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

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 16 January 2020(1)

Case C‑615/18

UY

Joined parties:

Staatsanwaltschaft Offenburg

(Request for a preliminary ruling from the Amtsgericht Kehl (Local Court, Kehl, Germany))

(Reference for a preliminary ruling — Judicial cooperation in criminal matters — Directive 2012/13/EU —Right to information in criminal proceedings — Right to be informed of a charge — Suspension of driving licence — Mandatory appointment of a person authorised to accept service — Negligence of the defendant)

I.      Introduction

1.        In July 2017, a driver with permanent residence in Poland was involved in a road accident in Germany. At the request of the Public Prosecutor’s Office, he appointed a person authorised to accept service of judicial documents on his behalf in Germany: a person chosen from among the judicial staff of the competent local court. A penalty order was subsequently issued against the driver for failure to stop after the road accident, imposing a fine and a three-month driving ban. The penalty order was served on the authorised person, who forwarded it by letter to the driver in Poland. It is not known whether the driver actually received that letter. No appeal was lodged against the penalty order. It became final.

2.        Following another roadside check in Germany a few months later, the driver was intercepted driving a lorry while the previously imposed driving ban was still in effect. Consequently, criminal proceedings were brought against him for driving a vehicle without a driving licence.

3.        This set of facts raises two legal issues in the context of the present proceedings. The first concerns the service in the first set of criminal proceedings: does Article 6 of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, (2) which enshrines the right to information about the accusation, preclude national legislation according to which a penalty order issued against a person who is not resident in the Member State in question acquires the force of res judicata two weeks after service on the authorised person, where the defendant has not been made aware of the order? The second issue concerns the impact that the (failure of) service in the first set of criminal proceedings has on the second: does Article 6 of Directive 2012/13 preclude national legislation providing that, where a person residing abroad has been the subject of a penalty order of which he or she has not been made aware, the prior failure of that person to make attempts to learn about the outcome of the proceedings from the authorised person may be regarded as constituting negligence on his or her part, potentially exposing him or her to further criminal proceedings?

II.    Legal framework

A.      EU law

4.        Recitals 27 and 28 of Directive 2012/13 read:

‘(27)      Persons accused of having committed a criminal offence should be given all the information on the accusation necessary to enable them to prepare their defence and to safeguard the fairness of the proceedings.

(28)      The information provided to suspects or accused persons about the criminal act they are suspected or accused of having committed should be given promptly, and at the latest before their first official interview by the police or another competent authority, and without prejudicing the course of ongoing investigations. …’

5.        Article 2(1) of Directive 2012/13, concerning the scope thereof, states:

‘This Directive applies from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal.’

6.        Under the terms of Article 3(1)(c) of Directive 2012/13 on the right to information about rights:

‘1.      Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:

…

(c)      the right to be informed of the accusation, in accordance with Article 6;

…’

7.        Article 6(1) of Directive 2012/13, concerning the right to information about the accusation, provides:

‘Member States shall ensure that suspects or accused persons are provided with information about the criminal act they are suspected or accused of having committed. That information shall be provided promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence.’

B.      National law

8.        Paragraph 44 of the Strafgesetzbuch (German Criminal Code, ‘the StGB’) provides:

‘(1) If a person has been sentenced to imprisonment or a fine for an offence which he committed in connection with the driving of a motor vehicle or in violation of the duties of a driver of a motor vehicle, then the court may prohibit him from driving any type of motor vehicle, or any specific type, on public roads for a period of from one month to three months. A driving ban shall typically be imposed in cases of a conviction under Paragraph 315c(1), No 1(a), (3), or Paragraph 316 if there has been no withdrawal of permission to drive pursuant to Paragraph 69.

(2) A driving ban shall take effect when the judgment becomes final. …’

9.        Paragraph 44 of the Strafprozessordnung (German Code of Criminal Procedure, ‘the StPO’) provides:

‘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. Failure to observe the time limit for filing an appellate remedy shall not be considered a fault if instructions pursuant to Paragraph 35a, first and second sentences, Paragraph 319, subparagraph (2), third sentence, or Paragraph 346, subparagraph (2), third sentence, have not been given.’

10.      Paragraph 45 of the StPO states:

‘(1) The application for restoration of the status quo ante shall be filed with the court where the time limit should have been observed within one week after the reason for non-compliance no longer applies. To observe the time limit, it shall be sufficient for the application to be filed in time with the court which is to decide on the application.

(2) The facts justifying the application shall be substantiated at the time the application is filed, or during the proceedings concerning the application. The omitted act shall subsequently be undertaken within the time limit for filing the application. Where this is done, restoration may also be granted without an application being filed.’

11.      Paragraph 132(1) of the StPO reads:

‘(1) If an accused person who is strongly suspected of having committed a criminal offence has no fixed domicile or residence within the territorial jurisdiction of this law but the requirements for issuing an arrest warrant are not satisfied, it may be ordered, in order to ensure that the course of justice is not impeded, that the accused person

1.      provides appropriate security for the anticipated fine and the costs of the proceedings, and

2.      authorises a person residing within the jurisdiction of the competent court to accept service.

