CELEX: 62021CJ0150
Reference for a preliminary ruling
Judicial cooperation in criminal matters
Mutual recognition
Framework Decision 2005/214/JHA
Enforcement of financial penalties
Article 1(a)(ii)
Decision imposing a financial penalty issued by an administrative authority
Decision open to appeal to a public prosecutor, subject to instructions from the Minister for Justice
Subsequent appeal before a court having jurisdiction in particular in criminal matters

This request for a preliminary ruling concerns the interpretation of Article 1(a)(ii) of 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 (
OJ 2009 L 81, p. 24
) (‘Framework Decision 2005/214’).
The request has been made in proceedings brought by the Centraal Justitieel Incassobureau, Ministerie van Justitie en Veiligheid (Central Fine Collection Agency, Ministry of Justice and Security, the Netherlands) (‘the CJIB’) for the purposes of obtaining recognition and enforcement, in Poland, of a financial penalty imposed on D.B. in the Netherlands in respect of a road traffic offence.
Legal context
European Union law
Article 1 of Framework Decision 2005/214, headed ‘Definitions’, provides as follows:
‘For the purposes of this Framework Decision:
(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:
…
(ii)
an authority of the issuing State other than a court in respect of a criminal offence under the law of the issuing State, provided that the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters;
(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;
…
(b)
“financial penalty” shall mean the obligation to pay:
(i)
a sum of money on conviction of an offence imposed in a decision;
…’
Article 3 of the framework decision, headed ‘Fundamental rights’, provides as follows:
‘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 [EU] Treaty.’
Article 4 of the framework decision, entitled ‘Transmission of decisions and recourse to the central authority’, states as follows, in paragraph 1 thereof:
‘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.’
Article 5 of that framework decision, headed ‘Scope’, provides as follows, 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,
…’
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.’
Under Article 7 of that framework decision, entitled ‘Grounds for non-recognition and non-execution’:
‘…
2.   The competent authority in the executing State may also refuse to recognise and execute the decision if it is established that:
…
(g)
according to the certificate provided for in Article 4, the person concerned, in case of a written procedure, was not, in accordance with the law of the issuing State, informed personally or via a representative, competent according to national law, of his/her right to contest the case and of the time limits for such a legal remedy;
…
3.   In the cases referred to in paragraphs 1 and 2(c), (g), (i) and (j), 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.’
Article 20(3) of that framework decision provides as follows:
‘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.’
Polish law
Paragraph 1 of Article 611ff of the ustawa – Kodeks postępowania karnego (Code of Criminal Procedure), of 6 June 1997 (consolidated version, Dz. U. of 2020, item 30), states as follows:
‘In the event that a Member State of the European Union, referred to in this chapter as the “issuing State”, has submitted a request for execution of a final decision on financial penalties, such decision shall be subject to execution by the district court in the district where the offender has property or income, or has permanent or temporary residence …’
The dispute in the main proceedings and the questions referred for a preliminary ruling
On 22 September 2020, the CJIB brought an action before the referring court, the Sąd Rejonowy dla Łodzi-Śródmieścia w Łodzi (District Court for the central district of Łódź, Poland), seeking recognition and enforcement of its decision of 17 January 2020, which became final on 28 February 2020, imposing on D.B. a fine of EUR 92 in respect of a road traffic offence, namely exceeding the permitted speed limit, committed on 5 January 2020.
On 6 November 2020, the referring court put questions to the CJIB concerning the appeal provided for in the Netherlands legislation against such a decision and the legal position of the authority examining that appeal. That court received the CJIB’s reply on 22 February 2021.
D.B. did not attend any of the hearings fixed by the referring court, on 6 November and 8 December 2020, and on 23 February 2021. Nor did he lodge any statement.
The referring court states that, in accordance with Netherlands legislation, the fine imposed by the CJIB may be challenged before a public prosecutor in the Netherlands within six weeks. If the prosecutor does not agree with the position of the person concerned, that person would have the right to bring an appeal before a Kantonrechter (District Court (Cantonal Sector), Netherlands). However, if the case relates to a fine in the amount of EUR 225 or more, consideration of the case by such a court would be conditional on payment of a deposit equal to the fine imposed.
In those circumstances, the referring court expresses doubts as to whether a public prosecutor, within the meaning of the Netherlands legislation, may be recognised as a ‘court having jurisdiction in particular in criminal matters’ within the meaning of Article 1(a)(ii) of Framework Decision 2005/214.
