Opinion of the Advocate General — ECLI:EU:C:2017:201
Date: 2017-03-09
Language of the case: German
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

summary procedure, and conducted by the same judges who had been the subject of the applicant’s criticisms in open court. The prosecution was undertaken by the judges themselves. The Strasbourg Court held that the confusion of roles could self-evidently prompt objectively justified fears as to the impartiality of the court which conducted the proceedings. (52) 64. The second case is Ozerov v. Russia. (53) There, the applicant had been convicted of a criminal offence by a first instance court. Throughout the trial, no representative of the prosecution was present, although the participation of the State prosecutor had been ordered. The procedure in question was adversarial and, under the domestic law as in force at the relevant time, the prosecution was required to be present at the trial if so ordained. Had the prosecutor been present, he would have taken part in the examination of the evidence and made submissions. The Strasbourg Court held that the national court had confused the roles of prosecutor and judge and had accordingly given grounds for legitimate concerns as to its impartiality. (54) 65. The third case relied on by the referring court is Karelin v. Russia. (55) The applicant was convicted of an administrative offence and appealed against that conviction. No representative of the prosecution was present either at first instance or on appeal. The trial judge had modified the charges against the applicant during the course of the hearing. The Strasbourg Court noted that, in the absence of the prosecutor, the trial court had no choice but to bear the burden not only of presenting but also of supporting the accusation against the applicant during the hearing. It found that the lack of a prosecuting party at both first instance and appeal level had infringed the requirement as to impartiality. (56) 66. In reaching that conclusion, the Strasbourg Court carried out a full review of its case-law relating to the fear of partiality that may arise in the public prosecutor’s absence from court hearings. It did so without making any particular distinction between adversarial and inquisitorial proceedings. (57) The Court also considered issues that might arise by reason of the fact that a case was being heard on appeal rather than at first instance. It held that the situation might be different on appeal, in particular where only points of law were at issue, and that the prosecution’s role might therefore be perceived as ‘less compelling’. It went on to add, however, that the impartiality requirement must nevertheless be observed at that stage. (58) The Strasbourg Court also observed that, where an oral hearing is judged opportune for the judicial determination of a criminal charge against an accused, the presence of a representative of the prosecuting authority ‘is, as a rule, appropriate in order to avoid legitimate doubts that may otherwise arise as to the impartiality of the court’. (59) 67. I do not discern a single thread that joins all of these observations together apart from the overriding requirement that the judicial body called upon to determine the accused’s guilt, whether it be at first instance or on appeal, must be seen – viewed objectively – to be both independent and impartial. I do not see, in other words, that any hard and fast rules can be laid down as regards the presence of the prosecution in these types of proceedings, save to note the Strasbourg Court’s overriding observation that it is, as a rule, ‘appropriate’. Whilst that statement was made in the context of a hearing at first instance and proceedings before a court such as the referring court here are classified as being on appeal, the nature of those proceedings under national law is such that it appears to be the first occasion on which a full judicial determination of the issues will occur. Moreover, the reason for holding a hearing is to enable a dialogue to take place between the parties to the action and, through that dialogue, to ensure that the court is better informed. If the prosecution is not present, that dialogue cannot take place, or take place in full. (60) 68. I would add that, because the overriding requirement is that of independence and impartiality, where there is any doubt as to the matter the national court called upon to give a ruling must give priority to ensuring that that requirement is satisfied. Should that mean, in any given case, that the national court must refrain from raising an issue that might benefit the prosecution to the detriment of the accused, then so be it. Let me also emphasise that it cannot in any circumstances be the duty of a court in a position such as that of the referring court to substitute itself for the Member State in setting out the justification which it is the duty of the latter to provide in terms of paragraph 50 of the judgment in Pfleger and Others. (61) Should such a justification not be supplied (as will be the case with any other instance where the prosecution, through absence or passivity or otherwise, fails to fulfil a duty incumbent on it), the national court may draw all inferences that are appropriate by reason of such failure. Conclusion 69. I therefore suggest that the Court should answer the question referred by the Landesverwaltungsgericht Oberösterreich (Upper Austria Regional Administrative Court) as follows: ‘Where the legislation of a Member State seeks to derogate from a fundamental freedom of the European Union, including the