Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 10 November 2022( )

Case C‑40/21

T.A.C.

v

ANI

(Request for a preliminary ruling from the Curtea de Apel Timişoara (Court of Appeal, Timisoara, Romania))

(Request for a preliminary ruling – Decision 2006/928/EC – Cooperation and verification mechanism – Elective public office – Conflict of interest – Penalties – Prohibition to hold any elective public office for a period of time – Charter of Fundamental Rights of the European Union – Article 49(3) – Proportionality of penalties – Direct effect of the principle of proportionality – Powers of national courts – Article 15(1) – Right to engage in work – Concept of ‘work’ – Article 47 – Right to an effective remedy)





I. Introduction

1. Acting unlawfully in a situation of conflict of interest can probably be regarded as one of the capital sins for politicians and civil servants. Indeed it strikes at the heart of their mission to serve the public interest. The concept of ‘conflict of interest’ is, in fact, centuries old and has given rise to various sets of (binding and non-binding) rules at national, international and infranational level. ( )

2. Some guiding principles on this matter can be found, inter alia, in the ‘International Code of Conduct for Public Officials’ adopted by the United Nations (‘UN’) General Assembly in 1996, ( ) and in the ‘Model code of conduct for public officials’ adopted by the Council of Europe in 2000. ( ) Naturally, several instruments adopted by the European Union include rules aimed, each within its own ambit, at preventing conflicts of interest of EU or national officials. One such instrument is Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption. ( )

3. The present case, originating in a request for a preliminary ruling by the Curtea de Apel Timişoara (Court of Appeal, Timisoara, Romania), concerns the interaction between Decision 2006/928, national legislation adopted to implement that decision, and the Charter of Fundamental Rights of the European Union (‘the Charter’). In essence, the referring court asks the Court whether EU law – in particular, Article 15(1), Article 47 and Article 49(3) of the Charter – precludes national legislation pursuant to which a penalty consisting in a prohibition to hold any elective public office for a fixed period of time is imposed automatically on the person found to have acted in a conflict of interest (‘the penalty at issue’).

4. Despite its apparent simplicity, that question raises a number of interesting legal issues regarding the scope of application of those provisions of the Charter and the powers and duties of national courts when national law provides for disproportionate penalties for infringements of national provisions that implement EU law.

II. Legal framework

A. European Union law

5. The first paragraph of Article 1 of Decision 2006/928 provides:

‘Romania shall, by 31 March of each year, and for the first time by 31 March 2007, report to the Commission on the progress made in addressing each of the benchmarks provided for in the Annex.’

6. The annex enumerates those benchmarks. Point 2 thereof reads:

‘Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.’

B. National law

7. Article 25 of Legea nr. 176/2010 privind integritatea în exercitarea funcțiilor și demnităților publice, pentru modificarea și completarea Legii nr. 144/2007 privind înființarea, organizarea și funcționarea Agenției Naționale de Integritate, precum și pentru modificarea și completarea altor acte normative (Law No 176/2010 on integrity in the performance of public duties and the holding of public office and amending Law No 144/2007 on the establishment, organisation and operation of the National Integrity Agency and amending certain other acts; ‘Law No 176/2010’) provides:

‘1. In the case where an individual has issued an administrative act, concluded a legal act, adopted a decision or participated in the adoption of a decision in breach of the legal obligations relating to conflicts of interest or to situations entailing incompatibility, his action shall constitute a disciplinary offence and shall be punished in accordance with the rules which apply to his office, function or relevant activities, in so far as the provisions of the present law provide no derogation therefrom and where the action does not constitute a criminal offence.

2. An individual who has been relieved of his duties or dismissed from office in accordance with paragraph 1, or in respect of whom a conflict of interest has been established or a situation entailing incompatibility, shall no longer be entitled to perform the public duties or hold the public office to which the provisions of this law apply, with the exception of electoral duties, for a period of three years from the date on which he is relieved of his duties or dismissed from the public office in question or from the date on which his mandate automatically terminates. In the case where the individual has performed electoral duties, he shall no longer perform the same duties for a period of three years from the date of termination of his mandate. In the case where the individual no longer performs public duties or holds public office at the time when the situation entailing incompatibility or a conflict of interest is established, the three-year period of prohibition shall commence, in accordance with the law, on the date on which the assessment report becomes final or on the date on which a judicial decision confirming the conflict of interest or the situation entailing incompatibility becomes final and irrevocable.’

8. In that connection, the referring court mentions Decizia nr. 418/2014 (Decision No 418/2014) of the Curtea Constituțională (Constitutional Court, Romania), according to which the expression ‘aceeași funcție’ (‘the same duties’), appearing in Article 25(2) of Law No 176/2010, covers all elective duties, including those of the office of mayor.

