61995CC0029_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 By order of 31 January 1995, the Rechtbank van Eerste Aanleg (Court of First Instance) for the judicial district of Antwerp asked the Court whether the prohibition of discrimination contained in Article 6 of the Treaty precludes national legislation - adopted in implementation of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport (1) and Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (2) - which, in cases of infringement and of failure to pay the fine at once, imposes only on non-residents the obligation to lodge a deposit to cover any fines and legal costs, in default of which the vehicle is impounded.
2 The abovementioned regulations are intended to improve working conditions and road safety in the Member States. To that end, they impose certain obligations and prohibitions concerning driving periods, breaks and rest periods, and the use of recording equipment.
Article 17 of Regulation No 3820/85 and Article 19 of Regulation No 3821/85 require the Member States to adopt such laws, regulations or administrative provisions as may be necessary for the implementation of those Community regulations, covering, inter alia, the procedure for and means of carrying out checks on compliance and the penalties to be imposed in case of breach.
The Kingdom of Belgium implemented those regulations by adopting the Law of 6 May 1985 (3) on the paid transport of goods by motor vehicles, which added an Article 11b to the Law of 1 August 1960. Under the system of penalties introduced by Article 11b and by Articles 3, 4 and 5 of the Royal Decree of 12 July 1989, (4) which implemented that system, the offender has the option, provided that no third party is involved in the offence, of either paying a sum of BFR 10 000 per breach forthwith (immediate levying), whereupon prosecution is discontinued, or facing the criminal proceedings provided for by law.
In the latter case, both Article 11b and the implementing decree draw a distinction between offenders according to whether or not they have their official or habitual residence in Belgium; those who do not, and who choose to face criminal proceedings, are obliged to pay in advance, and therefore by way of deposit, a sum of BFR 15 000 per infringement to cover any fine and legal costs, in default of which the vehicle is impounded. By contrast, offenders who live in Belgium and who opt to face proceedings are not obliged to pay any deposit and are not liable to have their vehicle impounded. It is therefore this discriminatory treatment whose lawfulness under Article 6 of the Treaty is at issue in this dispute.
3 The facts of the case can be summarized as follows:
During an inspection carried out on a lorry owned by Trans-Cap, a German transport company, and driven by Mr Eckehard Pastoors, an employee of that company and also resident in Germany, the police of the Port of Antwerp established eleven infringements of Regulations Nos 3820/85 and 3821/85.
Faced with the alternatives of `settling' by paying BFR 10 000 at once per infringement committed and thus avoiding prosecution, or allowing the criminal proceedings provided for by Belgian law to take their course against him, but having to lodge a deposit of BFR 15 000 per infringement in order to avoid the impounding of the vehicle, Mr Pastoors consulted with his employer and opted for immediate payment, thus paying a total of BFR 110 000 (BFR 10 000 for each of the eleven infringements).
Subsequently, the same driver, together with Trans-Cap, brought an action before the Rechtbank van Eerste Aanleg, Antwerp, asking that the Belgian State be ordered to reimburse the sums paid and to pay compensation for the non-material damage suffered. In support of their claim, the plaintiffs asserted that the system of penalties established by Article 11b of the Law of 1 August 1960 (added by the Law of 6 May 1985) and by the relevant implementing provisions is contrary both to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and to Article 6 of the Treaty, since it discriminates unlawfully between offenders according to whether or not they have their official or habitual residence in Belgium.
4 Although it considered the plaintiffs' arguments unfounded, the Rechtbank van Eerste Aanleg, Antwerp, nevertheless decided specifically for reasons of legal certainty to stay the proceedings and refer the following question to the Court for a preliminary ruling:
`Should the prohibition on discrimination contained in Article 6 of the EC Treaty or the general principle of equality enshrined in Community law be interpreted as precluding the national legislation of a Member State, adopted in implementation of Council Regulations Nos 3820/85 and 3821/85, from providing for a system of penalties whereby natural or legal persons charged with infringements of that legislation are given the choice between:
(a)
immediate payment of a given sum, in this case BFR 10 000 per infringement, whereupon prosecution is as a rule discontinued,
or
(b) continuation against them of normal criminal proceedings,
subject to the proviso, however, that, in the event of the second of those options being chosen, it is only defendants having no place of residence or fixed abode in Belgium who are obliged, whether or not they are nationals of another Member State, to lodge a sum - in this case BFR 15 000 - by way of deposit in respect of each offence with which they are charged, to cover any fines or legal costs which they may be ordered to pay, and subject to the impounding of the vehicle driven by the accused until such time as the deposit is lodged?'
