Opinion of the Advocate General — ECLI:EU:C:2020:9
Date: 2020-01-16
Language of the case: German
Subject matter: Citizenship of the Union;Right of entry and residence;Right of establishment;Approximation of laws;Freedom to provide services;Judicial cooperation in criminal matters;Free movement of workers;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

summary and simplified nature of the proceedings which gave rise to the penalty order at issue in the main proceedings, the service of an order of that kind is effected only after the court has ruled on the merits of the accusation. 46 However, the Court has held that, in an order of that kind, the court rules only provisionally and that the service of that order represents the first opportunity for the accused person to be informed of the accusation made against him, which is confirmed by the fact that that person is entitled to bring, not an appeal against that order before another court, but an objection making him eligible, before the same court, for the ordinary inter partes procedure, in which he can exercise in full his rights of defence, before that court rules again on the merits of the accusation made against him (see, to that effect, judgment of 15 October 2015, Covaci, C‑216/14, EU:C:2015:686, paragraph 60). 47 Consequently, in accordance with Article 6 of Directive 2012/13, the service of an order of that kind must be considered to be a form of communication of the accusation made against the accused person, with the result that it must comply with the requirements set out in that article (judgment of 15 October 2015, Covaci, C‑216/14, EU:C:2015:686, paragraph 61). 48 Secondly, the Court has also held that Directive 2012/13 does not regulate the procedures whereby information about the accusation, provided for in Article 6 of that directive, must be provided to the accused person and that that article therefore does not, in principle, preclude the accused person who does not reside in the Member State concerned from being required, in criminal proceedings, to appoint a person authorised to accept service of an order such as that at issue here in the main proceedings (see, to that effect, judgment of 15 October 2015, Covaci, C‑216/14, EU:C:2015:686, paragraphs 62 and 68). 49 However, it also follows from the Court’s case-law that the procedures for communicating information about the accusation, which are determined by the law of the Member States, cannot undermine the objective referred to in, inter alia, Article 6 of Directive 2012/13, which, as is also apparent from recital 27 of that directive, consists in enabling suspects or persons accused of having committed a criminal offence to prepare their defence and in safeguarding the fairness of the proceedings (see, to that effect, judgments of 15 October 2015, Covaci, C‑216/14, EU:C:2015:686, paragraph 63, and of 22 March 2017, Tranca and Others, C‑124/16, C‑188/16 and C‑213/16, EU:C:2017:228, paragraph 38). 50 Such an objective, like the need to avoid any kind of discrimination between, on the one hand, accused persons who are resident within the jurisdiction of the national law concerned and, on the other, accused persons who are not resident within that jurisdiction, who alone are required to appoint a person authorised to accept service of judicial decisions, requires that the whole of the two-week period, recognised by national law, for lodging an objection against an order such as that at issue in the main proceedings should be available to the accused person (see, to that effect, judgments of 15 October 2015, Covaci, C‑216/14, EU:C:2015:686, paragraph 65, and of 22 March 2017, Tranca and Others, C‑124/16, C‑188/16 and C‑213/16, EU:C:2017:228, paragraph 40). 51 Accordingly, from the date on which he actually becomes aware of such an order, the accused person must, so far as possible, be placed in the same situation as if that order had been served on him personally and he must, in particular, have the benefit of the whole of the prescribed period for lodging an objection (see, to that effect, judgment of 22 March 2017, Tranca and Others, C‑124/16, C‑188/16 and C‑213/16, EU:C:2017:228, paragraph 47). 52 In that regard, while it is true that an order such as that at issue in the main proceedings becomes final in the case where the accused person does not lodge an objection against that order within a period of two weeks, which starts when the order is served on the person authorised to accept service on his behalf, and not when the accused person actually becomes aware of it, the fact remains that, as the referring court states, Paragraphs 44 and 45 of the StPO provide for a procedure for restoration of the status quo ante which allows the force of res judicata to be removed from the order and for an opposition to be lodged against it, notwithstanding the fact that the initial period for lodging an objection has expired. 53 In those circumstances, it is necessary to examine, thirdly, whether the procedure for the restoration of the status quo ante, provided for in national law, and the conditions to which the exercise of that procedure is subject under that law, are consistent with the requirements laid down in Article 6 of Directive 2012/13 and, in particular, whether they allow the person concerned to have the de facto benefit of the two-week period within which to lodge an objection against the penalty order to which he is subject, starting from the point in time at which the accused person actually became aware of that order. 