New proposals on transfer of criminal proceedings between EU Member States

06 April 2023
by eub2 -- last modified 06 April 2023

The European Commission adopted on 5 April a proposal for a Regulation on the transfer of criminal proceedings between Member States.

Why is the Commission proposing this Regulation?

This proposal aims to harmonise the rules on transfer of criminal proceedings within the EU. Member States currently transfer criminal proceedings between themselves using a patchwork of different legal instruments. For example, the European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972 was ratified and applied only by 13 Member States. The majority of the Member States therefore rely on Article 21 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, under which transfer is largely unregulated and relies on national laws. In 1990, Member States signed an Agreement on the transfer of proceedings in criminal matters, but it has not entered into force.

A measure on transfer of proceedings has been under discussion since the entry into force of the Lisbon Treaty, which changed the way EU rules in the criminal law field were presented and adopted. This proposal is delivering on the goals set in the EU strategy to tackle organised crime, which emphasises that transfer of criminal proceedings is an important tool, which would reinforce the fight against organised criminal groups that are active in the Member States across the EU.

What are the objectives of the Commission's proposal?

Common rules on transfer criminal proceedings from one Member State to another are necessary to ensure that the best-placed Member State investigates or prosecutes a criminal offence. Such common rules will help:

• prevent unnecessary parallel proceedings concerning the same facts and the same individual in different Member States, that could result in an infringement of the fundamental principle that a person may not be prosecuted or punished for the same offence twice (ne bis in idem principle);
• avoid cases of impunity where surrender under a European Arrest Warrant is refused.

Will the accused be able to request transfer of proceedings or is it only the prosecuting authorities?

Under the proposal the suspect or the accused person may request the competent authorities of either the requesting State or requested State to initiate a procedure to transfer criminal proceedings. It is important to note that such requests do not create an obligation for the requesting or the requested State to effectuate the transfer of criminal proceedings.

Who is responsible for initiating the transfer of proceedings, the State currently prosecuting the case or the State that would receive the case, or both?

According to the proposal, the State conducting the criminal proceedings is responsible for issuing the request to transfer those proceedings. However, the State that would take over criminal proceedings may consult the State currently conducting the proceedings about the possibility for issuing a request for transfer of those proceedings.

How will it work in practice?

Before transferring the proceedings, the authority conducting the proceedings must carefully assess whether the transfer of criminal proceedings to another Member State is necessary and appropriate based on the criteria identified in the proposal. The requesting authority must also give due consideration to the legitimate interests of the suspect or accused person and those of the victim and should consult with them on the intended transfer, where the conditions allow for it, without undermining the confidentiality of investigation.

If the authority decides to issue a request for transfer of proceedings, it should fill in the template set out in the Annex to the proposal, translate it into the official language of the other Member State (or another language acceptable to that MS), and send the request via the decentralised IT system that will be set up for the transmission of such requests. 

The requested authority will have 60 days to decide whether to accept or refuse the transfer of criminal proceedings. If it refuses the transfer of proceedings, it must provide reasons for such refusal. However, if the transfer of proceedings is accepted, the requesting authority must transfer the case to the requested authority of another Member State. The suspects/accused persons and victims will have the right to effective legal remedies in the requested State against a decision to accept the transfer of criminal proceedings, and in certain cases, such a remedy will have a suspensive effect on the transfer procedure.

What determines the sentence for a criminal offense after a transfer of proceedings between EU Member States?

In case of acceptance of the transfer, the requested State authorities will decide which further measures to take in accordance with their national law and they will have to inform the requesting authority about the final outcome of the transferred proceedings. The sentence applicable to the criminal offence following transfer in the requested State shall be the one prescribed by the law of the requested State (unless that law provides otherwise). However, when the criminal offence was perpetrated in the territory of the requesting State, the requested State may take into account the maximum sentence set out in the law of the requesting State. The maximum sentence envisaged in the law of the requesting State should always be taken into account where jurisdiction of the requested State is based exclusively on the proposal.

Proposal for a Regulation on transfer of proceedings in criminal matters

Transfer of criminal proceedings

Source: European Commission