Provisional text

delivered on 3 July 2025 (1)

Case C‑453/24 [Hadenov] (i)

Criminal proceedings

against

BC,

other party:

Sofiyska gradska prokuratura

(Request for a preliminary ruling from the Sofiyski gradski sad (Sofia City Court, Bulgaria))

( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2005/214/JHA – Mutual recognition of financial penalties – Article 7(2)(g) – Ground for non-recognition and non-execution – Informing the person concerned of his or her right to contest the decision imposing a financial penalty and of the time limits for such a legal remedy – Article 7(3) – Obligation to consult the competent authority of the issuing Member State )

I.Introduction

This request for a preliminary ruling concerns the interpretation of Article 6 and Article 7(2)(g) and (3) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, (2) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009. (3)

The request has been made in the context of proceedings instituted by the Bezirkshauptmannschaft Neusiedl am See (administrative authority of the district of Neusiedl am See, Austria; ‘the BHM’) in order to obtain the recognition and execution, in Bulgaria, of a financial penalty imposed on BC in Austria for failure to pay a motorway toll.

Under Article 6 of Framework Decision 2005/214, the competent authorities in the executing State are obliged to recognise a decision which has been transmitted in accordance with Article 4 of that framework decision without any further formality being required and forthwith to 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 of that framework decision.

The Sofiyski gradski sad (Sofia City Court, Bulgaria), which is the referring court, envisages applying the discretionary ground for non-recognition and non-execution set out in Article 7(2)(g) of Framework Decision 2005/214.

Under that provision, the competent authority in the executing State may refuse to recognise and execute a decision imposing a financial penalty if it is established that, according to the certificate provided for in Article 4 of that framework decision, the person concerned, in the case of a written procedure, was not, in accordance with the law of the issuing Member State, informed personally or via a representative, competent according to national law, of his or her right to contest the case and of the time limits for such a legal remedy.

However, Article 7(3) of Framework Decision 2005/214 provides that, before deciding, on the basis inter alia of that ground, not to recognise and to execute a decision, either totally or in part, the competent authority in the executing Member State must consult the competent authority in the issuing Member State, by any appropriate means, and must, where appropriate, ask it to supply any necessary information without delay.

By its questions, the referring court asks the Court to clarify the purpose and scope of that obligation to consult and the allocation of powers as between the authorities of the issuing Member State and the executing Member State.

II.The facts of the main proceedings and the questions referred for a preliminary ruling

On 24 November 2023, the BHM made a decision imposing on BC, a Bulgarian national, a financial penalty in the amount of EUR 350 (‘the decision of 24 November 2023’) for infringement of several provisions of the Bundesstrassen Mautgesetz 2002 (Law on federal road tolls), (4) of 16 July 2002. That decision became final on 12 January 2024.

The BHM brought the matter before the Sofiyski gradski sad (Sofia City Court), the competent authority for execution pursuant to Framework Decision 2005/214, with a view to the recognition and enforcement of the decision of 24 November 2023.

The certificate (5) accompanying that decision, which was provided to that court, states that the case was subject to a written procedure and that, in accordance with Austrian law, BC had been informed, personally or via a competent representative, of his right to contest the case and of the time limits for such a legal remedy and that he had not contested the case within the period prescribed. That certificate is accompanied by the decision of 24 November 2023, in Bulgarian and German, stating the offence, the fine imposed, and the means and the time limit for contesting that fine, namely two weeks. It is apparent from the way in which that decision is drafted that it was sent to be served on the penalised person.

However, the certificate also contains the mention ‘without acknowledgement of receipt’.

The referring court infers from that mention that there is no proof that the decision of 24 November 2023 was actually served on BC. Furthermore, during the recognition and enforcement procedure relating to that decision, that court established that BC had given two addresses to the Bulgarian local authority: a ‘permanent address’, which is the one that appears in the certificate and in the said decision, and a ‘current address’. However, BC could not be contacted at either of those two addresses and did not have any contact with the lawyer who had been appointed for him by the court.

That lawyer opposes the recognition and enforcement of the decision of 24 November 2023, arguing inter alia that that decision was not served on BC and that he has been unable to exercise his right to contest it.