freedom to provide services under Article 56 TFEU and the freedom of establishment under Article 49 TFEU, neither Article 6 of the European Convention for the Protection of Fundamental Rights and Freedoms nor Article 47 of the Charter of Fundamental Rights of the European Union preclude a national rule according to which, in the case of administrative offence proceedings, the court or tribunal having jurisdiction to rule on the validity of that derogation in the light of EU law is required to investigate offences ex officio. However, it is for the Member State seeking to rely on the derogation to put forward the justification for the measure concerned so that the party charged with the offence is aware of the nature thereof and the court or tribunal in question can evaluate it and give a ruling. In that context, the following additional matters may also be relevant: – in reaching its decision on the matter, that court or tribunal is entitled to have access, should it so require, to experts who are independent and impartial; – whilst there is no general rule which requires the presence of a representative of the prosecuting authority at proceedings before the court or tribunal in question, such presence is, as a rule, appropriate in order to avoid legitimate doubts that may otherwise arise as to the impartiality of that court or tribunal. 1 – Original language: English. 2 – Signed in Rome on 4 November 1950. 3 – I should point out that the Law on games of chance appears to concern a general derogation from the freedom of establishment and the freedom to provide services. As such, it does not provide for ‘special treatment for foreign nationals’. Since, however, the national legislation at issue in this case is the same as the legislation at issue in Pfleger and Others (judgment of 30 April 2014, C‑390/12, EU:C:2014:281) and since this case concerns procedural questions arising out of the interpretation of that legislation by the national administrative courts, I do not consider it necessary to address that point further. 4 – See footnote 19 below. 5 – Judgment of 30 April 2014, C‑390/12, EU:C:2014:281. 6 – See further point 33 below. 7 – See point 49 et seq. of my Opinion in that case (C‑390/12, EU:C:2013:747) for an analysis of the restrictions on the freedom to provide services which that law entails. 8 – See, inter alia, point 14 above and points 40 and 58 et seq. below. 9 – Judgment of 18 May 2010, CE:ECHR:2010:0518JUD006496201. 10 – See also, as regards the admissibility of an order for reference in a situation where there are differing views between national courts as to the interpretation of a decision of this Court, order of 15 October 2015, Naderhirn, C‑581/14, not published, EU:C:2015:707. 11 – See, inter alia, judgment of 22 June 2010, Melki and Abdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27 and the case-law cited. 12 – See, for example, judgment of 25 March 2004, Azienda Agricola Ettore Ribaldi and Others, C‑480/00, C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00, EU:C:2004:179, paragraph 74. 13 – C‑390/12, EU:C:2013:747. 14 – See also, in that regard, judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 36. 15 – See, inter alia, judgment of 20 December 2001, Baischer v. Austria, CE:ECHR:2001:1220JUD003238196, paragraph 22. 16 – See decision of the Strasbourg Court of 4 July 2002, Weh and Weh v. Austria, CE:ECHR:2002:0704DEC003854497. 17 – Judgment of 30 April 2014, C‑390/12, EU:C:2014:281. 18 – See paragraph 56 and the operative part of the judgment. 19 – The precise relationship of the facts of the main proceedings with the freedom of establishment is not made entirely clear by the order for reference. I assume, however, that it concerns the involvement of the Slovak company referred to in point 18 above. 20 – Judgment of 30 April 2014, C‑390/12, EU:C:2014:281. 21 – See, as regards the Unabhängiger Verwaltungssenat (Independent Administrative Tribunal), as the predecessor of the current Landesverwaltungsgericht (Regional Administrative Court), decision of the Strasbourg Court of 4 July 2002, Weh and Weh v. Austria, CE:ECHR:2002:0704DEC003854497. The Austrian Government confirmed at the hearing that the Landesverwaltungsgericht (Regional Administrative Court) occupies a similar position. 22 – See point 14 above. 23 – That, at least, is the position as recorded in the Austrian Government’s written observations. As regards the Unabhängiger Verwaltungssenat (Independent Administrative Tribunal), as the predecessor of the current Landesverwaltungsgericht, see decision of the Strasbourg Court of 4 July 2002, Weh and Weh v. Austria, CE:ECHR:2002:0704DEC003854497. In its observations relating to that case, the referring court indicates that paragraph 51d of the Verwaltungsstrafgesetz (Law on administrative offences) on which the Strasbourg Court based its analysis has been repealed without being replaced. I note, however, that the Minute of Proceedings of the referring court for the Online Games case, which form part of the national case file submitted to this Court, include a reference to the Police Directorate as the respondent authority (belangte Behörde), under the observation that no representative of that authority had participated at the hearing and that no reason had been given for such failure. 24 – Judgment of 30 April 2014, C‑390/12, EU:C:2014:281. 