Initiative of the Czech Republic, the Republic of Poland, the Republic of Slovenia, the Slovak Republic and of the Kingdom of Sweden for a Council Framework Decision 2009/…/JHA on prevention and settlement of conflicts of jurisdiction in criminal proceedings
Date: 2009-02-18
Institutions: Czechia, Poland, Slovakia, Slovenia, Sweden
Subjects: Czechia, Poland, Slovakia, Slovenia, Sweden, conflict of powers, criminal procedure, judicial cooperation, judicial proceedings

C 39/2

EN

Official Journal of the European Union

18.2.2009

III

(Preparatory Acts)

COUNCIL

Initiative of the Czech Republic, the Republic of Poland, the Republic of Slovenia, the Slovak
Republic and of the Kingdom of Sweden for a Council Framework Decision 2009/…/JHA on
prevention and settlement of conflicts of jurisdiction in criminal proceedings

(2009/C 39/03)

THE COUNCIL OF THE EUROPEAN UNION,

(4)

Having regard to the Treaty on European Union, and in particu-
lar Article 31(1)(c) and (d) and Article 34(2)(b) thereof,

Having regard to the initiative of
Republic of Poland,
Republic and of the Kingdom of Sweden,

the Republic of Slovenia,

the Czech Republic,

the
the Slovak

Having regard to the Opinion of the European Parliament (1),

Whereas:

(1)

(2)

(3)

The European Union has set itself the objective of main-
taining and developing an area of freedom, security and
justice.

According to the Hague Programme for strengthening
freedom, security and justice in the European Union (2),
adopted by the European Council at
its meeting on
4 and 5 November 2004, with a view to increasing the
efficiency of prosecutions, while guaranteeing the proper
administration of justice, particular attention should be
given to possibilities of concentrating the prosecution in
cross-border multilateral cases in one Member State and
further attention should be given to additional proposals,
including conflicts of jurisdiction so as to complete the
comprehensive programme of measures to implement
the principle of mutual recognition of judicial decisions
in criminal matters.

jurisdiction, ensure that

The measures provided for in this Framework Decision
should aim, in particular, to prevent and resolve conflicts
the jurisdiction where the
of
proceedings take place is the most appropriate one and
bring more transparency and objectivity to the choice of
criminal
jurisdiction in situations where the facts of a
case fall within the jurisdiction of two or more Member
States.

(1) Opinion of … (not yet published in the Official Journal).
(2) OJ C 53, 3.3.2005, p. 1.

(5)

(6)

it cannot be guaranteed that

In situations where facts fall within the jurisdiction of
several Member States and may lead to a conflict of juris-
diction,
the jurisdiction
which is chosen to conduct criminal proceedings is the
most appropriate one or is chosen in a transparent and
objective way having regard to the specific circumstances
of a case and to the characteristics of each of the possible
jurisdictions. In a common European area of freedom,
is necessary to take action to
security and justice it
ensure that national authorities are made aware, at an
early stage, of facts which may give rise to a conflict of
jurisdiction and that agreement is reached to concentrate,
as far as possible, criminal proceedings for such facts in a
single jurisdiction having regard to common and objec-
tive criteria and to transparency.

This Framework Decision should apply to two situations.
In the first
situation it establishes a procedure for
exchange of information where competent authorities of
one Member State conduct criminal proceedings for
specific facts and need to find out if there are ongoing
proceedings for the same facts in other Member States. In
the second situation, competent authorities of one
Member State conduct criminal proceedings for specific
facts and become aware, by means other than notifica-
tion procedure,
that competent authorities of other
Member States are already conducting criminal proceed-
ings for the same facts. In such a situation the notifica-
tion procedure should not apply and the respective States
should enter into direct consultations.

This Framework Decision is not intended to solve nega-
tive conflicts of jurisdiction, this is where no Member
State has established its jurisdiction over the criminal
offence committed. The situation where a Member State
has established its jurisdiction but is not willing to exer-
cise it should be considered for the purposes of this
Framework Decision as a specific category of a positive
conflict of jurisdiction.

18.2.2009

EN

Official Journal of the European Union

C 39/3

(7)

(8)

(9)

None of the Member States concerned should be obliged
to give up or take over jurisdiction unless it wishes to do
so. If agreement cannot be reached the Member States
should retain their right to initiate criminal proceedings
for any criminal offence which falls within their national
jurisdiction.

the legality
This Framework Decision does not affect
principle and opportunity principle as governed by the
national law of the Member States. Nevertheless, as the
very aim of this Framework Decision is to prevent unne-
its application
cessary parallel criminal proceedings,
should not give rise to a conflict of jurisdiction which
would not occur otherwise.

