Select Committee on European Scrutiny Twenty-Seventh Report



4. MUTUAL RECOGNITION OF FINANCIAL PENALTIES

 

(23164)

5299/02

Draft Framework Decision on the application of the principle of mutual recognition to financial penalties.

  

Legal base:

Articles 31(a) and 34(2)(b) EU; consultation; unanimity

   

Deposited in Parliament:

7 February 2002

Department:

Home Office

Basis of consideration:

EM of 25 February 2002; Minister's letter of 11 April 2002

Previous Committee Report:

HC 152-xx (2001-02), paragraph 7 (6 March 2002)

To be discussed in Council:

No date set

Committee's assessment:

Legally and politically important

Committee's decision:

Not cleared

 

 

Background

  4.1  We considered an earlier draft of a proposal for the mutual recognition and enforcement of financial penalties on 28 November 2001 and again on 16 January 2002.[3] We noted that the proposal included provision for the recognition and enforcement of penalties imposed by an 'administrative authority' and we took account of the Minister's explanation that this might include fines imposed by traffic police as well as those imposed by customs or tax officials.

  4.2  We were concerned that in the earlier version there was no express reference to procedural unfairness as a ground for refusal of recognition. This seemed to us to be particularly necessary where the kind of penalty in issue (such as a fine for a motoring offence) could be imposed without the defendant being made aware of the charge against him.

  4.3  We did not think it was sufficient to rely on a certificate from the issuing State that the sentenced person had been duly notified of the proceedings against him. We did not regard such an assertion by the issuing State as a sufficient safeguard and we welcomed the provision in Article 4(2)(e) of the revised version to the effect that recognition may be refused where the criminal judgment was given in absentia and the defendant was not served with a document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so.[4] We considered that this would give the court in the Executing State the opportunity to satisfy itself that a person, against whom a judgment or order is made in his absence, has been served with a document in sufficient time to enable him to arrange for his defence.

  4.4  We were concerned by the view expressed by the Minister that this provision, as drafted, might be so general as to impair the effectiveness of the instrument, and that he was considering ways in which it could be 'improved'. We asked the Minister to explain his views.

  4.5  We also registered our concern over the drafting of the text, which in places (notably Article 7) was unintelligible. We also noted that Article 2(6) of the text allowed the transmission of judgments to a central authority only 'in exceptional cases' and questioned how this dealt adequately with the risk of jurisdictional conflicts between the various parts of the United Kingdom.

The Minister's reply

  4.6  In his letter of 11 April the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) responds to these concerns. In relation to the provision in Article 4(2)(e), the Minister explains that his reluctance to accept the provision does not stem from any disagreement with the principle behind it, and agrees that in absentia penalties should not be enforced unless the subject of the penalty has had a proper opportunity to defend himself. In the Minister's view, mutual recognition is based on the assumption that it is for the issuing State to guarantee the rights of the defence, and to certify that it has done so, before sending a judgment to another State for execution. The Minister observes that:

      "Article 4(2)(e) could require the executing State's courts to satisfy themselves that the correct procedures had been followed before recognising the judgment. This could lead to significant delays in enforcing penalties, and render mutual recognition ineffective, as a considerable number of fines are imposed in absentia, particularly for motoring offences."

  4.7  The Minister argues that it is sufficient to rely on a certificate, as follows:

"We feel that the aim of Article 4(2)(e) could be better met through the certificate which the issuing state must supply with the judgement. As we have already argued, this could be done by inserting into the certificate a specific statement by the issuing state that, in cases where the fine was imposed in absentia, the defendant received the relevant document in time to prepare his/her defence. If the issuing state is unable to make this statement, the certificate would be incomplete and the judgment would fall to be rejected under Article 4(1). However, where the certificate is complete, we do not believe that the Framework Decision should allow the court in the executing state to go behind this and, in effect, re-open the issuing State's decision.

"In its report, the Committee refers to other arrangements between Member States for the mutual recognition and enforcement of judgements — especially to Council Regulation (EC) No 44/2001, from which Article 4(2)(e) is taken. However, since this Regulation, which is based on the 1968 Brussels Convention, was agreed, the principle of mutual recognition has developed, as part of the Tampere commitment to mutual recognition forming the cornerstone of judicial co-operation with the EU. The deeper co-operation, and growing trust, between Member States' legal systems should make it possible to rely on the information in the certificate."

  4.8  With regard to the transmission of judgments, the Minister informs us that the most recent draft of the Framework Decision contains a provision allowing both the United Kingdom and Ireland to use a central authority for the transmission of judgments. The Minister also agrees that some parts of the Framework Decision, in the version which had been deposited, could have been better drafted and that he was working to address these problems, in particular to clarify the meaning of Article 7.

Conclusion

  4.9  We thank the Minister for his letter, and we shall look forward to sight of a revised text of the Framework Decision in due course.

  4.10  We find the Minister's arguments in favour of relying on a certificate unconvincing. We note, for example, that there is no requirement in the proposal that the certificate be signed by a person holding judicial office, so that the certificate is likely, in practice, to be reduced to a mere formality to be completed by administrative staff in the Member State concerned.

  4.11  We repeat our view that the provisions of Article 4(2)(e) are an essential minimum guarantee. We consider that the possibility of review by a court in the executing State of the respect shown for the rights of the defendant where a judgment is given against him in his absence is a necessary discipline against the possibility of abuse, as well as providing the basis for the principle of mutual recognition. We note that this principle was confirmed by the Council as recently as December 2000 when it adopted Council Regulation (EC) No 44/2001, and we do not accept that any developments since then have justified an abandonment of this principle.

  4.12  We shall hold the current document under scrutiny pending the deposit of a revised version and receipt of an Explanatory Memorandum.

 


3  (22622) 10710/01; HC 152-viii (2001-02), paragraph 2 (28 November 2001), HC 152-xii (2001-02), paragraph 5 (16 January 2002). Back

4  This follows closely the wording of Article 34(2) of Council Regulation (EC) No 44/2001 on the recognition of civil judgments given in default of appearance. Back

 
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