CJEU Case C-218/15 / Judgment

Gianpaolo Paoletti and Others v. Procura della Repubblica
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Fifth Chamber)
Type
Decision
Decision date
06/10/2016
ECLI (European case law identifier)
ECLI:EU:C:2016:748
  • CJEU Case C-218/15 / Judgment

    Key facts of the case:

    Reference for a preliminary ruling — Article 6 TEU — Article 49 of the Charter of Fundamental Rights of the European Union — Principle of retroactivity of the more lenient criminal law — Italian nationals having organised the illegal entry into Italy of Romanian nationals — Acts carried out before the accession of Romania to the European Union — Effect of Romania’s accession on the criminal offence of facilitation of illegal immigration — Implementation of EU law — Jurisdiction of the Court

    Outcom of the case:

    On those grounds, the Court (Fifth Chamber) hereby rules:

    Article 6 TEU and Article 49 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the accession of a State to the European Union does not preclude another Member State imposing a criminal penalty on persons who committed, before the accession, the offence of facilitation of illegal immigration for nationals of the first State.

  • Paragraphs referring to EU Charter

    1) This request for a preliminary ruling concerns the interpretation of Article 6 TEU, Article 49 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).

    ...

    10) The referring court questions whether, first, having regard to Article 6 TEU, Article 49 of the Charter and Article 7 of the ECHR, Romania’s accession to the European Union had the effect of abolishing the offence of facilitating the illegal immigration of Romanian nationals committed by Italian nationals before that accession, and, second, whether the principle of the retroactive application of the more lenient criminal law is to apply to the accused in the main proceedings.

    11) In those circumstances, the Tribunale ordinario di Campobasso (District Court, Campobasso, Italy) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    ‘(1) Must Article 7 of the ECHR, Article 49 of the Charter and Article 6 TEU be interpreted as meaning that Romania’s accession to the European Union on 1 January 2007 had the effect of abolishing the criminal offence provided for in and punishable under Article 12 of Legislative Decree No 286/1998 relating to the facilitating of the immigration and stay by Romanian nationals in the territory of the Italian State?

    (2) Must those provisions be interpreted as precluding a Member State from applying the principle of benign retroactivity (in mitius) in respect of persons who, before 1 January 2007 (or other subsequent date on which the treaty took full effect), the date on which Romania’s accession to the European Union took effect, were guilty of breach of Article 12 of Legislative Decree No 286/1998 in that they facilitated the immigration of Romanian nationals, which ceased to be an offence as from 1 January 2007?’

    ...

    13) It is to be recalled in respect of those submissions that the Charter’s field of application so far as concerns action by the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing European Union law (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 17).

    14) It follows from the Court’s case-law that the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, assumes a degree of connection between an EU legal measure and the national measure in question, above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other (see, to that effect, judgment of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 24).

    15) These considerations correspond to those underlying Article 6(1) TEU, according to which the provisions of the Charter are not to extend in any way the competences of the European Union as defined in the Treaties (judgment of 8 May 2014, Pelckmans Turnhout, C‑483/12, EU:C:2014:304, paragraph 21).

    ...

    21) As provided for in Article 6(3) TEU, fundamental rights recognised by the ECHR constitute general principles of EU law. Article 52(3) of the Charter provides, moreover, that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR. The latter does not, nonetheless, constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44, and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 45).

    22 Therefore, reference should be made solely to Article 6 TEU and to Article 49 of the Charter (see, to that effect, judgments of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 47, and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 46).

    ...

    23) By its questions, which should be answered together, the referring court asks, in essence, whether Article 6 TEU and Article 49 of the Charter must be interpreted as meaning that the accession of a State to the European Union does not preclude another Member State imposing a criminal penalty on persons who committed, before the accession, the offence of facilitation of illegal immigration for nationals of the first State.

    ...

    25) In that regard, it should be noted that that principle, as enshrined in Article 49(1) of the Charter, is part of primary EU law. Even before the entry into force of the Treaty of Lisbon, which conferred on the Charter the same legal value as the treaties, the Court held that that principle followed from the constitutional traditions common to the Member States and, therefore, had to be regarded as forming part of the general principles of EU law, which national courts must respect when applying national law (see, to that effect, judgment of 29 May 1997, Kremzow, C‑299/95, EU:C:1997:254, paragraph 14).

    26) The mere fact that the acts in the main proceedings took place during 2004 and 2005, that is to say before the entry into force of the Treaty of Lisbon on 1 December 2009, therefore does not preclude the application, in the present case, of Article 49(1) of the Charter.

    ...

    42) Therefore, having regard to all of the foregoing considerations, the answer to the questions referred is that Article 6 TEU and Article 49 of the Charter must be interpreted as meaning that the accession of a State to the European Union does not preclude another Member State imposing a criminal penalty on persons who committed, before the accession, the offence of facilitation of illegal immigration for nationals of the first State.

    ...

    43) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

    On those grounds, the Court (Fifth Chamber) hereby rules:

    Article 6 TEU and Article 49 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the accession of a State to the European Union does not preclude another Member State imposing a criminal penalty on persons who committed, before the accession, the offence of facilitation of illegal immigration for nationals of the first State.