DECISION OF THE EXECUTIVE COMMITTEE

of 28 April 1999

on the Agreement on cooperation in proceedings for road traffic offences

(SCH/Com-ex (99)11 Rev. 2)

THE EXECUTIVE COMMITTEE,

Having regard to Article 132 of the Convention implementing the Schengen Agreement,

Having regard to the Joint Declaration made by the Ministers and Secretaries of State meeting in Schengen on 19 June 1990,

HAS DECIDED AS FOLLOWS:

The Agreement on cooperation in proceedings for road traffic offences and the enforcement of financial penalties imposed in respect thereof (SCH/III (96)25 Rev.18) is hereby adopted.

The delegations' representatives are requested to draw up an Explanatory Report to the Agreement, dealing in particular with the points outlined in the Annex to this decision.

Luxembourg, 28 April 1999.

The Chairman

C. H. Schapper

AGREEMENT ON COOPERATION IN PROCEEDINGS FOR ROAD TRAFFIC OFFENCES AND THE ENFORCEMENT OF FINANCIAL PENALTIES IMPOSED IN RESPECT THEREOF

SCH/III (96)25 Rev. 18

The Governments of the KINGDOM OF BELGIUM, the FEDERAL REPUBLIC OF GERMANY, the FRENCH REPUBLIC, the GRAND DUCHY OF LUXEMBOURG and the KINGDOM OF THE NETHERLANDS, Parties to the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders signed in Schengen on 19 June 1990, hereinafter referred to as the "1990 Convention", as well as the Governments of the ITALIAN REPUBLIC, the KINGDOM OF SPAIN and the PORTUGUESE REPUBLIC, the HELLENIC REPUBLIC, the REPUBLIC OF AUSTRIA, the KINGDOM OF DENMARK, the KINGDOM OF SWEDEN and the REPUBLIC OF FINLAND which acceded to the 1990 Convention by the Agreements signed on 27 November 1990, 25 June 1991, 6 November 1992, 28 April 1995 and 19 December 1996 respectively, and the Governments of the Kingdom of Norway and the Republic of Iceland, which signed a Cooperation Agreement with the former on 19 December 1996, hereinafter referred to as the "Contracting Parties",

Whereas the free movement of persons referred to in the 1990 Convention furthers the travel of citizens across the internal borders;

Whereas it is common knowledge that citizens of the Schengen States also commit road traffic offences when staying on the territory of a Contracting Party other than that on whose territory they habitually reside;

Whereas it has been shown that it is not always possible, in spite of sustained efforts to clamp down on road traffic offences, to establish the identity of the perpetrators before they return to the territory of the Contracting Party where they habitually reside and to enforce financial penalties in respect of the offences committed;

Convinced that cooperation between the Contracting Parties in this field is necessary and that the fact that different authorities are responsible for enforcement of the Highway Code should not become an obstacle to such cooperation;

Implementing the Joint Declaration of the Ministers and Secretaries of State of 19 June 1990, which lays down that discussions should be held to improve cooperation in prosecuting road traffic offences and to examine the scope for the mutual enforcement of financial penalties,

HAVE AGREED AS FOLLOWS:

CHAPTER I

Definitions

Article 1

For the purposes of this Agreement:

Road traffic offence

shall mean conduct which infringes road traffic regulations and which is considered a criminal or administrative offence, including breaches of regulations pertaining to driving hours and rest periods and regulations on hazardous goods.

Financial penalty

shall mean the obligation to pay a sum of money in respect of a road traffic offence, the amount of which is assessed by the judicial or administrative authorities of the Contracting Parties.

Competent Authority

shall mean the judicial or administrative authority of the Contracting Parties responsible for proceedings for road traffic offences and enforcing financial penalties in respect thereof.

Decision

shall mean an act by the competent authorities of one of the Contracting Parties establishing a road traffic offence in respect of which a financial penalty has been imposed on a person, against which an appeal may be or could have been lodged.

Requesting Authority

shall mean the competent authority of the Contracting Party in whose territory the road traffic offence was committed.

