Ratti

In that regard, I hardly need to point out that a provision of that kind is by no means peculiar to the directive that was at issue in NE . Indeed, numerous instruments of EU law contain similarly worded provisions or, more generally, introduce equivalent obligations for the Member States. That is also the case of Decision 2006/928, as explained in points 6 and 20 above.

The issue raised in the Commission’s observations is thus likely to be relevant not only in the present proceedings, but also in a variety of other proceedings before national courts. For that reason, I shall seize the opportunity to attempt to clarify the scope of the judgment in NE and, possibly, allay some concerns regarding a potential overreach thereof.

In a nutshell, the Court established two principles in the judgment in NE .

First, the Court found that the requirement for penalties to be proportionate is unconditional and sufficiently precise and, by way of consequence, has direct effect . That means that individuals can rely on the relevant EU provision before national courts against a Member State which has transposed it incorrectly. Second, the Court ruled that the principle of the primacy of EU law must be interpreted as imposing on national authorities the obligation to disapply the national legislation in question only to the extent necessary to enable the imposition of proportionate penalties. Those authorities thus need not disapply that national legislation in its entirety.

In my view, despite overturning a previous judgment on some points, ( 24 ) the Court’s decision in NE is by no means extraordinary. It rather appears to be a logical development of well-established case-law.

It is true that, in the field of penalties, Member States generally enjoy a wide margin of discretion, regardless of whether they act in order to ensure compliance with domestic law or with EU law. ( 25 ) However, it is now widely accepted that, in exercising their competences with regard to enforcement, Member States must have due regard for EU law. ( 26 ) That means that EU law may impose on them certain obligations of facere and non-facere . The following strands of case-law appear particularly relevant in that respect.

On the one hand, Member States cannot prohibit forms of conduct that are required by, or permitted under, EU law and, as a consequence, cannot impose penalties on individuals that contravene those prohibitions. ( 27 ) In addition, beyond the situations just mentioned, Member States can obviously impose penalties on individuals that infringe national law, but the penalties imposed cannot be such as to render ineffective any relevant provision of EU law. ( 28 ) Finally, and more generally, when acting in the field of EU law, Member States cannot impose penalties that infringe the fundamental rights enshrined in the Charter or the general principles of EU law. ( 29 )

On the other hand, since the seminal Greek maize case, the Court has consistently held that, in accordance with Article 4(3) TEU, Member States are to ensure that infringements of EU law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance, and that the penalty must be effective, dissuasive and proportionate to the infringement. Furthermore, the Court added that the national authorities must proceed with respect to infringements of EU law with the same diligence as that which they bring to bear in enforcing corresponding national laws. ( 30 )

Therefore, it seems to me that the judgment in NE builds on well-established case-law in which the Court has derived, from the principles of direct effect, primacy, effectiveness and respect for fundamental rights, certain obligations for, or limitations to, the Member States’ ability to exercise their ius puniendi .

In particular, the fundamental right angle of the NE case cannot be overlooked. In that respect, it must be borne in mind that, as the Court explained in Popławski II , direct effect and primacy are two sides of the same coin. Under EU law, national legislation must be disapplied by the national court only where the conflicting provision of EU law has direct effect. ( 31 ) That means, in practice, that, if an EU provision such as that at issue in NE lacks direct effect, individuals may continue to be subject to disproportionate penalties, even where the non-compliance of the national legislation with EU law has already been established by the Court and the national legislature has not reacted to that. Indeed, individuals may be unable to challenge, before domestic courts, the incompatibility of that legislation with the EU provision in question.

Such a state of affairs could hardly be considered acceptable, under any conceivable standard of fundamental rights protection. In my view, that is reason enough to find that a prohibition of disproportionate penalties (which is inherent to the Member States’ obligation to provide for proportionate measures) ( 32 ) has direct effect.

The second clarification provided by the Court in NE is also, to my mind, consistent with the principles and case-law referred to in points 56 to 58 above. It would be paradoxical if the disapplication of national legislation providing for excessive penalties were to go beyond what was required to ensure the reasonableness of those penalties. The national court’s intervention to ensure the proportionality of the penalties would, in that case, undermine – and unnecessarily so – the effectiveness and the dissuasiveness of those penalties, which are the other requirements laid down in the EU provision in question. In practice, the national court would replace one form of non-compliance with another.

