European Commission v Italian Republic.
Date: 2016-10-11
33


As regards, in the first place, the Italian Republic’s argument that Article 12(2) of Directive 2004/80, as interpreted by the Commission, is invalid on the ground that, in essence, the European Union is not competent to adopt, on the basis of Article 308 EC, a provision governing, in particular, purely internal situations, suffice it to recall that, according to the Court’s settled case-law, in the absence of a provision of the FEU Treaty expressly permitting it to do so, a Member State cannot properly plead the unlawfulness of a directive addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that directive. The position could be different only if the act in question contained such particularly serious and manifest defects that it could be categorised as a non-existent act (see, inter alia, judgments of 29 July 2010, Commission v Austria, C‑189/09, not published, EU:C:2010:455, paragraphs 15 and 16 and the case-law cited, and 5 March 2015, Commission v Luxembourg, C‑502/13, EU:C:2015:143, paragraph 56).
40


In this connection, the Court has held that, when EU law guarantees a natural person the freedom to go to another Member State, the protection of that person from harm in the Member State in question, on the same basis as that of nationals and persons residing there, is a corollary of that freedom of movement (judgment of 2 February 1989, Cowan, C‑186/87, EU:C:1989:47, paragraph 17). In that context, recital 2 of Directive 2004/80 states that measures to facilitate compensation to victims of crimes should form part of the realisation of that objective.
45


It is clear from the foregoing considerations that Directive 2004/80 establishes a system to facilitate access for victims of crimes to compensation in cross-border situations, which system is to operate on the basis of Member States’ schemes on compensation for victims of violent intentional crime committed in their respective territories. Consequently, Article 12(2) of that directive must be interpreted as meaning that it is intended to guarantee to Union citizens the right to fair and appropriate compensation for the injuries they suffer on the territory of the Member State in which they find themselves in exercising their right to free movement, by requiring each Member State to introduce a compensation scheme for victims of any violent intentional crime committed on its territory.
48


The Italian Republic’s argument that, in the judgment of 2 February 1989, Cowan (186/87, EU:C:1989:47), referred to in recital 2 of Directive 2004/80, the Court required that the principle of the prohibition of discrimination on the basis of nationality be observed merely as regards access to compensation for victims of crime in cross-border situations and did not set out an obligation on the Member States to provide in their domestic law for a compensation scheme for victims of all types of violent intentional crime, which it is contended was confirmed in the order of 30 January 2014, C. (C‑122/13, EU:C:2014:59), must also be rejected.
49


It is true that the Court has held that Directive 2004/80 provides for compensation only where a violent intentional crime has been committed in a Member State in which the victim finds himself in exercising his right to free movement, so that a purely internal situation does not fall within the scope of that directive (see, to that effect, judgments of 28 June 2007, Dell’Orto, C‑467/05, EU:C:2007:395, paragraph 59, and 12 July 2012, Giovanardi and Others, C‑79/11, EU:C:2012:448, paragraph 37, and order of 30 January 2014, C., C‑122/13, EU:C:2014:59, paragraph 12). The fact remains that, in so doing, the Court merely stated that the system of cooperation established by Directive 2004/80 solely concerns access to compensation in cross-border situations, without however excluding that Article 12(2) of that directive requires each Member State, for the purposes of securing the objective pursued by it in such situations, to adopt a national scheme guaranteeing compensation for victims of any violent intentional crime on its territory.
50


Such an interpretation of Article 12(2) of Directive 2004/80 is, moreover, consistent with the objective of that directive of abolishing, as between Member States, obstacles to the free movement of persons and services for the purposes of improving the functioning of the internal market.