COMMISSION STAFF WORKING DOCUMENT Analytical Supporting Document Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on the transfer of proceedings in criminal matters
Date: 2023-04-05
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, crime, criminal proceedings, cross-border cooperation, fight against crime, judicial cooperation in criminal matters in the EU, jurisdiction

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 5.4.2023  SWD(2023) 77 final  COMMISSION STAFF WORKING DOCUMENT Analytical Supporting Document Accompanying the document Proposal for a Regulation of the European Parliament and of the Council  on the transfer of proceedings in criminal matters {COM(2023) 185 final} - {SWD(2023) 78 final}  
 
 
1. 

INTRODUCTION: POLITICAL AND LEGAL CONTEXT  

This  document  accompanies  the  Commission  proposal  for  a  Regulation  of  the  European 
Parliament and of the Council on the transfer of proceedings in criminal matters - as adopted by 
the Commission.  

As set  out  in  the explanatory memorandum  of the initiative, no impact assessment was carried 
out  mainly  due  to  lack  of  realistic  options1  and  limited  impacts  on  citizens  and  businesses2. 
Instead, this document serves to explain the problem, the objectives of the proposal, the chosen 
policy approach and the consultation activities carried out. It also analyses the proposed solution 
in  the  light  of  its  impacts  on  effectiveness,  efficiency,  fundamental  rights  and  coherence  with 
other EU cross-border judicial cooperation instruments.  

Transfer  of  criminal  proceedings  is  an  important  tool  of  cross-border  cooperation  aiming  at 
improving the efficient and proper administration of justice. A transfer of proceedings allows the 
authorities of one Member State to transfer a specific criminal case to the competent authorities 
of another Member State and request prosecution of the suspect(s) or accused person(s) in that 
Member State. It can prove to be necessary in different situations.  

In particular, a transfer of criminal proceedings may be necessary and appropriate where parallel 
proceedings  in  different  Member  States  concerning  the  same  facts  and  the  same  person  occur. 
The  increase  in  cross-border  crime  has  led  to  an  increasing  number  of  cases  in  which  several 
Member States have, under their domestic legislation, jurisdiction to investigate and bring to trial 
the  same  or  related  criminal  offences3.  Overlapping  jurisdictions  could  for  example  occur  in 
situations  where  the  offence  has  been  committed  in  the  territory  of  several  Member  States,  or 
where  the  effects  of  an  offence  occurred  on  the  territory  of  several  Member  States4.  This  is 
especially  true  for  crimes  perpetrated  by  organised  criminal  groups,  such  as  drug  trafficking, 
migrant  smuggling,  trafficking  in  human  beings,  firearms  trafficking,  environmental  crime, 
cybercrime or money laundering.  Many  countries also  assume jurisdiction over acts  performed 
outside  their  own  territory,  such  as  based  on  the  active5  or  passive6  personality  principles. 

1  
2  
3  

4  

5  

See further section 5. 
See further section 6. 
Results  of  the  targeted  consultations  with  Member  States’  authorities  have  shown  that  organised  crime, 
trafficking  and  cybercrime  are  the  most  common  offences  that  lead  to  parallel  proceedings  and 
subsequently to transfer of proceedings, however, fraud, money laundering and drug related offences were 
often frequently mentioned. 
Eurojust issued a recommendation to accept that one Member State was in a better position to handle the 
proceedings  in  a  swindling  case,  where  cars  rented  in  Italy  and  Spain  were  exported  to  other  Member 
p. 
States. 
51: 
Similarly, 
https://www.eurojust.europa.eu/sites/default/files/assets/eurojust_2016_annual_report_en.pdf. 
46: 
p. 
Eurojust 
https://www.eurojust.europa.eu/sites/default/files/assets/eurojust_2017_annual_report_en.pdf.  
Jurisdiction  exercised  by  the  State  over  its  own  nationals  or  persons  domiciled  in  its  territory,  without 
regard to the place of the offence. 

recommendations 

Consequently, 

proceedings 

trafficking 

transfer 

issued 

place, 

case, 

drug 

took 

of 

in 

a 

a 

1 

 
 
                                                           
Multiple prosecutions  of the same cases pose challenges not only in  terms  of coordination and 
effectiveness of criminal prosecutions, but can also be detrimental to the rights and interests of 
individuals and can lead to duplication of activities. Defendants, victims and witnesses may have 
to  be  summoned  for  hearings  in  several  countries.  Most  notably,  repeated  proceedings  entail  a 
multiplication of restrictions on their rights and interests, such as of free movement. Within the 
European area of justice it is appropriate to avoid, where possible, such detrimental effects, and 
to ensure that criminal proceedings are conducted in the best-placed Member State. Transfer of 
criminal proceedings could help to prevent unnecessary parallel proceedings in different Member 
State and could help to prevent possible infringement of the ne bis in idem principle  7. It could 
also reduce the number of multiple proceedings in respect of the same facts or in respect of the 
same person being conducted in different Member States. Furthermore, in order to avoid the risk 
of  impunity  that  may  result  from  some  situations  when  surrender  of  a  person  for  criminal 
prosecution under a European Arrest Warrant8 (‘EAW’) is delayed or refused, authorities of the 
Member  State  postponing  or  refusing  the  surrender  could  consider  taking  over  the  criminal 
proceedings in which the surrender was sought.  

While the transfer of proceedings may prove to be necessary in situations such as those described 
above,  the  existing  instruments  at  EU  level  do  not  regulate  this  form  of  cross-border  judicial 
cooperation.  

In particular, there are tools aiming at promoting early identification of parallel proceedings and 
at  coordinating  actions  when deciding which Member State is  to  prosecute when jurisdictional 
conflicts  arise,  however,  they  do  not  regulate  the  procedure  for  the  transfer  of  criminal 
proceedings.  Eurojust,  in  particular,  plays  a  key  role  in  facilitating  preliminary  contacts  and 
consultations and resolving jurisdiction issues. Eurojust may ask the competent authorities of the 
Member States concerned to accept that one of them may be in a better position to undertake an 
investigation  or  to  prosecute  specific  offences.  The  competent  national  authorities  are  also 
obliged to inform Eurojust of cases in which conflicts of jurisdiction have arisen or are likely to 
arise.  Eurojust  has  published  Guidelines  on  ‘Which  jurisdiction  should  prosecute?’9.  By 
suggesting  factors  to  be  taken  into  consideration  in  multi-jurisdictional  cases,  these  guidelines 
have  been  helping  competent  national  authorities  to  determine  the  jurisdiction  best  placed  to 
prosecute in cross-border cases. 

