Report from the Commission based on Article 20 of the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties
Date: 2008-12-22
Institutions: European Commission
Subjects: European judicial area, alternative sentence, area of freedom, security and justice, enforcement of ruling, fine, report

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.12.2008 
COM(2008) 888 final 

REPORT FROM THE COMMISSION 

based on Article 20 of the Council Framework Decision 2005/214/JHA of 24 February 
2005 on the application of the principle of mutual recognition to financial penalties 

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REPORT FROM THE COMMISSION 

based on Article 20 of the Council Framework Decision 2005/214/JHA of 24 February 
2005 on the application of the principle of mutual recognition to financial penalties 

1. 

INTRODUCTION 

1.1. 

Background 

Framework  Decision  2005/214/JHA  applies  the  principle  of  mutual  recognition  to  financial 
penalties  imposed  by  judicial  or  administrative  authorities  for  the  purpose  of  facilitating 
enforcement  of  such  penalties  in  a  Member  State  other  than  the  one  in  which  the  penalties 
were  imposed.  The  Council  of  the  European  Union  agreed  on  29  November  2000,  in 
accordance with the Tampere conclusions, that adopting such an instrument should be given 
priority within the programme of measures to implement the principle of mutual recognition 
to decisions in criminal matters.  

The Framework Decision applies to all offences in relation to which financial penalties can be 
imposed.  Dual  criminality  checks  were  abolished  in  relation  to  39  offences  listed  in  the 
Framework Decision. 

1.2. 

Notifications sent by Member States 

By October 2008, the Commission had received notifications on the national laws transposing 
the  provisions  of  the  Framework  Decision  from  the  following  eleven  Member  States:  AT, 
CZ1,  DK,  EE,  FI,  FR,  HU,  LT,  LV,  NL,  SI2.  No  notification  had  been  received  from  the 
following sixteen Member States: BE, BG, CY, DE, EL, ES, IE, IT, LU, MT, PL, PT, RO, 
SE, SK, UK. 

1.3.  Method and evaluation criteria 

Article 20 of the Framework Decision provides for the establishment of a Commission written 
report on the measures taken by Member States to comply with this instrument by 22 March 
2007. The delay in preparing this Report results from the low number of notifications received 
at the time of the original deadline set by the Framework Decision. 

By their nature, framework decisions are binding upon the Member States as to the result to 
be achieved, but it is a matter for the national authorities to choose the form and method of 
implementation (the criteria are: clarity, legal certainty, effectiveness). Framework decisions 
do  not  entail  direct  effect.  However  the  principle  of  conforming  interpretation  is  binding  in 
relation to framework decisions adopted in the context of Title VI of the Treaty on European 
Union3.  As  the  Commission  has  no  authority  to  initiate  infringement  procedures  against  a 
Member  State  alleged  of  not  having  taken  the  necessary  measures  to  comply  with  the 
provisions of a Council Framework Decision adopted under the third pillar, the nature and the 

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Received from the General Secretariat of the Council of the EU  
idem 
Judgment of the European Court of Justice, Pupino, Case-105/03 (16 June 2005), OJ C 193, 6.08.2005, 
p. 3 

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purpose of this Report is limited to an evaluation of the transposition measures taken by the 
eleven Member States.  

2. 

EVALUATION 

Article 1 – Definitions  

Article  1  defines  terms  such  as:  'decision',  'financial  penalty',  'issuing  State'  and  'executing 
State'. 

CZ, HU and NL have covered all these terms but most of the Member States (AT, DK, EE, 
FI, FR, SI) only transposed definitions of 'decision' and 'financial penalty'. LT and LV have 
transposed  only  the  definition  of  'financial  penalty'.  A  number  of  transposition  laws  lack 
provisions  on  certain  elements  of  these  definitions.  The  main  one  is  non-recognition  of 
responsibility of legal persons in the CZ national legislation4.  

