JUDGMENT OF THE COURT (First Chamber)
4 May 2023 (*)
(Reference for a preliminary ruling – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Charter of Fundamental Rights of the European Union – Article 15(1) – Article 47 – Article 49(3) – Elective public office – Conflict of interests – National legislation prohibiting the holding of elective public office for a predetermined period – Penalty additional to the termination of the term of office – Principle of proportionality)
In Case C‑40/21,
REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Timişoara (Court of Appeal, Timişoara, Romania), made by decision of 12 November 2020, received at the Court on 26 January 2021, in the proceedings
T.A.C.
v
Agenția Națională de Integritate (ANI),
THE COURT (First Chamber),
composed of A. Arabadjiev, President of the Chamber, P.G. Xuereb, T. von Danwitz (Rapporteur), A. Kumin and I. Ziemele, Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having considered the observations submitted on behalf of:
– T.A.C., by T. Chiuariu, lawyer,
– the Agenția Națională de Integritate (ANI), by D. Chiurtu, O. Iacob and F.‑I. Moise, acting as Agents,
– the Romanian Government, by E. Gane and L. Liţu, acting as Agents,
– the Polish Government, by B. Majczyna, acting as Agent,
– the European Commission, by L. Nicolae, P.J.O. Van Nuffel and M. Wasmeier, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 10 November 2022,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56), and of Article 15(1), Article 47 and Article 49(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between T.A.C. and the Agenția Națională de Integritate (ANI) (National Integrity Agency, Romania) concerning a report of that agency finding that he had infringed the rules governing conflicts of interest in administrative matters during his term of office as mayor.
Legal context
European Union law
3 Decision 2006/928 was adopted, in the context of Romania’s accession to the European Union envisaged for 1 January 2007, on the basis, inter alia, of Articles 37 and 38 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded (OJ 2005 L 157, p. 203; ‘the Act of Accession’), which entered into force on 1 January 2007. Recitals 1 to 6 and 9 of that decision read as follows:
‘(1) The European Union is founded on the rule of law, a principle common to all Member States.
(2) The area of freedom, security and justice and the internal market, created by the Treaty on European Union and the Treaty establishing the European Community, are based on the mutual confidence that the administrative and judicial decisions and practices of all Member States fully respect the rule of law.
(3) This implies for all Member States the existence of an impartial, independent and effective judicial and administrative system properly equipped, inter alia, to fight corruption.
(4) On 1 January 2007, Romania will become a Member of the European Union. The Commission, whilst noting the considerable efforts to complete Romania’s preparations for membership, has identified remaining issues in its Report of 26 September 2006, in particular in the accountability and efficiency of the judicial system and law enforcement bodies, where further progress is still necessary to ensure their capacity to implement and apply the measures adopted to establish the internal market and the area of freedom, security and justice.
(5) Article 37 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk that Romania would cause a breach in the functioning of the internal market by a failure to implement the commitments it has undertaken. Article 38 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk of serious shortcomings in Romania in the transposition, state of implementation, or application of acts adopted under Title VI of the EU Treaty and of acts adopted under Title IV of the EC Treaty.
(6) The remaining issues in the accountability and efficiency of the judicial system and law enforcement bodies warrant the establishment of a mechanism for cooperation and verification of the progress of Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption.
…
(9) The present Decision should be amended if the Commission’s assessment points at a need to adjust the benchmarks. The present Decision should be repealed when all the benchmarks have been satisfactorily.’
4 Article 1 of Decision 2006/928 provides:
‘Romania shall, by 31 March of each year, and for the first time by 31 March 2007, report to the Commission on the progress made in addressing each of the benchmarks provided for in the Annex.
The Commission may, at any time, provide technical assistance through different activities or gather and exchange information on the benchmarks. In addition, the Commission may, at any time, organise expert missions to Romania for this purpose. The Romanian authorities shall give the necessary support in this context.’
5 Article 2 of that decision provides:
‘The Commission will communicate to the European Parliament and the Council its own comments and findings on Romania’s report for the first time in June 2007.
The Commission will report again thereafter as and when required and at least every six months.’
6 Article 4 of the said decision states:
‘This Decision is addressed to all Member States.’
7 The annex to the same decision is worded as follows:
‘Benchmarks to be addressed by Romania, referred to in Article 1:
1. Ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes.
2. Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.
3. Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption.
