(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2010/64/EU – Article 5 – Quality of the interpretation and translation – Directive 2012/13/EU – Right to information in criminal proceedings – Article 4(5) and Article 6(1) – Right to information about the accusation – Right to interpretation and translation – Directive 2016/343/EU – Right to an effective remedy and to a fair trial – Article 48(2) of the Charter of Fundamental Rights of the European Union – Article 267 TFEU – Second subparagraph of Article 19(1) TEU – 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 unlawful)
SOURCE: Court of Justice of the European Union, Press Release, No 207/21, 23 November '21
A judge of the Pesti Központi Kerületi Bíróság (Central District Court, Pest, Hungary) (‘the referring judge’) is seised of criminal proceedings brought against a Swedish national. At the first interview with the investigative authority, the accused, who does not speak Hungarian and was assisted by a Swedish-language interpreter, was informed of the suspicions against him. However, there is no information as to how the interpreter was selected, how that interpreter’s competence was verified, or whether the interpreter and the accused understood each other. Indeed, Hungary does not have an official register of translators and interpreters and Hungarian law does not specify who may be appointed in criminal proceedings as a translator or interpreter, nor according to what criteria. Consequently, according to the referring judge, neither the lawyer nor the court is in a position to verify the quality of the interpretation. In those circumstances, he considers that the accused’s right to be informed of his rights could be infringed, as well as his rights of defence.
Accordingly, the referring judge decided to ask the Court of Justice whether Hungarian law was compatible with Directive 2010/64 , on the right to interpretation and translation in criminal proceedings, and Directive 2012/13, on the right to information in such proceedings. In the event of incompatibility, he also asks whether the criminal proceedings may be continued in the absence of the accused, as such proceedings are provided for under Hungarian law, in certain cases, where the accused is not present at the hearing.
Following that initial reference to the Court, the Kúria (Supreme Court, Hungary) ruled on an appeal in the interests of the law brought by the Hungarian Prosecutor General against the order for reference and held that order to be unlawful, without, however, altering its legal effects, on the ground, in essence, that the questions referred were not relevant and necessary for the resolution of the dispute concerned. On the same grounds as those underlying the decision of the Kúria (Supreme Court), disciplinary proceedings, which have in the meantime been discontinued, were brought against the referring judge. Since he was uncertain as to whether such proceedings and the decision of the Kúria (Supreme Court) are compatible with EU law and as to the impact of that decision on the action to be taken upon the criminal proceedings before him, the referring judge made a supplementary request for a preliminary ruling in that regard.
Findings of the Court
First of all, the Court, sitting as the Grand Chamber, holds that the system of cooperation between the national courts and the Court of Justice, established by Article 267 TFEU, precludes a national supreme court from declaring, following an appeal in the interests of the law, that a request for a preliminary ruling submitted by a lower court is unlawful, without, however, altering the legal effects of the order for reference, on the ground that the questions referred are not relevant and necessary for the resolution of the dispute in the main proceedings. Such a review of legality is similar to the review carried out in order to determine whether a request for a preliminary ruling is admissible. for which the Court of Justice has exclusive jurisdiction. Furthermore, such a finding of illegality is liable, first, to weaken the authority of the answers that the Court will provide and, secondly, to limit the exercise of the national courts’ jurisdiction to make a reference to the Court for a preliminary ruling and, consequently, is liable to restrict the effective judicial protection of the rights which individuals derive from EU law.
In such circumstances, the principle of the primacy of EU law requires the lower court to disregard the decision of the supreme court of the Member State concerned. That conclusion is in no way undermined by the fact that, subsequently, the Court may find that the questions referred for a preliminary ruling by that lower court are inadmissible.
In the second place, the Court holds that EU law precludes 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, since the mere prospect of being the subject of such proceedings can undermine the mechanism provided for in Article 267 TFEU and judicial independence, which independence is essential to the proper working of that mechanism. Moreover, such proceedings are liable to deter all national courts from making references for a preliminary ruling, which could jeopardise the uniform application of EU law.
Lastly, in the third place, the Court examines the obligations of the Member States under Directive 2010/64 with regard to interpretation and translation in criminal proceedings. In that regard, the Member States must take specific measures ensuring, first, that the quality of the interpretation and translations is sufficient to enable the suspect or accused person to understand the accusation against him or her. The creation of a register of independent translators or interpreters is, in that regard, one of the means of pursuing that objective. Secondly, the measures adopted by the Member States must enable the national courts to ascertain that the interpretation was of sufficient quality, so that the fairness of the proceedings and the exercise of the rights of the defence are safeguarded.
