XC and Others v Generalprokuratur.

• Jurisdiction: European Union
• Date: 24 October 2018
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

24 October 2018(*)

(Reference for a preliminary ruling — Principles of EU law — Sincere cooperation — Procedural autonomy — Principles of equivalence and effectiveness — National legislation laying down a remedy allowing criminal proceedings to be reheard in the event of infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms — No obligation to extend that procedure to cases of alleged infringement of the fundamental rights enshrined in EU law)

In Case C‑234/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 23 January 2017, received at the Court on 4 May 2017, in the proceedings relating to a request for mutual assistance in criminal matters concerning

XC,

YB,

ZA

intervener:

Generalprokuratur,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev (Rapporteur), C. Toader and F. Biltgen, Presidents of Chambers, M. Ilešič, E. Levits, L. Bay Larsen, M. Safjan, D. Šváby, C.G. Fernlund, C. Vajda, and S. Rodin, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 20 March 2018,

after considering the observations submitted on behalf of

– the Austrian Government, by J. Schmoll, K. Ibili and G. Eberhard, acting as Agents,

– the Hungarian Government, by M.Z. Fehér, G. Koós and G. Tornyai, acting as Agents,

– the European Commission, by H. Krämer and R. Troosters, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 5 June 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 4(3) TEU and the principles of equivalence and effectiveness.

2 The request has been made in proceedings for mutual legal assistance in criminal matters, initiated before the Austrian judicial authorities at the request of the Staatsanwaltschaft des Kantons St. Gallen (Public Prosecutor’s Office for the Canton of St Gallen, Switzerland), concerning XC, YB and ZA, suspected, in Switzerland, of having committed the offence of tax evasion, within the meaning of the Swiss law governing value added tax (VAT), and other criminal offences.

Legal context

EU law

3 Article 50 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen (Luxembourg) on 19 June 1990, which entered into force on 26 March 1995 (OJ 2000 L 239, p. 19, ‘the CISA’), which appears in Chapter 2, entitled ‘Mutual Assistance in Criminal Matters’, of Title III thereof, provides in paragraph 1:

‘The Contracting Parties undertake to afford each other, in accordance with the [European Convention on Mutual Assistance in Criminal Matters (ETS No 30), signed at Strasbourg on 20 April 1959 and the Benelux Treaty concerning Extradition and Mutual Assistance in Criminal Matters of 27 June 1962, as amended by the Protocol of 11 May 1974], mutual assistance as regards infringements of their laws and regulations on excise duties, value added tax and customs duties. Customs provisions shall mean the rules laid down in Article 2 of the Convention of 7 September 1967 between Belgium, the Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands on Mutual Assistance between Customs Administrations, and Article 2 of Council Regulation (EEC) No 1468/81 [of 19 May 1981 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs or agricultural matters (OJ 1981 L 144, p. 1)].’

4 Article 54 of the CISA, which is in Chapter 3, entitled ‘Application of the ne bis in idem principle’, of Title III of that Convention, provides:

‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Austrian law

5 The Strafrechtsänderungsgesetz (Law on criminal law reform, BGBl. 762/1996) inserted into the Strafprozessordnung (Code of Criminal Procedure) Paragraphs 363a to 363c, concerning the legal institution of the ‘rehearing of criminal proceedings’ (Erneuerung des Strafverfahrens), in order to implement the judgments of the European Court of Human Rights.

6 Paragraph 363a of the Code of Criminal Procedure states:

‘(1) Where a judgment of the European Court of Human Rights finds that the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950] or one of the protocols thereto, has been infringed by a judgment or decision of a criminal court, the case shall, on application, be reheard if it is possible that the infringement might have affected the substance of the criminal court’s decision in a manner detrimental to the person concerned.

(2) All applications for a rehearing shall be adjudicated upon by the Oberster Gerichtshof (Supreme Court, Austria). The application may be made by the person affected by the infringement found or by the Generalprokurator (Principal Public Prosecutor); Paragraph 282(1) shall apply mutatis mutandis. The application shall be lodged with the Oberster Gerichtshof [(Supreme Court)]. The person concerned shall be given an opportunity to comment on an application made by the Principal Public Prosecutor; the Principal Public Prosecutor shall be given an opportunity to comment on an application made by the person concerned. Paragraph 35(2) shall apply mutatis mutandis’.

The dispute in the main proceedings and the question referred for a preliminary ruling

7 During 2012, the Public Prosecutor’s Office for the Canton of St Gallen opened an investigation into tax evasion concerning XC, YB and ZA, who were alleged to have obtained VAT refunds totalling 835 374.17 Swiss francs (CHF) (approximately EUR 716 000) by making false declarations to the Swiss tax authorities. The Prosecutor’s Office submitted requests for mutual legal assistance in criminal matters to the Austrian judicial authorities, with a view to the parties concerned being questioned by the Staatsanwaltschaft Feldkirch (Public Prosecutor’s Office, Feldkirch, Austria).

8 Several appeals contesting the organisation of the requested interviews have been lodged in Austria by XC, YB and ZA, on the ground, in essence, that the existence of criminal proceedings concluded in Germany and Liechtenstein in 2011 and 2012 precluded, because of the ne bis in idem principle enshrined in Article 54 of the CISA, further prosecutions concerning suspected criminal offences committed to the detriment of the Swiss tax authorities being brought against them. In an order of 9 October 2015 the Oberlandesgericht Innsbruck (Higher Regional Court, Innsbruck, Austria), ruling at last instance, found that there were no elements pointing to an infringement of Article 54 of the CISA.

9 Although that order had become final, XC, YB and ZA applied, on the basis of Paragraph 363a of the Code of Criminal Procedure, to the Oberster Gerichtshof (Supreme Court) for a rehearing of the criminal proceedings, relying on the fact that the grant of the requests for mutual legal assistance at issue infringed certain of their rights enshrined not only in the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), but also in the CISA and the Charter of Fundamental Rights of the European Union (‘the Charter’).

10 The referring court notes that, according to its settled case-law, the rehearing of criminal proceedings is only possible where there is an infringement of the rights guaranteed by the ECHR, found by the European Court of Human Rights (‘the ECtHR’) or, even before any decision by the ECtHR finding such an infringement, by the Oberster Gerichtshof (Supreme Court). That court is uncertain whether the principle of sincere cooperation and the principles of equivalence and effectiveness require that the rehearing of criminal proceedings should also be ordered in cases of infringement of fundamental rights enshrined in EU law, even where that situation is not expressly provided for in the text governing that legal remedy.

11 In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is EU law, in particular Article 4(3) TEU in conjunction with the principles of equivalence and effectiveness inferred from it, to be interpreted as requiring the Oberster Gerichtshof (Supreme Court), upon application by the person concerned, to review a final decision delivered by a criminal court with respect to an alleged infringement of EU law (in this case, Article 50 of the [Charter] and Article 54 of the [CISA]), where national law (Paragraph 363a of the Code of Criminal Procedure) provides for such a review only with respect to an alleged violation of the ECHR or one of the protocols thereto?’

Consideration of the question referred

Admissibility

12 The Austrian Government raises a plea of...