CJEU Case C-590/24 / Judgment

38. Finally, that government considers that the referring court does not specify the considerations which led it to conclude that the Law on the RPSP constitutes an obstacle to the exercise of fundamental freedoms, nor that, in the context of the legislation at issue in the main proceedings, there is any question of ‘implementation of Union law’ within the meaning of Article 51(1) of the Charter.

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45. Thirdly, the factors examined in paragraphs 40 to 42 of this judgment also suggest that, contrary to the Slovak Government’s contention, the legislation at issue in the main proceedings constitutes an implementation of Union law within the meaning of Article 51(1) of the Charter (see, to that effect, judgment of 29 July 2024, protectus, C‑185/23, EU:C:2024:657, paragraph 42 and the case-law cited).

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47. In those circumstances, by requiring registration in the RPSP, in accordance with the Law on the RPSP, on the basis of which the fines at issue in the main proceedings were imposed, it must be held that the Slovak Republic has exercised a discretionary power or power of assessment which forms an integral part of the system established by an act of EU law, which, according to established case-law, implies that that Member State is exercising that right within the meaning of Article 51(1) of the Charter (see, to that effect, judgments of 19 November 2019, TSN and AKT, C‑609/17 and C‑610/17, EU:C:2019:981, paragraph 50, and of 29 July 2024, protectus, C‑185/23, EU:C:2024:657, paragraph 59 and the case-law cited).

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59. In the second place, it should be noted that the fourth and fifth questions referred for a preliminary ruling essentially concern the interpretation of Article 49(1) and (3) of the Charter, in order to enable the referring court to determine whether the first part of Paragraph 13(1)(a) of the Law on the RPSP is sufficiently precise and complies with the principle of proportionality of penalties.

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63. Since the fourth to sixth questions referred for a preliminary ruling essentially concern the interpretation of Article 49 of the Charter, it is necessary to determine whether that provision is applicable in the context of the main proceedings by examining whether the system of penalties at issue in the main proceedings is of a criminal nature

64. It follows from established case-law that three criteria are relevant for assessing the criminal nature of a penalty for the purposes of, inter alia, applying Article 49 of the Charter. The first is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty which the person concerned is liable to incur (judgment of 1 August 2025, BAJI Trans, C‑544/23, EU:C:2025:614, paragraph 63 and the case-law cited).

65. While it is for the referring court to assess, in the light of those criteria, whether the fines imposed on Dlhopolec and Others are of a criminal nature for the purposes of Article 49(1) of the Charter, the Court, when giving a preliminary ruling, may nevertheless provide clarification designed to give the national court guidance in its assessment (judgment of 1 August 2025, BAJI Trans, C‑544/23, EU:C:2025:614, paragraph 64 and the case-law cited).

66. First, it should be noted that the Law on the RPSP does not classify the penalty imposed under Paragraph 13 as ‘criminal’. However, the application of Article 49 of the Charter extends, regardless of the classification of penalties as criminal under domestic law, to penalties which must be regarded as having a criminal nature on the basis of the other two criteria referred to in paragraph 64 of this judgment (see, to that effect, judgment of 1 August 2025, BAJI Trans, C‑544/23, EU:C:2025:614, paragraph 66 and the case-law cited).

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71. In those circumstances, subject to the verifications which it is for the referring court to carry out, it must be pointed out that a system of penalties with the characteristics set out in Paragraph 13 of the Law on the RPSP is criminal in nature within the meaning of Article 49 of the Charter. It follows that that system must be assessed in the light of the principles of legality and proportionality of criminal offences and penalties, enshrined in Article 49(1) and (3) of the Charter.

72. By its sixth question, which should be examined in the first place, the referring court asks, in essence, whether Article 49(1) of the Charter and the principle of legal certainty must be interpreted as precluding national legislation which provides that the person authorised to register a company in a register of public sector partners is prevented from making such a registration where the relationship that he or she has with the public sector partner is such as to call into question his or her impartiality, in particular because of personal or property ties with that public sector partner, without other criteria for assessing that impartiality being specified and even though failure to comply with that requirement of impartiality leads to the imposition of a criminal penalty.

