OPINION OF ADVOCATE GENERAL
JACOBS
delivered on 19 March 1998 (1)
Case C-274/96
Criminal proceedings against Horst Otto Bickel
and Ulrich Franz
- 1.
- Can a national of a Member State rely on the principle of non-discrimination on grounds of nationality in order to be granted the right to have
criminal proceedings against him in another Member State conducted in a language
other than the official language of that other State where that right is granted to
certain nationals of that Member State? That is the issue raised in the Italian
criminal proceedings against Mr Bickel and Mr Franz. Mr Bickel is an Austrian
lorry driver who is being prosecuted for driving under the influence of alcohol;
Mr Franz is a German national being prosecuted for carrying a prohibited knife
while visiting Alto Adige as a tourist. The criminal proceedings against them are
taking place in Bolzano, situated in the Trentino-Alto Adige Region, where because
of the presence of a large German-speaking minority German has the same status
as Italian. Thus residents of the Province of Bolzano have the right to opt for the
use of German in criminal proceedings. The question raised in the main
proceedings is whether Community law requires that right to be extended to
Mr Bickel and Mr Franz.
Background
- 2.
- Article 6 of the Italian Constitution provides that the Republic shall protect
linguistic minorities. To give effect to that provision, Article 99 of Presidential
Decree No 670/1992 provides that in the Trentino-Alto Adige Region German is
to have the same status as Italian, the official language of the State. Article 100
of the Decree provides inter alia that German-speaking citizens of the Province of
Bolzano are to have the right to use their own language in relations with judicial
bodies situated in that province. It appears that what is meant by 'citizens is
persons who are resident in Bolzano.
- 3.
- Presidential Decree No 574/1988 lays down further rules concerning the use
of languages in relations between certain judicial bodies and the citizens of the
Province of Bolzano. Under Article 15 of that Decree, a judicial body must, when
drawing up a procedural document to be communicated to or served on a suspect
or accused person, 'use his presumed language, to be determined on the basis of
his known membership of a language group and other information already obtained
in the course of the proceedings. Under Article 16 an accused person can opt for
the other language (German or Italian, depending on the case) when first
questioned by the judge. Under Article 17 an accused person may decide,
following the first examination, 'by declaration signed by him and submitted in
person or through his counsel to the prosecuting authority, that the proceedings be
conducted in the other language.
- 4.
- The Italian Government explains in its written observations that there are
three substantial linguistic minorities in Italy, namely German, French and Slovene.
There is however no uniform set of rules protecting those minorities; rather their
protection is regulated in the framework of the rules on autonomy pertaining to the
regions where they are living (respectively Trentino-Alto Adige, Valley of Aosta
and Friulia Giulia).
- 5.
- It is common ground that the rules in issue concern only residents of
Bolzano. Other Italian citizens do not have the right to opt for the use of German
in court proceedings.
- 6.
- Mr Bickel is an Austrian lorry driver of German mother tongue, residing in
Nüziders, Austria. On 15 February 1994 he was stopped in the vehicle he was
driving by a police patrol in Castelbello (Bolzano) and charged with the offence of
driving under the influence of alcohol, contrary to Article 186(2) of the Codice
della Strada (Traffic Code). On 24 July 1995 the Bolzano Magistrate delivered a
judgment in the Italian language imposing on the defendant a fine of LIT 876 000
(partly in place of five days' imprisonment) and suspending his driving licence for
25 days. Since it was not possible to serve the judgment on him, the Bolzano
Magistrate revoked it on 5 October 1995 and issued a summons requiring him to
appear before the ordinary courts in this case the Pretura Circondariale di
Bolzano (Bolzano District Magistrates' Court). The revocation was also drawn up
in Italian only. On 21 October 1995 the defendant was requested in German and
Italian to give an address for service in Italy for the purposes of the inquiry into the
alleged offence. The defendant did not answer that request. On 8 March 1996 a
summons to appear at a hearing fixed for 25 June 1996 was served on the
defendant's counsel. The summons, in so far as it related to the charge, was drawn
up in Italian. The hearing was later adjourned to 23 July 1996, the orders for
adjournment being drawn up in Italian. On 5 July 1996 the defendant sent a
document to the judicial authorities in which he declared that he did not know the
Italian language and requested that the proceedings against him should take place
in his mother tongue. At the hearing on 23 July 1996 counsel for the defendant
reiterated that request, relying on Community law and asking for a reference to this
Court.
