Marian Balaz [2013] EUECJ C-60/12 (18 July 2013)

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(Request for a preliminary ruling from the Vrchní soud v Praze (Czech Republic))

(Police and judicial cooperation in criminal matters – Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties – ‘Opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’)

1. Framework Decision 2005/214/JHA (2) (‘the Framework Decision’) extends the application of the principle of mutual recognition to financial penalties. It requires a Member State to give effect to a decision of another Member State to impose a financial penalty if that decision was made, inter alia, by an authority, other than a court, provided that the person concerned has had ‘an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’. By this request for a preliminary ruling, the Court is asked how that expression must be interpreted. Answering that question will require the Court to strike the appropriate balance between mutual recognition and enforcement of such penalties and the effective protection of fundamental rights.

‘(1) The European Council meeting in Tampere on 15 and 16 October 1999 endorsed the principle of mutual recognition, which should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union.

(2) The principle of mutual recognition should apply to financial penalties imposed by judicial or administrative authorities for the purpose of facilitating the enforcement of such penalties in a Member State other than the State in which the penalties are imposed.

(5) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty and reflected by the Charter of Fundamental Rights of the European Union in particular Chapter VI thereof. …’

3. The decisions which are to be recognised under the Framework Decision are defined at Article 1(a)(i) to (iv). Article 1(a)(iii) provides:

‘“decision” shall mean a final decision requiring a financial penalty to be paid by a natural or legal person where the decision was made by:

5. The ‘issuing State’ is defined at Article 1(c) as ‘the Member State in which a decision within the meaning of this Framework Decision was delivered’.

6. The ‘executing State’ is defined at Article 1(d) as ‘the Member State to which a decision has been transmitted for the purpose of enforcement’.

‘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.’

8. Article 4 makes provision for the transmission of a decision, together with a certificate in the standard form, (3) to ‘a Member State in which the natural or legal person against whom a decision has been passed has property or income, is normally resident or, in the case of a legal person, has its registered seat’.

9. Article 5, entitled ‘Scope’, lists the offences in respect of which decisions are to be recognised and enforced under the Framework Decision. Article 5(1) provides:

‘The following offences, if they are punishable in the issuing State and as they are defined by the law of the issuing State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to recognition and enforcement of decisions:

‘The competent authorities in the executing State shall recognise a decision which has been transmitted in accordance with Article 4 without any further formality being required and shall forthwith take all the necessary measures for its execution, unless the competent authority decides to invoke one of the grounds for non-recognition or non-execution provided for in Article 7.’

11. Article 7 lists grounds for non-recognition and non-execution. Article 7(3) provides, in respect of certain of those grounds, that:

‘… before deciding not to recognise and to execute a decision either totally or in part, the competent authority in the executing State shall consult the competent authority in the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary information without delay.’

‘Each Member State may, where the certificate referred to in Article 4 gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 of the Treaty may have been infringed, oppose the recognition and the execution of decisions. The procedure referred to in Article 7(3) shall apply.’

14. Article 48 of the Charter provides for the presumption of innocence and the rights of the defence. These rights have the same meaning and scope as the rights guaranteed by Article 6(2) and (3) of the European Convention for the protection of Human Rights and Fundamental Freedoms (‘the ECHR’). (4)

15. Article 49(3) provides that ‘[t]he severity of penalties must not be disproportionate to the criminal offence’.

16. Article 52(3) provides that in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR ‘the meaning and scope of those rights shall be the same as those laid down by [the ECHR]’.

17. Article 6 ECHR establishes the right to a fair trial by an independent and impartial tribunal. In relation to ‘everyone charged with a criminal offence’, Article 6(2) establishes the right to be ‘presumed innocent until proved guilty according to law’, whilst Article 6(3) lists the minimum rights that must be guaranteed, namely the right:

18. Czech law provides for the recognition and enforcement of financial penalties imposed by the courts of another Member State in accordance with the Code of Criminal Procedure. In the version in force at the relevant time, Section 460o of the Code provided:

‘(1) The provisions of this part shall apply to the procedure for the recognition and enforcement of a final sentence for a criminal or other offence, or of a decision issued on the basis thereof, if issued in accordance with legislation of the European Union,

if issued by a court of the Czech Republic in criminal proceedings …, or by a court of another Member State of the European Union in criminal proceedings or by an administrative authority of such a State, provided that the administrative authority’s decision on the criminal or other offence is subject to an appeal heard by a court having jurisdiction in particular in criminal matters …’.

‘After written observations are filed by the public prosecutor, the Krajský soud decides, by judgment given at a public hearing, whether the decision of another Member State of the European Union concerning a financial penalty or monetary fine, which was submitted to it by competent authorities of that State, is recognised and enforced or whether the recognition and enforcement of the decision is refused. The judgment is notified to the person concerned and the public prosecutor.’

20. The Austrian legal system distinguishes between offences which constitute breaches of ‘administrative criminal law’ and those which breach ‘judicial criminal law’. In both cases, persons charged with offences have access to a court or tribunal. Administrative offences, which include many road traffic offences, are dealt with by the Bezirkshauptmannschaft (District Administrative Authority) in the first instance. After any remedies before that administrative authority have been exhausted, a decision of the Bezirkshauptmannschaft may be appealed to the Unabhängiger Verwaltungssenat, the Independent Administrative Tribunal.

21. The procedure in relation to administrative offences is governed by the Verwaltungsstrafgesetz (Administrative Criminal Law) 1991. By contrast, serious offences are dealt with only through the court system. In respect of those offences the Strafprozessordnung 1975 (Criminal Code of Procedure) is applied.

22. Mr Marián Baláž, a resident of the Czech Republic, was stopped by the police at 00.40 a.m. on 22 October 2009 near Kufstein, Austria, whilst driving an articulated goods vehicle registered in the Czech Republic. After the Austrian police had weighed the vehicle on a weigh bridge, he was allowed to proceed on his way.

