1.

Is it permissible to punish a person who, acting with fraudulent intent, obtained financial support from the EU budget by making a false declaration in respect of the goods exported by him, in the case where the goods actually exported were not eligible for support at the time when the offence was committed but became so eligible following a change in the legislation that took place after the offence was committed?

2.

The Court is asked to examine this issue in the light of the Charter of Fundamental Rights of the European Union. The third sentence of Article 49(1) of the Charter establishes the principle of the retroactive application of the more lenient criminal law (lex mitior), a principle of considerable practical importance the interpretation and application of which the Court of Justice has already addressed on many occasions. ( 2 )

3.

The background to the present case is a large-scale meat scandal which has attracted not insignificant attention in France. ( 3 ) The defendants in the main proceedings had made or assisted in the making of false declarations to the competent authorities about meat of bovine animals intended for export to third countries. The undertaking for which the defendant worked thereby obtained from the EU budget financial support in the form of special export refunds on meat of bovine animals, even though there was no provision at that time for export subsidies financed by the EU taxpayer to be granted for the cut of meat of bovine animals exported. It was not until later that that cut of meat of bovine animals became eligible for European support, following a change in the law at EU level.

4.

It is on that subsequent change in the law that the defendants are now relying, claiming that they are immune from prosecution. The competent national authorities, on the other hand, take the view that the false declarations originally made in respect of the meat at issue are and remain false declarations and are punishable as such, whether the related EU rules on financial support have changed in the meantime or not.

5.

By its judgment in the present case, the Court of Justice will be able to make an important contribution to the practical implementation of the sanctioning mechanisms intended to provide protection at EU level for the financial interests of the European Union within the meaning of Article 325 TFEU.

6.

The EU law framework applicable to this case is determined in essence by Article 49(1) of the Charter of Fundamental Rights of the European Union. In addition, reference must be made to Article 4(3) TEU and Article 325(1) TFEU, as well as to Regulations (EU, Euratom) No 966/2012, ( 4 ) (EEC) No 1964/82, ( 5 ) (EC) No 2469/97 ( 6 ) and (EC) No 1359/2007. ( 7 ) On the other hand, Regulation (EC, Euratom) No 2988/95, ( 8 ) which has been mentioned by a number of the parties to the proceedings, is not material, being concerned only with administrative-law penalties but not with criminal-law penalties to protect the financial interests of the European Union.

7.

The principle of the legality of penalties is established as follows in Article 49(1) of the Charter of Fundamental Rights:

‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.’

8.

Article 4(3) TEU gives expression to the principle of sincere cooperation between the European Union and the Member States:

‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or arising from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.’

9.

Moreover, Article 325(1) TFEU contains the following provision on the protection of the financial interests of the European Union:

‘The Union and the Member States shall counter fiscal fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies.’

10.

Regulation No 966/2012 lays down the financial rules applicable to the general budget of the European Union. Under the heading ‘Shared management with Member States’, Article 59(2) of that regulation provides as follows:

‘(2)   When executing tasks relating to the implementation of the budget, Member States shall take all necessary measures, including legislative, regulatory and administrative measures, to protect the Union’s financial interests, namely by:

…

In order to protect the Union’s financial interests, Member States shall, respecting the principle of proportionality, and in compliance with this Article, and relevant sector-specific rules, carry out ex ante and ex post controls including, where appropriate, on-the-spot checks on representative and/or risk-based samples of transactions. They shall also recover funds unduly paid and bring legal proceedings where necessary in this regard.

Member States shall impose effective, dissuasive and proportionate penalties on recipients where provided for in sector-specific rules and in specific provisions in national legislation.

…’

11.

The conditions for granting special refunds for the export of certain cuts of boned meat of bovine animals from the European Union to third States have been changed a number of times over the years. They were first laid down in Regulation No 1964/82, then amended by Regulation No 2469/97 and finally reproduced in a codified version in Regulation No 1359/2007.

12.

Article 1(1) of Regulation No 1964/82 originally contained the following provision:

‘Individually packaged boneless cuts from fresh or chilled hindquarters of adult male cattle shall, when the terms of this Regulation are complied with, qualify for special export refunds.’

13.

The second recital of Regulation No 1964/82 gives an insight into the background to that provision:

‘Whereas, on account of the market situation, the economic situation in the beef and veal sector and the scope for selling certain products of the sector, the conditions governing the payment of special export refunds on these products should be determined; whereas, in particular, conditions should be laid down for certain cuts of meat produced by boning hindquarters of male cattle.’

