Article 49 - Principles of legality and proportionality of criminal offences and penalties
Key facts of the case:
Request for a preliminary ruling from the Korkein oikeus.
Reference for a preliminary ruling – Citizenship of the Union – Right of Union citizens to move freely within the territories of the Member States – Article 21 TFEU – Directive 2004/38/EC – Articles 4 and 5 – Obligation to carry an identity card or a passport – Regulation (EC) No 562/2006 (Schengen Borders Code) – Annex VI – Crossing the maritime border of a Member State on board a pleasure boat – Rules on sanctions applicable when moving between Member States without an identity card or passport – Rules on daily fines in criminal cases – Calculation of the fine based on the offender’s average monthly income – Proportionality – Severity of the sanction in relation to the offence.
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
58) Consequently, and notwithstanding the developments that have taken place since the judgment of 21 September 1999, Wijsenbeek (C‑378/97, EU:C:1999:439), EU law still preserves, as it stands, the autonomy of the Member States with regard to the penalties that may be imposed on a Union citizen who fails to comply with a formality connected with the exercise of the right to free movement. As the Court observed in paragraph 45 of that judgment, the Member States may, in such a case, provide for criminal penalties, provided that those penalties comply, in particular, with the principle of proportionality. That principle is now enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’), according to which the severity of penalties must not be disproportionate to the offence.
74) Since every Union citizen holds an identity card or passport and must carry that document when travelling to a Member State other than that of which he or she is a national, the obligation imposed by national legislation to carry that document when returning to the Member State of origin is neither onerous nor inconvenient and cannot therefore be regarded as having the effect of discouraging the exercise of the right to free movement, it being further specified that that obligation does not condition the right of entry into the territory of the Member State of origin, provided, however, that the penalties provided for in the event of failure to comply with that obligation are compatible with the principle of proportionality, enshrined in Article 49(3) of the Charter, and with the other general principles of EU law, including the principle of non-discrimination, all of which are applicable in the context of the assessment of national legislation in the light of Article 21(1) TFEU (see, in the latter regard, judgment of 8 June 2017, Freitag, C‑541/15, EU:C:2017:432, paragraphs 31 and 42 and the case-law cited).
83) Therefore, the third question referred for a preliminary ruling must therefore be considered as asking whether Article 21(1) TFEU and Articles 4 and 36 of Directive 2004/38, read in the light of Article 49(3) of the Charter, preclude rules on criminal sanctions by which a Member State makes the crossing of its national border without a valid identity card or passport punishable by a fine which, by way of indication, may amount to 20% of the offender’s net monthly income.
84) Pursuant to the rule laid down in Article 49(3) of the Charter, the severity of sanctions must be commensurate with the seriousness of the infringements they address, in particular by ensuring that they have a genuinely dissuasive effect, while at the same time not exceeding the limits of what is necessary to achieve the objectives legitimately pursued by the legislation in question (see, to that effect, judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel), C‑77/20, EU:C:2021:112, paragraphs 37 and 38 and the case-law cited).
92) In the light of the foregoing, the answer to the third question must be that Article 21(1) TFEU and Articles 4 and 36 of Directive 2004/38, read in the light of Article 49(3) of the Charter, must be interpreted as precluding rules on criminal sanctions by which a Member State makes the crossing of its national border without a valid identity card or passport punishable by a fine which may, by way of illustration, amount to 20% of the offender’s net monthly income, where such a fine is not proportionate to the seriousness of the offence, which is of a minor nature.