Select Committee on European Scrutiny Thirty-Second Report


7. MUTUAL RECOGNITION OF FINANCIAL PENALTIES


(a)

(23164)

5299/02


(b)

(23392)

7654/02



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


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:(b) 19 April 2002
Department:Home Office
Basis of consideration:(a) EM of 25 February 2002; Minister's letter of 11 April 2002

(b) EM of 2 May 2002

Previous Committee Report:(a) HC 152-xx (2001-02), paragraph 7 (6 March 2002), HC 152-xxvii (2001-02), paragraph 4 (1 May 2002)
To be discussed in Council:Justice and Home Affairs Council 13-14 June 2002
Committee's assessment:Legally and politically important
Committee's decision:(a) Cleared

(b) Not cleared; further information requested


Background

  7.1  We considered earlier drafts of a proposal for the mutual recognition and enforcement of financial penalties on 28 November 2001 and 16 January, 6 March and 1 May 2002.[21] We noted that the proposal included provision for the recognition and enforcement of penalties imposed by an "administrative authority", which might include fines imposed by traffic police as well as those imposed by customs or tax officials.

  7.2  We were concerned that in the first version of the proposal there was no express reference to procedural unfairness as a ground for refusal of recognition, particularly in relation to the case where a penalty is imposed in a person's absence. 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.

  7.3  We therefore 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.[22] When we considered this version of the proposal on 6 March we asked the Minister to explain his view 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".

  7.4  The Minister considered that 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, and that such a certificate could be relied on without it becoming necessary for the courts of the other State to go behind the certificate.

  7.5  We did not find the Minister's arguments in favour of relying on a certificate convincing. We noted that there was no requirement in the proposal that the certificate be signed by a person holding judicial office, so that the certificate was likely, in practice, to be reduced to a mere formality to be completed by administrative staff in the Member State concerned. We repeated our view that the provisions of Article 4(2)(e) were an essential minimum guarantee, which provided the basis for the principle of mutual recognition.

The revised proposal

  7.6  The revised proposal makes a number of relatively minor changes. The definition of "judgement" in Article 1 has been narrowed so that it no longer refers in any general way to administrative offences. The relevant "judgements" are first, those made by a court in respect of a criminal offence, secondly orders made by an authority other than a court in respect of a criminal offence, provided the person has had an opportunity to have the case tried before a criminal court and, thirdly, orders made by a court or another authority in respect of a road traffic offence.

  7.7  Article 2(6) has been amended to make clear that the United Kingdom and Ireland may make a declaration providing that the judgment is to be sent to a specified central authority or authorities, rather than direct to the enforcing authority in the executing State.[23]

  7.8  As before, Article 4 provides grounds on which recognition and enforcement may be refused in the executing State. Article 4(2)(b) permits recognition to be refused where the judgement relates to acts which were carried out within the territory of any Member State other than the issuing State[24], and the acts do not constitute an offence under the law of that State.

  7.9  Article 4(2)(c) has been amended to make clear that recognition and enforcement may be refused if there is an immunity or privilege under the law of the executing State which makes it impossible to execute the judgment[25].

  7.10  Article 4(2)(e) deals with cases where the penalty has been imposed in the absence of the defendant. It continues to provide that where a judgment is passed in absentia the executing State may refuse recognition and enforcement where it "considers that the person concerned has not had an adequate opportunity to defend himself".

  7.11  Article 6 continues to provide that enforcement of the judgment is to be governed by the law of the executing State, subject to two exceptions. The first relates to penalties imposed on a legal person. In such cases, the penalty must still be enforced even if the law of the executing State does not recognise the principle of criminal liability of legal persons. Secondly, Article 7 provides that any custodial sentence imposed by the executing State, in circumstances where it is not possible to enforce the penalty, may not exceed the maximum provided for in the certificate produced by the issuing State.[26]

  7.12  The remaining significant change concerns the requirements for translations of the certificate and the judgment. Article 13 now provides that the certificate must be translated into the language of the executing State. The executing State may require a translation of the judgment. The draft also proposes, as an alternative, that the executing State should be required to state the reasons for its request.

The Government's view

  7.13  In his Explanatory Memorandum of 2 May the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) explains the latest version of the proposal. He says that the Government supports the inclusion of penalties for road traffic offences in the definition of "judgement" in Article 1, but wishes to ensure that persons fined for offences which are classified as "administrative" have had the right to have the matter dealt with by a criminal court in the issuing State.