14.

In late 1997, a new version of Article 1(1) of Regulation No 1964/82 was adopted:

‘Individually packaged boneless cuts from fresh or chilled forequarters and hindquarters of adult male cattle with an average lean meat content of 55% or more shall, under the conditions laid down in this Regulation, qualify for special export refunds.’

15.

The latter version of Article 1(1) of Regulation No 1964/82 came from Regulation No 2469/97. Article 4 of the latter regulation contained the following provision with respect to its entry into force:

‘This Regulation shall enter into force on 19 January 1998.

It shall apply to operations for which the declaration referred to in Article 3(1) or that referred to in Article 25(1) of Regulation (EEC) No 3665/87, accompanied by an export licence issued from the date of entry into force of this Regulation, is accepted.’

16.

The second recital of Regulation No 2469/97 provides information on the motives behind the new provision introduced by that regulation:

‘Whereas, following implementation of the Agreement on Agriculture concluded during the Uruguay Round of Multilateral Trade Negotiations, arrangements should be introduced to permit better targeting of beef and veal products to which preference is to be given for export to third countries; whereas the introduction of a special refund for boned cuts from forequarters of adult male cattle would meet that objective; whereas the arrangements provided for by Regulation (EEC) No 1964/82 should therefore be extended to those products.’

17.

The provision now applicable is contained in Article 1 of Regulation No 1359/2007, which is worded as followed:

‘Individually packaged boneless cuts from fresh or chilled forequarters and hindquarters of adult male cattle with an average lean meat content of 55% or more shall, under the conditions laid down in this Regulation, qualify for special export refunds.’

18.

Pursuant to Articles 11 and 12 thereof, Regulation No 1359/2007 entered into force on 1 January 2008 and repealed Regulation No 1964/82 with effect from that date. It is intended, according to its first recital, to codify the numerous amendments made to the latter regulation, in the interests of clarity and rationality.

19.

The third recital of Regulation No 1359/2007 reads:

‘On account of the market situation, the economic situation in the beef and veal sector and the scope for selling certain products of the sector, the conditions governing the payment of special export refunds on these products should be determined. In particular, conditions should be laid down for certain cuts of meat produced by boning quarters of male cattle.’

20.

Article 426 of the French Customs Code, ( 9 ) which was already in force at the time when the offences at issue were committed, provides:

‘The following shall be deemed to be an undeclared importation or exportation of goods

…

…’

21.

As Article 414 of the French Customs Code further indicates, the undeclared importation or exportation of prohibited goods is punishable by a custodial sentence of up to three years and various supplementary pecuniary penalties.

22.

Finally, the principle of the legality of penalties is set out in the following terms in Article 112-1 of the French Criminal Code: ( 10 )

‘Only acts which constitute an offence at the time when they are committed shall be punishable.

Only penalties which are statutorily applicable at the same time may be imposed.

However, new provisions shall apply to offences which were committed before the entry into force of those provisions and which have not given rise to a conviction having the force of res judicata, where they are less strict than the former provisions.’

23.

The altogether nine defendants in the main proceedings are charged in criminal proceedings before the French courts with having committed an offence under customs law in which they are said to have participated as perpetrators or accessories. The charge against them is, in essence, that, in the period from 1987 to 1992, the defendants, by means of false declarations and the fraudulent activities of the French firm Clergeau SA, ( 11 ) obtained in respect of meat of bovine animals export refunds higher than those to which that undertaking was entitled under EU law at the time when the offences were committed.

24.

In particular, the defendants are charged with having, with fraudulent intent, falsely declared meat of bovine animals from the forequarters of adult male cattle as meat of bovine animals from hindquarters. At the time in question, however, meat of bovine animals from forequarters — unlike meat of bovine animals from hindquarters — did not yet fall within the scope of the relevant provisions of EU law on special export refunds and was only later — as from 19 January 1998 — included in those provisions.

25.

The French State is represented in the criminal proceedings by the Administration des douanes et droits indirects ( 12 ) (Administration des douanes) and — as co-prosecuting body — the Établissement national des produits de l’Agriculture et de la Mer ( 13 ) (FranceAgriMer). FranceAgriMer is responsible enforcing the provisions of EU law on agricultural subsidies and related controls.

26.