Requested Authority

shall mean the competent authority of the Contracting Party in whose territory the person suspected of having committed a road traffic offence or upon whom a financial penalty has been imposed in respect thereof either resides or has his habitual residence.

Requesting Contracting Party

shall mean the Contracting Party in whose territory a decision has been delivered in respect of a person who either resides in, or has his habitual residence in, the territory of another Contracting Party.

Requested Contracting Party

shall mean the Contracting Party in whose territory a person in respect of whom a decision has been delivered in the territory of another Contracting Party either resides or has his habitual residence.

CHAPTER II

Principles

Article 2

1. The Contracting Parties undertake to accord each other the widest possible cooperation in proceedings for road traffic offences and the enforcement of decisions in respect thereof in accordance with the provisions of this Agreement.

2. Paragraph 1 shall be without prejudice to the application of broader provisions of bilateral or multilateral agreements in force between the Contracting Parties.

3. Chapter IV of this Agreement shall not apply:

(a) to the enforcement of a decision which includes a penalty involving deprivation of liberty as the main penalty;

(b) to road traffic offences which coincide with offences that are not related to road traffic only, unless the road traffic offence is prosecuted exclusively or separately.

CHAPTER III

Cooperation in proceedings for road traffic offences

Article 3

1. The competent authorities may, by communicating a vehicle registration number through their national vehicle registration authorities, request information from the national vehicle registration authorities of the other Contracting Parties concerning the type and make of the corresponding motor vehicle as well as the identity and address of the person or persons with whom the motor vehicle in question was registered when the road traffic offence was committed.

2. The vehicle registration authorities of the Contracting Parties shall directly send each other the information referred to in paragraph 1 with a view to transmission to the competent authority. They shall also send the name and address of the requested authority if it is a different authority.

3. A Contracting Party may designate another central authority for the exchange of the information referred to in paragraph 2.

4. The relevant provisions of the 1990 Convention and, in particular, Articles 126 to 128 thereof shall apply to the transmission of personal data in accordance with paragraph 1.

Article 4

1. The requesting authority may send all communications concerning the consequences and decisions relating to the road traffic offence directly to the persons suspected of having committed a road traffic offence. The provisions of Article 52 of the 1990 Convention shall apply by analogy.

2. The communications and decisions referred to in paragraph 1 shall contain or be accompanied by all information which the recipient requires in order to react, in particular regarding:

(a) the nature of the road traffic offence, the place, date and time at which it was committed and the manner in which it was established;

(b) the registration number and, where possible, the type and make of the motor vehicle with which the road traffic offence was committed or, in the absence of this information, any means of identifying the vehicle;

(c) the amount of the financial penalty which may be imposed, or, where appropriate, the financial penalty which has been imposed, the deadline within which it has to be paid and the method of payment;

(d) the possibility of invoking exonerating circumstances, as well as the deadlines and procedures for presenting these circumstances;

(e) the possible channels of appeal against the decisions, the procedures and deadlines for lodging an appeal, as well as the contact details of the authority with which an appeal should be lodged.

Article 5

1. If the addressee does not respond to communications or decisions pursuant to Article 4 within the stipulated period or if the requesting authority considers further information necessary to apply this Agreement, the latter may directly seek assistance from the requested authority. A translation into the official language or one of the official languages of the requested Contracting Party shall be attached to such requests for assistance.

2. The provisions of title III, chapter 2 of the 1990 Convention shall apply to the requests referred to in paragraph 1.

CHAPTER IV

Enforcement of decisions

Article 6

1. The transfer of the enforcement of decisions may only be requested under this Agreement where:

(a) all channels of appeal against the decision have been exhausted and the decision is enforceable in the territory of the requesting Contracting Party;

(b) the competent authorities have, in particular in accordance with Article 4, requested the person concerned to pay the financial penalty imposed but to no avail;

(c) the financial penalty is not statute-barred by limitation under the law of the requesting Contracting Party;

(d) the decision concerns a person who resides or who has his habitual residence in the territory of the requested Contracting Party;

(e) the amount of the fine or financial penalty imposed is at least EUR 40.

