Bank BGZ BNP Paribas (Judicial cooperation in criminal matters - Recognition and enforcement of financial penalties imposed on legal persons - Opinion) [2019] EUECJ C-183/18

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Centraal Justitieel Incassobureau, Ministerie van Veiligheid en Justitie (CJIB)

(Request for a preliminary ruling from the Sąd Rejonowy Gdańsk-Południe w Gdańsku (District Court for Gdańsk-South, Gdańsk, Poland)

(Reference for a preliminary ruling — Area of freedom, security and justice — Judicial cooperation in criminal matters — Framework Decision 2005/214/JHA — Recognition and enforcement of financial penalties imposed on legal persons — Obligation to interpret national law in conformity with EU law — Scope — Concept of ‘legal person’ — Financial penalty imposed on an entity with no legal personality)

1. Under Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, (2) the authorities of a Member State (‘the issuing State’) can request enforcement of a financial penalty in a different Member State (‘the executing 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.

2. Arising from a request from the Centraal Justitieel Incassobureau (CJIB) (central judicial recovery office, Netherlands) (3) of the Ministerie van Veiligheid en Justitie (Ministry of Security and Justice, Netherlands) for recognition and enforcement of the decision of 25 November 2016 of the Adm. Verwerking Flitsgegevens CJIB HA Leeuwarden (CJIB speed camera data processing department, Leeuwarden, Netherlands), imposing a fine of EUR 36 on Bank BGŻ BNP Paribas S.A. w Gdańsku (Bank BGŻ BNP Paribas S.A., Gdańsk, Poland), (4) this reference for a preliminary ruling invites the Court of Justice to implement the lessons learned from its judgment of 29 June 2017, Popławski, (5) as regards the effects of framework decisions, in particular as regards the practical implementation of the obligation to interpret national law in conformity with EU law.

3. Breaking newer ground, this reference for a preliminary ruling calls on the Court of Justice to determine whether, and, if so, how, a financial penalty may be enforced in a Member State when it is imposed on an entity that does not have legal personality in that Member State.

(a) “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:

(iii) an authority of the issuing State other than a court in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law, provided that the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters;

5. Article 4 of that framework decision, entitled ‘Transmission of decisions and recourse to the central authority’, provides, in paragraphs 1 and 6 thereof:

‘1. A decision, together with a certificate as provided for in this Article, may be transmitted to the competent authorities of 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.

6. When an authority in the executing State which receives a decision has no jurisdiction to recognise it and take the necessary measures for its execution, it shall, ex officio, transmit the decision to the competent authority and shall inform the competent authority in the issuing State accordingly.’

6. Article 5 of that framework decision, entitled ‘Scope’, provides, in paragraph 1 thereof:

‘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:

– conduct which infringes road traffic regulations, including breaches of regulations pertaining to driving hours and rest periods and regulations on hazardous goods,

7. Article 6 of Framework Decision 2005/214, entitled ‘Recognition and execution of decisions’, is worded as follows:

‘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.’

‘1. Without prejudice to paragraph 3 of this Article, and to Article 10, the enforcement of the decision shall be governed by the law of the executing State in the same way as a financial penalty of the executing State. The authorities of the executing State alone shall be competent to decide on the procedures for enforcement and to determine all the measures relating thereto, including the grounds for termination of enforcement.

3. 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.’

‘1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 22 March 2007.

2. Each Member State may for a period of up to five years from the date of entry into force of this Framework Decision limit its application to:

(b) with regard to legal persons, decisions related to conduct for which a European instrument provides for the application of the principle of liability of legal persons.

3. 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.

‘(1) Improving road safety is a prime objective of the [European] Union’s transport policy. The Union is pursuing a policy to improve road safety with the objective of reducing fatalities, injuries and material damage. An important element of that policy is the consistent enforcement of sanctions for road traffic offences committed in the Union which considerably jeopardise road safety.

(2) … This Directive aims to ensure that … the effectiveness of the investigation of road-safety-related traffic offences should be ensured.’

11. Article 2 of that directive, entitled ‘Scope’, provides that the directive applies inter alia in the event of speeding.

(n) “holder of the vehicle” means the person in whose name the vehicle is registered, as defined in the law of the Member State of registration.’

‘The Member State of the offence shall, under this Directive, use the data obtained in order to establish who is personally liable for road-safety-related traffic offences listed in Article 2 of this Directive.’

14. Chapter 66b of the ustawa — Kodeks postępowania karnego (Law on the Code of Criminal Procedure) (7) of 6 June 1997 transposes the provisions of Framework Decision 2005/214 into Polish law.

