Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 11 April 2024 (1)
Case C‑792/22
Parchetul de pe lângă Judecătoria Rupea,
LV,
CRA,
LCM
Criminal proceedings
against
MG,
joined party:
SC Energotehnica SRL Sibiu
(Request for a preliminary ruling from the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania))
(Reference for a preliminary ruling – Social policy – Directive 89/391/EEC – Measures to encourage improvements in the safety and health of workers at work – Principle of effectiveness of EU law – Death of a worker in the course of a work operation – Parallel criminal and administrative proceedings before national courts – Final judgment of the administrative court according to which that operation does not constitute an ‘accident at work’ – National legislation under which such a final judgment has the force of res judicata before the criminal court – Possibility for that criminal court to characterise that operation as an ‘accident at work’ and to impose criminal and civil penalties)
I. Introduction
1. Following the death of an electrician which occurred during an operation on an electrical installation, administrative proceedings were instituted against the company that employed the victim and, in parallel with them, criminal proceedings were brought against the chief electrician who worked for that company for failure to comply with legal measures concerning health and safety at work and for manslaughter, in which the family of the deceased electrician was a civil party against that company and the chief electrician.
2. At the end of the administrative proceedings, the administrative court ruled, by a final judgment, that that operation did not constitute an ‘accident at work’ with the result that the administrative penalties imposed on the company were annulled. Furthermore, national legislation, as interpreted by the Constitutional Court of the Member State in question, provides that final judgments of courts and tribunals other than criminal courts, on a preliminary question in a criminal procedure, have the force of res judicata before the criminal court. The characterisation of the operation at issue as an ‘accident at work’ constitutes such a preliminary question.
3. Does Directive 89/391/EEC, (2) which seeks to encourage improvements in the safety and health of workers at work, preclude national legislation which prevents a criminal court seised from examining whether that same operation may be characterised as an ‘accident at work’ and thus from imposing criminal or civil penalties on the chief electrician and the employer? That is, in essence, the question asked by the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania), the criminal court in the case in the main proceedings.
4. The present case, which is unprecedented, gives the Court an opportunity to clarify the interrelationships between the national remedies so that, in the implementation of Directive 89/391, compliance with the principle of effectiveness of EU law is guaranteed for the interested parties and, in particular, the protection of the rights of the defence.
II. Legal framework
A. European Union law
5. Section I of Directive 89/391, which is entitled ‘General provisions’, comprises Articles 1 to 4 thereof. Article 1 of the directive, entitled ‘Object’, states:
‘1. The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work.
2. To that end it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles.
3. This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work.’
6. Article 4 of the directive provides:
‘1. Member States shall take the necessary steps to ensure that employers, workers and workers’ representatives are subject to the legal provisions necessary for the implementation of this Directive.
2. In particular, Member States shall ensure adequate controls and supervision.’
7. Article 5 of that directive, entitled ‘General provision’, which appears in Section II, entitled ‘Employers’ obligations’, stipulates:
‘1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.
…
3. The workers’ obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer.
4. This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers’ responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.
Member States need not exercise the option referred to in the first subparagraph.’
B. Romanian law
1. Criminal Code
8. Article 192 of Legea nr. 286/2009, privind Codul penal (Law No 286/2009 on the Criminal Code) of 17 July 2009, (3) in its version in force at the time of the facts in the main proceedings (‘the Criminal Code’), entitled ‘Manslaughter’, states in paragraph 2:
‘Manslaughter resulting from failure to comply with the legal provisions or precautionary measures established for the practice of a profession or of a craft or for the performance of a specific activity shall be punishable by no less than two years and no more than seven years of imprisonment. When a breach of the legal provisions or precautionary measures constitutes a criminal offence in itself, the rules on the concurrence of criminal offences shall apply.’
9. Article 350 of the Criminal Code, entitled ‘Failure to comply with legal measures concerning safety and health at work’, provides in paragraphs 1 and 3:
‘(1) Failure by any person to comply with obligations and measures established concerning safety and health at work, if it creates an imminent danger of an accident at work or occupational disease, shall be punishable by no less than six months and no more than three years of imprisonment or by a fine.
…
(3) The acts referred to in paragraphs 1 and 2 shall be punishable by no less than three months and no more than one year of imprisonment or by a fine where they are committed out of negligence.’