6  

7  

8  

Jurisdiction exercised by the  State for the protection of its nationals in respect of offences of  which they 
may have been the victims abroad. 
The  principle  that  nobody  can  be  tried  or  punished  twice  in  criminal  proceedings  for  the  same  criminal 
offence. 
Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures 
between  Member  States  (2002/584/JHA).  This  Framework  Decision  sets  out  a  legal  framework  for  the 
execution of a judicial decision issued by a Member State with a view to the arrest and surrender by another 
Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a 
custodial sentence or detention order. 

9             https://www.eurojust.europa.eu/sites/default/files/assets/eurojust_jurisdiction_guidelines_2016_en.pdf  

2 

 
 
                                                                                                                                                                                           
Council Framework Decision on prevention and settlement of conflicts of jurisdiction in criminal 
proceedings10 sets out a procedure for the exchange of information and for direct consultations 
between  competent  authorities  to  achieve  an  effective  solution  and  avoid  any  adverse 
consequences  arising  from  parallel  proceedings.  Similarly,  other  EU  laws  concerning  criminal 
matters, particularly for specific types of crime, such as combatting terrorism (the Directive (EU) 
2017/541  of  the  European  Parliament  and  of  the  Council,  Council  Framework  Decision 
2002/475/JHA)  and  organised  crime  (Council  Framework  Decision  2008/841/JHA),  set  out 
factors to be taken into account to centralise proceedings in a single Member State when more 
than one Member State can validly prosecute on the basis of the same facts. However, these legal 
acts  do  not  regulate  the  procedure  for  the  transfer  of  criminal  proceedings,  which  may  be  a 
necessary solution in such cases. 

An agreement between the EU Member States on the transfer of proceedings in criminal matters 
was signed in 199011, but never entered into force due to a lack of ratifications.  

In July 2009, the Swedish Presidency introduced an initiative on  behalf of 16 Member States12 
for  a  Council  Framework  Decision  on  transfer  of  proceedings  in  criminal  matters13.  Member 
States  decided  to  discontinue  negotiations  when  the  Lisbon  Treaty  entered  into  force  on  1 
December 2009 due to a change brought in the decision-making procedure with the expectation 
expressed  by  the  Presidency  of  the  Council  that  a  new  instrument  would  be  tabled  under  the 
Lisbon Treaty14.  

In the absence of a specific EU legal act, Member States currently transfer criminal proceedings 
between  themselves  using  a  variety  of  different  legal  instruments  with  no  uniform  legal 
framework  across  the  EU15.  The  most  comprehensive  international  legal  framework  on  the 
transfer  of  criminal  proceedings  -  the  European  Convention  on  the  Transfer  of  Proceedings  in 
Criminal  Matters  of  15  May  1972  (‘1972  Transfer  Convention’)  –  has  only  been  ratified  and 
applied  by  13  Member  States.16  Most  Member  States  use  Article  2117  of  the  European 
Convention  on  Mutual  Assistance  in  Criminal  Matters  of  20  April  1959  (‘1959  MLA 
Convention’)  as  a  mechanism  to  request  prosecution  of  a  suspect  in  another  party  to  the 
Convention.  For  this  form  of  cooperation,  however,  the  procedure  for  transfer  is  largely 
unregulated.  Other  legal  bases  of  cooperation  in  this  area  include  national  laws,  bilateral  or 

10  

11 

12  
13 

14  
15  
16  
17  

Council  Framework  Decision  2009/948/JHA  of  30  November  2009  on  prevention  and  settlement  of 
conflicts of exercise of jurisdiction in criminal proceedings.  
https://www.consilium.europa.eu/en/documents-publications/treaties-
agreements/agreement/?id=1990106&DocLanguage=en 
BE, BG, CZ, DK, EE, EL, ES, FR, LT, LV, HU, NL, RO, SI, SK and SE. 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52009IG0912%2801%29#ntc3-
C_2009219EN.01000701-E0003  
Council doc. 16437/09 and 16826/2/09. 
See further Annex 3. 
https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=073  
Sometimes,  in  conjunction  with  Article  6  of  the  Convention  on  Mutual  Assistance  in  Criminal  Matters 
between the Member States of the European Union of 29 May 2000. 

3 

 
 
                                                           
multilateral  agreements  or  the  principle  of  reciprocity,  depending  on  the  two  Member  States 
involved.    

In  its  report  on  the  way  forward  in  the  field  of  mutual  recognition  of  judicial  decisions  in 
criminal matters of May 201918, the Romanian Presidency suggested to further explore the need 
for  a  legislative  proposal  on  the  transfer  of  criminal  proceedings.  In  December  2020,  the 
Council,  in  its  conclusions  on  the  European  Arrest  Warrant19,  invited  the  Commission  to 
consider whether a new proposal for an EU instrument on the transfer of proceedings would be 
feasible  and  would  add  value.  Eurojust  and  the  European  Judicial  Network  have  also  raised  a 
number  of  legal  and  practical  difficulties  that  authorities  face  in  the  absence  of  clear  common 
rules  and  procedures,  and  have  called  for  an  EU  instrument  in  this  area20.  To  address  the 
problems  currently  affecting transfers of criminal  proceedings (see section 2), the Commission 
decided to propose a new instrument. This initiative is included in the Commission’s 2022 work 
programme21.  

This  analytical  document  has  been  prepared  in  order  to  support  and  accompany  the  legal 
proposal on the transfer of proceedings in criminal matters. The data contained in this document 
has been mainly obtained from  (i) public feedback to the call for evidence; (ii) an open public 
consultation; (iii) targeted consultations with Member States’ authorities, Eurojust, the  European 
Judicial  Network  in  criminal  matters  (EJN),  the  European  Public  Prosecutor’s  Office  (EPPO), 
Europol,  the  European  Union  Agency  for  Fundamental  Rights  (FRA);  (iv)  a  meeting  with 
experts of the Member  States’ authorities, (v) a  meeting with the Commission’s Criminal  Law 
Expert  Group,  (vi)  reports  from  Eurojust  and  the  European  Judicial  Network22  and  (vii)  a 
research  project  on  transfer  of  criminal  proceedings  in  the  EU23  which  was  co-funded  by  the 
European Commission from the Justice programme, including two conferences organised in the 
context of the project.  

2.  PROBLEM DEFINITION 

2.1. 

