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Legal IssuesThe Eurosparks research project in 2007 identified a number of legal issues that prevent local authorities enforcing decriminalised traffic laws across EU borders. Classification of OffencesTraffic violations are not classified consistently across Europe, the same offence may be considered criminal in one member state, civil in another and administrative in another. Further the terms civil and decriminalised mean different things in different member states.Most member states have separate systems with their own legal structures and courts for private law, public law and criminal law. Disputes involving local authorities are considered public law disputes and cannot be dealt with through civil or criminal legal systems. The UK does not have this rigid public private distinction, instead classifying its legal structures into civil and criminal law. The effect is that penalties issued to vehicles registered in other member states become unenforceable in practice because incompatible judicial procedures are used in the issuing and enforcing states. For instance a parking violation committed by the owner of a Spanish-registered vehicle would be considered civil in the UK but a public law dispute in Spain. It cannot be pursued through either the private [civil] or criminal jurisdictions in Spain. Additionally it cannot be enforced through the public jurisdiction because of the principle that one state’s courts will not enforce the public law of another state. Mutual AssistanceEven when a financial penalty is successfully enforced in another member state, UK local authorities are unlikely to recover the debt because there are no legal structures to transfer moneys recovered to a UK legal jurisdiction.Currently, civil-commercial debts can be enforced across EU borders using existing judicial co-operation measures. When COPEN 24 (Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties) is implemented into national law in member states, it will require each state to recognise and enforce criminal financial penalties for offences such as speeding and drunk driving. Both these measures explicitly exclude civil-administrative debts, those issued by public authorities, and there is no separate system of judicial co-operation planned so such debts can be recovered across borders. Procedures & PracticesMember states have a variety of enforcement processes that further complicate enforcement:
These differences can lead to one member state considering another state’s penalties to be disproportionate to the violation. Data TransferTwo pieces of legislation currently apply to data transfer. The Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981) concerns automatically processed personal data.The Data Protection Directive (Directive on the Protection of Individuals with regard to the Procession of Personal and on the free Movement of Such Data 1995) provides a basic framework for data protection. The Directive only applies to first pillar economic and social rights under the 1957 Treaty of Rome, it does not apply to third pillar police and judicial co-operation matters. The former Convention applies to such matters in relation to signatory states. A framework decision is proposed to provide a legal data transfer regime for the third pillar but it will only apply to criminal affairs. From a national jurisdiction point of view data sharing or transfer may be explicitly allowed by legislation or based on powers implied in legislation, common law or a prerogative power such as public security. For members of the EU, the Directive would have to be complied with. The difficulty for government organisations is that, if there is no explicit authorisation for transfer in legislation, they need to be confident of implied powers, especially for routine transfer. |
Facts & Figures
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