A.
The first question referred
39.
By its first question, the referring court asks the Court of Justice whether Article 1(a), Article 9(3) and Article 20(1) and (2)(b) of Framework Decision 2005/214 are to 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.
40.
In the first place, I believe that Framework Decision 2005/214 is unambiguous to the effect that, even where the law of the executing State does not recognise the principle of criminal liability of legal persons, financial penalties imposed on legal persons for road traffic offences must be recognised and enforced.
41.
I note that, according to many provisions of Framework Decision 2005/214, such as Article 1(a) and Article 4(1) thereof, or point (f) of the certificate included in the annex to that framework decision,(18) in the context of the system established thereby, a financial penalty can be imposed on both natural and legal persons.
42.
Furthermore, it emerges from a combined reading of Articles 6 and 7 of Framework Decision 2005/214 that a decision within the meaning of that framework decision must, prime facie, be recognised and enforced, and that the Member States cannot base a refusal on the fact that national law does not provide for the possibility of executing a decision imposing a financial penalty on a legal person.(19)
43.
Lastly, the EU legislature foresaw the disparities in national legislation in relation to the criminal liability of legal persons.(20) Therefore, whilst not imposing any obligation on the Member States to make legal persons criminally liable, it provided, in Article 9(3) of Framework Decision 2005/214, that a financial penalty imposed on a legal person must be enforced ‘even if the executing State does not recognise the principle of criminal liability of legal persons’.
44.
This means that Framework Decision 2005/214, whose binding character is beyond dispute,(21) clearly imposes an obligation on the Member States to execute a decision imposing a financial penalty on a legal person.
45.
That finding is not shaken by Article 20(2)(b) of that framework decision in so far as the opportunity it gave the Member States to limit its application to legal persons, on a transitional basis and subject to conditions, ended on 22 March 2010.
46.
In the second place, on the assumption that the provisions of Framework Decision 2005/214 have not been correctly transposed into Polish law, that the concept of ‘offender’ in paragraph 1 of Article 611ff of the Code of Criminal Procedure does not include legal persons and that there is no other provision that can overcome that lacuna, the referring court seeks to determine whether national law must be disapplied and whether the provisions of that framework decision must replace national law.
47.
I would call to mind here that the effects of framework decisions have been defined and delimited in the most recent case-law of the Court of Justice.(22) On the basis of the fact that framework decisions have no direct effect, the Court has held that not only can the provisions of a framework decision not be applied directly but a court of a Member State is not bound to disapply a provision of its national law that conflicts with a framework decision.(23) Nevertheless, the binding nature of framework decisions places an obligation on national authorities to interpret their domestic law in accordance with them.(24)
48.
In specific terms, this means that the national authorities have to interpret national law to the greatest extent possible in the light of the text and the purpose of framework decisions in order to achieve the result sought by those decisions. Nevertheless, no such interpretation may lead, first, to an interpretation of national law contra legem or, secondly, to the criminal liability of individuals being determined or aggravated, on the basis of a framework decision alone and in the absence of any legislation implementing its provisions, where they have committed an infringement.(25)
49.
In the present case, since Framework Decision 2005/214 has no direct effect, the referring court cannot disapply the Code of Criminal Procedure or directly apply that framework decision in its place.
50.
As regards interpreting the provisions of the Code of Criminal Procedure transposing Framework Decision 2005/214 in conformity with EU law, it is clear that, as a result of the division of competences between the Court of Justice and the national courts, in the present case it is for the referring court alone to determine whether the national law can be interpreted in conformity with EU law, taking the whole body of domestic law and the interpretative methods recognised by that law into consideration, thereby ensuring that the framework decision in question is fully effective and achieving an outcome consistent with the objective pursued by it.(26)
51.
Nevertheless, given that the referring court appears to doubt that such an interpretation is possible in the present case, I would draw attention to the following considerations.(27)
52.
First, in common with the Polish Government and the Commission, my view is that the concept of ‘offender’ can include both natural and legal persons.
53.
Furthermore, in so far as Framework Decision 2005/214 is not intended to harmonise substantive criminal law, the Polish legislature, to my mind in conformity with that framework decision, when transposing that framework decision in Chapter 66b of the Code of Criminal Procedure, used the concept of ‘offender’, which is prima facie a neutral concept, with the effect that, in the context of Chapter 66b of the Code of Criminal Procedure and of enforcing financial penalties, that concept can be interpreted independently of the meaning of that concept in substantive criminal law.(28) In my view, that approach by the Polish legislature accords with the scheme of Framework Decision 2005/214, since that decision does not in any way require the Member States to establish a mechanism for the criminal liability of legal persons even though it does oblige them to enforce financial penalties imposed on such persons.
54.
Accordingly, contrary to what the referring court suggests, in order to interpret the concept of ‘offender’ within the meaning of the provisions of the Code of Criminal Procedure concerning the enforcement of penalties, that concept is not to be understood in the meaning it has in substantive criminal law, and it can therefore, in my view, be interpreted as referring to the entity on which a final financial penalty has been imposed, whether that is a legal person or a natural person.