…’

12.      In turn, Paragraph 407 of the StPO provides:

‘(1) In proceedings before the criminal court judge and in proceedings within the jurisdiction of a court with lay judges, the legal consequences of the offence may, in the case of misdemeanours, be imposed, upon written application by the public prosecution office, in a written penal order without a main hearing. The public prosecution office shall file such application if it does not consider a main hearing to be necessary given the outcome of the investigations. The application shall refer to specific legal consequences. The application shall constitute preferment of the public charges.

(2) A penal order may impose only the following legal consequences of the offence, either on their own or in combination:

1.      fine, warning with sentence reserved, driving ban, forfeiture, confiscation, destruction, making something unusable, announcement of the decision, and imposition of a regulatory fine against a legal person or an association,

2.      withdrawal of permission to drive, where the bar does not exceed two years,

…

(3) The court shall not be required to give the indicted accused a prior hearing (Paragraph 33, subparagraph (3)).’

13.      Under the terms of Paragraph 410 of the StPO:

‘(1)      The accused person may lodge an objection to a penalty order at the court which made the penalty order within two weeks of service, in writing or by making a statement recorded by the registry. …

(2)      The objection may be limited to certain points of complaint.

(3)      Where no objection has been lodged against a penalty order in due time, that order shall be equivalent to a judgment having the force of res judicata.’

III. Facts, procedure and the questions referred

14.      On 21 August 2017, the Amtsgericht Garmisch-Partenkirchen (Local Court, Garmisch-Partenkirchen, Germany) issued a penalty order against the accused person, a professional driver with permanent residence in Poland, for failure to stop after a road accident. The sanctions imposed were a fine and a three-month driving ban.

15.      On the day he committed that offence, 11 July 2017, at the request of the Public Prosecutor’s Office, the accused person granted authority to accept service on his behalf to an officer of the Amtsgericht Garmisch-Partenkirchen (Local Court, Garmisch-Partenkirchen). The form granting authority to accept service was in German, but a relative of the accused person translated it for him over the telephone. The form included the name and the official address of the officer appointed as authorised person, and a note that the statutory periods started to run from the day of service on the authorised 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.

16.      On 30 August 2017, the penalty order was served, with a translation in Polish, on the authorised person. That person sent the penalty order to the known address of the accused person in Poland by ordinary post. According to the referring court, it is not known whether the accused person received the penalty order.

17.      On 14 September 2017, as no appeal had been lodged, the penalty order acquired the force of res judicata. Thus, the driving ban came into effect.

18.      On 14 December 2017, while the driving ban was still in effect, the accused was the subject of a roadside check by the police while driving a lorry on a public road in Kehl, Germany.

19.      In the main proceedings, the Amtsgericht Kehl (Local Court, Kehl, Germany), the referring court, has to rule on a recommendation made by the Staatsanwaltschaft Offenburg (Public Prosecutor’s Office, Offenburg, Germany) to issue a further penalty order against the accused person for the offence of negligently driving a vehicle without a driving licence and to impose on him a fine of 40 daily penalties of EUR 50 each, as well as an additional three-month driving ban.

20.      The referring court assumes that, until the police check on 14 December 2017, the accused person was not aware of the penalty order and, therefore, of the driving ban. In the light of that, harbouring doubts as to whether the national legislation applicable to the accused is compatible with EU law, that court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is EU law, in particular Directive 2012/13 and Articles 21, 45, 49 and 56 TFEU, to be interpreted as meaning that it precludes legislation of a Member State which makes it possible, in the course of criminal proceedings, solely because the accused is not resident in that State but in another Member State, to make an order that the accused has to appoint a person authorised to accept service of a penalty order made against him, with the result that the penalty order would acquire the force of res judicata and thus form the legal prerequisite for the criminal liability of any later action taken by the accused (“Tatbestandswirkung”) even if the accused was not actually aware of the penalty order and the accused actually learning of the penalty order is not guaranteed to the same extent as it would have been if the penalty order been served on the accused had he been resident in that Member State?

(2)      In the event that the first question is answered in the negative: is EU law, in particular Directive 2012/13 and Articles 21, 45, 49 and 56 TFEU, to be interpreted as meaning that it precludes legislation of a Member State which makes it possible, in the course of criminal proceedings, solely because the accused is not resident in that State but in another Member State, to make an order that the accused has to appoint a person authorised to accept service of a penalty order made against him, with the result that the penalty order would acquire the force of res judicata and thus form the legal prerequisite for the criminal liability of any later action taken by the accused (“Tatbestandswirkung”) and, given that he has to make sure that he actually learns of the penalty order, the accused is subject to more stringent subjective obligations in the prosecution of that criminal offence than he would have been had he been resident in that Member State, resulting in a possible prosecution for negligence on the part of the accused?’

21.      Written observations have been submitted by the German Government and the European Commission. Those parties also presented oral argument at the hearing on 16 October 2019.

IV.    Analysis

22.      This Opinion is structured as follows. I shall first examine two preliminary issues of applicable law (A). I will then address the questions posed by the referring court (B) and close with several final remarks on the broader legislative landscape beyond the confines of the present case (C).

A.      Preliminary remarks

1.      Directive 2012/13 and/or the Treaty provisions?

23.      In its questions, the referring court invokes, on the one hand, Directive 2012/13 and, on the other hand, Articles 21, 45, 49 and 56 TFEU. As far as Directive 2012/13 is concerned, the potential issues of compatibility are clearly identified in the request for a preliminary ruling, including the relevant case-law (3) and a discussion of its (non‑)applicability to the present case. By contrast, the Treaty provisions on free movement are cited only in the questions. There is no explanation or discussion in the order for reference of how and why they are relevant to the present case.