The fact that there is no proof that BC was duly informed of the decision of 24 November 2023, together with the referring court’s finding that BC does not live at the address to which that decision was sent, lead that court to consider that Article 7(2)(g) of Framework Decision 2005/214 is applicable. BC was not informed, personally or through an authorised representative, of the decision of 24 November 2023 and of his right to contest that decision.

Furthermore, the lack of information in the certificate as to whether the decision was actually served also suggests, in the view of the referring court, that Article 20(3) of that framework decision (6) was not complied with as regards the right of the penalised person, which he or she derives from Article 6(3) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, (7) to be informed of the accusation, and as regards the right of the penalised person, which he or she derives from Article 8(6) of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, (8) to participate in any judicial proceedings, after the written phase of the procedure.

However, given that the ground for refusal set out in Article 7(2)(g) of Framework Decision 2005/214 is discretionary, the referring court believes that it has a choice between two ways of proceeding. It could refuse to recognise and execute the decision of 24 November 2023, which would undermine the mechanism of judicial cooperation in criminal matters and foster impunity. Alternatively, it could recognise and execute that decision, which would violate the rights which BC derives from EU law.

The referring court therefore wonders whether it would be possible to proceed in a third way so as to respect all protected interests by guaranteeing, as a first step, the right of the penalised person to contest the case and to participate personally in the subsequent proceedings and then, as a second step, by recognising the decision imposing a financial penalty if it is not annulled following the contestation made, where applicable, by that person.

More specifically, the referring court proposes cooperating with the authority which issued that decision so that the penalised person may be granted a right to contest the case, given that he has been deprived of that right as a result of the lack of actual service of the said decision.

In practice, the competent authority of the executing Member State contacts the competent authority of the issuing Member State to ask it whether, having regard to the fact that the decision imposing a financial penalty was not duly served, the penalised person has the right to contest that decision either by way of an initial action, if that authority considers that the time limit for contesting the case has not started to run, or following the restoration of the status quo ante.

In the first place, in the event of an affirmative answer from the competent authority of the issuing Member State specifying, if appropriate, the time limit within which that person may contest the case, the competent authority of the executing Member State could, using any means available to it under its national law, duly serve the decision imposing a financial penalty on the said person and inform him or her of that time limit. The ground for non-recognition and non-execution provided for in Article 7(2)(g) of Framework Decision 2005/214 would then no longer be applicable.

The competent authority of the executing Member State could suspend the proceedings before it pending the outcome of the contestation made by the penalised person. If that person did not seek a remedy or if such a remedy were refused, that would remove the obstacle to the recognition and execution of the decision imposing a financial penalty.

In the second place, in the event that the competent authority of the issuing Member State replied to the competent authority of the executing Member State that there are no more possibilities of a remedy, that authority might be led to refuse to recognise and execute the decision on the ground provided for in Article 7(2)(g) of Framework Decision 2005/214.

According to the referring court, that approach would tend to strengthen the effectiveness of cooperation between the competent authorities of the Member States and the protection of the rights that penalised persons derive from EU law. Such an approach would also be consistent with the principle of mutual recognition. (9)

That court states that Bulgarian law requires the competent authority of the executing Member State to inform the person concerned of the decision imposing a financial penalty and subsequently to hear that person. (10) Moreover, Bulgarian law permits that authority to request additional information from the authority which issued that decision without imposing restrictions on the scope of such a request. (11) In addition, Bulgarian law requires the Bulgarian court having jurisdiction to consult that authority before refusing to recognise the decision imposing a financial penalty. (12)

Furthermore, Bulgarian law obliges the Bulgarian court having jurisdiction to inform the penalised person of his or her rights in the context of the national procedure for recognition of the decision imposing a financial penalty. (13) While specifying that that obligation is not intended to be applied to the penalty procedure which has already been conducted in the issuing Member State, the referring court considers that it can be interpreted broadly. Thus, on the basis of an express request from the authority which issued the decision imposing a financial penalty, the competent authority of the executing Member State could inform the penalised person of the rights available to him or her in the context of the procedure for issuing that decision, and in particular of the possibilities of contesting the said decision.