5 The order for reference raises a question of interpretation centred, in turn, on Article 6 of the Treaty and on the general principle of equality. However, I consider that a single answer can be given based on Article 6 of the Treaty, which is a specific enunciation of the principle of equality. (5)
Article 6 provides that `within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited'.
It must be examined, first, whether the conditions are fulfilled for relying in this case on the abovementioned provision which, according to the Court's settled case-law, applies only in the absence of provisions prohibiting discriminatory treatment in specific sectors. (6)
If the answer is in the affirmative, it remains to be established whether the rules at issue give rise to discrimination which is prohibited.
6 With regard to the first aspect, it must be pointed out at once that, as the Court made clear in its judgment in Phil Collins and Others, (7) Article 6 is a provision endowed with direct effect, which can be relied on by anyone involved in a situation governed by Community law. That condition appears to be met in this case, since the system of penalties established by Belgian law derives its binding force from Article 17 of Regulation No 3820/85 and Article 19 of Regulation No 3821/85.
As regards the possibility of bringing the present dispute within the scope of the Treaty provisions on freedom to provide transport services, thereby avoiding the need to examine it in the light of Article 6, I should point out that the Belgian rules under consideration here are procedural in nature and scope. They do not, at least not directly, affect road transport, nor do they introduce obstacles to or restrictions on freedom of movement as regards the provision of services, guaranteed by the Treaty. On the other hand, by envisaging different courses of action in response to the penalties, depending on the offender's place of residence, that legislation could, in the abstract, produce discriminatory effects and it must therefore be assessed in the light of Article 6.
The Court has, moreover, reached similar conclusions in previous cases. In the
judgment in Phil Collins, for example, it considered that it was able to protect copyright by reference to the general principle of non-discrimination laid down by Article 6, without relying on the specific provisions available in relation to the field concerned, in particular those on the free movement of goods and services. Nor did the contested German rules directly affect the rights protected by the provisions referred to, or render their exercise more onerous or more difficult; rather, they produced a detrimental, albeit indirect, effect vis-à-vis authors of non-German nationality by limiting the means of judicial protection available to them.
I would add that no other conclusion is possible in view of the nature of the rules at issue here, a point which the French Government has strongly emphasized in its written observations: even though in principle criminal legislation and the rules of criminal procedure, among which the contested provisions are to be found, are a matter for the Member States, such provisions may not discriminate against persons to whom Community law gives the right to equal treatment or restrict the fundamental freedoms guaranteed by Community law. (8) It follows that the criminal-law origin of the rules at issue does not preclude their examination in the light of Article 6 of the Treaty.
7 I now come to the second aspect, that is, whether the rules introduced by Article 11b of the Law of 1 August 1960 involve discrimination prohibited by Community law, and in particular by Article 6 of the Treaty.
8 The provision at issue does not actually give rise to discrimination on grounds of nationality since, in the event of rejection of the option of immediate payment extinguishing prosecution, all offenders, whether or not they are Belgian citizens, who do not have their official or habitual residence in Belgium are obliged to lodge a deposit.
It should, however, be noted that, as the Court has consistently held, `the rules regarding equality of treatment forbid not only overt discrimination by reason of nationality, but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead to the same result'. (9) Recently, the Court has specifically reaffirmed that national rules under which a distinction is drawn on the basis of residence are liable to produce discriminatory effects to the detriment of nationals of other Member States, since `non-residents are in the majority of cases foreigners'. (10)
I find it difficult to dispute the assertion that the provision at issue here, namely Article 11b of the Law of 1 August 1960, can only in exceptional circumstances be invoked against a Belgian citizen (who would be required to have no official or habitual residence in Belgium), and accordingly leads to a result very similar to that produced by discrimination on grounds of nationality.
