OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 5 February 2019(1)
Case C‑646/17
Criminal proceedings
against
Gianluca Moro
(Request for a preliminary ruling from the Tribunale di Brindisi (District Court, Brindisi, Italy))
(Reference for a preliminary ruling — Judicial cooperation in criminal matters — Right to information in criminal proceedings — Modification of the accusation in terms of classification of the act — No possibility to apply for a negotiated settlement after the trial proceedings had begun)
I. Introduction
1. Mr Moro (‘the Defendant’) was charged with the criminal offence of handling the proceeds of crime, namely stolen gold jewellery. During the trial hearing, the Defendant confessed that it was in fact him who had stolen that jewellery. Following his confession, he was informed that the acts of which he was accused could be reclassified and the charge could thus be modified to the criminal offence of theft.
2. The Defendant subsequently applied for a negotiated penalty, known under Italian law as ‘patteggiamento’. That application was rejected because, under the Codice di procedura penale (Code of Criminal Procedure), a request for the application of that procedure must in principle be submitted before the trial proceedings begin, at least in cases in which a mere legal reclassification of the act occurs, as opposed to a change in facts.
3. The Tribunale di Brindisi (District Court, Brindisi, Italy) has doubts as to whether such national provisions comply with EU law provisions concerning the rights of the defence of accused persons, and in particular with a number of provisions of Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings (Directive 2012/13). (2) Apart from the need to ascertain the exact scope of the specific obligations flowing from the right to be informed promptly of any change to the accusation, as enshrined in that directive, the transversal issues raised in the present case are: what exactly is the scope of application of that directive as a whole? What role does the EU Charter play in interpreting such procedural rights?
II. Legal framework
A. EU law
4. Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides that ‘respect for the rights of the defence of anyone who has been charged shall be guaranteed’.
5. According to recital 3 of Directive 2012/13, ‘the implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States trust in each other’s criminal justice systems. The extent of mutual recognition is very much dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspects or accused persons and common minimum standards necessary to facilitate the application of the principle of mutual recognition’.
6. According to recital 8, ‘strengthening mutual trust requires detailed rules on the protection of the procedural rights and guarantees arising from the Charter and from the ECHR’.
7. Pursuant to recital 10, ‘common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust. Such common minimum rules should be established in the field of information in criminal proceedings’.
8. Pursuant to recital 29, ‘where, in the course of the criminal proceedings, the details of the accusation change to the extent that the position of suspects or accused persons is substantially affected, this should be communicated to them where necessary to safeguard the fairness of the proceedings and in due time to allow for an effective exercise of the rights of the defence’.
9. According to its 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. It also lays down rules concerning the right to information of persons subject to a European Arrest Warrant relating to their rights’.
10. Pursuant to its Article 2(1), 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’.
11. Article 3 of Directive 2012/13 is entitled ‘Right to information about rights’. It reads as follows:
‘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:
(a) the right of access to a lawyer;
(b) any entitlement to free legal advice and the conditions for obtaining such advice;
(c) the right to be informed of the accusation, in accordance with Article 6;
(d) the right to interpretation and translation;
(e) the right to remain silent.
2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.’
12. Article 6 of Directive 2012/13 is entitled ‘Right to information about the accusation’ and provides as follows:
‘1. 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.
2. Member States shall ensure that suspects or accused persons who are arrested or detained are informed of the reasons for their arrest or detention, including the criminal act they are suspected or accused of having committed.
3. Member States shall ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person.
4. Member States shall ensure that suspects or accused persons are informed promptly of any changes in the information given in accordance with this Article where this is necessary to safeguard the fairness of the proceedings.’
B. Italian law
13. Pursuant to Article 444 of the Codice di procedura penale (Code of Criminal Procedure) (‘CPP’), entitled ‘Imposition of a penalty negotiated between the parties’ [called ‘patteggiamento’], the accused and the public prosecutor may ask the court to apply an alternative sanction, (of a kind and duration that is appropriate), a financial penalty, reduced by up to one third, or a sentence of imprisonment which, taking into account the circumstances and reduced by up to one third, does not exceed five years, including if a financial penalty is imposed in addition to that sentence.
14. Article 552 CPP provides that the summons to appear must contain certain elements, failing which it will be invalid. In particular, there must be ‘a statement of the offence, in clear and precise terms, of aggravating circumstances and of those that may require the application of preventive measures, citing the relevant provisions of law’. That summons must be notified to the accused person, his counsel and to the victim at least 60 days before the hearing in court.
15. Article 555 CPP, bearing the title ‘Hearing in court following a direct summons’, states that the accused or the public prosecutor may make the request provided for by Article 444 CPP before the trial proceedings have been opened.