4. Take further measures to prevent and fight against corruption, in particular within the local government.’
Romanian law
8 Article 25 of legea nr. 176/2010 privind integritatea în exercitarea funcțiilor și demnităților publice, pentru modificarea și completarea legii nr. 144/2007 privind înființarea, organizarea și funcționarea Agenției Naționale de Integritate, precum și pentru modificarea și completarea altor acte normative (Law No 176/2010 on integrity in the performance of public duties and the holding of public office, amending and supplementing Law No 144/2007 on the establishment, organisation and operation of the National Integrity Agency, and amending and supplementing other normative acts) of 1 September 2010 (Monitorul Oficial al României, Part I, No 621 of 2 September 2010), provides:
‘(1) In the case where an individual has issued an administrative act, concluded a legal act, adopted a decision or participated in the adoption of a decision in breach of the legal obligations relating to conflicts of interest or to situations entailing incompatibility, his or her action shall constitute a disciplinary offence and shall be punished in accordance with the rules which apply to his or her office, function or relevant activities, in so far as the provisions of the present law provide no derogation therefrom and where the action does not constitute a criminal offence.
(2) An individual who has been relieved of his or her duties or dismissed from office in accordance with paragraph 1, or in respect of whom a conflict of interest has been established or a situation entailing incompatibility, shall no longer be entitled to perform the public duties or hold the public office to which the provisions of this law apply, with the exception of electoral duties, for a period of three years from the date on which he or she is relieved of his or her duties or dismissed from the public office in question or from the date on which his or her term of office terminates automatically. In the case where the individual has held public office, he or she shall no longer hold the same office for a period of three years from the end of his or her term of office. In the case where the individual no longer performs public duties or holds public office at the time when the situation entailing incompatibility or a conflict of interest is established, the three-year period of prohibition shall commence, in accordance with the law, on the date on which the assessment report becomes final or on the date on which a judicial decision confirming the conflict of interest or the situation entailing incompatibility becomes final and irrevocable.
…’
9 According to Article 66(1) of legea nr. 286/2009 privind Codul penal (Law No 286/2009 on the Criminal Code) of 17 July 2009 (Monitorul Oficial al României, Part I, No 510 of 24 July 2009), in the version in force at the time of the facts in the main proceedings (‘the Criminal Code’):
‘The additional penalty of a prohibition on the exercise of certain rights shall consist of the prohibition on exercising, for a period of one to five years, one or more of the following rights:
(a) the right to stand for election to the public authorities or to any other public function;
(b) the right to perform duties involving prerogatives of public authority.’
10 Article 301 of the Criminal Code, entitled ‘Conflict of interest’, provides, in paragraph 1 thereof:
‘A public official who, in the performance of his or her duties, performs an act or participates in the taking of a decision which has made it possible to obtain, directly or indirectly, a pecuniary advantage for himself or herself, for his or her spouse, for a relative or for a relative by marriage up to and including the second degree … shall be punished by a term of imprisonment of between one and five years and by an additional penalty of prohibition on the exercise of the right to hold public office.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
11 On 22 June 2016, the applicant in the main proceedings was elected mayor of the municipality of MN (Romania) for the period 2016/2020.
12 In an assessment report of 25 November 2019, the ANI found that he had failed to comply with the rules governing conflicts of interest in administrative affairs. During his term of office, he had granted, by means of a loan for use agreement, to an association of which his wife was a founding member and vice-chairperson, the right to use, free of charge, for a period of five years, certain premises belonging to the municipality for the purposes of cultural activities.
13 In the event that that report, amounting to a finding of a conflict of interest on the part of the applicant in the main proceedings, became final, in particular in the absence of any challenge on his part, his term of office would terminate automatically and he would be subject to an additional prohibition on holding elective public office for a period of three years, in accordance with national law.
14 By application of 19 December 2019, the applicant in the main proceedings brought an action before the Tribunalul București (Regional Court, Bucharest, Romania) seeking the annulment of that report, claiming, inter alia, that EU law precluded national legislation under which a penalty such as a prohibition on holding elective public office for a period of three years is imposed, automatically and without the possibility of modulation according to the seriousness of the infringement committed, on a person deemed to have acted in a conflict of interest situation.
15 That court having declared that it had no jurisdiction to hear that action, the case was referred to the referring court, the Curtea de Apel Timișoara (Court of Appeal, Timișoara, Romania).
16 That court states, first of all, that the case in the main proceedings falls within the scope of EU law in so far as Law No 176/2010 implements the second benchmark set out in the annex to Decision 2006/928. The ANI was also created in order to comply with that objective.
17 The referring court notes, next, that, by virtue of Article 25 of that law, in the event of a finding of a conflict of interest in respect of a person holding elective public office, and which becomes final, that person’s term of office terminates automatically. Furthermore, the additional prohibition on holding elective public office for a three-year period, laid down in paragraph 2 of that article, operates automatically, without any analysis of the necessity of that prohibition or differentiated application according to the seriousness of the infringement. In accordance with the case-law of the Curtea Constituțională (Constitutional Court, Romania), the said prohibition concerns all of the elective public offices referred to in Article 1 of the said law, notwithstanding the expression ‘the same office’ used in that provision. Moreover, neither the termination of the term of office nor the prohibition on the holding of elective public office can be challenged before the courts, as the court deciding upon the legality of an assessment report of the ANI can only determine whether or not the offences of which the person concerned is accused constitute a conflict of interest and not rule on the penalties arising from it.
