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 framework
22. At the outset, it may be useful to clarify the legal framework applicable to the case at hand in the main proceedings.
23. According to the information provided by the Netherlands Government, the penalty decision was, in accordance with national law, the result of a procedure that encompassed two stages: an ‘oral’ stage that took place, with the aid of an interpreter, during the roadside check made by the police, and a ‘written’ stage, which took place several weeks later before the CJIB. The decision, the enforcement of which is being sought in the present case, is therefore the one sent to the driver by mail, drafted in Dutch, but with a summary of the information provided in French, English and German, as well as details for reaching the CJIB’s website where more information, including information provided in Polish, could be found.
24. Such a (mixed) procedure is rather different to the form of procedure carried out orally and entirely right away, before the police. To provide an example of the latter, one could imagine a driver who is stopped immediately after committing a road traffic offence (for instance, speeding or going through a red traffic light), accepts the infringement observed by the police and is given a period of time to pay the penalty issued. In this latter scenario, the procedure takes place entirely in the presence of the driver, and the penalty decision – that is, the title that may be enforced – is adopted there and then by the police.
25. That is not the case in the situation at issue in the main proceedings. In the present case, I understand that it is only the final written decision, issued by the CJIB, that, under national law, closes the administrative procedure.
26. Against that background, what are the EU law provisions that are applicable and relevant in the present proceedings?
27. In its question, the referring court asks the Court to interpret the provisions of Framework Decision 2005/214. Indeed, that piece of legislation is applicable in the case at hand.
28. The referring court was asked to recognise and execute a decision transmitted pursuant to Article 4 of Framework Decision 2005/214. The decision to be enforced is, in accordance with Article 1(a)(ii) of Framework Decision 2005/214, ‘a final decision requiring a financial penalty to be paid by a natural or legal person’ that was issued by ‘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’. In addition, Article 5 of Framework Decision 2005/214 includes ‘conduct which infringes road traffic regulations’ among the offences that, when the relevant conditions are fulfilled, should give rise to recognition and enforcement.
29. Conversely, neither Directive (EU) 2015/413 (3) nor Directive 2010/64/EU (4) – which have been referred to as possible ‘sources of inspiration’ for the interpretation of Framework Decision 2005/214 by both the referring court and some of the parties – are applicable ratione materiae in the case at hand.
30. Directive 2015/413, aimed at facilitating the cross-border exchange of information on road-safety-related traffic offences, applies only in respect of the specific offences listed in Article 2 thereof. It is common ground that that list is exhaustive. (5) The infringement of rules concerning tyre-profile requirements does not feature therein. Moreover, as follows in particular from Article 1, Article 4(1), and recitals 2 and 8 of Directive 2015/413, the objective of that instrument is to ensure the effectiveness of the investigation of road-safety-related traffic offences so that a sanction may subsequently be imposed upon the individuals responsible. The enforcement of those sanctions is not the subject matter of Directive 2015/413.
31. Next, as far as Directive 2010/64 on the right to interpretation and translation in criminal proceedings is concerned, Article 1(3) thereof states that ‘where the law of a Member State provides for the imposition of a sanction regarding minor offences by an authority other than a court having jurisdiction in criminal matters, and the imposition of such a sanction may be appealed to such a court, this Directive shall apply only to the proceedings before that court following such an appeal’. (6) Recital 16 makes clear that ‘minor offences’ may encompass ‘traffic offences which are committed on a large scale and which might be established following a traffic control’. That recital also explains that the EU legislature considered that ‘in such situations, it would be unreasonable to require that the competent authority ensure all the rights under [Directive 2010/64]’. (7)
32. In the present case, the individual against whom the execution of the contested decision has been requested has not exercised his right to appeal that decision before the competent Netherlands court. Thus, no judicial proceedings, within which Directive 2010/64 could apply, have been brought. Even if they were, the provisions of Directive 2010/64 would have been applicable in the context of those proceedings, not those currently pending before the referring court.
33. It is, therefore, clear that the situation at issue is governed, as far as EU legislation is concerned, (only) by the provisions of Framework Decision 2005/214. Naturally, if that framework decision is applicable then so too are the provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’). In the present case, the right to a fair trial, enshrined in the second paragraph of Article 47 of the Charter, appears to be particularly relevant.
