation applies (analogously) to such a person (question 2(a)): Is the new take back request tied (analogously) to a new time limit under Article 23(2) of the Dublin III Regulation? If so: Does this new time limit start to run when the responsible authority learns of re–entry, or does another event determine its commencement? (5) In the event that Article 24 of the Dublin III Regulation applies (analogously) to such a person (question 2(b)): (a) Is the submission of a new take back request tied (analogously) to a new time limit under Article 24(2) of the Dublin III Regulation? If so: Does this new time limit start to run when the responsible authority learns of re–entry, or does another event determine its commencement? (b) If the other Member State (here, Germany) allows a time limit to expire that is required to be complied with (analogously) under Article 24(2) of the Dublin III Regulation: Does the lodging of a new asylum application pursuant to Article 24(3) of that regulation directly establish the responsibility of the other Member State (here, Germany), or may it, despite the new asylum application, submit a new take back request to the Member State having original responsibility (here, Italy) without being bound by a time limit, or transfer the foreign national to that Member State without submitting a take back request? (c) If the other Member State (here, Germany) allows a time limit to expire that is required to be complied with (analogously) under Article 24(2) of the Dublin III Regulation: Is the lis pendens of an asylum application lodged in the other Member State (here, Germany) prior to transfer equivalent to the lodging of a new asylum application pursuant to Article 24(3) of the Dublin III Regulation? (d) If the other Member State (here, Germany) allows a time limit to expire that is required to be complied with (analogously) under Article 24(2) of the Dublin III Regulation and the foreign national neither lodges a new asylum application and the lis pendens of an asylum application lodged in the other Member State (here, Germany) prior to transfer is not equivalent to the lodging of a new asylum application pursuant to Article 24(3) of the Dublin III Regulation: Can the other Member State (here, Germany) submit a new take back request to the Member State having original responsibility (here, Italy) without being bound by a time limit, or transfer the foreign national to that Member State without submitting a take back request?’ |
Decision | 1. Article 27(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national or a stateless person, read in the light of recital 19 of the regulation and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, which provides that the factual situation that is relevant for the review by a court or tribunal of a transfer decision is that obtaining at the time of the last hearing before the court or tribunal determining the matter or, where there is no hearing, at the time when that court or tribunal gives a decision on the matter. 2. Article 24 of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third–country national who, after having made an application for international protection in a first Member State (Member State ‘A’), was transferred to Member State ‘A’ as a result of the rejection of a fresh application lodged in a second Member State (Member State ‘B’) and has then returned, without a residence document, to Member State ‘B’, a take back procedure may be undertaken in respect of that third–country national and it is not possible to transfer that person anew to Member State ‘A’ without such a procedure being followed. 3. Article 24(2) of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third–country national has returned, without a residence document, to the territory of a Member State that has previously transferred him to another Member State, a take back request must be submitted within the periods prescribed in that provision and those periods may not begin to run until the requesting Member State has become aware that the person concerned has returned to its territory. 4. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where a take back request is not made within the periods laid down in Article 24(2) of that regulation, the Member State on whose territory the person concerned is staying without a residence document is responsible for examining the new application for international protection which that person must be permitted to lodge. 5. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that the fact that an appeal procedure brought against a decision that rejected a first application for international protection made in a Member State is still pending is not to be regarded as equivalent to the lodging of a new application for international protection in that Member State, as referred to in that provision. 6. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where the take back request is not made within the periods laid down in Article 24(2) of that regulation and the person concerned has not made use of the opportunity that he must be given to lodge a new application for international protection: – the Member State on whose territory that person is staying without a residence document can still make a take back request, and – that provision does not allow the person to be transferred to another Member State without such a request being made. |
Case number | C–358/16 |
Case name | UBS Europe and Others |
Document | Judgment ECLI:EU:C:2018:715 |
Date | 13/09/2018 |
Source of the question referred for a preliminary ruling | Cour administrative (Higher Administrative Court, Luxembourg) |
Name of the parties | UBS Europe SE and Alain Hondequin et consorts v DV and Others |
Subject matter | Free movement of capital; obligation of professional secrecy |
Key words | UBS Europe – Alain Hondequin – Approximation of laws – Scope of the obligation of professional secrecy on national financial supervisory authorities – Finding of the absence of good repute – Cases covered by criminal law – Charter of Fundamental Rights of the European Union – Rights of the defence – Access to the file |
Question referred for a preliminary ruling | ‘(1) Against the background in particular of Article 41 of the Charter enshrining the principle of good administration, does the exception of ‘cases covered by criminal law’ – found at the end of Article 54(1) of Directive 2004/39 and at the beginning of Article 54(3) – cover a situation concerning, according to national law, an administrative sanction, but considered from the point of view of the ECHR to be part of criminal law, such as the sanction at issue in the main proceedings, imposed by the national regulator, the national supervisory authority, and consisting in ordering a member of the national bar association to cease holding a post as director or any other post subject to accreditation in an entity supervised by that regulator and ordering him to resign from all his posts at the earliest opportunity? (2) Inasmuch as the aforementioned administrative sanction, regarded as such under national law, stems from administrative proceedings, to what extent is the obligation of professional secrecy, which a national supervisory authority may invoke under Article 54 of Directive 2004/39, subject to the requirements for a fair trial including an effective remedy as laid down in Article 47 of the Charter, examined in relation to the parallel requirements of Articles 6 and 13 ECHR relating to a fair trial and an effective remedy, [as well as] the safeguards provided for by Article 48 of the Charter, in particular as regards full access for the person on whom the administrative sanction has been imposed to the administrative file of the author of the sanction, which is also the national supervisory authority, for the purpose of protecting the interests and civil rights of the person on whom the sanction has been imposed?’ |
Decision | Article 54 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC must be interpreted as meaning that – the phrase ‘cases covered by criminal law’ in paragraphs 1 and 3 of that article does not cover the situation in which the authorities established by the Member States for the purpose of fulfilling the functions set out in that directive adopt a measure, such as that at issue in the main proceedings, consisting in prohibiting a person from holding a post as director or any other post subject to accreditation in an undertaking supervised by that regulator and ordering him to resign from all related posts at the earliest opportunity, on the ground that that person no longer fulfils the requirement of good repute provided for in Article 9 of that directive, which is part of the measures that the competent authorities are required to take when exercising the powers attributed to them under Title II of that directive. That provision, in providing that the obligation of professional secrecy may exceptionally be disregarded in such cases, covers the communication or use of confidential information for the purpose of conducting proceedings or imposing sanctions in accordance with national criminal law; – the obligation of professional secrecy provided for in paragraph 1 of that article, read in conjunction with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, must be guaranteed and implemented in such a way as to reconcile it with the rights of the defence. Accordingly, it is for the competent national court, when a competent authority invokes that obligation in order to refuse to disclose documents in its possession that are not in the file concerning the person who is the subject of a measure adversely affecting him, to ascertain whether that information is objectively connected to the complaints upheld against him and, if this should be the case, to weigh up the interest of the person in question in having access to the information necessary for him to be in a position to exercise fully his rights of defence and the interests in connection with maintaining the confidentiality of the information covered by the obligation of professional secrecy, before taking a decision whether to communicate each of the requested pieces of information. |
Case number | C–348/16 |
Case name | Sacko |
Document | Judgment ECLI:EU:C:2017:591 |
Date | 26/07/2017 |
Source of the question referred for a preliminary ruling | Tribunale di Milano (District Court, Milan, Italy) |
Name of the parties | Moussa Sacko v Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano |
Subject matter | Area of freedom, security and justice; asylum policy; border control; refusal of an application for international protection |
Key words | Sacko – Asylum policy – Charter of Fundamental Rights of the European Union – Right to effective judicial protection – Appeal against a decision refusing an application for international protection – Whether it is possible for the court to adjudicate without hearing the applicant |
Question referred for a preliminary ruling | ‘Must Directive 2013/32 (in particular Articles 12, 14, 31 and 46) be interpreted as permitting a procedure, such as the Italian procedure (under Article 19(9) of Legislative Decree No 150 of 2011), whereby a judicial authority seised by an asylum–seeker – whose application has been rejected by the administrative authority responsible for considering applications for asylum after it has conducted a full examination, including an interview – may, in cases where the application for judicial review is manifestly unfounded and the administrative authority’s rejection of the application is thus incontrovertible, dismiss the application for judicial review without preparatory inquiries and without being required to afford the applicant a further opportunity to be heard?’ |
Decision | Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, in particular Articles 12, 14, 31 and 46 thereof, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the national court or tribunal hearing an appeal against a decision rejecting a manifestly unfounded application for international protection from dismissing the appeal without hearing the applicant where the factual circumstances leave no doubt as to whether that decision was well founded, on condition that, first, during the proceedings at first instance, the applicant was given the opportunity of a personal interview on his or her application for international protection, in accordance with Article 14 of the directive, and the report or transcript of the interview, if an interview was conducted, was placed on the case–file, in accordance with Article 17(2) of the directive, and, second, the court hearing the appeal may order that a hearing be conducted if it considers it necessary for the purpose of ensuring that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of the directive. |
Case number | C–214/16 |
Case name | King |
Document | Judgment ECLI:EU:C:2017:914 |
Date | 29/11/2017 |
Source of the question referred for a preliminary ruling | Court of Appeal (England & Wales) (Civil Division) |
Name of the parties | Conley King v The Sash Window Workshop Ltd and Richardu Dollarju |
Subject matter | Employment and social policy; untaken annual leave |
Key words | King – Protection of the safety and health of workers – Organisation of working time – Allowance in lieu of annual leave paid on termination of the employment relationship – National legislation requiring a worker to take his annual leave without the remuneration in respect of that leave being established |
Question referred for a preliminary ruling | (1) If there is a dispute between a worker and employer as to whether the worker is entitled to annual leave with pay pursuant to Article 7 of Directive 2003/88, is it compatible with EU law, and in particular the principle of effective remedy, if the worker has to take leave first before being able to establish whether he is entitled to be paid? (2) If the worker does not take all or some of the annual leave to which he is entitled in the leave year when any right should be exercised, in circumstances where he would have done so but for the fact that the employer refuses to pay him for any period of leave he takes, can the worker claim that he is prevented from exercising his right to paid leave such that the right carries over until he has the opportunity to exercise it? (3) If the right carries over, does it do so indefinitely or is there a limited period for exercising the carried–over right by analogy with the limitations imposed where the worker is unable to exercise the right to leave in the relevant leave year because of sickness? (4) If there is no statutory or contractual provision specifying a carry–over period, is the court obliged to impose a limit to the carry–over period in order to ensure that the application of the national legislation on working time does not distort the purpose behind Article 7? (5) If the answer to the preceding question is yes, is a period of 18 months following the en |
Decision | 1. Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, and the right to an effective remedy set out in Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in the case of a dispute between a worker and his employer as to whether the worker is entitled to paid annual leave under the first of those articles, they preclude the worker having to take his leave first before establishing whether he has the right to be paid in respect of that leave. 2. Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave. |
Case number | C–201/16 |
Case name | Shiri |
Document | Judgment ECLI:EU:C:2017:805 |
Date | 25/10/2017 |
Source of the question referred for a preliminary ruling | Verwaltungsgerichtshof (Upper Administrative Court, Austria) |
Name of the parties | Majid Shiri |
Subject matter | Area of freedom, security and justice; asylum policy; border control; removal to Bulgaria |
Key words | Shiri – Determination of the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national – Remedy – Scope of the judicial review – Time limit for carrying out the transfer – No transfer within the time limit laid down – Obligations of the Member State responsible – Transfer of responsibility – Requirement for a decision of the Member State responsible |
Question referred for a preliminary ruling | ‘1. Are the provisions of [the Dublin III Regulation] that confer the right to an effective remedy against a transfer decision, in particular Article 27(1), to be interpreted as meaning that an applicant for asylum is entitled to claim that responsibility has been transferred to the requesting Member State on the ground that the six–month transfer period has expired (Article 29(2) in conjunction with Article 29(1) of [the Dublin III Regulation] in light of recital 19)? If the answer to Question 1 is in the affirmative: 2. Does the transfer of responsibility under the first sentence of Article 29(2) of [the Dublin III Regulation] occur by the fact of the expiry of the transfer period without any order or, for responsibility to be transferred because the period has expired, is it also necessary that the obligation to take charge of, or to take back, the person concerned has been refused by the responsible Member State?’ |
Decision | ‘1. Are the provisions of [the Dublin III Regulation] that confer the right to an effective remedy against a transfer decision, in particular Article 27(1), to be interpreted as meaning that an applicant for asylum is entitled to claim that responsibility has been transferred to the requesting Member State on the ground that the six–month transfer period has expired (Article 29(2) in conjunction with Article 29(1) of [the Dublin III Regulation] in light of recital 19)? If the answer to Question 1 is in the affirmative: 2. Does the transfer of responsibility under the first sentence of Article 29(2) of [the Dublin III Regulation] occur by the fact of the expiry of the transfer period without any order or, for responsibility to be transferred because the period has expired, is it also necessary that the obligation to take charge of, or to take back, the person concerned has been refused by the responsible Member State?’ |
Case number | C–181/16 |
Case name | Gnandi |
Document | Judgment ECLI:EU:C:2018:465 |
Date | 19/06/2018 |
Source of the question referred for a preliminary ruling | Conseil d’État (Council of State, Belgium) |
Name of the parties | Sadikou Gnandi v État belge |
Subject matter | Area of freedom, security and justice; asylum policy; illegal residence |
Key words | Gnandi – Area of freedom, security and justice – Return of illegally staying third–country nationals – Concept of ‘illegal stay’ – Adoption of a return decision before resolution of an appeal against the decision of the determining authority rejecting the application for international protection – Charter of Fundamental Rights of the European Union – Principle of non–refoulement – Right to an effective remedy – Authorisation to remain in a Member State |
Question referred for a preliminary ruling | ‘Must Article 5 of Directive [2008/115], which requires Member States to respect the principle of non–refoulement when they are implementing that directive, and the right to an effective remedy provided for under Article 13(1) of that directive and under Article 47 of the [Charter] be interpreted as precluding the adoption of a return decision, as provided for under Article 6 of Directive [2008/115] and under Article 52/3(1) of the [Law of 15 December 1980] and Article 75(2) of the Royal Decree of 8 October 1981 on the entry to Belgian territory, stay, residence and removal of foreign nationals, immediately after the rejection of the asylum application by the [CGRA] and therefore before the legal remedies available against that rejection decision can be exhausted and before the asylum procedure can be definitively concluded?’ |
Decision | Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in conjunction with Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and in the light of the principle of non–refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the adoption of a return decision, under Article 6(1) of Directive 2008/115, in respect of a third–country national who has applied for international protection, immediately after the rejection of that application by the determining authority or together in the same administrative act, and thus before the conclusion of any appeal proceedings brought against that rejection, provided, inter alia, that the Member State concerned ensures that all the legal effects of the return decision are suspended pending the outcome of the appeal, that that applicant is entitled, during that period, to benefit from the rights arising under Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, and that he is entitled to rely on any change in circumstances that occurred after the adoption of the return decision which may have a significant bearing on the assessment of his situation under Directive 2008/115, and in particular under Article 5 thereof, those being matters for the referring court to determine |
Case number | C–73/16 |
Case name | Puškár |
Document | Judgment ECLI:EU:C:2017:725 |
Date | 27/09/2017 |
Source of the question referred for a preliminary ruling | Najvyšší súd Slovenskej republiky ((Supreme Court of the Slovak Republic) |
Name of the parties | Peter Puškár v Finančné riaditeľstvo Slovenskej republiky and Kriminálny úrad finančnej správy |
Subject matter | Personal data protection; tax collection; tax fraud |
Key words | Puškar – Charter of Fundamental Rights of the European Union – Processing of personal data – Drawing up of a list of personal data – Subject matter – Tax collection – Fight against tax fraud – Judicial review – Protection of fundamental rights and freedoms – Legal action dependent on a requirement of a prior administrative complaint – Whether that list is permissible as evidence – Rules on the lawfulness of the processing of personal data – Performance of a task carried out in the public interest by the controller |
Question referred for a preliminary ruling | ‘(1) Does Article 47(1) of the Charter, under which every person whose rights – including the right to privacy with respect to the processing of personal data in Article 1(1) et seq. of Directive 95/46 – are violated has the right to an effective remedy before a court in compliance with the conditions in Article 47 of the Charter, against a provision of national law which makes the exercise of an effective remedy before a court, meaning an administrative court, conditional on the fact that the claimant, to protect his rights and freedoms, must have previously exhausted the procedures available under lex specialis – law on a specific subject – such as the Slovak Law on administrative complaints? (2) Can the right to respect for private and family life, home and communications, in Article 7 of the Charter, and the right to the protection of personal data in Article 8 be interpreted to the effect that where there is an alleged violation of the right to the protection of personal data, which, with respect to the European Union, is implemented primarily through Directive 95/46, and under which, in particular – the Member States must protect the right to privacy with respect to the processing of personal data (Article [1](1)), and – the Member States are authorised to process personal data where this is necessary for the implementation of a task performed in the public interest (Article 7(e)) or is necessary for the purpose of a legitimate interests that is performed by the responsible authority or by the third party or parties to whom the data are disclosed, and – a Member State is exceptionally authorised to limit obligations and rights (Article 13(1)(e) and (f)), where such a restriction is necessary to safeguard an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters, are interpreted in such a way as not to allow a Member State to create, without the consent of the person concerned, a list of personal data for the purposes of tax administration, so that the fact that personal data is made available to a public authority for the purpose of combating tax fraud in itself constitutes a risk? (3) Can a list held by a financial authority of a Member State, which contains the claimant’s personal data and the inaccessibility of which has been secured by appropriate technical and organisational measures for the protection of personal data against unauthorised disclosure or access within the meaning of Article 17(1) of Directive 95/46, be regarded as unlawful evidence by virtue of the fact that it was obtained by the claimant without the lawful agreement of the relevant financial authority, which the referring court must refuse to admit in accordance with the requirements of EU law on a fair hearing in the second paragraph of Article 47(2) of the Charter? (4) Is the abovementioned right to an effective legal remedy and to a fair hearing (in particular under Article 47 of the Charter) consistent with an approach taken by the referring court whereby, when, in this case, there is case–law from the European Court of Human Rights which differs from the answer obtained from the Court of Justice of the European Union, the referring court, in accordance with the principle of sincere cooperation in Article 4(3) TEU and Article 267 TFEU, gives precedence to the Court of Justice’s legal approach?’ |
Decision | 1. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that it does not preclude national legislation, which makes the exercise of a judicial remedy by a person stating that his right to protection of personal data guaranteed by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, has been infringed, subject to the prior exhaustion of the remedies available to him before the national administrative authorities, provided that the practical arrangements for the exercise of such remedies do not disproportionately affect the right to an effective remedy before a court referred to in that article. It is important, in particular, that the prior exhaustion of the available remedies before the national administrative authorities does not lead to a substantial delay in bringing a legal action, that it involves the suspension of the limitation period of the rights concerned and that it does not involve excessive costs. 2. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding that a national court rejects, as evidence of an infringement of the protection of personal data conferred by Directive 95/46, a list, such as the contested list, submitted by the data subject and containing personal data relating to him, if that person had obtained that list without the consent, legally required, of the person responsible for processing that data, unless such rejection is laid down by national legislation and respects both the essential content of the right to an effective remedy and the principle of proportionality. 3. Article 7(e) Directive 95/46 must be interpreted as not precluding the processing of personal data by the authorities of a Member State for the purpose of collecting tax and combating tax fraud such as that effected by drawing up of a list of persons such as that at issue in the main proceedings, without the consent of the data subjects, provided that, first, those authorities were invested by the national legislation with tasks carried out in the public interest within the meaning of that article, that the drawing–up of that list and the inclusion on it of the names of the data subjects in fact be adequate and necessary for the attainment of the objectives pursued and that there be sufficient indications to assume that the data subjects are rightly included in that list and, second, that all of the conditions for the lawfulness of that processing of personal data imposed by Directive 95/46 be satisfied. |
Case number | C–685/15 |
Case name | Online Games and Others |
Document | Judgment ECLI:EU:C:2017:452 |
Date | 14/06/2017 |
Source of the question referred for a preliminary ruling | Landesverwaltungsgericht Oberösterreich (Upper Austria Regional Administrative Court, Austria) |
Name of the parties | Online Games Handels GmbH and Others v Landespolizeidirektion Oberösterreich |
Subject matter | Freedom to provide services; right of establishment; gambling |
Key words | Online Games – Freedom of establishment – Freedom to provide services – Games of chance – Restrictive legislation of a Member State – Penal administrative sanctions – Overriding reasons in the public interest – Proportionality – Charter of Fundamental Rights of the European Union – Right to effective judicial protection – National legislation laying down the requirement for the court to examine of its own motion the facts of the case before it in the context of the prosecution of administrative offences – Compliance |
Question referred for a preliminary ruling | ‘Is Article 56 TFEU or Article 49 et seq. TFEU, in the light of Article 6 of the ECHR read in conjunction with Article 47 of the Charter, to be interpreted, having regard to the judicial objectivity and impartiality required by the case–law of the European Court of Human Rights (in particular with regard to its judgment of 18 May 2010, [Ozerov v. Russia, EC:ECHR:2010:0518JUD006496201,] paragraph 54), as precluding, in the light of the case–law of the Court of Justice of the European Union (in particular its judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281), a national rule according to which, in the case of administrative offence proceedings, it is not for the State prosecution services (or other State prosecution bodies) in their function of representing the prosecution but rather for the court called upon to rule on the legality of the criminal measure against which an action has been brought, of its own motion and independently of the conduct of the parties to the proceedings, (in one and the same person/function) to state and delimit wholly independently the evidence justifying the criminal law protection of the quasi–monopoly regulation of the national gambling market and then autonomously to investigate and evaluate it?’ |
Decision | Articles 49 and 56 TFEU, as interpreted in particular in the judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281), read in light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a national procedural system according to which, in administrative offence proceedings, the court called upon to rule on the compliance with EU law of legislation restricting the exercise of a fundamental freedom of the European Union, such as the freedom of establishment or the freedom to provide services within the European Union, is required to examine of its own motion the facts of the case before it in the context of examining whether administrative offences arise, provided that such a system does not have the consequence that that court is required to substitute itself for the competent authorities of the Member State concerned, whose task it is to provide the evidence necessary to enable that court to determine whether that restriction is justified. |
Case number | C–682/15 |
Case name | Berlioz Investment Fund |
Document | Judgment ECLI:EU:C:2017:373 |
Date | 16/05/2017 |
Source of the question referred for a preliminary ruling | Cour administrative (Administrative Court, Luxembour) |
Name of the parties | Berlioz Investment Fund SA v Directeur de l'administration des Contributions directes |
Subject matter | Administrative cooperation in the field of taxation; exchange of information |
Key words | Berlioz Investment – Administrative cooperation in the field of taxation – Request for information sent to a third party – Refusal to respond – Penalty – Concept of ‘foreseeable relevance’ of the information requested – Review by the requested authority – Review by a court – Scope – Charter of Fundamental Rights of the European Union – Implementation of EU law– Right to an effective judicial remedy – Access of the court and of the third party to the request for information sent by the requesting authority |
Question referred for a preliminary ruling | ‘(1) Is a Member State implementing EU law and thus rendering the Charter applicable in accordance with Article 51(1) thereof in a situation such as that in the main proceedings when it imposes an administrative pecuniary penalty on a person on account of that person’s alleged failure to fulfil his obligations to cooperate pursuant to an order requiring him to provide information (‘information order’) made by the competent national authority of that State under national procedural rules introduced for that purpose, in the context of that Member State’s execution, in its capacity as the requested State, of a request for exchange of information from another Member State that is based by the latter State, inter alia, on the provisions of Directive 2011/16 on the exchange of information on request? (2) In the event that it is established that the Charter is applicable to the present case, can a person rely on Article 47 of the Charter if he takes the view that the aforementioned administrative pecuniary penalty imposed on him is designed to place him under an obligation to provide information in the context of the execution, by the competent authority of the requested Member State of which he is a resident, of a request for information from another Member State for which there is no justification as regards the actual fiscal aim, there being therefore no legitimate aim in the present case, and which is intended to obtain information that has no foreseeable relevance to the tax case concerned? (3) In the event that it is established that the Charter is applicable to the present case, does the right to an effective remedy and to a fair trial as laid down by Article 47 of the Charter require – without the possibility of restrictions being imposed under Article 52(1) of the Charter – that the competent national court must have unlimited jurisdiction and accordingly the power to review, at least as a result of an objection, the validity of an information order made by the competent authority of a Member State in the execution of a request for exchange of information submitted by the competent authority of another Member State, inter alia, on the basis of Directive 2011/16 in an action brought by the third party holder of the information, to whom that information order is addressed, such action being directed against a decision imposing an administrative pecuniary penalty for that person’s alleged failure to fulfil his obligation to cooperate in the context of the execution of that request? (4) In the event that it is established that the Charter is applicable to the present case, are Article 1(1) and Article 5 of Directive 2011/16, in the light, on the one hand, of the parallels with the standard of foreseeable relevance arising out of the Organisation for Economic Cooperation and Development’s [(OECD’s)] Model Tax Convention on Income and on Capital and, on the other, of the principle of sincere cooperation laid down in Article 4 TEU, together forming the objective of Directive 2011/16, to be interpreted as meaning that the foreseeable relevance, in relation to the tax case referred to and to the stated fiscal purpose, of the information sought by one Member State from another Member State constitutes a condition which the request for information must satisfy in order to trigger an obligation on the part of the competent authority of the requested Member State to act on that request, and in order to justify an information order issued to a third party by that authority? (5) In the event that it is established that the Charter is applicable to the present case, are the provisions of Article 1(1) in conjunction with Article 5 of Directive 2011/16, and Article 47 of the Charter, to be interpreted as precluding a legal provision of a Member State that generally limits the examination by its competent national authority, acting as the authority of the requested State, of the validity of a request for information to a review as to whether the request is in order, and as requiring a national court seised of court proceedings such as those described in the third question above to verify, in the context of those court proceedings, that the condition of foreseeable relevance of the information requested has been satisfied in all its aspects regarding the links to the particular tax case in question, the stated fiscal purpose and compliance with Article 17 of Directive 2011/16? (6) In the event that it is established that the Charter is applicable to the present case, does the second paragraph of Article 47 of the Charter preclude a legal provision of a Member State that precludes a request for information made by the competent authority of another Member State from being submitted to the competent national court of the requested State in court proceedings before it such as those described in the third question above; and does it require that document to be produced to the competent national court and access to it to be granted to the third party holding the information, or, indeed, that document to be produced to the national court without access to it being granted to the third party holding the information, owing to the confidential nature of that document, provided that any difficulties caused to the third party by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the competent national court?’ |
Decision | 1. Article 51(1) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a Member State implements EU law within the meaning of that provision, and that the Charter of Fundamental Rights of the European Union is therefore applicable, when that Member State makes provision in its legislation for a pecuniary penalty to be imposed on a person who may be the subject of administrative measures (a ‘relevant person’) who refuses to supply information in the context of an exchange between tax authorities based, in particular, on the provisions of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC. 2. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a relevant person on whom a pecuniary penalty has been imposed for failure to comply with an administrative decision directing that person to provide information (‘information order’) in the context of an exchange between national tax administrations pursuant to Directive 2011/16 is entitled to challenge the legality of that decision. 3. Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that the ‘foreseeable relevance’ of the information requested by one Member State from another Member State is a condition which the request for information must satisfy in order for the requested Member State to be required to comply with that request, and thus a condition of the legality of the information order addressed by that Member State to a relevant person and of the penalty imposed on that person for failure to comply with that information order. 4. Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that verification by the requested authority to which a request for information has been submitted by the requesting authority pursuant to that directive is not limited to the procedural regularity of that request but must enable the requested authority to satisfy itself that the information sought is not devoid of any foreseeable relevance having regard to the identity of the taxpayer concerned and that of any third party asked to provide the information, and to the requirements of the tax investigation concerned. Those provisions of Directive 2011/16 and Article 47 of the Charter must be interpreted as meaning that, in the context of an action brought by a relevant person against a penalty imposed on that person by the requested authority for non–compliance with an information order issued by that authority in response to a request for information sent by the requesting authority pursuant to Directive 2011/16, the national court not only has jurisdiction to vary the penalty imposed but also has jurisdiction to review the legality of that information order. As regards the condition of legality of that information order, which relates to the foreseeable relevance of the requested information, the courts’ review is limited to verification that the requested information manifestly has no such relevance. 5. The second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, in the context of a judicial review by a court of the requested Member State, that court must have access to the request for information addressed to the requested Member State by the requesting Member State. The relevant person does not, however, have a right of access to the whole of that request for information, which is to remain a secret document in accordance with Article 16 of Directive 2011/16. In order for that person to be given a full hearing of his case in relation to the lack of any foreseeable relevance of the requested information, it is sufficient, in principle, that he be in possession of the information referred to in Article 20(2) of that directive. |
Case number | C–664/15 |
