OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 31 January 2013 ( 1 )

Case C‑418/11

Texdata Software GmbH

(Request for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria))

‛Company law — Freedom of establishment — Articles 49 TFEU and 54 TFEU — Directive 2009/101/EC, Fourth Directive 78/660/EEC, Eleventh Directive 89/666/EEC — Disclosure of the accounting documents of capital companies and their branches — Penalties provided for in the event of failure to disclose — Proportionality of the penalty — Principle of effective judicial protection — Principle of respect for the rights of the defence — Principle of non bis in idem’

1. Does European Union (‘EU’) law preclude a national rule which provides that, on expiry of the time allowed for disclosing a company’s accounts, a periodic penalty is to be imposed immediately both on the company and on its bodies, with no prior notice and no opportunity for them to state their views beforehand, and that further periodic penalties are to be imposed immediately if the failure to comply persists? That, in essence, is the question referred by the Oberlandesgericht Innsbruck (Higher Regional Court, Innsbruck) (Austria).

2. Specifically, the referring court asks the Court of Justice to determine whether such rules, which were introduced in Austria recently, are compatible with (i) freedom of establishment under Articles 49 TFEU and 54 TFEU and the provisions concerning penalties for failure to disclose accounts laid down by the EU directives on companies and (ii) the principles of effective judicial protection, respect for the rights of the defence and non bis in idem, entrenched in various provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’).

3. Thus, although relatively little is at issue in financial terms in the case before the referring court, the Court is called upon to take a position on points of EU law that are far from insignificant.

I – Legal context

A – EU law

4. Article 6 of the First Companies Directive (Directive 68/151/EEC; ( 2 )‘the First Directive’), which became Article 7 of Directive 2009/101/EC ( 3 ) upon the repeal of the First Directive, provides: ‘Member States shall provide for appropriate penalties at least in the case of: (a) failure to disclose accounting documents as required by Article 2(f); ...’.

5. Article 60a of the Fourth Companies Directive (Directive 78/660/EEC; ( 4 )‘the Fourth Directive’) provides that ‘Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive’.

6. Under Article 1(1) of the Eleventh Companies Directive (Directive 89/666/EEC; ( 5 )‘the Eleventh Directive’): ‘Documents and particulars relating to a branch opened in a Member State by a company which is governed by the law of another Member State and to which Directive 68/151/EEC applies shall be disclosed pursuant to the law of the Member State of the branch, in accordance with Article 3 of that Directive.’

7. Under Article 12 of that directive, ‘[t]he Member States shall provide for appropriate penalties in the event of failure to disclose the matters set out in [Article] 1 ...’.

B – National law

8. Under Paragraph 277(1) of the Unternehmensgesetzbuch (the Austrian Business Code; ‘the UGB’), the statutory representatives of capital companies must submit to the court responsible for maintaining the commercial register in the district of the company’s principal place of business the annual accounts and management report, as well as a number of other company documents, after these have been considered at the shareholders’ general meeting, but no later, in any event, than nine months after the balance sheet date.

9. Paragraph 280a of the UGB, entitled ‘Disclosure by the branches of foreign capital companies’, provides that, in the case of branches of foreign capital companies, the branch representatives are to disclose, in the German language, pursuant to Paragraph 277 of the UGB, the accounting documents as drawn up, audited and disclosed in accordance with the law applicable to the company’s principal place of business. ( 6 )

10. Paragraph 283 of the UGB is entitled ‘Periodic penalties’ and sets out the consequences of failure to comply with the above disclosure requirements. In 2011, that provision was amended as part of a reform (the ‘2011 reform’). ( 7 )

11. Under Paragraph 283(1), as amended, the members of the management board or liquidators must comply with Paragraph 277 of the UGB and, in the case of a branch of a foreign capital company, the persons authorised to represent that company must comply with Paragraph 280a of the UGB, failing which the court is to impose on them a periodic penalty of between EUR 700 and EUR 3 600. The periodic penalty is to be imposed once the period for disclosure has expired and must be reimposed for every two-month period thereafter until the above bodies have fulfilled their obligations.

12. Paragraph 283(2) and (3) of the UGB lay down the procedure for imposition of the periodic penalty, which is composed of two stages. During the first stage, which is governed by Paragraph 283(2), if the company bodies have failed to comply with the disclosure requirements incumbent upon them by the last day of the period allowed, a periodic penalty of EUR 700 is to be imposed, by means of an order, without the need for any preliminary procedure. The absence of procedural requirements prior to the imposition of the initial penalty is a new element introduced under the 2011 reform, and its purpose is to alter the existing practice under the previous system, whereby, before actually imposing penalties on the undertakings which had failed to meet the requirements, the Austrian courts put those companies on notice to comply. ( 8 )

13. Paragraph 283(2) of the UGB also provides that the only situation in which the periodic penalty is not to be imposed is where the body required to make the disclosure was manifestly unable to comply with the disclosure requirements in due time because of an unforeseeable or unavoidable event. In such cases, the adoption of the order may be suspended for a maximum period of four weeks. The body concerned is to have 14 days in which to submit an objection to the order imposing the fine and must set out the reasons justifying the failure to comply. If there is no objection, the order becomes final. If the objection is late or unfounded, it must be rejected by means of a decision. However, a relaxation of the time-limits may be conceded.

14. Paragraph 283(3) of the UGB governs the second stage which may arise in the procedure for imposition of the periodic penalty. Under that paragraph, the submission in due time of a reasoned objection to the order imposing the periodic penalty, as referred to in Paragraph 283(2), is to suspend the order and trigger an ordinary procedure. That procedure may conclude with the case being closed and no further action being taken or with the imposition of a periodic penalty of between EUR 700 and EUR 3 600. The relevant company body is to have an opportunity to appeal against the imposition of the periodic penalty in the context of the ordinary procedure.

15. Paragraph 283(4) of the UGB provides that, if disclosure has not been made within two months of the expiry of the last day of the period for disclosure, set out in Paragraph 277 of the UGB and referred to in point 8 above, a further periodic penalty of EUR 700 is to be imposed by means of an order and, if the failure to comply persists, the order is to be made again in respect of each subsequent two-month period. Under Paragraph 283(5) of the UGB, the periodic penalties under Paragraph 283(3), as well as those imposed, in each case, in the event of persistent failure to meet the requirement, are to be multiplied by a coefficient of three or six, respectively, in the case of undertakings which can be categorised, in accordance with the criteria set out in the UGB, as medium-sized or large undertakings.

16. Moreover, pursuant to Paragraph 283(7) of the UGB, the obligations incumbent on the statutory representatives pursuant to Paragraphs 277 and 280a apply also to the company. If a company fails to comply with those obligations through its bodies, the company itself must be ordered to pay the periodic penalty at the same time.

II – Facts, main proceedings and the question referred for a preliminary ruling

17. Texdata Software GmbH (‘Texdata’) is a limited company established in Karlsruhe (Germany) which designs and markets software. It pursues its activities in Austria through a branch which has been entered since 4 March 2008 in the Austrian commercial register as a foreign company.

18. By order of 5 May 2011, the Landesgericht Innsbruck (Regional Court, Innsbruck) imposed on Texdata two periodic penalties under Paragraph 283(2) of the UGB, as amended in 2011, in the amount of EUR 700 each, on the ground that Texdata had failed to submit annual accounts for two fiscal years, ending on 31 December 2008 and 31 December 2009 respectively, by the set deadline, which the national court records as 28 February 2011.

19. On 23 May 2011, Texdata lodged two objections with the Landesgericht Innsbruck within the prescribed period, claiming that the imposition of periodic penalties without prior notice or warning was unlawful and that, in any event, the only accounts to submit were accounts which had already been filed with the Amtsgericht Karlsruhe (Local Court, Karlsruhe) (Germany) and which could be viewed there by electronic means.

20. On the same date, the two sets of annual accounts in question were also filed with the Landesgericht Innsbruck.

21. By two decisions of 25 May 2011, the Landesgericht Innsbruck rendered inoperative the two orders imposing periodic penalties, since the objections had been raised in good time, and, acting under the ordinary procedure pursuant to Paragraph 283(3) and (7) of the UGB, imposed on Texdata two fines, each in the amount of EUR 700, for failure to file the annual accounts within the prescribed period.