16. Article 516 CPP (‘Change to the accusation’) provides that ‘if in the course of the trial proceedings the acts prove to be different from how they are described in the summons to appear, and not to fall within the jurisdiction of a higher court, the public prosecutor shall amend the accusation and proceed with the relevant prosecution …’.
17. According to the order for reference, the Corte Costituzionale (Constitutional Court, Italy) has declared Article 516 CPP to be unconstitutional in so far as the accused was not entitled to request the negotiated penalty in the course of trial proceedings if there had been, in essence, factual changes to the charge. That statement made by the Corte Costituzionale (Constitutional Court) thus did not concern the situation in which an offence has been legally reclassified. (3)
18. Finally, pursuant to Article 521 CPP, the court may give the acts a legal classification other than that in the accusation. If, however, the acts differ from the given description, or if there are new prosecution proceedings, the court must order that the documents in the case be remitted back to the public prosecutor.
III. Facts, national proceedings and the questions referred
19. By way of a summons issued on 1 April 2016, criminal proceedings were brought against the Defendant. He was accused of handling the proceeds of crime. It was alleged that he had received gold jewellery from unknown persons. That jewellery had been stolen from Mr Legrottaglie (the ‘civil party in the main proceedings’). The Defendant, in order to make a profit, was accused of having passed it on to an undertaking that buys and sells gold.
20. At a trial hearing on 13 October 2017, the Defendant admitted that he had committed the theft himself. As a result, he was informed that the acts of which he was accused could be reclassified from ‘handling the proceeds of crime’ to ‘aggravated theft’, as major economic loss had been caused by the theft.
21. In the light of that possibility, the accused asked to be allowed to request the imposition of a negotiated penalty pursuant to Article 444 CPP, under the procedure of ‘patteggiamento’. That procedure enables certain benefits for the accused person to be negotiated, including a reduction of the sentence by up to one third, exemption from the payment of costs, and striking off of the offence if the accused does not commit an offence or summary offence of the same nature in a certain period of time.
22. The request for the imposition of a negotiated penalty must be, in principle, made before trial proceedings have been opened. It is only admissible at a later stage if the accusation has been modified, alleging new or different facts, brought against the accused person. Conversely, that request is not admissible at the stage of the proceedings when the same acts are ‘merely’ being legally reclassified.
23. Given that the change to the accusation made against the Defendant was of a legal (and not a factual) nature, (4) the referring court considers that the Defendant’s request for the negotiated penalty must be rejected because it was made outside the applicable period. The referring court adds that the public prosecutor did not intend to amend the accusation formally in accordance with Article 516 CPP, leaving it to the court to decide on the legal classification of the acts.
24. In those circumstances, Tribunale di Brindisi (District Court, Brindisi) decided to stay the proceedings and refer the following question to the Court:
‘Must Article 2(1), Article 3(1)(c) and Article 6(1), (2) and (3) of Directive 2012/13, and Article 48 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding procedural rules under the criminal law of a Member State on the basis of which the safeguards for the rights of the defence following a change to the charge are guaranteed in terms that differ, both in quality and in quantity, depending on whether that change relates to the factual elements of the charge or to its legal classification, in particular allowing the accused person to request the alternative and beneficial procedure of the imposition of a negotiated penalty (the “patteggiamento” procedure) only if the change is of a factual nature?’
25. Written submissions were made the civil party in the main proceedings, the Italian, Hungarian, Netherlands, and Polish Governments and by the Commission. The Italian Government and the Commission presented oral argument at the hearing that took place on 14 November 2018.
IV. Assessment
26. This Opinion consists of three parts. First, I will deal with the issue whether Directive 2012/13 applies to the situation at hand despite the lack of any apparent cross-border dimension (A). Then, I shall turn to the substance of the case. The referring court asks the Court to conduct its analysis in the light of Directive 2012/13 and Article 48 of the Charter. It is debatable whether that court suggests that analysis ought to be conducted separately or rather that the respective provisions of Directive 2012/13 should be read in the light of Article 48 of the Charter. For the sake of clarity, I prefer to address the impact of both legal instruments for the present case separately. I will therefore, second, turn to the provisions of Directive 2012/13, particularly Article 6(4) of Directive 2012/13, which I consider to be the relevant provision to answer the question posed. I will suggest that that provision does not preclude the national provisions at issue (B). Third and final, I will conclude that Article 48(2) of the Charter does not change that outcome (C).
A. Applicability of Directive 2012/13 (and the jurisdiction of the Court in the present case)
27. The Italian and Polish Governments raised two objections to the jurisdiction of the Court in the present case.
28. On the one hand, the Polish Government states that the question posed does not concern whether the Defendant was promptly informed about a change to the accusation. The issue in the main proceedings concerns rather the lack of possibility to apply for the procedure of the negotiated penalty at the given stage of the proceedings. However, as EU law does not provide for any conditions relating to the application of such procedure, that matter does not fall within the scope of EU law and therefore the Court does not have jurisdiction.