Case name | Protect Natur–, Arten– und Landschaftsschutz Umweltorganisation |
Document | Judgment ECLI:EU:C:2017:987 |
Date | 20/12/2017 |
Source of the question referred for a preliminary ruling | Verwaltungsgerichtshof (Supreme Administrative Court, Austria) |
Name of the parties | Protect Natur–, Arten– und Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd |
Subject matter | Environment; EU water policy |
Key words | Protect Natur – Environment – EU action in the field of water policy – Obligations to prevent deterioration of the status of bodies of surface water and encourage the active involvement of all interested parties in the implementation of the directive – Public participation in decision–making and access to justice in environmental matters – Charter of Fundamental Rights of the European Union – Right to effective judicial protection – Project that is likely to have an impact on water status – Administrative procedure for a permit – Environmental organisation – Extinction of the status of party to the procedure and of the right to bring an action if those rights are not exercised within good time during the administrative procedure |
Question referred for a preliminary ruling | ‘(1) Does Article 4 of Directive 2000/60 … or that directive as a whole confer on an environmental organisation, in a procedure which is not subject to an environmental impact assessment under Directive 2011/92 …, rights for the protection of which it has access to administrative or judicial procedures under Article 9(3) of the [Aarhus Convention]? If question 1 is answered in the affirmative: (2) Is it necessary under the provisions of the Aarhus Convention to be able to assert those rights at the stage of the procedure before the administrative authority or is the possibility of being granted judicial protection against the decision of the administrative authority sufficient? (3) Is it permissible for national procedural law (Paragraph 42 of the AVG) to require the environmental organisation – like other parties – to submit its objections not only in an appeal to the administrative court, but in good time at the stage of the procedure before the administrative authorities, failing which it loses its status as a party and is also no longer able to bring an appeal at the administrative court?’ |
Decision | 1. Article 9(3) of the Convention on access to information, public participation in decision–making and access to justice in environmental matters, signed at Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a duly constituted environmental organisation operating in accordance with the requirements of national law must be able to contest before a court a decision granting a permit for a project that may be contrary to the obligation to prevent the deterioration of the status of bodies of water as set out in Article 4 of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. 2. The combined provisions of Article 9(3) of that convention approved by Decision 2005/370, Article 47 of the Charter of Fundamental Rights and Article 14(1) of Directive 2000/60 must be interpreted as precluding national procedural rules that deprive, in situations such as that in question in the main action, environmental organisations of the right to participate, as a party to the procedure, in a permit procedure that is intended to implement Directive 2000/60 and limit the right to bring proceedings contesting decisions resulting from such procedure solely to persons who do have that status. 3. Subject to verification by the referring court of the relevant matters of fact and national law, Article 9(3) and (4) of that convention approved by Decision 2005/370, read in conjunction with Article 47 of the Charter of Fundamental Rights, must be interpreted as precluding, in a situation such as that in question in the main action, a national procedural rule that imposes a time limit on an environmental organisation, pursuant to which a person loses the status of party to the procedure and therefore cannot bring an action against the decision resulting from that procedure if it failed to submit objections in good time following the opening of the administrative procedure and, at the very latest, during the oral phase of that procedure. |
Case number | C–587/15 |
Case name | Lietuvos Respublikos transporto priemonių draudikų biuras |
Document | Judgment ECLI:EU:C:2017:463 |
Date | 15/06/2017 |
Source of the question referred for a preliminary ruling | Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) |
Name of the parties | Lietuvos Respublikos transporto priemonių draudikų biuras v Gintarasu Dockevičiusu and Jurgiti Dockevičienė |
Subject matter | Freedom to provide services; insurance; civil liability insurance for the use of motor vehicles |
Key words | Gintaras Dockevičiusu and Jurgiti Dockevičienė – Insurance against civil liability in respect of motor vehicles – Accident occurring in 2006 between vehicles normally based in different Member States – Internal Regulations of the Council of Bureaux of national insurers of the Member States – Lack of jurisdiction of the Court – Directive 2009/103/EC – Not applicable ratione temporis – Not applicable ratione materiae – Charter of Fundamental Rights of the European Union – Inapplicability – Failure to implement EU law |
Question referred for a preliminary ruling | ‘(1) Are Articles 2, 10(1) and (4) and 24(2) of Directive 2009/103, Articles 3(4), 5(1) and (4), 6(1) and 10 of the Internal Regulations, and Article 47 of the Charter (together or separately, but without limitation to the aforementioned provisions) to be understood and interpreted as meaning that, in the case where: – a national insurers’ bureau (Bureau A) pays compensation to the party injured in a road traffic accident in the Member State in which that bureau is established because the national of another Member State who was responsible for the damage was not insured against civil liability; – by reason of that compensation, Bureau A is subrogated to the injured party in his rights and seeks reimbursement of the costs incurred in the settlement of the claim from the national insurers’ bureau in the country of origin of the person responsible (Bureau B); – Bureau B, without carrying out any independent investigation or requesting additional information, accedes to the request for reimbursement made by Bureau A; – Bureau B brings legal proceedings against the defendants (the person responsible and the owner of the vehicle) seeking indemnification of the expenses which it incurred, the applicant in those proceedings (Bureau B) can base its claim against the defendants (the person responsible and the owner of the vehicle) solely on the fact of the payment of the costs made to Bureau A and it (the applicant) is not under any obligation to establish that the conditions governing the civil liability of the defendant/person responsible were satisfied (his fault, unlawful acts, the causal link and the amount of damage), and is not under any obligation to establish that the foreign law was properly applied when the injured party was compensated? (2) Are point (c) of the fifth subparagraph of Article 24(1) of Directive 2009/103 and Article 3(1) and (4) of the Internal Regulations (together or separately, but without limitation to the aforementioned provisions) to be understood and interpreted as meaning that Bureau A must, before taking a final decision to pay compensation for the damage suffered by the injured party, inform, in a clear and comprehensible manner (including in regard to the language in which the information is provided), the person responsible and the owner of the vehicle (if not the same person) about the initiation of the claim–handling process and its progress, and give them sufficient time to submit their comments on, or objections to, the decision to be taken to pay compensation and/or the amount of that compensation? (3) If the answer to Question 1 is in the negative (that is to say, the defendants (the person responsible and the owner of the vehicle) may require the applicant (Bureau B) to provide proof or may raise any objections or doubts concerning, inter alia, the circumstances of the road traffic accident, the application of the regulatory framework relating to civil liability of the person responsible, the amount of the damage and how it was calculated), are Articles 2, 10(1) and 24(2) of Directive 2009/103 and the second subparagraph of Articles 3(4) of the Internal Regulations (together or separately, but without limitation to the aforementioned provisions) to be understood and interpreted as meaning that, notwithstanding the fact that Bureau B did not, before the final decision was taken, request Bureau A to provide information on the interpretation of the legislation applicable in the country in which the road accident occurred and on the settlement of the claim, Bureau A must in any event provide that information to Bureau B if the latter subsequently requests it, together with any other information necessary for Bureau B establish its claim [for indemnification] against the defendants (the person responsible and the owner of the vehicle)? (4) If the answer to Question 2 is in the affirmative (that is to say, Bureau A is required to inform the person responsible and the owner of the vehicle about the claim–settlement process and to provide them with an opportunity to submit objections concerning liability or the amount of the damage), what consequences will failure on the part of Bureau A to comply with its duty to provide information entail for: (a) the obligation of Bureau B to accede to the request for reimbursement presented by Bureau A; (b) the obligation of the person responsible and the owner of the vehicle to indemnify Bureau B for the expenses which it has incurred? 5. Are Articles 5(1) and 10 of the Internal Regulations to be understood and interpreted as meaning that the amount paid as compensation by Bureau A to the injured party is to be regarded as a non–reimbursable risk assumed by Bureau A itself (unless that risk is assumed by Bureau B) rather than a pecuniary obligation on the other person involved in the same road traffic accident, regard being had, a fortiori, to the circumstances of the present case: – initially, the compensation body (Bureau A) rejected the injured party’s claim for compensation; – for that reason, the injured party brought a legal action seeking compensation; – that action brought against Bureau A was dismissed by the lower courts as being unfounded and not supported by evidence; – an amicable settlement between the injured party and Bureau A was reached only in a higher court, when the latter pointed out that, if the parties refused to enter into an amicable settlement, the case would be referred back for fresh examination; – Bureau A justified its decision to enter into an amicable settlement essentially on the basis that this would avoid additional costs due to prolonged litigation; and – in the present proceedings, no court has established the liability (fault) of the defendant involved in the road traffic accident?’ |
Decision | The Court does not have jurisdiction to give a preliminary ruling on the questions referred by the national court in respect of the interpretation of the Internal Regulations of the Council of Bureaux, adopted by the Agreement of 30 May 2002 between the national insurers’ bureaux of the Member States of the European Economic Area and other Associate States, and appended to the annex to Commission Decision 2003/564/EC of 28 July 2003 on the application of Council Directive 72/166/EEC relating to checks on insurance against civil liability in respect of the use of motor vehicles. – Since Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, is not applicable ratione temporis to the dispute in the main proceedings, – since Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, as amended by Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005, Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles as amended by Directive 2005/14, and Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC are not applicable ratione materiae to the present dispute, and, therefore, – since, in the absence of implementation of EU law within the meaning of Article 51(1) of the Charter, neither is Article 47 of the Charter of Fundamental Rights of the European Union applicable to the dispute, those directives and Article 47 of the Charter must be interpreted as not precluding, in the present case, the consequences arising from the case–law of the referring court to the effect that, for the purposes of the subrogated claim, the burden of proof relating to all of the elements establishing the civil liability of the defendants in the main proceedings for the accident which occurred on 20 July 2006 rests with the Lietuvos Respublikos transporto priemonių draudikų biuras (the Bureau of Motor Insurers of the Republic of Lithuania). |
Case number | C–243/15 |
Case name | Lesoochranárske zoskupenie VLK |
Document | Judgment ECLI:EU:C:2016:838 |
Date | 08/11/2016 |
Source of the question referred for a preliminary ruling | Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic, Slovakia) |
Name of the parties | Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín |
Subject matter | Environment, sustainable development and climate |
Key words | Lesoochranárske zoskupenie VLK – Environment – Conservation of natural habitats – Public participation in decision–making and access to justice in environmental matters – Charter of Fundamental Rights of the European Union – Right to effective judicial protection – Project to construct an enclosure – Protected site ‘Strážovské vrchy’ – Administrative authorisation procedure – Environmental organisation – Request for the status of party to the procedure – Rejection – Legal action |
Question referred for a preliminary ruling | ‘Is it possible to guarantee the right to an effective remedy and to a fair trial, affirmed in Article 47 of the Charter, in the event of a purported breach of the right to a high level of environmental protection established under the conditions laid down by the European Union, mainly by Directive 92/43 (particularly [of the right] to help obtain the public’s opinion on a project which could have a significant impact on special areas of conservation falling within the European ecological ‘Natura 2000’ network), and the right invoked by the appellant (as a not–for–profit association active in the protection of the environment at national level) under Article 9 of the Aarhus Convention, within the limits indicated by the Court of Justice in its judgment of 8 March 2011, Lesoochranárske zoskupenie (Case C‑240/09, EU:C:2011:125), where the national court terminates the judicial review proceedings in a case concerning the review of a decision refusing to grant [that association] the status of party in an administrative procedure regarding the issuing of a permit, as has happened in the present case, and invites [that association] to lodge an appeal against its having been excluded from that administrative procedure?’ |
Decision | Inasmuch as Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 9(2) and (4) of the Convention on access to information, public participation in decision–making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, enshrines the right to effective judicial protection, in conditions ensuring wide access to justice, of the rights which an environmental organisation meeting the conditions laid down in Article 2(5) of that convention derives from EU law, in this instance from Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora as amended by Council Directive 2006/105/EC of 20 November 2006, read in conjunction with Article 6(1)(b) of that convention, it must be interpreted as precluding, in a situation such as that at issue in the main proceedings, an interpretation of rules of national procedural law to the effect that an action against a decision refusing such an organisation the status of party to an administrative procedure for authorisation of a project that is to be carried out on a site protected pursuant to Directive 92/43 as amended by Directive 2006/105 does not necessarily have to be examined during the course of that procedure, which may be definitively concluded before a definitive judicial decision on possession of the status of party is adopted, and is automatically dismissed as soon as that project is authorised, thereby requiring that organisation to bring an action of another type in order to obtain that status and to secure judicial review of compliance by the competent national authorities with their obligations stemming from Article 6(3) of that directive. |
Case number | C–231/15 |
Case name | Prezes Urzędu Komunikacji Elektronicznej and Petrotel |
Document | Judgment ECLI:EU:C:2016:769 |
Date | 13/10/2016 |
Source of the question referred for a preliminary ruling | Sąd Najwyższy (Supreme Court, Poland) |
Name of the parties | Prezes Urzędu Komunikacji Elektronicznej in Petrotel sp. z o.o. w Płocku v Polkomtel sp. z o.o. |
Subject matter | Telecommunications; Electronic communications networks and services; mobile termination rates |
Key words | Petrotel – Electronic communications networks and services – Right of appeal against a decision taken by a national regulatory authority – Effective appeal mechanism – Decision of a national regulatory authority to continue to apply pending the outcome of the appeal – Temporal effects of a decision of a national court annulling a decision of a national regulatory authority – Possibility of annulling a decision of the national regulatory authority with retroactive effect – Principles of legal certainty and protection of legitimate expectations |
Question referred for a preliminary ruling | ‘Must the first and third sentences of [the first subparagraph of] Article 4(1) of the Framework Directive be interpreted as meaning that – in the event that a network provider contests a decision of the NRA setting call termination rates in the network of that undertaking [(the first decision)] and that undertaking then contests a subsequent decision (implementing decision) of the NRA amending a contract between the addressee of the [first decision] and another undertaking so that the rates paid by that other undertaking for call termination in the network of the addressee of the [first decision] correspond to the rates set in the [first decision] – the national court, having found that the [first decision] has been annulled, cannot annul the implementing decision in view of the [second subparagraph] of Article 4(1) of the Framework Directive and the interests which the undertaking benefiting from the implementing decision derives from the principle of the protection of legitimate expectations or of legal certainty, or must the first and third sentences of [the first subparagraph of] Article 4(1) of the Framework Directive, in conjunction with Article 47 of the Charter, be interpreted as meaning that the national court may annul the implementing decision of the NRA and consequently remove the obligations laid down therein for the period preceding the judgment if it finds that that is necessary in order to provide effective protection for the rights of the undertaking appealing against the NRA’s decision that enforces the obligations laid down in the [first decision] which was subsequently annulled?’ |
Decision | Article 4(1), first subparagraph, first and third sentences, and second subparagraph, of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, is to be interpreted as meaning that a national court hearing an appeal against a decision of the national regulatory authority must be able to annul that decision with retroactive effect if it finds that to be necessary in order to provide effective protection for the rights of the undertaking which has brought the appeal. |
Case number | C–119/15 |
Case name | Biuro podróży Partner |
Document | Judgment ECLI:EU:C:2016:987 |
Date | 21/12/2016 |
Source of the question referred for a preliminary ruling | Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland) |
Name of the parties | Biuro podróży ‘Partner’ Sp. z o.o, Sp. komandytowa w Dąbrowie Górniczej v Prezes Urzędu Ochrony Konkurencji i Konsumentów |
Subject matter | Consumer protection; unauthorised terms and conditions; use of general terms and conditions listed in the national register of unlawful general terms and conditions |
Key words | Biuro – Consumer protection – Erga omnes effect of unfair terms entered in a public register – Financial penalty imposed on a seller or supplier having used a term held to be equivalent to a term in the register – Seller or supplier who was not a party to the proceedings giving rise to the declaration that the term in question was unfair – Article 47 of the Charter of Fundamental Rights of the European Union – Concept of ‘court or tribunal against whose decisions there is no judicial remedy under national law |
Question referred for a preliminary ruling | ‘1. In the light of Article 6(1) and Article 7 of [Directive 93/13], in conjunction with Articles 1 and 2 of [Directive 2009/22], can the use of standard contract terms with content identical to that of terms which have been declared unlawful by a judicial decision having the force of law and which have been entered in the register of unlawful standard contract terms be regarded, in relation to another undertaking which was not a party to the proceedings culminating in the entry in the register of unlawful standard contract terms, as an unlawful act which, under national law, constitutes a practice which harms the collective interests of consumers and for that reason forms the basis for imposing a fine in national administrative proceedings? 2. In the light of the third paragraph of Article 267 TFEU, is a court of second instance, against the judgment of which on appeal it is possible to bring an appeal on a point of law, as provided for in the Code of Civil Procedure of the Republic of Poland, a court or tribunal against whose decisions there is no judicial remedy under national law, or is the Sąd Najwyższy (Supreme Court, Poland), which has jurisdiction to hear appeals on a point of law, such a court?’ |
Decision | 1. Article 6(1) and Article 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in conjunction with Articles 1 and 2 of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests and in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the use of standard contract terms with content identical to that of terms which have been declared unlawful by a judicial decision having the force of law and which have been entered in a national register of unlawful standard contract terms from being regarded, in relation to another seller or supplier which was not a party to the proceedings culminating in the entry in that register, as an unlawful act, provided, which it is for the referring court to verify, that that seller or supplier has an effective judicial remedy against the decision declaring the terms compared to be equivalent in terms of the question whether, in the light of all relevant circumstances particular to each case, those terms are materially identical, having regard in particular to their harmful effects for consumers, and against the decision fixing the amount of the fine imposed, where applicable. 2. The third paragraph of Article 267 TFEU must be interpreted as meaning that a court such as the referring court, whose decisions in proceedings such as those in the main proceedings may be the subject matter of an appeal in cassation, cannot be categorised as a ‘court or tribunal against whose decisions there is no judicial remedy under national law’. |
Case number | C–72/15 |
Case name | Rosneft |
Document | Judgment ECLI:EU:C:2017:236 |
Date | 28/03/2017 |
Source of the question referred for a preliminary ruling | High Court of Justice (England & Wales), Queen’s Bench Division (Divisional Court) |
Name of the parties | PJSC Rosneft Oil Company v Her Majesty's Treasury and Others |
Subject matter | Common Security and Foreign Policy; restrictive measures – Asset freezes and various bans |
Key words | Rosneft – Common Foreign and Security Policy (CFSP) – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Jurisdiction of the Court – EU‑Russia Partnership Agreement – Obligation to state reasons – Principles of legal certainty and nulla poena sine lege certa – Access to capital markets – Financial assistance – Global Depositary Receipts – Oil sector – Request for interpretation of concepts of ‘shale’ and ‘waters deeper than 150 metres’ – Inadmissibility |
Question referred for a preliminary ruling | ‘(1) Having regard in particular to Article 19(1) TEU, Article 24 TEU, Article 40 TEU, Article 47 [of the Charter of Fundamental Rights of the European Union (‘the Charter’)] and the second paragraph of Article 275 TFEU, does the Court of Justice have jurisdiction to give a preliminary ruling under Article 267 TFEU on the validity of Article l(2)(b) to (d), Article 1(3), Article 4, Article 4(a) and Article 7 of, and Annex III to, Decision 2014/512? (2)(a) Are one or more of the following provisions (‘the Relevant Measures’) of Regulation No 833/2014 and, to the extent that the Court has jurisdiction, Decision 2014/512 invalid: (i) Article 4 and Article 4a of Decision 2014/512; (ii) Articles 3, 3a, 4(3) and (4) of, and Annex II to, Regulation No 833/2014; (together, ‘the Oil Sector Provisions’) ; (iii) Articles l(2)(b) to (d) and 1(3) of, and Annex III to, Decision 2014/512; (iv) Articles 5(2)(b) to (d), 5(3) of, and Annex VI to, Regulation No 833/2014; (together, ‘the Securities and Lending Provisions’); (v) Article 7 of Decision 2014/512; and (vi) Article 11 of Regulation No 833/2014? (b) In so far as the Relevant Measures are valid, is it contrary to the principles of legal certainty and nulla poena sine lege certa for a Member State to impose criminal penalties, pursuant to Article 8 of the EU Regulation, before the scope of the relevant offence has been sufficiently clarified by the Court of Justice? (3) In so far as the relevant prohibitions or restrictions referred to in Question 2(a) are valid: (a) Does the term ‘financial assistance’ in Article 4(3) of Regulation No 833/2014 include the processing of a payment by a bank or other financial institution? (b) Does Article 5 of Regulation No 833/2014 prohibit the issuing of, or other dealings with, Global Depositary Receipts (‘GDRs’) issued on or after 12 September 2014 under a deposit agreement with one of the entities listed in Annex VI, in respect of shares in one of those entities which were issued before 12 September 2014? (c) If the Court considers that there is a lack of clarity which can appropriately be resolved by the Court providing further guidance, what is the correct interpretation of the terms ‘shale’ and ‘waters deeper than 150 metres’ in Article 4 of Decision 2014/512 and Article 3 and 3a of Regulation No 833/2014? In particular, if the Court considers it necessary and appropriate, can it provide a geological interpretation of the term ‘shale’ to be used in implementing the regulation, and clarify whether the measurement of ‘waters deeper than 150 metres’ is to be taken from the point of drilling or elsewhere?’ |
Decision | 1. Articles 19, 24 and 40 TEU, Article 275 TFEU, and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Court of Justice of the European Union has jurisdiction to give preliminary rulings, under Article 267 TFEU, on the validity of an act adopted on the basis of provisions relating to the Common Foreign and Security Policy (CFSP), such as Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, as amended by Council Decision 2014/872/CFSP of 4 December 2014, provided that the request for a preliminary ruling relates either to the monitoring of that decision’s compliance with Article 40 TEU, or to reviewing the legality of restrictive measures against natural or legal persons. 2. Examination of the second question has disclosed nothing capable of affecting the validity of Article 1(2)(b) to (d) and (3), and Article 7 of, and Annex III to, Decision 2014/512, as amended by Decision 2014/872, or of Articles 3 and 3a, Article 4(3) and (4), Article 5(2)(b) to (d) and (3), and Article 11 of, and Annexes II and VI to, Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, as amended by Council Regulation (EU) No 1290/2014 of 4 December 2014. The principles of legal certainty and nulla poena sine lege certa must be interpreted as meaning that they do not preclude a Member State from imposing criminal penalties that are to be applied in the event of an infringement of the provisions of Regulation No 833/2014, as amended by Regulation No 1290/2014, in accordance with Article 8(1) of that regulation, before the scope of those provisions and, therefore, the scope of the associated criminal penalties, has been clarified by the Court of Justice of the European Union. 3. The expression ‘financial assistance’ in Article 4(3)(b) of Regulation No 833/2014, as amended by Regulation No 1290/2014, must be interpreted as meaning that it does not include the processing of a payment, as such, by a bank or other financial institution. Article 5(2) of Regulation No 833/2014, as amended by Regulation No 1290/2014, must be interpreted as meaning that it prohibits the issuance, after 12 September 2014, of international certificates representative of share ownership (Global Depositary Receipts), pursuant to a depositary agreement concluded with one of the entities listed in Annex VI to Regulation No 833/2014, as amended by Regulation No 1290/2014, including cases where those certificates represent shares issued by one of those entities before that date. |
Case number | C–614/14 |
Case name | Ognyanov |
Document | Judgment ECLI:EU:C:2016:514 |
Date | 05/07/2016 |
Source of the question referred for a preliminary ruling | Sofijski gradski sad (Sofia City Court, Bulgaria) |
Name of the parties | Criminal proceedings against Atanas Ognyanov; intervening party: Sofiyska gradska prokuratura, |
Subject matter | Principles, aims and functions of treaties; criminal procedure; exclusion of the referring court |
Key words | Ognyanov – Content of a request for a preliminary ruling – National rule providing that the national court is to be disqualified because it stated a provisional opinion in the request for a preliminary ruling when setting out the factual and legal context – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Does it constitute an infringement of EU law (second paragraph of Article 267 TFEU, in conjunction with Article 94 of the Rules of Procedure of the Court of Justice, Articles 47 and 48 of the Charter … and other applicable provisions) if the court which submitted the request for a preliminary ruling allows the proceedings to continue before it after delivery of the preliminary ruling and delivers a decision on the merits of the case without disqualifying itself? The ground for such disqualification is the expression by that court of a preliminary view on the merits of the case in the request for a preliminary ruling (in that it considered certain facts to have been established and a certain legal provision to be applicable to those facts. The question is referred on the assumption that all procedural provisions protecting the parties’ rights to adduce evidence and to make submissions were complied with in the determination of the facts and applicable law for the purposes of submitting the request for a preliminary ruling. (2) If the answer to the first question is that it is lawful for the hearing of the case to continue, does it constitute an infringement of EU law if: (a) The court reproduces in its final decision, without amendment, all the findings set out in its request for a preliminary ruling and declines to take new evidence or to hear the parties in relation to those factual and legal outcomes (with the court, in practice, taking new evidence and hearing the parties only in respect of matters not regarded as having been established in the request for a preliminary ruling)? (b) The court takes new evidence and hears the parties on all relevant issues, including those on which it has already stated its view in the request for a preliminary ruling, and sets out its view in its final decision on the basis of all the evidence adduced and after examining all the parties’ arguments, irrespective of whether the evidence was adduced before submission of the request for a preliminary ruling or after delivery of the preliminary ruling, and of whether the arguments were put forward beforehand or afterwards? (3) If the answer to the first question is that it is compatible with EU law for the hearing of the case to continue, is it compatible with EU law if the court decides not to allow the main proceedings to continue before it and to disqualify itself from the case on the ground of bias, it being contrary to national law (which offers a higher level of protection in respect of the interests of the parties and of justice) for the proceedings to be allowed to continue, and where such disqualification is based on the fact that: (a) before delivering its final decision, the court had expressed a preliminary view on the proceedings in the request for a preliminary ruling, which is permissible under EU law but which is prohibited under national law; b) the court’s final view would be set out in two legal acts instead of one (on the assumption that the request for a preliminary ruling constitutes a final, rather than a preliminary, view), which is permissible under EU law but which is prohibited under national law?’ |
Decision | 1. Article 267 TFEU and Article 94 of the Rules of Procedure of the Court, read in the light of the second paragraph of Article 47 and of Article 48(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a national rule which is interpreted in such a way as to oblige the referring court to disqualify itself from a pending case, on the ground that it set out, in its request for a preliminary ruling, the factual and legal context of that case. 2. EU law, and in particular Article 267 TFEU, must be interpreted as meaning that it does not require the referring court, after the delivery of the preliminary ruling, to hear the parties again and to undertake further inquiries, which might lead it to alter the findings of fact or law made in the request for a preliminary ruling, nor does it prohibit the referring court from doing so, provided that the referring court gives full effect to the interpretation of EU law adopted by the Court of Justice of the European Union. 3. EU law must be interpreted as precluding a referring court from applying a national rule, such as that at issue in the main proceedings, which is deemed to be contrary to EU law. |
Case number | C–559/14 |
Case name | Meroni |
Document | Judgment ECLI:EU:C:2016:349 |
Date | 25/05/2016 |
Source of the question referred for a preliminary ruling | Augstākās tiesas Civillietu departaments (Supreme Court, Civil Division, Latvia) |
Name of the parties | Rudolfs Meroni v Recoletos Limited |
Subject matter | Area of freedom, security and justice; judicial cooperation in civil matters; public policy |
Key words | Meroni – Judicial cooperation in civil matters – Recognition and enforcement of provisional and protective measures – Concept of ‘public policy |
Question referred for a preliminary ruling | ‘(1) Must Article 34(1) of Regulation No 44/2001 be interpreted as meaning that, in the context of proceedings for the recognition of a foreign judgment, infringement of the rights of persons who are not parties to the main proceedings may constitute grounds for applying the public policy clause contained in Article 34(1) of Regulation No 44/2001 and for refusing to recognise the foreign judgment in so far as it affects persons who are not parties to the main proceedings? (2) If the first question is answered in the affirmative, must Article 47 of the Charter be interpreted as meaning that the principle of the right to a fair trial set out therein allows proceedings for the adoption of provisional protective measures to limit the economic rights of a person who has not been a party to the proceedings, if provision is made to the effect that any person who is affected by the decision on the provisional protective measures is to have the right at any time to request the court to vary or discharge the judgment, in a situation in which it is left to the applicants to notify the decision to the persons concerned?’ |
Decision | Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, considered in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, the recognition and enforcement of an order issued by a court of a Member State, without a prior hearing of a third person whose rights may be affected by that order, cannot be regarded as manifestly contrary to public policy in the Member State in which enforcement is sought or manifestly contrary to the right to a fair trial within the meaning of those provisions, in so far as that third person is entitled to assert his rights before that court. |
Case number | C–543/14 |
Case name | Ordre des barreaux francophones in germanophone and Others |
Document | Judgment ECLI:EU:C:2016:605 |
Date | 28/07/2016 |
Source of the question referred for a preliminary ruling | Cour constitutionnelle (Belgium) |
Name of the parties | Ordre des barreaux francophones et germanophone and Others v Conseil des ministres |
Subject matter | Tax assessment; value added tax; taxable transactions; abolition of exemption from value added tax (VAT) for services provided by lawyers |
Key words | Ordre des barreaux francophones – VAT –Validity and interpretation of the directive – Services provided by lawyers – Liability to VAT – Right to an effective remedy – Equality of arms – Legal aid |
Question referred for a preliminary ruling | ‘(1) (a) By making services supplied by lawyers subject to VAT without taking account, having regard to the right to the assistance of a lawyer and the principle of equality of arms, of whether or not a client who does not qualify for legal aid is subject to VAT, is Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax compatible with Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 14 of the International Covenant on Civil and Political Rights and with Article 6 of the European Convention on Human Rights, in so far as that article recognises that everyone is entitled to a fair hearing and has the possibility of being advised, defended and represented and that there is a right to legal aid for those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice? (b) For the same reasons, is Directive 2006/112 compatible with Article 9(4) and (5) of the Aarhus Convention in so far as those provisions establish a right of access to justice without the cost of those procedures being prohibitively expensive through ‘the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice’? (c) May services provided by lawyers under a national legal aid scheme be included in the services referred to in Article 132(1)(g) of Directive 2006/112 which are closely linked to welfare and social security work, or may they be exempted under another provision of that directive? If that question is answered in the negative, is Directive 2006/112, interpreted as not permitting a VAT exemption for services supplied by lawyers for clients who qualify for legal aid under a national legal aid scheme, compatible with Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 14 of the ICCPR and with Article 6 of the ECHR? (2) If the questions mentioned in paragraph 1 are answered in the negative, is Article 98 of Directive 2006/112, in so far as it does not provide for the possibility of applying a reduced rate of VAT to services supplied by lawyers, as the case may be depending on whether or not a client who does not qualify for legal aid is subject to VAT, compatible with Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 14 of the ICCPR and with Article 6 of the ECHR, in so far as that article recognises that everyone is entitled to a fair hearing and has the possibility of being advised, defended and represented and that there is a right to legal aid for those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice? (3) If the questions mentioned in paragraph 1 are answered in the negative, is Article 132 of Directive 2006/112 compatible with the principle of equality and non–discrimination enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and Article 9 TEU, in conjunction with Article 47 of that charter, in so far as it does not provide, among activities in the public interest, for VAT exemption for services of lawyers, when other supplies of services are exempted as activities in the public interest, such as the supply of services by the public postal services, various medical services or services connected with education, sport or culture, and when that difference in treatment between services of lawyers and services exempted by Article 132 of that directive raises sufficient doubts because services of lawyers contribute to respect for certain fundamental rights? (4) (a) If the questions mentioned in paragraphs 1 and 3 are answered in the negative, can Article 371 of Directive 2006/112 be interpreted, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union, as authorising a Member State of the European Union partially to maintain the exemption for services supplied by lawyers where those services are performed for clients who are not subject to VAT? (b) Can Article 371 of Directive 2006/112 also be interpreted, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union, as authorising a Member State of the European Union partially to maintain the exemption for services supplied by lawyers where those services are performed for clients who qualify for legal aid under a national legal aid scheme?’ |
