Select Committee on European Scrutiny Twelfth Report



Proposal from the French Republic, the Kingdom of Sweden and the United Kingdom for the adoption by the Council of a draft Framework Decision on the application of the principle of mutual recognition to financial penalties.

Legal base:Article 31(a) and 34(2)(b) EU; consultation; unanimity
Deposited in Parliament: 21 September 2001
Department:Home Office
Basis of consideration: Minister's letter of 14 December 2001
Previous Committee Report: HC 152-viii (2001-02), paragraph 2 (28 November 2001)
To be discussed in Council: No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested


  5.1  The principle of mutual recognition as the basis for judicial co-operation in civil and criminal matters within the European Union was one of the conclusions endorsed by the Tampere European Council in October 1999. We considered a draft of a proposal for the mutual recognition and enforcement of financial penalties on 28 November 2001.

  5.2  We noted that the draft Framework Decision followed the pattern of the 1991 Brussels convention on the enforcement of foreign criminal penalties and the 1970 Council of Europe Convention on the International Validity of Criminal Judgments by providing for the transmission of judgments from an issuing State for subsequent recognition and enforcement in the executing State. Similarly, the Framework Decision also provided for grounds on which enforcement of the judgment might be refused.

  5.3  Although we considered the proposal to be generally well-constructed, we expressed concerns over its scope, and also over the narrowness of the grounds under Article 4 of the proposal on which recognition and enforcement could be refused. We asked the Minister for a more detailed explanation of the extent to which Article 1 provided for the recognition and enforcement of penalties imposed by an 'administrative authority'. We also asked the Minister whether any guarantee of procedural fairness would be required before the decisions of an administrative authority could be enforced under the proposal. We were concerned that there was not even a mention in the proposal of procedural unfairness as a ground for refusal of recognition, particularly where it seemed likely that the kind of penalty (such as a fine for a motoring offence) could be imposed without the defendant being made aware of the charge against him.

The Minister's letter

  5.4  In his letter of 14 December 2001, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) addresses the questions we raised. On the extent to which the proposal would provide for the recognition and enforcement of penalties imposed by an 'administrative authority', the Minister comments as follows:

    "Measures imposed by 'administrative authorities' are included in the scope of a number of earlier European agreements, including the 1991 EPC Convention on the enforcement of foreign criminal sentences[11], the 1998 Convention on Driving Disqualification[12] and the 1999 Schengen Agreement on co-operation in proceedings for road traffic offences and the enforcement of financial penalties[13]. In drafting the Framework Decision we had in mind especially fines imposed by traffic police, but other administrative authorities, for example customs or tax officials, could also be included.

    "Some other Member States are concerned about the range of decisions which might be covered. We are therefore aiming at defining more precisely the scope of the term 'administrative authority', as well as the range of decisions that should be included within the Framework Decision. One possibility is that the Framework Decision should include fines imposed by administrative authorities for road traffic offences, but not for other offences. It should be noted that the Framework Decision does not apply to all administrative offences, but only to those 'where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters'. This qualification, which is based on Article 3(1) of the 2000 MLA Convention,[14] is intended to exclude offences which are purely civil in character."

  5.5  In response to our concerns about the absence of any mention of procedural fairness as a ground for refusing recognition, the Minister comments as follows:

    "I agree that basic guarantees of procedural fairness are necessary as a condition of mutual recognition. The 4th recital in the preamble makes it clear that 'decisions requiring financial penalties to be paid have to be taken in accordance with the European Convention on human rights and fundamental freedoms'. This recital will of course apply to decisions taken by administrative authorities as well as by courts in respect of criminal offences. I also noted the Committee's concern that decisions could be made in the issuing State without the defendant being made aware of the charge against him. The Framework Decision does however provide a specific ground for refusal in Article 4(1), where the particulars in the certificate are incomplete. Point 6 of the certificate requires the Issuing State to confirm that the sentenced person has been duly notified of the proceedings against him and any procedures and deadlines for appeal. Therefore there would be no obligation to enforce a foreign penalty, unless steps had been taken by the Issuing State to inform the person concerned."


  5.6  We are grateful to the Minister for his letter and for his acceptance of the principle that basic guarantees of procedural fairness are a necessary condition of mutual recognition.

  5.7  In this regard, we consider that the condition that a person should be notified of proceedings imposing a penalty in sufficient time to enable him to prepare his defence is an essential safeguard. We note the reference made by the Minister to the certificate, and to the ground for refusing recognition where the certificate is incomplete. However, we consider that reference to this essential safeguard should appear in the body of the Framework Decision itself, as it does in the European Political Co-operation Convention and in the 1998 Convention on Driving Disqualification to which the Minister has referred.

  5.8  We draw the Minister's attention to the provisions of Article 6(1)(e) of the latter Convention under which a requested State may refuse to recognise the disqualification if it considers that the person concerned has not had an adequate opportunity to defend himself. We also draw the Minister's attention to the provisions of Article 26(2) of Council Regulation (EC) No 44/2001[15] in relation to the analogous field of the recognition and enforcement of judgments in civil and commercial matters which provides that enforcement shall be stayed so long as it is not shown that the person has been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence.

  5.9  As under the 1998 Convention and under the above Regulation, the question of whether a person has had sufficient notice of proceedings to enable him to prepare his defence should be capable of being established by the executing State on the basis of objective criteria and should not depend solely on an assertion by the issuing State that the person has been 'duly notified' of the proceedings. We ask the Minister if he agrees with our view and if he will press for appropriate provisions to be included in the proposal.

  5.10  We also ask the Minister to keep us informed of progress in defining the term 'administrative authority' more precisely.

  5.11  We shall hold the document under scrutiny pending the Minister's reply.

11  Article 1(a) of this Convention adopted within European Political Co-operation defines 'judgment' as including the imposition of a pecuniary sanction for an administrative offence..'provided the individual concerned has had the opportunity to bring the matter before a court'. Back

12  OJ No C 216, 10.07.98, p.2. Back

13  OJ No L 239, 22.09.00, p.42. Back

14  Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union OJ No. C 197, 12.07.2000, p. 3. Back

15  OJ No. L 012, 16.01.01, p. 1. Back

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