Problems  

In the absence of a common legal framework on the transfer of criminal proceedings and due to 
differences among Member States’ national criminal justice systems (see section 2.4.), transfers 

18  
19  
20  

21  
22  
23  

https://data.consilium.europa.eu/doc/document/ST-9728-2019-INIT/en/pdf 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52020XG1204(02) 
Eurojust  report  on  the  transfer  of  proceedings  in  the  EU published  in 2023, ‘Report  on  Eurojust  Written 
Recommendations  on  Jurisdiction’ published  in  2021,  the ‘Report  on  Eurojust’s  casework  in  the  field  of 
prevention  and  resolution  of  conflicts  of  jurisdiction’ published  in  2018,  and the ‘Report  of  the  strategic 
seminar on conflicts of jurisdiction, transfer of proceedings and ne bis in idem’, organised by Eurojust in 
2015. Conclusions  of  the  52nd  EJN  Plenary  meeting  on  the  role  of  the  EJN  in  fostering  the  practical 
application of the EU mutual recognition instruments published in 2019.   
https://ec.europa.eu/info/sites/default/files/com2021_645_en.pdf  

    Supra, at 20. 

https://www.eur.nl/en/esl/research/our-research/eu-and-nwo-funded-research-projects/transfer-criminal-
proceedings  

4 

 
 
                                                           
of criminal proceedings have been facing several legal and practical issues preventing authorities 
from  fully  applying  this  cross-border  judicial  cooperation  tool,  which  consequently  affects 
criminal investigations and prosecutions across the EU.  

This initiative aims to tackle two main problems affecting transfers of criminal proceedings that 
were identified in the stakeholder consultation process, and that are further described below: 

1)  inefficient transfers of criminal proceedings; and 
2)  lack  of  effective  prosecution  (transfers  of  proceedings  do  not  take  place  where  they 

would be in the interest of justice). 

According  to  estimates  provided  by  the  Member  States,  the  number  of  outgoing  requests  for 
transfers of proceedings in the period of 2016-202224 has remained at a similar level. Due to the 
absence  of  a  harmonised  statistical  framework,  the  gaps  in  the  data  do  not  allow  to  make 
conclusions  on the trends in  this type of cooperation.  It  is  unlikely, however, that the need  for 
transfers of criminal proceedings would decrease in the nearest future, rather it could remain the 
same, or could even increase. Therefore, without action at EU level the likely consequences are 
that the identified problems will continue to persist.  

2.2. 

Inefficient transfers of criminal proceedings 

In the stakeholder consultation process  it has been repeatedly pointed out that a more efficient 
cross-border  cooperation  is  needed  and  that  authorities  face  a  number  of  issues  in  the  current 
legal set up, which stem from a lack of clear common rules and procedures. Such issues include 
in particular:  

 

 

lack of communication between competent authorities: specifically, practitioners pointed 
to  the  lack  of  prior  consultation  by  the  requesting  authority,  as  well  as  the  lack  of 
information by the requested authority which concerns, in the first instance, the decision 
to  accept  or  refuse  the  transfer  of  proceedings,  and  secondly,  the  outcome  of  criminal 
proceedings  after  the  transfer.  The  absence  of  information  on  the  final  outcome  of 
proceedings in the requested State might prevent authorities from being able to formally 
close  the  proceedings  following  their  transfer,  which  in  particular  might  concern 
Member States subject to the legality principle (see section 2.4 (b)). 
lengthy  procedures:  the  transfer  of  proceedings  is  often  time-consuming,  and  in  the 
absence of mandatory time limits a decision to accept or refuse the transfer might often 
be taken after a long delay. According to estimates provided by the Member States, the 
average  timeframe  in  which  a  decision  on  the  transfer  is  taken  by  their  authorities  is 
between 30-90 days,  but  in  some cases it has been reported to  take up to  12 months25. 

24  

25  

A total of 3548 requests were issued in 2016 (replies by 11 Member States); 3979 requests were issued in 
2017  (replies  by  13  Member  States);  3573  requests  were  issued  in  2018  (replies  by  14  Member  States); 
3482  requests  were  issued  in  2019  (replies  by  14  Member  States);  4160  requests  were  issued  in  2020 
(replies by 13 Member States).  
Eurojust report on the Transfer of Proceedings in the EU, p. 17. 

5 

 
 
                                                           
Eurojust has also reported cases where it’s support was sought since there was no reply 
from  the  requested  State  months  after  submitting  the  request.  In  addition,  a  similar 
amount  of  time  might  be  necessary  for  the  actual  transfer  of  a  case  following  the 
decision  to  accept  the  transfer.  The  length  of  the  procedure  depends  also  on  the 
complexity of the case, on whether there is a need for translation of the documents or a 
need to obtain additional information.  

  unjustified  transfer  requests:  a  number  of  practitioners  identified  this  as  a  problem, 
explaining that sometimes little or no justification was provided in the transfer request. 
They also attributed this issue to the lack of a factual link to the requested State, e.g. in 
some situations the request for transfer of proceedings was only based on the location of 
a bank account or of an IP address in cases concerning fraud. In practice, this has led to 
refusals to take over a case. 

  costs  related  to  the  translation  of  the  entire  file,  in  particular,  causing  frustration  when 
the entire case file is requested to be sent at the moment when the request for transfer is 
submitted, that is at a stage where it is not even certain whether the transfer will actually 
be accepted. Overall, translations and the related costs were seen as an important issue, 
since  under  the  current  framework  it  is  often  unclear  which  entity  is  responsible  for 
translating documents or to what extent (which documents). 

A  number  of  other  issues  affecting  transfers  of  criminal  proceedings  have  also  been  reported, 
including  the  overall  complexity  of  the  procedure,  lack  of  legal  certainty  and  of  transparency, 
non-admissibility of already collected evidence once a transfer takes place, as well as difficulties 
linked  to  coordination  of  provisional  measures  such  as  pre-trial  arrest  warrants  and  freezing 
orders on assets adopted in the requesting State. 

2.3.  Lack of effective prosecution (transfers of proceedings do not take place where 

they would be in the interest of justice). 

The  consultations  have  revealed  problems  related  to  the  lack  of  effective  prosecution,  namely, 
due  to  situations  where  transfers  of  proceedings  do  not  take  place  where  they  would  be  in  the 
interest  of  justice.  There  are  circumstances  where  it  would  be  more  efficient  in  the  interest  of 
justice for the criminal proceedings to take place in another Member State, taking into account 
all circumstances of the individual case, e.g. where the suspect is residing in the requested State 
or where most of the evidence relevant to the investigation is located in the requested State.  

Some of these problems can be attributed to the fact that transfers often take place in the absence 
of  common  rules  on  the  applicable  criteria  for  when  the  case  can  be  transferred  and  on  the 
specific  procedure  to  be  followed,  which  are  therefore  left  to  national  laws  and  give  a  wide 
discretion  to  the  authorities  of  the  requested  State  whether  to  accept  or  refuse  the  transfer,  as 
further  explained  in  section  2.4.  Some  Member  States  have  also  reported  that  in  relation  to 
certain other Member States, there is no legal basis enabling a transfer of criminal proceedings, 
consequently leading to transfers not taking place at all even where they would make sense.  