15. Chapter 66b of the Code of Criminal Procedure, entitled ‘Request from an EU Member State for execution of a decision imposing a financial penalty’, provides, in Article 611ff thereof:

‘Paragraph 1. In the event that [an issuing State] has submitted a request for execution of a final decision on financial penalties, such decision shall be subject to execution by the [Sąd Rejonowy (district court)] in the district where the offender has property or income, or has permanent or temporary residence. Within the meaning of the provisions of this chapter, a “financial penalty” shall be the offender’s obligation to pay the following amounts set forth in the decision:

(1) an amount of money as a penalty for a criminal offence other than a minor offence;

Paragraph 6. Unless the provisions of this chapter provide otherwise, the provisions of Polish law shall apply to the execution of the decision referred to in Paragraph 1 …’

‘Execution of the decision referred to in paragraph 1 of Article 611ff may be refused if:

(1) the act in connection with which the decision in question is issued is not a criminal offence other than a minor offence under Polish law, unless under the law of the issuing State it is an offence listed in Article 607w or under the law of the issuing State it is an offence:

(2) the certificate referred to in paragraph 2 of Article 611ff is not appended to the decision, is incomplete or is clearly inconsistent with the contents of the decision;

(7) the offender is not subject to the jurisdiction of the Polish criminal courts or the required permission to prosecute the offender is absent;

(9) the contents of the certificate referred to in paragraph 2 of Article 611ff indicate that the person to whom the decision relates has not been duly informed of the possibility of appealing against that decision and of the right to do so;

(10) the contents of the certificate referred to in paragraph 2 of Article 611ff indicate that the decision was issued by default, unless:

(a) the offender was summoned to participate in the proceedings or was otherwise notified of the date and place of the hearing or sitting, and informed that failure to appear would not prevent a decision from being issued, or the offender had a defence lawyer who was present at the hearing or sitting;

(b) after being served with a copy of the decision and being informed of the right to file an application to commence new judicial proceedings in the same case, in the issuing State, with the offender’s participation, and the time limit and procedure for doing so, the offender has not lodged such an application within the statutory time limit or has declared an intention not to dispute the decision;

(11) the criminal offence other than a minor offence to which the decision relates falls within the jurisdiction of the Polish criminal courts and is covered by a final amnesty;

(12) the decision concerns a financial penalty of less than EUR 70 or an equivalent sum in another currency.’

‘Paragraph 1. The court will examine the case concerning the execution of the decision on financial penalties at a sitting in which the prokurator [public prosecutor], the offender, if present in the territory of the Republic of Poland, and the offender’s defence lawyer, if he appears for the sitting, shall have the right to participate. If an offender that is not present in the territory of the Republic of Poland does not have a defence lawyer, the president of the court having jurisdiction to examine the case may appoint a defence lawyer ex officio.

Paragraph 2. The order issued by the court ruling on the execution of the decision on financial penalties shall be subject to appeal.

Paragraph 3. A final decision on financial penalties together with the appended certificate referred to in paragraph 2 of Article 611ff shall constitute an enforceable instrument and shall be enforceable in Poland following the making of an order for its execution.

Paragraph 4. If the information transmitted by the issuing State is not sufficient for an order to be made for the execution of a decision imposing financial penalties, the court shall request the competent court or other authority of the issuing State to provide it with the necessary additional information within a given time limit.

Paragraph 5. In the event of failure to act within the period referred to in Paragraph 4, the order for the execution of the decision shall be made on the basis of the information previously provided.’

18. The ustawa — Kodeks postępowania w sprawach o wykroczenia (Law establishing a code of procedure in cases involving minor offences) (8) of 24 August 2001 provides, in paragraph 1 of Article 116b thereof:

‘The provisions of Chapters 66a and 66b of the Code of Criminal Procedure shall apply mutatis mutandis to a request from an EU Member State concerning the enforcement of fines, penalties in the form of exemplary damages, an obligation to pay damages or a decision awarding costs, and to the execution of a decision on financial penalties issued by a court or other authority of an EU Member State.’

19. Article 92a in Chapter XI of the ustawa — Kodeks wykroczeń (Law establishing a code relating to minor offences) (9) of 20 May 1971, entitled ‘Minor offences against transport safety and order’, provides:

‘A person who, while driving a vehicle, does not comply with the speed limit stipulated by statute or by a road sign shall be liable to pay a fine.’

20. Under paragraph 1 of Article 25 of the ustawa — Kodeks karny wykonawczy (Law establishing a criminal enforcement code) (10) of 6 June 1997:

‘… fines, cash payments and court fees shall be enforced pursuant to the provisions of the Kodeks postępowania cywilnego [Code of Civil Procedure] unless this Law provides otherwise.’

21. Article 33 of the ustawa — Kodeks cywilny (Law establishing a civil code) (11) of 23 April 1964 states:

‘Legal persons shall include the Skarb Państwa [State Treasury] and organisational units on which special provisions confer legal personality.’

