Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 15 May 2012 (1)

Case C-79/11

Procura della Repubblica

v

Maurizio Giovanardi

Andrea Lastini

Filippo Ricci

Vito Piglionica

Massimiliano Pempori

Gezim Lakja

Elettrifer Srl

Rete Ferroviaria Italiana SpA

(Reference for a preliminary ruling from the Tribunale di Firenze, (Italy))

(Police and judicial cooperation in criminal matters - Criminal liability of legal persons - Entitlement of victims of crime to compensation)

1. By this reference for a preliminary ruling, the Court is asked to construe the provisions of Framework Decision 2001/220 on the standing of victims in criminal proceedings (2) and, in particular, Article 9 of that decision.

2. The point at issue is whether and, if so, to what extent the victim of a criminal act may recover compensation in respect of damage arising out of that act not only against the natural person or persons who perpetrated the act but also against a legal person deemed, under the national legal system of the Member State in question, to be responsible for its commission.

Legal framework

European Union (EU) legislation

3. At its special meeting held in Tampere on 15 and 16 October 1999 on the creation of an area of freedom, security and justice in the European Union, the European Council resolved, inter alia, to draw up minimum standards on the protection of the victims of crime. Those standards were to include the rights to compensation of victims for damages arising out of a criminal act. (3)

4. The Framework Decision was adopted in order to implement that resolution. (4)

5. Recitals 4, 5 and 7 in the preamble to the Framework Decision state:

'(4) Member States should approximate their laws and regulations to the extent necessary to attain the objective of affording victims of crime a high level of protection, irrespective of the Member State in which they are present.

(5) Victims' needs should be considered and addressed in a comprehensive, coordinated manner, avoiding partial or inconsistent solutions which may give rise to secondary victimisation.

...

(7) Measures to assist victims of crime and, in particular, the provisions regarding compensation and mediation do not concern arrangements under civil procedure.'

6. Article 1 contains the following definitions:

'(a) "victim" shall mean a natural person who has suffered harm ... directly caused by acts or omissions that are in violation of the criminal law of a Member State;

...

c) "criminal proceedings" shall be understood in accordance with the national law applicable'.

There is no definition of the term 'offender'.

7. Article 9(1) of the Framework Decision (entitled 'Right to compensation in the course of criminal proceedings') states:

'Each Member State shall ensure that victims of criminal acts are entitled to obtain a decision within reasonable time-limits on compensation by the offender in the course of criminal proceedings, except where, in certain cases, national law provides for compensation to be awarded in another manner.'

National legislation

8. Article 185 of the Italian Codice Penale (Criminal Code) provides that persons who have committed an offence shall be liable to compensate the victim for any harm done to him as a result of their actions. Those actions may also give rise to a liability to compensate by the person or persons (natural or legal) who are responsible for the offender's conduct.

9. Article 74 of the Codice di procedura penale (Code of Criminal Procedure) gives the victim of such an offence the right to join proceedings against the accused in a criminal trial as a civil party. If successful in those proceedings, the victim will recover compensation from the accused in the same way as if, but (in most cases) at an earlier stage than if, he had raised a separate action against the accused in the civil courts in respect of the same harm.

10. Until the enactment of Decreto legislativo (Legislative Decree) No 231/2001 ('the Legislative Decree'), Italian law adopted the maxim societas delinquere non potest. (5) While legal persons might be indirectly liable for the wrongful acts of those for whom they were responsible in a civil action, they could not, as such, be prosecuted for the commission of an offence under Italian law.

11. Article 1 of that decree provides for legal persons to incur liability, formally categorised as an 'administrative' liability, in respect of an unlawful act. That provision extends to incorporated companies and firms having a legal personality and to associations, including those not possessing legal personality. It does not apply, however, to the State or to territorial collectivities, public bodies not exercising any economic functions or to bodies having a constitutional function. (6)

12. Chapter I of the Legislative Decree is divided into three sections. The first of these comprises a general section laying down the criteria which must be satisfied in order for a legal person to incur liability under the decree. The third section specifies (by reference to the provisions of the Criminal Code) the particular offences in respect of which a legal person may be found liable.