More importantly, as the Court explained – largely echoing the considerations on the point developed by Advocate General Bobek – ( 33 ) the principles of legal certainty, legality and non-retroactivity of criminal offences, as conceived within the EU legal system, do not preclude a re-modulation of the penalty by the judge. Indeed, the penalty would remain within the boundaries of what was set out in national law whilst being applied in a more calibrated manner.

That being said, I understand that doubts have been expressed concerning the scope and implications of the judgment in NE . It has been pointed out that certain Member States’ constitutional systems have a particularly strong (or rigid) concept of ‘legality’, especially in the field of criminal law. Furthermore, some wonder whether the significant leeway, which the judgment appears to give national courts, may not encroach upon the division of competences set out by the national constitutional rules, and/or lead to a breach of the principle of equality in so far as it may be applied differently by the various national courts.

I do not share those concerns.

I am obviously conscious of the fact that the level of protection of certain fundamental rights, as well as the significance and reach of principles such as legal certainty and legality, may vary between the various Member States. There is also no doubt that those principles are, inter alia, connected to the division of competences between the different branches of the State, which is a central element of any national constitutional system. In particular, the relationship between the respective roles of the legislature and of the judiciary depends on the constitutional model chosen by each Member State.

However, the EU legal order accommodates such diversity.

Article 4(2) TEU requires the European Union to ‘respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional’. The EU Treaties are thus agnostic with regard to Member States’ constitutional models governing the relationship and interaction between the various branches of the State, in particular as regards the definition and delimitation of their competences, provided the values enshrined in Article 2 TEU are respected. ( 34 )

In addition, the Court has consistently stated that ‘the national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised’. ( 35 ) More generally, EU law recognises that Member States’ authorities have a certain margin of discretion with regard to the precise way in which fundamental rights should be protected in their respective territories. ( 36 )

The judgment in NE must be read against that background.

In essence, what the judgment in NE requires national courts to do is two-fold. First, they must disapply the relevant national legislation as far as it provides for the imposition of a disproportionate penalty. Second, the disapplication of that legislation by the national courts need not go further than that: when an effective and dissuasive penalty may still be applied, those courts should do so. ( 37 )

The latter condition (when an effective and dissuasive penalty may still be applied) should be emphasised. The manner in which, and the extent to which, a national court can go beyond a mere disapplication of the excessive penalty, which implies a re-modulation of the penalty to be imposed, depends not only on the specific circumstances of the case, but also on the constitutional landscape in which that court operates.

The judgment in NE cannot be read as giving a blank cheque to the national courts to disregard (the nature and extent of) the penalties set out in national law each time they consider those penalties to be excessive, and replace them with the penalties they see fit. Several passages of the judgment in NE make it clear that the Court intended to refer to the (total or partial) disapplication of existing penalties, not the creation of new penalties. ( 38 ) The latter is, in most countries, a task for the national legislature. An inventive approach from a national court in that regard could risk breaching, inter alia, the principle of nulla poena sine lege . ( 39 )

Therefore, the judgment in NE does not require national courts to substitute a penalty found to be excessive with another (proportionate) penalty if, by doing so, they would violate a fundamental right, including those that at national level may be afforded a higher level of protection, or infringe overriding provisions of national constitutional law. I believe that the Court’s findings in M.A.S. in that respect may, mutatis mutandis , be transposed to a situation such as that at issue. ( 40 )

Naturally, I understand that for a national court it may not always be easy to identify the permissible room for manoeuvre when it comes to re-modulating a statutory penalty. In particular, depending on the text of the national legislation at issue and the actual gap between the seriousness of the breach and the gravity of the penalty provided for in that legislation, a variety of interventions are hypothetically conceivable. For example, a court might envisage to disapply some ancillary penalty, calculate the amount of the penalty without taking into account elements which render that amount excessive, or simply go below the statutory minimum. Clearly, some interventions are more ‘invasive’ than others with regard to the role traditionally granted to the legislature. ( 41 )

Yet any uncertainty concerning the correct application of national rules following the declaration of their incompatibility with EU law is normally destined to be short-lived. Indeed, within the typically hierarchically organised national judicial systems, it will be for the national apex courts ( 42 ) to review the decisions of lower courts and, where necessary, unify the case-law at national level. ( 43 ) In order to permit such a control and ensure a uniform interpretation and application of the law vis-à-vis all individuals, it is, in my view, crucial that the lower courts, when re-modulating the penalties, explain adequately the reasons why they considered the statutory penalties to be disproportionate and the parameters they used for re-modulating them.

