According to Sections 73, 77 (2), 87b (1), (2), (3) of the Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen – IRG) enforcement of a financial penalty is not permissible if
- executing the request would go against basic principles as set in Article 6 of the Treaty on European Union;
- there is immunity which makes the execution of the decision impossible;
- a penalty or administrative fine could not have been imposed under German law for the offence giving rise to the decision (double criminality check). No double criminality check is carried out if, under the law of the requesting Member State, the offence giving rise to the decision constitutes one of the criminal offences or regulatory offences listed in Article 5 (1) of the Framework Decision on Financial Penalties;
- it has already been paid or recovered;
- the certificate referred to in Section 87a no. 2 of the Act on International Mutual Assistance in Criminal Matters is incomplete or manifestly does not correspond to the decision;
- the financial penalty imposed amounts to less than 70 euros or its equivalent value in another currency based on the relevant market value in the case of conversion on the date on which the decision to be enforced was given;
- the decision on which it is based was given in written proceedings and the person concerned or a representative authorised in accordance with the law of the requesting Member State was not instructed about the right of contestation and about the time limits under that law;
- the person concerned did not appear in person at the hearing which led to the decision (referring to this ground of refusal, the exceptions of 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 must be observed);
- a decision within the meaning of Section 9 no. 1 of the Act on International Mutual Assistance in Criminal Matters was given in Germany against the person concerned for the same offence which gave rise to the decision and Germany’s jurisdiction is also established for that offence, or if a decision has been given and enforced in a state other than the requesting Member State against the person concerned for the same offence which gave rise to the decision;
- Germany’s jurisdiction is also established for the offence giving rise to the decision and enforcement under German law is statute-barred;
- the person concerned lacked criminal responsibility under German law on account of his or her age at the time of the offence giving rise to the decision or he or she lacked criminal liability under Section 3 Sentence 1 of the Youth Courts Act;
- the offence giving rise to the decision was committed in whole or in part in Germany or on a ship or aircraft which is authorised to fly the federal flag or the nationality mark of the Federal Republic of Germany and the offence is not punishable under German law as a criminal offence by imposition of a penalty or as a regulatory offence by imposition of an administrative fine;
- the person concerned did not have the opportunity, in the foreign proceedings, to contest his or her responsibility for the act on the which the decision was based and asserted that fact vis-à-vis the authorising authority.
According to Section 87d of the Act on International Mutual Assistance in Criminal Matters authorisation of a permissible request for the enforcement of a financial penalty may only be refused if the offence giving rise to the decision
- was committed in whole or in part in Germany or on a ship or aircraft which is authorised to fly the federal flag or the nationality mark of the Federal Republic of Germany and the offence is punishable under German law as a criminal offence by imposition of a penalty or as a regulatory offence by imposition of an administrative fine;
- was committed outside of the requesting Member State’s sovereign territory and if such an offence committed abroad is not punishable under German law as a criminal offence by imposition of a penalty or as a regulatory offence by imposition of an administrative fine.