By judgment of 3 December 2013, the Tribunal correctionnel de La Rochelle ( 14 ) acquitted all of the defendants, relying in this regard on the principle of the retroactive application of the more lenient criminal law, on the ground that special export refunds under EU law are now available not only for meat of bovine animals from hindquarters but also for meat of bovine animals from forequarters. That judgment was confirmed at second instance by judgment of the Cour d’appel de Poitiers ( 15 ) of 13 March 2015. Following appeals in cassation brought by the Administration des douanes ( 16 ) and FranceAgriMer, the criminal proceedings are now pending before the Criminal Division of the Cour de cassation, ( 17 ) for review on points of law of the judgment on appeal.

27.

By judgment of 23 November 2016, received on 6 March 2017, the Cour de cassation (Court of Cassation, France) referred the following question to the Court of Justice for a preliminary ruling under Article 267 TFEU:

Is Article 49 of the Charter of Fundamental Rights to be interpreted as precluding a situation in which a person is convicted on the ground that he obtained export refunds, to which he was not entitled, by means of deceitful practices or the making of false declarations as to the nature of the goods in respect of which the refunds were respected, although, as a result of changes in the rules which occurred subsequent to the facts of the case, the goods that were in fact exported by that person have since become eligible for those refunds?

28.

In response to a request made by the Court of Justice under Article 101 of the Rules of Procedure, the referring court further stated that the defendants are being prosecuted for having made false declarations or having engaged in deceitful practices by means of which a refund, exemption, reduced duty or any other advantage was obtained in full or in part in connection with importation or exportation.

29.

In the proceedings before the Court of Justice, four of the defendants in the main proceedings have submitted a joint statement, ( 18 ) and written observations have been submitted by the French, Greek and Austrian Governments and the European Commission. With the exception of the Austrian Government, the same parties were also represented at the hearing of 28 February 2018.

30.

By its request for a preliminary ruling, the Cour de cassation (Court of Cassation) asks the Court of Justice to provide an interpretation of the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, which establishes at EU level the principle of the retroactive application of the more lenient criminal law.

31.

The defendants fear that the rights they derive from the third sentence of Article 49(1) of the Charter could be sacrificed on the altar of efforts to combat as effectively as possible fraud that operates to the disadvantage of the financial interests of the European Union. That fear is unfounded, however. It goes without saying that the protection of the financial interests of the European Union may be ensured only by means consistent with the rule of law. ( 19 ) It follows, moreover, that the elementary procedural guarantee enshrined in the third sentence of Article 49(1) of the Charter is enjoyed by anyone prosecuted under criminal law in a situation governed by EU law, and nobody can deny the defendants the enjoyment of the rights thus conferred on them. This case, however, calls for a clarification of the precise content of the principle of the retroactive application of the more lenient criminal law.

32.

In accordance with Article 51(1) thereof, the Charter of Fundamental Rights is applicable ratione materiae in the present case, since the issue of the retroactive application of the more lenient criminal law arises here in the context of the implementation of EU law by the national authorities. The latter are involved in the payment and monitoring of EU special export refunds on meat of bovine animals and, as such, have a duty to protect the financial interests of the European Union, including through the imposition of effective, proportionate and dissuasive penalties (Article 4(3) TEU, Article 325(1) TFEU and Article 59(2) of Regulation No 966/2012). ( 20 )

33.

Moreover, the application of the third sentence of Article 49(1) of the Charter of Fundamental Rights is not precluded by the fact that the offences prosecuted by the French justice system in the present case took place before 1 December 2009, that is to say before the date on which the Charter, on the entry into force of the Treaty of Lisbon, became legally binding and acquired constitutional status (see in particular Article 6(1) TEU). The Charter provision to be interpreted here, after all, establishes a general principle of EU law which, even before the Charter entered into force, was based both on the constitutional traditions common to the Member States ( 21 ) and on the international treaties concluded by them ( 22 ) and had been recognised by the Court of Justice on many occasions. ( 23 )

34.

The particular difficulties of interpreting and applying that principle, with which the French Cour de cassation (Court of Cassation) is confronted in the present case, ( 24 ) derive ultimately from the fact that it combines a provision of criminal law with a provision of extra-criminal law.

35.

The criminal-law provision is contained in national law and simply makes it an offence to make false declarations and engage in fraudulent schemes aimed at seeking or obtaining an unjustified financial advantage in connection with importation or exportation (Article 426(4) of the French Customs Code). What constitutes such an unjustified financial advantage, however, is defined only in an extra-criminal-law provision of EU law contained in the area of agricultural legislation and foreign-trade legislation — in this case, the rules on special export refunds on meat of bovine animals.

