C-274/96

1. Can a national of a Member State rely on minorities. To give effect to that provision, the principle of non-discrimination on Article 99 of Presidential Decree N o 670/1992 grounds of nationality in order to be granted provides that in the Trentino-Alto Adige the right to have criminal proceedings against Region German is to have the same status as him in another Member State conducted in a Italian, the official language of the State. language other than the official language of Article 100 of the Decree provides inter alia that other State where that right is granted to that German-speaking citizens of the Prov- certain nationals of that Member State? That ince of Bolzano are to have the right to use is the issue raised in the Italian criminal pro- their own language in relations with judicial ceedings against Mr Bickel and Mr Franz. bodies situated in that province. It appears Mr Bickel is an Austrian lorry driver who is that what is meant by 'citizens' is persons being prosecuted for driving under the influ- who are resident in Bolzano. ence of alcohol; Mr Franz is a German national being prosecuted for carrying a prohibited knife while visiting Alto Adige as a tourist. The criminal proceedings against them are taking place in Bolzano, situated in the Trentino-Alto Adige Region, where because of the presence of a large German-speaking minority German has the same status as Italian. Thus residents of the Province of Bolzano have the right to opt for the use of German in criminal proceedings. The question raised in the main proceedings is whether Commu- 3. Presidential Decree N o 574/1988 lays down nity law requires that right to be extended to further rules concerning the use of languages Mr Bickel and Mr Franz. in relations between certain judicial bodies and the citizens of the Province of Bolzano. Under Article 15 of that Decree, a judicial body must, when drawing up a procedural document to be communicated to or served Background on a suspect or accused person, 'use his pre- sumed language, to be determined on the basis of his known membership of a language group and other information already obtained in the course of the proceedings'. Under Article 16 an accused person can opt for the other lan- 2. Article 6 of the Italian Constitution pro- guage (German or Italian, depending on the vides that the Republic shall protect linguistic case) when first questioned by the judge. Under Article 17 an accused person may decide, following the first examination, 'by * Original language: English. declaration signed by him and submitted in

6. Mr Bickel is an Austrian lorry driver of German mother tongue, residing in Nüziders, Austria. O n 15 February 1994 he was stopped in the vehicle he •was driving by a police patrol 7. Mr Franz is a German national of German in Castelbello (Bolzano) and charged with the mother tongue, residing at Peissenberg, Ger- offence of driving under the influence of many. In May 1995 he visited Alto Adige as alcohol, contrary to Article 186(2) of the a tourist. O n 5 June 1995, upon inspection by Codice della Strada (Traffic Code). O n 24 July customs officers at Tubre, he was charged 1995 the Bolzano Magistrate delivered a judg- with an offence contrary to Article 4 of Law ment in the Italian language imposing on the 110/75, namely carrying a prohibited knife. defendant a fine of LIT 876 000 (partly in O n 8 March 1996 a bilingual summons to place of five days' imprisonment) and sus- appear at a preliminary hearing fixed for pending his driving licence for 25 days. Since 25 June 1996 was served on the defendant.

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That hearing was adjourned to 23 July 1996, ality embodied in Article 6 of the Treaty. The the orders for adjournment being drawn up procedural provisions in issue are said to fall in Italian. O n 1 July 1996 the defendant sent within the scope of the Treaty in the light of a document to the judicial authorities in which the provisions of Article 8a, in particular the he declared that he did not know the Italian right to move freely conferred upon all citi- language and requested that the proceedings zens of the European Union, and of Article against him should therefore take place in his 59 on the freedom to provide services. The mother tongue. referring court considers that in the circum- stances of the present case there is a suffi- ciently close link with those freedoms, and thus with the Treaty, in order to trigger the principle of non-discrimination.

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OPINION OF MR JACOBS — CASE C-274/96

concerned. The Court based its conclusion aimed at approximating the weapons legisla- that he was entitled to use German on the tion of the Member States with a view to ground that a migrant worker's right to use abolishing controls and formalities at intra- his own language in court proceedings on the Community frontiers. 4 It mainly concerns same terms as national workers was impor- firearms, but contains a number of provisions tant in ensuring his and his family's integra- also on other weapons. In particular, Article tion into the host country and hence that it 14 obliges Member States to adopt all rel- fell within the meaning of the term 'social evant provisions prohibiting entry into their advantage' in Article 7(2) of Regulation N o territory of a weapon other than a firearm 1612/68. 2 The ruling does not therefore pro- provided that the national provisions of the vide a direct answer to either of the issues Member State in question so permit. More- raised by the present case. over, Article 16 provides that Member States shall introduce penalties for failure to comply with the provisions adopted pursuant to the directive.

