Opinion of the Advocate-General



Opinion of the Advocate-General

I – Introduction

1. The present reference for a preliminary ruling concerns questions of discrimination on grounds of nationality in the context of the award of State compensation to victims of crime. The Court of Justice addressed a similar subject in Cowan . (2)

2. However, unlike Cowan , the present case does not concern compensation for victims of crimes committed in the territory of the Member State concerned. Rather, in this case, the Court of Justice is asked to assess the compatibility with the requirements of Community law of a national provision that also provides for compensation for victims of crimes committed abroad, but only grants such compensation to nationals of that Member State.

II – Legal framework

A – Community law

3. The first paragraph of Article 12 EC provides:

‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

4. Article 17 of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (3) (‘Directive 2004/80’) is worded as follows:

‘More favourable provisions

This Directive shall not prevent Member States, in so far as such provisions are compatible with this Directive, from:

(a) introducing or maintaining more favourable provisions for the benefit of victims of crime or any other persons affected by crime;

(b) introducing or retaining provisions for the purpose of compensating victims of crime committed outside their territory, or any other person affected by such a crime, subject to any conditions that Member States may specify for that purpose.’

B – National law

5. Article 706-3 of the French Code de procédure pénale (Code of Criminal Procedure) provides:

‘Any person who has suffered harm caused by intentional or unintentional acts which constitute the actus reus of an offence may obtain full compensation for the damage deriving from offences against the person where the following cumulative conditions are met:

1. …

2. …

3. The person injured is a French national; or if this is not the case, the acts were committed on the national territory and the person injured is:

– either a citizen of one of the Member States of the European Economic Community,

– or, subject to the provisions of international treaties and agreements, lawfully resident in France at the time of the offence or of the application.

…’

III – Facts and main proceedings

6. James Wood is a British national who has lived in France for more than 20 years. He and his partner, a French national, had three children together, who also have French nationality.

7. In 2004, one of the children, their daughter Helena Wood, was killed in a car accident in Australia, where she was staying in order to receive professional training.

8. The Wood family brought a claim before the Compensation Board for Victims of Crime, Nantes (Commission nantaise d’indemnisation des victimes d’infractions) (‘the Compensation Board’), seeking compensation for the material and non-pecuniary losses they suffered as a result of Helena Wood’s death.

9. The mother and the siblings were awarded a right to compensation in an amount agreed with the relevant Guarantee Fund (Fonds de garantie).

10. However, the Guarantee Fund refused to pay compensation to the dead girl’s father, on the ground that he did not fulfil the requirements under Article 706-3 of the Code de procédure pénale. In accordance with that provision, only French nationals have a right to compensation if the event giving rise to the harm was committed outside French territory. Given that Mr Wood, unlike the other family members, does not have French nationality, he does not have a right to compensation. He would only have a right to compensation if the accident involving his daughter had occurred in France.

11. On 11 January 2007, Mr Wood brought an action against the Guarantee Fund before the Compensation Board of the Tribunal de grande instance de Nantes (Regional Court, Nantes). He based his claim on the overriding provisions of Article 7 of the Treaty of Rome (now Article 12 EC), which prohibit all discrimination on grounds of nationality.

12. According to Mr Wood, the discrimination consists in the fact that, even though he has lived, worked and paid taxes in France for more than 20 years, he was not awarded the same compensation for victims of crime as his partner and his children, who are French nationals, on the sole ground that he does not have French nationality.

IV – The reference for a preliminary ruling and the procedure before the Court

13. By decision of 16 March 2007, the Compensation Board of the Tribunal de grande instance de Nantes stayed proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘In the light of the general principle of non-discrimination on grounds of nationality, set out in Article 7 of the Treaty of Rome, are the provisions of Article 706-3 of the French Code de procédure pénale compatible or not with Community law in that a citizen of the European Community, residing in France, the father of a child having French nationality who died outside [French] territory, does not have a right to compensation paid by the Fonds de garantie on the sole ground of his nationality?’

