(AGENPARL) – Fri 01 August 2025 PRESS RELEASE No 101/25
Luxembourg, 1 August 2025
Judgment of the Court in Case C-544/23 | BAJI Trans
The principle of lex posterior mitius extends to a penalty classified as
administrative under national law where it is of a criminal nature for the
purposes of EU law
That principle must be applied also at the level of an appeal in cassation where that appeal forms part of the
normal course of an action, irrespective of whether the decision against which that appeal has been brought is
regarded as final under national law
Hearing questions from the Slovak Supreme Administrative Court, the Court of Justice provides important
clarifications concerning the principle of lex posterior mitius laid down by the Charter of Fundamental Rights of the
European Union (‘the Charter’) (which applies in all cases where Union law is being implemented by a national
authority). Although that principle is reserved for the field of criminal law, the classification of a penalty as
administrative under national law does not necessarily preclude the application of that principle. Indeed, it may be
the case that, under EU law and with the aim of guaranteeing a uniform application of that principle, an
administrative penalty must be regarded as criminal owing to the intrinsic nature of the offence and the degree of
severity of the penalty. Furthermore, that principle applies so long as the conviction has not become final. What
must or must not be regarded as a final ruling, in that context, is also delimited by EU law. The mere fact that a
conviction decision is classified as final under national law when it may be the subject of an appeal in cassation is
not sufficient reason to disapply that principle.
In Slovakia, the driver of a concrete lorry received a fine of €200 after it was found, on 4 November 2015, that his
vehicle’s tachograph had not undergone the mandatory periodic inspection. At the time, that obligation stemmed
from Slovak law in conjunction with EU law. 1
The Regional Court, Bratislava, hearing an action brought by the driver and the company BAJI Trans, the owner of
the concrete lorry, confirmed that fine in 2019. The driver and BAJI Trans then brought an appeal in cassation
against the decision of the Regional Court, Bratislava.
The relevant EU law was subsequently amended, with effect from 20 August 2020, meaning that Member States
may now exempt vehicles transporting ready-mixed concrete from the obligation to be equipped with a
tachograph. 2 This is what Slovakia did while the cassation proceedings were still ongoing. The driver and BAJI Trans
thus argued that the acts committed in November 2015 had ceased to be unlawful and that the fine should
therefore be lifted.
The Slovak Supreme Administrative Court, which is called upon to rule on the appeal, has put questions to the Court
of Justice regarding the scope of the principle of lex posterior mitius laid down by the Charter. It emphasises that,
under Slovak law, the infringement at issue is regarded as an administrative offence and that the decision of the
Regional Court, Bratislava, is considered to be final, irrespective of the possibility of bringing an appeal against that
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decision.
First, the Court finds that, both through its initial legislation and through the amendment made subsequently, the
Slovak legislature was implementing Union law, with the result that the Charter applies in the present case.
Secondly, the Court emphasises that the principle of lex posterior mitius, laid down by the Charter, remains reserved
for the field of criminal law. That being said, the fact that a penalty is classified as administrative under national law
does not necessarily preclude the application of that principle. Indeed, in order to guarantee a uniform application
of that principle throughout the European Union, two other criteria may still lead such a penalty to be classified as a
criminal penalty – namely the intrinsic nature of the offence and the degree of severity of the penalty.
Thirdly, the Court specifies that the application of the principle of lex posterior mitius, laid down by the Charter,
presupposes that the amendment of the law reflects a change of position on the part of the legislature regarding
the criminal classification of the acts committed by the person concerned or regarding the penalty to be applied. In
the present case, the Slovak legislature did indeed change its position with regard to the wish to punish acts such as
those of which the driver concerned is accused.
Fourthly, the Court recalls that the principle of lex posterior mitius, laid down by the Charter, applies so long as no
final conviction has been handed down. However, the fact that a conviction is regarded as final under national law
does not preclude the application of that principle. Indeed, a conviction cannot be regarded as final for that purpose
where it may be the subject of an ordinary appeal, that is to say, any appeal which forms part of the normal course
of an action and which, as such, constitutes a procedural development which any party must reasonably expect.
This is the case for the appeal in cassation brought before the Slovak Supreme Administrative Court.
Accordingly, a court hearing an appeal in cassation is, in principle, required to ensure that the perpetrator of an
offence the penalising of which constitutes the implementation of Union law benefits from a piece of criminal
legislation that is favourable to that perpetrator, even if that piece of legislation entered into force after the delivery
of the judicial decision that is the subject of that appeal in cassation.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which
have been brought before them, to refer questions to the Court of Justice about the interpretation of EU law or the
validity of an EU act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to
dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or
tribunals before which a similar issue is raised.
Unofficial document for media use, not binding on the Court of Justice.
The full text and, as the case may be, an abstract of the judgment is published on the CURIA website on the day of
delivery.
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Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport, as amended by Regulation (EC) No 561/2006
of the European Parliament and of the Council of 15 March 2006.
Regulation (EU) 2020/1054 of the European Parliament and of the Council of 15 July 2020 amending Regulation (EC) No 561/2006 as regards
minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU)
No 165/2014 as regards positioning by means of tachographs.
Communications Directorate