22. Seised of Texdata’s appeal against the two orders, the Oberlandesgericht Innsbruck, the referring court, is uncertain as to whether the Austrian legislation at issue, as amended in 2011, is compatible with EU law. It therefore stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling: ‘Does [EU] law, as it stands at present, and in particular: [(a)] freedom of establishment, as laid down in Articles 49 TFEU and 54 TFEU; [(b)] the general legal principle (Article 6(3) TEU) of effective judicial protection (principle of effectiveness); [(c)] the principle of the right to a fair hearing laid down in the second paragraph of Article 47 of the [Charter] (Article 6(1) TEU) and in Article 6(2) of the [ECHR] (Article 6(1) TEU); [(d)] the principle of non bis in idem laid down in Article 50 of the [Charter]; or [(e)] the rules governing penalties in the disclosure procedure under Article 6 of [the First Directive], Article 60a of [the Fourth Directive] and Article 38(6) of Seventh Directive 83/349/EEC; ( 9 ) preclude national rules under which, in cases where the statutory nine-month period allowed for compiling and disclosing annual accounts to the relevant court maintaining the commercial register is exceeded, that court is required, first, to impose immediately a minimum periodic penalty of EUR 700 on the company and on each of the bodies authorised to represent it, on the ground that, in the absence of proof to the contrary, they are liable for that failure to effect timely disclosure and, secondly, to impose immediately a new minimum periodic penalty of EUR 700 on the company and on each of the bodies authorised to represent it, in respect of further failure for every two-month period thereafter, on the basis of the same presumption of liability, and in both cases — without first allowing them an opportunity to state views on the existence of the obligation to disclose or to invoke any obstacles to doing so and, in particular, without prior examination as to whether those annual accounts have in fact already been submitted to the court which maintains the register for the judicial district in which the principal place of business is situated; and — without first giving the company or the bodies authorised to represent it notice to comply with the disclosure obligation?’

III – Procedure before the Court

23. The order for reference was received at the Court Registry on 10 August 2011. Written observations were submitted by Texdata, the Austrian Government, the United Kingdom Government (‘the UK Government’) and the European Commission.

24. At the hearing on 27 November 2012, oral argument was presented by Texdata, the Austrian Government and the Commission.

IV – Legal analysis

A – Admissibility of the request for a preliminary ruling

25. I must first consider the arguments objecting that the request for a preliminary ruling is inadmissible.

26. The Austrian Government points to a series of errors in the account of the national legislation given in the order for reference, arguing that the national court has not set out those rules in such a way as to enable the Court to provide a useful, rather than a merely hypothetical, answer.

27. In that regard, however, it is necessary to note that, according to settled case-law, the procedure for a preliminary ruling provided for under Article 267 TFEU is not concerned with the interpretation of national laws or regulations, and that, consequently, any inaccuracies in the description of the relevant national provisions given by the national court in its judgment requesting a preliminary ruling cannot have the effect of depriving the Court of jurisdiction to reply to the question referred. ( 10 ) In the present case, I consider that, on the basis of the information contained in the order for reference, the Court has before it the factual and legal material necessary to give a useful answer to the question submitted.

28. Without formally objecting that the request for a preliminary ruling is inadmissible, the UK Government contends that it is not clear why the new procedure under Paragraph 283 of the UGB following the 2011 reform has been applied retroactively to the disclosure requirement in relation to the 2008 and 2009 financial years.

29. In that connection, it is clear from case-law that it is not for the Court of Justice to rule on the interpretation and applicability of provisions of national law or to establish the facts relevant to the decision in the main proceedings. The Court must, under the division of jurisdiction between the Courts of the European Union and the national courts, take account of the factual and legislative context, as described in the order for reference, in which the question put to it is set. ( 11 ) The Court has also held that the determination of the applicable national legislation ratione temporis is a question of interpretation of national law and thus does not fall within the jurisdiction of the Court in the context of a request for a preliminary ruling. ( 12 )

30. In my view, it is clear from the foregoing considerations that the question referred for a preliminary ruling must be regarded as admissible.

B – Consideration of the question referred

1. Freedom of establishment and the companies directives

(a) General observations

31. By points (a) and (e) of its question – which must, in my view, be analysed together – the national court asks in essence whether the freedom of establishment provided for in Articles 49 TFEU and 54 TFEU, Article 6 of the First Directive, Article 60a of the Fourth Directive and Article 38(6) of Seventh Directive 83/349/EEC (‘the Seventh Directive’) must be construed as precluding a rule of national law of the kind laid down in the UGB, as amended in 2011 and described in points 10 to 16 above, on the system of penalties for failing to comply with the obligation to disclose the accounting documents of capital companies.

32. Specifically, the national court asks whether the objective of disclosure could not be achieved just as effectively by means of a procedure less ‘draconian’ than the procedure introduced by the 2011 reform, such as the procedure in force beforehand. ( 13 ) The new system, it is argued, imposes additional costs and burdens on foreign companies, since they are forced to use the services of a lawyer to safeguard the rights to which they are entitled under the freedom of establishment, when, in fact, in order to determine whether such companies have already disclosed the relevant accounting documents, that is to say, the accounts disclosed before the court of their principal place of business, it would be possible to make enquiries with the foreign court itself or with the company’s principal place of business.

33. It must first be pointed out that the requirement to disclose the annual accounts, as well as the related system of penalties provided for under the national legislation at issue in the main proceedings, applies to Texdata because, as a German capital company, it engages in its activities in Austria through a branch registered there as a foreign branch of a capital company. In those circumstances, I believe that – as the UK Government has pointed out – for the purposes of an analysis of this case, it is not so much the Seventh Directive on consolidated accounts, cited by the national court, that is relevant, since it applies to groups of undertakings made up of parent companies and subsidiaries with separate legal personality, ( 14 ) but the Eleventh Directive concerning disclosure requirements in respect of branches of capital companies. Moreover, as mentioned in point 4 above, the First Directive, which the national court mentions in its request for a preliminary ruling, has now been replaced by Directive 2009/101.

34. In that regard, I must point out that although, strictly speaking, the question refers to certain provisions of EU law, that does not mean that the Court may not provide the national court with all the guidance on points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to those points in its question. In so doing, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject-matter of the dispute. ( 15 )

35. In the light of the facts of the case before the referring court and the Austrian rules applicable, it will therefore be necessary for the Court to interpret – in addition to Articles 49 TFEU and 54 TFEU – Directive 2009/101, the Fourth Directive and the Eleventh Directive.

(b) Directive 2009/101, the Fourth Directive and the Eleventh Directive

36. All the above directives are among the supplementary instruments adopted by the EU legislature to facilitate the exercise of freedom of establishment. They all constitute provisions implementing Article 50(2)(g) TFEU, ( 16 ) as well as the General Programme for the abolition of restrictions on freedom of establishment, adopted by the Council on 18 December 1961, ( 17 ) which provide for the coordination of the safeguards required of companies in the Member States to protect the interests of members and others. One of those safeguards is the obligation to disclose certain relevant information relating to the companies themselves. It is for that purpose, therefore, that the above directives lay down provisions designed to coordinate the national rules concerning the disclosure of relevant information on companies. ( 18 )

37. It is clear from the various recitals in the preambles to those directives that the main purpose of coordinating the national rules on disclosure is specifically to protect the interests of third parties. The imposition of disclosure requirements on companies is designed to enable third parties which have entered into a relationship with a company, or which intend to do so, to familiarise themselves with the company’s basic documents, as well as with certain relevant information concerning the company, including the particulars of the persons authorised to bind the company. ( 19 )

38. Furthermore, as regards specifically disclosure of the annual accounts of capital companies, the Court has already indicated that this plays a fundamental role in protecting the interests of third parties ( 20 ) and is primarily designed to provide information for third parties who do not know or cannot obtain sufficient knowledge of the company’s accounting and financial situation. ( 21 ) The specific objective is to enable them to judge whether it is advisable to enter into, or to maintain, any kind of legal relationship with the company. ( 22 )

39. Since the application of a provision of law is linked directly to the existence of a system of enforcement which takes effect to guarantee compliance with that provision, the EU legislature did not merely require Member States to adopt the necessary measures to ensure that companies are subject to the obligation of disclosure, particularly in relation to accounting documents, but requires them to provide for ‘appropriate penalties’ in the event of failure to meet those obligations. ( 23 )

40. It is therefore consistent with the above directives for national rules, such as those at issue, to require the companies and branches of foreign capital companies to disclose the accounting and other documents referred to in Paragraphs 277(1) and 280a of the UGB, as well as to provide for penalties for failure to do so.

41. However, as the national court pointed out, the question arises as to whether the system of penalties is appropriate and proportionate.