III. Facts, national proceedings and the questions referred

9. T.A.C., the applicant in the main proceedings, was, at the material time, mayor of a city in Romania.

10. In an assessment report dated 25 November 2019 (‘the assessment report’), the Agenția Națională de Integritate (National Integrity Agency, Romania; ‘the ANI’) – an administrative authority responsible for the assessment of conflicts of interest – found that the applicant had failed to comply with the rules governing conflicts of interest in administrative affairs. During his term of office as mayor, he had concluded a ‘loan for use’ agreement with an association, of which the applicant’s wife was a founding member and vice-chairperson. Under that agreement that association was granted the right to use, free of charge, certain premises belonging to the city for a period of five years, for the purposes of cultural activities.

11. On 19 December 2019, the applicant brought an action before the Tribunalul București (Regional Court, Bucharest, Romania) seeking the annulment of the assessment report. In support of his application, the applicant argued, inter alia, that EU law precludes national legislation pursuant to which a penalty such as a prohibition to hold any elective public office for a period of three years is imposed automatically on the person found to have acted in a conflict of interest, and cannot be modulated according to the gravity of the breach committed.

12. By judgment of 27 February 2020, the Tribunalul București (Regional Court, Bucharest) declared that it did not have jurisdiction to hear the action and referred the case to the Curtea de Apel Timișoara (Court of Appeal, Timisoara). That court, harbouring doubts as to the correct interpretation of the relevant provisions of EU law, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the principle of proportionality of penalties, enshrined in Article 49 of [the Charter], to be interpreted as also applying to facts other than those which are formally defined as criminal offences under national law, but which may be regarded as “criminal charges” within the meaning of Article 6 of the European Convention on Human Rights, ( ) in the light of the criteria developed by the case-law of the European Court of Human Rights, ( ) in particular the criterion of the severity of the penalty, as in the case in the main proceedings in so far as concerns the appraisal of a conflict of interest which may result in the application of an additional penalty consisting in a prohibition to hold any elective public office for a period of three years?

(2) In the event that the first question is answered in the affirmative, is the principle of proportionality of penalties, enshrined in Article 49 of [the Charter], to be interpreted as precluding a provision of national implementing law pursuant to which, in the case where a person holding an elective public office is found to have acted under a conflict of interest, an additional penalty consisting in a prohibition to hold any elective public office for a period of three years applies automatically, by operation of law, without there being any possibility of imposing a penalty that is proportionate to the breach committed?

(3) Are the right to engage in work, guaranteed by Article 15(1) of [the Charter], and the right to an effective remedy and to a fair trial, guaranteed by Article 47 of the Charter, to be interpreted as precluding a provision of national implementing law pursuant to which, in the case where a person holding an elective public office is found to have acted under a conflict of interest, an additional penalty consisting in a prohibition to hold any elective public office for a period of three years applies automatically, by operation of law, without there being any possibility of imposing a penalty that is proportionate to the breach committed?’

13. Written observations in the present proceedings have been submitted by the applicant in the main proceedings, the ANI and the Romanian and Polish Governments, as well as the European Commission.

IV. Analysis

14. At the outset, I find it necessary to clarify the scope of the present Opinion.

15. The request for a preliminary ruling and certain observations of the parties refer to two penalties that may be imposed on the applicant in the main proceedings, were the assessment report to be upheld by the referring court: dismissal from public office and prohibition to hold any elective office for a period of three years. However, since the questions referred concern only one of those penalties – the latter – the discussion will be limited to that penalty. Nevertheless, I do not see any reason why my considerations could not, mutatis mutandis, also be applicable with regard to the other penalty, that is to say, the dismissal from office.

16. That said, as mentioned in the introduction of this Opinion, by its questions the referring court essentially asks the Court whether EU law – in particular, Article 15(1), Article 47 and Article 49(3) of the Charter – precludes national legislation pursuant to which a penalty consisting in a prohibition to hold any elective public office for a fixed period of time (in casu, three years) is imposed automatically on the person found to have acted in a conflict of interest.

17. Before examining the issues raised by the referring court, however, I must briefly assess the jurisdiction of the Court to hear the case and the admissibility of the questions referred.

A. Jurisdiction and admissibility

18. The ANI and the Romanian Government contest the jurisdiction of the Court to hear the case. They argue that the Charter is inapplicable in the main proceedings since there is no implementation of EU law within the meaning of Article 51 of the Charter. The ANI and the Romanian Government also contest the admissibility of the questions referred, emphasising the fact that the main proceedings concern the annulment of the ANI’s assessment report which found a conflict of interest against the applicant, and not the question of the applicable penalties. The questions referred are therefore, in their view, irrelevant to the solution of the dispute.

19. Neither of those arguments is, in my view, convincing.

20. First, the referring court pointed out that, as it transpires from its explanatory memorandum, Law No 176/2010 was enacted with a view to implement one of the objectives of Decision 2006/928. As mentioned in point 6 above, that decision required Romania to establish an integrity agency with responsibilities for verifying, inter alia, potential conflicts of interest and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.