Article 2 - Determination of the competent authorities  

This Article obliges Member States to  notify  the  General Secretariat of the Council and the 
Commission  which  national  authorities  are  competent  for  the  purpose  of  the  Framework 
Decision. Each Member State may designate, if it is necessary as a result of the organisation 
of  its  internal  system,  one  or  more  central  authorities  responsible  for  the  administrative 
transmission and reception of the decisions and to assist the competent authorities. 

For  some  Member  States  the  authorities  competent  for  issuing  or  executing  decisions  are 
national  courts  (AT,  CZ,  HU,  LT,  LV,  SI).  In  other  Member  States  the  central  authority  is 
designated  as  issuing  or  executing  authority.  This  is  the  case  for  DK  and  EE  (Ministry  of 
Justice),  NL  (public  prosecutor  in  Leeuwarden).  In  FR  the  Prosecution  Service  is  the 
competent  authority  for  issuing  the  decision  and  public  prosecutors  for  the  purpose  of 
executing them. 

A  central  authority  for  the  purpose  of  transmission  of  documents  is  designated  in  CZ,  HU, 
LT, LV and SI (Ministry of Justice). 

FI has designated the Legal Registry Centre as competent authority under Article 2.  

Article 3 - Fundamental rights  

According  to  Article  3  the  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 Treaty. 

According to several Member States this Article does not require transposition (DK, FR, NL). 
AT and HU implemented it as an obligatory ground for refusal of execution. Some Member 
States have invoked national legislation in this regard (LT, SI). FI transposed this provision 
by laying down a ground for refusal to execute a decision if there are reasonable grounds to 

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No declaration based on Article 20(2)(b) has been received so far in relation to limitation of application 
of provisions concerning the liability of legal persons for a period up to five years from the date of entry 
into force of the Framework Decision. 

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suspect  that  the  guarantees  of  due  process  were  violated  in  the  proceedings  leading  to  the 
decision.  

Article 4 - Transmission of decisions and recourse to the central authority  

According  to  this  Article  the  decision  in  question  together  with  a  certificate  may  be 
transmitted  to  the  competent  authorities  of  a  Member  State  in  which  the  natural  or  legal 
person against whom a decision has been taken has property or income, is normally resident 
or, in the case of a legal person, has its registered office. The transmission of documents takes 
place directly between the competent authorities.  

CZ, FI, HU, LT, LV and NL have transposed all elements of Article 4 in their implementing 
legislation. AT, DK, FR and SI have implemented this provision only partly.  

In  EE  the  penalty  can  be  executed  in  relation  to  persons  who  are  citizens  or  permanent 
residents of the issuing Member State, as well as in relation to persons who are present on the 
territory of that Member State but will not be extradited and also in relation to legal persons 
who are registered on the territory of the executing Member State. 

Article 5 – Scope  

This  Article  includes  a  list  of  offences  that  give  rise  to  recognition  and  enforcement  of 
decisions without verification of dual criminality if they are punishable in the issuing Member 
State. All other offences may be subject to such verification by the executing Member State. 
The  list  encompasses  the  32  offences  already  listed  in  other  Framework  Decisions  (e.g.  the 
European Arrest Warrant) and a few more, namely: 

•  conduct  which  infringes  road  traffic  regulations,  including  breaches  of  regulations 

pertaining to driving hours and rest periods and regulations on hazardous goods, 

•  smuggling of goods, 

•  infringements of intellectual property rights, 

•  threats and acts of violence against persons, including violence during sport events, 

•  criminal damage, 

•  theft, 

•  offences  established  by  the  issuing  State  and  serving  the  purpose  of  implementing 
obligations arising from instruments adopted under the EC Treaty or under Title VI of the 
EU Treaty. 

AT, DK, EE, FI, FR, HU, LT, NL have implemented the list. In the case of CZ, LV and SI 
part of the list was not attached. 

Article 6 - Recognition and execution of decisions  

According  to  Article  6  the  decision  in  question  shall  be  recognised  without  any  further 
formality  being  required  and  all  the  necessary  measures  for  its  execution  shall  be  taken 
forthwith. 