29. Naturally, I agree with the Polish Government that Directive 2012/13 does not contain a provision entitled ‘conditions for access to a procedure for a negotiated penalty’. However, there is little doubt on the basis of its clear wording in Article 1 and Article 2(1) that Directive 2012/13 applies ratione materiae, in a general way, to the situation at hand. What is disputed is whether that directive creates any specific obligations for the Member States on the basis of Article 6, and the right to information about the accusation, including changes made to the accusation, in the specific context of the main proceedings. That is, however, a discussion on the merits of the case, which I address below in section B.
30. On the other hand, the Italian Government objects to the jurisdiction of the Court as it considers that there is no cross-border element in the situation in the main proceedings. All the relevant facts appear to be linked to Italy alone. For that reason, the Italian Government submits that the Court has no jurisdiction in this matter, because the scope of application of Directive 2012/13 (and thus the related interpretative competence of the Court) is limited to matters with a cross-border dimension.
31. That argument is based on Article 82(2) TFEU, which is the legal basis of Directive 2012/13. That provision states that ‘to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives …, establish minimum rules. …’. It also states that those directives ‘shall concern’, ‘(a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; …’. (5)
32. The Italian Government explains that the use of the term ‘cross-border’ in Article 82(2) TFEU means that the scope of application of any secondary-law legislation based on that provision ought to be limited to situations with a cross-border dimension.
33. I am not convinced by that argument.
34. The Court has interpreted Directive 2012/13 in three cases to date. (6) Particularly in the Kolev case, (7) there appeared not to be any discernible cross-border element. That case concerned customs officers in Bulgaria who were prosecuted in Bulgaria for having taken part in a criminal conspiracy by demanding bribes from drivers of vehicles crossing the border from Turkey. Unless it is suggested that taking bribes at the (external) border of the EU amounts to a cross-border element, it appears that that case actually lacked any cross-border dimension.
35. That being said, it is correct to admit that the question whether application of Directive 2012/13 ought to be dependent on the cross-border dimension has not yet been directly addressed by the Court.
36. Prima facie and read in isolation, Article 82(2) TFEU could arguably lead to the suggestion that an act based on that provision is supposed to apply only to situations with a ‘cross-border dimension’. That would be the case if the term ‘cross-border’ situated in the first half of the first sentence of that provision were to be understood as covering all of Article 82(2) TFEU (that is to say the facet of judicial cooperation, and the facet of harmonisation, appearing in the second half of that sentence).
37. However, further consideration of the wording of Directive 2012/13, but above all of its objective and context, lead to a different conclusion.
38. First, considering the wording, the scope of application of Directive 2012/13 is general. It is not limited to or by any cross-border situations. (8) Its first article (which defines the subject matter of Directive 2012/13) is composed of two sentences. The first is general. The second adds that that directive also applies to persons subject to a European Arrest Warrant (‘EAW’). (9) By providing for that additional clarification, the second sentence only underlines the (necessarily general) scope of the first sentence of the first article. Article 2(1), which defines the scope of application of the directive, is equally general: it does not provide for any limitation in the form of the need for a cross-border element. (10)
39. Second, concerning the objective(s), it follows from recitals 3, 8, 10 and 20 that Directive 2012/13 lays down common minimum standards to be applied in the field of information about rights and the nature of the accusation to be given to persons suspected or accused of having committed a criminal offence. That is with a view to enhancing mutual trust among Member States. (11) In this way, the climate of mutual trust in the criminal-law systems of the Member States is built through the harmonisation of the standards applicable to specific aspects of the criminal procedure.
40. That harmonisation contributes in turn to the better functioning of other instruments of EU law that pursue the objective of ‘concrete’ judicial cooperation: when the necessity of cooperation in criminal matters arises under, for example, the EAW Framework Decision, the executing Member State can trust that the procedure in the requesting Member State has met or will meet certain standards. (12)
41. Thus, independently of the existence of any specific situation of cross-border cooperation between the authorities of two Member States, the objective pursued by that harmonisation is to create a common playing field in which certain minimum procedural standards are guaranteed. In this way, when the need for a specific instance of cross-border cooperation arises, the authorities in question will be able to trust each other’s criminal-law systems with respect to the existence of those procedural guarantees, so that judicial cooperation may be more effective. (13)
42. Those considerations thus show that the purpose of setting such general and prior standards is different and in fact largely independent of the existence of a later and specific cross-border element in the individual case. Metaphorically speaking, it is like building bridges: the initial impetus for constructing such an edifice might indeed have been the specific interest of a certain group of traders to travel between two specific towns situated on either side of a river. However, once it is open for public use, the bridge is there to support all traffic moving across the river, irrespective of who is travelling where.
