Initiative of the United Kingdom, the French Republic and the Kingdom of Sweden with a view to adopting a Council Framework Decision on the application of the principle of mutual recognition to financial penalties
Date: 2001-10-02
Institutions: France, Sweden, United Kingdom
Subjects: France, Sweden, United Kingdom, fine, mutual recognition principle

C 278/4

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Official Journal of the European Communities

2.10.2001

II

(Preparatory Acts pursuant to Title VI of the Treaty on European Union)

Initiative of the United Kingdom, the French Republic and the Kingdom of Sweden with a view to
adopting a Council Framework Decision on the application of the principle of mutual recognition
to financial penalties

(2001/C 278/06)

THE COUNCIL OF THE EUROPEAN UNION,

(a)

(cid:145)Judgement(cid:146) shall mean a final decision requiring a financial
penalty to be paid by a natural or legal person, where the
decision was made either by:

Having regard to the Treaty on European Union, and in
particular Articles 31(a) and 34(2)(b) thereof,

Having regard to the initiative of the United Kingdom, the
French Republic and the Kingdom of Sweden,

Having regard to the opinion of the European Parliament,

Whereas:

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

(2) The principle of mutual

recognition should apply to
financial penalties imposed by judicial or administrative
authorities.

conclusions,

(3) On 29 November 2000 the Council, in accordance with
the Tampere
adopted a programme of
measures to implement the principle of mutual recognition,
giving priority to the adoption of an instrument applying
the principle of mutual recognition to financial penalties
(measure 18).

(4) Decisions requiring financial penalties to be paid have to be
taken in accordance with the European Convention for the
Protection of Human Rights and Fundamental Freedoms of
4 November 1950,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

(i) a court in respect of a criminal offence; or

(ii) an administrative authority in respect of an adminis-
trative offence or an offence against
regulations,
where the decision may give rise to proceedings
before a court having jurisdiction in particular
in
criminal matters; a list of such administrative offences
is provided in Annex I;

(b) (cid:145)Financial penalty(cid:146) shall mean the obligation to pay a sum
of money on conviction of a criminal or administrative
offence, including orders made in criminal proceedings to
pay compensation for the benefit of victims of crime, and
orders to pay sums in respect of the costs of court or
it shall not include
administrative proceedings; however,
instrumentalities or
orders
the
that are enforceable in
proceeds of crime or orders
accordance with Council Regulation (EC) No 44/2001 of
22 December 2000 on jurisdiction and the recognition and
enforcement of
and commercial
matters (1);

confiscation of

judgements

in civil

for

(c)

(cid:145)Issuing State(cid:146) shall mean the State in which a judgement
was delivered;

(d) (cid:145)Executing State(cid:146) shall mean the State to which a judgement
has been transmitted for the purpose of enforcement.

Article 2

Transmission of judgements

1.
A judgement, together with a certificate as provided for
in this Article, may be transmitted to a Member State in which
the natural or legal person against whom such a judgement has
been passed has property or income, is normally resident or, in
the case of a legal person, has its seat.

For the purposes of this Framework Decision:

(1) OJ L 12, 16.1.2001, p. 1.

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The certificate, the standard form for which is given in
2.
Annex II, must be signed, and its contents certified as accurate,
by the competent authority in the Issuing State.

(b) the judgement is exclusively related to acts which were
carried out within the territory of the Executing State or
a Member State, other than the Executing or Issuing State,
and

The judgement may be transmitted by the competent
3.
authority in the Issuing State directly to the competent
authority in the Executing State.

(cid:151) these acts do not constitute an offence within the law of

that State; or

No judgement may be transmitted if

4.
already been paid.

the penalty has

(cid:151) enforcement of the decision is barred by statutory time

limitations in that State.

If the competent authority in the Executing State is not
5.
known to the competent authority in the Issuing State, the
latter shall make all necessary inquiries,
including via the
contact points of the European judicial network, in order to
obtain the information from the Executing State.

Any decision not to enforce a judgement shall be taken
3.
and notified as soon as possible, together with the reasons for
the decision, to the competent authorities of the Issuing State
by any means which leaves a written record.

6.
Each Member State shall designate a central contact point
for inquiries made under paragraph 5 and shall notify the
General Secretariat of
the contact point so
the Council of
designated.

Before deciding not

4.
the
competent authority in the Executing State shall consult the
competent authority in the Issuing State and shall ask it to
supply the necessary supplementary information without delay.

to enforce

judgement,

a

Article 3

Article 5

Recognition and enforcement of judgements

Determination of the amount to be paid

A judgement which has been transmitted in accordance with
Article 2 shall be recognised without any further formality
being required and shall be enforced forthwith by the
the
competent
authority
for
to invoke one of
non-enforcement provided for in Article 4. The judgement
shall be enforced in the same way as a financial penalty
imposed by a court or administrative authority of
the
Executing State.

authority in the Executing State, unless
reasons
decides

the

Article 4

Reasons for non-enforcement

The competent authority in the Executing State may
1.
decide not
certificate
provided for in Article 2 is not produced, or the particulars
in that certificate are incomplete or manifestly incorrect.

