CELEX: 62017CO0177
Language: en
Date: 2017-09-07 00:00:00
Title: Order of the Court (Seventh Chamber) of 7 September 2017.#Demarchi Gino S.a.s. v Ministero della Giustizia.#Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Piemonte.#Reference for a preliminary ruling — Article 47(2) of the Charter of Fundamental Rights of the European Union — Implementation of EU law — Lack of a sufficiently close connection — Lack of jurisdiction of the Court.#Case C-177/17.

ORDER OF THE COURT (Seventh Chamber)
      7 September 2017 (
            *1
         )
      (Reference for a preliminary ruling — Article 47(2) of the Charter of Fundamental Rights of the European Union — Implementation of EU law — Lack of a sufficiently close connection — Lack of jurisdiction of the Court)
      In Joined Cases C‑177/17 and C‑178/17,
      REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunale Amministrativo Regionale per il Piemonte (Regional Administrative Court, Piedmont, Italy), made by two decisions of 11 January 2017, received at the Court on 5 April 2017, in the proceedings
      
         Demarchi Gino Sas (C‑177/17),
      
         Graziano Garavaldi (C‑178/17)
      v
      
         Ministero della Giustizia,
      
      THE COURT (Seventh Chamber),
      composed of A. Prechal, President of the Chamber, A. Rosas (Rapporteur) and E. Jarašiūnas, Judges,
      Advocate General: M. Campos Sánchez-Bordona,
      Registrar: A. Calot Escobar,
      having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 53(2) of the Rules of Procedure of the Court of Justice,
      makes the following
      Order
      
               1
            
            
               The present requests for a preliminary ruling concern the interpretation of Article 47(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in the light of Articles 67, 81 and 82 TFEU.
            
         
               2
            
            
               These requests have been made in proceedings between, on the one hand, Demarchi Gino Sas and Mr Graziano Garavaldi and, on the other hand, the Ministero della Giustizia (Ministry of Justice, Italy) concerning the payment of amounts due by the latter by way of fair compensation for the excessive duration of legal proceedings.
            
         Italian law
      
               3
            
            
               It is clear from the decisions for reference that, in accordance with legge No 89 — Previsione di equa riparazione in caso di violazione del termine ragionevole del processo e modifica dell’articolo 375 del codice di procedura civile (Law No 89 on the right to fair compensation in the case of breach of the reasonable duration of legal proceedings and amending Article 375 of the Code of Civil Procedure) of 24 March 2001 (GURI No 78 of 3 April 2001, ‘Law No 89/2001’), the party who has suffered pecuniary or non-material damage as a result of the unreasonable duration of proceedings is entitled to ‘fair compensation’, subject to the conditions and within the limits laid down by the same law.
            
         
               4
            
            
               Article 3 of that law provides that an application for compensation is to be made to the President of the Corte d’appello (Court of Appeal, Italy) for the district in which the court of first instance, before which the proceedings that are alleged to have taken an unreasonable length of time were conducted, is situated.
            
         
               5
            
            
               Legge No 208 — Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (Law No 208 laying down provisions for drawing up the annual and multiannual State budget) of 28 December 2015 (ordinary supplement to GURI No 302 of 30 December 2015) amended Law No 89/2001. In particular, it inserted into that law a new Article 5sexies, which reads as follows:
               ‘1.   In order to receive payment of liquidated sums in accordance with this law, the creditor shall issue the debtor public authority with a declaration … attesting to the fact that he has not received the sums due, that legal proceedings have been conducted in respect of the debt, the amount that the public authority is still obliged to pay and the method of payment chosen in accordance with paragraph 9 of the present article, and shall send the required documentation in accordance with the decrees referred to in paragraph 3.
               2.   The declaration referred to in paragraph 1 shall remain valid for a period of six months and shall be re-issued at the request of the public authority.
               3.   The Ministry of Economic and Financial Affairs and the Ministry of Justice shall, by 30 October 2016, issue decrees approving the form of the declaration referred to in paragraph 1 and listing the documentation to be sent to the debtor public authority in accordance with paragraph 1. Public authorities shall publish the form and printed documents referred to in the preceding paragraph on their official websites.
               4.   In the event that the declaration or the documentation referred to in the preceding paragraphs is not sent or is incomplete or is incorrectly sent, no order for payment shall be issued.
               5.   The public authority shall make the payment within six months of the date on which the requirements set out in the preceding paragraphs are satisfied in full. That period shall not start to run if the declaration or the documentation referred to in the preceding paragraphs is not sent, or is incomplete or is incorrectly sent.
               …
               7.   Before the expiry of the period referred to in paragraph 5, the creditor shall not be entitled to proceed to enforced execution or to serve an enforcement order or to bring an action seeking compliance with the judgment.
               …’
            
         The disputes in the main proceedings and the question referred for a preliminary ruling
      
               6
            
            
               Demarchi Gino Sas and Mr Garavaldi participated as creditors in two separate bankruptcy proceedings which were conducted before the Tribunale di Genova (District Court, Genoa, Italy) and the Tribunale di La Spezia (District Court, La Spezia, Italy), respectively.
            