22. Article 64 of the ustawa — Kodeks postępowania cywilnego (Law establishing a code of civil procedure) (12) of 17 November 1964, provides:

‘Paragraph 1. Any natural or legal person is entitled to act as a party in judicial proceedings (capacity to act as a party in judicial proceedings).

Paragraph 1¹. Organisational units without legal personality on which the Law confers capacity to act as parties in judicial proceedings shall also have that capacity.

23. Article 5(4) of the ustawa o swobodzie działalności gospodarczej (Law on the freedom of business activity) (13) of 2 July 2004 defines a ‘branch’ as ‘a separate and organisationally independent area of business activity, carried on by an entrepreneur outside that entrepreneur’s seat or principal place of activity’.

III. The facts giving rise to the dispute, the main proceedings and the questions referred for a preliminary ruling

24. On 9 July 2017, the CJIB made a request to the Sąd Rejonowy Gdańsk-Południe w Gdańsku (District Court for Gdańsk-South, Gdańsk, Poland), the referring court in the present case, for recognition and enforcement of the decision of 25 November 2016.

25. The fine imposed by that decision is intended to penalise an act of exceeding the authorised speed limit by 6 km/h on 13 November 2016 in Utrecht (Netherlands) committed by the driver of a vehicle belonging to Bank BGŻ BNP Paribas Gdańsk.

26. It can be seen from the certificate that the CJIB appended to the decision of 25 November 2016 that Bank BGŻ BNP Paribas Gdańsk, the entity on which the penalty was imposed, ‘was not questioned at its own request’ during the proceedings. In accordance with Netherlands law, the entity was informed of its right to challenge the validity of the charges, but it did not lodge an appeal within the time limit indicated. The decision therefore became final on 6 January 2017 and, under Netherlands law, enforcement of the penalty it imposes will become time-barred on 6 January 2022.

27. The referring court set a date for a hearing to rule on recognition and enforcement of the financial penalty. The parties did not enter an appearance and made no representations.

28. The referring court emphasises that Chapter 66b of the Code of Criminal Procedure that transposes the provisions of Framework Decision 2005/214 into Polish law applies to the execution of decisions on both non-minor criminal offences and minor offences. (14)

29. It is nevertheless of the view that Framework Decision 2005/214 is incompletely transposed. The Polish legislature has used the term ‘offender’ to define the scope ratione personae of the transposing legislation. However, in the Code of Criminal Procedure, that term includes only natural persons whereas, under Articles 1 and 9 of the framework decision, that decision also applies to decisions imposing financial penalties on legal persons.

30. The ability to enforce a decision imposing a financial penalty on a legal person is therefore not a matter falling within the scope of Article 611ff et seq. of the Code of Criminal Procedure, or that of the ustawa o odpowiedzialności podmiotów zbiorowych za czyny zabronione pod groźbą kary (Law on the liability of collective entities for acts prohibited under penalty) (15) of 28 October 2002, since that law does not apply to minor offences committed by collective entities.

31. According to the referring court, this causes the Polish courts consistently to refuse to recognise and execute decisions imposing financial penalties on legal persons, notwithstanding the fact that, under Article 9(3) of Framework Decision 2005/214, such decisions must be executed even if the executing State does not recognise the principle of criminal liability of legal persons.

32. As regards whether the Polish courts can apply the provisions of that framework decision directly, the referring court states that, according to the case-law of the Court of Justice, in particular the judgment of 29 June 2017, Popławski, (16) because framework decisions do not have direct effect, the national courts have an obligation to interpret national law in conformity with them.

33. However, the referring court does not believe that the concept of ‘offender’ in the Code of Criminal Procedure can be interpreted so as to include legal persons, in order to ensure that the national provisions are in conformity with Framework Decision 2005/214.

34. The referring court therefore questions, first, whether there is an obligation to disapply the national rule where it cannot be interpreted in conformity with EU law or to replace it with the rule contained in that framework decision.

35. Secondly, the referring court is uncertain as to the concept of ‘legal person’. It draws attention to the fact that, in Polish law, an entity such as Bank BGŻ BNP Paribas Gdańsk, appears in the National Commercial Court Register and has its own seat. Even though it is organisationally independent, that entity, according to the referring court, has no legal personality (capacity to act as a party in judicial proceedings) separate from that of Bank BGŻ BNP Paribas S.A., whose seat is in Warsaw (Poland), (17) and does not have capacity to act as a party in judicial proceedings (with the exception of employment law cases). It appears that in Netherlands law, by contrast, the organisational units of a legal person are also covered by the concept of ‘legal person’.

36. That being so, the referring court seeks to establish whether the concept of ‘legal person’ used in Framework Decision 2005/214 is an autonomous concept of EU law or whether it should be interpreted in accordance with the law of the issuing State or in accordance with that of the executing State.