23. On 25 March 2010 the Bezirkshauptmannschaft, Kufstein, Austria, issued a decision (‘the decision’) in which it found that on 22 October 2009 Mr Baláž had committed a road traffic offence, namely, driving a vehicle weighing in excess of 3.5 tonnes on a road where a sign indicated that this was prohibited. That decision imposed a fine of EUR 220 on Mr Baláž or, in default, 60 hours imprisonment.

24. On 2 July 2010, the Okresní soud (District Court), Teplice, Czech Republic, notified Mr Baláž of the decision. It appears from the national file that Mr Baláž was (probably) given a copy of the decision (which stated that he had two weeks within which to lodge an appeal) translated into Czech together with a document setting out his rights under Czech law. It is unclear whether he was told anything more (and, if so, precisely what) about his rights under Austrian law either to contest the decision or to submit material in mitigation; or that he had 2 weeks from 2 July 2010 (rather than from 25 March 2010, the date of the Bezirkshauptmannschaft’s decision) in which to contest the decision. (5)

25. By letter dated 19 January 2011, addressed to the Krajský soud v Ústí nad Labem (Usti nad Labem Regional Court) (‘Krajský soud’), Czech Republic, the Bezirkshauptmannschaft requested the recognition and enforcement of the decision in the Czech Republic. The letter enclosed a standard form certificate, which declared that the decision had been made by an authority, other than a court, in respect of acts which were punishable under national law by virtue of being infringements of rules of law, in this case road traffic regulations. The certificate stated that Mr Baláž had been informed of his right to contest the decision in a court having jurisdiction in particular in criminal matters and of the time-limits for doing so. The certificate further recorded that he had not contested the decision and that, following a written procedure, the decision had therefore become final on 17 July 2010.

26. At the hearing on 17 May 2011 before the Krajský soud, counsel for Mr Baláž argued that because under Austrian law an appeal against the decision would have been heard by the Unabhängiger Verwaltungssenat, which was not ‘a court having jurisdiction in particular in criminal matters’, the decision could not be enforced.

27. The Krajský soud rejected that argument and held that the decision must be recognised and enforced in the Czech Republic. Mr Baláž appealed to the Vrchní soud v Praze (High Court, Prague). That court considers it necessary to decide whether the decision falls within Article 1(a)(iii) of the Framework Decision and therefore satisfies the conditions for recognition and enforcement. It had doubts, however, regarding the interpretation of ‘court having jurisdiction in particular in criminal matters’ and of ‘an opportunity to have a case tried’. Accordingly, it stayed proceedings and referred the following questions:

In relation to maintaining the “opportunity to have the case tried”, is it necessary to decide questions of whether an appeal heard by a “court having jurisdiction in particular in criminal matters” is in the nature of an ordinary appeal (that is to say, an appeal against a decision not yet final) or an extraordinary appeal (that is to say, an appeal against a final decision) and whether a “court having jurisdiction in particular in criminal matters”, on the basis of that appeal, has the authority to review the case in its entirety both in fact and in law?’

28. Written observations were submitted by the Austrian, Czech, Italian, Netherlands and Swedish Governments and by the European Commission. At the hearing on 12 March 2013, the Austrian and Czech Governments and the Commission made oral submissions and responded to the Court’s questions. Mr Baláž did not submit written observations and was not represented at the hearing.

29. Framework Decision 2005/214 forms part of a series of measures that have been introduced over recent years that apply the principle of mutual recognition to matters involving criminal law. Its purpose is to facilitate the enforcement of financial penalties in a Member State other than the State in which the penalties were imposed. The protection of the individual concerned – the counterpart to the mutual recognition of the financial penalty – is achieved through guaranteeing (Article 1) that only decisions (i) made by ‘a court of the issuing State in respect of a criminal offence under the law of the issuing State’ (Article 1(a)(i)), or (ii) made by ‘a court having jurisdiction, in particular, in criminal matters’ (Article 1(a)(iv)), or (iii) in respect of which there has been ‘an opportunity to have the case tried by a court having jurisdiction, in particular, in criminal matters’ (Article 1(a)(ii) and (iii)) may benefit from mutual recognition and hence enforcement under the Framework Decision.

30. For convenience, in what follows I shall describe a final decision requiring a financial penalty to be paid on conviction for an offence listed in Article 5 as a ‘financial penalty decision’. I shall follow the Framework Decision in describing the Member State in which the financial penalty was issued as the ‘issuing State’ and the Member State in which enforcement of that penalty is sought as the ‘executing Member State’.

31. The Framework Decision is based on the principle of mutual recognition (recital 1) whilst respecting fundamental rights and observing the principles recognised by Article 6 TEU and reflected in the Charter of Fundamental Rights (recital 5). Article 3 moreover expressly provides: ‘This Framework Decision shall not have the effect of amending the obligation to respect fundamental rights and fundamental principles as enshrined in Article 6 of the Treaty.’ The legislator thus clearly intended to facilitate the cross-border enforcement of financial penalties whilst at the same time maintaining appropriate guarantees for the individuals against whom those penalties were to be enforced.

32. Behind this apparently anodyne statement lie a number of rather less anodyne questions that need to be addressed. First, is there any particular logic behind the list of financial penalty decisions that are covered by the Framework Decision? Second, what precisely was the protection that the legislator intended should be afforded to the individual? Third, and given the rather obvious fact that the actual economic sanction resulting from imposing a financial penalty depends on the circumstances of the person to whom it is applied, where in the system is the proportionality of the sanction intended to be assessed?

33. The list of offences set out in Article 5 in respect of which financial penalty decisions can be enforced is a heterogeneous collection that appears primarily to have been inspired by the offences set out in Article 2 of Framework Decision 2002/584/JHA on the European arrest warrant. (6) However, to that list have been added a number of additional offences: smuggling, infringement of intellectual property rights, threats and acts of violence against persons, criminal damage, theft and – most pertinently for the purposes of the present proceedings – ‘conduct which infringes road traffic regulations’.