34. In the light of the foregoing, I shall now turn to the main issue raised by the present proceedings.
B. A right to receive a translation of the decision being enforced under Framework Decision 2005/214?
35. In essence, the question referred raises the issue of whether, pursuant to Framework Decision 2005/214, the penalty decision, the enforcement of which is being sought, must, as a matter of principle, in circumstances where that decision is drafted in a language other than the official language of the executing Member State, be accompanied by a translation thereof.
36. In my view, the answer to that question must be in the negative.
37. First, the provisions of Framework Decision 2005/214 do not contain any express or implied obligation to provide a translation of the original decision the enforcement of which is sought (1). Second, no general obligation to provide a translation derives, in my view, from the general principles of law or fundamental rights to which Article 20(3) of Framework Decision 2005/214 operates a renvoi (2 and 3).
38. To be clear, the above does not exclude that, in certain situations, the failure to provide a translation of a penalty decision could possibly result in an infringement of the right to a fair trial of the addressee, in the context of proceedings that took place in the issuing State, resulting in a legitimate refusal on the part of the executing State to recognise and execute that decision. It simply means that the absence of a translation does not automatically result in a breach of the right to a fair trial. Indeed, the finding of the breach of the addressee’s right to a fair trial requires a case-specific assessment of all the relevant circumstances. In that respect, in the final part of this Opinion, I shall endeavour to provide some guidance to the referring court on how to carry out that assessment in the case at hand (4).
1. The text and objective of Framework Decision 2005/214
39. 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’. (8)
40. The wording of that provision is rather clear: when the requesting authorities comply with the formalities set out in that framework decision, the authorities of the executing State must, in principle, recognise a decision and adopt all measures necessary for its execution. The executing authorities cannot require ‘any further formality’ from the requesting authorities, and cannot refuse recognition and execution, unless one of the grounds for non-recognition and non-execution set out therein applies. Such grounds are listed in Article 7 of Framework Decision 2005/214, and pursuant to the case-law of the Court, another ground for non-recognition may be found in Article 20(3) thereof. (9)
41. Against that backdrop, I observe, first, that no provision of Framework Decision 2005/214 includes, among the formalities to be complied with by the requesting authorities, in order to be allowed to seek the recognition and execution of a decision imposing a financial penalty on an individual, that translation of that decision be provided. (10)
42. Second, a failure to provide a translation of the decision being enforced is not included among the grounds for non-recognition and non-execution set out in Article 7 of Framework Decision 2005/214. This is particularly significant given that the second paragraph of that provision includes failures which – like the one alleged in the present proceedings – may potentially affect the exercise of the addressee’s right of defence. Among those expressly included, one finds, notably, failures to provide the person with adequate information regarding the legal remedies available (Article 7(2)(g)), to properly summon the person before the competent court (Article 7(2)(i)(i)), or to properly serve the person the decision (Article 7(2)(i)(iii)).
43. Moreover, it seems to me that the objective pursued by Framework Decision 2005/214 does support a rigorous reading of Articles 6 and 7 of that framework decision.
44. As the Court has emphasised, Framework Decision 2005/214 is intended ‘to establish an effective mechanism for recognition and cross-border execution of final decisions requiring a financial penalty to be paid by a natural person or a legal person’. (11) In addition, the Court has also clarified that ‘the principle of mutual recognition, which underpins the Framework Decision’ implies that ‘the grounds for refusal to recognise or enforce [a decision transmitted under Article 4] must be interpreted restrictively’. (12)
45. Such findings are consistent with the raison d’être of this instrument: for enforcement purposes, the underlying decision is (metaphorically speaking) ‘absorbed’ in the document that, briefly and schematically, summarises and explains it: the certificate provided for in Article 4 of Framework Decision 2005/214, the standard form for which is given in the Annex thereto. In accordance with the principle of mutual trust, the executing State is to trust the contents of the certificate, as long as there are no reasons to the contrary. This explains why Article 16 of Framework Decision 2005/214 regulates the language requirements of the certificate, and not of the underlying decision. (13)
46. In that connection, Article 16(2) appears to be meaningful. It reads: ‘the execution of the decision may be suspended for the time necessary to obtain its translation at the expense of the executing State’. That provision confirms that, under Framework Decision 2005/214: (i) what is key, at the enforcement stage, is the language of the certificate, and (ii) a translation of the original decision is not automatically required.