24.      The cross-border situation at issue in the main proceedings could give rise to questions of potential indirect discrimination against the accused person, in the light of the different regimes for the service of judicial documents on persons residing in Germany and on persons residing abroad. Similarly, it could be envisaged that the commencement of criminal proceedings against a foreign driver for driving in breach of a driving ban of which he was not made aware could amount to an obstacle to his freedom of movement. (4)

25.      However, no issues of that nature are identified or raised in the request for a preliminary ruling. (5) Instead, the case has been framed by the referring court and discussed by the interested parties in the present proceedings only as a continuation of the recent case-law of the Court in Covaci and Tranca, (6) and thus as concerning Directive 2012/13.

26.      In contrast to a situation in which a referring court identifies factual and legal problems but fails to subsume them under the appropriate provision of EU law, which it is within the competence of this Court to remedy by applying a provision of EU law not identified by the referring court, (7) the reverse is, in my view, not possible. It is not the role of this Court to conjure up facts and possible issues not identified by the referring court.

27.      I shall therefore approach the present case as concerning only the compatibility of the national legislation at issue with the provisions of Directive 2012/13 and, consequently, as a continuation of the recent case-law of the Court in Covaci and Tranca. I shall nonetheless come back to broader issues raised by the present case in the closing section of this Opinion (C).

2.      Article 6 of Directive 2012/13 and the specific features of this case 

28.      What differentiates the present case from the cases that gave rise to the judgments in Covaci and Tranca is the existence of two interconnected but formally distinct sets of (criminal) proceedings. In Covaci and Tranca, the penalty orders in question were issued in the context of the same criminal proceedings during which the breach of Article 6 of Directive 2012/13 was alleged to have occurred.

29.      By contrast, in the present case, there are two sets of criminal proceedings: one before the Amtsgericht Garmisch-Partenkirchen (Local Court, Garmisch-Partenkirchen), which concerned the failure to stop after a road accident, and the other before the referring court, the Amtsgericht Kehl (Local Court, Kehl), which concerns the accused person driving a vehicle in breach of the driving ban imposed on him at the end of the first set of proceedings.

30.      Those circumstances give rise to two types of issues.

31.      First, the provisions of Directive 2012/13 clearly apply to the second set of criminal proceedings: those that are currently pending before the referring court. However, there could perhaps be some doubt with regard to the former proceedings, which are no longer pending. Indeed, those proceedings were, at least in principle, formally closed when the penalty order, not having been opposed within two weeks, acquired the force of res judicata.

32.      That is connected with the second issue. Article 6(1) of Directive 2012/13 sets out the right to be provided promptly with information about the accusation in order to safeguard the fairness of proceedings and the effective exercise of the rights of the defence. Precisely what does ‘information about the accusation’ mean with regard to the ongoing (second) set of proceedings? There is no apparent problem with information about the accusation within that second set of criminal proceedings, since it has not been suggested that the accused person does not know what he is now being accused of and, consequently, that he cannot exercise his rights of the defence. The real problem lies, in fact, in the (quality of the) service of the penalty order within the first set of criminal proceedings. But there might be some intellectual difficulty in qualifying that issue as a lack of information about the accusation in the currently pending (second) set of criminal proceedings.

33.      There is no disguising that it is something of a stretch to treat the potential absence of effective service of a previous criminal conviction as relevant to the information about the accusation in another subsequent and connected set of criminal proceedings, and thereby falling within the scope of Article 6 of Directive 2012/13. That article was perhaps conceived as applying to various types of communication, but clearly within one and the same criminal proceedings. However, it might nonetheless be possible to approach the issue in that way, taking into account the following points.

34.      First, pursuant to Article 2, Directive 2012/13 applies ‘from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal’. (8)

35.      The broadly conceived Article 2 cannot be read as excluding from the scope of the directive those situations in which a potentially final decision has been taken, but the procedure is subsequently reopened under national law. (9) Article 2 cannot, in and of itself, be read as imposing any duty to reopen a procedure. But, if the possibility of reopening the procedure is provided for under national law, once triggered, that situation also re-enters the scope of Directive 2012/13.

36.      Moreover, in the light of the objectives pursued by the directive (10) and the very wording of Article 2, the term ‘resolution of any appeal’ (11) must be interpreted broadly. That term could thus encompass appeal procedures that might be qualified in a national legal system as extraordinary or special. I would also add that a ‘final determination’ is, strictly speaking, not final when it is called into question in a subsequent procedure.

37.      Second, as already stated by the Court in Covaci, (12) the procedure leading up to the penalty order is a specific, simplified procedure. As is also apparent from Paragraph 407 of the StPO, (13) for all practical purposes, it is likely that the moment when a suspect is fully informed about the accusation is in fact the moment when he receives the penalty order, which, if unopposed, will immediately become a final conviction.

38.      Therefore, where national law provides for the possibility of restarting the criminal engine, as appears to be the case in the main proceedings, Directive 2012/13 becomes applicable again as soon as the procedure is reignited. That must be the case, a fortiori, in the specific scenario of a simplified criminal procedure, in which different procedural steps might eventually merge into one, with what is, in effect, an unopposed formal accusation becoming a final judgment.

