Contents
Judgment of the Court (Eighth Chamber)22 January 2026note(Reference for a preliminary ruling — Public procurement procedures — Directive 2014/23 — Award of concession contracts — Directive 2014/24 — Grounds for exclusion — National legislation establishing a register of public sector partners — Requirement of impartiality on the part of the person authorised to enter the public sector partner in that register — Imposition of a fine for non-compliance with that requirement — Automatic exclusion from participation in public procurement procedures in the event of non-payment of that fine — Article 49 of the Charter of Fundamental Rights of the European Union — Criminal nature of the penalty — Predictability and proportionality of that penalty — Principle of legal certainty)In Case C‑590/24,REQUEST for a preliminary ruling under Article 267 TFEU from the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), made by decision of 3 September 2024, received at the Court on 10 September 2024, in the criminal proceedings againstTHE COURT (Eighth Chamber),composed of O. Spineanu-Matei, President of the Chamber, C. Lycourgos (Rapporteur), President of the Third Chamber, acting as a Judge of the Eighth Chamber, and S. Rodin, Judge,Advocate General: J. Kokott,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– X.Y., A.B., AK Dlhopolec s.r.o., MABONEX SLOVAKIA spol. s r.o., by Z. Klúzová, advokátka,– the Slovak Government, by E.V. Larišová and A. Lukáčik, acting as Agents,– the European Commission, by A. Biolan, R. Lindenthal and G. Wils, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Articles 26, 49 and 114 TFEU, Article 49 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 3, 38 and 41 of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1), Articles 57 and 58 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), and the principle of legal certainty.
2The request has been made in proceedings seeking to impose a fine on AK Dlhopolec s.r.o. (‘Dlhopolec’), on MABONEX SLOVAKIA spol. s r.o. (‘Mabonex Slovakia’), and on A.B. and X.Y., directors of Mabonex Slovakia (together, ‘Dlhopolec and Others’), for an alleged infringement committed when Mabonex Slovakia was entered in the register of public sector partners (‘the RPSP’) in Slovakia.
The legal framework
European Union law
The Charter
3Article 49(1) and (3) of the Charter provides:(1) 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 the one that 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.…(3) The severity of penalties must not be disproportionate to the criminal offence.’
Directive 2014/23
4Article 3 of Directive 2014/23, entitled ‘Principle of equal treatment, non-discrimination and transparency’, provides:1. Contracting authorities and contracting entities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.The design of the concession award procedure, including the estimate of the value, shall not be made with the intention of excluding it from the scope of this Directive or of unduly favouring or disadvantaging certain economic operators or certain works, supplies or services.2. Contracting authorities and contracting entities shall aim at ensuring the transparency of the award procedure and of the performance of the contract, while complying with Article 28.’
5Article 38 of that directive, entitled ‘Selection and qualitative assessment of candidates’, contains, in particular, the grounds for exclusion from concession award procedures.
6Article 41 of that directive sets out the criteria for the award of concessions.
Directive 2014/24
7Article 18(1) of Directive 2014/24 provides that contracting authorities are to treat economic operators equally and without discrimination and act in a transparent and proportionate manner.
8Article 57 of Directive 2014/24 sets out, inter alia, the grounds for excluding economic operators from participating in a public procurement procedure. Article 58 of that directive lays down the selection criteria for participation in such a procedure.
Slovak law
The Law on the RPSP
9Paragraph 13(1) of zákon č. 315/2016 Z. z. o registri partnerov verejného sektora a o zmene a doplnení niektorých zákonov (Law No 315/2016 on the register of public sector partners and amending and supplementing certain laws) of 25 October 2016, in the version applicable to the main proceedings (‘the Law on the RPSP’), provides:‘If the application for registration contains inaccurate or incomplete information on the beneficial owner or public sector employees pursuant to Paragraph 4(4)(f) …, the requirement to submit an application for registration of a change relating to the information [entered in the RPSP] concerning the beneficial owner within the time limit referred to in Paragraph 9(1) is not complied with, or the prohibition referred to in Paragraph 19 is infringed, the registration authority shall impose:(a) on the public sector partner a fine in the amount of the economic benefit which the public sector partner has obtained; if the amount of the economic benefit cannot be determined, the registration authority shall impose a fine of between EUR 10000 and EUR 1000000,(b) on a person who is a statutory body or a member of a statutory body of a public sector partner at the time of the infringement of the requirement laid down in the introductory sentence, a fine of between EUR 10000 and EUR 100000; members of the statutory body shall be jointly and severally liable for payment of the fine laid down in the preceding sentence.…’
10According to Paragraph 13(2) of that law, the registration authority is to remove the registered public sector partner from the RPSP if it has imposed a fine, which has become final, for failure to comply with the requirement to apply for the registration of a change relating to the information entered in that register concerning the beneficial owner within the legal time limit, or for infringement of the prohibition referred to in Paragraph 19 of that law, and the fine has not been paid within the time limit set by the competent court.
11Under Paragraph 13(4) of that law, the registration authority shall impose a fine of between EUR 10000 and EUR 100000 on the authorised person if he or she infringes the prohibition laid down in Paragraph 19 of the Law on the RPSP.
12Pursuant to the first sentence of Paragraph 13(5) of the Law on the RPSP, the authorised person is liable for payment of the fine imposed on the person who is a statutory body of the public sector partner.
13In accordance with Paragraph 13(6) of that law, when imposing a fine, the registration authority shall take into account, in particular, the nature, seriousness, circumstances and consequences of the infringement.
14Paragraph 13a of that law prohibits the subsequent registration of a public sector partner in the RPSP for a period of two years from the date of its removal from that register.
15According to Paragraph 14 of the Law on the RPSP, the decision to impose a fine on the grounds set out in Paragraph 13(2) of that law also constitutes a decision on exclusion within the meaning of Paragraph 13a of the Obchodný zákonník (Commercial Code). A statutory body or the members of a statutory body of the public sector partner that has been removed from the RPSP may be excluded. As a result of the exclusion decision, the members of the statutory body who have been excluded are not entitled, for a period of three years from the date on which the decision became final, to hold the position of member of a statutory body or member of a supervisory body in any commercial company or cooperative.
16Pursuant to Paragraph 15 of that law, a public sector entity which, as a party to a contract, provides a public sector partner with funds or property, rights to property or other in-rem rights, has the right to terminate the contract on the date on which the decision to impose a fine becomes final.
17Under the terms of Paragraph 19(c) of that law, ‘the authorised person shall not be entitled to perform the acts provided for in this law if he or she has any relationship with the public sector partner or with the members of its bodies that is likely to call into question his or her impartiality, in particular if that relationship is of a personal or financial nature; the relationship between the authorised person and the public sector partner in the course of the exercise of his or her activity under separate provisions does not constitute a relationship that could call into question the impartiality of the authorised person’.