47. Therefore, I take the view that no express or implied requirement to provide an individual, against whom the enforcement of a penalty decision is being sought, with a full translation of that decision in a specific language, can derive from the provisions of Framework Decision 2005/214.
48. Having said that, in the present case, the referring court points to Article 20(3) of that framework decision, according to which ‘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’. (14)
49. In the referring court’s view, the failure to provide the addressee with a translation of the contested decision could give rise to a breach of a general principle concerning the translation of documents which are prejudicial to individuals, on the one hand, and, result in a breach of the right to a fair trial, on the other hand.
50. I shall examine those issues next.
2. A right to a translation as a matter of a fundamental legal principle of EU law?
51. First, the referring court suggests that the absence of a specific provision, in Framework Decision 2005/214, on the language regime of the decision to be enforced is due to its, by now relatively distant, date of adoption. The referring court submits that the (current) will of the EU legislature on this issue may be inferred from the provisions concerning language requirements that have been included in more recent legal instruments adopted in relation to the area of freedom, security and justice. In particular, the referring court points to the provisions of Directive 2010/64 and Directive 2015/413, which include certain obligations on the authorities of the Member States to provide a translation of the decisions whose enforcement is being sought.
52. In essence, the referring court is suggesting to extract, from other instruments of EU law, a general principle which would require the authorities to produce, in situations such as that at issue, a translation of any act having adverse effects on an individual, in his or her native language (or, possibly, in any other language that he or she understands).
53. I am not persuaded by this argument.
54. First, in BV, I had the opportunity to explain why I do not believe that the EU Courts should give much deference to the alleged legislative intent of the legislature when such intent is not clearly expressed anywhere in the adopted and valid legislation. In my view, what matters when interpreting EU legislation are the elements included in the text, together with the legislative intent expressed in the preamble. Conversely, the intentions and ideas actually or allegedly voiced during the legislative process, but which are nowhere to be found in the text of the legislation in question, should not matter. (15)
55. That must a fortiori be the case when it comes to an alleged intention of the EU legislature to be inferred not from documents that were part of the relevant legislative process, but from other EU legislative acts adopted after the adoption of the act in question and, moreover, which are unrelated to the latter.
56. Second, and in any event, I am not convinced that the alleged intention of the EU legislature specifically to provide for a translation of decisions producing adverse effects on individuals can be inferred from other EU acts. A cursory look at the relevant provisions included in various legal instruments reveals that the EU legislature has, as a matter of fact, followed a variety of approaches on this matter.
57. For example, the EU directives adopted in the field of criminal procedure do, understandably, provide a greater level of protection to individuals subject to proceedings. However, those EU directives do not exhibit a uniform pattern. Directive 2010/64 requires a translation of the ‘essential documents’, ‘in the native language of the suspected or accused persons or in any other language that they speak’. (16) Directive 2012/13/EU on the right to information in criminal proceedings (17) requires Member States to ‘ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights’. That letter shall be drafted in ‘simple and accessible language’, ‘in a language that they understand’.(18)
58. Outside the scope of the EU provisions which concern criminal proceedings, individuals usually cannot derive subjective language rights from EU legislative instruments in various areas of EU regulation. If legislative instruments address language matters at all, they usually do so with the aim of facilitating mutual assistance between the Member States. Even if the situation of the addressee is taken into consideration, there is no guarantee that he or she will understand the document at stake, since that document can be delivered to them, for example, in the official language of the Member State where that person is domiciled, (19) or in the language of the Member State where the vehicle involved in a road traffic offence is registered.(20)
59. Therefore, in the European Union, there is at present no unique approach regarding the language regime of documents served cross-border. Depending on the specific subject matter of the EU legislation at issue, the requirement for the requesting Member State’s authorities to provide documents and/or information in the language of the addressee of the act may be more or less significant. Accordingly, I do not think that the provisions of Directive 2010/64 and Directive 2015/413 (or, for that matter, any other instrument) can be read as being indicative of an actual or overarching intention on the part of the EU legislature, which would be one and the same regardless of the legal instrument concerned – even assuming (quod non) that such an intention is hermeneutically relevant.