37. In those circumstances the Sąd Rejonowy Gdańsk-Południe w Gdańsku (District Court for Gdańsk-South, Gdańsk) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Should the provisions of Article 1(a), Article 9(3) and Article 20(1) and (2)(b) of [Framework Decision 2005/214] be interpreted as meaning that a decision transmitted for execution which imposes a financial penalty on a legal person should be executed in the executing State despite the fact that the national provisions implementing that framework decision do not provide for the possibility of executing a decision which imposes such a penalty on a legal person?

(2) In the event of an affirmative answer to the first question, must the term “legal person” as used in Article 1(a) and Article 9(3) of [Framework Decision 2005/214] be interpreted:

and, as a consequence, does it also cover a branch of a legal person notwithstanding the fact that that branch does not have legal personality in the executing State?’

38. Bank BGŻ BNP Paribas Warsaw and the Polish, Hungarian, and Netherlands Governments submitted written observations, as did the European Commission.

39. By its first question, the referring court asks the Court of Justice whether Article 1(a), Article 9(3) and Article 20(1) and (2)(b) of Framework Decision 2005/214 are to be interpreted as meaning that a decision transmitted for execution which imposes a financial penalty on a legal person must be executed by the executing State even if the national provisions implementing that framework decision do not provide for the possibility of executing a decision which imposes such a penalty on a legal person.

40. In the first place, I believe that Framework Decision 2005/214 is unambiguous to the effect that, even where the law of the executing State does not recognise the principle of criminal liability of legal persons, financial penalties imposed on legal persons for road traffic offences must be recognised and enforced.

41. I note that, according to many provisions of Framework Decision 2005/214, such as Article 1(a) and Article 4(1) thereof, or point (f) of the certificate included in the annex to that framework decision, (18) in the context of the system established thereby, a financial penalty can be imposed on both natural and legal persons.

42. Furthermore, it emerges from a combined reading of Articles 6 and 7 of Framework Decision 2005/214 that a decision within the meaning of that framework decision must, prime facie, be recognised and enforced, and that the Member States cannot base a refusal on the fact that national law does not provide for the possibility of executing a decision imposing a financial penalty on a legal person. (19)

43. Lastly, the EU legislature foresaw the disparities in national legislation in relation to the criminal liability of legal persons. (20) Therefore, whilst not imposing any obligation on the Member States to make legal persons criminally liable, it provided, in Article 9(3) of Framework Decision 2005/214, that a financial penalty imposed on a legal person must be enforced ‘even if the executing State does not recognise the principle of criminal liability of legal persons’.

44. This means that Framework Decision 2005/214, whose binding character is beyond dispute, (21) clearly imposes an obligation on the Member States to execute a decision imposing a financial penalty on a legal person.

45. That finding is not shaken by Article 20(2)(b) of that framework decision in so far as the opportunity it gave the Member States to limit its application to legal persons, on a transitional basis and subject to conditions, ended on 22 March 2010.

46. In the second place, on the assumption that the provisions of Framework Decision 2005/214 have not been correctly transposed into Polish law, that the concept of ‘offender’ in paragraph 1 of Article 611ff of the Code of Criminal Procedure does not include legal persons and that there is no other provision that can overcome that lacuna, the referring court seeks to determine whether national law must be disapplied and whether the provisions of that framework decision must replace national law.

47. I would call to mind here that the effects of framework decisions have been defined and delimited in the most recent case-law of the Court of Justice. (22) On the basis of the fact that framework decisions have no direct effect, the Court has held that not only can the provisions of a framework decision not be applied directly but a court of a Member State is not bound to disapply a provision of its national law that conflicts with a framework decision. (23) Nevertheless, the binding nature of framework decisions places an obligation on national authorities to interpret their domestic law in accordance with them. (24)

48. In specific terms, this means that the national authorities have to interpret national law to the greatest extent possible in the light of the text and the purpose of framework decisions in order to achieve the result sought by those decisions. Nevertheless, no such interpretation may lead, first, to an interpretation of national law contra legem or, secondly, to the criminal liability of individuals being determined or aggravated, on the basis of a framework decision alone and in the absence of any legislation implementing its provisions, where they have committed an infringement. (25)

49. In the present case, since Framework Decision 2005/214 has no direct effect, the referring court cannot disapply the Code of Criminal Procedure or directly apply that framework decision in its place.

50. As regards interpreting the provisions of the Code of Criminal Procedure transposing Framework Decision 2005/214 in conformity with EU law, it is clear that, as a result of the division of competences between the Court of Justice and the national courts, in the present case it is for the referring court alone to determine whether the national law can be interpreted in conformity with EU law, taking the whole body of domestic law and the interpretative methods recognised by that law into consideration, thereby ensuring that the framework decision in question is fully effective and achieving an outcome consistent with the objective pursued by it. (26)

51. Nevertheless, given that the referring court appears to doubt that such an interpretation is possible in the present case, I would draw attention to the following considerations. (27)

52. First, in common with the Polish Government and the Commission, my view is that the concept of ‘offender’ can include both natural and legal persons.