In support of its suggested approach, the referring court refers to the case-law of the Court from which it follows that Article 6 of Directive 2012/13 does not preclude legislation of a Member State under which the two-week period for lodging an objection against a penalty order begins to run from the date on which that order is served on the person appointed by the subject of that order to accept service on his or her behalf, provided that, as soon as the person concerned becomes aware of it, he or she actually has a period of two weeks in which to lodge an objection against that order, where necessary following or in the course of a procedure for the person’s position to be restored to the status quo ante. (14) That court observes that, in that situation, the convicted person has the right to apply for and be granted restoration of the status quo ante. According to the said court, the mechanism that it proposes could be sufficiently effective if the Austrian authorities consider it possible to interpret Austrian law in the same or in a similar manner.

The referring court also states that, in so far as the Court has already indicated, with regard to Directive 2012/13, that that directive does not regulate the procedures whereby information about the accusation must be provided to the accused person, (15) there is nothing to prevent the competent authority of the executing Member State from assisting the competent authority of the issuing Member State with regard to the mandatory communication of information to the penalised person.

The referring court states, moreover, that the Court has accepted that it is possible to inform the accused person of the accusation only at the stage of execution of a final judicial decision, emphasising the right of defence after the accused has been informed. (16)

However, the referring court questions whether it would be compatible with Framework Decision 2005/214 for the competent authority of the executing Member State to play such a role in providing information to the penalised person.

That court notes that that framework decision contains no indications to that effect. In particular, it points out that the consultation procedure provided for in Article 7(3) of the said framework decision concerns the collection of certain information and does not pertain to measures intended to effect a communication of information which has not taken place until then.

In those circumstances, the Sofiyski gradski sad (Sofia City Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘Can the obligation relating to recognition under Article 6 of Framework Decision 2005/214, the power to consult under Article 7(3) of that decision, and the principle of preventing impunity, be interpreted as conferring on the executing authority, where it has established that there is an optional ground for refusal under Article 7(2)(g) … of that decision, the power to:

(a)consult the issuing authority in accordance with Article 7(3) of the Framework Decision to determine whether the penalised person has a current possibility of raising an objection to the decision imposing a financial penalty;

(b)if the answer is in the affirmative, serve the decision imposing a financial penalty on the penalised person and inform him or her of the right to object;

(c)await the outcome of any objection and take it into account in its decision as to the merits[?]’

Written observations have been submitted by the European Commission.

III.Analysis

The referring court needs to make a ruling on the recognition and execution of a decision imposing a financial penalty under Framework Decision 2005/214. That court begins from the finding that the discretionary ground for non-recognition and non-execution provided for in Article 7(2)(g) of that framework decision might be applicable because of contradictory mentions in the certificate provided for in Article 4 of the said framework decision. Thus, the referring court may either refuse to recognise and execute the decision imposing a financial penalty or recognise and execute it despite that finding.

Before making its ruling, however, the referring court wishes to know whether Framework Decision 2005/214 may be interpreted in such a way as to enable it, as the competent authority of the executing Member State, to remedy the defect affecting the service of the decision at issue, that defect being capable of leading to the application of the discretionary ground for non-recognition and non-execution provided for in Article 7(2)(g) of that framework decision. In particular, the referring court is uncertain as to how and to what extent it may provide assistance to the competent authority of the issuing Member State in order to remove that ground.

A.The first question referred

By its first question, the referring court asks the Court, in essence, to rule on whether Article 6 and Article 7(2)(g) and (3) of Framework Decision 2005/214 must be interpreted as meaning that the obligation of the competent authority of the executing Member State to consult the competent authority of the issuing Member State before it can decide not to recognise and execute a decision imposing a financial penalty, in the case of a written procedure, may concern the existence of a possibility for the penalised person to contest that decision under the law of the issuing Member State.

1.Admissibility

36.The Commission submits that this question is hypothetical and therefore inadmissible. It notes that, under Article 7(3) of Framework Decision 2005/214, the competent authority of the executing Member State is required to consult the competent authority of the issuing Member State before deciding not to recognise and to execute the decision imposing a financial penalty. The referring court has already, however, found the existence of the ground for non-recognition and non-execution provided for in Article 7(2)(g) of that framework decision, which it may not do until it has consulted the competent authority of the issuing Member State. This leads the Commission to doubt the relevance of the first question unless and until that authority has been consulted.