42. In that regard, the Court has held that, in order to clarify the scope of the requirement that penalties for failure to comply with the disclosure obligations must be appropriate, account may usefully be taken of the Court’s established case-law on the principle of sincere cooperation, now entrenched in Article 4(3) TEU, which lays down a similar requirement. According to that case-law, while the choice of penalties remains within their discretion, Member States must ensure in particular that infringements of EU law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. ( 24 )

43. It is also necessary to point out that, although the directives provide for the adoption of appropriate penalties by the Member States, they do not lay down specific rules as to how those national penalties are to be determined and, in particular, they do not establish any specific criterion for assessing their proportionality.

44. According to settled case-law, where EU legislation has established a body of rules in a particular area but has not yet harmonised the penalties for failure to meet the related requirements, Member States are empowered to choose the penalties which seem to them to be appropriate. The Member States must nevertheless exercise that power in accordance with EU law and its general principles, and consequently in accordance with the principle of proportionality. ( 25 )

45. In the case before the referring court, therefore, the penalties provided for under the national legislation at issue must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by that legislation; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. ( 26 )

46. Of course, in the context of a preliminary ruling, it is for the national court to determine whether the national measures are compatible with EU law and, in particular, with the principle of proportionality, the jurisdiction of the Court of Justice being limited to providing the national court with all the criteria for the interpretation of EU law which may enable it to make such a determination. ( 27 ) It will accordingly be for the national court, which alone has jurisdiction to interpret domestic law, to establish whether the system of penalties provided for under the national rules at issue is, as required, effective, proportionate and dissuasive and, in particular, to verify that that system does not place formally foreign companies at a disadvantage as compared with Austrian companies in cases where there is an infringement of the disclosure requirements. ( 28 ) However, in making its assessment of compatibility, the national court must have due regard to the guidance on interpretation provided by the Court of Justice.

47. In that regard, it is necessary to start by considering the fundamental objective, mentioned above, of protecting third parties which enter into a relationship with the company, an objective which, in addition to being an objective of EU law, must be pursued by the national legislation on disclosure. In that context, I must first note that it is clear from the explanations relating to the government bill introducing the 2011 reform that, while the previous system was in force in Austria, fewer than half of the companies subject to the disclosure requirement complied within the prescribed period. ( 29 ) That in itself seems to me to be sufficient to demonstrate that the previous system, ( 30 ) on which the referring court relies in order to explain some of its doubts concerning the proportionality of the new system of penalties, did not sufficiently ensure that companies complied with their obligations to disclose accounting documents, and therefore failed to satisfy the conditions of being effective and dissuasive or to meet the abovementioned fundamental objective, inherent in the directives, of protecting third parties. Moreover, it is apparent, both from the abovementioned explanations concerning the government bill and from the explicit statements made by the Austrian Government at the hearing, that the reform – and, in particular, the provision introducing the automatic imposition of a minimum periodic penalty of EUR 700 – was adopted with the specific goal of ensuring that the undertakings subject to those requirements complied more efficiently and more swiftly with the disclosure requirements, an objective which – as again explained by the Austrian Government at the hearing – was in fact achieved, given the significant increase in the rate of the companies’ compliance with the disclosure requirements within the prescribed period after the 2011 reform was introduced.

48. Secondly, it should be pointed out that it is clear from the Commission’s observations that a periodic penalty of a minimum amount of EUR 700 for failing to comply with the disclosure requirements applicable to capital companies more or less corresponds to the average fines provided for by Member States for infringements of that nature, and that, in some Member States, those minimum fines may amount to as much as EUR 1 500. The fixing of a minimum penalty in the amount of EUR 700 does not seem to me to exceed the limits of what is appropriate and necessary in order to attain the fundamental objectives of the rules at issue, as set out in points 37 and 38 above.

49. Furthermore, without prejudice to the considerations which I shall set out below in relation to the principle of non bis in idem, the reimposition of the periodic penalty at two-month intervals, if the failure to comply persists, is similarly not disproportionate to the objectives pursued. This is actually a measure designed to spur on companies for which imposition of the periodic penalty is not an adequate deterrent to comply promptly with their disclosure obligations.

50. Thirdly, it is necessary to point out that the rules at issue provide for disclosure within a period of nine months from the balance sheet date. That period seems to afford the company ample time, save in exceptional circumstances, to comply with the obligation to draw up and disclose its annual accounts. Moreover, were a longer period allowed for disclosure of the previous financial year’s accounts, the very objective of the disclosure requirements – to protect third parties – would be jeopardised, since they would have access to information on the company’s situation which might not be recent enough to guarantee that it was accurate and properly reflected the company’s actual financial situation.

51. Fourthly, it should be pointed out that, in any event, it is open to the company and company bodies to object to the order imposing the periodic penalty, setting out the reasons justifying their failure to meet the disclosure requirement.

52. Fifthly, with reference to the requirements established by the case-law referred to in point 42 above, I must point out that, from both a procedural and a substantive perspective, the national rules provide for exactly the same system of penalties to apply to Austrian companies as to the branches of foreign companies.

53. All the foregoing considerations lead me to conclude that national rules of the kind at issue in the main proceedings do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation laying down the disclosure obligations of companies.

(c) Articles 49 TFEU and 54 TFEU

54. Turning then to the question whether legislation of this type is consistent with Articles 49 TFEU and 54 TFEU, it is necessary to consider whether it constitutes a measure that impedes the freedom of establishment in Austria, through the creation of a branch, of a company established under the legislation of another Member State. ( 31 )

55. In that regard, it is, to begin with, clear from the considerations set out above that penalties such as those imposed by the legislation at issue for failing to comply with the disclosure requirements are appropriate and consistent with EU law. It must be noted that such penalties are imposed solely in the event of a breach, on the part of the company, of the abovementioned statutory disclosure requirements under EU law. Consequently, as the Commission rightly observes, it is only conduct which fails to comply with the law, on the part of the company itself and its bodies, which can give rise to the legal consequences provided for under the national legislation at issue.

56. In addition, I have already noted that the rules on the imposition of penalties for failing to comply with the disclosure requirements apply without distinction both to Austrian companies and to companies from other Member States which establish themselves in Austria by setting up branches. Moreover, pursuant to Paragraph 280a of the UGB, and in accordance with the Eleventh Directive, the latter companies are required to disclose only ‘the accounting documents of the company as drawn up, audited and disclosed pursuant to the law of the Member State by which the company is governed’. ( 32 )

57. It is with reference to those considerations specifically that it is possible to respond to the concerns voiced by the national court, and mentioned in point 32 above, regarding the fact that the new system of penalties may impose excessive burdens on foreign companies because of the legal costs they would have to bear in order to safeguard the exercise of their rights under the freedom of establishment. In actual fact, those costs are far from inevitable and are simply contingent on the company concerned failing to comply with a statutory requirement. What is more, such costs do not fall solely on foreign companies, but on Austrian companies also.

58. However, as regards the possibility, mentioned by the national court, of making enquiries with the court of the company’s principal place of business, I would point out that, under the Eleventh Directive, it is not sufficient, in order for a branch to comply with its own disclosure requirement, for the parent company to have complied with such requirements in the Member State in which it is established. Moreover, the national court cannot be compelled to undertake research of that nature, which is potentially very costly in terms of time at least, with the courts of other Member States, when there is a statutory requirement to disclose the company documents in the Member State in which the branch operates, in order to protect third parties which enter into a relationship with it. By the same token, the fact that such accounting documents are available on the internet, in the language of the Member State of the parent company’s principal place of business – which may not be the same as the language of the State in which the branch operates – cannot justify a failure to comply with the disclosure requirement in the Member State in which the branch is established.

59. In the light of the foregoing considerations, I consider that legislation which, in circumstances such as those of the case before the referring court, imposes, in accordance with the applicable secondary legislation of the European Union, appropriate penalties for failure to comply with the obligations to disclose annual accounts and other relevant company documents is not of a kind that places the companies of other Member States in a factual or legal situation that is disadvantageous as compared with that of companies of the Member State of establishment ( 33 ) and does not constitute a restriction on the freedom of establishment, in so far as it does not prohibit or impede the exercise of the freedom of establishment or render it less attractive.

2. The principles of effective judicial protection, respect for the rights of the defence and non bis in idem

(a) Preliminary observations

60. By points (b), (c) and (d) of its question, the national court asks in essence whether the principles of effective judicial protection, respect for the rights of the defence and non bis in idem, as established under the Charter and the ECHR, must be construed as precluding national rules of the kind provided for under the UGB, as amended in 2011 and described in points 10 to 16 above, on the system of penalties for failing to comply with the requirements to disclose the accounting documents of capital companies.