18 The referring court further states that although, in the present case, no criminal offence has been found against the applicant in the main proceedings, Article 301(1) of the Criminal Code provides for an offence of conflict of interest also punishable by an additional penalty prohibiting the exercise of the right to hold public office, referred to in Article 66(1) of that code. That court therefore considers it necessary to ascertain whether, like the latter penalty, the prohibition on the holding of elective public office provided for in Article 25(2) of Law No 176/2010 must be assessed in the light of the principle of proportionality of penalties guaranteed in Article 49 of the Charter and, if so, whether that principle precludes such a penalty.
19 Last, the referring court considers that it is necessary to ascertain whether Article 15(1) and Article 47 of the Charter preclude a national provision which automatically imposes that penalty for a predetermined period of three years without allowing the court to analyse its necessity or extent in the light of the specific circumstances of the case.
20 In those circumstances, the Curtea de Apel Timişoara (Court of Appeal, Timişoara) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is the principle of the proportionality of penalties, enshrined in Article 49 of the [Charter], to be interpreted as also applying to facts other than those which are formally defined as criminal offences under national law, but which may be regarded as “criminal charges” within the meaning of Article 6 of the [Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (“the ECHR”)], in the light of the criteria developed by the case-law of the European Court of Human Rights, in particular the criterion of the severity of the penalty, as in the case in the main proceedings in so far as concerns the appraisal of conflicts of interests which may result in the application of an additional penalty consisting in a prohibition on holding elective public office for a period of three years?
(2) In the event that the first question is answered in the affirmative, is the principle of the proportionality of penalties, enshrined in Article 49 of the [Charter], to be interpreted as precluding a provision of national implementing law pursuant to which, in the case where a person holding an elective public office is found to have acted under a conflict of interests, an additional penalty consisting in a prohibition on holding elective public office for a [predetermined] period of three years applies automatically, by operation of law, without there being any possibility of imposing a penalty that is proportionate to the infringement committed?
(3) Are the right to engage in work, guaranteed by Article 15(1) of the [Charter], and the right to an effective remedy and to a fair trial, guaranteed by Article 47 of the Charter, to be interpreted a precluding a provision of national implementing law pursuant to which, in the case where a person holding an elective public office is found to have acted under a conflict of interests, an additional penalty consisting in a prohibition on holding elective public office for a [predetermined] period of three years applies automatically, by operation of law, without there being any possibility of imposing a penalty that is proportionate to the infringement committed?’
Consideration of the questions referred
Admissibility
21 The ANI and the Romanian Government dispute the admissibility of the questions referred for a preliminary ruling. They argue, first, that the Charter is not applicable to the dispute in the main proceedings as there has been no implementation of EU law within the meaning of Article 51(1) thereof. They add, second, that the questions referred are irrelevant and that the problem raised is purely hypothetical, in so far as the dispute in the main proceedings concerns only the annulment of an assessment report which found a conflict of interest on the part of the applicant in the main proceedings and does not pertain to the question of penalties.
22 It should be recalled that the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That Article 51(1) confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 78 and the case-law cited).
23 In the present case, it is apparent from the information provided by the referring court and from the statement of reasons relating to Law No 176/2010 that that law implements the second benchmark set out in the annex to Decision 2006/928, namely to establish an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.
24 As the Court has held, the benchmarks set out in the annex to that decision are binding on Romania in the sense that it is subject to the specific obligation to address those benchmarks and to take appropriate measures to meet them. Similarly, Romania is required to refrain from implementing any measure which could jeopardise those benchmarks being met (see, to that effect, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 172).
25 Moreover, the said decision places Romania under the obligation to combat, effectively and irrespective of any adverse effect on the EU’s financial interests, corruption, in particular high-level corruption, and to provide for the application of penalties that are effective and that act as a deterrent in the case of offences of corruption in general (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraphs 189 and 190 and the case-law cited).
26 In that context, the Court also stated that Romania has a freedom to choose the applicable penalties, which may take the form of administrative penalties, criminal penalties or a combination of the two, that competence being limited by the principles of proportionality, equivalence and effectiveness (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraphs 191 and 192 and the case-law cited).
27 It follows from those considerations, as the Advocate General observed in point 21 of his Opinion, that Law No 176/2010, in particular Article 25 thereof, constitutes a measure implementing EU law within the meaning of Article 51(1) of the Charter, such that it is applicable in the case in the main proceedings.
28 So far as concerns the subject matter of the dispute in the main proceedings, it is settled case-law that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 28 and the case-law cited).
