Judgment;Abstract — ECLI:EU:C:2023:498
Date: 2023-06-22
Language of the case: French
Court formation: Grand Chamber
Subject matter: Justice and home affairs;Approximation of laws;Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: France

Anonymised version 
Translation C-660/21 – 1 
Case C-660/21 
Request for a preliminary ruling 
Date lodged: 
29 October 2021 
Referring court: 
Tribunal correctionnel de Villefranche-sur-Saône (France) 
Date of the decision to refer: 
26 October 2021 
Applicant: 
Procureur de la République 
Defendant: 
K.B. 
F.S. 
  
Cour d’appel de Lyon (Court of Appeal, Lyon) 
Tribunal judiciaire de Villefranche-sur-Saône (Court of Villefranche-sur-
Saône) 
… 
JUDGMENT IN A CRIMINAL MATTER 
At the public hearing at the Tribunal Correctionnel de Villefranche-sur-Saône 
(Criminal Court, Villefranche-sur-Saône) on the TWENTY-SIXTH DAY OF 
OCTOBER TWO THOUSAND AND TWENTY-ONE, 
… 
EN 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2021 – CASE C-660/21 
 
2  
Anonymised version 
the case was called 
BETWEEN: 
THE PROCUREUR DE LA REPUBLIQUE (PUBLIC PROSECUTOR), at that 
Court, applicant and prosecutor, 
AND 
The accused 
K.B. 
… 
Charged with: 
THEFT IN COLLUSION in respect of offences committed at 22.25 on 22 March 
2021 in VILLEFRANCHE SUR SAÔNE 
The accused  
F.S. 
… 
Charged with: 
THEFT IN COLLUSION, HAVING COMMITTED PREVIOUS OFFENCES, in 
respect of offences committed at 22.25 on 22 March 2021 in VILLEFRANCHE 
SUR SAÔNE 
PROCEEDINGS 
… 
[Procedural considerations] 
The Court, having deliberated, ruled as follows: 
A summons to appear at the hearing on 26 October 2021 was served on K.B. on 
23 March 2021 by an assistant or senior law enforcement officer on the 
instructions of the Public Prosecutor and he was notified of his right to be assisted 
by a lawyer. In accordance with Article 390-1 of the Code de procédure pénale 
(Code of Criminal Procedure), that summons constitutes a summons in person. 
K.B. has not appeared but is duly represented by his counsel who holds a power of 
attorney; an inter partes judgment should be given in respect of him. 
PROCUREUR DE LA RÉPUBLIQUE 
 