60. If anything, the opposite is true. The referring court’s proposed interpretation of Framework Decision 2005/214 seems hard to reconcile with the intention of the EU legislature, in view of the clear provisions of Directive 2015/413 and Directive 2010/64.
61. On the one hand, extending the requirement of translation to all decisions enforcing penalties imposed in relation to any road traffic offence is equivalent to reading Article 2 of Directive 2015/413 out of that piece of legislation. Indeed, as mentioned in point 30 above, the list of offences set out therein is exhaustive. That leaving aside the fact that the purpose of that instrument is different from that pursued by Framework Decision 2005/214, and thus parallels between the two instruments require a certain caution.
62. On the other hand, recital 16 of Directive 2010/64 attests that the EU legislature considered that, in cases of minor offences such as traffic related ones, where the penalty is imposed by an administrative authority, ‘it would be unreasonable to require that the competent authority ensure the rights’ to interpretation and translation provided therein. (21) That statement also suggests that a clear choice was made, in this field, by the EU legislature.
63. The argument according to which the provisions of Framework Decision 2005/214 should be interpreted in the light of more recent legislative instruments is even more puzzling if one considers that the EU legislature amended that framework decision in 2009, (22) without introducing any specific provision on this point. The EU legislature has had ample opportunity during the decade following those amendments to amend again the text of that framework decision, had it wished to do so. However, it has clearly chosen not to.
64. Concluding on this point, and regardless of the alleged intention of the EU legislature, I cannot find any general principle which would require the national authorities to produce, in situations such as that at issue, a translation of any act having adverse effects on an individual, into his or her native language (or, possibly, in any other language that he or she understands).
65. On a related note, I find a further, albeit indirect, confirmation of the absence of a general principle on this issue in the various EU rules concerning the potential consequences flowing from a failure to communicate, in a given language, an act that is being notified or whose recognition is sought, or the information relating to that act. Indeed, in many instruments, the EU legislature did not provide for any specific rule in that regard. (23) Where it did, those rules are marked by quite a degree of diversity. (24)
66. It thus seems rather far-fetched to think that the Court could, simply on the basis of the right to a fair trial guaranteed in Article 47 of the Charter, derive a general duty that requires all administrative authorities in the Member States to produce, in cross-border situations, a full translation of any act having adverse effects on an individual in his or her native language (or any other language that he or she understands).
67. Even Directive 2010/64 – which, as mentioned in points 29 and 32 above, is not applicable in the case at hand – requires a full translation of only the ‘essential documents’. (25) That is the case, notwithstanding the fact that Directive 2010/64 is expressly meant to go beyond the ‘minimum standards’ set out in the European Convention on Human Rights (‘ECHR’) and the Charter. (26)
68. The burden imposed on the national administration by such a duty would be significant and, often, no doubt disproportionate. It is thus by no means an accident, in my view, that no such far-reaching obligation can be found in EU primary or secondary law. The drafters of the Treaties and the EU legislature have consistently adopted a rather cautious and pragmatic approach with regard to language rights. Quite apart from the practical problems identified above, both the Member States and the EU institutions are also aware that adopting rules on languages may involve choices that are, at times, politically and/or socially delicate.
69. One may also find the same caution and pragmatism in respect of language rights in the practice of the EU judiciary. For example, when called upon to recognise and uphold linguistic rights flowing from EU law, the EU Courts have striven to ensure that the individuals affected are protected, while leaving the competent authorities some room for manoeuvre. (27) More importantly, there is no trace in the Court’s case-law of a far-reaching duty, imposed on national administration, to produce a translation of any document notified or enforced abroad.
70. In the light of the above, I come to the conclusion that, as EU law currently stands, there is no general principle requiring all administrative authorities in the Member States to produce a full translation of any act having adverse effects on an individual in his or her native language (or any other language that he or she understands).