The Law on Public Procurement
18In accordance with Paragraph 11(1) of zákon č. 343/2015 Z. z. o verejnom obstarávaní a o zmene a doplnení niektorých zákonov (Law No. 343/2015 on public procurement and amending and supplementing certain laws) of 18 November 2015, in the version applicable to the main proceedings (‘the Law on Public Procurement’), registration in the RPSP is a condition for an economic operator to participate in a public procurement procedure as a tenderer or subcontractor of a tenderer.
The dispute in the main proceedings and the questions referred for a preliminary ruling
19The Law on the RPSP requires natural or legal persons wishing to enter into property relations with the public sector and who, as a result, receive financial resources from public sources, including European funds, to be registered in that register, in particular by entering into a contract with the public sector where the value of the payments exceeds the thresholds set by that law. The latter defines a ‘public sector partner’ as any person who intends to engage in such property relations with the various entities within the public sector. Among the information that must be entered in the RPSP is that relating to the beneficial owner of the public sector partner. The Law on the RPSP aims to ensure the transparency of the legal relationships entered into by the public sector by ensuring the disclosure of the ownership and management structure of entities that have economic relationships with it.
20For the purposes of registration with the RPSP, the public sector partner is required to contact an ‘authorised person’, namely an independent person (in particular a solicitor or notary) acting with due diligence, who must verify the identification of the beneficial owner of that public sector partner and, following that verification, apply for registration of that partner in the RPSP.
21By orders of 3 October 2022 and 21 February 2023, the Okresný súd Žilina (District Court, Žilina, Slovak Republic) imposed, pursuant to Paragraph 13 of the Law on the RPSP, a fine of EUR 20000 on Mabonex Slovakia, as a ‘public sector partner’, a fine of EUR 10000 on the managers A.B. and X.Y., who acted on behalf of that company as its statutory body, which they are jointly and severally liable to pay, and a fine of EUR 20000 on Dlhopolec, as an ‘authorised person’.
22That court held that, in view of the relationship between one of the managers of the public sector partner and the manager of the authorised person, who were partners and managers of a third company, there were objective factors that could call into question the impartiality of the authorised person, within the meaning of Paragraph 19(c) of the Law on the RPSP.
23Dlhopolec and Others appealed against those orders before the Krajský súd v Žiline (Regional Court, Žilina, Slovak Republic), which dismissed their appeal by order of 18 July 2023. They then lodged an appeal in cassation against that order before the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), which is the referring court.
24That court explains, first, that, for the purposes of examining the impartiality of the authorised person, the courts of first instance and appeal drew on case-law concerning the assessment of the impartiality of judges in proceedings relating to their removal.
25Secondly, it specifies that, although the purpose of the appeal in cassation is to challenge the legality of the fine imposed pursuant to Paragraph 13 of the Law on the RPSP, consideration must also be given to the other legal consequences that such a penalty may have for the public sector partner, persons acting as statutory bodies and the authorised person.
26The public sector partner is removed from the RPSP when the fine imposed on it has become final and has not been paid within the time limit set by the competent court. In addition, the authorised person is jointly and severally liable for the payment of the fine imposed on the person acting as the statutory body of the public sector partner. Furthermore, the possible removal of the public sector partner from the RPSP may result in a three-year ban on the persons concerned from serving as members of a statutory body of a company. Finally, the public sector entity that provides funds or property to a public sector partner has the right to terminate the contract signed with the public sector partner on the date on which the decision to impose a fine becomes final.
27Thirdly, the referring court states that registration in the RPSP is a condition for an economic operator to be able, in accordance with Paragraph 11(1) of the Law on Public Procurement, to participate in a public procurement procedure as a tenderer or subcontractor of a tenderer. Since that law transposed, inter alia, Directives 2014/23 and 2014/24 into Slovak law and applies both to the award of public contracts whose estimated value exceeds the thresholds laid down in those directives and to the award of public contracts whose value does not reach those thresholds, the question of the registration in the RPSP or the possible removal from that register of a public sector partner would fall directly within the scope of the rules on public procurement governed by EU law.
28Fourthly, that court notes that, in the absence of registration in the RPSP or for a period of two years from the date of removal from that register as a penalty, a natural or legal person may not enter into property relations with the public sector, receive European funds (with the exception of those relating to the European Agricultural Guarantee Fund), or tender for a contract with a public sector entity where the value of the contract exceeds the threshold set by the Law on the RPSP. Such prohibitions, resulting from the imposition of fines and any legal consequences arising therefrom, would also constitute obstacles to the exercise of freedom of enterprise, the free movement of goods and capital, and the freedom to provide services within the Union. It further states that, in the Slovak Republic, there are two systems for identifying the beneficial owners of an economic operator, namely that arising from the law transposing Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ 2015 L 141, p. 73) and that resulting from the Law on the RPSP. Thus, in practice, it cannot be ruled out that the beneficial owner may be different within the meaning of those two laws, which would be problematic.
29Fifthly, the referring court considers that, given the nature of the breach of the Law on the RPSP and the severity of the resulting penalty, the latter constitutes a criminal penalty and must therefore be imposed in accordance with the principles of legality and proportionality of criminal offences and penalties, as enshrined in Article 49 of the Charter.
30It therefore considers that the answers to the first three questions referred for a preliminary ruling are decisive in assessing whether the possible removal from the RPSP, as a secondary consequence of the non-payment of the fine imposed on the public sector partner, complies with EU law on the functioning of the internal market and public procurement.
31Furthermore, that court considers that an answer to the third to fifth questions referred for a preliminary ruling will make it possible to assess whether the imposition of the fine and the secondary consequences that may result from it can be regarded as foreseeable and proportionate for the persons penalised and, therefore, as complying with the principles applicable to penalties laid down by EU law. In that regard, the ambiguities and inconsistencies identified in the provisions of the Law on the RPSP appear to be all the more problematic where, as in the main proceedings, the ‘economic benefit’ of the public sector partner resulting from its commercial transactions with the public sector is negative.
32Admittedly, it follows from Paragraph 13(6) of the Law on the RPSP Law that the registration authority, when it imposes the fine, takes into account, in particular, the nature, the seriousness, circumstances and the consequences of the breach of the obligation to register with the RPSP. That being so, that provision applies only where it is impossible to determine the economic benefit obtained by the public sector partner. Furthermore, where that benefit can be determined, Paragraph 13(1) of that law would require the fine to be imposed in an amount corresponding to the amount of that benefit, without taking into account the facts giving rise to the imposition of the fine and without any ceiling being set on the amount of the fine that may be imposed. Finally, only the interpretation of the explanatory memorandum to that law by the national courts would provide guidance on how the concept of ‘economic benefit’ should be understood.