3 
Anonymised version 
He is charged with having, on 22 March 2021 in VILLEFRANCHE SUR SAÔNE 
(RHÔNE), and in any event within national territory and on a date which is not 
time-barred, fraudulently removed diesel fuel to the detriment of the company 
Plattard OLLIER BOIS, the offences having been committed in collusion and 
being provided for in the first paragraph of Article 311-4 and Article 311-1 of the 
Code pénal (Criminal Code) and classified as offences by the first paragraph of 
Article 311-4 and Article 311-14 of the Code pénal. 
A summons to appear at the hearing on 26 October 2021 was served on F.S. on 
23 March 2021 by an assistant or senior law enforcement officer on the 
instructions of the Public Prosecutor and he was notified of his right to be assisted 
by a lawyer. In accordance with Article 390-1 of the Code de procédure pénale, 
that summons constitutes a summons in person. 
F.S., who is currently detained on other grounds, appeared at the hearing by 
video-conference in accordance with Article 706-71 of the Code de procédure 
pénale, assisted, with his agreement, by his counsel; an inter partes judgment 
should be given in respect of him. 
He is charged with having, on 22 March 2021 in VILLEFRANCHE SUR SAÔNE 
(RHÔNE), and in any event within national territory and on a date which is not 
time-barred, fraudulently removed diesel fuel to the detriment of the company 
[Plattard] OLLIER BOIS …, the offences having been committed in collusion and 
constituting repeat offences, since he was convicted by final decision given by the 
Tribunal Correctionnel d’Orléans (Criminal Court, Orléans) on 20 October 2014 
for identical offences or offences of the same nature, being provided for in the 
first paragraph of Article 311-4 and Article 311-1 of the Code pénal and classified 
as offences by the first paragraph of Article 311-4 and Article 311-14 of the Code 
pénal, and having regard to Articles 132-8 to 132-19 of the Code pénal. 
ON THE PRELIMINARY OBJECTION: 
QUESTION REFERRED FOR A PRELIMINARY RULING 
I. FACTS 
1 On the evening of 22 March 2021, two individuals attracted the attention of police 
officers on account of their suspicious presence in a company car park at night. 
They were arrested by assistant law enforcement officers. An assistant law 
enforcement officer questioned the persons known as F.S. and K.B. without any 
notification of their rights having been given. In addition to this first violation of 
the rights of the defence guaranteed by French criminal procedure and EU law, the 
assistant law enforcement officer then called a senior law enforcement officer, 
who arrived at the scene and decided to conduct a vehicle search rather than 
taking the suspects into police custody, notifying them of their rights (including 
their right to remain silent) and informing the prosecutor. During that search, 
incriminating evidence was found and F.S. and K.B. were asked to give further 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2021 – CASE C-660/21 
 
4  
Anonymised version 
explanations. Later, the prosecutor was informed that custodial measures had been 
taken and rights had subsequently been notified. 
2 As a result, investigative measures were carried out and self-incriminating 
statements were recorded in advance of the duty to notify the implicated persons 
of their rights, thus violating the rights of the defence guaranteed by French 
criminal procedure and EU law. 
II NATIONAL PROVISIONS APPLICABLE IN THE PRESENT CASE 
Framework for the investigation and arrest of the accused 
3 The first paragraph of Article 53 of the Code de procédure pénale defines 
investigation of offences committed in flagrante delicto as follows: ‘A crime or 
other offence shall be classified as in flagrante delicto where it is in the course of 
being committed or has just been committed. A crime or other offence shall also 
be so classified where, at a time very close to the act, the person suspected is 
pursued by hue and cry, is found in the possession of items, or has on or about 
him traces or clues so as to give grounds for believing that he has taken part in the 
crime or other offence.’ 
4 Article 73 of the Code de procédure pénale specifies the scope of the police 
custody system, stating that: ‘Where a crime or other offence committed in 
flagrante delicto is punishable by imprisonment, any person shall be entitled to 
apprehend the perpetrator and to take him to the nearest senior law enforcement 
officer. When the person is presented to the senior law enforcement officer, it 
shall not be mandatory to take him into police custody, if the conditions for that 
measure under this Code are met, where he is not required to remain at the 
disposal of the investigators and he has been informed that he may leave the 
police or gendarmerie station at any time. This paragraph shall not be applicable, 
however, if the person has been taken to the senior law enforcement officer under 
compulsion by the police force.’ 
5 In the present case and as is shown by the first police investigation report, the 
police officers opened an investigation of a crime or other offence committed in 
flagrante delicto for theft of fuel at 22.25 on 22 March 2021. The demeanour 
adopted by F.S. and K.B., who attempted to hide from the view of the police 
officers as they busied themselves around a lorry, led the police officers to suspect 
that offences of theft were in progress. Immediately, the police officers found that 
the lorry’s fuel tank was open and jerry cans were nearby. These details confirmed 
and clarified the initial perception as they suggested that it was likely that theft of 
fuel was in progress. F.S. and K.B. were arrested at 22.25 and immediately 
handcuffed to prevent them from absconding. 
6 The end of Article 73 of the Code de procédure pénale states that, in this situation 
of arrest under compulsion by the police force, the senior law enforcement officer 
was required to take F.S. and K.B. into police custody. 
PROCUREUR DE LA RÉPUBLIQUE 
 