29 In the present case, the referring court explained in the request for a preliminary ruling that, if the legality of the assessment report referred to in paragraph 12 of the present judgment were to be confirmed by the dismissal of the action brought before that court, the applicant in the main proceedings would automatically be prohibited from holding elective public office for a period of three years, pursuant to Article 25(2) of Law No 176/2010, without being able to challenge that prohibition in other court proceedings.
30 It is therefore not obvious that the interpretation of the provisions of the Charter bears no relation to the actual facts of the main action or its purpose or that the problem is hypothetical.
31 It follows that the questions referred are admissible.
Substance
The first question
32 By its first question, the referring court asks, in essence, whether Article 49(3) of the Charter must be interpreted as meaning that it applies to national legislation which provides, following an administrative procedure, for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office.
33 Article 49(3) of the Charter, which provides that the severity of penalties must not be disproportionate to the offence, relates to penalties of a criminal nature. It is therefore necessary to examine whether such a prohibition is criminal in nature (see, to that effect, judgment of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraph 90).
34 According to the Court’s settled case-law on the interpretation of Article 50 of the Charter and transposed into Article 49(3) thereof, three criteria are relevant for assessing the criminal nature of a penalty. The first is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty which the person concerned is liable to incur (see, to that effect, judgments of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraph 91, and of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 25 and the case-law cited).
35 Even in the case of offences which are not classified as ‘criminal’ by national law, the intrinsic nature of the offence in question and the degree of severity of the penalties to which it is liable to give rise may nevertheless result in its being criminal in nature (judgment of 22 June 2021, Latvijas Republikas Saeima (Penalty points), C‑439/19, EU:C:2021:504, paragraph 88 and the case-law cited).
36 Although it is for the referring court to assess, in the light of those criteria, whether the measure at issue in the main proceedings is criminal in nature for the purposes of Article 49(3) of the Charter, the Court, when giving a preliminary ruling, may nevertheless provide clarification designed to give the national court guidance in its assessment (see, to that effect, judgment of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraph 92 and the case-law cited).
37 With regard to the first criterion, concerning the classification of the offence under national law, it follows both from the wording of Article 25(1) of Law No 176/2010, which refers to a ‘disciplinary offence’, and from the national case-law cited in the request for a preliminary ruling, in particular from that of the Curtea Constituțională (Constitutional Court), that, under Romanian law, neither the automatic termination of the term of office in the event of a finding of a conflict of interest nor the prohibition on the holding of any elective public office, in addition to that termination, is regarded as a criminal penalty. In addition, it is apparent from the file before the Court that those measures are imposed pursuant to an administrative procedure. While it is true that Romanian law also provides for the criminal offence of conflict of interest, the penalties incurred in that respect are, as the Advocate General observed in point 31 of his Opinion, imposed through a distinct and independent set of proceedings.
38 As regards the second criterion, relating to the intrinsic nature of the offence, it must be ascertained whether the measure at issue has, inter alia, a punitive purpose, which is the hallmark of a penalty of a criminal nature for the purposes of Article 49 of the Charter (see, to that effect, judgments of 22 June 2021, Latvijas Republikas Saeima (Penalty points), C‑439/19, EU:C:2021:504, paragraph 89, and of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraph 94 and the case-law cited).
39 In the present case, it is apparent from the request for a preliminary ruling and from the observations of the parties before the Court that Law No 176/2010 seeks to ensure integrity and transparency in the exercise and holding of public functions and offices and to prevent institutional corruption, and that the measure prohibiting the holding of elective public office, such as that liable to be imposed in the case in the main proceedings, forms part of a broader set of measures all of which pursue, in a complementary manner, that objective and, consequently, contributes to the benchmarks provided for by Decision 2006/928 being met. Thus, the purpose of that prohibition, like that of the automatic termination of the term of office, is to preserve the proper functioning and transparency of the State, by putting to a lasting end situations of conflict of interest.
40 In that regard, the European Court of Human Rights has held that a prohibition on standing as a candidate in elections and on holding elective office in pursuit of such a purpose with a view to the free decision making of elective bodies was not punitive in nature, even if it was imposed following a criminal conviction for acts of corruption (see, to that effect, ECtHR, 18 May 2021, Galan v. Italy, CE:ECHR:2021:0518DEC006377216, §§ 85 and 97, and ECtHR, 17 June 2021, Miniscalco v. Italy, CE:ECHR:2021:0617JUD005509313, §§ 64 and 73).
41 In the light of those factors and in the light of the case-law cited in the preceding paragraph, it appears that a measure prohibiting the holding of elective public office for a period of three years, such as that which is liable to be imposed in the case in the main proceedings, pursues an essentially preventive – and not punitive – objective.
