Article 49 - Principles of legality and proportionality of criminal offences and penalties
Key facts of the case:
Dom Zdravlja Otočac (hereinafter: the applicant institution) submitted on 3 November 2017 the proposal to start the procedure for the assessment of compliance with the Constitution of Article 55 of the Pharmacy Law (ZoLJ:121/03-117/08), which imposes monetary fines and imprisonment for unauthorised pharmacy activities. In the proposal, the applicant institution points out that the disputed provisions of Article 55 of the ZoLJ:121/03-117/08 are against the principle of legality; that is, the requirement for the specificity of the legal regulation is not met because it contains a vague and general description of the criminal offence and criminal sanctions, allowing for an extensive interpretation. Furthermore, the applicant institution in the proposal refers to the positions of the Constitutional Court on the requirement for the definiteness and precision of legal norms as one of the fundamental principles of the rule of law. The applicant institution considers the contested article is inconsistent with Articles 3, 5, paragraph 1 and 31 paragraph 1 of the Constitution and proposes the annulment of the contested article. The Ministry of Health of the Republic of Croatia provided its opinion regarding Article 55 of the Pharmacy Law at the request of the Constitutional Court. The Ministry stated that Article 55 applies to violations of the Pharmacy Law that are not covered by other penal provisions (Articles 51–54), such as conditions for the establishment, organisation, and management of pharmaceutical activities. It argued that the penalties stipulated in Article 55 are legally justified because violations of pharmaceutical regulations could directly endanger public health.
Key legal question raised by the Court:
Whether the possibility of performing pharmacy activities falls within reach of European Union law and whether the contested Article is in line with the principle of legality of criminal offences and punishments as one of the general principles of law.
Outcome of the case:
The Constitutional Court holds that under Article 37, paragraph 1 of the Health Care Act, pharmaceutical activity is part of healthcare activity. Article 2 of the Health Care Act transposes Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, which prohibits restricting the freedom to provide services in another Member State (Article 5). In this regard, the principle of legality of criminal offences and penalties as one of the general principles of law will be considered by the Constitutional Court in the light of Article 49 of the Charter of Fundamental Rights of the European Union ("Official Journal" C 326, 26 October 2012; Croatian translation: OJ C 202, 7 June 2016). Namely, EU law only allows for punishment whose legal basis is unambiguous, and therefore, the laws of the Member States must meet specific standards. This requirement that penalties be based on a clear and unequivocal legal basis was expressed by the Court of Justice of the European Union (CJEU) in its judgment of 25 September 1984, [Vv], Könecke, C-117/83, EU:C:1984:288, para. 11. In addition, the legality of criminal offences and criminal sanctions, contained in Article 31, paragraph 1 of the Constitution, is one of the basic principles of criminal law in the Republic of Croatia. Within its independence and constitutionally established jurisdiction, the legislator enacted the ZoLJ:121/03, which prescribes criminal sanctions for violations of the provisions of the ZoLJ:121/03 on the performance of pharmaceutical activities. However, the Constitutional Court notes that the legislator did not specify and precisely state in the disputed article which behaviours are criminally prohibited and punishable.
In other words, if the position of the Ministry of Health were accepted, that the disputed article applies to the provisions on the performance of pharmaceutical activities that the Ministry of Health enumerates, and which provisions are not covered by the criminal provisions of Articles 51, 52, 53, and 54 of the ZoLJ:121/03,117/08, the principle of legality in the sense of the certainty of legal descriptions of criminal offences would not be respected. Namely, the final proposal of the law did not explicitly state which violations of the ZoLJ:121/03-117/08 provisions would be sanctioned by a fine or imprisonment prescribed by the disputed article. In the case of the disputed legal norm, it is that it is itself indefinite, unclear, and unpredictable for its addressees. Therefore, the Constitutional Court assesses that the disputed article does not comply with the principles of legality and legal security (requirements for the certainty and precision of the legal norm) as one of the fundamental principles of the rule of law from Article 3 of the Constitution. In other words, it violates the guarantee of the rule of law from Article 3 of the Constitution. Consequently, the Constitutional Court establishes that the disputed article of the ZoLJ:121/03-117/08 is not under Articles 3, 5, and 31, paragraph 1 of the Constitution. Due to all the above, a procedure for assessing the compliance of the law with the Constitution is initiated, and Article 55 of the Pharmacy Law (Official Gazette121/03, 142/06, 35/08, and 117/08) is annulled.