14. In the proceedings before the Court of Justice, James Wood and the Guarantee Fund submitted written and oral observations, as did the French Government and the Commission. In addition, the Italian and the Portuguese Government submitted written observations to the Court of Justice.

V – Analysis

A – Admissibility of the reference for a preliminary ruling

15. Before I examine the question referred for a preliminary ruling, I have briefly to address two issues relating to the admissibility of the question.

1. Interpretation of the question

16. The question refers to Article 7 of the Treaty of Rome. However, the prohibition of any discrimination on grounds of nationality now appears, in identical terms, in the first paragraph of Article 12 of the Treaty establishing the European Community (EC). In addition, the first paragraph of Article 12 EC is applicable ratione temporis to the present case. Therefore, below, reference will be made to the first paragraph of Article 12 EC.

17. In the light of the wording of the question, it should moreover be noted, that, in accordance with consistent case-law, in proceedings under Article 234 EC, the Court does not have jurisdiction to rule on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it. (4)

18. Consequently, the question referred for a preliminary ruling must be understood to be a request for an interpretation of the first paragraph of Article 12 EC.

2. The Compensation Board’s right to make a reference

19. Moreover, one could ask whether, for the purposes of Article 234 EC, the Compensation Board which has referred the question to the Court of Justice is a court entitled to make a reference. In this respect, reference can be made to the Opinion in Cowan , in which Advocate General Lenz correctly stated, following a detailed explanation, that such a board had to be regarded as a court for the purposes of Article 234 EC. (5) He argued that such a board is an independent judicial body responsible for adjudicating on claims for compensation by victims of crime; it has a legislative basis, has been conceived as a court of compulsory jurisdiction and arrives at its decisions by the application of legal rules, in particular the Code de procédure pénale.

3. Interim conclusion

20. Consequently, the reference for a preliminary ruling from the Compensation Board of the Tribunal de grande instance de Nantes is admissible.

B – Substantive analysis of the question referred

21. The present reference for a preliminary ruling essentially asks whether the first paragraph of Article 12 EC must be interpreted as precluding a national provision according to which only nationals of a Member State are entitled to receive compensation payable to victims of crimes committed outside that State, with the result that compensation is denied to a national of another Member State residing in that Member State.

22. Before discussing the implications of the first paragraph of Article 12 EC for that national provision, one must first take a closer look at Directive 2004/80.

1. Directive 2004/80 relating to compensation to crime victims

23. The Portuguese and Italian Governments have rightly pointed out that the area of compensation for victims of crimes committed outside the territory of a Member State has not been harmonised. It is true that, as regards the subject area of compensation for victims of crime, a Community act has been passed, namely Directive 2004/80. However, Article 17 of that directive makes it clear that it does not prevent Member States from introducing or retaining provisions for the purpose of compensating victims of crime committed outside their territory, or any other person affected by such a crime.

24. Those two governments conclude, on the basis of the fact that the Member States retain that competence, that Community law does not determine Member State legislation in this area. However, that is not a conclusion that can be drawn from the competence of the Member States.

25. It is particularly in those areas that remain within their competence that Member States must exercise that competence consistently with Community law. (6) Therefore, it has to be examined below whether the prohibition of discrimination laid down in Article 12 EC sets parameters, and, if so, what those parameters are.

2. Scope of application of the prohibition of discrimination

26. The first paragraph of Article 12 EC prohibits any discrimination on grounds of nationality within the scope of application of the Treaty . Therefore, it must be examined first whether the circumstances of the present case bring it within the scope of application of the Treaty.

27. According to the settled case-law of the Court of Justice, situations falling within the scope of application of Community law include those involving the exercise of the fu ndamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC. (7)

28. Therefore, the present case falls within the scope of application of the Treaty, either because Mr Wood moved to France, where he is engaged in an economic activity, or because he exercised his right to freedom of movement as a citizen of the Union.

