EN    EN EN 
 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 8.7.2009 
SEC(2009) 916 
  
COMMISSION STAFF WORKING DOCUMENT 
Accompanying the 
Proposal for a  
 
COUNCIL FRAMEWORK DECISION 
 
on the right to interpretation and to translation in criminal proceedings 
  
SUMMARY OF THE IMPACT ASSESSMENT  
   
{COM(2009) 338 final} 
{SEC(2009) 915} 
 
EN 2   EN COMMISSION STAFF WORKING DOCUMENT  
EXECUTIVE SUMMARY  
1. B ACKGROUND  
The right of accused persons and suspects to a fair trial is a fundame ntal right which the 
European Union respects as a general princi ple under Article 6(2) TEU. Legal practitioners 
and Member States (MS) agree that a prerequi site for mutual trust is that MS' national 
criminal justice systems guarantee suspects a nd accused persons, whatever their nationality, 
minimum safeguards. Action in this area was a priority under the Hague Programme. A new 
proposal is envisaged by the Commission's Legislative Work Programme for 2009. The 
impact assessment evaluates the options for this proposal.  
2. P OLITICAL MANDATE , LEGAL BASIS AND CONSULTATION OF INTERESTED 
PARTIES . 
The rights of the defence were explicitly me ntioned in the Tampere Conclusions and have 
always been an integral part of the EU's mu tual recognition agenda. Many instruments have 
been adopted to facilitate a nd expedite investigation and pr osecution of cross border cases. 
Yet, to date no instrument exists to improve the legal position of those subject to cross-border 
proceedings. This lack of balance has a negative impact on mutual trust among the MS, which in turn calls for action by the EU. 
Following a 2003 Green Paper on procedural safe guards, Commission adopted a proposal for 
a Framework Decision on the matter in April 2004. Agreement could not be reached and the 
text was shelved. The Commission's proposal was based on Article 31(1)(c) TEU. The Legal 
Service of the Council issued an opinion which confirmed that that wa s the appropriate legal 
base. 
The Commission hosted an experts' meeti ng on 26/27 March 2009. Most  responses favoured 
legislative action, to be accompanied by n on-legislative measures. The overwhelming 
majority of participants opposed limiting the proposal to cross border cases. The IA was 
discussed in two Inter-Service Steering Gr oup Meetings. In preparing this Impact 
Assessment, the Commission has drawn from a nu mber of additional sources of information 
including 5 studies. 
3. P
ROBLEM DEFINITION  
The problem, which has various legal and social  aspects, can be summarised as follows: 
– Increased movement within the EU, outdated provisions and inconsis tent application of 
existing international standards (ECHR) at MS level. 
– Arrests leading to transfers under the EAW ar e considered to fall outside the scope of 
Article 6 ECHR, because this is deemed to be an extradition. 
– Mutual Recognition can only work effectively if  MS are convinced that judicial decisions 
are taken fairly in other MS. 
 