21. In that regard, it must be borne in mind that Decision 2006/928 was adopted in the context of Romania’s accession to the European Union and falls within the scope of the Treaty of Accession. That decision is binding on Romania, requiring it to take all appropriate measures to that end. ( ) It thus appears that Law No 176/2010 constitutes a measure implementing EU law, which entails the applicability of the Charter. The Court has, accordingly, jurisdiction to hear the case.

22. Second, as explained by the referring court in its order for reference, if the ANI’s assessment report were to be upheld, the penalty in question would be automatically imposed on the applicant. If I understand the relevant national law correctly, the applicant is unable to contest the lawfulness of that penalty in the context of another judicial procedure.

23. An answer from the Court to the questions referred cannot, therefore, be considered to be manifestly irrelevant for the solution of the dispute. The interpretation of EU law sought by the referring court appears necessary, for that court, to be able to address certain arguments raised by the applicant in the main proceedings.

24. Accordingly, the questions referred are admissible.

B. Consideration of the questions referred

1. First and second questions: proportionality of the penalty

25. By its first and second questions, which can be examined together, the referring court asks, in essence, whether the principle of proportionality of penalties, enshrined in Article 49(3) of the Charter, is applicable with regard to a penalty such as that at issue and, if so, whether it precludes such a penalty.

26. However, the scope of the questions can be understood more broadly. Indeed, the proportionality of the penalty at issue can be evaluated with regard to: (i) Article 49(3) of the Charter, which applies only if the penalty is criminal in nature, and/or (ii) the principle of proportionality as a general principle of EU law, which applies to all national legislation implementing EU law.

27. In the following two sections, I will first explain why Article 49(3) of the Charter appears inapplicable in the case at hand before turning to that general principle.

(a) The applicability of Article 49(3) of the Charter

28. Since Article 49(3) of the Charter, which provides that the severity of penalties must not be disproportionate to the criminal offence, relates to penalties of a criminal nature, it is first necessary to determine whether the system of penalties at issue in the main proceedings is of a criminal nature.

29. In that regard, drawing inspiration from the case-law of the ECtHR, the Court has ruled that three criteria are relevant. The first criterion is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty that the person concerned is liable to incur. ( )

30. When assessed against those criteria, I doubt that the penalty at issue possesses features that denote a criminal character.

31. First, it follows from the text of Article 25(1) of Law No 176/2010, as well as from the relevant domestic case-law, that the penalty in question is, under national law, not considered ‘criminal’ in nature, but a mere ‘disciplinary measure’. In addition, according to the information in the case file, the procedure through which the penalty is imposed is of an administrative nature. Under national law, criminal penalties may also be imposed on public officials who act in situations of conflict of interest, but through a distinct and independent set of proceedings. ( )

32. Second, according to the request for a preliminary ruling and the observations of the parties, the primary objectives of Law No 176/2010 are to guarantee integrity and transparency in the exercise of public functions, preventing corruption and thereby protecting public finances. The penalty at issue is part of a broader set of measures, all pursuing those objectives in a complementary fashion. In particular, the purpose of the prohibition to hold any elective public office, and of the automatic termination of the mandate, is to put an end to, and prevent the perpetuation of, a situation of conflict of interest. The penalty in question thus appears to be more of a preventive nature than of a repressive or punitive one. That is an aspect which, in the light of the ECtHR’s case-law, suggests that the conduct for which it is imposed may not be ‘intrinsically’ criminal. ( )

33. Third, the penalty does not consist in, or at any rate give rise to, detention (or other forms of deprivation of liberty) or fines. The penalty rather resembles sanctions that are typically imposed upon individuals belonging to a limited group with a special status (such as suspension, discharge, dismissal or a ban on the future exercise of an activity) and are intended to ensure that those individuals comply with the specific rules governing their conduct, which the ECtHR has considered an indication of the disciplinary nature of the penalty. ( )

34. In fact, the Strasbourg case-law confirms that penalties consisting in mere limitations to the ability of individuals or groups to exercise certain political freedoms do not generally qualify as ‘criminal’ for the purposes of Article 6(1) and Article 7 ECHR. ( ) In particular, penalties similar to that at issue have consistently been found to fall outside the scope of those provisions,( ) save in exceptional circumstances. ( )

35. Thus, although the penalty at issue does not seem to me to be of a criminal nature, the issue need not be resolved in the context of the present proceedings. Indeed, even if Article 49(3) of the Charter was found to be inapplicable, the requirement that the penalty be proportionate would stem from the application of proportionality as a general principle of EU law.

