Opinion of the Advocate General — ECLI:EU:C:2021:219
Date: 2021-03-18
Language of the case: German
Subject matter: Right of establishment;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, national law puts in place a system, whereby the Takeover Commission, which (i) does not satisfy the qualities of a ‘tribunal’, renders a decision, which (ii) cannot be reviewed in full by the Supreme Court, and that, (iii) upon becoming definitive, (iv) binds not only the Takeover Commission itself in future proceedings featuring identity of parties (interpreted rather broadly by that body), cause and object, but also (v) any court ordinarily tasked with reviewing those related proceedings. 75. If that is indeed the case, such a situation is, in my view, at odds with Article 47 of the Charter and the requirement for effective judicial protection. 76. I would emphasise that that incompatibility arises for every participant in the ‘first’, preliminary procedure, because there appears to be no ‘tribunal’ with full jurisdiction, as required under the first paragraph of Article 47 of the Charter. To that initial problem, an additional one arises with regard to the specific situation of the parties that were not even participating in the first preliminary proceedings. 2. The same partiesin the subsequent proceedings 77. GM argues that, while he did participate as a ‘party’ in the preliminary proceeding, he was not informed of the fact that that proceeding could lead to the imposition of a ‘criminal’ penalty by virtue of the administrative penalty proceeding. He also notes that, during the preliminary proceeding, he was not given the right to remain silent. 78. The Takeover Commission takes the position that all of GM’s fundamental rights were respected during the preliminary and administrative penalty proceedings. 79. While it falls to the referring court to verify those circumstances, the bottom line for the purposes of protecting the fundamental rights of GM is the same as that evoked for the specific circumstances of HL and Adler. In a way, the problem arising in the first round is the same for all the parties. It is only that, in the specific context of where the parties are the same across the proceedings, the additional issue of the absence of the rights of the defence may not arise (that is, of course, subject to the proviso that those rights, which arose during the ‘first round’, could have been exercised when they became implicated). 80. Beyond that, I see no reason why, in principle, objective determinations of a previous administrative proceeding could not be relied upon in a parallel, or later, administrative proceeding arising from the same facts. (35) It is common practice that later administrative decisions take as their basis the findings, information, or even elements of evidence established in their previous decisions or even decisions of other administrative authorities. 81. However, the bottom line for all such ‘across-the-files-transfers’ is that the party concerned must remain able to fully exercise his or her rights of the defence when such rights became or would have become implicated. (36) It cannot be that such a party is suddenly faced with a ‘fait accompli’, in essence prejudging significantly his or her position without that party ever having the opportunity to state their case. 82. In so far as it appears that GM was the party in both proceedings, acting in both his own and personal capacity, the structural issues arising from the lack of identity of parties across the various proceedings do not arise. (37) Whether or not his rights of the defence were respected in the specific case in either of the two sets of proceedings is an issue for the referring court. 3. A Closing Remark 83. I find it necessary to point out that this Opinion does not question in any way the possibility for national law to extend the binding effect of administrative decisions, which have become final, across proceedings. It is, again, rather common that one decision may form the basis for another decision, or is taken into account in a different proceeding. (38) More often than not, administrative efficiency, together with equality and foreseeability of administrative action, indeed speaks to extending certain findings across proceedings. (39) 84. Whether, and how, the national legal order wishes to create binding effects of final decisions by administrative authorities is left to the procedural autonomy of the Member States. The fundamental rights protection of EU law limits that autonomy only to the extent that it is necessary to establish effective protection of those rights. (40) 85. It is also clear that the Member States are not required to establish a system of administrative decisions, in which the administrative authority itself satisfies the criteria of a ‘tribunal’ within the meaning of Article 47 of the Charter. However, as a matter of EU law, when rights derived from EU law are concerned, the (judicial) control of that administration’s decisions then shifts one step ‘upstream’ to the competent national courts. 