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CZ, DK, FI, FR, LV and NL have implemented this provision. AT, EE, HU, LT and SI have 
partially transposed this provision. Generally Member States have not indicated a time limit 
for the execution. 

Article 7 – Grounds for non-recognition and non-execution  

Article 7 provides for a number of grounds that can constitute a basis for refusing recognition 
or execution. All grounds set out in this Article are optional. 

They are as follows: 

•  the  certificate  is  not  produced,  is  incomplete  or  manifestly  does  not  correspond  to  the 
decision (transposed as optional by: FI, FR, HU; transposed as obligatory by: AT, CZ, DK, 
LT, LV, NL, SI; EE transposed it as partly obligatory, partly optional) 

•  ne  bis  in  idem  (transposed  as  optional  by:  DK,  FI;  transposed  as  obligatory  by:  AT,  CZ, 

EE, FR, HU, LT, LV, NL, SI) 

•  principle of dual criminality (transposed as optional by: DK, FI; transposed as obligatory 

by: AT, CZ, EE, FR, HU, LT, LV, NL, SI) 

•  the execution is statute-barred (transposed as optional by: DK, FI; transposed as obligatory 

by: AT, CZ, EE, FR, HU, LT, LV, NL, SI) 

•  principle  of  territoriality  (transposed  as  optional  by:  FI,  FR,  HU,  NL;  transposed  as 

obligatory by: AT, CZ, DK, LV, SI; not transposed by EE and LT) 

•  immunity  (transposed  as  optional  by:  FI;  transposed  as  obligatory  by:  AT,  CZ,  DK,  EE, 

FR, HU, LT, LV, NL, SI) 

•  age  of  criminal  liability  (transposed  as  optional  by:  FI;  transposed  as  obligatory  by:  AT, 

CZ, DK, EE, FR, HU, LT, LV, NL, SI) 

•  rights  of  person  concerned  in  the  case  (transposed  as  optional  by:  FI;  transposed  as 

obligatory by: AT, CZ, DK, EE, FR, LT, LV, NL, SI; not transposed by HU) 

•  the  penalty  is  below  EUR  70  (transposed  as  optional  by:  FI,  FR,  NL;  transposed  as 

obligatory by: AT, CZ, EE (1000 kroon), DK, HU, LT, LV, SI) 

Additional grounds laid down by six Member States: 

•  According  to  the  CZ  statement,  as  its  national  legislation  does  not  recognise  the 
responsibility of legal persons, execution of requests relating to them will be refused5; 

•  The additional grounds for EE cover: a court's decision if it has not entered into force; a 
decision taken by a court that is not considered independent (EE distinguishes cases of its 
own citizens and other citizens of the EU); 

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No declaration based on Article 20(2)(b) has been received so far in relation to limitation of application 
of provisions concerning the liability of legal persons for a period up to five years from the date of entry 
into force of the Framework Decision. 

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•  FI  has  added  an  additional  obligatory  ground:  if  there  are  reasonable  grounds  to  suspect 
that  the  guarantees  of  due  process  have  been  violated  in  the  proceedings  leading  to  the 
decision; 

•  HU  mentioned  a  few  additional  obligatory  grounds:  the  criminal  offence  on  which  the 
Member State decision is based falls under Hungarian jurisdiction (Articles 3 and 4 of the 
Criminal Code); and the criminal offence is covered by an amnesty under Hungarian law. 
Other circumstances are those when one year has passed since the entry into force of the 
foreign decision and if the limitation period has already passed. This shall not be a barrier 
to execution that commenced during the limitation period; 

•  LV has added as obligatory grounds: reasons to believe that the penalty has been imposed 
to  punish  on  grounds  related  to  race,  religious  affiliation,  ethnicity,  gender  or  political 
opinions and also when it is not possible to enforce the decision in LV; 

•  SI  has  added  two  additional  grounds:  if  there  are  reasons  to  believe  that  the  penalty  has 
been  imposed  to  punish  on  grounds  related  to  race,  sex,  political  or  religious  views  and 
also when enforcement would be in conflict with the Slovenian constitution. 

