Texdata Software GmbH.
Date: 2013-09-26
28. On that point, it should be noted that, according to settled case-law, the procedure laid down in Article 267 TFEU is based on a clear separation of functions between national courts and tribunals and the Court of Justice, and the latter is empowered only to rule on the interpretation or the validity of the acts of EU law referred to in that provision. In that context, it is not for the Court to rule on the interpretation of provisions of national law or to decide whether the referring court’s interpretation of them is correct (see, inter alia, Case C‑220/05 Auroux and Others  [2007] ECR I‑385, paragraph 25; Case C‑515/08 dos Santos Palhota and Others  [2010] ECR I‑9133, paragraph 18; and Case C‑81/09 Idryma Typou  [2010] ECR I‑10161, paragraph 35).
29. It follows that the Court must take account of the factual and legal context of requests for preliminary rulings, as described in the order for reference (Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri  [2004] ECR I‑5257, paragraph 42, and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraph 48). It is therefore necessary to adhere to the interpretation of the Austrian legislation set forth in the request for a preliminary ruling and on which the question referred to the Court is predicated.
35. As regards the relevance of the provisions referred to, it is settled case-law that the fact that the terms in which a national court has framed a question referred for a preliminary ruling mention certain provisions of EU law does not preclude the Court from providing that court with all the elements of interpretation which may be of assistance in adjudicating the case pending before it, whether or not that court has referred to them in the wording of its questions (see, inter alia, Case C‑152/03 Ritter-Coulais [2006] ECR I‑1711, paragraph 29; Joined Cases C‑307/09 to C-309/09 Vicoplus and Others  [2011] ECR I‑453, paragraph 22; and Case C‑248/11 Nilaş and Others  [2012] ECR I-0000, paragraph 31). In that context, it is for the Court to extract from all the information provided by the national court – and, in particular, from the grounds of the decision referring the questions – the points of EU law which require interpretation, regard being had to the subject matter of the dispute (see Case C‑115/08 ČEZ [2009] ECR I‑10265, paragraph 81, and Idryma Typou , paragraph 31).
41. Lastly, as regards the allegedly retroactive application of the national legislation at issue, the Court has held that the determination of the applicable national legislation ratione temporis  is a question of interpretation of national law and thus does not fall within the jurisdiction of the Court in the context of a request for a preliminary ruling (Case C‑467/08 Padawan  [2010] ECR I‑10055, paragraph 24).
50. In those circumstances, it is appropriate to note that, while the choice of penalties remains within their discretion, Member States must ensure in particular that infringements of EU law are penalised under conditions which make the penalty effective, proportionate and dissuasive (see, to that effect, Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others  [2005] ECR I‑3565, paragraph 65).
51. In particular, the Court has held that the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality (see, by analogy, Case C‑81/12 Asociaţia Accept  [2013] ECR I‑0000, paragraph 63 and the case-law cited).
52. In that respect, measures provided for under national legislation must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question: where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to that effect, Joined Cases C‑379/08 and C‑380/08 ERG and Others  [2010] ECR I‑2007, paragraph 86, and Case C‑210/10 Urbán  [2012] ECR I‑0000, paragraph 24).
54. The Court has already had occasion to rule that the fact that the annual accounts must give a true and fair view of the assets and liabilities, financial position and profit or loss of the company concerned constitutes a fundamental principle (see Case C‑234/94 Tomberger  [1996] ECR I‑3133, paragraph 17, rectified by order of 10 July 1997; Case C‑306/99 BIAO  [2003] ECR I‑1, paragraph 72; and Berlusconi and Others , paragraph 54). The disclosure of those annual accounts is primarily designed to provide information for third parties who do not know or cannot obtain sufficient knowledge of the company’s accounting and financial situation (Case C‑97/96 Daihatsu Deutschland [1997] ECR I‑6843, paragraph 22).
55. It is for the referring court to determine whether, under the system of penalties laid down by Paragraph 283 of the UGB, as amended by the BBG, breach of the obligation to disclose accounting documents is penalised under conditions, both procedural and substantive, which make the penalty effective, proportionate and dissuasive. However, the Court may provide the national court with all guidance on the interpretation of EU law that could be useful for its decision ( Asociaţia Accept , paragraph 43 and the case-law cited).
63. In that connection, it should be recalled that Article 49 TFEU requires the elimination of restrictions of the freedom of establishment. Under Article 54 TFEU, companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Union are, for the purposes of the Treaty provisions relating to the freedom of establishment, to be treated in the same way as natural persons who are nationals of Member States. For those companies, that freedom entails the right to exercise their activity in other Member States through a subsidiary, a branch or an agency (see Case C‑337/08 X Holding  [2010] ECR I‑1215, paragraph 17, and judgment of 25 April 2013 in Case C‑64/11 Commission v Spain , not published in the ECR, paragraph 23).