9 However, that observation is not of itself sufficient to show that there has been a breach of Article 6 of the Treaty.
In a situation of that kind, the Court has made it clear that `the provision in question should not be justified by objective circumstances'. (11)
With regard to discrimination based directly on nationality, only the exceptions provided for by the Treaty apply on the basis of Article 6 itself (`... without prejudice to any special provisions contained therein'), such as, for example, those expressly provided for in the field of the free movement of persons; where, however, the difference in treatment is due to factors other than nationality, the Court ascertains their basis in each individual case. In other words, it must be ascertained whether the different treatment applied, as in the present case, to residents and non-residents can be objectively justified by a factual difference which exists between the respective positions of the former and the latter and is not connected with nationality, but with other objective factors. (12)
10 In this connection, the arguments put forward by the Belgian Government seem to tally with the assessments made by the national court in the order for reference. It is contended that the difference in treatment provided for by the rules at issue is objectively justified both by the greater complexity and higher cost of criminal proceedings brought against non-residents and, above all, by the need to prevent non-resident offenders who reject the option of immediate payment of the fine and opt for criminal proceedings from ultimately avoiding payment of the fine itself owing to the absence of a convention capable of ensuring the prompt enforcement of criminal judgments in all the Member States and, in particular, in relation to the two countries concerned.
That argument is not without foundation. It is clear that no international conventions on the enforcement of Belgian judicial decisions in the Federal Republic of Germany are applicable in this case. It is also common knowledge that, in the absence of an agreement providing, in criminal matters and in particular in the specific sector concerned, for procedural mechanisms and results similar to those established by the Brussels Convention (or other conventions) governing the recognition and enforcement of judgments in civil and commercial matters, there is a very real possibility that a judgment given against a non-resident could remain a dead letter or could, at any rate, be far more difficult and/or onerous to implement. Consequently, it is by no means out of the question that, unless the lodging of a deposit is required, a non-resident offender will in practice be afforded a large measure of impunity and the penalty will remain ineffective. (13)
11 In this context, I believe it is possible to apply to this case, but with the opposite result, the principles set forth by the Court in Mund & Fester, (14) where the point at issue was the discriminatory nature of a German procedural rule under which the fact that the subsequent judgment was to be enforced abroad was sufficient to justify the authorization of seizure. The Court held that the provision in question was incompatible with Articles 7 (now Article 6) and 220 of the Treaty, read, however, in conjunction with the Brussels Convention. According to the Court, by standardizing the procedures for enforcing judgments on the territory of all the Member States, the Convention has sufficiently reduced, if not eliminated, the difficulties involved in enforcement abroad and, with them, the difference between the position of residents and that of non-residents, which was the sole justification for the disparity in the rules laid down by the law.
For the Court, in particular, the presumption that enforcement of judgments in a foreign country is more complex, `while ... justified where the subsequent judgment is to be enforced in the territory of a non-member country, ... is not justified where enforcement is to take place in the territory of the Member States of the Community. All those States are Contracting Parties to the Brussels Convention whose territories may be regarded as forming a single entity, as indicated in the Report on the Brussels Convention'. (15) In short, the Court in that judgment considered decisive the existence and applicability to the case in point of an international convention which, as far as the enforcement of judgments is concerned, treats the position of residents and that of non-residents in the same way.
In the present dispute, on the other hand, according to the case-law to which I have just referred, given the absence of a similar international and/or Community instrument of judicial cooperation, (16) the concerns expressed by the Belgian Government would not appear to be unfounded. In short, the different treatment applied to non-residents is justified, since their position is different as regards the enforcement of any judgment against them, not because of their nationality or residence as such, but for an objective reason.