(b) The principle of proportionality as a general principle of EU law

36. According to settled case-law, the principle of proportionality is one of the general principles of EU law underlying the constitutional traditions common to the Member States. It must be respected by national legislation falling within the scope of EU law or implementing it and requires, in essence, the Member States to adopt measures that are appropriate for attaining the objectives pursued and do not go beyond what is necessary for attaining them. ( )

37. With regard to penalties laid down in national legislation – regardless of their criminal or non-criminal nature – the Court has consistently held that their severity ‘must be commensurate with the seriousness of the breaches for which they are imposed’, ( ) and that they ‘cannot go beyond what is necessary in order to attain the objectives legitimately pursued by that legislation’. ( )

38. However, those are assessments for which national courts are usually best placed to make, inter alia, since the Court may not have at its disposal all the legal and factual elements which are necessary to make such an evaluation. Accordingly, the Court has rarely ruled specifically on the proportionality of a given penalty set out in national law. Unless the reasonable or excessive nature of a penalty is clear-cut, the Court entrusts responsibility for reviewing proportionality to the referring courts, providing them with useful guidance to enable them to carry out that review. ( )

39. A renvoi to the referring court also appears appropriate in the present case: a penalty such as that at issue does not appear clearly proportionate or clearly disproportionate. It is for the referring court to rule on that aspect, in the light of all the relevant circumstances. With a view to assist the referring court, I will offer the following considerations.

40. In the present case, the referring court points to two specific features of the penalty at issue that may, in theory, appear problematic: the fact that it is imposed on the individuals in question automatically, and the fact that its severity cannot be modulated. Both elements confer a certain rigidity to the penalty at issue, which – the referring court notes – does not permit the specific circumstances of each case to be duly taken into account.

41. In that regard, I observe that the requirement for a penalty to be commensurate with the seriousness of the breach implies, in principle, that the individual circumstances of each case should be taken into account. That is why the Court has often regarded flat-rate or fixed-amount penalties as problematic from the point of view of proportionality. ( )

42. At the same time, however, the Court has recognised that the principle of proportionality of penalties must also be interpreted as permitting the authorities to penalise in a simple, effective and efficient way the authors of those breaches. That means that there may well be circumstances in which a penalty may be imposed automatically and in a pre-determined amount. ( )

43. In that respect, what I believe to be crucial is how the national legislation is drafted and, more particularly, whether the various forms of conduct that are punished with the penalty in question are relatively homogenous. For instance, do those conducts bring about similar harm to the public good protected by the national legislation in question? If so, then those conducts may deserve to be punished with the same penalty.

44. The more the constituent elements of the offence are determined narrowly, the more the one-size-fits-all penalty is acceptable. Conversely, where the offence has a broad scope of application (for example, if it covers both malicious and negligent conduct, both serious and minor breaches, etc.), an automatic and fixed penalty is harder to justify.

45. Therefore, I do not think that the national legislation at issue is necessarily incompatible with EU law, as suggested by the applicant. However, that does not rule out the possibility that, in the specific case of the applicant, that legislation might produce an outcome that is not compatible with EU law. ( )

46. Accordingly, it will be for the referring court to determine, in the light of all the relevant circumstances, first, whether the severity of the penalty at issue (in the light of, for example, the scope and duration of the penalty, as well as its impact on the individual’s personal, professional and economic status) is commensurate with the seriousness of the offence committed by the applicant (in the light of, for example, the normative evaluation of the offence and the harmfulness and wrongness of the conduct), account being taken of the objectives pursued by the relevant national legislation. Second, the referring court is to check whether the penalty at issue, in the case of the applicant, does not go beyond what is necessary in order to attain the objectives pursued by the national legislation. That assessment requires the national court to determine whether a measure less restrictive than the penalty at issue, and equally effective in ensuring the level of protection of the public interest safeguarded by the national legislation at issue, could have been envisaged.

47. That said, should the referring court come to the conclusion that the penalty at issue is disproportionate, what would be that court’s powers and duties in the main proceedings? That is an element that has been raised in the context of the present proceedings and to which I shall now turn.

(c) The powers of the national court

48. In its observations, the Commission makes reference to the recent judgment of the Grand Chamber of the Court in Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (hereinafter referred to as ‘the judgment in NE’), ( ) emphasising that, should the referring court find the penalty at issue to be disproportionate, it need not disapply the relevant national legislation in its entirety. In the Commission’s view, that court could simply re-modulate the penalty in bonam partem in order to ensure that that penalty is not only proportionate, but also effective and dissuasive.

49. In its request for a preliminary ruling, the referring court does not expressly inquire on this point. However, I am aware that, in the aftermath of the delivery of the judgment in NE, certain doubts regarding the scope and the implications of the Court’s decision have been expressed by some scholars and jurists.

50. In NE, the referring court sought guidance from the Court as regards the legal consequences flowing from a provision of a directive that required Member States to provide for ‘effective, proportionate and dissuasive’ penalties in a situation in which the penalties adopted by the national legislature in order to implement that provision were not proportionate.

51. In that regard, I hardly need to point out that a provision of that kind is by no means peculiar to the directive that was at issue in NE. Indeed, numerous instruments of EU law contain similarly worded provisions or, more generally, introduce equivalent obligations for the Member States. That is also the case of Decision 2006/928, as explained in points 6 and 20 above.

