C-29/95

* Original language: Italian. 1 — OJ 1985 L 370, p. 1. 3 — Belgisch Staatsblad of 13 August 1985. 2 — OJ 1985 L 370, p. 8. 4 — Belgisch Staatsblad of 20 July 1989.

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Community law be interpreted as precluding 5. The order for reference raises a question the national legislation of a Member State, of interpretation centred, in turn, on Article adopted in implementation of Council Regu­ 6 of the Treaty and on the general principle lations Nos 3820/85 and 3821/85, from pro­ of equality. However, I consider that a single viding for a system of penalties whereby answer can be given based on Article 6 of the natural or legal persons charged with Treaty, which is a specific enunciation of the 5 infringements of that legislation are given the principle of equality. choice between:

Article 6 provides that 'within the scope of (a) immediate payment of a given sum, in application of this Treaty, and without preju­ this case BFR 10 000 per infringement, dice to any special provisions contained whereupon prosecution is as a rule dis­ therein, any discrimination on grounds of continued, nationality shall be prohibited'.

It must be examined, first, whether the con­ or ditions are fulfilled for relying in this case on the abovementioned provision which, according to the Court's settled case-law, applies only in the absence of provisions prohibiting discriminatory treatment in spe­ (b) continuation against them of normal cific sectors. 6 If the answer is in the affirma­ criminal proceedings, tive, it remains to be established whether the rules at issue give rise to discrimination which is prohibited.

As regards the possibility of bringing the present dispute within the scope of the Treaty provisions on freedom to provide transport services, thereby avoiding the need I would add that no other conclusion is pos- to examine it in the light of Article 6, I sible in view of the nature of the rules at should point out that the Belgian rules under issue here, a point which the French Govern- consideration here are procedural in nature ment has strongly emphasized in its written and scope. They do not, at least not directly, observations: even though in principle crimi- affect road transport, nor do they introduce nal legislation and the rules of criminal pro- obstacles to or restrictions on freedom of cedure, among which the contested provi- movement as regards the provision of ser- sions are to be found, are a matter for the vices, guaranteed by the Treaty. O n the other Member States, such provisions may not dis- hand, by envisaging different courses of criminate against persons to whom Commu- action in response to the penalties, depend- nity law gives the right to equal treatment or ing on the offender's place of residence, that restrict the fundamental freedoms guaranteed legislation could, in the abstract, produce by Community law. 8 It follows that the discriminatory effects and it must therefore criminal-law origin of the rules at issue does be assessed in the light of Article 6. not preclude their examination in the light of Article 6 of the Treaty.

The Court has, moreover, reached similar conclusions in previous cases. In the judg- ment in Phil Collins, for example, it consid- 7. I now come to the second aspect, that is, ered that it was able to protect copyright by whether the rules introduced by Article 11b reference to the general principle of non- of the Law of 1 August 1960 involve discrimination laid down by Article 6, with- out relying on the specific provisions avail- able in relation to the field concerned, in 8 — Judgment in Case 186/87 Cowan [1989] ECR 195, para- particular those on the free movement of graph 19.