6 

 
 
 
Furthermore,  the  requested  authority  may  accept  the  transfer  of  proceedings  only,  if  it  has 
jurisdiction to prosecute the offence. However, there are cases, where the requested State has no 
jurisdiction to prosecute a person due to non-existent connecting factors to establish jurisdiction 
(such as where the offence was committed outside the territory of the requested State and there is 
no other relevant ground for establishing jurisdiction). In such situations, beyond the fact, that a 
transfer of proceedings cannot take place, in some cases a risk of impunity might arise, such as in 
some  situations  when  the  surrender  of  a  person,  for  whom  an  EAW  was  issued,  is  delayed  or 
refused.  

Namely, execution of an EAW could be refused, among other grounds, based on the fact that the 
person who is the subject of the EAW is being prosecuted in the executing Member State for the 
same  act  as  that  on  which  the  EAW  is  based  (Art.  4(2)  of  the  Council  Framework  Decision 
2002/584/JHA).  It  can  also  be  refused  where  the  judicial  authorities  of  the  executing  Member 
State have decided either not to prosecute for the offence on which the EAW is based or to halt 
proceedings (Art. 4(3) of the Council Framework Decision 2002/584/JHA). It is also possible to 
refuse  an  EAW  where  the  offence  to  which  the  EAW  relates  has  been  committed  outside  the 
territory of the issuing Member State and the law of the executing Member State does not allow 
prosecution  for  the  same  offences  when  committed  outside  its  territory  (Art.  4(7)(b)  of  the 
Council  Framework  Decision  2002/584/JHA).  Moreover,  the  Court  of  Justice  of  the  European 
Union  has  decided  that  an  executing  judicial  authority  may,  in  exceptional  circumstances  and 
subject  to  certain  conditions,  refuse  to  execute  an  EAW  where  the  person,  if  surrendered,  will 
suffer a real risk of a serious breach of fundamental rights in the following situations:  

-  where  there  is  a  real  risk  that  the  surrender  of  the  person  concerned  because  of  the 
detention  conditions  in  the  issuing  State  could  lead  to  inhuman  or  degrading  treatment 
within the meaning of Article 426 of the Charter of Fundamental Rights of the European 
Union (‘Charter’)27;  

-  where, so far as concerns the independence of the judiciary in the issuing State, there is a 
real  risk  of  breach  of  the  fundamental  right  to  a  fair  trial  guaranteed  by  the  second 
paragraph of Article 4728 of the Charter29.  

Statistics show that since 2016 execution of an EAW has been delayed or refused on grounds of 
real  risk  of  breach  of  fundamental  rights  in  more  than  400  cases.  In  2020,  fundamental  rights 
issues led to a total of 108 refusals reported by 10 out of the 22 replying Member States30. 

26  
27  

28  
29  

30  

Article 4 ‘Prohibition of torture and inhuman or degrading treatment or punishment’. 
the  Court  of  Justice  of  5  April  2016,  C-404/15,  Aranyosi  and  Caldararu, 
Judgment  of 
ECLI:EU:C:2016:198; judgment of 25 July 2018, C-220/18 PPU, ML, paragraphs 88-94; judgment of the 
Court of Justice of 15 October 2019, C-128/18, Dorobantu, ECLI:EU:C:2019:857, paragraphs 52-55. 
Article 47 ‘Right to an effective remedy and to a fair trial’ 
Judgment  of  25  July  2018,  C-216/18,  LM,  ECLI:EU:C:2018:586  and  judgment  of  17  December  2020  in 
Joined Cases C-354/20, L and C-412/20, P, ECLI:EU:C:2020:1033. 
Commission Staff Working Document ‘Statistics on the practical operation of the European arrest warrant 
– 2020’:  

7 

 
 
                                                           
In such situations when surrender is refused, it often happens that a requested State does not have 
jurisdiction to  prosecute a requested person  itself  since, after the  arrest  of  such a person on its 
territory pursuant to an EAW, no connecting factor for jurisdiction could be established (such as 
nationality  or  residence  of  the  requested  person).  Some  Member  States  provide  for  the  aut 
dedere  aut  judicare  principle  to  apply  in  such  situations,  meaning  that  a  requested  person  is 
prosecuted in cases of no surrender, however the scope of the aut dedere aut judicare principle is 
often  limited  in  scope  (e.g.  mainly  limited  to  own  nationals).  Certain  Union  legal  acts  require 
Member States to take necessary measures to establish jurisdiction in cases where the surrender 
of  a  person  is  refused,  however,  these  cover  only  some  particular  offences.  For  example,  the 
Directive  (EU)  2017/541  on  combatting  terrorism31  requires  Member  States  to  establish 
jurisdiction over certain offences related to terrorist activities in cases of no surrender of persons 
suspected or convicted of such an offence to another Member State. Similarly, Directive 2014/62 
on the protection of the euro32 requires to establish jurisdiction over the offences related to the 
counterfeiting  of  the  euro  and  other  currencies  which  are  committed  outside  its  territory  and 
where the offender is in the territory of that Member State and is not extradited.  

The  above-mentioned  problems,  namely  transfers  not  taking  place  where  they  would  be  in  the 
interest of justice and inneficiencies in transfer procedures, where they do take place, can result, 
in particular, in: 

 

inefficient use and duplication of resources of public authorities and risks of conflicting 
or counterproductive decisions (e.g. on taking evidence and investigation strategies), such 
as where multiple prosecutions of the same case are taking place in two or more Member 
States;  

  disproportionate burdens on the persons involved, who become subject to a duplication of 
procedures  and  face  multiple  restrictions  on  their  rights  and  interests  due  to  different 
arrest  warrants,  searches  and  interrogations  being  carried  out  when  conducting  parallel 
prosecutions in two or more Member States, as well as risks of violating the fundamental 
right of the person concerned not to be tried or punished twice for the same offence (ne 
bis in idem principle); 

  delays in criminal proceedings, caused by lengthy transfer procedures;  
  a risk of impunity should the surrender of a person reprimanded under an EAW in order 
to conduct a criminal prosecution be refused and the State, which refused the surrender, 
would lack jurisdiction to prosecute this person. 

31  

32  

https://commission.europa.eu/system/files/2022-
12/swd_2022_417_1_en_document_travail_service_part1_v2.pdf  
Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating 
terrorism  and  replacing  Council  Framework  Decision  2002/475/JHA  and  amending  Council  Decision 
2005/671/JHA, OJ L 88, 31.3.2017, p. 6. 
Directive 2014/62/EU of the European Parliament and of the Council of 15 May 2014 on the protection of 
the  euro  and  other  currencies  against  counterfeiting  by  criminal  law,  and  replacing  Council  Framework 
Decision 2000/383/JHA, OJ L 151, 21.5.2014, p. 1. 

8 

 
 
 
                                                                                                                                                                                           
 
2.4. 