Decision | 1. The examination of Article 1(2) and Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in the light of the right to an effective remedy and the principle of equality of arms under Article 47 of the Charter of Fundamental Rights of the European Union has not revealed anything which might affect their validity in so far as those provisions impose VAT on services supplied by lawyers to clients who do not qualify for legal aid under a national legal aid scheme. 2. Article 9(4) and (5) of the Convention on access to information, public participation in decision–making and access to justice in environmental matters, signed at Aarhus on 25 June 1998, cannot be relied on for the purposes of assessing the validity of Article 1(2) and Article 2(1)(c) of Directive 2006/112. 3. Article 132(1)(g) of Directive 2006/112 must be interpreted as meaning that the services supplied by lawyers for clients who qualify for legal aid under a national legal aid scheme, such as that at issue in the main proceedings, are not exempt from VAT. |
Case number | C–539/14 |
Case name | Sánchez Morcillo and Abril García |
Document | Order ECLI:EU:C:2015:508 |
Date | 16/07/2015 |
Source of the question referred for a preliminary ruling | Audiencia Provincial de Castellón (Spain) |
Name of the parties | Juan Carlos Sánchez Morcillo and María del Carmen Abril García v Banco Bilbao Vizcaya Argentaria, SA |
Subject matter | Consumer protection; unfair terms; objection to foreclosure on the basis of a mortgage on their home. |
Key words | Morcillo and Garcia – Charter of Fundamental Rights of the European Union – Consumer contracts – Mortgage loan contract – Unfair terms – Mortgage enforcement proceedings – Right of appeal |
Question referred for a preliminary ruling | ‘Must Article 7(1) of [Directive 93/13], read in conjunction with Articles 47, 34(3) and 7 of the [Charter] be interpreted as precluding a procedural provision of the kind laid down in Article 695(4) of [the amended LEC], applicable to appeals against a decision determining the outcome of an objection to enforcement proceedings in relation to mortgaged or pledged goods, which allows an appeal to be brought only against an order terminating the proceedings, disapplying an unfair term or rejecting an objection based on an unfair term, the immediate consequence of which is that more legal remedies on appeal are available to the seller or supplier seeking enforcement than to the consumer against whom enforcement is sought?’ |
Decision | Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in conjunction with Articles 47, 34(3) and 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a national provision of the kind at issue in the main proceedings, by which the consumer, as a mortgage debtor against whom enforcement proceedings are brought, may bring an appeal against the decision rejecting his objection to the enforcement only when the court of first instance has not upheld an objection based on the unfairness of the contractual term upon which the enforcement is based even though the sellers or suppliers may, by contrast, appeal against any decision terminating proceedings regardless of the ground of objection on which that decision is based. |
Case number | C–439/14 |
Case name | Star Storage |
Document | Judgment ECLI:EU:C:2016:688 |
Date | 15/09/2016 |
Source of the question referred for a preliminary ruling | In Joined Cases C–439/14 Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) and the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania) |
Name of the parties | SC Star Storage SA v Institutul Naţional de Cercetare–Dezvoltare în Informatică (ICI) and SC Max Boegl România SRL and Others v RA Aeroportul Oradea and Others |
Subject matter | Public procurement; appeal procedures; procurement procedure relating to the extension and modernisation of the infrastructure of Oradea Airport (Romania) |
Key words | Star Storage – Public procurement – Review procedures – National legislation making the admissibility of appeals against the acts of a contracting authority subject to giving a ‘good conduct guarantee’ – Charter of Fundamental Rights of the European Union – Right to an effective remed |
Question referred for a preliminary ruling | Case C–439/14 |
Decision | Article 1(1) to (3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Article 1(1) to (3) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66, and read in the light of Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which makes the admissibility of any action against an act of the contracting authority subject to the obligation for the applicant to constitute a good conduct guarantee that it provides to the contracting authority, if that guarantee must be refunded to the applicant whatever the outcome of the action. |
Case number | C–419/14 |
Case name | WebMindLicenses |
Document | Judgment ECLI:EU:C:2015:832 |
Date | 17/12/2015 |
Source of the question referred for a preliminary ruling | Fővárosi Közigazgatási és Munkaügyi bíróság (Administrative and Labour Court, Budapest, Hungary) |
Name of the parties | WebMindLicenses kft v Nemzeti Adó– és Vámhivatal Kiemelt Adó– és Vám Főigazgatóság |
Subject matter | Freedom to provide services – Harmonisation of tax legislation; assessment of value added tax for large taxable persons |
Key words | WebMindLicenses – Value added tax – Place of supply of electronically supplied services – Artificial fixing of that place by means of an arrangement not reflecting economic reality – Abuse of rights – Charter of Fundamental Rights of the European Union – Rights of the defence – Right to be heard – Use by the tax authorities of evidence obtained without the taxable person’s knowledge in the context of a parallel criminal procedure that has not been concluded – Interception of telecommunications and seizure of emails |
Question referred for a preliminary ruling | ‘(1) Under Articles 2(1)(c), 24(1) and 43 of [the VAT Directive], in order to identify the person supplying the service for the purposes of VAT, when examining whether the transaction is fictitious, has no real financial or commercial content and is intended only to secure a tax advantage, is it relevant for the purposes of interpretation that, in the circumstances of the main proceedings, the manager and 100% owner of the commercial company which grants the licence is the natural person who created the know–how transferred by means of the licensing agreement? (2) If the answer to question 1 is in the affirmative, when applying Articles 2(1)(c), 24(1) and 43 of the VAT Directive and assessing whether there is an abusive practice, is it relevant that this natural person exercises or may exercise influence informally over the running of the commercial company which acquired the licence and over the decisions of that company? For the purposes of that interpretation, might it be relevant that the creator of the know–how participates or may participate directly or indirectly, by advising professionally or offering advice on the development and exploitation of the know–how, in taking business decisions relating to the supply of the service based on that know–how? (3) In the circumstances of the main proceedings and in the light of the considerations set out in question 2, in order to identify the person supplying the service for the purposes of VAT is it relevant, in addition to the analysis of the underlying contractual transaction, that the creator of the know–how, as a natural person, exercises influence, or decisive influence, or issues directions regarding the way in which the service based on that know–how is supplied? (4) If the answer to question 3 is in the affirmative, when determining the extent of that influence and those directions, what circumstances can be taken into account, or, more specifically, on the basis of what criteria may it be found that a decisive influence is exercised over the supply of the service and that the real financial content of the underlying transaction was for the benefit of the undertaking granting the licence? (5) In the circumstances of the main proceedings, in considering whether a tax advantage has been gained, is it relevant when analysing the relations between the traders and the persons involved in the transaction that the taxable persons who took part in the contested contractual transaction, which is intended to avoid tax, are legal persons, when the tax authority of a Member State attributes the adoption of strategic and operational decisions on exploitation to a natural person? If so, must account be taken of the Member State in which that natural person took those decisions? In circumstances such as those obtaining in the present case, if it can be found that the contractual position of the parties is not decisive, is it relevant for the purpose of interpretation that subcontractors carry out the management of the technical instruments, staff and financial transactions necessary for the supply of the internet–based service at issue here? (6) If it can be established that the terms of the licensing agreement do not reflect real financial content, do the reclassification of the contractual terms and the restoration of the situation which would have obtained if the transaction involving the abusive practice had not taken place imply that the tax authority of the Member State may make a different decision as to the Member State of supply and, therefore, the place where the tax is payable, even though the company which acquired the licence paid the tax payable in the Member State where it is established and in accordance with the legal requirements laid down in that Member State? (7) Must Articles 49 TFEU and 56 TFEU be interpreted as meaning that a contractual arrangement such as that at issue in the main proceedings, under which a company which is a taxable person in a Member State makes available by means of a licensing agreement the know–how and operating right for the supply of services providing adult content through interactive internet–based communication technology to an undertaking which is a taxable person in another Member State, in circumstances where the burden of VAT of the Member State of residence of the company which acquired the licence is more advantageous as regards the service transferred, is contrary to those articles and may represent an abuse of freedom of establishment and the freedom to supply services? (8) In circumstances such as those obtaining in the present case, what significance must be attached to the tax advantage which may be presumed to arise and to the commercial considerations taken into account by the company which grants the licence? In that connection and more specifically, is it relevant for the purposes of interpretation that the 100% owner and manager of the commercial company which grants the licence is the natural person who originally created the know–how? (9) In analysing abusive conduct may circumstances such as those of the main proceedings, for instance the technical and infrastructure data relating to the setting up and performance of the service which is the subject of the transaction at issue and the preparation and staff available to the company which grants the licence to supply the service in question, be taken into account and, if so, what significance do they have? (10) In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Article 4(3) TEU and Article 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the European Union to collect the total amount of VAT effectively and exactly and prevent the loss to the public coffers entailed by tax evasion and avoidance across the borders of the Member States, in the case of a transaction for the supply of services and in order to identify the person supplying the service, the tax authority of the Member State, at the evidence–gathering stage of the administrative tax procedure and in order to clarify the facts, is entitled to admit data, information and evidence, and, therefore, records of intercepted communication, obtained without the knowledge of the taxable person by the investigating body of the tax authority in the context of a criminal procedure and to use them as a basis for its assessment of the tax implications, and that, for its part, the administrative court hearing the action brought against the administrative decision of the tax authority of the Member State is entitled to carry out an assessment of those matters as evidence, while examining the legality of that evidence? (11) In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Article 4(3) TEU and Article 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the European Union to collect the total amount of VAT effectively and exactly and compliance with the obligation of the Member States to guarantee observance of the obligations imposed on the taxable person, the discretion with regard to the means available to the tax authority of the Member State includes the option for it to use evidence obtained initially for the purpose of criminal proceedings to prevent tax avoidance, including where national law itself does not allow the obtaining of information without the knowledge of the person concerned in the context of an administrative procedure to prevent tax avoidance, or subjects it in the context of criminal proceedings to guarantees which are not provided for in the administrative tax proceedings, recognising at the same time the right of the administrative authority to act in accordance with the principle of the freedom of evidence? (12) Does Article 8(2) of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’)], in conjunction with Article 52(2) of the Charter, prevent recognition that the tax authority of the Member State has the authority described in questions 10 and 11, or, in the circumstances of the present case, can it be considered justified, in order to combat tax avoidance, to use in the context of an administrative tax procedure conclusions drawn from information obtained without the knowledge of the person concerned, with a view to the effective collection of tax and for the sake of the ‘financial well–being of the country’? (13) If the answer to questions 10 to 12 is that the tax authority of the Member State may use such evidence in the administrative procedure, is the tax authority of the Member State required, in order to guarantee the effectiveness of the right to good administration and the rights of the defence pursuant to Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 51(1) of the Charter, to hear the taxable person in the course of the administrative procedure, to guarantee him access to the conclusions suggested by the information obtained without his knowledge and to respect the purpose for which the data appearing in the evidence were obtained, or, in that context, does the fact that the information collected without the knowledge of the person concerned is intended solely for an investigation of a criminal nature prevent from the outset the use of such evidence? (14) In the event that evidence is obtained and used in breach of Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 47 of the Charter, is the right to an effective remedy satisfied by national legislation under which the challenging in judicial proceedings of the procedural legality of decisions given in tax matters can succeed and result in the setting aside of the decision only if, according to the circumstances of the case, there is the possibility in practice that the contested decision would have been different if the procedural error had not occurred and if, moreover, that defect affected the substantive legal position of the applicant, or do the procedural errors made in that way have to be taken into account in a wider context, regardless of the influence that the procedural error which infringes the Charter has on the outcome of the proceedings? (15) Does the effectiveness of Article 47 of the Charter require that, in a procedural situation such as the present, the administrative court hearing the action against the administrative decision of the tax authority of the Member State may review the legality of the obtaining of evidence collected for the purpose of criminal proceedings without the knowledge of the person concerned in the context of criminal proceedings, in particular when the taxable person against whom the criminal proceedings have been brought in parallel has not been able to have knowledge of that documentation or contest its legality before a court? (16) Also having regard to question 6, must [Regulation No 904/2010], in the light, in particular, of recital 7 in its preamble, according to which, for the purposes of collecting the tax owed, Member States should cooperate to help ensure that VAT is correctly assessed and, in order to do so, they must not only monitor the correct application of tax owed in their own territory, but should also provide assistance to other Member States for ensuring the correct application of tax relating to activity carried out on their own territory but owed in another Member State, be interpreted as meaning that, in a situation where the facts are as in the present case, the tax authority of the Member State which discovers the tax debt must make a request to the tax authority of the Member State in which the taxable person was subject to a tax inspection and complied with its obligation to pay tax? (17) If the answer to question 16 is in the affirmative and the decisions adopted by the tax authority of the Member State are challenged before a court and are found to be unlawful in procedural terms on that ground, in other words, on the basis of failure to obtain information and the absence of a request, what action should the court hearing the action against the administrative decisions adopted by the tax authority of the Member State take, having regard also to the considerations set out in question 14?’ |
Decision | 1. EU law must be interpreted as meaning that, in order to determine whether, in circumstances such as those of the main proceedings, a licensing agreement concerning the making available of know–how enabling operation of a website by which interactive audiovisual services were supplied, concluded with a company established in a Member State other than that in which the company granting the licence is established, arose from an abuse of rights designed to benefit from the fact that the rate of value added tax applicable to those services was lower in that other Member State, the fact that the manager and sole shareholder of the latter company was the creator of that know–how, that that same person exercised influence or control over the development and exploitation of that know–how and over the supply of the services which were based on it and that management of the financial transactions, staff and technical instruments necessary for the supply of those services was carried out by subcontractors, and the reasons which may have led the company granting the licence to make the know–how at issue available to a company established in that other Member State instead of exploiting it itself, do not appear decisive in themselves. It is incumbent upon the referring court to analyse all the circumstances of the main proceedings in order to determine whether that agreement constituted a wholly artificial arrangement concealing the fact that the services at issue were not actually supplied by the company acquiring the licence, but were in fact supplied by the company granting it, examining in particular whether the establishment of the place of business or fixed establishment of the company acquiring the licence was not genuine, whether that company, for the purpose of engaging in the economic activity concerned, did not possess an appropriate structure in terms of premises and human and technical resources and whether it did not engage in that economic activity in its own name and on its own behalf, under its own responsibility and at its own risk. 2. EU law must be interpreted as meaning that, if an abusive practice is found which has resulted in the place of supply of services being fixed in a Member State other than the Member State where it would have been fixed in the absence of that abusive practice, the fact that value added tax has been paid in that other Member State in accordance with its legislation does not preclude an adjustment of that tax in the Member State in which the place where those services have actually been supplied is located. 3. Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax must be interpreted as meaning that the tax authorities of a Member State which are examining whether value added tax is chargeable in respect of supplies of services that have already been subject to that tax in other Member States are required to send a request for information to the tax authorities of those other Member States when such a request is useful, or even essential, for determining that value added tax is chargeable in the first Member State. 4. EU law must be interpreted as not precluding, for the purposes of the application of Article 4(3) TEU, Article 325 TFEU and Articles 2, 250(1) and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, the tax authorities from being able, in order to establish the existence of an abusive practice concerning value added tax, to use evidence obtained without the taxable person’s knowledge in the context of a parallel criminal procedure that has not yet been concluded, by means, for example, of the interception of telecommunications and seizure of emails, provided that the obtaining of that evidence in the context of the criminal procedure and its use in the context of the administrative procedure do not infringe the rights guaranteed by EU law. In circumstances such as those of the main proceedings, by virtue of Articles 7, 47 and 52(1) of the Charter of Fundamental Rights of the European Union it is incumbent upon the national court which reviews the legality of the decision founded on such evidence adjusting value added tax to verify, first, whether the interception of telecommunications and seizure of emails were means of investigation provided for by law and were necessary in the context of the criminal procedure and, secondly, whether the use by the tax authorities of the evidence obtained by those means was also authorised by law and necessary. It is incumbent upon that court, furthermore, to verify whether, in accordance with the general principle of observance of the rights of the defence, the taxable person had the opportunity, in the context of the administrative procedure, of gaining access to that evidence and of being heard concerning it. If the national court finds that the taxable person did not have that opportunity or that that evidence was obtained in the context of the criminal procedure, or used in the context of the administrative procedure, in breach of Article 7 of the Charter of Fundamental Rights of the European Union, it must disregard that evidence and annul that decision if, as a result, the latter has no basis. That evidence must also be disregarded if the national court is not empowered to check that it was obtained in the context of the criminal procedure in accordance with EU law or cannot at least satisfy itself, on the basis of a review already carried out by a criminal court in an inter partes procedure, that it was obtained in accordance with EU law. |
Case number | C–362/14 |
Case name | Schrems |
Document | Judgment ECLI:EU:C:2015:650 |
Date | 06/10/2015 |
Source of the question referred for a preliminary ruling | High Court (Ireland) |
Name of the parties | Maximillian Schrems v Data Protection Commissioner |
Subject matter | Protection of personal data; information and communication technologies; telecommunications; transfer of personal data of its users to the United States and storage on servers located there |
Key words | Schrems – Personal data – Protection of individuals with regard to the processing of such data – Charter of Fundamental Rights of the European Union –Transfer of personal data to third countries – Transfer of personal data to the United States – Inadequate level of protection – Validity – Complaint by an individual whose data has been transferred from the European Union to the United States – Powers of the national supervisory authorities |
Question referred for a preliminary ruling | ‘(1) Whether in the course of determining a complaint which has been made to an independent office holder who has been vested by statute with the functions of administering and enforcing data protection legislation that personal data is being transferred to another third country (in this case, the United States of America) the laws and practices of which, it is claimed, do not contain adequate protections for the data subject, that office holder is absolutely bound by the Community finding to the contrary contained in [Decision 2000/520] having regard to Article 7, Article 8 and Article 47 of [the Charter], the provisions of Article 25(6) of Directive [95/46] notwithstanding? (2) Or, alternatively, may and/or must the office holder conduct his or her own investigation of the matter in the light of factual developments in the meantime since that Commission decision was first published?’ |
Decision | 1. Article 25(6) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, read in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a decision adopted pursuant to that provision, such as Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46 on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce, by which the European Commission finds that a third country ensures an adequate level of protection, does not prevent a supervisory authority of a Member State, within the meaning of Article 28 of that directive as amended, from examining the claim of a person concerning the protection of his rights and freedoms in regard to the processing of personal data relating to him which has been transferred from a Member State to that third country when that person contends that the law and practices in force in the third country do not ensure an adequate level of protection. 2. Decision 2000/520 is invalid. |
Case number | C–239/14 |
Case name | Tall |
Document | Judgment ECLI:EU:C:2015:824 |
Date | 17/12/2015 |
Source of the question referred for a preliminary ruling | Tribunal du travail v Liègeu (Belgium) |
Name of the parties | Abdoulaye Amadou Tall v Centre public d’action sociale de Huy |
Subject matter | Area of freedom, security and justice; asylum policy; border control; withdrawal of social assistance |
Key words | Tall – Area of freedom, security and justice – Minimum standards on procedures in Member States for granting and withdrawing refugee status – Right to an effective remedy – Multiple asylum claims – Non–suspensory effect of an appeal against a decision of the competent national authority not to further examine a subsequent application for asylum – Social protection – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘According to Article 39/1 of the Law of 15 December 1980, read in conjunction with [the third subparagraph of Article 39/2(1), Article 39/76, point (d) of the second subparagraph of Article 39/82(4) and Article 57/6/2] of the same law, only appeals seeking annulment and suspension due to extreme urgency may be brought against a decision refusing to consider a multiple asylum claim. Given that in such an appeal the court does not have full jurisdiction to determine issues of fact and law, the appeal does not have suspensory effect and the applicant does not have the right of residence nor to material assistance while it is under consideration, are such appeals compatible with the requirements of Article 47 of the [Charter] and Article 39 of [Directive 2005/85] which lay down the right to an effective remedy?’ |
Decision | Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which does not confer suspensory effect on an appeal brought against a decision, such as the one at issue in the main proceedings, not to further examine a subsequent application for asylum. |
Case number | C–169/14 |
Case name | Sánchez Morcillo and Abril García |
Document | Judgment ECLI:EU:C:2014:2099 |
Date | 17/07/2014 |
Source of the question referred for a preliminary ruling | Audiencia Provincial de Castellón (Spain) |
Name of the parties | Juan Carlos Sánchez Morcillo and María del Carmen Abril García v Banco Bilbao Vizcaya Argentaria SA |
Subject matter | Consumer protection; unfair terms; objection to foreclosure on the basis of a mortgage on a dwelling |
Key words | Morcillo and Garcia – Charter of Fundamental Rights of the European Union – Consumer contracts – Mortgage loan agreement – Unfair terms – Mortgage enforcement proceedings – Right to an appeal |
Question referred for a preliminary ruling | ‘(1) Is it incompatible with Article 7(1) of Directive 93/13, which imposes on Member States the obligation to ensure that, in the interests of consumers, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers, for a procedural rule, such as that laid down in Article 695(4) [of the LEC], which, as regards the right to an appeal against a decision determining the outcome of an objection to enforcement proceedings in relation to mortgaged or pledged assets, to permit an appeal to be brought only against an order discontinuing the proceedings or disapplying an unfair clause and to exclude an appeal in other cases, the immediate consequence of which is that whilst the party seeking enforcement may appeal when an objection to enforcement is upheld and the proceedings are brought to an end or an unfair term is disapplied, the consumer party against whom enforcement is sought may not appeal if his objection is dismissed? (2) Within the ambit of EU legislation on consumer protection in Directive 93/13, does the principle of the right to an effective remedy, to a fair trial and to equality of arms, guaranteed by Article 47 of the Charter, preclude a provision of national law, such as that laid down in Article 695(4) [of the LEC], which, concerning the right of appeal against a decision ruling on an objection to enforcement against mortgaged or pledged assets, allows an appeal to be brought only against an order discontinuing the proceedings or disapplying an unfair term but excludes appeals in other cases, the direct result of which is that whilst the party seeking enforcement may appeal when an objection to enforcement is upheld and the proceedings brought to an end or an unfair term is disapplied, the party against whom the enforcement is sought may not bring an appeal if his objection is dismissed?’ |
Decision | Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding a system of enforcement, such as that at issue in the main proceedings, which provides that mortgage enforcement proceedings may not be stayed by the court of first instance, which, in its final decision, may at most award compensation in respect of the damage suffered by the consumer, inasmuch as the latter, the debtor against whom mortgage enforcement proceedings are brought, may not appeal against a decision dismissing his objection to that enforcement, whereas the seller or supplier, the creditor seeking enforcement, may bring an appeal against a decision terminating the proceedings or ordering an unfair term to be disapplied. |
Case number | C–146/14 PPU |
Case name | Mahdi |
Document | Judgment ECLI:EU:C:2014:1320 |
Date | 05/06/2014 |
Source of the question referred for a preliminary ruling | Administrativen sad Sofija–grad (Bulgaria) |
Name of the parties | Bashir Mohamed Ali Mahdi |
Subject matter | Area of freedom, security and justice; asylum policy; border control; return of illegally staying third–country nationals |
Key words | Mahdi – Visas, asylum, immigration and other policies related to free movement of persons –Return of illegally staying third–country nationals – Detention – Extension of detention – Obligations of the administrative or judicial authority – Review by a judicial authority – Third–country national without identity documents – Obstacles to implementation of a removal decision – Refusal of the embassy of the third country concerned to issue an identity document enabling the third–country national to be returned – Risk of absconding – Reasonable prospect of removal – Lack of cooperation – Whether the Member State concerned is under an obligation to issue a temporary document relating to the status of the person concerned |
Question referred for a preliminary ruling | ‘(1) Is Article 15(3) and (6) of Directive 2008/115, in conjunction with Articles 6 and 47 of the Charter, concerning the right to a judicial review and effective judicial protection, to be interpreted as meaning that: (a) where an administrative authority is obliged under the national law of a Member State to conduct a monthly review of detention without there being an express obligation to adopt an administrative measure and where it has to submit to the court ex officio a list of third–country nationals detained beyond the statutorily prescribed maximum length of the initial detention owing to obstacles to removal, the administrative authority is obliged, on the expiry of the period laid down in the individual decision to detain for the first time, either to adopt an express detention review measure having regard to the grounds for an extension of detention provided for under EU law or to release the person in question; (b) where the national law of the Member State in question provides for the courts to have the power, on the expiry of the maximum period for initial detention laid down under national law, to order an extension of the period of detention for removal purposes, to replace detention with a less coercive measure or to order the release of the third–country national, the court is obliged, in a situation such as that in the main proceedings, to examine the legality of a detention review measure that gives the legal and factual reasons for the need to extend the period of detention and the length thereof by deciding on the merits on the continuation of detention, its replacement or the release of the person in question; (c) it permits the court, having regard to the grounds for an extension of detention provided for under EU law, to examine the legality of a detention review measure that only gives reasons for which the decision to remove a third–country national cannot be implemented, by deciding the merits of the dispute in a decision on the continuation of detention, its replacement or the release of the person in question solely on the basis of facts stated and evidence adduced by the administrative authority and facts and objections stated by the third‑country national? (2) Is Article 15(1) and (6) of Directive 2008/115 to be interpreted, in a situation such as that obtaining in the main proceedings, as meaning that the autonomous reason for extending detention provided for under national law, namely that ‘the person in question … [has] no identity documents’, is permissible from the point of view of EU law as subsumable under both cases mentioned in Article 15(6) of the directive where, under the national law of the Member State, because of those circumstances it can be assumed that there is reason to believe that the person in question will attempt to circumvent implementation of the removal decision, which in turn presents a risk of absconding within the meaning of the law of that Member State? (3) Are paragraphs 1(a) and (b) and 6 of Article 15 of Directive 2008/115, in conjunction with recitals 2 and 13 in the preamble to the directive with regard to respect for the fundamental rights and dignity of third–country nationals and the application of the principle of proportionality, to be interpreted in a situation such as that obtaining in the main proceedings as permitting the conclusion that there is a reasonable risk of absconding owing to the fact that the person in question has no identity documents, has crossed the state boundary illegally and has said that he will not return to his country of origin, even though he has previously completed a statement as to his voluntary return and provided correct details of his identity, when these circumstances fall within the concept of a ‘risk of absconding’ in the case of the addressee of a return decision within the meaning of the directive, which is defined under national law as reason to believe, based on the facts, that the person in question will attempt to circumvent implementation of the return decision? (4) Are paragraphs 1(a) and (b), 4 and 6 of Article 15 of Directive 2008/115, in conjunction with recitals 2 and 13 in the preamble to the directive with regard to respect for the fundamental rights and dignity of third–country nationals and the application of the principle of proportionality, to be interpreted in a situation such as that obtaining in the main proceedings as meaning that: (a) the third–country national does not demonstrate cooperation in the preparation of implementation of the decision to return him to his country of origin if he states verbally to an embassy official of that country that he does not wish to return to his country of origin even though he has previously completed a statement as to his voluntary return and provided correct details of his identity, and there are delays in obtaining the necessary documentation from the third country and there is a reasonable prospect of implementation of the return decision, if in these circumstances the embassy of that country does not issue the document necessary for the person in question to travel to his country of origin even though it has confirmed that person’s identity; (b) in the event of the release of a third–country national on account of the absence of a reasonable prospect of implementation of a removal decision where that third–country national has no identity documents, has crossed the state border illegally and states that he does not wish to return to his country of origin, it is to be assumed that the Member State is under an obligation to issue a temporary document on the status of the person in question if the embassy of the country of origin does not in these circumstances issue the document required for the person in question to travel to his country of origin even though it has confirmed that person’s identity?’ |
Decision | 1. Article 15(3) and (6) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that any decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third–country national, on the further course to take concerning the detention must be in the form of a written measure that includes the reasons in fact and in law for that decision. 2. Article 15(3) and (6) of Directive 2008/115 must be interpreted as meaning that the ‘supervision’ that has to be undertaken by a judicial authority dealing with an application for extension of the detention of a third–country national must permit that authority to decide, on a case–by–case basis, on the merits of whether the detention of the third–country national concerned should be extended, whether detention may be replaced with a less coercive measure or whether the person concerned should be released, that authority thus having power to take into account the facts stated and evidence adduced by the administrative authority which has brought the matter before it, as well as any facts, evidence and observations which may be submitted to the judicial authority in the course of the proceedings. 3. Article 15(1) and (6) of Directive 2008/115 must be interpreted as precluding national legislation such as that at issue in the main proceedings, pursuant to which an initial six–month period of detention may be extended solely because the third–country national concerned has no identity documents. It is for the referring court alone to undertake an individual assessment of the facts and circumstances of the case in question in order to determine whether a less coercive measure may be applied effectively to that third–country national or whether there is a risk of him absconding. 4. Article 15(6)(a) of Directive 2008/115 must be interpreted as meaning that a third–country national who, in circumstances such as those in issue in the main proceedings, has not obtained an identity document which would have made it possible for him to be removed from the Member State concerned may be regarded as having demonstrated a ‘lack of cooperation’ within the meaning of that provision only if an examination of his conduct during the period of detention shows that he has not cooperated in the implementation of the removal operation and that it is likely that that operation lasts longer than anticipated because of that conduct, a matter which falls to be determined by the referring court. 5. Directive 2008/115 must be interpreted as meaning that a Member State cannot be obliged to issue an autonomous residence permit, or other authorisation conferring a right to stay, to a third–country national who has no identity documents and has not obtained such documentation from his country of origin, after a national court has released the person concerned on the ground that there is no longer a reasonable prospect of removal within the meaning of Article 15(4) of that directive. However, that Member State must, in such a case, provide the third–country national with written confirmation of his situation. |