12 Only on a superficial reading would the foregoing appear to be in conflict with the principles set forth in the judgment in Hubbard. (17) In that case, the Court, called upon to give a ruling on a provision of the German Code of Civil Procedure requiring plaintiffs of foreign nationality to provide security for costs, held that the rule in question was contrary to the freedom to provide services, guaranteed by Article 59 of the Treaty.
Moreover, in the same judgment, the Court stated in reply to another question referred by the German court that `the right to equal treatment laid down in Community law may not be made dependent on the existence of reciprocal agreements concluded by the Member States' (paragraph 17).
That statement was recently reproduced verbatim in the judgment in Data Delecta. (18) In that case, however, the Court held that a Swedish law requiring plaintiffs of foreign nationality to lodge security for the costs of the proceedings (and therefore comparable to the law contested in Hubbard) was contrary not to the freedom referred to in Article 59, but to the general (and residual) principle of non-discrimination enshrined in Article 6 of the Treaty. There, the difference in treatment was based essentially on nationality: foreigners not resident in Sweden were subject to the requirement to lodge security, whereas Swedish nationals were exempt from it, even though they were resident abroad. The Court did not therefore consider it necessary to ascertain the existence of objective reasons justifying the difference in treatment, which also meant that the question whether or not there was an applicable international convention
was completely irrelevant.
13 The case now before the Court, however, differs somewhat inasmuch as the discrimination is not based on nationality. (19) It is hardly necessary to point out that the existence or otherwise of international conventions may indeed be relevant, not in order to determine whether or not the prohibition of discrimination exists and is relevant, but in order to assess the equality or otherwise of the subjective situations to which that prohibition is to apply.
Regardless of the specific nature of individual cases, the fact remains that the Court is once again being asked to answer the question whether the objectively different situations in which residents and non-residents find themselves as a result of the non-existence of conventions on the enforcement of judgments between the countries concerned must be treated identically in legislation. An answer in the affirmative would conflict with the line taken by the Court in its decisions so far, both in the earlier judgment in Boussac and in the more recent judgment in Mund & Fester.
14 In my view, there are two possible solutions to that problem.
The first would be to argue that there is a general principle of freedom of movement of judicial decisions within the Community and that, in short, as Advocate General La Pergola maintained in his Opinion in the Data Delecta case, the Member States are subject to a veritable obligation of mutual recognition with respect to such decisions, in compliance with the principle of non-discrimination laid down in Article 6 of the Treaty. (20) The rationale is that whatever the Brussels Convention has achieved is not strictly linked to the Convention itself but is covered by a general principle which can be inferred from the Community Treaties and which must be placed on the same level as the fundamental freedoms of movement which apply to goods and inputs.
On that view, the Brussels Convention, whether applicable or not, merely simplified that which was already there. It follows that, even with regard to road traffic offences (if not generally with regard to criminal matters) and notwithstanding the absence of a specific convention intended to ensure their enforcement, decisions would have to be regarded as enforceable without any particular difficulty, against both residents and non-residents; therefore, since both the former and the latter are in exactly the same position, national rules of the type at issue in this case would have to be disallowed.
That is an attractive solution, but an abstract one in so far as it does not take account of the fact that, in the absence of conventions, there is unquestionably a real difference between residents and non-residents as regards the enforcement of judgments. That solution identifies a desirable objective, but one not achieved for the time being except, if we want to be optimistic and `otherworldly', by means of instruments such as the Brussels Convention.
Proof of that, moreover, are the continuing efforts on the part of the Member States to conclude suitable conventions.
15 The other solution, to which I subscribe, is that, in the field with which we are concerned, the equivalence of situations, by reference to which any difference in treatment prohibited by Article 6 must be assessed, exists only in so far as instruments of harmonization and cooperation at least equivalent to the Brussels Convention exist and are applicable to individual cases. Consequently, if that is true, the national rule which is the subject-matter of these proceedings is not, as a matter of principle, incompatible with Article 6 of the Treaty.