13. As regards the applicable criteria, Article 5 of the Legislative Decree specifies the natural persons who, as perpetrators of a criminal act, may give rise to liability on the legal person's part. Essentially, these are (a) those acting in an executive or managerial capacity and (b) persons under the control of those acting in such a capacity. Articles 6 and 7 go on to specify the circumstances in which liability may be imputed to a legal person. Where the offence in question was committed by an individual acting in an executive or managerial capacity, there will be a presumption of liability on the legal person's part. The presumption can be overturned only if that legal person can establish that it had put in place, and effectively applied, an organisational and managerial system capable of ensuring that the offences in question should not be committed or that the system had been improperly overridden or abused by the individual concerned. As regards individuals who are not acting in an executive or managerial capacity, there will be no presumption of liability on the part of the legal person. Instead, it is necessary to establish that commission of the offence was made possible as a result of a failure to apply the necessary standards of direction or supervision.

14. By virtue of Article 25 septies of the Legislative Decree, the offences listed in the special section include manslaughter and assault causing severe injury.

15. Four other provisions of the Legislative Decree should be mentioned. Article 8 provides that the liability of a legal person in respect of an offence may be self-standing, that is to say, it may subsist even where the natural person who committed the offence in question cannot be identified or that person cannot be indicted. Article 34 states that the procedural rules applying to a legal person who is indicted pursuant to the provisions mentioned above are to be those laid down in the Legislative Decree and, where applicable, those laid down in the Code of Criminal Procedure and those of Legislative Decree No 271/1989. (7) Article 35 goes on to provide that the procedural rules governing a natural person accused of a criminal act are to apply to a legal person who is indicted pursuant to the provisions mentioned above, in so far as applicable. By virtue of Article 36, jurisdiction in respect of legal persons indicted belongs to the criminal court having jurisdiction in respect of the offences committed by natural persons.

16. Article 74 of the Code of Criminal Procedure provides that the victim of an offence (or his successors) may become a civil party to criminal proceedings against, inter alia, the person accused of having committed the offence with a view to recovering damages for any loss suffered as a result of the offence.

17. Article 83 of the Code of Criminal Procedure states:

'A person who is liable in civil law for the acts of an accused person may be cited in criminal proceedings by [the victim of such acts] ... The accused may be cited in respect of any liability he may have in civil law for the acts of his co-accused in the event of his being acquitted or a decision of no case to answer being adopted in relation to him.'

Facts, procedure and the question referred for a preliminary ruling

18. An accident took place on 2 October 2008 at a railway junction near Florence. That accident allegedly occurred as a result of faulty workmanship (amounting to criminal negligence in terms of Articles 41, 113 and 589(II) and (IV) of the Italian Criminal Code) on the part of Mr Giovanardi and four other individuals. (8) Those individuals are the subject of a request for indictment brought by the Pubblico Ministero (Public Prosecutor's Office) before the Ufficio del Giudice delle indagini preliminari (Office of the Magistrate in charge of Preliminary Investigations) at the Tribunale di Firenze (District Court, Florence) on 28 July 2010. The individuals concerned were employees of Rete Ferroviaria Italiana ('RFI'), the State-owned railway operating company. As a result of the accident, Mr Marrai was killed, Mr Bardelli had to have his leg amputated and Mr Tomberli was seriously injured. Each of the victims was also an employee of RFI.

19. The document requesting the indictment of the individuals in question also seeks the indictment of two legal persons in respect of the accident, namely, Elettri Fer s.r.l ('Elettri Fer') and RFI. That indictment is sought on the basis, inter alia, of Article 25 septies of the Legislative Decree.

20. In the proceedings before the referring court, Mr Bardelli and the representatives of Mr Marrai's next of kin ('the applicants in the main proceedings') have sought leave to intervene as civil parties pursuant to Article 74 et seq. of the Code of Criminal Procedure. They seek compensation in respect of all material and non-material damage suffered as a consequence of the accident and ask the referring court to grant leave for them to be joined to the proceedings not only against the individuals who are alleged to have committed the offences in question, but also against Elettri Fer and RFI.

21. The national court is required to rule on an objection brought against that application on the ground that Italian law does not permit the victims of crime and their representatives to claim directly against legal persons in the course of criminal proceedings.

22. The referring court notes that the issue raised by the objection is one which has been subject to much discussion but which it considers, as yet, to be unresolved. It observes that, under national law, an offence committed by a legal person falls to be categorised as indirect and subsidiary and thus cannot be considered to be causally decisive in the commission of the offences in question. After considering the arguments in favour of and against the objection it takes the view that, while the matter is not beyond doubt, the correct interpretation of the national law supports the arguments of the parties bringing the objection.