The referring court takes the view that, having regard to Article 3 and Article 20(3) of Framework Decision 2005/214 and Article 6 TEU as regards the protection of fundamental rights, the interpretation of Article 1(a)(ii) of that framework decision must take account of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and its interpretation in the case-law of the European Court of Human Rights.
In accordance with the case-law of the European Court of Human Rights, in order to preserve the fairness of the proceedings, a case must be examined by an impartial tribunal, no element of which is subordinate to the executive (ECtHR, 23 June 1981,
Le Compte, Van Leuven and De Meyer
v
.
Belgium
, CE:ECHR:1981:0623JUD000687875, and ECtHR, 29 April 1988,
Belilos
v
.
Switzerland
, CE:ECHR:1988:0429JUD001032883). In addition, it is essential in that regard that there are no excessive fiscal or legal obstacles capable of compromising access to such a tribunal.
As regards the interpretation of the concept of ‘court having jurisdiction in particular in criminal matters’, referred to in Article 1(a)(iii) of Framework Decision 2005/214, it argues that the Court of Justice has already held that, in order to determine whether a body provided for by national legislation is such a court, account must be taken of a number of factors, such as whether that body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is
inter partes
, whether it applies rules of law and whether it is independent (judgment of 14 November 2013, Baláž,
C‑60/12
,
EU:C:2013:733
, paragraph
).
The requirement that courts be independent has two aspects. The first aspect, which is external in nature, presupposes that the court concerned exercises its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice),
C‑216/18 PPU
,
EU:C:2018:586
, paragraph
).
The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice),
C‑216/18 PPU
,
EU:C:2018:586
, paragraph
).
More specifically, the Court of Justice ruled on whether a national prosecutor may be recognised as an ‘issuing judicial authority’ within the meaning of Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (
OJ 2002 L 190, p. 1
), as amended by Framework Decision 2009/299. It ruled out such a possibility where the public prosecutor’s office of a Member State is exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision to issue a European arrest warrant (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau),
C‑508/18 and C‑82/19 PPU
,
EU:C:2019:456
, paragraph
).
At the same time, the Court of Justice held that a decision to issue a European arrest warrant taken by a public prosecutor’s office of a Member State constitutes a ‘judicial decision’ within the meaning of Article 1(1) of Framework Decision 2002/584 provided that that European arrest warrant is subject to compulsory endorsement by a court which reviews independently and objectively the conditions of issue and the proportionality of that arrest warrant (judgment of 9 October 2019, NJ (Public Prosecutor’s Office, Vienna),
C‑489/19 PPU
,
EU:C:2019:849
, paragraph
).
The referring court takes the view that, in the light of that case-law and the position of the public prosecutor’s office in the Netherlands legal system, that public prosecutor’s office cannot be regarded as a ‘court having jurisdiction in particular in criminal matters’ within the meaning of Article 1(a)(ii) and (iii) of Framework Decision 2005/214.
In that regard, it emphasises the importance of the possibility, provided for in those provisions, of bringing the case before a court having jurisdiction in particular in criminal matters in cases where the decision finding the person concerned guilty and imposing the penalty is entirely automated, the national authority which adopts that decision merely verifying the data of the owner of the vehicle and transmitting to that person the document generated by the computer system.
As regards the Netherlands legislation under which, where the public prosecutor does not uphold the appeal brought by the person concerned against the decision of the CJIB, an appeal may subsequently be brought before a Kantonrechter (District Court (Cantonal Sector)), the referring court argues that it cannot satisfy the requirement laid down in Article 1(a)(ii) of Framework Decision 2005/214 that the decision of an authority of the issuing State other than a court must be open to challenge before a ‘court having jurisdiction in particular in criminal matters’.
That framework decision envisages the possibility of bringing an appeal directly before a court or tribunal, without it being necessary first to exhaust any other procedure.
In that regard, it is apparent from the judgment of 14 November 2013, Baláž (
C‑60/12
,
EU:C:2013:733
, paragraph
), that access to a court having jurisdiction in particular in criminal matters, within the meaning of Framework Decision 2005/214, must not be made subject to conditions which make such access impossible or excessively difficult.
In addition, the referring court notes that, in accordance with Netherlands legislation, if the fine imposed is EUR 225 or more, consideration of the appeal by a court is subject to payment by the person concerned of a deposit equal to that amount. That procedural rule could constitute an obstacle that would discourage a national of a Member State from bringing an appeal in the issuing Member State.
