Avis juridique important

Judgment of the Court (Sixth Chamber) of 1 February 1996. - Criminal proceedings against Gianfranco Perfili. - Reference for a preliminary ruling: Pretura circondariale di Roma - Italy. - Freedom of establishment - Freedom to provide services - Judicial procedure - Discrimination. - Case C-177/94. European Court reports 1996 Page I-00161

Summary Parties Grounds Decision on costs Operative part

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1. Community law ° Principles ° Equal treatment ° Discrimination on grounds of nationality ° Definition ° National measures applicable to all persons within the jurisdiction of a Member State ° Exclusion ° National legislation requiring the victim of a criminal offence who wishes to bring suit as a civil party in criminal proceedings to grant his representative a special power of attorney ° Whether permissible

(EC Treaty, Arts 6, 52 and 59)

2. Community law ° Principles ° Fundamental rights ° Observance ensured by the Court ° Compatibility with the European Convention on Human Rights of national legislation lying outside the scope of Community law ° Assessment by the Court ° Not possible

1. Article 6 of the EC Treaty, in conjunction with Articles 52 and 59 thereof, laying down the principle of non-discrimination on grounds of nationality, must be interpreted as not precluding a Member State' s legislation from requiring a victim of a criminal offence who wishes to bring suit as a civil party in criminal proceedings to grant his representative a special power of attorney, even when the law of the Member State of which the victim is a national does not lay down such a formality.

2. Where national legislation falls within the field of application of Community law, the Court, when requested to give a preliminary ruling, must provide the national court with all the elements of interpretation which are necessary in order to enable that court to assess the compatibility of that legislation with the fundamental rights ° as laid down in particular in the European Convention of Human Rights ° the observance of which the Court ensures. However, the Court has no such jurisdiction with regard to national legislation lying outside the scope of Community law.

In Case C-177/94,

REFERENCE to the Court under Article 177 of the EC Treaty by the Pretura Circondariale, Rome, Sezione Distaccata di Frascati, for a preliminary ruling in the criminal proceedings before that court against

Gianfranco Perfili,

Civil party: Lloyd' s of London,

on the interpretation of Articles 3, 5 and 6 of the EC Treaty and Article 6 of the European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms,

THE COURT (Sixth Chamber),

composed of: C.N. Kakouris, President of the Chamber, G.F. Mancini, F.A. Schockweiler (Rapporteur), J.L. Murray and H. Ragnemalm, Judges,

Advocate General: P. Léger,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

° Mr Perfili, defendant in the main proceedings, by A. Rossotti and D. Vicini, of the Rome Bar,

° Lloyd' s of London, by A. Giorgetti, of the Milan Bar,

° the Commission of the European Communities, by A. Aresu and P. van Nuffel, of its Legal Service, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 16 November 1995,

gives the following

Judgment

1 By order of 2 June 1994, received at the Court on 28 June 1994, the Vice Pretore (Assistant Magistrate) of the Pretura Circondariale (District Magistrate' s Court), Rome, Sezione Distaccata di Frascati (Frascati Division), referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Articles 3, 5 and 6 of the Treaty and Article 6 of the European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms ("the European Convention on Human Rights").

2 Those questions arose in criminal proceedings pending before the national court against Mr Perfili when the insurance company, Lloyd' s of London ("Lloyd' s"), applied to intervene in those proceedings as an injured civil party.

3 According to the documents furnished by the national court and the written observations submitted by the parties to the main proceedings and by the Commission, Lloyd' s appointed a general representative for Italy by a general power of attorney which was drawn up under English law and in accordance with the Hague Convention of 5 October 1961 abolishing the requirement of legalization of foreign public documents.

4 Mr Perfili, a jeweller at Colonna (Rome), took out an insurance policy with Lloyd' s against theft. Two years later, Mr Perfili declared a theft of some jewellery to Lloyd' s.

5 Following investigations, the Italian judicial authorities summoned Mr Perfili to appear before the Pretura (Magistrate' s Court), Rome, on charges of falsely reporting an unlawful act and of attempted fraud, both serious criminal offences. Lloyd' s general representative for Italy conferred on a lawyer a special power of attorney, in accordance with the Italian rules of procedure, so that he could pursue a civil claim for damages on the company' s behalf in the criminal proceedings against Mr Perfili.