Problem drivers 

a.  Absence of a common legal framework for transfers of proceedings among Member 

States 

The most comprehensive international legal framework on the transfer of proceedings, the 1972 
Transfer  Convention,  offers  a  complete  step-by-step  procedure  for  transfers  of  proceedings. 
However, practice shows that due to  a limited number of ratifications of this  instrument  in  the 
Member  States,  other,  more  general  multilateral  instruments  are  commonly  used  as  a  basis  for 
transfer  of  proceedings,  such  as  Article  21  of  the  1959  MLA  Convention  (“Laying  of 
information in connection with proceedings”). Article 21 of the 1959 MLA Convention enables a 
Party to request another Party to institute proceedings against an individual. The latter form of 
cooperation  is,  however,  voluntary  in  nature.  Where  the  1972  Transfer  Convention  creates 
reciprocal obligations to transmit a proper request for the transfer of proceedings and the actual 
‘acceptance’  to  proceed  if  all  conventional  conditions  are  met,  the  laying  of  information  relies 
merely  on  the  ‘goodwill’  of  the  requested  party33.  Article  21  specifies  the  channel  of 
communication for the transmission of the information (request) and obliges the requested State 
to  notify the requesting  State of any action taken on the request  (and to forward  a copy of the 
verdict pronounced). Except where a Contracting Party has made a declaration that the requests 
and documents addressed to it shall be accompanied by a translation into a specific language, the 
translation  of  requests  and  annexed  documents  is  not  required.  The  other  elements  of  the 
procedure (such as the criteria for transfers, content of requests, or consequences of a transfer) 
are unregulated, leading to a number of problems mentioned above.  

b.  Differences among Member States’ national criminal justice systems  

In  addition  to  the  absence  of  a  common  legal  framework,  some  of  the  rules  on  transfer  of 
proceedings  are significantly influenced by the fundamental  principle governing prosecution in 
each national  system,  namely the principle of legality  (where prosecution is  mandatory) or the 
principle  of  opportunity  (where  prosecutor  has  discretion  not  to  prosecute  where  the  public 
interest  does not  demand it). This  may lead to  different  expectations and legal  requirements in 
the context of transfers of proceedings and in some cases to a lack of legal certainty both for the 
authorities, as well as for the suspects or accused persons and for victims.  

Furthermore, in some Member States certain other procedural or substantive conditions apply34, 
such  as  not  being  able  to  request  a  transfer  of  proceedings  during  certain  stages  of  criminal 
procedure,  or  when  the  suspect  is  still  unknown,  or  not  allowing  to  transfer  proceedings  in 
relation to its own national.  

Moreover,  a  transfer  of  proceedings  to  another  Member  State  has  far-reaching  effects  on  the 
position  of  suspects,  accused  persons  and  victims  beyond  the  mere  location  of  the  criminal 
proceedings, in terms of both their procedural rights and the substantive criminal law applicable 

33  
34  

Article 21 MLA Convention (1959) guidelines: https://rm.coe.int/168058da8d. 
See further Eurojust report on Transfer of proceedings in criminal matters.  

9 

 
 
                                                           
to  the  offence.  Nevertheless,  different  rules  exist  throughout  the  Member  States  on  the 
involvement of suspects, accused persons and victims in the transfer procedure. In a majority of 
Member  States  there  is  no  requirement  to  inform  a  suspect,  accused  person  or  a  victim  of  the 
transfer of proceedings and to ask for their opinion. Only few Member States specify that a legal 
remedy would be available for a suspect or accused person or a victim against the decision on the 
transfer  of  proceedings.  In  those  Member  States,  where  the  involvement  of  either  the  suspect, 
accused  person  or  the  victim  is  foreseen,  their  opinion  in  most  cases  does  not  bind  the 
authorities. 

3.  WHY SHOULD THE EU ACT? 

3.1.  Legal basis 

The legal basis for EU action is Articles 82(1)(b) and (d) of the Treaty on the Functioning of the 
European  Union  (TFEU).  This  Article  sets  out  the  Union’s  competence  to  establish  measures, 
that  facilitate  cooperation  between  judicial  or  equivalent  authorities  of  the  Member  States  in 
relation  to  proceedings  in  criminal  matters  and  prevent  and  settle  conflicts  of  jurisdiction 
between Member States. 

In  line  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark,  annexed  to  the 
Treaty on European Union (TEU) and to the TFEU, Denmark is not taking part in the adoption 
of this Regulation and is not bound by it or subject to its application.  

In line with Articles 1 to 3 of Protocol No 21 on the position of Ireland, annexed to the TEU and 
to the TFEU, Ireland may notify the President of the Council in writing that it wishes to take part 
in the adoption and application of any such proposed measure, where it will be entitled to do so. 
The notice must be submitted within 3 months of the proposal’s or initiative’s presentation to the 
Council under Title V, Part 3 TFEU.  

3.2. 

Subsidiarity: Necessity and added value of EU action 

Under Article 4(1)(j) TFEU, the competence to adopt measures in the area of freedom, security 
and justice is shared between the Union and the Member States. Therefore, Member States may 
act alone to regulate transfer of proceedings.  

However,  a  legal  framework  on  transfer  of  criminal  proceedings  cannot  be  sufficiently  and 
optimally  achieved  by  Member  States  acting  alone  since  it  is  a  cross-border  matter.  This  is 
evidenced  by  the  current  fragmented  legal  framework,  which  poses  legal  and  practical 
challenges. Bilateral agreements between Member States would also not address the problems, as 
agreements of this kind would eventually be needed between all Member States. 

The replies to the public and targeted consultations confirm that EU action in this area is likely to 
deliver better outcomes than Member States action.   

10 

 
 
Both  the  Council  and  the  European  Parliament  have  recognised  that  these  challenges  require 
action  beyond  the  national  level.  The  December  2020  Council  Conclusions29  invited  the 
Commission  to  consider  a  new  proposal,  and  the  December  2021  European  Parliament 
Resolution30 also called for the Commission to put forward a legislative proposal.   

Given the cross-border dimension of the problems addressed, the proposal needs to be adopted at 
EU level in order to achieve the objectives.   

4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? 

General 
objectives 

1) 
2) 

Specific objectives  1) 

2) 

Objectives 

Improve the efficient and proper administration of justice in the EU.  
Improve the respect of fundamental rights in the process of transfer 
of criminal proceedings.  
Improve  efficiency  and  legal  certainty  of  transfers  of  criminal 
proceedings.  
Enable  transfers  of  criminal  proceedings,  where  they  are  in  the 
interest  of  justice,  but  currently  not  possible  between  Member 
States, and reduce the phenomenon of impunity. 

5.  WHAT IS THE CHOSEN POLICY OPTION? 

In  order  to  address  the  problems  defined  in  section  2  and  to  achieve  the  objectives  listed  in 
section 4, a legislative proposal setting out a cross-border cooperation procedure for transfers of 
criminal proceedings is proposed. 