33With regard to the sixth question referred for a preliminary ruling, the referring court points out that Paragraph 19(c) of the Law on the RPSP does not lay down specific criteria relating to the quality, nature, duration or closeness of the relationship or ties that could raise doubts as to the impartiality of the authorised person, and that that provision confers on the registration authority, which imposes the penalty, a wide margin of discretion. That court therefore questions whether the imposition of a fine such as that at issue in the main proceedings can be regarded as foreseeable and proportionate and, therefore, as complying with the principles applicable to penalties enshrined in EU law, in particular in Article 49 of the Charter.
34In those circumstances, the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must Article 26 TFEU, in conjunction with Articles 49 and 114 thereof, Article 57 of [Directive 2014/24], in conjunction with Article 58 thereof, and Article 3 of [Directive 2014/23], in conjunction with Articles 38 and 41 thereof, be interpreted as precluding legislation, such as that at issue in the present case, which links the imposition of a fine pursuant to Paragraph 13 of the Law [on the RPSP] and the non-payment thereof with exclusion from the conclusion of contracts and concession contracts with the public sector (whether on the basis of a public procurement procedure or outside that procedure), solely as a result of (and therefore by reason of) removal from the [RPSP]?(2) If the answer to the first question is in the affirmative, must Article 26 TFEU, in conjunction with Articles 49 and 114 thereof, Article 57 of [Directive 2014/24], in conjunction with Article 58 thereof, and Article 3 of [Directive 2014/23], in conjunction with Articles 38 and 41 thereof, be interpreted as precluding the imposition of a fine pursuant to Paragraph 13(1)(a) of [the] Law [on the RPSP], the non-payment of which may lead to removal from the RPSP?(3) If the answer to the first question is in the negative, must Article 49 of the [Charter], and the principle of proportionality of penalties which arises therefrom, be interpreted as precluding legislation, such as that at issue in the present case, which automatically, without any possibility of taking into consideration the seriousness of the offence (unlawful act), the individual circumstances of its commission and the reasons for the non-payment of the fine imposed on the public sector partner, ties non-payment of the fine to removal of that partner from the RPSP and a bar on its entry in [that register] for a period of two years from the date of removal?(4) Must Article 49 of the Charter and the principle of the proportionality of penalties be interpreted as precluding legislation, such as that at issue in the present case, under which the authority imposing a fine on a public sector partner automatically imposes a fine in the amount of the economic benefit [obtained by the latter], without any possibility of that authority distinguishing which offence is the reason for the imposition of the fine and without any possibility of taking into consideration other negative legal consequences (penalties) which may arise for the person penalised after the imposition of the fine?(5) Must Article 49 of the Charter and the principles of the legality and proportionality of penalties and of legal certainty be interpreted as precluding legislation, such as that at issue in the present case, under which a fine is imposed in the amount of the economic benefit but the legislation itself does not expressly set out the basic parameters for the determination thereof, in terms of the basis for calculating the economic benefit [obtained by the public sector partner] and the period during which the economic benefit was derived?(6) Must Article 49 of the Charter and the principle of legality of penalties and the principle of legal certainty be interpreted as precluding legislation, such as that at issue in the present case, under which the legal basis for imposing the fine is non-compliance with the requirement relating to the impartiality of the authorised person, without setting out in greater detail the criteria according to which that impartiality is to be assessed?’
The questions referred for a preliminary ruling
The jurisdiction of the Court
35The Slovak Government argues, primarily, that the Court does not have jurisdiction to rule on the present request for a preliminary ruling. None of the areas of EU law identified by the referring court concerns the Law on the RPSP, which, as that court itself states, does not transpose any EU law into the Slovak legal system.
36In that regard, that government submits, first of all, that the referring court merely refers in very vague terms to the existence of a connection between the EU rules on public procurement and the subject matter of the request for a preliminary ruling. In any event, that court based its decision on an erroneous legal assessment of the consequences that the Law on the RPSP might have on those rules.
37Next, the information provided by that court concerning Slovak legislation on combating money laundering cannot, in itself, establish the existence of a sufficient connection with Directive 2015/849. According to the Slovak Government, the main proceedings do not, in any event, concern the interpretation of that directive.
38Finally, that government considers that the referring court does not specify the considerations which led it to conclude that the Law on the RPSP constitutes an obstacle to the exercise of fundamental freedoms, nor that, in the context of the legislation at issue in the main proceedings, there is any question of ‘implementation of Union law’ within the meaning of Article 51(1) of the Charter.
39In that regard, it should be noted that, according to established case-law, in the context of a reference for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred upon it (judgment of 4 September 2025, AW ‘T’, C‑225/22, EU:C:2025:649, paragraph 30 and the case-law cited).
40As regards, first, the applicability of Directive 2015/849, it suffices to note that the referring court has not referred any question to the Court of Justice concerning the interpretation of that directive and that, for the purposes of answering the request for a preliminary ruling, there is no need to interpret it. Thus, the arguments put forward by the Slovak Republic in that regard have no bearing on the question whether the Court has jurisdiction to answer the request for a preliminary ruling.
41Secondly, as regards the question whether there is a sufficient connection between the EU rules on public procurement and the subject matter of the request for a preliminary ruling, the referring court states that any natural or legal person wishing to enter into property relations with the public sector and, in particular, to enter into a contract in the context of a public procurement procedure, is required, where the value of the financial obligations exceeds the threshold set by the applicable law, to register with the RPSP, at least for the duration of the contract in question concluded with the public sector.
42That court adds that the Law on the RPSP amended the Law on Public Procurement, which transposed Directives 2014/23 and 2014/24, among others, into Slovak law.
43Furthermore, following the request for information sent on 22 October 2024 by the President of the Court of Justice to the referring court, the latter confirmed that some of the commercial transactions carried out by Mabonex Slovakia, and whose invoices were taken into account in calculating the economic benefit obtained by that company for the purposes of imposing the fine at issue in the main proceedings, were carried out on the basis of contracts concluded following public procurement procedures governed by national legislation transposing Directives 2014/23 and 2014/24.
44In view of those factors, it must be concluded that there is a sufficient connection between the subject matter of the request for a preliminary ruling and Directives 2014/23 and 2014/24. That conclusion cannot be invalidated by the fact that, as the Slovak Government asserts, the referring court based its reasoning on an incorrect interpretation of the consequences that the Law on the RPSP would have on Slovak public procurement legislation, as that assessment relates to the interpretation of national law, which the Court is not empowered to review in the context of a preliminary ruling procedure (see, to that effect, judgment of 30 October 2025, Attal et Associés, C‑321/24, EU:C:2025:836, paragraph 24 and the case-law cited).
45Thirdly, the factors examined in paragraphs 40 to 42 of this judgment also suggest that, contrary to the Slovak Government’s contention, the legislation at issue in the main proceedings constitutes an implementation of Union law within the meaning of Article 51(1) of the Charter (see, to that effect, judgment of 29 July 2024, protectus, C‑185/23, EU:C:2024:657, paragraph 42 and the case-law cited).