34. I confess to some difficulty in understanding the underlying logic behind the legislator’s inclusion, in a Framework Decision which otherwise (essentially) deals with what one might term ‘mainstream criminal law’, of this last element (apart from the obvious utility, to the Member States, of ensuring that such penalties can be enforced against visiting motorists from other Member States). Be that as it may, it is clear that the procedure envisaged by the Framework Decision itself cross-refers extensively to criminal law concepts (7) and is designed to ensure that full and appropriate safeguards – of the kind rightly required in the context of criminal proceedings – must be respected before a financial penalty decision may be enforced in the executing Member State. Since ‘conduct which infringes road traffic regulations’ is similarly a listed offence, it follows that the same safeguards should be available when a financial penalty decision arising in the context of a breach of road traffic regulations is to be enforced as are available, say, in respect of a financial penalty decision arising in the context of corruption, illicit trafficking in narcotic drugs and psychotropic substances, or smuggling.

35. To put the same point a different way: the system of mutual recognition of financial penalty decisions put in place by the Framework Decision implies a high degree of mutual trust between Member States. However, as the European Council noted in its Stockholm Programme, ‘the protection of the rights of suspected and accused persons in criminal proceedings is a fundamental value of the Union which is essential in order to maintain mutual trust between the Member States and public confidence in the Union’. (8) For that very reason, the protection afforded to the citizen by having ‘had the opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’ (as specified in Article 1(a)(ii) and (iii) of the Framework Decision) must presumably be intended to equate to the protection available from ‘a court of the issuing State in respect of a criminal offence under the law of the issuing State’ (Article 1(a)(i)) or the fact that the decision emanates from ‘a court having jurisdiction in particular in criminal matters’ (Article 1(a)(iv)).

36. It is perhaps tempting to think that because ‘conduct which infringes road traffic regulations’ is less intrinsically reprehensible than terrorism or murder, a person liable to pay a financial penalty for the former is less in need of the full panoply of protection under the criminal law than a person sentenced in respect of the latter. It seems to me that such an approach is to be resisted. The Framework Decision specifies, through very slightly differing formulations employed within Article 1(a), that protection from having had access either to ‘a court of the issuing State in respect of a criminal offence’ or to ‘a court having jurisdiction in particular in criminal matters’ is a pre-condition for enforcement. My starting premise is that the two formulae are effectively equivalent; and that there cannot be significantly differing standards of protection under one and the same legal instrument (the Framework Decision), depending on whether one regards the listed offence giving rise to the financial penalty decision as more or less serious. As the Stockholm Programme puts it, ‘[i]t is of paramount importance that law enforcement measures, on the one hand, and measures to safeguard individual rights, the rule of law and international protection rules, on the other, go hand in hand in the same direction and are mutually reinforced’. (9)

37. In essence, the questions referred by the Vrchní soud ask how the Framework Decision should be interpreted so as to ensure the effective judicial protection of citizens of the Union who, like Mr Baláž, in the course of exercising their freedom of movement throughout the Union, become subject to financial penalties in Member States other than the one in which they normally reside. (10)

38. In examining the issues raised by this case, I bear in mind that Mr Baláž has not lodged written observations and was not represented at the hearing. Given the vigour with which he contested the national enforcement proceedings, putting forward a version of events (supported by the evidence of at least one witness) that was completely at variance (11) with that forming the basis of the administrative procedure for violation of a road traffic regulation and the financial penalty imposed on him in absentia by the Bezirkshauptmannschaft, the absence of representation before this Court is a source of concern. Whilst the financial penalty may have been imposed administratively, the enforcement context is that of criminal law. I do not exclude the possibility that, as a lorry driver on a Czech salary (to whom the prospect of very possibly having to pay a EUR 220 fine might already seem rather daunting), Mr Baláž may have felt that he did not have the means to incur the further costs of instructing counsel to represent him before this Court. I am also far from certain that he would necessarily have been aware of the (limited) possibilities of applying to this Court for legal aid.

39. For those reasons, I feel that it is incumbent on me at least to identify a number of elements that might be relevant to the question of whether Mr Baláž did (or did not) genuinely have ‘an opportunity’ to have the case tried by ‘a court having jurisdiction in particular in criminal matters’ (the pre-condition, under Article 1(a)(iii) of the Framework Decision, for the financial penalty decision against him to be enforceable). This I do later in my Opinion, mentioning them merely as points of principle. (12) Those elements are practical – the ordinary nuts and bolts of defence work in criminal cases. They range from possession of the necessary information to exercise the right of appeal to a criminal court to the issue of assessing the proportionality of the sanction imposed. It will be for the national court, as sole judge of fact, to carry out any necessary verification when the matter returns before it.

40. By its first question, the referring court asks whether the term ‘court having jurisdiction in particular in criminal matters’ used in Article 1(a)(iii) of the Framework Decision should be interpreted as an autonomous concept of European Union law.

41. The Netherlands and Swedish Governments consider that the meaning of that provision should be determined in accordance with the law of the issuing Member State. By contrast, the referring court and the Austrian, Czech, and Italian Governments, together with the Commission, take the view that it is an autonomous concept of European Union law that must be given a uniform interpretation.

43. As the Court has consistently held, it follows from the need for the uniform application of EU law and from the principle of equality that the terms of a provision of EU law, which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope, must normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question. (13)

44. The objective pursued by the Framework Decision has already been identified: the enforcement of financial penalty decisions through mutual recognition. (14) The term ‘court having jurisdiction in particular in criminal matters’ used in Article 1(a)(iii) plays a crucial role in determining the scope of the Framework Decision, because it defines a category of financial penalty decision that benefits from mutual recognition and hence enforcement. Whilst other parts of the Framework Decision do indeed cross-refer to national law, (15) here there is no such mention.

45. I therefore suggest that, in order to achieve the intended objective and scope of the Framework Decision, the Court should adopt the same approach as it has already endorsed regarding the interpretation of the Framework Decision on the European arrest warrant, (16) which similarly concerns the mutual recognition of judicial decisions in criminal matters. In both Mantello (17) and Kozłowski, (18) the Court concluded that concepts which were determinative of the scope of application of that Framework Decision had to be interpreted in a uniform manner; (19) their meaning could not be left to be decided at the discretion of the judicial authorities of each Member State on the basis of national law.