B.      The right (of non-residents) to be informed about the accusation

39.      According to recital 14 and Article 1, Directive 2012/13 lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them. As specified in recital 40, Directive 2012/13 introduces minimum standards, thus leaving Member States free to provide suspects and accused persons with a higher level of protection. By contrast, Member States are obviously not at liberty to derogate from those minimum standards, (14) which must correspond, at the very least, to those guaranteed by the European Convention on Human Rights, as interpreted by the European Court of Human Rights. (15)

40.      Directive 2012/13 is a result-oriented instrument: it introduces a number of rights that must be guaranteed to suspects or accused persons. However, Member States are given broad discretion as to the manner in which effect is given to those rights in their respective legal systems. It is thus for the Member States, in accordance with the principle of procedural autonomy, to adopt detailed rules to that end, while respecting the requirements of equivalence and effectiveness.

1.      Covaci and Tranca

41.      Those general considerations are also valid with regard to the specific provisions of Article 6 of Directive 2012/13, already examined by the Court in Covaci and in Tranca, following four requests for a preliminary ruling made by various German courts of first instance. In those judgments, the Court noted that Directive 2012/13 does not regulate the procedures whereby information about the accusation must be provided to the suspect or accused person. (16) It is thus left to the Member State to regulate the matter provided, however, that two conditions are fulfilled. First, those procedures cannot deprive Article 6 of its effectiveness, thereby undermining the objectives pursued by Directive 2012/13. (17) Second, those procedures must not discriminate against suspects or accused persons residing abroad. (18)

42.      In application of those principles, first, the Court accepted that a Member State may, as a matter of principle, regulate differently the service of judicial documents on persons residing within its territory and the service of those documents on persons residing abroad. For that reason, the Court did not object to legislation of a Member State, such as that at issue, that made it mandatory in criminal proceedings for an accused person not residing in that Member State to appoint an authorised person for the service of judicial decisions. (19) The Court also accepted that, in those situations, the period to oppose the judicial decision may start to run from the moment when the decision is served on the authorised person, and not from the moment when the accused person actually becomes aware of it. (20)

43.      Second, the Court added that such a difference of treatment should not undermine the effective exercise of the rights of the defence of the suspect or accused person, nor place him in a situation in which, de facto, he cannot benefit from the whole period for lodging an objection against the judicial decision in question. (21) With regard to the national legislation at issue, the Court noted that, although that legislation provided that the period for lodging an objection to the penalty order begins to run from service of the order on the authorised person, it also allows that person to apply to have his position restored to the status quo ante when he becomes aware of that order. That mechanism allows the accused person to benefit from the entire two-week period for lodging an objection to the order. Accordingly, the Court held that it was for the referring courts to interpret national law, in particular the procedure for a person’s position being restored to the status quo ante and the conditions to which the exercise of that procedure is subject, in accordance with the requirements laid down in Article 6 of Directive 2012/13. (22)

2.      Consistent interpretation and the outcome in the present case

44.      The issue raised in the present proceedings boils down to whether the principles outlined above are also applicable in the case at hand. In other words, the question is whether, in a situation such as that in the main proceedings, the national legislation at issue, if interpreted in conformity with Directive 2012/13, guarantees adequate protection of the right to be informed of a charge to persons not residing in the Member State where the investigation and prosecution take place.

45.      The German Government argues that, just like in Covaci and Tranca, the national legislation at issue should be held compatible with EU law because it can be interpreted in a way that ensures compliance with Article 6 of Directive 2012/13. That government points out that a penalty order that acquires the force of res judicata (upon the expiry of the opposition period, having been served on the authorised person) becomes enforceable, but not necessarily final. Indeed, a person who has been prevented, through no fault of his own, from meeting a procedural deadline may, at his request or ex officio, have his position restored to the status quo ante. That principle is also applicable to a situation such as the one at issue in the main proceedings.

46.      The German Government acknowledges that the time limit for the accused person to request restoration to the status quo ante is, in principle, only one week. Nevertheless, that government adds that it is generally accepted that such a time limit may be interpreted in a flexible manner, meaning that it may be extended to match the (longer) time limit which could not be complied with. In addition, that government emphasises that, often, such a request from the party is unnecessary, as a court that becomes aware of an impediment that caused the accused person to miss a deadline would typically restore the status quo ante of its own motion.

47.      Moreover, a person who finds himself in a situation such as that of the accused person in the main proceedings cannot, according to the German Government, be criminally charged on the basis of a driving ban of which he was not aware. That government points out that, as a matter of principle, a person may be considered ‘negligent’ where, through his conduct, he breached the duty of care. That is the case only when the facts for which the person is reproached were foreseeable and avoidable for him or her. However, in a case such as the one at issue in the main proceedings, the nature and scope of the duty of care should be assessed in the light of Directive 2012/13. Accordingly, in so far as the driver was under no obligation to seek information about the pending procedure from the authorised person, there could be no negligence and, consequently, no breach of the duty of care on his part.

48.      Finally, the German Government states that, in accordance with Paragraph 47(2) of the StPO in conjunction with Paragraph 456c(2) of the StPO, a person such as the driver in the main proceedings can submit an application for suspension of the driving ban as soon as he becomes aware of it, if that ban is equivalent for him, as a professional driver, to a prohibition on the exercise of his profession.