In addition, where the national legal system offers lower courts the possibility to seek immediate guidance from those higher courts, for example via specific mechanisms of referral, EU law does not in principle preclude recourse to such mechanisms, if the national court considers it useful. Naturally, should issues of interpretation (or validity) of EU law also arise, the referring court may (or should) also seise the Court of Justice under Article 267 TFEU, as there is no incompatibility between the two procedures running in parallel or in sequence. ( 44 ) Although certainly time-consuming and resource-intensive, such a judicial ‘trialogue’ may be particularly useful in some complex situations where EU and national constitutional principles need to be reconciled.

In any event, it is clear to me that the above represents (ideally) only an interim solution to the problem, as one could expect that, in a situation where the national legislation is being disapplied in part because it is incompatible with EU law, the national legislature would step in and amend that legislation so as to remove the aspects giving rise to that incompatibility once and for all.

In the light of the above, I propose the Court answer the first and second questions referred to the effect that: (i) national legislation adopted with a view to implement Decision 2006/928 comes within the scope of EU law; (ii) the principle of proportionality of penalties precludes the application of a penalty such as that at issue if, in the light of all the relevant circumstances of the case, the severity of the penalty at issue is not commensurate with the seriousness of the offences committed by the applicant, account being taken of the objectives pursued by the relevant national legislation, or if that penalty goes beyond what is necessary in order to attain the objectives pursued by the national legislation; and (iii) if that is the case, the national court must disapply that legislation to the extent that it requires the imposition of a disproportionate penalty, whilst doing what is in its power to impose an effective and dissuasive penalty.

Third question: effective legal protecti on and right to engage in work

By its third question, the referring court asks whether the right to engage in work, guaranteed by Article 15(1) of the Charter, and the right to an effective remedy, guaranteed by Article 47 of the Charter, preclude a penalty such as that at issue.

It seems to me that an examination of the compatibility of the national legislation at issue with those provisions of the Charter would most probably be superfluous if the national court were to arrive at the conclusion that that legislation infringes the principle of proportionality. I will thus proceed with the analysis on the basis of the assumption that that legislation complies with the principle of proportionality.

Article 15 of the Charter, entitled ‘Freedom to choose an occupation and right to engage in work’, in its first paragraph, provides that ‘everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’.

That provision lays down a general principle that finds some more specific expression in, or is complemented by, a number of other provisions of the Charter, such as Article 5 (‘Prohibition of slavery and forced labour’) and Article 16 (‘Freedom to conduct a business’). ( 45 ) In addition, the right to work has strong, albeit implicit, links with the protection of human dignity, enshrined in Article 1 of the Charter. ( 46 )

In the ‘Explanations relating to the Charter of Fundamental Rights’ (‘the Explanations’), ( 47 ) reference is made, in the first place, to the case-law of the Court which, since the 1970s, has recognised the existence of a right freely to choose and practice one’s trade or professional activity. ( 48 ) The Explanations also indicate that the provision draws upon Article 1(2) of the European Social Charter ( 49 ) and upon point 4 of the Community Charter of the Fundamental Social Rights of Workers. ( 50 ) The former provision requires the parties to ‘protect effectively the right of the worker to earn his living in an occupation freely entered upon’, whereas the latter declares that ‘every individual shall be free to choose and engage in an occupation according to the regulations governing each occupation’. ( 51 )

Against that background, and in the light of its broad formulation (‘everyone’, ‘work’, ‘occupation’), I believe that Article 15(1) of the Charter is meant to have a rather wide scope ratione personae and ratione materiae . In particular, although special emphasis is placed on the right to self-determination of individuals, the scope of Article 15(1) of the Charter goes far beyond that aspect. Indeed, its wording appears to cover the various dimensions of the right to work: availability, accessibility, acceptability and quality. ( 52 )

Those considerations notwithstanding, I would be hesitant to consider an elective public office, such as that of mayor, to be ‘work’ within the meaning of Article 15(1) of the Charter.