2. The Contracting Parties may bilaterally alter the scope of the provisions under point 1(e).

Article 7

1. The transfer of the enforcement of a decision may not be refused unless the requested Contracting Party deems that:

(a) the road traffic offence giving rise to the decision is not provided for under the law of the requested Contracting Party;

(b) enforcement of the request runs counter to the principle of ne bis in idem pursuant to Articles 54 to 58 of the 1990 Convention;

(c) the financial penalty is statute-barred by limitation under the law of the requested Contracting Party;

(d) the person concerned would have been granted an amnesty or a pardon by the requested Contracting Party if the road traffic offence had been committed on the territory of the requested Contracting Party.

2. The requested Contracting Party shall inform the requesting Contracting Party as soon as possible of a refusal to execute the request, giving the reasons for the refusal.

Article 8

1. The decision shall be enforced without delay by the competent authorities of the requested Contracting Party.

2. The financial penalty shall be payable in the currency of the requested Contracting Party. The amount shall be calculated on the basis of the official exchange rate obtaining when the decision mentioned in paragraph 1 is taken.

3. Should it transpire upon conversion that the amount of the financial penalty imposed by the decision exceeds the maximum amount of the financial penalty prescribed in respect of the same type of road traffic offence by the law of the requested Contracting Party, the enforcement of the decision shall not exceed this maximum amount.

4. At the time of depositing its instrument of ratification, acceptance or approval, each State may, for reasons of a constitutional order or of equal importance, declare that it intends to derogate from the application of paragraph 1 by making a declaration defining the cases in which the financial penalty to be enforced must be declared enforceable by a judicial decision of the requested Contracting Party before enforcement. This judicial decision shall not, however, concern the contents and the amount of the decision of the requesting Contracting Party which is to be enforced.

Article 9

1. The enforcement of the decision shall be governed by the law of the requested Contracting Party.

2. Any part of the financial penalty already enforced in the requesting Contracting Party shall be deducted in full from the penalty to be enforced in the requested Contracting Party.

3. Where a financial penalty cannot be enforced, either totally or in part, an alternative penalty involving deprivation of liberty or coercive detention may be applied by the requested Contracting Party if provided for in both Contracting States, unless expressly excluded by the requesting Contracting Party.

Article 10

The requesting Contracting Party may no longer proceed with the enforcement of the decision once it has requested the transfer of enforcement. The right of enforcement shall revert to the requesting Contracting Party upon its being informed by the requested Contracting Party of the latter's refusal or inability to enforce.

Article 11

The requested Contracting Party shall terminate enforcement of the decision as soon as it (the requested Contracting Party) is informed by the requesting Contracting Party of any decision, measure or any other circumstance as a result of which enforcement of the decision is suspended or the decision ceases to be enforceable.

Article 12

1. Requests for the transfer of the enforcement of a decision and all communications relating thereto shall be made in writing. They may be transmitted through any appropriate channels leaving a written record, including a fax.

2. Documents shall be transmitted directly between the competent authorities of the Contracting Parties, the contact details of which shall be furnished by the vehicle registration authorities (Article 3(2)). These documents shall be transmitted via the designated central authorities of the Contracting Party if the contact details of the competent authority cannot be inferred from the information referred to in the first sentence.

Article 13

1. The request for the transfer of enforcement of a decision shall be accompanied by a copy of the decision and a declaration by the competent authority of the requesting Contracting Party certifying that the conditions laid down in points (a), (b) and (c) of Article 6(1) have been fulfilled.

2. Where appropriate, the requesting Contracting Party shall accompany its request by other information relevant to the transfer of the enforcement of a decision, in particular information regarding the special circumstances of the offence which were taken into consideration when assessing the financial penalty and, where possible, the text of the legal provisions applied.

3. If the requested Contracting Party considers that the information supplied by the requesting Contracting Party is inadequate to enable it to apply this Agreement, it shall ask for the additional information required.

4. The translation of the relevant documents into the official language or one of the official languages of the requested Contracting Party shall be attached.

Article 14

The competent authorities of the requested Contracting Party shall inform the competent authorities of the requesting Contracting Party of the enforcement of the financial penalty or, where appropriate, of inability to enforce the decision.

