OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 14 May 2020(1)
Case C‑129/19
Presidenza del Consiglio dei Ministri
v
BV,
joined parties:
Procura della Repubblica di Torino
(Request for a preliminary ruling from the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy))
(Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2004/80/EC — Article 12(2) — National compensation schemes for victims of violent intentional crime — Purely internal situations — Concept of ‘cross border situations’ — Fair and appropriate compensation)
I.      Introduction
1.        In this case, the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy) raises two legal issues concerning the interpretation of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims. (2) First, does Article 12(2) of that directive require Member States to introduce a compensation scheme that extends to all victims of violent intentional crimes committed on their territory, thus including also ‘purely internal’ crimes? Second, what criteria should be used to determine whether compensation provided for in a national scheme is ‘fair and appropriate’ for the purposes of that directive?
II.    Legal framework
A.      EU law
2.        Directive 2004/80 is composed of three chapters. Chapter I bears the title ‘Access to compensation in cross-border situations’. Its Article 1 reads:
‘Member States shall ensure that where a violent intentional crime has been committed in a Member State other than the Member State where the applicant for compensation is habitually resident, the applicant shall have the right to submit the application to an authority or any other body in the latter Member State.’
3.        Chapter II, entitled ‘National schemes on compensation’, contains only one article (Article 12). It states:
‘1.      The rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime committed in their respective territories.
2.      All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.’
4.        Chapter III contains ‘Implementing provisions’. Its Article 18(1) reads:
‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 2006 at the latest, with the exception of Article 12(2), in which case the date of compliance shall be 1 July 2005. They shall forthwith inform the Commission thereof.’
B.      National law
5.        The key provisions of national law, applicable at the material time, were as follows.
6.        Article 609-bis of the Codice penale (Italian Criminal Code) provides for the crime of ‘sexual violence’.
7.        Pursuant to Article 1218 of the Codice civile (Italian Civil Code), ‘any party who does not properly discharge his obligations is required to make good any consequent loss unless he can show that his failure to do so was due to force majeure’.
8.        Article 11(1) of Legge 7 luglio 2016, n. 122 Disposizioni per l’adempimento degli obblighi derivanti dall’appartenenza dell’Italia all’Unione europea — Legge europea 2015-2016 (Law No 122 of 7 July 2016 on provisions to comply with the obligations arising from Italy’s membership of the European Union  — European Law 2015-2016), which entered into force on 23 July 2016, as amended, (3) provided for ‘the right to compensation from the State for a victim of an intentional offence committed with violence to the person and in any event the crime referred to in Article 603-bis of the Criminal Code, with the exception of the crimes referred to in Articles 581 and 582, save where aggravated circumstances provided for in Article 583 of the Criminal Code arise’. Under paragraph 2 of the same provision, compensation for the offences of murder, sexual violence or grave personal injury is to be paid to the victim or, in the event of the victim’s death as a result of the crime, the persons so entitled, to the extent determined by the ministerial decree referred to in Article 11(3). In respect of offences other than those mentioned above, compensation is to be paid instead for reimbursement of medical and care costs.
9.        Article 1 of the Decreto del Ministro dell’interno, 31 agosto 2017, Determinazione degli importi dell’indennizzo alle vittime dei reati intenzionali violenti (4) (Decree of the Minister for the Interior of 31 August 2017 determining the amounts of compensation payable to the victims of violent intentional crimes) determines the amounts of compensation as follows: ‘(a) as regards the crime of murder, in the fixed amount of EUR 7 200, and, in the case of murder committed by a spouse, including one who is separated or divorced, or by a person who is, or was, linked by emotional ties to the injured party, in the fixed amount of EUR 8 200 exclusively for the victim’s children; (b) as regards the crime of sexual violence referred to in Article 609-bis of the Criminal Code, except where the attenuating circumstance of lesser gravity raises, in the fixed amount of EUR 4 800; (c) as regards crimes other than those referred to in subparagraphs (a) and (b), up to a maximum of EUR 3 000 by way of reimbursement for medical and care costs’.
10.      In the interest of completeness, it might be added that at the hearing, the Italian Government informed the Court that, by ministerial decree of 22 November 2019, the Italian Government has raised the amount of compensation for the victims of violent intentional crimes. Compensation for rape has been increased from EUR 4 800 to EUR 25 000. However, as far as I understand, these new provisions do not have retroactive effects. Therefore, they do not appear to apply to the present case.
III. Facts, procedure and the questions referred
11.      In October 2005, the Respondent, who is resident in Italy, was the victim of sexual violence committed by two Romanian nationals in Turin. The perpetrators were sentenced to a period of 10 years and 6 months’ imprisonment. They were also ordered to pay compensation for the harm caused, the exact amount to be determined in separate proceedings, with an award of EUR 50 000 being made by the court as an immediately enforceable interim payment in favour of the Respondent.
12.      Nevertheless, the Respondent was unable to obtain the awarded amount since the perpetrators of the crime absconded.
13.      In February 2009, the Respondent brought an action before Tribunale di Torino (District Court, Turin, Italy) against the Presidenza del Consiglio dei Ministri (Office of the Prime Minister, Italy) seeking damages for its failure to transpose Directive 2004/80. By judgment of 26 May 2010, that court found the action to be well founded and ordered the Presidenza del Consiglio dei Ministri to pay the Respondent the sum of EUR 90 000.
14.      The Presidenza del Consiglio dei Ministri lodged an appeal against that judgment before the Corte di appello di Torino (Court of Appeal, Turin, Italy). By judgment of 23 January 2012, that court allowed the appeal in part. It reduced the sum due to the Respondent to EUR 50 000.
15.      The Presidenza del Consiglio dei Ministri appealed on a point of law against that judgment before the Corte Suprema di Cassazione (Supreme Court of Cassation). The proceedings were stayed, pending two rulings by the Court of Justice: on the infringement proceedings brought by the European Commission on 22 December 2014 against the Italian Republic for failure to transpose Directive 2004/80, and on a request for a preliminary ruling of 24 March 2015 from the Tribunale di Roma (District Court, Rome, Italy) on the interpretation of Article 12(2) of that directive.
16.      Following the completion of those two sets of proceedings before the Court of Justice (the first by judgment of 11 October 2016, (5) and the second by order of the President of the Court of 28 February 2017 (6)), the proceedings before the Corte Suprema di Cassazione (Supreme Court of Cassation) were resumed.
17.      However, harbouring doubts as to the interpretation of Directive 2004/80, the Corte Suprema di Cassazione (Supreme Court of Cassation) decided to stay these proceedings again, and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) In relation to the situation of late (and/or incomplete) implementation in the national legal system of [Directive 2004/80], which is non-self-executing as regards the establishment, required by it, of a scheme for compensation for the victims of violent crimes, which gives rise, in relation to cross-border persons, who are the sole addressees of the directive, to a liability on the part of the Member State to pay compensation in accordance with the principles set out in the case-law of the Court of Justice (inter alia the judgments in Francovich and Brasserie du Pêcheur and Factortame III), does [EU] law require that a similar liability be imposed on the Member State in relation to non-cross-border (and thus resident) persons, who are not the direct addressees of the benefits deriving from implementation of the directive but who, in order to avoid infringement of the principle of equal treatment/non-discrimination in that [EU] law, should have and could have — if the directive had been implemented in full and in good time — benefited, by extension, from the effet utile of that directive (that is to say, the abovementioned compensation scheme)?
(2).      If the answer to the preceding question is in the affirmative:
Can the compensation established for the victims of violent intentional crimes (and in particular the crime of sexual violence referred to in Article 609-bis of the Italian Criminal Code) by the Decree of the Minister for the Interior of 31 August 2017 (issued pursuant to Article 11(3) of Law No 122 of 7 July 2016 on provisions to comply with the obligations arising from Italy’s membership of the European Union — European Law 2015-2016), with subsequent amendments (referred to in Article 6 of Law No 167 of 20 November 2017 and Article 1(593) to (596) of Law No 145 of 30 December 2018) in the fixed amount of EUR 4 800 be regarded as “fair and appropriate compensation to victims” within the meaning of Article 12(2) of Directive 2004/80?’
18.      Written observations have been submitted by the Respondent, the Italian Government and the Commission. Those parties also presented oral argument at the hearing on 2 March 2020.
IV.    Analysis
19.      This Opinion is structured as follows. First, I will address briefly the objection of the Italian Government that the present action is devoid of purpose (A). Second, I will turn to the key issue unearthed by this order for reference: the scope of Article 12 of Directive 2004/80 ratione personae, read in the context of the directive as such, including its rather complex legislative history (B). Finally, I will provide a few concise comments on the second question posed by the referring court (C).