37.In that regard, it follows from the Court’s case-law that, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case in the main proceedings, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling. (17)

38.It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (18)

39.In the present case, it seems to me to follow clearly from the explanations provided by the referring court in its request for a preliminary ruling that it wishes, by its first question, to have clarification as to the purpose and scope of the obligation to consult the competent authority of the issuing Member State laid down in Article 7(3) of Framework Decision 2005/214 so as to be able take a position, once that consultation has taken place, on the possible application of the ground for non-recognition and non-execution set out in Article 7(2)(g) of that framework decision. That question therefore cannot, to my mind, be deemed inadmissible.

2.Substance

40.As a preliminary matter, it must be recalled that, as is apparent in particular from Articles 1 and 6 and from recitals 1 and 2 of Framework Decision 2005/214, that framework decision is intended to establish an effective mechanism for cross-border recognition and execution of final decisions requiring a financial penalty to be paid by a natural or legal person following the commission of one of the offences listed in Article 5 of that framework decision. (19)

41.That framework decision, while not harmonising the legislation of the Member States in the field of criminal law, seeks to ensure the enforcement of financial penalties in those States by virtue of the principle of mutual recognition. (20)

42.The principle of mutual recognition, which underlies the scheme of Framework Decision 2005/214, means that, in accordance with Article 6 of that framework decision, the Member States are, as a rule, obliged to recognise a decision requiring payment of a financial penalty which has been transmitted in accordance with Article 4 of the framework decision without any further formality being required, and to take without delay all the measures necessary for its enforcement, and that the grounds for refusal to recognise or enforce such a decision must be interpreted restrictively. (21)

43.As regards those grounds, Article 7 of the said framework decision expressly lists, in paragraphs 1 and 2 thereof, the grounds for non-recognition and non-execution of decisions falling within its scope.

44.Furthermore, in accordance with Article 3 of Framework Decision 2005/214, that framework decision is not to have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU. That is why Article 20(3) of that framework decision also provides that the recognition and execution of a decision imposing a financial penalty may be refused by the competent authority of the executing Member State in the event of infringement of fundamental rights or of fundamental legal principles, as enshrined in Article 6 TEU. (22)

45.Consequently, where the certificate referred to in Article 4 of Framework Decision 2005/214, accompanying the decision imposing a financial penalty, gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 TEU may have been infringed, the competent authorities of the executing State may refuse to recognise and execute such a decision where one of the grounds for non-recognition and non-execution listed in Article 7(1) and (2) of the framework decision arises as well as by virtue of Article 20(3) thereof. (23)

46.Thus, the addressees of a decision falling within the scope of Framework Decision 2005/214 are entitled to rely on the fundamental rights enshrined, in particular, in the second paragraph of Article 47 and in Article 48(2) of the Charter of Fundamental Rights of the European Union, and the authorities of the Member States must accordingly ensure that those rights are respected. (24)

47.In its request for a preliminary ruling, the referring court draws particular attention to Article 7(2)(g) of Framework Decision 2005/214, under which the competent authority in the executing Member State may refuse to recognise and execute a decision if it is established that, according to the certificate provided for in Article 4 of that framework decision, the person concerned, in the case of a written procedure, was not, in accordance with the law of the issuing Member State, informed personally or via a representative, competent according to national law, of his or her right to contest the case and of the time limits for such a legal remedy.

48.The Court has observed that Framework Decision 2005/214 does not lay down the particular manner in which the addressee of a decision, within the meaning of Article 1(a) of that framework decision, imposing on him or her a financial penalty must be informed of that penalty. (25) According to the Court, by thus referring to the legislation of the Member States, the EU legislature left it to the Member States to decide on the manner in which the person concerned is to be informed of his or her right to contest the case, of the period for such a legal remedy and of when that period begins, provided that the notification is effective and that the right to effective judicial protection and the exercise of the rights of the defence are guaranteed. (26)

49.In that context, the Court has recalled that respect for the right to effective judicial protection requires not only the guarantee of actual and effective receipt of decisions, that is to say, the notification of those decisions to the addressees thereof, but also that such notification allow those addressees to ascertain the reasons upon which the decision taken in relation to them is based, as well as the legal remedies against such a decision and the time limit prescribed to that end, so as to allow them to defend their rights effectively and to decide, in full knowledge of the relevant facts, whether there is any point in challenging that decision before the courts. (27)

50.In the event of doubts, which may arise, as in the present case, from mentions which could be seen as contradictory in the certificate provided for in Article 4 of Framework Decision 2005/214, it is for the competent authority of the executing Member State to verify, having regard to the circumstances of the case, whether the person concerned was in fact informed, in accordance with the law of the issuing Member State, of his or her right to contest the case and of the time limits for such a legal remedy. (28) That verification must be carried out with the competent authority of the issuing Member State in accordance with the procedure provided for in Article 7(3) of that framework decision.

51.In that regard, I recall that that provision provides that, in cases referred to inter alia in Article 7(2)(g) of Framework Decision 2005/214, before deciding not to recognise and to execute the decision imposing a financial penalty, the competent authority in the executing State is obliged to consult the competent authority in the issuing State, by any appropriate means, and, where appropriate, ask it to supply any necessary information without delay. In order to ensure the effectiveness of that framework decision and, in particular, respect for fundamental rights, the authority in the issuing Member State is obliged to provide that information. (29)

52.In the context of the present case, the obligation to consult the competent authority of the issuing Member State, which the competent authority of the executing Member State must implement where it envisages refusing to recognise and execute a decision imposing a financial penalty, must seek to obtain information capable of dispelling the uncertainty as to whether that decision was indeed served in accordance with the national law of the issuing Member State, together with an indication of the right to contest the case and of the time limit for doing so.

53.To be able to find that the penalised person has been in a position to contest the decision imposing a financial penalty on him or her, that person must have been aware of the content of that decision, which assumes that it was duly served on him or her.

54.I note, moreover, that, in defining the concept of ‘decision’, Article 1(a) of Framework Decision 2005/214 refers in particular to a ‘final decision requiring a financial penalty to be paid by a natural or legal person’. (30) The fact that that provision requires that the decision imposing a financial penalty be ‘final’ in nature highlights the particular importance accorded to the incontestable nature of that decision. That obviously excludes decisions which are or which may be the subject of an appeal. (31)

55.The condition relating to the final nature of the decision imposing a financial penalty must therefore be satisfied in order for that decision to be recognised and executed in the executing Member State. (32) Thus, at the time of the request, by the competent authority of the issuing Member State, seeking the recognition and execution of such a decision, the penalised person must no longer have the possibility of contesting that decision.

56.I note, however, that, depending on what is provided for in the legislation of the issuing Member State, the failure to inform the penalised person of his or her right to contest the decision imposing a financial penalty on him or her and of the time limit for doing so is liable to call into question the finality of that decision, in so far as that person could be given the opportunity to contest the said decision from the moment when he or she becomes aware of that information, where appropriate following an application for restoration of the status quo ante. It should be pointed out that the purpose of such an application, which falls exclusively within the competence of the authorities of the issuing Member State, would be to restore that person’s right to contest the decision after the expiry of the period prescribed by law for the exercise of that right. (33)

57.In view of its connection with the condition relating to the finality of the decision imposing a financial penalty, I consider that the competent authority of the executing Member State must have the possibility of consulting the competent authority of the issuing Member State on that aspect.

58.I therefore propose that the Court’s answer to the first question referred be that Article 6 and Article 7(2)(g) and (3) of Framework Decision 2005/214 must be interpreted as meaning that the obligation of the competent authority of the executing Member State to consult the competent authority of the issuing Member State before it can decide not to recognise and execute a decision imposing a financial penalty, in the case of a written procedure, may concern the existence of a possibility for the penalised person to contest that decision under the law of the issuing Member State.

B.The second and third questions referred

59.By these questions, which should, in my view, be examined together, the referring court asks the Court, in essence, to rule on whether Article 6 and Article 7(2)(g) and (3) of Framework Decision 2005/214 must be interpreted as meaning that, where it becomes apparent from the consultation of the competent authority of the issuing Member State, first, that the decision imposing a financial penalty, in the case of a written procedure, was not served in accordance with the law of that Member State together with an indication of the right to contest that decision and of the time limit for doing so and, second, that the penalised person may still have, under the law of the said Member State, a possibility of contesting that decision from the moment when he or she becomes aware of it, the competent authority of the executing Member State is empowered to serve the said decision on that person, informing him or her of his or her right to contest it and of the time limit for doing so, and to suspend the procedure for recognition and execution of the same decision pending the outcome of any contestation against it.