46. The need for uniform interpretation is particularly important where (as here) the provision at issue enshrines a safeguard for the individual. Access to ‘a court having jurisdiction in particular in criminal matters’ guarantees appropriate and effective judicial protection before that individual can be made subject to a financial penalty decision that may be enforced against him in any Member State of the European Union. That militates against allowing the safeguard to vary substantially between Member States. Indeed, a shared confidence in the safeguards available to those charged with offences underpins the principle of mutual recognition of decisions in criminal matters. A uniform interpretation of the concept of a ‘court having jurisdiction in particular in criminal matters’ creates the mutual confidence and trust on which mutual recognition must be based.

47. The difficulties associated with preferring a uniform interpretation over one that defers to national law in its definition of that provision are, in my view, more theoretical than real. It is, of course, true that each Member State has its own particular structure of courts; and that neither this Framework Decision nor any other has thus far attempted any degree of harmonisation in that field. However, I point out that, from a practical point of view, whether a ‘court having jurisdiction in particular in criminal matters’ is interpreted as an autonomous concept or interpreted by reference to the law of the issuing State makes no actual difference to the court in the executing State. It is still faced with the basic problem that it is (probably) unfamiliar with the court structure of the issuing State. It may therefore be unable, without making further enquiries, to satisfy itself whether or not the court in the issuing State satisfies that definition.

48. I therefore suggest that, in reply to Question 1, the Court should hold that the term ‘court having jurisdiction in particular in criminal matters’ in Article 1(a)(iii) of the Framework Decision is an autonomous concept of European Union law.

49. By Question 2(a) the referring court asks what are the defining characteristics that a court must have in order to be considered to be a ‘court having jurisdiction in particular in criminal matters’ within the meaning of Article 1(a)(iii).

50. The referring court and the Czech Government consider that the term should be interpreted as meaning a body (which must be a court) that applies a procedure that has a criminal character. The Austrian and Italian Governments suggest that the court must be one in which the guarantees contained in Article 6 ECHR are available to the person concerned. The Swedish Government considers that (if this is a question of EU law rather than national law) whether a given court is one ‘having jurisdiction in particular in criminal matters’ should be determined according to material rather than formal characteristics. The Netherlands Government considers that it is for the issuing State to assess whether its court satisfies that definition. The Commission takes the view that Article 1(a)(iii) refers to a court that has jurisdiction in matters formally qualified as criminal in the issuing State. That court might also have jurisdiction in other, non-criminal, matters. However, in order to satisfy the requirements of Article 1(a)(iii), it must be the criminal section of the court that would exercise control over the financial penalty decision.

51. I agree with the referring court and with those governments that consider that the defining characteristic of a ‘court having jurisdiction in particular in criminal matters’ is that it is a court which applies criminal procedure and guarantees, whether or not it also has jurisdiction in non-criminal cases.

52. As I have already pointed out, (20) the offences that give rise to mutual recognition and enforcement listed in Article 5 of the Framework Decision include matters regarded as criminal in all Member States, such as ‘terrorism’, but also matters regarded as criminal in some Member States but not others (where it is dealt with under administrative, rather than criminal, law). ‘Conduct which infringes road traffic regulations’ falls into the latter category. The intention of the legislature was therefore to facilitate the mutual recognition of financial penalty decisions imposed in respect of these offences without harmonising the notion of what is a ‘criminal’ offence. Where an offence is listed in Article 5 it can give rise to mutual recognition irrespective of whether the law of the issuing State or the executing State categorises the offence as ‘criminal’.

53. It follows from the absence of harmonisation of the term ‘criminal’ that the term ‘court having jurisdiction in criminal matters’ cannot require a uniform interpretation of what is a ‘criminal matter’.

54. For that reason, I do not think that the interpretation proposed by the Commission can be adopted. It would place an unintended restriction on the scope of application of the Framework Decision if only those courts which dealt with ‘criminal matters’, as defined under the law of the issuing State, were included within the definition of the term ‘court having jurisdiction in particular in criminal matters’. Member States in which some of the offences listed in Article 5 are not categorised as ‘criminal’ and whose court structures are such that administrative decisions in respect of those offences are reviewed in courts that are separate from the courts dealing with criminal cases, as defined by national law, would not be able to avail themselves of the mutual recognition procedure in relation to financial penalty decisions imposed in respect of such offences. That seems to me to run counter to the legislature’s avowed intention in including such offences in the Article 5 list, and thus run counter to the aim of the Framework Decision.

55. However, in tandem with facilitating the mutual recognition of decisions imposing financial penalties, the legislature also expressly guaranteed that the fundamental rights of the person concerned would be respected (see recital 5 in the preamble and Article 3 of the Framework Decision).

56. When those twin aims are put together, it seems to me that Article 1(a)(iii) must be interpreted as meaning that a financial penalty decision made by an administrative authority will give rise to mutual recognition and consequent enforcement provided that the person concerned has had a proper opportunity to challenge that decision in a court which ensures that his fundamental rights are respected. That in turn implies that the court given jurisdiction over such financial penalty decisions in the issuing State must be one whose constitution, procedures and scope of review secure the minimum guarantees applicable under Articles 47 and 48 of the Charter when a person is charged with a criminal offence. In other words, although the competent court does not necessarily have to be the court in the issuing State that deals with matters that are formally labelled as ‘criminal’ under the law of that Member State, it must nevertheless afford the same procedural and substantive guarantees.

57. The rights secured by Articles 47 and 48 of the Charter expressly include the right to a fair hearing by an independent and impartial tribunal previously established by law, the possibility of being advised, defended and represented, a limited right to legal aid and a general provision stating that ‘respect for the rights of the defence … shall be guaranteed’. Article 52(3) of the Charter then expressly indicates that, ‘in so far as [the] Charter contains rights which correspond to rights guaranteed by [the ECHR], the meaning and scope of those rights shall be the same as those laid down in [the ECHR]’. For Articles 47 and 48 of the Charter, the explanatory note confirms that the point of reference within the ECHR is Article 6. (21)

58. Article 6 ECHR contains, in its first three subparagraphs, important guarantees for persons charged with a criminal offence. Thus, the review body must be one which is established by law, is independent and impartial. It must ensure that the following guarantees are respected. The accused must: be presumed innocent until proven guilty according to law; be informed promptly in a language which he understands and in detail, of the nature and cause of the accusation against him; have adequate time and facilities for the preparation of his defence; be permitted to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; be entitled to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; and have the free assistance of an interpreter if he cannot understand or speak the language used in court.

