The question referred to the CJEU was “Must Article 2, Article 3(1)(c) and Article 6(1) and (3) of Directive 2012/13 be interpreted as precluding legislation of a Member State, which, in criminal proceedings provides that the accused person who does not reside in the Member State or have a fixed place of residence in that Member 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 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?”
In its judgment of 22 March 2017 in the Joined Cases C-124/16 Tranca, C-213/16 Reiter and C-188/16 Opria (hereafter Tranca) regarding the interpretation of the Directive 2012/13/EU on the right to information in criminal proceedings), the CJEU:
- Reaffirms the requirements set out in Covaci (para 36).
- Directive 2012/13 does not regulate the procedures whereby information about the accusation, in accordance with Article 6 of that Directive, must be given to that person (para 37).
- These procedures cannot undermine the objective enabling suspects or persons accused of committing a criminal offence to prepare their defence and in safeguarding the fairness of proceedings (para 38).
- Article 6 of Directive 2012/13 does not require that period to run from the moment when the person accused was actually aware of the penalty order, it must, however, be fair and the effective exercise of the rights must be guaranteed (para 42).
- The objective of Article 6 of Directive 2012/13 is manifestly infringed if the addressee of a penalty order could no longer object to it even though he had not been made aware of its existence and he could no longer exercise his right to a defence (para 45).
- Member States must ensure that persons accused or suspects in the context of criminal proceedings retain the right to exercise fully their rights of defence (para 47).
- It is for the referring courts to interpret national law in accordance with the requirements laid down in Article 6 of Directive 2012/13 (para 48 and 49).
Background information
A German court had accused the defendants in each case of theft and they were liable to a fine. As the accused had no fixed place of domicile or residence in Germany or in their country of origin, they had to appoint an agent for the purpose of receiving service of any penalty measures affecting them. The issue in this case revolved around the period of lodging an objection to that order before it becomes enforceable. The referring court examined three different interpretations of the German law a. “the period for lodging an objection should run only from the moment when the accused person was actually aware of the penalty order concerning him”(para 31), b. “automatically consider as being inadmissible any service of penalty orders on agent” (para 32) c. “the national
provisions relating to an accused person having his position restored to the status quo ante for lodging an objection against an order” (para 33), that would enable the conditions in Covaci to be satisfied. The referring court doubts whether the criminal procedure provided for by German law is compatible with Directive 2012/13, thus decided to stay the proceedings and to refer the question to the COJ for a preliminary ruling.