5 
Anonymised version 
Provisions relating to immediate notification of rights in connection with police 
custody  
7 Article 63-1 of the Code de procédure pénale states: ‘The person taken into police 
custody shall be informed immediately by a senior law enforcement officer or, 
under the supervision of that officer, by an assistant law enforcement officer, in a 
language understood by him, if necessary using the form provided for in the 
thirteenth paragraph, of: 
1° his being taken into police custody, the duration of the measure and any 
extension(s) which may apply; 
2° the presumed classification, date and place of the offence that he is suspected 
of having committed or attempted to commit and the grounds mentioned in 
Article 62-2(1) to (6) justifying his custody; 
3° the fact that he has: 
- the right to inform a close relative and his employer and, if he is a foreign 
national, the consular authorities of the State of which he is a national and, if 
necessary. to communicate with those persons in accordance with Article 63-2;  
- the right to be examined by a doctor in accordance with Article 63-3; 
- the right be assisted by a lawyer in accordance with Articles 63-3-1 to 63-4-3; 
- if necessary, the right to be assisted by an interpreter; 
- the right to consult, at the earliest opportunity and at the latest before any 
extension of police custody, the documents mentioned in Article 63-4-1; 
- the right to submit observations to the Public Prosecutor or, if appropriate, to the 
judge responsible for matters relating to liberty and detention, where that law 
officer rules on a possible extension of police custody, in order to request that this 
measure be ended. If the person is not brought before the law officer, he may 
present his observations orally in a record of the examination, which shall be 
communicated to the law officer before he rules on the extension of the measure; 
- the right, on being examined, after identifying himself, to make statements, to 
answer the questions which are put to him or to remain silent. 
Where the person is deaf and is unable to read or write, he must be assisted by a 
sign language interpreter or by any person qualified in a language or method 
allowing communication with him. Recourse may also be had to any technical 
means of communication with a deaf person. 
If the person does not understand French, he must be notified of his rights by an 
interpreter, if necessary after he has been provided with a form for his immediate 
information. 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2021 – CASE C-660/21 
 
6  
Anonymised version 
A note of the information provided pursuant to the present article shall be entered 
in the police custody record and signed by the person in custody. In the event of a 
refusal to sign, this shall be noted. 
Pursuant to Article 803-6, a document setting out these rights shall be provided to 
the person upon notification that he has been taken into police custody.’ 
8 The Criminal Chamber has held that, save in unavoidable circumstances, any 
delay in giving notification of rights or informing the Public Prosecutor 
constituted grounds for invalidity of police custody. Cour de cassation, Chambre 
criminelle (Court of Cassation, Criminal Chamber), 24 May 2016, No 16-80.564. 
Police custody. Period prescribed for notifying rights and informing the Public 
Prosecutor. ‘It is apparent from the statements made in the judgment and the 
procedural documents that Mr X. was questioned at his home and immediately 
taken into police custody on 17 November 2015, at 10.30, then, until 10.50, a 
search was carried out at that location, as a result of which the computer of the 
implicated person was seized; on returning to service, between 11.00 and 11.05, 
the senior law enforcement officer notified the person in custody of his rights, then 
informed the Public Prosecutor, as required by law, at 11.15; in declining to 
annul the police custody measure and the subsequent procedure, the judgment 
was based on the grounds given in the plea; however, in making that adjudication, 
when no evidence in the case establishes an unavoidable circumstance to justify 
the decision to defer both the notification of rights to the person concerned and 
the informing of the Public Prosecutor, the Court d’appel misconstrued the 
meaning and scope of the aforementioned provisions and the aforementioned 
principles; it follows that the judgment should be set aside;’ 
9 In the present case, the assistant law enforcement officers questioned F.S. and 
K.B. (page 2 of the first report). They then informed the senior law enforcement 
officer M, who asked them to present the apprehended persons immediately. 
While they should have followed this instruction, the assistant law enforcement 
officers called in another senior law enforcement officer in order to carry out 
further investigative measures, namely the search of the vehicle of F.S. and 
K.B. By doing so, they accordingly delayed the actual taking into police custody 
of F.S. and K.B., the notification of their rights, in particular the rights to silence 
and to be assisted by a lawyer, and the informing of the Public Prosecutor. 
10 At 22.40, the senior law enforcement officer R attended the place where the arrest 
occurred and, rather than giving immediate notification of police custody and of 
rights and informing the Public Prosecutor, he proceeded to search the vehicle of 
F.S. and K.B. and requested explanations from them regarding the items found, 
when F.S. and K.B. had not been notified of their right to silence (second report). 
This search measure was crucial. Incriminating evidence was found, such as caps, 
a funnel and an electric pump. Specifically, the discovery of these items and the 
questions which the investigators asked F.S. and K.B. put in issue their criminal 
liability. By answering the police’s questions, F.S. and K.B. incriminated 
themselves without being notified of their rights or custodial status. To this extent, 
PROCUREUR DE LA RÉPUBLIQUE 
 