2. Code of Criminal Procedure
10. Article 52 of Legea nr. 135/2010, privind Codul de procedură penală (Law No 135/2010 on the Code of Criminal Procedure) of 1 July 2010, (4) in its version in force at the time of the facts in the main proceedings (‘the Code of Criminal Procedure’), entitled ‘Preliminary questions’, provides:
‘(1) The criminal court shall have jurisdiction to hear any preliminary question for the determination of the case, even if, by its nature, the question falls within the jurisdiction of another court, except in situations where jurisdiction does not lie with the judiciary.
(2) The preliminary question shall be decided by the criminal court in accordance with the rules and means of proof relating to the subject matter of the question.
(3) Final judgments of courts and tribunals other than criminal courts regarding a preliminary question in criminal proceedings shall have the force of res judicata before the criminal court, with the exception of the circumstances relating to the existence of the offence.’
3. Law No 319/2006
11. Legea nr. 319/2006 a securităţii şi sănătăţii în muncă (Law No 319/2006 on safety and health at work) of 14 July 2006 (5) (‘Law No 319/2006’) transposes Directive 89/391 into the Romanian legal order. Under Article 5(g) of that Law:
‘For the purposes of the present law:
…
(g) “accident at work” means serious injury to the body or acute occupational poisoning, sustained in the course of work or in the performance of work duties, which results in temporary incapacity to work for at least three calendar days, disability or death.’
12. Article 7(4)(c) of that Law states:
‘Without prejudice to other provisions of the present Law, taking into account the nature of the activities of the undertaking and/or establishment, the employer shall:
…
(c) take into consideration the capabilities of workers as regards safety and health at work when it entrusts work to them.’
13. Article 20(1)(b) of that Law provides:
‘The employer shall ensure such conditions as to enable each worker to receive sufficient and adequate training in safety and health at work, in particular in the form of information and instructions specific to his or her workplace and job:
…
(b) in the event of a change of job or a transfer.’
14. Article 22 of Law No 319/2006 stipulates:
‘Each worker shall perform his or her work in accordance with his or her training and preparation and the instructions issued by his or her employer such as not to expose himself or herself or other persons who could be affected by his or her actions or failure to act in the context of work to risks of accident or occupational disease.’
4. Decision No 1146/2006
15. Annex I of Hotărârea Guvernului nr. 1146/2006, privind cerințele minime de securitate și sănătate pentru utilizarea în muncă de către lucrători a echipamentelor de muncă (Government Decision No 1146/2006 concerning the minimum safety and health requirements for the use of work equipment by workers at work) of 30 August 2006 (6) (‘Decision No 1146/2006’) is worded as follows:
‘…
3.3.2.1. In electrical installations and work equipment, protection against electrocution by direct contact shall be ensured by technical measures, supplemented by organisational measures.
…
3.3.2.3. Protection against electrocution by direct contact shall be ensured by means of the following organisational measures:
(a) operations on electrical installations (troubleshooting, repairs, connections etc.) shall be carried out only by electricians who are qualified, authorised and trained for the work in question;
(b) operations must be based on one of the forms of work;
…
(e) work instructions shall be drawn up for each operation on electrical installations;
…
3.3.2.4. Operations on installations, machinery, equipment and appliances which use electricity shall be authorised only on the basis of the following forms of work:
…
(d) verbal instructions (VI);
…
3.3.23.1. In the case of electrical installations or work equipment on which work is carried out with or without interrupting the power, electro-insulating means of protection shall be used.
…
3.3.23.4. Work on electrical installations or equipment carried out without interrupting the power shall be carried out by personnel authorised to work on live systems.
…’
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
16. According to the order for reference, on 5 September 2017, an electrician (‘the victim’) working for Energotehnica died from electrocution during an operation to change an outdoor light fixture on a low-voltage pylon at an animal farm in the commune of Ticușu in Brașov county (Romania) (‘the operation at issue’).
17. In administrative proceedings, the Inspectoratul Teritorial de Muncă Brașov (Brașov Regional Labour Inspectorate, Romania; ‘the ITM’) conducted an inquiry in which witnesses were heard and relevant documents concerning safety and health at work were obtained. At the end of that inquiry, the ITM produced an inquiry report on 9 September 2019 (‘the inquiry report’), at the end of which it characterised the operation at issue as a ‘fatal accident at work’.