23. Against that background, the referring court has referred the following question to the Court of Justice for a preliminary ruling:

'Are the provisions of Italian law on the administrative liability of legal bodies/persons set out in [the Legislative Decree], as subsequently amended, compatible with the provisions of Community law on the protection, in criminal proceedings, of victims of crime in so far as those national provisions do not "expressly" provide that those legal bodies/persons may be held liable, in criminal proceedings, for the damage caused to the victims of crime?'

24. Written observations have been submitted by the representatives of Mr Marrai's next of kin, the German, Italian, Netherlands and Austrian Governments and the European Commission. At the hearing on 15 March 2012, oral submissions were made by the representatives of Mr Marrai's next of kin, the German and Italian Governments and the Commission.

Analysis

Preliminary observations

Jurisdiction of the Court

25. The Framework Decision was adopted on the basis of Articles 31 and 34(2)(b) EU. Those provisions formed part of Title VI of the EU Treaty, entitled 'Provisions on police and judicial cooperation in criminal matters'. Article 35(1) EU provided for the Court to have jurisdiction to give preliminary rulings on, inter alia, the interpretation of framework decisions established under that title, subject always to the conditions laid down in that article. Those conditions included a requirement under Article 35(2) EU that a Member State should first declare that it accepted the jurisdiction of the Court to give preliminary rulings for the purposes of the preceding paragraph. The Italian Republic did so by declaration which took effect on 1 May 1999. (9)

26. Since the Framework Decision was enacted, the Treaty of Lisbon has come into force. (10)

27. As the Court explained in X, (11) the effect of Articles 9 and 10(1) of Protocol No 36 on transitional provisions, annexed to the FEU Treaty is that the legal effects of the Framework Decision are preserved notwithstanding the entry into force of that Treaty and the powers of the Court as regards preliminary rulings remain the same. (12)

28. That being so, the Court has jurisdiction to give a preliminary ruling.

Directive 2004/80

29. Although the referring court does not specifically raise the issue in the question referred, it indicates in the order for reference that it seeks guidance not only as to the interpretation of the Framework Decision, but also as to the applicability of Directive 2004/80 (13) to the circumstances described above.

30. As Article 1 of that directive makes clear, it applies only in cases where a 'violent intentional crime' has been committed and which involve a cross-border element. There is no suggestion in the present case that, to the extent that any criminal offences were committed, they were committed intentionally. Nor is there a cross-border element. That being so, the directive can have no application in the circumstances (14) and I shall not consider it further.

The question referred for a preliminary ruling

31. By its question, the referring court seeks guidance as to the compatibility of certain provisions of national law with Article 9(1) of the Framework Decision. It is clear that national law permits a victim of an offence committed by a natural person to recover compensation from that person by submitting a claim to that end as a civil party in criminal proceedings. (15) Where the offence was committed by a legal person, however, the referring court takes the view that such a claim is incompetent and the victim must bring his claim in civil proceedings brought specially for that purpose. (16) The referring court observes that, in order for such civil proceedings to be brought, the victim has a choice. He may either wait for the conviction, if any, of the persons who committed the offence in question to acquire the force of res judicata, a period that may (at least if there is an appeal against conviction or sentence) be measured in terms of years, before bringing an action before the civil courts, an action that would itself be likely to require the passage of further years. Alternatively, he may raise parallel civil proceedings immediately, but even if he were to do so, the time scales involved would be 'very lengthy' and there would be a significant increase in costs.

32. In so far as, by its question, the referring court asks this Court to give a ruling on the compatibility of a national measure with EU law, that is not a matter which the Court has jurisdiction to entertain. However, it can supply the referring court with a ruling on the interpretation of EU law so as to enable that court to determine whether such compatibility exists with a view to deciding the case before it. (17) As the Commission correctly observes, the question may be reformulated in order to give a useful answer to the referring court. In essence, the question is whether Article 9(1) of the Framework Decision allows a distinction to be drawn between natural and legal persons who have committed an offence as regards the right of a victim to obtain compensation for harm caused as a result of that offence in criminal proceedings against those persons.

33. In their observations, the German, Netherlands and Austrian Governments are unanimous in emphasising the degree of latitude which the Framework Decision affords to the Member States in implementing it. The Court has indeed acknowledged the large measure of discretion that exists in that regard. (18) That point may be particularly relevant where an outcome may be contrary to the constitutional rules of the Member State in question, whereas another form of resolution may not. (19) At the same time, however, one must not lose sight of the point that the Framework Decision was intended to impose obligations on Member States as regards the objectives it seeks to achieve. It follows that this is an area where the Court should tread carefully. But that does not mean that it should not tread at all.