The possible solutions so far considered obviously demand a clear choice such as to dispel any misunderstanding which may have been fuelled by a superficial reading of the precedents referred to here. I would ask the Court to make that choice along the lines which I have suggested: as a matter of principle, in the absence of conventions on the enforcement of judgments, the position of non-residents differs from that of residents and constitutes an objective ground, other than nationality, that justifies different treatment without infringing Article 6 of the Treaty.
16 That is true in principle. In practice, it remains to be seen whether the national provision at issue and the differentiated system introduced by it comply with the principle of proportionality, that is, are appropriate and necessary for achieving the aim in view, without going beyond what is essential in order to attain it. (21)
From that point of view, the Belgian rules arouse some misgivings. They provide that non-resident offenders can choose to pay the amount of the fine at once, whereupon prosecution is discontinued; they must then pay BFR 10 000 per breach committed. Alternatively, they can decide to allow criminal proceedings to run their course against them: in that case, however, they are obliged to pay a deposit of BFR 15 000 for each offence with which they are charged, as a guarantee that any fine and legal costs will be paid. I use the term `obliged' deliberately since, should he opt not to pay the deposit, a non-resident driver would undoubtedly suffer a more serious loss, namely the immediate seizure of his vehicle, and it is only too obvious that, for a road transport operator, the impounding of his vehicle clearly represents a substantial financial loss likely to worsen as time goes by and thus to be avoided at all costs, even, if necessary, by paying a heavy fine.
17 I now turn to the amount of the deposit: it is 50% higher than the sum due where the option of immediate payment extinguishing prosecution is chosen; legal costs are expressly stated to account for the difference. Moreover, the sum of BFR 15 000 must be lodged for each offence committed. The fact that a number of offences are simultaneously found to exist certainly does not mean that they will each form the subject-matter of distinct criminal proceedings: in all probability, for elementary reasons of practicality and procedural economy, the various offences will give rise to only one set of proceedings against the offender. That was, moreover, acknowledged by the Belgian Government itself during the oral procedure. However, while it is justifiable to charge a sum of money in respect of legal costs if it relates to a single set of court proceedings, an additional sum of BFR 5 000 per infringement is absolutely unjustified. It is clear that that additional sum is charged in respect of costs which remain unchanged, regardless of the number of offences alleged.
The foregoing considerations are obviously relevant especially to cases such as this, in which Mr Pastoors has been charged with eleven offences. However, all things considered, I am of the opinion that the obligation to lodge a deposit (which is 50% higher than the sum due where the option of immediate payment extinguishing prosecution is chosen) for each offence alleged, rather than for each set of proceedings brought against the offender, is, in any event, regardless of the number of offences committed, a disproportionate measure which is excessive in relation to the objective expressly pursued by the rules at issue, namely ensuring that non-resident offenders actually pay the fine and the legal costs. That is especially true (a not insignificant detail as the set of rules in question is `objectively' discriminatory) since residents who opt for criminal proceedings to take their course against them are not obliged to lodge any sum by way of deposit.
Nor can it be argued, to the contrary, as the Belgian Government has done, that the amount of the deposit is justified by reason of the possibility that the court may order the offender to pay a sum higher than BFR 15 000 per infringement. First, the deposit cannot and must not be turned into a form of advance payment of the maximum pecuniary penalty laid down by statute for the offences in question. It is, moreover, sufficient to observe that, before the proceedings take place, there is no certainty that the offender will be convicted. What happened to the plaintiff in this case is the best proof of that: Mr Pastoors was initially charged with 27 offences, subsequently reduced, when the charge sheet was drawn up (clearly after more careful examination), to eleven, that is, to fewer than half!
18 It remains to be said that the argument which I have put forward does not seem capable of being rebutted by the objections raised by the French Government in its written observations with regard to the need for the penalties imposed in respect of breaches of Community law to have a dissuasive effect.
In the first place, if the additional sum were related to the number of proceedings to be brought, and not to the number of offences alleged, the deposit required from non-resident offenders would retain its dissuasive effect in full but would then be proportionate to its stated objectives. (22) Second, it is worth noting that, if the requirement to pay a deposit really were intended to deter drivers from committing offences, it would not be clear why a similar requirement, possibly for a different sum, was not imposed on drivers resident in Belgium.
