Bank BGŻ BNP Paribas*
On 12 November 2019, AG Pikamäe delivered his Opinion in Case C-183/18, which concerns the interpretation of Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties. The request for a preliminary ruling was lodged by a Polish court, which received from Dutch authorities a request for recognition and enforcement of a Dutch decision issued on 25 November 2016. That decision imposed a fine for a road traffic offence on the driver of a vehicle belonging to Bank BGŻ BNP Paribas Gdańsk, a legal entity that is based in Gdańsk (Poland) indeed. The Polish legislation that implemented the Framework Decision uses the term ‘offender’ to define the scope ratione personae of the transposing legislation. In the Code of Criminal Procedure, however, that term includes only natural persons whereas, under Articles 1 and 9 of the Framework Decision, that Framework Decision also applies to decisions imposing financial penalties on legal persons. The referring court therefore asks, first, whether it shall disapply the national rule that runs afoul of the Framework Decision provisions or replace it with the rule contained in the Framework Decision.
Second, the referring court seeks clarification on the concept of ‘legal persons’ by asking, on the one hand, whether this is an autonomous concept of EU law (or whether it shall be instead interpreted according to the law of the issuing or executing Member State) and, on the other, whether it also covers a branch of a legal person notwithstanding the fact that that branch does not have legal personality in the executing State. This second limb of the second question is linked with the fact that, according to Polish law, Bank BGŻ BNP Paribas Gdańsk has no legal personality (i.e. no capacity to act as a party in judicial proceedings) separate from that of Bank BGŻ BNP Paribas S.A., whose seat is in Warsaw.
When addressing the first question, the AG first notes that it is clear that the Framework Decision also applies to the mutual recognition of judgments imposing financial penalties on legal persons. Article 9(3) states that ‘a financial penalty imposed on a legal person shall be enforced even if the executing State does not recognise the principle of criminal liability of legal persons’. It seems likewise clear, therefore, that Polish legislation has not implemented the Framework Decision correctly. Albeit binding, framework decisions do not however have direct effect and cannot lead to the disapplication of incompatible national law, nor to the criminal liability of individuals being aggravated or determined on the basis of a framework decision alone (i.e. without any national implementing measure). It follows that it is for the referring court to determine whether national law (Polish law, in this case) can be interpreted in a way that is compatible with EU law. The AG makes nonetheless some considerations to help the referring court in its task.
First, he suggests that the notion of ‘offender’, which is used in Polish implementing legislation, can refer to both natural and legal persons. Even though such a notion in Polish substantive criminal law does not refer to legal persons, there is no need to interpret it in the same way as in substantive criminal law in this case. Framework Decision 2005/214 does not aim to harmonise substantive criminal law. Second, it cannot be claimed that the Framework Decision aggravates the liability of legal persons: in the main proceedings, such liability follows from Dutch legislation, so that the issues to be addressed in Poland only concerns the enforcement of the penalty.
Against this backdrop, the AG suggests to reply to the first question as follows: ‘the provisions of Framework Decision 2005/214 must be interpreted as meaning that a decision transmitted for execution which imposes a financial penalty on a legal person must be executed by the executing State even if the national provisions implementing that framework decision do not provide for the possibility of executing a decision which imposes such a penalty on a legal person. In order to do so, since the provisions of that framework decision do not enjoy direct effect, the competent executing State authority must have regard to the whole body of domestic law and apply the methods of interpretation recognised by that law with a view to interpreting the national provisions, so far as is possible, in the light of the wording and the purpose of Framework Decision 2005/214’ (para. 57).
Moving on to the second question, the AG first contends that the concept of ‘legal person’ shall not be interpreted as an ‘autonomous concept’ of EU law but rather according to the meaning given to it by the legislation of the issuing Member State. The AG argues that, by reading the above-mentioned Article 9(3) of the Framework Decision, one should conclude that the EU legislator precisely aimed to avoid the introduction of any autonomous concept in the field, as it instead refers back to the law of the Member States. Furthermore, in the scheme of Framework Decision 2005/214, it is ‘the law of the issuing State [that] governs liability and the penalty and determines the entity on whom that penalty is imposed, with the effect that the concept of “legal person” must be interpreted in the light of the law of the issuing State’ (para. 66). After all, it is known that in any mutual recognition procedure it is the executing Member State that shall accommodate to (the law of) the issuing Member State. As for the second limb of the second question, the AG notes that it is Bank BGŻ BNP Paribas Warsaw that should be regarded as the entity legally liable for Bank BGŻ BNP Paribas Gdańsk, since the former has legal personality and in fact it forms a single entity with the latter. It follows that the Dutch request can be transferred to the court having jurisdiction in Warsaw where Bank BGŻ BNP Paribas Warsaw has its seat.
Hence, the AG suggests to reply to the second question as follows: ‘The provisions of Framework Decision 2005/214 […] must be interpreted as meaning that the concept of “legal person” is not an autonomous concept of EU law, but must be interpreted in the light of the law of the issuing Member State. The concept of “legal person” within the meaning of that framework decision includes an entity without legal personality such as the entity at issue in the main proceedings, provided that entity forms a single organisational unit with an entity that does have legal personality’ (para. 83(2)).
Case Number C-183/18
Name of the parties Centraal Justitieel Incassobureau (CJIB) v Bank BGŻ BNP Paribas
Date of the judgement 2019-11-12
Court Court of Justice of the European Union (CJEU)