59. To what extent may protection of those fundamental rights for persons charged with a criminal offence also be deemed necessary for those whose offence is classified as administrative rather than criminal under national law, but whose only protection from quasi-automatic recognition and enforcement (22) of a decision imposing a financial penalty upon them lies in the safeguard contained in Article 1(a)(iii) of the Framework Decision: that they should have had ‘an opportunity to have the case tried in a court having jurisdiction, in particular, in criminal matters’?

60. It seems to me that a narrow reading, which would exclude cross-reference to the ‘criminal proceedings’ guarantees contained in Article 6(1), (2) and (3) ECHR, would be inappropriate for a number of reasons.

61. First, the plain wording of the Framework Decision is against such a reading. The text of Article 1(a)(iii) speaks, expressly, of a court having jurisdiction in criminal matters. What would be the point of those words if there was then no obligation on that court to exercise that jurisdiction, with the safeguards for the individual that such criminal jurisdiction implies?

62. Second, the possibility of review by such a court is the individual’s only protection against subsequent mutual recognition and enforcement of the financial penalty decision. That militates in favour of a broad, rather than a narrow, reading of the protection that is being offered.

63. Third, it may be that the person on whom the financial penalty is imposed has a different version of the events on which that financial penalty is based. If his version is accepted, the result might be that no penalty at all, or only a much reduced penalty, became payable. If the mutual trust on which mutual recognition is based is not to be undermined (and public confidence in, and acceptance of, such mutual recognition and enforcement gravely weakened), it is essential that there be the opportunity for proper judicial review of the financial penalty decision (which will require review on the facts, not merely on the law, and may involve the attendance and examination of witnesses).

64. Fourth, it seems to me that, when according mutual recognition and enforcement to financial penalty decisions in a cross-border situation, the linguistic requirements are particularly important fair trial guarantees. By definition, a financial penalty decision will only fall to be recognised and enforced under the Framework Decision where the person concerned was in one Member State (the issuing State) at the time of committing the offence but is now in a different Member State (the executing Member State). The Union has just gained an additional official language, Croatian, (23) to add to the 23 official languages which already reflect the diversity and cultural richness of its peoples. (24) In the context of a Union that encompasses the principles of freedom of movement for persons and freedom of establishment, the protection of the linguistic rights and privileges of individuals is of particular importance, as the Court has already recognised in Bickel and Franz. (25)

65. The very success of the single market means that a Lithuanian lorry driver may be stopped by the police as he drives through Poland or Germany on his way to deliver goods in Belgium. Should there be matters that lead to the imposition of a financial penalty on the lorry driver, it is understandable and important, from the Member State’s perspective, that that penalty should be enforceable against him back in Vilnius. It is equally important that the lorry driver should have adequate protection of his fundamental rights.

66. In consequence, I take the view that the defining characteristics of a ‘court having jurisdiction in particular in criminal matters’ for the purposes of Article 1(a)(iii) of the Framework Decision are (a) that the review body must be a court; and (b) that it must ensure that the minimum guarantees required by Article 6(1), (2) and (3) ECHR are respected.

67. As regards the words ‘in particular’, having regard to the lack of harmonisation of court structures within the European Union and in order to give full effect to the Framework Decision, these words must be interpreted as meaning that where a court has jurisdiction in non-criminal matters in addition to the jurisdiction in which it applies criminal procedure, it is not excluded from falling within the definition at Article 1(a)(iii). However, it is essential that, when reviewing a financial penalty decision, the court must apply a procedure that respects the minimum guarantees laid down by Article 6(1), (2) and (3) ECHR.

68. It may be said that the definition I propose will have the effect of restricting the principle of mutual recognition, which was endorsed by the European Council meeting at Tampere in 1999 and is intended to become the cornerstone of judicial cooperation in both civil and criminal matters. However, the mutual recognition of decisions in criminal matters presupposes that Member States have trust in each other’s criminal justice systems and, in particular, that the rights of suspected or accused persons are safeguarded according to common minimum standards. To that end, it should be noted that the conclusions reached at Tampere included that ‘work should also be launched on those aspects of procedural law on which common minimum standards are considered necessary in order to facilitate the application of the principle of mutual recognition respecting the fundamental legal principles of Member States’. (26)

69. While a number of measures have been introduced that provide for mutual recognition and enforcement of judicial decisions, including this Framework Decision, less has been achieved to date as regards laying down common minimum standards of procedural guarantees. In 2009 the Council adopted a Roadmap (27) for strengthening the rights of the individual in criminal proceedings, which was welcomed by the European Council and declared to form part of the Stockholm Programme. Two measures on that roadmap have now been adopted: Directive 2010/64/EU, (28) which provides for the right to interpretation and translation in criminal proceedings, and Directive 2012/13/EU, (29) on the right to information in criminal proceedings. There is also a proposal for a directive on the right of access to a lawyer in criminal proceedings and on the right to communicate on arrest. (30)

70. Both of the adopted directives are intended to apply to proceedings in a ‘court having jurisdiction in criminal matters’ which hears appeals from decisions taken by an authority other than a court in respect of sanctions for minor offences: see recital 16 in the preamble to Directive 2010/64 and recital 17 in the preamble to Directive 2012/13. Accordingly, when the deadline for the transposition of those directives has passed (27 October 2013 and 2 June 2014 respectively), a court having jurisdiction in particular in criminal matters, within the meaning of Article 1(a)(iii), must apply the common minimum standards laid down by those directives when it exercises its criminal jurisdiction on appeal to review an administrative sanction. (31)

71. I therefore suggest that the Court should answer question 2(a) by ruling that Article 1(a)(iii) of the Framework Decision must be interpreted as meaning that a ‘court having jurisdiction in particular in criminal matters’ is a court before which the person concerned will benefit from the rights guaranteed by Article 6(1), (2) and (3) ECHR when the case is tried.