46In particular, according to the information provided by the referring court, referred to in paragraph 41 of this judgment, registration in the RPSP is a necessary condition for an economic operator to be able to conclude a contract in the context of a public procurement procedure. The absence of such registration therefore constitutes a ground for exclusion from participation in such a contract. It should be noted that, although Article 57 of Directive 2014/24 provides an exhaustive list of grounds for exclusion, that does not preclude Member States from maintaining or enacting substantive rules designed, in particular, to ensure compliance with the principle of equal treatment in public procurement, as enshrined in Article 18(1) of Directive 2014/24, and with the principle of transparency that that implies, which are binding on contracting entities in any procedure for the award of a public contract and which constitute the basis of the EU directives on procedures for the award of public contracts, provided that the principle of proportionality is observed (see, to that effect, judgments of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 21, and of 15 September 2022, J. Sch. Omnibusunternehmen and K. Reisen, C‑416/21, EU:C:2022:689, paragraph 58).
47In those circumstances, by requiring registration in the RPSP, in accordance with the Law on the RPSP, on the basis of which the fines at issue in the main proceedings were imposed, it must be held that the Slovak Republic has exercised a discretionary power or power of assessment which forms an integral part of the system established by an act of EU law, which, according to established case-law, implies that that Member State is exercising that right within the meaning of Article 51(1) of the Charter (see, to that effect, judgments of 19 November 2019, TSN and AKT, C‑609/17 and C‑610/17, EU:C:2019:981, paragraph 50, and of 29 July 2024, protectus, C‑185/23, EU:C:2024:657, paragraph 59 and the case-law cited).
48Fourthly, the Slovak Republic’s argument that the referring court does not specify the considerations that led it to conclude that the Law on the RPSP constitutes an obstacle to the exercise of fundamental freedoms is an objection of inadmissibility and cannot affect the assessment of the Court’s jurisdiction to answer the request for a preliminary ruling.
49It follows from the foregoing considerations that the Court has jurisdiction to answer the request for a preliminary ruling.
Admissibility of the questions referred
50The Slovak Government contends, in the first place, that the first to third questions referred for a preliminary ruling are inadmissible on the grounds that they are abstract in nature and irrelevant to the resolution of the dispute in the main proceedings.
51That government states, in essence, that Mabonex Slovakia was not removed from the RPSP pursuant to Paragraph 13(2) of the Law on the RPSP but that, on the contrary, at the date on which the government submitted its written observations to the Court, that company remained registered in the RPSP. It also emphasises that, after the company paid the fine imposed on it within the time limit set by the competent court, such removal could no longer take place on the basis of that provision. The first to third questions referred for a preliminary ruling relate exclusively to the now excluded scenario of a ‘potential removal [of Mabonex Slovakia] from the RPSP as a secondary consequence of the non-payment of the fine imposed on the public sector partner’ and are therefore inadmissible.
52The Slovak Government argues, in the second place, that an answer to the fourth and fifth questions referred for a preliminary ruling would not be relevant to the resolution of the dispute in the main proceedings. Contrary to what those questions appear to suggest, no fine corresponding to the amount of the economic benefit obtained, within the meaning of the first part of Paragraph 13(1)(a) of the Law on the RPSP, was imposed on Mabonex Slovakia, given that the registration authority actually imposed a fine on that company on the basis of the second part of Paragraph 13(1)(a) of that law, since no such economic benefit could be determined because that company’s economic result was negative.
53It should be noted that, according to settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 21 March 2024, Remia Com Impex, C‑10/23, EU:C:2024:259, paragraph 27 and the case-law cited).
54According to settled case-law, in the context of cooperation between the Court of Justice and national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure of the Court of Justice (judgment of 21 March 2024, Remia Com Impex, C‑10/23, EU:C:2024:259, paragraph 28 and the case-law cited). Those requirements are also set out in paragraphs 13, 15 and 16 of the Recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1), which now appear in paragraphs 13, 15 and 16 of the Recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ C, C/2024/6008).
55Thus, in accordance with Article 94(a) of the Rules of Procedure, it is essential that the referring court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. In the procedure established by Article 267 TFEU, the Court is empowered to give rulings on the interpretation of EU legislation only on the basis of the facts which the national court puts before it (judgment of 21 March 2024, Remia Com Impex, C‑10/23, EU:C:2024:259, paragraph 29 and the case-law cited).
56As regards, in the first place, the first to third questions referred by the referring court, the latter states that the answer to those questions is essential in order to assess whether the potential removal of the public sector partner from the RPSP as a secondary consequence of its failure to pay the fine imposed on it is compatible with EU law, in particular with certain provisions relating to the exercise of fundamental freedoms. The request for a preliminary ruling contains an incomplete statement of the facts of the main proceedings in that regard, providing no indication that would enable the Court to determine whether Mabonex Slovakia, as a public sector partner, failed to pay the fine and whether, as a result of that non-payment, that company was actually removed from the RPSP, with the consequence that it was prevented from concluding a contract in the context of a public procurement procedure and concession contracts with any public entity.
57It follows that those questions are based on a hypothetical situation, namely the removal of Mabonex Slovakia from the RPSP, and do not contain sufficient information to enable the Court to give a useful answer to the referring court (see, to that effect, judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C‑100/21, EU:C:2023:229, paragraph 53).
58In those circumstances, the first to third questions referred for a preliminary ruling must be considered inadmissible.
59In the second place, it should be noted that the fourth and fifth questions referred for a preliminary ruling essentially concern the interpretation of Article 49(1) and (3) of the Charter, in order to enable the referring court to determine whether the first part of Paragraph 13(1)(a) of the Law on the RPSP is sufficiently precise and complies with the principle of proportionality of penalties.
60The fact that the registration authority imposed a fine on Mabonex Slovakia not on the basis of the economic benefit that that company would have obtained, in accordance with the first part of Paragraph 13(1)(a) of that law, but on the basis of the amounts referred to in the second part of that provision does not, in itself, mean that those questions are inadmissible.
61It is apparent from the request for a preliminary ruling that Dlhopolec and Others consider that the registration authority should have imposed a fine on that company pursuant to the first part of Paragraph 13(1)(a) of the Law on the RPSP, since, according to them, the ‘economic advantage’ could be determined, even if it was negative. It cannot therefore be ruled out that the examination of those questions in the light of that provision may be relevant to the outcome of the main proceedings.
62It follows that the fourth and fifth questions referred for a preliminary ruling are admissible.
The fourth to sixth questions
Preliminary considerations
63Since the fourth to sixth questions referred for a preliminary ruling essentially concern the interpretation of Article 49 of the Charter, it is necessary to determine whether that provision is applicable in the context of the main proceedings by examining whether the system of penalties at issue in the main proceedings is of a criminal nature.