EN 3   EN – There is a perception among citi zens and practitioners that justice systems in MS other 
than their own are unfair and that they cannot  obtain remedy at international level as the 
European Court of Human Rights (ECt HR) is swamped with complaints.  
– An aspect of this problem is the fact that the accused is not guaranteed access to 
appropriate translation and interpretation services.  
4. T HE NEED FOR EU ACTION  
A ULB study found that the efficiency of mutu al recognition measures was hampered by 
inadequate levels of mutual trust. Without appropriate sta ndards to protect the rights of 
suspects to understand proceedings there is a ri sk that the previously identified imbalance 
between prosecution and the accused could be fu rther aggravated and ul timately run contrary 
to the interests of justice in the EU.  
To date, the MS have complied to differing degrees with their fair trial oblig ations, deriving 
principally from national law and the ECHR, whic h has led to discrepanc ies in the levels of 
safeguards. The EU by way of legislation coul d clarify the legal obligation to guarantee the 
right to a fair trial in the context of EU criminal law. 
5. O BJECTIVES  
The general objective is to increase mutual trust to allow better application of mutual 
recognition. Through increased mu tual trust, existi ng EU mutual recognition instruments can 
be expected to work better. 
The general objective can be translated  into the following specific objectives: 
1) to provide common minimum standards fo r procedural rights in all proceedings, 
including extradition and the EAW; 
2) to ensure that citizens are informed of how they can benefit from these common 
minimum standards wherever they are within the EU.  
6. P OLICY OPTIONS  
1: Status quo  
If no EU action is taken, the situ ation could be expected to evolve  as set out in Section 4. This 
option is based on the assumption that MS ar e expected to comply with the ECHR and 
provide minimum safeguards in domestic legal proceedings.  
2: Promotion of non-legislat ive measures (best practice) 
Measures would be taken to exchange national best practice and develop EU guidelines. This 
option would seek better awareness of EC HR standards by disseminating and recommending 
practices which help compliance with the ECHR . It would not achieve further approximation 
of legal standards.  
3: New instrument covering all rights 
For this option to succeed, a new treaty with an explicit legal base a nd a different (ordinary 
community law) legislative procedure would be  required. If legisl ation is successfully 
adopted, its subsequent implementation by MS , monitoring by the Commission and ultimate 
recourse to the ECJ will help overcome th e differences in compliance with the ECHR. 
Practical measures may be necessary to  enhance mutual trust in practice. 
 
EN 4   EN 4: A measure restricted to cross-border cases  
This option would clearly constitute a first step only but, if successful, it would contribute to 
enhancing mutual trust and help overcome resi stance to further legislation. However, it would 
need careful consideration so that any potential  issue of discriminati on between categories of 
suspects involved in cross-border versus domes tic proceedings is addressed appropriately.  
5: Step-by-step approach beginning with me asures on access to interpretation and 
translation 
This would involve a new FD requiring MS to provide minimu m standards only for access to 
interpretation and translation. The rights should apply to any person suspected or accused of 
having committed a criminal offence from the time when he is informed by the competent 
authorities that he is suspected of having co mmitted a criminal offence until finally judged. 
This option could vary in its sc ope and provide for these 2 rights to apply either in (a) cross-
border cases only or (b) all cases. 
7. A NALYSIS OF IMPACTS OF POLICY OPTIONS  
1 Status quo 
Lack of EU action in this area may ultimat ely contribute to slowing down the progress 
achieved in the area of judicial cooperation in criminal matters and thus the construction of a 
common area of freedom, security and justice.  
2 Best practice 
Positive impacts: recommendations for best prac tice could result in some improvements if MS 
chose to follow the recommendati ons. Negative impacts: much of this proposal echo what the 
Council of Europe includes in Recommendations  and what other expe rts have advised, but 
which has not been carried out. This option may also disappoint the EP, stakeholders and a 
number of MS who want  a binding instrument. 
3 New instrument covering all rights 
Positive Impacts: a FD of this sort would increase the level of legal certainty among MS. It 
would be a binding instrument improving complian ce with ECHR standards to ensure a fair 
trial. However tackling rights together as part of a package means that  there is less time to 
devote to each right and that watering down occurs with trade- offs. If the Lisbon Treaty 
comes into force, unanimity will no longer be required. 
4 Cross border cases only 
There is no established definition of a "cross bord er" case. There is reluctance on the part of 
MS to define a cross border case or to adopt  legislation which necessitates a definition. 
The economic impact of this opti on would be twofold: (1) the cost of putting services in place 
to provide rights and (2) the gain in reduced cost s of appeals. The possible risk of this option 
could be a reduction in mutual trust since the impression could be  given that there is a two-
tier system of justice – one for national cases and one for cross border. Positive impact: this 
would satisfy the MS that have been asking for a measure limited to cross border cases. Negative impact: a measure which attempted to rest rict its scope could le ad to confusion since 
the same case can be described or classified as cross-border or as domestic by different MS. 
Compliance: MS could have difficulty in practi ce in classifying cases so mistakes/disputes 
would occur naturally.  
 