Case number | C–562/13 |
Case name | Abdida |
Document | Judgment ECLI:EU:C:2014:2453 |
Date | 18/12/2014 |
Source of the question referred for a preliminary ruling | Cour du travail de Bruxelles (Belgium) |
Name of the parties | Centre public d’action sociale d’Ottignies–Louvain–La–Neuve v Moussi Abdidi |
Subject matter | Area, freedom, security and justice; asylum policy; border control; withdrawal of social assistance |
Key words | Abdida – Charter of Fundamental Rights of the European Union – Minimum standards for determining who qualifies for refugee status or subsidiary protection status – Person eligible for subsidiary protection – Torture or inhuman or degrading treatment or punishment of an applicant in the country of origin – More favourable standards – Applicant suffering from a serious illness – No appropriate treatment available in the country of origin – Return of illegally staying third–country nationals – Judicial remedy with suspensive effect – Safeguards pending return – Basic needs |
Question referred for a preliminary ruling | ‘(1) On a proper construction of [Directives 2004/83, 2005/85 and 2003/9], is a Member State which provides that a foreign national has the right to subsidiary protection for the purposes of Article 15(b) of [Directive 2004/83] if that person ‘suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment where there is no appropriate treatment in his country of origin’ under an obligation to: – provide for a remedy with suspensive effect in respect of the administrative decision refusing leave to remain and/or subsidiary protection, and ordering the person concerned to leave the territory of that State, – make provision under its social security or reception system for the basic needs of the person applying for subsidiary protection (other than his medical needs) to be met pending a ruling on his appeal against that administrative decision? (2) If the answer to Question 1 is in the negative, does [the Charter] – in particular, Articles 1 to 3 …, Article 4 …, Article 19(2) …, Articles 20 and 21… and/or Article 47 … of that Charter – place a Member State in course of transposing [Directives 2004/83, 2005/85 and 2003/9] into national law under an obligation to make provision for a remedy with suspensive effect and for the requisite means of meeting the basic needs referred to in Question 1?’ |
Decision | Articles 5 and 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, taken in conjunction with Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union and Article 14(1)(b) of that directive, are to be interpreted as precluding national legislation which: – does not endow with suspensive effect an appeal against a decision ordering a third country national suffering from a serious illness to leave the territory of a Member State, where the enforcement of that decision may expose that third country national to a serious risk of grave and irreversible deterioration in his state of health, and – does not make provision, in so far as possible, for the basic needs of such a third country national to be met, in order to ensure that that person may in fact avail himself of emergency health care and essential treatment of illness during the period in which that Member State is required to postpone removal of the third country national following the lodging of the appeal. |
Case number | C–510/13 |
Case name | E.ON Földgáz Trade |
Document | Judgment ECLI:EU:C:2015:189 |
Date | 19/03/2015 |
Source of the question referred for a preliminary ruling | Kúria (Hungary) |
Name of the parties | E.ON Földgáz Trade Zrt v Magyar Energetikai és Közmű–szabályozási Hivatal |
Subject matter | Freedom to provide services; energy; gas network code |
Key words | E.ON – Internal market in natural gas – Temporal application – Capacity allocation mechanisms and congestion management procedures – Decision of a regulatory authority – Right to bring an action – Action brought by a company holding a natural gas transmission authorisation – Charter of Fundamental Rights of the European Union – Right to effective judicial protection against a decision of a regulatory authority |
Question referred for a preliminary ruling | ‘(1) In proceedings relating to an administrative decision adopted when [the second directive] was in force, do the provisions laid down in Article 25 of that directive, determining who is entitled to bring an action, apply, or are the provisions to be taken into consideration for the purposes of those proceedings those laid down in Article 41 of [the third directive] which entered into force during the proceedings, account being taken of the second subparagraph of Article 54(1) of that directive, under which those provisions are to be applicable from 3 March 2011? (2) In the event that the [third directive] is applicable, can an approved vendor with a financial interest comparable to the interest at stake in the present proceedings, in relation to an action contesting the decision approving a network code or determining its content, be regarded as ‘a party affected’ for the purposes of Article 41(17) of that directive, or can only the network manager who is authorised to seek approval of the code be regarded as ‘a party affected’? (3) In the event that the [second directive] is applicable, does the approval or amendment of the network code, such as that which has taken place in the present case, fall within the situations contemplated in Articles 25(5) and (6), in as much as it refers to the assessment of requests for reserve capacity? (4) In the event that the case falls within one of the situations contemplated in Article 25(6) of the [second directive], can an approved vendor with a financial interest comparable to the interest at stake in the present proceedings, in relation to an action contesting the decision approving a network code or determining its content, be regarded as ‘a party affected’ for the purposes of Article 41(17) of that directive, or can only the network manager who is authorised to seek approval of the code be regarded as ‘a party affected’? (5) What interpretation is to be given to Article 25(11) of the [second directive], in accordance with which the claims referred to in Article 25(5) and (6) are to be without prejudice to the exercise of rights of appeal under [European Union] and national law, in the event that it is apparent from the answers to the preceding questions that national law makes the bringing of an action subject to more stringent requirements than those laid down in the directive or in [European Union] law?’ |
Decision | 1. Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, the period allowed for whose transposition expired on 3 March 2011 and, in particular, the new provisions introduced in Article 41(17) thereof, must be interpreted as not applying to an action against a decision of a regulatory authority, such as that at issue in the main proceedings, adopted before the expiry of that period allowed for transposition and which was still pending on that date. 2. Article 5 of Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks, read in conjunction with the Annex to that regulation, and Article 47 of the Charter, must be interpreted as precluding national legislation concerning the exercise of rights of action before the court or tribunal having jurisdiction to review the lawfulness of acts of a regulatory authority, which, in circumstances such as those at issue in the main proceedings, does not make it possible to confer on an operator, such as E.ON Földgáz Trade Zrt, locus standi for the purpose of bringing an action against a decision of that authority relating to the gas network code. |
Case number | C–396/13 |
Case name | Sähköalojen ammattiliitto |
Document | Judgment ECLI:EU:C:2015:86 |
Date | 12/02/2015 |
Source of the question referred for a preliminary ruling | Satakunnan käräjäoikeus (Finland) |
Name of the parties | Sähköalojen ammattiliitto ry v Elektrobudowa Spolka Akcyjna |
Subject matter | Employment and social policy; posted workers to carry out works |
Key words | Sähköalojen ammattiliitto – Workers of a company with its seat in Member State A, posted to carry out works in Member State B – Minimum wage provided for by the collective agreements of Member State B – Locus standi of a trade union with its seat in Member State B – Legislation of Member State A prohibiting the assignment to a third party of claims relating to pay |
Question referred for a preliminary ruling | ‘(1) May a trade union acting in the interests of workers rely directly on Article 47 of the Charter as an immediate source of rights against a service provider from another Member State in a situation in which the provision claimed to be contrary to Article 47 (Article 84 of the Polish Labour Code) is a purely national provision? (2) Does it follow from EU law, in particular the principle of effective legal protection flowing from Article 47 of the Charter and Articles 5, second paragraph, and 6 of Directive 96/71, interpreted in conjunction with the freedom of association in trade union matters protected by Article 12 of the Charter, in proceedings concerning claims which have become due for the purposes of that directive in the State where the work is performed, that the national court must not apply a provision of the labour code of the workers’ home State which prevents the assignment of a pay claim to a trade union of the State in which the work is performed, if the corresponding provision of the State in which the work is performed permits the assignment of a pay claim which has become due and hence the status of claimant to a trade union of which all the workers who have assigned their claims are members? (3) Must the terms of Protocol (No 30) annexed to the FEU Treaty be interpreted as meaning that a national court situated in a country other than Poland or the United Kingdom must take them into account in the event that the dispute in question has a significant link with Poland, in particular where the law applicable to the contracts of employment is Polish law? In other words, does the Polish–UK Protocol preclude the Finnish court from determining that the Polish laws, regulations or administrative provisions, practices or measures are contrary to the fundamental rights, freedoms and principles proclaimed in the Charter? (4) Must Article 14(2) of Regulation No 593/2008 be interpreted, having regard to Article 47 of the Charter, as prohibiting the application of national legislation of a Member State which contains a prohibition of the assignment of claims and demands arising from an employment relationship? (5) Must Article 14(2) of Regulation No 593/2008 be interpreted as meaning that the law applicable to the assignment of claims arising from a contract of employment is the law which applies to the contract of employment in question under Regulation No 593/2008, regardless of whether the provisions of another law also affect the content of the individual claim? (6) Is Article 3 of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU, to be interpreted as meaning that the concept of minimum rates of pay covers basic hourly pay according to pay groups, guaranteed piecework pay, holiday allowance, flat–rate daily allowance and compensation for daily travelling time, as those employment and working conditions are defined in a collective agreement declared universally applicable and falling within the scope of the Annex to the directive? (a) Must Articles 56 TFEU and 57 TFEU and/or Article 3 of Directive 96/71 be interpreted as precluding Member States in their capacity as ‘host State’ from imposing, in their national legislation (a universally applicable collective agreement), on service providers from other Member States an obligation to pay compensation for travelling time and a daily allowance to employees posted to their territory, taking into account that under the national legislation referred to, all posted workers are regarded as travelling to work for the whole period of their posting, which entitles them to compensation for travelling time and daily allowances? (b) Must Articles 56 TFEU and 57 TFEU and/or Article 3 of Directive 96/71 be interpreted as not permitting the national court to decline to recognise a pay classification created and used in its home State by a company from another Member State, if that has been done? (c) Must Articles 56 TFEU and 57 TFEU and/or Article 3 of Directive 96/71 be interpreted as permitting an employer from another Member State to determine, validly and so as to bind the court of the country in which the work is performed, the categorisation of employees into pay groups in a situation in which a universally applicable collective agreement in the country in which the work is performed requires a categorisation into pay groups with a different end result to be made, or may the Member State which is the host State to which the employees of a service provider from another Member State have been posted lay down rules to be observed by the service provider on the criteria for categorisation of employees into pay groups? (d) When interpreting Article 3 of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU, are accommodation paid for by an employer who is obliged under a collective agreement mentioned in Question 6 to do so and meal vouchers provided in accordance with a contract of employment by a service provider from another Member State to be regarded as compensation for expenses caused by being a posted worker or as part of the concept of minimum rates of pay within the meaning of Article 3(1)? (e) May Article 3 of Directive 96/71 in conjunction with Articles 56 TFEU and 57 TFEU be interpreted as meaning that a universally applicable collective agreement of the State in which the work is performed must be regarded as justified on the ground of requirements of public policy, when interpreting the question of piecework pay, compensation for travelling time and daily allowances?’ |
Decision | 1. In circumstances such as those of the case before the referring court, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, prevents a rule of the Member State of the seat of the undertaking that has posted workers to the territory of another Member State – under which the assignment of claims arising from employment relationships is prohibited – from barring a trade union, such as the Sähköalojen ammattiliitto, from bringing an action before a court of the second Member State, in which the work is performed, in order to recover for the posted workers, pay claims which relate to the minimum wage, within the meaning of Directive 96/71, and which have been assigned to it, that assignment being in conformity with the law in force in the second Member State. 2. Article 3(1) and (7) of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU, must be interpreted as meaning that: – it does not preclude a calculation of the minimum wage for hourly work and/or for piecework which is based on the categorisation of employees into pay groups, as provided for by the relevant collective agreements of the host Member State, provided that that calculation and categorisation are carried out in accordance with rules that are binding and transparent, a matter which it is for the national court to verify; – a daily allowance such as that at issue in the main proceedings must be regarded as part of the minimum wage on the same conditions as those governing the inclusion of the allowance in the minimum wage paid to local workers when they are posted within the Member State concerned; – compensation for daily travelling time, which is paid to the workers on condition that their daily journey to and from their place of work is of more than one hour’s duration, must be regarded as part of the minimum wage of posted workers, provided that that condition is fulfilled, a matter which it is for the national court to verify; – coverage of the cost of those workers’ accommodation is not to be regarded as an element of their minimum wage; – an allowance taking the form of meal vouchers provided to the posted workers is not to be regarded as part of the latter’s minimum salary; and – the pay which the posted workers must receive for the minimum paid annual holidays corresponds to the minimum wage to which those workers are entitled during the reference period. |
Case number | C–112/13 |
Case name | A |
Document | Judgment ECLI:EU:C:2014:2195 |
Date | 11/09/2014 |
Source of the question referred for a preliminary ruling | Oberster Gerichtshof (Austria) |
Name of the parties | A v B and Others |
Subject matter | Area of justice, security and freedom; judicial cooperation in civil matters; national constitution |
Key words | A – National constitution – Interlocutory procedure for the mandatory review of constitutionality – Assessment as to whether a national law is consistent both with EU law and with national constitutional law – Jurisdiction and the enforcement of judgments in civil and commercial matters – Where the defendant has no known domicile or place of residence in the territory of a Member State – Prorogation of jurisdiction where the defendant enters an appearance – Court–appointed representative in absentia for the defendant |
Question referred for a preliminary ruling | ‘1. In the case of rules of procedural law under which the ordinary courts called upon to decide on the substance of cases are also required to examine whether legislation is unconstitutional but are not empowered to strike down legislation generally, this being reserved for a specially organised constitutional court, does the ‘principle of equivalence’ in the implementation of [EU] law mean that, where legislation infringes Article 47 of the [Charter], the ordinary courts are also required, in the course of the proceedings, to request the constitutional court to strike down the legislation generally, and cannot simply refrain from applying that legislation in the particular case concerned? 2. Is Article 47 of the Charter to be interpreted as precluding a procedural rule under which a court which does not have international jurisdiction appoints a representative in absentia for a party whose place of domicile cannot be established and that representative can then, by ‘entering an appearance’, confer binding international jurisdiction on that court? 3. Is Article 24 of [Regulation No 44/2001] to be interpreted as meaning that ‘a defendant enters an appearance’, for the purposes of that provision, only where that procedural act was carried out by the defendant himself or by a legal representative authorised by him, or does the foregoing obtain without restriction also in the case of a representative in absentia appointed under the law of the Member State in question?’ |
Decision | ‘1. In the case of rules of procedural law under which the ordinary courts called upon to decide on the substance of cases are also required to examine whether legislation is unconstitutional but are not empowered to strike down legislation generally, this being reserved for a specially organised constitutional court, does the ‘principle of equivalence’ in the implementation of [EU] law mean that, where legislation infringes Article 47 of the [Charter], the ordinary courts are also required, in the course of the proceedings, to request the constitutional court to strike down the legislation generally, and cannot simply refrain from applying that legislation in the particular case concerned? 2. Is Article 47 of the Charter to be interpreted as precluding a procedural rule under which a court which does not have international jurisdiction appoints a representative in absentia for a party whose place of domicile cannot be established and that representative can then, by ‘entering an appearance’, confer binding international jurisdiction on that court? 3. Is Article 24 of [Regulation No 44/2001] to be interpreted as meaning that ‘a defendant enters an appearance’, for the purposes of that provision, only where that procedural act was carried out by the defendant himself or by a legal representative authorised by him, or does the foregoing obtain without restriction also in the case of a representative in absentia appointed under the law of the Member State in question?’ |
Case number | C–104/13 |
Case name | Olainfarm |
Document | Judgment ECLI:EU:C:2014:2316 |
Date | 23/10/2014 |
Source of the question referred for a preliminary ruling | Augstākās Tiesas Senāts (Latvia) |
Name of the parties | Olainfarm AS v Latvijas Republikas Veselības ministrija and Zāļu valsts aģentūra |
Subject matter | Pharmaceutical and cosmetic products; medicinal products for human use |
Key words | Olainfarm – Approximation of laws – Industrial policy – Medicinal products for human use – Marketing authorisation– Requirement to attach to the application for authorisation the results of pharmaceutical pre–clinical tests and clinical trials – Derogations relating to pre–clinical tests and clinical trials – Generic medicinal products – Concept of ‘reference medicinal product’ – Whether the holder of a marketing authorisation for a reference medicinal product has an individual right to oppose the marketing authorisation of a generic of the reference product – Medicinal products of which the active substances have been in well–established medicinal use within the European Union for at least 10 years |
Question referred for a preliminary ruling | ‘(1) On a proper construction of Article 10 or of any other provision of Directive 2001/83 …, has the manufacturer of a medicinal product [A, registered by that manufacturer] an individual right to bring an action challenging the decision of a competent authority by which a generic medicinal product of another manufacturer was registered using, as the reference product, product [A]? In other words, does that directive confer on the manufacturer of the reference medicinal product the right to a judicial remedy, the object of which is to determine whether the manufacturer of the generic product made lawful, well–founded reference to the product registered by the manufacturer of the reference product, relying on Article 10 of the directive? (2) If the reply to the first question is in the affirmative, on a proper construction of Articles 10 and 10a of … Directive [2001/83], may a medicinal product registered in accordance with Article 10a of the directive as a medicinal product [whose active substances have been in well–established medicinal use] be employed as a reference product for the purpose of Article 10(2)(a)?’ |
Decision | 1. The concept of ‘reference medicinal product’ within the meaning of Article 10(2)(a) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007, must be interpreted as encompassing a medicinal product for which the marketing authorisation was granted on the basis of Article 10a of the directive. 2. On a proper construction of Article 10 of Directive 2001/83, as amended by Regulation No 1394/2007, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, the holder of a marketing authorisation for a medicinal product used as a reference product in an application for a marketing authorisation under Article 10 of the directive for a generic product of another manufacturer has the right to a judicial remedy enabling him to challenge the decision of the competent authority which granted the marketing authorisation for the generic product, provided that that holder is seeking judicial protection of a right conferred on him by Article 10. Such a judicial remedy exists, inter alia, where the holder demands that his medicinal product is not to be used for the purpose of obtaining, under Article 10, a marketing authorisation for another medicinal product in relation to which his own product cannot be regarded as a reference product within the meaning of Article 10(2)(a) of the directive. |
Case number | C–562/12 |
Case name | Liivimaa Lihaveis |
Document | Judgment ECLI:EU:C:2014:2229 |
Date | 17/09/2014 |
Source of the question referred for a preliminary ruling | Tartu ringkonnakohus (Estoniaa) |
Name of the parties | Liivimaa Lihaveis MTÜ v Eesti–Läti programmi 2007–2013 Seirekomitee |
Subject matter | European, social and territorial cohesion; European Regional Development Fund |
Key words | Liivimaa Lihaveis – Structural funds – European Regional Development Fund (ERDF) – Operational programme aiming to promote European territorial cooperation between the Republic of Estonia and the Republic of Latvia – Decision of the monitoring committee rejecting a subsidy – Provision that the decisions of that committee cannot be subject to legal review – Act adopted by an institution, organ or body of the European Union – Charter of Fundamental Rights of the European Union – Implementation of EU law – Right to effective judicial protection – Right of access to the courts – Determination of which Member State’s courts have jurisdiction to rule on an action |
Question referred for a preliminary ruling | ‘1. Are the rules of procedure of a monitoring committee jointly set up by two Member States, such as the programme manual adopted by the [Seirekomitee], which provide that ‘The decisions of the Monitoring Committee are not appealable at any place of jurisdiction’ (Chapter 6.6.4 of the programme manual) compatible with Article 63(2) of Council Regulation No 1083/2006 in conjunction with Article 47 of the [Charter]? 2. If Question 1 is to be answered in the negative, must point (b) of the first paragraph of Article 267 [TFEU] be interpreted as meaning that Chapter 6.6.4 of [that programme manual] is an act of an institution, body, office or agency of the European Union which must be declared invalid? 3. If Question 1 is to be answered in the negative, must the second sentence of the first paragraph of Article 263 [TFEU] in conjunction with Article 256(1) [TFEU] and Article 274 [TFEU] be interpreted as meaning that the General Court of the European Union or the competent court under national law has jurisdiction to hear and determine actions against decisions of the [Seirekomitee]?’ |
Decision | 1. Article 263 TFEU must be interpreted as meaning that, in the context of an operational programme under Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 and Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) 1783/1999 and intended to promote European territorial cooperation, an action against a decision of a monitoring committee rejecting an application for aid does not fall within the jurisdiction of the General Court of the European Union. 2. Point (b) of the first paragraph of Article 267 TFEU must be interpreted as meaning that a programme manual adopted by a monitoring committee in the context of an operational programme under Regulations Nos 1083/2006 and 1080/2006 and intended to promote European territorial cooperation between two Member States, such as that at issue in the main proceedings, does not constitute an act of an institution, body, office or agency of the European Union and, in consequence, the Court of Justice of the European Union does not have jurisdiction to review the validity of the provisions of such a manual. 3. Regulation No 1083/2006, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a provision of a programme manual adopted by a monitoring committee in the context of an operational programme established by two Member States and intended to promote European territorial cooperation, where that provision does not provide that a decision of the monitoring committee rejecting an application for aid can be subject to appeal before a court of a Member State. |
Case number | C–470/12 |
Case name | Pohotovos |
Document | Judgment ECLI:EU:C:2014:101 |
Date | 27/02/2014 |
Source of the question referred for a preliminary ruling | Okresný súd Svidník (Slovakia) |
Name of the parties | Pohotovosť s. r. o. v Miroslavu Vašuti |
Subject matter | Consumer protection; repayment in connection with a consumer credit agreement |
Key words | Pohotovost – Consumer protection – Consumer credit contract – Unfair terms – Directive 93/13/EEC – Enforcement of an arbitration award – Application for leave to intervene in enforcement proceedings – Consumer protection association – National legislation which does not allow such an intervention – Procedural autonomy of the Member States |
Question referred for a preliminary ruling | ‘1. Are Articles 6(1), 7(1) and 8 of Directive 93/13 ..., in conjunction with Articles 38 and 47 of the Charter …, to be interpreted as precluding national legislation such as Paragraph 37(1) and (3) of the Enforcement Code, which does not allow a consumer protection association to intervene in enforcement proceedings? 2. If the answer to the first question is that that legislation does not conflict with [European Union] law, is Paragraph 37(1) and (3) of the Enforcement Code to be interpreted as not precluding a national court from granting a consumer protection association leave to intervene in enforcement proceedings in accordance with Articles 6(1), 7(1) and 8 [of that directive]?’ |
Decision | Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, in particular Articles 6(1), 7(1) and 8 of that directive, read in conjunction with Articles 38 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which does not allow a consumer protection association to intervene in support of a consumer in proceedings for enforcement, against the latter, of a final arbitration award. |
Case number | C–93/12 |
Case name | Agrokonsulting–04 |
Document | Judgment ECLI:EU:C:2013:432 |
Date | 27/06/2013 |
Source of the question referred for a preliminary ruling | Administrativen sad Sofija–grad (Bolgaria) |
Name of the parties | ET Agrokonsulting–04–Velko Stojanov v Izpalnitelen direktor na Daržaven fond ‘Zemedelie’ – Razplaštatelna agencija |
Subject matter | Agriculture and fisheries; application for funding under the European Union's common agricultural policy |
Key words | ET Agrokonsulting – Procedural autonomy of the Member States – Common agricultural policy – Aid – Administrative law disputes – Determination of the court with jurisdiction – National criterion – Administrative court in whose judicial district the seat of the authority which adopted the contested act is located – Principle of equivalence – Principle of effectiveness – Charter of Fundamental Rights of the European Union ‘ |
Question referred for a preliminary ruling | ‘1. Are the principle of effectiveness set out in the case–law [of the Court of Justice] of the European Union and the principle of effective judicial protection enshrined in Article 47 of the [Charter] to be interpreted as not permitting a national procedural rule such as Article 133(1) of the [APK] which makes jurisdiction in administrative disputes concerning the implementation of the European Union’s common agricultural policy dependent solely on the seat of the administrative authority which adopted the contested administrative act, considering that that rule does not take into consideration the place in which the properties are located or the place of residence of the person seeking justice? 2. Is the principle of equivalence set out in the case–law of the Court of Justice of the European Union to be interpreted as not permitting a national procedural rule such as Article 133(1) of the APK which makes jurisdiction in administrative disputes concerning the implementation of the European Union’s common agricultural policy dependent solely on the seat of the administrative authority which adopted the contested administrative act, if account is taken of Paragraph 19 of the transitional and final provisions of the Law amending and supplementing the [APK] (which concerns jurisdiction in domestic administrative disputes concerning agricultural land)?’ |
Decision | European Union law, in particular the principles of equivalence and effectiveness and Article 47 of the Charter of Fundamental Rights of the European Union, does not preclude a national rule of jurisdiction such as that in Article 133(1) of the Code of Administrative Procedure (Administrativnoprotsesualen kodeks), which results in conferring on a single court all disputes relating to decisions of a national authority responsible for the payment of agricultural support under the European Union common agricultural policy, provided that actions intended to ensure the safeguarding of the rights which individuals derive from European Union law are not conducted in less advantageous conditions than those provided for in respect of actions intended to protect the rights derived from any aid schemes for farmers established under national law, and that jurisdiction rule does not cause individuals procedural problems in terms, inter alia, of the duration of the proceedings, such as to render the exercise of the rights derived from European Union law excessively difficult, which it is for the referring court to ascertain. |
Case number | C–399/11 |
Case name | Melloni |
Document | Judgment ECLI:EU:C:2013:107 |
Date | 26/02/2013 |
Source of the question referred for a preliminary ruling | Tribunal Constitucional (Spain) |
Name of the parties | Stefano Melloni v Ministerio Fiscal |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | Melloni – Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person concerned has not appeared in person – Execution of a sentence pronounced in absentia – Possibility of review of the judgment |
Question referred for a preliminary ruling | ‘1. Must Article 4a(1) of Framework Decision 2002/584/JHA, as inserted by Council Framework Decision 2009/299/JHA, be interpreted as precluding national judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant conditional upon the conviction in question being open to review, in order to guarantee the rights of defence of the person requested under the warrant? 2. In the event of the first question being answered in the affirmative, is Article 4a(1) of Framework Decision 2002/584/JHA compatible with the requirements deriving from the right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter …, and from the rights of defence guaranteed under Article 48(2) of the Charter? 3. In the event of the second question being answered in the affirmative, does Article 53 of the Charter, interpreted schematically in conjunction with the rights recognised under Articles 47 and 48 of the Charter, allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording those rights a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognised by the constitution of the first–mentioned Member State?’ |
Decision | 1. Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as precluding the executing judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant issued for the purposes of executing a sentence conditional upon the conviction rendered in absentia being open to review in the issuing Member State. 2. Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, is compatible with the requirements under Articles 47 and 48(2) of the Charter of Fundamental Rights of the European Union. 3. Article 53 of the Charter of Fundamental Rights of the European Union must be interpreted as not allowing a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution. |
Case number | C–396/11 |
Case name | Radu |
Document | Judgment ECLI:EU:C:2013:39 |
Date | 29/01/2013 |
Source of the question referred for a preliminary ruling | Curtea de Apel Constanţa (Romania) |
Name of the parties | Ciprian Vasile Radu |
Subject matter | Area of freedom, security and justice; police and judicial cooperation in criminal matters; European arrest warrant |
Key words | Radu – Police and judicial cooperation in criminal matters – European arrest warrant and surrender procedures between Member States – European arrest warrant issued for the purposes of prosecution – Grounds for refusing execution |
Question referred for a preliminary ruling | ‘(1) Are Articles 5(1) [of the ECHR] and 6 [of the Charter], read in conjunction with Articles 48 and 52 [of the Charter], with reference also to Article 5(3) and (4) and Article 6(2) and (3) of [the ECHR], provisions of primary [European Union] law, contained in the founding Treaties? (2) Does the action of the competent judicial authority of the State of execution of a European arrest warrant, entailing deprivation of liberty and forcible surrender, without the consent of the person in respect of whom the European arrest warrant has been issued (the person whose arrest and surrender are requested) constitute interference, on the part of the State executing the warrant, with the right to individual liberty of the person whose arrest and surrender are requested, which is authorised by European Union law, pursuant to Article 6 TEU, read in conjunction with Article 5(1) of the [ECHR], and pursuant to Article 6 of the [Charter], read in conjunction with Articles 48 and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR]? (3) Must the interference on the part of the State executing a European arrest warrant with the rights and guarantees laid down in Article 5(1) of the [ECHR] and in Article 6 of the [Charter], read in conjunction with Articles 48 and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR], satisfy the requirements of necessity in a democratic society and of proportionality in relation to the objective actually pursued? (4) Can the competent judicial authority of the State executing a European arrest warrant refuse the request for surrender without being in breach of the obligations authorised by the founding Treaties and the other provisions of [European Union] law, by reason of a failure to observe all the cumulative conditions under Article 5(1) of the [ECHR] and Article 6 of the [Charter], read in conjunction with Articles 48 and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR]? (5) Can the competent judicial authority of the State executing a European arrest warrant refuse the request for surrender without being in breach of the obligations authorised by the founding Treaties and the other provisions of [European Union] law, on the ground that the [Member] State issuing the European arrest warrant has failed to transpose or fully to transpose or has incorrectly transposed (in the sense that the condition of reciprocity has not been satisfied) [Framework Decision 2002/584]? (6) Is the domestic law of Romania, a Member State of the European Union – in particular Title III of Law No 302/2004 – incompatible with Article 5(1) of the [ECHR] and Article 6 of the [Charter], read in conjunction with Articles 48 and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR], to which Article 6 TEU refers, and have the above provisions properly transposed into national law [Framework Decision 2002/584]?’ |
Decision | Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the executing judicial authorities cannot refuse to execute a European arrest warrant issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard in the issuing Member State before that arrest warrant was issued. |
Case number | C–300/11 |
Case name | ZZ |
Document | Judgment ECLI:EU:C:2013:363 |
Date | 04/06/2013 |
Source of the question referred for a preliminary ruling | Court of Appeal (England & Wales) (Civil Division) |
Name of the parties | ZZ v Secretary of State for the Home Department |
Subject matter | Non–discrimination and citizenship of the Union; right of entry and residence; restrictions justified on grounds of public policy, public security and public health |
Key words | ZZ – Freedom of movement for persons – Decision refusing a citizen of the European Union admission to a Member State on public security grounds – Obligation to inform the citizen concerned of the grounds of that decision – Disclosure contrary to the interests of State security – Fundamental right to effective judicial protection |
