PENALTIES IN THE EU. COMMON PRINCIPLES SET BY THE ECJ AND PRACTICAL REFLECTIONS ON ENFORCEMENT Belén Plaza Cruz Abogado del Estado/Agente ante el TJUE Palma de Mallorca 28 de octubre de 2010

GENERAL APPROACH IDEA: Coordination Member States Law+ EU Law PROBLEM: Legislative diversity SOLUTION: Cooperation between Public Administrations De minimis regulation

NATIONAL JUDGE’S CONTROL GENERAL APPROACH (II) THREE LEVEL ACTION NATIONAL JUDGE’S CONTROL EU REGULATION CONTROL ECJ’S CONTROL

ECJ’s COMMON PRINCIPLES Difficulties in setting these principles: Legal diversity Legal value of the Principles.

ECJ’s COMMON PRINCIPLES (II) LEGALITY: Case C-303/05 + Art. 7 ECHR LEGAL CERTAINTY: Case C-308/06 + gross negligence JUDICIAL CONTROL: C-14/07 + Art. 6 ECHR PROPORTIONALITY: C-146/05 + C-188/09

ECJ’s COMMON PRINCIPLES (III) COOPERATION AND INTERNAL REMISION: 33/76 + 326/88 EQUAL TREATMENT AND NON DISCRIMINATION: 33/76 NON BIS IN IDEM: C-187/01 + C-385/01 + C- 469/03 + C-288/05 NON-RETROACTIVITY: C-98/09 + C-555/07 + C-116/08

PRACTICAL REFLECTIONS LACK OF SOURCES OUR “FEW SOURCES”: Council Framework Decision 2005/214/JHA Proposal for a Directive facilitanting cross-border enforcement in the field of road safety. 2008/062 (COD) Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures

PRACTICAL REFLECTIONS (II) OUR TWO MAIN SOURCES

LEGAL INSTRUMENT REGULATION Vs. DIRECTIVE TAXATION AND ROAD SAFETY: DIRECTIVE DIRECTIVE’s ADVANTAGES: Flexibility Data Protection

LEGAL BASIS WORKERS PROTECTION (Art. 145 and 153 TFUE) Vs. INTERNAL MARKET (Art. 26 TFUE) TAXATION: Tax Harmonisation ROAD SAFETY: Transport REASONS FOR EACH OPTION: Workers protection: A sanction prevents employers from abuse on employees Internal market: A sanction prevents employer from social dumping

SCOPE NUMERUS CLAUSUS Vs. NUMERUS APERTUS TAXATION: NUMERUS APERTUS ROAD SAFETY: NUMERUS CLAUSUS WHAT TO DO? POLITICAL OPTION DEBATE

HARMONISED DOCUMENT FOR NOTIFICATION TAXATION: Standard model ROAD SAFETY: Standard model ADVANTAGES: Mutual recognition Easy translation and understanding

PROCEDURES TAXATION: Origin State must afford all information to recover the debt. Execution State must: Notification to the debtor Collection and adoption of interim measures In case of judicial action, procedure’s suspension ROAD SAFETY: Information exchange Framework Decision 2005/214/JHA

FINAL ISSUES COMITOLOGY USE OF AN ELECTRONIC NETWORK TAXATION AND ROAD SAFETY FORESEE A COMMITTEE NEW Vs. EXISTING COMMITTEE USE OF AN ELECTRONIC NETWORK ENFORCEMENT EXPENSES

Final reflection DO WE HAVE AN EXISTING SOLUTION? DIRECTIVE 2010/24/EU. Article 2 . Scope 1. This Directive shall apply to claims relating to the following: (a) all taxes and duties of any kind levied by or on behalf of a Member State or its territorial or administrative subdivisions, including the local authorities, or on behalf of the Union; […] 2. The scope of this Directive shall include: (a) administrative penalties, fines, fees and surcharges relating to the claims for which mutual assistance may be requested in accordance with paragraph 1, imposed by the administrative authorities that are competent to levy the taxes or duties concerned or carry out administrative enquiries with regard to them, or confirmed by administrative or judicial bodies at the request of those administrative authorities […]

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