A.      Action devoid of purpose
20.      The Italian Government argues that the Respondent has been granted compensation under the national scheme. Indeed, it appears that the national scheme, (7) once (belatedly) enacted, was made applicable retroactively, in respect of victims of violent intentional crimes committed as from 30 June 2005, in accordance with Article 18(2) of Directive 2004/80. Thus, the Respondent would have received the fixed amount of EUR 4 800. As such, the present order for reference has lost its object. The Court should accordingly dismiss it, declaring that there is no need to respond.
21.      This argument deserves short shrift. It seems rather clear to me that the Respondent still has an interest in the proceedings in so far as, before the referring court, she seeks a compensation higher than that received under the national scheme. To that end, the Respondent relies essentially on two grounds. First, she claims State liability for late or incomplete transposition of Directive 2004/80 under the Francovich case-law. (8) Second, she argues that the compensation granted to her under the Italian scheme, on account of its relatively small amount (EUR 4 800), cannot be regarded as being ‘fair and appropriate’ for the purposes of Directive 2004/80.
22.      Both of these issues, reflected in the questions posed by the referring court, still very much require the answer of this Court. Accordingly, I shall now turn to the substance of the two questions referred.
B.      First question
23.      By its first question, the referring court asks essentially whether a Member State that failed to transpose Directive 2004/80 may be held liable for non-contractual damage to victims of violent, intentional crimes who reside in that same Member State, despite the fact that Directive 2004/80 applies only to cross-border situations, where that Member State’s national law precludes reverse discrimination.
24.      I take the view that this question should be reformulated as follows: does Directive 2004/80, and in particular Article 12(2) thereof, require Member States to introduce a national compensation scheme that covers all victims of violent intentional crimes committed in their respective territories, which also covers non-cross-border situations?
25.      I recall that at the time when the Respondent — an Italian resident — was the victim of the violent crime in question, Italy had not yet transposed Directive 2004/80, even though the transposition period had expired. However, when Italy eventually transposed Directive 2004/80, the Respondent did obtain compensation under the newly established national scheme on compensation. That scheme had been made applicable retroactively to all victims, including those residing in Italy.
26.      Against this background, the referring court considers that the Respondent cannot (directly) claim damages against Italy for late transposition of Directive 2004/80. According to the referring court, that directive requires Member States to establish a compensation scheme for victims of violent intentional crimes only in the case of cross-border situations. That was not, however, the case of the Respondent: the victim resided in Italy and the crime took place in Italy. Therefore, the situation was entirely confined to the territory of that Member State. That is why the referring court wonders whether Italy may nonetheless be held liable for non-contractual liability on another ground, namely as result of the fact that Italian law prohibits reverse discrimination.
27.      Such a question would inevitably call for a negative answer: if a situation is not governed by EU law, there can be no breach of EU law and, by way of consequence, EU law cannot be the source of any non-contractual liability on the part of a Member State. (9) If anything, such liability could arise under national law, if and in so far as the national authorities have infringed domestic law (for example, the prohibition of reverse discrimination).
28.      Nor could the solution be any different if one were to bring into the equation the principle of non-discrimination on the basis of nationality, which the referring court mentions in its request for a preliminary ruling. In that regard, it must be recalled that that principle (enshrined in Article 18 TFEU and Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’)) applies only in situations governed by EU law. However, where the relevant EU provisions concern only cross-border situations, and thus leave Member States free to regulate purely internal situations, that principle is not applicable. As EU law currently stands, it is for national law, if and where appropriate, to remedy any effect of reverse discrimination that may arise in those situations. (10)
29.      In the light of the above, the key issue raised by the first question referred by the Corte Suprema di Cassazione (Supreme Court of Cassation) is another, namely whether the assumption on which the referring court’s first question is based is in fact correct: is Directive 2004/80, in particular its Article 12, applicable only in cross-border situations, to the exclusion of purely internal situations?
30.      In the present proceedings, the Respondent argues that the latter question should be answered in the negative, whereas the Italian Government and the Commission suggest the opposite. Both sides contend that the wording, purpose and genesis of Directive 2004/80 support their view. They also invoke certain decisions of the Court to that end.
31.      In the following, I shall first explain why the text and the internal system of Directive 2004/80 lack clarity and, when taken alone, do not provide an answer to that question (1). I shall then attempt to identify the objective (or objectives) pursued by the EU legislature with the adoption of Directive 2004/80, and in particular Article 12(2) thereof, by looking at the preamble of the directive (2) and the preparatory works (3). Next, I shall examine the legal basis of Directive 2004/80 (4), and then examine the case-law of the Court (5), to check whether these elements might offer any further indications.
32.      After having carried out that analysis in its entirety, I must nevertheless admit that there is, in my view, still no clear answer either way. Both of the interpretations proposed remain defendable. I shall conclude by offering three additional arguments of a constitutional nature as to why, on the balance, I would suggest that the Court follow the interpretation proposed by the Respondent (6).
1.      The text and the internal system of Directive 2004/80
33.      First, the Italian Government and the Commission argue that, when read in its entirety, Article 12 of Directive 2004/80 is clear in that it requires Member States to introduce schemes on compensation only with regard to cross-border situations. Its first paragraph expressly refers to cross-border situations. It would be odd to read the second paragraph of the same provision as having a broader scope than the first.
34.      This argument fails to persuade.
35.      Article 12(1) of Directive 2004/80 reads: ‘The rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime committed in their respective territories.’ In turn, Article 12(2) of Directive 2004/80 states: ‘All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.’
36.      The first paragraph of that provision merely indicates that the system of cooperation set up by the directive to ensure compensation for cross-border crimes (laid down in Articles 1 to 11 of Directive 2004/80) must be ‘grafted’ on to national compensation schemes. That provision simply states that the rules required by the present directive are an ‘add on’ to the national compensation schemes provided by the Member States for victims of violent intentional crime committed in their respective territories.
37.      Article 12(2) then follows that statement, adding that the Member States must have a compensation scheme for victims of violent intentional crimes committed in their respective territories. Naturally, if there were nothing at national level in the first place, the rules set out in Chapter I of Directive 2004/80 would have nothing to graft themselves on.
38.      On a textual level, there is nothing  in those provisions that would limit the scope of Article 12 to cross-border situations only. As such, reading the second paragraph of that provision, proposed by the Respondent, as requiring the Member States to establish schemes that cover all ‘intentional crimes committed in their respective territories’ is, as regards the text of that provision, entirely justified. Moreover, it does not lead to any internal inconsistency in the interpretation of Article 12 of Directive 2004/80.
39.      Second, according to the Italian Government and the Commission, it follows from Article 1 of Directive 2004/80 that the obligation to introduce national compensation schemes is limited to cross-border situations. That provision requires Member States to ensure the right to apply for compensation where ‘a violent intentional crime has been committed in a Member State other than the Member State where the applicant for compensation is habitually resident’. (11) More generally, that position is — the Italian Government and the Commission maintain — corroborated by the rest of the directive: it is indisputable that the system of cooperation set up by the directive to facilitate access to compensation concerns only victims of crimes in cross-border situations.
40.      These arguments are, in my view, correct as far as the interpretation of Chapter I of Directive 2004/80 is concerned. However, they are unconvincing with regard to the scope of Chapter II and its Article 12.
41.      At the outset, I must stress that — unlike many other similar instruments — Directive 2004/80 does not contain, in its first article(s), any provision stating its purpose or subject matter, delimiting its scope and/or containing the definitions. Article 1 is not part of an introductory chapter defined as, for example, ‘general provisions’, that would apply to the entire legislative instrument. Article 1 is in fact already part of Chapter I (Articles 1 to 11), that is entitled ‘Access to compensation in cross-border situations’. That chapter is followed by Chapter II, entitled ‘National schemes on compensation’ (Article 12 only).
42.      For that reason, I fail to see how, on any normal rules of statutory interpretation and construction, the introductory provision(s) of one chapter of a legislative instrument could be used so as to limit the scope of other chapters of the same instrument. Article 1 concerns only the system of cooperation set out in Chapter I of that directive. By contrast, the existence of two separate chapters may well be interpreted as an indication that each of them concerns a different aspect of the body of law that Directive 2004/80 sought to introduce. If that is the case, Directive 2004/80 can indeed, as the Respondent argues, be read as laying down two distinct obligations for the Member States: (i) to set up a system of cooperation to facilitate access to compensation in cross-border situations, and (ii) to establish a national scheme on compensation that is triggered by any violent intentional crime.