52. The issue raised in the Commission’s observations is thus likely to be relevant not only in the present proceedings, but also in a variety of other proceedings before national courts. For that reason, I shall seize the opportunity to attempt to clarify the scope of the judgment in NE and, possibly, allay some concerns regarding a potential overreach thereof.

(1) The judgment in NE – (I): its rationale

53. In a nutshell, the Court established two principles in the judgment in NE.

54. First, the Court found that the requirement for penalties to be proportionate is unconditional and sufficiently precise and, by way of consequence, has direct effect. That means that individuals can rely on the relevant EU provision before national courts against a Member State which has transposed it incorrectly. Second, the Court ruled that the principle of the primacy of EU law must be interpreted as imposing on national authorities the obligation to disapply the national legislation in question only to the extent necessary to enable the imposition of proportionate penalties. Those authorities thus need not disapply that national legislation in its entirety.

55. In my view, despite overturning a previous judgment on some points, ( ) the Court’s decision in NE is by no means extraordinary. It rather appears to be a logical development of well-established case-law.

56. It is true that, in the field of penalties, Member States generally enjoy a wide margin of discretion, regardless of whether they act in order to ensure compliance with domestic law or with EU law. ( ) However, it is now widely accepted that, in exercising their competences with regard to enforcement, Member States must have due regard for EU law. ( ) That means that EU law may impose on them certain obligations of facere and non-facere. The following strands of case-law appear particularly relevant in that respect.

57. On the one hand, Member States cannot prohibit forms of conduct that are required by, or permitted under, EU law and, as a consequence, cannot impose penalties on individuals that contravene those prohibitions. ( ) In addition, beyond the situations just mentioned, Member States can obviously impose penalties on individuals that infringe national law, but the penalties imposed cannot be such as to render ineffective any relevant provision of EU law. ( ) Finally, and more generally, when acting in the field of EU law, Member States cannot impose penalties that infringe the fundamental rights enshrined in the Charter or the general principles of EU law. ( )

58. On the other hand, since the seminal Greek maize case, the Court has consistently held that, in accordance with Article 4(3) TEU, Member States are to ensure 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 that the penalty must be effective, dissuasive and proportionate to the infringement. Furthermore, the Court added that the national authorities must proceed with respect to infringements of EU law with the same diligence as that which they bring to bear in enforcing corresponding national laws. ( )

59. Therefore, it seems to me that the judgment in NE builds on well-established case-law in which the Court has derived, from the principles of direct effect, primacy, effectiveness and respect for fundamental rights, certain obligations for, or limitations to, the Member States’ ability to exercise their ius puniendi.

60. In particular, the fundamental right angle of the NE case cannot be overlooked. In that respect, it must be borne in mind that, as the Court explained in Popławski II, direct effect and primacy are two sides of the same coin. Under EU law, national legislation must be disapplied by the national court only where the conflicting provision of EU law has direct effect. ( ) That means, in practice, that, if an EU provision such as that at issue in NE lacks direct effect, individuals may continue to be subject to disproportionate penalties, even where the non-compliance of the national legislation with EU law has already been established by the Court and the national legislature has not reacted to that. Indeed, individuals may be unable to challenge, before domestic courts, the incompatibility of that legislation with the EU provision in question.

61. Such a state of affairs could hardly be considered acceptable, under any conceivable standard of fundamental rights protection. In my view, that is reason enough to find that a prohibition of disproportionate penalties (which is inherent to the Member States’ obligation to provide for proportionate measures) ( ) has direct effect.

62. The second clarification provided by the Court in NE is also, to my mind, consistent with the principles and case-law referred to in points 56 to 58 above. It would be paradoxical if the disapplication of national legislation providing for excessive penalties were to go beyond what was required to ensure the reasonableness of those penalties. The national court’s intervention to ensure the proportionality of the penalties would, in that case, undermine – and unnecessarily so – the effectiveness and the dissuasiveness of those penalties, which are the other requirements laid down in the EU provision in question. In practice, the national court would replace one form of non-compliance with another.

63. More importantly, as the Court explained – largely echoing the considerations on the point developed by Advocate General Bobek – ( ) the principles of legal certainty, legality and non-retroactivity of criminal offences, as conceived within the EU legal system, do not preclude a re-modulation of the penalty by the judge. Indeed, the penalty would remain within the boundaries of what was set out in national law whilst being applied in a more calibrated manner.

(2) The judgment in NE – (II): a step too far?

64. That being said, I understand that doubts have been expressed concerning the scope and implications of the judgment in NE. It has been pointed out that certain Member States’ constitutional systems have a particularly strong (or rigid) concept of ‘legality’, especially in the field of criminal law. Furthermore, some wonder whether the significant leeway, which the judgment appears to give national courts, may not encroach upon the division of competences set out by the national constitutional rules, and/or lead to a breach of the principle of equality in so far as it may be applied differently by the various national courts.