43. Third, regarding the broader legislative context of Directive 2012/13, it ought to be stressed that a similar question, whether the applicability of Directive 2012/13 depends on the existence of a cross-border dimension, would also arise in respect of other directives that have been adopted as part of the so-called Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings within the Stockholm Programme (14) and that have the same legal basis as Directive 2012/13. (15) The wording of those directives is generally drafted in a similar way to the language of Directive 2012/13, and neither confirms nor excludes the applicability of those instruments to internal situations. In a similar vein, the Court interpreted some of those instruments in matters that concerned purely domestic situations. (16)
44. In view of those considerations, the outcome is already rather clear to me: the applicability of Directive 2012/13 does not require there to be a cross-border dimension in an individual case before the national judge.
45. There is nonetheless one additional (and rather weighty) argument which shows why the condition of a cross-border dimension in the individual case cannot be attached to the applicability of such a directive which is the (il)logical consequence that would entail if it were.
46. As follows from the written submissions and as further explored in the discussions at the hearing, there are two ways in which a potential cross-border element, which would be needed for the applicability of Directive 2012/13, could be defined.
47. First, it could be suggested that the applicability of Directive 2012/13 be limited to criminal procedures that concern crimes governed by EU law instruments adopted on the basis of the list contained in Article 83(1) TFEU, or further expanded under Article 83(2) TFEU by individual instruments. The logic there would be that, in a way, the EU legislature authoritatively stated that it is these crimes that will have a cross-border dimension, because that characteristic is also referred to in Article 83(1) TFEU.
48. However, such an argument cannot be inferred from the combined reading of Article 82(2) and Article 83 TFEU. While the former constitutes the legal basis for harmonisation of the procedural aspects of criminal law in the context and for the purpose of mutual recognition and judicial cooperation, the latter is the legal basis for harmonisation of the substantive elements of criminal law and criminal offences. Both of these provisions thus have their own scope of application. They simply concern different matters.
49. Second, one could also suggest that the applicability of Directive 2012/13 should be limited to criminal procedures that concern crimes that, although defined at the national level, contain certain cross-border elements.
50. That in turn leads to the question how such a cross-border element in a crime would be defined. What would constitute a ‘Euro-theft’ or ‘Euro-murder’? Would it be enough for the objective elements of the crime to have a cross-border dimension? Thus, would either the victim, or the perpetrator (or even any other party involved) have to have their habitual residence in another Member State? Would it matter where the murder weapon came from? Drawing inspiration from the logic of the free movement-related case-law, would there be a cross-border crime if both the victim and the perpetrator reside in the same Member State, but the deadly weapon was produced in another Member State?
51. Assuming that it is possible to agree on the correct defining criterion in this respect (which would have to be done differently in respect of different crimes, taking into account the specificities of their constitutive elements), would it then mean that a Member State could provide for two sets of procedural rules to be applied alternatively depending on whether the criminal matter at hand is ‘national-only’ or ‘cross-border’? What would happen if the cross-border element is identified only at a later stage of the criminal proceedings within which only ‘national-only’ criminal provisions have been considered? Would the entire procedure have to be repeated according to the ‘other’ set of procedural laws?
52. Thus, there is quite logically only to be one set of criminal rules that must, in view of the context and purpose that the EU legislature intended to achieve by enacting the respective part of the Stockholm programme, (17) be applicable to any national criminal procedure, irrespective of the existence of any cross-border element in the individual case. However, it is also due to the spelling out of the (indeed) rather questionable consequences of that proposition, in which a criminal procedure would be sliding in and out of EU law requirements based on a barely predictable appearance of a cross-border element any time in the course of the procedure (or even after that), that it becomes abundantly clear why that cannot be the case.
53. Finally, why an overall cross-border objective stated in the primary law is generally not to be used to limit the applicability of secondary law instruments adopted on that legal basis, provided that those secondary law instruments do not themselves state explicitly otherwise, can also be demonstrated by looking at other provisions of the Treaty. Another example might be provided by the harmonising measures adopted under Article 114 TFEU. Those measures have to fulfil the objective set out in Article 26 TFEU. The second paragraph of the latter provision states that its objective is the establishment of the internal market ‘without internal frontiers in which the free movement of goods, persons, services and capital is ensured …’. Yet, it is rather clear that the primary-law basis simply does not mean that the legislation adopted under Article 114 TFEU would be applicable to only cross-border situations. Harmonising legislative instruments adopted on that basis (or its predecessor) range from, for example Directive 93/13/EEC on unfair terms in consumer contracts, (18) to Directive 2009/48/EC on the safety of toys, (19) or to Directive 2011/7/EC on combating late payment in commercial transactions. (20) Yet, those instruments clearly apply to purely domestic legal situations and it has not been seriously suggested that that should be otherwise, (21) such as for example that there should be protection against unfair terms in consumer contracts only if there is a cross-border (or free movement) element in the individual case.
54. In sum, contrary to the suggestions of the Italian Government, the applicability of Directive 2012/13 is not limited to cases that have a ‘cross-border’ dimension.
B. Relevant provisions of Directive 2012/13
55. In its order for reference and the question submitted, the referring court specifically mentions Article 2(1), Article 3(1)(c), and Article 6(1), 6(2) and 6(3) of Directive 2012/13 as being relevant to assess the compatibility of the national provisions with EU law.
56. In the submissions of the civil party in the main proceedings, the submissions of the governments mentioned at point 25 above, as well as those of the Commission, it was expressed, in essence, that neither those provisions nor any other provision of Directive 2012/13 can really be said to govern the situation in the main proceedings.
57. The view of the Netherlands Government, and on a subsidiary basis also of the Polish Government, is that the problem at issue does not fall within the scope of Directive 2012/13. Therefore EU law does not preclude the legislation at issue.
58. The Hungarian Government states that EU law does not harmonise the conditions under which it is possible to apply for the negotiated penalty. That question has to be distinguished from the issue as to whether the accused person has received the necessary information about the reclassification of the acts that he has allegedly committed, which falls under Article 6(4) of Directive 2012/13. However, that provision does not preclude a difference in the legal effects, such as that at issue.
59. Likewise, the Commission notes that Article 6(4) of Directive 2012/13 does not provide for any indications as to how the information about a modification to the accusation should be provided to the accused persons. It does not govern the legal consequences that will flow from the provision of information concerning the modification of the legal classification of the accusation.
60. I agree. While the obligations defined in Directive 2012/13 have to be taken into account in any criminal proceedings, none of the provisions quoted by the referring court seems to be directly relevant for the situation in the main proceedings. None of them imposes any obligation on the Members States that would preclude the series of events as they unfolded on the national level.
61. It is true that Article 6(4), read in combination with Article 6(1) and in the light of recital 29 of Directive 2012/13, concerns the obligation of the Member State to provide the suspects or accused persons promptly with information about any changes to the accusation in order to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence. It is also true that the situation in the present case concerned a change to the accusation that occurred when the Defendant was informed that the acts of which he had been accused might be legally reclassified as a result of his confession.
62. Nevertheless, it follows from the order for reference that it has not been alleged that that information has not been provided or has not been provided promptly. What is being challenged is the impossibility to apply for the negotiated penalty at the given stage of the proceedings. Thus, effectively, the suggestion appears to be that an equation exists between ability, at a given stage of the procedure, to apply for the negotiated penalty and (full) rights of the defence. Or rather there appears to be an overinclusion of all the potential consequences occurring downstream in the criminal procedure following the fact that there was a change in the accusation and their effective subsumption under the notion of the rights of the defence.
63. I do not think that either Article 6(4), or any other parts of Article 6 of Directive 2012/13, ought to be approached in this way. If that were to be the case, then anything and everything occurring in a criminal procedure following a change in the accusation would be covered by Article 6(4) of Directive 2012/13 and thus potentially prevented, which is clearly incorrect. Thus, although there certainly is some ‘keyword’ overlap (‘change to accusation’, ‘the fairness of the proceedings’) between Article 6(4) and the situation before the national court, the fact remains that the situation in the main proceedings is simply not one to which that directive was intended to apply.
64. This naturally begs the question: what then was Article 6(4) supposed to govern? In other words: what should be understood by the notions of ‘information’ and by the ‘fairness of the proceedings’ contained therein?
65. First, the notion of information contained in that provision refers to the communication of a change to the accusation so that the suspected or accused person can react accordingly to defend his or her position. The information must be provided in a manner that allows the concerned person to respond effectively to any change in the description of what the person is accused of and the legal classification thereof.
66. I do not think that Article 6(4) of Directive 2012/13 should be interpreted as amounting to an obligation for the Member States’ courts to provide the persons concerned with the information related to any and every consequence that a change in the accusation may trigger across the entire criminal procedure, (22) and even less so give them the power to prevent such a consequence from occurring. The right to information cannot be understood as a substitute for legal advice nor as a gateway for the review of any and every element of the criminal procedure following the communication of information, as each element occurring within given criminal proceedings is likely to involve some kind of information.
67. The proper scope of Article 6(4) should be assessed considering the overall scheme of Directive 2012/13. Directive 2012/13 starts by defining its subject matter and scope. Article 1 and Article 2 respectively set out that that directive concerns ‘the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them’ and that it ‘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’. Next, Article 3 of Directive 2012/13 confers on the Member States the obligation to provide information to the concerned persons, as a minimum, of the rights they have that are listed in that directive. Out of that list, the right to be informed of the accusation (and only this one) is then detailed in Article 6. Article 4 concerns the obligation to provide information to the arrested or detained person about four additional categories of rights. Of this additional list, it is the right of access to the case file (and only this one) that is further set out in Article 7 of Directive 2012/13.