34. Before addressing the question of the manner in which Article 9(1) falls to be interpreted, it is worth briefly considering what that provision does not do. It does not require the Member States to amend their substantive criminal law so as to introduce or extend the notion of corporate criminal liability. (20) It does not, in other words, oblige a Member State to create liability where there is none. Thus, a Member State whose legal system provides that only natural persons may be convicted of a criminal offence will not infringe the provisions of the Framework Decision if it makes no provision for liability also to attach to legal persons who might be thought to bear some related responsibility for that offence, and for compensation to be recoverable from such legal persons under Article 9(1). The victim who wishes to recover compensation in respect of an unlawful act for which the legal person in question is allegedly responsible in such a Member State will require to raise civil proceedings, with all the consequences that that entails under the national system.

35. That, however, is not the case here. From a combination of the order for reference, the written observations submitted to the Court and the oral submissions made at the hearing, my understanding is that, under Italian law:

- legal persons may be liable for the commission of an unlawful act by virtue of the provisions of the Legislative Decree;

- the unlawful act in respect of which legal persons may be indicted is classified as an administrative offence: that classification has been adopted in order to avoid possible problems that might arise under the Italian Constitution were an act committed by a legal person to be categorised specifically as 'criminal';

- the criteria laid down in the general section of the Legislative Decree, by which the unlawful act is defined, are laid down by express reference to the provisions of the Criminal Code; (21)

- an unlawful act committed by a legal person is not to be regarded as the same act as an equivalent act committed by a natural person; such liability will be classified as 'indirect and subsidiary'; in order for a legal person to incur liability it is necessary to establish that it should bear responsibility for the actions of its officers and/or employees;

- it follows from that that a legal person is not to be regarded as the direct 'perpetrator' of the offence committed by a natural person;

- liability on the part of a legal person none the less has, as its essential basis, the fact that an unlawful act was committed by a natural person; (22) in other words, without the commission of that (criminal) act, no liability could arise on the part of the legal person concerned;

- proceedings against a legal person are brought before the criminal courts, are subject to the provisions of the Code of Criminal Procedure and will be joined with the criminal proceedings against the natural person(s) alleged to have perpetrated the unlawful act in question. (23)

36. While Italian law will not permit a victim to obtain damages against a legal person in criminal proceedings by becoming a civil party in those proceedings pursuant to Article 74 of the Code of Criminal Procedure, it appears that the same result may be achievable in practice via another route. In a judgment delivered in October 2010, the Sixth Criminal Chamber of the Corte Suprema di Cassazione held:

'... under the procedure laid down by the Legislative Decree, the situation of the victim is guaranteed in any event, since not only can he take immediate steps to protect his interests by raising civil proceedings, he can also cite the legal person as regards his civil liability in terms of Article 83 of the Code of Criminal Procedure in the proceedings to establish the criminal liability of the perpetrator of an unlawful act committed in the interest or for the benefit of the legal person and can - in general - do so in the same proceedings as those brought in order to determine the liability of the legal person.' (24)

37. It is of course for the referring court to verify that the above represents an accurate statement of the position under national law.

38. Are the rules as I have described them above compatible with Article 9(1) of the Framework Decision?

39. Article 9(1) protects the victims of criminal acts by obliging the Member States to put in place arrangements for compensating those victims within a reasonable period through the medium of criminal proceedings. By having their claims determined in that manner, victims should, as the Commission points out, benefit from a procedure which is both quicker and less expensive than it would be if they had to establish their claims through the route of raising separate civil proceedings.

40. The provision is divided into two parts. By the first part, it lays down the general rule that Member States are under a duty to ensure that victims of criminal acts are entitled to obtain, within a reasonable period, a decision as to compensation by the offender in the course of criminal proceedings. The second part is an exception to that general rule. It applies where 'in certain cases' national law provides for compensation to be awarded in another manner.

41. I shall address the general rule laid down by the first part of Article 9(1) of the Framework Decision before turning to the exception set out in the second part.

The general rule

42. What are the essential conditions under which Article 9(1) requires Member States to ensure that a decision is taken within a reasonable time on compensation to a victim for harm suffered as a result of a criminal offence? First, there must have been a criminal act. Second, it must be possible under the legal system of the Member State in question to bring criminal proceedings against the accused in respect of such an act. Third, there must be criminal proceedings.

