WRITTEN QUESTION E-2788/00

by Jo Leinen (PSE) to the Commission

(1 September 2000)

Subject: Discrimination against EU citizens

A German national was stopped on 12 June 2000 near Monbéliard (France) because he was transporting a radar detention device which was not however switched on (this is confirmed in writing by the police officer carrying out the check).

Irrespective of whether proceedings involving a fine or prosecution were to be instituted, the German national was not allowed to continue his journey with his vehicle unless he paid immediately an on-the-spot cash deposit of FRF 10 000 (the maximum possible penalty).

Does the Commission take the view that this has to be seen as a curtailment of the free movement of persons guaranteed by Article 14(2) of the EC Treaty and constitutes inadmissible discrimination against an EU citizen since the payment of such on-the-spot deposits is not required in France from its own nationals?

Answer given by Mr Vitorino on behalf of the Commission

(19 October 2000)

The Commission has analysed the facts alluded to by the Honourable Member, following a complaint lodged by the German citizen in question.

Article 12 (formerly Article 6) of the EC Treaty prohibits any discrimination on grounds of nationality and precludes any administrative or criminal penalties imposed by national authorities on nationals of the Member States in a discriminatory, unjustified and disproportionate manner. In its judgment of 23 January 1997 in Pastoors (Case C-29/95), the Court of Justice found that, in the absence of a convention to ensure the enforcement of court decisions in criminal matters between Member States, a Member State may impose the payment of a deposit on non-residents if, in the event of an infringement, they opt for continuation of criminal proceedings rather than immediate payment of a fine. However, according to the same decision, Article 12 EC precludes the imposition of a deposit that is higher than the sum to be paid in the event of an immediate fine.

Under Article 26 of the French Road Traffic Code, offenders who are neither resident nor employed in France and who opt for continuation of normal criminal proceedings against them rather than immediate payment of a flat-rate or reduced fine whichever is applicable must pay a deposit, the amount of which is fixed by decree, failing which their vehicle will be impounded. The complainant paid FRF 5 000 by way of a deposit, whereas the maximum penalty for this type of infringement is FRF 10 000, except in the case of repeat offences. According to the information in the Commission's possession, the complainant does not appear to have suffered discriminatory treatment.

On the basis of the above Court decision, the difference in treatment between residents and non-residents provided for in the French Road Traffic Code is objectively justified, as there is a real danger that a decision against a non-resident may prove impossible to enforce or at least considerably more difficult and more expensive to enforce. This difference therefore constitutes neither discrimination in breach of Article 12 of the EC Treaty nor a restriction on the right to free movement of persons guaranteed by Article 14(2) EC.