In reality, and the Belgian Government has not concealed the fact, the different system established for non-residents is intended solely and exclusively to ensure the actual recovery of sums corresponding to the fines imposed and legal costs incurred.
19 The disproportionate nature of the system in relation to the objective pursued also has another drawback. Although the national court excluded it, the provision in question appears to have the effect of severely reducing, if not practically eliminating, the availability of judicial protection for persons who are not resident in Belgium.
As it stands, the system established for non-residents, regardless of the intentions of the legislature which introduced it, actually has a dissuasive effect on offenders with respect to legal action. In other words, by requiring payment of a deposit (unless the driver prefers to have his vehicle impounded, which, as I have said, is rather unlikely) in cases where the offender opts for proceedings to be continued against him, access to the courts is actually being discouraged by making it too onerous and, in any event, excessively disadvantageous on the whole as compared with immediate payment extinguishing prosecution, the option towards which the offender is inexorably driven, whether he likes it or not.
20 That being the case, therefore, the Belgian rules ultimately limit access to the courts for non-resident citizens, impairing their right to enjoy full and effective judicial protection, which has been recognized by the Court as a fundamental principle of the Community legal order. (23) That principle cannot be called into question even for reasons of public policy of the kind relied on by the Belgian Government, which are connected with the need to ensure the payment of fines imposed on non-residents and, in the final analysis, the proper administration of justice. It is obvious that, by preventing (or at any rate hindering) non-residents alone from exercising the right to go to court, the rules at issue, both from the point of view of proportionality under consideration here, and with respect to the right to judicial protection, in the end fall within the scope of the prohibition laid down in Article 6 of the Treaty. In short, the difference in treatment is only partially justified on objective grounds, namely with respect to the amount of the fine and the increase for each set of court proceedings, but not for each infringement.
Nor could a different conclusion be arrived at by taking account of the personal and road safety requirements which the Community regulations in question are intended to safeguard. Since compliance with those requirements, which are absolutely fundamental, is not in issue at all, it is sufficient to observe that, even from that point of view, the system of penalties established for non-residents appears, for the reasons stated above, to be disproportionate to the objective pursued.
It follows, in my view, that the assessment of the difference in treatment resulting from the rules at issue cannot and must not depend more than is necessary on proper consideration of the objectives, undoubtedly in the public interest, underlying the relevant Community legislation.
Conclusion
21 In the light of the foregoing considerations, I therefore propose that the Court should answer the question referred by the Rechtbank van Eerste Aanleg, Antwerp, as follows:
Article 6 of the EC Treaty precludes a national provision which imposes only on non-resident citizens who infringe Regulations (EEC) Nos 3820/85 and 3821/85 and reject the option of paying the fine at once, preferring to allow criminal proceedings to take their course against them, the obligation to lodge a deposit, in default of which the vehicle is impounded, to cover any fine and legal costs in respect of each infringement regardless of the number of proceedings brought against the offender.
(1) - OJ 1985 L 370, p. 1.
(2) - OJ 1985 L 370, p. 8.
(3) - Belgisch Staatsblad of 13 August 1985.
(4) - Belgisch Staatsblad of 20 July 1989.
(5) - Judgment in Case 810/79 berschär [1980] ECR 2747, paragraph 16.
(6) - Judgment in Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 11.
(7) - Judgment in Joined Cases C-92/92 and C-326/92 [1993] ECR I-5145.
(8) - Judgment in Case 186/87 Cowan [1989] ECR 195, paragraph 19.
(9) - Judgments in Case 22/80 Boussac [1980] ECR 3427, paragraph 9, and in Case C-175/88 Biehl [1990] ECR I-1779, paragraph 13.
(10) - Judgment in Case C-279/93 Schumacker [1995] ECR I-225, paragraphs 28 and 29.