60.Thus, the referring court wishes to know whether Framework Decision 2005/214 may be interpreted in such a way as to allow the competent authority of the executing Member State to remedy any defect affecting the service of the decision imposing a financial penalty capable of leading that authority to invoke the ground for non-recognition and non-execution set out in Article 7(2)(g) of that framework decision. From that perspective of regularising a situation corresponding to the terms of that provision, in which the penalised person has not been informed of his or her right to contest the case and of the time limits for such a legal remedy, the referring court seeks to ascertain, in particular, whether and to what extent it may provide assistance to the competent authority of the issuing Member State in that regard.

61.In short, that court wishes to know what role it can play, as the competent authority of the executing Member State, in order to inform the penalised person of his or her right to contest the case and of the time limit for doing so, where the initial notification, as it was described in the certificate provided for in Article 4 of Framework Decision 2005/214, was defective.

62.As a preliminary matter, I recall that, from the perspective of the potential application of the ground for non-recognition and non-execution provided for in Article 7(2)(g) of Framework Decision 2005/214, the consultation required by Article 7(3) of that framework decision is intended to enable the competent authority of the executing Member State to verify, having regard to the circumstances of the case, whether, given the doubts arising from the mentions in the certificate, the person concerned has in fact been informed, in accordance with the law of the issuing Member State, of his or her right to contest the case and of the time limit for doing so. It is then incumbent on the competent authority of the issuing Member State to provide the competent authority of the executing Member State with the necessary information in that regard.

63.If the information received allows the doubts arising from the mentions in the certificate to be dispelled, the competent authority of the executing Member State will not be able to invoke the ground for non-recognition and non-execution provided for in Article 7(2)(g) of Framework Decision 2005/214. That authority will then be obliged, in accordance with the principle of mutual recognition, which underlies the scheme of the framework decision, to recognise the decision imposing a financial penalty which has been transmitted in accordance with Article 4 of the framework decision without any further formality being required and forthwith to take all the measures necessary for its execution. (34)

64.In the case at hand, I recall that, according to the referring court, it is apparent from the certificate provided for in Article 4 of Framework Decision 2005/214, which was transmitted to the competent authority of the executing Member State, that, in accordance with Austrian law, BC was informed, personally or via a competent representative, of his right to contest the case and of the time limit for doing so, and that he did not contest the case within the time limit prescribed. That certificate is accompanied by the decision of 24 November 2023, in Bulgarian and German, indicating the offence, the fine imposed, and the means and the time limit for contesting that fine, namely two weeks. In addition, it is apparent from the way in which that decision is drafted that it was sent to be served on the penalised person. In the light of those factors and in accordance with the principle of mutual trust, the competent authority of the executing Member State should, in my view, presume that the penalised person has been informed of his or her right to contest the case and of the time limit for doing so, such that the ground for non-recognition and non-execution provided for in Article 7(2)(g) of that framework decision is not, in the absence of evidence to the contrary, applicable.

65.On the contrary, if the consultation of the competent authority of the issuing Member State confirms the doubts of the competent authority of the executing Member State and thus reveals that the decision imposing a financial penalty was not served in accordance with the law of the issuing Member State together with an indication of the right to contest the case and of the time limit for doing so, that authority then has the power, under Article 7(2)(g) of Framework Decision 2005/214, to refuse to recognise and execute that decision.

66.If the consultation of the competent authority of the issuing Member State reveals, additionally, that the penalised person could be given the opportunity to contest that decision from the moment when he or she becomes aware of it, if necessary following an application for restoration of the status quo ante, it is that authority which is competent to regularise, depending on the case, the situation. (35)

67.As the Commission rightly notes in its written observations, there is nothing in Framework Decision 2005/214 to suggest that it confers on the competent authority of the executing Member State the power to intervene in the communication of information to the penalised person relating to his or her right to contest the case in order to remedy the failure to communicate such information on the part of the competent authority of the issuing Member State.

69.The competent authority of the executing Member State must therefore not encroach on the competences of the competent authority of the issuing Member State. It is for that latter authority, after the former has requested information pursuant to Article 7(3) of Framework Decision 2005/214, to remedy, where appropriate, the failure to inform the person subject to a decision imposing on him or her a financial penalty, relating to his or her right to contest the case and of the time limit for doing so.

