Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court.

This reference concerns a German national, a resident of the Federal Republic of Germany, who was summoned before the Politierechter [Magistrate], Zutphen (Netherlands), for driving on 10 March 1977 in the District of Aalten a vehicle equipped with a radio-electrical transmitting device without possessing the licence which is required for that purpose in the Netherlands.

Whilst a licence for the possession and use of such a device is required in the Federal Republic of Germany, it appears that the accused did have one. No action was taken against him when he crossed the border between the Federal Rebublic and the Netherlands. What is more, the device was switched off at the time in question, the car aerial was retracted and tne microphone lay on the back seat.

The accused was not ordered to appear in person and he did not appear at the hearing. However, Counsel from Maastricht (Netherlands) appeared and sought leave to defend him. Contrary to the submissions of the Officier van Justitie [Public Prosecutor], the Politierechter gave Counsel leave to defend the accused pursuant to Article II of the Protocol annexed to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters since the accused was resident in a State signatory to that Convention and was being prosecuted in another State signatory to that Convention; nevertheless the accused was still sentenced in his absence.

The Magistrate rejected the defence argument that Mr Rinkau was not guilty owing to his pardonable misapprehension as to the existence of a prohibition. The Magistrate further took the view that the offence was an offence which was not intentionally committed and sentenced Mr Rinkau to a fine of 50 guilders or, failing payment thereof, to one day's imprisonment and ordered the confiscation of the equipment seized, the value of which far exceeded the amount of the fine.

The Public Prosecutor's Office appealed against that judgment to the Gerechtshof [Regional Court of Appeal], Arnhem.

That court did not follow a proposal of the Public Prosecutor's Office to refer a question to the Court of Justice as to what was to be understood by an offence which was not intentionally committed for the purposes of Article II of the Protocol. In an interim judgment it held that the act with which the accused was charged did not constitute an offence which was not intentionally committed for the purposes of that article and that the Magistrate was wrong to grant Counsel leave to defend the accused in his absence.

In its final judgment the court upheld the Magistrate's decision on the substance of the case.

Mr Rinkau then lodged an appeal in cassation. Contrary to the opinion of the Procureur-Generaal [Public Prosecutor], the Hoge Raad referred the following questions to the Court in accordance with Article 3 (1) of the Protocol of 3 June 1971 on the Interpretation by the Court of Justice of the Convention of 27 September 1968:

1. Must the expression an offence which was not intentionally committed appearing in the first paragraph of Article II of the said. Protocol be understood as including any offence for which the legal definition does not require specific intent in regard to any element of the offence, or should the expression be understood in a narrower sense as relating only to offences in the definition of which there is reference to some element of guilt (culpa) on the part of the offender? 2. If the conditions set out in Article II of the said Protocol are fulfilled, does the right granted to the accused by that article apply without restriction, or does the accused person have that right only where he has to defend himself against a civil claim made in the-relevant criminal proceedings, or at any rate where the interests of the accused under civil law are affected by the outcome of the criminal proceedings?

My opinion on those questions is as follows, and I deal with the second question first, which I consider to be expedient.

Article II of the Protocol annexed to the Convention, which, according to Article 65, forms an integral part of the Convention, reads as follows:

Without prejudice to any more favourable provisions of national laws, persons domiciled in a Contracting State who are being prosecuted in the criminal courts of another Contracting State of which they are not nationals for an offence which was not intentionally committed may be defended by persons qualified to do so, even if they do not appear in person. However, the court seised of the matter may order appearance in person; in the case of failure to appear, a judgment given in the civil action without the person concerned having had the opportunity to arrange for his defence need not be recognized or enforced in the other Contracting States.

For the purpose of construing this provision reference to the preparatory documents is of considerable help.

1. The provisions of the Protocol are based largely on considerations which were taken into account by the Benelux countries; that is particularly so in the case of Article II.

2. The report by P. Jenard on the Convention of 27 September 1968 (Official Journal C 59 of 5 March 1979, p. 1) confirms that the experts who drew up the draft Convention had the same considerations in mind:

3. It may be readily seen from that commentary. that Article II of the Protocol requires application not only in criminal proceedings as part of which civil claims are also to be tried but also in criminal proceedings in which the judgment of the criminal court may have the force of res judicata in a subsequent civil action under the relevant national law. On the other hand the provision may not be extended so far as to apply to all criminal. proceedings. The first paragraph of Article II of the Protocol may not in fact be removed from its context; it may not be treated as a general rule of criminal procedure applicable in the contracting States. The scope of its application is restricted to that of the Convention which, according to Article 1 thereof, shall apply in civil and commercial matters and to those matters only. It is only from that point of view that criminal proceedings could have concerned the draftsmen of the Convention.

4. Returning to the case in point, I am unable to see, subject to the findings of the trial judge, how a third party could have been injured as a direct result of an offence of the type in question or how that party could at a later date bring an action in which the issue of the accused's criminal liability could play a decisive part in determining any consequences in civil law.

As a result of this conclusion in regard to Question 2 I believe that consideration of Question 1 is unnecessary. In the event of the Court's taking a different view I should like to make the following brief remarks on Question 1.

In view of the considerable differences existing between the relevant legal provisions of the Member States I do not feel that it is practicable to give an exhaustive definition of what is meant by an offence which was not intentionally committed in the first paragraph of Article II of the Protocol.

The Jenard report does not address itself to this question. The expression fahrlässig begangene Straftat [offence which was not intentionally committed] which is the same in both the 1961 and 1968 Protocols (subject to the Dutch variation of niet opzettelijk for onopsettelijk) varies in the French wording of the two provisions — from infraction autre qu'une infraction intentionnelle in the 1961 version to infraction involontaire in the 1968 version. In my opinion the concept infraction autre qu'une infraction intentionnelle is to be preferred from the legal point of view.

The draftsmen of the 1968 provision, like the draftsmen of the 1961 provision, intended the provision to cover less serious offences. The question whether such acts, which, in order to reduce the number of criminal offences, particularly traffic offences, are no longer treated as offences but as contraventions, in other words as infringements of administrative rules, still fall under that provision does not need to be resolved for the purposes of this case. In any case the draftsmen of the 1968 Convention appear to have assumed that, irrespective of. the differences existing between the legal systems of the Member States, deliberate acts should not fall under Article II of the Protocol.

The term an offence which was not intentionally committed appearing in the first paragraph of Article II of the Protocol should therefore be construed as covering any act which is punishable even if it is not deliberately committed. It thus covers not only offences which were not committed intentionally but also those which do not require criminal guilt to exist or to be proved in order to be punishable.

In my opinion therefore the Court should rule that the right accorded under the first paragraph of Article II of the Protocol annexed to the Convention of 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters is available only if a person suffering injury as a result of an offence which was not deliberately committed has brought a claim for damages in criminal proceedings or it is to be expected that the accused's liability at civil law might later be invoked by that injured person or his successors in title.

1 Translated from the German.