CJEU Case C-384/17 / Opinion

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Court of Justice of the European Union
Deciding body
Advocate General
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ECLI (European case law identifier)
  • CJEU Case C-384/17 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Approximation of laws — Road transport — Tax provisions — Directive 1999/62/EC — Charging of heavy goods vehicles for the use of certain infrastructures — Toll — Obligation of the Member States to establish effective, proportionate and dissuasive penalties — Flat-rate fine — Principle of proportionality — Direct applicability of the directive.

    Outcome of the case:

    n the light of the abovementioned considerations, I suggest that the Court answer the questions posed by the Szombathelyi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szombathely, Hungary) as follows:

    • Article 9a of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures, inasmuch as it requires that penalties are to be proportionate, is directly effective.
    • It is for each Member State to decide, in accordance with the principle of institutional and procedural autonomy, which national body shall be entrusted with the application of that requirement of proportionality. However, in the absence of any such decision, it is the duty of national courts to provide for the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective, including ensuring that penalties imposed in individual cases do not infringe the requirement of proportionality under Article 9a of Directive 1999/62.
  • Paragraphs referring to EU Charter

    38) Third, the principle of proportionality of sanctions is also guaranteed at the constitutional level by Article 49(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’). That provision requires that the severity of the penalties must not be disproportionate to the criminal offence. That includes that the sum of all the criminal penalties imposed must correspond with the seriousness of the offence concerned. ( 18 )

    39) Of course, Article 49(3) refers to criminal offences. Thus, its argumentative force with regard to, certainly at first sight, an administrative infraction, could be called into question. However, in line with the case-law of the European Court of Human Rights (‘ECtHR’), ( 19 ) the Court has retained a broad, substantive understanding of the notion of ‘criminal offence’. ( 20 ) This means that, depending on whether the criteria defined by the ECtHR and taken up by this Court are met, a formally administrative offence can also be classified as criminal and, thus, be subject to Article 49(3) of the Charter. Without in any way prejudging this aspect in the present case, I simply note that what is ‘criminal’ and what ‘administrative’ is far from clear-cut. Moreover, whatever it is in terms of classification, the reference made here remains simply on the level of principle


    41) Under Article 52(3) of the Charter, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR. Thus, at the end of the day, irrespective of the issue of applicability of Article 49(3) of the Charter, the requirements of the ECtHR outlined above regarding the proportionality of sanctions are applicable to a case such as the one in the main proceedings by the joint operation of Article 17(1), Article 52(1), Article 51(1), and Article 52(3) of the Charter.


    112) Second, in a way, EU law already pre-empts any such problem by maintaining that in a Union based on the rule of law, the default empowerment to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective will rest in particular with national courts. ( 60 ) After all, the defining element of the system of protection provided under EU law, whether under the second subparagraph of Article 19(1) TEU, or under the first paragraph of Article 47 of the Charter, is that it is a system of effective judicial protection. ( 61 ) EU law thus not only empowers national courts, but also imposes on them the ultimate obligation to ensure that at national level, (EU) law is observed. That is indeed the full extent of the mandate of an EU law judge.