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74. The principle of legality in criminal matters, laid down in Article 49(1) of the Charter, which constitutes a specific expression of the general principle of legal certainty, implies, inter alia, that legislation must clearly define offences and the penalties which they attract. That condition is met where the individual concerned is in a position, on the basis of the wording of the relevant provision and, if necessary, with the help of the interpretation made by the courts, to know which acts or omissions will make him or her criminally liable (see, to that effect, judgments of 3 May 2007, Advocaten voor de Wereld, C‑303/05, EU:C:2007:261, paragraph 50; of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 162; and of 29 July 2024, Belgian Association of Tax Lawyers and Others, C‑623/22, EU:C:2024:639, paragraphs 39 and 40).

75. In accordance with the case-law of the European Court of Human Rights (ECtHR) relating to Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which establishes rights corresponding to those guaranteed in Article 49 of the Charter, since legislation must be of general application, its wording cannot be absolutely precise. It follows that, while the use of the legislative technique of referring to general categories, rather than to exhaustive lists, often leaves grey areas at the fringes of a definition, these doubts in relation to borderline cases are not sufficient, in themselves, to make a provision incompatible with Article 7 of that convention, provided that the provision sufficiently clear in the large majority of cases (see, to that effect, inter alia, ECtHR, 15 November 1996, Cantoni v. France, CE:ECHR:1996:1115JUD001786291, paragraphs 31 and 32). Those considerations are equally valid, under Article 52(3) of the Charter, with respect to Article 49 of the Charter (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 165).

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80. In that regard, for the purposes of enabling the referring court to determine whether the degree of precision of Paragraph 19(c) of the Law on the RPSP meets the requirements of Article 49(1) of the Charter with regard to the criteria for assessing whether the requirement of impartiality incumbent on the person authorised to verify the relevant information and to register the public sector partner in the RPSP has not been complied with, it should be noted, first, that, according to that provision, ‘the authorised person shall not be entitled to perform the acts provided for in [that] law if he or she has any relationship with the public sector partner or with the members of its bodies that is likely to call into question his or her impartiality, in particular if that relationship is of a personal or financial nature; the relationship between the authorised person and the public sector partner in the course of the exercise of his or her activity under separate provisions does not constitute a relationship that could call into question the impartiality of the authorised person’.

81. It follows that Paragraph 19(c) of the Law on the RPSP, in that it specifies the scope of the requirement of impartiality by reference to the existence of both personal and financial ties between the authorised person and the public sector partner, is worded in a manner consistent with the requirement laid down in Article 49(1) of the Charter, as interpreted by the Court in the case-law referred to in paragraph 74 of this judgment. Such wording, which characterises the nature of the relationship between the authorised person and the public sector partner, enables the latter to know, with sufficient clarity and precision, the extent of their obligations of impartiality for the purposes of registering that partner in the RPSP, and to know that failure to comply with those obligations is likely to make them criminally liable, exposing them to the fines provided for in Paragraph 13 of the Law on the RPSP.

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83. Secondly, the fact that Paragraph 19(c) of that law leaves the registration authority some discretion to assess whether the ties between the authorised person and the public sector partner are such as to call into question the requirement of impartiality laid down in that paragraph cannot, in itself, lead to the conclusion that that provision is not sufficiently clear and precise within the meaning of Article 49(1) of the Charter. In that regard, as the Slovak Government points out, and subject to the verifications which it is for the referring court to carry out, the person authorised to register a public sector partner in the RPSP must, in view of the wording of Paragraph 19(c), reasonably expect that authority to verify the factual and legal elements characterising the personal and financial ties between that person and that partner in order to determine whether they are likely to raise doubts as to the impartiality of that person and, therefore, to prevent that person from registering that partner in the RPSP.

84. Thirdly, the circumstance, pointed out by the referring court, that the competent national courts referred to the case-law on the impartiality of judges in order to clarify the scope of the requirement of impartiality incumbent on the person authorised to register the public sector partner in the RPSP, within the meaning of Paragraph 19(c) of the Law on the RPSP, cannot be regarded as contrary to Article 49(1) of the Charter.

85. As stated in paragraph 76 of this judgment, Article 49(1) of the Charter allows for the gradual clarification of the rules on criminal liability through interpretations in case-law, provided that those interpretations are reasonably foreseeable. It should be noted that the application, by analogy, of existing case-law in another legal context cannot be regarded as unforeseeable, since it falls within the scope of the ordinary methods of interpreting the law.

