Opinion of the Advocate General — ECLI:EU:C:2013:50
Date: 2013-01-31
Language of the case: German
Subject matter: Right of establishment;Taxation
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary – Judgment of the Court (Fourth Chamber), 26 September 2013 1. Questions referred for a preliminary ruling – Jurisdiction of the national court – Interpretation of national law (Art. 267 TFEU) 2. Questions referred for a preliminary ruling – Jurisdiction of the Court – Identification of relevant EU law (Art. 267 TFEU) 3. Freedom of movement for persons – Freedom of establishment – Companies – Directive 89/666 – Disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State – Disclosure of accounting documents – National legislation providing that, where the period for disclosing accounting documents is exceeded, a pecuniary penalty is to be imposed on a capital company for its branch located in the Member State concerned – No prior notice – No opportunity to state views on the alleged breach of the disclosure obligation – Effective, proportionate and dissuasive nature of the penalty – Objective of protecting third parties – Lawfulness (Arts 49 TFEU and 54 TFEU; Charter of Fundamental Rights of the European Union, Art. 51(1); Council Directive 89/666, Art. 12) 1. See the text of the decision. (see paras 28, 29, 41) 2. See the text of the decision. (see para. 35) 3. Subject to the verifications to be carried out by the referring court, Articles 49 TFEU and 54 TFEU, the principles of effective judicial protection and respect for the rights of the defence, and Article 12 of Eleventh Directive 89/666 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State are to be interpreted as not precluding national legislation which provides that, where the statutory nine-month period for disclosing accounting documents is exceeded, a minimum periodic penalty of EUR 700 is to be imposed immediately on the capital company whose branch is located in the Member State concerned, without prior notice and without the company first being given an opportunity to state its views on the alleged breach of the disclosure obligation. While the choice of penalties remains within their discretion, Member States must ensure in particular that infringements of EU law are penalised under conditions which make the penalty effective, proportionate and dissuasive. In particular, the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality. In that respect, as regards the amount of the fine, it is necessary to weigh the severity of that penalty against the interests of commercial partners and interested persons and the financial risks to which they might be exposed if the true financial situation of a company is not disclosed. It is for the referring court to assess whether the amount imposed is disproportionate to the legitimate objective pursued by the national provisions. As regards the period of nine months from the final balance sheet date, within which the disclosure must be made, it seems to be sufficiently long to enable the companies to fulfil their disclosure obligations, giving no reason to doubt the proportionality of the system of penalties. A longer period would jeopardise the protection of third parties, since they would not have access to the most recent information reflecting the actual situation of the company concerned. Furthermore, no penalty is imposed if the company concerned fulfils its legal obligation to disclose, as required under EU law – an obligation applicable in all Member States. Consequently, the penalties that may arise are not capable of prohibiting, impeding or discouraging a company governed by the law of a Member State from establishing itself, through the creation of a branch, in another Member State. The provisions of the Charter of Fundamental Rights are applicable in a situation in which the EU legislature, by virtue of Article 12 of Directive 89/666, left the Member States responsible for determining the appropriate penalties – that is to say, penalties which are effective, proportionate and dissuasive – in order to ensure compliance with the disclosure obligation. The national legislation laying providing for such penalties constitutes a case of the ‘implementing of Union law’, for the purposes of Article 51(1) of the Charter. Lastly, given the nature of the infringement in question, it does not appear that the imposition of an initial penalty of EUR 700 without prior notice or any opportunity for the company concerned to make known its views before the penalty is imposed impairs the substance of the fundamental right of respect for the rights of the defence, since the submission of a reasoned objection against the decision imposing the periodic penalty immediately renders that decision inoperable and triggers an ordinary procedure under which there is a right to be heard. (see paras 50, 57, 59, 61, 68, 69, 74-76, 85, 88, 89, operative part)