29. The reference for a preliminary ruling does not contain detailed information concerning Mr Wood’s professional situation. It merely mentions, on one occasion, that Mr Wood submits that he has been living and working in France for more than 20 years. However, it is not made clear in the reference whether he is an employee or self-employed. Nor is it clear whether his assertions are undisputed, or whether the reference merely repeats what the applicant has submitted.

30. If one relies on this information, it means that at the moment in time that is relevant to determining whether a right to compensation exists, Mr Wood was either exercising his right to freedom of movement for workers under Article 39 EC or his right to freedom of establishment under Article 43 EC.

31. However, if it transpires, in the course of the proceedings before the Compensation Board of the Tribunal de grande instance de Nantes, that Mr Wood was not working, the case would fall within the scope of application of the Treaty within the meaning of Article 12 EC by virtue of the Treaty provision on citizenship of the Union (Article 18 EC). According to the case-law, a Union citizen who has exercised his right to free movement under Article 18(1) EC falls within the scope of the Treaty and consequently may rely on the general principle of non-discrimination laid down in the first paragraph of Article 12 EC.

32. The status of citizen of the Union is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard. (8)

33. It will be for the Compensation Board of the Tribunal de grande instance de Nantes to determine in concrete terms whether the present case falls within the scope of application of the Treaty by virtue of Article 39 EC, Article 43 EC or Article 18 EC.

34. To conclude, there is no doubt that Mr Wood’s situation falls within the scope of application of the Treaty, which means that he can invoke his right not to be subject to discrimination on grounds of nationality.

3. Unequal treatment

35. Therefore, it has to be examined below whether Mr Wood has been subject to discrimination on the ground of his nationality. According to the Guarantee Fund, it has already been determined that there has been no unequal treatment. The Guarantee Fund states as a reason inter alia that Mr Wood would have received compensation if he had given up his British citizenship and accepted French nationality.

36. According to consistent case-law, the prohibition of discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. (9)

37. Comparing Mr Wood’s situation with that of his French partner, it becomes obvious that, in the present case, comparable situations are being treated differently. Both have lived together in France for more than 20 years and lost their daughter as a result of a crime committed outside French territory. They are both related to the same degree to the deceased and have therefore suffered the same harm.

38. It follows that, as regards the conditions that need to be fulfilled to found a right to compensation, the only difference between Mr Wood and his partner is his nationality. Nevertheless, only Mr Wood’s partner receives compensation, while he does not.

39. It follows that comparable situations are being treated differently. Given that the difference in treatment is based, explicitly, on the decisive factor of nationality, this is a form of direct discrimination. Contrary to the submission of the Guarantee Fund, it is irrelevant for the purposes of establishing discrimination that Mr Wood could have acquired the right to compensation by changing his nationality.

4. Justification

40. Therefore, the question that remains to be examined is whether that discrimination is justifiable.

41. A difference in treatment can be justified only if it is based on objective considerations independent of nationality and is proportionate to the legitimate aim of the national provisions. (10)

42. It is questionable whether a national rule that discriminates directly on grounds of nationality can ever be justified. (11) However, there is no need to discuss this here, since – even if one assumes that it may be possible to provide such a justification – it must be concluded that, in the present case, no such justification exists.

43. The Portuguese Government considers that the idea of national solidarity provides a justification, so that a Member State can restrict the payment of compensation for crimes committed outside its own territory to its own nationals.

44. The French Government itself admits that, in its view, Mr Wood should receive compensation, in the same way that his wife and his children did. In other words, the French Government does not offer any justification for making the payment of compensation conditional on nationality.

45. However, the French Government does refer to the burden that would be placed on the financing of and the overall level of assistance under the compensation scheme if compensation were granted to victims of crime without any limitation. The system of compensation for victims of crime is particularly generous in France and provides compensation in a particularly large number of cases. It compensates not only direct victims of crime, but also indirect victims, with a wide definition given to the concept of ‘indirect victim’.

46. If no limits were imposed, any national of another Member State, even if he were just staying in France for a short tourist visit, could claim victim compensation in France, even in a situation in which, during his stay in France, a person close to him became a victim of crime, either in his country of origin or in a third country.