11. Next, it is necessary to examine whether the possibility of performing pharmaceutical activities falls within the scope of European Union law. Under Article 37, paragraph 1 of the Health Care Act ("Official Gazette" Nos. 100/18, 125/19, 133/20, 147/20, 136/21, 119/22, 156/22, 33/23, 145/23, and 36/24), pharmaceutical activity is part of healthcare activity. Article 2 of the Health Care Act transposes Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, which prohibits restricting the freedom to provide services in another Member State (Article 5). In this regard, the principle of legality of criminal offences and penalties as one of the general principles of law will be considered by the Constitutional Court in the light of Article 49 of the Charter of Fundamental Rights of the European Union ("Official Journal" C 326, 26 October 2012; Croatian translation: OJ C 202, 7 June 2016). Namely, EU law only allows for punishment whose legal basis is unambiguous, and therefore, the laws of the Member States must meet specific standards. This requirement that penalties be based on a clear and unequivocal legal basis was expressed by the Court of Justice of the European Union (CJEU) in its judgment of 25 September 1984, [Vv], Könecke, C-117/83, EU:C:1984:288, para. 11. The CJEU on the principle of legality of criminal offences and penalties (nullum crimen, nulla poena sine lege) in its judgment of 3 May 2007, [Vv], Advocaten voor de Wereld, C-303/05, EU:C:2007:261, paras. 43 and 44 expressed the view that it implies that the law must clearly define the criminal offences and penalties with which they are punished. This requirement is considered fulfilled when an individual can know, based on the text of the relevant provision and the interpretation of the courts, for which actions or omissions they may be held criminally liable. Thus, the principle that penalties must have a proper legal basis establishes the lex certa requirement for all provisions prescribing penalties.
11. U nastavku je potrebno ispitati potpada li mogućnost obavljanja ljekarničke djelatnosti u doseg prava Europske unije. U smislu članka 37. stavka 1. Zakona o zdravstvenoj zaštiti ("Narodne novine" broj 100/18., 125/19., 133/20., 147/20., 136/21., 119/22., 156/22., 33/23., 145/23. i 36/24.) ljekarnička djelatnost dio je zdravstvene djelatnosti. Člankom 2. Zakona o zdravstvenoj zaštiti preuzeta je Direktiva 2005/36/EZ Europskog parlamenta i Vijeća od 7. rujna 2005. o priznavanju stručnih kvalikacija koja sadrži zabranu ograničavanja slobode pružanja usluga u drugoj državi članici (članak 5.). S tim u vezi, načelo zakonitosti kaznenih djela i kazni kao jedno od općih načela prava Ustavni sud sagledavat će i u svijetlu članka 49. Povelje Europske unije o temeljnim pravima ("Službeni list" C 326, 26. listopada 2012.; hrvatski prijevod: SL C 202, 7. lipnja 2016.). Naime, pravo EU-a dozvoljava samo ono kažnjavanje čije pravno uporište je jasno i nedvosmisleno, pa stoga zakoni država članica moraju zadovoljiti određene standarde. Taj zahtjev da se kazne temelje na jasnoj i nedvosmislenoj pravnoj osnovi Sud Europske unije (u daljnjem tekstu: Sud EU-a) izrazio je u presudi od 25. rujna 1984., [Vv], Könecke, C-117/83, EU:C:1984:288 , t. 11. Sud EU-a o načelu zakonitosti kaznenih djela i kazni (nullum crimen, nulla poena sine lege) u presudi od 3. svibnja 2007., [Vv], Advocaten voor de Wereld, C-303/05, EU:C:2007:261, t. 43. i 44., izrazio je stajalište kako ono podrazumijeva da zakon mora jasno utvrditi kaznena djela i kazne kojima ih se kažnjava. Ovaj se uvjet smatra ispunjenim kad pojedinac može znati, na temelju teksta odgovarajuće odredbe i uz tumačenje sudova, zbog kojih radnji ili propusta može kazneno odgovarati. Time se načelo da kazne moraju imati ispravnu pravnu osnovu uspostavlja lex certa zahtjev za sve odredbe kojima se propisuju kazne.