Question referred for a preliminary ruling | ‘Does the principle of effective judicial protection, set out in Article 30(2) of Directive 2004/38, as interpreted in the light of Article 346(1)(a) [TFEU], require that a judicial body considering an appeal from a decision to exclude a European Union citizen from a Member State on grounds of public policy and public security under Chapter VI of Directive 2004/38 ensure that the European Union citizen concerned is informed of the essence of the grounds against him, notwithstanding the fact that the authorities of the Member State and the relevant domestic court, after consideration of the totality of the evidence against the European Union citizen relied upon by the authorities of the Member State, conclude that the disclosure of the essence of the grounds against him would be contrary to the interests of State security?’ |
Decision | Articles 30(2) and 31 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under Article 27 of that directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence. |
Case number | C–199/11 |
Case name | Otis and Others |
Document | Judgment ECLI:EU:C:2012:684 |
Date | 06/11/2012 |
Source of the question referred for a preliminary ruling | Rechtbank van Koophandel te Brussel (Belgijum) |
Name of the parties | Europese Gemeenschap v Otis NV and Others |
Subject matter | Representing the European Union before national courts; Claiming compensation for damage suffered by the Union as a result of a restrictive agreement |
Key words | Otis – Representation of the European Union before national courts – Claim for damages in respect of loss caused to the European Union by a cartel – Charter of Fundamental Rights of the European Union – Right to fair hearing – Right of access to a tribunal – Equality of arms |
Question referred for a preliminary ruling | ‘(1) (a) The Treaty states in Article 282, now Article [3]35 [TFEU], that the [EU] is to be represented by the Commission. Article 335 TFEU, on the one hand, and Articles 103 and 104 of the Financial Regulation, on the other, state that, in administrative matters relating to their operation, the institutions concerned are to represent the [EU], with the possible result that [it] is the institutions, whether or not exclusively, … which may be parties to legal proceedings. There is no doubt that receipt by, amongst others, contractors of payment of inflated prices as a result of collusive practices comes within the concept of fraud. In Belgian national law there is the principle of ‘Lex specialis generalibus derogat’. To the extent to which that principle of law also finds acceptance in [EU] law, is it then not the case that the initiative for bringing the claims (except where the Commission itself was the contracting authority) was vested in the institutions concerned? (b) (Subsidiary question) Ought the Commission not at least to have been conferred with authorisation by the institutions to represent them for the purpose of safeguarding their interests before the courts? (2) (a) Article 47 of the [Charter] and Article 6(1) of the European Convention on Human [Rights] and Fundamental Freedoms [signed in Rome on 4 November 1950 (the ‘ECHR’)] guarantee every person’s right to a fair trial as well as the related principle that no one can be a judge in his own cause. Is it reconcilable with that principle if the Commission, in an initial phase, acts as the competition authority and penalises the conduct complained of – namely, the formation of a cartel – as a breach of Article 81 [EC], now Article 101 [TFEU] after it has itself conducted the investigation in that regard, and subsequently, in a second phase, prepares the proceedings for seeking compensation before the national court and takes the decision to bring those proceedings, while the same Member of the Commission is responsible for both matters, which are connected, a fortiori as the national court seised of the matter cannot depart from the decision imposing penalties? (b) (Subsidiary question) If the answer to Question 2(a) is in the [negative], (there is irreconcilability), how then must the victim (the Commission and/or the institutions and/or the [EU]) of an unlawful act (the formation of the cartel) assert its entitlement to compensation under [EU] law, which is likewise a fundamental right?’ |
Decision | 1. European Union law must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, the European Commission is not precluded from representing the European Union before a national court hearing a civil action for damages in respect of loss caused to the European Union by an agreement or practice prohibited by Articles 81 EC and 101 TFEU which may have affected certain public contracts awarded by various institutions and bodies of the European Union, there being no need for the Commission to have authorisation for that purpose from those institutions and bodies. 2. Article 47 of the Charter of Fundamental Rights of the European Union does not preclude the European Commission from bringing an action before a national court, on behalf of the European Union, for damages in respect of loss sustained by the Union as a result of an agreement or practice which has been found by a decision of the Commission to infringe Article 81 EC or Article 101 TFEU. |
Case number | C–619/10 |
Case name | Trade Agency |
Document | Judgment ECLI:EU:C:2012:531 |
Date | 06/09/2012 |
Source of the question referred for a preliminary ruling | Augstākās tiesas Senāts (Latvia) |
Name of the parties | Trade Agency Ltd v Seramico Investments Ltd |
Subject matter | Area of freedom, security and justice; judicial cooperation in civil matters; jurisdiction and enforcement of judgments |
Key words | Trade Agency – Judicial cooperation in civil matters – Enforcement – Grounds for challenge – Document instituting proceedings not served on the defendant – Review by the court in which enforcement is sought – Scope – Value of the information in the certificate – Infringement of public policy – Judgment lacking reasoning |
Question referred for a preliminary ruling | ‘(1) Where a decision of a foreign court is accompanied by the certificate provided for in Article 54 of Regulation No 44/2001, but the defendant nevertheless objects on the ground that he was not served with notice of the action brought in the Member State of origin, is a court in the Member State where enforcement is sought competent, when considering a ground for withholding recognition provided for in Article 34(2) of Regulation No 44/2001, to examine for itself the conformity with the evidence of the information contained in the certificate? Is such wide jurisdiction on the part of a court in the Member State in which enforcement is sought compatible with the principle of mutual trust in the administration of justice set out in recitals 16 and 17 to Regulation No 44/2001? (2) Is a decision given in default of appearance, which disposes of the substance of a dispute without examining either the subject–matter of the claim or the grounds on which it is based and sets out no reasoning as to the substantive basis of the claim, compatible with Article 47 of the Charter and does it not infringe the defendant’s right to a fair hearing, laid down by the provision?’ |
Decision | 1. Article 34(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, to which Article 45(1) thereof refers, read in conjunction with recitals 16 and 17 in the preamble, must be interpreted as meaning that, where the defendant brings an action against the declaration of enforceability of a judgment given in default of appearance in the Member State of origin which is accompanied by the certificate provided for by Article 54 of that regulation, claiming that he has not been served with the document instituting the proceedings, the court of the Member State in which enforcement is sought hearing the action has jurisdiction to verify that the information in that certificate is consistent with the evidence. 2. Article 34(1) of Regulation No 44/2001, to which Article 45(1) thereof refers, must be interpreted as meaning that the courts of the Member State in which enforcement is sought may refuse to enforce a judgment given in default of appearance which disposes of the substance of the dispute but which does not contain an assessment of the subject–matter or the basis of the action and which lacks any argument of its merits, only if it appears to the court, after an overall assessment of the proceedings and in the light of all the relevant circumstances, that that judgment is a manifest and disproportionate breach of the defendant’s right to a fair trial referred to in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, on account of the impossibility of bringing an appropriate and effective appeal against it. |
Case number | C–411/10 |
Case number | N. S. and others |
Document | Judgment ECLI:EU:C:2011:865 |
Date | 21/12/2011 |
Source of the question referred for a preliminary ruling | In Joined Cases C–411/10 and C–493/10 from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) and High Court (Ireland) |
Name of the parties | |
Subject matter | Area of freedom, security and justice; asylum policy: safe country; sending asylum seekers back to Greece |
Key words | Asylum Policy – Principles –Fundamental rights –Implementation of European Union law –Prohibition of inhuman or degrading treatment –Common European Asylum System –Regulation (EC) No 343/2003 –Concept of ‘safe countries’ –Transfer of an asylum seeker to the Member State responsible –Obligation –Rebuttable presumption of compliance, by that Member State, with fundamental right |
Questions referred for a preliminary ruling | Joined case: C–411/10 If Question 1 is answered in the affirmative: (2) Is the duty of a Member State to observe EU fundamental rights (including the rights set out in Articles 1, 4, 18, 19(2) and 47 of the Charter) discharged where that State sends the asylum seeker to the Member State which Article 3(1) [of Regulation No 343/2003] designates as the responsible State in accordance with the criteria set out in Chapter III of the regulation (‘the responsible State’), regardless of the situation in the responsible State? (3) In particular, does the obligation to observe EU fundamental rights preclude the operation of a conclusive presumption that the responsible State will observe (i) the claimant’s fundamental rights under European Union law; and/ or (ii) the minimum standards imposed by Directives 2003/9 …, 2004/83 … and 2005/85 …? (4) Alternatively, is a Member State obliged by European Union law, and, if so, in what circumstances, to exercise the power under Article 3(2) of the Regulation to examine and take responsibility for a claim, where transfer to the responsible State would expose the [asylum] claimant to a risk of violation of his fundamental rights, in particular the rights set out in Articles 1, 4, 18, 19(2) and/or 47 of the Charter, and/or to a risk that the minimum standards set out in Directives [2003/9, 2004/83 and 2005/85] will not be applied to him? (5) Is the scope of the protection conferred upon a person to whom Regulation [No 343/2003] applies by the general principles of European Union law, and, in particular, the rights set out in Articles 1, 18 and 47 of the Charter wider than the protection conferred by Article 3 of the ECHR? (6) Is it compatible with the rights set out in Article 47 of the Charter for a provision of national law to require a court, for the purpose of determining whether a person may lawfully be removed to another Member State pursuant to Regulation [No 343/2003], to treat that Member State as a State from which the person will not be sent to another State in contravention of his rights pursuant to the [ECHR] or his rights pursuant to the [Geneva Convention] and [the 1967 Protocol]? (7) In so far as the preceding questions arise in respect of the obligations of the United Kingdom, are the answers to [the second to sixth questions] qualified in any respect so as to take account of the Protocol (No 30)?’ and case C–493/10 (2) If the answer is yes, and if the receiving Member State is found not to be in compliance with one or more of those provisions, is the transferring Member Sate obliged to accept responsibility for examining the application under Article 3(2) of … Regulation (EC) No 343/2003?’ |
Decision | 1. The decision adopted by a Member State on the basis of Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third–country national, whether to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that Regulation, implements European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of Fundamental Rights of the European Union. 2. European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision. Subject to the right itself to examine the application referred to in Article 3(2) of Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, entails that the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application. The Member State in which the asylum seeker is present must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003. 3. Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union do not lead to a different answer. 4. In so far as the preceding questions arise in respect of the obligations of the United Kingdom of Great Britain and Northern Ireland, the answers to the second to sixth questions referred in Case C–411/10 do not require to be qualified in any respect so as to take account of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom. |
Case number | C–279/09 |
Case name | DEB |
Document | Judgment ECLI:EU:C:2010:811 |
Date | 22/12/2010 |
Source of the question referred for a preliminary ruling | Kammergericht (Germany) |
Name of the parties | DEB Deutsche Energiehandels– und Beratungsgesellschaft mbH v Bundesrepublik Deutschland |
Subject matter | Fundamental rights; scope of protection of rights and principles; applying for legal aid |
Key words | DEB – Fundamental rights; scope of protection of rights and principles; applying for legal aid |
Question referred for a preliminary ruling | ‘In view of the fact that Member States may not, through the structuring of conditions under national law governing the award of damages and of the procedure for pursuing a claim seeking to establish State liability under [EU] law, make the award of compensation in accordance with the principles of State liability in practice impossible or excessively difficult, must there be reservations with regard to a national rule under which the pursuit of a claim before the courts is subject to the making of an advance payment in respect of costs, and a legal person, which is unable to make that advance payment, does not qualify for legal aid?’ |
Decision | The principle of effective judicial protection, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it is not impossible for legal persons to rely on that principle and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer. In that connection, it is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right; whether they pursue a legitimate aim; and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve. In making that assessment, the national court must take into consideration the subject‑matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the relevant law and procedure; and the applicant’s capacity to represent himself effectively. In order to assess the proportionality, the national court may also take account of the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an insurmountable obstacle to access to the courts. With regard more specifically to legal persons, the national court may take account of their situation. The court may therefore take into consideration, inter alia, the form of the legal person in question and whether it is profit–making or non–profit–making; the financial capacity of the partners or shareholders; and the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings. |
Article 48 of the Charter: Presumption of innocence and right of defence
Case number | C–492/22 PPU |
Case name | CJ (Décision de remise différée en raison de poursuites pénales) |
Document | Judgment ECLI:EU:C:2022:964 |
Date | 08/12/2022 |
Source of the question referred for a preliminary ruling | Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) |
Name of the parties | CJ |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European Arrest Warrant |
Key words | CJ – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA –– Determination of the competent judicial authorities – Decision to postpone surrender adopted by a body not having the status of executing judicial authority – Expiry of the time limits provided for surrender – Consequences –Keeping the requested person in detention for the purposes of criminal proceedings in the executing Member State – Charter of Fundamental Rights of the European Union – Right of the accused person to appear in person at his trial |
Question referred for a preliminary ruling | ‘(1) Do Articles 12 and 24(1) of Framework Decision [2002/584], read in conjunction with Article 6 of the [Charter], preclude a requested person, whose surrender for the purpose of executing a custodial sentence was definitively authorised but has been postponed ‘so that he or she may be prosecuted in the executing Member State … for an act other than that referred to in the European arrest warrant’, from being detained for the duration of that criminal prosecution in order to execute the European arrest warrant? (2) (a) Is the decision to exercise the power to postpone surrender provided for in Article 24(1) of Framework Decision [2002/584] a decision on the execution of the European arrest warrant which, pursuant to Article 6(2) of Framework Decision [2002/584], read in conjunction with recital 8 thereof, must be taken by the executing judicial authority? (b) If so, does the fact that that decision was taken without the intervention of an executing judicial authority within the meaning of Article 6(2) of Framework Decision [2002/584] have the consequence that the requested person may no longer be detained for the purpose of executing the European arrest warrant issued against him? (3) (a) Does Article 24(1) of Framework Decision [2002/584], read in conjunction with Articles 47 and 48 of the [Charter], preclude the surrender of the requested person for the purpose of a criminal prosecution in the executing Member State for the sole reason that, upon request, the requested person does not wish to waive his right to be present at that criminal prosecution ? (b) If so, which factors should the executing judicial authority then take into account when deciding whether to postpone the actual surrender?’ |
Decision | 1. Article 24(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that: the decision to postpone a surrender referred to in that provision constitutes a decision on the execution of the European arrest warrant which, pursuant to Article 6(2) of that framework decision, must be taken by the executing judicial authority. Where such a decision has not been taken by that authority and the time limits referred to in Article 23(2) to (4) of that framework decision have expired, the person who is the subject of a European arrest warrant must be released, in accordance with Article 23(5) of that same framework decision. 2. Article 12 and Article 24(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with Article 6 of the Charter of Fundamental Rights of the European Union, must be interpreted as: not precluding a person who is the subject of a European arrest warrant, whose surrender to the authorities of the issuing Member State has been postponed for the purposes of a criminal prosecution instituted against him or her in the executing Member State, from being kept in detention on the basis of the European arrest warrant whilst the criminal prosecution is being conducted. 3. Article 24(1) of Framework 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second and third paragraphs of Article 47 and Article 48(2) of the Charter of Fundamental Rights must be interpreted as: not precluding the postponement of the surrender of a person who is the subject of a European arrest warrant, for the purposes of a criminal prosecution instituted against that person in the executing Member State, solely on the ground that that person has not waived their right to appear in person before the courts seised in connection with that prosecution. |
Case number | C–242/22 PPU |
Case name | TL () in de traduction) |
Document | Judgment ECLI:EU:C:2022:611 |
Date | 01/08/2022 |
Source of the question referred for a preliminary ruling | Tribunal da Relação de Évora (Court of Appeal, Évora, Portugal) |
Name of the parties | TL intervening parties Ministério Público |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; failure to provide the assistance of an interpreter and to translate various documents |
Key words | TL – Directive 2010/64/EU – Right to interpretation and translation – Concept of an ‘essential document’ – Directive 2012/13/EU – Right to information in criminal proceedings – Not implemented in domestic law – Direct effect – Charter of Fundamental Rights of the European Union – European Convention for the Protection of Human Rights and Fundamental Freedoms – Suspended prison sentence with probation – Breach of the probation conditions – Failure to translate an essential document and absence of an interpreter when that document was being drawn up – Revocation of the suspension of the prison sentence – Failure to translate the procedural acts relating to that revocation – Consequences for the validity of that revocation – Procedural defect resulting in relative nullity |
Question referred for a preliminary ruling | ‘Is it possible to interpret Articles 1 to 3 of [Directive 2010/64] and Article 3 of [Directive 2012/13], alone or in conjunction with Article 6 of the ECHR, as meaning that they do not preclude a provision of national law which imposes a penalty of relative nullity, which must be pleaded, for failure to appoint an interpreter and to translate essential procedural documents for an accused person who does not understand the language of the proceedings, and which permits the rectification of that type of nullity owing to the passage of time?’ |
Decision | Article 2(1) and Article 3(1) of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings and Article 3(1)(d) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, read in the light of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union and the principle of effectiveness, must be interpreted as precluding national legislation under which the infringement of the rights provided for by those provisions of those directives must be invoked by the beneficiary of those rights within a prescribed period, failing which that challenge will be time–barred, where that period begins to run before the person concerned has been informed, in a language which he or she speaks or understands, first, of the existence and scope of his or her right to interpretation and translation and, secondly, of the existence and content of the essential document in question and the effects thereof. |
Case number | C–348/21 |
Case name | HYA and Others (Impossibilité d’interroger les témoins à charge) |
Document | Judgment ECLI:EU:C:2022:965 |
Date | 08/12/2022 |
Source of the question referred for a preliminary ruling | Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) |
Name of the parties | HYA, IP, DD, ZI, SS, when attending Spetsializirana prokuratura, |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; attendance at trials |
Key words | HYA – Directive (EU) 2016/343 – Strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings – Right of an accused person to be present at their trial – Right to a fair trial and rights of the defence – Examination of prosecution witnesses in the absence of the accused person and their lawyer during the pre–trial stage of criminal proceedings – Impossibility to examine prosecution witnesses during the pre–trial stage of criminal proceedings – National legislation allowing a criminal court to base its decision on the previous testimony of said witnesses |
Question referred for a preliminary ruling | ‘Is a national law which provides that the right of an accused person to be present in proceedings is safeguarded and the public prosecutor’s office properly discharges its obligation to prove the guilt of the accused person compatible with Article 8(1) and Article 6(1) of Directive 2016/343, read in conjunction with recitals 33 and 34 thereof and the second paragraph of Article 47 of the Charter, if the testimony given at the pre–trial stage of the proceedings by witnesses who cannot be examined for objective reasons is introduced at the trial stage of the criminal proceedings, whereby those witnesses were examined solely by the prosecution and without the participation of the defence, but before a judge, and the prosecution could have provided the defence with the opportunity to participate in that examination at the pre–trial stage, but did not do so?’ |
Decision | Article 8(1) of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, read in conjunction with the second paragraph of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding the application of national legislation which allows a national court, where it is not possible to examine a prosecution witness during the judicial stage of criminal proceedings, to base its decision on the guilt or innocence of the accused person on the witness testimony obtained during a hearing before a judge during the pre–trial stage of those proceedings, but without the participation of the accused person or their lawyer, unless there is a good reason warranting the non–appearance of the witness at the judicial stage of the criminal proceedings, the testimony given by that witness does not constitute the sole or decisive basis for the conviction of the accused person, and there are sufficient counterbalancing factors to compensate for the handicaps faced by the accused person and their lawyer as a result of the taking into account of that testimony. |
Case number | C–203/21 |
Case name | DELTA STROY 2003 |
Document | Judgment ECLI:EU:C:2022:865 |
Date | 10/11/2022 |
Source of the question referred for a preliminary ruling | Okrazhen sad – Burgas Regional Court, Burgas, Bulgaria) |
Name of the parties | DELTA STROY 2003, intervening parties: Okrazhna prokuratura – Burgas, |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; sanctions – External relations |
Key words | Delta Stroy –– Judicial cooperation in criminal matters – – Applicability – Imposition of a financial penalty on a legal person for non–payment of tax debts – Concept of ‘confiscation’ – Charter of Fundamental Rights of the European Union – Penalties of a criminal nature – Principles of the presumption of innocence and the legality and proportionality of criminal offences and penalties – Rights of the defence – Imposition of a criminal penalty on a legal person for an offence committed by the representative of that legal person – Parallel criminal proceedings against that representative that have not been concluded – Proportionality |
Question referred for a preliminary ruling | ‘(1) Are Articles 4 and 5 of Framework Decision [2005/212] and Article 49 of the [Charter] to be interpreted as permitting legislation of a Member State under which, in proceedings such as those in the main proceedings, the national court may impose a penalty on a legal person for a specific criminal offence the commission of which has not yet been established because it is the subject of parallel criminal proceedings which have not yet been definitively concluded? (2) Are Articles 4 and 5 of Framework Decision [2005/212] and Article 49 of the [Charter] to be interpreted as permitting legislation of a Member State under which, in proceedings such as those in the main proceedings, the national court may impose a penalty on a legal person by fixing the amount of that penalty at the amount of the proceeds which would have been obtained from a specific criminal offence the commission of which has not yet been established because it is the subject of parallel criminal proceedings which have not yet been definitively concluded?’ |
Decision | Article 48 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation under which a national court may impose on a legal person a criminal penalty for an offence for which a natural person who has the power to bind or represent that legal person is allegedly liable, where that legal person has not been put in a position to dispute the reality of that offence. |
Case number | C–649/19 |
Case name | Spetsializirana prokuratura (Déclaration des droits) |
Document | Judgment ECLI:EU:C:2021:75 |
Date | 28/01/2021 |
Source of the question referred for a preliminary ruling | Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) |
Name of the parties | Spetsializirana prokuratura v IR |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; illicit trade in cigarettes |
Key words | IR – Judicial cooperation in criminal matters – Directive 2012/13/EU – Right to information in criminal proceedings – Letter of Rights on arrest – Right to be informed of the accusation – Right of access to the materials of the case – Person arrested on the basis of a European arrest warrant in the executing Member State |
Question referred for a preliminary ruling | ‘(1) Do the rights of an accused person under Article 4 (in particular the right under Article 4(3)), Article 6(2) and Article 7(1) of Directive 2012/13 apply to an accused person who has been arrested on the basis of a European arrest warrant? (2) If the first question is answered in the affirmative: Is Article 8 of Framework Decision 2002/584 to be interpreted as meaning that it allows the content of a European arrest warrant to be amended with regard to the form specified in the annex, in particular the insertion of new text into that form, in relation to the rights of the requested person against the judicial authorities of the issuing Member State to challenge the validity of the national arrest warrant and of the European arrest warrant? (3) If the second question is answered in the negative: Is it compatible with recital 12 and Article 1(3) of Framework Decision 2002/584, [Article 4, Article 6(2) and Article 7(1)] of [Directive 2012/13], and Articles 6 and 47 of the Charter if a European arrest warrant is issued in strict compliance with the form set out in the annex (that is to say without informing the requested person about his rights against the issuing judicial authority) and the issuing judicial authority informs him about the rights to which he is entitled and sends him the relevant documents immediately after that authority becomes aware of the arrest? (4) If there are no other legal means for safeguarding the rights of a person arrested on the basis of a European arrest warrant under Article 4 [(in particular the right under Article 4(3))], Article 6(2) and Article 7(1) of [Directive 2012/13], is Framework Decision 2002/584 valid?’ |
Decision | 1. Article 4 (in particular Article 4(3)), Article 6(2) and Article 7(1) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings must be interpreted as meaning that the rights referred to therein do not apply to persons who are arrested for the purposes of the execution of a European arrest warrant. 2. The examination of the third and fourth questions referred for a preliminary ruling has revealed nothing that is capable of affecting the validity of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union. |
Case number | C–564/19 |
Case name | IS (Illégalité de l’ordonnance de renvoi) |
Document | Judgment ECLI:EU:C:2021:949 |
Date | 23/11/2021 |
Source of the question referred for a preliminary ruling | Pesti Központi Kerületi Bíróság (Central District Court, Pest, Hungary) |
Name of the parties | Criminal proceedings against IS |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; infringements of provisions of Hungarian law governing the acquisition or transport of firearms or ammunition |
Key words | IS – Judicial cooperation in criminal matters – Quality of the interpretation and translation – Right to information in criminal proceedings – Right to information about the accusation – Right to interpretation and translation –Right to an effective remedy and to a fair trial – Charter of Fundamental Rights of the European Union – Admissibility – Appeal in the interests of the law against a decision ordering a reference for a preliminary ruling – Disciplinary proceedings – Power of the higher court to declare the request for a preliminary ruling unlawfu |
Question referred for a preliminary ruling | ‘(1) (a) Must Article 6(1) TEU and Article 5(2) of [Directive 2010/64] be interpreted as meaning that, in order to guarantee the right to a fair trial for accused persons who do not speak the language of the proceedings, a Member State must create a register of properly qualified independent translators and interpreters or – failing that – ensure by some other means that it is possible to review the quality of language interpretation in judicial proceedings? (b) If the previous question is answered in the affirmative and if, in the specific case, since the language interpretation is not of adequate quality, it is not possible to establish whether the accused person has been informed of the subject matter of the charge or indictment against him or her, must Article 6(1) TEU and Article 4(5) and [Article] 6(1) of [Directive 2012/13] be interpreted as meaning that, in those circumstances, the proceedings cannot continue in his or her absence? (2) (a) Must the principle of judicial independence referred to in the second subparagraph of Article 19(1) TEU, Article 47 of the [Charter] and the case–law of the Court of Justice be interpreted as meaning that that principle is infringed where the [President of the NOJ], who is responsible for the central administration of the courts and who is appointed by the parliament, the only body to which he or she is accountable and which may remove him or her from office, fills the post of president of a court – a president who, inter alia, has powers in relation to organisation of the allocation of cases, commencement of disciplinary procedures against judges, and assessment of judges – by means of a direct temporary nomination, circumventing the applications procedure and constantly disregarding the opinion of the competent self–governance bodies of judges? (b) If Question 2(a) is answered in the affirmative and if the court hearing the specific case has reasonable grounds to fear that that case is being unduly prejudiced as a result of the president’s judicial and administrative activities, must the principle of judicial independence be interpreted as meaning that a fair trial is not guaranteed in that case? (3) (a) Must the principle of judicial independence referred to in the second subparagraph of Article 19(1) TEU, Article 47 of the [Charter] and the case–law of the Court of Justice be interpreted as precluding a situation in which, since 1 September 2018 – unlike the practice followed in previous decades – Hungarian judges receive by law lower remuneration than prosecutors of the equivalent category who have the same grade and the same length of service, and in which, in view of the country’s economic situation, judges’ salaries are generally not commensurate with the importance of the functions they perform, particularly in the light of the practice of discretionary bonuses applied by holders of high level posts? (b) If the previous question is answered in the affirmative, must the principle of judicial independence be interpreted as meaning that, in such circumstances, the right to a fair trial cannot be guaranteed?’ ‘(1) (a) Must Article 6(1) TEU and Article 5(2) of [Directive 2010/64] be interpreted as meaning that, in order to guarantee the right to a fair trial for accused persons who do not speak the language of the proceedings, a Member State must create a register of properly qualified independent translators and interpreters or – failing that – ensure by some other means that it is possible to review the quality of language interpretation in judicial proceedings? (b) If the previous question is answered in the affirmative and if, in the specific case, since the language interpretation is not of adequate quality, it is not possible to establish whether the accused person has been informed of the subject matter of the charge or indictment against him or her, must Article 6(1) TEU and Article 4(5) and [Article] 6(1) of [Directive 2012/13] be interpreted as meaning that, in those circumstances, the proceedings cannot continue in his or her absence? (2) (a) Must the principle of judicial independence referred to in the second subparagraph of Article 19(1) TEU, Article 47 of the [Charter] and the case–law of the Court of Justice be interpreted as meaning that that principle is infringed where the [President of the NOJ], who is responsible for the central administration of the courts and who is appointed by the parliament, the only body to which he or she is accountable and which may remove him or her from office, fills the post of president of a court – a president who, inter alia, has powers in relation to organisation of the allocation of cases, commencement of disciplinary procedures against judges, and assessment of judges – by means of a direct temporary nomination, circumventing the applications procedure and constantly disregarding the opinion of the competent self–governance bodies of judges? (b) If Question 2(a) is answered in the affirmative and if the court hearing the specific case has reasonable grounds to fear that that case is being unduly prejudiced as a result of the president’s judicial and administrative activities, must the principle of judicial independence be interpreted as meaning that a fair trial is not guaranteed in that case? (3) (a) Must the principle of judicial independence referred to in the second subparagraph of Article 19(1) TEU, Article 47 of the [Charter] and the case–law of the Court of Justice be interpreted as precluding a situation in which, since 1 September 2018 – unlike the practice followed in previous decades – Hungarian judges receive by law lower remuneration than prosecutors of the equivalent category who have the same grade and the same length of service, and in which, in view of the country’s economic situation, judges’ salaries are generally not commensurate with the importance of the functions they perform, particularly in the light of the practice of discretionary bonuses applied by holders of high level posts? (b) If the previous question is answered in the affirmative, must the principle of judicial independence be interpreted as meaning that, in such circumstances, the right to a fair trial cannot be guaranteed?’ |
Decision | 1. Article 267 TFEU must be interpreted as precluding the supreme court of a Member State from declaring, following an appeal in the interests of the law, that a request for a preliminary ruling which has been submitted to the Court under Article 267 TFEU by a lower court is unlawful on the ground that the questions referred are not relevant and necessary for the resolution of the dispute in the main proceedings, without, however, altering the legal effects of the decision containing that request. The principle of the primacy of EU law requires that lower court to disregard such a decision of the national supreme court. 2. Article 267 TFEU must be interpreted as precluding disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling to the Court of Justice under that provision. 3. Article 5 of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings must be interpreted as requiring Member States to take concrete measures in order to ensure that the quality of the interpretation and translations provided is sufficient to enable the suspect or accused person to understand the accusation against him or her and in order that that interpretation can be reviewed by the national courts. Article 2(5) of Directive 2010/64 and Article 4(5) and Article 6(1) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, read in the light of Article 48(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a person from being tried in absentia when, on account of inadequate interpretation, he or she has not been informed, in a language which he or she understands, of the accusation against him or her or where it is impossible to ascertain the quality of the interpretation provided and therefore to establish that he or she has been informed, in a language which he or she understands, of the accusation against him or her. |
Case number | C–488/19 |
Case name | JR (Mandat d’arrêt – Condamnation dans un État tiers, membre de l’EEE) |
Document | Judgment ECLI:EU:C:2021:206 |
Date | 17/03/2021 |
Source of the question referred for a preliminary ruling | High Court (Ireland) |
Name of the parties | JR |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | JR European arrest warrant – Framework Decision 2002/584/JHA – Concept of ‘enforceable judgment’ – Offence giving rise to a conviction by a court of a third State – Kingdom of Norway – Judgment recognised and enforced by the issuing State by virtue of a bilateral agreement – Grounds for optional non–execution of the European arrest warrant – Extra–territorial offence |