Article 8 – Determination of the amount to be paid  

This Article relates to a situation where acts referred to in the decision were not committed on 
the  territory  of  the  issuing  Member  State.  In  such  a  case  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  executing  State,  when  the  acts  fall  within  the 
jurisdiction  of  that  State.  If  necessary  the  competent  authority  of  the  executing  State  shall 
convert the penalty into the currency of the executing State at the rate of exchange obtaining 
at the time when the penalty was imposed. 

AT,  CZ,  DK,  FI,  FR,  HU,  LT,  NL,  SI  have  implemented  this  provision.  EE  has  not.  LV 
referred only to the conversion of currency. 

Article 9 - Law governing enforcement  

According  to  Article  9  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. In cases when 
the  penalty  has  been  paid  in  whole  or  in  part  it  shall  be  deducted  in  full  from  the  amount 
which is to be enforced in the executing State.  

In  any  case  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. 

AT, FI, FR, NL and SI have implemented this Article. DK, EE, HU, LT and LV have done it 
only partly.  

The partial implementation of this Article was the result of non transposition of paragraph 3 
concerning  the  legal  persons.  Some  Member  States  invoked  the  national  legislation  in  this 

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regard  (AT,  FR,  NL).  In  CZ  national  legislation  does  not  recognise  responsibility  of  legal 
persons6. 

Article 10 - Imprisonment or other alternative sanctions by way of substitution for non-
recovery of the financial penalty  

Where it is not possible to enforce a decision, either totally or in part, alternative sanctions, 
including custodial sanctions, may be applied by the executing State if its laws so provide in 
such cases and the issuing State has allowed for the application of such alternative sanctions 
in  the  certificate  referred  to  in  Article  4.  The  severity  of  the  alternative  sanction  shall  be 
determined  in  accordance  with  the  law  of  the  executing  State,  but  shall  not  exceed  any 
maximum level stated in the certificate transmitted by the issuing State. 

AT,  CZ,  HU,  LT  and  SI  have  transposed  this  provision.  In  the  case  of  LV  some  of  the 
provisions  are  not  enclosed.  EE  has  provided  for  conversion  of  the  financial  penalty  into 
imprisonment or community service.  

Certain  Member  States  stated  that  there  was  no  possibility  of  applying  alternative  penalties 
under  their  national  system  either  on  their  territory  or  abroad  (FI,  FR),  or  only  on  their 
territory (DK). NL transposed this provision. The Dutch judge may allow imprisonment under 
the following circumstances: the  competent  authority  that imposed the financial penalty has 
also indicated in its decision that imprisonment is possible if the sanction is not executed; the 
financial penalty is not paid by the convicted person and there are no other ways to execute 
the penalty; and the issuing authority has agreed with imprisonment as a possible alternative 
to the financial penalty.  

Article 11 - Amnesty, pardon, review of sentence  

According  to  this  Article  both  amnesty  and  pardon  may  be  granted  by  the  issuing  State  as 
well as the executing State but only the issuing State may determine application for review of 
the decision. 

Certain  Member  States  implemented  this  Article  (FI,  NL).  CZ's  and  DK's  implementing 
provisions relate only to granting pardon on its territory. LT has transposed this provision as 
to amnesty and pardon but no reference to review has been made. According to EE legislation 
amnesty, pardon and review of the decision shall be done in the issuing State. LV referred to 
the situation in which amnesty and pardon decided in the issuing Member State are binding on 
LV. AT and SI have transposed the provision relating to amnesty and pardon as an obligatory 
ground for refusal (furthermore SI invoked national law in this regard). As to the review AT 
declared that this provision does not need transposition. 

HU has not transposed this Article. Neither has FR but relevant provisions existing in national 
legislation have been invoked. 