43.      Third, further support for that proposition can also be found in Article 18 of Directive 2004/80, which provides for two different deadlines for transposition: one (earlier) for Article 12(2), and one (later) for the rest of the directive. (12) That provision shows, arguably, the autonomy or self-standing nature of Article 12(2) of Directive 2004/80. If the national schemes were merely meant to permit the effective functioning of the system established in the other provisions of Directive 2004/80, the logic behind that difference in deadline would be difficult to grasp.
44.      Fourth, there is the title of Directive 2004/80: it is a directive ‘relating to compensation to crime victims’. It is not ‘a directive on compensation to crime victims in cross-border situations’, or ‘a directive on cooperation with regard to compensation to crime victims’ or — as the Presidency of the Council proposed at a certain moment in the legislative process — ‘directive on facilitating compensation to crime victims’. (13) Any of those would have been, arguably, more appropriate for an instrument concerned only with cross-border situations.
45.      This argument may, admittedly, appear formalistic or of little significance. However, the title of the directive actually reflects the wording of Article 12(2) of Directive 2004/80. That article refers to Member States’ ‘scheme[s] on compensation to victims of violent intentional crimes committed in their respective territories’ (without any further qualification or limitation), and to ‘victims’ (again, without any further qualification or limitation). Moreover, in contrast to Article 1 of Directive 2004/80, which is applicable only within Chapter I, the overarching title of a directive should be, no doubt, of significance for the entire directive, not just for one of its chapters.
46.      Fifth and finally, on the internal system of the directive, had Article 12 merely been a provision, with an instrumental function, or of a procedural nature, as advanced essentially by the Commission and the Italian Government, it could possibly have been included in Chapter III of the directive (‘Implementing provisions’). However, that provision was considered to be important enough to merit a specific chapter (Chapter II), which was given a ‘substantive’ title (‘National schemes on compensation’).
47.      In my view, the text and internal system of Directive 2004/80 considered on their own would rather argue in favour of the interpretation proposed by the Respondent. However, the picture certainly gets more complex when turning to the aims and objectives of that instrument, in so far as they can be ascertained from an analysis of the recitals to that directive (2) and the legislative process leading to its adoption (3).
2.      The objectives of the EU legislature I: the preamble to Directive 2004/80
48.      Each of the two respective sides argue that the scope of Article 12 of Directive 2004/80 becomes clearer if one looks at the objectives pursued by the EU legislature with that directive, as illustrated by certain specific recitals contained in the preamble to that instrument.
49.      The only problem with that argument is that each side invokes different recitals in support of their respective propositions. Of even more concern is the fact that, in a way, both of them are correct. The inherent ambiguity of the articles of Directive 2004/80 is also reflected in the preamble. Far from clarifying the interpretation to be given to Article 12 of Directive 2004/80, a study of the preamble seems, if anything, to add even more uncertainty.
50.      In a simplified way, despite a certain vagueness, the objectives set out in the individual recitals to Directive 2004/80 could be placed into three different groups: (14) (i) assistance to victims in cross-border situations; (ii) free movement of persons and services; (iii) the protection of victims of crime in the context of criminal proceedings.
51.      First, as the Italian Government and the Commission contend, the first group of recitals would indicate that Directive 2004/80 does no more than introduce rules on access to compensation in cross-border situations. By ‘cross-border situations’, those parties mean situations where the victim of a crime resides in a Member State other than the one in which the crime took place.
52.      In that connection, those parties refer especially to the first and second recitals. The first recital reads: ‘One of the objectives of the [European Union] is to abolish, as between Member States, obstacles to the free movement of persons and services.’ (15) The reference to free movement is completed by the second recital, which reads: ‘The Court of Justice held in the Cowan Case that, when [EU] law guarantees to a natural person the freedom to go to another Member State, the protection of that person from harm in the Member State in question, on the same basis as that of nationals and persons residing there, is a corollary of that freedom of movement. Measures to facilitate compensation to victims of crimes should form part of the realisation of this objective.’ (16)
53.      In addition, the Italian Government and the Commission emphasise that recitals 11, 12 and 13 refer (expressly or impliedly) to situations in which the crime is committed in a Member State other than that where the victim resides. Furthermore — they add — in recital 15 the adoption of Directive 2004/80 is justified, in terms of the proportionality and subsidiarity, only by reference to the necessity of ‘facilitating access to compensation to victims of crimes of cross-border situations’. Such a justification could, arguably, be considered inadequate for an instrument whose scope goes beyond governing cross-border situations.
54.      However, I do not consider the wording of those recitals to be conclusive, notwithstanding the numerous references to cross-border situations contained therein. To my mind, only recital 15 could be taken as a clear indication of the intention of the EU legislature to limit the scope of Directive 2004/80. Despite their appearances, the other recitals are not so unequivocal in supporting the position defended by the Italian Government and the Commission. Moreover, recitals 11, 12 and 13 plainly refer to the system of cooperation instituted by Chapter I of Directive 2004/80. Therefore, they reveal rather little regarding the interpretation to be given to Article 12.
55.      Second, the ‘cross-border situations’ referred to by the Italian Government and the Commission (namely, where the victim of the crime has made use of his or her freedom of movement) does not exhaust the ‘cross-border situations’ that, in the light of its rationale, could be covered by Directive 2004/80.
56.      This rationale comes to the surface when zooming in on the first recital (recalling that the abolition of obstacles to free movement of persons and services is one of the objectives of the European Union), coupled with the general language of other recitals. In particular, recital 10 reads: ‘Crime victims will often not be able to obtain compensation from the offender, since the offender may lack the necessary means to satisfy a judgment on damages or because the offender cannot be identified or prosecuted.’
57.      If recital 10, but also in part recitals 7 and 1, were to be embraced as an explanation as to why the EU legislature considered it necessary to act in this field, then another type of cross-border situation also emerges: not just the one of the ‘travelling victim’, but also the one of a ‘travelling perpetrator’. It is rather frequent that the situation in which victims of violent intentional crimes may be unable to obtain compensation from the offender, and thus be in special need of protection, in order to remove obstacles to free movement of persons, are those where the offender has made use of his or her freedom of movement. In those situations, it may in fact be easier for the offender to elude the investigations or to abscond, by simply going back to his or her country of residence.
58.      Therefore, the fact that recitals 1 and 2 emphasise the connection between Directive 2004/80 and the freedoms of movement does not necessarily plead for a scope of the directive as narrow as that defended by the Italian Government and the Commission. There are certain cross-border crimes that, if one were to follow their position, would in any event be ‘left out’, and that would be hardly consistent with the visibly protective rationale of the directive.
59.      Consequently, as a matter of principle, recitals 1 and 2 do not exclude, at least not expressly, a broader concept of ‘cross-border’. That concept would encompass, accordingly, the situations in which either the victim or the perpetrator of the crime has made use of his or her freedom of movement.
60.      That position would also be consistent with recital 7. That recital, which concerns specifically the Member States’ obligation to establish a national compensation scheme, reads: ‘This Directive sets up a system of cooperation to facilitate access to compensation to victims of crimes in cross-border situations, which should operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime, committed in their respective territories …’ (17)
61.      Third and finally, there is yet another group of recitals that appear clearly to support the position defended by the Respondent. Indeed, parts of the preamble of Directive 2004/80 include expressions or terms which, just like Article 12(2), go well beyond mere cross-border situations. Those passages seem particularly inspired by a more general aim of the EU legislature to assist crime victims.
62.      Upon closer inspection, recital 10 may be taken as going even further than what is indicated above. Indeed, there is nothing in the wording of that recital which limits its validity to cross-border situations: it simply refers to the need of victims of crimes to obtain compensation, without any territorial limitations.
63.      In addition, and more importantly, recital 6 states that ‘crime victims in the European Union should be entitled to fair and appropriate compensation for the injuries they have suffered, regardless of where in the European Community the crime was committed’. (18)
64.      In the same vein, the references to the ‘historical’ background of Directive 2004/80, included in recitals 3 to 6 and 8, also suggest a larger scope of the directive. Indeed, the instruments referred to in those recitals (19) were by no means ‘internal market-focused’. On the contrary, those instruments were mainly related to the pursuit of objectives which are more typical of the provisions relating to the area of freedom, security and justice (‘AFSJ’). Accordingly, a directive which aims at protecting, albeit asymmetrically, all victims of crimes in the European Union, regardless of their nationality or residence, would seem more consistent with those objectives.