Admittedly, giving a precise and complete definition of ‘work’ – even only for the purposes of Article 15(1) of the Charter – seems an impossible mission. Some dictionaries define ‘work’ as an activity that a person performs in order to earn a livelihood, or as an activity that a person uses physical or mental effort to do, usually for money. If that is so, holding an elective public office could arguably fit in those definitions: it is an activity that requires a (mostly) mental effort and for which the person usually receives compensation.

However, certain key features of elective public office appear to sit uncomfortably with the above: the purpose for which a person engages in the activity (to serve his or her community), but also the manner in which the activity may be acceded to (only through a public election), the limited period of time in which it can be exercised (duration of the mandate), certain special prerogatives which are often attached to its status (in terms of, inter alia, powers, liability, freedom of action), and the characteristics of its retribution (not necessarily commensurate to the importance of the position and the responsibilities borne thereby). I may have a ‘classical’ or perhaps ‘romantic’ vision of elective public office, but I find it hard to consider them as being legally equivalent to an employment, a professional activity or a trade.

That said, regardless of the above, one could also wonder whether the right to stand in public elections in order to accede to a public office is not governed and protected – as leges speciales – by the constitutional provisions which enshrine the political rights of individuals. That would imply, arguably, that penalties such as that at issue would be governed by the rules which concern limitations to the political rights of individuals. In such a case, one should rather turn, at EU level, to, in particular, Articles 39 and 40 of the Charter, ( 53 ) Article 2 TEU, Article 20(2)(b) TFEU and Article 22 TFEU. ( 54 ) However, those provisions too grant certain leeway to the national authorities. ( 55 ) A prohibition to hold any elective public office for a given period of time for individuals found responsible for certain types of unlawful conduct is not prima facie incompatible with those provisions. ( 56 )

In any event, even if one were to take the view that an elective public office should be regarded as ‘work’ within the meaning of Article 15(1) of the Charter, I believe that the limitation introduced by the national legislation at issue could, in principle, be justified.

In that regard, it must be noted that the right to work guaranteed in Article 15(1) of the Charter is not an absolute right, but one that must be considered in relation to its social function, and, consequently, restrictions may be imposed on the exercise of that right under the conditions set out in Article 52(1) of the Charter. ( 57 ) That provision permits limitations to fundamental rights provided that the restrictions are provided for by law, respect the essence of the fundamental right at issue, in fact correspond to objectives of general interest pursued by the measure in question and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference.

Those conditions seem to me to be, at least in principle, satisfied.

The prohibition to run for public office for individuals who have been found to have acted unlawfully in a situation of conflict of interest is, first of all, indisputably provided for by law: Article 25 of Law No 176/2010. Second, the objectives pursued by the penalty at issue correspond to objectives of general interest recognised at EU level: discourage individuals holding a public office to act in pursuit of their own private interests and avoid a possible repetition of such acts. Third, the national legislation at issue appears to respect the essence of the fundamental right at stake. Indeed, what could be regarded as being the ‘untouchable core’ of the right ( 58 ) ( in primis , the ability to seek, free from any imposition, a suitable occupation that could guarantee one’s livelihood) does not appear affected. Only one specific type of position is precluded (elective public office) and for a limited period of time (three years).

Therefore, if the national legislation at issue is, as mentioned in point 81 above, considered proportionate, there would also be no infringement of Article 15(1) of the Charter (were such provision to be applicable).

Article 47 of the Charter (‘Right to an effective remedy and to a fair trial’) provides, inter alia, that ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. That provision codified what the Court has consistently regarded as being a general principle of EU law flowing from the constitutional traditions common to the Member States. ( 59 )

As regards the scope of Article 47 of the Charter, the rights of individuals enshrined therein correspond to those set out in Article 6(1) and Article 13 ECHR, ( 60 ) and the duties of the Member States’ authorities correspond to those imposed in the second subparagraph of Article 19(1) TEU. ( 61 )

At the outset, I would recall that, under Article 47 of the Charter, the recognition of the right to an effective remedy, in a given case, presupposes that the person invoking that right is relying on one or more specific 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. ( 62 )

For the reasons explained in points 20 and 21 above, that is the case in relation to the applicant in the main proceedings and, consequently, Article 47 of the Charter is applicable to those proceedings.