The scope of application of the Treaty

14. The order for reference states that Mr Franz was charged following an inspec- 12. Article 6 of the Treaty prohibits discrimi- tion by customs officers. If Mr Franz was nation on grounds of nationality 'within the entering, or had entered, Italy in possession scope of application of this Treaty'. The first of a prohibited •weapon (or, possibly, if he issue therefore is whether the putative dis- was seeking to go to another Member State in crimination in this case falls within the scope possession of such a weapon), his situation of the Treaty. would fall within the ambit of the Commu- nity legislation, with the result that the crim- inal proceedings against him would be subject to the prohibition of discrimination on grounds of nationality.

that ground; and in any event in the case of State the protection of that person from harm Mr Bickel there is no such link with Com- in the Member State in question, on the same munity law. There appear to be no provisions basis as that of nationals and persons residing in the Treaty or in Community legislation there, is a corollary of that freedom of move- which, as such, might bear on the substance ment. It follows that the prohibition of dis- of the charge brought against Mr Bickel, crimination is applicable to recipients of ser- namely driving under the influence of alcohol. vices within the meaning of the Treaty as Mr Bickel's case therefore raises the general regards protection against the risk of assault issue whether criminal proceedings against a and the right to obtain financial compensa- Community citizen based on alleged facts tion provided for by national law when that which occurred while that citizen exercised risk materialises. The fact that the compensa- his right to free movement come within the tion at issue is financed by the Public Trea- scope of application of the Treaty and are sury cannot alter the rules regarding the pro- therefore subject to the prohibition of dis- tection of the rights guaranteed by the Treaty.' crimination on grounds of nationality.

'Every citizen of the Union shall have the right to move and reside freely within the ter- ritory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.'

19. In Cowan the only connection with Com- munity law was that the facts occurred while Mr Cowan was in France as a recipient of services. By holding that that was sufficient to trigger the prohibition of discrimination the Court effectively brought any person exer- 21. It may be concluded from that provision cising his right to enter another Member State that, where a citizen exercises his right to within the protection offered by Article 6. 9 move and reside within the territory of the Member States, his situation falls within the scope of the Treaty for the purposes of the prohibition of discrimination on grounds of nationality. It therefore re-affirms the conclu- sion that that prohibition applies to criminal proceedings arising in the course of the exer- cise of a citizen's freedom of movement.

23. It may be however that the time has come tence in criminal matters to the Community. for even that question to be answered affir- It merely recognises the fact that, as the Court matively. The notion of citizenship of the noted in Cowan, 11 Member States must exer- Union implies a commonality of rights and cise their powers in this area in conformity obligations uniting Union citizens by a with the fundamental principle of equal treat- common bond transcending Member State ment. nationality. The introduction of that notion was largely inspired by the concern to bring the Union closer to its citizens and to give expression to its character as more than a purely economic union. That concern is reflected in the removal of the word 'eco- nomic' from the Community's name (also effected by the Treaty on European Union) and by the progressive introduction into the E C Treaty of a wide range of activities and 26. It is true that in some cases in which policies transcending the field of the economy. Article 6 was in issue, the Court has sought to establish a link with intra-Community trade: that appears to be so in Phil Collins, 12 which concerned copyright and related rights, and in Data Delecta and Hayes, 13 in the con- text of rules on security for costs in civil pro- ceedings. But it cannot be inferred from that 24. Against that background it would be dif- that the Court rejected a broader view of the ficult to explain to a citizen of the Union scope of Article 6. how, despite the language of Articles 6, 8 and 8a, a Member State other than his own could be permitted to discriminate against him on grounds of his nationality in any criminal proceedings brought against him within its territory. Freedom from discrimination on grounds of nationality is the most funda- mental right conferred by the Treaty and must be seen as a basic ingredient of Union citizen- ship. 10 27. It should finally be emphasised that not every rule which works to the particular dis- advantage of non-nationals entails discrimina- tion contrary to Article 6. In particular it is open to Member States to show that advan- tages reserved to nationals or to residents are objectively justified on grounds unrelated to 25. Such a conclusion does not of course entail a transfer of Member States' compe-

nationality. It is however increasingly difficult 30. The Italian Government adds that non- to see why Community law should accept residents do not participate in the social con- any type of difference in treatment which is tacts, living conditions and problems which based purely on nationality, except in so far are specific and exclusive to residents of Bol- as the essential characteristics of nationality zano. The rule is merely aimed at protecting are at stake, such as access to a limited range a specific linguistic minority in Italy, whilst of posts in the public service, or the exercise recognising its ethnical and cultural identity. of certain political rights. 14 It would moreover be wholly dispropor- tionate to let the accused opt for the use of their native language with a view to safe- guarding the rights of defence; those rights are safeguarded by other means, such as the right to a free interpreter, in accordance with the relevant provisions of the European Con- The issue of discrimination vention on Human Rights and the Interna- tional Covenant on Civil and Political Rights. 15