68. It is thus clear that the information obligation under Article 6(4) of Directive 2012/13 was simply not intended to cover all possible aspects of the criminal procedure. That notion, used in this context, should be understood as referring (and as being limited) to the accusation (and the change thereto), that is to say, details about the acts that the accused person ‘is alleged to have committed and on which the accusation is based, [and] the legal characterisation’. (23) That information must be provided in a way that ensures the accused is able to understand, reply, and to dispute it, if he so wishes.
69. Second, the notion of fairness of proceedings is, for its part, indeed a broad one. As in principle explained by the European Court of Human Rights (‘ECtHR’), it concerns the examination of the criminal proceedings considered as a whole, in the light of the specific features and circumstances of the case. (24) It follows that not every incident within the criminal proceedings entails a breach of the fairness of proceedings, but some of course may, depending on their importance within the given proceedings. (25)
70. However, for the present case and considering the question posed by the referring court, the assessment of the respect for the fairness of proceedings is necessarily linked to those rights explicitly governed by Directive 2012/13. In other words, fairness should be assessed with regard to those rights, and not in general, detached from the rights guaranteed by the directive. There must be a normative correlation between the material scope of Directive 2012/13 and the notion of the fairness of the proceedings. Were it allowed to be otherwise, then any and every aspect of national criminal procedures would suddenly become reviewable with regard to the fairness of the proceedings and/or respect for the rights of the defence.
71. In other words, the specific obligations defined in Directive 2012/13 constitute a specific expression of how the fairness of proceedings is to be guaranteed with respect to the provision of information to the accused persons and suspects. There are certainly other aspects of criminal procedure relevant to safeguarding that fairness, such as the right of access to a lawyer, legal aid, the right to interpretation and translation, procedural safeguards for children or, the presumption of innocence. All those aspects may be regulated by specific directives. (26) However, other aspects, not covered by those directives or Directive 2012/13, such as conditions of applicability of a negotiated penalty, clearly remain governed by national criminal law.
72. The fact that that, as well as other questions, can indeed be relevant for the overall fairness of proceedings cannot be used to interpret Article 6(4) of the directive or its other provisions so broadly so as to license the review of any and every aspect of the criminal procedure, however remote it is from the specific obligation stated in Directive 2012/13 itself. Used in this way, Directive 2012/13 would no longer be an instrument of minimal harmonisation of specific elements of the rights of the defence that it expressly provides for, but it would become the instrument opening the door for review of any and every element of national criminal procedure. That, in my view, can hardly have been the intention of the EU legislature. It should certainly not be the policy of this Court when interpreting Directive 2012/13 and other directives borne out of the Stockholm Programme.
73. In the light of the foregoing, my interim conclusion is that Directive 2012/13 must be interpreted as not precluding procedural rules such as the ones at issue in the main proceedings that allow the accused person to request a negotiated penalty after the beginning of the trial only if there is a change to the accusation that is of a factual nature, and not when the change is of a legal nature.
C. Implications of Article 48(2) of the Charter for the present case
74. By its preliminary question, the referring court also invites the Court to consider the implications, for the present case, of Article 48 of the Charter. As the first paragraph of that provision concerns the presumption of innocence, it would appear that only the second paragraph is of relevance. The latter paragraph states that ‘respect for the rights of the defence of anyone who has been charged shall be guaranteed’.
75. The role of the Charter in the interpretation and application of essentially procedural legal instruments, which give expression to and flesh out its own provisions, could give rise to certain confusion (2). However, before addressing that issue, the first question to be clarified is whether the case at hand falls within the scope of EU law so as to render the Charter applicable (1).
1. Scope of EU Law
76. It might be recalled that ‘the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations’. (27)
77. However, what of the fact that, as follows from my analysis in the previous section, the specific issue raised in the case in the main proceedings, namely the possibility for an accused person to apply for a negotiated penalty, is not specifically provided for in Article 6(4) or any other provision of Directive 2012/13? Would that mean that the Charter would not be generally applicable for the purpose of the assessment that has led to that conclusion?
78. I do not think that such a position can be maintained. As noted above, secondary EU law, namely Directive 2012/13, is called upon to be applicable, in general terms, to a situation such as the one in the main proceedings. (28) It simply does not, following a detailed interpretative analysis of that instrument (including the interpretation of its notions in the light of the Charter), provide for any specific obligation that would preclude the national rule in question. In other words, Directive 2012/13 remains, on the facts of the case in the main proceedings, (possibly) applicable, even though the subsequent actual assessment of the case may lead (as it does here) to the conclusion that that directive (interpreted in the light of the Charter) does not preclude the specific national provision.