65.      In particular, when looking at recitals 3 to 6, which, given that their order of placement and content are rather general and applicable to the entire legislative instrument, the language and arguments employed are those that would be typically found in an AFSJ measure. There is nothing in those recitals that would limit the considerations displayed therein to only cross-border crimes committed on victims finding themselves outside their Member State of residence.
66.      In conclusion, a detailed examination of the preamble to Directive 2004/80 does not settle the interpretative issues. It rather enhances them further. At this juncture, it is the travaux préparatoires
that help to explain how such an equivocal piece of EU legislation came about.
3.      The objectives of the EU legislature II: the genesis of Directive 2004/80
67.      Again, the Italian Government and the Commission on the one side, and the Respondent on the other, both argue that the preparatory works of Directive 2004/80 support their interpretation of Article 12 thereof.
68.      From the documents included in the case file, the ‘long and winding road’ that led to the adoption of Directive 2004/80 can be summarised as follows.
69.      The original Proposal for a Council Directive on compensation to crime victims (‘the Proposal’), tabled by the Commission in 2003, (20) pursued two distinct objectives, which the Commission considered ‘closely intertwined’. (21)
70.      The first objective was to ensure that all EU citizens and all legal residents in the Union could receive adequate compensation for any losses suffered as a result of falling victim to a crime anywhere in the European Union. This objective was to be pursued through the creation of a minimum standard for State compensation to crime victims.
71.      The second objective was to ensure that the possibilities afforded for the crime victim to get State compensation in practice were not negatively affected by cross-border situations. It was thus necessary to ‘facilitate access to compensation in situations where the crime took place in another Member State than that of the victim’s residence’. This objective was to be pursued through the creation of a system of cooperation between authorities of the Member States, allowing the victim to submit an application to an authority in the Member State of residence.
72.      This double objective was reflected, first of all, in Article 1 of the Proposal, which read: ‘The objective of this Directive is to establish a minimum standard for compensation of victims of crime and to facilitate access to such compensation in cross-border situations.’ (22) The double objective was then reflected in the structure of the directive, which included two distinct sections, one for each of those objectives. Section 1 (Articles 2 to 15) concerned the ‘minimum standards for compensation to crime victims’, whereas Section 2 (Articles 16 to 23), building on the first one, concerned ‘access to compensation in cross-border situations’. (23)
73.      However, the Proposal did not receive unanimous backing in the Council. (24) A broad consensus was nevertheless reached on the part of the Proposal which concerned the system of cooperation in cross-border situations. In order to overcome that problem, the Presidency of the Council put forward a compromise proposal, amending the Commission’s proposal (‘the Compromise’). (25) The Compromise suggested keeping the provisions on cross-border situations (Section 2), but not those on minimum standards (Section 1). The latter section would be replaced by a single provision: Article A, later to become Article 12. Article A required Member States to establish national schemes, in order to make the cross-border compensation system work effectively, (26) while leaving the EU institutions the freedom to develop minimum standards on compensation in the future.(27) The Compromise then became the basis of the directive eventually adopted.
74.      Seen in that light, the preparatory works seem, in principle, to confirm the arguments put forward by the Italian Government and the Commission. In particular, the Compromise may indeed suggest, as the Commission forcefully argued, that the establishment of national schemes is (only) meant to be instrumental to the effective functioning of the system regarding access to compensation in cross-border situations.
75.      There are nonetheless three problems with the Commission’s suggestion.
76.      First and foremost, that ‘limited instrumentalism’ does not clearly follow from the text as adopted. On a side note, it does not even clearly follow from the text of the Compromise. For what it is worth, Section C of that document (points 13 to 16) starts by emphasising that, following the terrorist acts in Madrid in 2004, it was important to send a clear signal to the victims of crime that measures relating to their compensation are being taken at the EU level. (28) After acknowledging the lack of unanimity under the then Article 308 EC, it simply notes that all the Member States must establish ‘a compensation scheme’, without limiting it in any way to just cross-border situations. (29)
77.      Second, when asked at the hearing about the reasons behind the Member States’ obligation to establish a national compensation scheme, despite its alleged limitation to cross-border crimes, the Commission explained that leaving Member States free to have different schemes for cross-border and internal situations could have caused unnecessary complexities in certain situations.
78.      Nevertheless, when questioned on whether a Member State would have correctly transposed Directive 2008/40, had it limited the national compensation scheme to cross-border crimes only, the Commission failed to provide a clear answer, despite the Court’s insistence on this point. Instead, the Commission kept maintaining that the only proper way of transposing Article 12(2) was not for a Member State to have ‘a compensation scheme’, or ‘a number of compensation schemes’, but rather for a Member State to have only one compensation scheme for all the violent intentional crimes committed in the territory of that Member State.
79.      However, this position is difficult to maintain for logical reasons: either the national schemes can lawfully cover only cross-border situations (provided that a Member State decides not to have any compensation scheme for domestic crimes), or those schemes must necessarily extend to purely internal situations.
80.      Alternatively, put from the perspective of a victim and his or her rights, either (1) EU law requires the compensation only for victims of crimes committed outside of their Member State of residence (thereby ‘domestic’ victims have no right whatsoever under EU law), or (2) the Member States have the obligation to provide one compensation scheme for all victims of violent intentional crimes committed on their territory (thereby all victims have a right to compensation under EU law pursuant to Article 12(2)). Tertium non datur: there cannot be an obligation established by EU law for the benefit of all individuals to which corresponds no right of those individuals to enforce that obligation.
81.      Third and in any event, I do not consider that the documents cited by the Commission provide a firm and unequivocal answer to the question asked. What is not entirely clear, in those documents, is whether all rules and principles on minimum standards originally included in the Proposal were completely removed by the Compromise, or whether a very minimal part of those were eventually ‘squeezed’ into Article 12.
82.      The Compromise does not explicitly say whether the object to protect a larger group of persons (including non-cross-border victims) has completely disappeared, or whether it was merely scaled down by imposing on the Member States a minimalist obligation — a minimum common denominator on which all Member States could agree — to provide ‘fair and adequate compensation’ to all victims. (30)
83.       Furthermore, as the Respondent noted, there are some preparatory documents — in particular, the minutes of two meetings of the Council that followed the Compromise (31) — which suggest the ‘survival’ of this second objective pursued by the directive: to enhance the protection of all victims of violent intentional crimes, by ensuring their access to a fair and appropriate compensation regardless of where in the European Union the crime is committed. There is some support for that statement given the fact that a number of such considerations ‘survived’ in the form of recitals 3 to 6. (32)
84.      In sum, the description of the legislative process, leading to the adoption of Directive 2004/80, helps to shed light on the manner in which such a singularly drafted instrument came about. However, in view of the text eventually adopted, and equally in view of the ambiguities and various statements encountered in the process itself, there is again no clear answer as to the precise objectives that the EU legislature intended to pursue with Directive 2004/80, and in particular with Article 12(2) thereof.
4.      The legal basis
85.      I shall now turn to another element that was discussed by the parties in their written and oral submissions: the choice of the legal basis — Article 308 EC (now Article 352 TFEU) — and its implications for the scope of application of Directive 2004/80. However, contrary to what the parties have argued, I simply see no argument whatsoever that could validly be made in this regard since, put simply, both types of instruments could have been adopted on the basis of Article 308 EC.
86.      In its Proposal, the Commission explained that the directive was to have as its legal basis Article 308 EC. The instrument did have strong links with the internal market, but its subject matter went beyond that, affecting also the free movement of persons in general, and the national civil laws, matters then regulated in Part Three, Title IV of the EC Treaty (33) (now Part Three, Title V of the FEU Treaty (34)). However, none of the provisions of Title IV gave the then Community — according to the Commission — the power to lay down rules such as those set out in the proposed directive. Therefore, the Commission took the view that the EU legislature could only use the residual powers granted to the Union by the flexibility clause. (35)
87.      In the light of that, I do not see how the fact that the legal basis originally proposed by the Commission was maintained (even after the substantial amendments brought about by the Compromise) would support either the views of the Italian Government and the Commission, or those of the Respondent. Despite the removal of (most of the provisions of) Section 1 of the Proposal, Directive 2004/80 kept strong links with both the provisions on the internal market and those that now fall in the AFSJ. So, the logic followed by the Commission in its Proposal, arguably with regard to the legal basis, remained valid for the final version of the directive.
88.      Moreover, there is also no possibility of retrograde reasoning, seeking to limit (or to expand, for that matter) the scope of a secondary law instrument on the basis of its primary law foundations, in the absence of any such limitation in the text of that secondary law instrument.
