Opinion of Advocate General Bobek delivered on 14 May 2020.

• Jurisdiction: European Union
• Celex Number: 62019CC0129
• ECLI: ECLI:EU:C:2020:375
• Date: 14 May 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 14 May 2020(1)

Case C‑129/19

Presidenza del Consiglio dei Ministri

v

BV,

joined parties:

Procura della Repubblica di Torino

(Request for a preliminary ruling from the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy))

(Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2004/80/EC — Article 12(2) — National compensation schemes for victims of violent intentional crime — Purely internal situations — Concept of ‘cross border situations’ — Fair and appropriate compensation)

I. Introduction

1. In this case, the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy) raises two legal issues concerning the interpretation of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims. (2) First, does Article 12(2) of that directive require Member States to introduce a compensation scheme that extends to all victims of violent intentional crimes committed on their territory, thus including also ‘purely internal’ crimes? Second, what criteria should be used to determine whether compensation provided for in a national scheme is ‘fair and appropriate’ for the purposes of that directive?

II. Legal framework

A. EU law

2.Directive 2004/80 is composed of three chapters. Chapter I bears the title ‘Access to compensation in cross-border situations’. Its Article 1 reads:

‘Member States shall ensure that where a violent intentional crime has been committed in a Member State other than the Member State where the applicant for compensation is habitually resident, the applicant shall have the right to submit the application to an authority or any other body in the latter Member State.’

3. Chapter II, entitled ‘National schemes on compensation’, contains only one article (Article 12). It states:

‘1. The rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime committed in their respective territories.

2. All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.’

4. Chapter III contains ‘Implementing provisions’. Its Article 18(1) reads:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 2006 at the latest, with the exception of Article 12(2), in which case the date of compliance shall be 1 July 2005. They shall forthwith inform the Commission thereof.’

B. National law

5. The key provisions of national law, applicable at the material time, were as follows.

6. Article 609-bis of the Codice penale (Italian Criminal Code) provides for the crime of ‘sexual violence’.

7. Pursuant to Article 1218 of the Codice civile (Italian Civil Code), ‘any party who does not properly discharge his obligations is required to make good any consequent loss unless he can show that his failure to do so was due to force majeure’.

8. Article 11(1) of Legge 7 luglio 2016, n. 122 Disposizioni per l’adempimento degli obblighi derivanti dall’appartenenza dell’Italia all’Unione europea — Legge europea 2015-2016 (Law No 122 of 7 July 2016 on provisions to comply with the obligations arising from Italy’s membership of the European Union — European Law 2015-2016), which entered into force on 23 July 2016, as amended, (3) provided for ‘the right to compensation from the State for a victim of an intentional offence committed with violence to the person and in any event the crime referred to in Article 603-bis of the Criminal Code, with the exception of the crimes referred to in Articles 581 and 582, save where aggravated circumstances provided for in Article 583 of the Criminal Code arise’. Under paragraph 2 of the same provision, compensation for the offences of murder, sexual violence or grave personal injury is to be paid to the victim or, in the event of the victim’s death as a result of the crime, the persons so entitled, to the extent determined by the ministerial decree referred to in Article 11(3). In respect of offences other than those mentioned above, compensation is to be paid instead for reimbursement of medical and care costs.

9. Article 1 of the Decreto del Ministro dell’interno, 31 agosto 2017, Determinazione degli importi dell’indennizzo alle vittime dei reati intenzionali violenti (4) (Decree of the Minister for the Interior of 31 August 2017 determining the amounts of compensation payable to the victims of violent intentional crimes) determines the amounts of compensation as follows: ‘(a) as regards the crime of murder, in the fixed amount of EUR 7 200, and, in the case of murder committed by a spouse, including one who is separated or divorced, or by a person who is, or was, linked by emotional ties to the injured party, in the fixed amount of EUR 8 200 exclusively for the victim’s children; (b) as regards the crime of sexual violence referred to in Article 609-bis of the Criminal Code, except where the attenuating circumstance of lesser gravity raises, in the fixed amount of EUR 4 800; (c) as regards crimes other than those referred to in subparagraphs (a) and (b), up to a maximum of EUR 3 000 by way of reimbursement for medical and care costs’.