Since  the  main  objective  of  the  initiative  is  to  increase  the  efficiency  and  legal  certainty  of 
transfers  of  proceedings  and  enable  them  where  they  are  currently  not  possible,  this  would  be 
achieved  by  establishing  common  rules  regulating  the  conditions  under  which  criminal 
proceedings  initiated  in  one  Member  State  may  be  transferred  to  another  Member  State.  By 
having a uniform procedure in place in the EU, this proposal would facilitate judicial cooperation 
and could help to prevent conflicts of jurisdiction that could result in an infringement of the ne 
bis in idem principle. It would ensure that criminal proceedings take place in the Member State 
best-placed to prosecute an offence and would consequently improve  the proper functioning of 
the  European  area  of  justice.  It  would  also  take  into  account  the  current  level  of  integration 
between  Member  States  and  better  align  with  other  instruments,  such  as  the  EAW.  The  only 
realistic  option  is  proposing  a  new  legal  instrument  for  cooperation  as  none  of  the  alternative 
options considered35 are adequate to address the problems identified.  

35  

Non-legislative  options  (such  as  a  recommendation  addressed  to  Member  States  on  the  handling  of 
different stages of the transfer of proceedings) have been discarded as they would lack binding nature and 
could  not  provide  a  legal  basis  to  transfer  proceedings  and  would  therefore,  not  be  able  to  address  the 
problems encountered. Additionally, a recommendation encouraging Member States to sign and ratify the 

11 

 
 
                                                           
In particular, the proposal sets out a procedure for an authority in one Member State to request an 
authority  in  another  Member  State  to  take  over  criminal  proceedings  and  for  the  requested 
authority to accept or refuse these proceedings. The proposal is limited to the requests issued in 
the  framework  of  criminal  proceedings,  it  does  not  cover  other  types  of  proceedings  or 
infringements (such as administrative proceedings for infringements of the rules of law that are 
covered by the Directive on the European Investigation Order). Requests can be issued for any 
criminal  offence  that  may  be  prosecuted  in  the  requesting  State.  The  instrument  on  transfer  of 
criminal  proceedings  would  complement  the  system  of  surrender  of  persons  under  a  European 
Arrest  Warrant  and  would  provide  an  alternative  measure  where  issuing  an  EAW  would  be 
disproportionate or not possible because the penalty thresholds would not be met.  

Under  the  proposal,  a  transfer  could  take  place  if  it  would  improve  the  efficient  and  proper 
administration of justice and provided that established criteria are respected. It does not impose 
any obligation to request a transfer of proceedings. 

The proposal includes, among others, the following elements:  

  Specific  grounds  for  jurisdiction  in  order  to  ensure  that  for  criminal  proceedings  to  be 
transferred the requested State can exercise jurisdiction for the offences to which the law 
of the requesting State is applicable in certain cases, where it would not necessarily have 
jurisdiction under its domestic law. Such grounds would be limited to what is necessary 
to  ensure  that  criminal  proceedings  could  be  transferred  under  the  proposal.  Wide 
grounds for subsidiary jurisdiction are included in the 1972 Transfer Convention, but not 
in the 1959 MLA Convention. 

  A list of criteria under which a transfer of criminal proceedings could be requested. A list 
of  criteria  for  the  transfer  of  proceedings  is  also  available  under  the  1972  Transfer 
Convention, but not under 1959 MLA Convention. 

  Certain rights for suspects and accused persons, as well as for victims (such as a right to 
request the competent authorities to initiate a transfer procedure, or to be informed of the 
intended  transfer  and  to  give  an  opinion,  provided  this  does  not  prejudice  the 
confidentiality of investigation).  Under the 1972  Transfer Convention, a requirement to 
inform the suspect of the request for transfer of proceedings with a view to allowing him 
to present his views applies only when jurisdiction of the requested State is exclusively 
grounded  on  this  Convention  (subsidiary  jurisdiction).  No  specific  rights  for  suspects, 

1972 Transfer Convention has been discarded since non-participating Member States have not shown any 
interest in joining this  Convention (the  latest entry  into  force of the Convention  in the  EU  was in 2004). 
Other  drawbacks  of  cooperation  under  this  instrument  are  the  lack  of  mandatory  time  limits  for  taking  a 
decision on whether to accept or refuse the transfer of proceedings and the fact that communication takes 
place  between  central  authorities  rather  than  direct  communication  between  the  judicial  authorities 
involved.  Furthermore,  bilateral  agreements  between  Member  States  would  not  address  adequately  the 
problems within the EU, given that each Member States would need to have such agreements with all other 
Member States, which is unlikely, and it would also result in fragmentation of applicable rules. 

12 

 
 
                                                                                                                                                                                           
accessed persons or victims are included in the 1959 MLA Convention under Article 21 
thereof.  

is  conducted 

  A procedure for requesting transfer of criminal proceedings, including (a) a requirement 
for  direct  communication  between  the  requesting  and  requested  authorities  with  a 
possibility  to  involve  a  central  authority  for  administrative  transmission  and  receipt  of 
requests,  (b)  a  template  for  requests  to  transfer  criminal  proceedings,  and  (c)  rules  on 
translation  requirements  for  case  files.  Communication  under  the  1972  Transfer 
Convention 
through  Ministries  of  Justice,  unless  special  mutual 
arrangements  are  made  for  direct  transmission.  Similarly,  under  the  1959  MLA 
Convention,  information  shall  be  transmitted  between  Ministries  of  Justice  unless  a 
Contracting Party made a declaration that it accepts other channels of communication. A 
non-binding  model  request  form,  along  with  the  guidelines  on  practical  measures  to 
improve  co-operation  in  respect  of  transfer  of  proceedings,  was  adopted  by  the 
Committee  of  experts  on  the  operation  of  the  European  conventions  on  co-operation  in 
criminal  matters  of  the  Council  of  Europe36.  Both  under  the  1972  Transfer  Convention 
and  the  1959  MLA  Convention,  translation  of  requests  and  annexed  documents  is  not 
required unless a Contracting Party has made a declaration that requests and documents 
addressed to it shall be accompanied by a translation into a specific language. 

  Rules  on  taking  a  decision  on  whether  to  accept  or  refuse  transfer  of  criminal 
proceedings,  including  (a)  a  mandatory  time  limit  to  take  this  decision  and  (b)  an 
exhaustive list of grounds under which a transfer may be refused. Article 22 of the 1972 
Transfer  Convention  provides  for  an  extension  of  the  time  limit  by  six  months  for 
prosecution  in  the  requesting  State  as  a  result  of  a  request  for  transfer  of  proceedings, 
which  according  to  the  Explanatory  Report  to  the  Convention  entails  at  least  a  moral 
obligation  for  the  requested  State  to  decide  within  that  period.  The  1959  MLA 
Convention  does  not  contain  any  time  limits  to  respond  to  requests  for  transfer  of 
proceedings. The 1972 Transfer Convention contains a list of grounds for refusal, but the 
1959 MLA Convention does not. 

