2) Specifically, the referring court asks the Court of Justice to determine whether such rules, which were introduced in Austria recently, are compatible with (i) freedom of establishment under Articles 49 TFEU and 54 TFEU and the provisions concerning penalties for failure to disclose accounts laid down by the EU directives on companies and (ii) the principles of effective judicial protection, respect for the rights of the defence and non bis in idem, entrenched in various provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’).

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22) Seised of Texdata’s appeal against the two orders, the Oberlandesgericht Innsbruck, the referring court, is uncertain as to whether the Austrian legislation at issue, as amended in 2011, is compatible with EU law. It therefore stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘Does [EU] law, as it stands at present, and in particular:

[(a)] freedom of establishment, as laid down in Articles 49 TFEU and 54 TFEU;

[(b)] the general legal principle (Article 6(3) TEU) of effective judicial protection (principle of effectiveness);

[(c)] the principle of the right to a fair hearing laid down in the second paragraph of Article 47 of the [Charter] (Article 6(1) TEU) and in Article 6(2) of the [ECHR] (Article 6(1) TEU);

[(d)] the principle of non bis in idem laid down in Article 50 of the [Charter]; or

[(e)] the rules governing penalties in the disclosure procedure under Article 6 of [the First Directive], Article 60a of [the Fourth Directive] and Article 38(6) of Seventh Directive 83/349/EEC; ( 9 )

preclude national rules under which, in cases where the statutory nine-month period allowed for compiling and disclosing annual accounts to the relevant court maintaining the commercial register is exceeded, that court is required, first, to impose immediately a minimum periodic penalty of EUR 700 on the company and on each of the bodies authorised to represent it, on the ground that, in the absence of proof to the contrary, they are liable for that failure to effect timely disclosure and, secondly, to impose immediately a new minimum periodic penalty of EUR 700 on the company and on each of the bodies authorised to represent it, in respect of further failure for every two-month period thereafter, on the basis of the same presumption of liability, and in both cases 

• without first allowing them an opportunity to state views on the existence of the obligation to disclose or to invoke any obstacles to doing so and, in particular, without prior examination as to whether those annual accounts have in fact already been submitted to the court which maintains the register for the judicial district in which the principal place of business is situated; and
• without first giving the company or the bodies authorised to represent it notice to comply with the disclosure obligation?’

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60) By points (b), (c) and (d) of its question, the national court asks in essence whether the principles of effective judicial protection, respect for the rights of the defence and non bis in idem, as established under the Charter and the ECHR, must be construed as precluding national rules of the kind provided for under the UGB, as amended in 2011 and described in points 10 to 16 above, on the system of penalties for failing to comply with the requirements to disclose the accounting documents of capital companies.

61) The three principles cited by the national court have all been recognised by the Court as general principles of EU law. They are now entrenched in various provisions of the Charter (as well as of the ECHR) and have acquired the status of fundamental rights of the European Union.

62) More specifically, according to settled case-law, the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States. ( 34 ) It is entrenched in Articles 6 and 13 of the ECHR and has been reaffirmed in Article 47 of the Charter.

63) The principle of respect for the rights of the defence in all proceedings in which penalties may be imposed has, on several occasions, been defined by the Court as a fundamental principle of EU law. ( 35 ) It is provided for in Article 6(3) of the ECHR, and has been codified in the Charter in Articles 41(2)(a) and 48(2).

64) The prohibition on penalising or prosecuting the same offence for a second time (the principle of non bis in idem) has also been recognised by the Court as a general principle of law. ( 36 ) It is specifically provided for in Article 4 of Protocol No 7 to the ECHR and in Article 50 of the Charter.

65) The national court’s reference to those principles and to the relevant provisions of the Charter raises two questions which were extensively debated at the hearing: (i) the question raised by the Austrian Government, in both its written observations and at the hearing, as to whether or not the provisions of the Charter are applicable to a case such as that before the referring court; and (ii) the question, specifically envisaged by the national court, as to whether or not the system of penalties provided for under the national legislation at issue is of a criminal law nature; were the system to be classified as a criminal law regime, the application of the abovementioned principles would be affected.

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66) Under Article 51(1) thereof, the Charter applies ‘to the Member States only when they are implementing Union law’.

67) The Austrian Government notes that, although the abovementioned directives require Member States to provide for appropriate penalties for breach of the disclosure requirements, EU law lays down no detailed provisions in relation to either the procedure for imposing penalties or the procedure for raising objections. In its view, since the Member States enjoy procedural autonomy, the Charter does not in principle apply in the context of a case such as that before the referring court.

68) In that regard, I have to point out that the concept of the Member States’ ‘implementing Union law’ and, consequently, the scope of the Charter are matters that have recently been the subject of extensive debate, both in legal literature and, above all, among the Advocates General. ( 37 )

69) However, without dwelling on the potential – more or less restrictive – interpretations of Article 51(1) of the Charter and, consequently, on the range of possibilities as to the scope attributable to the Charter itself, I would point out that, in the present case, not only do the disclosure requirements – to which the system of penalties at issue relates – derive directly from EU law, but the penalties themselves are laid down by national law in direct implementation of EU law, and of the First Directive, the Fourth Directive and the Eleventh Directive, in particular, which require the Member States to provide for appropriate penalties in order to ensure compliance with the disclosure requirements. ( 38 ) It follows that the national law lays down specific provisions governing the procedure for imposing penalties explicitly provided for under EU law, including the detailed procedural rules for appealing against such penalties.

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71. In the light of the foregoing considerations, I therefore consider that the provisions of the Charter must apply in the present case.

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101) The national court lastly expresses twofold doubt concerning the compatibility of the national rules with the principle of non bis in idem. That principle, as set out in Article 50 of the Charter, states that no one may be tried or punished again in criminal proceedings for an offence for which he has already been finally acquitted or convicted within the European Union in accordance with the law.

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108) For the reasons set out above, I therefore propose that the Court give the following answer to the question referred by the Oberlandesgericht Innsbruck:

National legislation under which, in cases where the statutory nine-month period for disclosing annual accounts to the relevant court has expired, requires that court – without first allowing an opportunity to state views and without first putting the company concerned, or the bodies authorised to represent it, on notice to comply with the disclosure obligation – to impose immediately a fine of EUR 700 on the company and on each of the bodies authorised to represent it, and, in the event of continuing failure for a two-month period, immediately to impose in respect of each such period further minimum fines in the amount of EUR 700 on those same persons is not precluded by the freedom of establishment laid down in Articles 49 TFEU and 54 TFEU and the principles of effective legal protection, respect for the rights of the defence and non bis in idem, laid down in Articles 47, 48(2) and 50 of the Charter of Fundamental Rights of the European Union, or by Directive 2009/101/EC, Fourth Directive 78/660/EEC and Eleventh Directive 89/666/EEC.