3. Abreach of the right to a fair trial in the original proceedings?
71. The issue that now requires consideration is whether the failure to provide a translated version of the contested decision in Polish (or another language that the addressee could understand) inevitably results, in the original administrative procedure, in a breach of the right to a fair trial set out in Article 47 of the Charter, affecting the subsequent recognition and execution of that decision. (28)
72. I do not think so.
73. It seems to me that the case-law of both the ECtHR and the Court of Justice support the view that a breach of an individual’s right to a fair trial, in a case such as the one at issue, depends on the specific circumstances of the case.
74. It follows from Article 6(3) TEU and Article 52(3) of the Charter that Article 47 of the Charter must be interpreted and applied consistently with Article 6 ECHR (‘right to a fair trial’). (29) It is widely accepted by the parties to the present proceedings that, within the latter provision, paragraph 3 – which concerns persons ‘charged with a criminal offence’ – is applicable in the case at hand.
75. I agree. As the Court has recently stated, (30)traffic offences, including minor ones, generally constitute, according to the case-law of the ECtHR, ‘criminal offences’ for the purposes of Article 6 ECHR, regardless of their qualification under national law. (31) In addition, the Strasbourg court has made clear that the rights laid down in Article 6(3) ECHR must be guaranteed at all stages of the procedure, including the pre-trial stage. (32)
76. Among the ‘minimum rights’ that, under Article 6(3) ECHR, must be guaranteed to everyone charged with a criminal offence, one finds the right ‘to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him’ (point a). The information that must be given to the individual in question, in a language that he or she understands, includes – as the ECtHR has clarified – not only ‘the cause of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts’. (33)
77. That information should be sufficiently detailed (34) to enable the individual in question to exercise his or her right of defence effectively and practically, notably ‘by being able to put before the court his version of the events’. (35) However, the ECtHR has pointed out that the adequacy of the information cannot be determined in the abstract, but ‘varies depending on the particular circumstances of each case’. (36)
78. As regards, more specifically, the language in which the information must be given, the ECtHR has concluded that it need not necessarily be the native language of the individual in question. (37) It may be, in particular, the language of the Member State where the proceedings take place, provided the person in question has ‘sufficient knowledge’ of that language. (38) Failing that, in accordance with the very wording of Article 6(3) ECHR, the information should be provided in any other language the person is able to understand. (39) The sufficient command of the language used for the communication must be assessed, inter alia, in relation to the nature of the offence with which the defendant is charged and the complexity of the communications addressed to him by the relevant authorities. (40) The authorities of the Member States have wide discretion to use the means considered most appropriate to verify that. (41)
79. With regard to the manner in which the accused is to be informed of the nature and reasons of the charge made against him or her, the ECtHR has found that Article 6(3) ECHR does not lay down any particular form. (42) The relevant information need not necessarily ‘be given in writing or translated in written form’. (43) Consequently, ‘oral linguistic assistance may satisfy the requirements of the Convention’. (44) As far as translation of documents is concerned, Article 6(3) ECHR ‘does not go so far as to require a written translation of all items of written evidence or official documents in the procedure’. (45)
80. In short, it follows from the ECtHR’s case-law referred to above that (i) a determination of a breach of the right to a fair trial requires a case-by-case assessment, (ii) the information to be communicated must be sufficiently detailed to enable the accused to exercise his or her right of defence practically and effectively, (iii) that information may be given in any language that the person understands and, as the case may be, even orally, and (iv) there is no need to provide a written translation of all documents.