36.

While the criminal-law provision contained in Article 426(4) of the French Customs Code has remained unchanged, the extra-criminal-law provision of EU law has changed over time: thus, while a special export refund was originally available only for meat of bovine animals from hindquarters, in accordance with Article 1(1) of Regulation No 1964/82, since 19 January 1998, financial support has been available for meat of bovine animals from forequarters too, following changes introduced by Regulation No 2469/97; the latter legal position was later codified in Article 1 of Regulation No 1359/2007 and is still applicable now.

37.

Can it be said that a more lenient criminal law has entered into force in the case where only the provision of extra-criminal law has changed (that is to say, here, the provision concerning the eligibility of certain goods for support in the form of EU special export refunds), whereas the truly criminal-law provision (that is to say, here, that making it an offence to make false declarations and engage in deceitful practices) has remained the same? That, in essence, is the question with which the Court of Justice is faced in the present case.

38.

In order to answer that question, regard should be had to the meaning and purpose of the principle of the retroactive application of the more lenient criminal law.

39.

The application of later, more lenient criminal laws constitutes an exception to the fundamental principle that penalties must have a proper legal basis (nullum crimen, nulla poena sine lege), since it involves the retroactive application of a law other than that which was in force at the material time. ( 25 )

40.

That exception is based ultimately on considerations of fairness. ( 26 ) The retroactive application of more lenient criminal laws is based on the consideration that a defendant should not be punished for conduct which, in the (revised) view of the legislature at the time of the criminal proceedings, is no longer punishable. The defendant is thus meant to enjoy the benefit of the revised assessment of the legislature. ( 27 )

41.

In the present case, however, there has been no change in the legislature’s assessment of the punishability of the conduct of the defendants in the main proceedings, either at EU level or at national level. This point has rightly been made not least by France and Austria.

42.

Inaccurate declarations or deceitful practices which seek or obtain unjustified financial advantages in connection with importation or exportation constituted a punishable offence at the material time and, that position having remained unchanged, still constitute a punishable offence today, not least on the ground of protecting the financial interests of the European Union. At no point was it the intention of the legislature, at EU or at national level, to remove the status of such schemes as punishable offences or in any way to relax the protection of the financial interests of the European Union.

43.

On the contrary, the changes to the law which have taken place at EU level in connection with the grant of special export refunds on meat of bovine animals were intended only to adapt the relevant provisions of agricultural legislation to the evolving market circumstances, in particular to a changed situation on the world market following the Uruguay Round of WTO Trade Negotiations. ( 28 ) Those changes were therefore a purely economic reassessment rather than a reassessment of the punishability of certain forms of conduct by the competent political authorities in the European Union.

44.

The mere fact that the grant of special export refunds is currently subject to more generous provisions extending the applicability of those refunds to meat of bovine animals from forequarters and hindquarters does not in any way support the conclusion that the rules previously in force, which were applicable only to meat of bovine animals from hindquarters, were in retrospect regarded by the legislature as being too strict or too restrictive. As the referring court and the Commission have rightly pointed out, different market situations at correspondingly different points in time may call for different rules on the eligibility for support of agricultural exports from the European Union to third States. A right to such support is enjoyed only by a person whose products satisfy the conditions applicable at the relevant time.

45.

In this regard, the present case is akin to tax law. There too, the provisions of material tax law with which taxpayers must comply may change from year to year. Anyone who evaded a particular tax and thus obtained a financial advantage in 2017 cannot escape prosecution by relying on the abolition of the tax in question, the reduction of the applicable tax rate or the applicability of more generous exemptions from that tax as from 2018. The act of tax evasion is and remains a punishable offence in the period during which the tax was payable.

46.

As a number of parties have rightly submitted, the present case has parallels with Paoletti and Others. ( 29 ) That case concerned the constituent elements of the criminal offence of facilitation of the illegal immigration of third-country nationals. In the view of the Court of Justice, that offence can still be prosecuted even where the third-country nationals concerned have since acquired the status of EU citizens by virtue of their home country’s accession to the European Union. The acquisition of EU citizenship constitutes a factual situation which is not capable of changing the constituent elements of the offence of facilitation of illegal immigration. ( 30 )

47.