47. The Court of Justice has recognised that, in certain circumstances, a Member State can make the payment of certain social security benefits that could become an unreasonable burden conditional on the existence of a genuine link between the person and the State, (12) a certain degree of integration (13) or a special connection (14) to the society of that Member State. For example, in Bidar , the Court of Justice found, in connection with the provision of assistance for maintenance costs, that it is permissible for a Member State to ensure that the grant of assistance to cover the maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State.

48. Applying those considerations to the present circumstances, it appears permissible to make the award of compensation to victims of crimes committed abroad conditional on a genuine connection between the person claiming compensation and the Member State granting it, to counter the risk of an unreasonable burden being placed on that Member State.

49. A national provision seeking to restrict the payment of compensation to victims of crime committed outside French territory to persons with a genuine connection to French society would, to all intents and purposes, pursue a legitimate aim.

50. However, in order to be legitimate, such a national provision also has to be proportionate. (15) A measure is proportionate when, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain it.

51. With regard to benefits that are not covered by Community law, Member States do enjoy a wide margin of appreciation in deciding which criteria are to be used when assessing the degree of genuine connection to society, but they must at the same time comply with the limits imposed by Community law. (16)

52. However, even if one were to consider a measure that discriminates directly to be – in principle – justifiable, a national provision that refers to nationality as a requirement for the award of victim compensation cannot be justified.

53. In fact, by relying exclusively on the nationality of the beneficiary, persons who have an altogether genuine connection to French society are precluded from being granted compensation too. A person like Mr Wood, who has lived and worked in France for more than 20 years, is undoubtedly – as, incidentally, even the French Government admits – sufficiently integrated into French society to preclude denying him an award of victim compensation. For a start, such a measure is not appropriate for the attainment of the objective pursued.

54. However, one possible requirement to determine whether there is a genuine connection to French society could be the place of residence of the applicant. (17) Integration of a beneficiary into the society of the relevant Member State may be regarded as established by a finding that he has resided in that host Member State for a certain length of time. (18) However, the actual terms of such a residence requirement and, in particular, the required duration of the stay, must also comply with the principle of proportionality. (19)

55. The judgment of the Court of Justice in Cowan would not conflict with such a residence requirement.

56. The judgment in Cowan was based on a provision under French law according to which the award of victim compensation was conditional on the beneficiary holding a residence permit or being a national of a country which has entered into a reciprocal agreement with France.

57. Mr Cowan came to France as a tourist and, while in France, became the victim of a crime. Given that Mr Cowan’s stay as a tourist had to be subsumed under the passive freedom to provide services, the national rule in question fell within the scope of application of the Treaty within the meaning of Article 12 EC. The Court of Justice held that it constituted an unjustified unequal treatment for the French rule to make the award of compensation to persons that are not French nationals conditional on that person holding a residence permit – in other words, conditional on living in France – while French nationals did not have to fulfil that requirement. (20)

58. However, it does not follow from this judgment that, under the present circumstances, a residence requirement would be incompatible with Community law.

59. In Cowan , the ‘genuine connection’ between the citizen and the State already existed for another reason. In that case, the link to France was sufficient because the crime was committed on French territory and Mr Cowan was the direct victim of that crime. Given that this created a genuine connection, the award of compensation could not be made conditional on the existence of a further ‘genuine connection’ in the form of a residence requirement.

60. Given that in circumstances such as those underlying the Wood case, the genuine connection is not established by the place in which the crime was committed, the residence requirement could, unlike in Cowan , be considered permissible in this case.

5. Interim conclusion

61. The refusal to pay victim compensation on grounds of nationality cannot be justified.

VI – Conclusion

62. In the light of the foregoing observations, I suggest to the Court that it should answer the question as follows:

The first paragraph of Article 12 EC has to be interpreted to the effect that a Member State cannot make the award of State compensation to persons living in its territory for crimes committed outside its territory conditional on those persons holding the nationality of that Member State.

(1) .