53. Furthermore, in so far as Framework Decision 2005/214 is not intended to harmonise substantive criminal law, the Polish legislature, to my mind in conformity with that framework decision, when transposing that framework decision in Chapter 66b of the Code of Criminal Procedure, used the concept of ‘offender’, which is prima facie a neutral concept, with the effect that, in the context of Chapter 66b of the Code of Criminal Procedure and of enforcing financial penalties, that concept can be interpreted independently of the meaning of that concept in substantive criminal law. (28) In my view, that approach by the Polish legislature accords with the scheme of Framework Decision 2005/214, since that decision does not in any way require the Member States to establish a mechanism for the criminal liability of legal persons even though it does oblige them to enforce financial penalties imposed on such persons.

54. Accordingly, contrary to what the referring court suggests, in order to interpret the concept of ‘offender’ within the meaning of the provisions of the Code of Criminal Procedure concerning the enforcement of penalties, that concept is not to be understood in the meaning it has in substantive criminal law, and it can therefore, in my view, be interpreted as referring to the entity on which a final financial penalty has been imposed, whether that is a legal person or a natural person.

55. Moreover, according to the documents before the Court of Justice, various Polish courts have already granted requests to enforce financial penalties imposed in the Netherlands on legal persons for road traffic offences. In the light of the information set out in the order for reference and in the documents put before the Court, I believe it can be found that Polish law does not preclude a fine imposed on a legal person from being enforced in that Member State or, in any event, from that law being interpreted in conformity with the provisions of Framework Decision 2005/214.

56. Secondly, any objection based on the fact that the criminal liability of legal persons may be aggravated must be dismissed. The principle and extent of the liability of perpetrators of unlawful acts are not determined by Framework Decision 2005/214 but in accordance with the law of the issuing State and, in the executing State, in the present case the Republic of Poland, the only issue that arises is that of enforcement of the penalty.

57. In the light of all of the foregoing, I propose that the answer to the first question referred should be that the provisions of Framework Decision 2005/214 must be interpreted as meaning that a decision transmitted for execution which imposes a financial penalty on a legal person must be executed by the executing State even if the national provisions implementing that framework decision do not provide for the possibility of executing a decision which imposes such a penalty on a legal person. In order to do so, since the provisions of that framework decision do not enjoy direct effect, the competent executing State authority must have regard to the whole body of domestic law and apply the methods of interpretation recognised by that law with a view to interpreting the national provisions, so far as is possible, in the light of the wording and the purpose of Framework Decision 2005/214.

58. By its second question, the referring court asks the Court of Justice, first, whether the concept of ‘legal person’ in Framework Decision 2005/214 must be interpreted in accordance with the law of the issuing State or of the executing State or as an autonomous concept of EU law and, secondly, whether it can be inferred from that answer that the concept also covers an entity such as Bank BGŻ BNP Paribas Gdańsk, even though it has no legal personality of its own in the executing State.

59. In essence, besides seeking to define the concept of ‘legal person’, the referring court wishes to determine, in circumstances such as those in the main proceedings, how the penalty must be enforced and against which entity.

60. I would point out in that respect that, in the present case, the penalty was imposed on Bank BGŻ BNP Paribas Gdańsk, but that only Bank BGŻ BNP Paribas Warsaw has legal personality (capacity to act as a party in judicial proceedings) in Poland. Accordingly, without prejudice to the verifications to be carried out by the referring court, it is apparent from the documents put before the Court of Justice that, in Polish law, Bank BGŻ BNP Paribas Gdańsk, and Bank BGŻ BNP Paribas Warsaw form a single entity, in which the former is a local vehicle of the latter. In legal terms, the fact that they are a single organisational unit has the practical effect that, unlike Bank BGŻ BNP Paribas Warsaw, Bank BGŻ BNP Paribas Gdańsk, has no legal personality (capacity to act as a party in judicial proceedings), and therefore cannot participate in criminal or civil proceedings. (29)

61. According to the referring court, that fact can lead to the Polish authorities refusing to enforce the penalty on the grounds that, since an entity such as Bank BGŻ BNP Paribas Gdańsk, is not able to act in the enforcement proceedings, its rights may be infringed. Such an outcome is quite clearly problematic, because the CJIB’s request must, in principle, be executed. (30)

62. In relation to the first limb of the second question referred, first of all, the concept of ‘legal person’ must not, to my mind, be interpreted, in the scheme of Framework Decision 2005/214, as an autonomous concept of EU law.

63. Indeed, even though the principle of autonomous interpretation is, prima facie, a guarantee of the effectiveness of EU law, (31) that approach would in the present case conflict with the intention of the EU legislature.

