UY - Staatsanwaltschaft Offenburg

On 14 May 2020, the Fifth Chamber of the CJEU delivered its Judgement in Case C-615/18. On this occasion, the Court took the opportunity to further develop its recent case-law regarding the interpretation of article 6 of the Directive 2012/13/UE of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (Directive 2012/13).

The request for preliminary ruling was lodged by a German court, which expressed doubts about the compatibility of German law with the Directive. The German Code of Criminal Procedure allows to order that the accused person in case he/she is not residing in the country, “authorises a person residing within the jurisdiction of the competent court to accept service”. In the referred case, at the request of the Public Prosecutor’s Office, UY granted authority to accept service on his behalf to an officer of a local court after being accused of failure to stop after a road accident. The form granting authority to accept service was in German but had been translated via phone by a relative of the accused person. The form did not include any other details regarding the legal and factual consequences of that authority to accept service, in particular regarding any duty on the part of the accused person to make enquiries. UY has been imposed a fine and a three-month driving ban by the local court. The penalty order was served, with a translation in Polish, on the authorised person who sent the order to the known address of the accused person in Poland by ordinary post. As no appeal had been lodged, the penalty order acquired the force of res judicata, the driving ban came therefore into effect. Later, UY was the subject of a roadside check by the police while driving a lorry on a public road. Consequently, criminal proceedings were brought against him for negligently driving a vehicle without a driving licence. The referring court, assuming that the accused person was not aware of the penalty order, expressed concerns as to whether the national legislation applicable to the accused is compatible with Article 6 of Directive 2012/13 and Articles 21, 45, 49 and 56 TFEU. In essence, the Court has been asked whether those provisions must be interpreted as meaning that they preclude the rules of a Member State by virtue of which a person residing in another Member State is liable to a criminal penalty if it fails to comply, from the date on which it acquires res judicata, with an order imposing driving ban. Provided that, on the one hand, the time limit for two weeks to file an opposition against this order begins to run from the service of the latter not on the person concerned, but on his/her authorized agent. On the other hand, the accused person was unaware of the existence of such an order at the date he/she disregarded the resulting driving ban.

First, the Court recalls that Article 6 lays down specific rules relating to the right of any suspect or accused person to be informed of the offence that they are suspected or accused of having committed, quickly and in sufficient detail to guarantee the fair character of the proceeding and to allow the effective exercise of the rights of defense. Recalling its Covaci ruling, the Court adds that even if the service of such an order takes place only after the judge has ruled on the merits of the charge, the fact that the accused person is empowered to form opposition against it, before the same judge, confirms that this judge rules only provisionally and that the service of that order represents the first opportunity for the accused person to be informed of the accusation against him. Therefore, such situation falls within the scope of article 6 of Directive 2012/13. Moreover, referring to its judgments in cases Covaci and Tranca e.a., the Court observes that both the objective of enabling the accused person to prepare his defence and the need to avoid any kind of discrimination between accused persons with a residence within the jurisdiction of the national law concerned and accused persons who have to appoint an authorized agent to accept service of judicial decisions, require the whole of that period to be available to the accused person. In other words, the whole period of 15 days to file opposition should be available to the accused person from the moment the order is served to him. The Court then notes that German Criminal Law provides that if a person was prevented from observing a time limit through no fault of his own, he shall be granted restoration of the status quo ante upon application. Therefore, it seeks whether this provision complies with the requirements of article 6 of the Directive 2012/13. The referring court noted that this restoration is permitted only if the accused person proves that he sought information to the authorized person regarding a possible order served as well as that such restoration does not have a suspensive effect. Against that background, the Court concludes that such requirements do not comply with the provisions of article 6 of the Directive 2012/13.

Second, the Court addresses the question whether article 6 of the Directive 2012/13 allows for a person to be convicted for having infringed a driving ban on a date when the order was invested with res judicata, at a time when this person did not know the existence of such an order. The Court points out that the effectiveness of article 6 of Directive 2012/13 would be seriously undermined if a person was to be convicted on the ground that he had infringed a ban imposed by a criminal order, such as that at issue in the main proceedings, which was not communicated in compliance with the requirements of this article. It is therefore for national courts to give national law an interpretation which preserves the effectiveness of article 6 of the Directive 2012/13 and, otherwise, to leave any national provision which would be contrary to it unapplied.

Consequently, the Court rules that article 6 of the Directive 2012/13 does not preclude national legislation according to which a penalty order issued against a person not resident in that Member State acquires the force of res judicata after service on an authorized agent, even where the accused person has not been made aware of the order, provided that the accused person: (1) is properly served with the order once he/she becomes aware of it, and has his/her position fully restored to the status quo ante, and (2) may not be held criminally liable for not complying with the measures imposed in the order, based on the fact that he or she did not make attempts to learn about the outcome of the prior proceedings from the authorized agent.

Furthermore, it precludes the law of a Member State which permits a person residing in another Member State to be convicted for non-respecting, as from the date when it acquired the authority of res judicata, an order having condemned him to a driving ban, even though this person was unaware of the existence of such an order on the date when he disregarded the ban.