Op-Ed: “No crime victim gets left behind: the Court of Justice’s judgment in C-129/19 on the right to ‘fair and appropriate compensation’ in purely internal situations” by Amedeo Arena
On 16 July 2020, the Grand Chamber of the Court of Justice handed down its judgment in Case C-129/19, Presidenza del Consiglio dei Ministri v BV, concerning the interpretation of Council Directive 2004/80/EC of 29 April 2004 (the ‘Directive’) and in particular of Article 12(2) thereof (the ‘contested provision’), which requires all Member States to ‘ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims’.
The case stemmed from a request for a preliminary ruling submitted by the Italian Court of Cassation in the context of a dispute between the Italian government and BV, an Italian resident who had been victim of sexual violence in that Member State, over the amount of damages owed by the Italian government for failure to transpose the contested provision in a timely manner.
The Italian Court of Cassation sought a reply to two preliminary questions: (i) do the rules on the non-contractual liability for failure to transpose the contested provision apply to persons residing in a Member State where they suffered a violent intentional crime? (ii) can a fixed rate of 4,800 euros granted to victims of sexual violence be regarded as ‘fair and appropriate compensation’ within the meaning of the contested provision?
At the outset, the Court of Justice noted that the first question was based on the premiss that the contested provision requires Member States to establish a compensation scheme for victims of violent intentional crime only in cross-border situations, when the crime occurs in a Member State other than that where the victim is habitually resident (the ‘cross-border applicability thesis’). Against this view, put forward by the referring court, the Italian Government, and the European Commission, BV argued that the contested provision is applicable to all victims of violent crimes committed in the territory of a Member State, including those habitually residing in that Member State (the ‘general applicability thesis’).
The applicability of the contested provision to purely internal situations has been, for years, a hotly debated topic in academic circles. Some scholars have argued in favour of the cross-border applicability thesis (see R. Mastroianni, La responsabilità patrimoniale dello Stato italiano per violazione del diritto dell’unione: il caso della direttiva sull’indennizzo delle vittime dei reati, Giustizia Civile, 1/2014, 312-318), whilst others have espoused the general applicability thesis (see S. Peers, Reverse discrimination against rape victims: a disappointing ruling of the CJEU, EU Law Analysis, 24 March 2014).
In his Opinion of 14 May 2020, Advocate General Michal Bobek took the view that the text and internal logic of the Directive lend support to the general applicability thesis, that the legislative history leans in the direction of the cross-border applicability thesis, that the legal basis and the purpose of the Directive are ‘agnostic’ to both solutions, and that, whilst the Court of Justice’s rulings in Dell’Orto, Giovanardi, and Paola C are consistent with the cross-border applicability thesis, the recent Grand Chamber judgment in Commission v Italy (crime victims) ‘left that question open’. To overcome such a ‘dead heat’ between the two competing interpretations of the contested provision, the AG resorted to three ‘tiebreakers’ of a ‘broader, constitutional nature’, which ‘resolved the match’ in favour of the general applicability thesis. In particular, the AG invoked Articles 1 and 6 of the Charter of Fundamental Rights and averred that, just as the ‘inviolable and indivisible’ rights to human dignity and security of person are guaranteed to ‘everyone’, so should be the right to fair and appropriate compensation under the contested provision.
The Court of Justice recalled only three of the arguments presented in the Advocate General’s Opinion, albeit without citing them expressly: one in favour of the general applicability thesis and two ‘neutral’ arguments. Just as the Advocate General, the EU judges took the view that the wording of the contested provision, its context, and the architecture of the Directive lend support to the general applicability thesis. The Court then noted that, although recitals 1 and 2 of the Directive focus on cross-border movement, recitals 3, 6, and 10 revolve around the protection of crime victims. The EU judges also observed that, although in Dell’Orto, Giovanardi, and Paola C they had found that purely internal situations were not covered by the scope of the Directive, those judgments did not specifically concern the scope of the contested provision, as clarified in Commission v Italy (crime victims).
As the general applicability thesis was ‘leading the match’ at the end of the Court of Justice’s assessment, there was no need for a ‘tie-break’. Therefore, the Court ruled that the contested provision confers the right to compensation not only on victims of violent intentional crimes committed in the territory of a Member State who find themselves in a cross-border situation, but also on victims who reside habitually in the territory of that Member State where the crime was committed. Accordingly, the latter victims are also entitled to compensation for damage caused by the failure, by the Member State concerned, to transpose the contested provision in a timely manner.
