Driving disqualification and the limits of EU rights
11 June 2012
Vinkov v Nachalnik Administrativno-nakazatelna deynost, Case C-27/11 – read judgment
Buried in the somewhat obscure details of this reference for a preliminary ruling is a hint of how the Court of Justice of the European Union (CJEU) is approaching arguments based on human rights principles as reflected in the Charter of Fundamental Rights of the European Union (‘the Charter’). Put briefly, there has to be a very clear involvement of EU law before a case can be made out under any of its human rights provisions or principles.
The Bulgarian Court of Appeal referred to the CJEU a question for a preliminary ruling arising out of a dispute over penalty points which triggered automatic disqualification from driving under Bulgarian law.
Background
Mr Vinkov was fined just under £9 for negligent driving. However along with the fine came an automatic penalty of reduction of the remaining points on his licence, which means disqualification (in Bulgaria, as in many other EU countries, the points-penalty system works in reverse to that in operation in the UK, with disqualification following the loss of all points). Bulgarian law does not allow any appeal against a fine of 50 Bulgarian lev or below, defining it as an administrative penalty that is not admissible in the appellate system. But there was some doubt over the consequence for an individual if this penalty is accompanied by the automatic deduction of points, which happens to lead to disqualification. If this is an automatic legal consequence on the basis of penalty orders which cannot be challenged, should it be recognised by another EU state or does it offend against the fair trial principles of Article 6 of the Human Rights Convention, as reflected in Articles 47 and 48 of the European Charter of Fundamental Freedoms? The right to review of a criminal sentence enshrined in Article 2 to Protocol 7 of the ECHR is also in play here.
The question before the Court
The question had to be framed in terms of EU law otherwise there would have been no grounds for seeking a reference to the CJEU in the first place. But it is somewhat surprising that the case got as far as it did, given that the appellant was a Bulgarian resident disputing the outcome of a Bulgarian court decision. Much was made of the EU Convention on Driving Disqualifications, which has been drawn up to ensure that drivers who are disqualified from driving in a Member State other than that in which they normally reside should not escape the effects of their disqualification when they leave the State of the offence. But this was a somewhat contrived argument since the question did not turn upon the enforcement of the Bulgarian judgment in another EU state.
Nevertheless the Bulgarian court based its reference on the principle of mutual recognition of decisions issued in another Member State that concern breaches of road traffic regulations. Should EU law, it asked, preclude national legislation that does not recognise a right of appeal against decisions entailing the deduction of points from driving licences? Put another way, should the principle of mutual recognition, on which judicial cooperation in criminal matters is based, be applied only in compliance with fundamental rights and thus with the right to an effective remedy enshrined in Article 6 ECHR?
The Strasbourg Court has ruled in Öztürk v. Germany 1984, Series A no. 73, that Article 6 of the ECHR does not preclude the decriminalisation of minor offences, such as that at issue in the main proceedings, but that the associated penalties fall within the scope of that article if they retain their punitive character. Disqualification from driving is arguably of such a character.
Not entirely surprisingly, the reference was declared inadmissible
The court’s reasoning
The CJEU concluded that the principle of mutual recognition was not relevant to the outcome of the driving penalty dispute. The principle is, by definition, only relevant to cross-border proceedings concerning the recognition and enforcement of a decision in a Member State other than that in which the decision was issued.
In the present case, the dispute in the main proceedings is purely internal. It concerns a person residing in the Republic of Bulgaria who challenged the decision by which the authorities of that Member State imposed a penalty following a traffic accident that occurred in Bulgaria.[54]
Furthermore, the Court was not prepared to accept that this was a matter where consideration of ECHR or Charter rights was relevant. It recalled that
it is settled case-law that the requirements flowing from the protection of fundamental rights are binding on Member States whenever they implement EU law (see orders in Case C-339/10 Asparuhov Estov and Others [2010] ECR I-0000, paragraph 13; Case C-457/09 Chartry [2011] ECR I-0000, paragraph 25; and order of 14 December 2011 in Joined Cases C-483/11 and C-484/11 Boncea and Others, paragraph 29).
The imposition of a penalty for a driving offence did not in its view constitute a measure implementing EU law was it connected in any other way with EU law. Accordingly, the jurisdiction of the Court to rule on the reference for a preliminary ruling in so far as it relates to the fundamental right to an effective remedy had not been established.
Comment
Beyond all the boggling detail about interlocking and overlapping EU Treaty provisions, agreements and conventions, the conclusion to this saga was entirely predictable. Maybe Mr Vinkov would have fared differently if he had been challenging the enforcement of the disqualification decision in some other EU country. There was after all no shortage of relevant EU law in the picture; not only the Convention on Driving Disqualifications, but the application of the principle of mutual recognition to financial penalties (OJ 2005 L 76, p. 16, ‘the Framework Decision‘, which in its preamble declares itself to be “the cornerstone of judicial cooperation” in the EU. Unfortunately for Mr Vinkov, Bulgaria has not signed up to that agreement. In any event what the CJEU really objected to was the invocation of the principle of mutual recognition in a case where the party challenging the decision was a resident of the state that had made it; the weakness of Mr Vinkov’s case, in other words, was not that he had no claim to EU rights, but that he was not resisting the imposition of the penalty imposed by another Member State. If the fine had been imposed by an Italian court, for example, or a Greek one, there may have been a stronger claim to a “cross-border element”. Even so, this may prove to be necessary but not sufficient. The CJEU is clearly sceptical of attempts by parties to reach for EU provisions in order to shoehorn the Charter and consequential ECHR rights into their arguments.
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