64. It is settled case-law that the term ‘restriction’ as used in Article 49 TFEU covers measures which prohibit or impede the exercise of freedom of establishment or render it less attractive (see, inter alia, Idryma Typou , paragraph 54; Case C‑371/10 National Grid Indus  [2011] ECR I‑0000, paragraph 36; and Commission  v Spain , paragraph 26).
71. Under Article 51(1) of the Charter, the Charter’s provisions are addressed to the Member States only when they are implementing EU law.
72. In that regard, the Court’s settled case-law states, in essence, 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. It is consonant with those limits that the Court has already stated that it has no jurisdiction to appraise, in the light of the Charter, national legislation which falls outside the framework of EU law. On the other hand, if national legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (see, inter alia, Case C‑617/10 Åkerberg Fransson [2013] ECR I‑0000, paragraph 19 and the case-law cited).
73. The Court has also had occasion to explain that, construed in the light of that case-law and of the explanations relating to Article 51 of the Charter, the fundamental rights guaranteed by the Charter must be respected where national legislation falls within the scope of EU law. In other words, the applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter (see, to that effect, Åkerberg Fransson , paragraphs 20 and 21).
74. In the present case, the main proceedings concern the penalty imposed for failure to comply with the disclosure obligation, as laid down in the Eleventh Directive. As can be seen from paragraph 49 above, the EU legislature, by Article 12 of the Eleventh Directive, left the Member States responsible for determining the appropriate penalties – that is to say, penalties which are effective, proportionate and dissuasive – in order to ensure compliance with the disclosure obligation. In Austrian law, those penalties are laid down by Paragraph 283 of the UGB, as amended by the BBG.
75. It follows that the Austrian legislation at issue in the main proceedings constitutes a case of the ‘implementing of Union law’, for the purposes of Article 51(1) of the Charter.
76. The provisions of the Charter are therefore applicable to the facts of the dispute before the referring court.
77. As regards the principle of effective judicial protection, the first paragraph of Article 47 of the Charter states that everyone whose rights and freedoms guaranteed by EU law are infringed has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that provision.
78. In order to ensure the observance of that fundamental right within the European Union, the second subparagraph of Article 19(1) TEU lays down that Member States are to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.
79. As regards the rights of the defence, the Court has held that they must be observed in all proceedings in which sanctions, especially fines or penalty payments, may be applied (see, to that effect, Case C‑194/99 P Thyssen Stahl  v Commission  [2003] ECR I‑10821, paragraph 30, and Case C‑3/06 P Groupe Danone v Commission  [2007] ECR I‑1331, paragraph 68).
80. As regards, in the first place, the question as to whether the 14-day period allowed for challenging the penalty for failure to disclose is compatible with the principle of effective judicial protection, it should be borne in mind that the period prescribed must be sufficient in practical terms to enable an effective objection to be prepared and submitted (see, to that effect, Case C‑69/10 Samba Diouf [2011] ECR I‑7151, paragraph 66).
83. As regards, in the third place, the absence of prior notice and the lack of any opportunity for the company concerned to make known its views, it should be noted that, in all proceedings initiated against a person which may well culminate in a measure adversely affecting that person, respect for the rights of the defence is a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that the addressees of decisions that significantly affect their interests be placed in a position in which they may effectively make known their views on the evidence on which the contested decision is based (Case C‑28/05 Dokter and Others  [2006] ECR I‑5431, paragraph 74 and the case-law cited).
84. However, it is settled case-law that fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, in the light of the objectives pursued, a disproportionate and intolerable interference which impairs the very substance of the rights guaranteed (see, to that effect, Dokter and Others , paragraph 75, and Joined Cases C‑317/08 to C‑320/08 Alassini and Others  [2010] ECR I‑2213, paragraph 63 and the case-law cited).
85. However, given the nature of the infringement in question, it does not appear that, in circumstances such as those of the case before the referring court, the imposition of an initial penalty of EUR 700 without prior notice or any opportunity for the company concerned to make known its views before the penalty is imposed impairs the substance of the fundamental right at issue, since the submission of a reasoned objection against the decision imposing the periodic penalty immediately renders that decision inoperable and triggers an ordinary procedure under which there is a right to be heard.
87. In the fourth place, as regards the other procedural elements, such as, in particular, the obligation to state reasons in the document instituting proceedings, the barring of new pleas at the appeal stage and the fact that there is no guarantee that a hearing will be held, there is no evidence before the Court that raises any doubts as to the conformity of the system of penalties at issue with the principles of effective judicial protection and respect for the rights of the defence.