7 
Anonymised version 
the search initiated by the senior law enforcement officer R steers the procedure 
towards the guilt of F.S. and K.B. 
11 At 22.50, the Public Prosecutor was informed that F.S. and K.B. had been taken 
into police custody, then, at 23.00 and 23.06, the notification of rights took place. 
12 There was thereby a violation of the right against self-incrimination because the 
taking into police custody, the informing of the Public Prosecutor’s Office and the 
notification of rights, including the right to silence, were late. The domestic 
provisions infringed transpose the applicable European rules. The vehicle search, 
the police custody of the suspect and all the ensuing measures must be annulled. 
The prohibition on the criminal court raising grounds of invalidity of its own 
motion 
13 The Cour de cassation, having regard to Article 385 of the Code de procédure 
pénale, and even in the absence of a judicial investigation, as in the present case, 
applied a prohibition on courts raising of their own motion grounds of invalidity 
of the procedure. Cour de cassation, Chambre criminelle, 6 February 2018, No 17-
82826. Prohibition on a court raising grounds of invalidity of its own motion 
in accordance with Article 16 of the Constitution. Rejection of a priority 
question of constitutionality. ‘The question raised is not serious in nature, as it 
follows from the first paragraph of Article 385, as interpreted by the settled case-
law of the Cour de cassation, that, although the trial court does not have the 
power to raise of its own motion an objection of invalidity of the procedure, 
except for lack of jurisdiction, the accused, who has the right to be assisted by a 
lawyer when he appears or is represented before a trial court, may raise it and 
that, in addition, he has the same option on appeal if he has not appeared or been 
represented at first instance; it follows that the abovementioned provisions do not 
affect either the principle of respect for the rights of the defence or the right to a 
fair trial’. Thus, in France it is not the court that ensures the primacy and 
effectiveness of EU law for the litigant, but his lawyer. Accordingly, in cases 
involving minor offences and/or for litigants who are not assisted by a lawyer, as 
the case-law stands, the court cannot ensure the effectiveness of EU law. 
14 In doing so, the Cour de cassation renders Community law ineffective by 
preventing the court from establishing an infringement thereof, even though the 
wording of Article 802 of the Code de procédure pénale invites the court to raise 
points of its own motion: ‘In the event of infringement of formal requirements laid 
down by law under penalty of invalidity or failure to comply with essential 
procedural requirements, any court, including the Cour de cassation, with which 
an application for annulment is lodged or which raises of its own motion such 
irregularity may declare it invalid only if this has had the effect of adversely 
affecting the interests of the party to which it relates.’ 
15 In the present case, French law does nothing other than transpose the European 
directives. The interpretation of Article 385 of the Code de procédure pénale 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2021 – CASE C-660/21 
 