61. The three principles cited by the national court have all been recognised by the Court as general principles of EU law. They are now entrenched in various provisions of the Charter (as well as of the ECHR) and have acquired the status of fundamental rights of the European Union.

62. More specifically, according to settled case-law, the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States. ( 34 ) It is entrenched in Articles 6 and 13 of the ECHR and has been reaffirmed in Article 47 of the Charter.

63. The principle of respect for the rights of the defence in all proceedings in which penalties may be imposed has, on several occasions, been defined by the Court as a fundamental principle of EU law. ( 35 ) It is provided for in Article 6(3) of the ECHR, and has been codified in the Charter in Articles 41(2)(a) and 48(2).

64. The prohibition on penalising or prosecuting the same offence for a second time (the principle of non bis in idem) has also been recognised by the Court as a general principle of law. ( 36 ) It is specifically provided for in Article 4 of Protocol No 7 to the ECHR and in Article 50 of the Charter.

65. The national court’s reference to those principles and to the relevant provisions of the Charter raises two questions which were extensively debated at the hearing: (i) the question raised by the Austrian Government, in both its written observations and at the hearing, as to whether or not the provisions of the Charter are applicable to a case such as that before the referring court; and (ii) the question, specifically envisaged by the national court, as to whether or not the system of penalties provided for under the national legislation at issue is of a criminal law nature; were the system to be classified as a criminal law regime, the application of the abovementioned principles would be affected.

(b) Applicability of the Charter

66. Under Article 51(1) thereof, the Charter applies ‘to the Member States only when they are implementing Union law’.

67. The Austrian Government notes that, although the abovementioned directives require Member States to provide for appropriate penalties for breach of the disclosure requirements, EU law lays down no detailed provisions in relation to either the procedure for imposing penalties or the procedure for raising objections. In its view, since the Member States enjoy procedural autonomy, the Charter does not in principle apply in the context of a case such as that before the referring court.

68. In that regard, I have to point out that the concept of the Member States’ ‘implementing Union law’ and, consequently, the scope of the Charter are matters that have recently been the subject of extensive debate, both in legal literature and, above all, among the Advocates General. ( 37 )

69. However, without dwelling on the potential – more or less restrictive – interpretations of Article 51(1) of the Charter and, consequently, on the range of possibilities as to the scope attributable to the Charter itself, I would point out that, in the present case, not only do the disclosure requirements – to which the system of penalties at issue relates – derive directly from EU law, but the penalties themselves are laid down by national law in direct implementation of EU law, and of the First Directive, the Fourth Directive and the Eleventh Directive, in particular, which require the Member States to provide for appropriate penalties in order to ensure compliance with the disclosure requirements. ( 38 ) It follows that the national law lays down specific provisions governing the procedure for imposing penalties explicitly provided for under EU law, including the detailed procedural rules for appealing against such penalties.

70. That being so, it is my view that the fact, noted by the Austrian Government, that EU law has conferred on the domestic legal systems of the Member States the right to determine the detailed procedural rules for imposing such penalties does not detract from the fact that, by adopting national rules of the kind at issue, the Member State in question has in fact implemented EU law. In fact, where, as in the present case, the Member States adopt specific provisions designed to transpose into national law a system of penalties which is explicitly provided for under EU law and, consequently, the national rules are based directly on EU law, the procedural autonomy accorded to the Member States does not in any way imply that they are doing anything other than implementing EU law. ( 39 )

71. In the light of the foregoing considerations, I therefore consider that the provisions of the Charter must apply in the present case.

(c) The criminal law nature of the system of penalties provided for by the national rules

72. According to the national court, it is the overwhelming view in Austrian case-law and legal literature that the system of penalties laid down in Paragraph 283 of the UGB is both coercive and punitive and, accordingly, possesses aspects characteristic of criminal law. ( 40 ) That view is contested, however, both by the Commission and by the UK Government.

73. The criteria to take into consideration in assessing whether or not a system of penalties is of a criminal law nature can be garnered from the case-law of the European Court of Human Rights (‘the ECtHR’) concerning the interpretation of the terms ‘criminal charge’, ‘penalty’ and ‘penal procedure’ under Articles 6 and 7 of the ECHR and Article 4(1) of Protocol No 7 thereto. ( 41 ) That case-law has now been specifically taken up by the Court of Justice. ( 42 )

74. According to that line of authority, there are three relevant criteria, known as the ‘Engel criteria’ because of the judgment in which they were first set out. ( 43 ) The first criterion relates to the classification of the offence in national law, but is specifically regarded merely as a ‘starting point’. ( 44 ) The second criterion relates to the nature of the offence, while the third relates to the degree of severity of the penalty imposed. ( 45 ) The second and third criteria, to which greater significance is attached than to the first, apply on an alternative and not necessarily cumulative basis, although this does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion. ( 46 )

75. In the present case, as regards the first criterion, that is to say, the classification of the offence under Austrian law, it does not appear to be explicitly of a criminal law nature. But this, as I have said, is not a decisive factor. ( 47 )

76. Turning to the second criterion, that is to say, the nature of the offence, the ECtHR pinpoints a number of factors, such as the persons to whom the provision is addressed, the legal interest protected and the purpose of the penalty. In that regard, I must first point out that the penalties under Paragraph 283 of the UGB for failing to comply with the disclosure requirements were not provided for with the general public in mind; rather, they are intended to bring about compliance with those requirements on the part of capital companies and their representatives. ( 48 ) As stated in points 37 and 38 above, the objectives pursued by those requirements and the related penalties relate to the protection of third parties in commercial relations with the companies. The legal interest which is protected, that is to say, the right of the third parties to be informed of the company’s financial situation, may be protected both by administrative law and by criminal law. ( 49 ) As regards the purpose of the penalties, it appears to me to be undeniable that they are not really designed to be compensatory, given that they are not intended to restore the position to how it stood before the infringement. ( 50 ) Their objective seems to me to be essentially preventive, inasmuch as those penalties are provided for with a view to ensuring compliance with the disclosure requirements and preventing a repetition of breaches of those requirements. ( 51 ) In that connection, it is also relevant to note that, even after the 2011 reform, the OGH has consistently declined to recognise the system of penalties as punitive in nature. ( 52 ) Moreover, in contrast to the penalties at issue in Bonda, a case in which the Court applied the ‘Engel criteria’, the penalties at issue here do not constitute reductions in the aid granted on application from the person concerned, ( 53 ) but have a direct impact on the assets of the person on whom the penalty is imposed.

77. The third ‘Engel criterion’ concerns the degree of severity of the penalty provided for under the legislation at issue. According to the case-law of the ECtHR, in order to determine that degree of severity, it is necessary to take account of the maximum penalty possible under the relevant law. ( 54 ) The automatic periodic penalty imposed under the initial order, provided for under Paragraph 283(2) of the UGB, which is the specific matter covered by the national court’s question, is set at the fixed sum of EUR 700. It has therefore to be said that the degree of severity of that penalty is rather low. ( 55 ) That is not necessarily true, however, of the subsequent penalties imposed under Paragraph 283(4) of the UGB. ( 56 ) In any event, it does not appear to me that any significant degree of stigma attaches to the penalties at issue. ( 57 )

78. In conclusion, in the light of the foregoing considerations, I believe that, even if the system of penalties at issue must be regarded as falling within the criminal law sphere under the ECHR, it certainly does not form part of the ‘hard core of criminal law’ and, accordingly, as explained by the ECtHR itself, the ‘criminal-head guarantees [of Article 6 of the ECHR] will not necessarily apply with their full stringency’. ( 58 )

(d) The principles of effective judicial protection and respect for the rights of the defence

(i) General observations

79. The national court is uncertain, above all, whether the UGB, as amended by the 2011 reform, concerning the system of penalties for failing to comply with the disclosure requirements for capital companies, makes it excessively difficult for those companies to exercise the rights deriving from the freedom of establishment and is consequently in breach of the principle of effective judicial protection. The national court identifies a number of ‘structural shortcomings’ – which I shall analyse in detail in point 87 et seq below – which could render the national rules incompatible with the principle of effectiveness. As regards those ‘structural shortcomings’, the national court also asks whether the national rules at issue are not incompatible with the principle of respect for the rights of the defence. The national court therefore asks the Court of Justice whether it is not under an obligation to disapply the new rules introduced under the 2011 reform.

