Criminal proceedings against Horst Otto Bickel and Ulrich Franz.
Date: 1998-11-24
13 The first point to note is that in the context of a Community based on the principles of freedom of movement for persons and freedom of establishment, the protection of the linguistic rights and privileges of individuals is of particular importance (Case 137/84 Mutsch [1985] ECR 2681, paragraph 11).
14 Secondly, by prohibiting `any discrimination on grounds of nationality', Article 6 of the Treaty requires that persons in a situation governed by Community law be placed entirely on an equal footing with nationals of the Member State (Case 186/87 Cowan [1989] ECR 195, paragraph 10).
15 Situations governed by Community law include those covered by the freedom to provide services, the right to which is laid down in Article 59 of the Treaty.  The Court has consistently held that this right includes the freedom for the recipients of services to go to another Member State in order to receive a service there (Cowan, paragraph 15).  Article 59 therefore covers all nationals of Member States who, independently of other freedoms guaranteed by the Treaty, visit another Member State where they intend or are likely to receive services.  Such persons - and they include both Mr Bickel and Mr Franz - are free to visit and move around within the host State.  Furthermore, pursuant to Article 8a of the Treaty, `[e]very citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect'.
16 In that regard, the exercise of the right to move and reside freely in another Member State is enhanced if the citizens of the Union are able to use a given language to communicate with the administrative and judicial authorities of a State on the same footing as its nationals.  Consequently, persons such as Mr Bickel and Mr Franz, in exercising that right in another Member State, are in principle entitled, pursuant to Article 6 of the Treaty, to treatment no less favourable than that accorded to nationals of the host State so far as concerns the use of languages which are spoken there.
17 Although, generally speaking, criminal legislation and the rules of criminal procedure - such as the national rules in issue, which govern the language of the proceedings - are matters for which the Member States are responsible, the Court has consistently held that Community law sets certain limits to their power in that respect. Such legislative provisions may not discriminate against persons to whom Community law gives the right to equal treatment or restrict the fundamental freedoms guaranteed by Community law (see, to that effect, Cowan, paragraph 19).
19 Accordingly, the answer to the first part of the question referred for a preliminary ruling must be that the right conferred by national rules to have criminal proceedings conducted in a language other than the principal language of the State concerned falls within the scope of the Treaty and must comply with Article 6 thereof.
The second part of the question
21 The Italian Government contends that the only nationals upon whom the right in question is conferred are those who are both residents of the Province of Bolzano and members of its German-speaking community, the aim of the rules in issue being to recognise the ethnic and cultural identity of persons belonging to the protected minority. Accordingly, the right of that protected minority to the use of its own language need not be extended to nationals of other Member States who are present, occasionally and temporarily, in that region, since provision has been made to enable such persons to exercise the rights of the defence adequately, even where they have no knowledge of the official language of the host State.
26 Consequently, rules such as those in issue in the main proceedings, which make the right, in a defined area, to have criminal proceedings conducted in the language of the person concerned conditional on that person being resident in that area, favour nationals of the host State by comparison with nationals of other Member States exercising their right to freedom of movement and therefore run counter to the principle of non-discrimination laid down in Article 6 of the Treaty.
27 A residence requirement of that kind can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions (see, to that effect, Case C-15/96 Schöning-Kougebetopoulou [1998] ECR I-47, paragraph 21).
31 Consequently, the answer to the second part of the question referred for a preliminary ruling must be that Article 6 of the Treaty precludes national rules which, in respect of a particular language other than the principal language of the Member State concerned, confer on citizens whose language is that particular language and who are resident in a defined area the right to require that criminal proceedings be conducted in that language, without conferring the same right on nationals of other Member States travelling or staying in that area, whose language is the same.$