89.      First, I recently cautioned against such ex post interpretative limitations of secondary law instruments with a reference to their legal basis, suggesting that such type of arguments should rather be confined to the realm of challenges to validity. (36)
90.      Second, in addition, even if it were not to be the case, the special nature of Article 308 EC would simply prevent any such ‘backtracking’ that may sometimes be put forward with regard to other, more specific legal bases in the Treaty. (37) In the constitutional structure of the Treaty, Article 308 EC (as well as Article 352 TFEU, although now with some further caveats added) is simply open: on the condition of unanimity amongst the Member States, a number of measures can be adopted, in no way limited to cross-border situations. (38)
5.      The existing case-law
91.      Finally, the parties referred to a number of decisions of the Court in support of their interpretation of Article 12(2) of Directive 2004/80. In particular, the Italian Government and the Commission pointed to the Court’s decisions in Dell’Orto, (39)Giovanardi and Others (40) and C (41) The Respondent invoked the Court’s judgment, (42) and the Opinion of Advocate General Bot, (43) in Commission v Italy.
92.      Once again, neither of the parties is manifestly wrong: that case-law provides elements that lend support to both interpretations. On the one side, it is true that the older decisions rendered by the Court in smaller chambers follow the lines suggested by the Commission and the Italian Government. On the other side, there is the later judgment of the Grand Chamber of the Court in Commission v Italy.
93.      On the one hand, in Dell’Orto, the Court stated that a situation in which the crime is committed in the territory of the Member State in which the victim resides falls outside the scope of Directive 2004/80. For the Court, that directive ‘provides for compensation only where a violent intentional crime has been committed in a Member State other than that in which the victim is habitually resident’. (44)
94.      The judgment in Giovanardi is quite similar. The Court found that it was apparent from Article 1 of Directive 2004/80, that the directive is ‘intended to facilitate access to compensation by victims of violent intentional crime in cross-border situations’, whereas it was not disputed that the proceedings before the referring court in that case concerned offences committed ‘as a result of negligence and, what is more, in a purely national context’. (45)
95.      Therefore, it is indeed only C that bears some similarity to the present case. Ms C was a victim of a violent intentional crime in Italy and sued the Presidenza del Consiglio dei Ministri for a failure to implement Directive 2004/80. The Court declined jurisdiction to answer the question referred, (46) stating that the crime had been committed in the same Member State in which the victim resided (Italy). In the light of that, the situation did not fall, according to the Court, within the scope of Directive 2004/80, but of national law alone. On that basis, the Court concluded: ‘in a purely internal situation the Court does not, in principle, have jurisdiction to rule on the question referred by the national court’. Since the referring court had not invoked the prohibition of reverse discrimination in its order for reference, the Court came to the conclusion that it clearly
did not have jurisdiction to answer the question referred. (47)
96.      On the other hand, the apparent clarity of that case-law is, as the Respondent correctly noted, called into question by a recent judgment of the Grand Chamber of the Court. In Commission v Italy, (48) the Court sought to clarify the meaning and scope of that previous case-law. In paragraph 49 of its judgment, the Court held that, in Dell’Orto, Giovanardi, and C, it had stated that ‘the system of cooperation established by Directive 2004/80 solely concerns access to compensation in cross-border situations, without however excluding that Article 12(2) of that directive requires each Member State, for the purposes of securing the objective pursued by it in such situations, to adopt a national scheme guaranteeing compensation for victims of any violent intentional crime on its territory’. (49)
97.      The Court then, in paragraph 50, went on to state that, ‘such an interpretation of Article 12(2) of Directive 2004/80 is, moreover, consistent with the objective of that directive of abolishing, as between Member States, obstacles to the free movement of persons and services for the purposes of improving the functioning of the internal market’. (50)
98.      Therefore, despite the fact that that decision is somewhat ambiguous in nature, (51) in Commission v Italy the Court has expressly: (i) stated that the scope of Article 12(2) of Directive 2004/80 had not been determined in past case-law, and (ii) left that question open in so far as an answer to that question was unnecessary to adjudicate on the action brought by the Commission.
99.      This is understandable when taking into account the nature of the case, which was an infringement procedure pursuant to Article 258 TFEU. The Commission claimed that Italy had failed to fulfil its obligations under Directive 2004/80 on the ground that national laws provided for a compensation scheme only in respect of victims of certain specific crimes, such as acts of terrorism or organised crime, whereas no compensation scheme had been established in respect of other violent intentional crimes, such as rape or other serious sexual assaults. (52) In order to adjudicate on that specific matter, the scope of Article 12(2) of Directive 2004/80 ratione personae was not that important, since it was rather clear, as ultimately confirmed by the judgment of the Court, that Italy failed to transpose the directive with regard to both (or rather any) of the categories of victims.
6.      Interim conclusion (and the tiebreakers)
100. I must admit that it is rarely the case that after having explored the text, context, purpose, legislative history, as well as arguments relating to the legal basis of an EU law instrument, one finds oneself pretty much where one started: lost.
101. In a nutshell, the text and the internal logic of the instrument plead for the Respondent. However, the legislative history, albeit not entirely, plead for the Commission and the Italian Republic. The legal basis is ‘agnostic’ to both solutions. The game of ‘choose the recital you like’ leads wherever one wishes it to: it is just necessary to pick the fitting recital.
102. Therefore, with all those elements examined together, the analysis seems to end — if I may borrow a sports term — in a ‘dead heat’ between the two competing interpretations of Article 12(2) of Directive 2004/80.
103. It is thus by no means surprising that, not only the parties in the main proceedings, but also various national courts and legal scholars, have come to diverging conclusions on this matter. (53) Some diversity of opinion on this point even seems to exist within the Commission services themselves. (54)
104. In such a rare scenario, to continue with a sports metaphor, ‘tiebreakers’ are needed. I would offer three of those to the Court, which are of a broader, constitutional nature.
105. First, there is the Charter. As Article 51(2) of the Charter makes clear, the Charter certainly does not extend the field of application of Union law. However, the Charter may nevertheless operate as an interpretative tiebreaker in a situation where a field of application of EU law has been clearly opened by an EU law secondary instrument but, due to its far-from-perfect legislative drafting, several interpretations are equally plausible.
106. The fact that Directive 2004/80 was adopted before the Charter became part of binding primary law changes little in that regard. First, the interpretation of that directive is sought today, under the present law and circumstances. Second, it would naturally be open to debate exactly how much, now codified in the form of a Charter right, was already in existence before, in the form of a general principle of law. Third, Directive 2004/80 itself expressly refers to the Charter. Recital 14 reads: ‘This Directive respects the fundamental rights and observes the principles reaffirmed in particular by the [Charter] as general principles of Community law.’
107. That issue settled, I do not think that it is even necessary to discuss in any great depth the individual Charter rights that would militate against opting for the narrowest scope of Article 12 (2) possible. It is rather clear that the rights enshrined in Article 1 (Human dignity) and Article 6 (Right to liberty and security) of the Charter would be particularly relevant. Both rights are guaranteed to everyone, just as, on its text, the right to compensation to victims of violent intentional crimes committed in the territory of a Member State is set out in Article 12(2) of Directive 2004/80.
108. To my mind, human dignity, but also in part the right to security of person, are inviolable and indivisible. Due to their unequivocal and absolute nature, they necessarily provide in equal measure for human dignity and the protection of security of person, without the parallel application of Article 21 of the Charter (prohibition of discrimination on whatever ground) being necessary.
109. In this way, and in the specific legislative context of considerable ambiguity of the text to be interpreted, I do not think that there is any need to discuss whether Article 21 of the Charter does or does not contain, either on its own or in conjunction with Article 1 thereof, the prohibition of reverse discrimination. Due to the very specific content of the secondary law instrument to be interpreted in the present case, Articles 1 and 6 of the Charter already provide an abundant basis for tipping the interpretation of Article 12(2) of Directive 2004/80 in one direction.
110. Second, Article 21 of the Charter might be, however, relevant in a slightly different context: for the potential discrimination between the various cross-border scenarios and for differentiation between various types of movement and non-movement.