81. These principles – which exclude any automatism and denote a certain souplesse – seem all the more valid with regard to cases such as that at issue. Indeed, the ECtHR itself has consistently recognised that there are ‘criminal charges’ of differing weight and that, in situations falling outside the hard core of criminal law, the criminal-head guarantees set out in Article 6(3) ECHR ‘will not necessarily apply with their full stringency’. (46) That is, in my view, especially the case of a minor traffic offence such as that at issue in the main proceedings. (47)
82. Turning now to the EU case-law, it must be pointed out that the Court has not yet had the opportunity to produce a body of case-law on the right to a fair trial as extensive and as detailed as that developed by the ECtHR. However, in its decisions delivered to date, the Court has frequently and expressly cited the ECtHR’s judgments regarding Article 6(3) ECHR and has ‘incorporated’ into the EU legal order the principles flowing therefrom. (48)
83. Likewise, in relation to the right of defence and the right to an effective remedy – which, in a case such as that at issue, are necessarily intertwined with the right to a fair trial – the Court has consistently held: ‘the question whether there is an infringement of the rights of the defence and the right to effective judicial protection must be examined in relation to the specific circumstances of each case, including the nature of the act at issue, the context in which it was adopted and the legal rules governing the matter in question’. (49)
84. Importantly, a similar approach was followed in the Court’s case-law on the rights of the accused to receive adequate information under Framework Decision 2005/214. In CJIB, the Court found that the authorities of the Member States enjoy some flexibility as regards the manner in which that information is to be communicated. What really matters is that ‘the notification is effective and the exercise of the rights of the defence is guaranteed’, (50) which is for the national court to verify in the specific case. (51)
85. In the light of the foregoing, I am bound to conclude that a determination as to the possible breach of a right to a fair trial, in circumstances such as those at issue in the main proceedings, requires the referring court to examine all the relevant circumstances of the case in order to establish whether the individual in question was able to obtain, in a language that he understands, sufficient information about the offence of which he was accused, enabling him to exercise his right of defence adequately.
86. My interpretation of the relevant provisions of Framework Decision 2005/214 appears also to be confirmed by the wording of Article 20(3) thereof, which permits the refusal of enforcement ‘where the certificate referred to in Article 4 gives rise to an issue that fundamental rights or fundamental legal principles … may have been infringed’. (52) This provision suggests that a refusal cannot be based on abstract or general reasons, but requires the executing court to assess the specific circumstances of each case, as resulting from the case file. (53)
87. Such an interpretation seems also to be more in line with the Court’s case-law on the principles of mutual recognition and mutual trust. The Court has consistently held that those principles require the Member States, ‘particularly as regards the area of freedom, security and justice, … save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’. (54) Thus, when implementing EU law, Member States may ‘be required to presume that fundamental rights have been observed by the other Member States’. (55)
88. In the light of the above, I come to the conclusion that the fact that a decision such as that at issue in the main proceedings was not served to the addressee together with a translation into a language that he could understand does not inevitably give rise, in the original administrative procedure, to a breach of a general principle of EU law or to a breach of the right to a fair trial.
89. Accordingly, the answer to be given to the referring court should, in my view, be that Article 20(3) of Framework Decision 2005/214 cannot be interpreted as permitting a national court to refuse recognition and execution of the contested decision merely because the contested decision was not translated into Polish.
90. However, Article 20(3) of that framework decision does allow a national court to oppose recognition and enforcement of the decision if, on the basis of a case-specific assessment of all relevant circumstances, it comes to the conclusion that the authorities of the requesting Member State did not provide the accused with sufficient information on the nature and cause of the offense in a language that he or she could understand.
91. It is evidently for the referring court to carry out such an assessment in the case at hand. (56) Nevertheless, in order to assist that court, I shall attempt to provide some guidance in relation to the specific case, in the light of the information made available to the Court.
4. The present case
92. On the basis of the information included in the case file, it is in my view not obvious that there has in fact been a breach of the driver’s right to a fair trial. At the same time, however, one cannot discard that possibility altogether. A finding to that effect by the referring court would thus require a certain prudence, and a detailed assessment of the situation at issue.
93. In its submissions, the Netherlands Government explained that, in line with established procedures, the local police informed the driver in Polish, though an interpreter contacted over the telephone, about: (i) the alleged infringement of the highway code that he had committed, (ii) the amount of the penalty imposed, (iii) his right to remain silent, (iv) the possibility to contest the penalty imposed upon him, and (v) the rights to legal assistance, as well as to translation and interpretation.
94. Nevertheless, as mentioned in point 24 above, the decision being enforced in the present proceedings was not adopted by the police, right away and on the spot, in presence of the driver (assisted by the interpreter). That decision was announced at that moment only, and adopted subsequently by the CJIB. The decision, drawn up in Dutch, was then sent to the driver by mail, which included additional explanations in French, English and German, as well as a reference in those languages to the CJIB’s website where information in Polish is provided.
95. Accordingly, could the driver legitimately disregard the decision and the related information provided in the letter he received from the Netherlands’ authorities, and validly claim his ignorance regarding the decision being enforced?
