JUDGMENT OF THE COURT
24 November 1998 (1)
(Freedom of movement for persons Equal treatment Language rulesapplicable to criminal proceedings)
In Case C-274/96,
REFERENCE to the Court under Article 177 of the EC Treaty by the PreturaCircondariale di Bolzano, Sezione Distaccata di Silandro (Italy), for a preliminaryruling in the criminal proceedings before that court against
Horst Otto Bickel,
on the interpretation of Articles 6, 8a and 59 of the EC Treaty,
composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet,G. Hirsch and P. Jann (Presidents of Chambers), G.F. Mancini, J.C. Moitinho deAlmeida, C. Gulmann, J.L. Murray, H. Ragnemalm (Rapporteur), L. Sevón,M. Wathelet and R. Schintgen, Judges,
Advocate General: F.G. Jacobs,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
the Italian Government, by Professor Umberto Leanza, Head of the LegalAffairs Department of the Ministry of Foreign Affairs, acting as Agent,assisted by Pier Giorgio Ferri, Avvocato dello Stato,
the Commission of the European Communities, by Pieter van Nuffel, of itsLegal Service, and Enrico Altieri, a national civil servant on secondment tothat service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mr Bickel and Mr Franz, represented by KarlZeller, of the Merano Bar; of the Italian Government, represented by Pier GiorgioFerri; and of the Commission, represented by Pieter van Nuffel and Lucio Gussetti,of its Legal Service, acting as Agents, at the hearing on 27 January 1998,
after hearing the Opinion of the Advocate General at the sitting on 19 March 1998,
gives the following
- By orders of 2 August 1996, received at the Court on 12 August 1996, the PreturaCircondariale, Sezione Distaccata di Silandro (District Magistrates' Court, SilandroDivision), Bolzano, referred to the Court for a preliminary ruling under Article 177of the EC Treaty a question on the interpretation of Articles 6, 8a and 59 of theEC Treaty.
- That question was raised in criminal proceedings, brought against Mr Bickel andMr Franz respectively.
- Mr Bickel is a lorry driver of Austrian nationality, resident at Nüziders in Austria. On 15 February 1994, while driving his lorry at Castelbello in the Trentino-AltoAdige Region of Italy, he was stopped by a carabinieri patrol and charged withdriving while under the influence of alcohol.
- Mr Franz, a German national resident at Peissenberg in Germany, visited theTrentino-Alto Adige as a tourist. On 5 May 1995, in the course of a customsinspection, he was found to be in possession of a type of knife that is prohibited.
- In each case, the accused made a declaration in the presence of the DistrictMagistrate of Bolzano that he had no knowledge of Italian and, relying on rules forthe protection of the German-speaking community of the Province of Bolzano,requested that the proceedings be conducted in German.
- Article 99 of Presidential Decree No 670 of 30 August 1972 concerning the specialarrangements for the Trentino-Alto Adige Region (GURI No 301 of 20 November1972) provides that the German language is to have the same status there asItalian.
- Under Article 100 of that decree, the German-speaking citizens of the Province ofBolzano (the area where most of the German-speaking minority live) are entitledto use their own language in relations with the judicial and administrativeauthorities based in that province or entrusted with responsibility at regional level.
- Article 13 of Presidential Decree No 574 of 15 July 1988 (hereinafter 'Decree No574/88) on the implementation of the special arrangements for the Trentino-AltoAdige with regard to the use of German or Ladin in relations between citizens andthe public administration and in judicial proceedings (GURI No 105 of 8 May1989) provides that the administrative and judicial authorities must, in their dealingswith citizens of the Province of Bolzano and in documents concerning them, use thelanguage of the person concerned.
- Article 14 of Decree No 574/88 provides moreover that, in cases of flagrante delictoor arrest, the judicial or police authority must, before interviewing the personconcerned or taking any other procedural step, ask him to state his mother tongue. If he is a German-speaker, the interview and all other steps in the procedure mustbe conducted in that language.
- Lastly, pursuant to Article 15 of Decree No 574/88, the judicial authorityresponsible for drawing up a procedural document to be communicated to orserved on a suspect or accused person must use that person's presumed language,which is determined on the basis of his known membership of a language groupand other information which has come to light during the procedure. Within tendays of communication or service of the first procedural document, the suspect oraccused person may contest the language used by making a declaration in personor by arranging to have such a declaration submitted to the prosecuting authority. Where the latter option is exercised, the judicial authority must make sure that anydocuments already drawn up are translated and that all documents thereafter aredrawn up in the language designated.
