Opinion of the Advocate General — ECLI:EU:C:2015:293
Date: 2015-04-30
Language of the case: Italian
Subject matter: State aids;Competition;Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, it may be concluded that none of the provisions of EU law specifically referred to by the referring court precludes a regime applicable to limitation periods for proceedings such as that introduced into Italian criminal law by the last subparagraph of Article 160 of the Codice penale, as amended by Law No 251/2005. 73. However, that conclusion is not in itself sufficient to provide the referring court with a useful response that will facilitate its decision on the dispute in the main proceedings. A number of further comments on the duty on the Member States to impose effective penalties are required (see in this regard Section B immediately below); we must also look briefly at the impact which any incompatibility on the part of the national limitation regime with EU law will have on the dispute in the main proceedings (see Section C below). B – The duty on the Member States to impose effective penalties 74. The question of the duty on the Member States to impose effective penalties for tax offences in matters of VAT is not expressly raised by the referring court in its request for a preliminary ruling. 75. It is true that it is, in principle, for the referring court alone to determine the subject-matter of the questions it intends to refer to the Court, (37) and that, for its part, the Court does not have jurisdiction to consider points of law which the national court has expressly or implicitly omitted from its request for a preliminary ruling. (38) 76. That said, the Court does have jurisdiction, when ruling on a request for a preliminary ruling, to give clarifications, in the light of the information in the case-file, to guide the referring court in giving judgment in the main proceedings and, in so doing, also to consider provisions to which the referring court has not referred. (39) 77. A theme that runs throughout the order for reference in the present case is the national court’s concern that the limitation regime laid down in the last subparagraph of Article 160 of the Codice penale, as amended by Law No 251/2005, might reflect a systemic shortcoming which, in the case of many tax offences in Italy, has the effect of exempting offenders from punishment. 78. As a result, the request for a preliminary ruling raises — at least implicitly — the additional question of whether a limitation regime such as that laid down in Italian law is compatible with the duty on the Member States under EU law to impose penalties for irregularities in matters of VAT. A useful response to the request for a preliminary ruling is inconceivable without an analysis of that additional question. 79. I shall now consider first of all whether a regime such as that laid down in Italian law discharges the general duty incumbent on the Member States to impose effective penalties for infringements of EU law (see Section 1 below), before then turning to the more specific duty incumbent on the Member States to punish as a matter of criminal law fraud affecting the European Union’s financial interests (see in this regard Section 2 below). 1. The general duty to impose effective penalties 80. It is a general principle of EU law, which can ultimately be traced back to the duty of sincere cooperation (Article 4(3) TEU), that for infringements of EU law by individuals Member States must provide penalties which are effective, proportionate and dissuasive, (40) and that infringements of EU law must also — at the very least — be punishable under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance. (41) These principles are, ultimately, specific expressions of the principles of effectiveness and equivalence 81. With regard, first, to the principle of equivalence, the Commission argued at the hearing that there are indeed offences under Italian criminal law which are not subject to any absolute limitation period at all. If these were to include offences in the field of economic crime which are equivalent to VAT fraud, an absolute limitation period could not be applied to VAT fraud either. 82. The Court recently made express reference to the requirement of effective, proportionate and dissuasive penalties that follows from the principle of effectiveness in connection with VAT too. Alongside various provisions of Directive 2006/112, the Court again relied in this regard on the Member States’ duty of sincere cooperation under Article 4(3) TEU. (42) 83. A functioning system of penalties for infringements of EU law is particularly important in matters of VAT, since it not only serves to ensure that all undertakings active on the internal market are treated equally, but is also intended to protect the European Union’s financial interests, the own resources of which include part of the VAT charged by Member States. (43) In accordance with Article 325 TFEU, Member States are therefore required to counter illegal activities affecting the financial interests of the European Union ‘through effective deterrent measures’. (44) The same requirement follows from Regulation No 2988/95, which also serves to protect the financial interests of the European Union. 