55.
Moreover, according to the documents before the Court of Justice, various Polish courts have already granted requests to enforce financial penalties imposed in the Netherlands on legal persons for road traffic offences. In the light of the information set out in the order for reference and in the documents put before the Court, I believe it can be found that Polish law does not preclude a fine imposed on a legal person from being enforced in that Member State or, in any event, from that law being interpreted in conformity with the provisions of Framework Decision 2005/214.
56.
Secondly, any objection based on the fact that the criminal liability of legal persons may be aggravated must be dismissed. The principle and extent of the liability of perpetrators of unlawful acts are not determined by Framework Decision 2005/214 but in accordance with the law of the issuing State and, in the executing State, in the present case the Republic of Poland, the only issue that arises is that of enforcement of the penalty.
57.
In the light of all of the foregoing, I propose that the answer to the first question referred should be that 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.
B.
The second question referred
58.
By its second question, the referring court asks the Court of Justice, first, whether the concept of ‘legal person’ in Framework Decision 2005/214 must be interpreted in accordance with the law of the issuing State or of the executing State or as an autonomous concept of EU law and, secondly, whether it can be inferred from that answer that the concept also covers an entity such as Bank BGŻ BNP Paribas Gdańsk, even though it has no legal personality of its own in the executing State.
59.
In essence, besides seeking to define the concept of ‘legal person’, the referring court wishes to determine, in circumstances such as those in the main proceedings, how the penalty must be enforced and against which entity.
60.
I would point out in that respect that, in the present case, the penalty was imposed on Bank BGŻ BNP Paribas Gdańsk, but that only Bank BGŻ BNP Paribas Warsaw has legal personality (capacity to act as a party in judicial proceedings) in Poland. Accordingly, without prejudice to the verifications to be carried out by the referring court, it is apparent from the documents put before the Court of Justice that, in Polish law, Bank BGŻ BNP Paribas Gdańsk, and Bank BGŻ BNP Paribas Warsaw form a single entity, in which the former is a local vehicle of the latter. In legal terms, the fact that they are a single organisational unit has the practical effect that, unlike Bank BGŻ BNP Paribas Warsaw, Bank BGŻ BNP Paribas Gdańsk, has no legal personality (capacity to act as a party in judicial proceedings), and therefore cannot participate in criminal or civil proceedings.(29)
61.
According to the referring court, that fact can lead to the Polish authorities refusing to enforce the penalty on the grounds that, since an entity such as Bank BGŻ BNP Paribas Gdańsk, is not able to act in the enforcement proceedings, its rights may be infringed. Such an outcome is quite clearly problematic, because the CJIB’s request must, in principle, be executed.(30)
62.
In relation to the first limb of the second question referred, first of all, the concept of ‘legal person’ must not, to my mind, be interpreted, in the scheme of Framework Decision 2005/214, as an autonomous concept of EU law.
63.
Indeed, even though the principle of autonomous interpretation is, prima facie, a guarantee of the effectiveness of EU law,(31) that approach would in the present case conflict with the intention of the EU legislature.
64.
Article 9(3) of Framework Decision 2005/214, in conjunction with the principle of mutual recognition, ensures the enforcement of financial penalties imposed on legal persons by going beyond the dichotomy between autonomous concepts and referring back to the law of the Member States.(32) Therefore, by ensuring that financial penalties will be enforced notwithstanding differences between one national legislation and another in relation to the criminal liability of legal persons, I believe that the EU legislature was seeking precisely to prevent that concept from being given an interpretation specific to EU law.
65.
I would add, moreover, that, even though the autonomous interpretation of a concept is, in principle, confined to the legal instrument of which it forms part,(33) an autonomous interpretation of the concept of ‘legal person’, even circumscribed to Framework Decision 2005/214 alone, could have serious consequences in other areas of EU law, notwithstanding the fact that both the Court of Justice and the EU legislature have to my mind always been very careful as regards that concept.(34)
66.
Secondly, in the scheme of Framework Decision 2005/214, the law of the issuing State 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.
67.
It is worth noting in that respect that Article 5(1) of Framework Decision 2005/214, pursuant to which the criminal law of the issuing State applies as regards in particular the definition of the offence, embodies the principle of territoriality in criminal law. That provision is expanded upon in Article 9(1) and (3) of Framework Decision 2005/214, according to which, first, the law of the executing State applies to enforcement of the penalty and, secondly, a financial penalty imposed on a legal person must be enforced even if the executing State does not recognise the criminal liability of legal persons.
68.
Accordingly, whilst not harmonising the substantive criminal legislation and the legislation on the enforcement of penalties of each Member State, the EU legislature nevertheless ensures the enforcement of financial penalties in the Member States by virtue of the principle of mutual recognition.(35)
69.