80. In that regard, I must first point out that the effective judicial protection established by the relevant general principle entrenched in the provisions referred to in point 62 above consists in ensuring that individuals have the possibility of asserting their rights under EU law. ( 59 )

81. It is clear from settled case-law that, on the one hand, according to the principle of sincere cooperation set out in Article 4(3) TFEU, it is for the national courts to ensure the judicial protection of those rights ( 60 ) and, on the other, that in the absence of relevant EU rules, it is for the domestic legal system of each Member State to designate the courts and tribunals with jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, although the Member States are in any event required to ensure the effective protection of those rights. ( 61 ) I should point out in that connection that the second subparagraph of Article 19(1) TEU now requires Member States to make available the requisite legal remedies to ensure effective judicial protection in the fields covered by EU law.

82. In that respect, it is also settled case-law that the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness). ( 62 )

83. The national court does not point to any evidence of failure to respect the principle of equivalence. Its doubts relate solely to the compatibility of the national rules with the principle of effectiveness.

84. As regards, specifically, the application of the principle of effectiveness, the Court has held that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure as a whole, and to the conduct of that procedure and its special features, before the various national judicial bodies. In that context, account must be taken, if necessary, of the principles underlying the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. ( 63 )

85. As regards specifically the principle of respect for the rights of the defence, established by the provisions mentioned in point 63 above, it is clear from the Court’s case-law that this is a fundamental right which requires both that the person concerned be informed of the evidence adduced against him to justify the measure adversely affecting him and that he be afforded the opportunity effectively to make known his views on that evidence. The right to be heard must be guaranteed in all proceedings which are liable to culminate in an act adversely affecting a person. ( 64 )

86. It is in the light of the principles set out in the preceding points, therefore, that it is necessary to analyse the supposed ‘structural shortcomings’ identified by the national court in the system of penalties at issue.

(ii) The ‘structural shortcomings’ identified by the national court

87. The first supposed ‘structural shortcoming’ identified by the national court concerns what are said to be unreasonable formal requirements and rules on jurisdiction, which are complicated and cannot be rectified, and which could render the rules at issue incompatible with the principle of effectiveness. The national court refers, in particular, to the provision under Paragraph 283(2) of the UGB that late and unreasoned objections are to be rejected, viewed in conjunction with the barring of new arguments on appeal.

88. So far as the rejection of late objections is concerned, I would point out that, according to settled case-law, the laying down of time-limits for bringing proceedings satisfies, in principle, the requirement of effectiveness inasmuch as it constitutes an application of the fundamental principle of legal certainty. Such time-limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law. With that reservation, Member States remain at liberty to fix longer or shorter limitation periods. As regards limitation periods, in particular, the Court has also held that, in respect of national legislation which comes within the scope of EU law, it is for the Member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration. ( 65 )

89. The rules at issue allow a period of 14 days in which to object to a penalty of EUR 700 for failing to comply with the requirements, arising from EU law, to disclose the company’s accounting documents. I should point out, however, that the company and its representatives have nine months from the balance sheet date to disclose those documents. In those circumstances, there is, in my view, no evidence to suggest that the setting of such a period, albeit of short duration, is unreasonable or liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law. ( 66 ) In that regard, it is necessary, among other things, to bear in mind that the provision at issue specifically provides for the possibility of relaxing the time-limits. ( 67 )

90. A similar line of reasoning applies to the immediate rejection of completely unreasoned objections which, as emerges from the observations of the Austrian Government, were a recurring problem when the legislation prior to the 2011 reform was in force. In fact, the requirement that an objection must contain an – albeit succinct – statement of the reasons, enabling the court to understand the grounds on which it is based, cannot be regarded as a requirement incompatible with the principle of effectiveness. Moreover, the barring of new arguments on appeal which, according to the national court, also prevents a company on which a penalty has been imposed, whose appeal has been rejected because it was late or unreasoned, from subsequently setting out its reasons is a prohibition common to the legal systems of various Member States, and, in my view, does not compromise the effectiveness of the appeal either. Moreover, that prohibition does not apply in cases of excusable error, a broad concept which may be construed by the courts in the light of the principle of effective judicial protection. ( 68 )

91. The second and third supposed ‘structural shortcomings’ identified by the national court concern, respectively, the failure to provide for a hearing and the failure to provide an opportunity for the party concerned to state its views before the penalty is imposed, which could involve a breach of the right to a hearing.

92. In that connection, I must begin by pointing out that, as mentioned by the national court itself, according to the settled case-law of the ECtHR, although the obligation to hold an oral and public hearing is a fundamental principle entrenched in Article 6 of the ECHR, and particularly important in the criminal law context, it is not regarded as absolute. ( 69 ) Furthermore, it is clear from settled case-law of the Court of Justice that fundamental rights do not constitute unfettered prerogatives and may be subject to restrictions, provided that the restrictions actually correspond to objectives of general interest pursued by the measure in question and that they do not constitute, in relation to the objectives pursued, a manifest and disproportionate breach of the rights thus guaranteed. ( 70 )

93. So far as the rules at issue are concerned, it is clear from Paragraph 283 of the UGB that receipt of a reasoned objection appealing against the order imposing the initial penalty of EUR 700 has the effect of immediately suspending the order and triggering the ordinary procedure in the context of which there may be a hearing, at which the company on which the penalty has been imposed may set out its views in full, consistently with the right to a hearing.

94. That being so, even if it were necessary, in accordance with the considerations set out in point 74 et seq. above, to acknowledge the criminal law nature of the system of penalties at issue, the fact that it does not form part of the ‘hard core’ of criminal law means that the guarantees which flow from its criminal law nature do not have to be applied with their full stringency. Against that background, I therefore view as potentially compatible with the principles of effective judicial protection and respect for the rights of the defence legislation which, in circumstances such as those of the case before the referring court, provides for the imposition at first instance of a minor fine to which no significant degree of stigma attaches, even in the context of a system of penalties classified as being of a criminal law nature, under a procedure which, given the lack of a hearing or argument inter partes, does not of itself meet the requirements laid down in Article 6 of the ECHR. A system of that nature may nevertheless be compatible with the abovementioned principles, but only if the measure imposing the penalty is subject to review by a body able to exercise unlimited jurisdiction, whose procedure satisfies the abovementioned requirements. Put another way, it must be clear that the available forms of appeal make it possible to remedy any deficiencies in the proceedings at first instance. ( 71 )

95. Consequently, in the light of the objectives of general interest pursued by the legislation at issue, and set out in points 37 and 38 above, given the availability of forms of appeal such as those described above, the provision for the automatic imposition of a fine of EUR 700 for failing to disclose company documents does not, in relation to the objective pursued, constitute a manifest and disproportionate breach of the rights of the defence and is not, in my view, contrary to the principle of effective judicial protection.

96. The fourth supposed ‘structural shortcoming’ is regarded by the national court as likely to consist in an allocation of the burden of proof that is unfavourable to the company, to which a statutory presumption of culpable failure is applied. In that regard, I must point out that, even supposing that the imposition of the fine by means of an order adopted automatically without the company concerned being heard is based on a presumption of blame, that presumption consists, in any event, in a simple presumption which is open to rebuttal in the ordinary procedure initiated by entering an objection against the penalty order. In the context of that procedure, the company has the opportunity of demonstrating, through the submission of appropriate evidence, the reasons provided for under the law as possible justification for failing to comply with the disclosure requirements. To my mind, the rights of the defence and the effectiveness of the appeal are sufficiently guaranteed. ( 72 )

97. The fifth supposed ‘structural shortcoming’ relates to the setting of peremptory time-limits which are unreasonable and, in particular, the possibility of imposing further periodic penalties without waiting for the previous orders to acquire the authority of res judicata. The national court expresses doubts as regards both the nine-month period, in respect of which, according to that court, time begins to run before the company has been informed that such time-limits have been triggered, and the two-month period for reimposing the penalty where the failure to comply persists.

98. As regards, first, the nine-month period, I have already stated in point 50 above that the directives at issue require annual disclosure of the accounting documents in order to ensure that third parties, who are protected by those provisions, have access to up-to-date information concerning the company’s financial situation. The companies and their bodies must be aware, however, that they are required to disclose such documents within statutory time-limits which begin to run from the balance sheet date. It is therefore incumbent upon them to establish the length of time thereby allowed in the various Member States in which they intend pursuing their activities, without there being any need for them to be notified of this. Moreover, it is apparent from a comparative study conducted by the Commission that the nine-month period allowed under the Austrian system is one of the longest accorded by the various Member States of the European Union. Accordingly, there is nothing to support a finding that such time-limits may be regarded as unreasonable.