  Rules  on  the  effect  of  transferred  criminal  proceedings  in  the  requesting  and  requested 
States,  including  (a)  on  the  law  governing  the  proceedings  (and  the  sentencing)  after  a 
transfer, (b) on the validity in the requested State of legal acts which were performed in 
the  requesting  State,  and  (c)  under  which  conditions  the  requesting  authority  could 
reopen proceedings. Such rules are included in the 1972 Transfer Convention, but are not 
provided under the 1959 MLA Convention.  

  An  obligation  on  the  requested  authority  to  provide  information  to  the  requesting 
authority  on  the  outcome  of  the  transferred  proceedings.  Such  obligation  applies  both 
under the 1972 Transfer Convention and the 1959 MLA Convention. 

36  

Guidelines on practical measures to improve co-operation in respect of transfer of proceedings, including a 
model request form: 
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680
48bce8  

13 

 
 
                                                           
 
  The  use  of  the  decentralised  IT  system  for  communication  between  the  requesting  and 
requested authorities, which will enable swift, secure and reliable cross-border exchange 
of  information.  Secure  means  of  electronic  communication  in  relation  to  transfers  of 
criminal proceedings have so far not been available EU-wide.  

Traditional judicial cooperation or mutual recognition  

One of the problems identified when the transfer of proceedings takes place under the traditional 
mutual legal assistance conventions is the lack of obligation for the requested State to accept a 
transfer. Stakeholder consultations, however, have also demonstrated that the nature of transfer 
of criminal proceedings differs from those forms of cross-border judicial cooperation in the EU, 
which  are  based  on  the  principle  of  mutual  recognition.  A  transfer  of  criminal  proceedings 
requires the requested authority to take over criminal proceedings as a whole (leading to further 
steps with respect to the criminal offence under the national law of the requested State, such as 
investigation or prosecution) rather than recognising and executing a single judicial decision of 
another Member State. Recognition of judicial decisions takes place without an examination of 
the  substantive  reasons  behind  the  decision  taken  in  the  other  Member  State,  and  the 
responsibility for the criminal proceedings in which such a decision was issued remains with the 
Member  State  conducting  those  proceedings.  However,  when  taking  a  decision  on  whether  to 
accept or refuse a transfer of criminal proceedings, the requested authority should be able to take 
the merits of the case of the requesting authority into consideration and should also have more 
flexibility when deciding whether to take over those proceedings. If a certain degree of flexibility 
is  not  provided,  this  may  lead  to  requested  authorities  frequently  discontinuing  the  transferred 
proceedings,  which  is  neither  in  the  interest  of  the  requesting  authority,  nor  in  the  interest  of 
justice.  Therefore,  the  proposal  creates  a  judicial  cooperation  instrument  rather  than  a  mutual 
recognition instrument, and it also allows the requested authority to refuse a transfer of criminal 
proceedings when it considers that such a transfer is not in the interests of an efficient and proper 
administration of justice. Overall, the proposal aims to ensure a balance between effectiveness, 
legal clarity and flexibility.  

Differences in the national criminal justice systems (principles of legality and opportunity) 

As  mentioned  already  in  the  Section  2.4(b),  some  of  the  rules  on  transfer  of  proceedings  are 
significantly  influenced  by  the  fundamental  principle  governing  prosecution  in  each  national 
criminal  justice  system,  namely  the  principle  of  legality  and  the  principle  of  opportunity.  The 
proposal  takes  into  account  these  differences.  In  particular,  the  proposal  gives  the  requested 
authority sufficient discretion to refuse a request, where it considers that the transfer would not 
be in the interest of an efficient and proper administration of justice. Such a ground for refusal 
does not undermine the global efficiency of the tool, but rather ensures the necessary freedom for 
the requested authority to assess the merits of the case. Further, the proposal does not impose any 
obligation on the requested authority to investigate or prosecute a criminal offence. The action to 
be taken by the requested authority should be in accordance with its national law. The proposal 
also  requires  that  the  criminal  proceedings  related  to  the  request  shall  be  suspended  or 
discontinued  in  the  requesting  State  following  the  acceptance  of  the  transfer  of  proceedings, 

14 

 
 
which is essential for the Member States with a principle of legality to be able to discharge their 
duty to  prosecute. Finally, the proposal  also  ensures that sufficient  information  is  given by the 
requested authority about the decision delivered at the end of the proceedings.  

Jurisdiction 

This  Regulation  provides  for  jurisdiction  in  specific  cases.  It  allows  the  requested  State  to 
exercise jurisdiction over the case upon acceptance of the transfer of proceedings, if that Member 
State  would  otherwise  not  have  jurisdiction  under  its  domestic  law  to  prosecute  the  case.  The 
grounds for jurisdiction are limited to an exhaustive list of situations and can be exercised when 
the  interests  of  efficient  and  proper  administration  of  justice  so  require.  That  list  in  particular 
includes  some  situations  where  the  requested  State  refuses  to  surrender  a  suspect  or  accused 
person for whom a European arrest warrant has been issued and who is present in the requested 
State and is  a national  of or a resident in that State.  It  also covers other cases  where there is  a 
close  link  with  the  requested  State,  such  as  situations  when  criminal  proceedings  are  already 
ongoing in that State against the same suspect or accused person in respect of other facts and that 
suspect or accused person is a national of or resident in the requested State.  

The  requested  State  would  not  be  able  to  exercise  such  jurisdiction  unless  prosecution  was 
requested by a Member State having original jurisdiction. Provisions on jurisdiction would bring 
significant added value to the proposal with the aim to avoid that a person remains unpunished. 
Overall,  grounds  for  jurisdiction  are  expected  to  improve  the  efficiency  of  the  procedure  for 
transfers.  

6.  EXPECTED IMPACTS 

The preferred option is discussed and assessed hereunder against the following criteria: 

  effectiveness; 
  efficiency; 
 
  coherence with other EU cross-border judicial cooperation instruments; 
  proportionality. 

fundamental rights; 

6.1.  Effectiveness 

Overall,  the  proposal  would  significantly  increase  the  effectiveness  of  transfer  of  criminal 
proceedings in different ways, as it would: 

reduce delays in the transfer procedure; 

  enhance security through capacity to investigate, prosecute and sanction crime; 
 
  enable transfers of criminal proceedings where they are currently missing; 
  bring increased legal certainty. 