43. If we take a straightforward example, the application of those conditions is clear. Let us suppose that, in a particular Member State, reckless driving on the part of 'X' whilst in the course of his employment with 'Y' (a legal person) results in an accident which causes harm to one or more victims. That Member State accepts the principle of corporate liability in respect of criminal acts and prosecutes legal persons alleged to have committed such acts through the criminal courts in the ordinary way. Let us further assume that the concept of 'offender' in Article 9(1) is capable of applying to legal persons (I shall return to that point below (25)). As a result of that accident, both X (as the natural person directly involved in causing the accident) and Y (as the legal person indirectly responsible for its causation) are charged before the criminal courts. They are charged with closely-related offences. Here, it is clear that the Framework Decision requires a Member State whose legal system does not already provide for the victims to claim and (if appropriate) recover compensation through the criminal proceedings to amend its national law if it is to comply with Article 9(1).

44. However, the present case is not so straightforward.

45. Taking the conditions set out in point 42 above in turn, it seems to me, first, that the Framework Decision is not concerned so much with the technical classification of the 'offence' under national law as with its essential nature. The Framework Decision looks to substance rather than form. While noting the large measure of discretion given to the national authorities with regard to the specific means by which they choose to implement the objectives underlying the Framework Decision, the Court has also held that, in order not to deprive it of its practical effect, it is necessary to give it a purposive interpretation. (26)

46. Thus, it cannot be relevant, for the purposes of determining compliance with Article 9(1), that the national system categorises the offence in question as 'indirect and subsidiary'. Corporate liability for legal offences is, by its nature, unlikely to be either direct or primary. For the sake of completeness, I add that it is not necessary that natural and legal persons be charged in respect of the same act. Nor does Article 9(1) require that, in order for legal persons to be covered by its scope, one or more natural persons should first be charged in respect of the offence in question.

47. As regards the categorisation under Italian law of the wrong committed by a legal person as an 'administrative' one, (27) it seems to me that the same principle of interpretation should nevertheless apply. It is clear from recital 4 in the preamble to the Framework Decision that its purpose is to provide a 'high level of protection' to victims of crime. By virtue of Article 9(1), one of the means by which it seeks to achieve that objective is the making available of compensation to those victims via the medium of criminal proceedings brought in respect of the unlawful act that gave rise to the damage concerned. I readily accept that the adoption of the Framework Decision did not oblige the Member States to introduce the notion of corporate criminal liability into their national law if it was not previously part of their system. (28) However, it seems to me that a Member State which does accept that notion as part of its system cannot then be relieved of its duty to provide protection in accordance with Article 9(1) on what are essentially formal grounds.

48. Here, the legal system of the Member State in question provides for legal persons to incur liability in respect of unlawful acts, under arrangements which provide (1) that the criteria by which the unlawful act is defined are laid down by reference to the provisions of the Criminal Code, (2) that liability in respect of that act has as its essential basis the fact that an unlawful act was committed by a natural person and (3) that proceedings against a legal person are brought before the criminal courts, are subject to the provisions of the Code of Criminal Procedure and will, in normal circumstances, be joined with the proceedings against the natural person(s) alleged to have perpetrated the unlawful act in question. Article 9(1) should be given a purposive interpretation that has regard to substance over form. Accordingly, the fact that national law categorises the liability of legal persons in respect of such unlawful acts as 'administrative' does not, in my view, suffice to exclude the application of that article, and thus the duty to afford protection to a victim of those acts.

49. Second, the act in question must result in proceedings brought against an offender. While Article 1(a) of the Framework Decision defines the term 'victim', there is no corresponding definition of the expression 'offender'. (29) In those circumstances, it seems to me that that expression must be given its natural and ordinary meaning. It is a broad term, used in a context in which, had the legislature intended to express itself narrowly, it would have done so. I thus have little difficulty in concluding that 'offender' should be construed so as to include not only natural persons but also legal ones who are charged with the commission of unlawful acts.

50. Third, there must be criminal proceedings. That requirement is obvious; without it, Article 9(1) would have no meaning. Article 1(c) of the Framework Decision provides that that concept is to be understood by reference to the applicable national law. There is, in other words, no harmonised European notion of what the term 'criminal proceedings' is intended to cover. Since, in the present case, there appears to be no doubt that the proceedings in question are criminal proceedings - a point confirmed by the Italian Government at the hearing - (30) I do not propose to explore this element further.