42 In terms of the third criterion, concerning the degree of severity of the penalty, it must be pointed out, as the Advocate General observed in point 33 of his Opinion, that such a measure does not consist in imposing a sentence of deprivation of liberty or a fine, but in banning the future exercise of specific activities, namely elective public office, targeting individuals belonging to a limited group with a special status. That ban is also of limited duration and does not apply to the right to vote.
43 It should be added that, according to the case-law of the European Court of Human Rights, penalties similar to the measure at issue in the main proceedings are not generally considered to be sufficiently serious to confer a criminal nature on them, especially where the right to vote is not affected (see, to that effect, European Commission of Human Rights, 13 January 1997, Tapie v. France, CE:ECHR:1997:0113DEC003225896, p. 5, and ECtHR, 18 May 2021, Galan v. Italy, CE:ECHR:2021:0518DEC006377216, §§ 96 and 97).
44 It is apparent from those considerations that none of the three criteria referred to in paragraph 34 of the present judgment appears to be fulfilled and that, consequently, the prohibition on the holding of elective public office laid down by the national legislation at issue in the main proceedings does not appear to be criminal in nature, which is, however, a matter for the referring court to verify.
45 To the extent that it is not criminal in nature, that measure cannot be assessed in the light of Article 49(3) of the Charter.
46 In the light of the foregoing, the answer to the first question is that Article 49(3) of the Charter must be interpreted as meaning that it does not apply to national legislation which provides, following an administrative procedure, for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office, in the event that that measure is not criminal in nature.
The second question
47 As a preliminary point, it is apparent from the request for a preliminary ruling that the second question is asked in the event that the prohibition on holding elective public office laid down in Article 25(2) of Law No 176/2010 should be regarded as being criminal in nature. As is apparent from the considerations set out in paragraphs 32 to 46 of the present judgment, however, that prohibition, subject to the verifications which it is for the referring court to carry out, does not appear to be of such a nature, meaning that Article 49(3) of the Charter is not applicable.
48 That said, in so far as it implements EU law, as has been indicated in paragraph 27 of the present judgment, the national legislation at issue in the main proceedings must, in any event, observe the principle of proportionality, as a general principle of EU law.
49 According to established case-law, the principle of proportionality is one of the general principles of EU law which must be observed by any national legislation which falls within the scope of EU law or which implements that law, including in the absence of harmonisation of EU legislation in the field of sanctions applicable (see, to that effect, judgments of 11 April 2019, Repsol Butano and DISA Gas, C‑473/17 and C‑546/17, EU:C:2019:308, paragraph 39 and the case-law cited, and of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect), C‑205/20, EU:C:2022:168, paragraph 31 and the case-law cited).
50 According to settled case-law, in order to observe the principle of proportionality, a measure must be suitable for securing, in a consistent and systematic manner, the attainment of the legitimate objective pursued and not go beyond what is appropriate and necessary in order to attain it, since the disadvantages caused by the legislation in question must not be disproportionate to the aims pursued (see, to that effect, judgments of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 56, and of 7 September 2022, Cilevičs and Others, C‑391/20, EU:C:2022:638, paragraph 65 and the case-law cited).
51 So far as concerns the administrative or punitive measures permitted under national legislation, they must not go beyond what is necessary to attain the objectives legitimately pursued by that legislation (judgment of 24 February 2022, Agenzia delle dogane e dei monopoli and Ministero dell’Economia e delle Finanze, C‑452/20, EU:C:2022:111, paragraph 37 and the case-law cited). In particular, the severity of the penalty must be commensurate with the seriousness of the breach which it is intended to suppress (judgment of 12 September 2019, Maksimovic and Others, C‑64/18, C‑140/18, C‑146/18 and C‑148/18, EU:C:2019:723, paragraph 39 and the case-law cited).
52 In those circumstances, in order to provide the referring court with a useful answer, it is necessary to reformulate the second question as seeking, in essence, to ascertain whether the principle of proportionality precludes national legislation which provides for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office.
53 In the case at hand, it must be borne in mind at the outset that Law No 176/2010, Article 25(2) of which prohibits the holding of elective public office for a three-year period, is intended to ensure integrity and transparency in the exercise and holding of public functions and offices and to prevent institutional corruption. The aims of that law, which contribute to the benchmarks set out in the annex to Decision 2006/928 being met, thus constitute a legitimate objective recognised by the European Union.
54 Although it is for the referring court, which alone has jurisdiction to interpret and apply national law, in the event that it confirms the legality of the assessment report at issue in the main proceedings, ultimately to decide whether, in relation to the conflict of interest identified in that report, that penalty is appropriate, necessary and proportionate to the attainment of that legitimate objective, the Court may nevertheless provide clarification designed to give the referring court guidance in that assessment (see, to that effect, judgment of 24 February 2022, Agenzia delle dogane e dei monopoli and Ministero dell’Economia e delle Finanze, C‑452/20, EU:C:2022:111, paragraph 40 and the case-law cited).
