Select Committee on European Union Forty-Ninth Report


RECOGNITION TO FINANCIAL PENALTIES DOC (7654/02)

Letter from the Chairman to Mr Bob Ainsworth MP, Parliamentary Under Secretary of State Home, Office

  Thank you for your Explanatory Memorandum on this proposal which was considered by Sub-Committee E (Law and Institutions) at its meeting on 15 May. The Committee was interested to see that a substantial number of amendments had been made to the text of the Decision.

Scope—administrative offences (Article 1)

  It seems clear both from the latest draft of the Decision and your comments that discussion will continue on this key provision. We note the changes recently made and would be grateful to be kept fully informed of developments.

Extraterritoriality (Article 4(2))

  As you will be aware from our earlier correspondence on this matter, the Committee believes that refusal should be justifiable regardless of whether the offence took place within the Union or in a third State. We are pleased that the Government shares our view on this and urge you to seek the necessary amendment of Article 4(2)(b).

Judgements in absentia (Article 4(2))

  We note the Government's view on this but believe that the new text of Articles 4(2)(b) and (4) is a step in the right direction. The executing State should, if necessary, be able to look behind and beyond the certificate of the issuing State. The knowledge that that can be done will, we believe, cause the issuing State to take greater care in the completion of certificates and lessen the risk of error or abuse.

  The Committee decided to retain COPEN 25 under scrutiny. COPEN 3, now superseded by COPEN 25, was cleared.

Letter from the Chairman to Bob Ainsworth MP

  This proposal was examined by Sub-Committee E (Law and Institutions) at its meeting on 9 October. The Committee decided to clear the earlier document (Copen 25), but to retain the latest text (Copen 43) under scrutiny.

  The Committee noted that you had not replied to my letter of 16 May and that even though your response may have been delayed pending developments in the negotiations your Explanatory Memorandum of 1 August did not address all the points raised in that letter. Three main points remain outstanding.

Scope

  Thank you for your explanation of the new text of Article 1. It would be helpful, however, if you could given examples, first, of the sorts of administrative penalties which UK courts would be obliged to enforce and, second, of administrative penalties imposed in the UK which would be enforceable in other Member States. We would welcome clarification of what Article 1 will mean in practice.

Extraterritoriality

  Article 4(2)(b) remains unamended. You will recall from previous correspondence that the Government share the Committee's view that refusal should be justifiable regardless of whether the offence took place within the Union or in a third State. Have you prepared and tabled the necessary amendment?

Judgements in absentia

  The position as regards judgments in absentia still fails to meet the Committee's concerns. The Committee notes that the Government appear content with the latest version of Article 4(2)(e). We remain concerned that the procedure now proposed may not guarantee fairness in the issuing State and we remain of the view that the courts of the executing State should be able to look behind the certificate.

10 October 2002

Letter from the Chairman to Mr Bob Ainsworth MP, Parliamentrary Under Secretary of State, Home Office

  This proposal was examined by Sub-Committee E (Law and Institutions) at its meeting on 9 October. The Committee decided to clear the earlier document (Copen 25), but to retain the latest text (Copen 43) under scrutiny.

  The Committee noted that you had not replied to my letter of 16 May and that even though your response may have been delayed pending developments in the negotiations your Explanatory Memorandum of 1 August did not address all the points raised in that letter. Three main points remain outstanding.

Scope

  Thank you for your explanation of the new text of Article 1. It would be helpful, however, if you could give examples, first, of the sorts of administrative penalties which UK courts would be obliged to enforce and, second, of administrative penalties imposed in the UK which would be enforceable in other Member States. We would welcome clarification of what Article 1 will mean in practice.

Extraterritoriality

  Article 4(2)(b) remains unamended. You will recall from previous correspondence that the Government share the Committee's view that refusal should be justifiable regardless of whether the offence took place within the Union or in a third State. Have you prepared and tabled the necessary amendment?

