Application of the principle of mutual recognition to financial penalties based on article 20 of the Council Framework Decision 2005/214/JHA
Author | Cristina Salca Rotaru |
Position | Department of Private Law, <I>Transilvania</I> University of Braşov. |
Pages | 233-238 |
Page 233
Framework Decision 2005/214/JHA [1] 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.
Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 22 March 2007. In concordance with article 20 (5), 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 Commission, the Council shall, no later than 22 March 2008, assess the extent to which Member States have complied with this Framework Decision.Page 234
On the basis of this transmission the following results:
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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, CZ, DK, EE, FI, FR, HU, LT, LV, NL, SI. 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.
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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 Union. [2] 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 purpose of this Report is limited to an evaluation of the transposition measures taken by the eleven Member States.
Regarding the most important article from de Decision, we can conclude the following:
1) 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 legislation. [3]
2) 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...
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