         
               7
            
            
               Those proceedings having lasted for an excessive length of time, the applicants in the main proceedings filed an application with the Corte d’appello di Torino (Court of Appeal, Turin, Italy) for compensation for the damage sustained, in accordance with Law No 89/2001.
            
         
               8
            
            
               By two decisions, the Corte d’appello di Torino (Court of Appeal, Turin) recognised the right of the applicants in the main proceedings to fair compensation for the excessive duration of the legal proceedings in which they had participated, and ordered the Ministry of Justice to pay amounts fixed by the court.
            
         
               9
            
            
               After waiting, in vain, for the voluntary payment of those amounts by the administration in question, the applicants in the main proceedings initiated before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont, Italy) proceedings under Article 112 et seq. of the decreto legislativo No 104 — Codice del processo amministrativo (Legislative Decree No 104 laying down the Code of Administrative Procedure) of 2 July 2010 (Ordinary Supplement to GURI No 156 of 7 July 2010), the aim of which is to obtain an administrative court’s assistance in compelling a public authority to perform an obligation that has been held to rest on it in a judgment that has become res judicata.
            
         
               10
            
            
               It is clear from the orders for reference that, although they brought these proceedings after Article 5sexies of Law No 89/2001 came into force, the applicants in the main proceedings did not first satisfy the requirements laid down in paragraph 1 of that article, and for this reason the referring court ought to declare their actions inadmissible.
            
         
               11
            
            
               The referring court explains that Article 5sexies of Law No 89/2001 has to be interpreted as meaning that the creditor of fair compensation is not entitled to take any legal action in order to obtain the payment of such compensation unless he has first fulfilled all the requirements laid down in paragraph 1 of that article and until at least six months have elapsed since those requirements were fulfilled.
            
         
               12
            
            
               In this respect, the referring court notes that the provision at issue, first, imposes a series of obligations on parties entitled to fair compensation — including, inter alia, the obligation to make a declaration complex in content — the fulfilment of which is a necessary precondition for obtaining payment of the compensation that has been fixed and, second, significantly lengthens the period of time allowed to the State for issuing an order for payment.
            
         
               13
            
            
               Lastly, the referring court submits that Article 5sexies of Law No 89/2001 deprives the creditor of the possibility of subsequently claiming fair compensation for the harm suffered by him as a result of the delay in the payment of the compensation owed.
            
         
               14
            
            
               The referring court is therefore uncertain whether Article 5sexies of Law No 89/2001 prejudices the rights affirmed in Article 47(2) of the Charter, read in conjunction with Articles 67, 81 and 82 TFEU.
            
         
               15
            
            
               In those circumstances, the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont) has decided to stay proceedings and to refer, for each case, the following question to the Court of Justice for a preliminary ruling:
               ‘Does the principle that everyone is entitled to a hearing by an impartial tribunal within a reasonable time, affirmed in the second paragraph of Article 47 of the [Charter] and in Article 6(1) of the European Convention for the Protection of Human Rights, which has become a principle of EU law by virtue of Article 6(3) TEU, read in conjunction with the principle arising from Article 67 TFEU, according to which the Union is to constitute an area of freedom, security and justice with respect for fundamental rights, and the principle arising from Articles 81 and 82 TFEU, according to which, in civil and criminal matters having cross-border implications, the Union is to develop judicial cooperation based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases, preclude national provisions, such as the Italian provisions contained in Article 5sexies of Law No 89/2001, which impose on persons entitled to the payment by the Italian State of “fair compensation” in respect of the unreasonable duration of legal proceedings a series of obligations which they must fulfil in order to obtain such payment, and to await the expiry of the period referred to in Article 5sexies of Law No 89/2001 without, in the meantime, being entitled to take any legal action for enforcement and without subsequently being able to claim damages in respect of late payment, even in cases in which the “fair compensation” has been awarded in respect of the unreasonable duration of civil proceedings which have cross-border implications or which involve a matter that falls within the jurisdiction of the European Union and/or a matter in relation to which the European Union provides for the reciprocal recognition of judgments?’
            
         The jurisdiction of the Court
      
               16
            
            
               By its question, the referring court asks the Court, in essence, whether the principle affirmed in Article 47(2) of the Charter, read in conjunction with Articles 67, 81 and 82 TFEU, must be interpreted as precluding national legislation that requires persons having suffered harm as a result of the excessive duration of legal proceedings regarding a matter falling within the sphere of judicial cooperation to carry out a series of complex administrative operations in order to obtain payment of the fair compensation that the State was ordered to pay them, without being entitled, in the meantime, to take legal action for enforcement and, subsequently, to claim compensation for the harm caused by the delay in that payment being made.
            