49.      Thus, as far as the concrete answers to the two questions posed by the referring court are concerned, the German Government essentially argues that, according to national law: (i) all procedural rights of the driver will be fully restored once he is served with the penalty order arising from the first set of proceedings, and (ii) any criminal liability of the driver for breaching a driving ban of which he was unaware is excluded, meaning that he cannot be prosecuted in the second set of criminal proceedings.

50.      A number of statements made by the referring court cast doubt on such a reading of the national law. The referring court cites several provisions of national law governing the service of judicial decisions, which, when applied to a situation such as that in the main proceedings, turn out to be problematic in practice, and potentially incompatible with EU law.

51.      As the referring court explains, there are very precise and rigorous rules concerning the service of judicial decisions on persons residing in Germany. (23) Given the strict requirements of that legislation, the fulfilment of which must be assessed by the court ex officio, it is virtually certain that, in the event of even the slightest doubt, the service will be regarded as invalid. That is even more the case for a penalty order, which, if unopposed, will equate to a final criminal conviction.

52.      By contrast, as the referring court equally notes, the rules on the service of judicial decisions on persons residing outside Germany via an authorised person are relatively loose and may give rise to considerable uncertainty. The accused person is not able to influence whether, when, where to and in what way a document is actually forwarded. The authorised person is not obliged to forward a penalty order in a way that allows for verification of whether that order actually reaches the addressee (for example, by way of a registered letter). In those circumstances, there is a much higher probability that an accused person will learn of a court decision only long after it has acquired the force of res judicata, or not at all.

53.      In its written and oral submissions, the German Government offers a strikingly different reading of the national legislation at issue. In particular, the concerns expressed by the referring court regarding the compatibility of that legislation with the provisions of Directive 2012/13 can, in its view, be dispelled through consistent interpretation.

54.      It is not the role of this Court to arbitrate between diverging views on the proper construction of national law. However, even if the referring court and the German Government are in open disagreement as to the correct interpretation of a number of provisions of national law, I note that, as far as the proper outcome of the specific case at issue is concerned, they essentially agree: the rights that the driver derives from Article 6 of Directive 2012/13 are to be protected. That entails, first, that the procedural rights of the driver in the first set of criminal proceedings must be fully restored, after the penalty order has been properly served on him. Second, the driver cannot be held criminally responsible in the second set of proceedings for driving in breach of the driving ban previously issued. Indeed, he cannot be considered negligent for the fact that he has made no attempt to contact the authorised person in order to inform himself of the ongoing criminal proceedings.

55.      Thus, since there is in effect an agreement on the outcome of the case, which would also be largely compatible with the direction recently taken by this Court in Covaci and Tranca, it is possible for the present case to stop there. Therefore, with the exception of some clarifying caveats, I do not see the present case as a good opportunity for adapting, developing, or nuancing the basic tenets of the Covaci and Tranca line of case-law. (24) However, that should certainly not be taken to mean that the national legislation at issue might not give rise to issues of compatibility with EU law in other circumstances, as will be explained below in the closing section (C).

3.      The caveats

56.      The answer provided by this Court in Covaci and Tranca already included a number of ‘yes, buts’. (25) The constellation of the present case further increases the number of those ‘buts’, and indeed pushes the entire construction established in those cases to its outer limits.

57.      Article 6 of Directive 2012/13 cannot be deprived of its effectiveness. Furthermore, the manner in which effect is given to that article must not create any discrimination against suspects and accused persons residing in other EU Member States. The right to be informed of the accusation is possibly among the most basic rights that a person should enjoy when suspected or accused of having committed a crime. (26) It is clear that a person is unable to exercise adequately his right of defence if he is not informed of the accusation against him. In that sense, the right to information about the accusation is, in terms of both time and logic, the very first right that a person subject to a criminal investigation or trial ought to be guaranteed.

58.      It is therefore crucial that a suspect or accused person whose right to be informed of the accusation has been breached is restored to his or her previous position. How that is achieved in systemic terms is of little relevance to EU law, (27) so long as it is prompt and effective.

59.      Restoration of the status quo ante must imply, first, that the penalty order is served on the accused person (again) so that, procedurally, he is in the same position that he would have been in had the first service been made correctly. In the case at hand, the driver must enjoy a two-week period to challenge the penalty order before that order takes effect.

60.      Second, unless and until it is properly served, the penalty order is unenforceable, and any prejudicial effect stemming from lack of compliance with it must be lifted. That must necessarily encompass the possibility for the person accused to obtain immediate suspension of the measures imposed in the penalty order, should the procedure for restoration lack suspensive effect. (28) That is of particular significance in the case at hand: the person prosecuted is a professional driver and any further unjustified suspension of his driving licence, before restoration of the status quo ante is granted, may cause him significant harm.

61.      Lifting the effects of the penalty order also implies that the accused person cannot be prosecuted for (wilful or negligent) non-compliance with the measures imposed therein. As far as the present case is concerned, the driver cannot be considered responsible for negligently driving without a licence. The fact that he did not seek information from the authorised person regarding the pending proceedings is immaterial. It is clear from Article 6 of Directive 2012/13 that the obligation of informing a suspect or accused person of the accusation lies with the Member States’ authorities. No provision of that directive may be read as placing, directly or indirectly, part of that burden on the shoulders of the suspect or accused person himself.