99. As regards, secondly, the two-month period for the imposition of further penalties where the failure to comply persists, without the need for the earlier orders to acquire the authority of res judicata, it is necessary to point out that the purpose of this is to persuade the undertakings to comply with the disclosure requirement if they fail repeatedly to do so. There is no evidence to suggest that the two-month period prevents companies from appealing against the penalty orders, making it in practice impossible or excessively difficult for them to exercise the rights conferred by EU law.

100. In conclusion, I believe it to be clear from all the foregoing considerations that a system of penalties of the kind at issue in the main proceedings is not contrary either to the principle of effectiveness or to the principle of respect for the rights of the defence.

(e) Principle of non bis in idem

101. The national court lastly expresses twofold doubt concerning the compatibility of the national rules with the principle of non bis in idem. That principle, as set out in Article 50 of the Charter, states that no one may be tried or punished again in criminal proceedings for an offence for which he has already been finally acquitted or convicted within the European Union in accordance with the law.

102. The national court asks, first, whether Paragraph 283(7) of the UGB, as recast, entails a breach of that principle inasmuch as it basically provides for the same offences to be imputed both to the company and to the company bodies, and in that a periodic penalty is imposed on both in respect of those offences. Secondly, the national court also expresses doubts as to the compatibility with the principle of non bis in idem of the repeated imposition of periodic penalties for every two-month period, if the failure to comply persists.

103. I must first point out that, according to the order for reference, only the company itself was subject to a periodic penalty for failing to disclose accounting documents, but not the company bodies also. Moreover, since – as described in point 20 above – Texdata then filed the annual accounts, no further periodic penalty was imposed. In those circumstances, given that according to the settled case-law referred to in point 29 above, the Court must take account of the factual and legislative context, as described in the order for reference, in which the question put to it is set, and given that it is clear that the subject-matter of the main proceedings does not encompass either the imposition of the periodic penalty simultaneously on the company’s bodies and on the company itself, or the imposition of further periodic penalties, it would be open to the Court to declare this part of the question inadmissible. ( 73 )

104. However, even if the Court were to accept the admissibility of this part of the question referred, and assuming that it recognises the criminal-law nature of the system of penalties provided for under the rules in question, which is a prerequisite for application of the principle, I do not consider either of the doubts expressed by the national court to be well founded. In fact, regardless of the more or less broad scope which may be attributed to the principle of non bis in idem, ( 74 ) the conditions for its application do not, in my view, exist in the present case.

105. As far as the first doubt raised by the national court is concerned, it must be pointed out that Paragraph 283(1) of the UGB provides for the periodic penalty to be imposed on the members of the company bodies and, in the case of branches, on the persons authorised to represent them, whereas Paragraph 283(7) provides for the periodic penalty to be imposed on the company. It is thus necessary to note that the national rules do not provide for the imposition of a twofold penalty on the same person for the same offences, but for the imposition of penalties on different persons. The capital company, which has its own legal personality, is not in fact identical with the persons constituting the members of the relevant company bodies within the company itself. ( 75 ) Since the condition of unity of offender is not satisfied, the national rules, cannot in my view be deemed to be incompatible, in this regard, with the principle of non bis in idem. ( 76 )

106. As regards the second doubt expressed by the national court, I should point out that, under Paragraph 283(4) of the UGB, if the failure to comply with the disclosure requirement persists, a further periodic penalty of EUR 700 is imposed on the basis of an order which is then repeated for each subsequent two-month period. I do not consider a provision of that nature either to be capable of infringing the principle of non bis in idem, since the condition of identity of the facts is not satisfied, the conduct penalised being different. In fact, the first penalty is imposed for failing to disclose the company accounts within the nine-month period from the balance sheet date, whereas it is subsequently the failure to disclose those same documents within the following additional two-month periods, each prescribed by law, that is penalised. ( 77 ) Consequently, the subsequent penalties both penalise separate breaches, which occur at different times, and have a different deterrent aim. ( 78 )

107. In my view, it is therefore clear from the foregoing considerations that a system of penalties such as the system at issue in the main proceedings is not contrary to the principle of non bis in idem.

V – Conclusion

108. For the reasons set out above, I therefore propose that the Court give the following answer to the question referred by the Oberlandesgericht Innsbruck: National legislation under which, in cases where the statutory nine-month period for disclosing annual accounts to the relevant court has expired, requires that court – without first allowing an opportunity to state views and without first putting the company concerned, or the bodies authorised to represent it, on notice to comply with the disclosure obligation – to impose immediately a fine of EUR 700 on the company and on each of the bodies authorised to represent it, and, in the event of continuing failure for a two-month period, immediately to impose in respect of each such period further minimum fines in the amount of EUR 700 on those same persons is not precluded by the freedom of establishment laid down in Articles 49 TFEU and 54 TFEU and the principles of effective legal protection, respect for the rights of the defence and non bis in idem, laid down in Articles 47, 48(2) and 50 of the Charter of Fundamental Rights of the European Union, or by Directive 2009/101/EC, Fourth Directive 78/660/EEC and Eleventh Directive 89/666/EEC.

( 1 ) Original language: Italian.

( 2 ) First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ, English Special Edition 1968 (I), p. 41).

( 3 ) Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (OJ 2009 L 258, p. 11).

( 4 ) Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11). Article 60a was inserted by Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings (OJ 2006 L 224, p. 1).

( 5 ) Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State (OJ 1989 L 395, p. 36).

( 6 ) According to the ninth recital in the preamble to the Eleventh Directive, in the light of the coordination of national law in respect of the drawing up, audit and disclosure of companies’ accounting documents, it is sufficient to disclose, in the register of the branch, the accounting documents as audited and disclosed by the foreign company which set up the branch. See, in that regard, Article 3 of that directive.

( 7 ) Paragraph 283 was amended by the 2011 Budgetbegleitgesetz (Law accompanying the budget), BGBl. I, 111/2010.

( 8 ) It is in fact clear from the order for reference that it had, in the past, become standard practice for the Austrian courts maintaining the commercial register to send a non-compliant company, at the earliest around one month after the nine‑month period for disclosure had expired, informal notice allowing an additional four-week period. In the event of failure to meet the new deadline, notice to submit the annual accounts within a specific period was issued again, combined with a warning that a periodic penalty would be imposed. Only if disclosure was not forthcoming after the second notice would the courts impose periodic penalties.

( 9 ) Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts (OJ 1983 L 193, p. 1).

( 10 ) See, in particular, Joined Cases 209/84 to 213/84 Asjes and Others [1986] ECR 1425, paragraph 12, and Case C-213/04 Burtscher [2005] ECR I-10309, paragraph 33.

( 11 ) See Case C-347/06 ASM Brescia [2008] ECR I-5641, paragraph 28, and Joined Cases C-278/07 to C-280/07 Josef Vosding Schlacht-, Kühl- and Zerlegebetrieb and Others [2009] ECR I-457, paragraph 16.

( 12 ) See Case C-467/08 Padawan [2010] ECR I-10055, paragraph 24.

( 13 ) See, specifically, point 12 and footnote 8 above.

( 14 ) See Article 1 of the Seventh Directive (cited in footnote 9 above).

( 15 ) See Case C-81/09 Idryma Typou [2010] ECR I-10161, paragraph 31 and the case-law cited. As regards the fact that an incorrect reference to provisions of EU law cannot affect the admissibility of the question referred, see also Case C‑248/11 Nilaş and Others [2012] ECR, paragraphs 31 and 32.

( 16 ) Formerly Article 44(2)(g) EC and, before that, Article 54(2)(g) of the EC Treaty.

( 17 ) OJ, English Special Edition, Second Series IX, pp. 7-15, and Title VI in particular.

( 18 ) See, in particular, Chapter 2 of Directive 2009/101, Section 10 of the Fourth Directive, and the Eleventh Directive.

( 19 ) See, in particular, recitals 2 and 3 in the preamble to Directive 2009/101, the first and sixth recitals in the preamble to the Fourth Directive, as well as the sixth and seventh recitals in the preamble to the Eleventh Directive. As regards the First Directive, replaced by Directive 2009/101, see also Case C-453/04 Innoventif [2006] ECR I-4929, paragraph 3.

( 20 ) See Joined Cases C-387/02, C-391/02, and C-403/02 Berlusconi and Others [2005] ECR I-3565, paragraph 62.

( 21 ) Case C-97/96 Daihatsu [1997] ECR I-6843, paragraph 22.