70.It is apparent, in that regard, from the very wording of Article 7(2)(g) of Framework Decision 2005/214 that informing the penalised person of his or her right to contest the case and of the time limit for doing so must be done in accordance with the law of the issuing Member State. That reference to the law of the issuing Member State reflects the fact that that informing must be done by the competent authority of the issuing Member State, in accordance with its own law. That stage relating to the procedure for imposition of the penalty, which is governed by the law of the issuing Member State, must thus be distinguished from the stage relating to the procedure for execution of the decision imposing a financial penalty which, as Article 9 of the framework decision indicates, is governed by the law of the executing Member State. In accordance with the division of powers between the competent authorities of those two Member States, the competent authority of the executing Member State has no power to substitute itself for the competent authority of the issuing Member State and itself inform the penalised person of his or her right to contest the case and of the time limit for doing so.

71.I would add that, in the situation envisaged by the referring court, namely that in which the penalised person has, under the law of the issuing Member State, a new right to contest the case as from the actual knowledge of the decision imposing on him or her a financial penalty and makes use of that right, the recognition and execution of that decision would give rise to a new procedure necessitating the sending of a new certificate containing updated information. That rules out the solution proposed by that court consisting in suspending the initial procedure for recognition and execution of that decision pending the outcome of any contestation against the said decision.

72.It follows, in my view, that, contrary to what the referring court suggests, the competent authority of the executing Member State does not have the power, under Framework Decision 2005/214, to serve on the penalised person the decision imposing a financial penalty and to inform him or her of the right to contest the case and of the time limit for doing so and to suspend the procedure for recognition and execution of that decision pending the outcome of any contestation against it.

73.To conclude, I would specify that, although the competent authority of the executing Member State does not have the power to carry out the actions described in the preceding point of this Opinion, it would be consistent with the objective of strengthening the mutual recognition of decisions imposing financial penalties for cooperation between the authorities of that Member State and those of the issuing Member State to continue, if necessary, so that the penalised person can actually have adequate information. With that in mind, the competent authorities of the issuing Member State could request assistance from the competent authorities of the executing Member State, particularly where that person is in the territory of that Member State. (36)

IV.Conclusion

74.Having regard to all the foregoing considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Sofiyski gradski sad (Sofia City Court, Bulgaria) as follows:

Article 6 and Article 7(2)(g) and (3) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009,

must be interpreted as meaning that:

(1)the obligation of the competent authority of the executing Member State to consult the competent authority of the issuing Member State before it can decide not to recognise and execute a decision imposing a financial penalty, in the case of a written procedure, may concern the existence of a possibility for the penalised person to contest that decision under the law of the issuing Member State;

(2)where it becomes apparent from the consultation of the competent authority of the issuing Member State, first, that the decision imposing a financial penalty, in the case of a written procedure, was not served in accordance with the law of that Member State together with an indication of the right to contest that decision and of the time limit for doing so and, second, that the penalised person may still have, under the law of the said Member State, a possibility of contesting that decision from the moment when he or she becomes aware of it, the competent authority of the executing Member State is not empowered to serve the said decision on that person, informing him or her of his or her right to contest it and of the time limit for doing so, and to suspend the procedure for recognition and execution of the same decision pending the outcome of any contestation against it.

—

1Original language: French.

iThe name of this case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.

2OJ 2005 L 76, p. 16.

3OJ 2009 L 81, p. 24; ‘Framework Decision 2005/214’.

4BGBl. I, 109/2002.

5See Article 4 of and the annex to Framework Decision 2005/214.

6Under that provision, each Member State may, where the certificate referred to in Article 4 of Framework Decision 2005/214 gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 TEU may have been infringed, oppose the recognition and the execution of decisions. The procedure referred to in Article 7(3) of that framework decision is to apply in that situation.

7OJ 2012 L 142, p. 1. That provision provides that Member States are to ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person.

8OJ 2016 L 65, p. 1. According to that provision, Article 8 of that directive, which is devoted to the right of the accused to be present at his or her trial, is to be without prejudice to national rules that provide for proceedings or certain stages thereof to be conducted in writing, provided that that complies with the right to a fair trial.

9The referring court refers, in that regard, to the judgment of 5 December 2019, Centraal Justitieel Incassobureau (Recognition and execution of financial penalties) (C‑671/18, EU:C:2019:1054, paragraphs 31, 33 and 44).

10See Article 16(4) of the Zakon za priznavane, izpalnenie i izprashtane na aktove za konfiskatsia ili otnemane i reshenia za nalagane na finansovi sanktsii (Law on the recognition, execution and transmission of orders for confiscation or seizure and decisions imposing financial penalties) (DV No 15 of 23 February 2010; ‘the Law on recognition’).