64. Article 9(3) of Framework Decision 2005/214, in conjunction with the principle of mutual recognition, ensures the enforcement of financial penalties imposed on legal persons by going beyond the dichotomy between autonomous concepts and referring back to the law of the Member States. (32) Therefore, by ensuring that financial penalties will be enforced notwithstanding differences between one national legislation and another in relation to the criminal liability of legal persons, I believe that the EU legislature was seeking precisely to prevent that concept from being given an interpretation specific to EU law.

65. I would add, moreover, that, even though the autonomous interpretation of a concept is, in principle, confined to the legal instrument of which it forms part, (33) an autonomous interpretation of the concept of ‘legal person’, even circumscribed to Framework Decision 2005/214 alone, could have serious consequences in other areas of EU law, notwithstanding the fact that both the Court of Justice and the EU legislature have to my mind always been very careful as regards that concept. (34)

66. Secondly, in the scheme of Framework Decision 2005/214, the law of the issuing State governs liability and the penalty and determines the entity on whom that penalty is imposed, with the effect that the concept of ‘legal person’ must be interpreted in the light of the law of the issuing State.

67. It is worth noting in that respect that Article 5(1) of Framework Decision 2005/214, pursuant to which the criminal law of the issuing State applies as regards in particular the definition of the offence, embodies the principle of territoriality in criminal law. That provision is expanded upon in Article 9(1) and (3) of Framework Decision 2005/214, according to which, first, the law of the executing State applies to enforcement of the penalty and, secondly, a financial penalty imposed on a legal person must be enforced even if the executing State does not recognise the criminal liability of legal persons.

68. Accordingly, whilst not harmonising the substantive criminal legislation and the legislation on the enforcement of penalties of each Member State, the EU legislature nevertheless ensures the enforcement of financial penalties in the Member States by virtue of the principle of mutual recognition. (35)

69. For all those reasons, I consider that, in the scheme of Framework Decision 2005/214, the concept of ‘legal person’ cannot be interpreted as an autonomous concept but must be interpreted in the light of the law of the issuing State.

70. In respect of the second limb of the second question referred, I believe it is necessary to bear in mind both the need for financial penalties to be effectively enforced and protection of the rights of the entities on whom they are imposed.

71. In the present case, since the entity penalised in the Netherlands does not have legal personality (capacity to act as a party in judicial proceedings) enabling it to act in enforcement proceedings in Poland, the difficulty lies in implementing Framework Decision 2005/214 in practice. It is clear that, for a financial penalty imposed on a legal person to be enforced in a Member State, that legal person must hold rights and obligations, failing which enforcement of the penalty will prove problematic.

72. In that respect, a situation in which the Polish authorities, in the context of cooperation under Directive 2015/413, provide their counterparts with information that, whilst not incorrect, is at the very least incomplete, (36) undeniably prejudices the objective of both that directive and Framework Decision 2005/214. If no mention is made of the fact that the vehicle owner liable for the offence is an entity against which enforcement of a financial penalty is not guaranteed, that enforcement is inevitably jeopardised. (37)

73. As a result, in the future and in order to ensure the sustainability of the system established by Framework Decision 2005/214, it is crucial that, under Directive 2015/413, the Member States provide data not only enabling the vehicle owner liable for the offence to be identified but also ensuring that any financial penalty can be enforced throughout the European Union, in accordance with the principle of sincere cooperation and the spirit of cooperation governing both that directive and that framework decision. (38)

74. However, those recommendations only apply to the future and do not provide the referring court with a useful answer enabling it to discharge its obligations under Framework Decision 2005/214 in the present case.

75. In that respect, as I have emphasised in point 66 of this Opinion, in the scheme of Framework Decision 2005/214 the law of the issuing State governs liability and the penalty and determines the entity on which that penalty is imposed, whilst the law of the executing State applies to enforcement of the penalty, and cannot thwart enforcement on the grounds that legal persons do not have procedural rights enabling them to act in enforcement proceedings.

76. Accordingly, in a situation such as that in the main proceedings and without prejudice to the verifications to be carried out by the referring court, it seems to me that, in order to ensure enforcement of the financial penalty, Bank BGŻ BNP Paribas Warsaw can be regarded as the entity legally liable for Bank BGŻ BNP Paribas Gdańsk, as a legal person having legal personality (capacity to act as a party in judicial proceedings) and, therefore, as the entity penalised. The CJIB’s request can therefore be transferred to the court having jurisdiction in Warsaw where it has its seat, in accordance with Article 4(6) of Framework Decision 2005/214.

77. In Framework Decision 2005/214 the EU legislature has indeed repeatedly emphasised the importance of respecting fundamental rights (39) and that its purpose was to facilitate the enforcement of financial penalties whilst ensuring respect for appropriate safeguards for the persons and entities against whom those penalties are enforced.