10. In the interest of completeness, it might be added that at the hearing, the Italian Government informed the Court that, by ministerial decree of 22 November 2019, the Italian Government has raised the amount of compensation for the victims of violent intentional crimes. Compensation for rape has been increased from EUR 4 800 to EUR 25 000. However, as far as I understand, these new provisions do not have retroactive effects. Therefore, they do not appear to apply to the present case.

III. Facts, procedure and the questions referred

11. In October 2005, the Respondent, who is resident in Italy, was the victim of sexual violence committed by two Romanian nationals in Turin. The perpetrators were sentenced to a period of 10 years and 6 months’ imprisonment. They were also ordered to pay compensation for the harm caused, the exact amount to be determined in separate proceedings, with an award of EUR 50 000 being made by the court as an immediately enforceable interim payment in favour of the Respondent.

12. Nevertheless, the Respondent was unable to obtain the awarded amount since the perpetrators of the crime absconded.

13. In February 2009, the Respondent brought an action before Tribunale di Torino (District Court, Turin, Italy) against the Presidenza del Consiglio dei Ministri (Office of the Prime Minister, Italy) seeking damages for its failure to transpose Directive 2004/80. By judgment of 26 May 2010, that court found the action to be well founded and ordered the Presidenza del Consiglio dei Ministri to pay the Respondent the sum of EUR 90 000.

14. The Presidenza del Consiglio dei Ministri lodged an appeal against that judgment before the Corte di appello di Torino (Court of Appeal, Turin, Italy). By judgment of 23 January 2012, that court allowed the appeal in part. It reduced the sum due to the Respondent to EUR 50 000.

15. The Presidenza del Consiglio dei Ministri appealed on a point of law against that judgment before the Corte Suprema di Cassazione (Supreme Court of Cassation). The proceedings were stayed, pending two rulings by the Court of Justice: on the infringement proceedings brought by the European Commission on 22 December 2014 against the Italian Republic for failure to transpose Directive 2004/80, and on a request for a preliminary ruling of 24 March 2015 from the Tribunale di Roma (District Court, Rome, Italy) on the interpretation of Article 12(2) of that directive.

16. Following the completion of those two sets of proceedings before the Court of Justice (the first by judgment of 11 October 2016, (5) and the second by order of the President of the Court of 28 February 2017 (6)), the proceedings before the Corte Suprema di Cassazione (Supreme Court of Cassation) were resumed.

17. However, harbouring doubts as to the interpretation of Directive 2004/80, the Corte Suprema di Cassazione (Supreme Court of Cassation) decided to stay these proceedings again, and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) In relation to the situation of late (and/or incomplete) implementation in the national legal system of [Directive 2004/80], which is non-self-executing as regards the establishment, required by it, of a scheme for compensation for the victims of violent crimes, which gives rise, in relation to cross-border persons, who are the sole addressees of the directive, to a liability on the part of the Member State to pay compensation in accordance with the principles set out in the case-law of the Court of Justice (inter alia the judgments in Francovich and Brasserie du Pêcheur and Factortame III), does [EU] law require that a similar liability be imposed on the Member State in relation to non-cross-border (and thus resident) persons, who are not the direct addressees of the benefits deriving from implementation of the directive but who, in order to avoid infringement of the principle of equal treatment/non-discrimination in that [EU] law, should have and could have — if the directive had been implemented in full and in good time — benefited, by extension, from the effet utile of that directive (that is to say, the abovementioned compensation scheme)?

(2). If the answer to the preceding question is in the affirmative:

Can the compensation established for the victims of violent intentional crimes (and in particular the crime of sexual violence referred to in Article 609-bis of the Italian Criminal Code) by the Decree of the...