Opinion of the Advocate General — ECLI:EU:C:2015:305
Date: 2015-05-07
Language of the case: German
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

summary and simplified nature of the proceedings at issue, the service of a penalty order such as that at issue in the main proceedings is effected only after the court has ruled on the merits of the accusation, the fact remains that, in that order, 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 against him. That is confirmed, moreover, 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 fully exercise his rights of defence, before that court rules again on the merits of the accusation against him. 61 Consequently, in accordance with Article 6 of Directive 2012/13, the service of a penalty order must be considered to be a form of communication of the accusation against the person concerned, with the result that it must comply with the requirements set out in that article. 62 It is true that, as the Advocate General observed at point 105 of his Opinion, 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 that person. 63 However, those procedures cannot undermine the objective referred to inter alia in Article 6 of Directive 2012/13, which, as is also apparent from recital 27 in the preamble to 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. 64 It is apparent from the order for reference that the national legislation at issue in the main proceedings provides that the penalty order is to be served on the person authorised by the accused person and that the latter has a period of two weeks to lodge an objection against that order, with that period running from the service of that order on that authorised person. Upon expiry of that period, the order is to acquire the force of res judicata. 65 Though it is not relevant, in order to answer the question asked by the referring court, to rule on the appropriateness of such a limitation period of two weeks, it is important to observe that both the objective of enabling the accused person to prepare his defence and the need to avoid any kind of discrimination between (i) accused persons with a residence within the jurisdiction of the national law concerned and (ii) accused persons whose residence does not fall within that jurisdiction, who alone are required to appoint a person authorised to accept service of judicial decisions, require the whole of that period to be available to the accused person. 66 If the period of two weeks at issue in the main proceedings began to run from the time when the accused person actually became aware of the penalty order, that order providing information on the accusation within the meaning of Article 6 of Directive 2012/13, it would be certain that the whole of that period is available to that person. 67 By contrast, if, as in the present case, that period begins to run from the service of the penalty order on the person authorised by the accused person, the latter can effectively exercise his right of defence and the trial is fair only if he has the benefit of that period in its entirety, that is to say without the duration of that period being reduced by the time needed by the authorised person to transmit the penalty order to its addressee. 68 In the light of the foregoing considerations, the answer to the second question is that Articles 2, 3(1)(c) and 6(1) and (3) of Directive 2012/13 must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which, in criminal proceedings, makes it mandatory for an accused person not residing in that Member State to appoint a person authorised to accept service of a penalty order concerning him, provided that that accused person does in fact have the benefit of the whole of the prescribed period for lodging an objection against that order. Costs 69 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 (First Chamber) hereby rules: 1. Articles 1 to 3 of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings must be interpreted as not precluding national legislation such as that at issue in the main proceedings which, in criminal proceedings, does not permit the individual against whom a penalty order has been made to lodge an objection in writing against that order in a language other than that of the proceedings, even though that individual does not have a command of the language of the proceedings, provided that the competent authorities do not consider, in accordance with Article 3(3) of that directive, that, in the light of the proceedings concerned and the circumstances of the case, such an objection constitutes an essential document. 2. Articles 2, 3(1)(c) and 6(1) and (3) 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 not precluding legislation of a Member State, such as that at issue in the main proceedings, which, in criminal proceedings, makes it mandatory for an accused person not residing in that Member State to appoint a person authorised to accept service of a penalty order concerning him, provided that that accused person does in fact have the benefit of the whole of the prescribed period for lodging an objection against that order. [Signatures] * Language of the case: German.