Provisional text

ORDER OF THE COURT (Ninth Chamber)

6 September 2022 ( )

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Article 82 TFEU – Right to information in criminal proceedings – Right of a person to be informed of the charges brought against him or her – Directive 2012/13/EU – Article 6(1) – Scope – Article 47 of the Charter of Fundamental Rights of the European Union – Effective judicial protection – Challenge to the excessive length of criminal proceedings – National legislation allowing such a challenge to be made only by persons with the status of suspect or accused person – Article 267 TFEU – Article 53(2) of the Rules of Procedure of the Court – Clear lack of jurisdiction)

In Case C‑95/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Judecătoria Târgu-Mureș (Court of First Instance, Târgu-Mureș, Romania), made by decision of 28 January 2022, received at the Court on 11 February 2022, in the proceedings brought by

Delgaz Grid SA,

THE COURT (Ninth Chamber),

composed of S. Rodin, President of the Chamber, C. Lycourgos (Rapporteur), President of the Fourth Chamber, acting as Judge of the Ninth Chamber, and J.‑C. Bonichot, Judge,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 53(2) of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 This request for a preliminary ruling concerns the interpretation of Article 6(1) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1), Article 82 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings initiated by Delgaz Grid SA due to the length of criminal proceedings conducted by the Parchetul de pe lângă Judecătoria Alba Iulia (Public Prosecutor’s Office at the Court of First Instance, Alba Iulia, Romania) (‘the Public Prosecutor’s Office’) in respect of offences comprising fraud, the making of intentionally false statements and the use of false documents leading to an increase in gas bills paid by end users.

Legal context

European Union law

3 Article 1 of Directive 2012/13, entitled ‘Subject matter’, provides:

‘This Directive lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them. It also lays down rules concerning the right to information of persons subject to a European Arrest Warrant relating to their rights.’

4 Under the heading ‘Scope’, Article 2 of that directive provides in its paragraph 1:

‘This Directive applies from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal.’

5 Article 4 of that directive concerns the Letter of Rights on arrest of suspects or accused persons and Article 5 thereof concerns that letter in European arrest warrant proceedings.

6 Article 6(1) of Directive 2012/13 provides:

‘Member States shall ensure that suspects or accused persons are provided with information about the criminal act they are suspected or accused of having committed. That information shall be provided promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence.’

Romanian law

7 Article 4881 of Legea nr. 135/2010 privind Codul de procedură penală (Law No 135/2010 on the Code of Criminal Procedure) of 1 July 2010 (Monitorul Oficial al României, Part I, No 486 of 15 July 2010) (‘the Code of Criminal Procedure’), entitled ‘Introduction of a challenge’, provides:

‘1. If the prosecution or trial is not carried out within a reasonable period, it is possible to lodge a complaint by requesting that the proceedings be expedited.

2. The complaint may be brought by the suspect, the accused person, the victim, the civil party and the party liable in civil law. In the course of the proceedings, the complaint may also be brought by the prosecution service.

…’

The main proceedings, the question referred for a preliminary ruling and the procedure before the Court

8 On 1 July 2019, the criminal investigation authorities of the Inspectoratul de Poliție Județean Alba – Serviciul de Investigare a Criminalității Economice (District Police Inspectorate – Economic Crime Unit, Alba, Romania) opened an investigation into Delgaz Grid employees who, it was claimed, had, inter alia, removed, for their own benefit, equipment or goods which had been entrusted to them, facilitated the removal of fuel by establishing false documents and carrying out activities liable to generate losses and undermine the proper functioning of the distribution service. That investigation resulted in the opening, on 2 July 2019, of criminal proceedings for, inter alia, abuse of office and misappropriation of public funds, which were extended, on 8 January 2020, to fraud, the making of intentionally false statements and the use of false documents. In the light of those proceedings, a criminal investigation file was opened by the Public Prosecutor’s Office.

9 On 29 October 2020, the investigation was split up by the Public Prosecutor’s Office, with the result that the criminal proceedings in respect of the offences of fraud, the making of intentionally false statements and the use of false documents gave rise to the opening of a separate criminal file, which is the subject of the main proceedings. During the investigation of that criminal file, approximately 87 searches were carried out at the head office and premises of Delgaz Grid, as a result of which numerous documents were seized, and approximately 174 current or former employees were interviewed as witnesses.

10 On 21 July 2021 Delgaz Grid brought an action before the Judecătoria Târgu-Mureș (Court of First Instance, Târgu-Mureș, Romania), which is the referring court, by which it sought to challenge the length of the criminal proceedings, which it considers to be unjustifiably prolonged.

11 On 4 August 2021, the Public Prosecutor’s Office requested that that action be dismissed as inadmissible, in so far as Delgaz Grid did not, in the criminal proceedings at issue in the main proceedings, have the status of suspect or accused person, which was, however, required by the Code of Criminal Procedure in order to bring such an action.

12 In that regard, Delgaz Grid submits, in essence, that national legislation which authorises a person to challenge the length of criminal proceedings only if he or she has been formally notified that he or she is the subject of criminal charges as a suspect or an accused person is contrary to EU law. It takes the view, in particular, that, in the light of the fact that Directive 2012/13 does not define the concepts of ‘suspects’ or ‘accused persons’, it is necessary to determine whether those concepts cover persons who, de facto, have such status.

13 The referring court takes the view that the situation at issue in the main proceedings comes within the scope of EU law in so far as Delgaz Grid claims that the national legislation governing the action challenging the length of the criminal proceedings, provided for in Article 4881(2) of the Code of Criminal Procedure, is, in the light of the case-law of the European Court of Human Rights, contrary to EU law, in particular to Article 6(1) of Directive 2012/13, Article 47 of the Charter and Article 82 TFEU.

