Opinion of the Advocate General — ECLI:EU:C:2025:53
Date: 2025-02-04
Language of the case: Slovak
Procedure: Reference for a preliminary ruling
Origin: Slovakia

Summary C-544/23 – 1 
Case C-544/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
28 August 2023 
Referring court: 
Najvyšší Správny súd Slovenskej republiky (Slovakia) 
Date of the decision to refer: 
16 August 2023 
Appellants in cassation: 
T.T. 
BAJI Trans, s.r. o. 
Respondent in cassation: 
Národný inšpektorát práce 
 
Subject matter of the main proceedings 
Request for a preliminary ruling made in the context of a dispute concerning the 
review of the lawfulness of a decision [regarding an appeal] in cassation. The 
present request arises from the referring court’s doubts as to whether EU law 
applies in the event of the imposition of an administrative penalty for failure to 
fulfil an obligation under EU law and in the event that the Member States are 
required to penalise that failure, as in the case of Article 19(1) of Regulation 
No 3821/85 and Article 41(1) of Regulation No 165/2014. 
Subject matter and legal basis of the request 
Interpretation of Article 49 and Article 51(1) of the Charter of Fundamental 
Rights of the European Union, as well as Article 19(1) of Regulation No 3821/85 
and Article 41(1) of Regulation No 165/2014. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 16. 8. 2023 – CASE C-544/23 
 
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Questions referred for a preliminary ruling 
1. Is Article 51(1) of the Charter of Fundamental Rights of the European Union 
to be interpreted as meaning that a Member State is implementing Union law 
when it imposes, under national law, an administrative penalty for failure to 
fulfil an obligation where that obligation arises from EU law and the 
Member States are required to penalise failure to fulfil it, as in the case of 
Article 19(1) of Regulation No 3821/85 and Article 41(1) of Regulation 
No 165/2014? 
2. If the answer to the first question is in the affirmative, are Article 49(1) of 
the Charter of Fundamental Rights of the European Union and the principle 
of lex posterior mitius laid down therein to be interpreted as also applying to 
the imposition of penalties for administrative offences in cases where the 
guilt and the penalty are first decided not by a judicial body but by an 
administrative body, and does this principle then also apply to the review of 
the decisions of that administrative body by an administrative court? 
3. If the answer to the second question is in the affirmative, are Article 49(1) of 
the Charter of Fundamental Rights of the European Union and the principle 
of lex posterior mitius laid down therein to be interpreted as applying to 
national administrative or judicial proceedings, regardless of the current 
stage of those proceedings? 
4. If the answer to the third question is in the negative, by what criteria should 
that stage be determined? More specifically, are Article 49 of the Charter of 
Fundamental Rights of the European Union and the principle of lex 
posterior mitius laid down therein to be interpreted as applying in the 
context of contentious administrative proceedings concerning an appeal in 
cassation, and must the Supreme Administrative Court before which that 
appeal in cassation has been brought at second and final instance therefore 
take into account a legislative amendment in favour of the perpetrator of the 
administrative offence which was the subject of the proceedings before the 
administrative body, rather than the court which was affected by the 
amendment only after the decision of the lower administrative court that is 
subject to review became final? 
Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union, Article 41 and 
Article 51(1). 
Council Regulation (EEC) No 3821/85 [of 20 December 1985] on recording 
equipment in road transport, Article 3(1) and (2), as well as Article 19(1). 
Regulation (EU) No 165/2014 of the European Parliament and of the Council [of 
4 February 2014] on tachographs in road transport, repealing Council Regulation 
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(EEC) No 3821/85 on recording equipment in road transport and amending 
Regulation (EC) No 561/2006 of the European Parliament and of the Council on 
the harmonisation of certain social legislation relating to road transport, 
Article 3(1) and (2), Article 41, and Article 47. 
Regulation (EC) No 561/2006 of the European Parliament and of the Council [of 
15 March 2006] on the harmonisation of certain social legislation relating to road 
transport and amending Council Regulations (EEC) No 3821/85 and (EC) 
No 2135/98 and repealing Council Regulation (EEC) No 3820/85, Article 3 and 
Article 13(1). 
Provisions of national law relied on 
Ústava Slovenskej republiky č. 460/1992 Zb. (Constitution of the Slovak Republic 
No. 460/1992) of 1 September 1992: 
Article 50(6) 
‘The criminal nature of any act shall be determined and the penalty for that act 
shall be imposed under the law effective at the time of the commission of the act. 
A later law shall apply if it is more beneficial to the perpetrator.’ 
Zákon č. 462/2007 Z. z. o organizácii pracovného času v doprave a o zmene a 
doplnení zákona č. 125/2006 Z. z. o inšpekcii práce a o zmene a doplnení zákona 
č. 82/2005 Z. z. o nelegálnej práci a nelegálnom zamestnávaní a o zmene a 
doplnení niektorých zákonov v znení zákona č. 309/2007 Z. z. (Law No 462/2007 
on the organisation of working time in transport and amending and 
supplementing Law No 125/2006 on labour inspection and amending and 
supplementing Law No 82/2005 on illegal work and illegal employment and 
amending and supplementing certain laws, as amended by Law No 309/2007): 
Paragraph 38(1)(a), point 1 
‘A driver who drives a vehicle without recording equipment or with recording 
equipment which does not carry a valid test certificate or who makes improper use 
of the recording equipment commits an offence.’ 
Zákon č. 461/2007 Z. z. o používaní záznamového zariadenia v cestnej doprave 
(Law No 461/2007 on the use of recording equipment in road transport): 
Paragraph 1(a) 
‘This Law regulates legal relations not covered by special regulations concerning: 
a) the scope of the obligation to install and use recording equipment in motor 
vehicles.’ 
Paragraph 2(1) and (2) 
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(1) A transport undertaking which engages in bus or road freight transport shall 
install recording equipment on any vehicle used for the carriage of passengers or 
the carriage of goods and, unless otherwise specified below, shall use record 
sheets and cards during such carriage. 
(2) The transport undertaking’s obligation under subparagraph 1 above shall not 
apply to vehicles used for transport operations defined under special regulations’. 
Zákon č. 162/2015 Správny súdny poriadok (Law No 162/2015 establishing the 
Code of Administrative Procedure): 
Paragraph 11(h) 
‘The Najvyšší Správny súd (Supreme Administrative Court) shall rule on appeals 
in cassation.’ 
Paragraph 135(1) 
‘In examining a case, the administrative court shall base its decision on the 
situation prevailing at the time the decision of the public administrative body was 
announced or issued, or at the time the measure was applied by the public 
administrative body.’ 
Paragraph 195(d) 
‘When imposing administrative penalties, the administrative court is not bound by 
the scope and grounds of the complaint, as far as compliance with the rules on the 
imposition of penalties laid down by the Trestný zákon (Criminal Code) is 
concerned, which shall also be applied to the imposition of penalties in 
administrative proceedings.’ 
Paragraph 438(1) and (2): 
‘(1) An appeal in cassation may be lodged against a final decision of the 
administrative court …. 
(2) The appeal in cassation shall be ruled on by a chamber of the Supreme 
Administrative Court and, in the cases referred to in Paragraph 22(1), the Grand 
Chamber of the Supreme Administrative Court (the ‘Court of Cassation’). 
Paragraph 440(1) 
‘An appeal in cassation may be based only on the fact that, in the course of the 
proceedings or through the decision, the administrative court infringed the law in 
that: 
a) the administrative court had no jurisdiction to hear the case, 
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b) a person who appeared as a party to the proceedings did not have legal 
standing, 
c) a party to the proceedings did not have full capacity to act before an 
administrative court and there was no legal representative or procedural guardian 
acting on his or her behalf, 
d) in the same case, a final decision had already been issued or proceedings had 
already been initiated, 
e) the case was heard by a judge without the competence to make a ruling or an 
administrative court whose composition did not have competence, 
f) procedural irregularities prevented a party to the proceedings from exercising 
his or her procedural rights to such an extent that the right to a fair trial was 
infringed, 
g) the decision was issued on the basis of an incorrect assessment of the legal 
situation, 
h) there was a departure from the established case-law of the Court of Cassation, 
i) the binding legal opinion expressed in the decision dismissing the appeal in 
cassation was not taken into account, or 
j) the action was unlawfully dismissed.’ 
Paragraph 453(1) and (2): 
‘(1) The Court of Cassation shall be bound by the scope of the appeal in cassation; 
this does not apply in cases where the ruling on the contested point of the 
operative part of the decision depends on a point of the operative part that was not 
contested by the appeal in cassation. 
(2) The Court of Cassation is bound by the grounds of appeal; this does not apply 
in cases where the contested decision was issued in proceedings in which the 
administrative court was not bound by the grounds of appeal. The Court of 
Cassation shall not consider pleas which the party to the proceedings did not raise 
until after the time limit for bringing the appeal in cassation had expired.’ 
Paragraph 454 
‘When examining a case, the Court of Cassation shall base its decision on the 
situation prevailing at the time when the administrative court announced or issued 
the contested decision.’ 
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Relevant national case-law and case-law of the Court of Justice and of the 
European Court of Human Rights (ECtHR) 
a. 
According to national case-law, the principle of lex posterior mitius also applies to 
the imposition of administrative penalties, if this is more favourable to the 
perpetrator of an administrative offence; this also applies when the change in the 
legal regulation occurred after the administrative decision in question became 
final. 
judgment of the Najvyšší Správny súd Slovenskej republiky (Supreme 
Administrative Court of the Slovak Republic) of 21 February 2018, 
ECLI:SK:NSSR:2018:8016200465.1, paragraph 79 
judgments of the Supreme Administrative Court of the Slovak Republic of 
25 November 2010, No 5Sž/18/2010, p. 19, and of 4 May 2021, 
ECLI:SK:NSSR:2021:1017200783.1, paragraphs 85 and 88 
judgment of the Supreme Administrative Court of the Slovak Republic of 
5 November 2019, ECLI:SK:NSSR:2019:1015201090.1, paragraphs 72, 73, 76 
and 78 
b. 
According to the Supreme Administrative Court, the case-law of the Court of 
Justice of the European Union does not provide a satisfactory answer to the 
question of the scope of the obligation to apply the principle of lex posterior 
mitius at various stages of the proceedings. The Supreme Administrative Court 
notes that, according to the case-law of the Court of Justice, that obligation applies 
to proceedings until a final decision has been issued, but there is no guidance as to 
what type of national decisions should be regarded as final. 
As regards the application of Article 49(1) of the Charter of Fundamental Rights 
of the European Union to the various stages of national proceedings, depending on 
the period during which the change of law in favour of the perpetrator of the 
administrative offence occurred, this has not yet been resolved in the case-law of 
the Court of Justice of the European Union. 
Judgment of the Court of Justice of 6 October 2015, Delvigne, C-650/13, 
EU:C:2015:648, paragraph 56, and order of 16 June 2021, Crédit agricole v ECB, 
C-456/20 P to C-458/20 P, EU:C:2021:502, paragraphs 27 and 65 
judgment of the ECtHR of 17 September 2009, Scoppola v. Italy, 
CE:ECHR:2009:0917JUD001024903, §§ 108 and 109 
judgment of the ECtHR of 12 January 2016, Gouarré Patte v. Andorra, 
CE:ECHR:2016:0112JUD003342710, §§ 28 and 32 to 35 
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judgment of the ECtHR of 27 September 2011, A. Menarini Diagnostics S.R.L. v. 
Italy, CE:ECHR:2011:0927JUD004350908, §§ 64 to 66 
judgment of the ECtHR of 21 February 1984, Öztürk v. Germany, 
CE:ECHR:1984:0221JUD000854479, § 56 
judgment of the ECtHR of 2 September 1998, Lauko v. Slovakia, 
CE:ECHR:1998:0902JUD002613895, §§ 63 and 64 
Succinct presentation of the facts and procedure in the main proceedings 
1 By decision of the administrative body of first instance of 8 December 2016, the 
first of the appellants in cassation, T.T., was found guilty of the commission of an 
offence under point 1 of Paragraph 38(1)(a) of Law No 462/2007, 1 which he 
allegedly committed by, on 4 November 2015, driving a vehicle belonging to the 
other appellant in cassation, BAJI Trans s. r. o., which was for the carriage of 
concrete and was fitted with recording equipment which had not passed a 
technical check since 25 June 2015, for which a penalty of EUR 200 was imposed. 
2 By decision of 3 April 2017, the respondent in cassation, the Národný inšpektorát 
práce (National Labour Inspectorate, Slovak Republic), rejected T.T.’s complaint 
and upheld the decision of the body of first instance. 
3 The appellants in cassation brought actions against those administrative decisions 
before the Krajský súd v Bratislave (Regional Court, Bratislava, Slovak Republic) 
[(‘the Regional Court’)]. 
4 By judgment of 27 March 2019, [the Regional Court], acting in its capacity as an 
administrative court, dismissed T.T.’s action and also dismissed BAJI Trans 
s.r.o.’s action on grounds of a lack of legal standing. 
5 Addressing the merits of T.T.’s action, [the Regional Court] stated that the 
obligation to use tachographs in all road transport vehicles had been introduced by 
Article 3 of Regulation No 3821/85, and then also by Paragraph 2(1) of Law 
No 461/2007, subject to the exceptions listed in Article 3 of Regulation 
No 561/2006. However, vehicles for the carriage of concrete were not listed 
among those exceptions. Article 13(1) of Regulation No 561/2006 provides that a 
Member State may grant exceptions from Articles 5 to 9 thereof subject to certain 
conditions. 2 [The Regional Court] pointed out that those exceptions can apply 
only to vehicles used for transport which have been expressly listed in 
Article 13(1) [of that regulation]. Law No 461/2007, which was adopted to 
implement Regulation No 3821/85, did not provide for any exception concerning 
the installation and use of tachographs in vehicles intended for the carriage of 
 
1 In the version in force since 8 December 2016. 
2 These articles concern crews, driving time, breaks and rest periods. 
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concrete, and therefore the obligation to use such recording equipment applies in 
full also to vehicles intended for the carriage of concrete. 
6 The appellants in cassation lodged an appeal in cassation against that judgment 
before the Supreme Administrative Court on 15 July 2019. In the course of the 
proceedings relating to the appeal in cassation, the appellants in cassation lodged, 
on 24 August 2020, a pleading in which they stated that their legal position had 
changed in the light of Regulation 2020/1054. 3 
7 On 1 August 2021, the Supreme Administrative Court commenced its activities 
and initiated proceedings in all cases in which proceedings had been conducted up 
to 31 July 2021 by the správne kolégium (administrative college) of the Najvyšší 
súd Slovenskej republiky (Supreme Court of the Slovak Republic). The case was 
then assigned to the Fifth Three-Member Chamber of the Supreme Administrative 
Court, which concluded that the conditions for referring the case to the Grand 
Chamber of the Supreme Administrative Court were satisfied, as it wished to 
depart from the opinion of the First Three-Member Chamber of that court. While 
the First Three-Member Chamber of the Supreme Administrative Court wishes to 
answer in the affirmative the question of whether the Supreme Administrative 
Court must also apply later legal provisions if these are more favourable to the 
perpetrator of an administrative offence, including where those provisions were 
amended after the announcement or issuing of a decision by a lower 
administrative court, the Fifth Three-Member Chamber of the Supreme 
Administrative Court is of the view that, given the nature of the appeal in 
cassation and the principle according to which the decision of the lower 
administrative court which has already acquired the force of res judicata is 
reviewed, the answer to that question must be in the negative. 
8 The case is currently before the Grand Chamber of the Supreme Administrative 
Court, which is tasked with adopting an interpretation of the relevant legal 
provisions (scope of the principle of lex posterior mitius), which will then be 
binding on all three-member chambers of the Supreme Administrative Court. 
The essential arguments of the parties in the main proceedings 
9 In the present case, the appellants in cassation did not raise any pleas before [the 
Regional Court] relating to the factual grounds on the basis of which T.T. had 
been found guilty of the commission of an offence, but challenged the finding of 
guilt of commission of an offence and the imposition of a penalty on the ground 
that no offence had been committed, because the vehicle for the carriage of 
 
3 Regulation (EU) 2020/1054 of the European Parliament and of the Council of 15 July 2020 
amending Regulation (EC) No 561/2006 as regards minimum requirements on maximum daily 
and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation 
(EU) No 165/2014 as regards positioning by means of tachographs, which amends, inter alia, 
Article 13(1) by supplementing it with points (q) and (r). 
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concrete at issue had to be excluded from the list of vehicles required to use 
recording equipment (tachographs). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
1. 
10 The Supreme Administrative Court is ruling on a case, based on an administrative 
appeal and a subsequent appeal in cassation, in which it is reviewing the decision 
of the respondent in cassation in which it upheld a decision which found the 
appellant in cassation T.T. guilty of the commission of an offence under national 
law and as a result of which a fine of EUR 200 was imposed. T.T. argued that 
during the deliberations on the appeal in cassation, the national laws were 
changed, as a result of which the action he had performed had ceased to be against 
the law and that that action should therefore be subject to national law pursuant to 
Article 50(6) of the Constitution [of the Slovak Republic]. 
11 As regards the first question referred for a preliminary ruling, the Supreme 
Administrative Court notes that the same principle follows from Article 49(1) of 
[the Charter of Fundamental Rights of the European Union (‘the Charter’)]. In the 
present case, it is the scope of that principle which is at issue, that is, its 
applicability at the various stages of the administrative and judicial proceedings at 
national level. 
12 In accordance with Article 267(1)(a) TFEU, the Court of Justice has jurisdiction 
to give preliminary rulings on questions concerning the interpretation of the 
Treaties. Since, in accordance with Article 6(1) TEU, the Charter has the same 
legal force as the Treaties, the Court of Justice therefore also has jurisdiction to 
interpret the Charter itself. It follows that the Court of Justice has jurisdiction to 
interpret Article 51(1) of the Charter, which is necessary for assessing when 
Member States are implementing Union law and thus when the provisions of the 
Charter are applicable to them. The interpretation of the provision relied upon is 
decisive in the present case in the context of Article 49(1) of the Charter, as that 
provision may be applied by the Supreme Administrative Court only if the 
proceedings pending before it are considered as concerning a situation in which a 
Member State is implementing Union law. 