- Since the national court was uncertain whether the rules of procedure applicableto the citizens of the Province of Bolzano must, under Community law, be extendedto nationals of other Member States visiting the province, it decided to stay
proceedings pending a preliminary ruling from the Court of Justice on the followingquestion:
'Do the principle of non-discrimination as laid down in the first paragraph ofArticle 6, the right of movement and residence for citizens of the Union as laiddown in Article 8a and the freedom to provide services as laid down in Article 59of the Treaty require that a citizen of the Union who is a national of one MemberState but is in another Member State be granted the right to have criminalproceedings against him conducted in another language where nationals of the hostState enjoy that right in the same circumstances?
- By that question, the national court is essentially asking whether the right conferredby national rules to have criminal proceedings conducted in a language other thanthe principal language of the State concerned falls within the scope of the Treatyand must accordingly comply with Article 6 thereof. If so, the national court alsoasks whether Article 6 of the Treaty precludes national rules, such as those in issue,which, in respect of a particular language other than the principal language of theMember State concerned, confer on citizens whose language is that particularlanguage and who are resident in a defined area the right to require that criminalproceedings be conducted in that language, without conferring the same right onnationals of other Member States travelling or staying in that area, whose languageis the same.
The first part of the question
- The first point to note is that in the context of a Community based on theprinciples of freedom of movement for persons and freedom of establishment, theprotection of the linguistic rights and privileges of individuals is of particularimportance (Case 137/84 Mutsch  ECR 2681, paragraph 11).
- Secondly, by prohibiting 'any discrimination on grounds of nationality, Article 6of the Treaty requires that persons in a situation governed by Community law beplaced entirely on an equal footing with nationals of the Member State (Case186/87 Cowan  ECR 195, paragraph 10).
- Situations governed by Community law include those covered by the freedom toprovide services, the right to which is laid down in Article 59 of the Treaty. TheCourt has consistently held that this right includes the freedom for the recipientsof services to go to another Member State in order to receive a service there(Cowan, paragraph 15). Article 59 therefore covers all nationals of Member Stateswho, independently of other freedoms guaranteed by the Treaty, visit anotherMember State where they intend or are likely to receive services. Such persons and they include both Mr Bickel and Mr Franz are free to visit and move aroundwithin the host State. Furthermore, pursuant to Article 8a of the Treaty, '[e]verycitizen of the Union shall have the right to move and reside freely within the
territory of the Member States, subject to the limitations and conditions laid downin this Treaty and by the measures adopted to give it effect.
- In that regard, the exercise of the right to move and reside freely in anotherMember State is enhanced if the citizens of the Union are able to use a givenlanguage to communicate with the administrative and judicial authorities of a Stateon the same footing as its nationals. Consequently, persons such as Mr Bickel andMr Franz, in exercising that right in another Member State, are in principleentitled, pursuant to Article 6 of the Treaty, to treatment no less favourable thanthat accorded to nationals of the host State so far as concerns the use of languageswhich are spoken there.
- Although, generally speaking, criminal legislation and the rules of criminalprocedure such as the national rules in issue, which govern the language of theproceedings are matters for which the Member States are responsible, the Courthas consistently held that Community law sets certain limits to their power in thatrespect. Such legislative provisions may not discriminate against persons to whomCommunity law gives the right to equal treatment or restrict the fundamentalfreedoms guaranteed by Community law (see, to that effect, Cowan, paragraph 19).
- Consequently, in so far as they may compromise the right of nationals of otherMember States to equal treatment in the exercise of their right to move and residefreely in another Member State, national rules concerning the language to be usedin criminal proceedings in the host State must comply with Article 6 of the Treaty.
- Accordingly, the answer to the first part of the question referred for a preliminaryruling must be that the right conferred by national rules to have criminalproceedings conducted in a language other than the principal language of the Stateconcerned falls within the scope of the Treaty and must comply with Article 6thereof.
The second part of the question
- In the submission of Mr Bickel and Mr Franz, if any discrimination contrary toArticle 6 of the Treaty is to be avoided, the right to have proceedings conductedin German must be extended to all citizens of the Union, since it is alreadyavailable to nationals of one of the Member States.
- The Italian Government contends that the only nationals upon whom the right inquestion is conferred are those who are both residents of the Province of Bolzanoand members of its German-speaking community, the aim of the rules in issuebeing to recognise the ethnic and cultural identity of persons belonging to theprotected minority. Accordingly, the right of that protected minority to the use ofits own language need not be extended to nationals of other Member States who
are present, occasionally and temporarily, in that region, since provision has beenmade to enable such persons to exercise the rights of the defence adequately, evenwhere they have no knowledge of the official language of the host State.