111. If Directive 2004/80 were to be read according to the suggestions of the Italian Government and the Commission, a different treatment would be reserved to two types of situation that both involve cross-border elements: the situation where the victim himself or herself made use of his or her freedom of movement (‘travelling victim’), and the situation where the perpetrator made use of that freedom (‘travelling perpetrator’). (55)
112. In both situations, the victim of the crime is likely to face greater obstacles than usual to obtain compensation from the offender. The present case might offer an example in point: the perpetrators of the crime were of Romanian nationality who, after the judgment was issued against them, absconded. Now if the stated aim of the directive  is to help victims of cross-border crimes in order to promote free movement of persons, should those two situations not be treated similarly, at least under Article 12(2) of Directive 2004/80, where the text of that provision clearly allows for such an interpretation? (56)
113. Moreover, pursuant to Article 2(2) TFEU, one of the Union’s aims is to ‘offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured’. However, the noble dream of an area without internal frontiers can hardly be construed in a one-sided manner, whereby openness mandated from above is not accompanied by a correlating degree of responsibility and liability. It cannot be overlooked that an increase in the free movement of persons inevitably produces certain negative externalities or, to put it differently, has a social cost.
114. Accordingly, the very narrow reading of Article 12(2) of Directive 2004/80 proposed by the Italian Government and the Commission would imply that that instrument pursues a rather one-dimensional promotion of free movement of persons: strengthening the position of certain victims of cross-border crimes while overlooking that of other victims, which may just as easily be negatively impacted by the free movement of persons.
115. Conversely, if one were to follow the broader reading of Article 12(2) of Directive 2004/80 proposed by the Respondent, that difference of treatment between two types of cross-border situation would not arise. Indeed, that provision would oblige Member States to set up a scheme covering all victims of crimes, irrespective of their place of residence.
116. This problematic difference of treatment would also be avoided if the concept of ‘cross-border’ situations could be interpreted more broadly, so as to also encompass situations in which the offender made use of his or her freedom of movement. However, I have to admit that such a broader concept of ‘cross-border’ situations (or crime) is difficult to reconcile with Article 12(2) of Directive 2004/80: the notion of ‘cross-border’ is not used anywhere in that provision. (57)
117. Third and finally, there is the argument of the separation of powers (or, in the Union terminology, institutional balance), between the EU legislature and the Courts. Put simply, the question to be asked is how much deference should EU Courts give to the perceived or real legislative intent of the historical legislature, when such intent is not clearly expressed anywhere in the adopted and valid legislation.
118. The Commission maintains that it was not the Council’s intention to have even minimum rules on compensation going beyond situations where the crime is committed in a Member State other than that of victim’s residence. However, such a clear legislative intent is not discernible, in my view, either from the final text of the legislation adopted, or in fact from the text of the Compromise proposed by the Council. (58)
119. Yet, even if it were assumed that that view is correct, I would advise against allowing such legislative intent, which is not clearly expressed anywhere in the valid legislation, to become determinant. Certainly, compared with statutory interpretation carried out in a number of the Member States, I must admit having always been rather struck by the degree of deference there is in EU law interpretive practice to the will of the historical legislator. At the national level, the will of the historical legislature is certainly likely to be consulted, (59) but more as one of the relevant elements, hardly automatically a conclusive one. What eventually matters is the adopted text. This approach has led a number of systems, in the name of genuine separation of powers, to find certain distance from the subjective will of the historical legislative intent not expressed in the valid law. (60)
120. By contrast, in EU law, the legislature has the exclusive privilege to draft the text of the legislation. In addition, the EU legislature provides further ‘authentic interpretative guidance’ in the form of recitals to its legislative acts. Naturally, the dogma has it that recitals are not binding. The practice is nonetheless, much less clear-cut. (61)
121. Thus, in EU law, the interpreter is not bound once, but in fact twice by the (presumably same) legislative intent. Within that context, to suggest that beyond these two layers, there is a third one, which actually requires one to undertake an almost archaeological excavation into who said what exactly decades ago in order to fix, or rather to redo, poorly drafted legislation is, in my view, a step, or rather two steps, too far.
122. Instead, once adopted, an EU law instrument must have an independent life of its own. What matters for its interpretation is the elements and legislative intentions expressed in the text, together with the legislative intent expressed in the recitals to that text. Conversely, the intentions and ideas voiced during the legislative process, but not expressed in the text, do not matter. (62)
123. That must be the case for three additional reasons. First, legislation must be interpreted from the point of view of a normal addressee, who is unlikely to start searching various documents (not always publicly accessible) pertaining to the legislative history of an instrument, to find out whether what is written in the text reflects the subjective will of the historical legislator. Second, it serves to be mindful that in EU law, there is typically not one, but several co-legislators, with each of them having potentially their own ideas about what is it they thought they were adopting. Third, there is also the argument of moral responsibility of the author, who had the chance to clearly state what it intended. If the legislature was either unable or unwilling to unequivocally state what it wanted, it is problematic to start doing so later, via interpretation, especially to the detriment of the individuals concerned, who might have reasonably thought differently, on the basis of the text of the rule adopted.
124. For all those reasons, I am of the view that Article 12(2) of Directive 2004/80 should be interpreted as meaning that Member States shall establish national schemes on compensation that provide for compensation to any victim, regardless of his or her place of residence, of a violent intentional crime committed in their respective territories.
C.      Second question
125. By its second question, the referring court asks essentially whether compensation fixed at EUR 4 800 to victims of sexual violence may be regarded as ‘fair and appropriate’ within the meaning of Article 12(2) of Directive 2004/80.
126. Before addressing the issue raised by that question in more detail, two preliminary remarks are called for.
127. In the main proceedings, the Respondent is seeking damages from the Italian authorities for the late or incomplete transposition of Directive 2004/80 in Italy. Since the Respondent received compensation under the national scheme, in the amount of EUR 4 800, her claims against Presidenza del Consiglio would be based on other grounds (for example, delay in setting up the scheme or in being admitted to it, compensation not equating to full reparation, compensation of an amount that is not ‘fair and appropriate’). However, the exact grounds are not clear from either the referring court’s request for a primary ruling or the Respondent’s written and oral submissions before the Court. Therefore, in order to provide more comprehensive guidance to the referring court, I will set out two brief considerations relating to the application of the Francovich case-law in circumstances such as those at issue in the main proceedings.
128. First, according to settled case-law, the retroactive application of the national measures implementing a directive may remedy the harmful consequences of a belated transposition, provided that the directive is properly transposed. However, it is for the national court to ensure that reparation of the loss or damage sustained by the beneficiaries is adequate. To that end, individuals claiming damages must establish the existence of a greater loss sustained on account of the fact that they had been unable to benefit from the rights guaranteed by the directive at the appropriate time. (63)
129. Second, it is open to debate whether an action for damages, brought by victims of crimes in purely internal situations, would not find it hard to establish a sufficiently serious breach of EU law in a situation where the Member State has set up a national scheme that covers only cross-border crimes. Indeed, according to settled case-law, one of the conditions that must be satisfied for State liability to arise is that the breach of EU law is ‘sufficiently serious’. (64) The factors which national courts may take into consideration in that context include, inter alia, ‘the clarity and precision of the rule breached’. (65)
130. However, the entire previous section of this Opinion demonstrated that the wording of Article 12(2) of Directive 2004/80 is ambiguous and, what is more, recourse to other means of interpretation does not bring much more clarity in that regard.
131. Nevertheless, that element does not seem to be at all an issue in the main proceedings. Italy has transposed Directive 2004/80 by establishing a national scheme on compensation that covers both internal and cross-border situations. Thus, I understand that the debate before the national courts is only about the appropriate amount of compensation.
132. With those clarifications, I now turn to the key issue raised by the second question referred by the Corte Suprema di Cassazione (Supreme Court of Cassation). Might compensation in the amount of EUR 4 800 to a victim of rape be considered ‘fair and appropriate’ within the meaning of Article 12(2) of Directive 2004/80?
133. I find it very difficult to provide a ‘yes or no’ answer to such a question. It is for the national court to take all the circumstances of the case into account in order to rule on whether, in the case at hand, the compensation granted to the victim by the authorities can be considered ‘fair and appropriate’. The role of the Court, in the context of a reference for a preliminary ruling, is one of providing general guidance by clarifying the criteria that the latter should make use of in their assessment of the matter.
134. In that spirit, I would observe the following.
135. First, I cannot but concur with the Italian Government that, in the absence of any rule harmonising this aspect, Member States enjoy wide discretion with regard to the choice of the heads of compensation covered, the criteria
that are relevant to determine the amount of compensation and, as a consequence, on the amount of compensation itself.
136. True, there is the notion of ‘fair and appropriate’ in Article 12(2) of Directive 2004/80. But there is nothing else. In particular, the EU legislature eventually decided not to embrace the more detailed rules setting the minimum standards for compensation included in the original Proposal, especially in the original Article 4 thereof (entitled ‘Principles for determining the amount of compensation’). Thus, it might be safely assumed that the EU legislature intended to leave Member States a particularly broad margin of manoeuvre on this point.