Question referred for a preliminary ruling | ‘(1) Does Framework Decision [2002/584] apply to the situation where the requested person was convicted and sentenced in a third State but, by virtue of a bilateral treaty between that third State and the issuing State, the judgment in the third State was recognised in the issuing State and enforced according to the laws of the issuing State? (2) If so, in circumstances where the executing Member State has applied in its national legislation the optional grounds for non–execution of the European arrest warrant set out in Article 4(1) and Article 4(7)(b) of Framework Decision [2002/584], how is the executing judicial authority to make its determination as regards an offence stated to be committed in the third State, but where the surrounding circumstances of that offence display preparatory acts that took place in the issuing State?’ |
Decision | 1. Article 1(1) and Article 8(1)(c) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that a European arrest warrant may be issued on the basis of a judicial decision of the issuing Member State ordering the execution, in that Member State, of a sentence imposed by a court of a third State where, pursuant to a bilateral agreement between those States, the judgment in question has been recognised by a decision of a court of the issuing Member State. However, the issuing of the European arrest warrant is subject to the condition, first, that a custodial sentence of at least four months has been imposed on the requested person and, second, that the procedure leading to the adoption in the third State of the judgment recognised subsequently in the issuing Member State has complied with fundamental rights and, in particular, the obligations arising under Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. 2. Article 4(7)(b) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that, in the case of a European arrest warrant issued on the basis of a judicial decision of the issuing Member State allowing execution in that Member State of a sentence imposed by a court of a third State, where the offence concerned was committed in the territory of the latter State, the question whether that offence was committed ‘outside the territory of the issuing Member State’ must be resolved by taking into consideration the criminal jurisdiction of that third State – in this instance, the Kingdom of Norway – which allowed prosecution of that offence, and not that of the issuing Member State. |
Case number | C–481/19 |
Case name | Consob |
Document | Judgment ECLI:EU:C:2021:84 |
Date | 02/02/2021 |
Source of the question referred for a preliminary ruling | Corte costituzionale (Constitutional Court, Italy) |
Name of the parties | DB v Commissione Nazionale per le Società e la Borsa (Consob) |
Subject matter | Financial services; insider dealing and market abuse |
Key words | Consob – DB – Approximation of laws – Directive 2003/6/EC – Regulation (EU) No 596/2014 – Market abuse – Administrative sanctions of a criminal nature – Failure to cooperate with the competent authorities – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union – Right to remain silent and to avoid self–incrimination |
Question referred for a preliminary ruling | ‘(1) Are Article 14(3) of Directive 2003/6, in so far as it continues to apply ratione temporis, and Article 30(1)(b) of Regulation No 596/2014 to be interpreted as permitting Member States to refrain from penalising individuals who refuse to answer questions put to them by the competent authorities and which might establish their liability for an offence that is punishable by administrative sanctions of a ‘punitive’ nature? (2) If the answer to the first question is in the negative, are Article 14(3) of Directive 2003/6, in so far as it continues to apply ratione temporis, and Article 30(1)(b) of Regulation No 596/2014 compatible with Articles 47 and 48 of the [Charter] – including in the light of the case–law of the European Court of Human Rights on Article 6 of the ECHR and the constitutional traditions common to the Member States – in so far as they require sanctions to be applied even to individuals who refuse to answer questions put to them by the competent authorities and which might establish their liability for an offence that is punishable by administrative sanctions of a ‘punitive’ nature?’ |
Decision | Article 14(3) of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) and Article 30(1)(b) of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6 and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, must be interpreted as allowing Member States not to penalise natural persons who, in an investigation carried out in respect of them by the competent authority under that directive or that regulation, refuse to provide that authority with answers that are capable of establishing their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability. |
Case number | C–83/19 |
Case name | Asociaţia ‘Forumul Judecătorilor din România’ |
Document | Judgment ECLI:EU:C:2021:393 |
Date | 18/05/2021 |
Source of the question referred for a preliminary ruling | Tribunalul Olt (Regional Court, Olt, Romania) (C‑83/19); the Curtea de Apel Piteşti (Court of Appeal, Piteşti, Romania) (C‑127/19); the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) (C‑195/19); the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania) (C‑291/19); the Curtea de Apel Piteşti (Court of Appeal, Piteşti, Romania) (C‑355/19); and the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) (C‑397/19) |
Name of the parties | Asociaţia ‘Forumul Judecătorilor din România’ and Others v Inspecţia Judiciară and Others |
Subject matter | Accession to the European Union; Romania |
Key words | Treaty of Accession of the Republic of Bulgaria and Romania to the European Union – Act concerning the conditions of accession to the European Union of the Republic of Bulgaria and Romania – Appropriate measures – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Legal nature and effects of the cooperation and verification mechanism and of the reports established by the Commission on the basis of that mechanism – Rule of law – Judicial independence – Charter of Fundamental Rights of the European Union – Laws and government emergency ordinances adopted in Romania in the course of 2018 and 2019 concerning the organisation of the judicial system and the liability of judges – Interim appointment to management positions of the Judicial Inspectorate – Establishment of a section within the Public Prosecutor’s Office for the investigation of offences committed within the judicial system – Financial liability of the State and personal liability of judges in the event of judicial error |
Question referred for a preliminary ruling | Case C–83/19 (2) Do the terms, nature and duration of the [CVM], established by [Decision 2006/928], come within the scope of the [Treaty of Accession]? Are the requirements laid down in the reports prepared in the context of that mechanism binding on Romania? (3) Must the second subparagraph of Article 19(1) [TEU] be interpreted as meaning that it obliges the Member States to take the measures necessary to ensure effective legal protection in the fields covered by EU law, that is to say, guarantees of an independent disciplinary procedure for Romanian judges, by eliminating all risks of political influence over the conduct of those procedures, such as direct Government appointment of the management of the [Judicial Inspectorate], even on a provisional basis? (4) Must Article 2 [TEU] be interpreted as meaning that the Member States are obliged to comply with the rule of law criteria, also required in the reports prepared in the context of the [CVM], established by [Decision 2006/928], in the case of procedures whereby the Government directly appoints the management of the [Judicial Inspectorate], even on a provisional basis?’ (2) Do the terms, nature and duration of the [CVM], established by [Decision 2006/928], fall within the scope of the [Treaty of Accession]? Are the requirements laid down in the reports prepared in accordance with that mechanism binding on Romania? (3) Must Article 2, in conjunction with Article 4(3) TEU be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports prepared in accordance with the [CVM], established by [Decision 2006/928], forms part of the Member State’s obligation to comply with the principles of the rule of law? (4) Does Article 2 TEU, and more specifically the obligation to comply with the values of the rule of law, preclude legislation which establishes and organises the [SIIJ], within the [prosecutor’s office attached to the High Court of Cassation and Justice], because of the possibility of indirect pressure being exerted on members of the judiciary? (5) Does the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of [the Charter], as interpreted by the case–law of [the Court] (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117), preclude the establishment of the [SIIJ], within the [prosecutor’s office attached to the High Court of Cassation and Justice], in the light of the rules governing the appointment/removal of prosecutors as members of [the SIIJ], the rules governing the exercise of functions within that section and the way in which competence is established, in connection with the limited number of positions in that section?’ (2) Do Article 67(1) TFEU and both the first sentence of Article 2 and the first sentence of Article 9 TEU preclude national legislation establishing a section of the prosecution office which has exclusive competence to investigate any type of offence committed by judges or prosecutors? (3) Does the principle of the primacy of [EU] law, as enshrined in the judgment of 15 July 1964, Costa (6/64, EU:C:1964:66), and by subsequent settled case–law of the [Court], preclude national legislation which allows a politico–judicial institution, such as the Curtea Constituțională ([Constitutional Court]), to infringe the aforementioned principle by means of decisions which are not open to appeal?’ (2) Are the requirements set out in the reports drawn up under that mechanism binding on Romania, in particular (but not only) as regards the need to make legislative amendments which comply with the conclusions of the [CVM] and with the recommendations made by the Venice Commission and the [GRECO]? (3) Must Article 2, in conjunction with Article 4(3) TEU, be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports prepared in accordance with the [CVM], established by [Decision 2006/928], forms part of the Member State’s obligation to comply with the principles of the rule of law? (4) Does the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of [the Charter], as interpreted by the case–law of the [Court] (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117), preclude the establishment of [the SIIJ], within the prosecutor’s office attached to the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), in the light of the rules governing the appointment and removal of prosecutors as members of [the SIIJ], the rules governing the exercise of functions within that section and the way in which competence is established, in connection with the limited number of positions in [the SIIJ]? (5) Does [the second paragraph of] Article 47 of the [Charter] relating to the right to a fair trial by means of a hearing within a reasonable time, preclude the establishment of the [SIIJ] within the prosecutor’s office attached to the Curte de Casație și Justiție (High Court of Cassation and Justice), in the light of the rules governing the exercise of functions within [the SIIJ] and the way in which competence is established, in connection with the limited number of positions in [the SIIJ]?’ (2) Do the terms, nature and duration of the [CVM] established by [Decision 2006/928] fall within the scope of the [Treaty of Accession]? Are the requirements set out in the reports drawn up in the context of that mechanism binding on the Romanian State? (3) Must Article 2 [TEU] be interpreted as meaning that the Member States are obliged to comply with the criteria of the rule of law, also requested in the reports drawn up in the context of the [CVM] established by [Decision 2006/928], in the event of the creation, as a matter of urgency, of a section of the prosecutor’s office charged with the exclusive investigation of offences committed by members of the judiciary, which gives rise to particular concerns as regards the fight against corruption and may be used as an additional means of intimidating members of the judiciary and putting pressure on them? (4) Must the second subparagraph of Article 19(1) [TEU] be interpreted as meaning that the Member States are obliged to adopt the necessary measures to ensure effective legal protection in the fields covered by EU law through the removal of any risk of political influence on criminal proceedings before certain judges, [in] the event of the creation, as a matter of urgency, of a section of the prosecutor’s office charged with the exclusive investigation of offences committed by members of the judiciary, which gives rise to particular concerns as regards the fight against corruption and may be used as an additional means of intimidating members of the judiciary and putting pressure on them?’ (2) Does the [CVM], established by [Decision 2006/928], constitute an integral part of the [Treaty of Accession], and must it be interpreted and applied in the light of the provisions of that treaty? Are the requirements set out in the reports drawn up in the context of that mechanism binding on Romania and, if so, is a national court which is responsible for applying, within its sphere of jurisdiction, provisions of EU law required to ensure the application of those rules, where necessary refusing, of its own motion, to apply provisions of national legislation that are contrary to the requirements set out in the reports drawn up pursuant to that mechanism? (3) Is Article 2 [TEU], read in conjunction with Article 4(3) [TEU], to be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports drawn up pursuant to the [CVM], established by [Decision 2006/928], forms part of the Member State’s obligation to observe the principles of the rule of law? (4) Does Article 2 [TEU], read in conjunction with Article 4(3) [TEU], and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as Article 96(3)(a) of [Law No 303/2004 as amended], which defines, succinctly and in the abstract, a ‘judicial error’ as the performance of a procedural act in clear breach of provisions of substantive or procedural law, without specifying the nature of the provisions infringed, the scope of those provisions, ratione materiae and ratione temporis, in the proceedings, the methods, time limits and procedures for establishing infringement of legal provisions, or the authority competent to establish infringement of those legal provisions, and thus creates a risk of pressure being indirectly exerted on the judiciary? (5) Does Article 2 [TEU], read in conjunction with Article 4(3) [TEU], and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as Article 96(3)(b) of [Law No 303/2004 as amended], which defines a ‘judicial error’ as the delivery of a final judgment that is manifestly contrary to the law or inconsistent with the factual situation established by the evidence taken in the course of the proceedings, without defining the procedure for establishing inconsistency and without defining in specific terms what is meant by that inconsistency of the judgment vis–à–vis the applicable legal provisions or the factual situation, and thus creates a risk that the interpretation of the law and the evidence by the judiciary (judges and prosecutors) will be hindered? (6) Does Article 2 [TEU], read in conjunction with Article 4(3) [TEU], and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as Article 96(3) of [Law No 303/2004 as amended], pursuant to which the civil liability of a member of the judiciary (a judge or prosecutor) vis–à–vis the State is established solely on the basis of the State’s own assessment, and, where appropriate, the advisory report of the [Judicial Inspectorate], regarding the question of the intention or gross negligence of the judge or prosecutor in the commission of the material error, without that judge or prosecutor having the opportunity fully to exercise his or her rights of defence, and which thus creates the risk of the procedure for establishing the liability of the judge or prosecutor vis–à–vis the State being commenced and completed arbitrarily? (7) Does Article 2 [TEU], and in particular the obligation to observe the values of the rule of law, preclude a provision of national legislation, such as the last sentence of Article 539(2) of the [Code of Criminal Procedure], read together with Article 541(2) and (3) thereof, whereby a defendant who has been acquitted on the merits, implicitly and sine die is provided with an extraordinary sui generis means of appeal against a final judgment on the lawfulness of pre–trial detention, an appeal which is to be heard solely by a civil court, in the event that the unlawfulness of the pre–trial detention has not been established by a decision of a criminal court, in breach of the principle that legal provisions must be predictable and accessible, the principle of the specialisation of judges and the principle of legal certainty?’ |
Decision | 1. Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, and the reports drawn up by the Commission on the basis of that decision, constitute acts of an EU institution, which are amenable to interpretation by the Court under Article 267 TFEU. 2. Articles 2, 37 and 38 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded, read in conjunction with Articles 2 and 49 TEU, must be interpreted as meaning that as regards its legal nature, content and temporal effects, Decision 2006/928 falls within the scope of the Treaty between the Member States of the European Union and the Republic of Bulgaria and Romania, concerning the accession of the Republic of Bulgaria and Romania to the European Union. That decision is binding in its entirety on Romania, as long as it has not been repealed. The benchmarks in the Annex to Decision 2006/928 are intended to ensure that Romania complies with the value of the rule of law, set out in Article 2 TEU, and are binding on it, in the sense that Romania is required to take the appropriate measures for the purposes of meeting those benchmarks, taking due account, under the principle of sincere cooperation laid down in Article 4(3) TEU, of the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports. 3. The legislation governing the organisation of justice in Romania, such as that relating to the interim appointment to the management positions of the Judicial Inspectorate and that relating to the establishment of a section of the Public Prosecutor’s Office for the investigation of offences committed within the judicial system, falls within the scope of Decision 2006/928, with the result that it must comply with the requirements arising from EU law and, in particular, from the value of the rule of law, set out in Article 2 TEU. 4. Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation adopted by the government of a Member State, which allows that government to make interim appointments to the management positions of the judicial body responsible for conducting disciplinary investigations and bringing disciplinary proceedings against judges and prosecutors, without following the ordinary appointment procedure laid down by national law, where that legislation is such as to give rise to reasonable doubts that the powers and functions of that body may be used as an instrument to exert pressure on, or political control over, the activity of those judges and prosecutors. 5. Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 must be interpreted as precluding national legislation providing for the creation of a specialised section of the Public Prosecutor’s Office with exclusive competence to conduct investigations into offences committed by judges and prosecutors, where the creation of such a section – is not justified by objective and verifiable requirements relating to the sound administration of justice, and – is not accompanied by specific guarantees such as, first, to prevent any risk of that section being used as an instrument of political control over the activity of those judges and prosecutors likely to undermine their independence and, secondly, to ensure that that exclusive competence may be exercised in respect of those judges and prosecutors in full compliance with the requirements arising from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. 6. Article 2 and the second subparagraph of Article 19(1) TEU must be interpreted as not precluding national legislation governing the financial liability of the State and the personal liability of judges for the damage caused by a judicial error, which defines the concept of ‘judicial error’ in general and abstract terms. By contrast, those same provisions must be interpreted as precluding such legislation where it provides that a finding of judicial error, made in proceedings to establish the State’s financial liability and without the judge concerned having been heard, is binding in the subsequent proceedings relating to an action for indemnity to establish the personal liability of that judge, and where that legislation does not, in general, provide the necessary guarantees to prevent such an action for indemnity being used as an instrument of pressure on judicial activity and to ensure that the rights of defence of the judge concerned are respected, so as to dispel any reasonable doubt, in the minds of individuals, as to the imperviousness of the judges to external factors liable to have an effect on their decisions and so as preclude a lack of appearance of independence or impartiality on the part of those judges likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals. 7. The principle of the primacy of EU law must be interpreted as precluding legislation of a Member State having constitutional status, as interpreted by the constitutional court of that Member State, according to which a lower court is not permitted to disapply of its own motion a national provision falling within the scope of Decision 2006/928, which it considers, in the light of |
Case number | C–546/18 |
Case name | Adler Real Estate and Others |
Document | Judgment ECLI:EU:C:2021:711 |
Date | 09/09/2021 |
Source of the question referred for a preliminary ruling | Bundesverwaltungsgericht (Federal Administrative Court, Austria) |
Name of the parties | FN and Others v Übernahmekommission |
Subject matter | Free movement of persons and services; company law; infringements of the obligation to submit a takeover bid |
Key words | Adler Real Estate –Company law – Takeover bids – Mandatory bid – Supervisory authority – Final decision making a finding of infringement of the obligation to submit a takeover bid – Binding effect of that decision in subsequent proceedings for an administrative penal sanction initiated by the same authority – Principle of effectiveness of EU law – General principles of EU law – Rights of the defence – Charter of Fundamental Rights of the European Union – Right to silence – Presumption of innocence – Access to an independent and impartial tribunal |
Question referred for a preliminary ruling | ‘(1) Do Articles 4 and 17 of Directive [2004/25] – read in the light of the principle of effectiveness under EU law – preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a natural person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is not given binding effect in the context of proceedings for an administrative penal sanction subsequently conducted by that supervisory authority against that same person, as a consequence of which that person once again has all the factual and legal pleas and evidence available to him or her to challenge the breach of law established in the decision that already has the force of res judicata? (2) Do Articles 4 and 17 of Directive [2004/25] – read in the light of the principle of effectiveness under EU law – preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a legal person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is not given binding effect in the context of proceedings for an administrative penal sanction subsequently conducted by that supervisory authority against the body authorised to represent that legal person, as a consequence of which that legal person (the body) once again has all the factual and legal pleas and evidence available to it to challenge the breach of law established in the decision that already has the force of res judicata? (3) (If Question 1 is answered in the negative) Does Article 47 of the [Charter] preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a natural person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is given binding effect in the context of administrative–penal proceedings subsequently conducted by that supervisory authority against that same person, with the result that that person is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata? (4) (If Question 2 is answered in the negative) Does Article 47 of the [Charter] preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a legal person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is given binding effect in the context of administrative–penal proceedings subsequently conducted by that supervisory authority against the body authorised to represent that legal person, with the result that that person (the body) is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata?’ |
Decision | Articles 4 and 17 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, as amended by Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014, read in the light of the rights of the defence guaranteed by EU law, and particularly the right to be heard, and of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, are to be interpreted as precluding a practice of a Member State under which a decision making a finding of infringement of that directive, having become final, has binding effect in subsequent proceedings for the imposition of an administrative penal sanction for infringement of that directive, in so far as the parties to those proceedings did not have the opportunity, in the earlier proceedings for a finding that that infringement had been committed, fully to exercise the rights of the defence, and particularly the right to be heard, or to invoke the right to silence or the presumption of innocence in relation to the matters of fact to be used, subsequently, in support of the allegation, or in so far as they were unable to exercise the right to an effective remedy against such a decision before a court or tribunal empowered to determine matters of both fact and law. |
Case number | C–646/17 |
Case name | Moro |
Document | Judgment ECLI:EU:C:2019:489 |
Date | 13/06/2019 |
Source of the question referred for a preliminary ruling | Tribunale di Brindisi (District Court, Brindisi, Italy) |
Name of the parties | Criminal proceedings against Gianluca Mora |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; jewellery |
Key words | Moro – Judicial cooperation in criminal matters – Right to information in criminal proceedings – Right to be informed of the accusation – Information about any change in the information given where this is necessary to safeguard the fairness of the proceedings – Modification of the legal classification of the acts on which the accusation is based – No possibility for the accused to apply for the negotiated penalty established in national law during the trial proceedings – Difference where there is modification of the acts on which the accusation is based |
Question referred for a preliminary ruling | ‘Must Article 2(1), Article 3(1)(c) and Article 6(1), (2) and (3) of Directive [2012/13], and Article 48 of the [Charter] be interpreted as precluding procedural rules under the criminal law of a Member State on the basis of which the safeguards for the rights of the defence following a change to the charge are guaranteed in terms that differ, both in quality and in quantity, depending on whether that change relates to the factual elements of the charge or to its legal classification, in particular allowing the accused person to request the alternative and beneficial procedure of the imposition of a negotiated penalty (the ‘patteggiamento’ procedure) only if the change is of a factual nature?’ |
Decision | ‘Must Article 2(1), Article 3(1)(c) and Article 6(1), (2) and (3) of Directive [2012/13], and Article 48 of the [Charter] be interpreted as precluding procedural rules under the criminal law of a Member State on the basis of which the safeguards for the rights of the defence following a change to the charge are guaranteed in terms that differ, both in quality and in quantity, depending on whether that change relates to the factual elements of the charge or to its legal classification, in particular allowing the accused person to request the alternative and beneficial procedure of the imposition of a negotiated penalty (the ‘patteggiamento’ procedure) only if the change is of a factual nature?’ |
Case number | C–358/16 |
Case name | UBS Europe and Others |
Document | Judgment ECLI:EU:C:2018:715 |
Date | 13/09/2018 |
Source of the question referred for a preliminary ruling | Cour administrative (Higher Administrative Court, Luxembourg) |
Name of the parties | UBS Europe SE and Alain Hondequin et consorts v DV and Others |
Subject matter | Free movement of capital; obligation of professional secrecy |
Key words | UBS Europe – Alain Hondequin – Approximation of laws – Scope of the obligation of professional secrecy on national financial supervisory authorities – Finding of the absence of good repute – Cases covered by criminal law – Charter of Fundamental Rights of the European Union – Rights of the defence – Access to the file |
Question referred for a preliminary ruling | ‘(1) Against the background in particular of Article 41 of the Charter enshrining the principle of good administration, does the exception of ‘cases covered by criminal law’ – found at the end of Article 54(1) of Directive 2004/39 and at the beginning of Article 54(3) – cover a situation concerning, according to national law, an administrative sanction, but considered from the point of view of the ECHR to be part of criminal law, such as the sanction at issue in the main proceedings, imposed by the national regulator, the national supervisory authority, and consisting in ordering a member of the national bar association to cease holding a post as director or any other post subject to accreditation in an entity supervised by that regulator and ordering him to resign from all his posts at the earliest opportunity? (2) Inasmuch as the aforementioned administrative sanction, regarded as such under national law, stems from administrative proceedings, to what extent is the obligation of professional secrecy, which a national supervisory authority may invoke under Article 54 of Directive 2004/39, subject to the requirements for a fair trial including an effective remedy as laid down in Article 47 of the Charter, examined in relation to the parallel requirements of Articles 6 and 13 ECHR relating to a fair trial and an effective remedy, [as well as] the safeguards provided for by Article 48 of the Charter, in particular as regards full access for the person on whom the administrative sanction has been imposed to the administrative file of the author of the sanction, which is also the national supervisory authority, for the purpose of protecting the interests and civil rights of the person on whom the sanction has been imposed?’ |
Decision | Article 54 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC must be interpreted as meaning that – the phrase ‘cases covered by criminal law’ in paragraphs 1 and 3 of that article does not cover the situation in which the authorities established by the Member States for the purpose of fulfilling the functions set out in that directive adopt a measure, such as that at issue in the main proceedings, consisting in prohibiting a person from holding a post as director or any other post subject to accreditation in an undertaking supervised by that regulator and ordering him to resign from all related posts at the earliest opportunity, on the ground that that person no longer fulfils the requirement of good repute provided for in Article 9 of that directive, which is part of the measures that the competent authorities are required to take when exercising the powers attributed to them under Title II of that directive. That provision, in providing that the obligation of professional secrecy may exceptionally be disregarded in such cases, covers the communication or use of confidential information for the purpose of conducting proceedings or imposing sanctions in accordance with national criminal law; – the obligation of professional secrecy provided for in paragraph 1 of that article, read in conjunction with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, must be guaranteed and implemented in such a way as to reconcile it with the rights of the defence. Accordingly, it is for the competent national court, when a competent authority invokes that obligation in order to refuse to disclose documents in its possession that are not in the file concerning the person who is the subject of a measure adversely affecting him, to ascertain whether that information is objectively connected to the complaints upheld against him and, if this should be the case, to weigh up the interest of the person in question in having access to the information necessary for him to be in a position to exercise fully his rights of defence and the interests in connection with maintaining the confidentiality of the information covered by the obligation of professional secrecy, before taking a decision whether to communicate each of the requested pieces of information. |
Case number | C–614/14 |
Case name | Ognyanov |
Document | Judgment ECLI:EU:C:2016:514 |
Date | 05/07/2016 |
Source of the question referred for a preliminary ruling | Sofijski gradski sad (Sofia City Court, Bulgaria) |
Name of the parties | Criminal proceedings against Atanas Ognyanov; intervening party: Sofiyska gradska prokuratura, |
Subject matter | Principles, aims and functions of treaties; criminal procedure; exclusion of the referring court |
Key words | Ognyanov – Content of a request for a preliminary ruling – National rule providing that the national court is to be disqualified because it stated a provisional opinion in the request for a preliminary ruling when setting out the factual and legal context – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Does it constitute an infringement of EU law (second paragraph of Article 267 TFEU, in conjunction with Article 94 of the Rules of Procedure of the Court of Justice, Articles 47 and 48 of the Charter … and other applicable provisions) if the court which submitted the request for a preliminary ruling allows the proceedings to continue before it after delivery of the preliminary ruling and delivers a decision on the merits of the case without disqualifying itself? The ground for such disqualification is the expression by that court of a preliminary view on the merits of the case in the request for a preliminary ruling (in that it considered certain facts to have been established and a certain legal provision to be applicable to those facts. The question is referred on the assumption that all procedural provisions protecting the parties’ rights to adduce evidence and to make submissions were complied with in the determination of the facts and applicable law for the purposes of submitting the request for a preliminary ruling. (2) If the answer to the first question is that it is lawful for the hearing of the case to continue, does it constitute an infringement of EU law if: (a) The court reproduces in its final decision, without amendment, all the findings set out in its request for a preliminary ruling and declines to take new evidence or to hear the parties in relation to those factual and legal outcomes (with the court, in practice, taking new evidence and hearing the parties only in respect of matters not regarded as having been established in the request for a preliminary ruling)? (b) The court takes new evidence and hears the parties on all relevant issues, including those on which it has already stated its view in the request for a preliminary ruling, and sets out its view in its final decision on the basis of all the evidence adduced and after examining all the parties’ arguments, irrespective of whether the evidence was adduced before submission of the request for a preliminary ruling or after delivery of the preliminary ruling, and of whether the arguments were put forward beforehand or afterwards? (3) If the answer to the first question is that it is compatible with EU law for the hearing of the case to continue, is it compatible with EU law if the court decides not to allow the main proceedings to continue before it and to disqualify itself from the case on the ground of bias, it being contrary to national law (which offers a higher level of protection in respect of the interests of the parties and of justice) for the proceedings to be allowed to continue, and where such disqualification is based on the fact that: (a) before delivering its final decision, the court had expressed a preliminary view on the proceedings in the request for a preliminary ruling, which is permissible under EU law but which is prohibited under national law; b) the court’s final view would be set out in two legal acts instead of one (on the assumption that the request for a preliminary ruling constitutes a final, rather than a preliminary, view), which is permissible under EU law but which is prohibited under national law?’ |
Decision | 1. Article 267 TFEU and Article 94 of the Rules of Procedure of the Court, read in the light of the second paragraph of Article 47 and of Article 48(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a national rule which is interpreted in such a way as to oblige the referring court to disqualify itself from a pending case, on the ground that it set out, in its request for a preliminary ruling, the factual and legal context of that case. 2. EU law, and in particular Article 267 TFEU, must be interpreted as meaning that it does not require the referring court, after the delivery of the preliminary ruling, to hear the parties again and to undertake further inquiries, which might lead it to alter the findings of fact or law made in the request for a preliminary ruling, nor does it prohibit the referring court from doing so, provided that the referring court gives full effect to the interpretation of EU law adopted by the Court of Justice of the European Union. 3. EU law must be interpreted as precluding a referring court from applying a national rule, such as that at issue in the main proceedings, which is deemed to be contrary to EU law. |
Case number | C–399/11 |
Case name | Melloni |
Document | Judgment ECLI:EU:C:2013:107 |
Date | 26/02/2013 |
Source of the question referred for a preliminary ruling | Tribunal Constitucional (Spain) |
Name of the parties | Stefano Melloni v Ministerio Fiscal |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | Melloni – Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person concerned has not appeared in person – Execution of a sentence pronounced in absentia – Possibility of review of the judgment |
Question referred for a preliminary ruling | ‘1. Must Article 4a(1) of Framework Decision 2002/584/JHA, as inserted by Council Framework Decision 2009/299/JHA, be interpreted as precluding national judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant conditional upon the conviction in question being open to review, in order to guarantee the rights of defence of the person requested under the warrant? 2. In the event of the first question being answered in the affirmative, is Article 4a(1) of Framework Decision 2002/584/JHA compatible with the requirements deriving from the right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter …, and from the rights of defence guaranteed under Article 48(2) of the Charter? 3. In the event of the second question being answered in the affirmative, does Article 53 of the Charter, interpreted schematically in conjunction with the rights recognised under Articles 47 and 48 of the Charter, allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording those rights a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognised by the constitution of the first–mentioned Member State?’ |