11See Article 16(5) of the Law on recognition.

12See Article 32(3) of the Law on recognition.

13See Article 32(4) of the Law on recognition.

14See judgments of 22 March 2017, Tranca and Others (C‑124/16, C‑188/16 and C‑213/16, EU:C:2017:228, paragraphs 47, 48 and 51), and of 14 May 2020, Staatsanwaltschaft Offenburg (C‑615/18, EU:C:2020:376, paragraphs 60 and 77).

15That court refers to the judgments of 15 October 2015, Covaci (C‑216/14, EU:C:2015:686, paragraph 62), and of 6 October 2021, Prokuratura Rejonowa Łódź-Bałuty (C‑338/20; ‘the judgment in Prokuratura Rejonowa Łódź-Bałuty’, EU:C:2021:805, paragraph 33).

16The referring court refers, in this regard, to the judgment of 22 March 2017, Tranca and Others (C‑124/16, C‑188/16 and C‑213/16, EU:C:2017:228, paragraphs 47 and 51).

17See, inter alia, judgment of 6 October 2021, LU (Recovery of road traffic fines) (C‑136/20; the ‘judgment in LU (Recovery of road traffic fines)’, EU:C:2021:804, paragraph 29 and the case-law cited).

18See, inter alia, judgment in LU (Recovery of road traffic fines) (paragraph 30 and the case-law cited).

19See, inter alia, judgments in LU (Recovery of road traffic fines) (paragraph 36 and the case-law cited), and in Prokuratura Rejonowa Łódź-Bałuty (paragraph 22 and the case-law cited).

20See, in particular, judgments in LU (Recovery of road traffic fines) (paragraph 37 and the case-law cited), and in Prokuratura Rejonowa Łódź-Bałuty (paragraph 23 and the case-law cited).

21See, inter alia, judgments in LU (Recovery of road traffic fines) (paragraph 38 and the case-law cited), and in Prokuratura Rejonowa Łódź-Bałuty (paragraph 24 and the case-law cited).

22See, inter alia, judgment in Prokuratura Rejonowa Łódź-Bałuty (paragraph 26 and the case-law cited).

23See, inter alia, judgment in Prokuratura Rejonowa Łódź-Bałuty (paragraph 27 and the case-law cited).

24See judgment in Prokuratura Rejonowa Łódź-Bałuty (paragraph 30).

25See judgment in Prokuratura Rejonowa Łódź-Bałuty (paragraph 32).

26See, inter alia, judgment in Prokuratura Rejonowa Łódź-Bałuty (paragraph 33 and the case-law cited).

27See, inter alia, judgment in Prokuratura Rejonowa Łódź-Bałuty (paragraph 34 and the case-law cited).

28See, to that effect, judgment of 5 December 2019, Centraal Justitieel Incassobureau (Recognition and execution of financial penalties) (C‑671/18, EU:C:2019:1054, paragraph 42).

29See, inter alia, judgment in LU (Recovery of road traffic fines) (paragraph 50 and the case-law cited).

30Emphasis mine.

31See, by analogy, judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State) (C‑314/18, EU:C:2020:191, paragraph 52 and the case-law cited).

32In point (g)(1) of the certificate provided for in Article 4 of Framework Decision 2005/214, the competent authority of the issuing Member State must indicate the date on which the decision imposing the financial penalty became final. In point (h)(1)(a) of that certificate, that authority must tick the box indicating that that decision is final.

33See, by analogy, judgment of 7 July 2016, Lebek (C‑70/15, EU:C:2016:524, paragraph 42).

34See judgment of 5 December 2019, Centraal Justitieel Incassobureau (Recognition and execution of financial penalties) (C‑671/18, EU:C:2019:1054, paragraph 43).

35It is necessary, in such circumstances, to envisage the possibility of the issuing Member State to request the termination of enforcement pursuant to Article 12 of Framework Decision 2005/214.

36The Commission mentions, in that respect, the possibility of the competent authorities of the issuing Member State to make a request for mutual assistance on the basis of Article 5 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, established in accordance with Article 34 of the Treaty on European Union by the Council Act of 29 May 2000 (OJ 2000 C 197, p. 3).