84. It is true that neither the provisions of primary law (Article 4(3) TEU and Article 325 TFEU) nor the relevant provisions of secondary law (Regulation No 2988/95 and Directive 2006/112) impose any kind of obligation on Member States to punish irregularities in the field of VAT necessarily as matters of criminal law. On the contrary, Member States are free — subject to the provisions of the PIF Convention (45) — to choose the applicable penalties, with the result that the national system may even, in principle, comprise a combination of administrative and criminal penalties. (46) It is, however, inherent in the concept of a ‘penalty’ that Member States must do more than simply collect VAT that is owed anyway, together with any default interest due. 85. The penalties actually applied in the Member State concerned — be they administrative or criminal in nature — must none the less be effective, proportionate and dissuasive. (47) It is contrary to the requirements of EU law for a Member State to found its national system of penalties, drawn from a combination of administrative- and criminal-law provisions, on two pillars which neither individually nor jointly satisfy the criteria of being effective, proportionate and dissuasive. 86. It is for the referring court to assess whether the penalties provided for in the national system are effective, proportionate and dissuasive. As part of that assessment, the provision laying down the penalty in question must be analysed by reference to the role of that provision in the legislation as a whole, including the progress and special features of the procedure before the various national authorities, in each case in which that question arises. (48) 87. As I stated in my Opinion in Berlusconi and Others, (49) there is in principle no reason why Member States should not make subject to limitation penalties which they are required to introduce under EU law, since limitation periods serve to ensure legal certainty and protect defendants, and do not in principle preclude the effective imposition of penalties. Furthermore, Article 3 of Regulation No 2988/95 also provides for a limitation period applicable to the administrative penalties laid down there. 88. It must be ensured, however, that the limitation rules applicable do not have the general effect of undermining the effectiveness and dissuasiveness of the penalties provided for. Consequently, irregularities in matters of VAT must not be subject to penalties in theory alone. The system of penalties must rather be framed in such a way as to ensure that anyone who provides false information in connection with VAT or participates in such practices fears, in fact also, that penalties will be imposed on him. (50) 89. Account must also be taken, as the Commission rightly points out, of any interaction between criminal and administrative penalties. Thus, deficiencies in the system of criminal penalties may adversely affect the system of administrative penalties. This will be the case, for example, where the national law provides that administrative proceedings are to be stayed for the duration of ongoing criminal proceedings (51) and, once the limitation period for criminal prosecution has expired, cannot subsequently be resumed because the infringement concerned has become time-barred in accordance with criteria laid down in administrative law, too. 90. In this connection, it is worth mentioning the existing case-law on certain rules of procedure in Italian tax law. According to that case-law, although Member States may in certain circumstances terminate lengthy tax proceedings, (52) they must not refrain on a general and indiscriminate basis from verifying the taxable transactions effected in a series of tax years from the point of view of any liability to VAT. (53) 91. If, in the light of all those criteria, the effect of national rules on limitation periods is, by virtue of the scheme of those rules, that the effective, proportionate and dissuasive penalties provided for are, in reality, likely to be imposed only rarely, those rules will be contrary to the general duty on Member States to impose effective penalties for infringements of EU law. (54) 2. The specific duty to provide for effective criminal penalties 92. In addition to the general duty to impose effective penalties which we have just considered, there is a further specific duty on Member States to punish as a matter of criminal law fraud affecting the European Union’s financial interests. 93. That duty to provide for criminal penalties arises from the PIF Convention, in particular from Article 2(1) thereof, which stipulates that fraud affecting the European Union’s financial interests must be punished by effective, proportionate and dissuasive criminal penalties; in cases of serious fraud, provision is even to be made for criminal penalties involving deprivation of liberty. 94. It is true that the Council of the European Union interprets the scope of the PIF Convention narrowly and would like to exclude VAT from it. In its Explanatory Report, (55) it adopted the position that, for the purposes of the PIF Convention, ‘revenue’ means the first two categories of the European Union’s own resources only, that is to say, on the one hand, customs duties and, on the other hand, certain agricultural levies and contributions. Conversely, the Council takes the view that European Union revenue within the meaning of the PIF Convention does not include revenue from the application by Member States of a uniform rate of VAT, as that own resource is not collected directly for the account of the European Union. 