- The Commission points out that the right to have proceedings conducted inGerman is not accorded to all Italian nationals, but only to those who are residentin the Province of Bolzano and who belong to its German-speaking community. Accordingly, it is for the national court to determine whether the rules in issuegenuinely give rise to discrimination on grounds of nationality, to identify the groupof persons discriminated against and then to determine whether such discriminationis justifiable by reference to objective circumstances.
- The documents before the Court show that the Italian rules restrict the right tohave proceedings conducted in German to German-speaking citizens of theProvince of Bolzano. It follows that German-speaking nationals of other MemberStates, particularly Germany and Austria such as Mr Bickel and Mr Franz whotravel or stay in that province cannot require criminal proceedings to be conductedin German despite the fact that the national rules provide that the Germanlanguage is to have the same status as Italian.
- In those circumstances, it appears that German-speaking nationals of otherMember States travelling or staying in the Province of Bolzano are at adisadvantage by comparison with Italian nationals resident there whose languageis German. Whereas a member of the latter group may, if charged with an offencein the Province of Bolzano, have the proceedings conducted in German, a German-speaking national from another Member State, travelling in that province, is deniedthat right.
- Even on the assumption that, as the Italian Government maintains, German-speaking nationals of other Member States who are resident in the Province ofBolzano may rely on the rules in issue and submit their pleadings in German sothat there is no discrimination on grounds of nationality as between residents of theregion Italian nationals are at an advantage by comparison with nationals of otherMember States. The majority of Italian nationals whose language is German arein a position to demand that German be used throughout the proceedings in theProvince of Bolzano, because they meet the residence requirement laid down bythe rules in issue; the majority of German-speaking nationals of other MemberStates, on the other hand, cannot avail themselves of that right because they do notsatisfy that requirement.
- Consequently, rules such as those in issue in the main proceedings, which make theright, in a defined area, to have criminal proceedings conducted in the language ofthe person concerned conditional on that person being resident in that area, favournationals of the host State by comparison with nationals of other Member Statesexercising their right to freedom of movement and therefore run counter to theprinciple of non-discrimination laid down in Article 6 of the Treaty.
- A residence requirement of that kind can be justified only if it is based on objectiveconsiderations independent of the nationality of the persons concerned and isproportionate to the legitimate aim of the national provisions (see, to that effect,Case C-15/96 Schöning-Kougebetopoulou  ECR I-47, paragraph 21).
- However, it is clear from the order for reference that this is not the position in thecase of the rules in issue.
- The Italian Government's contention that the aim of those rules is to protect theethno-cultural minority residing in the province in question does not constitute avalid justification in this context. Of course, the protection of such a minority mayconstitute a legitimate aim. It does not appear, however, from the documentsbefore the Court that that aim would be undermined if the rules in issue wereextended to cover German-speaking nationals of other Member States exercisingtheir right to freedom of movement.
- Furthermore, it should be recalled that Mr Bickel and Mr Franz pointed out at thehearing, without being contradicted, that the courts concerned are in a position toconduct proceedings in German without additional complications or costs.
- Consequently, the answer to the second part of the question referred for apreliminary ruling must be that Article 6 of the Treaty precludes national ruleswhich, in respect of a particular language other than the principal language of theMember State concerned, confer on citizens whose language is that particularlanguage and who are resident in a defined area the right to require that criminalproceedings be conducted in that language, without conferring the same right onnationals of other Member States travelling or staying in that area, whose languageis the same.
- The costs incurred by the Italian Government and the Commission, which havesubmitted observations to the Court, are not recoverable. Since these proceedingsare, for the parties to the main proceedings, a step in the proceedings pendingbefore the national court, the decision on costs is a matter for that court.
On those grounds,
in answer to the question referred to it by the Pretura Circondariale di Bolzano,Sezione Distaccata di Silandro, by orders of 2 August 1996, hereby rules:
1. The right conferred by national rules to have criminal proceedingsconducted in a language other than the principal language of the Stateconcerned falls within the scope of the EC Treaty and must comply withArticle 6 thereof.
2. Article 6 of the Treaty precludes national rules which, in respect of aparticular language other than the principal language of the Member Stateconcerned, confer on citizens whose language is that particular languageand who are resident in a defined area the right to require that criminalproceedings be conducted in that language, without conferring the sameright on nationals of other Member States travelling or staying in that area,whose language is the same.
ManciniMoitinho de Almeida
Delivered in open court in Luxembourg on 24 November 1998.
G.C. Rodríguez Iglesias