(11) - Judgment in Case C-398/92 Mund & Fester [1994] ECR I-467, paragraph 17.
See also, for the notion that the prohibition of discrimination contained in Article 40(3) of the Treaty, `as a specific enunciation of the general principle of equality ... does not prevent like situations from being treated differently where such treatment is objectively justified', the judgment in Case 167/88 Association Générale des Producteurs de Blé et Autres Céréales [1989] ECR 1653, paragraph 23; in that judgment the Court concludes that `the different treatment resulting from the regulations at issue does not constitute discrimination between producers ... or discrimination on grounds of nationality within the meaning of Article 7 of the Treaty' (paragraph 33).
(12) - See, for example, the judgment in Case 251/83 Haug-Adrion [1984] ECR 4277, paragraphs 14 to 16.
(13) - In this context, I would also mention Resolution 85/C 348/01 of the Council and the Representatives of the Governments of the Member States, meeting within the Council, of 20 December 1985, to `improve the implementation of the social regulations in road transport' (OJ 1985 C 348, p. 1). The measures which `should be taken' include in particular [at point 2(b)] - and certainly not by accident - the `adoption of effective means of prosecuting non-resident drivers committing breaches on the territory of a Member State and of recovering fines imposed on such drivers, under the international or national law in force'.
(14) - Judgment in Case C-398/92, cited in footnote 11.
(15) - Ibid., paragraph 19. The legal literature has pointed out that this statement appears to be the result of `a certain otherwordliness on the part of the Court' in relation to the alleged equivalence between the situation of residents and that of non-residents in cases where the Brussels Convention is applicable: Bischoff, in Journal du Droit International, 1994, p. 538. The Mund & Fester judgment was properly applied in the United Kingdom by the Court of Appeal (Civil Division) in its judgment of 20 December 1995 in Fitzgerald v Williams and O'Regan v Williams (published in Weekly Law Report, 1996, vol. II, p. 447) in order to avoid the need, under English law,
to make the plaintiff resident in Ireland pay a deposit covering the costs of the proceedings, precisely because the Brussels Convention was applicable; this was, however, subject to the production of convincing
proof of the difficulty of enforcing the decisions concerned.
(16) - In this regard, it should be noted that, as the Belgian Government has pointed out on the basis of arguments which have not been disputed, the three conventions to which the plaintiffs have referred in their observations cannot be relied on in this case: the first two (the Brussels Convention of 17 January 1958 and the Strasbourg Convention of 20 April 1959)
because they apply only where there has been a request for extradition, which does not arise in this case, and the third (the European Convention on the Punishment of Road Traffic Offences, signed at Strasbourg on 30 November 1964) because it has not been ratified either by the Kingdom of Belgium or by the Federal Republic of Germany.
(17) - Judgment in Case C-20/92 [1993] ECR I-3777.
(18) - Judgment in Case C-43/95 [1996] ECR I-4661.
(19) - It is also true that the security for the costs of judicial proceedings which was the subject-matter of the Data Delecta case was intended to guarantee recovery of the costs borne by the other party, whereas, in this case, the deposit required by the Belgian legislature is intended to guarantee payment by the non-resident offender, not only of the costs incurred by the State in bringing proceedings against him, but also, and above all, of the fine imposed on him for the offences committed. This is not, however, a decisive factor.
(20) - See point 17 of the Opinion.
(21) - Judgments in Case 222/84 Johnston [1986] ECR 1651, paragraph 38, and in Case 299/86 Drexl [1988] ECR 1213, paragraph 18.
(22) - The Court has consistently held that penalties imposed by Member States for non-compliance with Community obligations should be effective and dissuasive, but not disproportionate; see, to that effect, among the most recent decisions, the judgment in Case C-193/94 Skanavi [1996] ECR I-929, paragraph 36; and, specifically concerning a case similar to the present case, the judgment in Case C-7/90 Vandevenne [1991] ECR I-4371, paragraph 11.
(23) - Judgment in Case 222/84 [1986] Johnston, cited in footnote 21, paragraph 18.