Fiches Belges

The enforcement in France of a financial penalty issued by a competent authority of a Member State of the European Union is provided under the Decree of 3 May 2007 transposing the Framework Decision of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (articles D48-6 et seq. of the Code of Criminal Procedure). The legal basis was complemented by the transposition, by a Decree of 28 October 2013, introducing an article D48-23 7° to the Code of Criminal Procedure in accordance with the procedural guarantees (procedural safeguards) in absentia put in place by Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. The enforcement in France of a financial penalty may be requested by the competent authorities of a Member State when the person sentenced to pay a sum of money has his/her habitual residence, headquarters, property or income located in France.

Framework Decision 2005/214/JHA on financial penalties of 24 February 2005. Framework Decision 2009/299/JHA of 26 February 2009.

The authorities competent to execute these penalties are public prosecutors in whose jurisdiction the residence, property, revenue or headquarters/registered office of the person concerned is located. The foreign authority must send the financial penalty decision directly to the public prosecutor with territorial jurisdiction who shall execute it in accordance with various checks set out below. However, in the event that the competent authority of the issuing State sends the penalty decision to a public prosecutor’s office which does not have territorial jurisdiction, the latter must forward it without delay to the public prosecutor who has territorial jurisdiction and must inform the competent authority of the issuing State of this by any means which is confirmed by a written record. If a financial penalty decision is sent concerning a person whose home address is not known the prosecutor shall return the decision notice to the issuing State so that the latter can add this indispensable piece of information to it, failing which s/he will refuse to enforce it. The original of the financial penalty decision or a certified copy of the decision shall be transmitted by any means producing a written record of the transmission and in such a way as to enable the executing state to establish its authenticity. Please note that the provisions of article 4-2 of the Framework Decision on the mutual recognition of financial penalties are very similar to those of the Framework Decision on the European Arrest Warrant. However, as regards the European Arrest Warrant (EAW), it appears that the case law of the criminal chamber of the Court of Cassation allows for a certain flexibility in relation to the means of transmission. It has accepted, under certain conditions and, in particular, when accompanied by material which confirms the authenticity of the document, transmission by fax and by email. For financial penalties relating to road traffic offences: the Public Prosecutor at the judicial court of Rennes or Officer of the Public Prosecutor's Office at the National Processing Centre (where the automated processing of these fines is carried out) is competent. The public prosecutor will conduct his review before having the financial penalty executed. S/he must advise the person concerned by registered letter of the enforcement in France of the foreign financial penalty by sending him/her a “statement of financial penalties” mentioning, except when the offence/conduct corresponds to a criminal offence under French law, the possibility of benefitting from a 20% reduction (a reduction which may not exceed 1,500 Euros - one thousand five hundred Euros), as is the case with financial penalties that are imposed in France. At the same time the prosecutor will transmit the statement of financial penalties to the Treasury Accountant.

The certificate sent to the public prosecutors must be accompanied by a translation in the French language carried out by the authority that issued it.

The Framework Decision does not provide any particular deadline for the enforcement of foreign financial penalties. These penalties must be enforced within the same deadlines and with the same diligence as French penalties. Although the expiry of the limitation period of the penalty is not a ground for refusing enforcement, these decisions could not remain permanently exempt from statutory limitation. Transposition has therefore led to establishing the principle according to which the limitation period runs from the date of receipt of the financial penalty decision and that the rules of statutory limitation under French law apply from when they are acknowledged by the French authorities. In all cases the public prosecutor must provide a reasoned notification to the competent authorities of the State which issued the financial penalty, and, in particular, in the following cases: - When, because the financial penalty decision was wrongly addressed, s/he is forwarding it to the prosecutor who has territorial jurisdiction; - When s/he is refusing to enforce a financial penalty or when it is impossible for him/her to do so; - When the financial penalty has been executed or when it has not been possible to execute it in part or in full.