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ethnic group, and thus take no account of 34. Article 6 of the Treaty, however, also pro- whether a person belonging to such a group hibits indirect discrimination. A rule discrimi- masters the official language. 16 The Italian nates indirectly against nationals of other Government draws the conclusion, with Member States if it: respect to the present case, that the right of residents of Bolzano to opt for the use of German does not depend on whether they are incapable of using Italian. In cases where a defendant is so incapable, Italian law thus (a) works to the particular detriment of a deals with the problem by different means. group comprising mainly nationals of other Member States (for example non- residents);

and 32. The Commission expresses doubts as to whether the Italian rule discriminates on grounds of nationality. The right to opt for the use of German is not conferred on all Italian citizens. It is conferred only on resi- dents of Bolzano. Moreover, although a resi- (b) is not based on objective factors unre- dence condition may constitute indirect dis- lated to nationality or is not proportion- crimination on grounds of nationality, ate. 17 different treatment on grounds of residence may be justified by objective factors.

35. By treating differently persons who are for all material purposes in the same position, such a rule infringes the principle of equal treatment. 33. It is first necessary to clarify the precise scope of the Italian rule. It follows from the ruling in Mutsch that the choice of German in court proceedings cannot be restricted to Italian nationals but must be extended to 36. The first question, therefore, is whether nationals of other Member States who are the rule works to the particular disadvantage resident in Bolzano. According to the Italian of nationals of other Member States. In my Government that is in fact the case. I shall view it plainly does. The rule works to the therefore assume that the Italian rule does not particular disadvantage of German-speaking entail direct discrimination on grounds of visitors to Bolzano from Germany and Aus- nationality. tria (who will be predominantly German and

39. The question therefore arises whether the 37. The argument advanced by the Commis- different treatment is objectively justified. It sion and the Italian Government that Italian would clearly be difficult to advance any nationals not resident in Bolzano cannot administrative justification if, as appears to be choose German either is beside the point. the case here, local criminal courts are set up Being Italian-speakers the overwhelming to conduct proceedings largely in German but majority of Italian residents will have no are obliged to hear cases against German- practical interest in choosing German. In other speaking visitors in Italian. (At the hearing words, German and Austrian visitors are counsel for Mr Bickel and Mr Franz, a without exception denied an advantage granted German-speaker, 19stated that their case was to most Italian residents who actually want being heard by German-speaking judges and the advantage. 18 that the Public Prosecutor was German- speaking.)

commonly function in the language of the a Member State's linguistic minority, an aim visitor. According to counsel for Mr Bickel unrelated to nationality. The difficulty, how- and Mr Franz, the requirement to use Italian ever, is that the exclusivity of the rule, that is would in their cases, if anything, lead to extra to say, the denial of the advantage to visitors costs because the accused would then be from other Member States, is neither a neces- entitled to a free interpreter. In the absence, sary nor an appropriate means of achieving therefore, of any administrative impediment that aim. In other words the rule is dispro- some other justification must be sought. portionate. 2 0 Refusing the use of German to visitors does not in any way serve that aim. If anything, it has the reverse effect: it rein- forces Italian as the principal language even in the predominantly German-speaking region of Bolzano. If a German-speaking Bolzano resident invites a relative or friend from Ger- 41. N o r in my view is it possible, as the many, Austria or Switzerland to visit him, Italian Government suggests, to justify the any criminal proceedings brought against that rule on the ground that its purpose is to pro- relative or friend would be in Italian. It is tect the German-speaking minority in Bol- zano. I fully accept that the rule in question hard to see how that serves to protect the serves the wholly legitimate aim of protecting German-speaking minority in Bolzano.

Conclusion

42. A c c o r d i n g l y the q u e s t i o n referred b y the P r e t u r a Circondariale di B o l z a n o m u s t in m y o p i n i o n be answered as follows: