Criminal investigations: Council reaches position on the transfer of proceedings between member states

Today the Council agreed its negotiating position (general approach) on a proposed EU law related to the transfer of proceedings in criminal matters.

The proposal aims to prevent unnecessary parallel proceedings and to contribute to the efficient and proper administration of criminal justice in the member states.

Improving the administration of justice

This regulation, once adopted, will lay down rules on the transfer of criminal proceedings between member states. It will improve the respect of fundamental rights in the process of transferring criminal proceedings and boost efficiency and legal certainty.

It will also help prevent impunity when the surrender of a person to another member state under a European Arrest Warrant is refused.

Common rules for the transfer of proceedings

In the future, the authorities of a country will decide to request the transfer of proceedings (to another country) on the basis of a list of common criteria. These criteria include:

• the criminal offence has been committed on the territory of the member state to which the proceedings are to be transferred
• one or more suspects or accused persons are nationals of or residents in that member state
• one or more suspects or accused persons are present in the member state to which the proceedings are to be transferred
• most of the evidence relevant to the investigation or the majority of the relevant witnesses are located/reside in that member state

The regulation also comes with obligations with respect to the rights for the suspects and accused persons as well as victims when deciding on a transfer.

The country that has been asked to transfer the proceedings must inform the other country about its decision – whether to accept or refuse the transfer – no later than 60 days after it has received the request. This time limit may be extended by a maximum of 30 days.

Right to an effective legal remedy

Suspects, accused persons and victims will have the right to an effective legal remedy against the decision to accept the transfer of criminal proceedings. They will be able to exercise this right in the country to which the criminal proceedings are transferred.

There will be a time limit for seeking legal remedy of no longer than 20 days from the date of receipt of the decision to accept the transfer of criminal proceedings. The Council has agreed that the final decision on the legal remedy must be taken without undue delay and, where possible, within 60 days.

Next steps

Based on the position agreed on today, the Council will be able to start negotiations with the European Parliament – once they have settled on their position – in order to decide on a common legal text.

Background

With the expansion of cross-border crime, criminal justice in the EU has increasingly been confronted with situations where several member states have jurisdiction to prosecute the same case. This is particularly true for crimes committed by organised criminal groups. Rules on the transfer of criminal proceedings could help clarify which member state would be best placed to conduct a criminal proceeding.

However, there are currently no EU level rules which regulate the transfer of criminal proceedings. Instead, member states must rely on the 1959 European Convention on Mutual Assistance in Criminal Matters. In 2009, member states negotiated a framework decision on the transfer of criminal proceedings. These negotiations were discontinued when the Lisbon Treaty – which gave more competences to the EU in police and judicial cooperation in criminal matters – entered into force.

A proposal for an EU law on this matter was eventually presented by the Commission on 5 April 2023.