XC, YB, ZA (C‑234/17)

On 24 October 2018, the Court of Justice (Grand Chamber) delivered its judgment in case C-234/17, on the interpretation of the principle of sincere cooperation (Article 4(3) TEU) in conjunction with the principles of equivalence and effectiveness.

XC, YB and ZA are suspected of having committed several offences in Switzerland, notably tax evasion. In this context, the Public Prosecutor’s Office for the Canton of St Gallen, Switzerland sent requests for mutual legal assistance to the Public Prosecutor’s Office of Feldkirch, Austria, aiming, in particular to hear ZA as an accused person. XC and YB raised objections, which were rejected by the Regional Court of Feldkirch and the Higher Regional Court of Innsbruck, Austria. As the latter court adjudicated at second and final instance, that decision is final, in accordance with the Austrian Code of Criminal Procedure. XC, YB and ZA nevertheless lodged an application for rehearing before the Austrian Supreme Court, submitting that the grant of mutual legal assistance to the Public Prosecutor’s Office for the Canton of St Gallen constitutes an infringement of their right not to be tried twice for the same criminal offence. In particular, they claimed that the existence of criminal proceedings concluded in Germany and Liechtenstein in 2011 and 2012 precluded, because of the ne bis in idem principle enshrined in Article 54 of the Convention Implementing the Schengen Agreement (CISA), Article 50 of the Charter and Article 4 of Protocol No. 7 to the ECHR, further prosecutions concerning suspected criminal offences committed to the detriment of the Swiss tax authorities being brought against them.

The Austrian Supreme Court specified, in its request for a preliminary ruling, that the ECHR has constitutional status in Austria and that, in order to ensure the implementation of the judgments of the European Court of Human Rights (ECtHR), Article 363a of the Austrian Code of Criminal Procedure allows for the submission of applications for the rehearing of a closed criminal case. In this context, the Austrian Supreme Court asks the Court of Justice whether such procedure for rehearing must, in accordance with the principles of equivalence and effectiveness, also apply for violations of EU law.

The Court of Justice analyses separately the principle of equivalence and the principle of effectiveness. The former prohibits a Member State from laying down less favourable procedural rules for actions for safeguarding rights that individuals derive from EU law than those applicable to similar domestic actions. In this context, the remedy enshrined in Article 363a of the Austrian Code of Criminal Procedure shall be considered as a domestic action. In accordance with a judgment of 2007 by the Austrian Supreme Court, Article 363a allows the submission of applications for the rehearing of a closed case even when there is no prior decision of the ECtHR. Hence, Article 363a may also apply where the Austrian Supreme Court has itself identified the existence of an infringement of one of the rights guaranteed by the ECHR or the protocols thereto. However, the Court argues that the principle of equivalence does not require national courts to extend the remedy provided for by Article 363a of the Austrian Code of Criminal Procedure to cases of alleged violation of rights protected under EU law.

In essence, the Court argues that the remedy at issue has been specifically introduced to implement the judgements of the ECtHR, while, on the other hand, EU law has entirely different characteristics. It enjoys primacy over national law and a number of its provisions have direct effect; it envisages a judicial system intended to ensure consistency and uniformity in the interpretation of EU law, the cornerstone of which is represented by Article 267 TFEU (request for preliminary ruling); and, if necessary, national courts are required to set aside national law that is incompatible with EU law. Such a constitutional framework guarantees everyone the opportunity to obtain the effective protection of rights conferred by the EU legal order before a national decision with the force of res judicata even comes into existence.

By the same token, the principle of effectiveness does not require the extension of the remit of Article 363a of the Austrian Code of Criminal Procedure to cases of alleged violation of rights protected under EU law. The Court notes that no information in the file of the case leads to the conclusion that there are not, in the Austrian legal system, legal remedies which effectively guarantee the protection of the right to ne bis in idem. It is instead common ground that the applicants were able to file their complaints with the competent courts in the main proceedings. Furthermore, the referring court also points out that the Code of Criminal Procedure provides for various avenues of protection for individuals who are affected to assert the rights conferred on them by the EU legal order.

The Court thus concludes that EU law, in particular the principles of equivalence and effectiveness, must be interpreted as meaning that a national court is not required to extend to infringements of EU law, in particular to infringements of the fundamental right to ne bis in idem, a remedy under national law permitting, only in the event of infringement of the ECHR, or one of the protocols thereto, the rehearing of criminal proceedings closed by a national decision having the force of res judicata.