51. If those conditions are satisfied, the Member State in question will require to ensure that its national law contains provisions which enable a victim of an unlawful act to be able to participate in the criminal proceedings in a way that enables him, in the course of those proceedings, to maintain a claim for appropriate compensation against the accused. That includes legal persons.

52. In point 36 above, I referred to a judgment of the Corte Suprema di Cassazione to which the Italian Government drew the Court's attention in its observations and which was the subject of lengthy discussion at the hearing. According to that judgment, victims of unlawful acts involving legal persons indeed cannot make use of Article 74 of the Code of Criminal Procedure in order to become a civil party in proceedings against legal persons. However, they will, in fact, be protected, since (1) they can bring civil proceedings in order to pursue their claim against those persons and (2) they may rely on Article 83 of that Code in order to bring their claim before the criminal courts through another route. The first of these - that is to say, the possibility of bringing civil proceedings - is of no relevance to the present discussion. Indeed, the referring court has indicated that the periods involved in going down that route are likely to be prolonged. (31) If that is so, the protection which the Framework Decision seeks to provide will not be achieved. In contrast, the possibility of founding on Article 83 of the Code appears to me potentially to be relevant. If that is indeed a possible avenue for victims of those unlawful acts, the fact that Italian law may preclude them from becoming a civil party in those proceedings will have no bearing on the question whether national legislation satisfies the requirements of Article 9(1) of the Framework Decision.

53. The parties expressed differing views on the applicability of that judgment to the main proceedings. Whether or not that is the case will be a matter for the referring court to decide.

54. In the light of all the above considerations, I am of the view that the general rule laid down by the first part of Article 9(1) of the Framework Decision should be interpreted as meaning that, where a Member State provides under its national legal system for proceedings to be brought against legal persons in respect of an unlawful act, the fact that that system may classify liability in respect of such an act as 'indirect and subsidiary' and/or 'administrative' will not release that Member State from its duty to apply the provisions of that article as regards legal persons where (1) the criteria by which the unlawful act is defined are laid down by reference to the provisions of the Criminal Code, (2) liability in respect of that act has as its essential basis the fact that an unlawful act was committed by a natural person and (3) proceedings against a legal person are brought before the criminal courts, are subject to the provisions of the Code of Criminal Procedure and will, in normal circumstances, be joined with the proceedings against the natural person(s) alleged to have perpetrated the unlawful act in question.

The exception

55. The general rule in Article 9(1) does not apply 'where, in certain cases, national law provides for compensation to be awarded in another manner'.

56. The German and Netherlands Governments argue that the exception will apply to the case in the main proceedings. Where it is open to victims to pursue their claims against the legal persons alleged to have committed the offences through the civil courts, a Member State is not under any duty to ensure that the claims can be brought through the medium of criminal proceedings against those persons.

57. I do not agree.

58. As a derogation from the general rule laid down by the first part of Article 9(1), the exception must be construed narrowly. (32) To interpret the exception so as to exclude from the general rule all cases involving a specific category of offender, that is to say, legal persons, would risk turning the exception into the rule. Such a result cannot have been intended by the legislature. The exception is expressed to apply 'in certain cases'. In that regard, I would refer to the travaux préparatoires to the Framework Decision, which record a discussion that took place at a meeting of the relevant working party of the Council at which the text of the draft Framework Decision was under consideration. (33) The minutes of that meeting note that the Swedish, Austrian and German delegations had proposed that the words in question (34) be deleted. The minutes go on to record that the (French) Presidency had stressed that 'without [that] phrase, paragraph 1 would be meaningless'.

59. That does not mean that there can never be circumstances in which the exception can apply. In that regard, I agree with the Commission that there must be objective circumstances which justify such a result. These would include cases where the general rule cannot be applied for practical reasons, for example, where the harm arising as a result of the offence cannot be established, or cannot be established with sufficient precision to enable a claim to be formulated until after the criminal proceedings against the offender have come to an end. The exclusion of legal persons, as a category, from the scope of Article 9(1) cannot, however, be objectively justified.

60. I therefore conclude that the exception to the general rule laid down by the second part of Article 9(1) cannot be interpreted so as to exclude from the general rule laid down by the first part of that article all cases involving a specific category of offender, such as legal persons.