18. In that report, the ITM imposed administrative fines on Energotehnica for approving the operation on a working installation, without interrupting the power, by unauthorised and untrained personnel and for failing to make known to the worker material relating to specific training topics. Those penalties have not actually been applied as they are suspended pending the conclusion of the criminal proceedings. No administrative penalty was imposed on an employee of that company in so far as under Article 39(1) of Law No 319/2006 only acts committed by employers in one of the situations provided for by that Law constitute administrative offences, and not acts committed by workers.
19. Energotehnica brought an administrative-law action against the ITM before the Tribunalul Sibiu (Regional Court, Sibiu, Romania), seeking the annulment of the inquiry report. Only two witnesses, who were colleagues of the victim, were heard. By judgment of 10 February 2021, that court upheld the action and annulled the report in part in respect of the findings relating to Energotehnica. The court held that the operation at issue had taken place outside working hours and that there was no evidence to confirm that the victim had been given verbal instructions to carry out the operation. The ITM brought an appeal against that judgment before the Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia, Romania), which, by judgment of 14 June 2021, granted the plea of invalidity raised by Energotehnica, stating that it was dismissing the appeal on the ground that it was not reasoned.
20. In parallel with the administrative proceedings, criminal proceedings were brought by the Public Prosecutor at the Parchetul de pe lângă Judecătoria Rupea (Public Prosecutor’s Office attached to the Court of First Instance, Rupea, Romania). By an indictment issued by the Public Prosecutor on 31 July 2020, MG, as chief electrician employed by Energotehnica, was committed for trial before the Judecătoria Rupea (Court of First Instance, Rupea) for the following offences: failure to comply with legal measures concerning health and safety at work, referred to in Article 350(1) and (3) of the Criminal Code, and manslaughter, laid down in Article 192(2) of the Criminal Code, with Article 38(1) of that code concerning the concurrence of criminal offences being applicable. In the indictment it was stated that, at approximately 18.00 on 5 September 2017, at the end of working hours, MG, the manager responsible for the place of work with specific responsibility for the organisation of work, the training of staff to carry out work and the adoption of measures to ensure safety at work and the protection equipment envisaged by specific instructions at each place of work, gave the victim, who was under his supervision, verbal work instructions to carry out the operation at issue without taking the required measures concerning health and safety at work, under which that task should be entrusted only to personnel qualified in the profession of electrician who are authorised and trained to carry out the work in question under the supervision of a chief electrician, and in conditions where that operation was carried out without interrupting power to the working electrical installation and without using electro-insulating protective gloves.
21. In those criminal proceedings brought against MG, eyewitnesses were heard and the relevant documents relating to health and safety at work were placed on the case file. The inquiry file for the operation at issue, including the inquiry report, was also produced. In those same criminal proceedings, LV, CRA and LCM, the victim’s spouse, daughter and son, respectively, entered appearances as civil parties (‘the civil parties’) and claimed that MG and Energotehnica should be ordered to pay damages for the death of the victim. A criminal inquiry was not conducted in respect of Energotehnica, which had the status only of party liable under civil law in so far as that company has a statutory or contractual obligation under Romanian civil law to compensate, in whole or in part, solely or jointly and severally, for the damage caused by the offence and is held liable in the proceedings.
22. By criminal judgment of 24 December 2021, the Judecătoria Rupea (Court of First Instance, Rupea) held that MG should be acquitted of the offences of failure to comply with legal measures concerning safety and health at work and manslaughter. That court also dismissed as unfounded the civil action brought against MG and Energotehnica by the civil parties. That trial court considered in this regard, first, that it was not proven beyond reasonable doubt that verbal work instructions had been given by MG, since the only statement directly attesting to such work instructions was made by an eyewitness and it is not corroborated by any other direct evidence, while other workers also present denied having heard those work instructions. The same court held, second, that the operation at issue had taken place at around 18.30-18.40, that is, after the end of working hours (considered as being between 17.00 and 18.00), which is why that operation could not be characterised as an ‘accident at work’.
23. The Public Prosecutor and the civil parties lodged an appeal against that judgment before the Curtea de Apel Brașov (Court of Appeal, Braşov), which is the referring court. Before that court, the Public Prosecutor argued that there was evidence to show beyond reasonable doubt that MG gave verbal instructions to the victim to carry out the operation at issue, referring to the statement made by an eyewitness, which was corroborated by statements made by other workers present on site. The civil parties asserted that there was evidence in support of the allegation, relying on the statement made by the same eyewitness and the inquiry report.
