Request for a preliminary ruling from the Oberlandesgericht Innsbruck.
Company law — Freedom of establishment — Eleventh Directive 89/666/EEC — Disclosure of accounting documents — Branch of a capital company established in another Member State — Pecuniary penalty in the event of failure to disclose within the prescribed period — Right to effective judicial protection — Principle of respect for the rights of the defence — Effective, proportionate and dissuasive nature of the penalty.
Outcome of the case:
On those grounds, the Court (Fourth Chamber) hereby rules:
Subject to the verifications to be carried out by the referring court, Articles 49 TFEU and 54 TFEU, the principles of effective judicial protection and respect for the rights of the defence, and Article 12 of Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State are to be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which provides that, where the statutory nine-month period for disclosing accounting documents is exceeded, a minimum periodic penalty of EUR 700 is to be imposed immediately on the capital company whose branch is located in the Member State concerned, without prior notice and without the company first being given an opportunity to state its views on the alleged breach of the disclosure obligation.
1) This request for a preliminary ruling concerns the interpretation of Article 6(1) and (3) TEU, Articles 49 TFEU and 54 TFEU, Articles 47 and 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), Article 6 of First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty (OJ, English Special Edition 1968 (I), p. 41; ‘the First Directive’), Article 60a of Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11), as amended by Directive 2009/49/EC of the European Parliament and of the Council of 18 June 2009 (OJ 2009 L 164, p. 42; ‘the Fourth Directive’), and Article 38(6) of Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts (OJ 1983 L 193, p. 1; ‘the Seventh Directive’).
25) In those circumstances, the Oberlandesgericht Innsbruck decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Does [EU] law, as it stands at present, and in particular:
[(a)] freedom of establishment, as laid down in Articles 49 TFEU and 54 TFEU;
[(b)] the general legal principle (Article 6(3) TEU) of effective judicial protection (principle of effectiveness);
[(c)] the principle of the right to a fair hearing laid down in [the second paragraph of] Article 47 of the [Charter] (Article 6(1) TEU) and in Article 6(2) of the [ECHR] (Article 6(1) TEU);
[(d)] the principle of non bis in idem laid down in Article 50 of the [Charter]; or
[(e)] the rules governing penalties in the disclosure procedure under Article 6 of [the First Directive], Article 60a of [the Fourth Directive] and Article 38(6) of [the Seventh Directive];
preclude national rules under which, in cases where the statutory nine-month period allowed for compiling and disclosing annual accounts to the relevant court maintaining the commercial register is exceeded, that court is required, first, to impose immediately a minimum periodic penalty of EUR 700 on the company and on each of the bodies authorised to represent it, on the ground that, in the absence of proof to the contrary, they are liable for that failure to effect timely disclosure and, secondly, to impose immediately a new minimum periodic penalty of EUR 700 on the company and on each of the bodies authorised to represent it, in respect of further failure for every two-month period thereafter, on the basis of the same presumption of liability, and in both cases
70) By points (b) and (c) of its question, the referring court asks, in essence, whether the general principle of the right to effective judicial protection and the principle of respect for the rights of the defence, as entrenched in Article 47 of the Charter and in Article 6(2) of the ECHR, are to be interpreted as precluding a system of penalties, which apply in the event of failure to comply with the obligation to disclose accounting documents, such as the system provided for under Paragraph 283 of the UGB, as amended by the BBG.
71) Under Article 51(1) of the Charter, the Charter’s provisions are addressed to the Member States only when they are implementing EU law.
72) In that regard, the Court’s settled case-law states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. It is consonant with those limits that the Court has already stated that it has no jurisdiction to appraise, in the light of the Charter, national legislation which falls outside the framework of EU law. On the other hand, if national legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (see, inter alia, Case C‑617/10 Åkerberg Fransson  ECR, paragraph 19 and the case-law cited).
73) The Court has also had occasion to explain that, construed in the light of that case-law and of the explanations relating to Article 51 of the Charter, the fundamental rights guaranteed by the Charter must be respected where national legislation falls within the scope of EU law. In other words, the applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter (see, to that effect, Åkerberg Fransson, paragraphs 20 and 21).
75) It follows that the Austrian legislation at issue in the main proceedings constitutes a case of the ‘implementing of Union law’, for the purposes of Article 51(1) of the Charter.
76) The provisions of the Charter are therefore applicable to the facts of the dispute before the referring court.
77) As regards the principle of effective judicial protection, the first paragraph of Article 47 of the Charter states that everyone whose rights and freedoms guaranteed by EU law are infringed has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that provision.