65. I do not share those concerns.

66. I am obviously conscious of the fact that the level of protection of certain fundamental rights, as well as the significance and reach of principles such as legal certainty and legality, may vary between the various Member States. There is also no doubt that those principles are, inter alia, connected to the division of competences between the different branches of the State, which is a central element of any national constitutional system. In particular, the relationship between the respective roles of the legislature and of the judiciary depends on the constitutional model chosen by each Member State.

67. However, the EU legal order accommodates such diversity.

68. Article 4(2) TEU requires the European Union to ‘respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional’. The EU Treaties are thus agnostic with regard to Member States’ constitutional models governing the relationship and interaction between the various branches of the State, in particular as regards the definition and delimitation of their competences, provided the values enshrined in Article 2 TEU are respected. ( )

69. In addition, the Court has consistently stated that ‘the national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised’. ( ) More generally, EU law recognises that Member States’ authorities have a certain margin of discretion with regard to the precise way in which fundamental rights should be protected in their respective territories. ( )

70. The judgment in NE must be read against that background.

(3) The judgment in NE – (III): what it says and what it does not say

71. In essence, what the judgment in NE requires national courts to do is two-fold. First, they must disapply the relevant national legislation as far as it provides for the imposition of a disproportionate penalty. Second, the disapplication of that legislation by the national courts need not go further than that: when an effective and dissuasive penalty may still be applied, those courts should do so. ( )

72. The latter condition (when an effective and dissuasive penalty may still be applied) should be emphasised. The manner in which, and the extent to which, a national court can go beyond a mere disapplication of the excessive penalty, which implies a re-modulation of the penalty to be imposed, depends not only on the specific circumstances of the case, but also on the constitutional landscape in which that court operates.

73. The judgment in NE cannot be read as giving a blank cheque to the national courts to disregard (the nature and extent of) the penalties set out in national law each time they consider those penalties to be excessive, and replace them with the penalties they see fit. Several passages of the judgment in NE make it clear that the Court intended to refer to the (total or partial) disapplication of existing penalties, not the creation of new penalties. ( ) The latter is, in most countries, a task for the national legislature. An inventive approach from a national court in that regard could risk breaching, inter alia, the principle of nulla poena sine lege. ( )

74. Therefore, the judgment in NE does not require national courts to substitute a penalty found to be excessive with another (proportionate) penalty if, by doing so, they would violate a fundamental right, including those that at national level may be afforded a higher level of protection, or infringe overriding provisions of national constitutional law. I believe that the Court’s findings in M.A.S. in that respect may, mutatis mutandis, be transposed to a situation such as that at issue. ( )

75. Naturally, I understand that for a national court it may not always be easy to identify the permissible room for manoeuvre when it comes to re-modulating a statutory penalty. In particular, depending on the text of the national legislation at issue and the actual gap between the seriousness of the breach and the gravity of the penalty provided for in that legislation, a variety of interventions are hypothetically conceivable. For example, a court might envisage to disapply some ancillary penalty, calculate the amount of the penalty without taking into account elements which render that amount excessive, or simply go below the statutory minimum. Clearly, some interventions are more ‘invasive’ than others with regard to the role traditionally granted to the legislature. ( )

76. Yet any uncertainty concerning the correct application of national rules following the declaration of their incompatibility with EU law is normally destined to be short-lived. Indeed, within the typically hierarchically organised national judicial systems, it will be for the national apex courts ( ) to review the decisions of lower courts and, where necessary, unify the case-law at national level. ( ) In order to permit such a control and ensure a uniform interpretation and application of the law vis-à-vis all individuals, it is, in my view, crucial that the lower courts, when re-modulating the penalties, explain adequately the reasons why they considered the statutory penalties to be disproportionate and the parameters they used for re-modulating them.

77. In addition, where the national legal system offers lower courts the possibility to seek immediate guidance from those higher courts, for example via specific mechanisms of referral, EU law does not in principle preclude recourse to such mechanisms, if the national court considers it useful. Naturally, should issues of interpretation (or validity) of EU law also arise, the referring court may (or should) also seise the Court of Justice under Article 267 TFEU, as there is no incompatibility between the two procedures running in parallel or in sequence. ( ) Although certainly time-consuming and resource-intensive, such a judicial ‘trialogue’ may be particularly useful in some complex situations where EU and national constitutional principles need to be reconciled.

78. In any event, it is clear to me that the above represents (ideally) only an interim solution to the problem, as one could expect that, in a situation where the national legislation is being disapplied in part because it is incompatible with EU law, the national legislature would step in and amend that legislation so as to remove the aspects giving rise to that incompatibility once and for all.