Judgments in absentia

  The position as regards judgments in absentia still fails to meet the Committee's concerns. The Committee notes that the Government appear content with the latest version of Article 4(2)(e). We remain concerned that the procedure now proposed may not guarantee fairness in the issuing State and we remain of the view that the courts of the executing State should be able to look behind the certificate.

10 October 2002

Letter from Mr Bob Ainsworth MP, Parliamentary Under Secretary of State, to the Chairman

  Thank you for your letter of 10 October about this draft Framework Decision.

  Firstly, I would like to explain why I did not reply to your letter of 16 May. The letter commented on the Explanatory Memorandum I had deposited on a previous version of this text, but did not ask any specific questions. Rather it asked that the Committee be kept informed of developments A further Explanatory Memorandum was submitted at the beginning of August providing that update.

  In your most recent letter you raise three issues regarding scope, extraterritoriality and judgments in absentia.

  On scope, we do not have a full list of the administrative offences that other Member States might seek to have enforced. However, we are aware that minor motoring offences, some environmental offences, some health and safety offences and, in some cases, the posssession of drugs might be included. In all cases, the defendant must have had the opportunity to have the case tried by a court having jurisdiction in particular in criminal matters.

  The UK has no administrative offences that would require enforcement under the instrument; the concept of administrative offences does not exist in UK law. Nevertheless it is important for us that administrative offences are included in the scope of the instrument. Not to do so might call in question the enforcement of fines for offences which are criminal in the UK but administrative in other Member States, for example speeding offences and breaches of health and safety rules.

  On extraterritoriality, I am pleased to say that Article 4(2)(b) has been amended to include the change we proposed. The most recent text treats all exercises of extraterritorial jurisdiction equally, regardless of whether the offence took place in the EU or in a third state. We will seek to maintain this provision in the course of negotiations.

  I note that the text of Article 4(2)(e), on judgments in absentia, does not meet the Committee's concerns. As I have explained in previous correspondence with you, and with the Chairman of the House of Commons' European Scrutiny Committee, we are concerned that allowing the executing state's courts to look behind the certificate would encourage the executing state to re-examine the issuing state's decision. Given that a significant number of decisions enforced under this instrument (especially for road traffic offences) are likely to have been imposed in absentia, this would make the instrument ineffective, and so we do not favour it. Under mutual recognition, it is for the issuing state to ensure that a fair procedure is followed, and we are satisfied that our EU partners will do this.

  I have carefully considered your arguments, but this is my settled view on the question of in absentia judgments. Of course we need to be satisfied that defendants are treated fairly, but we also have to ensure that the instrument is effective. I believe that the current text achieves this balance and I am not prepared to seek to change it. I have written to Jimmy Hood MP, Chairman of the European Scrutiny Committee, in similar terms on this issue.

5 November 2002

Letter from the Chairman to Mr Bob Ainsworth MP Parliamentary Under-Secretary of State Home Office

  Thank you for your letter of 5 November, which was considered by Sub-Committee E (Law and Institutions) at its meeting on 20 November.

  Your explanation of the scope of the proposal, particularly as it might relate to administrative offences, was most helpful. We are also pleased to receive information that Article 4(2)(b) has been amended to deal with the issue of extraterritorial jurisdiction.

  The Committee is, however, disappointed that the Government's position on judgments in absentia remains unchanged notwithstanding the recommendations made by the Committee and also the House of Commons European Scrutiny Committee. The Government's attitude does not seem consistent with the constitutional importance of scrutiny. In your letter to the Chairman of the Commons Committee, you say that "our proposed wording on human rights would enable a UK court to refuse to enforce the fine where there was clear evidence of a flagrant breach of the defendant's human rights". That wording, so far as we are aware, is not set out in COPEN 43, either in the text or in a footnote. Earlier exchanges with the Scrutiny Committees would suggest that the text might adopt a similar approach to that in the Arrest Warrant, providing that nothing in the Framework Decision will amend Article 6 TEU. You will be aware from earlier correspondence that we find that wording wholly unsatisfactory. What effective legal safeguards are there against abuse?