The right to an effective remedy enshrined in Article 47 of the Charter comprises various elements, inter alia, the rights of the defence, the principle of equality of arms, the right of access to a court or tribunal and the right to be advised, defended and represented. ( 63 )

In the present case, that right implies an effective possibility, for the person claiming a breach of his or her rights guaranteed by EU law, of accessing a court or tribunal with the power to ensure respect for those rights and, to that end, to consider all the issues of fact and of law that are relevant for resolving the case before it. ( 64 ) The powers of the national court must obviously include those of reviewing the lawfulness of the act challenged and, if necessary, annul that act and the penalties imposed thereby.

In this case, I understand that the referring court has, in the main proceedings, the ability to consider all the relevant issues of fact and of law when reviewing the validity of the assessment report. Should that report be found to be unlawful, the referring court has the power to set it aside and, by way of consequence, invalidate the imposition of the penalties which are triggered by that report.

Against that background, I fail to see any element in the case file which could denote any infringement of Article 47 of the Charter. In particular, no argument on this point is put forward in the applicant’s submission. Moreover, the information provided by the referring court and by the other parties that submitted observations does not contain any indication that the remedies provided for in national law may actually be ineffective.

In the light of the above, I suggest the Court answer the third question to the effect that Article 15(1) and Article 47 of the Charter do not preclude a penalty such as that at issue, provided that the penalty is proportionate and that the individuals in question effectively have the ability to challenge the lawfulness of the assessment reports and the related penalties.

In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Curtea de Apel Timișoara (Court of Appeal, Timisoara, Romania) as follows:

Original language: English.

For an overview, with further references, see Peters, A. and Handschin, L. (eds.), Conflict of Interest in Global, Public and Corporate Governance , Cambridge University Press, 2012.

Resolution 51/59; see Principle II thereof.

Recommendation No. R (2000) 10 of the Committee of Ministers to Member [States] on codes of conduct for public officials; see Article 8 thereof.

OJ 2006 L 354, p. 56.

Hereinafter referred to as ‘ECHR’.

Hereinafter referred to as ‘the ECtHR’.

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 , paragraphs 153 to 165).

See, for example, judgment of 22 March 2022, bpost (C‑117/20, EU:C:2022:202 , paragraph 25 and the case-law cited).

On the relevance of this last element, see, inter alia, ECtHR, decision of 1 February 2007, Storbråten v. Norway (CE:ECHR:2007:0201DEC001227704).

See, inter alia, ECtHR, judgments of 28 October 1999, Escoubet v. Belgium (CE:ECHR:1999:1028JUD002678095, § 37), and of 17 June 2021, Miniscalco v. Italy ( CE:ECHR:2021:0617JUD005509313 , § 64).

See, inter alia, ECtHR judgments of 9 October 2003, Ezeh and Connors v. United Kingdom (CE:ECHR:2003:1009JUD003966598, § 103); of 23 November 2006, Jussila v. Finland (CE:ECHR:2006:1123JUD007305301, § 38); and of 19 February 2013, Müller-Hartburg v. Austria (CE:ECHR:2013:0219JUD004719506, §§ 42 to 49).

See, for example, ECtHR, judgment of 13 February 2003, Refah Partisi (The Welfare Party) and Others v. Turkey (CE:ECHR:2003:0213JUD004134098), and decision of 6 December 2018, Cătăniciu v. Romania (CE:ECHR:2018:1206DEC002271717, §§ 38 to 41). For more references to ECtHR case-law and to the decisions of the (now dissolved) European Commission of Human Rights, see Guide on Article 6 of the European Convention on Human Rights , prepared by the Registry of the ECtHR, 2022, pp. 14 and 15 (available online).

See ECtHR, judgments of 21 October 1997, Pierre-Bloch v. France (CE:ECHR:1997:1021JUD002419494, §§ 53 to 60); of 6 January 2011, Paksas v. Lithuania (CE:ECHR:2011:0106JUD003493204, §§ 66 to 68); and of 17 June 2021, Miniscalco v. Italy ( CE:ECHR:2021:0617JUD005509313 , §§ 59 to 73); and the decision of 18 May 2021, Galan v. Italy (CE:ECHR:2007:0424JUD003818403, §§ 80 to 97).