EN 5   EN 5 Step-by-step approach  
The economic impacts of this option would be twofold as above for the cross border option. 
Positive impacts: a measure of this type would result in an improvement in the quality and 
provision of interp retation and translation. It would contri bute to the devel opment of mutual 
trust. It would ensure a fair trial in cases wh ere the suspect does not understand the criminal 
proceedings, his rights or the full charges ag ainst him. Negative imp acts: it would place a 
financial and administrative burden on MS that  currently do not offer training to legal 
interpreters and translators. Evaluation/mon itoring of compliance would be required which 
would also be burdensome. 
Experts at the March 2009 expert s' meeting, including MS delega tes, greeted with enthusiasm 
the suggestion of working on this right alone as a starting point. In March 2009 a Report was 
published by DG Interpretation: the Final Report of the Reflection Forum on Multilingualism and Interpreter Training. The Recommendations could contribute to a future document on 
best practice.  
 
EN 6   EN 8. C OMPARING THE OPTIONS  
+++ Indicates high positive impact 
0 Indicates zero impact --- Indicates high negative impact 
Effectiveness against the objectives and coherence with 
other EU policies in place 
Option Provide minimum 
standards for procedural 
rights in criminal 
proceedings Ensure citizens are 
informed of how they can 
benefit from minimum 
standards Impact on society and 
fundamental rights Efficiency Political feasibility 
1. Status Quo – 
no further action 
at EU level 0 
None of the objectives would be met without any EU action  0 
Continuing imbalance 
between rights and judicial 
cooperation may damage justice and mutual trust in 
EU. 0 
No cost to MS  EP and most MS expect EU 
action.  
2. Non-binding/non legislative 
measure setting 
out 'EU best practice' + 
Dependent on MS 
willingness to implement. 
Will not harmonise 
standards. ++ 
A well-organised Europe-
wide information campaign 
may raise awareness of 
ECHR rights and what can be done if people feel they 
have not been upheld. + 
If Member States follow 
guidance consistently then 
rights of the accused would 
be upheld. - 
Dependent on how 
implemented. Main cost will 
be training which could be 
borne by students. For large MS (source UK) grants of 
about €5000 to each college 
envisaged.  All MS agree on need for 
some non-legislative measures. Experience 
suggests non-binding 
guidance will not be followed consistently. 
3. Reintroduce 2004 instrument 
covering all 
rights +++  
Sets down comprehensive 
common standards.  + 
A comprehensive 
Instrument in itself without 
flanking measures would +++ 
All accused persons would 
be guaranteed rights under 
ECHR. Would provide basis --- 
Costs expected to be very 
considerable, especially for 
legal aid in those MS which Would be rejected again by 
the 6 MS who opposed the 
proposal in 2006. 
Lisbon Treaty may enable 
 
EN 7   EN Effectiveness against the objectives and coherence with 
other EU policies in place 
Option Provide minimum 
standards for procedural 
rights in criminal 
proceedings Ensure citizens are 
informed of how they can 
benefit from minimum 
standards Impact on society and 
fundamental rights Efficiency Political feasibility 
not raise public awareness, 
but it would draw the attention of national media 
to more controversial 
elements.  for mutual trust across the 
EU. Perception of standards of justice could help 
encourage more citizens to 
exercise right to freedom of 
movement.  do not currently provide it. current (2004) proposal to 
be passed by QMV with possibility for opt-outs. 
4. Instrument on all rights but limited to cross-
border cases ++ 
Would provide limited 
common standards but not 
for all citizens who are 
accused of an offence.  - 
Again, without flanking 
measures this would not 
raise public awareness. 
Attention of national media, possibly hostile to 
guaranteeing of rights for 
only those involved in cross-border cases, whose reports 
could be misleading. - 
Accused persons would be 
guaranteed same rights 
wherever in EU they are 
arrested.  
Risk of creation of 2 tiers of 
accused – those in cross 
border and those in domestic cases – leading to 
discrimination which may 
outweigh benefits. -- 
Will depend on the 
proportion of cases which 
will be deemed 'cross-
border' and will vary between MS – for which 
statistics are not available. 
But costs still expected to be high. Definition of 'cross-border 
case' likely to be disputed, especially as it may lead to 
fundamental rights concerns 
of positive discrimination. 
Unlikely to be any more 
acceptable than option 3.  
5a. Framework 
Decision limited 
to the right to 
translation and interpretation in 
cross border 
cases only  + 
Limited common standards 
in the area where considered 
to be most urgent but not for all citizens who are accused 
of an offence. Would 
demonstrate progress and incremental approach. - 
As above, hostile media 
interest could be misleading. -  
Accused persons would be 
guaranteed same rights to 
translation and interpretation wherever in EU they are 
arrested.  
Risk of creation of 2 tiers of 
accused – those in cross 
border and those in domestic -  
Costs will depend on the 
proportion of cases which 
will be deemed 'cross-border' and will vary 
between MS. Statistics are 
not available. Most or all MS expected to 
support if definition of 
'cross-border' agreed. It 
would meet the proportionality test, as 
action would not go beyond 
what is necessary to meet the objectives of the Treaty. 
It would also observe the 
subsidiarity principle, as it 
 