to enforce

judgement

the

the

if

2.
The competent authority in the Executing State may also
decide not to enforce the judgement if it is established that:

(a)

judgement against the sentenced person in respect of the
same acts has been delivered

(cid:151) in the Executing State or

(cid:151) in another Member State or a third State,

and that judgement has been enforced; or

The competent authority of the Executing State shall, if
1.
necessary, convert
the
Executing State at the rate of exchange obtaining at the time
when the penalty was imposed.

the penalty into the currency of

2. Where it is established that the judgement is exclusively
related to acts which were carried out within the territory of
the Executing State or a Member State other than the Executing
or Issuing State, the Executing State may decide to reduce the
amount of
the penalty enforced to the maximum amount
provided for acts of the same kind under the national law of
the State where the acts were carried out.

Article 6

Law governing enforcement

1.
Subject to paragraph 3 and to Article 7, the enforcement
of the judgement shall be governed by the law of the Executing
State, and its authorities alone shall be competent to decide on
the procedures for enforcement and to determine all
the
measures relating thereto.

2.
Any part of the penalty recovered in whatever manner in
the Issuing State or in another Member State or a third State,
shall be deducted in full
from the amount which is to be
enforced in the Executing State.

3.
A judgement imposed on a legal person shall be enforced
even if the Executing State does not recognise the principle of
criminal liability of legal persons.

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Article 7

(a) of the enforcement of the judgement as soon as it has been

Imprisonment by way of substitution for non-recovery of
the financial penalty

Where it is not possible to enforce a judgement, either totally
or in part, an alternative custodial sanction may be applied by
the Executing State if its laws, and those of the Issuing State, so
provide in such cases. The length of the custodial sanction shall
be determined in accordance with the law of the Executing
State, but may not exceed any maximum term stated in the
certificate transmitted by the Issuing State.

Article 8

Amnesty, pardon, commutation and review of sentence

Only the Issuing State may grant an amnesty, pardon or
any

1.
commutation of
a
application for review of the judgement.

financial penalty or determine

2.
The Executing State may however decide not to enforce
all or part of the penalty if there is clearly no prospect of
recovering it, due to the offender’s lack of means, serious
illness or death.

Article 9

Termination of enforcement

The Executing State shall
the
judgement as soon as it is informed by the Issuing State of
any decision or measure as a result of which the judgement
ceases to be enforceable.

terminate enforcement of

Article 10

Accrual of monies obtained from enforcement of
judgements

Monies obtained from the enforcement of
accrue:

judgements shall

(cid:151) in the case of compensation payments or orders to pay

court costs, to the Issuing State;

(cid:151) in all other cases to the Executing State, unless otherwise
agreed upon between that State and the Issuing State.

completed;

(b) of the total or partial non-enforcement of the judgement.

Article 12

Consequences of transmission of a judgement

1.
The Issuing State may not proceed with enforcement of a
judgement after it has been transmitted to the Executing State
to undertake enforcement.

2.
The right of enforcement of the judgement, including for
the purpose of converting the financial penalty into a custodial
to the Issuing State upon its being
sanction, shall revert
informed by the Executing State of
the total or partial
non-enforcement of the judgement.

3.
If, after transmission of a judgement in accordance with
Article 2, an authority in the Issuing State receives any sum of
money which the sentenced person has paid voluntarily in
inform the
respect of
competent authority in the Executing State thereof without
delay.

that authority shall

the judgement,

Article 13

Languages

Documents to be produced shall be translated into the official
language or one of the official languages of the Executing State.
Any Member State may, either when this Framework Decision
is adopted or at a later date, state in a declaration deposited
with the General Secretariat of the Council that it will accept a
translation in one or more other official languages of the insti-
tutions of the European Union.

Article 14

Costs

Member States shall not claim from each other the refund of
costs
this Framework
Decision.

resulting from the application of

Article 11

Information

The competent authority of the Executing State shall without
delay inform the competent authority of the Issuing State:

Article 15

Relationship with other agreements and arrangements

This Framework Decision shall not affect the application of
more favourable provisions concerning the enforcement of
financial penalties in bilateral or multilateral agreements or
arrangements between Member States.

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Article 16

Implementation

The General Secretariat of the Council shall notify the
3.
Member States of the declarations made pursuant to Article
13, and of the contact points designated under Article 2(6).

1. Member States shall
take the necessary measures to
comply with the provisions of this Framework Decision by
[. . .].

2. Member States shall transmit to the General Secretariat of
the Council and to the Commission the text of the provisions
transposing into their national law the obligations imposed on
them under this Framework Decision. On the basis of a report
established on the basis of this information by the General
Secretariat of the Council, the Council shall, no later than
[. . .],
to which Member States have
complied with this Framework Decision.

extent

assess

the

Article 17

Entry into force

This Framework Decision shall enter into force on the day of
its publication in the Official Journal.

Done at . . .

For the Council

The President

. . .

ANNEX I

(This Annex will provide a list of administrative offences as defined in Article 1(a)(ii) and shall be completed during the
negotiations on the basis of information to be provided by those Member States which have such offences.)

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ANNEX II