- 7.
- Mr Franz is a German national of German mother tongue, residing at
Peissenberg, Germany. In May 1995 he visited Alto Adige as a tourist. On 5 June
1995, upon inspection by customs officers at Tubre, he was charged with an offence
contrary to Article 4 of Law 110/75, namely carrying a prohibited knife. On 8
March 1996 a bilingual summons to appear at a preliminary hearing fixed for 25
June 1996 was served on the defendant. That hearing was adjourned to 23 July
1996, the orders for adjournment being drawn up in Italian. On 1 July 1996 the
defendant sent a document to the judicial authorities in which he declared that he
did not know the Italian language and requested that the proceedings against him
should therefore take place in his mother tongue.
- 8.
- In both cases the Pretura Circondariale di Bolzano referred to the Court the
following question:
'Do the principle of non-discrimination as laid down in the first paragraph of
Article 6, the right of movement and residence for citizens of the Union as laid
down in Article 8a and the freedom to provide services as laid down in Article 59
of the Treaty require that a citizen of the Union who is a national of a Member
State and is present in another Member State be granted the right to call for
criminal proceedings against him to be conducted in another language where
nationals of that State in the same circumstances enjoy such a right?
- 9.
- The referring court considers that the Italian rules in issue must be
construed in such a way that all Community citizens may ask for criminal or civil
proceedings to be conducted in German if they so wish. If Community citizens
were not granted that right there would be a manifest breach of the principle of
non-discrimination on grounds of nationality embodied in Article 6 of the Treaty.
The procedural provisions in issue are said to fall within the scope of the Treaty
in the light of the provisions of Article 8a, in particular the right to move freely
conferred upon all citizens of the European Union, and of Article 59 on the
freedom to provide services. The referring court considers that in the
circumstances of the present case there is a sufficiently close link with those
freedoms, and thus with the Treaty, in order to trigger the principle of non-discrimination.
- 10.
- The present case raises two issues: first, whether the choice of language in
the criminal proceedings before the referring court comes within the scope of the
Treaty; and secondly, whether the Italian rules, if construed so as to deny
Mr Bickel and Mr Franz the right to use German, would entail discrimination on
grounds of nationality.
- 11.
- The Court has already had occasion in its ruling in Mutsch (2) to consider
whether a Luxembourg national had the right to use German in criminal
proceedings in a German-speaking municipality of Belgium where Belgian law
granted that right to Belgian nationals residing in that municipality. However,
unlike Mr Bickel and Mr Franz, Mr Mutsch was a migrant worker residing in the
Member State concerned. The Court based its conclusion that he was entitled to
use German on the ground that a migrant worker's right to use his own language
in court proceedings on the same terms as national workers was important in
ensuring his and his family's integration into the host country and hence that it fell
within the meaning of the term 'social advantage in Article 7(2) of Regulation No
1612/68. (3) The ruling does not therefore provide a direct answer to either of the
issues raised by the present case.
The scope of application of the Treaty
- 12.
- Article 6 of the Treaty prohibits discrimination on grounds of nationality
'within the scope of application of this Treaty. The first issue therefore is
whether the putative discrimination in this case falls within the scope of the Treaty.
- 13.
- It may well be that in the case of Mr Franz a sufficient connection with the
Treaty is provided by Council Directive 91/477/EEC of 18 June 1991 on control of
the acquisition and possession of weapons. (4) That directive is aimed at
approximating the weapons legislation of the Member States with a view to
abolishing controls and formalities at intra-Community frontiers. (5) It mainly
concerns firearms, but contains a number of provisions also on other weapons. In
particular, Article 14 obliges Member States to adopt all relevant provisions
prohibiting entry into their territory of a weapon other than a firearm provided that
the national provisions of the Member State in question so permit. Moreover,
Article 16 provides that Member States shall introduce penalties for failure to
comply with the provisions adopted pursuant to the directive.