1/ Decision to which this measure applies: Article D48-6 of the Code of Criminal Procedure lists the decisions to which this measure applies, and the list includes, in particular, the payment of a sum of money required as part of a sentence when a person has been convicted of an offence, including customs or fiscal offences, but also the payment of compensation awarded to victims when they have not been able to formally join themselves into the action as “parties civiles”, ordered as part of the same decision by the criminal court, in the exercise of its jurisdiction, the payment of a sum of money relating to the costs of the judicial or administrative proceedings which led to the decision, the payment of a sum of money awarded to a public fund or a victim support organisation, ordered under the same decision (for example, an organisation similar to the Automobile Guarantee Fund or the Personal Injury Guarantee Fund). Excluded from this list are: confiscation decisions, customs transactions and civil fines. 2/ Authority which issued the decision: These decisions may have been made by a court or by any other authority, as follows: a court of the issuing State as a result of a criminal offence under the law of the said State, an authority of the issuing State other than a court, as a result of a criminal offence under the law of the said State, on condition that the person concerned has had the opportunity to have the case tried before a competent court, in particular before a court with jurisdiction in criminal matters, an authority of the issuing State other than a court, as a result of conduct which is punishable under the law of the said State, even though the person concerned has had the opportunity to have the case tried before a competent court, in particular before a court with jurisdiction in criminal matters, or a competent court, in particular a court with jurisdiction in criminal matters, when the decision was issued in relation to a decision within the meaning of the preceding subparagraph. 3/ Other conditions relating to the decisions concerned: - these decisions may concern a natural person as well as a legal person - these penalties must be final and definitive (not subject to appeal) - they may concern penalties issued “in absentia” (i.e. when the person concerned had not appeared in person in court at his/her trial), under certain conditions (see below). The certificate must contain adequate information and must include the details which are essential to enable recovery, in particular the precise identity of the natural or legal person concerned, the habitual place of residence or registered office (headquarters) of the person or information making it possible to identify the assets or the income located in France which justifies the enforcement in France of the financial penalty. The financial penalty must be enforced without a dual criminality requirement when the conduct/offence is within the categories of offences set out by articles D48-24 and 694-32 of the French criminal code of procedure, if the certificate relating to the financial penalty includes confirmation that the offence falls within one of the above-mentioned categories it is not necessary to check whether there is an equivalent offence under French law [i.e. whether the conduct would also be an offence under French law] and, unless there is an obvious error which would lead to the conclusion that the certificate “manifestly does not correspond to the financial penalty” (article D.48-22 1°), the public prosecutor must not examine the matter to see whether there is an equivalent offence under French law or under French regulations. When the conduct of the person concerned does not fall within one of the categories set out in the above-mentioned articles, France, in application of the stipulations in article 5 paragraph 3 of the Framework Decision, has chosen to make the recognition and enforcement of these financial penalties subject to the condition that the decision “concerns conduct which would constitute an offence under the law (of France) whatever the constituent elements of the offence are and whatever the legal classification of the offence is”. In such a case it will therefore be the responsibility of the public prosecutor to consider whether the conduct for which the penalty has been imposed constitutes a criminal offence under French law or not. If the offence is not an offence under French law the public prosecutor must refuse to enforce the penalty and must inform the competent authority which transmitted the financial penalty decision of this. When the conviction/judgment has been made in a foreign currency the financial penalty must be converted into euros based on the rate of exchange that applied on the date of the conviction/judgment. 4/ Discretionary and mandatory grounds for refusal The discretionary grounds for refusal are as follows: - the absence of a certificate, or an incomplete certificate; - cases in which the financial penalty is less than 70 euros; - the fact that the offence was committed, in whole or in part, on the territory of the Republic. The mandatory grounds for refusal are as follows: - if the financial penalty is based on a fact that does not constitute an offence under French law; - the financial penalty was issued in relation to a person who was under 13 years of age on the date of the offence; - the financial penalty relates to an offence committed outside the territory of the issuing State and French law does not authorise the prosecution of these offences when they have been committed outside of the territory of the Republic; - the financial penalty relates to an offence which falls within the competence of the French courts and the enforcement of the penalty is statute-barred under French law; - the financial penalty relates to offences for which the person concerned has already been definitively prosecuted by the French judicial authorities or by the judicial authorities of a State other than the issuing State, and the sentence has either been served, is in the process of being served or cannot be served under the law of the convicting State; - in the case of a written procedure, it is apparent from the certificate that the person concerned was not informed in accordance with the legislation of the issuing State, either in person or via a competent representative in accordance with the law of that State, of his right to appeal and of the time period available to him in which to appeal; - if, according to the certificate, the person concerned did not appear in court in person, except in the cases that fall within 1° to 3° of article 695-22-1 of the Code of Criminal Procedure, namely: “1° He was informed in a lawful, effective, unambiguous and timely manner, by means of a summons or by any other means, of the date and place fixed for the trial and of the possibility that a decision or order could be made against him if he did not appear in court; 2° Having been informed of the date and the place of the trial he was defended at trial by counsel, designated either by himself or at the request of the public authority, whom he had instructed for this purpose; 3° Having received notification of the decision and having been expressly informed of his right to appeal the decision in order to obtain a new examination of the merits of the case, in his presence, by a court which has the power to take a decision which annuls or substitutes the initial (original) decision, he expressly indicated that he did not contest the initial decision, or he did not exercise, within the deadline that was indicated to him, the right to appeal that was available to him”; - it is established that the financial penalty decision was taken for the purpose of convicting a person because of their sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that the enforcement of the said penalty could prejudice that person’s position for any of those reasons; There is provision under French law for an immunity which makes it impossible to enforce a financial penalty. It goes without saying ; - that immunities arising from validly ratified international conventions, which have supremacy over national law, are also applicable.