Following that verification, a national court may conclude that, either because the interpretation provided was inadequate or it is impossible to ascertain its quality, a person has not been informed, in a language which he or she understands, of the accusation against him or her. In such circumstances, Directives 2010/64 and 2012/13, read in the light of the rights of the defence, within the meaning of Article 48(2) of the Charter of Fundamental Rights of the European Union, preclude the criminal proceedings from being continued in absentia.
SOURCE: Monthly Case-law Digest - September 2021
Reference for a preliminary ruling – Company law – Takeover bids – Directive 2004/25/EC – Article 5 – Mandatory bid – Article 4 – Supervisory authority – Final decision making a finding of infringement of the obligation to make a takeover bid – Binding effect of that decision in subsequent proceedings for an administrative sanction initiated by the same authority – EU law principle of effectiveness – General principles of EU law – Rights of the defence – Charter of Fundamental Rights of the European Union – Articles 47 and 48 – Right to silence – Presumption of innocence – Access to an independent and impartial tribunal
By decision of 22 November 2016, the Übernahmekommission (Takeover Commission, Austria; ‘the Takeover Commission’) determined that GM, a natural person, and four companies had acted in concert so as to incite another company to enter into a transaction that led to a significant increase in the holding of its principal shareholder. On the basis that the parties in question held a controlling interest, within the meaning of the Austrian legislation transposing Directive 2004/25, in the company concerned, the Takeover Commission held that they should have made a takeover bid. After that decision had become final, the Takeover Commission initiated proceedings for the imposition of administrative sanctions against GM and two other natural persons, HL and FN, the latter two in their respective capacities as board member and director of two of the companies to which the decision of 22 November 2016 related. By decisions of 29 January 2018, the Takeover Commission imposed administrative sanctions on GM, HL and FN on the basis, amongst other things, of the findings of fact set out in the decision of 22 November 2016.
The Bundesverwaltungsgericht (Federal Administrative Court, Austria), before which actions against the decisions of 29 January 2018 have been brought, is in doubt as to the compatibility with EU law of the national administrative practice followed by the Takeover Commission. Under Austrian law, a decision making a finding of infringement, such as the decision of 22 November 2016, once final, is binding not only on the authority which made it, but also on other administrative and judicial authorities which may have cause to rule, in other proceedings, on the same factual and legal situation, provided that the parties concerned are the same. As regards HL and FN, the Federal Administrative Court doubts that this condition is met, given that they were not ‘parties’ to the proceedings in which the finding of infringement was made, but simply acted as representatives of two of the companies which were parties to those proceedings. Nevertheless, it states, in the proceedings for an administrative sanction the Takeover Commission treated the decision of 22 November 2016 as having binding effect as regards HL and FN. As HL and FN were not ‘parties’ to the proceedings for a finding of infringement, they did not have the benefit of all the procedural rights of a ‘party’, including the right to silence. By its questions, the Federal Administrative Court asks, essentially, whether Articles 4 and 17 of Directive 2004/25, read in the light of the rights of the defence guaranteed by EU law, in particular the right to be heard, and of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, preclude a national practice such as that followed in the present case by the Takeover Commission.
Findings of the Court
As Directive 2004/25 does not lay down rules governing the effect that final administrative decisions adopted pursuant to that directive are to have in subsequent proceedings, the rules at issue in the main proceedings are within the procedural autonomy of the Member States, subject to compliance with the principles of equivalence and effectiveness. Thus, Directive 2004/25 does not, in principle, prevent the Member States from establishing an administrative procedure divided into two separate stages, as in the present case, or a practice under which binding effect is given, in subsequent proceedings, to administrative decisions which have become final. Indeed, such a practice may help to ensure the efficiency of administrative proceedings for a finding of failure to comply with the rules of Directive 2004/25, and for the imposition of a sanction in respect of such a failure, and thus to ensure the useful effect of that directive. However, the rights of the parties as guaranteed by EU law, and in particular by the Charter of Fundamental Rights, must be respected at both of those procedural stages.
As regards persons who, like GM, were parties to the proceedings which led to the adoption of a decision making a finding of infringement, it is permissible for the Member States to give binding effect to such a decision in subsequent proceedings for the imposition of an administrative sanction on those persons in respect of that infringement, provided that they were able to exercise their fundamental rights, such as the rights of the defence, the right to silence and the presumption of innocence, in the proceedings for a finding of infringement.