This Framework Decision is without prejudice to, and is
not intended to regulate even indirectly, the ne bis in idem
principle as recognised by the Convention Implementing
the Schengen Agreement (1) and by the relevant case-law
of the Court of Justice of the European Communities.

(10)

Framework Decision is without prejudice

to
This
proceedings under
the European Convention on the
Transfer of Proceedings in Criminal Matters, signed in
Strasbourg on 15 May 1972, as well as any other
arrangements concerning the transfer of proceedings in
criminal matters between the Member States.

(11) Where the accused is a national or resident of another
Member State, this should not as such be automatically
regarded as a significant link.

(12) When describing the facts which are the subject of the
criminal proceedings in the notification, the notifying
authority should in particular state precisely where, when
and how the offence was committed, as well as the
details of the suspect or person accused, in order for the
responding authority to determine whether criminal
proceedings for the same facts are being conducted in its
Member State.

(13) Direct consultations can be initiated by any of

the
Member States concerned and by whatever means of
communication.

(14)

(15)

This Framework Decision states when it is mandatory for
the respective authorities to enter into direct consulta-
tions. However, nothing should prevent the authorities
entering voluntarily into direct consultations in order to
agree on the best placed jurisdiction in any other
situation.

In the situation where competent authorities become
aware that the facts which are the subject of ongoing or
anticipated criminal proceedings in one Member State
were the subject of proceedings which have been finally
in another Member State,
disposed of
the ensuing
information should be encouraged. The
exchange of
purpose of that exchange of information should be to

provide the competent authorities of the Member State
where the proceedings have been finally disposed of with
information and evidence enabling them to possibly
reopen the proceedings in accordance with their national
law.

This Framework Decision should not
lead to undue
bureaucracy in cases where for the problems addressed
more suitable options are readily available. Thus in situa-
tions where more flexible instruments or arrangements
are in place between Member States, those should prevail
over this Framework Decision.

This Framework Decision should be complementary and
without prejudice to the Council Decision 2008/…/JHA
of … on the strengthening of Eurojust and amending
Decision 2002/187/JHA (2) and it should make use of
mechanisms already existing within Eurojust.

Framework Decision

Council
2008/977/JHA of
27 November 2008 on the protection of personal data
processed in the framework of police and judicial coop-
eration in criminal matters (3) should apply to the protec-
tion of personal data provided under this Framework
Decision.

This Framework Decision respects the fundamental rights
and observes the principles recognised by Article 6 of
the Treaty on European Union and reflected by the
Charter of Fundamental Rights of the European Union,

(16)

(17)

(18)

(19)

HAS ADOPTED THIS FRAMEWORK DECISION:

CHAPTER 1

GENERAL PRINCIPLES

Article 1

Subject matter and scope

1.

This Framework Decision establishes:

(a) the procedural framework under which national authorities
shall exchange information about ongoing criminal proceed-
ings for specific facts in order to find out whether there are
parallel ongoing proceedings for the same facts in other
Member State(s) and under which their national authorities
shall enter into direct consultations in order to reach an
agreement on the best placed jurisdiction for conducting
criminal proceedings for specific facts which fall within the
jurisdiction of two or more Member States;

(b) rules and common criteria which shall be taken into
account by the national authorities of two or more Member
States whenever they seek agreement on the best placed
jurisdiction for conducting criminal proceedings for specific
facts.

(1) OJ L 239, 22.9.2000, p. 19.

(2) OJ … (not yet published in the Official Journal).
(3) OJ L 350, 30.12.2008, p. 60.

C 39/4

EN

Official Journal of the European Union

18.2.2009

This Framework Decision shall apply to the following

2.
situations:

inal proceedings for specific facts which fall within the juris-
diction of those Member States.

(a) where the competent authorities of one Member State
conduct criminal proceedings and discover that facts which
are the subject of these proceedings demonstrate a signifi-
cant link to one or more other Member States, and it is
possible that
such other
the competent authorities of
Member State(s) are conducting criminal proceedings for the
same facts;

or

(b) where the competent authorities of one Member State
conduct criminal proceedings and by whatever means
become aware that the competent authorities of one or
more other Member States conduct criminal proceedings for
the same facts.

3.
This Framework Decision shall not apply to situations
where no Member State has established its jurisdiction over the
committed criminal offence.

4.
This Framework Decision shall not apply to any proceed-
ings brought against undertakings if such proceedings have as
their object the application of European Community competi-
tion law.

This Framework Decision does not confer any rights on a

5.
person to be invoked before the national authorities.