86. Viewed in that context, all that has been suggested in this Opinion is that the specific combination of institutional and procedural choices made by the national legislature is problematic for two reasons. First, within the preliminary proceedings, there must be, at some stage, the possibility to challenge the preliminary decision before a court with ‘full jurisdiction’, should the parties wish to do so. Second, the protection of (by their nature) subjective rights does not allow for an ‘imputation by proxy’ across administrative proceedings, in which individuals find themselves in a position where their case is being partially pre-judged by findings concerning their behaviour, established in a previous proceedings to which they were not a party. V. Conclusion 87. I propose that the Court answer the questions referred for a preliminary ruling by the Bundesverwaltungsgericht (Federal Administrative Court, Austria) as follows: Articles 4 and 17 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and the rights of the defence, must be interpreted as precluding the application of national procedural rules that have as their effect the prevention of the parties concerned from fully exercising their rights of the defence in the course of a subsequent administrative penalty proceeding establishing the subjective responsibility for an infringement arising from Directive 2004/25 or which fail to provide the parties access to an effective remedy before a tribunal under the first paragraph of Article 47 of the Charter. 1 Original language: English. 2 Directive of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ 2004 L 142, p. 12). 3 Point 1 of Paragraph 22a of the ÜbG. 4 Pursuant to Paragraphs 33 and 35 of the ÜbG. 5 As the referring court noted would normally be the condition under national law – see above, point 17 of this Opinion. 6 See judgments of 22 October 2013, Sabou(C‑276/12, EU:C:2013:678, paragraph 38 and the case-law cited); of 17 December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832, paragraph 84); and of 16 October 2019, Glencore Agriculture Hungary (C‑189/18, EU:C:2019:861, paragraph 39 and the case-law cited). 7 Judgments of 19 February 2009, Kamino International Logistics (C‑376/07, EU:C:2009:105, paragraphs 42 to 43); of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 47); and of 16 October 2019, Glencore Agriculture Hungary (C‑189/18, EU:C:2019:861, paragraph 41). 8 Judgments of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraph 92 and the case-law cited); of 5 March 2015, Commission and Others v Versalis and Others (C‑93/13 and C‑123/13 P, EU:C:2015:150, paragraph 94 and the case-law cited); and of 6 October 2020, Bank Refah Kargaran v Council (C‑134/19 P, EU:C:2020:793, paragraph 56). 9 See judgments of 26 September 2013, Texdata Software (C‑418/11, EU:C:2013:588, paragraph 83 and the case-law cited), and of 17 March 2016, Bensada Benallal (C‑161/15, EU:C:2016:175, paragraph 33 and the case-law cited). 10 See, to that effect, judgments of 22 November 2012, M.(C‑277/11, EU:C:2012:744, paragraph 90); of 16 October 2019, Glencore Agriculture Hungary (C‑189/18, EU:C:2019:861, paragraphs 47 to 49); and of 2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraphs 42 and 44 and the case-law cited). 11 Judgments of 21 December 2011, France v People’s Mojahedin Organization of Iran (C‑27/09 P, EU:C:2011:853, paragraph 65 and the case-law cited); of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 47); and of 16 October 2019, Glencore Agriculture Hungary (C‑189/18, EU:C:2019:861, paragraph 41). 12 Judgment of 21 September 2010, Sweden and Others v API and Commission(C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 88 and the case-law cited). 13 Judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci (C‑205/15, EU:C:2016:499, paragraph 36 and the case-law cited). 14 Judgment of 17 July 2014, Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 49). 15 Judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 67), and of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531, paragraph 77 and the case-law cited). 