6 According to the national court, Article 78 of the Italian Code of Criminal Procedure, concerning the pursuit of civil claims in criminal proceedings, provides that where a person suffering damage as a result of the commission of a criminal offence wishes to bring suit in criminal proceedings by the intermediary of a representative, that person must give the latter a special power of attorney. Lloyd' s could not bring a civil action since the general power of attorney conferred on its general representative for Italy did not confer a special power to bring such an action in the criminal proceedings against Mr Perfili. Under English law, however, a general power of attorney given to a representative may implicitly signify an intention to grant such a power.

7 The national court concluded that, where victims of crime wished to assert their interests in civil law through special attorneys, there was manifestly unequal treatment of Italian and British nationals. The latter were in effect prevented from expressing their intentions and their scope for acting was restricted by the existence in Italy of a special set of rules which did not exist under their own legal system.

8 Since the national court was unsure whether the Italian rules of procedure were compatible with Articles 3, 5 and 6 of the Treaty and Article 6 of the European Convention on Human Rights, under which every individual is entitled, in the determination of his civil rights and obligations or of any criminal charge against him, to a hearing by an independent and impartial tribunal established by law, it decided to refer the following two questions to the Court for a preliminary ruling:

(1) "Is Article 78 of the Italian Code of Criminal Procedure currently in force contrary to Articles 3, 5 and 6 of the Treaty of Rome in that it requires a Community national ° a British national in this case ° as the victim of a crime who intends to bring suit as a civil party in criminal proceedings, to draw up a specific legal document, not provided for under his own national legal system, conferring a special power of attorney for bringing suit as a civil party in criminal proceedings, which may be unnecessary under English law because it is implicit in a general power of attorney?"

(2) "Is Article 78 of the Code contrary to Article 6 of the Convention on Human Rights of 4 November 1950 and is that Convention relevant to this case?"

The first question

11 Articles 2 and 3 of the Treaty envisage, in particular, the establishment of a common market on which goods, persons, services and capital may move freely and conditions of competition are not distorted. That aim is to be attained by, inter alia, prohibiting any form of discrimination on grounds of nationality. That prohibition is laid down by Article 6 of the Treaty and forms the subject-matter of the question referred by the national court.

12 The first question must accordingly be understood as asking whether Article 6 of the Treaty is to be interpreted as precluding a Member State' s legislation from requiring a victim of a criminal offence who wishes to bring suit as a civil party in criminal proceedings to grant his representative a special power of attorney even when the law of the Member State of which the victim is a national does not lay down such a formality.

13 The first paragraph of Article 6 of the Treaty provides that, within the scope of the Treaty' s application and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality is to be prohibited.

14 The general principle of non-discrimination laid down by Article 6 can only apply, therefore, subject to the special provisions of the Treaty (see the judgment in Case 8/77 Sagulo, Brenca and Bakhouche [1977] ECR 1495, paragraph 11).

15 In the sphere of freedom of movement, that rule has been implemented, as regards the right of establishment, by Articles 52 to 58 of the Treaty and, as regards services, by Articles 59 to 66 of the Treaty.

16 National legislation governing the procedure for bringing suit as a civil party in criminal proceedings affects the ability of an insurance company established in another Member State to defend its interests under civil law in the host State and must be examined in the light of the Treaty' s provisions concerning freedom of establishment or freedom to provide services in the host State.

The second question

21 In the light of the reply given to the first question, there is no need to answer the second question.

Costs

22 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber)

in answer to the questions referred to it by the Vice Pretore of the Pretura Circondariale, Rome, Sezione Distaccata di Frascati, by order of 2 June 1994, hereby rules:

Article 6 of the EC Treaty in conjunction with Articles 52 and 59 thereof, laying down the principle of non-discrimination on the grounds of nationality, must be interpreted as not precluding a Member State' s legislation from requiring a victim of a criminal offence who wishes to bring suit as a civil party in criminal proceedings to grant his representative a special power of attorney, even when the law of the Member State of which the victim is a national does not lay down such a formality.