86. Thus, subject to the verifications to be carried out by the referring court, it does not appear, in the light of the wording of Paragraph 19(c) of the Law on the RPSP, read in conjunction with Paragraph 13 of that law, and the method of interpretation used by the competent national courts, that the authorised person and the public sector partner concerned are prevented from determining, in a sufficiently clear and precise manner, within the meaning of Article 49(1) of the Charter, the acts and omissions that are likely to render them criminally liable.

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88. That factor raises a question concerning the correctness of the interpretation of national law by those courts and compliance with the obligation to state reasons, which cannot affect the assessment of whether that provision is sufficiently clear and precise to satisfy the requirements of Article 49(1) of the Charter. In any event, even if that interpretation were to be regarded as unforeseeable within the meaning of the case-law relating to Article 49(1) thereof, such a finding would not allow the conclusion to be drawn that Paragraph 19(c) of the Law on the RPSP, as such, does not meet the requirements of Article 49(1) of the Charter, but rather would mean that that interpretation could not be accepted, since it would be contrary to fundamental rights.

89. In the light of the foregoing considerations, the answer to the sixth question is that Article 49(1) of the Charter and the principle of legal certainty must be interpreted as not precluding national legislation which provides that the person authorised to register a company in a register of public sector partners is prevented from making such a registration where the relationship that he or she has with the public sector partner is such as to call into question his or her impartiality, in particular because of personal or financial ties with that public sector partner, without other criteria for assessing that impartiality being specified and even though failure to comply with that requirement of impartiality leads to the imposition of a criminal penalty, provided that, in view of the wording of that national legislation and its interpretation on the basis of the ordinary methods of interpretation of the law by the competent national courts, that authorised person and that public sector partner are able to determine, in a sufficiently clear and precise manner, which acts and omissions are likely to render them criminally liable.

90. By its fifth question, which should be examined before the fourth question, the referring court asks, in essence, whether Article 49(1) of the Charter and the principle of legal certainty must be interpreted as precluding national legislation which, in the event of failure to comply with the requirement of impartiality incumbent on the person authorised to register a company in a register of public sector partners, merely provides for the imposition on that company of a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without specifying the parameters for determining that benefit.

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92. It follows from Paragraph 13(1)(a) of that law that the possibility of quantifying the economic benefit obtained by the public sector partner, and the amount of that benefit where it can be quantified, determines or, at the very least, influences the amount of the fine imposed on that partner for breach of the obligation laid down in Paragraph 19(c) of the Law on the RPSP. Therefore, in order to comply with the requirements of Article 49(1) of the Charter, it is important that the concept of ‘economic benefit’ within the meaning of that law be sufficiently clear and precise to enable public sector partners to determine the penalties to which they are liable in the event of a breach of that law.

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95. The referring court therefore questions whether that interpretation is consistent with Article 49(1) of the Charter, while emphasising that such an interpretation is consistent with the explanatory memorandum to the Law on the RPSP.

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101. In order to assess compliance with Article 49(1) of the Charter, it must be determined whether a public sector partner is able to foresee the situations in which it may be liable to a fine and whether the method of calculating that fine is reasonably foreseeable.

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103. In view of the foregoing considerations, the answer to the fifth question is that Article 49(1) of the Charter and the principle of legal certainty must be interpreted as not precluding national legislation which, in the event of failure to comply with the requirement of impartiality incumbent on the person authorised to register a company in a register of public sector partners, merely provides for the imposition on that company of a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without specifying the parameters for determining that benefit, provided that those parameters can be derived from an ordinary method of interpretation of the law applied by the competent national courts, so that the company is able to determine, in a sufficiently clear and precise manner, the penalties to which it is liable in the event of a breach of that legislation.

104. By its fourth question, the referring court asks, in essence, whether Article 49(3) of the Charter must be interpreted as precluding national legislation which automatically imposes on a company that has infringed that legislation a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without the competent authority being able to make a distinction based on the nature of the infringement committed or to take into account the other negative legal consequences that the imposition of that fine is likely to have for the company penalised.