See ECtHR, judgment of 24 April 2007, Matyjek v. Poland (CE:ECHR:2007:0424JUD003818403). However, as the ECtHR explained in Galan v. Italy (see previous footnote, § 77), there were particular circumstances in the Matyjek case, including: (i) the rather large number of people affected by the relevant legislation, (ii) the imposition of the penalty by a court composed of judges sitting in the criminal divisions of the courts following a procedure in which the rules of the Code of Criminal Procedure were applied, (iii) the particular severity of the penalty (removal of the individual from his or her position in the public service and a ban on him or her applying for a large number of positions for 10 years).

See, for example, judgment of 4 October 2018, Link Logistik N&N (C‑384/17, EU:C:2018:810 , paragraph 40 and the case-law cited).

See, inter alia, judgments of 5 March 2020, OPR-Finance (C‑679/18, EU:C:2020:167 , paragraph 26), and of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112 , paragraph 38).

See, for example, judgment of 16 July 2015, Chmielewski (C‑255/14, EU:C:2015:475 , paragraph 22 and the case-law cited).

Similarly and with further references to the case-law, Opinion of Advocate General Wathelet in Chmielewski (C‑255/14, EU:C:2015:308, points 29 and 30).

See, inter alia, judgments of 12 July 2001, Louloudakis (C‑262/99, EU:C:2001:407 , paragraphs 69 to 71), and of 9 February 2012, Urbán (C‑210/10, EU:C:2012:64, paragraphs 29 and 41). See also Opinion of Advocate General Mengozzi in Billerud Karlsborg and Billerud Skärblacka (C‑203/12, EU:C:2013:320, point 42).

See judgment of 16 July 2015, Chmielewski (C‑255/14, EU:C:2015:475 , paragraphs 28 and 29). See also, by analogy, judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka (C‑203/12, EU:C:2013:664 , paragraph 38).

See, to that effect, judgment of 11 February 2021, K. M. (Sanctions imposed on the master of a vessel) (C‑77/20, EU:C:2021:112 , paragraph 39).

Judgment of 8 March 2022 (C‑205/20, EU:C:2022:168 ).

See paragraph 29 of the judgment in NE .

Obviously, the subject matter is particularly complex and, for the purposes of the present case, there is no need to elaborate in that regard, as that would require a rather lengthy and detailed discussion.

See the seminal judgment of 11 November 1981, Casati (203/80, EU:C:1981:261, paragraph 27). See also judgment of 28 April 2011, El Dridi (C‑61/11 PPU, EU:C:2011:268 , paragraphs 53 to 55).

See, for example, judgment of 5 April 1979, Ratti (148/78, EU:C:1979:110, paragraph 24).

See, inter alia, judgments of 7 July 1976, Watson and Belmann (118/75, EU:C:1976:106, paragraphs 18 to 21), and of 29 February 1996, Skanavi and Chryssanthakopoulos (C‑193/94, EU:C:1996:70, paragraphs 35 to 39).

See, in particular, judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105 , paragraphs 17 to 27).

Judgment of 21 September 1989, Commission v Greece (68/88, EU:C:1989:339, paragraphs 23 to 25). See also judgment of 13 September 2005, Commission v Council (C‑176/03, EU:C:2005:542, paragraph 31).

Judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530 ).

Opinion of Advocate General Bobek in Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2021:759 , point 37). Hereinafter referred to as ‘the Opinion in NE ’.

Ibid., points 91 to 111.

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 43 and the case-law cited). See also judgment of 21 December 2016, Remondis (C‑51/15, EU:C:2016:985 , paragraphs 40 and 41).

See, inter alia, judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936 , paragraph 47 and the case-law cited).

See, in particular, judgments of 14 October 2004, Omega (C‑36/02, EU:C:2004:614 , paragraph 37), and of 7 September 2022, Cilevičs and Others (C‑391/20, EU:C:2022:638 , paragraph 82 and the case-law cited).

See, by analogy, judgment of 19 December 2019, Deutsche Umwelthilfe (C‑752/18, EU:C:2019:1114 , paragraphs 29 to 56).

See, especially, paragraphs 42, 44, 52 and 53 of the judgment in NE .