  What is clear from correspondence is that the Committee does not have in front of it the latest text of the proposal, including the Article on human rights. We would be pleased to receive a copy. At the same time we would be pleased to receive a clear statement from the Government as to how it proposes to implement the Decision, if adopted, in conformity with the Human Rights Act. In particular it would be helpful if you could explain why UK courts should not be able to look behind the certificate, and to refuse enforcement, where there is evidence of a breach of the defendant's rights albeit that the breach may not be "flagrant".

  The Committee decided to retain the proposal under scrutiny. We look forward to receiving the document and information requested above. In the light of your reply, we may wish you to attend before the Committee on Wednesday 11 December.

21 November 2002

Letter from Bob Ainsworth MP to the Chairman

  Thank you for your letter of 21 November about this draft Framework Decision.

  I have just received the latest text (14664/02), which I have deposited for scrutiny. You will see the Government's proposed wording on human rights is included as Article 1b and reads: "This Framework Decision shall not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union". This is the same wording as appears in Article 1 of the Framework Decision on the European Arrest Warrant. Negotiations to date suggest that there might also be a recital included along the lines of recital 12 in the EAW text.

  I note the Committee remains concerned about effective legal safeguards against abuse in in absentia cases. I do not think these concerns are well founded. Article 4(2)(e) of the current text allows an executing state not to enforce a fine where the issuing state does not confirm in the necessary certificate (which is still to be negotiated) that the defendant has been duly notified of the proceedings against him. Where a defendant has been duly notified, he will have an opportunity to contest the case in the issuing state. If he chooses not to do so and he is fined in absentia, it is quite proper for the executing state to enforce that fine.

  If a defendant claims to a court in the executing state that, notwithstanding what is said in the certificate, he was never in fact notified of proceedings by the issuing state, I would expect the court to use the provisions under Article 4(3) and seek further information from the issuing state. If it emerges that the defendant was in fact properly notified, then the executing state would be expected to enforce the fine. However, if it is determined that the certificate is incorrect and notification was not properly sent, it will be open to the court in the executing state to refuse enforcement under Article 4.

  I believe this procedure provides adequate safeguards for defendants and does not render the scheme ineffective by allowing courts in the executing state to go behind the certificate in in absentia cases and re-hear the whole case.

  The human rights wording in Article 1b provides a further safeguard. It will allow us to deal with cases where there is clear evidence of a flagrant breach of a defendant's human rights. It will enable us to include in our implementing legislation a provision similar to clause 21 of the Extradition Bill, to ensure that our courts will be able to refuse enforcement in such cases.

  You ask why UK courts should not be able to look behind the certificate, and refuse enforcement, where there was evidence of a breach of a defendant's human rights, but that breach was not "flagrant". It is the Government's view, in accordance with the principle of mutual recognition, that it is for the issuing state to ensure that its procedures for imposing fines are in accordance with the ECHR. All Member States of the EU are signatories to the ECHR and the Government is confident that their procedures will, in the vast majority of cases, prove to be fair. We therefore believe that in the normal course of events it should not be for the executing state to review the ECHR position. However, where there is clear evidence of a flagrant breach, it is only sensible to be able to refuse enforcement, and Article 1b will allow us to do so.

Letter from Bob Ainsworth MP, Parliamentary Under-Secretary of State, to the Chairman

  I am writing, as agreed, to update you on the progress of this proposal.

  You will remember that this initiative proposed an agreement on road traffic offences and the enforcement of financial penalties imposed for them. There have been no negotiations on the draft agreement since the EM dated 12 November 2001.

  However, the current draft of the Draft Framework Decision on the application of the principle of mutual recognition to financial penalties (7654/02 COPEN 25), does cover penalties imposed for road traffic offences. That proposal has been the subject of separate correspondence with your Committee.

3 July 2002


 
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