14 The referring court states that the Court’s answer to the question referred will have a bearing on the outcome of the main proceedings. It states, in this regard, first, that the Curtea Constituțională (Constitutional Court, Romania) has declared the provisions of Article 4881(2) of the Code of Criminal Procedure consistent with the Romanian Constitution; secondly, that, at the time when Delgaz Grid brought the action seeking to challenge the length of the criminal proceedings at issue in the main proceedings, the criminal proceedings were based on material acts (criminal proceedings in rem), and that that company had not acquired the status of suspect or accused person; thirdly, that the Romanian legislature recognises the possibility of introducing the action provided for by national law in the event of the unjustified prolongation of criminal proceedings only for persons who are the subject of a criminal charge and who have received formal notification of the charge brought against them, that is to say those who have the status of suspect or accused person; and finally, fourthly, that the practice of national courts is to reject as inadmissible applications challenging the length of criminal proceedings in situations such as that which led to the referral of the present case to the Court.

15 In those circumstances, the Judecătoria Târgu-Mureș (Court of First Instance, Târgu-Mureș) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does Article 6(1) of Directive [2012/13], read in conjunction with Article 82 TFEU and Article 47 of the [Charter] on the right to an effective remedy and to a fair trial, preclude national legislation which fails to provide that persons who are the subject of criminal charges, but who have not been formally notified of the existence of the charges against them, have the right to contest the excessive length of the criminal proceedings in which they have been under investigation?’

16 The referring court has requested, on the basis of Article 105(1) of the Rules of Procedure of the Court of Justice, that an expedited procedure be applied to the present case.

The jurisdiction of the Court

17 Under Article 53(2) of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

18 It is appropriate to apply that provision in the present case.

19 According to settled case-law, in the context of a request for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred upon it (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 77 and the case-law cited).

20 In accordance with Article 1 thereof, Directive 2012/13 defines rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them.

21 In accordance with Article 2(1) thereof, that directive applies from the time at which persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal.

22 Article 6(1) of that directive, which is the provision referred to by the referring court, provides that Member States are to ensure that suspects or accused persons are provided with information about the criminal act which they are suspected or accused of having committed. That information is to be provided promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence.

23 In the present case, Delgaz Grid submits that it is impossible to bring an action under Article 4881 of the Code of Criminal Procedure, in order to challenge the excessive length of criminal proceedings relating to offences of which it regards itself as being suspected, since that provision offers the possibility of bringing such an action only to persons who have the status of ‘suspect’ or ‘accused person’, a status which Delgaz Grid does not have.

24 In that regard, it should be noted that, despite the wording of the question referred, which might suggest that Delgaz Grid is the subject of a criminal charge, it is apparent from the request for a preliminary ruling that that is not the case. At the time when its action was brought under Article 4881 of the Code of Criminal Procedure, the criminal proceedings at issue had not been brought against Delgaz Grid and the latter had not received formal notification of the existence of any charges against it.

25 As has been recalled in paragraphs 20 and 21 of the present order, Directive 2012/13 merely defines rules concerning the right to information of suspects or accused persons relating to their rights in criminal proceedings and to the accusation made against them as soon as a person has been informed by the competent authorities that he or she is suspected or accused of having committed a criminal offence.

26 In those circumstances, since Delgaz Grid is not subject to criminal proceedings and did not receive any such information from the competent national authorities, it must be held that the situation at issue in the main proceedings does not come within the scope of Directive 2012/13 and, consequently, that Article 6(1) of that directive, cited in the question referred, is not applicable in the present case.

27 Moreover, Article 82 TFEU, also mentioned by the referring court, which opens Chapter 4, entitled ‘Judicial cooperation in criminal matters’, of Title V of the FEU Treaty, relating to the area of freedom, security and justice, sets out the measures which the EU legislature must adopt in order to achieve full cooperation between Member States in the field of criminal justice, and lays down the rule providing that such cooperation must be based on the principle of mutual recognition. Since that article is addressed solely to the institutions of the European Union, it is not applicable in the present case (see, to that effect, judgment of 7 June 2012, Vinkov, C‑27/11, EU:C:2012:326, paragraphs 41 and 42).

28 Lastly, it must be recalled that the Charter’s field of application, so far as concerns action of the Member States, is defined in its Article 51(1), pursuant to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law (judgment of 16 December 2021, AB and Others (Revocation of an amnesty), C‑203/20, EU:C:2021:1016, paragraph 37).

29 Moreover, Article 51(1) of the Charter confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 16 December 2021, AB and Others (Revocation of an amnesty), C‑203/20, EU:C:2021:1016, paragraph 38 and the case-law cited).

30 Thus, where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form a basis for such jurisdiction (judgment of 16 December 2021, AB and Others (Revocation of an amnesty), C‑203/20, EU:C:2021:1016, paragraph 39).

31 That is the situation in the present case, with the result that Article 47 of the Charter cannot be considered to be applicable.

32 Consequently, since none of the three provisions of which the referring court seeks an interpretation is applicable in the present case, it must be held, on the basis of Article 53(2) of the Rules of Procedure, that the Court clearly has no jurisdiction to answer the question referred by the Judecătoria Târgu-Mureș (Court of First Instance, Târgu-Mureș).

33 In those circumstances, there is no need for the Court to rule on the referring court’s request that the case be determined pursuant to the expedited procedure.

Costs

34 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, the Court (Ninth Chamber) hereby orders:

The Court of Justice of the European Union clearly has no jurisdiction to answer the question referred by the Judecătoria Târgu-Mureș (Court of First Instance, Târgu-Mureș, Romania), by decision of 28 January 2022.

[Signatures]