79. In the light of the above, I propose the Court answer the first and second questions referred to the effect that: (i) national legislation adopted with a view to implement Decision 2006/928 comes within the scope of EU law; (ii) the principle of proportionality of penalties precludes the application of a penalty such as that at issue if, in the light of all the relevant circumstances of the case, the severity of the penalty at issue is not commensurate with the seriousness of the offences committed by the applicant, account being taken of the objectives pursued by the relevant national legislation, or if that penalty goes beyond what is necessary in order to attain the objectives pursued by the national legislation; and (iii) if that is the case, the national court must disapply that legislation to the extent that it requires the imposition of a disproportionate penalty, whilst doing what is in its power to impose an effective and dissuasive penalty.

2. Third question: effective legal protection and right to engage in work

80. By its third question, the referring court asks whether the right to engage in work, guaranteed by Article 15(1) of the Charter, and the right to an effective remedy, guaranteed by Article 47 of the Charter, preclude a penalty such as that at issue.

81. It seems to me that an examination of the compatibility of the national legislation at issue with those provisions of the Charter would most probably be superfluous if the national court were to arrive at the conclusion that that legislation infringes the principle of proportionality. I will thus proceed with the analysis on the basis of the assumption that that legislation complies with the principle of proportionality.

(a) Article 15(1) of the Charter

82. Article 15 of the Charter, entitled ‘Freedom to choose an occupation and right to engage in work’, in its first paragraph, provides that ‘everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’.

83. That provision lays down a general principle that finds some more specific expression in, or is complemented by, a number of other provisions of the Charter, such as Article 5 (‘Prohibition of slavery and forced labour’) and Article 16 (‘Freedom to conduct a business’). ( ) In addition, the right to work has strong, albeit implicit, links with the protection of human dignity, enshrined in Article 1 of the Charter. ( )

84. In the ‘Explanations relating to the Charter of Fundamental Rights’ (‘the Explanations’), ( ) reference is made, in the first place, to the case-law of the Court which, since the 1970s, has recognised the existence of a right freely to choose and practice one’s trade or professional activity. ( ) The Explanations also indicate that the provision draws upon Article 1(2) of the European Social Charter ( ) and upon point 4 of the Community Charter of the Fundamental Social Rights of Workers. ( ) The former provision requires the parties to ‘protect effectively the right of the worker to earn his living in an occupation freely entered upon’, whereas the latter declares that ‘every individual shall be free to choose and engage in an occupation according to the regulations governing each occupation’. ( )

85. Against that background, and in the light of its broad formulation (‘everyone’, ‘work’, ‘occupation’), I believe that Article 15(1) of the Charter is meant to have a rather wide scope ratione personae and ratione materiae. In particular, although special emphasis is placed on the right to self-determination of individuals, the scope of Article 15(1) of the Charter goes far beyond that aspect. Indeed, its wording appears to cover the various dimensions of the right to work: availability, accessibility, acceptability and quality. ( )

86. Those considerations notwithstanding, I would be hesitant to consider an elective public office, such as that of mayor, to be ‘work’ within the meaning of Article 15(1) of the Charter.

87. Admittedly, giving a precise and complete definition of ‘work’ – even only for the purposes of Article 15(1) of the Charter – seems an impossible mission. Some dictionaries define ‘work’ as an activity that a person performs in order to earn a livelihood, or as an activity that a person uses physical or mental effort to do, usually for money. If that is so, holding an elective public office could arguably fit in those definitions: it is an activity that requires a (mostly) mental effort and for which the person usually receives compensation.

88. However, certain key features of elective public office appear to sit uncomfortably with the above: the purpose for which a person engages in the activity (to serve his or her community), but also the manner in which the activity may be acceded to (only through a public election), the limited period of time in which it can be exercised (duration of the mandate), certain special prerogatives which are often attached to its status (in terms of, inter alia, powers, liability, freedom of action), and the characteristics of its retribution (not necessarily commensurate to the importance of the position and the responsibilities borne thereby). I may have a ‘classical’ or perhaps ‘romantic’ vision of elective public office, but I find it hard to consider them as being legally equivalent to an employment, a professional activity or a trade.

89. That said, regardless of the above, one could also wonder whether the right to stand in public elections in order to accede to a public office is not governed and protected – as leges speciales – by the constitutional provisions which enshrine the political rights of individuals. That would imply, arguably, that penalties such as that at issue would be governed by the rules which concern limitations to the political rights of individuals. In such a case, one should rather turn, at EU level, to, in particular, Articles 39 and 40 of the Charter, ( ) Article 2 TEU, Article 20(2)(b) TFEU and Article 22 TFEU. ( ) However, those provisions too grant certain leeway to the national authorities. ( ) A prohibition to hold any elective public office for a given period of time for individuals found responsible for certain types of unlawful conduct is not prima facie incompatible with those provisions. ( )

90. In any event, even if one were to take the view that an elective public office should be regarded as ‘work’ within the meaning of Article 15(1) of the Charter, I believe that the limitation introduced by the national legislation at issue could, in principle, be justified.