62.      Moreover, having ascertained that there was no duty whatsoever for the driver to enquire about the outcome of the first set of proceedings, criminal liability in that second set of proceedings is excluded due to the lack of any subjective element of the alleged crime of driving without a driving licence. There was no fault on the part of the driver (either intentional or negligent). It is, after all, a matter of common sense that if the driver was not informed of a driving ban imposed on him, he cannot subsequently be prosecuted for breaching that ban.

63.      To be clear, the accused person cannot be held criminally liable in the second set of proceedings, regardless of whether or not, once restored to his previous position, he decides to oppose the penalty order issued in the first set of proceedings. Indeed, as the referring court rightly points out, a different conclusion would lead to a paradoxical result: even if the accused person were to accept the allegations made against him in the first criminal procedure and the legal consequences deriving from the penalty order, he would still be forced to lodge an appeal against that order only to prevent a second prosecution. This would impose on the accused person additional administrative burdens and extra costs that a resident in that Member State normally does not have to bear.

64.      In the light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling as follows: Article 6 of 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 the authorised person, even where the accused person has not been made aware of the order, provided that the accused person: (i) is properly served with the order once he or she becomes aware of it, and has his or her position fully restored to the status quo ante, and (ii) 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 authorised person.

C.      Concluding remarks (on limitless interpretation and future cases)

65.      This is not the first case in which a German court has asked the Court to verify whether the national legislation at issue is compatible with the provisions of Directive 2012/13. Indeed, over a period of less than five years, there have been no fewer than four prior requests for a preliminary ruling on this subject, which led to delivery of the judgments of the Court in Covaci and in Tranca and Others.

66.      The principles established by the Court in those cases are naturally applicable in subsequent cases. National law cannot be considered to be incompatible with EU law so long as the former may be interpreted in conformity with the latter, in order to achieve the objective intended by the EU legislature. It must be borne in mind that, by virtue of Article 4(3) TEU, Member States’ authorities (including the judiciary) are under a duty to interpret national law, in so far as possible, in the light of the wording and the purpose of the directive in question, in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 288 TFEU. (29)

67.      That being said, and with all allowances made for reasonably conceivable divergences in legal opinion at national level, I must admit that I do understand and share a number of the elements of doubt expressed by the referring court.

68.      First, the German Government’s arguments seem to stretch the principle of consistent interpretation to its reasonable limits, if not beyond. In its order for reference, the referring court invokes clear, precise statutory time limits set out in national law. The response of the German Government is that those provisions can be ‘reinterpreted’ in order to conform to EU law. To take just one example, can a national court sidestep, by way of consistent interpretation, the clear requirement under Paragraph 45(1) of the StPO that restoration to the  status quo ante is to be requested within one week after the obstacle due to which the deadline was missed has ceased to exist, and instead make that provision read two weeks?

69.      It may only be recalled that the principle of consistent interpretation cannot serve as the basis for an interpretation of national law contra legem. (30) Certainly, that limit is likely to be understood differently in different legal systems. However, to my (perhaps unduly positivistic and textualist) mind, making one week read two weeks could hardly be said to be a matter of interpretation, as is the case with any precise time limits. Can consistent interpretation turn one into two? My perplexity on this point is further compounded by the fact that, when asked at the hearing whether there was any judicial precedent on that issue, the German Government referred to one academic commentary in support of its argument, implying that every German judge reads (and presumably agrees with) that commentary.

70.      Second, I wonder whether the fact that compliance with Article 6 of Directive 2012/13 may only be ensured by interpreting several provisions of national law in the light of EU law, some of them indeed in a rather counterintuitive way, does not presuppose that national courts and law enforcement authorities have an extraordinarily high level of knowledge of EU law (and perhaps also of legal creativity). If that is indeed so, which as far as the requisite knowledge of EU law and case-law is concerned can only be commended and admired, another issue is bound to arise: that of predictability and legal certainty, not only for those actors, but also and especially for the EU citizens that may be involved. To give an obvious example: if German courts themselves have doubts about the proper interpretation of the applicable procedural rules, as evidenced at least by the present request for a preliminary ruling, how can a Polish driver be expected to understand his legal position and be able to act (within a short time frame) in order to protect his rights? Let us not forget that the national procedures at issue are of a criminal nature. (31)

71.      Third, Covaci and Tranca concerned situations where the potential breach of Article 6 of Directive 2012/13 occurred in the same procedure in which the penalty order in question was issued. However, the transposition of the Court’s findings in those cases to situations in which the potential breach of Article 6 of Directive 2012/13 in a given procedure affects other, subsequent national procedures seems less straightforward, as the present case illustrates.

72.      The breach of the accused person’s right to information about the accusation in a criminal procedure may well — as the German Government contends — sweep away related criminal proceedings. I do nonetheless wonder whether the situation could be different if, for example, the related, subsequent procedure concerned the adoption of administrative measures. What about potential civil actions for damages based on the res judicata character of the (first) penalty order? What, finally, of indirect spillover effects occurring in the private sphere? (32) Are there further mechanisms in place, in national legislation, that could also adequately protect a suspect or accused person from the negative consequences of a criminal procedure conducted in breach of Article 6 of Directive 2012/13 at the administrative and civil level? If not, a problem of equivalence might arise in those situations.