78. In that respect, first, any infringements of the rights of Bank BGŻ BNP Paribas Warsaw can be, if not played down, at least envisaged in the light of the specific characteristics of its links with Bank BGŻ BNP Paribas Gdańsk. I would in fact point out that, according to Polish law, Bank BGŻ BNP Paribas Warsaw and Bank BGŻ BNP Paribas Gdańsk, form a single entity and that only the former has legal personality (capacity to act as a party in judicial proceedings). Accordingly, on the one hand, Bank BGŻ BNP Paribas Warsaw is liable for the conduct of Bank BGŻ BNP Paribas Gdańsk. On the other, the fact that Bank BGŻ BNP Paribas Gdańsk, did not wish to be questioned or to bring an appeal can be regarded as the wishes of that single entity.

79. Secondly, a situation such as that in the main proceedings can be seen as primarily an internal dysfunction caused by a lack of communication between Bank BGŻ BNP Paribas Warsaw and Bank BGŻ BNP Paribas Gdańsk. However, since those banks constitute a single entity, such a lack of communication is of no effect, because the acts of Bank BGŻ BNP Paribas Gdańsk, such as its decision not to bring an appeal in the Netherlands, are attributed to Bank BGŻ BNP Paribas Warsaw.

80. In any event, it is plain that, in a situation such as that in the main proceedings, Bank BGŻ BNP Paribas Warsaw must be in a position to assert its rights in the executing State.

81. Accordingly, in any appeal against the enforcement order under paragraph 2 of Article 611fh of the Code of Criminal Procedure, it could plead that its rights were disproportionately harmed by the fact that it was unable to bring proceedings in the Netherlands. That harm and whether it was proportionate would have to be assessed on a case-by-case basis and would therefore be a matter for the courts of the executing State.

82. I therefore propose that the answer to the second question referred should be that the concept of ‘legal person’ is not an autonomous concept of EU law but must be interpreted in the light of the law of the issuing State and that the concept of ‘legal person’ within the meaning of that framework decision includes an entity without legal personality such as Bank BGŻ BNP Paribas Gdańsk, provided that entity forms a single organisational unit with an entity that does have legal personality.

83. In the light of the foregoing, I propose that the Court of Justice should answer the questions referred by the Sąd Rejonowy Gdańsk-Południe w Gdańsku (District Court for Gdańsk-South, Gdańsk, Poland) as follows:

(1) The provisions of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that a decision transmitted for execution which imposes a financial penalty on a legal person must be executed by the executing Member State even if the national provisions implementing that framework decision do not provide for the possibility of executing a decision which imposes such a penalty on a legal person. In order to do so, since the provisions of that framework decision do not enjoy direct effect, the competent executing State authority must have regard to the whole body of domestic law and apply the methods of interpretation recognised by that law with a view to interpreting the national provisions, so far as is possible, in the light of the wording and the purpose of that framework decision.

(2) The provisions of Framework Decision 2005/214, as amended by Framework Decision 2009/299, must be interpreted as meaning that the concept of ‘legal person’ is not an autonomous concept of EU law, but must be interpreted in the light of the law of the issuing Member State. The concept of ‘legal person’ within the meaning of that framework decision includes an entity without legal personality such as the entity at issue in the main proceedings, provided that entity forms a single organisational unit with an entity that does have legal personality.

2 OJ 2005 L 76, p. 16, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24), ‘Framework Decision 2005/214’.

4 ‘Bank BGŻ BNP Paribas Gdańsk’. That decision will be referred to as ‘the decision of 25 November 2016’.

6 Directive of the European Parliament and of the Council of 11 March 2015 facilitating cross-border exchange of information on road-safety-related traffic offences (OJ 2015 L 68, p. 9).

14 In respect of minor offences, as a result of the reference in Article 116b(1) of the Law establishing a code of procedure in cases involving minor offences.

18 Under Article 4 of Framework Decision 2005/214, so that a decision imposing a financial penalty on a legal or natural person can be enforced, the competent authority of the issuing State must transmit that decision together with the certificate included in the annex to that framework decision. If the penalty has been imposed on a legal person, the name, form, registered seat and a description and the location of the property and income of the legal person must be supplied in point (f) of that certificate.

19 Article 7 of Framework Decision 2005/214 lists the grounds for non-recognition and non-execution of decisions imposing financial penalties. Those grounds do not include the fact that national law does not provide for the possibility of executing a decision imposing a financial penalty on a legal person.

20 For an overview of the differences between one national legislation and another shortly after Framework Decision 2005/214 was adopted, see Adam, S., Colette-Basecqz, N., and Nihoul, M., La responsabilité pénale des personnes morales en Europe, Corporate Criminal Liability in Europe, La Charte, Brussels, 2008.