105. In that regard, it should be noted that the principle of proportionality of penalties laid down in Article 49(3) of the Charter requires that the severity of a penalty correspond to the seriousness of the offence concerned (see, to that effect, judgment of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraph 97 and the case-law cited).

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110. The fact that the fine imposed for infringement of, inter alia, Paragraph 19(c) of the Law on the RPSP may be equal to such a benefit cannot, in itself, imply that Article 49(3) of the Charter precludes the first part of Paragraph 13(a) of that law. It cannot be ruled out that a penalty aimed at withdrawing all the economic benefit that a company has obtained in its relations with the public sector, even though it has not complied with the requirements of that law, may be consistent and effective in achieving the objective pursued by that law, which is to ensure the transparency of the legal and commercial relations that the public sector maintains with its partners.

111. Similarly, the circumstance, noted by the referring court, that the first part of Paragraph 13(a) of the Law on the RPSP does not set any upper limit for such a fine does not, in itself, appear to be contrary to the principle of proportionality of penalties within the meaning of Article 49(3) of the Charter, in so far as the introduction of such a ceiling would be likely to compromise the effectiveness of the fine and its deterrent and punitive effect, in that it could encourage certain economic operators not to comply with the obligations arising from that law where the economic benefit they hope to obtain in their relations with the public sector exceeds that ceiling.

112. However, in the second place, the referring court states that, when applying the first part of Paragraph 13(1)(a) of the Law on the RPSP, the registration authority automatically imposes the fine provided for in that provision, without taking into account the specific circumstances of the case. It should be noted that such automaticity, in the context of a fine that is potentially very high, does not comply with the principle of proportionality within the meaning of Article 49(3) of the Charter, since that authority does not have the power to adjust the amount of the fine according to the seriousness of the offence committed.

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115. Therefore, if the application of Paragraph 13(6) of that law in such a case is capable of satisfying the requirement of proportionality laid down in Article 49(3) of the Charter, it is for the referring court to ascertain whether, in the present case, if it considers that the registration authority correctly imposed the fines at issue in the main proceedings on the basis of the second part of Paragraph 13(1)(a) of that law, that authority took into account all the relevant circumstances of the case, in accordance with Paragraph 13(6) thereof.

116. In the fourth and last place, as regards the other adverse consequences that the Law on the RPSP provides for the penalised company, the referring court states, first, that once the fine imposed has become final, the public sector entity may, under Paragraph 15 of that law, terminate any contract with the public sector partner. It is true, in that regard, that such termination is likely to have potentially significant consequences for the economic operator concerned. However, for the purposes of verifying compliance with Article 49(3) of the Charter, it should be noted that it is for the public sector entity, and not the registration authority, which imposes the fine within the meaning of Paragraph 13(1)(a) of that law, to take into account the seriousness of the consequences of such termination in the light of all the other relevant circumstances of the case. At the stage of imposing the fine, that authority is not in a position to determine whether the public entity will actually terminate the contract.

117. Secondly, the referring court considers it problematic, with regard to compliance with Article 49(3) of the Charter, that, in accordance with Paragraph 13(2) of the Law on the RPSP, that same authority removes the public sector partner from the RPSP when it has imposed a fine, which has become final, in particular for infringement of the prohibition laid down in Paragraph 19 of that law, and that fine has not been paid within the time limit set by the competent court.

118. In that regard, it should be emphasised that, when imposing the fine, the registration authority is not in a position to determine whether the public sector partner will refrain from paying the fine, with the result that the latter will be removed from the RPSP. Therefore, in view of Article 49(3) of the Charter, the Law on the RPSP cannot be required to impose an obligation on that authority to take such a possibility into account when setting the amount of the fine.

119. In view of all the foregoing considerations, the answer to the fourth question is that Article 49(3) of the Charter must be interpreted as precluding national legislation which automatically imposes on a company that has infringed that legislation a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without the competent authority being able to take into account, for the purposes of determining the amount of that fine, any circumstances relating to the breach of the obligation in question. By contrast, Article 49(3) of the Charter must be interpreted as not precluding national legislation which provides for the imposition of a fine within a range of minimum and maximum amounts, provided that the competent authority takes into account, in particular, the nature, seriousness, and circumstances and consequences of the breach of the obligation in question.