Concluding remarks

Application of the above principles

61. In the case in the main proceedings, it will be the duty of the referring court to undertake the following steps. First, it must determine whether a criminal act within the meaning of Article 9(1) of the Framework Decision has been committed by the legal persons concerned. In reaching that determination, it should have regard not only to the national rules concerning the nature of an unlawful act, but also to the principles set out in point 48 above. Second, it must verify whether those persons fall to be categorised as offenders for the purposes of that provision. It should take into account the observations made in point 49 above in reaching a view on that issue. Third, it should assess whether proceedings in question are criminal proceedings in terms of that article. In so doing, it should have regard to the considerations referred to in point 50 above. Lastly, it must establish whether there are exceptional circumstances justifying the application of the exception set out in the second part of Article 9(1). If, having done so, it establishes that the general rule applies and that the exception does not, it must go on to assess whether national law does, in fact, satisfy that general rule.

62. In that regard, I would offer the following general observations.

63. The Court has already held that the principle that national law must be interpreted in conformity with EU law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the referring court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with the provisions of the Treaty. (35)

64. At the same time, however, the Court has repeatedly held that the obligation on the referring court to interpret national law in conformity with EU law is limited by general principles of law, particularly those of legal certainty and non-retroactivity. In other words, the principle cannot serve as the basis for an interpretation of national law contra legem. The principle does, however, require that, where necessary, the referring court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the Framework Decision. (36)

65. Lastly, the referring court observes that to interpret national law in the manner proposed by the applicants in the main proceedings would risk contravening the rule under national law that precludes the application by way of analogy of provisions of the Criminal Code in malam partem.

66. It is not only national law that prohibits application of the provisions of criminal law in that way. As long ago as 1963, the European Commission on Human Rights decided that to do so would contravene Article 7(1) of the European Convention on Human Rights, by virtue of which no one is to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. (37) A similar approach has been adopted by the European Court of Human Rights in its case-law. (38)

67. Article 7(1) of the Convention is worded in identical terms to those of the relevant part of Article 49(1) of the European Charter of Fundamental Rights. Following the entry into force of the Treaty of Lisbon, with effect from 1 December 2009 the Charter has the force of primary law. (39) By virtue of Article 52(3) of the Charter, rights laid down under it which correspond to rights guaranteed by the Convention are to have the same meaning and scope as those laid down by the Convention.

68. An application by way of analogy of the provisions of national criminal law in malam partem may or may not contravene national law (as to which I express no opinion). There remains, however, the question of the application of that principle in the context of Article 9(1) of the Framework Decision.

69. Article 9(1) does not require a Member State to change the substantive aspects of national criminal law in any way. (40) Nor does that provision affect the level of compensation payable to a victim in respect of loss or damage arising from the commission of an unlawful act - nothing in the Framework Decision provides that the amount in question should be calculated differently as between criminal proceedings and civil proceedings. In seeking to protect the interests of victims of criminal acts, what the decision does is to bring forward the time at which the compensation in question will be payable. That is a procedural issue; it does not affect the criminal liability of the obligant in any way. That being so, I can see no basis on which the in malam partem principle could apply to the interpretation of the Article 9(1) of the Framework Decision which I propose in this Opinion.

Conclusion

70. I am therefore of the opinion that the Court should answer the question referred by the Tribunale di Firenze as follows:

'The general rule laid down by the first part of Article 9(1) of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings should be interpreted as meaning that, where a Member State provides under its national legal system for proceedings to be brought against legal persons in respect of an unlawful act, the fact that that system may classify liability in respect of such an act as 'indirect and subsidiary' and/or 'administrative' will not release that Member State from its duty to apply the provisions of that article as regards legal persons where (1) the criteria by which the unlawful act is defined are laid down by reference to the provisions of the Criminal Code, (2) liability in respect of that act has as its essential basis the fact that an unlawful act was committed by a natural person and (3) proceedings against a legal person are brought before the criminal courts, are subject to the provisions of the Code of Criminal Procedure and will, in normal circumstances, be joined with the proceedings against the natural person(s) alleged to have perpetrated the unlawful act in question.

The exception to that general rule laid down by the second part of Article 9(1) must be construed narrowly. It cannot be interpreted so as to exclude from the general rule laid down by the first part of that article all cases involving a specific category of offender, such as legal persons.'

1 - Original language: English.

2 - Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ 2001 L 82, p. 1) ('the Framework Decision').