55 So far as concerns the question whether the said penalty is suitable for securing, in a consistent and systematic manner, the attainment of the legitimate objectives pursued, it should be recalled that it is imposed following a finding by the ANI, which has become final, that there is an unlawful situation of conflict of interest attributable to a person holding elective public office such as a term of office as mayor, like the applicant in the main proceedings, in the course of the performance of his or her duties, in addition to the automatic termination of that person’s term of office.
56 Imposing those penalties automatically thus makes it possible to put to a lasting end the situation of conflict of interest identified while preserving the functioning of the State and of the elective bodies concerned. Moreover, providing for both the automatic termination of the term of office and an automatic prohibition on holding any elective public office for a sufficiently long predetermined period would appear likely to deter persons who exercise an electoral mandate from placing themselves in such a position and to encourage them to comply with their obligations in that regard.
57 It follows that the prohibition on holding elective public office for a period of three years laid down by the national legislation at issue in the main proceedings appears appropriate for attaining the legitimate objective pursued by that legislation.
58 In terms of the necessity of that penalty, it is apparent from the documents before the Court that the Romanian legislature provided for that prohibition and set its duration at three years in view of the intrinsic seriousness for the functioning of the State and society of the facts constituting a conflict of interest situation. Thus, the said prohibition is imposed as a result of the infringement committed by a person holding elective public office, like the applicant in the main proceedings, and which is undoubtedly serious.
59 The Romanian legislature also provided, in Article 301(1) of the Criminal Code, for the offence of conflict of interest, punishable by a term of imprisonment and by an additional penalty prohibiting the holding of elective office for a variable period, of between one and five years.
60 It should be added that the scale of the conflicts of interest and the level of corruption observed in the national public sector must be taken into account in determining whether or not national legislation such as that at issue in the main proceedings exceeds the limits of what is necessary to attain the objective of ensuring integrity and transparency in the exercise and holding of public functions and offices and to prevent institutional corruption. In that regard, it must be recalled that Law No 176/2010 implements the second benchmark set out in the annex to Decision 2006/928, which is binding on Romania and seeks to ensure that dissuasive sanctions may result from the mandatory decisions of the ANI. That decision also obliges that Member State to combat corruption effectively.
61 Having regard to the preventive component of the measure at issue, which is intended, inter alia, to deter persons who hold public office from undermining the integrity of their office, it is necessary, in such a national context, to set a predetermined period for that measure in order to ensure its effectiveness.
62 Moreover, the prohibition on holding elective public office laid down in Article 25(2) of Law No 176/2010 is limited in time and applies only to certain categories of persons performing particular duties. In particular, a person exercising an electoral mandate as mayor, like the applicant in the main proceedings, is vested with responsibilities and important powers and has the task of representing his fellow citizens.
63 That prohibition, moreover, applies only to defined activities, namely elective public functions, and does not prevent the pursuit of any other professional activity, particularly in the private sector.
64 It follows that, having regard to the context of the national legislation at issue in the main proceedings, that legislation, in so far as it imposes a penalty of ineligibility for a predetermined period of three years, does not exceed the limits of what is necessary to achieve the legitimate objective which it pursues.
65 Regarding the proportionality of the measure at issue and, in particular, whether its severity is commensurate with the seriousness of the offence, it is appropriate to recall the importance of the fight against corruption in the public sector in certain Member States and the priority which has been given by the Romanian legislature to that objective, which represents a genuine requirement of Romanian society, as is indicated in the statement of reasons relating to Law No 176/2010, also imposed by Decision 2006/928.
66 Therefore, in the light of the seriousness of the harm to the public interest resulting from acts of corruption and conflicts of interest, even the least significant, on the part of elected representatives in a national context involving a high risk of corruption, the prohibition on the holding of elective public office for a predetermined three-year period laid down by that national legislation does not appear, in principle, to be disproportionate to the offence which it seeks to penalise.
67 That said, the fact that the duration of that prohibition is not coupled with any possibility of modulation, as the case-law of the Înalta Curte de Casație (High Court of Cassation and Justice, Romania) confirms, does not rule out the possibility that, in certain exceptional cases, that penalty may prove disproportionate in relation to the offence which it penalises.
68 That could be the case where, exceptionally, the unlawful conduct found to have taken place, having regard to the objective pursued, does not have an element of seriousness, whereas the impact of the said penalty on the personal, professional and economic situation of the person concerned proves particularly serious.