16 See, to that effect, judgment of 2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraphs 42 and 43). See also ECtHR 10 December 2020, Edizioni del Roma Societa Cooperativa A.R.L. et Edizioni del Roma S.R.L. v. Italy (ECLI:CE:ECHR:2020:1210JUD006895413, § 40 and the case-law cited). 17 See, to that effect, judgments of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others (C‑336/19, EU:C:2020:1031, paragraph 56 and the case-law cited), and of 2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraph 37 and the case-law cited). 18 See, to that effect, judgment of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204, paragraphs 43 to 46). See also ECtHR 10 December 2020, Edizioni del Roma Societa Cooperativa A.R.L. et Edizioni del Roma S.R.L. v. Italy (ECLI:CE:ECHR:2020:1210JUD006895413, § 90 and the case-law cited). 19 Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses(C‑64/16, EU:C:2018:117, paragraph 38 and the case-law cited). See also, as regards the ‘internal’ aspect of independence, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)(C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 122). 20 Judgments of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 49), and of 16 May 2017, Berlioz Investment Fund(C‑682/15, EU:C:2017:373, paragraphs 54 to 56 and the case-law cited). 21 See, to that effect, judgment of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraphs 61). See also ECtHR 18 January 2000, Pesti et Frodl v. Autriche (ECLI:CE:ECHR:2000:0118DEC002761895, § 4 and the case-law cited), and of 22 November 1985, Bryan v. the United Kingdom (ECLI:CE:ECHR:1995:1122JUD001917891, § 47). 22 See, to that effect, judgment of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraphs 61 and 62). See also, ECtHR 27 October 2009, Crompton v. the United Kingdom (ECLI:CE:ECHR:2009:1027JUD004250905, §§ 70 to 73). 23 See, for instance, judgments of 9 June 2011, Evropaïki Dynamiki v ECB (C‑401/09 P, EU:C:2011:370, paragraph 49), and of 10 September 2015, Fliesen-Zentrum Deutschland(C‑687/13, EU:C:2015:573, paragraph 73). See also, more recently, judgment of 19 September 2019, Zhejiang Jndia Pipeline Industry v Commission (T‑228/17, EU:T:2019:619, paragraph 36). 24 Judgment of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraphs 46 and 47 and the case-law cited). 25 Set out above in point 48 of this Opinion. 26 See above, point 47 of this Opinion. 27 See, for instance, judgment of 22 December 2010, RTL Belgium (C‑517/09, EU:C:2010:821, paragraphs 38 to 40 and the case-law cited). 28 See, to that effect, judgment of 21 January 2020, Banco de Santander (C‑274/14, EU:C:2020:17, paragraph 62 and the case-law cited). See also ECtHR 10 December 2020, Edizioni del Roma Societa Cooperativa A.R.L. et Edizioni del Roma S.R.L. v. Italy (ECLI:CE:ECHR:2020:1210JUD006895413, § 64). 29 See judgment of 21 January 2020, Banco de Santander (C‑274/14, EU:C:2020:17, paragraphs 72 to 77). 30 Ibid., paragraph 42. 31 See, by analogy, from the case-law concerning admissibility of requests for preliminary rulings issued by various (review or quasi-judicial) chambers of bodies within the public administration, for instance judgment of 31 May 2005, Syfait and Others (C‑53/03, EU:C:2005:333, paragraphs 31 to 37), or of 30 May 2002, Schmid (C‑516/99, EU:C:2002:313, paragraphs 34 to 38). 32 See, in more detail, point 29 of this Opinion. 33 See, in this regard, Paragraph 30a(1) and (2) of the ÜbG. By contrast, see for example the review proceeding available under German law against a decision of the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Financial Supervisory Authority, Germany), which allows for a review of law and fact. See Paragraph 48 of the Wertpapiererwerbs- und Übernahmegesetz (German Securities Acquisition and Takeover Act). 34 Paragraph 35(3) of the ÜbG. 35 See my Opinion in Glencore Agriculture Hungary (C‑189/18, EU:C:2019:462, paragraph 39). 36 See above, point 44 of this Opinion. 37 See above, points 54 to 60 of this Opinion. 38 In relation to VAT, see, for instance, judgment of 17 December 2015, WebMindLicenses(C‑419/14, EU:C:2015:832, paragraphs 68 and 90). See also my Opinion in Glencore Agriculture Hungary (C‑189/18, EU:C:2019:462, point 39 and the case-law cited). 39 Although reasons of administrative efficiency cannot act as a ‘silver bullet’ to restrict the protection of fundamental rights. See, to that effect, judgment of 30 June 2011, Zeturf(C‑212/08, EU:C:2011:437, paragraph 48). 40 See, to that effect, judgment of 11 November 2015, Klausner Holz Niedersachsen (C‑505/14, EU:C:2015:742, paragraph 40 and the case-law cited).