It is true that there is a difference between the present case and Paoletti and Others, in so far as, in the latter, the situation that changed was an actual factual one (the acquisition by the persons concerned of the status of EU citizens), whereas, here, it was legal (the eligibility for support of meat of bovine animals from forequarters). The critical factor, however, is that, in both cases, it was only the extra-criminal situation that changed, the punishability of the conduct constituting the offence (there, facilitation of illegal immigration; here, false declarations or deceitful practices with fraudulent intent in connection with the exportation of goods), on the other hand, having remained the same and subsisted without reassessment.

48.

If changes in such extra-criminal situations were also to be regarded as being sufficient to trigger the retroactive application of the more lenient criminal law, this — as France and Austria rightly point out — would be nothing short of an incentive for fraudulent schemes. ( 31 )

49.

For example, the prospect that special export refunds on meat of bovine animals will be available in the near future not only for meat from hindquarters but also for meat from forequarters might increase the temptation for economic operators to pre-empt that change now by making false export declarations about meat from forequarters and to rely later on the retroactive application of the more lenient criminal law.

50.

The noble concept which underpins the principle enshrined in the third sentence of Article 49(1) of the Charter of Fundamental Rights would thereby be turned on its head.

51.

All things considered, therefore, the principle of the retroactive application of the more lenient criminal law (third sentence of Article 49(1) of the Charter of Fundamental Rights) does not preclude the punishment of a person who has sought or obtained an unjustified advantage by engaging in deceitful practices or making false declarations as to the nature of the goods in respect of which he is requesting a special export refund under EU law, in the case where the goods actually exported were not eligible for a refund at the time of those deceitful practices or declarations and became so eligible only by reason a change in the rules of EU law that took place after the offence was committed.

52.

Purely for the sake of completeness, I shall close by taking the liberty of looking at two matters that were discussed on the fringes of the case with the parties to the proceedings.

53.

The first of those matters concerns the financial advantage (that is to say, the special export refunds) which the defendants are said to have unlawfully procured for the undertaking for which they worked by making false declarations or engaging in deceitful practices in connection with the exportation of beef and veal products.

54.

Does it make any difference, for the purposes of assessing the present case from the point of view of the third sentence of Article 49(1) of the Charter of Fundamental Rights, whether the defendants in the main proceedings are prosecuted under criminal law for actually obtaining such an unjustified financial advantage for their undertaking or only for practices pursued with fraudulent intent to secure such an advantage?

55.

In my view, it does not make any difference. After all, the question of whether an undertaking has a legal right to special refunds on the export of certain goods from the European Union to a third country does not in itself have anything to do with the punishability of the conduct of its employees.

56.

The defendants in the main proceedings are being prosecuted under criminal law, as the referring court expressly confirmed when asked by the Court of Justice, because they made false declarations and engaged in deceitful practices pursued with fraudulent intent to secure such special export refunds.

57.

The second matter concerns the suggestion in the request for a preliminary ruling that the defendants in the main proceedings not only made false declarations about whether the meat of bovine animals for which they were requesting a special export refund originated from forequarters or hindquarters, but also fraudulently declared frozen beef as fresh or chilled beef. ( 32 )

58.

This fact, which the national court does not at any point expand upon, does not appear to have been fundamental to the question it referred for a preliminary ruling. Accordingly, I too have not made it the subject of extensive legal analysis in this Opinion.

59.

I shall confine myself to making the point that the applicable EU law remained constant inasmuch as the special export refunds in question were only ever available for fresh or chilled meat of bovine animals, but never for frozen meat of bovine animals. So far as concerns their criminal liability for any false statements made by them with respect to the degree of freshness of the cuts of meat concerned, therefore, the defendants in the main proceedings are precluded from the outset from relying on the retroactive application of a more lenient criminal law within the meaning of the third sentence of Article 49(1) of the Charter of Fundamental Rights.

60.

In the light of the foregoing considerations, I propose that the Court reply as follows to request for a preliminary ruling from the Cour de cassation (Court of Cassation, France):

The third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union is to be interpreted as meaning that it does not preclude the punishment of a person who has sought or obtained an unjustified advantage by engaging in deceitful practices or making false declarations as to the nature of the goods for which he is requesting a special export refund under EU law, in the case where the goods actually exported were not eligible for a refund at the time of those deceitful practices or declarations and became so eligible only by reason of a change in the rules of EU law that took place after the offence was committed.