54 In that regard, it should be noted, first of all, that, in the light of the information in the order for reference and the hearing before the Court, it cannot be ruled out that, in a situation such as that at issue in the main proceedings, the relevant national law requires the accused person to lodge an objection against the penalty order within one week of actually becoming aware of that order. It appears that Paragraph 45 of the StPO may be interpreted as meaning that the objection must be lodged within the one-week period that that provision lays down for the submission of an application for restoration of the status quo ante. 55 Such an obligation, assuming it to be established, would be contrary to Article 6 of Directive 2012/13 since it would have the result of reducing by half the duration of the period for lodging an objection which must be accorded to the accused person, in accordance with the findings made in paragraphs 50 and 51 of the present judgment, starting from the point in time at which he actually became aware of the penalty order concerning him. 56 It must also be noted that, according to the referring court, the accused person may submit an application for restoration of the status quo ante only if he is able to prove that he has contacted the person authorised to accept service on his behalf without undue delay as to whether there was an order concerning him. 57 An obligation of that kind is, however, equally incompatible with the requirements resulting from Article 6 of Directive 2012/13. As the Advocate General has observed, in essence, in point 61 of his Opinion, it follows from the wording of that provision and its general scheme and from the objective pursued by that directive that it is for the authorities of the Member States to inform accused persons of the matters alleged against them and that those persons cannot be expected to seek information, without undue delay, regarding any developments in the criminal proceedings which concern them. 58 Lastly, the referring court notes that the application for restoration of the status quo ante does not have suspensory effect. 59 In so far as it appears to follow from Paragraph 44(2) of the StGB that, so long as the period for lodging an objection has not expired, the driving ban attached to an order such as that at issue in the main proceedings has no effect – this, however, being a matter for the referring court to establish – it follows from what has been stated in paragraph 51 of the present judgment that Article 6 of Directive 2012/13 requires that that driving ban should also be suspended during the two-week period which starts when the person concerned actually becomes aware of the order concerning him and during which that person must be able to lodge an objection against that order. 60 It follows that Article 6 of Directive 2012/13 does not preclude legislation of a Member State under which the two-week period for lodging an objection against an order such as that at issue in the main proceedings begins to run from the date on which that order is served on the person appointed by the subject of the penalty order to accept service on his behalf, provided that, as soon as the person concerned becomes aware of it, he actually has a period of two weeks in which to lodge an objection against that order, where necessary following or in the course of a procedure for the person’s position to be restored to the status quo ante, without having to demonstrate that he has taken the necessary steps to seek information without undue delay from the person authorised to accept service on his behalf as to the existence of that order, and the effects of that order are suspended during that period. 61 In the second place, it is necessary to examine whether Article 6 of Directive 2012/13 precludes the possibility of a person being convicted for having breached a driving ban at a time when the order imposing that ban had the force of res judicata, in the case where, on that date, that person was unaware of the existence of that order. 62 In that regard, it should be recalled, first, that the right established in Article 6 of Directive 2012/13 seeks to safeguard the effective exercise of the rights of defence of accused persons or suspects. The effectiveness of that right would therefore be seriously compromised if it were possible to rely on a penalty order, such as that at issue in the main proceedings, in order to find that the same person has committed a new offence, at a time when, unless he has been informed of the first set of criminal proceedings brought against him, that person has not yet been able to challenge the merits of that accusation. 63 It follows that Article 6 of Directive 2012/13 precludes the possibility of a person being convicted for failure to comply with an order such as that at issue in the main proceedings even though he was not sent that order, in accordance with the requirements set out in that provision, and, where appropriate, he was not able to dispute the facts alleged against him in that order, in accordance with the legal remedies established by the law of the Member State concerned and in compliance with EU law. 64 As stated in paragraph 57 of the present judgment, it would be contrary to Article 6 of Directive 2012/13 to require the person concerned to ensure that he initiates the necessary contact with the person authorised to accept service on his behalf in order to ascertain whether that person has forwarded to him correctly the penalty order concerning him. 65 Accordingly, Article 6 of Directive 2012/13 must be interpreted as meaning that it precludes a person being convicted on account of not being aware of an order, such as that at issue in the main proceedings, on a date on which it cannot be established that the competent national authorities ensured that he had actually been made aware of the contents of that order. 66 This interpretation of Article 6 of Directive 2012/13 also applies where the penalty order has become final at the time when the person who is the subject of that order is assumed to have infringed it, even if, from the moment at which that person became aware of that order, he did not initiate a procedure for restoration of the status quo ante seeking to remove the force of res judicata from that order. 67 Such an interpretation does not undermine compliance with the principle of res judicata. It is sufficient to note in this regard that the force of res judicata accorded to the order imposing a driving ban on a person is not infringed simply because the failure of that person to comply with that ban does not necessarily lead to the imposition of a new criminal penalty. 68 Secondly, it should be noted that the principle of the primacy of EU law, which establishes the pre-eminence of EU law over the law of the Member States, requires all Member-State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (see, to that effect, judgments of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 53 and 54, and 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, paragraphs 157 and 158). 