96. In that regard, I agree with the Polish Government that an individual which finds him or herself in a position such as that of the driver cannot be expected actively to seek out the information that the authorities failed to communicate to him or her in a language he or she could understand. (57)
97. However, I do not believe that the assessment in the present case can really stop there. It is primarily the responsibility of the persons concerned to exercise all due diligence to defend their interests. (58) In addition, as the ECtHR has consistently stated, in principle ‘neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his or her own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial’. (59)
98. The referring court must thus carefully evaluate the situation in the case at hand since not all situations are alike. In particular, I see a difference between two types of situations.
99. On the one hand, there are the full in absentia procedures. In such situations, an individual might indeed receive, completely ‘out of the blue’, a letter from another Member State, in a language he or she does not understand, concerning an alleged infringement of that Member State’s laws, of which he or she had no prior notice.
100. On the other hand, there are situations in which an individual receives a letter from another Member State after already having participated in some kind of proceedings in that Member State. Such a letter, despite being drafted in a language he or she does not understand, appears to concern an alleged infringement of which the driver had already been made aware, and which essentially reiterates the information that he or she had been given ‘there and then’.
101. It seems to me that a breach of the right to a fair trial is much more likely in the first scenario than in the second one. Obviously, it cannot be excluded that, even in the second scenario, there might be a breach of the addressee’s rights. That could be the case, for example, when the final decision notified departs, in some significant respect, from the information that was previously provided, resulting in a situation where that accused might be unable to exercise his or her right of defence adequately. However, where there is no meaningful difference between the final decision and the key elements already communicated to the addressee orally, I would find it harder to accept the addressee’s argument whereby he or she was unable to understand or deduce what the letter received from the foreign authorities was about.
102. Yet, as explained, it is ultimately for the referring court to make any determination in that regard. In essence, the national court ought to establish whether, notwithstanding the fact that the decision of the CJIB was drafted in a language that the addressee did not understand, the driver had previously received, from the police, sufficient information regarding, in particular, the offence of which he was accused, the consequences flowing therefrom, and the legal avenues available to him to contest the police’s findings. Within that assessment of the right to a fair trial, attention is to be paid to the entire proceedings in the requesting Member State and all the information given to the driver in throughout those proceedings.
103. Should that court have any doubt concerning the Netherlands’ applicable laws and the relevant facts, assistance may be sought from the issuing State’s authorities. Indeed, as follows from Article 7(3) and Article 20(3) of Framework Decision 2005/214, ‘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’.
104. As follows from the very wording of Article 7(3) of that framework decision, the consultation is mandatory and should be carried out prior to the delivery of any decision refusing, either completely or in part, the enforcement of the penalty decision. After all, that provision is a manifestation of the principle of mutual recognition and the principle of sincere cooperation, which underpin Framework Decision 2005/214.
105. In the light of the foregoing, I suggest that the Court answer to the effect that the provisions of Framework Decision 2005/214 preclude a national court from opposing the recognition and execution of a final decision requiring a financial penalty to be paid by an individual, adopted by an administrative authority of the issuing State, merely on the ground that that individual had not been served with a translation of that decision in a language that he or she understands.
106. The national court may, on the basis of Article 20(3) of Framework Decision 2005/214, oppose recognition and enforcement of a decision if, on the basis of a case-specific assessment of all relevant circumstances, it comes to the conclusion that the authorities of the requesting Member State did not provide the accused with sufficient information on the nature and cause of the offence in a language that he or she could understand.
V. Conclusion
107. I propose that the Court answer the question referred for a preliminary ruling by the Sąd Rejonowy dla Łodzi-Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź, Poland) as follows:
– The provisions of Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties preclude a national court from opposing the recognition and execution of a final decision requiring a financial penalty to be paid by an individual, adopted by an administrative authority of the issuing State, merely on the ground that that individual had not been served with a translation of that decision in a language that he or she understands.
– The national court may, on the basis of Article 20(3) of Framework Decision 2005/214, oppose recognition and enforcement of the decision if, on the basis of a case-specific assessment of all relevant circumstances, it comes to the conclusion that the authorities of the requesting Member State did not provide the accused with sufficient information on the nature and cause of the offence in a language that he or she could understand.