  7.14  The Minister welcomes the flexibility given by the new Article 2(6) permitting the UK to require that judgments are sent to a central authority rather than direct to the enforcing court.

  7.15  In relation to Article 4 ( grounds for refusing recognition and enforcement) the Minister indicates that the UK has proposed that Article 4(2)(b) should be extended to allow recognition to be refused, in cases where the act is not an offence under the law of the executing State, also in cases where the offence took place in a third state.

  7.16  In relation to Article 4(2)(e) (which deals with cases where a judgement is given in the absence of the defendant), the Minister comments as follows:

"We agree with the principle behind this paragraph that judgements should only be imposed following a fair procedure. We are still concerned that the paragraph as drafted may encourage the courts in executing states to re-open decisions taken in the issuing state, which would cause delay. In particular, the reference to the person not having had an adequate opportunity to defend himself could allow a very wide range of issues to be raised.

"As we have previously told the Committees, the Government contends that the most effective way to ensure the protection of the fundamental rights in in absentia cases is for the issuing state to certify that all the relevant papers were properly served in accordance with its law, and that the correct procedures were followed. If the issuing state does not provide the necessary information, refusal of execution would be justified."

  7.17  The Minister indicates support for the amendments to Articles 5, 6, 7, 8 and 11. In relation to Article 13, the Minister explains that he supports the proposed requirement that only the certificate should be translated in all cases. He comments as follows:

"We agree with this because the certificate will contain all the information the executing state will need in order to execute the judgement. Translating the judgement itself would be an unnecessary expense. The new draft provides that the executing state can ask for a translation in individual cases. We are looking at ways of ensuring that this is only done when it is strictly necessary."

Conclusion

  7.18  We welcome the improvements which have been made to the drafting of this proposal, particularly to the provisions on the central authority and the hitherto unclear provisions of Article 7.

  7.19  We welcome the efforts by the Minister to secure an amendment to Article 4(2)(b) and ask him to inform us of the outcome of these efforts.

  7.20  As we have commented before, we also welcome the provisions of Article 4(2)(e) which, in cases where a judgment has been given in the absence of the defendant, allow the court in the executing state to consider whether or not the defendant has had an adequate opportunity to defend himself. We repeat our view that this is an essential safeguard, and we do not consider that concerns over possible delays should be used to deny the court in the executing state the opportunity to do justice. We do not consider that reliance on a certificate is an adequate substitute for such review by the court.

  7.21  In this connection, we think it important that the court in the executing state should be entitled to a translation of the judgment in any case in which a defendant has been judged in his absence and claims that he did not have an adequate opportunity to defend himself. We note the Minister's comment that he is looking at ways of ensuring that a translation is provided "only when strictly necessary", but we ask for the Minister's assurance that he will not press for any amendment which would make it more difficult for the court to obtain a translation in a case where judgment has been given in absentia.

  7.22  We clear document (a) on the grounds that it has been superseded, but we hold the current version (document(b)) under scrutiny, pending the Minister's reply.


21  (22622) 10710/01; HC 152-viii (2001-02), paragraph 2 (28 November 2001), HC 152-xii (2001-02), paragraph 5 (16 January 2002), (23164); HC 152- xx (2001-02), paragraph 7 (6 March 2002), HC 152 -xxvii (2001-02), paragraph 4 (1 May 2002). Back

22  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

23  This therefore addresses a problem to which we drew attention on 6 March (in HC152-xx (2001-02), paragraph 7). The previous text did not sufficiently allow for the existence of the separate legal districts of England and Wales, Scotland and Northern Ireland and would have left it to the foreign court to determine which part of the UK was to have jurisdiction for enforcement purposes.  Back

24  There is presently no ground to refuse recognition where the acts are carried out in a non-Member State. The right to refuse recognition ought, in principle, to apply to all judgements based on the assertion of extra-territorial jurisdiction, whether the acts take place in a Member State or not, a point made by the Select Committee on the European Union of the House of Lords. Back

25  The confusing reference to 'patrimony' being 'enforceable', to which we drew attention on 6 March, has been removed. Back

26  The impenetrable provisions of Article 7(2) in the previous draft have now been removed. Back


 
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