- 14.
- The order for reference states that Mr Franz was charged following an
inspection by customs officers. If Mr Franz was entering, or had entered, Italy in
possession of a prohibited weapon (or, possibly, if he was seeking to go to another
Member State in possession of such a weapon), his situation would fall within the
ambit of the Community legislation, with the result that the criminal proceedings
against him would be subject to the prohibition of discrimination on grounds of
nationality.
- 15.
- There may however be doubt whether Mr Franz's case can properly be
decided on that ground; and in any event in the case of Mr Bickel there is no such
link with Community law. There appear to be no provisions in the Treaty or in
Community legislation which, as such, might bear on the substance of the charge
brought against Mr Bickel, namely driving under the influence of alcohol.
Mr Bickel's case therefore raises the general issue whether criminal proceedings
against a Community citizen based on alleged facts which occurred while that
citizen exercised his right to free movement come within the scope of application
of the Treaty and are therefore subject to the prohibition of discrimination on
grounds of nationality.
- 16.
- It seems to me that, in the light of Cowan v Trésor public, (6) that question
must receive an affirmative reply. There a British citizen, while visiting France as
a tourist, suffered injury from a violent assault and claimed compensation under a
scheme provided for by the French code de procédure pénale (Code of Criminal
Procedure). He was denied such compensation on grounds of his nationality. The
French Government argued that the national rules did not impose any restriction
on free movement; moreover, the right to compensation was a manifestation of
the principle of national solidarity and presupposed a closer bond with the State
than that of a recipient of services. (7) The Court did not accept that reasoning: (8)
'When Community law guarantees a natural person the freedom to go to another
Member State the protection of that person from harm in the Member State in
question, on the same basis as that of nationals and persons residing there, is a
corollary of that freedom of movement. It follows that the prohibition of
discrimination is applicable to recipients of services within the meaning of the
Treaty as regards protection against the risk of assault and the right to obtain
financial compensation provided for by national law when that risk materialises.
The fact that the compensation at issue is financed by the Public Treasury cannot
alter the rules regarding the protection of the rights guaranteed by the Treaty.
- 17.
- The Court likewise rejected the argument that the compensation in question
fell within the law of criminal procedure, which was not included within the scope
of the Treaty. Although in principle criminal legislation and the rules of criminal
procedure were matters for which the Member States were responsible, Community
law set certain limits to their power: (9)
'Such legislative provisions may not discriminate against persons to whom
Community law gives the right to equal treatment or restrict the fundamental
freedoms guaranteed by Community law.
- 18.
- Although Cowan concerned a victim of criminal behaviour, the same
principle must apply to the rights of an accused in criminal proceedings. Those
rights are no less fundamental and must likewise be viewed as a corollary of the
right to free movement.
- 19.
- In Cowan the only connection with Community law was that the facts
occurred while Mr Cowan was in France as a recipient of services. By holding that
that was sufficient to trigger the prohibition of discrimination the Court effectively
brought any person exercising his right to enter another Member State within the
protection offered by Article 6. (10)
- 20.
- The conclusion to be drawn from the Cowan case seems all the more
compelling in the light of the subsequent amendments to the EC Treaty introduced
by the Treaty on European Union. Part Two of the EC Treaty is now entitled
'Citizenship of the Union, and that citizenship is established by Article 8(1).
Article 8a(1) provides:
'Every citizen 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
down in this Treaty and by the measures adopted to give it effect.
- 21.
- It may be concluded from that provision that, where a citizen exercises his
right to move and reside within the territory of the Member States, his situation
falls within the scope of the Treaty for the purposes of the prohibition of
discrimination on grounds of nationality. It therefore re-affirms the conclusion that
that prohibition applies to criminal proceedings arising in the course of the exercise
of a citizen's freedom of movement.
- 22.