72. By Question 2(b), the referring court asks whether the Austrian Unabhängiger Verwaltungssenat should be regarded as a ‘court having jurisdiction in particular in criminal matters’ within the meaning of Article 1(a)(iii).

73. The competent authority in the executing Member State will verify, initially on the basis of the text of the financial penalty decision itself and the certificate transmitted with that decision in accordance with Article 4 of the Framework Decision, whether the financial penalty decision is one that should be accorded mutual recognition and thus enforcement under Article 6 thereof (unless one of the grounds for non-recognition and non-enforcement listed in Article 7 is applicable). By virtue of Article 11(2), the executing State can either recognise and enforce, or not recognise and not enforce, the decision. What it cannot do is to conduct a review: an application for such review can only be entertained by the issuing State. The verification process is therefore crucial if the balance is to be maintained between mutual recognition and enforcement, on the one hand, and protection of fundamental rights, on the other hand.

74. Article 7(1) and (2) of the Framework Decision sets out a list of circumstances in which the competent authorities in the executing State may refuse to recognise and execute the decision. Article 7(3) provides, in respect of certain of those grounds, that – before deciding not to recognise and to execute a decision, either wholly or in part – ‘the competent authority in the executing State shall consult the competent authority in the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary information without delay’.

75. More fundamentally, however, it is only a ‘decision’ that satisfies the conditions specified in one of the four categories exhaustively listed in Article 1(a), arising out of the commission of one of the offences listed exhaustively in Article 5, which falls within the scope of the Framework Decision itself. Only such a decision is to be afforded mutual recognition and enforcement. Where the competent authority is uncertain in that regard (because, for example, it entertains doubts as to whether ‘the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’ in accordance with the requirements of Article 1(a)(iii)), it should in my view similarly (that is, by direct analogy with Article 7(3)) contact the competent authority in the issuing State and request any necessary information. Upon receipt of that information, the competent authority must draw all the appropriate conclusions, in the light of the definition provided by this Court in answering Question 2a, to determine whether the authority in question is a ‘court having jurisdiction in particular as regards criminal matters’. (32) If necessary, recourse could also be had to the contact points of the European Judicial Network. (33)

76. In its written observations before this Court, the Austrian Government has set out certain elements which permit this Court to assist the referring court in reaching its conclusion. In particular, the Austrian Government confirms that the Unabhängiger Verwaltungssenat is required to apply the Austrian administrative criminal law (Verwaltungsstrafgesetz 1991) and that it is required to guarantee the rights set out in Article 6 ECHR, including the guarantees which must apply when a person is charged with a criminal offence (Article 6(2) and (3)). The referring court itself observes that the European Court of Human Rights (‘the Strasbourg Court’) has concluded that the Unabhängiger Verwaltungssenat is a tribunal (34) within the meaning of Article 6(1) ECHR and that it applies the presumption of innocence. (35) The referring court also notes that in Kammerer (36) the Strasbourg Court found that the right to be heard in person was not always guaranteed. In that regard, the Austrian Government submits that the Strasbourg Court’s finding in that case does not reflect a general failure by the Unabhängiger Verwaltungssenat to apply that right.

77. The fact that on occasion a court may fail to respect one of the procedural guarantees that must apply does not disqualify it from falling within the definition of a ‘court having jurisdiction in particular in criminal matters’. However, a failure to respect such a guarantee in a particular case in respect of a financial penalty decision would, in my view, mean that the competent authority in the executing State would not be required to recognise and enforce that decision under the Framework Decision. In recognising and enforcing such decisions, the competent authority is implementing EU law and is thus required to respect the rights guaranteed by Articles 47 and 48 of the Charter, reflecting those enshrined in Article 6 ECHR. (37) If any of those rights have been breached, then the competent authority, after following the procedure to obtain information from the issuing State under Article 7(3), may oppose the recognition and execution of the decision pursuant to Article 20(3) of the Framework Decision. (38)

78. I therefore propose that the Court should answer Question 2b by ruling that it is for the national court to determine, in the light of the information available to it, whether the Unabhängiger Verwaltungssenat is a ‘court having jurisdiction in particular in criminal matters’ within the meaning of Article 1(a)(iii) of the Framework Decision.

79. In the light of my proposed response to the first question, it is unnecessary to answer Question 2c.

80. By its third question, the national court asks, first, whether Article 1(a)(iii) of the Framework Decision should be interpreted as meaning that ‘an opportunity to have the case tried’ is afforded in circumstances where the person concerned must first contest a decision of an administrative authority before the same authority; and only once a further decision is made by that authority may bring an appeal before ‘a court having jurisdiction in particular in criminal matters’. Second, it asks whether the court hearing the appeal must hear the case before the decision becomes final and must be able to review the case in its entirety both in fact and law.

81. The referring court and all the parties submitting observations on this question consider that there is no objection to access to the court being afforded only after a further administrative stage. The Czech and Italian Governments, as well as the Commission, add that the court must have full jurisdiction to adjudicate on disputes of fact as well as law. The Czech Government further submits that the decision must not become final before such access to a court is afforded. In contrast, the Italian Government does not consider it necessary, for the effective judicial protection of the person concerned, that a decision should not become final at the administrative stage.

