The Court of Justice of the European Union interprets the temporal aspects of the principle of the permissibility of retroactivity of a legal rule in favour of the perpetrator of an administrative offence

The question under consideration in that case was whether the Panel of the court of cassation was obliged to take account of a change in the law in favour of the minor administrative offender which occurred during the cassation proceedings and after the decision of the lower court had been given.

According to the decision of the defendant administrative authority, the offender of the minor administrative offence did not have a recording device with a valid periodic inspection installed on the vehicle transporting the concrete. A penalty was imposed on the offender for that conduct. However, the obligation to have a recording device on the concrete transport vehicle was abolished by Regulation (EU) No 2020/1054 of the European Parliament and of the Council of 15 July 2020 (PDF, 600 kB), after the lower administrative court dismissed the action against the penalty (in the posterior instance on the ground that the obligation to have such a device is a legal requirement).

Panel No. 5 (Anita Filová, President of the Panel, as Judge-rapporteur, Petra Príbelská and Juraj Vališ, Judges) referred the question to the Grand panel for consideration. That Panel considered that, contrary to the conclusions reached by Panel No. 1 in another case (Case No. 2 Asan 6/2019 of 27 October 2021; Jana Hatalová, President of the Panel, Katarína Cangárová and Marián Fečík, Judges-rapporteur), it was not possible to take account of a change in the legislation (in the specific case, the abolition of the minor administrative offence) which occurred after the lower administrative court had ruled on the case. Panel No. 5 argued that even the criminal justice system does not take such changes into account if they occurred after the decision of the Court of Criminal Appeal, and as regards the cassation appeal, it constitutes an extraordinary remedy which is fixed on the legal situation that existed at the time when the decision of the lower administrative court was given.

The Grand panel, deliberating on the case, came to the conclusion that the Supreme Administrative Court of the Slovak Republic, as a court whose decisions are not open to appeal and in a situation in which it applies European Union law, was under an obligation to ask the CJEU for an interpretation of Article 1(1)(a) of the EC Treaty. 49 of the Charter of Fundamental Rights of the European Union and the principle of lex posterior mitius contained therein (exception to the prohibition of retroactivity of legal norms consisting in an order to apply a criminal norm adopted after the commission of an administrative offence if it is to the benefit of the perpetrator of that administrative offence). While in the sphere of state repression for administrative offences, retroactivity of norms to the detriment of the perpetrator of an administrative offence (e.g. the introduction of ex post criminalisation of a certain act) is completely excluded, as regards retroactivity of norms to the benefit of the perpetrator of such an administrative offence, it is in principle permissible, but it is not settled what the temporal scope of such retroactivity would be. The questions submitted by the Grand panel of the Supreme Administrative Court therefore offer an opportunity to answer this question.

“Before referring the case to the CJEU, the Grand panel also asked the partner administrative courts within the platform established by the Association of Councils of State and Supreme Administrative Courts of the European Union (ACA-Europe) about the issue at hand, and the answers presented on this platform showed that the solutions chosen within the Member States of the European Union are heterogeneous and the legal solution to the question at hand is not settled in these States. For this reason, too, the Court’s answers will be useful for the development of legal thinking in the European Union, not only in the field of administrative punishment, but punishment by state power as such.” said Judge-rapporteur Anita Filová.

The resolution of the Grand panel suspending the proceedings, adopted unanimously, entered into force on 24 August 2023. The case has been assigned a Case No. C-544/23 at the CJEU. In this case, the Supreme Administrative Court proceeded for the first time in its history in a fully electronic, paperless and environmentally friendly manner, as the application was lodged with the CJEU via e-Curia, a platform set up by the CJEU for the filing of procedural documents exclusively in electronic form.

In Cases No. 2 Asan 1/2020, 1 SVs 2/2022 is active The Grand panel of the Supreme Administrative Court, composed of: President of the Panel Marián Trenčan; Elena Berthotyová, Marián Fečík, Anita Filová (Judge-rapporteur), Peter Potásch, Petra Príbelská and Juraj Vališ, Judges.