- It is unnecessary in this case for the Court to decide the broader question
whether all criminal proceedings against a citizen of the Union fall within the scope
of application of the Treaty for the purposes of Article 6, even where that citizen
has not exercised his right to free movement. For example, would a national of
Member State A charged with a criminal offence in Member State B on account
of remarks published in a Member State B newspaper be entitled to rely on Article
6 of the Treaty?
- 23.
- It may be however that the time has come for even that question to be
answered affirmatively. The notion of citizenship of the Union implies a
commonality of rights and obligations uniting Union citizens by a common bond
transcending Member State nationality. The introduction of that notion was largely
inspired by the concern to bring the Union closer to its citizens and to give
expression to its character as more than a purely economic union. That concern
is reflected in the removal of the word 'economic from the Community's name
(also effected by the Treaty on European Union) and by the progressive
introduction into the EC Treaty of a wide range of activities and policies
transcending the field of the economy.
- 24.
- Against that background it would be difficult to explain to a citizen of the
Union how, despite the language of Articles 6, 8 and 8a, a Member State other
than his own could be permitted to discriminate against him on grounds of his
nationality in any criminal proceedings brought against him within its territory.
Freedom from discrimination on grounds of nationality is the most fundamental
right conferred by the Treaty and must be seen as a basic ingredient of Union
citizenship. (11)
- 25.
- Such a conclusion does not of course entail a transfer of Member States'
competence in criminal matters to the Community. It merely recognises the fact
that, as the Court noted in Cowan, (12) Member States must exercise their powers
in this area in conformity with the fundamental principle of equal treatment.
- 26.
- It is true that in some cases in which Article 6 was in issue, the Court has
sought to establish a link with intra-Community trade: that appears to be so in Phil
Collins, (13) which concerned copyright and related rights, and in Data Delecta and
Hayes, (14) in the context of rules on security for costs in civil proceedings. But it
cannot be inferred from that that the Court rejected a broader view of the scope
of Article 6.
- 27.
- It should finally be emphasised that not every rule which works to the
particular disadvantage of non-nationals entails discrimination contrary to Article
6. In particular it is open to Member States to show that advantages reserved to
nationals or to residents are objectively justified on grounds unrelated to
nationality. It is however increasingly difficult to see why Community law should
accept any type of difference in treatment which is based purely on nationality,
except in so far as the essential characteristics of nationality are at stake, such as
access to a limited range of posts in the public service, or the exercise of certain
political rights. (15)
The issue of discrimination
- 28.
- I therefore turn to the question whether the Italian rule in issue
discriminates against Mr Franz and Mr Bickel.
- 29.
- The Italian Government denies that there is discrimination on grounds of
nationality. It points out that the right to opt for the use of German is inextricably
linked to citizenship of Bolzano. A national of another Member State who is
temporarily present is in the same position as an Italian national so present, the
latter also being denied the right in question.
- 30.
- The Italian Government adds that non-residents do not participate in the
social contacts, living conditions and problems which are specific and exclusive to
residents of Bolzano. The rule is merely aimed at protecting a specific linguistic
minority in Italy, whilst recognising its ethnical and cultural identity. It would
moreover be wholly disproportionate to let the accused opt for the use of their
native language with a view to safeguarding the rights of defence; those rights are
safeguarded by other means, such as the right to a free interpreter, in accordance
with the relevant provisions of the European Convention on Human Rights and the
International Covenant on Civil and Political Rights. (16)
- 31.
- On the latter point the Italian Government refers to a recent judgment of
the Corte Costituzionale (Constitutional Court) in which it was held that the scope
of the rules on the protection of linguistic minorities is different from the scope of
the rules on rights of defence. The latter rules, in relation to languages, aim to
ensure that a defendant is capable of understanding the proceedings, which is
assumed not to be the case if he does not perfectly master the official language.
The former rules, by contrast, amount to a special form of constitutional protection,
corresponding to the cultural heritage of a specific ethnic group, and thus take no
account of whether a person belonging to such a group masters the official
language. (17) The Italian Government draws the conclusion, with respect to the
present case, that the right of residents of Bolzano to opt for the use of German
does not depend on whether they are incapable of using Italian. In cases where a
defendant is so incapable, Italian law thus deals with the problem by different
means.