79. To state otherwise in such a case would amount to backwards reasoning out of a certain conclusion that has already been reached: because neither Directive 2012/13, nor effectively the Charter, preclude a certain national provision (the result): they are not even applicable. But in order to arrive at such a conclusion, a number of interpretative assessments had to be made, in which both are, in general, applied. (29)
80. Furthermore, it might also be useful to recall that there are a number of ways in which the Charter might apply to a given case. That application is not just limited to (in)direct review of national laws and their compatibility with the Charter, but can also concern elements of conform interpretation of both national and EU law itself. In the present case, in order to carry out the analysis of the relevant provision of Directive 2012/13 and to determine its scope and material content, due regard must be had to the Charter. (30) It is in that sense that the Charter ‘applies’.
81. In sum, wherever EU law goes, or wherever EU law needs to be interpreted, the Charter will follow. That is the fate of a ‘shadow’. (31) Therefore, when examining the implications of Directive 2012/13 for the situation in the main proceedings, the Charter must apply. That general statement is nonetheless quite indeterminate to the key question, namely what exactly the role of the Charter is supposed to be in situations like the present one.
2. Specific role of the Charter in the present case
82. The specific role of the Charter in the present case can be envisaged through three possible scenarios. The variables within those are what is impacted by a Charter provision (EU law or national law) and what is the function of Charter provisions (yardstick for review or of conform interpretation).
83. First, the Charter could be used as a yardstick for the review of validity of the EU provision at issue. That will always be the case: wherever (substantive, secondary) EU law extends, the Charter will be there to control it. (32) That being said, the illegality of any provisions of Directive 2012/13 has not been raised.
84. Second, the Charter must be used as a tool of conform interpretation in order to identify the meaning of indeterminate notions of EU law, be it for the interpretation of those notions in EU law itself or for the same exercise with regard to the national law implementing measures.
85. Third, when Member States ‘implement’ EU law in the sense of Article 51(1) of the Charter, they must abide by Charter rights. In this scenario, the specific EU law provision serves as a ‘gateway’ to the consideration of Charter rights. This is regardless of whether a specific instrument of EU law contains explicit reference to fundamental rights. In this way, fundamental rights apply, to a great extent, transversally, that is, independently of the precise material content of the respective EU-law provision which initially triggered its applicability.
86. In particular, the ‘procedural’ provisions of the Charter do in fact generally apply in this way in connection with substantive (material) provisions of EU secondary law that in themselves contain no or very few provisions on how they should be enforced. The Court has declared that even if not expressly regulated by the provisions of EU law establishing substantive rights or obligations, respect for procedural fundamental rights, such as the right to be heard, is required. In particular, the principle of respect for the rights of the defence applies when Member States act or take decisions within the scope of EU law, even if the applicable EU legislation does not expressly provide for specific procedural requirements. (33) In this way, Charter provisions are likely to be used as direct yardsticks for the review of provisions of national law. Notable examples in this area include VAT law and national tax procedures. (34)
87. Could such use of the Charter be contemplated with regard to Directive 2012/13 and, in the present case, to the issue of the availability of the negotiated penalty?
88. Unless the application of the Charter is to be turned into a true ‘Game of Shadows’, I do not think that that could be the case. Reverting to the metaphor already recalled above, the idea of a Charter provision as a shadow of EU law relies on the suggestion that there is a substantive notion of EU law that casts a (procedural) shadow in the first place. It is, however, difficult to see what ‘procedural, enforcement shadow’ a procedural provision, itself overlapping with (or further implementing) a Charter provision itself, would cast. Shadows cannot cast their own shadows.
89. Thus, put in less shadowy terms, in cases of procedural rights that overlap with a Charter provision (and that further develop it),(35) such as those provided for by Directive 2012/13, the Charter cannot serve as an independent and further yardstick of review of national provisions clearly not covered by the scope of that secondary law instrument, thus expanding the scope of application of EU law.
90. Suggesting otherwise would mean, in the present case, that the mere fact that Article 6(4) of Directive 2012/13 mentions the rights of the defence (and fairness of proceedings when considered in the context of Article 6(1) of the same directive) would allow for any and every element of national criminal procedure to be reviewed in the light of the notion of rights of the defence and fair trial as guaranteed by the Charter. Following that approach, the initial gateway that made access to the Charter possible would simply be forgotten. (36)
91. It should be recalled that the jurisdiction of this Court, with regard to the Charter when applied to the Member States, is defined functionally. It is linked to the applicability of a given secondary or primary EU-law provision. Such jurisdiction must clearly be distinguished, with regard to the Member States’ implementation of EU law, from an inherent fundamental rights jurisdiction, (37) typically vested in national constitutional courts and that of the ECtHR.
92. Thus, with regard to the third option of application of the Charter outlined above, it might be concluded that in cases such as the present one, the Charter cannot be used to expand the scope and content of the procedural obligations defined in the respective EU secondary-law rule so as to create transposition obligations that clearly do not exist under that specific secondary-law rule.