69 Thus, in the case at hand, assuming that the legality of the evaluation report at issue in the main proceedings is confirmed, it is for the referring court to verify, in the light of all the relevant circumstances, whether the severity of the penalty incurred by the applicant in the main proceedings under Article 25(2) of Law No 176/2010 is still commensurate with the seriousness of the conflict of interest identified in that report, taking into account the objective pursued by that law.
70 If this were not to be the case, it would be for that court to interpret that legislation, to the extent possible, as permitting the imposition of a proportionate but still effective and dissuasive sanction, in accordance with Decision 2006/928.
71 It should be recalled that the national courts are bound to interpret, where possible, national law in a manner consistent with EU law and that, although the obligation to interpret national law in a manner consistent with EU law cannot serve as the basis for an interpretation of national law contra legem, those national courts, including those ruling at last instance, must alter their established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with EU law (see, to that effect, judgments of 8 May 2019, Związek Gmin Zagłębia Miedziowego, C‑566/17, EU:C:2019:390, paragraphs 48 and 49, and of 4 March 2020, Telecom Italia, C‑34/19, EU:C:2020:148, paragraph 60 and the case-law cited).
72 In the light of the foregoing, the answer to the question referred is that the principle of proportionality must be interpreted as meaning that it does not preclude national legislation which provides for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office provided that, in the light of all the relevant circumstances, the application of that legislation results in the imposition of a penalty commensurate with the seriousness of the breach which it penalises, having regard to the objective of ensuring integrity and transparency in the exercise and holding of public functions and offices and preventing institutional corruption. That would not be the case where, exceptionally, the unlawful conduct found to have taken place, having regard to that objective, does not have an element of seriousness, whereas the impact of that measure on the personal, professional and economic situation of that person proves particularly serious.
The third question
73 By its third question, the referring court asks, in essence, whether Article 15(1) and Article 47 of the Charter must be interpreted as meaning that it precludes national legislation which provides for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office.
74 With regard to Article 15(1) of the Charter, it provides for the right to engage in work and to pursue a freely chosen or accepted occupation. Moreover, the freedom to pursue a trade or business is a general principle of EU law (see, to that effect, judgment of 29 March 2012, Interseroh Scrap and Metals Trading, C‑1/11, EU:C:2012:194, paragraph 43 and the case-law cited).
75 The ANI and the Romanian Government take the view that the right to hold elective public office does not fall within the scope of Article 15(1) of the Charter since the right to be elected is a political right, as is confirmed by the case-law of the European Court of Human Rights. The Commission also argues that the measure prohibiting the holding of elective public office at issue in the main proceedings does not appear to fall within the scope of that provision, since the elective process does not imply a right for a given person to hold such an office.
76 In that regard, it is true that Article 15(1) of the Charter is worded broadly, as is shown by the use of the terms ‘everyone’, ‘work’ and ‘occupation’.
77 Furthermore, according to the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), the freedom to choose an occupation, enshrined in that provision, is recognised in the case-law of the Court, arising in particular from the judgments of 14 May 1974, Nold v Commission (4/73, EU:C:1974:51, paragraphs 12 to 14); of 13 December 1979, Hauer (44/79, EU:C:1979:290, p. 3727); and of 8 October 1986, Keller (234/85, EU:C:1986:377, paragraph 8). That provision is also inspired by Article 1(2) of the European Social Charter, signed in Turin on 18 October 1961 and revised in Strasbourg on 3 May 1996, which requires effective protection of the right of the worker to earn his or her living in an occupation freely entered upon, as well as by point 4 of the Community Charter of the Fundamental Social Rights of Workers adopted at the meeting of the European Council held in Strasbourg on 9 December 1989, which proclaims that every individual is free to choose and engage in an occupation according to the regulations governing each occupation. Thus, Article 15(1) of the Charter has a broad scope both ratione personae and ratione materiae, as the Advocate General observed in point 85 of his Opinion.
78 That said, that scope, however broad it may be, does not include the right to exercise, for a fixed period, an electoral mandate obtained following a democratic electoral process, such as that of mayor.
79 That interpretation is supported by the fact that Article 15 of the Charter appears in Title II thereof, entitled ‘Freedoms’, whereas specific provisions concerning the right to stand as a candidate at elections, namely Articles 39 and 40 of the Charter relating to the right to vote and to stand as a candidate at elections to the European Parliament and at municipal elections respectively, appear in a separate title, namely Title V, entitled ‘Citizens’ rights’.
80 The case-law of the European Court of Human Rights also supports such an interpretation, since it has held that the right to exercise an electoral mandate, obtained at the end of an electoral process, is a political right, the remuneration of which is simply a corollary (see, to that effect, ECtHR, 8 November 2016, Savisaar v. Estonia, CE:ECHR:2016:1108DEC000836516, §§ 26 and 27).
81 It follows that the right to hold elective public office, in particular that of mayor, does not fall within the scope of Article 15(1) of the Charter, with the result that, in the case at hand, the applicant in the main proceedings cannot usefully rely on that provision.