8. The provision at issue does not actually give rise to discrimination on grounds of 9. However, that observation is not of itself nationality since, in the event of rejection of sufficient to show that there has been a the option of immediate payment extinguish­ breach of Article 6 of the Treaty. ing prosecution, all offenders, whether or not they are Belgian citizens, who do not have their official or habitual residence in Belgium are obliged to lodge a deposit. In a situation of that kind, the Court has made it clear that 'the provision in question should not be justified by objective circum­ stances'. 1 1 With regard to discrimination based directly on nationality, only the excep­ tions provided for by the Treaty apply on the basis of Article 6 itself ('... without preju­ dice to any special provisions contained therein'), such as, for example, those expressly provided for in the field of the free It should, however, be noted that, as the movement of persons; where, however, the Court has consistently held, 'the rules difference in treatment is due to factors other regarding equality of treatment forbid not than nationality, the Court ascertains their only overt discrimination by reason of basis in each individual case. In other words, nationality, but also all covert forms of dis­ it must be ascertained whether the different crimination which, by the application of treatment applied, as in the present case, to other criteria of differentiation, lead to the residents and non-residents can be objec­ same result'. 9 Recently, the Court has spe­ tively justified by a factual difference which cifically reaffirmed that national rules under exists between the respective positions of the which a distinction is drawn on the basis of residence are liable to produce discrimina­ tory effects to the detriment of nationals of other Member States, since 'non-residents 11 — Judgment in Case C-398/92 Mund & Fester [1994] ECR 1-467, paragraph 17. See also, for the notion that the prohi­ are in the majority of cases foreigners'. 10 bition of discrimination contained in Article 40(3) of the Treaty, 'as a specific enunciation of the general principle of equality ... does not prevent like situations from Deing treated differently where such treatment is objectively justi­ fied', the judgment in Case 167/88 Association Générale des Producteurs de Blé et Autres Céréales [1989] ECR 1653, 9 — Judgments in Case 22/80 Boussac [1980] ECR 3427, para­ paragraph 23; in that judgment the Court concludes that graph 9, and in Case C-175/88 Biehl [1990] ECR 1-1779, 'the different treatment resulting from the regulations at paragraph 13. issue docs not constitute discrimination between producers 10 — Judgment in Case C-279/93 Schumacker [1995] ECR 1-225, ... or discrimination on grounds of nationality within the paragraphs 28 and 29. meaning of Article 7 of the Treaty' (paragraph 33).

former and the latter and is not connected Convention (or other conventions) govern- with nationality, but with other objective ing the recognition and enforcement of judg- factors. 12 ments in civil and commercial matters, there is a very real possibility that a judgment given against a non-resident could remain a dead letter or could, at any rate, be far more difficult and/or onerous to implement. Con- sequently, it is by no means out of the ques- tion that, unless the lodging of a deposit is required, a non-resident offender will in

11. In this context, I believe it is possible to ment of the fine and opt for criminal pro- apply to this case, but with the opposite ceedings from ultimately avoiding payment result, the principles set forth by the Court of the fine itself owing to the absence of a in Mund & Fester, 14 where the point at issue convention capable of ensuring the prompt was the discriminatory nature of a German enforcement of criminal judgments in all the procedural rule under which the fact that the Member States and, in particular, in relation subsequent judgment was to be enforced to the two countries concerned. abroad was sufficient to justify the authori- zation of seizure. The Court held that the provision in question was incompatible with Articles 7 (now Article 6) and 220 of the Treaty, read, however, in conjunction with

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with them, the difference between the pos­ In the present dispute, on the other hand, ition of residents and that of non-residents, according to the case-law to which I have which was the sole justification for the dis­ just referred, given the absence of a similar parity in the rules laid down by the law. international and/or Community instrument 16 of judicial cooperation, the concerns expressed by the Belgian Government would not appear to be unfounded. In short, the different treatment applied to non-residents is justified, since their position is different as regards the enforcement of any judgment against them, not because of their nationality or residence as such, but for an objective rea­ son.