64It follows from established case-law that three criteria are relevant for assessing the criminal nature of a penalty for the purposes of, inter alia, applying Article 49 of the Charter. The first is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty which the person concerned is liable to incur (judgment of 1 August 2025, BAJI Trans, C‑544/23, EU:C:2025:614, paragraph 63 and the case-law cited).
65While it is for the referring court to assess, in the light of those criteria, whether the fines imposed on Dlhopolec and Others are of a criminal nature for the purposes of Article 49(1) of the Charter, the Court, when giving a preliminary ruling, may nevertheless provide clarification designed to give the national court guidance in its assessment (judgment of 1 August 2025, BAJI Trans, C‑544/23, EU:C:2025:614, paragraph 64 and the case-law cited).
66First, it should be noted that the Law on the RPSP does not classify the penalty imposed under Paragraph 13 as ‘criminal’. However, the application of Article 49 of the Charter extends, regardless of the classification of penalties as criminal under domestic law, to penalties which must be regarded as having a criminal nature on the basis of the other two criteria referred to in paragraph 64 of this judgment (see, to that effect, judgment of 1 August 2025, BAJI Trans, C‑544/23, EU:C:2025:614, paragraph 66 and the case-law cited).
67Secondly, with regard to the nature of the offence, it appears that the fines imposed for breach of the requirements of the Law on the RPSP pursue both deterrent and punitive objectives, in so far as, under Paragraph 13(1)(a) of the Law on the RPSP, the public sector partner is liable to either a fine equal to the amount of the economic advantage obtained or a fine of between EUR 10000 and EUR 1000000, without those fines being intended to compensate for the damage caused by them (see, to that effect, judgment of 1 August 2025, BAJI Trans, C‑544/23, EU:C:2025:614, paragraphs 67 and 68 and the case-law cited).
68Thirdly, with regard to the criterion relating to the degree of severity of the penalty incurred, it is apparent from the request for a preliminary ruling that, on the one hand, a breach of the duty of impartiality by the person authorised to register the public sector partner in the RPSP may justify the imposition of a fine on the latter, either in an amount equal to the economic benefit obtained by that partner or, where that economic benefit cannot be quantified, in an amount between EUR 10000 and EUR 1000000. On the other hand, the authorised person is liable to a fine of between EUR 10000 and EUR 100000.
69It should be noted in that regard that the degree of severity of the penalty incurred must be determined by reference to the maximum potential penalty for which the relevant provisions provide (judgment of 1 August 2025, BAJI Trans, C‑544/23, EU:C:2025:614, paragraph 70 and the case-law cited).
70In this case, it is important to note that when the fine is imposed in relation to the economic benefit obtained by the public sector partner, there is no upper limit in that regard. Furthermore, in the event that that benefit cannot be quantified, the fine incurred may reach EUR 1000000 for the public sector partner and EUR 100000 for the authorised person, which are considerable amounts.
71In those circumstances, subject to the verifications which it is for the referring court to carry out, it must be pointed out that a system of penalties with the characteristics set out in Paragraph 13 of the Law on the RPSP is criminal in nature within the meaning of Article 49 of the Charter. It follows that that system must be assessed in the light of the principles of legality and proportionality of criminal offences and penalties, enshrined in Article 49(1) and (3) of the Charter.
The sixth question
72By its sixth question, which should be examined in the first place, the referring court asks, in essence, whether Article 49(1) of the Charter and the principle of legal certainty must be interpreted as precluding national legislation which provides that the person authorised to register a company in a register of public sector partners is prevented from making such a registration where the relationship that he or she has with the public sector partner is such as to call into question his or her impartiality, in particular because of personal or property ties with that public sector partner, without other criteria for assessing that impartiality being specified and even though failure to comply with that requirement of impartiality leads to the imposition of a criminal penalty.
73The principle of legal certainty requires, on the one hand, that the rules of law be clear and precise and, on the other, that their application be foreseeable for those subject to the law, in particular, where they may have adverse consequences. That principle requires, inter alia, that legislation must enable those concerned to know precisely the extent of the obligations imposed on them, and that those persons must be able to ascertain unequivocally their rights and obligations and take steps accordingly (judgment of 29 July 2024, Belgian Association of Tax Lawyers and Others, C‑623/22, EU:C:2024:639, paragraph 36 and the case-law cited).
74The principle of legality in criminal matters, laid down in Article 49(1) of the Charter, which constitutes a specific expression of the general principle of legal certainty, implies, inter alia, that legislation must clearly define offences and the penalties which they attract. That condition is met where the individual concerned is in a position, on the basis of the wording of the relevant provision and, if necessary, with the help of the interpretation made by the courts, to know which acts or omissions will make him or her criminally liable (see, to that effect, judgments of 3 May 2007, Advocaten voor de Wereld, C‑303/05, EU:C:2007:261, paragraph 50; of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 162; and of 29 July 2024, Belgian Association of Tax Lawyers and Others, C‑623/22, EU:C:2024:639, paragraphs 39 and 40).
75In accordance with the case-law of the European Court of Human Rights (ECtHR) relating to Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which establishes rights corresponding to those guaranteed in Article 49 of the Charter, since legislation must be of general application, its wording cannot be absolutely precise. It follows that, while the use of the legislative technique of referring to general categories, rather than to exhaustive lists, often leaves grey areas at the fringes of a definition, these doubts in relation to borderline cases are not sufficient, in themselves, to make a provision incompatible with Article 7 of that convention, provided that the provision sufficiently clear in the large majority of cases (see, to that effect, inter alia, ECtHR, 15 November 1996, Cantoni v. France, CE:ECHR:1996:1115JUD001786291, paragraphs 31 and 32). Those considerations are equally valid, under Article 52(3) of the Charter, with respect to Article 49 of the Charter (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 165).
76Furthermore, according to the Court’s case-law, the principle nulla poena sine lege certa cannot be interpreted as prohibiting the gradual clarification of rules of criminal liability by means of interpretations in the case-law, provided that those interpretations are reasonably foreseeable (judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 167, and of 29 July 2024, Belgian Association of Tax Lawyers and Others, C‑623/22, EU:C:2024:639, paragraph 43).
77In this case, the referring court states, in essence, that Paragraph 19(c) the Law on the RPSP does not lay down specific criteria relating to the quality, nature, duration or closeness of the relationship or ties that could raise doubts as to the impartiality of the authorised person when registering a public sector partner in the RPSP and, in that regard, confers a wide margin of discretion on the registration authority, which, where appropriate, imposes the penalty for non-compliance with that requirement of impartiality.
78It should be noted from the outset that it is not for the Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of provisions of national law or to decide whether the referring court’s interpretation of such provisions is correct, as such an interpretation falls within the exclusive jurisdiction of the national courts (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 52 and the case-law cited).