82 As follows from Article 53 of the Charter, such an interpretation is nevertheless without prejudice to the possibility for the Member States to apply a more favourable standard of protection of the right to work and the freedom to pursue an occupation recognised by their national constitution, provided that that application does not compromise the level of protection provided for by the Charter, as interpreted by the Court.
83 As far as Article 47 of the Charter is concerned, it provides, in its first paragraph, that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article, and specifies, in its second paragraph, that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.
84 The recognition of the right to an effective remedy, for the purposes of that Article 47, in a given case, presupposes that the person invoking that right is relying on rights or freedoms guaranteed by EU law or that that person is the subject of proceedings constituting an implementation of EU law, within the meaning of Article 51(1) of the Charter (see, to that effect, judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 34 and the case-law cited).
85 That is the case here, since the prohibition on holding elective public office for a predetermined period of three years, incurred by the applicant in the main proceedings in the event that the legality of the assessment report drawn up by the ANI is confirmed, is provided for by Law No 176/2010 which, as is apparent from paragraph 27 of the present judgment, implements EU law. Article 47 of the Charter is therefore applicable to the case in the main proceedings.
86 So far as concerns the content of that provision, the principle of effective judicial protection laid down in it comprises various elements: in particular, the principle of equality of arms and the right of access to a court (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horaţiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 42 and the case-law cited).
87 The right to an effective remedy within the meaning of Article 47 of the Charter includes, among other aspects, the possibility, for the person who holds that right, of accessing a court or tribunal with the power to ensure respect for the rights guaranteed to that person by EU law and, to that end, to consider all the issues of fact and of law that are relevant for resolving the case before it (see, to that effect, judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 66 and the case-law cited).
88 In the present case, the right to an effective remedy enshrined in Article 47 of the Charter presupposes, as the Advocate General observed in point 100 of his Opinion, that the referring court is able to review the legality of the ANI’s assessment report calling into question the applicant in the main proceedings and, if necessary, annul that report and the penalties imposed on the basis of it.
89 It is apparent from the file before the Court that the assessment reports drawn up by the ANI contain a description of the facts, the point of view of the person concerned and an assessment of the elements constituting the conflict of interest identified. In addition, the referring court has jurisdiction to examine, in the context of the review which it must carry out of the assessment report at issue in the main proceedings, all the relevant questions of law and fact and, consequently, following that review, to confirm or deny the existence of the conflict of interest. Moreover, should that court reach the conclusion that the assessment report is illegal, it would have the power to annul it and, consequently, to invalidate the measures terminating the term of office and prohibiting the holding of elective public office imposed on its basis.
90 Furthermore, as is apparent from paragraphs 69 and 72 of the present judgment, it is for the referring court to verify that, in the present case, the requirement to impose a proportionate penalty deriving from EU law is complied with.
91 Last, as the Advocate General also observed in point 102 of his Opinion, there is nothing in the file before the Court such as to cast doubt on the effectiveness of the remedies provided for in Romanian law or on the compatibility of the national legislation at issue in the main proceedings with Article 47 of the Charter.
92 In the light of the foregoing, the answer to the question referred is that:
– Article 15(1) of the Charter must be interpreted as meaning that the right to exercise an electoral mandate obtained following a democratic electoral process, such as that of mayor, is not covered by that provision;
– Article 47 of the Charter must be interpreted as meaning that it does not preclude national legislation which provides for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office, provided that the person concerned has had an effective opportunity to challenge the legality of the report that made that finding and the penalty imposed on the basis of it, including its proportionality.
Costs
93 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
1. Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that it does not apply to national legislation which provides, following an administrative procedure, for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office, in the event that that measure is not criminal in nature.
2. The principle of proportionality must be interpreted as meaning that it does not preclude national legislation which provides for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office provided that, in the light of all the relevant circumstances, the application of that legislation results in the imposition of a penalty commensurate with the seriousness of the breach which it penalises, having regard to the objective of ensuring integrity and transparency in the exercise and holding of public functions and offices and preventing institutional corruption. That would not be the case where, exceptionally, the unlawful conduct found to have taken place, having regard to that objective, does not have an element of seriousness, whereas the impact of that measure on the personal, professional and economic situation of that person proves particularly serious.
3. Article 15(1) of the Charter of Fundamental Rights must be interpreted as meaning that the right to exercise an electoral mandate obtained following a democratic electoral process, such as that of mayor, is not covered by that provision.
4. Article 47 of the Charter of Fundamental Rights must be interpreted as meaning that it does not preclude national legislation which provides for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office, provided that the person concerned has had an effective opportunity to challenge the legality of the report that made that finding and the penalty imposed on the basis of it, including its proportionality.
[Signatures]