25 – I use this term to denote a form of procedure whereunder the parties develop and present their arguments and gather and submit their evidence, thereby, within certain rules, controlling the proceedings. The fact-finder, in the form of a judge or jury, remains neutral or passive throughout. I do not use it in the broader sense sometimes used by the Strasbourg Court, in order to denote a procedure which ensures equality of arms (see, for example, judgment of 16 February 2000, Rowe and Davis v. United Kingdom, CE:ECHR:2000:0216JUD002890195, paragraph 60). 26 – See points 14 and 36 above. 27 – Although that expression is used in the order for reference and also appears in the Austrian Government’s written observations, the Austrian Government’s representative at the hearing appeared to cast some doubt on its appropriateness in the context of the Austrian system at issue in the main proceedings. I should therefore emphasise that I use the expression descriptively rather than as a term of art. 28 – See Armenta-Deu, T., ‘Beyond Accusatorial or Inquisitorial Systems: a Matter of Deliberation and Balance’, in Visions of Justice, Ackerman, B., Ambos, K. and Sikirić, H., editors, Duncker & Humboldt, Berlin, 2016, pp. 57 to 75. 29 – These comprise judgments of 15 December 2005, Kyprianou v. Cyprus, CE:ECHR:2005:1215JUD007379701, paragraphs 118, 121 and 126 to 128; of 18 May 2010, Ozerov v. Russia, CE:ECHR:2010:0518JUD006496201, paragraphs 51 to 54; and of 20 September 2016, Karelin v. Russia, CE:ECHR:2016:0920JUD000092608. The last of these was delivered after the date of the order for reference; it was submitted separately by the referring court. 30 – These comprise the Opinion of Advocate General Ruiz-Jarabo Colomer in Kaba, C‑466/00, EU:C:2002:447, point 90 et seq., and the Opinion of Advocate General Cruz Villalón in X, C‑507/10, EU:C:2011:682, point 20 et seq. 31 – See Opinion No 12(2009) of the Consultative Council and European Judges and Opinion No 4(2009) of the Consultative Committee of European Prosecutors (‘the Bordeaux Declaration’), paragraphs 3 and 7. The document can be consulted at http://www.coe.int/t/dghl/cooperation/ccje/textes/avis_EN.asp. 32 – See, in particular, judgment of the Strasbourg Court of 15 December 2005, Kyprianou v. Cyprus, CE:ECHR:2005:1215JUD007379701, paragraph 126. 33 – I should stress that, contrary to what counsel for Online Games submitted at the hearing, I did not suggest in my Opinion in Pfleger and Others, C‑390/12, EU:C:2013:747, that the inquisitorial procedure is contrary to either the ECHR or to EU law. 34 – See point 63 et seq. below. 35 – Judgment of 30 April 2014, C‑390/12, EU:C:2014:281. 36 – See paragraph 52 of the judgment. 37 – See judgments of 8 September 2010, Stoß and Others, C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504, paragraph 71; of 15 September 2011, Dickinger and Ömer, C‑347/09, EU:C:2011:582, paragraph 54; and of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386; paragraph 65. See also judgment of 13 March 2008, Commission v Belgium, C‑227/06, not published, EU:C:2008:160, paragraphs 62 and 63 and the case-law cited. 38 – Judgment of 30 April 2014, C‑390/12, EU:C:2014:281. 39 – Emphasis added. 40 – I should make it clear that, in referring in this context to a ‘Member State’, I do not mean that it is that Member State’s government itself that need necessarily provide the necessary justification. That justification must, however, be put forward by a party representing that Member State or having its authority to do so. 41 – See point 68 below. 42 – See in that regard, inter alia, judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 37. 43 – It is this Court’s settled case-law that, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law (see to that effect, inter alia, judgment of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 47}. 44 – See point 40 above. 45 – When questioned at the hearing on that point, the Austrian Government’s representative did not deny that this was the position, preferring instead to focus on the referring court’s duty to have regard to all relevant circumstances. 46 – See, inter alia, judgment of 15 December 2005, Kyprianou v. Cyprus, CE:ECHR:2005:1215JUD007379701, paragraphs 118 and 119. I should emphasise for the avoidance of doubt that there is no suggestion in the present case that any element of the subjective element of those tests is involved. 47 – In German, ‘Erläuterungen’. 48 – Judgment of 30 April 2014, C‑390/12, EU:C:2014:281. 49 – See judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 56 and operative part. 50 – See further footnote 23 in fine. 51 – Judgment of 15 December 2005, CE:ECHR:2005:1215JUD007379701. 52 – See paragraphs 127 and 128 of the judgment. 53 – Judgment of 18 May 2010, CE:ECHR:2010:0518JUD006496201. 54 – See paragraphs 52 to 55 of the judgment. 55 – Judgment of 20 September 2016, CE:ECHR:2016:0920JUD000092608. As indicated in footnote 29 above, the judgment was submitted separately by the referring court. 56 – See paragraph 84 of the judgment. 57 – See paragraph 53 et seq. of the judgment. 58 – See paragraphs 81 and 83 of the judgment. 59 – See paragraph 76 of the judgment. 60 – The Austrian Government places great emphasis in its written observations on the fact that, in cases such as the main proceedings, the function of the prosecuting authority is assumed by the administrative authority which issued the administrative penalty (see point 36 above). There is therefore no confusion between the roles of the prosecution and the court. I would observe that, in assessing the strength of that point, there is an inevitable correlation between the degree to which that authority plays an active part in any proceedings as opposed to a purely passive one. 61 – Judgment of 30 April 2014, C‑390/12, EU:C:2014:281. See point 51 et seq. above.