73.      That question brings the matter right back to where it started: the question of equivalence and the quality of service of documents in criminal matters. That issue, put in the crudest terms possible, could be stated as follows: is it (still) justified to treat EU citizens not resident in Germany as fugitives and homeless persons by default, (33) and to put in place, for those persons, a legal fiction, effectively meaning that the State authorities serve the documents on their own employees, who have apparently only a very ‘light’ obligation in terms of forwarding any such documents? Does that mean, in practical terms and in the somewhat specific case of the penalty order, that whereas persons resident on the German territory enjoy a high level of legal protection, other EU citizens apparently enjoy close to none?

74.      One might therefore doubt for how much longer the current twin-track approach to the service of judicial decisions of a criminal nature will continue to be justifiable, at both EU and national level.

75.      At EU level, significant progress is being made in the establishment of an area of freedom, security and justice and, more specifically, in the field of judicial cooperation in criminal matters. As Article 82(1) TFEU states, that policy is based on the principle of mutual recognition of judgments and judicial decisions and is to include the approximation of the laws and regulations of the Member States in a number of relevant areas. Directive 2012/13 is one of the instruments adopted, on the basis of Article 82(2) TFEU, within the context of the so-called Stockholm Programme. (34) A number of proposals for new instruments of legislation in this area are currently being examined by the EU legislature, with a view to further strengthening the principle of mutual trust and increasing the degree of administrative and judicial cooperation between Member States’ authorities.

76.      At the same time, the markets for services — including postal services — are becoming more and more integrated. It is perhaps not necessary in this context to dwell on rules that govern the provision of postal services in the European Union. (35) It suffices to point out, inter alia, that companies charged with universal service obligations have to comply with a number of obligations flowing from EU law aimed at guaranteeing a minimum range of services, provided nationally or cross-border, of specified quality. (36) I find it revealing that, when asked at the hearing to explain the reasons behind its different (and complex) system of service of judicial documents in criminal matters abroad, and why it is not possible to send a registered letter into another Member State, the German Government simply answered that the system was established a long time ago.

77.      In the light of those developments, problems of equivalence and proportionality are likely to arise again in the future. I suspect that it will become progressively more difficult to argue that sending a registered letter cross-border is generally slower and/or gives rise to more uncertainty than sending it to some other destination within the same Member State. At any rate, even if that were to remain true, one may legitimately wonder whether the difference between those two situations were so significant as to justify a system such as that established by the national legislation at issue. Again, the national legislation at issue treats, always and automatically, any EU citizen not residing in Germany as a fugitive or person without a known domicile. Yet, a less drastic (or, rather, more proportionate) system vis-à-vis persons residing abroad is certainly conceivable.

78.      Furthermore, such a level of legal protection under EU law becomes even more difficult to justify when other regimes of cross-border service of documents are taken into account. For example, Member States are required to be particularly rigorous in serving judicial documents of a civil and commercial nature abroad pursuant to the provisions of Regulation (EC) No 1393/2007. (37) Within that regime, as interpreted by this Court, even slight errors in the service of judicial documents, including the omission of an annex form in the appropriate language, can have far-reaching consequences for the proceedings. (38)

79.      It is certainly true that whereas the service of civil and commercial judicial documents is harmonised, the service of criminal ones largely is not. Formally correct as that argument is, it serves to underline the systemic oddity whereby there is a very high degree of protection for the service of civil judicial documents, but close to none for those of a criminal nature.

80.      Finally, from the perspective of the Member State concerned, one might equally wonder to what extent the solution arrived at in Covaci and Tranca, and potentially further elaborated and confirmed by this case, is in the interest of any Member State and of the enforceability of its decisions. Is it desirable, from the viewpoint of a Member State: (i) that its judicial decisions of a criminal nature served on persons residing in other EU Member States run the risk of hanging in a perpetual legal limbo; (ii) that they might not be enforceable, or may be reopened at any time when their addressees become aware of them and oppose them; (iii) that subsequent legal steps taken on the basis of those decisions, be they of a criminal, administrative or civil nature, might be prone to challenge or even void; or (iv) that they are unlikely to be recognised and enforced in other Member States, because the competent authorities of those executing Member States might raise issues with regard to criminal decisions rendered in fact in absentia and without the knowledge of the person concerned, who was therefore unable to exercise any right of defence? (39) In view of such structural problems, might it perhaps not be in the best interest of any Member State, even acting alone, to revisit the genuine origin of the problem, namely the questionable quality of the service of documents, instead of applying further patches to deal with the specific circumstances of the next individual case?

81.      In sum, this Court is unlikely to (and should not) revisit its case-law lightly, in particular on issues adjudicated upon only recently. However, I believe that the present case is as far as the Court can go in declaring national legislation that clearly poses issues in terms of the legal protection of EU citizens resident in Member States other than Germany to be compatible with EU law. If further cases of this kind keep coming before this Court, authoritatively confirming the problems already identified and hinting at further deficiencies in the entire procedure, the Court might well be obliged to reconsider the entire area of case-law, including its very starting assumption, namely that in spite of the considerable difference between the two regimes of service, in terms of legal protection, they can somehow be considered ‘separate but equal’. (40) The legal and factual evidence brought in subsequent cases may show that those starting assumptions might not have been correct. One thing is clear: service by (legal) fiction cannot be allowed to turn the legal protection of the rights of EU citizens into a fiction as well.