95. Consequently, in accordance with the view expressed by the Council in its Explanatory Report, which was also endorsed by Germany at the hearing before the Court, the duty under EU law to impose criminal sanctions would not apply to irregularities in matters of VAT. (56) 96. However, the Council’s Explanatory Report is simply the non-legally binding opinion of an institution of the European Union which, moreover, is not itself a party to the PIF Convention but merely took part in the associated preparatory work by drawing up the text of the Convention and recommending it to the Member States for adoption in accordance with their respective constitutional requirements (Article K.3(2)(c) EU). 97. The Council’s Explanatory Report cannot therefore be regarded as the authoritative interpretation of the PIF Convention, particularly since neither the Convention itself nor the additional protocol thereto makes any reference whatsoever to that report. The Court alone is entitled to give an interpretation of the PIF Convention which is legally binding within the European Union; this was made apparent from the very outset by the additional protocol to the PIF Convention, which empowered the Court to interpret that convention, and now follows from the second sentence of Article 19(1) TEU, Article 19(3) TEU and Article 267 TFEU. 98. In my view, the Court should not treat the Council’s Explanatory report on the PIF Convention any differently from the press releases which the EU institutions issue in connection with legislative acts or the statements entered in the minutes on the occasion of the adoption of such legal acts: it is settled case-law that such communications cannot be used for the purposes of interpreting a provision of secondary law if they are not referred to in the wording of that provision. (57) 99. That is the situation here. In order to justify the exclusion of VAT from the scope of the PIF Convention, the Council, in its Explanatory Report, refers only to the fact that VAT ‘is not an own resource collected directly for the account of the [European Union]’. (58) That particular consideration does not, however, appear in the wording of the PIF Convention and is not capable of justifying a restrictive interpretation of its scope. 100. The scope of the PIF Convention is actually very broadly defined. It is clear from Article 1(1)(b) of the Convention that its scope extends without restriction to all of the European Union’s ‘revenue’ from the ‘resources’ of its ‘general budget’. Those resources include not least the European Union’s own resources arising from VAT. (59) There is, after all, a direct link between the collection of VAT by the Member States and the availability to the European Union budget of the corresponding VAT resources. (60) 101. Furthermore, a broad interpretation of its scope as including VAT is consistent with the objective of the PIF Convention, which is intended, very generally, to combat fraud affecting the European Union’s financial interests and by means of which such fraud is to be combatted with the utmost vigour. (61) 102. Restricting the scope of the PIF Convention exclusively to cases of fraud relating to customs duties and agricultural levies and contributions, on the other hand, would significantly reduce the contribution made by that legal instrument to the protection of the European Union’s financial interests. Such a narrow interpretation of the scope of the PIF Convention, as the Council appears to have in mind, would be contrary to the rule to the effect that the interpretation of a provision of EU law proposed by an institution of the European Union must not affect the effectiveness of that provision. (62) 103. The PIF Convention therefore imposes a duty on the Member States to punish as a matter of criminal law cases of fraud affecting the European Union’s financial interests in the field of VAT — and in any event fraud of some seriousness. That duty is particularly important here, given that, because of the circumstances in which VAT fraud often takes place, administrative penalties alone — in particular fines and additional charges for late payment — would be unlikely to have a sufficiently dissuasive effect. After all, many individuals and undertakings involved in such fraud are in an extremely precarious financial position in any event. 104. It is for the referring court to assess whether the criminal penalties provided for in the national system are ‘effective, proportionate and dissuasive’ within the meaning of Article 2(1) of the PIF Convention. That assessment must take into account the submissions made above: (63) the provision laying down the penalty in question must be analysed by reference to the role of that provision in the legislation as a whole, including the progress and special features of the procedure before the various national authorities, in each case in which that question arises. 