(2) – Case 186/87 [1989] ECR 195.

(3) – OJ 2004 L 261, p. 15.

(4) – See Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraph 24; Case C‑28/99 Verdonck and Others [2001] ECR I‑3399, paragraph 28; and Case C‑292/92 Hünermund and Others [1993] ECR I‑6787, paragraph 8.

(5) – Opinion of Advocate General Lenz in Case 186/87 Cowan [1989] ECR 195, point 7. In its judgment in Cowan (cited in footnote 2), the Court of Justice tacitly assumed that such a board was entitled to make a reference.

(6) – See Case C-101/05 Skatteverket [2007] ECR I-0000, paragraph 19, and Cowan (cited in footnote 2), paragraph 19.

(7) – See Case C‑318/05 Commission v Germany [2007] ECR I-6957, paragraph 126; Case C‑76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849, paragraph 87; Joined Cases C‑11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161, paragraph 23; Case C‑403/03 Schempp [2005] ECR I‑6421, paragraph 18; Case C‑148/02 Garcia Avello [2003] ECR I‑11613, paragraph 24; and Case C‑274/96 Bickel and Franz [1998] ECR I‑7637, paragraph 15.

(8) – See, inter alia, Commission v Germany (cited in footnote 7), paragraph 125; Case C‑138/02 Collins [2004] ECR I‑2703, paragraph 61; Garcia Avello (cited in footnote 7), paragraphs 22 and 23; Case C‑224/98 D'Hoop [2002] ECR I‑6191, paragraph 28; and Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31.

(9) – See Case C-300/04 Eman and Sevinger [2006] ECR I-8055, paragraph 57; Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95; and Garcia Avello (cited in footnote 7), paragraph 31.

(10) – Case C‑209/03 Bidar [2005] ECR I‑2119, paragraph 54; Case C‑258/04 Ioannidis [2005] ECR I‑8275, paragraph 29; D’Hoop (cited in footnote 8), paragraph 36; Bickel and Franz (cited in footnote 7), paragraph 27; and Garcia Avello (cited in footnote 7), paragraph 31.

(11) – Among others, the following cases hint at the theoretical possibility of justifying direct discrimination: Case C‑360/00 Ricordi [2002] ECR I‑5089, paragraph 33; Case C‑85/96 Martínez Sala [1998] ECR I‑2691, paragraph 64; Case C‑122/96 Saldanha and MTS [1997] ECR I‑5325, paragraph 26 et seq.; and Case C‑323/95 Hayes [1997] ECR I‑1711, paragraph 24. Among others, the following cases argue against it: Joined Cases C‑92/92 and C‑326/92 Phil Collins and Others [1993] ECR I‑5145, paragraph 32, and Case 293/83 Gravier [1985] ECR 593.

(12) – D’Hoop (cited in footnote 8), paragraph 38, and Collins (cited in footnote 8), paragraph 67.

(13) – Morgan and Bucher (cited in footnote 7), paragraph 43, and Bidar (cited in footnote 10), paragraphs 56 and 57.

(14) – Case C‑192/05 Tas-Hagen and Tas [2006] ECR I‑10451, paragraph 34.

(15) – See Commission v Germany (cited in footnote 7), paragraph 136, and Tas-Hagen and Tas (cited in footnote 14), paragraph 35.

(16) – Tas-Hagen and Tas (cited in footnote 14), paragraph 36, and my Opinion in Case C‑192/05 Tas-Hagen and Tas [2006] ECR I-10451.

(17) – See, with reference to this requirement, my Opinion in Tas-Hagen and Tas (cited in footnote 16), point 62 et seq.

(18) – Bidar (cited in footnote 10), paragraph 59.

(19) – Collins (cited in footnote 8), paragraphs 66 and 72, and Tas-Hagen and Tas (cited in footnote 14), paragraphs 36 and 37. Also see my Opinion in Tas‑Hagen and Tas (cited in footnote 16), points 63 and 64.

(20) – Cowan (cited in footnote 2), paragraph 10.