24. The referring court states that, as the court hearing the appeal in the criminal proceedings brought against MG, it is required to examine all the points of law and fact in the case in so far as the appeal is a fully devolutive remedy. In these circumstances, that court could re-examine the evidence submitted at first instance, examine new evidence and conduct a fresh assessment of all the evidence. However, that court notes that the Tribunalul Sibiu (Regional Court, Sibiu) has already ruled on the facts in the main proceedings, holding that the operation at issue did not constitute an accident at work. The referring court states that this finding could be binding on it with the force of res judicata, since that procedural situation would constitute a ‘preliminary question’ in criminal proceedings within the meaning of Article 52 of the Code of Criminal Procedure.
25. That court observes in this regard that, by its Judgment No 102/2021 of 17 February 2021, the Curtea Constituțională (Constitutional Court, Romania) upheld the plea of unconstitutionality in respect of Article 52(3) of the Code of Criminal Procedure, which provided that final judgments of courts and tribunals other than criminal courts regarding a preliminary question in criminal proceedings have the force of res judicata before the criminal court, with the exception of the circumstances relating to the existence of the criminal offence. The Curtea Constituțională (Constitutional Court) thus held that the expression ‘with the exception of the circumstances relating to the existence of the criminal offence’ contained in that provision was unconstitutional. In that connection, the Curtea Constituțională (Constitutional Court) ruled in particular that preliminary questions are aspects of a case of a non-criminal-law nature which must be resolved before the issues going to the substance of the criminal case are resolved and which concern the existence of an essential constituent of a criminal offence, such as the situation prior to the commission of an offence or an essential element of the content of an offence.
26. In the present case, according to the referring court, the characterisation of the event at issue as an ‘accident at work’ is an essential constituent of the criminal offence, being in the nature of a condition of fact or law the existence of which must be ascertained in order for the criminal proceedings to be resolved equitably, which may therefore be considered a ‘preliminary question’ within the meaning of Article 52(3) of the Code of Criminal Procedure.
27. The referring court also states that in the case in the main proceedings the Tribunalul Sibiu (Regional Court, Sibiu) and the Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia) were able to order that the proceedings be stayed on the basis of different procedural methods, in particular pursuant to the principle that civil proceedings must await the outcome of criminal proceedings, as enshrined in the Romanian Code of Civil Procedure. In this case, however, the stay of the proceedings on account of the existence of pending criminal proceedings would not have been raised before the administrative courts, without provision for any procedural penalty, since it is optional for a civil court to stay the proceedings under the provisions of the Code of Civil Procedure.
28. The referring court adds that, in circumstances where the civil parties in the criminal proceedings did not take part in the administrative proceedings and the employer was successful in the latter proceedings only against the competent administrative authority (namely the ITM), it would have to acquit MG of the offences with which he is charged, with the result that the civil action brought by the civil parties would be dismissed as unfounded if, as is required by Judgment No 102/2021 of the Curtea Constituțională (Constitutional Court), it conferred full force of res judicata on the decision of the administrative court characterising the operation at issue as being ‘outside of work’. However, such a situation would undermine the principle of the protection of workers and the principle of employer responsibility enshrined in Article 1(1) and (2) and Article 5(1) of Directive 89/391, read in the light of Article 31(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
29. In those circumstances, the Curtea de Apel Braşov (Court of Appeal, Braşov) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Do the principle of the protection of workers and the principle of employer responsibility, enshrined in Article 1(1) and (2) and Article 5(1) of [Directive 89/391], transposed into national law by [Law No 319/2006], read in the light of Article 31(1) of the [Charter], preclude rules such as those which apply in the case in the main proceedings, imposed by a decision of the national Constitutional Court, in accordance with which an administrative court may, at the request of an employer and in inter partes proceedings involving only the State administrative authority, give a final ruling that an event does not constitute an accident at work, within the meaning of that directive, and may thus prevent a criminal court – seised both by a prosecutor bringing criminal proceedings against the worker responsible and by a civil party bringing civil proceedings against the employer as the party liable under civil law in the criminal proceedings, on the one hand, and the worker employed by that employer, on the other – from reaching a different decision regarding the characterisation of the same event as an accident at work, that characterisation being a constituent element of the offences tried in the criminal proceedings (without which it is impossible to make a finding of either criminal liability or civil liability alongside criminal liability), regard being had to the force of res judicata of the final administrative judgment?