Set out, at EU level, in Article 49(1) of the Charter. That principle implies that ‘legislation must define clearly offences and the penalties which they attract’. See, inter alia, judgment of 3 May 2007, Advocaten voor de Wereld (C‑303/05, EU:C:2007:261 , paragraph 50 and the ECtHR case-law cited). Emphasis added.

Judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936 , paragraphs 46 ff. and the case-law cited). Similarly, the Opinion of Advocate General Bobek in NE, point 111.

See, in that respect, Viganò, F., ‘La proporzionalità della pena tra diritto costituzionale italiano e diritto dell’Unione europea: sull’effetto diretto dell’art. 49, paragrafo 3, della Carta alla luce di una recentissima sentenza della Corte di giustizia’, 2022, Sistema Penale , available online.

Such as, for example, constitutional courts, supreme courts and/or councils of State.

See, to that effect, the Opinion of Advocate General Bobek in NE , points 102 to 104.

On this subject, see Amalfitano, C. and Cecchetti, L., ‘Sentenza n. 269/2017 della Corte costituzionale e doppia pregiudizialità: l’approccio della Corte di giustizia dell’Unione europea’, 2022, Eurojus, pp. 206 to 217.

See, inter alia, Opinion of Advocate General Wahl in Schaible (C‑101/12, EU:C:2013:334, points 23 to 26).

See, in that regard, Opinion of Advocate General Bobek in Lidl (C‑134/15, EU:C:2016:169, point 26). Extensively on this topic, see also Ashiagbor, D., ‘Comment to Article 15 of the Charter’, in Peers, S., Hervey, T., Kenner, J. and Ward, A. (eds), The EU Charter of Fundamental Rights – A Commentary , Hart Publishing, 2014, pp. 425 to 427.

Document 2007/C 303/02 (OJ 2007 C 303, p. 17).

The Explanations refer to 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); and of 8 October 1986, Keller (234/85, EU:C:1986:377, paragraph 8).

Signed at Turin on 18 October 1961 and amended on 3 May 1996.

Adopted on 9 December 1989 by a declaration of all Member States, with the exception of the (then Member State) United Kingdom.

Emphasis added.

I borrow this expression from the UN Economic and Social Council’s General Comment No 18, ‘The right to work’, adopted on 24 November 2005.

Those provisions concern, in turn, the ‘Right to vote and to stand as a candidate at elections to the European Parliament’ and the ‘Right to vote and to stand as a candidate at municipal elections’. In the present case, the latter provision is particularly relevant.

According to Article 2 TEU, ‘democracy’ is among the European Union’s founding values. Inter alia, Articles 9 to 12 and Article 14(3) TEU, as well as Article 223(1) TFEU also contain rules on democratic principles.

See, in addition, Articles 8 and 12 of the Act concerning the election of the members of the European Parliament by direct universal suffrage (OJ 1976 L 278, p. 5), as amended; and Article 6(1) of Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (OJ 1993 L 329, p. 34), as amended.

See, by analogy, judgment of 6 October 2015, Delvigne (C‑650/13, EU:C:2015:648 , paragraph 40 et seq.). Nor is such a measure prima facie incompatible with the ECHR; see the ECtHR case-law referred to above.

See, to that effect, judgment of 7 July 2016, Muladi (C‑447/15, EU:C:2016:533 , paragraph 51 and the case-law cited).

For that expression, with further references, see Opinion of Advocate General Saugmandsgaard Øe in Poland v Parliament and Council (C‑401/19, EU:C:2021:613 , points 98 and 99).

See judgment of 15 May 1986, Johnston (222/84, EU:C:1986:206, paragraph 18).

See 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 117 and the case-law cited).

See, inter alia, judgment of 1 August 2022, Staatssecretaris van Justitie en Veiligheid (Refusal to take charge of an Egyptian unaccompanied minor) (C‑19/21, EU:C:2022:605 , paragraph 36 and the case-law cited).

See, recently, 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). See also my Opinion in Staatssecretaris van Justitie en Veiligheid (Refusal to take charge of an Egyptian unaccompanied minor) (C‑19/21, EU:C:2022:279 , points 46 and 47 and the case-law cited).

See, for example, judgment of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684 , paragraph 48).

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).