105. If, in the light of all those criteria, the effect of national rules on limitation periods is, by virtue of the scheme of those rules, that the effective, proportionate and dissuasive penalties provided for are, in reality, likely to be imposed in fact only rarely, those rules will be contrary to the duty incumbent on Member States under Article 2 of the PIF Convention to provide for adequate criminal penalties for fraud affecting the European Union’s financial interests. C – The impact on the dispute in the main proceedings of any incompatibility on the part of the national limitation regime with EU law 106. In the event that the referring court reaches the conclusion, on the basis of the criteria set out above, that the national limitation regime, and in particular the provision, as referred to in the order for reference, contained in the last subparagraph of Article 160 of the Codice penale, as amended by Law No 251/2005, is contrary to EU law, consideration must be given finally to what impact that conclusion has on the dispute in the main proceedings. 107. It is settled case-law that the national courts are required to give full effect to EU law. (64) 108. To that end, they have a duty first and foremost to interpret and apply national law as a whole in a manner consistent with EU law. In so doing, the national courts are required to interpret national law as far as possible in the light of the wording and the purpose of the applicable provisions of EU law in order to achieve the result envisaged by those provisions. (65) Taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, they must do whatever lies within their jurisdiction with a view to ensuring that the provisions of European Union are fully effective and achieving an outcome consistent with the objective pursued by EU law. (66) 109. In particular, the referring court will have to assess whether, on the basis of an interpretation consistent with EU law, it is able to achieve an outcome the effect of which is to suspend the limitation period for such time as the main proceedings are pending before the Italian criminal courts — or at least before particular judicial bodies. 110. Nevertheless, the obligation to interpret national provisions in a manner consistent with EU law is limited by general principles of law and it cannot serve as the basis for an interpretation of a national law contra legem. (67) 111. If the referring court were unable to interpret the national law in such a way as to achieve an outcome consistent with EU law, it would be required to give full effect to EU law, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, there being no requirement for that court to request or await the prior setting aside of such provision by legislative or other constitutional means. (68) 112. Consequently, the referring court would, if appropriate, have to refrain from applying a provision such as the last subparagraph of Article 160 of the Codice penale, as amended by Law No 251/2005, in the main proceedings if that provision were to reflect a systemic shortcoming which prevents the achievement of an outcome consistent with EU law because the limitation periods are excessively short. 113. More detailed consideration must be given first, however, to the question of whether such an approach is precluded by the general principles of EU law, namely the principle of the legality of penalties (nullum crimen, nulla poena sine lege). That principle is one of the general legal principles underlying the constitutional traditions common to the Member States (69) and now enjoys the status of a fundamental right of the European Union under Article 49 of the Charter of Fundamental Rights. In accordance with the requirement of homogeneity (first sentence of Article 52(3) of the Charter), in interpreting Article 49 of the Charter, regard must be had not least to Article 7 ECHR and the case-law of the European Court of Human Rights (ECtHR) on that provision. 114. The principle of the legality of penalties states that no one is to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed, and, furthermore, that a heavier penalty is not to be imposed than the one that was applicable at the time the criminal offence was committed (first and second sentences of Article 49(1) of the Charter). That principle goes hand in hand with the rule that directives cannot be relied upon directly in order to determine or aggravate liability in criminal law. (70) 115. Contrary to the view taken by Mr Anakiev and the Italian Government, however, in a case such as that at issue, there is no risk of any conflict with the principle of the legality of penalties. After all, from a material point of view, that principle requires only that legislation must provide a clear definition of offences and the penalties which they attract. (71) Provisions on limitation periods, however, say nothing about the criminal liability of an act or the penalty which that act attracts, but deal only with whether a criminal offence may be prosecuted, and, consequently, are not even caught by the rule of nullum crimen, nulla poena sine lege. (72) For the same reason, the principle of the retroactive application of the more lenient penalty (third sentence of Article 49(1) of the Charter of Fundamental Rights (73)) also does not apply to matters of limitation periods. 