79By contrast, the Court, in the context of a reference for a preliminary ruling, may provide the referring court with guidance, on the basis of the documents relating to the main proceedings and the written and oral observations which have been submitted to it, in order to enable that court to resolve the dispute before it (judgment of 19 June 2025, Lietuvos bankas, C‑671/23, EU:C:2025:457, paragraph 47 and the case-law cited).
80In that regard, for the purposes of enabling the referring court to determine whether the degree of precision of Paragraph 19(c) of the Law on the RPSP meets the requirements of Article 49(1) of the Charter with regard to the criteria for assessing whether the requirement of impartiality incumbent on the person authorised to verify the relevant information and to register the public sector partner in the RPSP has not been complied with, it should be noted, first, that, according to that provision, ‘the authorised person shall not be entitled to perform the acts provided for in [that] law if he or she has any relationship with the public sector partner or with the members of its bodies that is likely to call into question his or her impartiality, in particular if that relationship is of a personal or financial nature; the relationship between the authorised person and the public sector partner in the course of the exercise of his or her activity under separate provisions does not constitute a relationship that could call into question the impartiality of the authorised person’.
81It follows that Paragraph 19(c) of the Law on the RPSP, in that it specifies the scope of the requirement of impartiality by reference to the existence of both personal and financial ties between the authorised person and the public sector partner, is worded in a manner consistent with the requirement laid down in Article 49(1) of the Charter, as interpreted by the Court in the case-law referred to in paragraph 74 of this judgment. Such wording, which characterises the nature of the relationship between the authorised person and the public sector partner, enables the latter to know, with sufficient clarity and precision, the extent of their obligations of impartiality for the purposes of registering that partner in the RPSP, and to know that failure to comply with those obligations is likely to make them criminally liable, exposing them to the fines provided for in Paragraph 13 of the Law on the RPSP.
82That is all the more so given that Paragraph 19(c) of that law also specifies the situations which cannot be regarded as constituting a relationship likely to compromise the impartiality of the authorised person, namely the relationship between the public sector partner and the authorised person in the course of the exercise of his or her activity governed by separate provisions, which, according to the referring court, covers, in particular, the lawyer-client relationship or the intervention of notaries and tax advisers.
83Secondly, the fact that Paragraph 19(c) of that law leaves the registration authority some discretion to assess whether the ties between the authorised person and the public sector partner are such as to call into question the requirement of impartiality laid down in that paragraph cannot, in itself, lead to the conclusion that that provision is not sufficiently clear and precise within the meaning of Article 49(1) of the Charter. In that regard, as the Slovak Government points out, and subject to the verifications which it is for the referring court to carry out, the person authorised to register a public sector partner in the RPSP must, in view of the wording of Paragraph 19(c), reasonably expect that authority to verify the factual and legal elements characterising the personal and financial ties between that person and that partner in order to determine whether they are likely to raise doubts as to the impartiality of that person and, therefore, to prevent that person from registering that partner in the RPSP.
84Thirdly, the circumstance, pointed out by the referring court, that the competent national courts referred to the case-law on the impartiality of judges in order to clarify the scope of the requirement of impartiality incumbent on the person authorised to register the public sector partner in the RPSP, within the meaning of Paragraph 19(c) of the Law on the RPSP, cannot be regarded as contrary to Article 49(1) of the Charter.
85As stated in paragraph 76 of this judgment, Article 49(1) of the Charter allows for the gradual clarification of the rules on criminal liability through interpretations in case-law, provided that those interpretations are reasonably foreseeable. It should be noted that the application, by analogy, of existing case-law in another legal context cannot be regarded as unforeseeable, since it falls within the scope of the ordinary methods of interpreting the law.
86Thus, subject to the verifications to be carried out by the referring court, it does not appear, in the light of the wording of Paragraph 19(c) of the Law on the RPSP, read in conjunction with Paragraph 13 of that law, and the method of interpretation used by the competent national courts, that the authorised person and the public sector partner concerned are prevented from determining, in a sufficiently clear and precise manner, within the meaning of Article 49(1) of the Charter, the acts and omissions that are likely to render them criminally liable.
87That conclusion cannot be called into question by the fact that, according to the referring court, in the present case, both the Okresný súd Žilina (District Court, Žilina) and the Krajský súd v Žiline (Regional Court, Žilina) considered, in essence, that the authorised person had infringed Paragraph 19(c) of the Law on the RPSP by merely finding that there was joint participation, on the one hand, by the partner and manager of the authorised person and, on the other hand, by the partner and manager of the public sector partner in a third company, without providing any further details as to the nature and intensity of that business relationship.
88That factor raises a question concerning the correctness of the interpretation of national law by those courts and compliance with the obligation to state reasons, which cannot affect the assessment of whether that provision is sufficiently clear and precise to satisfy the requirements of Article 49(1) of the Charter. In any event, even if that interpretation were to be regarded as unforeseeable within the meaning of the case-law relating to Article 49(1) thereof, such a finding would not allow the conclusion to be drawn that Paragraph 19(c) of the Law on the RPSP, as such, does not meet the requirements of Article 49(1) of the Charter, but rather would mean that that interpretation could not be accepted, since it would be contrary to fundamental rights.
89In the light of the foregoing considerations, the answer to the sixth question is that Article 49(1) of the Charter and the principle of legal certainty must be interpreted as not precluding national legislation which provides that the person authorised to register a company in a register of public sector partners is prevented from making such a registration where the relationship that he or she has with the public sector partner is such as to call into question his or her impartiality, in particular because of personal or financial ties with that public sector partner, without other criteria for assessing that impartiality being specified and even though failure to comply with that requirement of impartiality leads to the imposition of a criminal penalty, provided that, in view of the wording of that national legislation and its interpretation on the basis of the ordinary methods of interpretation of the law by the competent national courts, that authorised person and that public sector partner are able to determine, in a sufficiently clear and precise manner, which acts and omissions are likely to render them criminally liable.
The fifth question
90By its fifth question, which should be examined before the fourth question, the referring court asks, in essence, whether Article 49(1) of the Charter and the principle of legal certainty must be interpreted as precluding national legislation which, in the event of failure to comply with the requirement of impartiality incumbent on the person authorised to register a company in a register of public sector partners, merely provides for the imposition on that company of a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without specifying the parameters for determining that benefit.
91It is apparent from the request for a preliminary ruling that the first part of Paragraph 13(1)(a) of the Law on the RPSP provides that, in the event of an infringement of, inter alia, the prohibition laid down in Paragraph 19(c) of that law, which requires that, for the purposes of registering a public sector partner in the RPSP, the authorised person must not have any relationship with that partner or with the members of its bodies that could call into question its impartiality, the registration authority shall impose on the public sector partner ‘a fine in the amount of the economic benefit which the public sector partner has obtained’. Where that economic benefit cannot be quantified, the authority is to impose a fine of between EUR 10000 and EUR 1000000 on the public sector partner.