- 32.
- The Commission expresses doubts as to whether the Italian rule
discriminates on grounds of nationality. The right to opt for the use of German is
not conferred on all Italian citizens. It is conferred only on residents of Bolzano.
Moreover, although a residence condition may constitute indirect discrimination on
grounds of nationality, different treatment on grounds of residence may be justified
by objective factors.
- 33.
- It is first necessary to clarify the precise scope of the Italian rule. It follows
from the ruling in Mutsch that the choice of German in court proceedings cannot
be restricted to Italian nationals but must be extended to nationals of other
Member States who are resident in Bolzano. According to the Italian Government
that is in fact the case. I shall therefore assume that the Italian rule does not entail
direct discrimination on grounds of nationality.
- 34.
- Article 6 of the Treaty, however, also prohibits indirect discrimination. A
rule discriminates indirectly against nationals of other Member States if it:
(a) works to the particular detriment of a group comprising mainly nationals
of other Member States (for example non-residents);
and
(b) is not based on objective factors unrelated to nationality or is not
proportionate. (18)
- 35.
- By treating differently persons who are for all material purposes in the same
position, such a rule infringes the principle of equal treatment.
- 36.
- The first question, therefore, is whether the rule works to the particular
disadvantage of nationals of other Member States. In my view it plainly does. The
rule works to the particular disadvantage of German-speaking visitors to Bolzano
from Germany and Austria (who will be predominantly German and Austrian
nationals) because the latter are all, without exception, prevented from choosing
German for the conduct of criminal proceedings whereas most Italian residents
being prosecuted in Bolzano who wish to use German are able to do so.
- 37.
- The argument advanced by the Commission and the Italian Government
that Italian nationals not resident in Bolzano cannot choose German either is
beside the point. Being Italian-speakers the overwhelming majority of Italian
residents will have no practical interest in choosing German. In other words,
German and Austrian visitors are without exception denied an advantage granted
to most Italian residents who actually want the advantage. (19)
- 38.
- The present case is distinguishable from cases in which an advantage which
might be of interest to residents in general is reserved to local residents. Let us
suppose, for example, that under the relevant regulations the ruins of Pompeii were
open free of charge out of season to residents of Naples and the surrounding area.
It would be difficult to argue that such a rule worked to the particular disadvantage
of nationals of other Member States since the vast majority of Italian residents
would also be affected. In contrast the advantage in the present case, although
regional in form, is in reality directed at a general category of residents, namely
German-speakers.
- 39.
- The question therefore arises whether the different treatment is objectively
justified. It would clearly be difficult to advance any administrative justification if,
as appears to be the case here, local criminal courts are set up to conduct
proceedings largely in German but are obliged to hear cases against German-speaking visitors in Italian. (At the hearing counsel for Mr Bickel and Mr Franz,
a German-speaker, (20) stated that their case was being heard by German-speaking
judges and that the Public Prosecutor was German-speaking.)
- 40.
- There can be no doubt that, even with the assistance of an interpreter, a
defendant in criminal proceedings who is not fully conversant with the language of
the proceedings is at a substantial disadvantage. It would nevertheless be unduly
onerous to require a State to provide for the conduct of criminal proceedings in
every Community language. It is however clear that no such justification can be
advanced where, as here, the local courts commonly function in the language of the
visitor. According to counsel for Mr Bickel and Mr Franz, the requirement to use
Italian would in their cases, if anything, lead to extra costs because the accused
would then be entitled to a free interpreter. In the absence, therefore, of any
administrative impediment some other justification must be sought.
- 41.
- Nor in my view is it possible, as the Italian Government suggests, to justify
the rule on the ground that its purpose is to protect the German-speaking minority
in Bolzano. I fully accept that the rule in question serves the wholly legitimate aim
of protecting a Member State's linguistic minority, an aim unrelated to nationality.
The difficulty, however, is that the exclusivity of the rule, that is to say, the denial
of the advantage to visitors from other Member States, is neither a necessary nor
an appropriate means of achieving that aim. In other words the rule is
disproportionate. (21) Refusing the use of German to visitors does not in any way
serve that aim. If anything, it has the reverse effect: it reinforces Italian as the
principal language even in the predominantly German-speaking region of Bolzano.