In those circumstances, the Sąd Rejonowy dla Łodzi-Śródmieścia w Łodzi (District Court for the central district of Łódź, Poland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Does a decision requiring payment of a financial penalty issued by the Netherlands central administrative authority determined pursuant to Article 2 of … Framework Decision [2005/214], against which an appeal may be lodged with the public prosecutor’s office, which is subject in organisational terms to the Ministry of Justice, satisfy the criterion of “decision against which an appeal may be lodged with a court having jurisdiction in criminal matters” for the purposes of Article 1(a)(ii) of the framework decision?
(2)
Can the criterion that a decision requiring payment of a financial penalty be amenable to judicial remedy before “a court having jurisdiction in criminal matters” be deemed to have been satisfied where it is possible to lodge an appeal with a district court (Cantonal Sector) only at a later stage of proceedings, that is to say after it has been dismissed by the public prosecutor, and, in some cases, entails a need to pay a charge equal to the penalty imposed?’
Consideration of the questions referred
By its questions, which it is appropriate to examine together, the referring court asks, in essence, first, whether Article 1(a)(ii) of Framework Decision 2005/214 must be interpreted as meaning that a final decision requiring a financial penalty to be paid by a natural person, adopted by an authority of the issuing Member State other than a court in respect of a criminal offence under the law of the issuing Member State, constitutes a ‘decision’, within the meaning of that provision, where the legislation of that Member State provides that an appeal against that decision is to be examined first by a public prosecutor placed under the hierarchical authority of the Minister for Justice and subsequently, if that public prosecutor adopts a decision dismissing that appeal, a court having jurisdiction in particular in criminal matters may be seised by the person concerned. Secondly, the referring court asks whether that provision must be interpreted as meaning that the person concerned has had ‘an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’, within the meaning of that provision, if, in accordance with the legislation of the issuing Member State, where the fine imposed is EUR 225 or more, the examination of the appeal by a court is subject to the payment by that person of a deposit equal to that amount.
As a preliminary point, it should be borne in mind that, in accordance with Article 5(1), thirty-third indent, of Framework Decision 2005/214, offences constituted by conduct infringing road traffic regulations, if they are punishable in the issuing Member State and as they are defined by the law of that Member State, are to give rise to the recognition and enforcement of decisions, under the terms of that framework decision and without verification of the double criminality of the act.
Article 1(a)(ii) of Framework Decision 2005/214 defines the term ‘decision’ as ‘a final decision requiring a financial penalty to be paid by a natural or legal person where the decision was made by an authority of the issuing State other than a court in respect of a criminal offence under the law of the issuing State, provided that the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’.
Under Article 1(a)(iii) of that framework decision, ‘decision’ is also to mean ‘a final decision requiring a financial penalty to be paid by a natural or legal person where the decision was made by 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’.
As is apparent from the file submitted to the Court and, in particular, the certificate referred to in Article 4 of Framework Decision 2005/214 accompanying the decision of the CJIB at issue in the main proceedings, a fine was imposed on D.B. for a criminal offence under the law of the issuing Member State, namely an offence constituted by conduct infringing road traffic regulations, as defined in that Member State’s law.
Although, in those circumstances, it is Article 1(a)(ii) of Framework Decision 2005/214 and not Article 1(a)(iii) of that framework decision which is applicable in the present case, the fact remains that those two provisions require in identical terms that the person concerned must have had ‘an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters’.
As regards, in the first place, the question as to whether the right of appeal is ensured notwithstanding the obligation to comply with a prior administrative procedure before the case is examined by a court having jurisdiction in particular in criminal matters, within the meaning of Framework Decision 2005/214, the Court has already held that Article 1(a)(iii) of that framework decision does not require that the case may be brought directly before such a court (see, to that effect, judgment of 14 November 2013, Baláž,
C‑60/12
,
EU:C:2013:733
, paragraph
).
In so far as Framework Decision 2005/214 also applies to financial penalties imposed by administrative authorities, a prior administrative phase may be required, depending on the particular features of the judicial systems of the Member States. However, access to a court having jurisdiction in particular in criminal matters, within the meaning of that framework decision, must not be made subject to conditions which make such access impossible or excessively difficult (judgment of 14 November 2013, Baláž,
C‑60/12
,
EU:C:2013:733
, paragraph
and the case-law cited).
