1. 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

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

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

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

5. 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

6. ECJ’s COMMON PRINCIPLES (III)
COOPERATION AND INTERNAL REMISION: 33/ /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

7. 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 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures

8. PRACTICAL REFLECTIONS (II)
OUR TWO MAIN SOURCES

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

10. 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

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

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

13. 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

14. 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

15. 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 […]

16. THANK YOU VERY MUCH MUCHAS GRACIAS