15 — Ibid., paragraph 19. The legal literature has pointed out that this statement appears to be the result of 'a certain other- wordliness on the part of the Court' in relation to the alleged equivalence between the situation of residents and 16 — In this regard, it should be noted that, as the Belgian Gov­ that of non-residents in cases where the Brussels Conven­ ernment has pointed out on the basis of arguments which tion is applicable: Bischoff, in Journal du Droit Interna­ have not been disputed, the three conventions to which the tional, 1994, p. 538. The Mund & Fester judgment was plaintiffs have referred in their observations cannot be properly applied in the United Kingdom by the Court of relied on in this case: the first two (the Brussels Convention Appeal (Civil Division) in its judgment of 20 December of 17 January 1958 and the Strasbourg Convention of 20 1995 in Fitzgerald ν Williams and O'Regan ν Williams April 1959) because they apply only where there has been a (published in Weekly Law Report, 1996, vol. II, p. 447) in request for extradition, which does not arise in this case, order to avoid the need, under English law, to make the and the third (the European Convention on the Punishment plaintiff resident in Ireland pay a deposit covering the costs of Road Traffic Offences, signed at Strasbourg on 30 of the proceedings, precisely because the Brussels Conven­ November 1964) because it has not been ratified either by tion was applicable; this was, however, subject to the pro­ the Kingdom of Belgium or by the Federal Republic of duction of convincing proof of the difficulty of enforcing Germany. the decisions concerned. 17 — Judgment in Case C-20/92 [1993] ECR I-3777.

14. In my view, there are two possible solu- tions to that problem. The first would be to 13. The case now before the Court, how- argue that there is a general principle of free- ever, differs somewhat inasmuch as the dis- dom of movement of judicial decisions crimination is not based on nationality. 19 It within the Community and that, in short, as is hardly necessary to point out that the Advocate General La Pergola maintained in existence or otherwise of international con- his Opinion in the Data Delecta case, the ventions may indeed be relevant, not in Member States are subject to a veritable obli- order to determine whether or not the gation of mutual recognition with respect to such decisions, in compliance with the prin- ciple of non-discrimination laid down in Article 6 of the Treaty. 20 The rationale is 18 — Judgment in Case C-43/95 [1996] ECR I-4661. that whatever the Brussels Convention has 19 — It is also true that the security for the costs of judicial pro- ceedings which was the subject-matter of the Data Delecta achieved is not strictly linked to the Conven- case was intended to guarantee recovery of the costs borne tion itself but is covered by a general by the other party, whereas, in this case, the deposit required by the Belgian legislature is intended to guarantee payment by the non-resident offender, not only of the costs incurred by the State in bringing proceedings against him, but also, and above all, of the fine imposed on him for the offences committed. This is not, however, a decisive factor. 20 — See point 17 of the Opinion.

principle which can be inferred from the 15. The other solution, to which I subscribe, Community Treaties and which must be is that, in the field with which we are con­ placed on the same level as the fundamental cerned, the equivalence of situations, by ref­ freedoms of movement which apply to erence to which any difference in treatment goods and inputs. prohibited by Article 6 must be assessed, exists only in so far as instruments of harmo­ nization and cooperation at least equivalent to the Brussels Convention exist and are applicable to individual cases. Consequently, if that is true, the national rule which is the subject-matter of these proceedings is not, as a matter of principle, incompatible with Article 6 of the Treaty. O n that view, the Brussels Convention, whether applicable or not, merely simplified that which was already there. It follows that, even with regard to road traffic offences (if not generally with regard to criminal mat­ ters) and notwithstanding the absence of a specific convention intended to ensure their enforcement, decisions would have to be regarded as enforceable without any particu­ The possible solutions so far considered lar difficulty, against both residents and non­ obviously demand a clear choice such as to residents; therefore, since both the former dispel any misunderstanding which may and the latter are in exactly the same pos­ have been fuelled by a superficial reading of ition, national rules of the type at issue in the precedents referred to here. I would ask this case would have to be disallowed. the Court to make that choice along the lines which I have suggested: as a matter of prin­ ciple, in the absence of conventions on the enforcement of judgments, the position of non-residents differs from that of residents and constitutes an objective ground, other than nationality, that justifies different treat­ ment without infringing Article 6 of the Treaty. That is an attractive solution, but an abstract one in so far as it does not take account of the fact that, in the absence of conventions, there is unquestionably a real difference between residents and non-residents as regards the enforcement of judgments. That solution identifies a desirable objective, but one not achieved for the time being except, if we want to be optimistic and 'otherworldly', by means of instruments such as the Brussels 16. That is true in principle. In practice, it Convention. Proof of that, moreover, are the remains to be seen whether the national pro­ continuing efforts on the part of the Member vision at issue and the differentiated system States to conclude suitable conventions. introduced by it comply with the principle