For all those reasons, I consider that, in the scheme of Framework Decision 2005/214, the concept of ‘legal person’ cannot be interpreted as an autonomous concept but must be interpreted in the light of the law of the issuing State.
70.
In respect of the second limb of the second question referred, I believe it is necessary to bear in mind both the need for financial penalties to be effectively enforced and protection of the rights of the entities on whom they are imposed.
71.
In the present case, since the entity penalised in the Netherlands does not have legal personality (capacity to act as a party in judicial proceedings) enabling it to act in enforcement proceedings in Poland, the difficulty lies in implementing Framework Decision 2005/214 in practice. It is clear that, for a financial penalty imposed on a legal person to be enforced in a Member State, that legal person must hold rights and obligations, failing which enforcement of the penalty will prove problematic.
72.
In that respect, a situation in which the Polish authorities, in the context of cooperation under Directive 2015/413, provide their counterparts with information that, whilst not incorrect, is at the very least incomplete,(36) undeniably prejudices the objective of both that directive and Framework Decision 2005/214. If no mention is made of the fact that the vehicle owner liable for the offence is an entity against which enforcement of a financial penalty is not guaranteed, that enforcement is inevitably jeopardised.(37)
73.
As a result, in the future and in order to ensure the sustainability of the system established by Framework Decision 2005/214, it is crucial that, under Directive 2015/413, the Member States provide data not only enabling the vehicle owner liable for the offence to be identified but also ensuring that any financial penalty can be enforced throughout the European Union, in accordance with the principle of sincere cooperation and the spirit of cooperation governing both that directive and that framework decision.(38)
74.
However, those recommendations only apply to the future and do not provide the referring court with a useful answer enabling it to discharge its obligations under Framework Decision 2005/214 in the present case.
75.
In that respect, as I have emphasised in point 66 of this Opinion, in the scheme of Framework Decision 2005/214 the law of the issuing State governs liability and the penalty and determines the entity on which that penalty is imposed, whilst the law of the executing State applies to enforcement of the penalty, and cannot thwart enforcement on the grounds that legal persons do not have procedural rights enabling them to act in enforcement proceedings.
76.
Accordingly, in a situation such as that in the main proceedings and without prejudice to the verifications to be carried out by the referring court, it seems to me that, in order to ensure enforcement of the financial penalty, Bank BGŻ BNP Paribas Warsaw can be regarded as the entity legally liable for Bank BGŻ BNP Paribas Gdańsk, as a legal person having legal personality (capacity to act as a party in judicial proceedings) and, therefore, as the entity penalised. The CJIB’s request can therefore be transferred to the court having jurisdiction in Warsaw where it has its seat, in accordance with Article 4(6) of Framework Decision 2005/214.
77.
In Framework Decision 2005/214 the EU legislature has indeed repeatedly emphasised the importance of respecting fundamental rights(39) and that its purpose was to facilitate the enforcement of financial penalties whilst ensuring respect for appropriate safeguards for the persons and entities against whom those penalties are enforced.
78.
In that respect, first, any infringements of the rights of Bank BGŻ BNP Paribas Warsaw can be, if not played down, at least envisaged in the light of the specific characteristics of its links with Bank BGŻ BNP Paribas Gdańsk. I would in fact point out that, according to Polish law, Bank BGŻ BNP Paribas Warsaw and Bank BGŻ BNP Paribas Gdańsk, form a single entity and that only the former has legal personality (capacity to act as a party in judicial proceedings). Accordingly, on the one hand, Bank BGŻ BNP Paribas Warsaw is liable for the conduct of Bank BGŻ BNP Paribas Gdańsk. On the other, the fact that Bank BGŻ BNP Paribas Gdańsk, did not wish to be questioned or to bring an appeal can be regarded as the wishes of that single entity.
79.
Secondly, a situation such as that in the main proceedings can be seen as primarily an internal dysfunction caused by a lack of communication between Bank BGŻ BNP Paribas Warsaw and Bank BGŻ BNP Paribas Gdańsk. However, since those banks constitute a single entity, such a lack of communication is of no effect, because the acts of Bank BGŻ BNP Paribas Gdańsk, such as its decision not to bring an appeal in the Netherlands, are attributed to Bank BGŻ BNP Paribas Warsaw.
80.
In any event, it is plain that, in a situation such as that in the main proceedings, Bank BGŻ BNP Paribas Warsaw must be in a position to assert its rights in the executing State.
81.
Accordingly, in any appeal against the enforcement order under paragraph 2 of Article 611fh of the Code of Criminal Procedure, it could plead that its rights were disproportionately harmed by the fact that it was unable to bring proceedings in the Netherlands. That harm and whether it was proportionate would have to be assessed on a case-by-case basis and would therefore be a matter for the courts of the executing State.
82.
I therefore propose that the answer to the second question referred should be 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 State and that the concept of ‘legal person’ within the meaning of that framework decision includes an entity without legal personality such as Bank BGŻ BNP Paribas Gdańsk, provided that entity forms a single organisational unit with an entity that does have legal personality.