Opinion of Advocate General Bobek delivered on 2 September 2021.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2021:683
• Date: 02 September 2021

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 2 September 2021(1)

Case C‑338/20

Prokuratura Rejonowa Łódź-Bałuty

(Request for a preliminary ruling from the Sąd Rejonowy dla Łodzi-Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź, Poland))

(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Mutual recognition – Financial penalties – Framework Decision 2005/214/JHA – Grounds for non-recognition and non-execution – Failure to provide a translation of the decision being enforced – Linguistic rights – Right to a fair trial)

I. Introduction

1. In 2019, a driver with permanent residence in Poland was stopped in the Netherlands by the local police. With the assistance of a Polish-speaking interpreter, contacted via telephone, the police informed the driver that he had infringed the highway code and that a fine would be imposed upon him.

2. Thereafter, the competent administrative authorities in the Netherlands adopted the decision imposing the financial penalty and served that decision on the driver by mail. Although that decision was drafted in Dutch, certain information relating to that decision was also summarily provided in French, English and German, together with a reference to a website with information in additional languages, including Polish. As that decision was not appealed, it became final.

3. In the main proceedings, the Polish court having jurisdiction on the matter must rule on an application from the Netherlands’ authorities for the enforcement of the penalty decision. The driver opposes that on the ground that he has not received a translated version of that decision in Polish.

4. In such circumstances, is the Polish court required – pursuant to the provisions of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (2) – to recognise and order the execution of that decision? Or, should that court oppose the recognition and execution of that decision for a breach of the driver’s right to a fair trial? That is, in essence, the question that has been referred to this Court in the present proceedings.

II. Legal framework

A. EU law

5. Recitals 2 and 4 of Framework Decision 2005/214 state:

‘(2) The principle of mutual recognition should apply to financial penalties imposed by judicial or administrative authorities for the purpose of facilitating the enforcement of such penalties in a Member State other than the State in which the penalties are imposed.

…

(4) This Framework Decision should also cover financial penalties imposed in respect of road traffic offences.’

6. Article 1, entitled ‘Definitions’, provides that, for the purposes of that 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;

…

(b) “financial penalty” shall mean the obligation to pay:

(i) a sum of money on conviction of an offence imposed in a decision;

…’

7. Article 5(1) of Framework Decision 2005/214, delineates the scope and states:

‘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,

…’

8. Article 6 of Framework Decision 2005/214 states that ‘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’.

9. Article 7(3) of that framework decision, which concerns the grounds for non-recognition and non-execution, provides:

‘In cases referred to in paragraphs 1 and 2(c) and (g), 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.’

10. Article 20(3) of that framework decision provides that ‘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’.

B. Polish law

11. Article 611fg(1)(9) of the Kodeks Postępowania Karnego (Code of Criminal Procedure) entitles a Polish court to refuse enforcement of a final decision on financial penalties if the content of the certificate shows that the person to whom the decision relates has not been duly instructed about the possibility of appealing against that decision and his or her right to do so.

C. Dutch law

12. The Centraal Justitieel Incassobureau (Central Fine Collection Agency, Netherlands) (‘the CJIB’) is the central administrative authority responsible for the collection and recovery of claims resulting from penalty notices issued in connection with offences committed in the territory of the Kingdom of the Netherlands. A penalty notice issued by the CJIB may be appealed before the officier van justitie (the public prosecutor’s office, Netherlands) within six weeks.

III. Facts, national proceedings and the question referred

13. On 11 July 2019, D.P. – a Polish national and resident – was stopped in the Netherlands by the local police. With the assistance of a Polish-speaking interpreter, contacted via telephone (‘tolkentelefoon’), the police informed the driver, in Polish, that an infringement of the highway code had been committed as the vehicle was being driven with two tyres that did not meet the profile requirements. The police also informed the driver that a fine of EUR 210 would be imposed upon him, that he had the right to remain silent, that he had the right to information and translation, and, finally, explained the means to challenge the fine.

14. On 22 July 2019, the decision imposing the fine (‘the contested decision’) was adopted and served by the CJIB to the driver by mail. That decision was drafted in Dutch, but accompanied by (i) a translation into French, English and German of the main elements thereof, and (ii) a reference in those languages to the CJIB website which includes, also in Polish, information regarding, inter alia, the means available to challenge the decision or to seek more information from the CJIB.

15. The contested decision became final in September 2019 since it had not been appealed.

16. On 21 January 2020, the Sąd Rejonowy dla Łodzi-Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź, Poland) received an application from the CJIB for the enforcement of the financial penalty imposed on the driver.

17. That court asked the CJIB to indicate whether the contested decision had been delivered to D.P. together with a translation thereof into Polish. The CJIB replied in the negative. Before the referring court, D.P. confirmed that, in November/December 2019, he had received a letter from the Netherlands. However, the driver claimed that he was unable to understand the contents of the letter because it did not include information in Polish.

18. On 7 July 2020, harbouring doubts as to the correct interpretation of the relevant provisions of Framework Decision 2005/214, the Sąd Rejonowy dla Łodzi-Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does the service on a sentenced person of a decision imposing a financial penalty, without providing a translation into a language which the addressee understands, entitle the authority of the enforcing State to refuse to enforce the decision on the basis of the provisions implementing Article 20(3) of Framework Decision [2005/214] on the grounds of a breach of the right to fair trial?’

19. Written observations have been submitted by the Prokuratura Rejonowa Łódź-Bałuty (Regional Public Prosecutor of Łódź, Poland), the Netherlands and Polish Governments, as well as the European Commission. Those parties also replied in writing to the questions put by the Court.

IV. Analysis

20. By its question, the referring court essentially asks whether the provisions of Framework Decision 2005/214 (and, in particular, Article 20(3) thereof) must be interpreted as permitting a national court of the executing State to oppose the recognition and execution of a final decision adopted by the issuing State which requires a financial penalty to be paid by an individual (‘the penalty decision’), where that individual had not been served with a translation of that decision in a language that he or she understands.

21. In the present Opinion, after some preliminary remarks meant to clarify the applicable provisions of EU law (A), I shall deal with the issue raised by the question referred: is an individual entitled to receive, under Framework Decision 2005/214, a translation of the decision whose enforcement is being sought? (B)

A. Preliminary remarks: the relevant legal...