91. In that regard, it must be noted that the right to work guaranteed in Article 15(1) of the Charter is not an absolute right, but one that must be considered in relation to its social function, and, consequently, restrictions may be imposed on the exercise of that right under the conditions set out in Article 52(1) of the Charter. ( ) That provision permits limitations to fundamental rights provided that the restrictions are provided for by law, respect the essence of the fundamental right at issue, in fact correspond to objectives of general interest pursued by the measure in question and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference.

92. Those conditions seem to me to be, at least in principle, satisfied.

93. The prohibition to run for public office for individuals who have been found to have acted unlawfully in a situation of conflict of interest is, first of all, indisputably provided for by law: Article 25 of Law No 176/2010. Second, the objectives pursued by the penalty at issue correspond to objectives of general interest recognised at EU level: discourage individuals holding a public office to act in pursuit of their own private interests and avoid a possible repetition of such acts. Third, the national legislation at issue appears to respect the essence of the fundamental right at stake. Indeed, what could be regarded as being the ‘untouchable core’ of the right ( ) (in primis, the ability to seek, free from any imposition, a suitable occupation that could guarantee one’s livelihood) does not appear affected. Only one specific type of position is precluded (elective public office) and for a limited period of time (three years).

94. Therefore, if the national legislation at issue is, as mentioned in point 81 above, considered proportionate, there would also be no infringement of Article 15(1) of the Charter (were such provision to be applicable).

(b) Article 47 of the Charter

95. Article 47 of the Charter (‘Right to an effective remedy and to a fair trial’) provides, inter alia, that ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. That provision codified what the Court has consistently regarded as being a general principle of EU law flowing from the constitutional traditions common to the Member States. ( )

96. As regards the scope of Article 47 of the Charter, the rights of individuals enshrined therein correspond to those set out in Article 6(1) and Article 13 ECHR, ( ) and the duties of the Member States’ authorities correspond to those imposed in the second subparagraph of Article 19(1) TEU. ( )

97. At the outset, I would recall that, under Article 47 of the Charter, the recognition of the right to an effective remedy, in a given case, presupposes that the person invoking that right is relying on one or more specific rights or freedoms guaranteed by EU law, or that that person is the subject of proceedings constituting an implementation of EU law, within the meaning of Article 51(1) of the Charter. ( )

98. For the reasons explained in points 20 and 21 above, that is the case in relation to the applicant in the main proceedings and, consequently, Article 47 of the Charter is applicable to those proceedings.

99. The right to an effective remedy enshrined in Article 47 of the Charter comprises various elements, inter alia, the rights of the defence, the principle of equality of arms, the right of access to a court or tribunal and the right to be advised, defended and represented. ( )

100. In the present case, that right implies an effective possibility, for the person claiming a breach of his or her rights guaranteed by EU law, of accessing a court or tribunal with the power to ensure respect for those rights and, to that end, to consider all the issues of fact and of law that are relevant for resolving the case before it. ( ) The powers of the national court must obviously include those of reviewing the lawfulness of the act challenged and, if necessary, annul that act and the penalties imposed thereby.

101. In this case, I understand that the referring court has, in the main proceedings, the ability to consider all the relevant issues of fact and of law when reviewing the validity of the assessment report. Should that report be found to be unlawful, the referring court has the power to set it aside and, by way of consequence, invalidate the imposition of the penalties which are triggered by that report.

102. Against that background, I fail to see any element in the case file which could denote any infringement of Article 47 of the Charter. In particular, no argument on this point is put forward in the applicant’s submission. Moreover, the information provided by the referring court and by the other parties that submitted observations does not contain any indication that the remedies provided for in national law may actually be ineffective.

103. In the light of the above, I suggest the Court answer the third question to the effect that Article 15(1) and Article 47 of the Charter do not preclude a penalty such as that at issue, provided that the penalty is proportionate and that the individuals in question effectively have the ability to challenge the lawfulness of the assessment reports and the related penalties.

V. Conclusion

104. In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Curtea de Apel Timișoara (Court of Appeal, Timisoara, Romania) as follows:

(1) National legislation adopted with a view to implement Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption comes within the scope of EU law.

(2) The principle of proportionality of penalties precludes national legislation pursuant to which a penalty consisting in a prohibition to hold any elective public office for a fixed period of time is imposed automatically on the person found to have acted in a conflict of interest unlawfully, if, in the light of all the relevant circumstances, the severity of the penalty is not commensurate with the seriousness of the offence committed by the applicant, account being taken of the objectives pursued by the relevant national legislation, or if that penalty goes beyond what is necessary in order to attain the objectives pursued by the national legislation.

(3) Where the national legislation in question is contrary to the requirement of proportionality, the national court must disapply that legislation to the extent that it requires the imposition of a disproportionate penalty upon an individual, and do what is in its power to impose an effective and dissuasive penalty.

(4) Article 15(1) and Article 47 of the Charter of Fundamental Rights of the European Union do not preclude national legislation such as that at issue, provided that the penalties imposed are proportionate and that the individuals in question have effectively the ability to challenge the lawfulness of the assessment reports and the related penalties.