In contrast, having regard to the subjective nature of the rights of the defence, the same does not apply to persons who, like HL and FN, were not parties to the proceedings for a finding of infringement, even if those persons acted as members of a representative organ of a legal person which was a party to those proceedings. Accordingly, in proceedings for the imposition of an administrative sanction on a natural person, the administrative authority must disregard the binding effect which attaches to the assessments made in a decision the infringement of which that person is accused and which has become final, without the person concerned having had the opportunity to challenge those assessments, in his or her personal capacity, in the exercise of his or her own rights of the defence. Similarly, the right to silence precludes a situation in which such a person is deprived of that right in relation to factual matters which are subsequently to be used in support of the allegation and will therefore have an impact on the sentence or the sanction imposed. Furthermore, the presumption of innocence precludes a situation in which a natural person is held liable, in proceedings for an administrative sanction, for an infringement found to have been committed in a decision which has become final without that person having had the opportunity to challenge it, and which can no longer be challenged by that person, in the exercise of his or her right to an effective remedy, before an independent and impartial tribunal with jurisdiction to rule on issues of both law and fact. The benefit of the right to an effective judicial remedy must be available to all parties to the proceedings for an administrative sanction, whether or not they were parties to the earlier proceedings for a finding of infringement.
*The judgment is available on this portal only in French
SOURCE: Monthly Case-law Digest - February 2021
Reference for a preliminary ruling – Approximation of laws – Directive 2003/6/EC – Article 14(3) – Regulation (EU) No 596/2014 – Article 30(1)(b) – 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
On 2 May 2012, the Commissione Nazionale per le Società e la Borsa (Consob) (National Companies and Stock Exchange Commission, Italy) imposed on DB penalties totalling EUR 300 000 for an administrative offence of insider dealing committed in 2009. It also imposed on him a penalty of EUR 50 000 for failure to cooperate. DB, after applying on several occasions for postponement of the date of the hearing to which he had been summoned in his capacity as a person aware of the facts, had declined to answer the questions put to him when he appeared at that hearing.
Following the dismissal of his appeal against those penalties, DB brought an appeal on a point of law before the Corte suprema di cassazione (Supreme Court of Cassation, Italy). On 16 February 2018, that court referred an interlocutory question of constitutionality to the Corte costituzionale (Constitutional Court, Italy) concerning the provision of Italian law on the basis of which the penalty for failure to cooperate was imposed. That provision penalises anyone who fails to comply with Consob’s requests in a timely manner or delays the performance of that body’s supervisory functions, including with regard to the person in respect of whom Consob alleges an offence of insider dealing. The Corte costituzionale (Constitutional Court) pointed out that, under Italian law, insider dealing constitutes both an administrative offence and a criminal offence. It then noted that the provision concerned was adopted in performance of a specific obligation under Directive 2003/6 and now implements a provision of Regulation No 596/2014. Next, it asked the Court whether those measures are compatible with the Charter of Fundamental Rights of the European Union (‘the Charter’) and, in particular, the right to remain silent.
The Court, sitting as the Grand Chamber, recognises the existence, for natural persons, of a right to silence, protected by the Charter, and holds that Directive 2003/6 and Regulation No 596/2014 allow Member States to respect that right in an investigation carried out in respect of such persons and capable of establishing their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability.
Findings of the Court
In the light of the case-law of the European Court of Human Rights on the right to a fair trial, the Court emphasises that the right to silence, which lies at the heart of the notion of a ‘fair trial’, precludes, inter alia, penalties being imposed on natural persons who are ‘charged’ for refusing to provide the competent authority, under Directive 2003/6 or Regulation No 596/2014, with answers which might establish their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability.
The Court states, in that regard, that the case-law relating to the obligation on undertakings to provide, in proceedings that may lead to the imposition of penalties for anticompetitive conduct, information which may subsequently be used to establish their liability for such conduct cannot apply by analogy to establish the scope of the right to silence of natural persons charged with insider dealing. The Court adds that the right to silence cannot, however, justify every failure to cooperate on the part of the person concerned with the competent authorities, such as refusing to appear at a hearing planned by those authorities or using delaying tactics designed to postpone it. Finally, the Court notes that both Directive 2003/6 and Regulation No 596/2014 lend themselves to an interpretation which is consistent with the right to silence, in that they do not require penalties to be imposed on natural persons for refusing to provide the competent authority with answers which might establish their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability. In those circumstances, the absence of an express prohibition against the imposition of a penalty for such a refusal cannot undermine the validity of those measures. It is for the Member States to ensure that natural persons cannot be penalised for refusing to provide such answers to the competent authority.
SOURCE: Monthly Case-law Digest – April 2021
Reference for a preliminary ruling – Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43/EC – Article 7 – Protection of rights – Article 15 – Sanctions – Action for compensation based on an allegation of discrimination – Defendant acquiescing to a claim for compensation without recognition on its part of the discrimination alleged – Connection between the compensation paid and the discrimination alleged – Article 47 of the 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
In 2015, the captain on board an internal Swedish flight operated by the airline Braathens Regional Aviation AB (‘Braathens’) decided to subject a passenger of Chilean origin resident in Stockholm (Sweden) to an additional security check. Acting on behalf of the passenger, who considered that he had been the subject of discrimination for reasons connected with his physical appearance and ethnicity, the Diskrimineringsombudsmannen (Equality Ombudsman) asked the Stockholms tingsrätt (District Court, Stockholm, Sweden) to order Braathens to pay that passenger compensation for discrimination. Braathens agreed to pay the sum claimed without however recognising the existence of any discrimination.
