Ianos Tranca, Tanja Reiter and Ionel Opria

On 22 March 2017, the Court of Justice (Fifth Chamber) released its judgment in Joined Cases C‑124/16, C‑188/16 and C‑213/16 on Directive 2012/13/EU on the right to information in criminal proceedings, which and aim at clarifying the consequences of the Covaci judgment in cases where the non-resident accused person has no fixed place of residence.

Criminal prosecution proceedings were brought in Germany against Mr. Tranca and Mr. Opria for theft and against Ms. Reiter for assault and resisting a police officer in the performance of his duties. None of them has a fixed place of domicile or residence in Germany or in their country of origin.

In this context, the referring court essentially asks the Court of Justice whether German law is compatible with Directive 2012/13, as interpreted by the Court in the Covaci judgment, in so far as it provides that the accused person who neither resides in Germany nor has a fixed place of residence in Germany or in his Member State of origin is required to appoint an agent for the purposes of service of a penalty order concerning him, and that the period for lodging an objection to that order, before it becomes enforceable, runs from service of that order on that agent, the person concerned being however able to request having his position restored to the status quo ante if he has not had actual knowledge of the penalty order in question.

The Court recalled that both the objective of enabling the accused person to prepare his defence and the need to avoid any kind of discrimination between (i) accused persons with a residence within the jurisdiction of the national law concerned and (ii) accused persons whose residence does not fall within that jurisdiction, who alone are required to appoint a person authorised to accept service of judicial decisions, require the whole of that period for lodging an objection to be available to the accused person.

It also stressed that, while Article 6 of Directive 2012/13 does not require that period to begin to run from the moment when the person accused was actually aware of the penalty order concerning him, the procedure must be fair and the effective exercise of the rights of the defence must be guaranteed.

In this context, the Court found that the objective of Article 6 of Directive 2012/13 is manifestly infringed if the addressee of a penalty order such as those at issue in the main proceedings, which has become final and enforceable, could no longer object to it, even though he had not been aware of the existence and content of that order at a time when he could have exercised his rights of defence, in so far as, for want of a known place of residence, it was not served on him personally. In such a situation, the addressee of such an order, far from benefiting from the whole of the period for lodging an objection against it, would be deprived of it completely.

The Court therefore ruled that Article 2, Article 3(1)(c), and Article 6(1) and (3) of Directive 2012/13 must be interpreted to the effect that they do not preclude legislation of a Member State, such as that at issue in the main proceedings, which, in criminal proceedings, provides that the accused person who neither resides in that Member State nor has a fixed place of residence in that State or in his Member State of origin is required to appoint an agent for the purposes of service of a penalty order concerning him and that the period for lodging an objection to that order, before it becomes enforceable, runs from service of that order on that agent.

The Court however specified that Article 6 of Directive 2012/13 requires that, when the penalty order is enforced, as soon as the person concerned has actually become aware of the order, he should be placed in the same situation as if that order had been served on him personally and, in particular, that he should have the whole of the prescribed period for lodging an objection, where necessary, benefiting from having his position restored to the status quo ante.

Finally, it is for the referring court to ensure that the national procedure for the accused person’s position being restored to the status quo ante and the conditions to which the exercise of that procedure is subject are applied in a manner consistent with those requirements and that that procedure thus permits the effective exercise of the rights provided for in Article 6.