92It follows from Paragraph 13(1)(a) of that law that the possibility of quantifying the economic benefit obtained by the public sector partner, and the amount of that benefit where it can be quantified, determines or, at the very least, influences the amount of the fine imposed on that partner for breach of the obligation laid down in Paragraph 19(c) of the Law on the RPSP. Therefore, in order to comply with the requirements of Article 49(1) of the Charter, it is important that the concept of ‘economic benefit’ within the meaning of that law be sufficiently clear and precise to enable public sector partners to determine the penalties to which they are liable in the event of a breach of that law.
93In that regard, the referring court observes that the first part of Paragraph 13(1)(a) of the Law on the RPSP does not specify whether the concept of ‘economic benefit’ refers to the economic benefit that the penalised company obtained on the basis of a contract concluded with a public sector body, the conclusion of which would, for example, be subject to its registration in the RPSP, or whether account should be taken of the economic benefit resulting from the overall commercial and economic activity of that company. The court adds that that provision does not determine the relevant period for assessing such a benefit, in particular whether it is appropriate to take into account the period after registration in the RPSP, the period following the conclusion of the contract, or the calendar year preceding the year in which the penalty is imposed.
94In that context, the referring court states that both the Okresný súd Žilina (District Court, Žilina) and the Krajský súd v Žiline (Regional Court, Žilina) interpreted the concept of ‘economic benefit’ within the meaning of the first part of Paragraph 13(1)(a) of the Law on the RPSP, on the basis of the explanatory memorandum to that law. Those courts thus considered that that concept refers to the benefit that the public sector partner derived from the relevant transactions carried out with the public sector during the period between that partner’s registration in the RPSP and the start of the penalty proceedings.
95The referring court therefore questions whether that interpretation is consistent with Article 49(1) of the Charter, while emphasising that such an interpretation is consistent with the explanatory memorandum to the Law on the RPSP.
96It should be noted that the fact that legislation refers to broad concepts which must be clarified gradually does not, in principle, preclude that legislation from being regarded as laying down clear and precise rules allowing individuals to predict, in the event of a breach of that legislation, what criminal penalties are likely to be imposed. In that regard, what matters is whether any ambiguity or vagueness in those concepts may be dispelled by using the ordinary methods of interpretation of the law (see, to that effect, judgment of 29 July 2024, Belgian Association of Tax Lawyers and Others, C‑623/22, EU:C:2024:639, paragraph 44 and the case-law cited).
97In this case, it should be noted that, according to the information provided by the referring court, interpreting the concept of ‘economic benefit’ within the meaning of the first part of Paragraph 13(1)(a) of the Law on the RPSP by reference to the explanatory memorandum to that law is an ordinary method of interpretation in Slovak law.
98In those circumstances, that concept, as interpreted by means of such a method, appears to be sufficiently clear and precise in view of the requirements arising from the principles of legal certainty and legality in criminal matters.
99The referring court adds that, in the present case, after finding that Mabonex Slovakia had obtained a negative ‘economic benefit’ as a result of its commercial transactions with the public sector, the Okresný súd Žilina (District Court, Žilina) and the Krajský súd v Žiline (Regional Court, Žilina) decided to impose a fine of EUR 20000 on that company on the basis of the second part of Paragraph 13(1)(a) of the Law on the RPSP. That interpretation is problematic in that that law does not specify that a negative ‘economic benefit’ must be understood as referring to a situation in which that benefit cannot be quantified.
100It should be noted, in that regard, that, as stated in paragraph 88 of this judgment, that question relates to the correctness of the interpretation of national law, which is for the referring court to assess. By contrast, that question cannot affect the clarity and precision of the first part of Paragraph 13(1)(a) of the Law on the RPSP, within the meaning of the principles of legal certainty and legality in criminal matters.
101In order to assess compliance with Article 49(1) of the Charter, it must be determined whether a public sector partner is able to foresee the situations in which it may be liable to a fine and whether the method of calculating that fine is reasonably foreseeable.
102It should be noted, as the Slovak Government has pointed out and subject to verification by the referring court, that, in view of the scheme and purpose of that law, as apparent from the request for a preliminary ruling, a public sector partner, where a negative economic result arises from its relations with the public sector, may reasonably expect to be liable to a fine calculated in accordance with Paragraph 13(1)(a) of that law where it has committed an infringement of that law. It is for the referring court to assess whether, in such circumstances, such a public sector partner could reasonably have foreseen that a negative ‘economic benefit’ was likely to be equated with an inability to quantify that benefit.
103In view of the foregoing considerations, the answer to the fifth question is that Article 49(1) of the Charter and the principle of legal certainty must be interpreted as not precluding national legislation which, in the event of failure to comply with the requirement of impartiality incumbent on the person authorised to register a company in a register of public sector partners, merely provides for the imposition on that company of a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without specifying the parameters for determining that benefit, provided that those parameters can be derived from an ordinary method of interpretation of the law applied by the competent national courts, so that the company is able to determine, in a sufficiently clear and precise manner, the penalties to which it is liable in the event of a breach of that legislation.
The fourth question
104By its fourth question, the referring court asks, in essence, whether Article 49(3) of the Charter must be interpreted as precluding national legislation which automatically imposes on a company that has infringed that legislation a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without the competent authority being able to make a distinction based on the nature of the infringement committed or to take into account the other negative legal consequences that the imposition of that fine is likely to have for the company penalised.
105In that regard, it should be noted that the principle of proportionality of penalties laid down in Article 49(3) of the Charter requires that the severity of a penalty correspond to the seriousness of the offence concerned (see, to that effect, judgment of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraph 97 and the case-law cited).
106The principle of proportionality has to be observed, not only as regards the determination of factors constituting an infringement, but also the determination of the rules concerning the severity of fines and the assessment of the factors which may be taken into account in the fixing of those fines (judgment of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraph 98 and the case-law cited).
107It also follows from the Court’s case-law that the punitive measures permitted under national legislation must not go beyond the limits of what is necessary to attain the objectives legitimately pursued by that legislation. In that context, the Court has stated that the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely dissuasive effect (see, to that effect, judgment of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraphs 99 and 100 and the case-law cited).
108In the present case, as is apparent from the request for a preliminary ruling, the first part of Paragraph 13(1)(a) of the Law on the RPSP provides for the imposition on the public sector partner of a fine corresponding to the amount of the economic benefit that it has obtained in its relations with the public sector, for all the offences referred to therein, in particular in the event of an infringement of the prohibition laid down in Paragraph 19(c) of that law.
109It should be noted, in the first place, that, in view of the wording of those provisions and the information contained in the request for a preliminary ruling, they establish a system of strict liability, under which the finding of the facts constituting the offence, regardless of the intention or negligence of the persons concerned, namely the economic operator, the public sector partner, and the person authorised to register that economic operator in the RPSP, is sufficient for the registration authority to impose a fine corresponding to the economic benefit that that economic operator has obtained in its relations with the public sector.