Article 2

Definitions

For the purposes of this Framework Decision:

(a) ‘notifying State’ means the Member State whose competent
authorities notify the competent authorities of another
Member State or invite the competent authorities of another
Member State to enter into direct consultations;

(b) ‘responding State’ means the Member State whose compe-
tent authorities are notified or are invited to enter into
direct consultations by the competent authorities of another
Member State;

(c) ‘ongoing

proceedings’ means

proceedings,
including pre-trial stage, conducted under national law by
the competent authorities of a Member State for specific
facts;

criminal

(d) ‘notifying authority’ means an authority designated under
law to notify the authorities of another Member
national
State about the existence of ongoing proceedings for a crim-
inal offence, to receive responses to such notifications and
to discuss and agree with a competent authority of another
Member State the question of which is the best placed juris-
diction for conducting criminal proceedings for specific facts
which fall within the jurisdiction of those Member States;

(e) ‘responding authority’ means an authority designated under
national law to receive and respond to notifications about
the existence of ongoing proceedings for a criminal offence
in another Member State and to consult and agree with a
competent authority of another Member State the question
of which is the best placed jurisdiction for conducting crim-

Article 3

Determination of notifying and responding authorities

1.
Each Member State shall inform the General Secretariat of
the Council as to which authority has been designated to act as
notifying authority and as responding authority. A Member
State may decide to designate a single authority to act both as
notifying and responding authority.

The General Secretariat of

2.
the Council shall make the
information received available to all Member States and the
Commission and publish it
the
European Union.

in the Official

Journal of

Article 4

Possibility of assigning the tasks of a designated authority
to another national authority

At any stage of the procedure which is provided for in this
1.
Framework Decision, a notifying or a responding authority may
decide to assign its
tasks as designated authority under
Article 3(1) to another national authority, for example to an
authority with responsibility under national law for conducting
criminal proceedings.

If a decision is taken in accordance with paragraph 1, it
2.
shall be
immediately communicated to the notifying or
responding authority of the Member State concerned together
with the contact details of the assigned authority.

3.
The decision referred to in paragraph 1 shall take effect as
of the receipt of communication in accordance with paragraph 2.

CHAPTER 2

EXCHANGE OF INFORMATION

Article 5

Notification

that

1.
In the event that the authorities of a Member State, which
are competent under national law to conduct criminal proceed-
ings, discover
facts which are the subject of ongoing
link to one or more
proceedings demonstrate a significant
Member States, the notifying authority of the first Member State
shall as soon as practicable notify the existence of
these
proceedings to the responding authority(ies) of
the Member
State(s) significantly linked to them in order to find out whether
is/are conducting criminal
the responding Member State(s)
proceedings for the same facts.

2.
The obligation to notify pursuant to paragraph 1 applies
only to criminal offences punishable in the notifying State by a
custodial sentence or a detention order for a maximum period
of at least one year and as they are defined by the law of the
notifying Member State.

18.2.2009

EN

Official Journal of the European Union

C 39/5

Article 6

Significant link

Article 9

Form and content of the response

1.
A link shall always be regarded as ‘significant’ where the
conduct or its substantial part which gives rise to the criminal
offence took place in the territory of another Member State.

2.
In proceedings which contain a link to another Member
State, other than the one referred to in paragraph 1, the decision
as to whether a certain link is to be regarded as significant shall
be taken on a case-by-case basis by reference, in particular, to
the common criteria listed in Article 15(2).

Article 7

Procedure of notification

1.

The response shall contain the following information:

(a) details of the national authority or authorities which are

dealing or dealt with the case, if applicable;

(b) whether proceedings for some or all of the facts which are
the subject of the notification are ongoing in the responding
State and the stage that has been reached;

(c) whether proceedings for some or all of the facts which are
the subject of the notification have been dealt with in the
responding State, including the nature of the final decision;

(d) whether the authorities of the responding State intend to
initiate their own criminal proceedings for specific facts
which are the subject of the notification, if applicable.

The notifying authority shall notify the

responding
1.
authority by any means whereby a written record can be
produced to allow the responding State to establish the authenti-
city of notification.

The response may contain any other relevant additional
2.
information,
in particular concerning any distinct but related
facts which are the subject of proceedings in the responding
State.

If

the responding authority is unknown,

the notifying
2.
authority shall make all necessary inquiries,
including via the
contact points of the European Judicial Network or Eurojust, in
order to obtain the details of the responding authority from the
responding State.

3. When responding to a notification,
authority shall use Form B set out in the Annex.

the

responding

3.
If the authority in the responding State which receives the
notification is not the competent responding authority under
Article 3, it shall automatically transmit the notification to the
competent authority and shall
inform the notifying authority
accordingly.