V.       Conclusion

82.      I propose that the Court answer the questions referred for a preliminary ruling by the Amtsgericht Kehl (Local Court, Kehl, Germany) as follows:

–        Article 6 of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings 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 a person authorised to accept service, even where the accused person has not been made aware of the order, provided that the accused person: (i) is properly served with the order once he or she becomes aware of it, and has his or her position fully restored to the status quo ante, and (ii) 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 person authorised to accept service.

1      Original language: English.

2      OJ 2012 L 142, p. 1.

3      Judgments of 15 October 2015, Covaci (C‑216/14, EU:C:2015:686) (‘Covaci’), and of 22 March 2017, Tranca and Others (C‑124/16, C‑188/16 and C‑213/16, EU:C:2017:228) (‘Tranca’).

4      With primary law remaining applicable and relevant, even in the face of more specific provisions of secondary law. See recently, in the context of driving licences and the interplay between the free movement and non-discrimination provisions of the Treaty and Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ 2006 L 403, p. 18), judgment of 26 October 2017, I (C‑195/16, EU:C:2017:815).

5      Starting with the factual issue of the professional status of the accused person and the resulting clarification of which provisions of the Treaty would in fact be applicable to him (whether those on workers, on establishment, or on the freedom to provide services).

6      See above, footnote 3.

7      Applying the principle that iura (Europaea) novit Curia (Europaea) — see to that effect, for example, judgment of 19 September 2013, Betriu Montull (C‑5/12, EU:C:2013:571, paragraphs 40 and 41 and the case-law cited).

8      Emphasis added.

9      In the present case, under Paragraph 44 of the StPO.

10      See especially recitals 3, 8 and 41 of Directive 2012/13.

11      Emphasis added.

12      Covaci, paragraph 20.

13      Reproduced above in point 12 of this Opinion.

14      See, to that effect, Opinion of Advocate General Bot in Covaci (C‑216/14, EU:C:2015:305, point 32).

15      See recital 41 of Directive 2012/13, and in general Article 52(3) of the Charter of Fundamental Rights of the European Union.

16      See, to that effect, Covaci, paragraph 62, and Tranca, paragraph 37.

17      See, to that effect, Covaci, paragraph 63, and Tranca, paragraph 38.

18      See, to that effect, Covaci, paragraph 65, and Tranca, paragraph 40.

19      See, to that effect, Covaci, paragraph 68.

20      See, to that effect, Tranca, paragraphs 41 and 42.

21      See, to that effect, Covaci, paragraph 67, and Tranca, paragraphs 45 and 46.

22      See, to that effect, Tranca, paragraphs 48 and 49.

23      The referring court invokes in particular Paragraphs 176, 178(1)(1) and 180 to 182 of the Zivilprozessordnung (German Code of Civil Procedure).

24      Also in view of the scope of the case, as outlined in points 23 to 27 above.

25      Above, points 41 to 43 of this Opinion.

26      It is safe to assume that even those who enjoy Kafka’s novels as pieces of literature are unlikely also to enjoy being put in the shoes of Josef K., being prosecuted (and even sentenced in absentia) without ever being told why (Kafka, Franz, Der Proceß (The Trial), 4th ed., Fischer, Frankfurt am Main, 2011).

27      That may depend on the specificities of the domestic legal system: for example, the decision might be given only the force of relative res judicata,  conditional upon its proper service on the person in question, or it might enter into force but be set aside later upon request. I understand that the (im)possibility of any such dogmatic construction under German law is one of the points of disagreement between the referring court and the German Government.

28      In its request for a preliminary ruling, the referring court indicates that that is the case, and the German Government has not contested it.

29      See, to that effect, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 113 and the case-law cited).

30      See, for example, the recent judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 74). 

31      At this stage, I shall not even enter into the intriguing question of what information about his rights a person in the situation of the driver is to be given by which national authorities and when (and whether and how any such obligation was complied with in the present case).

32      To give but one example, a person might not be able to take up a job offer in Germany because of his criminal record, of which however he or she was not aware.

33      To be clear, Germany is certainly not the only Member State that resorts to legal presumptions or even fictions in some instances of service of documents. What is, however, to my mind rather singular is the system of appointing an authorised person who, on the one hand, is entitled to act fully on behalf of the suspect or accused person but, at the same time, has virtually no obligations to make proper contact with him or her. That leaves the entire approach sitting oddly between two stools: it is neither proper representation nor proper service.

34      Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ 2009 C 295, p. 1) and European Council, ‘The Stockholm Programme — an open and secure Europe serving and protecting citizens’, point 2.4 (OJ 2010 C 115, p. 1).

35      See especially Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14), as amended.

36      See especially recitals 11 and 13 of Directive 97/67.

37      Regulation of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).

38      See, for example, judgments of 16 September 2015, Alpha Bank Cyprus (C‑519/13, EU:C:2015:603), and of 2 March 2017, Henderson (C‑354/15, EU:C:2017:157).

39      See, by way of illustration (and without making any statement on its potential applicability to the present case), Article 7(2)(g) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ 2005 L 76, p. 16).

40      That being the starting point in both Covaci and Tranca — see above, points 41 and 42.

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