13 In the present case, the national laws were adopted in order to transpose the 
regulations 4 concerned, along with both the obligations established by those 
regulations and the penalties resulting from a failure to fulfil them. According to 
the Supreme Administrative Court, the administrative body acting as the 
respondent in cassation was implementing Union law within the meaning of 
Article 51(1) of the Charter when deciding on the guilt and penalty for the 
offence. However, the Supreme Administrative Court believes that the Court of 
 
4 Regulation No 3821/85 and subsequent Regulation No 165/2014. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 16. 8. 2023 – CASE C-544/23 
 
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Justice needs to explicitly confirm that the case falls within the scope of EU law 
and that it concerns the implementation of that law within the meaning of 
Article 51(1) of the Charter. If this is not the case, the referring court wishes to 
know the reasons for the differing interpretation. 
2. 
14 With regard to the second question referred for a preliminary ruling, the Supreme 
Administrative Court refers to the case-law of the ECtHR according to which any 
case of criminal prosecution should be examined in accordance with Article 6(1) 
of the European Convention for the Protection of Human Rights and Fundamental 
Freedoms (‘the Convention’). However, the referring court additionally points out 
that it is acceptable to assume that another body may rule on such prosecution, 
provided, however, that the decision of that other body is subject to review by a 
court which meets the requirements of Article 6 of the Convention and has full 
cognisance of the case, including the ability to assess the proportionality of the 
penalty imposed. 
15 The Supreme Administrative Court assumes that, in order to comply with the 
requirements of Article 6(1) of the Convention in the context of the determination 
by administrative bodies of guilt and penalties for administrative offences, those 
bodies, given that their adjudication in this regard is exceptional, are required to 
apply the principle of lex posterior mitius. 
16 The Supreme Administrative Court therefore considers it necessary to obtain 
express confirmation from the Court of Justice that, in accordance with 
Article 49(1) of the Charter, the principle of lex posterior mitius should also apply 
to administrative bodies and is therefore also applicable in the context of the 
judicial review of administrative proceedings. 
3. 
17 By its third and fourth questions, which have been referred subject to an 
affirmative answer to the two previous questions, the Supreme Administrative 
Court is asking the Court of Justice for guidance as to whether it must take 
account of lex mitius (law more favourable to the perpetrator) which has been 
enacted after the decision of a lower administrative court has been announced and 
is final. The referring court emphasises that this issue is also disputed between the 
various chambers of the Supreme Administrative Court, which is why the case 
was referred to the Grand Chamber of that court. 
18 The referring court therefore needs to determine whether the principle of lex 
posterior mitius is limited by the stage of the proceedings or whether the court 
seised is required to apply it at any stage of the proceedings. At the same time, the 
[referring] court draws attention to the fact that, in the case of lex mitius (law more 
favourable to the perpetrator) which has been enacted only after the decision of 
the lower administrative court has become final, the appellant in cassation could 
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not raise in the pleading containing his application (appeal in cassation), a plea of 
lex posteriori mitius on factual grounds, as it could lead to a situation where the 
lex mitius (law more favourable to the perpetrator) is adopted after the expiry of 
the time limit for bringing an appeal in cassation, and the expiry of that time limit 
makes it impossible to submit new pleas in cassation. It should be added that an 
appeal in cassation is an extraordinary remedy, because it is directed against a 
final decision of a lower administrative court. 
19 According to the Supreme Administrative Court, Article 49(1) of the Charter is, 
however, liable to render the abovementioned national rules of procedure 
inapplicable and it has therefore decided to refer the questions at issue to the Court 
of Justice for a preliminary ruling. The [referring] court considers that the 
interpretation of Article 49(1) of the Charter is open to dispute and may be the 
subject of debate, adding that the issue has not yet been interpreted by the Court of 
Justice. 
20 The Supreme Administrative Court is therefore uncertain whether, under 
Article 49(1) of the Charter, the principle of lex posterior mitius may be applied in 
all ongoing administrative or judicial proceedings or whether, on the contrary, that 
principle should be considered only at certain stages and, further, is uncertain as to 
the criteria by which such a stage should be defined. Specifically, the Supreme 
Administrative Court would like to determine to what extent Article 49(1) of the 
Charter requires that the principle of lex posterior mitius should also be applied in 
the context of proceedings relating to an appeal in cassation.