of proportionality, that is, are appropriate option of immediate payment extinguishing and necessary for achieving the aim in view, prosecution is chosen; legal costs are without going beyond what is essential in expressly stated to account for the difference. order to attain it. 21 Moreover, the sum of BFR 15 000 must be lodged for each offence committed. The fact that a number of offences are simultaneously found to exist certainly does not mean that they will each form the subject-matter of distinct criminal proceedings: in all probabil- ity, for elementary reasons of practicality and procedural economy, the various offences will give rise to only one set of proceedings From that point of view, the Belgian rules against the offender. That was, moreover, arouse some misgivings. They provide that acknowledged by the Belgian Government non-resident offenders can choose to pay the itself during the oral procedure. However, amount of the fine at once, whereupon pros- while it is justifiable to charge a sum of ecution is discontinued; they must then pay money in respect of legal costs if it relates to BFR 10 000 per breach committed. Alterna- a single set of court proceedings, an addi- tively, they can decide to allow criminal pro- tional sum of BFR 5 000 per infringement is ceedings to run their course against them: in absolutely unjustified. It is clear that that that case, however, they are obliged to pay a additional sum is charged in respect of costs deposit of BFR 15 000 for each offence with which remain unchanged, regardless of the which they are charged, as a guarantee that number of offences alleged. any fine and legal costs will be paid. I use the term 'obliged' deliberately since, should he opt not to pay the deposit, a non-resident driver would undoubtedly suffer a more seri- ous loss, namely the immediate seizure of his vehicle, and it is only too obvious that, for a road transport operator, the impounding of his vehicle clearly represents a substantial financial loss likely to worsen as time goes by and thus to be avoided at all costs, even, if necessary, by paying a heavy fine. The foregoing considerations are obviously relevant especially to cases such as this, in which Mr Pastoors has been charged with eleven offences. However, all things consid- ered, I am of the opinion that the obligation to lodge a deposit (which is 50% higher than the sum due where the option of immediate payment extinguishing prosecution is cho- sen) for each offence alleged, rather than for each set of proceedings brought against the 17. I now turn to the amount of the deposit: offender, is, in any event, regardless of the it is 50% higher than the sum due where the number of offences committed, a dispropor- tionate measure which is excessive in relation to the objective expressly pursued by the 21 — Judgments in Case 222/84 Johnston [1986] ECR 1651, para- rules at issue, namely ensuring that non- graph 38, and in Case 299/86 Drexl [1988] ECR 1213, para- graph 18. resident offenders actually pay the fine and

18. It remains to be said that the argument 22 — The Court has consistently held that penalties imposed by Member States for non-compliance with Community obli­ which I have put forward does not seem gations should be effective and dissuasive, but not dispro­ portionate; see, to that effect, among the most recent deci­ capable of being rebutted by the objections sions, the judgment in Case C-193/94 Skanavi [1996] ECR raised by the French Government in its writ­ I-929, paragraph 36; and, specifically concerning a case similar to the present case, the judgment in Case C-7/90 ten observations with regard to the need for Vandevenne [1991] ECR I-4371, paragraph 11.

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Conclusion

21. In the light of the foregoing considerations, I therefore propose that the Court should answer the question referred by the Rechtbank van Eerste Aanleg, Antwerp, as follows:

Article 6 of the E C Treaty precludes a national provision which imposes only on non-resident citizens who infringe Regulations (EEC) N o s 3820/85 and 3821/85 and reject the option of paying the fine at once, preferring to allow criminal pro­ ceedings to take their course against them, the obligation to lodge a deposit, in default of which the vehicle is impounded, to cover any fine and legal costs in respect of each infringement regardless of the number of proceedings brought against the offender.

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