(2) If the first question is answered in the affirmative, is the principle of the primacy of EU law to be interpreted as precluding national legislation or a national practice pursuant to which the ordinary national courts are bound by decisions of the national Constitutional Court and may not, for that reason, without committing a disciplinary offence, of their own motion disapply the case-law resulting from those decisions, even if, in light of a judgment of the Court of Justice, they take the view that that case-law is contrary to Article 1(1) and (2) and Article 5(1) of [Directive 89/391], transposed into national law by Law No 319/2006, read in the light of Article 31(1) of [the Charter]?’
30. Written observations were submitted to the Court by the Parchetul de pe lângă Judecătoria Rupea (Public Prosecutor’s Office attached to the Court of First Instance, Rupea), the Romanian Government and the European Commission.
31. In accordance with the Court’s request, this Opinion will focus on the examination of the first question referred for a preliminary ruling.
IV. Analysis
32. By its first question, the referring court asks, in essence, whether Directive 89/391 is to be interpreted as precluding national legislation in accordance with which an administrative court may decide, by a final judgment having the force of res judicata before the criminal court, that an event does not constitute an ‘accident at work’, with the result that a criminal court seised is prevented from imposing criminal or civil penalties on the worker responsible for the site and on the employer.
A. Admissibility of the first question referred for a preliminary ruling
33. In its written observations, the Romanian Government raised the inadmissibility of the first question and, consequently, of the second question on the ground that, first, the provision of national law of which the conformity with Directive 89/391 is at issue, namely Article 52 of the Code of Criminal Procedure, concerns the force of res judicata. Second, Article 5(1) of that directive embodies the general duty of safety to which the employer is subject, without mentioning any specific form of liability. However, the dispute in the main proceedings relates to the criminal liability of a worker for the death of another worker, whereas the directive the interpretation of which has been requested concerns the obligations of the employer vis-à-vis workers. The referring court is not therefore called upon to rule on a legal relationship falling within the scope of that directive.
34. It should be noted that in the case at issue the victim’s family is a civil party before the referring court in proceedings against MG and Energotehnica. Consequently, that court is hearing an action brought against the employer, which may be held liable under civil law if the operation at issue is characterised as an ‘accident at work’. In addition, the question of the imposition of civil penalties on the employer is linked to the scope of the principle of the force of res judicata of the judgment delivered by the administrative court. Consequently, the detailed procedural rules for legal actions provided for by the national legislation at issue have a link with the liability of the employer in the event that it failed, in the context of the implementation of Directive 89/391 by the Member State concerned, to ensure the protection of the safety and health of workers at work.
35. I therefore take the view that the first question referred for a preliminary ruling is admissible.
B. The answer to the first question referred for a preliminary ruling
36. It should be noted that Directive 89/391 was adopted on the basis of Article 118a of the EEC Treaty (now, after amendment, Article 153 TFEU), under which the Member States must pay particular attention to encouraging improvements in safety and health of workers at work and set as their objective the harmonisation of conditions in this area. Article 1(1) and (2) of that directive thus provide that the object of the directive is to introduce measures to encourage improvements in the safety and health of workers at work and that, to that end, it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles.
37. In addition, Article 4 of the directive provides, in paragraph 1, that Member States must take the necessary steps to ensure that employers, workers and workers’ representatives are subject to the legal provisions necessary for the implementation of that directive and, in paragraph 2, that, in particular, Member States must ensure adequate controls and supervision. (7) Article 5(1) of Directive 89/391 also provides that the employer has a duty to ensure the safety and health of workers in every aspect related to the work. According to the Court’s case-law, it cannot be asserted that the employer should be subject to no-fault liability by reason merely of Article 5(1) of that directive since that provision simply embodies the general duty of safety to which the employer is subject, without specifying any form of liability. (8)
38. Paragraphs 3 and 4 of Article 5 state that the workers’ obligations in the field of safety and health at work must not affect the principle of the responsibility of the employer and that the directive does not restrict the option of Member States to provide for the exclusion or the limitation of employers’ responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.