( 22 ) See point 32 of the Opinion of Advocate General Cosmas in Case C-191/95 Commission v Germany [1998] ECR I-5449, and point 14 of his Opinion in Daihatsu (cited in footnote 21 above).

( 23 ) See, in particular, Article 7(a) of Directive 2009/101 and Article 12 of the Eleventh Directive. In that connection, I must point out that the fact that Article 7(a) of Directive 2009/101 requires – as indeed did the First Directive, which it replaced – Member States to adopt appropriate penalties at least in the case of failure to disclose the accounting documents demonstrates that the EU legislature attaches particular importance to compliance with the obligation to disclose those documents as compared with the disclosure of other company information. To that effect, see also point 27 of the Opinion of Advocate General Cosmas in Commission v Germany (cited in footnote 22 above).

( 24 ) See Berlusconi and Others (cited in footnote 20 above), paragraphs 64 and 65.

( 25 ) See, in particular, Case C-262/99 Louloudakis [2001] ECR I-5547, paragraph 67; Case C-188/09 Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski [2010] ECR I-7639, paragraph 29; and Case C‑210/10 Urbán [2012] ECR, paragraph 23.

( 26 ) See, to that effect, Joined Cases C-379/08 and C-380/08 ERG and Others [2010] ECR I-2007, paragraph 86, and Urbán (cited in footnote 25 above), paragraph 24.

( 27 ) See Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski (cited in footnote 25 above), paragraph 30 and the case-law cited.

( 28 ) Case C-167/01 Inspire Art [2003] ECR I-10155, paragraph 63.

( 29 ) See the explanations concerning the government bill, p. 70 (that document may be accessed on the Austrian Parliament’s website at the following address: www.parlament.gv.at/PAKT/VHG/XXIV/I/I_00981/fnameorig_201069.html). At the hearing, the Austrian Government stated that, before the 2011 reform, only 37% of large companies complied with the disclosure requirements within the time allowed. It is clear from the above explanations that, in view of those statistics, the Austrian Government actually considered that the Republic of Austria might be regarded as failing properly to comply with its own obligation, under EU law, to adopt measures appropriate to ensure compliance with the disclosure requirements of companies.

( 30 ) See the description of that system in point 12 and footnote 8 above.

( 31 ) See, to that effect, Idryma Typou (cited in footnote 15 above), paragraph 54 and the case-law cited.

( 32 ) See footnote 6 above.

( 33 ) For a similar kind of analysis, see Innoventif (cited in footnote 19 above), paragraph 39, and Case C-70/95 Sodemare and Others [1997] ECR I-3395, paragraph 33.

( 34 ) See, inter alia, Case C-432/05 Unibet [2007] ECR I-2271, paragraph 37 and the case-law cited, and Joined Cases C-317/08 to C-320/08 Alassini and Others [2010] ECR I-2213, paragraph 61.

( 35 ) See, inter alia, Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others [2010] ECR I-8301, paragraph 92 and the case-law cited.

( 36 ) See, inter alia, Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 59, and Case C-289/04 P Showa Denko v Commission [2006] ECR I-5859, paragraph 50.

( 37 ) See, most recently, in descending chronological order: Opinion of Advocate General Cruz Villalón delivered on 12 June 2012 in Case C‑617/10 Åkerberg Fransson, pending before the Court, points 25 to 65 and footnote 4; Opinion of Advocate General Kokott in Case C‑489/10 Bonda [2012] ECR, points 13 to 20; Opinion of Advocate General Trstenjak delivered on 22 September 2011 in Joined Cases C-411/10 and C-493/10 N. S. and M. E. and Others [2011] ECR I-13905, points 71 to 81; and Opinion of Advocate General Bot delivered on 5 April 2011 in Case C-108/10 Scattolon [2011] ECR I-7491, points 116 to 119. For references to legal literature, see footnote 66 to the Opinion of Advocate General Bot cited in the present footnote.

( 38 ) See points 4, 5 and 7 above.

( 39 ) The present case is therefore fundamentally different from the – certainly more problematic – Åkerberg Fransson case (cited in footnote 37 above). The directive at issue in that case does not, as in the present case, lay down an explicit requirement for the Member States to introduce appropriate penalties for breach of the obligations under that directive, but, as explained in the Opinion of Advocate General Cruz Villalón, merely establishes a requirement that the Member States collect the tax effectively (see point 58 of the Opinion, cited in footnote 37 above). Consequently, while in Åkerberg Fransson national law is simply used to secure objectives laid down by EU law (see, in particular, point 60 of the abovementioned Opinion of Advocate General Cruz Villalón), in the present case the national legislative activity is based directly on EU law.

( 40 ) Consequently, according to the national court, both the civil law guarantees and the criminal law guarantees provided for under Article 6 of the ECHR should apply to that system.

( 41 ) See point 45 of the Opinion of Advocate General Kokott in Bonda (cited in footnote 37 above).

( 42 ) In that regard, see paragraph 36 et seq. of the judgment in Bonda (cited in footnote 37 above). The need to take account of the case-law of the ECtHR is based on the requirement of homogeneity established in the third subparagraph of Article 6(1) TEU and the first sentence of Article 52(3) of the Charter. See point 43 of the Opinion of Advocate General Kokott in Bonda (cited in footnote 37 above) and the case-law cited.

( 43 ) ECtHR, judgment in Engel and Others v. the Netherlands (Grand Chamber) of 8 June 1976 (nos 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72, Series A no. 22, §§ 80 to 82).

( 44 ) ECtHR, judgments in Engel (cited in footnote 43 above), § 82; Öztürk v. Germany of 21 February 1984 (no. 8544/79, Series A no. 73, § 52); and Menarini v. Italy of 27 September 2011 (no. 43509/08, § 39).

( 45 ) See, in particular, ECtHR, judgment of 10 February 2009 in Zolotukhin v. Russia (Grand Chamber) (no. 14939/03, §§ 52 and 53). For a detailed analysis of the factors that the ECtHR takes into consideration in analysing the second and third criteria, see points 48 and 49 of the Opinion of Advocate General Kokott in Bonda (cited in footnote 37 above) and the case-law cited.

( 46 ) ECtHR, judgment of 23 November 2006 in Jussila v. Finland (no. 73053/07, § 31 and the case-law cited). See also the judgments in Menarini (cited in footnote 44 above), § 38, and Zolotukhin (cited in footnote 45 above), § 52.

( 47 ) I must point out, however, that it is clear from the case-law of the Oberster Gerichtshof (Austrian Supreme Court; the ‘OGH’), to which Texdata referred at the hearing, that the OGH consistently holds that the fines imposed pursuant to Paragraph 283 of the UGB are not of a criminal law nature within the meaning of Article 6 of the ECHR. That line of authority has been confirmed on several occasions, including after the 2011 reform (see the judgments of the OGH of 13 September 2012 in Case 6Ob152/12i, paragraph 4, and of 16 February 2012 in Case 6Ob17/12m, paragraph 2). It is therefore absolutely clear from that case-law that the argument put forward by Texdata at the hearing, according to which it can be inferred from the case-law of the OGH that the system of penalties under Paragraph 283 of the UGB is of a criminal law nature, is in fact unfounded.

( 48 ) In the case-law of the ECtHR, the fact that a rule is directed not towards a given group possessing a special status, but towards the public at large, suggests that the penalty is of a criminal law nature. See the judgment in Öztürk (cited in footnote 44 above), § 53. Moreover, the Court of Justice has also taken that factor into account; see paragraph 40 of the judgment in Bonda (cited in footnote 37 above).

( 49 ) The values and interests protected by the rules at issue seem to me, generally, to belong more to the sphere of civil or administrative rather than criminal law. It should be pointed out, however, that criminal law penalties may conceivably be provided for in relation to the breach of obligations concerning companies’ accounting documents. We have only to think of the offence of providing false information on companies which is provided for under Articles 2621 and 2622 of the Italian Civil Code and was the subject of the reference for a preliminary ruling in Berlusconi and Others (cited in footnote 20 above).

( 50 ) In the case-law of the ECtHR, the penalty is not found to be of a criminal law nature if intended merely as pecuniary compensation for damage. See the judgment in Jussila (cited in footnote 46 above), § 38.

( 51 ) From that perspective, the penalties provided for under the rules at issue do not differ from the tax surcharges forming the subject-matter of the case-law of the ECtHR, to which the latter attributed criminal law nature, in that they were not intended as financial compensation, but as a punishment to discourage repeat offences. See the judgment in Jussila (cited in footnote 46 above), § 38.