The first instance court therefore ordered the payment of that sum but declared inadmissible the Equality Ombudsman’s claims seeking a declaratory judgment making a finding of the existence of discrimination. That court considered that, under Swedish procedural law, it was bound by Braathens’ acquiescence and was thus required to dispose of the litigation without examining whether there had been any discrimination. After having unsuccessfully appealed against the judgment of the first instance court, the Equality Ombudsman brought an appeal before the referring court, the Högsta domstolen (Supreme Court, Sweden).
Having doubts as to whether the Swedish legislation complies with the requirements of Directive 2000/43 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 (‘the Charter’), which guarantees every person the right to an effective judicial remedy, the Supreme Court decided to refer a question to the Court of Justice as to whether, where a defendant acquiesces to a claimant’s claim for compensation, the court seised must nevertheless be able to examine the question of the existence of discrimination upon the request of the party who considers that he or she was subject to it.
Findings of the Court
At the outset, the Court recalls that the purpose of Directive 2000/43 is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment. Compliance with that principle requires the effective judicial protection of the right to equal treatment of persons who consider themselves victims of such discrimination, whether those persons act directly or through the intermediary of an association, organisation or other legal entity. In addition, the sanctions put in place in order to transpose that directive into the national legal order of a Member State must ensure real and effective judicial protection of the rights that are derived from it. The severity of the sanctions must be commensurate to the seriousness of the breaches for which they are imposed, in particular by ensuring a genuinely dissuasive effect, while complying with the general principle of proportionality.
In that regard, the Court holds that Articles 7 and 15 of Directive 2000/43, read in the light of Article 47 of the Charter, precludes 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.
In the first place, it follows from Article 7 of Directive 2000/43 that any person who considers himself or herself to have been the victim of discrimination based on racial or ethnic origin must be able, in the context of proceedings to assert rights derived from the principle of equal treatment, to obtain a ruling from the court on the possible breach of those rights, if the defendant does not recognise the discrimination alleged. Therefore, the payment of the monetary amount alone is not capable of ensuring effective judicial protection for a person who seeks to obtain a ruling of the existence of such a breach. In the second place, such a national law is contrary to both the compensatory function and the dissuasive function required of the sanctions laid down by the Member States in accordance with Article 15 of Directive 2000/43.
The payment of a sum of money is insufficient to meet the claims of a person who seeks primarily to obtain recognition, by way of compensation for the non-material damage suffered, of the fact that he or she has been the victim of discrimination. Similarly, the requirement to pay a sum of money cannot ensure a truly deterrent effect as regards the author of the discrimination where, as in the present case, the defendant contests the existence of any discrimination but considers it more advantageous, in terms of cost and reputation, to pay the compensation claimed by the claimant. The Court also states that the option of bringing criminal proceedings does not make it possible, due to the specific purposes that such proceedings pursue and the constraints inherent therein, to remedy the failure of civil law remedies to comply with the requirements of that directive.
In the third place, the Court emphasises that that interpretation is not called into question by procedural law principles or considerations, such as the principle that the subject matter of an action is defined by the parties, the principle of procedural economy, and the concern to promote the amicable settlement of disputes. First, a national law such as that at issue in the main proceedings has the effect of transferring the control of the dispute to the defendant, since the claimant may no longer, where the defendant acquiesces to pay the compensation claimed, obtain from the court hearing the case a ruling on the cause on which the claim is based, nor may the claimant prevent the termination of the case brought on his or her initiative. Second, a national court would not in any way infringe the principle that the subject matter of an action is defined by the parties if, despite the defendant’s acquiescence to pay the compensation claimed by the claimant, it examined the existence or otherwise of the discrimination alleged by the latter, since that examination would consider the cause on which the claimant’s claim for compensation is based, which is the subject matter of the dispute. Finally, in the fourth place, the Court recalls that EU law does not as a general rule require Member States to create before their national courts remedies to ensure the protection of rights that parties derive from EU law other than those established by national law.
However, it observes that, in the present case, compliance with EU law does not require the creation of a new right of action, but merely that the referring court refuse to apply a procedural rule which prevents it from ruling on the existence of the discrimination alleged; and that this is so owing to the incompatibility of that rule not only with Articles 7 and 15 of Directive 2000/43 but also with Article 47 of the Charter. Those articles of the directive merely give specific expression to the right to effective judicial protection, as guaranteed by Article 47 of the Charter, which is sufficient in itself to confer on individuals a right which they may rely on as such in a dispute between private persons.