As argued in an earlier post on EU Law Live, there is no hard and fast rule regarding the applicability of EU legislation to purely internal situations: whilst the TFEU free movement provisions generally do not apply to those situations, except in certain circumstances identified by the Court’s case law (see A. Arena, The Wall Around EU Fundamental Freedoms: the Purely Internal Rule at the Forty-Year Mark, Yearbook of European Law, Volume 38, 2019, pp. 153–219), the same judicial presumption does not apply to EU legislation, as there are both EU acts that apply only to cross-border situations and EU acts that also apply to purely internal situations.
Thus, the Court of Justice’s finding in favour of the general applicability thesis was anything but obvious, especially after the Court had ruled in Dell’Orto, Giovanardi, and Paola C that those situations lay outside the scope of the Directive. Yet, the Court did not go down the path of overruling (as it famously did in Keck), but rather of distinguishing its previous case law, by averring that, unlike (the rest of) the Directive, the contested provision also applied to purely internal situations.
Is that finding convincing? Unlike the Advocate General, the Court of Justice only presented arguments that lend support to (or that do not rule out) that conclusion and, in particular, steered clear of the legislative history of the contested provision, which would have been hard to reconcile with the general applicability thesis. Indeed, whilst the original proposal of the Directive laid down (i) minimum standards for the compensation of crimes committed anywhere in the EU and (ii) a mechanism to facilitate access to such compensation in cross-border situations, only the latter part of the proposal received unanimous backing in the Council. The Presidency of the Council thus replaced the first part of the original proposal with the contested provision. One could argue that the enactment of that provision is, if anything, evidence of the EU legislature’s refusal to lay down generally applicable standards for the compensation of crime victims. Against that background, the Court’s finding that the contested provision also applies to purely internal situations has a certain counter-majoritarian flair.
Also the Court of Justice’s reply of the second question draws significantly upon the Advocate General’s Opinion, this time citing it expressly. Just like Advocate General Bobek, the 15 judges making up the Grand Chamber took the view that, in the absence of any indication in the Directive, the contested provision allows Member States a margin of discretion as to the amount of the compensation owed to crime victims, an amount that must not necessarily correspond to the damages owed by the perpetrator of the crime.
By the same token, the Court also observed that Member States can provide a fixed rate of compensation, so long as the compensation can be varied in accordance with the nature of the crime committed and that the amount is not purely symbolic or manifestly insufficient, having regard to the seriousness of the consequences, for the victim, of the violence suffered.
However, unlike the Advocate General, the Court provided guidance as to how those general criteria should apply to the case in the main proceedings. Noting that sexual violence ‘is likely to give rise to the most serious consequences of violent intentional crime’, the Grand Chamber ruled that a fixed rate of 4,800 euros ‘does not appear, at first sight, to correspond to “fair and appropriate compensation”, within the meaning [of the contested provision]’.
As argued in an earlier post, the Advocate General might have willingly refrained from spelling out the consequences of the right to ‘fair and appropriate’ compensation for Member States’ regulatory autonomy as a form of trade-off for his ‘tiebreaker’ in favour of the general applicability thesis based on the scope of the Charter, which has traditionally been a sensitive issue for Member States. The Grand Chamber’s more linear (albeit, perhaps, less rigorous) analysis of the first question, instead, warranted a bolder finding as to the pre-emptive effects of the contested provision on national competences.
All in all, even though the Court of Justice’s reasoning may not be as watertight as it would seem to those who are not familiar with the legislative history of the Directive and the Court’s previous case law, the establishment of compensation schemes for all crime victims, regardless of the EU country where they reside, is an important step in the process of European integration. Paraphrasing what Advocate General Jacobs stated in Konstantinidis, any EU citizen is now entitled to say ‘civis europaeus sum’ and to invoke that status to claim ‘fair and appropriate’ compensation for violent crimes suffered anywhere in the EU, including in the Member State where that citizen habitually resides. This achievement, however, will likely trigger a wave of lawsuits at the national level over the amount of compensation owed to crime victims, both in cross-border and in purely internal situations.
Amedeo Arena is Associate Professor of EU Law at the University of Naples “Federico II”.