Article 12 – Termination of enforcement  

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No declaration based on Article 20(2)(b) has been received so far in relation to limitation of application 
of provisions concerning the liability of legal persons for a period up to five years from the date of entry 
into force of the Framework Decision. 

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This  Article  provides  for  the  obligation  to  inform  the  competent  authority  forthwith  of  the 
executing  State  of  any  decision  or  measure  as  a  result  of  which  the  decision  ceases  to  be 
enforceable or is withdrawn from the executing State for any other reason. As a result of such 
information the executing State is obliged to terminate enforcement of the decision. 

AT, CZ, DK, FI, FR, HU, LT, LV, NL and SI have transposed this provision entirely. EE has 
not implemented this Article. 

Article 13 - Accrual of monies obtained from enforcement of decisions  

This Article states that monies obtained from the enforcement of decisions shall accrue to the 
executing State unless otherwise agreed, especially in cases where there are victims that are 
not parties to civil proceedings. 

This Article has been implemented by AT, CZ, DK, FI, FR, HU, LT, NL, SI. EE and LV have 
not implemented this provision. 

Article 14 - Information from the executing State 

According  to  this  Article  the  competent  authority  of  the  executing  State  shall  inform  the 
competent  authority  of  the  issuing  State  without  delay  of  decisions  made  in  relation  to 
recognition or execution. 

AT,  CZ,  FI,  HU,  LT,  LV,  NL,  SI  have  implemented  this  Article.  FR  has  implemented  this 
Article apart from the case of conversion of penalties that is not laid down by national law in 
FR. 

EE  has  not  implemented  this  provision.  DK  stated  that  this  provision  does  not  require 
transposition. 

Article 15 – Consequences of transmission of a decision 

This Article deals with cases when the issuing State, by way of exception, can proceed with 
the execution. 

Apart from EE all Member States who have sent notifications have implemented this Article. 

Article 16 – Languages 

Article 16 states that the certificate must be translated into the official language or one of the 
official languages of the executing State. However any Member State may at any time declare 
that it will accept a translation in one or more other official languages.  

The majority of Member States require a translation in their own official language (AT, CZ, 
DK,  FR,  HU).  Others  will  accept  English  in  addition  (EE,  LT,  LV,  NL,  SI).  FI  will  accept 
certificates in Finnish, Swedish or English and in other languages if there are no impediments 
to the approval of the certificate. 

Article 17 – Costs 

This  Article  states  that  Member  States  shall  not  claim  from  each  other  a  refund  of  costs 
resulting  from  application  of  this  instrument.  AT,  CZ,  FI,  NL,  SI  have  implemented  this 

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Article. EE, HU and LV have not. DK, FR and LT stated that this provision does not require 
transposition.  

3. 

CONCLUSIONS 

The degree of implementation of Council Framework Decision 2005/214/JHA of 24 February 
2005 in the national legislation of the Member States of the European Union can not be fully 
assessed at  this stage. The  transposition is  not  satisfactory  as only  eleven  notifications have 
been provided by Member States.  

The  national  implementing  provisions  generally  are  in  line  with  the  Framework  Decision, 
especially regarding the most important issues such as abolishing dual criminality checks and 
the recognition of decisions without further formality. Unfortunately the analysis of grounds 
for  refusal  of  recognition  or  execution  proved  once  again  that  whereas  almost  all  Member 
States  transposed  them,  they  were  implemented  mostly  as  obligatory  grounds.  Furthermore, 
some additional grounds were added. This practice in clearly not in line with the Framework 
Decision. 

The Commission invites all Member States to consider this Report and to take the opportunity 
to provide all further relevant information to the Commission and to the Council Secretariat, 
in order to fulfil their obligations under Article 20 of the Framework Decision. In addition, the 
Commission  encourages  those  Member  State  that  have  signalled  that  they  are  preparing 
relevant legislation to enact and notify these national measures as soon as possible. 

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