8  
Anonymised version 
adopted in case-law (paragraph 13) undermines the effectiveness of EU law and 
the protection of litigants. 
III PROVISIONS OF EUROPEAN UNION LAW APPLICABLE IN THE 
PRESENT CASE 
Protection of the rights of the defence 
16 Article 48 of the Charter of Fundamental Rights of the European Union, which 
concerns the presumption of innocence and right of defence, provides that 
everyone who has been charged is to be presumed innocent until proved guilty 
according to law and that respect for the rights of the defence of anyone who has 
been charged is to be guaranteed. 
17 In addition, Directive 2012/13 of the European Parliament of 22 May 2012 on the 
right to information in criminal proceedings strengthens the protection of 
European litigants through Articles 3 and 4 of that directive. Article 3 provides 
that everyone has the right to information about their rights and Article 4 
establishes the obligation to give notification of rights on arrest. Those articles 
read as follows: 
Article 3. Right to information about rights 
1. Member States shall ensure that suspects or accused persons are 
provided promptly with information concerning at least the following 
procedural rights, as they apply under national law, in order to allow for 
those rights to be exercised effectively: 
(a) the right of access to a lawyer; 
(b) any entitlement to free legal advice and the conditions for obtaining 
such advice; 
(c) the right to be informed of the accusation, in accordance with 
Article 6; 
(d) the right to interpretation and translation; 
(e) the right to remain silent; 
2. Member States shall ensure that the information provided for under 
paragraph 1 shall be given orally or in writing, in simple and accessible 
language, taking into account any particular needs of vulnerable suspects or 
vulnerable accused persons. 
PROCUREUR DE LA RÉPUBLIQUE 
 
9 
Anonymised version 
Article 4. Letter of Rights on arrest (transposing law of 27 May 2014) 
1. Member States shall ensure that suspects or accused persons who are 
arrested or detained are provided promptly with a written Letter of Rights. 
They shall be given an opportunity to read the Letter of Rights and shall be 
allowed to keep it in their possession throughout the time that they are 
deprived of liberty. 
2. In addition to the information set out in Article 3, the Letter of Rights 
referred to in paragraph 1 of this Article shall contain information about the 
following rights as they apply under national law: 
(a) the right of access to the materials of the case; 
(b) the right to have consular authorities and one person informed; 
(c) the right of access to urgent medical assistance; and 
(d) the maximum number of hours or days suspects or accused persons 
may be deprived of liberty before being brought before a judicial authority. 
3. The Letter of Rights shall also contain basic information about any 
possibility, under national law, of challenging the lawfulness of the arrest; 
obtaining a review of the detention; or making a request for provisional 
release. 
4. The Letter of Rights shall be drafted in simple and accessible 
language. An indicative model Letter of Rights is set out in Annex I. 
5. Member States shall ensure that suspects or accused persons receive 
the Letter of Rights written in a language that they understand. Where a 
Letter of Rights is not available in the appropriate language, suspects or 
accused persons shall be informed of their rights orally in a language that 
they understand. A Letter of Rights in a language that they understand shall 
then be given to them without undue delay. 
18 Furthermore, Directive 2016/343 of the European Parliament of 9 March 2016 on 
the strengthening of certain aspects of the presumption of innocence and of the 
right to be present at the trial in criminal proceedings strengthens the protection of 
litigants. In Article 7 it provides that everyone has the right to remain silent and 
the right not to incriminate oneself. The article reads as follows: 
1. Member States shall ensure that suspects and accused persons have the 
right to remain silent in relation to the criminal offence that they are 
suspected or accused of having committed. 
2. Member States shall ensure that suspects and accused persons have the 
right not to incriminate themselves. 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2021 – CASE C-660/21 
 