93. Coming back to the second option mentioned above, interpretation in conformity with the Charter is, in general terms, mandatory. Thus, I am of the view (and as the Commission in principle suggests) that in the present case the Charter must certainly be referred to in order to establish the correct interpretation of the notions employed by Directive 2012/13 including, in the present case, the right to be informed promptly of any change to the accusation within the meaning of Article 6(4) of that directive. (38)
94. In interpreting Article 6(3) of the ECHR (which is the equivalent of Article 48(2) of the Charter (39)) and more specifically in interpreting Article 6(3)(a) of the ECHR (which concerns the right to be informed about the accusation), the ECtHR stressed that special attention is to be paid to the notification of the accusation (that is the acts allegedly committed on which the accusation is based as well as their legal characterisation) as those elements ‘play a crucial role in the criminal process …’. Although that provision of the ECHR does not stipulate any particular manner in which the accused person is to be informed, it is connected to the accused’s right to prepare his defence under Article 6(3)(b) and its scope ‘must in particular be assessed in the light of the more general right to a fair hearing guaranteed by Article 6 § 1 of the Convention…’. (40) Basing itself on those considerations, the ECtHR found that a violation of the ECHR had occurred in situations where a second instance court had changed the legal classification of the acts at issue, as late in the proceedings as the stage at which the judgment was handed down. That left the accused with essentially no possibility to defend himself. (41)
95. Similarly, in Covaci, the Court stated (42) that although ‘Directive 2012/13 does not regulate the procedures whereby information about the accusation, provided for in Article 6 of that directive, must be provided to that person …, those procedures cannot undermine the objective referred to inter alia in Article 6 of Directive 2012/13, which, as is also apparent from recital 27 in the preamble to that directive, consists in enabling suspects or persons accused … to prepare their defence and in safeguarding the fairness of the proceedings’. (43)
96. Yet again, in view of such an understanding of the notions in question, it has not been argued that there has been a lack of prompt information concerning the change in accusation, and that meaning the Defendant has been deprived of the possibility to defend himself in the proper sense of the word. For that reason, I fail to see how the situation at issue in the main proceedings would be prevented by the considerations of the rights of the defence or fair trial.
97. I wish to stress again that that observation is made within the scope of Article 6(4) of Directive 2012/13 and does not relate to the consideration of the situation at issue with the rights of the defence or fair trial ‘in general’. If conform interpretation is to remain ‘interpretation’, it cannot modify the scope of application of the secondary law instrument in question. If it were allowed to do so, then conform interpretation might rather quickly circumvent the limits of Article 51(1) of the Charter.
98. Such a disguised direct application of the Charter could take the following form: First, a provision such as Article 6(4) of Directive 2012/13 refers to an indeterminate legal notion, such as ‘fairness of the proceedings’ or ‘the effective exercise of the rights of the defence’ in Article 6(1). Second, as the directive itself does not define such notions, an explanation of their content is sought, via conform interpretation, in the provisions of the Charter, or via the bridge of Article 52(3) of the Charter, the ECHR and the case-law of the ECtHR. Third, the (naturally rather wide) scope and meaning of those notions taken from those contexts is then brought back to the level of EU secondary law, while somewhat omitting the scope of application of the specific provision of secondary law where the notion was taken from. Fourth, national rules start being reviewed in general as to their compatibility with the notions of ‘fairness of the proceedings’ and ‘the right to a fair trial’, with the scope of those notions becoming detached from the actual scope of application of the secondary law instrument in question.
99. For the same reasons as outlined above with regard to the third option, (44) it can only be repeated that this is not the way the Charter ought to be used in such a context. If that were to be the case, then conform interpretation would quickly turn into direct review in disguise, with EU secondary law not operating as any functional limitation to the jurisdiction of this Court in matters of fundamental rights, but more of a poorly disguised gateway for asserting inherent jurisdiction in matters of fundamental rights review with regard to any Member States’ laws.
100. In the light of those considerations, my conclusion is that Article 48(2) of the Charter, either when read in conjunction with Article 6(4) of Directive 2012/13, or when regarded independently, does not alter the outcome already reached in any way: EU law does not preclude procedural rules such as the one at issue in the main proceedings that allow the accused person to request a negotiated penalty after the beginning of the trial only if there is a change to the accusation that is of a factual nature, and not when the change is of a legal nature.
V. Conclusion
101. In the light of the preceding analysis, I suggest that the Court reply as follows to the Tribunale di Brindisi (District Court, Brindisi, Italy):
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings and Article 48(2) of the Charter of Fundamental Rights of the European Union does not preclude procedural rules such as the ones at issue in the main proceedings that allow the accused person to request a negotiated penalty after the beginning of the trial only if there is a change to the accusation that is of a factual nature, and not when the change is of a legal nature.