116. It is in this respect, moreover, that the present case differs fundamentally from Berlusconi and Others, which, unlike this dispute, concerned an amendment of the substantive provisions of the national law, in particular the applicable framework of penalties for certain criminal offences, that gave rise, inter alia, to more lenient penalties and thus had an indirect impact on the limitation period for proceedings. (74) 117. Against that background, the requirements governing the legality of penalties are fully satisfied in a case such as that at issue here, given that the criminal liability of the conduct of which the defendants are accused and the penalty which that conduct attracts follow unaltered from Italian criminal law, more specifically from Articles 2 and 8 of Legislative Decree 74/2000. Neither the criminal liability of, nor the penalty for, the conduct in question follows in any way directly from provisions of EU law such as Article 4(3) TEU, Article 325 TFEU, Directive 2006/112, Regulation No 2988/95 or the PIF Convention. 118. Unlike in Berlusconi and Others, therefore, in this case, the application of requirements under EU law would not, by itself, give rise to obligations on the part of an individual. In particular, it would not determine or aggravate the liability in criminal law of individuals. It would simply — at a procedural level — release the national prosecution authorities from shackles which are contrary to EU law. 119. It cannot be inferred from the principle of the legality of penalties that the applicable rules on the length, course and interruption of the limitation period must of necessity always be determined in accordance with the statutory provisions that were in force at the time when the offence was committed. No legitimate expectation to that effect exists. 120. Rather, the period of time within which a criminal offence may be prosecuted can still be altered even after the offence has been committed, so long as the limitation period has not expired. (75) The position here is ultimately no different from that which obtains in the context of the application of new procedural rules to situations which, although they began in the past, have not yet come to an end. (76) 121. Within the context of the procedural autonomy enjoyed by the Member States, this means that, in all cases where the limitation period has not yet expired, (77) a measure of discretion is available to take into account assessments of EU law which the courts of the Member States must fully exhaust, with due regard for the principles of equivalence and effectiveness, when applying their respective national laws. 122. This does not mean, however, that new limitation periods would be derived directly from EU law. In any event, there are no provisions in Article 4(3) TEU, Article 325 TFEU, Regulation No 2988/95 or the PIF Convention that are sufficiently specific to be capable of being applied directly to individuals. The same is true — by reason not least of its legal nature — of Directive 2006/112. (78) 123. The length and course of the limitation periods must, rather, be the subject of specific provisions of national law which are consistent with EU law. In this regard, EU law has, at most, an indirect effect on the dispute in the main proceedings, in so far as it helps the national courts to set the correct parameters for applying domestic law in a manner consistent with EU law. 124. This does not involve the complete abolition of limitation but the application of an adequate limitation regime (79) which makes the imposition of effective, proportionate and dissuasive penalties in a fair trial of an appropriate length (second paragraph of Article 47 of the Charter of Fundamental Rights; first sentence of Article 6(1) ECHR) seem like a realistic prospect. 125. One of the steps to be taken by the referring court in this regard might be to apply the provisions on limitation without the absolute limitation period laid down in the last subparagraph of Article 160 of the Codice penale, as amended by the Law No 251/2005. As I have already said, (80) it would appear from information supplied by the Commission at the hearing that Italian law does indeed provide for criminal offences — including in the area of economic crime — which are not subject to an absolute limitation period at all. 126. An alternative approach might conceivably be to apply the revised limitation periods applicable to tax offences, which have been extended by a third, as now provided for in Law No 148/2011. (81) (82) Finally, a further possibility would be to regard the earlier rules on limitation periods, as provided for in the Codice penale before its amendment by Law No 251/2005, as still being applicable to the present case. 127. Which of those various options is to be selected is ultimately a matter of national law and its interpretation, the assessment of which falls to the national courts alone. From the point of view of EU law, the only requirement is that the solution adopted should be applied in a fair trial (second paragraph of Article 47 of the Charter of Fundamental Rights, first sentence of Article 6(1) ECHR), in a non-discriminatory manner and on the basis of