Article 15

The financial penalty and the cost of proceedings incurred by the requesting Contracting Party shall be enforced. Monies obtained from the enforcement of decisions shall accrue to the requested Contracting Party.

Article 16

Contracting Parties shall not claim from each other the refund of costs resulting from application of this Agreement.

CHAPTER V

Final provisions

Article 17

1. The Executive Committee established by the 1990 Convention shall have the general task of monitoring the proper application of this Agreement. The provisions of Article 132 of the 1990 Convention shall apply.

2. The Joint Supervisory Authority established by the 1990 Convention shall be responsible, in matters relating to the protection of personal data, for delivering an opinion on the common aspects resulting from the implementation of this Agreement.

3. At the proposal of a Contracting Party, the Executive Committee may decide to alter the amount provided for under point (e) of Article 6(1).

Article 18

This Agreement shall apply to the territory of the Contracting Parties. However, pursuant to Article 138 of the 1990 Convention, as regards the French Republic this Agreement shall apply only to the European territory of the French Republic, and as regards the Kingdom of the Netherlands this Agreement shall apply only to the European territory of the Kingdom of the Netherlands. Pursuant to Article 5(1) of the Agreement on the Accession of the Kingdom of Denmark to the 1990 Convention, this Agreement shall not apply to the Faeroe Islands and Greenland.

Article 19

1. This Agreement shall also be applicable to traffic offences committed before its entry into force.

2. When depositing its instrument of ratification, acceptance or approval, each State may declare that, as far as it is concerned and in its relations with those Contracting Parties which have made a similar declaration, this Agreement shall only apply to road traffic offences committed after its entry into force or after it has become applicable.

Article 20

1. This Agreement is subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Government of the Grand Duchy of Luxembourg, which shall notify all the Contracting Parties thereof.

2. This Agreement shall enter into force on the first day of the second month following the date of deposit of the last instrument of ratification, acceptance or approval by the States for which the 1990 Convention has been brought into force as pursuant to paragraph 1, second subparagraph, of the Final Act of the abovementioned Convention.

The Government of the Grand Duchy of Luxembourg shall notify all the Contracting Parties of the date of entry into force.

In respect of the other States, this Agreement shall enter into force on the first day of the second month following the date of deposit of the instruments of ratification, acceptance or approval, at the earliest, however, on the date of bringing into force an Accession Agreement for these States to the 1990 Convention or to the 1996 Cooperation Agreement.

3. Pending the entry into force of this Agreement, each State in which the 1990 Convention has been brought into force at the time of deposit of its instrument of ratification, acceptance or approval may, when depositing this instrument or at any later stage, declare this Agreement applicable in its relations with those States which make a similar declaration. This declaration shall take effect as of the first day of the second month following the date of deposit.

Article 21

1. Each Contracting Party may submit a proposal for an amendment to this Agreement to the depositary. The depositary shall inform the other Contracting Parties of this proposal.

2. The Contracting Parties shall adopt any amendments to this Agreement by common assent.

3. The amendments shall enter into force on the first day of the second month following the date of deposit of the last instrument of ratification, acceptance or approval.

Article 22

1. At the latest when depositing its instrument of ratification, acceptance or approval, each State shall notify the depositary of the names and addresses of the authorities within the meaning of Articles 1, 3 and 11(2).

2. The lists of authorities pursuant to paragraph 1 may, by way of derogation from Article 19(1), be subsequently changed at any time by notification to the depositary.

3. The depositary shall inform each Contracting Party of the designated authorities and subsequent changes.

Article 23

This Agreement shall be open to accession by all States which become Parties to the 1990 Convention.

In witness whereof, the undersigned, duly authorised to that end, have signed this Agreement.

Done at Luxembourg, this twenty-eighth day of April in the year one thousand nine hundred and ninety-nine, in a single original in the Dutch, English, French, German, Greek, Italian, Portuguese and Spanish languages, all eight texts being equally authentic.The texts in the Danish, Finnish, Icelandic, Norwegian and Swedish languages, to be submitted at a date after the signing, shall be equally authentic.