10  
Anonymised version 
3. The exercise of the right not to incriminate oneself shall not prevent 
the competent authorities from gathering evidence which may be lawfully 
obtained through the use of legal powers of compulsion and which has an 
existence independent of the will of the suspects or accused persons. 
4. Member States may allow their judicial authorities to take into 
account, when sentencing, cooperative behaviour of suspects and accused 
persons. 
5. The exercise by suspects and accused persons of the right to remain 
silent or of the right not to incriminate oneself shall not be used against them 
and shall not be considered to be evidence that they have committed the 
criminal offence concerned. 
6. This Article shall not preclude Member States from deciding that, with 
regard to minor offences, the conduct of the proceedings, or certain stages 
thereof, may take place in writing or without questioning of the suspect or 
accused person by the competent authorities in relation to the offence 
concerned, provided that this complies with the right to a fair trial. 
Points raised by the court of its own motion and protection of litigants 
19 The case-law of the Court of Justice of the European Union has, since the 
judgment in Peterbroeck, left it to each State, its judicial structure and national 
procedural rules to ensure that litigants enjoy the rights derived from the EU legal 
order. To this effect, a point of EU law raised by the national court of its own 
motion may be considered to fall within the scope of a limited procedural 
autonomy because it applies only in the absence of an EU procedural rule (which 
is the case here) and because regard must be had to two major rules outlined by 
the Court of Justice of the European Union: equivalence in procedural treatment 
applied to domestic law compared with that applied to EU law in similar 
situations and, above all, effectiveness of the procedures applied in EU law, which 
may not render impossible or excessively difficult the exercise before the courts of 
the rights which national courts and tribunals are required to safeguard. As far as 
the latter principle is concerned, it should be noted that in the judgment in 
Peterbroeck, for example, the Court stated that ‘Community law precludes 
application of a domestic procedural rule whose effect, in procedural 
circumstances such as those in question in the main proceedings, is to prevent the 
national court, seised of a matter falling within its jurisdiction, from considering 
of its own motion whether a measure of domestic law is compatible with a 
provision of Community law when the latter provision has not been invoked by 
the litigant within a certain period’ (paragraph 21). However, in the judgment of 
the same date in Van Schijndel, it offered an entirely different response, ruling this 
time that the procedural rule in Netherlands law under which a national court must 
adhere to the subject matter of the dispute as defined by the parties and base its 
decision on the facts presented before it, effectively prohibiting it from raising EU 
PROCUREUR DE LA RÉPUBLIQUE 
 
11 
Anonymised version 
law of its own motion, was compatible with the principle of effectiveness 
(paragraph 20). 
20 Furthermore, there are a number of judgments in which it is found that a national 
court has a duty to examine an infringement of EU law of its own motion. All 
were delivered in the field of consumer protection against unfair terms, for which 
the Court has systematically held that a point raised by a court of its own motion 
is a means of achieving the desired results of the relevant European directive 
([Directive] 93/13/EEC of 5 April 1993) on unfair terms. Recognition is given to 
the national court’s status as an authority of the Member State and its 
corresponding duty as a fully fledged actor in the transposition process for 
directives, in the specific context where one party to the proceedings is in an 
inferior position. These decisions applying to the consumer must also apply to the 
accused. Criminal law represents contentious proceedings between the State and a 
citizen. The citizen is not necessarily assisted by a lawyer in enforcing his rights 
and the trial may have serious consequences as the individual who has been 
judged to be deviant may be excluded from society through imprisonment. It 
follows that preventing criminal courts from raising of their own motion a 
violation of the rights guaranteed by EU law and thus penalising that violation by 
annulling the procedural measures effectively demonstrates this ‘positive action’ 
highlighted by the Court of Justice itself (see, to that effect, Court of Justice of the 
European Union, 27 June 2000, Case C-240/98 to C-244/98, Océano Grupo 
Editorial and Salvat Editores, [2000] ECR I-4941). 
IV. THE NEED TO REFER A QUESTION TO THE COURT OF JUSTICE 
OF THE EUROPEAN UNION FOR A PRELIMINARY RULING 
21 It follows from the foregoing that national law is the expression of EU law and 
that it has not been complied with in this case. It is also clear that the case-law of 
the Cour de cassation (see [paragraph] 13), which prohibits the trial court from 
raising grounds of invalidity of its own motion obstructs the trial court in ensuring 
the effectiveness and primacy of EU law. This line of interpretation thus 
undermines the effectiveness of the European provisions guaranteeing the rights 
of the defence, as transposed into national law. 
22 If the Court of Justice of the European Union decides that the prohibition on a 
court raising of its own motion infringements of Community law, as transposed 
into national law, is contrary to EU law, the French court will be able to ensure the 
effectiveness of EU law and compliance with the rules transposing the directives, 
even where the litigant does not have a lawyer or where his lawyer does not raise 
the infringement of EU law. In doing so, the Court of Justice of the European 
Union would confirm that the national court is responsible for ensuring the 
primacy and effectiveness of EU law in the interest of the litigant. 
Otherwise, a court finding an infringement of the effectiveness of EU law will not 
be able to raise it and the litigant will be deprived of the effectiveness of EU law. 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2021 – CASE C-660/21 
 