With regard, secondly, to the scope and nature of the review carried out by the court before which the case may be brought, that court must have full jurisdiction to examine the case as regards both the legal assessment and the factual circumstances and must have, inter alia, the opportunity to examine the evidence and to determine on that basis the responsibility of the person concerned and the appropriateness of the penalty (judgment of 14 November 2013, Baláž,
C‑60/12
,
EU:C:2013:733
, paragraph
).
As is apparent from the order for reference, notwithstanding the fact that, in accordance with Netherlands legislation, the appeal against the decision of the CJIB imposing a penalty is examined by a public prosecutor placed under the hierarchical authority of the Minister for Justice, that legislation provides that the person concerned may bring an appeal before the Kantonrechter (District Court (Cantonal Sector)) against the decision of that prosecutor.
In those circumstances, without it being necessary to assess whether a public prosecutor who is competent to examine an appeal against the CJIB’s decision imposing a penalty for offence constituted by conduct infringing road traffic regulations is a ‘court having jurisdiction in particular in criminal matters’ within the meaning of Article 1(a)(ii) of Framework Decision 2005/214, it is necessary to determine whether the Kantonrechter (District Court (Cantonal Sector)) referred to in the preceding paragraph constitutes such a court.
In that regard, it must be borne in mind that the concept of ‘court having jurisdiction in particular in criminal matters’, referred to in that provision, is an autonomous concept of EU law and must be interpreted as covering any court or tribunal which applies a procedure that satisfies the essential characteristics of criminal procedure and, in particular, has unlimited jurisdiction and applies a procedure which is subject to compliance with the procedural safeguards appropriate to criminal matters (see, to that effect, judgment of 14 November 2013, Baláž,
C‑60/12
,
EU:C:2013:733
, paragraphs
and
).
The Court, which is called on to provide answers that are of use to the national court, may provide guidance, on the basis of the file in the main proceedings and the observations which have been submitted to it, in order to enable the referring court to give judgment in the particular case pending before it (see, by analogy, judgment of 26 January 2021, Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie,
C‑16/19
,
EU:C:2021:64
, paragraph
).
In the present case, as is apparent from the file submitted to the Court, the Kantonrechter (District Court (Cantonal Sector)), referred to in paragraph 39 of the present judgment, may rule on issues of law and fact and on the proportionality of the fine imposed in relation to the offence committed and the proceedings before that court are subject to procedural safeguards appropriate to criminal matters. In particular, those safeguards relate to the manner in which the documents relating to the case are brought to the attention of the person concerned, the hearing in open court to which that person is summoned, the possibility of being assisted or represented, the hearing of witnesses and experts and the use of an interpreter.
The Kantonrechter (District Court (Cantonal Sector)) must therefore be classified as a ‘court having jurisdiction in particular in criminal matters’ within the meaning of Article 1(a)(ii) of Framework Decision 2005/214.
As regards the fact, mentioned by the referring court, that, in accordance with Netherlands legislation, where the fine imposed is EUR 225 or more, consideration of the appeal by a court is subject to the payment by that person of a deposit equal to that amount, it is irrelevant in the present case. It must be held that, in the case in the main proceedings, the fine imposed by the CJIB on D.B. was EUR 92.
In the light of all the foregoing considerations, the answer to the questions referred is that Article 1(a)(ii) of Framework Decision 2005/214 must be interpreted as meaning that a final decision requiring a financial penalty to be paid by a natural person, adopted by an authority of the issuing Member State other than a court in respect of a criminal offence under the law of the issuing Member State, constitutes a ‘decision’, within the meaning of that provision, where the legislation of that Member State provides that an appeal against that decision is to be examined first by a public prosecutor placed under the hierarchical authority of the Minister for Justice and subsequently, if that public prosecutor adopts a decision dismissing that appeal, a court having jurisdiction in particular in criminal matters may be seised by the person concerned, provided that access to that court is not made subject to conditions which make it impossible or excessively difficult.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

Article 1(a)(ii) 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 final decision requiring a financial penalty to be paid by a natural person, adopted by an authority of the issuing Member State other than a court in respect of a criminal offence under the law of the issuing Member State, constitutes a ‘decision’, within the meaning of that provision, where the legislation of that Member State provides that an appeal against that decision is to be examined first by a public prosecutor placed under the hierarchical authority of the Minister for Justice and subsequently, if that public prosecutor adopts a decision dismissing that appeal, a court having jurisdiction in particular in criminal matters may be seised by the person concerned, provided that access to that court is not made subject to conditions which make it impossible or excessively difficult.

[Signatures]
(
*1
)	Language of the case: Polish.