Article 10

Time limits and additional information

A responding authority shall respond to a notification

1.
within a period of 15 days from the date of receipt.

Article 8

Form and content of the notification

If necessary, this time limit may be extended by an addi-
2.
tional period of up to 15 days. However,
the responding
authority shall notify such an extension within the time limit set
out in paragraph 1.

1.

The notification shall contain the following information:

(a) details of the national authority or authorities which are

dealing with the case;

(b) a description of the facts which are the subject of the noti-
fied ongoing proceedings, including the nature of the signifi-
cant link;

(c) the stage that has been reached in the ongoing proceedings;

and

(d) details about the suspect and/or accused person, if known,

and about the victims, if applicable.

2.
The notification may contain any other relevant additional
information relating to the ongoing proceedings in the notifying
State, for example as to any difficulties which are being encoun-
tered in the notifying State.

The notifying authority shall use Form A set out in the

3.
Annex.

3.
If a responding authority finds the information from the
notifying authority insufficient to enable it to respond, it may
within the time limit set out in paragraph 1 request that the
information be furnished and may fix a
necessary additional
reasonable time limit for the receipt thereof.

The time limit set out in paragraph 1 shall be renewed

4.
after the receipt of additional information.

Article 11

Absence of a response

If a responding authority does not respond within the time
limits provided in Article 10, a notifying authority may take any
measures it considers appropriate in order to bring the matter
to the attention of the responding State, including notification
thereof to Eurojust.

C 39/6

EN

Official Journal of the European Union

18.2.2009

CHAPTER 3

DIRECT CONSULTATIONS

Article 12

Direct consultations

1. When transmitting the response or following its transmis-
sion a notifying authority and a responding authority shall enter
into direct consultations in order to agree on the best placed
jurisdiction for conducting criminal proceedings for specific
facts which may fall within the jurisdiction of both, if:

(a) there are ongoing proceedings in a responding State for
some or all of the facts which are the subject of a notifica-
tion; or

(b) the authorities of a responding State intend to initiate crim-
inal proceedings for some or all of the facts which are the
subject of a notification.

2.
The national authorities shall enter into direct consulta-
tions in accordance with paragraph 1 in the event that the
responding authorities of more than one Member States are
notified for the same ongoing proceedings. In such an event,
the relevant notifying authority shall be responsible for coordi-
nating these consultations.

3.
In the absence of a notification, two or more Member
States shall enter into direct consultations, through their respec-
tive notifying or responding authorities, in order to agree on
the best placed jurisdiction, if they become aware, by whatever
means, that parallel criminal proceedings for the specific facts
are ongoing or anticipated.

Article 13

Providing information on important procedural acts or
measures

Notifying and responding authorities which enter into direct
consultations shall inform each other of any important proce-
commencement of
dural measures
consultations.

after

they

take

the

the facts which fall within the jurisdiction of two or more
Member States.

2. When there are ongoing proceedings in any Member State
for facts which are related but are not identical to the facts
which are the subject of the consultations on the best placed
jurisdiction or when it is not practicable to conduct criminal
proceedings in a single Member State in particular because of
the complexity of the facts or of the number of accused persons
involved,
it may be more appropriate to conduct criminal
proceedings in two or more Member States which would respec-
tively cover different facts or different persons.

Article 15

Criteria to determine the best placed jurisdiction

There shall be a general presumption in favour of
1.
conducting criminal proceedings at
the
Member State where most of the criminality has occurred which
shall be the place where most of the factual conduct performed
by the persons involved occurs.

the jurisdiction of

2. Where the general presumption according to paragraph 1
does not apply due to the fact that there are other sufficiently
significant
factors for conducting the criminal proceedings,
which strongly point in favour of a different jurisdiction, the
competent authorities of Member States shall consider those
additional factors in order to reach an agreement on the best
placed jurisdiction. Those additional factors shall include, in par-
ticular, the following:

— location of the accused person or persons after an arrest
and possibilities for securing their surrender or extradition
to the other possible jurisdictions,

— nationality or residence of the accused persons,

— territory of a State where most of the damage was sustained,

— significant interests of victims,

— significant interests of accused persons,

— location of important evidence,

CHAPTER 4

— protection of vulnerable or intimidated witnesses whose
evidence is of importance to the proceedings in question,

DETERMINATION OF THE BEST PLACED JURISDICTION

Article 14

— the residence of the most important witnesses and their
ability to travel to the Member State where most of the
criminality has occurred,

Aim of the consultations

— stage of proceedings reached for the facts in question,

1.
The general aim of the consultations on the best placed
jurisdiction shall be to agree that the competent authorities of a
single Member State will conduct criminal proceedings for all

— existence of ongoing related proceedings,

— economy of the proceedings.