137. Second, I also agree with the Italian Government that there is no basis in Directive 2004/80 to sustain the view that the compensation to be granted under the national schemes is to equate
to damages that the perpetrator would be obliged to pay under national tort law. The rationale and the logic for both types of payment is different.
138. On the one hand, compensation (or damages) that a perpetrator is to pay to the victim of the crime tend to follow the logic of full reparation or restitution. The sum awarded ought to mirror, as closely as possible, the full compensation of loss, injury and harm suffered by the victim. (66)
139. On the other hand, as far as it might be inferred from the minimalist rules adopted, the logic of the compensation provided pursuant to Directive 2004/80 is rather one of a (generalised) public (monetary) assistance to crime victims. The basis for the intervention of the national scheme cannot be found in some form of fault committed by the Member States’ authorities, such as, for example, in identifying or prosecuting the offenders. Moreover, in a number of languages, the name and the provisions of Directive 2004/80 also refer to the compensation due under the national schemes as an ‘indemnity’. (67) As I understand it, that term is, in many countries, often associated with a fixed or flat‑rate type of compensation, or in any event with a form of reparation that does not necessarily correspond with (full) damages in private law.
140. Third, this is also consistent with the manner in which the scheme is to be managed at national level. The amount of compensation need not, under Directive 2004/80, be determined by a judge that assesses all the specific circumstances of the case, in the light of the evidence produced by the parties. (68) Furthermore, a lengthy and cumbersome procedure (which would probably be required to ensure that the compensation granted corresponds to full compensation (69)) would not correspond to the type of procedure envisaged by the EU legislature. Indeed, according to Article 3(3) of Directive 2004/80, Member States ‘endeavour to keep to a minimum the administrative formalities required of an applicant for compensation’.
141. Fourth, that logic and procedure then impacts on the way in which the amounts are to be set. I do not think that ‘fair and appropriate’ would be structurally incompatible with a lump sum or standardised amounts. Nothing in Directive 2004/80 prevents national laws and procedures from including provisions, which in the determination of the amount of compensation to be granted, allow for ranges, maximum and/or minimum ceilings, and standard or fixed financial values for each type of loss or injury suffered by the victim, or type of crime committed. (70)
142. Fifth and final, Article 12(2) of Directive 2004/80 requires compensation to be ‘fair and appropriate’, thereby placing a limit to the Member States’ discretion in this matter. That limit is, nonetheless, notably a ‘light touch’. I would suggest interpreting that notion as a requirement that there must be some correlation between the injury and loss caused by the crime, and the compensation provided under the scheme. That does not mean that the amount should border on full compensation. Rather, it means that the amount must give a meaningful contribution to the reparation of the material and immaterial damage suffered by the victim, and provide some satisfaction to him or her for the harm suffered. In particular, the amount of compensation cannot be so low that it becomes purely symbolic, or that the usefulness and comfort that the victim derives from it is, in practice, negligible or marginal.
143. I would add that I do not share the Respondent’s view that the requirement of ‘appropriateness’ laid down in Article 12(2) of Directive 2004/80 inevitably requires the deciding authority to be able to adapt the amount provided for in national law to the specific circumstances of each case. Provided the amount set out in national law for a given type of crime is reasonable, I do not see any reason to hold a fixed amount to be per se against the provisions of Directive 2004/80.
144. In sum, I acknowledge that such a guidance is a minimalist one, and indeed a bit vague. However, on this particular point and in contrast to the scope of Article 12(2) of Directive 2004/80, the text of the directive as adopted is rather clear in not providing for any further guidance. It would indeed seem that the EU legislature intended to leave that space open. What ensued is a considerable diversity in the regimes, procedures, as well as amounts awarded in the individual Member States. (71) To move that area of law further by developing common minimal standards, as originally foreshadowed in point 16 of the 2004 Council Compromise, (72) would be a task for the EU legislature, (73) if such a diversity were to be seen as a problem.
V.      Conclusion
145. I propose that the Court answer the question referred for a preliminary ruling by the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy) as follows:
(1) Article 12(2) of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims requires Member states to establish national schemes on compensation that provide for compensation to any victim of a violent intentional crime, regardless of his or her place of residence.
(2)       Compensation to crime victims is ‘fair and appropriate’ within the meaning of Article12(2) of Directive 2004 when it makes a meaningful contribution to the reparation of the damage suffered by the victim. In particular, the amount of compensation granted cannot be so low that it becomes purely symbolic, or that its usefulness and comfort for the victim is, in practice, negligible or marginal.
1      Original language: English.
2      OJ 2004 L 261 p. 15.
3      Amended by Article 6 of Legge 20 novembre 2017, n. 167 Disposizioni per l’adempimento degli obblighi derivanti dall’appartenenza dell’Italia all’Unione europea — Legge europea 2017 (Law No 167 of 20 November 2017 on provisions to comply with the obligations arising from Italy’s membership of the European Union — European Law 2017) and by Article 1(593) to (596) of Legge 30 dicembre 2018, n. 145 Bilancio di previsione dello Stato per l’anno finanziario 2019 e bilancio pluriennale per il triennio 2019-2021 (Law No 145 of 30 December 2018 on the estimated State budget for the financial year 2019 and the multiannual budget for the three-year period 2019-2021).
4      Gazzetta Ufficiale, Serie Generale No 237, of 10 October 2017.
5      Judgment in Commission v Italy (C‑601/14, EU:C:2016:759), declaring that, by failing to adopt all the measures necessary to guarantee the existence, in cross-border situations, of a compensation scheme for victims of all violent intentional crimes committed on its territory, the Italian Republic had failed to fulfil its obligations under Article 12(2) of Directive 2004/80.
6      Order in X (C‑167/15, not published, EU:C:2017:187) removing the case from the Register, following the withdrawal of the reference by the referring court.
7      Outlined above, points 8 and 9 of this Opinion.
8      Judgment of 19 November 1991 (C‑6/90 and C‑9/90, EU:C:1991:428).
9      According to settled-case-law, a Member State may be liable to make reparation for loss and damage caused to individuals as a result of breaches of EU law for which it is responsible if three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between that breach and the loss or damage sustained by those individuals (to that effect, most recently, see judgment of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe (C‑620/17, EU:C:2019:630, paragraph 35 and the case-law cited).
10      See, to that effect, judgments of 16 June 1994, Steen (C‑132/93, EU:C:1994:254, paragraphs 8 to 11), and of 5 June 1997, Uecker and Jacquet (C‑64/96 and C‑65/96, EU:C:1997:285, paragraph 23). For a recent overview of the Court’s case-law in point, see Arena, A., ‘The Wall Around EU Fundamental Freedoms: the Purely Internal Rule at the Forty-Year Mark’, Yearbook of European Law, 2020, pp. 12-67.
11      Emphasis added.
12      According to that provision, Member States were required to transpose the provisions of Directive 2004/80 by 1 January 2006, ‘with the exception of Article 12(2), in which case the date of compliance [was] 1 July 2005’.
13      See Council Document 8033/04 of 5 April 2004. That proposal was eventually not retained.
14      Without denying that some of them might be put in more than one group.
15      Emphasis added.
16      Emphasis added.
17      Emphasis added.
18      Emphasis added.
19      The European Council’s Conclusions of the meeting in Tampere in 1999, the European Council’s Declaration on Combating Terrorism of 2004, the adoption of Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings, and the Council of Europe’s European Convention of 24 November 1983 on the compensation of victims of violent crimes.
20      COM(2002) 562 final (OJ 2003 C 45 E, p. 69).
21      See especially point 3 of the Explanatory Memorandum.
22      Emphasis added.
23      Finally, Section 3 (Articles 24 to 28) concerned ‘implementing provisions’.
24      The Proposal was based on the then Article 308 EC, now Article 352 TEU. I shall come back to this issue infra, in points 85 to 90 of this Opinion.
25      Council Document 7752/04.
26      See point 15 of the Compromise.
27      See point 16 of the Compromise.
28      Point 13 of the Compromise.
29      In particular point 16 of the Compromise.
30      And no longer to protect a larger group of persons, as originally tabled in the proposed Article 2(1)(a) of the Commission’s Proposal.
31      See Council Document 7209/04, p. 9, and Council Document 8694/04, p. II.
32      Above, points 64 to 65 of this Opinion.
33      ‘Visas, asylum, immigration and other policies related to the free movement of person’ (Articles 61 to 69 EC).
34      ‘Area of freedom, security and justice’ (Articles 67 to 89 TFEU).