( 52 ) The OGH in fact takes the view that penalties such as those provided for under the rules at issue serve not to punish prohibited conduct but, actually, to secure in coercive manner conduct which is required by law (see, in particular, paragraph 2 of the judgment of 16 February 2012, cited in footnote 47 above, and the judgment of 21 December 2011 in Case 6Ob23511v in which, in paragraph 4 specifically, the OGH sets out the reasons why the system of penalties at issue is not of a penal nature).

( 53 ) On the basis of that line of reasoning, the Court ruled out the possibility that the penalties at issue in that case had a punitive purpose. See paragraphs 39 to 42 of the judgment in Bonda (cited in footnote 37 above).

( 54 ) See the judgment of the ECtHR in Zolotukhin (cited in footnote 45 above), § 56.

( 55 ) I therefore have doubts as to whether, in the light of the case-law of the ECtHR, a fine of that amount may be defined as ‘substantial’. In that context, even though the ECtHR has found that the fact that the penalty is of a minor nature is not decisive in terms of divesting an offence of its inherently criminal character (Öztürk, cited in footnote 44 above, § 54, and Jussila, cited in footnote 46 above, § 35), it has, in some cases, taken the view that the fact that the fine was substantial constituted evidence which, being indicative of the severity of the fine, contributed to determining its criminal law nature. See the judgment of 24 February 1994 in Bendenoun v. France (no. 12547/86, Series A no. 284, § 47), and Menarini (cited in footnote 44 above), § 42. See also §§ 9 and 10 of the partly dissenting opinion of Judges Costa, Cabral Barreto, Mularoni and Caflisch in Jussila (cited in footnote 46 above).

( 56 ) In fact, under Paragraph 283(5) of the UGB, the fines imposed in ordinary proceedings, as well as those imposed in the event of persistent failure to comply, are multiplied by a coefficient of three or six respectively in the case of medium‑sized and large undertakings. This means that if fines to which a coefficient has been applied are repeatedly imposed on persons who are office holders in the bodies of medium-sized or large companies, the total amount of the fines could reach significant levels.

( 57 ) As regards the relevance of the degree of stigma, see the judgment of the ECtHR in Jussila (cited in footnote 46 above), § 43.

( 58 ) ECtHR, judgment in Jussila (cited in footnote 46 above), § 43; see also the Opinion of Advocate General Sharpston in Case C-272/09 P KME Germany and Others v Commission [2011] ECR I-12789, point 67.

( 59 ) See point 43 of my Opinion in Case C-279/09 DEB [2010] ECR I-13849.

( 60 ) Unibet (cited in footnote 34 above), paragraph 38 and the case-law cited.

( 61 ) See Unibet (cited in footnote 34 above), paragraphs 39 and 42 and the case-law cited; Alassini and Others (cited in footnote 34 above), paragraph 47; and Case C-246/09 Bulicke [2010] ECR I-7003, paragraph 25 and the case-law cited.

( 62 ) See Unibet (cited in footnote 34 above), paragraph 43 and the case-law cited, and Bulicke (cited in footnote 61 above), paragraph 25 and the case-law cited.

( 63 ) Case C-63/08 Pontin [2009] ECR I-10467, paragraph 47, and Bulicke (cited in footnote 61 above), paragraph 35 and the case-law cited.

( 64 ) The Court has set out those principles on a number of occasions. See, inter alia, Case C-110/10 P Solvay v Commission [2011] ECR I-10439, paragraph 47 and the case‑law cited; see also Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraph 21, and, recently, point 60 of the Opinion of Advocate General Bot delivered on 12 September 2012 in Case C‑300/11 ZZ, pending before the Court, and the case-law cited.

( 65 ) Bulicke (cited in footnote 61 above), paragraph 36 and the case-law cited.

( 66 ) In its observations, the Austrian Government states that, as a rule, the penalty order is accompanied by an appeal form which simplifies the submission of the appeal and also includes a specific section in which to set out the reasons for the appeal, and, as demonstrated by the Austrian Government at the hearing, states that the appeal must be lodged within 14 days.

( 67 ) In its observations, the Austrian Government indicates that, under Austrian law, a relaxation of the time-limits is possible, on the basis of the abovementioned rules laid down in Paragraph 283 of the UGB, read in conjunction, only if an unforeseeable or unavoidable event made it impossible to raise an objection within the prescribed period.

( 68 ) The referring court points out that the penalty order does not set out the legal consequences of a rejection of a late or unreasoned objection, or indicate that new pleas which have not yet been relied upon may not be introduced. In that regard, I note that since this does not stem from a statutory prohibition on the inclusion of such information, there is nothing to prevent the courts from mentioning it in the penalty order. In any event, that fact does not seem to me to be likely to jeopardise the effectiveness of the appeal either.

( 69 ) ECtHR, judgments in Jussila (cited in footnote 46 above), §§ 40, 41 and 43, and of 12 May 2010 in Kammerer v. Austria (no. 32435/06), §§ 23 and 24.

( 70 ) See Alassini and Others (cited in footnote 34 above), paragraph 63, and Case C‑619/10 Trade Agency [2012] ECR, paragraph 55 and the case-law cited.

( 71 ) Where a guarantee of that nature exists, the case-law of the ECtHR accepts that it is possible to derogate from the guarantees under Article 6 of the ECHR. See ECtHR, judgments of 29 April 1988 in Belilos v. Switzerland (Series A no. 132), § 68; Jussila (cited in footnote 46 above), § 43 in fine; and Menarini (cited in footnote 44 above), § 58. See also point 67 of the Opinion of Advocate General Sharpston in KME Germany and Others v Commission (cited in footnote 58 above).

( 72 ) As regards the justification put forward by Texdata, and taken up by the national court, that it was not familiar with Paragraph 283 of the UGB, I would point out that, on the one hand, it is not unreasonable to assume that foreign companies are familiar with the law of the Member State in which they intend pursuing their activities, and, on the other, that, in any event, the requirement that companies, and branches in particular, are to disclose company documents, and the provision for penalties in the event of failure to do so, exist in all the Member States and are based on EU law, under which they have now existed for more than 20 years.

( 73 ) See Case C-13/01 Safalero [2003] ECR I-8679, paragraph 40.

( 74 ) For an analysis of the way in which this principle has developed in the Court’s case-law, I would refer to the Opinion of Advocate General Kokott in Case C‑17/10 Toshiba Corporation and Others [2012] ECR, point 115 et seq., and the Opinion of Advocate General Cruz Villalón in Åkerberg Fransson (cited in footnote 37 above), point 88 et seq. In particular, in cases concerning the implementation of EU law at national level, as in the present case, the Court has applied the broad concept informing that principle, which leaves out of account the legal interest protected and attaches relevance solely to the criterion of identity of the material acts, understood as the existence of a set of specific circumstances which are inextricably linked together, necessarily implying unity of offender. See, in that regard specifically, point 91 of the Opinion of Advocate General Cruz Villalón in Åkerberg Fransson (cited in footnote 37 above) and points 122 and 124 of the Opinion of Advocate General Kokott in Toshiba Corporation and Others (cited in the present footnote). That, too, is the interpretation which has been applied by the ECtHR ever since its judgment in Zolotukhin (cited in footnote 45 above); see § 82 thereof, in particular.

( 75 ) The liability of members of the administrative, management and supervisory bodies of capital companies is, moreover, established in Articles 50b and 50c of the Fourth Directive.

( 76 ) What is more, that position is consistent with the position adopted by the OGH (see the judgment of the OGH of 13 September 2012, cited in footnote 47 above, paragraph 3). It is possible, of course – as the Commission has pointed out – that, in special cases such as that of a single-member company, the same person may be penalised twice over as member of a company body and as sole shareholder. In particular cases of that nature, it is for the national court to interpret Paragraph 283 of the UGB in a manner compatible with the principle of non bis in idem.

( 77 ) As can be seen from the order for reference, moreover, Austrian case-law takes the view that there is no breach of the principle of non bis in idem if the separate periods of infringement are clearly delimited in time, and the different penalties thus relate to different periods. See, in particular, the judgments of the OGH of 21 December 2012 in Cases 6Ob235/11v, 6Ob17/12m and 6Ob152/12i, and paragraph 8 of the judgment of 13 September 2012 (cited in footnote 47 above).

( 78 ) Moreover, I agree with the Austrian Government that precluding the reimposition of the penalty, following persistent failure to meet a clearly defined deadline, could enable an undertaking which had not complied with the disclosure requirement to pay the fine, but not thereafter comply with the disclosure requirement once that fine had been paid.