The orientation debate held in the Council on Monday 30 November on the framework decision on the transfer of proceedings in criminal matters (*) (Interinstitutional Procedure 2009/0811, Council document 13504/09) highlighted that currently there are several different legal possibilities to transfer criminal proceedings within the Union and this contributes to legal uncertainty, incompatibility between legal systems and is contrary to the Treaty objective of creating an Area of justice within the Union. The Presidency is convinced that transfer of proceedings is a missing link in the cooperation between Member States and that a provision on the creation of jurisdiction would become a cornerstone in such cooperation.
According to the Council Press Release progress has been made on several provisions. There remain, however, outstanding questions related to an essential element of this draft legislation, namely the question of jurisdiction. Ministers held a substantial discussion on the principle of jurisdiction to be used for future work on this dossier.
While some member states prefer the principle of territoriality, others suggest the principle of active/passive personality.
A proposal has also been made by the Council Presidency and of a large number of delegations to foresee a mechanism creating subsidiary jurisdiction (meaning that if a Member State does not have original jurisdiction the jurisdiction is created through the actual transfer), for the purpose of transfer of proceedings, creates an added value to the mechanisms already provided for by the draft Framework Decision (see in the latest version of the draft Framework Decision (Doc.16437/1/09) a therefore has included in Article 5 a mechanism establishing subsidiary jurisdiction. However, it is apparent from the discussions of the proposal that the issue is complex. Consequently, the Council Presidency is hesitant to create a mechanism on jurisdiction that would represent a lowest common denominator, given that the legal systems are so different in the Union. In addition, this could mean that a lower level of cooperation than is currently adopted by thirteen Member States, i.e. those that have ratified the 1972 Council of Europe Convention on Transfer of Criminal Proceedings would be created.
All Member States should, for the purpose of applying an instrument on transfer of proceedings, to some
extent be obliged to extend their national rules on jurisdiction to include other offences committed outside the territory of their Member State. This would contribute to the fight against cross border crime. The aim should be to create a common solution for all Member States.
Despite these unresolved issues important progresses have been made which will be the basis for a new legislative proposal, which has been necessary with the entry into force of the Treaty of Lisbon.
Indeed, under the Lisbon Treaty, EU legislation in the area of judicial cooperation in criminal matters will move from the “third pillar” procedure (requiring unanimity in the Council and simple consultation of
the European Parliament) to the ordinary legislative procedure (formerly the co-decision procedure) with qualified majority voting in the Council and full co-legislative powers of the European Parliament.
(*) This legislative proposal was presented in June 2009 and aims to provide the EU members with instruments to have the opportunity to concentrate the prosecution in cross-border multilateral cases in one Member State.