Objectives of the proposal
In order to efficiently fight cross-border crime and to ensure that the best-placed Member State investigates or prosecutes a criminal offence, on 5 April 2023 the Commission has proposed new rules in the form of a Regulation which will make it easier to transfer criminal proceedings from one Member State to another.
The proposal aims to prevent unnecessary parallel criminal proceedings in different Member States concerning the same facts and the same person, that could result in an infringement of the fundamental principle of criminal law that a person may not be prosecuted or punished twice for the same offence (ne bis in idem principle). It also aims to reduce the number of multiple criminal proceedings being conducted in different Member States either in respect of the same facts or against the same person. The proposal also aims to ensure that a transfer of criminal proceedings can take place, when the surrender of a person for criminal prosecution under a European Arrest Warrant is refused in order to enable the person being prosecuted to avoid impunity.
EU Member States currently transfer criminal proceedings between themselves using a variety of different legal instruments, rather than uniform legal framework across the EU. The challenges that authorities face in the current legal set-up have been summarised in the analytical staff working document accompanying the proposal.
The proposal is part of the 2021-2025 EU strategy to tackle organised crime and results from the Hague Programme for strengthening freedom, security and justice in the European Union and the Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, as well as the calls for action by the Council and the European Parliament (The impact of organised crime on own resources of the EU and on the misuse of EU funds - 15 December 2021).
On 6 March 2024, the European Parliament and the Council provisionally agreed on the proposed Regulation. The provisional agreement maintains most of the elements of the Commission proposal, and is in line with its objectives.
How will the proposal facilitate the transfer of criminal proceedings?
The objectives of the initiative would be achieved by:
- Creating the procedure for the transfer of criminal proceedings from one Member State to another, where the objective of an efficient and proper administration of justice would be better served by conducting criminal proceedings in the other Member State;
- Including strong safeguards: the new rules guarantee strong protection of fundamental rights. The suspect or accused person and the victim will benefit from various safeguards and will be entitled to a legal remedy against a decision to accept the transfer of criminal proceedings;
- Providing legal certainty for authorities and citizens: whereas today judicial authorities often face legal and practical issues resulting from the absence of a common legal framework, in the future, applying the same rules across the EU will improve legal certainty and clarity;
- Making the digital channel the default, mandatory one for all cross-border communication between the requesting and requested authorities (subject to justified exceptions).