clear, comprehensible and generally applicable criteria. VII – Conclusion 128. In the light of the foregoing considerations, I propose that the Court reply as follows to the questions referred to it by the Tribunale di Cuneo: (1) Articles 4(3) TEU and 325 TFEU, Regulation (EC, Euratom) No 2988/95 and Directive 2006/112/EC are to be interpreted as meaning that they require the Member States to provide for effective, proportionate and dissuasive penalties for irregularities in matters of VAT. (2) Article 2(1) of the Convention on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995, requires the Member States to punish fraud in matters of VAT by means of effective, proportionate and dissuasive criminal penalties which must, in serious cases of fraud at least, also include penalties involving deprivation of liberty. (3) A provision of national law on limitation periods for proceedings which, for reasons relating to the scheme of that provision, has the effect in many cases of exempting from punishment the perpetrators of fraud in matters of VAT is incompatible with the aforementioned provisions of EU law. In pending criminal proceedings, the national courts must refrain from applying such a provision. 1 Original language: German. 2 See Article 2(1)(b) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17), ‘the Own Resources Decision’. 3 Judgment in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270). 4 Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1). 5 Convention on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995 (OJ 1995 C 316, p. 49). The abbreviation ‘PIF’ stands for the French version of the phrase ‘protection of financial interests’ (‘protection des intérêts financiers’). 6 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1). 7 Treaty on European Union, as amended by the Treaty of Maastricht. 8 OJ 1995 C 316, p. 48. 9 Criminal Code. 10 GURI No 285 of 7 December 2005. 11 Legislative Decree. 12 Legislative Decree 74/2000 is entitled ‘Nuova disciplina dei reati in materia di imposte sui redditi e sul valore aggiunto’ (New rules governing offences in matters of income tax and VAT) and is published in GURI No 76 of 31 March 2000. 13 The term ‘missing traders’ refers to undertakings exclusively engaged in the production of tax documentation for the purposes of tax evasion. 14 In the language of the case: udienza preliminare. 15 The functions of Tribunale di Mondovì were since consolidated with those of the Tribunale di Cuneo. 16 Giudice dell’Udienza Preliminare. 17 The only exceptions to its jurisdiction to give preliminary rulings are certain parts of EU law relating to the Common Foreign and Security Policy (see the sixth sentence of the second subparagraph of Article 24(1) TEU and Article 275(1) TFEU). 18 Judgments in Cowan (186/87, EU:C:1989:47, paragraph 19); Placanica (C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 68); and Achughbabian (C‑329/11, EU:C:2011:807, paragraph 33). 19 Judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 27 and 28). 20 Treaty on European Union, as amended by the Treaty of Maastricht. 21 Protocol No 36 to the EU Treaty and the FEU Treaty (OJ 2008 C 115, p. 322). 22 See to this effect the judgment in Weryński (C‑283/09, EU:C:2011:85, paragraphs 30 and 31). 23 Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the protection of the European Communities’ financial interests, signed in Brussels on 29 November 1996 (OJ 1997 C 151, p. 1). Like the PIF Convention itself beforehand, this additional protocol was also concluded on the basis of Article K.3(2)(c) EU and entered into force on 17 October 2002. 24 Treaty on European Union, as amended by the Treaty of Amsterdam. 25 See, on the one hand, the declaration by the Italian Republic under Article 35(2) and (3)(b) EU (notice published in OJ 1999 L 114, p. 56) and, on the other hand, the declaration by the Italian Republic of 19 July 2002 under the additional protocol to the PIF Convention, the latter being available for download on the following webpage of the Council of the European Union (last visited on 20 February 2015): http://www.consilium.europa.eu/en/documents-publications/agreements-conventions/ratification/?v=decl&aid= 1996090&pid=I. 26 Judgments in Beck and Bergdorf (C‑355/97, EU:C:1999:391, paragraph 22); Régie Networks (C‑333/07, EU:C:2008:764, paragraph 46); and Križan and Others (C‑416/10, EU:C:2013:8, paragraph 54). 27 Judgments in Bosman (C‑415/93, EU:C:1995:463, paragraph 61); Beck and Bergdorf (C‑355/97, EU:C:1999:391, paragraph 22); Régie Networks (C‑333/07, EU:C:2008:764, paragraph 46); and Križan and Others (C‑416/10, EU:C:2013:8, paragraphs 53 and 54). 28 See, inter alia, judgments in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270) and Åkerberg Fransson (C‑617/10, EU:C:2013:105). 29 See to this effect judgment in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270) and order in Mulliez and Others (C‑23/03, C‑52/03, C‑133/03, C‑337/03 and C‑473/03, EU:C:2006:285), in which the Court made no mention of the objections of inadmissibility raised by various parties to the proceedings but proceeded directly to give answers on the substance of the questions referred. 30 See points 57 to 72 of this Opinion, below. 