69 In that regard, it should, inter alia, be pointed out that the principle that national law must be interpreted in conformity with EU law, by virtue of which the national court is required, to the greatest extent possible, to interpret national law in conformity with the requirements of EU law, is inherent in the system of the Treaties, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of EU law when it determines the dispute before it. Moreover, any national court, hearing a case within its jurisdiction, has, as a body of a Member State, the obligation to disapply any provision of national law which is contrary to a provision of EU law having direct effect in the case pending before it (judgments of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 55 and 61, and 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, paragraphs 159 and 161). 70 Thirdly, it should be noted that, as stated, in essence, in recitals 14 and 41 of Directive 2012/13, that directive builds on the rights laid down in, inter alia, Article 47 of the Charter of Fundamental Rights (‘the Charter’) and seeks to promote those rights (see, to that effect, judgment of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 88). 71 In particular, as has been stated in paragraph 49 of the present judgment, the objective of Article 6 of that directive is to guarantee the effective exercise of the rights of the defence and the fairness of the proceedings. A provision of that kind therefore expressly establishes one aspect of the right to an effective remedy, enshrined in Article 47 of the Charter. 72 It follows that, like Article 47 of the Charter, which is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such, Article 6 of Directive 2012/13 must be regarded as having direct effect (see, by analogy, 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, paragraphs 162 and 163). 73 Consequently, it is for the referring court, within the limits of its jurisdiction, to take all necessary measures to guarantee the full effectiveness of Article 6 of that directive. 74 As set out in paragraphs 62 and 63 of the present judgment, the effectiveness of Article 6 of Directive 2012/13 would be seriously compromised if a person were to be convicted on the ground that he had breached a ban imposed by a penalty order, such as that at issue in the main proceedings, which was not communicated to him in accordance with the requirements set out in that article. 75 In those circumstances, it is for the referring court, within the limits of its jurisdiction, to interpret its national law, as far as possible, in a manner that preserves the effectiveness of Article 6 of Directive 2012/13 and, failing that, to disapply any provision of national law which might be contrary to it. 76 It must be added that the German Government has stated before the Court that it was possible to adopt an interpretation of national law in conformity with the requirements of Article 6 of Directive 2012/13, in respect of the obligation on an accused person who is not resident within national territory to exercise due diligence, this, however, being a matter for the referring court to ascertain. 77 It follows from all of the foregoing considerations that Article 6 of Directive 2012/13 must be interpreted as meaning that: – it does not preclude legislation of a Member State under which the two-week period for lodging an objection against an order which has imposed a driving ban on a person begins to run from the date on which that order is served on the person authorised to accept service on that person’s behalf, provided that, as soon as that person becomes aware of it, he actually has a period of two weeks in which to lodge an objection against that order, where necessary following or in the course of a procedure for the person’s position to be restored to the status quo ante, without having to demonstrate that he took the necessary steps to seek information without undue delay from the person authorised to accept service on his behalf as to the existence of that order, and the effects of that order are suspended during that period, – it precludes legislation of a Member State under which a person residing in another Member State incurs a criminal penalty if, from the date on which it acquires the force of res judicata, that person does not comply with an order which has imposed a driving ban on him, even though that person was unaware of the existence of that order on the date on which he breached the driving ban resulting from that order. 78 In the light of the foregoing considerations, there is no need to examine whether the other provisions of EU law mentioned by the referring court preclude national legislation such as that at issue in the main proceedings. Costs 79 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fifth Chamber) hereby rules: Article 6 of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings must be interpreted as meaning that: – it does not preclude legislation of a Member State under which the two-week period for lodging an objection against an order which has imposed a driving ban on a person begins to run from the date on which that order is served on the person authorised to accept service on that person’s behalf, provided that, as soon as that person becomes aware of it, he actually has a period of two weeks in which to lodge an objection against that order, where necessary following or in the course of a procedure for the person’s position to be restored to the status quo ante, without having to demonstrate that he took the necessary steps to seek information without undue delay from the person authorised to accept service on his behalf as to the existence of that order, and the effects of that order are suspended during that period, – it precludes legislation of a Member State under which a person residing in another Member State incurs a criminal penalty if, from the date on which it acquires the force of res judicata, that person does not comply with an order which has imposed a driving ban on him, even though that person was unaware of the existence of that order on the date on which he breached the driving ban resulting from that order. [Signatures] * Language of the case: German. i The wording of the headwords of this document has been amended since it was first put online.