21 See judgment of 16 June 2005, Pupino (C‑105/03, EU:C:2005:386, paragraphs 33 and 34). I would emphasise, in that respect, that the line of argument of Bank BGŻ BNP Paribas Warsaw to the effect that, since the provisions of Framework Decision 2005/214 providing for the possibility of executing a decision imposing a financial penalty on a legal person in that Member State have not been transposed into Polish law, the provisions of that framework decision cannot be the basis for executing such a decision in that Member State, is untenable because it is tantamount in practice to questioning the binding effect of that framework decision.

23 See judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraphs 60 to 71).

24 See judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 72 and the case-law cited).

25 See judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraphs 73 to 76).

26 In accordance with the clarifications that the Court has already given defining the obligation to interpret national law in conformity with EU law as recalled in the judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 77 and the case-law cited).

27 Even though it must not influence the referring court’s finding on whether or not national law can be interpreted in conformity with EU law, I note that, since the provisions of Framework Decision 2005/214 cannot be applied directly and the CJIB’s request cannot be satisfied other than on the basis of Chapter 66b of the Code of Criminal Procedure, an interpretation of the provisions of the Code of Criminal Procedure in conformity with EU law is the only way that the framework decision can be given binding effect.

28 This must be correct, even though in other chapters of the same code that concept appears to include only natural persons, because Chapter 66b of the Code of Criminal Procedure relates solely to requests made under Framework Decision 2005/214 and concerns only the arrangements for enforcing financial penalties but not criminal prosecutions as such.

29 I note, in that respect, that only Bank BGŻ BNP Paribas Warsaw has participated in the proceedings before the Court of Justice and that only that entity has instructed lawyers to represent it.

30 As is very clearly borne out by Article 6 of Framework Decision 2005/214. In the scheme of that framework decision, the Member States must execute decisions imposing financial penalties on the basis of the principle of mutual recognition and in accordance with the provisions of that framework decision. Executing judicial authorities may therefore, in principle, refuse to execute such a decision only on the grounds for non-execution exhaustively listed by Framework Decision 2005/214. Accordingly, while execution of a decision imposing a financial penalty constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly (see, by analogy, judgments of 14 November 2013, Baláž (C‑60/12, EU:C:2013:733, paragraph 29), and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 41)).

31 See judgment of 14 November 2013, Baláž (C‑60/12, EU:C:2013:733, paragraph 26).

32 Article 9(3) of Framework Decision 2005/214 thus makes it possible to distinguish this reference for a preliminary ruling from the judgments of 16 November 2010, Mantello (C‑261/09, EU:C:2010:683), and of 14 November 2013, Baláž (C‑60/12, EU:C:2013:733).

33 I would note, in so far as relevant, that, according to settled case-law, an autonomous and uniform interpretation must be sought having regard to the context of the provision of which the autonomous concept forms part and the objective pursued by the legislation of which it is part (see, inter alia, judgment of 14 November 2013, Baláž (C‑60/12, EU:C:2013:733, paragraph 26).

34 For an implied refusal to interpret that concept autonomously, see order of 24 November 2009, Landtag Schleswig-Holstein v Commission (C‑281/08 P, not published, EU:C:2009:728, paragraphs 20 and 22). I note also that, in a number of secondary law instruments based on Article 83(1) TFEU intended to lay down minimum rules concerning the definition of criminal offences, the EU legislature referred back to the national legislation of each State to define a ‘legal person’ instead of using a concept whose autonomous interpretation it would be for the Court of Justice to provide (see, for example, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ 2017 L 88, p. 6)).

35 That principle underpins the scheme of Framework Decision 2005/214 as a whole and of Article 6 in particular.

36 In the present case, the Netherlands authorities identified the vehicle owner liable for the offence, that is to say Bank BGŻ BNP Paribas Gdańsk, on the basis of the vehicle registration data taken from the Polish vehicle registers. It is surprising that the holder of the registration certificate, that is to say, the owner or holder of the vehicle, should be an entity having no legal personality (capacity to act as a party in judicial proceedings).

37 Like the Netherlands Government, I believe it is vital that the issuing State should be able to use the information supplied by the executing State to determine the person liable for road traffic offences and to penalise that person.

38 In the event that incorrect information supplied caused a financial penalty to be imposed on a person other than the person liable for the offence, it would be necessary to provide for supplementary safeguards for that person, such as reopening the proceedings or a civil claim for damages.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bank BGZ BNP Paribas (Judicial cooperation in criminal matters - Recognition and enforcement of financial penalties imposed on legal persons - Opinion) [2019] EUECJ C-183/18_O (12 November 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C18318_O.html Cite as: EU:C:2019:959, [2019] EUECJ C-183/18_O, ECLI:EU:C:2019:959

Court of Justice of the European Communities (including Court of First Instance Decisions)