Decision | 1. Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as precluding the executing judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant issued for the purposes of executing a sentence conditional upon the conviction rendered in absentia being open to review in the issuing Member State. 2. Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, is compatible with the requirements under Articles 47 and 48(2) of the Charter of Fundamental Rights of the European Union. 3. Article 53 of the Charter of Fundamental Rights of the European Union must be interpreted as not allowing a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution. |
Case number | C–396/11 |
Case name | Radu |
Document | Judgment ECLI:EU:C:2013:39 |
Date | 29/01/2013 |
Source of the question referred for a preliminary ruling | Curtea de Apel Constanţa (Romania) |
Name of the parties | Ciprian Vasile Radu |
Subject matter | Area of freedom, security and justice; police and judicial cooperation in criminal matters; European arrest warrant |
Key words | Radu – Police and judicial cooperation in criminal matters – European arrest warrant and surrender procedures between Member States – European arrest warrant issued for the purposes of prosecution – Grounds for refusing execution |
Question referred for a preliminary ruling | ‘(1) Are Articles 5(1) [of the ECHR] and 6 [of the Charter], read in conjunction with Articles 48 and 52 [of the Charter], with reference also to Article 5(3) and (4) and Article 6(2) and (3) of [the ECHR], provisions of primary [European Union] law, contained in the founding Treaties? (2) Does the action of the competent judicial authority of the State of execution of a European arrest warrant, entailing deprivation of liberty and forcible surrender, without the consent of the person in respect of whom the European arrest warrant has been issued (the person whose arrest and surrender are requested) constitute interference, on the part of the State executing the warrant, with the right to individual liberty of the person whose arrest and surrender are requested, which is authorised by European Union law, pursuant to Article 6 TEU, read in conjunction with Article 5(1) of the [ECHR], and pursuant to Article 6 of the [Charter], read in conjunction with Articles 48 and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR]? (3) Must the interference on the part of the State executing a European arrest warrant with the rights and guarantees laid down in Article 5(1) of the [ECHR] and in Article 6 of the [Charter], read in conjunction with Articles 48 and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR], satisfy the requirements of necessity in a democratic society and of proportionality in relation to the objective actually pursued? (4) Can the competent judicial authority of the State executing a European arrest warrant refuse the request for surrender without being in breach of the obligations authorised by the founding Treaties and the other provisions of [European Union] law, by reason of a failure to observe all the cumulative conditions under Article 5(1) of the [ECHR] and Article 6 of the [Charter], read in conjunction with Articles 48 and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR]? (5) Can the competent judicial authority of the State executing a European arrest warrant refuse the request for surrender without being in breach of the obligations authorised by the founding Treaties and the other provisions of [European Union] law, on the ground that the [Member] State issuing the European arrest warrant has failed to transpose or fully to transpose or has incorrectly transposed (in the sense that the condition of reciprocity has not been satisfied) [Framework Decision 2002/584]? (6) Is the domestic law of Romania, a Member State of the European Union – in particular Title III of Law No 302/2004 – incompatible with Article 5(1) of the [ECHR] and Article 6 of the [Charter], read in conjunction with Articles 48 and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR], to which Article 6 TEU refers, and have the above provisions properly transposed into national law [Framework Decision 2002/584]?’ |
Decision | Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the executing judicial authorities cannot refuse to execute a European arrest warrant issued for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard in the issuing Member State before that arrest warrant was issued. |
Article 49 of the Charter: Principles of legality and proportionality of criminal offences and penalties
Case number | C–168/21 |
Case name | Procureur général près la cour d'appel d'Angers |
Document | Judgment ECLI:EU:C:2022:558 |
Date | 14/07/2022 |
Source of the question referred for a preliminary ruling | Cour de cassation (Court of Cassation, France) |
Name of the parties | KL, other party: Procureur général près la cour d’appel d’Angers, |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | KL – Judicial cooperation in criminal matters – Condition of double criminality of the act – Ground for optional non–execution of the European arrest warrant – Verification by the executing judicial authority – Acts some of which constitute an offence under the law of the executing Member State – Charter of Fundamental Rights of the European Union – Principle of proportionality of criminal offences and penalties |
Question referred for a preliminary ruling | ‘(1) Must Articles 2(4) and 4(1) of Framework Decision 2002/584 be interpreted as meaning that the condition of double criminality [of the act] is met in a situation, such as that at issue in the main proceedings, in which surrender is sought for acts which, in the issuing [Member] State, have been categorised as devastation and looting and which consist of acts of devastation and looting such as to cause a breach of the public peace when, in the executing [Member] State, there are criminal offences of theft accompanied by damage or offences of causing destruction or damage that do not require that element of a breach of the public peace? (2) In the event that the first question is answered in the affirmative, must Articles 2(4) and 4(1) of Framework Decision 2002/584 be interpreted as meaning that the courts in the executing [Member] State may refuse to execute a European arrest warrant issued for the purpose of enforcing a sentence where they find that the judicial authorities in the issuing [Member] State imposed that sentence on the person concerned for the commission of a single offence covering various acts and where only some of those acts constitute a criminal offence in the executing [Member] State? Does a distinction need to be made depending on whether or not the trial court in the issuing [Member] State considered those various acts to be divisible or indivisible? (3) Does Article 49(3) of the [Charter] require the judicial authorities in the executing Member State to refuse to execute a European arrest warrant where, first, that warrant was issued in order to enforce a single sentence imposed for a single offence and, second, where, given that some of the acts for which that sentence was imposed do not constitute an offence under the law of the executing Member State, a surrender can only be ordered in relation to some of those acts?’ |
Decision | 1. Articles 2(4) and 4(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the condition of double criminality of the act laid down in those provisions is met where a European arrest warrant is issued for the purpose of enforcing a custodial sentence handed down for acts which relate, in the issuing Member State, to an offence requiring that those acts impair a legal interest protected in that Member State when such acts also constitute a criminal offence, under the law of the executing Member State, of which the impairment of that protected legal interest is not a constituent element. 2. Articles 2(4) and 4(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in the light of Article 49(3) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the executing judicial authority may not refuse to execute a European arrest warrant issued for the purpose of enforcing a custodial sentence where that sentence was imposed in the issuing Member State for the commission, by the requested person, of a single offence consisting of multiple acts, only some of which constitute a criminal offence in the executing Member State. |
Case number | C–35/20 |
Case name | A (Franchissement de frontières en navire de plaisance) |
Document | Judgment ECLI:EU:C:2021:813 |
Date | 06/10/2021 |
Source of the question referred for a preliminary ruling | Korkeinoikeus (Supreme Court, Finland) |
Name of the parties | Criminal proceedings against A |
Subject matter | Citizenship of the Union – Area of freedom, security and justice; asylum policy; border control; identity documents |
Key words | A – Citizenship of the Union – Right of Union citizens to move freely within the territories of the Member States – Obligation to carry an identity card or a passport – Crossing the maritime border of a Member State on board a pleasure boat – Rules on sanctions applicable when moving between Member States without an identity card or passport – Rules on daily fines in criminal cases – Calculation of the fine based on the offender’s average monthly income – Proportionality – Severity of the sanction in relation to the offence |
Question referred for a preliminary ruling | ‘(1) Does EU law, in particular Article 4(1) of Directive [2004/38], Article 21 of Regulation [No 562/2006], or the right of EU citizens to move freely within the territory of the European Union, preclude the application of a national provision requiring a person (whether or not an EU citizen), on pain of criminal penalties, to carry a valid passport or other valid travel document when travelling from one Member State to another by pleasure boat via international waters without entering the territory of a third country? (2) Does EU law, in particular Article 5(1) of Directive [2004/38], Article 21 of Regulation [No 562/2006], or the right of EU citizens to move freely within the territory of the European Union, preclude the application of a national provision requiring a person (whether or not an EU citizen), on pain of criminal penalties, to carry a valid passport or other valid travel document upon entering the Member State concerned from another Member State by pleasure boat via international waters without having entered the territory of a third country? (3) In so far as no obstacle within the meaning of Questions 1 and 2 arises under EU law: Is the penalty normally imposed in Finland in the form of daily fines for crossing the Finnish border without carrying a valid travel document compatible with the principle of proportionality that follows from Article 27(2) of Directive [2004/38]?’ |
Decision | 1. The right of Union citizens to free movement provided for in Article 21 TFEU and defined by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must, having regard to the provisions on border crossing laid down by Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, be interpreted as not precluding national legislation by which a Member State obliges its nationals, on pain of criminal penalties, to carry a valid identity card or passport when travelling to another Member State, by whatever means of transport and by whatever route, provided that the detailed rules for those penalties comply with the general principles of EU law, including those of proportionality and non–discrimination. 2. The right of Union citizens to freedom of movement laid down in Article 21(1) TFEU, in the light of the provisions on the crossing of borders set out in Regulation No 562/2006, as amended by Regulation No 610/2013, must be interpreted as not precluding national legislation by which a Member State requires its nationals to carry a valid identity card or passport, on pain of criminal sanctions, when they enter its territory from another Member State, provided that that obligation does not make the right of entry conditional and that the detailed rules on penalties for failure to comply with that obligation comply with the general principles of EU law, including those of proportionality and non–discrimination. A journey to the Member State concerned from another Member State made on board a pleasure boat and through international waters is listed, under the conditions laid down in the second paragraph of point 3.2.5 of Annex VI to that regulation, among the cases in which the submission of such a document may be requested. 3. Article 21(1) TFEU and Articles 4 and 36 of Directive 2004/38, read in the light of Article 49(3) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding rules on criminal sanctions by which a Member State makes the crossing of its national border without a valid identity card or passport punishable by a fine which may, by way of example, amount to 20% of the offender’s net monthly income, where such a fine is not proportionate to the seriousness of the offence, which is of a minor nature. |
Case number | C–544/19 |
Case name | ECOTEX BULGARIA |
Document | Judgment ECLI:EU:C:2021:803 |
Date | 06/10/2021 |
Source of the question referred for a preliminary ruling | Administrativen sad Blagoevgrad (Administrative Court, Blagoevgrad, Bulgaria) |
Name of the parties | ‘ЕCOTEX BULGARIA’ LTD v Teritorialna direktsia na Natsionalnata agentsia za prihodite |
Subject matter | Free movement of capital and free movement of payments; financial services; transfer to a deposit account |
Key words | Ecotex – Free movement of capital – National legislation requiring payments exceeding a certain amount to be made only by transfer or deposit into a payment account – Justification – Combating tax evasion and tax avoidance – Proportionality – Administrative penalties of a criminal nature – Charter of Fundamental Rights of the European Union – Principles of legality and proportionality of criminal offences and penalties |
Question referred for a preliminary ruling | ‘(1) Must Article 63 TFEU be interpreted as precluding national legislation such as that in question in the main proceedings, under which domestic payments amounting to [BGN 10 000] or more are only to be made by transfer or deposit into a payment account and which restricts the cash payment of dividends from undistributed profits of BGN 10 000 or more? If Article 63 TFEU does not preclude [such legislation], is such a restriction justified by the aims of [Directive 2015/849]? (2) Must Article 2(1) of [Directive 2015/849], in consideration of recital 6 and Articles 4 and 5 thereof, be interpreted as not precluding a general national legislative provision such as that in question in the main proceedings, under which domestic payments of BGN 10 000 or more are only to be made by transfer or deposit into a payment account and which has no interest in the person and in the reason for the cash payment and at the same time covers all cash payments among natural and legal persons? [(a)] If that question is answered in the affirmative, does Article 2(1)(3)(e) of [Directive 2015/849], in consideration of recital 6 and Articles 4 and 5 thereof, allow the Member States to provide for additional general restrictions of domestic cash payments in a national legislative provision such as that in question in the main proceedings, under which domestic cash payments of BGN 10 000 or more are only to be made by transfer or deposit into a payment account, if the reason for the cash payment is ‘undistributed profit’ (dividends)? [(b)] If that question is answered in the affirmative, does Article 2(1)(3)(e) of [Directive 2015/849], in consideration of recital 6 and Article 5 thereof, allow the Member States to provide for restrictions of cash payments in a national legislative provision such as that in question in the main proceedings, under which domestic payments of BGN 10 000 or more are only to be made by transfer or deposit into a payment account, where the threshold value is below EUR 10 000? (3) [(a)] Must Article 58(1) and Article 60(4) of [Directive 2015/849], with regard to Article 49(3) of the [Charter], be interpreted as precluding a national legislative provision such as that in question in the main proceedings, which stipulates a fixed level of administrative penalties for infringements of the cash payment restrictions and does not allow any differentiating assessment taking account of the specific relevant circumstances? [(b)] If the answer is that the provisions of Article 58(1) and Article 60(4) of [Directive 2015/849], with regard to Article 49(3) of the [Charter], allow a national legislative provision such as that in question in the main proceedings, which stipulates a fixed level of administrative penalties for infringements of the cash payment restrictions, must the provisions of Article 58 and Article 60(4) of [Directive 2015/849], in consideration of the principle of effectiveness and the right to an effective remedy under Article 47 of the [Charter], be interpreted as precluding a national legislative provision such as that in question in the main proceedings, which restricts judicial review, if that provision does not allow the court to determine an administrative penalty for infringements of the cash payment restrictions, in the event of an appeal, below the amount that has been set, taking account of the specific relevant circumstances?’ |
Decision | 1. Legislation of a Member State which, for domestic payments the amount of which is equal to or exceeds a set threshold, prohibits natural and legal persons from making payments in cash and requires them to make a transfer or deposit into a payment account does not come within the scope of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC. 2. Article 63 TFEU, read in conjunction with Article 49(3) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding legislation of a Member State which, with a view to combating tax evasion and tax avoidance, first, prohibits natural and legal persons from making domestic payments in cash where the amount of the payment is equal to or exceeds a set threshold and requires, to that end, a transfer or deposit into a payment account, including as regards the distribution of dividends of a company, and second, provides for a system of penalties for infringing that prohibition in the context of which the amount of the fine that may be imposed is calculated as a fixed percentage of the total amount of the payment made in breach of that prohibition, without it being possible to adjust that fine depending on the particular circumstances of the case, provided that that legislation is appropriate for securing attainment of those objectives and does not go beyond what is necessary for attaining them. |
Case number | C–113/19 |
Case name | Luxaviation |
Document | Order ECLI:EU:C:2020:228 |
Date | 26/03/2020 |
Source of the question referred for a preliminary ruling | Cour administrative (Higher Administrative Court, Luxembourg) |
Name of the parties | Luxaviation SA v Ministre de l'Environnement |
Subject matter | Environment; pollution; equality before the law; surrender of 2015 CO2 emission allowances |
Key words | Luxaviation – Environment – Scheme for greenhouse gas emission allowance trading – Directive 2003/87/EC – Penalty for excess emissions – No exculpatory cause in the event of actual holding of non–surrendered allowances, unless force majeure – No possibility of varying the amount of the penalty – Proportionality – Charter of Fundamental Rights of the European Union – Principle of the protection of legitimate expectations) |
Question referred for a preliminary ruling | ‘(1) Is Article 12(3) of Directive 2003/87, which provides that Member States must ensure the surrender by their operators of the allowances issued, to be interpreted, in conjunction with Article 41 of the [Charter of Fundamental Rights of the European Union (‘the Charter’)], which enshrines the principle of sound administration, as requiring the competent national authority to carry out individual monitoring of surrender obligations, before the deadline of 30 April of the year concerned, where that same administration is responsible for monitoring a small number of operators, in this case 25 operators at national level? (2) (a) Should it be considered that an incomplete allowance surrender operation, like the one in the present case, in which the operator relied on the receipt of electronic confirmation that the transfer procedure had been finalised, could reasonably have generated in the mind of the operator acting in good faith a legitimate expectation that it had completed the surrender operation provided for in Article 6(2)(e) of Directive 2003/87? (b) Bearing in mind the answer given to the second question, can the legitimacy of that expectation be presumed to be more firmly established in the mind of an operator acting in good faith if, during the previous surrender, it was voluntarily contacted by the national administration in order to remind it, a few days before expiry of the time limits laid down in Article 6(2)(e) of Directive 2003/87, that the allowance surrender procedure had not yet been completed, thereby allowing that operator reasonably to assume that it had met its surrender obligations for the current year in the absence of any direct contact by that same administration the following year? (c) In the light of the answers given to the two previous questions, whether analysed individually or together, can the principle of protection of legitimate expectations be interpreted as constituting a case of force majeure partially or wholly exempting the operator acting in good faith from the penalty provided for in Article 16(3) of Directive 2003/87? (3) (a) Does Article 49(3) of the Charter, which enshrines the principle of proportionality, preclude the fixing of a flat–rate fine to penalise non–surrender of emissions allowances, as provided for in Article 16(3) of Directive 2003/87, where that provision does not allow the imposition of a penalty proportionate to the infringement committed by the operator? (b) If the answer to the previous question is in the negative, must the principle of equal treatment enshrined in Article 20 of the Charter, the general principle of good faith and the principle ‘fraus omnia corrumpit’ be interpreted as precluding – as regards the flat–rate penalty to be imposed pursuant to Article 16(3) of Directive 2003/87, to which the publication provided for in Article 20(7) [of the Law of 23 December 2004] is automatically added – an operator acting in good faith, which is simply negligent and which furthermore believed that it had fulfilled its obligations to surrender emissions allowances by the relevant deadline of 30 April, from being treated in the same way as an operator which behaved fraudulently? (c) If the answer to the previous question is in the negative, is the application of the flat–rate penalty, without any possibility of a variation by the national court, other than in cases of force majeure, [and] the automatic penalty of publication consistent with Article 47 of the Charter, which guarantees the existence of an effective remedy? (d) If the answer to the previous question is in the negative, is it the case that the ratification of a financial penalty fixed on the basis of the EU legislature’s intention thus expressed [and] the automatic penalty of publication, without the involvement of the principle of proportionality, except in the case of force majeure as strictly interpreted, amounts to an abdication by the national court before the supposed intention of the EU legislature and to an improper lack of judicial review in the light of Article 47 and Article 49(3) of the Charter? (e) Bearing in mind the answer given to the previous question, is it the case that the lack of judicial review by the national court of the flat–rate penalty provided for in Article 16(3) of Directive 2003/87 [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] amounts to shutting off essentially fruitful channels of communication between the [Court] and the national Supreme Courts under the influence of a pre–determined solution endorsed by the [Court], except in the case of force majeure as strictly viewed, which means that the national Supreme Court, which can only ratify the penalty once it is deemed that force majeure has not been established, is unable to enter into an effective dialogue? (4) Bearing in mind the answers given to the previous questions, can the concept of force majeure be interpreted as taking into account the individual hardship of an operator acting in good faith where payment of the flat–rate penalty provided for in Article 16(3) of Directive 2003/87 [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] constitute a considerable financial risk and loss of credit which could lead to its staff being made redundant or even bankruptcy?’ |
Decision | 1. Articles 20 and 47 and Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding there being no possibility for the flat–rate penalty provided for in Article 16(3) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, to be varied by a national court. 2. Article 41 of the Charter of Fundamental Rights of the European Union must be interpreted as not applying to the issue of whether it is obligatory for Member States, and not merely optional for them, to introduce warning, reminder and advance–surrender mechanisms allowing operators acting in good faith to be fully informed of their surrender obligation and thus not to run any risk of a penalty under Article 16(3) of Directive 2003/87, as amended by Directive 2009/29. 3. The principle of the protection of legitimate expectations must be interpreted as not precluding the imposition of the penalty provided for in Article 16(3) of Directive 2003/87, as amended by Directive 2009/29, in a situation where the competent authorities did not warn the operator prior to the expiry of the time limit for surrender, whereas they had done so, without being obliged to, the previous year. 4. It is for the referring court to assess whether the concept of ‘circumstances constituting force majeure’, within the meaning of paragraph 31 of the judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka (C‑203/12, EU:C:2013:664), applies to a situation such as that at issue in the main proceedings. |
Case number | C–634/18 |
Case name | Prokuratura Rejonowa w Słupsku |
Document | Judgment ECLI:EU:C:2020:455 |
Date | 11/06/2020 |
Source of the question referred for a preliminary ruling | Sąd Rejonowy w Słupsku (Higher Administrative Court, Luxembourg) |
Name of the parties | JI, interested party Prokuratura Rejonowa w Słupsku |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; drugs |
Key words | JI – Environment – Scheme for greenhouse gas emission allowance trading – Directive 2003/87/EC – Penalty for excess emissions – No exculpatory cause in the event of actual holding of non–surrendered allowances, unless force majeure – No possibility of varying the amount of the penalty – Proportionality – Charter of Fundamental Rights of the European Union – Principle of the protection of legitimate expectations |
Question referred for a preliminary ruling | ‘(1) Must the rule of EU law contained in Article 4(2)(a) of [Framework Decision 2004/757], read in conjunction with Article 2(1)(c) thereof, be interpreted as meaning that that rule does not preclude the expression ‘a significant quantity of drugs’ from being interpreted on a case–by–case basis as part of the individual assessment of a national court, and that that assessment does not require the application of any objective criterion, in particular that it does not require a finding that the offender possesses drugs for the purpose of performing acts covered by Article 4(2)(a) of that framework decision, that is to say production, offering, offering for sale, distribution, brokerage, or delivery on any terms whatsoever?
(2) In so far as the [Law of on combating drug addiction] contains no precise definition of ‘a significant quantity of drugs’ and leaves the interpretation thereof to the bench adjudicating in a specific case in the exercise of its ‘judicial discretion’, are the judicial remedies necessary to ensure the effectiveness and efficiency of the rules of EU law contained in [Framework Decision 2004/757], and in particular Article 4(2)(a) of that framework decision, read in conjunction with Article 2(1)(c) thereof, sufficient to afford Polish citizens effective protection resulting from the rules of EU law laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking?
(3) Is the rule of national law contained in Article 62(2) of the [Law on combating drug addiction] compatible with EU law, and in particular [with the rule] contained in Article 4(2)(a) of [Framework Decision 2004/757], read in conjunction with Article 2(1)(c) thereof, and, if so, is the interpretation which the national Polish courts place on the expression ‘a significant quantity of psychotropic substances and narcotic drugs’ contrary to the rule of EU law pursuant to which a person who has committed the offence of possessing large quantities of drugs to perform activities covered by Article 2(1)(c) of [Framework Decision 2004/757] is to be subject to stricter criminal liability?
(4) Is Article 62(2) of the [Law on combating drug addiction], which lays down stricter criminal liability for the offence of possessing a significant quantity of psychotropic substances and narcotic drugs, as interpreted by the Polish national courts, contrary to the principles of equality and non–discrimination (Article 14 [of the ECHR] and Articles 20 and 21 [of the Charter], read in conjunction with Article 6(1) [TEU])?’ |
Decision | Article 4(2)(a) of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, read in conjunction with Article 2(1)(c) thereof, and Articles 20, 21 and 49 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a Member State from classifying as a criminal offence the possession of a significant quantity of narcotic drugs or psychotropic substances both for personal consumption and for the purposes of illicit drug trafficking, while leaving the interpretation of the concept of ‘significant quantity of narcotic drugs or psychotropic substances’ to the discretion of the national courts, on a case–by–case basis, provided that that interpretation is reasonably foreseeable. |
Case number | C–115/17 |
Case name | Clergeau and Others |
Document | Judgment ECLI:EU:C:2018:651 |
Date | 07/08/2018 |
Source of the question referred for a preliminary ruling | Cour de cassation (Court of Cassation, France) |
Name of the parties | Administration des douanes et droits indirects and Etablissement national des produits de l'agriculture et de la mer (FranceAgriMer) v Hubertu Clergeauju and Others |
Subject matter | Agriculture and fisheries; beef and veal; obtaining export benefits |
Key words | Clergeau – False declarations or deceitful practices in order to secure special export refunds on certain cuts of boned meat of bovine animals – Principle of the retroactive application of the more lenient criminal law –Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘Is Article 49 of the Charter … to be interpreted as precluding a situation in which a person is convicted on the ground that he obtained export refunds, to which he was not entitled, by means of deceitful practices or the making of false declarations as to the nature of the goods in respect of which the refunds were requested, although, as a result of changes in the rules which occurred subsequent to the facts of the case, the goods that were in fact exported by that person have since become eligible for those refunds?’ |
Decision | The principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a situation in which a person is convicted on the ground that he wrongfully obtained special export refunds provided for in Commission Regulation (EEC) No 1964/82 of 20 July 1982 laying down the conditions for granting special export refunds on certain cuts of boned meat of bovine animals, by means of deceitful practices or the making of false statements as to the nature of the goods in respect of which the refunds were requested, although, as a result of changes in those rules which occurred subsequent to the acts complained of, the goods that were exported by that person have since become eligible for those refunds. |
Case number | C–218/15 |
Case name | Paoletti and Others |
Document | Judgment ECLI:EU:C:2016:748 |
Date | 06/10/2016 |
Source of the question referred for a preliminary ruling | Tribunale ordinario di Campobasso (District Court, Campobasso, Italy) |
Name of the parties | Criminal proceedings against Gianpaolo Paoletti and Others |
Subject matter | Area of freedom, security and justice; asylum policy; border control; assistance with illegal immigration of Romanian nationals before Romania's accession to the European Union |
Key words | Paoletti – Charter of Fundamental Rights of the European Union – Principle of retroactivity of the more lenient criminal law – Italian nationals having organised the illegal entry into Italy of Romanian nationals – Acts carried out before the accession of Romania to the European Union – Effect of Romania’s accession on the criminal offence of facilitation of illegal immigration – Implementation of EU law – Jurisdiction of the Court |
Question referred for a preliminary ruling | ‘(1) Must Article 7 of the ECHR, Article 49 of the Charter and Article 6 TEU be interpreted as meaning that Romania’s accession to the European Union on 1 January 2007 had the effect of abolishing the criminal offence provided for in and punishable under Article 12 of Legislative Decree No 286/1998 relating to the facilitating of the immigration and stay by Romanian nationals in the territory of the Italian State? (2) Must those provisions be interpreted as precluding a Member State from applying the principle of benign retroactivity (in mitius) in respect of persons who, before 1 January 2007 (or other subsequent date on which the treaty took full effect), the date on which Romania’s accession to the European Union took effect, were guilty of breach of Article 12 of Legislative Decree No 286/1998 in that they facilitated the immigration of Romanian nationals, which ceased to be an offence as from 1 January 2007?’ |
Decision | Article 6 TEU and Article 49 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the accession of a State to the European Union does not preclude another Member State imposing a criminal penalty on persons who committed, before the accession, the offence of facilitation of illegal immigration for nationals of the first State. |
Case number | C–650/13 |
Case name | Delvigne |
Document | Judgment ECLI:EU:C:2015:648 |
Date | 06/10/2015 |
Source of the question referred for a preliminary ruling | Tribunal d’instance de Bordeaux (France) |
Name of the parties | Thierry Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde |
Subject matter | Citizenship of the Union; right to vote |
Key words | Delvigne – Charter of Fundamental Rights of the European Union – European Parliament – Elections – Right to vote – Citizenship of the European Union – Retroactive effect of the more lenient criminal law – National legislation providing for the deprivation of the right to vote in the case of a criminal conviction by a final judgment delivered before 1 March 1994 |
Question referred for a preliminary ruling | ‘(1) Is Article 49 of the Charter … to be interpreted as preventing a provision of national law from maintaining a ban, which, moreover, is indefinite and disproportionate, on allowing persons convicted before the entry into force of a more lenient criminal law, namely, Law No 94–89 of 1 February 1994, to receive a lighter penalty? (2) Is Article 39 of the Charter …, applicable to elections to the European Parliament, to be interpreted as precluding the Member States of the European Union from making provision for a general, indefinite and automatic ban on exercising civil and political rights, in order to avoid creating any inequality of treatment between nationals of the Member States?’ |
Decision | Article 39(2) and the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which excludes, by operation of law, from those entitled to vote in elections to the European Parliament persons who, like the applicant in the main proceedings, were convicted of a serious crime and whose conviction became final before 1 March 1994. |
Article 50 of the Charter: Right not to be tried or punished twice in criminal proceedings for the same criminal offence
Case number | C–435/22 PPU |
Case name | Generalstaatsanwaltschaft München () and ne bis in idem) |
Document | Judgment ECLI:EU:C:2022:852 |
Date | 28/10/2022 |
Source of the question referred for a preliminary ruling | Oberlandesgericht München (Higher Regional Court, Munich, Germany) |
Name of the parties | In the criminal proceedings against HF, intervening party: Generalstaatsanwaltschaft München |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; bilateral extradition treaties |
Key words | HF – Judicial cooperation in criminal matters – Charter of Fundamental Rights of the European Union –Convention implementing the Schengen Agreement – Principle ne bis in idem – Extradition agreement between the European Union and the United States of America – Extradition of a third–country national to the United States under a bilateral treaty concluded by a Member State – National who has been convicted by final judgment for the same acts and has served his sentence in full in another Member State |
Question referred for a preliminary ruling | ‘Must Article 54 of the [CISA], read in conjunction with Article 50 of the [Charter], be interpreted as meaning that that those provisions preclude the extradition of a third–country national who is not an EU citizen in terms of Article 20 of the TFEU by the authorities of a contracting state to that Convention and an EU Member State to a third country if final judgment has been passed against the person concerned by another Member State of the European Union for the same offences to which the extradition request relates and that judgment has been enforced and where the decision to refuse to extradite that person to the third country would be possible only at the cost of breaching a bilateral extradition treaty that exists with that third country?’ |
Decision | 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, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, read in the light of Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding the extradition, by the authorities of a Member State, of a third–country national to another third country, where, first, that national has been convicted by final judgment in another Member State for the same acts as those referred to in the extradition request, and has been subject to the sentence imposed in that State, and, second, the extradition request is based on a bilateral extradition treaty limiting the scope of the principle ne bis in idem to judgments handed down in the requested Member State. |
Case number | C–570/20 |
Case name | BV |
Document | Judgment ECLI:EU:C:2022:348 |
Date | 05/05/2022 |
Source of the question referred for a preliminary ruling | Cour de cassation (Court of Cassation, France) |
Name of the parties | Criminal proceedings against BV, intervening parties: Direction départementale des finances publiques de la Haute–Savoie |
Subject matter | Tax assessment; value added tax; tax evasion |
Key words | BV – Value added tax (VAT) – Directive 2006/112/EC – Fraudulent concealment of tax due – Penalties – National legislation which provides for an administrative penalty and a criminal penalty for the same acts – Charter of Fundamental Rights of the European Union – Principle ne bis in idem – Limitations to the principle ne bis in idem – Requirement to provide for clear and precise rules – Possibility of taking into account the interpretation of national legislation by national courts – Need to provide for rules ensuring the proportionality of all of the penalties imposed – Penalties of different kinds |
Question referred for a preliminary ruling | ‘(1) Is the requirement of the clarity and the foreseeability of the circumstances in which concealments in returns relating to VAT due may be the subject of a duplication of proceedings and penalties of a criminal nature satisfied by national rules such as those described above? (2) Is the requirement of the necessity and the proportionality of the duplication of such penalties satisfied by national rules such as those described above?’ |