31 The Court replied to the same effect, in the judgment in E and F (C‑550/09, EU:C:2010:382), to a request for a preliminary ruling from a German court which was also required to rule on the opening of the criminal trial on the basis of an indictment drawn up by the Public Prosecutor’s Office. See also — more generally — judgments in AGM-COS.MET (C‑470/03, EU:C:2007:213, paragraph 45) and Coleman (C‑303/06, EU:C:2008:415, paragraphs 28 to 32). 32 Judgments in Asjes and Others (209/84 to 213/84, EU:C:1986:188, paragraphs 71 and 72); Vlaamse Reisbureaus (311/85, EU:C:1987:418, paragraph 10); Cipolla and Others (C‑94/04 and C‑202/04, EU:C:2006:758, paragraphs 46 and 47); and API and Others (C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraphs 28 and 29). 33 See to that effect judgments in Germany v Commission (C‑156/98, EU:C:2000:467, paragraph 22); Commission v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 72 and 73); 3M Italia (C‑417/00, EU:C:2012:184, paragraphs 41 to 44); and P (C‑6/12, EU:C:2013:525, paragraph 18). 34 See in that regard points 74 to 121 of this Opinion, below. 35 The latter point is emphasised in the judgment in Caja de Ahorros y Monte de Piedad de Madrid (C‑484/08, EU:C:2010:309, paragraph 46), in connection with the principle of an open market economy with free competition, also enshrined in Article 119 TFEU. 36 See to the same effect the judgment in Échirolles Distribution (C‑9/99, EU:C:2000:532, paragraph 25), again in connection with the principle of an open market economy with free competition enshrined in Article 119 TFEU. 37 Judgments in Franzén (C‑189/95, EU:C:1997:504, paragraph 79) and Belgian Electronic Sorting Technology (C‑657/11, EU:C:2013:516, paragraph 28), as well as order in Szabó (C‑204/14, EU:C:2014:2220, paragraph 16). 38 Judgments in Alsatel (247/86, EU:C:1988:469, paragraphs 7 and 8) and Hennen Olie (C‑302/88, EU:C:1990:455, paragraph 20); see also the recent Opinion of Advocate General Mengozzi in Wagner-Raith (C‑560/13, EU:C:2014:2476, points 16 to 48). 39 Judgments in SARPP (C‑241/89, EU:C:1990:459, paragraph 8); Ritter-Coulais (C‑152/03, EU:C:2006:123, paragraph 29); Promusicae (C‑275/06, EU:C:2008:54, paragraph 42); Aventis Pasteur (C‑358/08, EU:C:2009:744, paragraph 50); and Centre public d’action sociale d’Ottignies-Louvain-La-Neuve (C‑562/13, EU:C:2014:2453, paragraph 37). 40 Judgments in Commission v Greece (68/88, EU:C:1989:339, paragraph 24); Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraph 65); Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 94); and Fiamingo and Others (C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraphs 62 and 64). 41 Judgments in Commission v Greece (68/88, EU:C:1989:339, paragraphs 23 and 24) and Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 64 and 65); see to the same effect the judgment in SGS Belgium and Others (C‑367/09, EU:C:2010:648, paragraph 41). 42 Judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 25 and 36). 43 Article 2(1)(b) of the Own Resources Decision; see also the judgments in Commission v Italy (C‑132/06, EU:C:2008:412, paragraph 39); Belvedere Costruzioni (C‑500/10, EU:C:2012:186, paragraph 22); and Commission v Germany (C‑539/09, EU:C:2011:733, paragraphs 71 and 72). 44 Judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 26 and 36). 45 See points 92 to 105 of this Opinion, below. 46 Judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 34). It is clear from Article 6 of Regulation No 2988/95 that Member States are free to use criminal penalties. 47 See to that effect — albeit in a different context — the judgments in Colson and Kamann (14/83, EU:C:1984:153, paragraph 28); Adeneler and Others (C-212/04, EU:C:2006:443, paragraphs 102 to 104); and Fiamingo and Others (C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 61 in fine). 48 As I have pointed out before, in my Opinion in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 91). 49 See again in this regard my Opinion in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 107). 50 See my Opinion in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 108). 51 This possibility is made available to the Member States by Article 6 of Regulation No 2988/95. 52 Judgment in Belvedere Costruzioni (C‑500/10, EU:C:2012:186, paragraph 28). 53 Judgment in Commission v Italy (C‑132/06, EU:C:2008:412, paragraphs 43 to 47 and 52). 54 See to the same effect my Opinion in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 110). 55 Explanatory Report on the Convention on the protection of the European Communities’ financial interests, approved by the Council on 26 May 1997 (OJ 1997 C 191, p. 1); in that report, see in particular the explanations relating to Article 1(1) of the Convention (OJ 1997 C 191, p. 4, last paragraph). 56 The German Government takes the view that the inclusion of VAT within the areas in which EU law requires the Member State to introduce criminal penalties is only provided for in a legislative proposal by the Commission, which is still pending: Proposal for a Directive of the European Parliament and of the Council on the criminal-law protection of the Community’s financial interests, COM(2001) 272 final (OJ 2001 C 240 E, p. 125). 57 Judgments in Antonissen (C‑292/89, EU:C:1991:80, paragraph 18); Skov and Bilka (C‑402/03, EU:C:2006:6, paragraph 42); and Quelle (C‑404/06, EU:C:2008:231, paragraph 32). 