110The fact that the fine imposed for infringement of, inter alia, Paragraph 19(c) of the Law on the RPSP may be equal to such a benefit cannot, in itself, imply that Article 49(3) of the Charter precludes the first part of Paragraph 13(a) of that law. It cannot be ruled out that a penalty aimed at withdrawing all the economic benefit that a company has obtained in its relations with the public sector, even though it has not complied with the requirements of that law, may be consistent and effective in achieving the objective pursued by that law, which is to ensure the transparency of the legal and commercial relations that the public sector maintains with its partners.
111Similarly, the circumstance, noted by the referring court, that the first part of Paragraph 13(a) of the Law on the RPSP does not set any upper limit for such a fine does not, in itself, appear to be contrary to the principle of proportionality of penalties within the meaning of Article 49(3) of the Charter, in so far as the introduction of such a ceiling would be likely to compromise the effectiveness of the fine and its deterrent and punitive effect, in that it could encourage certain economic operators not to comply with the obligations arising from that law where the economic benefit they hope to obtain in their relations with the public sector exceeds that ceiling.
112However, in the second place, the referring court states that, when applying the first part of Paragraph 13(1)(a) of the Law on the RPSP, the registration authority automatically imposes the fine provided for in that provision, without taking into account the specific circumstances of the case. It should be noted that such automaticity, in the context of a fine that is potentially very high, does not comply with the principle of proportionality within the meaning of Article 49(3) of the Charter, since that authority does not have the power to adjust the amount of the fine according to the seriousness of the offence committed.
113In particular, that court specifies that the registration authority does not take into account the fact that the information entered in the RPSP relating to the beneficial owner of the public sector partner is correct. The accuracy of that information is a relevant factor when the authority imposes a fine. In such a case, that information provides public sector entities with reliable access to all relevant data concerning economic operators wishing to enter into legal and commercial relationships with that sector, thereby ensuring transparency in those relationships and, consequently, guaranteeing the achievement of the objective pursued by the Law on the RPSP.
114In the third place, it follows from Paragraph 13(6) of that law that, when imposing a fine, the registration authority must take into account, in particular, the nature, seriousness, circumstances and consequences of the breach of the obligation in question. That being said, the referring court states that, in practice, that provision applies only where the economic benefit obtained by the public sector partner cannot be quantified, so that the amount of the fine must then be assessed in the light of the second part of Paragraph 13(a) of the Law on the RPSP.
115Therefore, if the application of Paragraph 13(6) of that law in such a case is capable of satisfying the requirement of proportionality laid down in Article 49(3) of the Charter, it is for the referring court to ascertain whether, in the present case, if it considers that the registration authority correctly imposed the fines at issue in the main proceedings on the basis of the second part of Paragraph 13(1)(a) of that law, that authority took into account all the relevant circumstances of the case, in accordance with Paragraph 13(6) thereof.
116In the fourth and last place, as regards the other adverse consequences that the Law on the RPSP provides for the penalised company, the referring court states, first, that once the fine imposed has become final, the public sector entity may, under Paragraph 15 of that law, terminate any contract with the public sector partner. It is true, in that regard, that such termination is likely to have potentially significant consequences for the economic operator concerned. However, for the purposes of verifying compliance with Article 49(3) of the Charter, it should be noted that it is for the public sector entity, and not the registration authority, which imposes the fine within the meaning of Paragraph 13(1)(a) of that law, to take into account the seriousness of the consequences of such termination in the light of all the other relevant circumstances of the case. At the stage of imposing the fine, that authority is not in a position to determine whether the public entity will actually terminate the contract.
117Secondly, the referring court considers it problematic, with regard to compliance with Article 49(3) of the Charter, that, in accordance with Paragraph 13(2) of the Law on the RPSP, that same authority removes the public sector partner from the RPSP when it has imposed a fine, which has become final, in particular for infringement of the prohibition laid down in Paragraph 19 of that law, and that fine has not been paid within the time limit set by the competent court.
118In that regard, it should be emphasised that, when imposing the fine, the registration authority is not in a position to determine whether the public sector partner will refrain from paying the fine, with the result that the latter will be removed from the RPSP. Therefore, in view of Article 49(3) of the Charter, the Law on the RPSP cannot be required to impose an obligation on that authority to take such a possibility into account when setting the amount of the fine.
119In view of all the foregoing considerations, the answer to the fourth question is that Article 49(3) of the Charter must be interpreted as precluding national legislation which automatically imposes on a company that has infringed that legislation a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without the competent authority being able to take into account, for the purposes of determining the amount of that fine, any circumstances relating to the breach of the obligation in question. By contrast, Article 49(3) of the Charter must be interpreted as not precluding national legislation which provides for the imposition of a fine within a range of minimum and maximum amounts, provided that the competent authority takes into account, in particular, the nature, seriousness, and circumstances and consequences of the breach of the obligation in question.
Costs
120Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Eighth Chamber) hereby rules:
1.Article 49(1) of the Charter of Fundamental Rights of the European Union and the principle of legal certainty must be interpreted as not precluding national legislation which provides that the person authorised to register a company in a register of public sector partners is prevented from making such a registration where the relationship that he or she has with the public sector partner is such as to call into question his or her impartiality, in particular because of personal or financial ties with that public sector partner, without other criteria for assessing that impartiality being specified and even though failure to comply with that requirement of impartiality leads to the imposition of a criminal penalty, provided that, in view of the wording of that national legislation and its interpretation on the basis of the ordinary methods of interpretation of the law by the competent national courts, that authorised person and that public sector partner are able to determine, in a sufficiently clear and precise manner, which acts and omissions are likely to render them criminally liable.
2.Article 49(1) of the Charter of Fundamental Rights of the European Union and the principle of legal certainty must be interpreted as not precluding national legislation which, in the event of failure to comply with the requirement of impartiality incumbent on the person authorised to register a company in a register of public sector partners, merely provides for the imposition on that company of a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without specifying the parameters for determining that benefit, provided that those parameters can be derived from an ordinary method of interpretation of the law applied by the competent national courts, so that the company is able to determine, in a sufficiently clear and precise manner, the penalties to which it is liable in the event of a breach of that legislation.
3.Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation which automatically imposes on a company that has infringed that legislation a fine corresponding to the amount of the economic benefit it has obtained in its relations with the public sector, without the competent authority being able to take into account, for the purposes of determining the amount of that fine, any circumstances relating to the breach of the obligation in question. By contrast, Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation which provides for the imposition of a fine within a range of minimum and maximum amounts, provided that the competent authority takes into account, in particular, the nature, seriousness, and circumstances and consequences of the breach of the obligation in question.
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