82. I agree with the referring court and those governments submitting observations on this question that the condition of having an ‘opportunity to have the case tried’ is satisfied where that opportunity arises only after the person concerned has exhausted further stages of an administrative procedure. However, the ‘opportunity to have the case tried’ by a court must not be made subject to conditions which make it impossible or excessively difficult to exercise. If it were, the effective judicial protection of the person concerned would not be ensured. (39)

83. Here, it should be borne in mind that the fundamental rights guaranteed by Article 6 TEU and Articles 47 and 48 of the Charter are not about notional access to a court. They are about effective protection for the individual citizen. Just as it is important to define ‘a court having jurisdiction in particular in criminal matters’ in a way that ensures adequate and effective protection, so it is essential to interpret ‘an opportunity to have the case tried’ in a way that ensures that the guarantee is not meaningless and the right not theoretical or illusory. (40)

84. It will, if necessary, (41) be for the national court in the executing State to make the appropriate enquiries, in respect of the procedure followed, to satisfy itself that that was the case. As a minimum, I suggest, the national court will need to check that the decision imposing the financial penalty was made available to its addressee in a language that he could understand; that there were clear instructions about how to appeal and within what time-limit; that there was a clear indication of the date from which time for appealing started to run; (42) that the addressee was informed about whether he had to be represented or could represent himself; that he was told whether legal aid was available (and if so on what terms) (43) and that language issues (language of communication with the court; language for making formal submissions in writing and/or orally) were dealt with clearly and helpfully. (44)

85. Furthermore, I agree with the referring court and those Member States, as well as the Commission, who submit that the court hearing the case must have full jurisdiction to adjudicate on disputes of fact as well as law arising in the case. It is only if the court has full jurisdiction that it is able to ensure that the rights of the person concerned guaranteed by Article 6(1), (2) and (3) ECHR are fully respected. Provided that the opportunity for such a trial of the case is available, the fact that a decision becomes ‘final’ at the administrative stage of the proceedings (it remaining possible that such a challenge will subsequently be mounted before the court) will not undermine the effective judicial protection of the person concerned. Subject to that proviso, I do not consider that a decision which becomes final at the administrative stage of proceedings falls outwith the scope of the Framework Decision.

86. Accordingly, I propose that Article 1(a)(iii) of the Framework Decision should be interpreted as meaning that there is an ‘opportunity to have the case tried’ where the person concerned must first exhaust an administrative procedure, provided that access to the court is not subject to conditions which make it impossible or excessively difficult. Second, the court hearing the case must have full jurisdiction to determine facts as well as law. Third, Article 1(a)(iii) of the Framework Decision does not preclude a financial penalty decision taken by an administrative authority from becoming final prior to the trial of the case.

87. An implicit part of the fundamental rights protection afforded to the citizen by the requirement, in Article 1(a)(iii), that there should have been ‘an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’ relates to the proportionality of the sanction imposed. This is particularly relevant in so far as Article 11(2) of the Framework Decision makes it clear that the executing State cannot carry out any review of the financial penalty decision. It is therefore impossible for the addressee of such a decision to apply to his ‘local’ court to advance arguments in mitigation of the offence or to seek to have the sanction imposed reduced.

88. It is trite to observe that average earnings differ widely across the European Union. A fine in an amount that might be certainly unpleasant, but would nevertheless be tolerable, if imposed on one person (perhaps, a national of a relatively high-earning Member State) may represent a draconian and disproportionate punishment if imposed on someone with much lower monthly earnings who incurs a financial penalty decision as a result of an event that occurs whilst he is passing through that Member State on his way to or from his own Member State of residence and employment. It seems to me that it is therefore implicit, in the phrase ‘opportunity to have the case tried before a court having jurisdiction in particular in criminal matters’, that there must be an opportunity to contest the amount of the sanction imposed by the administrative authority before such a court prior to the financial penalty decision being accorded mutual recognition and becoming enforceable.

89. In so saying, I emphasise that I am not suggesting that an authority imposing an administrative fine is required to differentiate according to where the person involved comes from. That would come close to discriminating on grounds of nationality, which is (obviously) contrary to EU law. I am merely recalling that it is a fundamental tenet of criminal law – applicable, so far as I am aware, in all the legal systems of the Member States – that a court with criminal jurisdiction should, when reviewing the appropriateness of a sanction, have regard to the circumstances of both the offence and the offender.

90. In the light of all of the above, I suggest that in answer to the questions referred by the Vrchní soud v Praze (High Court, Prague) the Court should interpret Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties as follows:

2 – Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ 2005 L 76, p. 16), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24).

3 – The standard form of the Certificate referred to in Article 4 is given in the Annex to the Framework Decision.

4 – See Article 52(3) of the Charter and the Explanations relating to the Charter, OJ 2007 C 303, p. 30.

5 – Because Mr Baláž was not represented before this Court it was not possible to clarify these (rather important) matters further.

6 – Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).

7 – See, for example, the statement in Article 1(b) that ‘a financial penalty shall not include … orders that have a civil nature …’; the fact that there is no verification of the double criminality of the act for the listed offences (Article 5(1)); the fact that ‘a financial penalty imposed on a legal person shall be enforced even if the executing State does not recognise the principle of criminal liability of legal persons’ (Article 9(3)); the possibility of applying alternative sanctions, including custodial sanctions, where it is not possible to enforce a decision (Article 10) and the division of jurisdiction between issuing State and executing State in respect of amnesty, pardon and review of sentence (Article 11).

9 – Cited in footnote 8 above, at page 4, point 1.1: ‘Political priorities’.

10 – See Article 4(1). This is the first occasion on which the Court is to rule on the interpretation of Framework Decision 2005/214. An earlier reference (Case C-27/11 Vinkov [2012] ECR I-0000) was declared inadmissible.

11 – This is clearly recorded in the order for reference. Put shortly, Mr Baláž’s case is that he was ordered by the Austrian police officers who stopped him to proceed down that road to the weigh-bridge in order to have the lorry that he was driving checked.

13 – See Case C-66/08 Kozłowski [2008] ECR I-6041, paragraph 42; Case C-261/09 Mantello [2010] ECR I-11477, paragraph 38; and Case C-195/06 Österreichischer Rundfunk [2007] ECR I-8817, paragraph 24 and the case-law cited.

15 – See, for example, Article 2(1) (determination of competent authorities), Article 5 (definition of each of the listed offences) and certain parts of Article 7 (grounds for non-recognition and non-execution).