         
               17
            
            
               In this respect, it must be noted that under Article 51(1) of the Charter, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. Like Article 51(2) of the Charter, Article 6(1) TEU states that the provisions of the Charter do not in any way extend the competences of the Union as defined in the Treaties (see order of the President of the Court of 14 April 2016, Târșia, C‑328/15, not published, EU:C:2016:273, paragraph 23 and the case-law cited, and order of 10 November 2016, Pardue, C‑321/16, not published, EU:C:2016:871, paragraph 18).
            
         
               18
            
            
               According to settled case-law of the Court, 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. It is in this respect that the Court has observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 19 and the case-law cited; of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 21; and of 8 December 2016, Eurosaneamientos and Others, C‑532/15 and C‑538/15, EU:C:2016:932, paragraph 52).
            
         
               19
            
            
               It should also be borne in mind that the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other (judgment of 6 October 2016, Paoletti and Others, C‑218/15, EU:C:2016:748, paragraph 14 and the case-law cited).
            
         
               20
            
            
               In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are whether that legislation is intended to implement a provision of EU law, the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law, and also whether there are specific rules of EU law on the matter or capable of affecting it (judgments of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 25 and the case-law cited, and of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 37).
            
         
               21
            
            
               In particular, the Court has found that fundamental EU rights could not be applied in relation to national legislation because the provisions of EU law in the subject area concerned imposed no obligation on Member States with regard to the situation at issue in the main proceedings (judgment of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 26 and the case-law cited).
            
         
               22
            
            
               In the present case, as is apparent from the orders for reference, the national provision at issue in the main proceedings concerns the procedure to recover amounts owed by the State by way of fair compensation for the excessive length of legal proceedings, provided for in Article 5sexies of Law No 89/2001.
            
         
               23
            
            
               The referring court explains that, although Law No 89/2001 cannot be considered to be a measure taken in application of Articles 81 and 82 TFEU, nor under a specific regulation or directive, it ensures the proper working of the Union area of justice by pursuing the objective of circumscribing the duration of any kind of legal proceedings. It does this by preventing the value of the mutual recognition of judgments, upon which judicial cooperation in civil and criminal matters in the Union is based, being utterly nullified as a result of the excessive duration of legal proceedings.
            
         
               24
            
            
               The referring court also points out that, as the main proceedings concern bankruptcy proceedings the excessive duration of which led to the State being ordered to pay compensation, they fall within an area in which the European Union has already exercised its competence by adopting several laws, among which features, in particular, Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19).
            
         
               25
            
            
               However, it must be noted that the provisions of TFEU referred to by the referring court impose no specific obligations on the Member States as regards the recovery of sums owed by the State by way of fair compensation for the excessive duration of legal proceedings, and that, as it currently stands, EU law includes no specific rules in this field.
            
         
               26
            
            
               Accordingly, it is clear that, in the present case, there is nothing to suggest that Law No 89/2001, which is general in nature, was intended to implement a provision of EU law relating to judicial cooperation, and that, even if that law is likely indirectly to affect the functioning of the area of justice in the European Union, it pursues objectives other than those covered by the provisions cited in the orders for reference.
            
         
               27
            
            
               Moreover, it is not apparent from the file submitted to the Court that the bankruptcy proceedings at issue in the main proceedings fall within the scope of Regulation 2015/848, which defines a judicial framework for cross-border bankruptcy proceedings by regulating, in particular, questions linked to jurisdictional competence, recognition of bankruptcy proceedings and applicable law.
            
         
               28
            
            
               It follows from this that there is nothing to indicate that the dispute in the main proceedings relates to the interpretation or application of a rule of EU law other than those set out in the Charter. When a legal situation does not come within the scope of EU law, the Court has no jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (order of 18 February 2016, Rîpanu, C‑407/15, not published, EU:C:2016:167, paragraph 22 and the case-law cited).
            
         
               29
            
            
               In those circumstances, it must be held, on the basis of Article 53(2) of the Rules of Procedure of the Court, that the Court manifestly lacks jurisdiction to answer the question referred by the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont).
            
         Costs
      
               30
            
            
               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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
            
          
            
               On those grounds, the Court (Seventh Chamber) hereby orders:
            
          
               
                  
                     The Court of Justice of the European Union manifestly lacks jurisdiction to answer the question referred by the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont, Italy) by the decisions of 11 January 2017.
                  
               
             
               
                  
                     [Signatures]
                  
               
            (
            *1
         )	Language of the case: Italian.