If a German-speaking Bolzano resident invites a relative or friend from Germany,
Austria or Switzerland to visit him, any criminal proceedings brought against that
relative or friend would be in Italian. It is hard to see how that serves to protect
the German-speaking minority in Bolzano.
Conclusion
- 42.
- Accordingly the question referred by the Pretura Circondariale di Bolzano
must in my opinion be answered as follows:
Where a Member State grants residents in part of its territory the right to use a
language other than its official language in criminal proceedings against them,
Article 6 of the EC Treaty must be interpreted as requiring it to afford the same
right to nationals of other Member States visiting that territory if those nationals
have that other language as their mother tongue.
1: Original language: English.
2:
Case 137/84 Ministère Public v Mutsch [1985] ECR 2681.
3:
Council Regulation No 1612/68 of 15 October 1968 on freedom of movement for workers
within the Community, OJ, English Special Edition 1968 (II), p. 485.
4:
OJ 1991 L 256, p. 51.
5:
See the third recital of the preamble.
6:
Case 186/87 [1989] ECR 195.
7:
See paragraph 16 of the judgment.
8:
At paragraph 17.
9:
Paragraph 19 of the judgment.
10:
See also to that effect J. Mertens de Wilmars, 'L'arrêt Cowan, Cahiers de droit européen,
1990, pp. 388 to 402. See also Koen Lenaerts, 'L'égalité de traitement en droit
communautaire, Cahiers de droit européen, 1991, pp. 3 to 41, at p. 28, who draws a
conclusion from the Cowan judgment in relation to the Mutsch case that '... il paraît
légitime d'affirmer que si Mutsch n'avait pas été un travailleur migrant, mais bien un
touriste luxembourgeois de passage à Saint-Vith en Belgique qui s'était laissé impliquer
dans une procédure pénale, il aurait pu lui aussi prétendre au bénéfice du traitement de
son affaire en allemand sur la base des articles précités (7 et 59-60) du traité ....
11:
See also to that effect N. Bernard, 'What are the purposes of EC discrimination law?, in
Discrimination Law Concepts, Limitations and Justifications, edited by Dine and Watt,
Longman, 1996, pp. 91 et seq.
12:
See paragraph 17 above.
13:
See Joined Cases C-92/92 and C-326/92 Phil Collins and Others [1993] ECR I-5145.
14:
See Cases C-43/95 Data Delecta and Forsberg [1996] ECR I-4661 and C-323/95 Hayes v
Kronenberger [1997] ECR I-1711.
15:
See also F. Schockweiler, 'La portée du principe de non-discrimination de l'article 7 du
traité CEE, Rivista di Diritto Europeo, 1991, at pp. 22 and 23.
16:
Both Article 6(3)(e) of the Convention and Article 14(3)(f) of the Covenant guarantee
everyone charged with a criminal offence the right 'to have the free assistance of an
interpreter if he cannot understand or speak the language used in court. (Under both
instruments the protection extends only to the language used in court, not to other aspects
of the proceedings.)
17:
Judgment No 15 of 29 January 1996, GURI, special series, 7 February 1996, No 6.
18:
See, in particular, Case C-237/94 O'Flynn v Adjudication Officer [1996] ECR I-2617.
19:
For an analogous case see Case C-15/96 Kalliope Schöning-Kougebetopoulou v Freie und
Hansestadt Hamburg, judgment of 15 January 1998, in particular paragraph 23, and
paragraphs 12 to 14 of my Opinion, to which the judgment refers.
20:
Authorised to use German for the purpose of the hearing under Article 29(2)(c) of the
Rules of Procedure notwithstanding that the language of the case was Italian.
21:
For a recent case in which the Court rejected the justification for a rule on the ground that
the non-extension of the advantage which it conferred on non-residents was
disproportionate, see Case C-57/96 Meints v Minister van Landbouw, Natuurbeheer en
Visserij, judgment of 27 November 1997.