19 – Kozłowski concerned the interpretation of the terms ‘staying’ and ‘resident’ for the purposes of Article 4(6) of that decision (see paragraph 43). Mantello concerned the concept of ‘same acts’ in Article 3(2) of the decision (see paragraph 38).

21 – See point 14 above. The element of Article 47 that deals with the right to an effective remedy reflects Article 13 ECHR; but is not – so far as I am aware from the order for reference – of direct relevance to these proceedings; and I do not therefore consider it further here.

22 – Limited grounds for non-recognition and non-execution are contained in Article 7 of the Framework Decision.

24 – That is, of course, without counting the numerous other languages that, without being ‘official EU languages’, play an important role in the lives of citizens and in their dealings with administrative and law enforcement officers throughout the Union – by way of example: Basque, Catalan, Welsh and Luxembourgish.

27 – Resolution of the Council on a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings: OJ 2009 C 295, p. 1.

28 – Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings: OJ 2010 L 280, p. 1.

29 – Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings: OJ 2012 L 142, p. 1.

31 – See Article 1(3) of Directive 2010/64 and Article 2(2) of Directive 2012/13.

32 – See, by way of analogy, the determination by the competent judicial authority in an executing State of whether a European arrest warrant concerns the ‘same act’ as a previous prosecution: Mantello, cited in footnote 13, at paragraph 50.

33 – See Council Joint Action 98/428/JHA of 29 June 1998 on the creation of a European Judicial Network (OJ 1998 L 191, p. 4).

34 – See Eur. Court HR, Hubner v. Austria, judgment of 31 August 1999, Application No 34311/96; and, Eur. Court HR, Baischer v. Austria, judgment of 20 December 2001, Application No 32381/96. The Austrian Government also refers to the following judgments: Eur. Court HR, Yavus v. Austria, judgment of 27 May 2004, Application No 46549/99; Eur. Court HR, Liedermann v. Austria, judgment of 5 December 2005, Application No 54272/00; Eur. Court HR, Blum v. Austria, judgment of 3 February 2005, Application No 31655/02; Eur. Court HR, Kaya v. Austria, judgment of 8 June 2006, Application No 54698/00; Eur. Court HR, Müller v. Austria, judgment of 5 October 2006, Application No 12555/03; Eur. Court HR, Hauser-Sporn v. Austria, judgment of 7 December 2006, Application No 37301/03; and Eur. Court HR, Stempfer v. Austria, judgment of 26 July 2007, Application No 18294/03.

35 – Eur. Court HR, Krumpholz v. Austria, judgment of 18 March 2010, Application No 13201/05. In that case, however, the Strasbourg Court held that the Unabhängiger Verwaltungssenat had violated Article 6(1) and (2) ECHR, ruling that ‘the drawing of inferences in a situation which did not clearly call for an explanation from the applicant and without sufficient procedural safeguards being applied violated the applicant’s right to silence and the presumption of innocence’ (paragraph 42).

36 – Eur. Court HR, Kammerer v. Austria, judgment of 12 May 2010, Application No 32435/06. The Strasbourg Court found that there had been no violation of Article 6(1) and (3) ECHR in that case.

37 – See Article 3 of the Framework Decision; Case 5/88 Wachauf [1989] ECR 2609, paragraph 19, and Case C-241/07 JK Otsa Talu [2009] ECR I-4323, paragraph 46 and case-law cited; see also the Opinion of Advocate General Bot in Mantello, cited in footnote 13 above at point 88.

38 – See also the Opinion of Advocate General Bot in Mantello, cited in footnote 13 above, at points 77 and 78, in which he opines that, in the context of the European arrest warrant, the issuing authority is supposed to ensure that the rights of the person subject to the warrant are respected (in that case, by applying the ne bis in idem principle), but that the executing authority must also guarantee the protection of that right.

39 – See Case C-279/09 DEB [2010] ECR I-13849, paragraph 28 and case-law cited; Case C-69/10 Samba Diouf [2011] ECR I-0000, paragraph 57; and Case C-506/04 Wilson [2006] ECR I-8613, paragraphs 60 to 62.

40 – In the context of Article 6 ECHR, see Eur. Court HR, Artico v.Italy, judgment of 13 May 1980, Application No 6649/74.

41 – In many instances of cross-border recognition and enforcement of a financial penalty decision, there may be no – or no plausible – challenge to that decision’s enforceability. It is nevertheless important that, if a plausible challenge on fundamental rights grounds is mounted, the court in the executing State should take the challenge seriously, make the necessary enquiries and, on the basis of the information received, then decide whether the decision is enforceable.

42 – Thus, by way of illustration, in the present case the national court will need to ascertain that, when the financial penalty decision dated 25 March 2010 imposing the penalty was notified to Mr Baláž on 2 July 2010, it was made clear to him that he had two weeks from notification (rather than two weeks from the date of the decision) in which to lodge an appeal before the Unabhängiger Verwaltungssenat. A very short time-limit might be inadequate in a cross-border appeal. Only when a time-limit is sufficient in practical terms to enable the person concerned to prepare and bring an effective challenge to the decision and is reasonable and proportionate to the rights and interests involved will it comply with the principle of effective judicial protection: see Samba Diouf, cited in footnote 39 above, paragraphs 66 to 68.

43 – In relation to the provision of legal aid, see inter alia Eur. Court HR, Benham v. United Kingdom, judgment of 10 June 1996, Application No 19380/92; and Eur. Court HR, Artico v. Italy, cited in footnote 40 above. I am not aware of any current proposal to harmonise the availability of legal aid for matters coming before courts exercising criminal jurisdiction (however, it is listed in Measure C in the Roadmap, cited in footnote 27 above).

44 – See Bickel and Franz, cited in footnote 25 above; and, in relation to Article 6(1) ECHR, see the extensive discussion of translation and interpretation issues in Eur. Court HR, Kamasinski v.Austria, judgment of 19 December 1989, Application No 9783/82. See also Directive 2010/64 and Directive 2012/13 (referred to at point 69 above and in footnotes 28 and 29 above) and the Commission’s Proposal for a directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest (cited in footnote 30 above).

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