Decision | The fundamental right guaranteed by Article 50 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 52(1) thereof, must be interpreted as meaning that – it does not preclude a situation whereby the limitation of the duplication of proceedings and penalties of a criminal nature in the event of fraudulent concealment or omissions from a return relating to value added tax (VAT) provided for by national legislation to the most serious cases is based only on settled case–law interpreting restrictively the legal provisions laying down the conditions for the application of that duplication, provided that it is reasonably foreseeable, at the time when the offence is committed, that that offence is liable to be the subject of a duplication of proceedings and penalties of a criminal nature, but – it precludes national legislation which does not ensure, in cases of the combination of a financial penalty and a custodial sentence, by means of clear and precise rules, where necessary as interpreted by the national courts, that all of the penalties imposed do not exceed the seriousness of the offence identified. |
Case number | C–203/20 |
Case name | AB and Others (Révocation d’une amnistie) |
Document | Judgment ECLI:EU:C:2021:1016 |
Date | 16/12/2021 |
Source of the question referred for a preliminary ruling | Okresný súd Bratislava III (District Court, Bratislava III, Slovakia) |
Name of the parties | Criminal proceedings against AB and Others |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; European arrest warrant |
Key words | AB – Judicial cooperation in criminal matters – European arrest warrant – Charter of Fundamental Rights of the European Union – Implementation of EU law – Jurisdiction of the Court – Reference made before the issue of a European arrest warrant – Admissibility – Principle ne bis in idem – Concepts of ‘acquittal’ and ‘conviction’ – Amnesty in the issuing Member State – Final decision discontinuing a criminal prosecution – Revocation of the amnesty – Setting–aside of the decision discontinuing the criminal prosecution – Resumption of proceedings – Need for a decision taken after a determination of the criminal liability of the person concerned – Right to information in criminal proceedings – Concept of ‘criminal proceedings’ – Legislative procedure for the adoption of a resolution relating to the revocation of an amnesty – Judicial procedure for review of the compliance of that resolution with the national Constitution |
Question referred for a preliminary ruling | ‘(1) Does the [principle] ne bis in idem … preclude the issuance of a European arrest warrant within the meaning of [Framework Decision 2002/584], and taking into account Article 50 of [the Charter], where the criminal case has been finally closed by a judicial decision to acquit or to discontinue the case, if those decisions have been adopted on the basis of an amnesty that has been revoked by the legislature after the decisions became final and the domestic legal order provides that revocation of such an amnesty entails annulment of decisions of public authorities, where they have been adopted and substantiated on the basis of amnesties or pardons, and the legal obstacles of criminal prosecutions that were based on an amnesty thus revoked have disappeared, without a specific judicial decision or judicial proceedings? (2) Does a provision of a national law that annuls directly – without a decision of a national court – the decision of a national court discontinuing criminal proceedings, which is, under national law, a final decision entailing acquittal and on the basis of which the criminal proceedings have been finally discontinued following the amnesty granted in accordance with a national law, comply with the right to a fair trial, guaranteed in Article 47 of [the Charter], and the right not to be tried or punished twice in criminal proceedings for the same criminal offence, guaranteed in Article 50 of [the Charter] and in Article 82 [TFEU]? (3) Does a provision of national law limiting review by the [Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic)] of the Resolution of the National Council of the Slovak Republic … which revoked an amnesty or individual pardons and was adopted under Article 86(i) of the [amended Constitution], merely to an assessment of the resolution’s constitutionality, without taking into account binding acts adopted by the European Union, in particular [the Charter], the [FEU Treaty] and the [EU Treaty], comply with the principle of sincere cooperation within the meaning of Article 4(3) [TEU], Article 267 [TFEU] and Article 82 [TFEU], the right to a fair trial, guaranteed in Article 47 of [the Charter], and the right not to be tried or punished twice in criminal proceedings for the same criminal offence, guaranteed in Article 50 of [the Charter]?’ |
Decision | 1. Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding the issue of a European arrest warrant against a person who was subject to a criminal prosecution that was initially discontinued by a final judicial decision adopted on the basis of an amnesty, and resumed following the adoption of a law revoking that amnesty and setting aside that judicial decision, in the case where that decision was adopted before any determination as to the criminal liability of the person concerned. 2. Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings must be interpreted as not applying to a legislative procedure for the revocation of an amnesty or to a judicial procedure the purpose of which is to review the compliance of that revocation with the national constitution. |
Case number | C–151/20 |
Case name | Nordzucker and Others |
Document | Judgment ECLI:EU:C:2022:203 |
Date | 22/03/2022 |
Source of the question referred for a preliminary ruling | Oberster Gerichtshof (Supreme Court, Austria) |
Name of the parties | Bundeswettbewerbsbehörde v Nordzucker AG and Others |
Subject matter | Competition; cartel agreements |
Key words | Nordzucker – Competition – Cartel prosecuted by two national competition authorities – Charter of Fundamental Rights of the European Union – Non bis in idem principle – Existence of the same offence – Limitations to the non bis in idem principle – Conditions – Pursuit of an objective of general interest – Proportionality |
Question referred for a preliminary ruling | ‘(1) Is the third criterion established in the Court of Justice’s competition case–law on the applicability of the non bis in idem principle, namely that conduct must concern the same protected legal interest, applicable even where the competition authorities of two Member States are called upon to apply the same provisions of EU law (here: Article 101 TFEU), in addition to provisions of national law, in respect of the same facts and in relation to the same persons? In the event that this question is answered in the affirmative: (2) Does the same protected legal interest exist in such a case of parallel application of European and national competition law? (3) Furthermore, is it of significance for the application of the non bis in idem principle whether the first decision of the competition authority of a Member State to impose a fine took account, from a factual perspective, of the effects of the competition law infringement on the other Member State whose competition authority only subsequently took a decision in the competition proceedings conducted by it? (4) Do proceedings in which, owing to the participation of a party in the national leniency programme, only a declaratory finding of that party’s infringement of competition law can be made also constitute proceedings governed by the non bis in idem principle, or can such a mere declaratory finding of the infringement be made irrespective of the outcome of previous proceedings concerning the imposition of a fine (in another Member State)?’ |
Decision | 1. Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding an undertaking from having proceedings brought against it by the competition authority of a Member State and, as the case may be, fined for an infringement of Article 101 TFEU and the corresponding provisions of the national competition law, on the basis of conduct which has had an anticompetitive object or effect in the territory of that Member State, even though that conduct has already been referred to by a competition authority of another Member State, in a final decision adopted by that authority in respect of that undertaking following infringement proceedings under Article 101 TFEU and the corresponding provisions of the competition law of that other Member State, provided that that decision is not based on a finding of an anticompetitive object or effect in the territory of the first Member State. 2. Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that proceedings for the enforcement of competition law, in which, owing to the participation of the party concerned in the national leniency programme, only a declaration of the infringement of that law can be made, are liable to be covered by the non bis in idem principle. |
Case number | C–117/20 |
Case name | bpost |
Document | Judgment ECLI:EU:C:2022:202 |
Date | 22/03/2022 |
Source of the question referred for a preliminary ruling | Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium) |
Name of the parties | bpost SA v Autorité belge de la concurrence |
Subject matter | Competition; postal tariff system |
Key words | Bpost – Competition – Postal services – Tariff system adopted by a universal service provider – Fine imposed by a national postal regulator – Fine imposed by a national competition authority – Charter of Fundamental Rights of the European Union – Non bis in idem principle – Existence of the same offence – Limitations to the non bis in idem principle – Duplication of proceedings and penalties – Conditions – Pursuit of an objective of general interest – Proportionality |
Question referred for a preliminary ruling | ‘(1) Must the non bis in idem principle, as guaranteed by Article 50 of the Charter, be interpreted as not precluding the competent administrative authority of a Member State from imposing a fine for infringing EU competition law, in a situation such as that of the present case, where the same legal person has already been finally acquitted of an offence for which an administrative fine had been imposed on it by the national postal regulator for an alleged infringement of postal legislation, on the basis of the same or similar facts, in so far as the criterion that the legal interest protected must be the same is not satisfied because the case at issue relates to two different infringements of different legislation applicable in two separate fields of law? (2) Must the non bis in idem principle, as guaranteed by Article 50 of the Charter, be interpreted as not precluding the competent administrative authority of a Member State from imposing a fine for infringing EU competition law, in a situation such as that of the present case, where the same legal person has already been finally acquitted of an offence for which an administrative fine had been imposed on it by the national postal regulator for an alleged infringement of postal legislation, on the basis of the same or similar facts, on the grounds that a limitation of the non bis in idem principle is justified by the fact that competition legislation pursues a complementary general interest objective, that is to say, protecting and maintaining a system of undistorted competition within the internal market, and does not go beyond what is appropriate and necessary in order to achieve the objective that such legislation legitimately pursues, and/or in order to protect the right and freedom to conduct business of those other operators under Article 16 of the Charter?’ |
Decision | Article 50 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 52(1) thereof, must be interpreted as not precluding a legal person from being fined for an infringement of EU competition law where, on the same facts, that person has already been the subject of a final decision following proceedings relating to an infringement of sectoral rules concerning the liberalisation of the relevant market, provided that there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication of proceedings and penalties, and also to predict that there will be coordination between the two competent authorities; that the two sets of proceedings have been conducted in a sufficiently coordinated manner within a proximate timeframe; and that the overall penalties imposed correspond to the seriousness of the offences committed. |
Case number | C–790/19 |
Case name | LG and MH (Autoblanchiment) |
Document | Judgment ECLI:EU:C:2021:661 |
Date | 02/09/2021 |
Source of the question referred for a preliminary ruling | Curtea de Apel Braşov Court of Appeal, Braşov, Romania) |
Name of the parties | Parchetul de pe lângă Tribunalul Braşov v LG and MH |
Subject matter | Financial services; money laundering and terrorist financing |
Key words | LG and MH – Prevention of the use of the financial system for the purposes of money laundering and terrorist financing – Offence of money laundering – Laundering by the perpetrator of the predicate offence (‘self–laundering’) |
Question referred for a preliminary ruling | ‘Must Article 1(3)(a) of Directive 2015/849 be interpreted as meaning that the person who commits the act which constitutes the offence of money laundering must always be a person other than the person who commits the predicate offence (the alleged offence from which is derived the money that is laundered)?’ |
Decision | Article 1(2)(a) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as not precluding national legislation which provides that the offence of money laundering, within the meaning of that provision, may be committed by the perpetrator of the criminal activity from which the money concerned was derived. |
Case number | C–505/19 |
Case name | Bundesrepublik Deutschland (Notice rouge d’Interpol) |
Document | Judgment ECLI:EU:C:2021:376 |
Date | 12/05/2021 |
Source of the question referred for a preliminary ruling | Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden, Germany) |
Name of the parties | WS v Bundesrepublik Deutschland |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters – Interpol arrest warrant |
Key words | WS – Charter of Fundamental Rights of the European Union – Ne bis in idem principle – Freedom of movement of persons – Interpol red notice – Lawfulness of the processing of personal data contained in such a notice |
Question referred for a preliminary ruling | ‘(1) Is Article 54 of the [CISA] in conjunction with Article 50 of the [Charter] to be interpreted as meaning that even the initiation of criminal proceedings for the same act is prohibited in all the [Contracting States] where a German public prosecutor’s office discontinues initiated criminal proceedings once the accused has fulfilled certain obligations and, in particular, paid a certain sum of money determined by the public prosecutor’s office? (2) Does Article 21(1) [TFEU] result in a prohibition on the Member States implementing arrest requests by third States in the scope of an international organisation such as [Interpol] if the person concerned by the arrest request is a Union citizen and the Member State of which he is a national has communicated concerns regarding the compatibility of the arrest request with the prohibition of double jeopardy to the international organisation and therefore also to the remaining Member States? (3) Does Article 21(1) TFEU preclude even the initiation of criminal proceedings and temporary detention in the Member States of which the person concerned is not a national where this is contrary to the prohibition of double jeopardy? (4) Are Article 4(1)(a) and Article 8(1) of Directive (EU) 2016/680 in conjunction with Article 54 of the CISA and Article 50 of the Charter to be interpreted as meaning that the Member States are obliged to introduce legislation ensuring that, in the event of proceedings whereby further prosecution is barred in all the [Contracting States], further processing of red notices of [Interpol] intended to lead to further criminal proceedings is prohibited? (5) Does an international organisation such as [Interpol] have an adequate data protection level where there is no adequacy decision under Article 36 of Directive (EU) 2016/680 and/or there are no appropriate safeguards under Article 37 of Directive (EU) 2016/680? (6) Are the Member States only allowed to further process data filed at [Interpol] in a red notice by third States when a third State has used the red notice to disseminate an arrest and extradition request and apply for an arrest which is not in breach of European law, in particular the prohibition of double jeopardy?’ |
Decision | 1. 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 which entered into force on 26 March 1995, and Article 21(1) TFEU, read in the light of Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the provisional arrest, by the authorities of a State that is a party to the Agreement 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 14 June 1985, or by those of a Member State, of a person in respect of whom the International Criminal Police Organisation (Interpol) has published a red notice, at the request of a third State, unless it is established, in a final judicial decision taken in a State that is a party to that agreement or in a Member State, that the trial of that person in respect of the same acts as those on which that red notice is based has already been finally disposed of by a State that is a party to that agreement or by a Member State respectively. 2. The provisions of Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, read in the light of Article 54 of the Convention implementing the Schengen Agreement, signed on 19 June 1990, and of Article 50 of the Charter of Fundamental Rights, must be interpreted as not precluding the processing of personal data appearing in a red notice issued by the International Criminal Police Organisation (Interpol) in the case where it has not been established in a final judicial decision taken in a State that is a party to the Agreement 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 14 June 1985, or in a Member State that the ne bis in idem principle applies in respect of the acts on which that notice is based, provided that such processing satisfies the conditions laid down by that directive, in particular in that it is necessary for the performance of a task carried out by a competent authority, within the meaning of Article 8(1) of that directive. 3. The fifth question referred for a preliminary ruling is inadmissible. |
Case number | C–617/17 |
Case name | Powszechny Zakład Ubezpieczeń na Życie |
Document | Judgment ECLI:EU:C:2019:283 |
Date | 03/04/2019 |
Source of the question referred for a preliminary ruling | Sąd Najwyższy (Supreme Court, Poland) |
Name of the parties | Powszechny Zakład Ubezpieczeń na Życie S.A. v Prezes Urzędu Ochrony Konkurencji i Konsumentów |
Subject matter | Competition; dominant position; restrictive agreements; abuse of dominant position |
Key words | Powszechny Zakład – Competition – Abuse of a dominant position – Application of national competition law – Decision of a national competition authority to impose one fine on the basis of national law and another on the basis of EU law – Charter of Fundamental Rights of the European Union – Principle of ne bis in idem |
Question referred for a preliminary ruling | ‘(1) Can Article 50 of the [Charter] be interpreted as meaning that the application of the ne bis in idem principle presupposes not only that the offender and the facts are the same but also that the legal interest protected is the same? (2) Is Article 3 of Regulation [No 1/2003], read in conjunction with Article 50 of the [Charter], to be interpreted as meaning that the rules of EU competition law and of national competition law which are applied in parallel by the competition authority of a Member State protect the same legal interest?’ |
Decision | The principle of ne bis in idem enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000, must be interpreted as not precluding a national competition authority from fining an undertaking in a single decision for an infringement of national competition law and for an infringement of Article 82 EC. In such a situation, the national competition authority must nevertheless ensure that the fines are proportionate to the nature of the infringement. |
Case number | C–234/17 |
Case name | XC and Others |
Document | Judgment ECLI:EU:C:2018:853 |
Date | 24/10/2018 |
Source of the question referred for a preliminary ruling | Oberster Gerichtshof (Supreme Court, Austria) |
Name of the parties | XC and Others, intervener:Generalprokuratur, |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; restoration of criminal proceedings |
Key words | XC – Principles of EU law – Sincere cooperation – Procedural autonomy – Principles of equivalence and effectiveness – National legislation laying down a remedy allowing criminal proceedings to be reheard in the event of infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms – No obligation to extend that procedure to cases of alleged infringement of the fundamental rights enshrined in EU law |
Question referred for a preliminary ruling | ‘Is EU law, in particular Article 4(3) TEU in conjunction with the principles of equivalence and effectiveness inferred from it, to be interpreted as requiring the Oberster Gerichtshof (Supreme Court), upon application by the person concerned, to review a final decision delivered by a criminal court with respect to an alleged infringement of EU law (in this case, Article 50 of the [Charter] and Article 54 of the [CISA]), where national law (Paragraph 363a of the Code of Criminal Procedure) provides for such a review only with respect to an alleged violation of the ECHR or one of the protocols thereto?’ |
Decision | EU law, in particular the principles of equivalence and effectiveness, must be interpreted as meaning that a national court is not required to extend to infringements of EU law, in particular to infringements of the fundamental right guaranteed by Article 50 of the Charter of Fundamental Rights of the European Union and 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 at Schengen (Luxembourg) on 19 June 1990 and which entered into force on 26 March 1995, a remedy under national law permitting, only in the event of infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, or one of the protocols thereto, the rehearing of criminal proceedings closed by a national decision having the force of res judicata. |
Case number | C–596/16 |
Case name | Di Puma |
Document | Judgment ECLI:EU:C:2018:192 |
Date | 20/03/2018 |
Source of the question referred for a preliminary ruling | Corte suprema di cassazione (Court of Cassation, Italy) |
Name of the parties | Enzo Di Puma v Commissione Nazionale per le Società e la Borsa (Consob) and Commissione Nazionale per le Società e la Borsa (Consob) v Antoniu Zecci |
Subject matter | Financial services; administrative and criminal sanctions for market abuse |
Key words | Di Puma – Insider dealing – Penalties – National legislation which provides for an administrative penalty and a criminal penalty for the same acts – Res judicata attached to a final criminal judgment relating to administrative proceedings – Final criminal judgment ordering acquittal in respect of insider dealing – Effectiveness of the penalties – Charter of Fundamental Rights of the European Union – Ne bis in idem principle – Criminal nature of the administrative sanction – Existence of the same offence – Limitations to the ne bis in idem principle – Conditions |
Question referred for a preliminary ruling | ‘(1) Is Article 50 of the Charter … to be interpreted as meaning that, where a court has delivered a final judgment finding a defendant not to have committed the criminal offence alleged, it precludes the initiation or prosecution of further proceedings based on the same facts with a view to the imposition of penalties which, on account of their nature and severity, may be regarded as criminal penalties, without it being necessary for the national court to make any further assessment? (2) In assessing the effectiveness, proportionality and dissuasiveness of penalties, in the context of determining whether there has been a breach of the ne bis in idem principle referred to in Article 50 of the Charter …, must a national court take into account the thresholds for sanctions laid down in Directive 2015/57?’ |
Decision | Article 14(1) of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse), read in the light of Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation in accordance with which proceedings for an administrative fine of a criminal nature may not be brought following a final criminal judgment of acquittal ruling that the acts capable of constituting a violation of the legislation relating to insider dealing, on the basis of which those proceedings had also been initiated, were not established. |
Case number | C–537/16 |
Case name | Garlsson Real Estate and Others |
Document | Judgment ECLI:EU:C:2018:193 |
Date | 20/03/2018 |
Source of the question referred for a preliminary ruling | Corte suprema di cassazione (Court of Cassation, Italy) |
Name of the parties | Garlsson Real Estate SA and Others v Commissione Nazionale per le Società e la Borsa (Consob) |
Subject matter | Financial provisions; administrative and criminal sanctions for market manipulation |
Key words | Garlsson Real Estate – Market manipulation – Penalties – National legislation which provides for an administrative penalty and a criminal penalty for the same acts – Charter of Fundamental Rights of the European Union – Ne bis in idem principle – Criminal nature of the administrative penalties – Existence of the same offence– Limitations to the ne bis in idem principle – Conditions |
Question referred for a preliminary ruling | ‘(1) Does Article 50 of the Charter of Fundamental Rights of the European Union, interpreted in the light of Article 4 of Protocol No 7 to the ECHR, the relevant case–law of the European Court of Human Rights and national legislation, preclude the possibility of conducting administrative proceedings in respect of an act (unlawful conduct consisting in market manipulation) for which the same person has been convicted by a decision that has the force of res judicata? (2) May the national court directly apply EU principles in connection with the ne bis in idem principle, on the basis of Article 50 of the Charter, interpreted in the light of Article 4 of Protocol No 7 to the ECHR, the relevant case–law of the European Court of Human Rights and national legislation?’ |
Decision | ‘(1) Does Article 50 of the Charter of Fundamental Rights of the European Union, interpreted in the light of Article 4 of Protocol No 7 to the ECHR, the relevant case–law of the European Court of Human Rights and national legislation, preclude the possibility of conducting administrative proceedings in respect of an act (unlawful conduct consisting in market manipulation) for which the same person has been convicted by a decision that has the force of res judicata? (2) May the national court directly apply EU principles in connection with the ne bis in idem principle, on the basis of Article 50 of the Charter, interpreted in the light of Article 4 of Protocol No 7 to the ECHR, the relevant case–law of the European Court of Human Rights and national legislation?’ |
Case number | C–524/15 |
Case name | Menci |
Document | Judgment ECLI:EU:C:2018:197 |
Date | 20/03/2018 |
Source of the question referred for a preliminary ruling | Tribunale di Bergamo (District Court, Bergamo, Italy) |
Name of the parties | Criminal proceedings against Luca Menci |
Subject matter | Financial provisions; value added tax; administrative and criminal sanctions |
Key words | Menci –Value added tax (VAT) – Failure to pay VAT due – Penalties – National legislation which provides for an administrative penalty and a criminal penalty for the same acts – Charter of Fundamental Rights of the European Union – Ne bis in idem principle – Criminal nature of the administrative penalty – Existence of the same offence – Limitations to the ne bis in idem principle |
Question referred for a preliminary ruling | ‘Does Article 50 of the Charter …, interpreted in the light of Article 4 of Protocol No 7 to the [ECHR] and the related case–law of the European Court of Human Rights, preclude the possibility of conducting criminal proceedings concerning an act (non–payment of VAT) for which a final administrative penalty has been imposed on the defendant?’ |
Decision | 1. Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation in accordance with which criminal proceedings may be brought against a person for failing to pay value added tax due within the time limits stipulated by law, although that person has already been made subject, in relation to the same acts, to a final administrative penalty of criminal nature for the purposes of Article 50 of the Charter, on condition that that legislation
– pursues an objective of general interest which is such as to justify such a duplication of proceedings and penalties, namely combating value added tax offences, it being necessary for those proceedings and penalties to pursue additional objectives,
– contains rules ensuring coordination which limits to what is strictly necessary the additional disadvantage which results, for the persons concerned, from a duplication of proceedings, and
– provides for rules making it possible to ensure that the severity of all of the penalties imposed is limited to what is strictly necessary in relation to the seriousness of the offence concerned.
2. It is for the national court to ensure, taking into account all of the circumstances in the main proceedings, that the actual disadvantage resulting for the person concerned from the application of the national legislation at issue in the main proceedings and from the duplication of the proceedings and penalties that that legislation authorises is not excessive in relation to the seriousness of the offence committed. |
Case number | C–217/15 |
Case name | Orsi |
Document | Judgment ECLI:EU:C:2017:264 |
Date | 05/04/2017 |
Source of the question referred for a preliminary ruling | Tribunale di Santa Maria Capua Vetere (District Court, Santa Maria Capua Vetere, Italy) |
Name of the parties | Criminal proceedings against Massimo Orsi (C‑217/15), Luciano Baldetti (C‑350/15), |
Subject matter | Tax assessment; value added tax; administrative and criminal sanctions for non–payment |
Key words | Orsi – Taxation – Value added tax – National legislation providing for an administrative penalty and a criminal penalty for the same offences, relating to the non–payment of value added tax – Charter of Fundamental Rights of the European Union – Ne bis in idem principle – Identity of the accused or penalised person – Absence |
Question referred for a preliminary ruling | ‘On a proper construction of Article 4 of Protocol No 7 to the ECHR and Article 50 of the Charter, is the provision made under Article 10b of Legislative Decree No 74/2000 consistent with EU law, in so far as it permits the criminal liability of a person to whom a final assessment by the tax authorities of the State has already been issued imposing an administrative penalty … to be assessed in respect of the same act or omission (non–payment of VAT)?’ |
Decision | Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which permits criminal proceedings to be brought for non–payment of value added tax, after the imposition of a definitive tax penalty with respect to the same act or omission, where that penalty was imposed on a company with legal personality, while those criminal proceedings were brought against a natural person. |
Case number | C–486/14 |
Case name | Kossowski |
Document | Judgment ECLI:EU:C:2016:483 |
Date | 29/06/2016 |
Source of the question referred for a preliminary ruling | Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) |
Name of the parties | Criminal proceedings against Piotr Kossowski, |
Subject matter | Area of freedom, security and justice; judicial cooperation in criminal matters; law enforcement; blackmail |
Key words | Kossowski – Charter of Fundamental Rights of the European Union – Ne bis in idem principle – Whether an accused may be prosecuted in a Member State after criminal proceedings brought against him in another Member State have been terminated by the public prosecutor’s office without a detailed investigation – No examination of the merits of the case |
Question referred for a preliminary ruling | ‘(1) Do the reservations declared at the time of ratification by the contracting parties to the CISA pursuant to Article 55(1)(a) of the CISA – specifically, the reservation [relating to Article 54 of the CISA] – continue in force following the integration of the Schengen acquis into the legal framework of the European Union by [Protocol (No 2) integrating the Schengen acquis into the framework of the European Union], as preserved by [Protocol (No 19) to the Schengen acquis integrated into the framework of the European Union]? Are these exceptions proportionate limitations on Article 50 of the Charter, within the meaning of Article 52(1) of the Charter? (2) If that is not the case, are the prohibitions on double punishment and double prosecution laid down by Article 54 of the CISA and Article 50 of the Charter to be interpreted as prohibiting prosecution of an accused person in one Member State – in the present case, Germany – where his prosecution in another Member State – in the present case, Poland – has been discontinued by the public prosecutor’s office, without any obligations imposed by way of penalty having been fulfilled and without any detailed investigation, for factual reasons in the absence of sufficient evidence for a probable conviction, and can be reopened only if essential circumstances previously unknown come to light, where such new circumstances have not in fact emerged?’ |
Decision | The principle of ne bis in idem laid down in 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, which was signed in Schengen (Luxembourg) on 19 June 1990, read in the light of Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a decision of the public prosecutor terminating criminal proceedings and finally closing the investigation procedure against a person, albeit with the possibility of its being reopened or annulled, without any penalties having been imposed, cannot be characterised as a final decision for the purposes of those articles when it is clear from the statement of reasons for that decision that the procedure was closed without a detailed investigation having been carried out; in that regard, the fact that neither the victim nor a potential witness was interviewed is an indication that no such investigation took place. |
Case number | C–129/14 PPU |
Case name | Spasic |
Document | Judgment ECLI:EU:C:2014:586 |
Date | 27/05/2014 |
Source of the question referred for a preliminary ruling | Oberlandesgericht Nürnberg (Germany) |
Name of the parties | Zoran Spasic |
Subject matter | Area of freedom, security and justice; police and judicial cooperation in criminal matters; fraud |
Key words | Spasic – Police and judicial cooperation in criminal matters – Charter of Fundamental Rights of the European Union – Ne bis in idem principle – Convention Implementing the Schengen Agreement – Penalty which ‘has been enforced’ or which is ‘actually in the process of being enforced’ |
Question referred for a preliminary ruling | ‘1. Is Article 54 [CISA] compatible with Article 50 of the [Charter], in so far as it subjects the application of the ne bis in idem principle to the condition 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 State? 2. Is the abovementioned condition, laid down in Article 54 [CISA], also satisfied if only one part (here: a fine) of two independent parts of the outstanding penalty imposed in the sentencing State (here: a custodial sentence and a fine) has been enforced?’ |
Decision | 1. 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 on 19 June 1990 and entered into force on 26 March 1995, which makes the application of the ne bis in idem principle subject to the condition that, upon conviction and sentencing, the penalty imposed ‘has been enforced’ or is ‘actually in the process of being enforced’, is compatible with Article 50 of the Charter of Fundamental Rights of the European Union, in which that principle is enshrined. 2. Article 54 of that convention must be interpreted as meaning that the mere payment of a fine by a person sentenced by the self–same decision of a court of another Member State to a custodial sentence that has not been served is not sufficient to consider that the penalty ‘has been enforced’ or is ‘actually in the process of being enforced’ within the meaning of that provision. |
Case number | C–617/10 |
Case name | Åkerberg Fransson |
Document | Judgment ECLI:EU:C:2013:105 |
Date | 26/02/2013 |
Source of the question referred for a preliminary ruling | Haparanda tingsrätt (Sweden) |
Name of the parties | Åklagaren v Hans Åkerberg Fransson |
Subject matter | Financial provisions; taxation; qualified tax evasion |
Key words | Hans Åkerberg Fransson – Charter of Fundamental Rights of the European Union – Implementation of European Union law – Punishment of conduct prejudicial to own resources of the European Union – Ne bis in idem principle – National system involving two separate sets of proceedings, administrative and criminal, to punish the same wrongful conduct – Compatibility |
Question referred for a preliminary ruling | ‘1. Under Swedish law there must be clear support in the [ECHR] or the case–law of the European Court of Human Rights for a national court to be able to disapply national provisions which may be suspected of infringing the ne bis in idem principle under Article 4 of Protocol No 7 to the ECHR and may also therefore be suspected of infringing Article 50 of the [Charter]. Is such a condition under national law for disapplying national provisions compatible with European Union law and in particular its general principles, including the primacy and direct effect of European Union law? 2. Does the admissibility of a charge of tax offences come under the ne bis in idem principle under Article 4 of Protocol No 7 to the ECHR and Article 50 of the Charter where a certain financial penalty (tax surcharge) was previously imposed on the defendant in administrative proceedings by reason of the same act of providing false information? 3. Is the answer to Question 2 affected by the fact that there must be coordination of these sanctions in such a way that ordinary courts are able to reduce the penalty in the criminal proceedings because a tax surcharge has also been imposed on the defendant by reason of the same act of providing false information? 4. Under certain circumstances it may be permitted, within the scope of the ne bis in idem principle …, to order further sanctions in fresh proceedings in respect of the same conduct which was examined and led to a decision to impose sanctions on the individual. If Question 2 is answered in the affirmative, are the conditions under the ne bis in idem principle for the imposition of several sanctions in separate proceedings satisfied where in the later proceedings there is an examination of the circumstances of the case which is fresh and independent of the earlier proceedings? 5. The Swedish system of imposing tax surcharges and examining liability for tax offences in separate proceedings is motivated by a number of reasons of general interest … If Question 2 is answered in the affirmative, is a system like the Swedish one compatible with the ne bis in idem principle when it would be possible to establish a system which would not come under the ne bis in idem principle without it being necessary to refrain from either imposing tax surcharges or ruling on liability for tax offences by, if liability for tax offences is relevant, transferring the decision on the imposition of tax surcharges from the Skatteverket and, where appropriate, administrative courts to ordinary courts in connection with their examination of the charge of tax offences?’ |
Decision | 1. The ne bis in idem principle laid down in Article 50 of the Charter of Fundamental Rights of the European Union does not preclude a Member State from imposing successively, for the same acts of non‑compliance with declaration obligations in the field of value added tax, a tax penalty and a criminal penalty in so far as the first penalty is not criminal in nature, a matter which is for the national court to determine. 2. European Union law does not govern the relations between the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law. European Union law precludes a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter of Fundamental Rights of the European Union conditional upon that infringement being clear from the text of the Charter or the case–law relating to it, since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice of the European Union, whether that provision is compatible with the Charter. |
Funded by the European Union. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union or the Directorate General Justice and Consumers (DG JUST). Neither the European Union nor DG JUST can be held responsible for them.