18.2.2009

EN

Official Journal of the European Union

C 39/7

Article 16

Cooperation with Eurojust

Any national authority shall be at liberty, at any stage of a

1.
national procedure, to

(a) ask for Eurojust's advice;

(b) take a decision to refer to Eurojust specific cases which raise

the question of the best placed jurisdiction.

2. Where, in the cases which fall within the competence of
Eurojust, it has not been possible to reach an agreement on the
best placed Member State jurisdiction for conducting criminal
proceedings for specific facts, the disagreement, as well as situa-
tions where an agreement has not been reached within
10 months after entry into direct consultations, shall be referred
to Eurojust by any Member State involved.

Article 17

Cases where an agreement has not been reached

In those exceptional situations, where

(a) an agreement has not been reached even after the interven-

tion of Eurojust in accordance with Article 16;

or

(b) in cases which do not

fall within the competence of
the direct consultations were terminated by a
Eurojust,
disagreement or situations where an agreement has not
been reached within 6 months after entry into direct
consultations,

the Member States shall inform Eurojust about the reasons of
the failure to reach an agreement.

CHAPTER 5

MISCELLANEOUS

Article 18

Other exchange of information

1. Where the competent authorities of one Member State
discover by whatever means that facts which are the subject of
ongoing or anticipated proceedings in that Member State were
the subject of proceedings which have been finally disposed of
in another Member State, the notifying authority of the first
Member State may inform the responding authority of
the
second Member State of this situation and transmit all the rele-
vant information.

disposed of in its Member State are the subject of ongoing or
anticipated proceedings or were the subject of ongoing proceed-
ings in another Member State, the responding authority may
information that
consider whether it will request additional
would enable it to duly assess the possibility of reopening the
proceedings under national law.

CHAPTER 6

GENERAL AND FINAL PROVISIONS

Article 19

Languages

Each Member State shall state in a declaration deposited with
the General Secretariat of the Council the languages in which it
will accept the notification referred to in Article 5 and languages
in which it will respond to the notification.

Article 20

Relation to legal instruments and other arrangements

1.
Insofar as other legal instruments or arrangements allow
the objectives of this Framework Decision to be extended or
help to simplify or facilitate the procedure under which national
authorities exchange information about their ongoing proceed-
ings, enter into direct consultations and try to reach an agree-
ment on the best placed jurisdiction for conducting criminal
proceedings for the specific facts which fall within the jurisdic-
tion of two or more Member State, the Member States may:

(a) continue to apply bilateral or multilateral agreements or
arrangements in force when this Framework Decision comes
into force;

(b) conclude bilateral or multilateral agreements or arrange-
ments after this Framework Decision has come into force.

The agreements and arrangements referred to in para-
in no case affect relations with Member States

2.
graph 1 shall
which are not parties to them.

3. Member States shall, within three months from the entry
into force of this Framework Decision, notify the General Secre-
tariat of Council and the Commission of the existing agreements
and arrangements referred to in paragraph 1(a) which they wish
to continue applying.

Member States shall also notify the General Secretariat of
Council and the Commission of any new agreement or arrange-
ment as referred to in paragraph 1(b), within three months of
signing any such arrangement or agreement.

2.
If the responding authority discovers, either by way of
notification or by whatever other means, that the facts which
were the subject of proceedings which have been finally

This Framework Decision shall be without prejudice to

4.
Decision 2008/…/JHA.

C 39/8

EN

Official Journal of the European Union

18.2.2009

Article 21

Implementation

comply with this Framework Decision, accompanied, if neces-
sary, by legislative proposals.

Member States shall take the necessary measures to comply with
the provisions of this Framework Decision by ….

By the same date Member States shall transmit to the General
Secretariat of Council and to the Commission the text of the
law the obligations
provisions transposing into their national
imposed on them under this Framework Decision.

Article 23

Entry into force

This Framework Decision shall enter into force on the twentieth
the
day following its publication in the Official
European Union.

Journal of

Article 22

Report

Done at Brussels, …

The Commission shall, by …, submit a report to the European
Parliament and to the Council, assessing the extent to which the
Member States have taken the necessary measures in order to

For the Council

The President

18.2.2009

EN

Official Journal of the European Union

C 39/9

ANNEX

C 39/10

EN

Official Journal of the European Union

18.2.2009

18.2.2009

EN

Official Journal of the European Union

C 39/11

C 39/12

EN

Official Journal of the European Union

18.2.2009

18.2.2009

EN

Official Journal of the European Union

C 39/13

C 39/14

EN

Official Journal of the European Union

18.2.2009