35      See Explanatory Memorandum, points 5.1 and 5.2.
36      See my Opinion in Case Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:319, points 45 to 49).
37      See, for example, with regard to Article 114 TFEU, judgment of 20 May 2003, Österreichischer Rundfunk and Others (C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, paragraphs 41 to 43) or judgment of 6 November 2003, Lindqvist (C‑101/01, EU:C:2003:596, paragraphs 40 to 42). Similarly with regard to Article 82(2) TFEU, see judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraphs 32 and 33).
38      To that effect, see inter alia, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 235), and Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994 (EU:C:1994:384, paragraph 59).
39      Judgment of 28 June 2007 (C‑467/05, EU:C:2007:395).
40      Judgment of 12 July 2012 (C‑79/11, EU:C:2012:448).
41      Order of 30 January 2014 (C‑122/13, EU:C:2014:59).
42      Judgment of 11 October 2016 (C‑601/14, EU:C:2016:759).
43      C‑601/14, EU:C:2016:249.
44      Judgment of 28 June 2007, Dell’Orto (C‑467/05, EU:C:2007:395, paragraphs 57 to 59). Emphasis added. It should nonetheless be acknowledged that that statement was made in passim in a case that concerned a different matter, namely whether a legal person may claim the status of a victim under Directive 2004/80, but above all under Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ 2001 L 82, p. 1).
45      Judgment of 12 July 2012, Giovanardi and Others (C‑79/11, EU:C:2012:448, paragraph 37). Emphasis added. Again, similar to Dell’Orto, the case concerned the interpretation of the notion of victim under Framework Decision 2001/220/JHA, with Directive 2004/80, not even mentioned by the referring court, being discarded in one paragraph as not relevant to the case in the main proceedings.
46      ‘Must Article 12 of Directive [2004/80] be interpreted as permitting Member States to make provision for compensation only for the victims of certain categories of violent or intentional crime or, instead, as imposing an obligation on Member States, for the purposes of the implementation of the directive, to adopt a compensation scheme for victims of all violent or intentional crime?’
47      Order of 30 January 2014, C (C‑122/13, EU:C:2014:59, paragraphs 11 to 18 and operative part). Emphasis added.
48      Judgment of 11 October 2016 (C‑601/14, EU:C:2016:759).
49      Emphasis added.
50      Emphasis added.
51      Admittedly, it is not easy to reconcile paragraphs 49 and 50 of the judgment with paragraphs 44 and 45 thereof.
52      See judgment of 11 October 2016, Commission v Italy (C‑601/14, EU:C:2016:759, paragraphs 18 to 20).
53      Cf., for example, the positions taken by Mastroianni, R., ‘La responsabilità patrimoniale dello Stato italiano per violazione de Diritto dell’Unione: il caso della direttiva sull’indennizzo delle vittime dei reati’, Giustizia Civile, 2014, No 1, pp. 283 to 318, and by Peers, S. ‘Reverse discrimination against rape victims: a disappointing ruling of the CJEU’, in EU Law Analysis Blog, 24 March 2014 (last accessed on 20 March 2020). The first of those two contributions includes various references to decisions of Italian courts.
54      For what it is worth, such an illustrative reference to similar (naturally non-binding) materials, in the e-justice Portal, run by the Commission, Directive 2004/80 is described as requiring Member States to ‘set up a national scheme of compensation to all victims of violent intentional crime’ (my emphasis). According to that directive ‘all victims of violent intentional crime have access to the national compensation scheme in the country on whose territory the crime was committed’ (online at https://e-justice.europa.eu/content_compensation-67-en.do (last accessed on 20 March 2020). Nor does the Commission take a clear position in that regard in its ‘Report on the application of Council Directive 2004/80/EC relating to compensation to crime victims’ of 20 April 2009, COM(2009)170 final, in particular point 3.4.1.
55      Discussed also above in points 55 to 60 of this Opinion with regard to the recitals of Directive 2004/80.
56      It might be recalled that in order to alleviate identified discrimination inherent in the legislative design that allowed for comparable situations to be treated differently, the Court did not hesitate to go even much further in the past, some might say beyond the text. See, for example, judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 49 to 54), compared with the Opinion of Advocate General Sharpston in Joined Cases Sturgeon and Others (EU:C:2009:416, points 62 to 97). –
57      As discussed above, the use of the notion of ‘cross-border’ in Article 12(1) of Directive 2004/80 has a very different meaning that the one ascribed to it by the Commission and the Italian Government (above, points 33 to 38).
58      As discussed in detail above in points 75 to 84 of this Opinion.
59      Comparatively see e.g. Stefan Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent. Eine vergleichende Untersuchung der Rechtsprechung und ihrer historischen Grundlagen (Mohr (Siebeck), Tübingen 2001) – Band I, pp. 31-32 and 115-120 (on Germany); Band I, pp. 235 and 274-276 (on France).
60      Leading in some systems, especially those of common law provenience, to a great reticence if not outright prohibition on referring to legislative history and debates for the purpose of statutory construction — but see Pepper (Inspector of Taxes) v Hart [1992] UKHL 3. But, on the other side of the Channel, already FC Von Savigny suggested that the will of the legislator is only relevant as far as objectively expressed in the law itself; subjective motives of the legislator not expressed are not — FC von Savigny, System des heutigen Römischen Rechts (2. Neudruck der Ausgabe Berlin 1840, Scientia Verlag 1981) at § 38 (p. 241).
61      By way of illustration, see, for example, judgment of 12 July 2005, Alliance for Natural Health and Others (C‑154/04 and C‑155/04, EU:C:2005:449, paragraphs 91 and 92); of 21 December 2011, Ziolkowski and Szeja (C‑424/10 and C‑425/10, EU:C:2011:866, paragraphs 42 and 43); or of 25 July 2018, Confédération paysanne and Others (C‑528/16, EU:C:2018:583, paragraphs 44 to 46 and 51). In particular with regard to the latter case, it is open to discussion exactly how far such use of a recital remains in the realm of a mere interpretative guidance.
62      In similar vein to my recent suggestions in Case Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:319, points 61 to 63).
63      See, to that effect, judgments of 10 July 1997, Maso and Others (C‑373/95, EU:C:1997:353, paragraphs 39 to 42); of 25 February 1999, Carbonari and Others (C‑131/97, EU:C:1999:98, paragraph 53); and of 3 October 2000, Gozza and Others (C‑371/97, EU:C:2000:526, paragraph 39).
64      See judgment of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51), and, more recently, judgment of 10 September 2019, HTTS v Council (C‑123/18 P, EU:C:2019:694, paragraph 32).
65      See judgment of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 56), and, more recently, judgment of 10 September 2019, HTTS v Council (C‑123/18 P, EU:C:2019:694, paragraph 33).
66      As tends to be the case in general with any tortious liability for damage caused to another person. For example, with regard to the European Union’s liability for tort, see, Article 340 TFEU, according to which ‘the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’ (emphasis added). The EU Courts have consistently interpreted this provision as covering, as a matter of principle, both pecuniary losses (in the form of reduction of assets and of loss of profits) and non-pecuniary losses: see, with further references, Opinion of Advocate General Wahl in European Union v Kendrion (C‑150/17 P, EU:C:2018:612, point 103).
67      Those include the German (“Entschädigung”); Spanish (‘indemnización’); French (‘indemnisation’); Italian (‘indennizzo’); Portuguese (‘indemnização’); and Slovak (‘odškodnenie’) versions.
68      See Article 3(1) and (2) of Directive 2004/80.
69      See, Van Dam, C., European Tort Law, 2nd ed., Oxford University Press, Oxford, 2013, p. 346.
70      It should be noted that in a number of jurisdictions, national courts also make use of similar parameters in order to quantify the damages to be awarded in specific cases in a rapid and expedient fashion, while ensuring equal treatment in comparable cases. A fortiori, this should then naturally be possible in a system such as that established by Directive 2004/80.
71      See, for example, Commission Report on the application of Directive 2004/80/EC (COM(2009) 170 final), together with the annexes with references to Member States' systems in the Accompanying Document to the Commission Report on the application of Directive 2004/80/EC (SEC(2009) 495). For more up-to-date information, see also the individual country sheets at the E-justice Portal (https://e-justice.europa.eu/content_if_my_claim_is_to_be_considered_in_this_country-491-en.do).
72      Referred to above, point 73.
73      See, in this regard, Strengthening Victims’ Rights: From Compensation to Reparation: For a new EU Victims’ rights strategy 2020-2025, Report by Milquet, J., Special Advisor to the President of the European Commission from March 2019, Publications Office of the European Union, Luxembourg_2019.