EN 8   EN Effectiveness against the objectives and coherence with 
other EU policies in place 
Option Provide minimum 
standards for procedural 
rights in criminal 
proceedings Ensure citizens are 
informed of how they can 
benefit from minimum 
standards Impact on society and 
fundamental rights Efficiency Political feasibility 
cases – leading to 
discrimination which may outweigh benefits. would not interfere with 
purely domestic cases. 
5b. Framework 
Decision limited 
to the right to 
translation and 
interpretation in all cases ++ 
Limited common standards 
in the area where considered 
to be most urgent. 0 
Unlikely to have any effect 
on awareness without 
flanking measures.  + 
Would provide greater 
equality of access to justice 
by enshrining the right to 
understand the charge and proceedings.  -- 
Large member state (source 
UK) cost of access to 
adequate interpretation 
estimated about €40m per year. Cost of translation 
varies according to the price 
scheme prevalent in individual member states. Most MS would support 
action in this area.  
Summary of the step by step option 
Relevance to objectives Impact on society and 
fundamental rights Costs Political feasibility and 
stakeholder views  
Fully meets objectives if 
MS implement guidance Limited common 
standards in the area 
where considered to be most urgent. Would 
demonstrate progress and 
incremental approach.  Costs will depend on the 
proportion of cases 
which will be deemed 'cross-border' and will 
vary between MS.  
Cost of access to 
adequate interpretation 
for large MS (UK) is 
about €40m per year. As above – most MS 
expect legislative action 
with flanking measures.  
 
EN 9   EN Cost of translation varies 
according to the price 
scheme prevalent in individual member 
states. 
Cost of flanking 
measures will depend on 
how implemented. Main 
cost will be training which could be borne by 
students. UK Govt 
provided grants of about 
€5000 to each college.  
 
EN 10   EN 9. T HE STEP BY STEP APPROACH IN MORE DETAIL  
This option would enable a progr essive, step-by-step approach would provide scope for a long 
term action plan for the progressi ve approximation of laws in the area of procedural rights. 
This approach would not be as depende nt on the Lisbon Treaty as option 3.  
This option would result in an  improvement in the quality an d provision of interpretation and 
translation, which would contribute  to building mutual trust. It would ensure a fairer trial in 
cases where the suspect does not understand the proceedings, his rights or the full charges 
before him. The option would place an addition al financial and admini strative burden on MS 
that currently do not offer training to legal interpreters and translators.  
Respect for the right to translation and interpreta tion is essential, but not sufficient, for mutual 
trust. It is, however, an essential right in that  in enables exercising other rights, such as the 
right to legal aid or the right to receive information about on e's own rights. Understanding the 
proceedings is a pre-condition for asserti ng one's other rights to a fair trial. 
10. M ONITORING AND EVALUATION  
Any Commission proposal would lay down an obligation for MS to communicate 
implementing legislation and a correlation table to the Commission within a specified time. 
The Commission would then prepare an impl ementation report reco rding which MS had 
complied with their obligations to transpose th e FD. Indicators which can be used to assess 
compliance would be whether training courses were  on offer, whether a register was in place 
and whether numbers of certified interprete rs and translators could be provided. A 
Eurobarometer survey could be used to mon itor improvement in public opinion's assessment 
of the fairness of justice in the EU.