12  
Anonymised version 
23 In the present case, if the national court may establish of its own motion the late 
notification of the right to silence, it will be able to annul the vehicle search and 
the self-incriminating statements recorded in respect of F.S. and K.B. The court 
will also be able to annul the police custody and the ensuing measures on grounds 
of late notification of rights (see paragraph 8). Those measures are crucial in 
assessing the overall guilt of F.S. and K.B. (see paragraphs 9 to 12). Moreover, in 
a similar situation where the litigant was assisted by a lawyer who had raised 
violations of rights, the Cour de cassation found that there was a violation of the 
rights of the defence (see paragraph 8). 
V. QUESTION 
24 Must Articles 3 (Right to information about rights) and 4 (Letter of Rights on 
arrest) of the Directive of the European Parliament of 22 May 2012 and Article 7 
(Right to remain silent) of the Directive of the European Parliament of 9 March 
2016 in conjunction with Article 48 (Presumption of innocence and right of 
defence) of the Charter of Fundamental Rights of the European Union be 
interpreted as precluding the prohibition on the national court raising of its own 
motion a violation of the rights of the defence as guaranteed by those directives, 
more specifically in so far as it is prohibited from raising of its own motion, with a 
view to the annulment of the procedure, a failure to give notification of the right to 
remain silent at the time of the arrest or a late notification of the right to remain 
silent? 
The proceedings must be stayed pending the answer from the COURT OF 
JUSTICE OF THE EUROPEAN UNION on the question referred for a 
preliminary by the court of its own motion; 
… ON THOSE GROUNDS 
The court, … 
Having regard to Article 267 of the Treaty on the Functioning of the European 
Union; 
REFERS the following question to the Court of Justice of the European Union for 
a preliminary ruling: 
‘Must Articles 3 (Right to information about rights) and 4 (Letter of Rights on 
arrest) of the Directive of the European Parliament of 22 May 2012 and Article 7 
(Right to remain silent) of the Directive of the European Parliament of 9 March 
2016 in conjunction with Article 48 (Presumption of innocence and right of 
defence) of the Charter of Fundamental Rights of the European Union be 
interpreted as precluding the prohibition on the national court raising of its own 
motion a violation of the rights of the defence as guaranteed by those directives, 
more specifically in so far as it is prohibited from raising of its own motion, with a 
view to the annulment of the procedure, a failure to give notification of the right to 
PROCUREUR DE LA RÉPUBLIQUE 
 
13 
Anonymised version 
remain silent at the time of the arrest or a late notification of the right to remain 
silent?’ 
STAYS THE PROCEEDINGS pending the decision of the Court of Justice of 
the European Union; 
…