39. It is clear from the provisions of Directive 89/391 that, although it refers to the principle of the responsibility of the employer and establishes general obligations relating to protection of the safety and health of workers at work in every aspect related to the work, it does not contain any specific provisions concerning penalties which may be applied by Member States to employers which have failed to comply with those obligations. Furthermore, several individual directives within the meaning of Article 16(1) of Directive 89/391 (9) have been adopted by the EU legislature, including Directives 89/654/EEC, (10) 89/656/EEC (11) and 2009/104/EC. (12) However, those directives also do not contain any specific provisions concerning the imposition of penalties on employers which have not ensured the protection of the safety and health of workers. (13)
40. Furthermore, Article 31 of the Charter, entitled ‘Fair and just working conditions’, provides, in paragraph 1, that ‘every worker has the right to working conditions which respect his or her health, safety and dignity’. Consequently, that provision, which is mentioned by the referring court in its first question, does not relate to the penalties which may be imposed where the protection of the safety and health of workers is not ensured.
41. With regard in particular to the operation at issue, the characterisation of which as an ‘accident at work’ is the subject of the case in the main proceedings, I would point out that under Article 34(1) of the Charter, the European Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as, in particular, industrial accidents. On the other hand, at present EU law does not regulate the criteria for characterising an event as an ‘accident at work’, the penalties applicable to the employer following such an accident or the detailed rules for determining the compensation to be awarded to the victim.
42. In this case, the referring court asks about the compliance with EU law of the detailed procedural rule laid down by national legislation in accordance with which the final judgment of the administrative court which holds that the operation at issue does not constitute an ‘accident at work’ has the force of res judicata before it, a criminal court, which would prevent it from imposing a criminal penalty on MG and civil penalties on MG and/or on Energotehnica. (14)
43. In this regard, it is apparent from the Court’s case-law that, in the absence of EU rules governing the matter, it is for each Member State, in accordance with the principle of the procedural autonomy of the Member States, to lay down the detailed rules of administrative and judicial procedures intended to ensure a high level of protection of rights which individuals derive from EU law. (15) Those detailed rules must not be less favourable than those governing similar domestic actions (principle of equivalence); nor must they render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). (16) In addition, with regard to the force of res judicata in particular, in the absence of EU legislation in this area, the rules implementing the principle of res judicata are also a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States, but must be consistent with the principles of equivalence and effectiveness. (17)
44. According to the Court’s case-law, as regards the principle of effectiveness, each case in which the question arises as to whether a national procedural provision renders the application of EU law impossible or excessively difficult must be analysed in the light of the place of that provision in the proceedings as a whole, the way in which they are conducted and their particular features, before the various national authorities. In that context, it is necessary to take into consideration, where appropriate, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. (18)
45. In other words, when the Member States set out detailed procedural rules for legal actions intended to ensure the protection of rights conferred by Directive 89/391, they must ensure compliance with the right to an effective remedy and to a fair trial, enshrined in Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection. (19)
46. Consequently, when choosing the penalties, Member States are required to comply with the principle of effectiveness, which requires effective and dissuasive penalties to be established, without, however, in principle requiring that those penalties be of a particular nature. (20) Those penalties can thus be criminal and/or civil. If penalties were not applied to an employer which fails to comply with the national provisions transposing Directive 89/391, in this case Law No 319/2006, the effectiveness and the effective protection of the rights guaranteed by that directive would be called into question, even though Article 153(1)(a) TFEU aims at improvement of the working environment to protect workers’ health and safety.
47. The case in the main proceedings concerns the possibility of imposing criminal and civil penalties not in connection with the principle ne bis in idem, (21) but in connection with the principle of res judicata, in so far as the administrative court has already held that the operation at issue could not be characterised as an ‘accident at work’. I note in this regard that the application of the principle that ‘criminal proceedings take precedence over civil proceedings’ requires the civil court, when civil proceedings and criminal proceedings have been initiated in respect of the same facts, to stay proceedings pending delivery of a definitive decision in the criminal proceedings. (22) In the case at issue, Romanian law applies the reverse principle, namely that ‘civil proceedings (23) take precedence over criminal proceedings’. It is clear from the order for reference that in the case in the main proceedings the administrative court could have stayed the proceedings pending the final decision of the criminal court but that it is optional for an administrative court to stay the proceedings, with the result that Article 52(3) of the Code of Criminal Procedure, under which final judgments of courts and tribunals other than criminal courts on a preliminary question in criminal proceedings have the force of res judicata before the criminal court, is applicable. (24)
48. In the light of the Court’s case-law, it must be stated that such a provision is not contrary to EU law in so far as it makes it possible to avoid the adoption of contradictory decisions that may undermine legal certainty, (25) provided that, as was stated in point 43 of this Opinion, the principle of effectiveness of EU law is complied with.