58 See in this regard the relevant passage from the Explanatory Report in OJ 1997 C 191, p. 4, final paragraph. 59 Article 2(1)(b) of the Own Resources Decision. 60 Judgments in Commission v Germany (C‑539/09, EU:C:2011:733, paragraph 72) and Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 26). 61 First and second recitals in the preamble to the Council Act drawing up the PIF Convention (OJ 1995 C 316, p. 48). 62 Commission v Belgium (C‑437/04, EU:C:2007:178, at the end of paragraph 56). 63 See above, points 86 to 90 of this Opinion. 64 Opinion 1/09 (EU:C:2011:123, paragraph 68); with specific regard to directives, see also, inter alia, the judgment in Kücükdeveci (C‑555/07, EU:C:2010:21, paragraph 48). 65 With regard to the interpretation of national law in a manner consistent with primary law, see the judgments in Murphy and Others (157/86, EU:C:1988:62, paragraph 11) and ITC (C‑208/05, EU:C:2007:16, paragraph 68); with regard to the interpretation of national law in a manner consistent with secondary law, see the judgments in Marleasing (C‑106/89, EU:C:1990:395, paragraph 8); Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 113); Dominguez (C‑282/10, EU:C:2012:33, paragraph 24); and Asociaţia Accept (C‑81/12, EU:C:2013:275, paragraph 71). 66 Judgments in Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraphs 115 to 119); Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 111); Dominguez (C‑282/10, EU:C:2012:33, paragraph 27); Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 38); and Schoenimport ‘Italmoda’ Mariano Previti (C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455, paragraph 52); similarly, see the earlier judgment in Colson and Kamann (14/83, EU:C:1984:153, paragraph 28: ‘in so far as it is given discretion to do so under national law’). 67 Judgment in Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 39); see also judgments in Kolpinghuis Nijmegen (80/86, EU:C:1987:431, paragraph 13) and Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 110). 68 Judgments in Simmenthal (106/77, EU:C:1978:49, paragraphs 21 and 24); Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 43); and Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 45). 69 Judgments in Advocaten voor de Wereld (C‑303/05, EU:C:2007:261, paragraph 49) and Intertanko and Others (C‑308/06, EU:C:2008:312, paragraph 70). 70 Judgments in X (14/86, EU:C:1987:275, paragraph 20); Kolpinghuis Nijmegen (80/86, EU:C:1987:431, paragraph 13); X (C‑74/95 and C‑129/95, EU:C:1996:491, paragraph 24); Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraph 74); and Grøngaard and Bang (C‑384/02, EU:C:2005:708, paragraph 30). 71 Judgments in Advocaten voor de Wereld (C‑303/05, EU:C:2007:261, paragraph 50); Intertanko and Others (C‑308/06, EU:C:2008:312, paragraph 71); and Lafarge v Commission (C‑413/08 P, EU:C:2010:346, paragraph 94). 72 See in this regard the judgments of the ECtHR in Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 149, ECHR 2000-VII, and Scoppola v. Italy (no. 2), no. 10249/03, § 110, 17 September 2009; in connection with the judgment of the ECtHR in Coëme and Others v. Belgium, see: judgment No 236 of the Italian Constitutional Court (Corte costituzionale) of 19 July 2011, paragraph 15; to the same effect, see the earlier judgment of the German Federal Constitutional Court (Bundesverfassungsgericht) (BVerfGE 25, 269, 286 et seq.). 73 On the fact that that principle is enshrined in the constitutional traditions common to the Member States and in the general legal principles of EU law, see also the judgment in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 68 and 69) and my Opinion in that case (EU:C:2004:624, points 155 to 157). The ECtHR, too, has recently recognised that principle in the context of Article 7 ECHR (judgment in Scoppola v. Italy (no. 2), no. 10249/03, §§ 105 to 109, 17 September 2009). 74 See the judgment in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 18 to 22) and my Opinion in that case (EU:C:2004:624, point 31). 75 Judgment of the ECtHR in Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 149, ECHR 2000-VII. 76 See to that effect judgments in Meridionale Industria Salumi and Others (212/80 to 217/80, EU:C:1981:270, paragraph 9); Pokrzeptowicz-Meyer (C‑162/00, EU:C:2002:57, paragraph 49); Molenbergnatie (C‑201/04, EU:C:2006:136, paragraph 31); and Commission v Spain (C‑610/10, EU:C:2012:781, paragraph 45). See also my Opinion in Commission v Moravia Gas Storage (C‑596/13 P, EU:C:2014:2438, points 28 to 31). 77 According to the information supplied by the referring court, prosecution of the offences forming the subject-matter of the indictment against one of the defendants, Mr Anakiev, has already become time-barred. 78 Judgments in Arcaro (C‑168/95, EU:C:1996:363, paragraph 36); X (C‑74/95 and C‑129/95, EU:C:1996:491, paragraph 23); and Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraph 73). 79 See in this regard points 87 and 88 of this Opinion, above. 80 See in this regard point 81 of this Opinion, above. 81 See Article 2(36-21)(1) thereof (GURI No 216 of 16 September 2011). 82 One of the defendants, Mr Anakiev, referred to these new rules in the proceedings before the Court.