3 - See point 32 of the conclusions of the European Council meeting in Tampere on 15 and 16 October 1999.

4 - See Recital 3 in the preamble to the Framework Decision.

5 - Or, as the order for reference went on to put it, 'no soul to damn, no body to kick'.

6 - It was confirmed at the hearing that neither of the legal persons mentioned in point 19 below is covered by that exemption.

7 - Legislative Decree of 28 July 1989 on implementing, coordinating and transitional provisions concerning the Code of Criminal Procedure.

8 - That is the position as recorded in the order for reference. The national file suggests that there may, in fact, be a total of six individuals who are charged with the offences in question and that is reflected in the listing of the parties on the cover page of this Opinion.

9 - See, in that regard, the information concerning the date of entry into force of the Treaty of Amsterdam set out in OJ 1999 L 114, p. 56.

10 - On 1 December 2009.

11 - Case C-507/10 [2011] ECR I-0000. See paragraphs 18 to 22.

12 - By virtue of Article 10(3) of the Protocol, the transitional provision which Article 10(1) represents shall cease, in the absence of any amendment to the measure of which it forms part, to have effect five years after the date of entry into force of the Treaty of Lisbon, that is to say, on 30 November 2014.

13 - Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15).

14 - See, in that regard, Case C-467/05 Dell'Orto [2007] ECR I-5557, paragraph 57.

15 - By virtue of Article 74 of the Code of Criminal Procedure.

16 - See further point 36 below.

17 - See to that effect, inter alia, Case C-60/05 WWF Italia and Others [2006] ECR I-5083, paragraph 18.

18 - See Case C-205/09 Eredics and Sápi [2010] ECR I-0000, paragraph 38.

19 - See, as regards the position in Italy, point 35 below.

20 - See, to that effect, the Opinion of Advocate General Kokott in Joined Cases C-483/09 and C-1/10 Gueye and Sánchez [2011] ECR I-0000, point 39.

21 - See point 12 above.

22 - See the judgment of the Corte Suprema di Cassazione (Supreme Court of Cassation) of 5 October 2010 Cass. pen. n. 2251/11, section 11.2.2, where that court termed the commission of the criminal offence by natural persons an 'essential condition' ('presupposto fondamentale') for liability to arise on the part of the legal persons responsible for their conduct.

23 - Joinder will (self-evidently) not occur where the provisions of Article 8 of the Legislative Decree apply and proceedings are brought against the legal person alone.

24 - See section 11.2.5 of the judgment referred to in footnote 22 above.

25 - See point 49.

26 - See, to that effect, Gueye and Sánchez, cited in footnote 20 above, paragraphs 57 and 58. While that case relates to the interpretation of Article 3 of the Framework Decision, Articles 3 and 9 both find their expression in the context of a decision which was enacted with a view to ensuring that victims' needs should be considered and addressed in a comprehensive manner. In my view, there is no reason to construe Article 9 differently from Article 3 in that regard.

27 - See point 11 above.

28 - See point 34 above.

29 - There was discussion at the hearing of the judgment of the Court in Dell'Orto, cited in footnote 14 above, and Advocate General Kokott's Opinion in that case. Whilst Dell'Orto confirms that, on both a literal and a teleological reading, a 'victim' can only be a natural person, that case provides no guidance as to the correct interpretation of 'offender'.

30 - By virtue of Article 36 of the Legislative Decree. See point 15 above.

31 - See point 31 above.

32 - See, to that effect, the Opinion of Advocate General Kokott in Dell'Orto, cited in footnote 14 above, points 81 and 82.

33 - See report of the Working Party on Cooperation in Criminal Matters of 11 July 2000, reference 10387/00 COPEN 54.

34 - At the relevant time, the wording in question was 'in certain specific cases'. I do not consider that anything hangs on the deletion of the word 'specific'.

35 - See Case C-105/03 Pupino [2005] ECR I-5285, paragraph 43.

36 - See, to that effect, Pupino, cited in footnote 35 above, paragraphs 44 and 47. See also, in a different context, Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraphs 118 and 119.

37 - See X v. Austria, Application No 1852/63, Yearbook 8, pp. 190, 198. See also X v United Kingdom, Application No 6683/74, 3 D.R. 95.

38 - See Kokkinakis v Greece, Application No 14307/88, 260-A, paragraph 51.

39 - See Article 6(1) TEU.

40 - See point 34 above,

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