49. I would add that, where an administrative court considers the merits, conducting a detailed assessment of all the evidence regarding the characterisation of an event as an ‘accident at work’, the mere fact that the administrative court takes precedence over the criminal court cannot in itself mean that the administration of justice is not as good. Criminal proceedings, by definition, cannot be considered more favourable to the victim and/or the civil parties than administrative proceedings since, as is provided for in Article 48(1) of the Charter, the content of which corresponds to Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, everyone who has been charged is to be presumed innocent until proved guilty according to law. (26) Someone being prosecuted before a criminal court must therefore benefit from the right to be presumed innocent.
50. In the present case, the referring court states that the administrative proceedings were between only Energotehnica and the ITM and that the Public Prosecutor and the civil parties did not intervene in those proceedings, whereas they are represented in the criminal proceedings.
51. In this regard, it is not clear from the order for reference whether the civil parties had an actual opportunity to intervene before the administrative court, in particular in order to produce evidence in support of characterisation of the operation at issue as an ‘accident at work’. If that was the case, and even if,in practice, they did not intervene, Directive 89/391 does not preclude legislation in accordance with which an administrative court may give a final ruling that an event does not constitute an accident at work by a decision having the force of res judicata before the criminal court.
52. If, however, the civil parties were deprived of an opportunity to intervene before the administrative court, I take the view that the principle of effectiveness of EU law is not complied with. As was stated in point 44 of this Opinion, this principle implies respect for the rights of the defence and requires, in particular, that the interested parties have the opportunity to make known their views effectively. In the present case, it is not inconceivable that the victim’s family do not enjoy the right to effective judicial protection guaranteed under Article 47 of the Charter, that is to say, them deprived of access to a tribunal. (27)
53. Consequently, as the Commission noted in its written observations, in this situation it must be ensured that the civil parties are able to produce new evidence before the criminal court which could not be discussed before the administrative court, in particular regarding the characterisation of the operation at issue as an ‘accident at work’. The final judgment of an administrative court cannot, in those circumstances,have the force of res judicata before the criminal court, which must give the civil parties the opportunity to intervene before it, even if this situation is ultimately difficult to reconcile with compliance with the principle of legal certainty in so far as such intervention may result in contradictory judgments between administrative and criminal courts. If that is the case, the Member State concerned must choose the procedural mechanisms which are, in its view, most appropriate for enabling such contradictory judgments to be reconciled. (28)
54. In the light of all the foregoing, I propose that the first question referred for a preliminary ruling be answered to the effect that Directive 89/391 is to be interpreted as not precluding national legislation in accordance with which an administrative court may decide, by a final judgment having the force of res judicata before the criminal court, that an event does not constitute an ‘accident at work’, with the result that the criminal court is prevented from imposing criminal or civil penalties on the worker responsible for the site and on the employer, provided compliance with the principle of effectiveness of EU law is guaranteed, which means that the civil parties must have an actual opportunity to submit evidence regarding characterisation of that event as an ‘accident at work’ before the criminal court if they were deprived of an opportunity to produce such evidence before the administrative court.
V. Conclusion
55. In the light of the foregoing considerations, I propose that the Court answer the first question referred for a preliminary ruling by the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania) as follows:
Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work
must be interpreted as not precluding national legislation in accordance with which an administrative court may decide, by a final judgment having the force of res judicata before the criminal court, that an event does not constitute an ‘accident at work’, with the result that the criminal court is prevented from imposing criminal or civil penalties on the worker responsible for the site and on the employer, provided compliance with the principle of effectiveness of EU law is guaranteed, which means that the civil parties must have an actual opportunity to submit evidence regarding characterisation of that event as an ‘accident at work’ before the criminal court if they were deprived of an opportunity to produce such evidence before the administrative court.