A comprehensive legal  framework setting out  the entire procedure for transfers  of proceedings 
and covering all the elements mentioned in section 5 would provide greater legal certainty for all 

15 

 
 
stakeholders  concerned  and  reduce  the  level  of  fragmentation.  In  particular,  it  would  enable 
transfers  of  criminal  proceedings  where  they  are  currently  missing.  Both  authorities  and  civil 
society welcomed this option in the consultation and highlighted the need for a clear and certain 
framework.  

By  establishing  a  complete  procedure  for  requesting  and  taking  a  decision  on  the  transfer  of 
criminal  proceedings  with  a  common  list  of  criteria  for  such  transfers,  an  exhaustive  list  of 
grounds  for  refusal  and  clear  obligations  to  respond,  the  proposal  is  expected  to  increase  the 
number  of  successfully  transferred  criminal  proceedings.  It  could  also  reduce  the  number  of 
unjustified  requests  for  transfers  of  proceedings  since  requests  would  have  to  be  based  on 
specific criteria and would have to give reasons, including a justification why the transfer would 
necessary and appropriate. Moreover, authorities could conduct prior consultations with a view 
to  determining  whether  the  transfer  would  serve  the  interests  of  efficient  and  proper 
administration of justice. Mandatory deadlines for response will accelerate the process.   

The establishment of the decentralised IT system is expected to render communication between 
authorities more efficient and effective. Communication through this electronic tool is intended 
to save time and cost for the authorities. The decentralised IT system would allow speeding up 
the  flow  of  information  among  its  users,  increase  security  of  the  exchanged  data  as  well  as 
enhance  transparency.  The  use  of  the  digital  channel  can  also  be  expected  to  have  a  positive 
environmental impact due to the use of less paper and postage. In addition, positive impacts on 
simplification and administrative burdens are anticipated.  

Furthermore, positive impacts of successful transfer procedures are expected on the functioning 
of  other  EU  judicial  cooperation  instruments,  in  particular  the  EAW.  Consequently,  a  more 
efficient functioning of transfers of criminal proceedings would improve the overall cooperation 
between Member States in investigating and prosecuting cross-border crime. 

6.2.  Efficiency  

This section provides a qualitative assessment of the expected costs and benefits/savings for the 
public  administrations  and  for  the  citizens.  A  precise  assessment  of  the  economic  impact, 
resulting from the proposed regulation, however, is difficult due to a lack of available statistics in 
the  Member  States  on  the  number  of  criminal  proceedings,  which  are  actually  transferred  and 
those  that  are  hampered  due  to  a  lack  of  common  rules.  There  is  also  a  lack  of  figures  on  the 
actual cost of transfer of proceedings and the cost of failure to transfer them. 

Under  the  preferred  policy  option,  public  authorities  may  incur  one-off  administrative  costs  to 
adjust to the new rules of the Regulation, in particular costs arising from the need to train judges, 
prosecutors  and  other  competent  authorities  on  the  new  rules.  The  proposal  would  not  require 
Member States to create any new public authorities or bodies. In this regard, it is reasonable to 
assume  that  these  compliance  costs  would  be  comparable  to  those  for  other  EU’s  judicial 
cooperation instruments in criminal matters. 

16 

 
 
Additional  adjustment  costs  can  be  expected  for digitalisation.  In  line  with  the  “digital  by 
default”  principle  and  the  EU’s  policies  for  the  digitalisation  of  justice,  the  Regulation  would 
provide  for  specific  provisions  on  digitalisation  of  those  procedures  that  are  introduced  by  the 
Regulation. 

The  proposal  for  a  Regulation  on  the  digitalisation  of  judicial  cooperation  (‘Digitalisation 
proposal’)37 already envisages the creation of a decentralised IT system and aims to effectively 
digitalise  procedures  in  various  areas  of  cross-border  judicial  cooperation  in  criminal  matters. 
The  existing  reference  implementation  software  developed  by  the  Commission  for  the  use  by 
Member  States  and  used  for  other  legislations  -  the  e-Evidence  Digital  Exchange  System 
(eEDES)  -  could  be  readily  expanded  to  the  transfers  of  proceedings.  Authorities  already 
connected to the decentralised IT system could also deal with matters related to the transfers of 
proceedings. Whether any other new authorities would have to be additionally connected to the 
decentralised  IT  system  would  depend  on  Member  States,  as  the  Regulation  would  leave  it  to 
them  to  decide,  in  line  with  their  internal  organisation.  The  costs  for  these  possible  new  IT 
deployments  were  however  assessed  as  one-off  and  moderate38,  in  particular  given  the  cost 
savings arising from possible economies of scale. In any case, these costs would be a fraction of 
the  overall  costs  for  setting  up  the  whole  decentralised  IT  system  under  the  Digitalisation 
proposal.  

Furthermore, each Member State would have to bear the costs for the operation and maintenance 
of  its  access  points  that  enable  digital  communication.  These  costs  would  however  be  shared 
with other legislations operating under the same decentralised IT system and is thus not expected 
to  be  significant.  Member  States  would  also  be  able  to  apply  for  grants  to  finance  these  costs 
under the relevant Union financial programmes, in particular the cohesion policy funds and the 
Justice Programme. At the same time, the use of the decentralised IT system itself would have a 
positive impact on simplification and administrative burden, including on reduction of costs for 
authorities (such as costs of communication through postal channels). 

37  

38  

Proposal for a Regulation of  the  European Parliament and  of the  Council on the digitalisation of judicial 
cooperation  and  access  to  justice  in  cross-border  civil,  commercial  and  criminal  matters,  and  amending 
certain  acts  in  the  field  of  judicial  cooperation,  COM/2021/759  final.  Once  adopted  the  Regulation  will 
establish  a  legal  framework  for  electronic  communication  between  competent  authorities  in  judicial 
cooperation  procedures  in  criminal  matters  in  the  application  of  legal  acts  listed  in  its  Annexes.  For  this 
purpose,  a  decentralised  IT  system,  based  on  e-CODEX,  will  be  established  which  will  be  used  for 
communication  and  exchange  of  information,  data  and  documents  between  courts  and  other  competent 
authorities, and where relevant with JHA agencies and EU bodies. In addition, Regulation (EU) 2022/850 
of the European Parliament and of the  Council of 30 May 2022 on a computerised system  for the cross-
border  electronic  exchange  of  data  in  the  area  of  judicial  cooperation  in  civil  and  criminal  matters  (e-
CODEX  system),  and  amending  Regulation  (EU)  2018/1726  establishes  a  legal  framework  for  the  ‘e-
CODEX  system’  (e-Justice  Communication  via  Online  Data  Exchange  system)  which  means  a 
decentralised and interoperable system  for cross-border communication for the  purpose  of facilitating the 
electronic exchange of data, which includes any content transmissible in electronic form, in a swift, secure 
and reliable manner in the area of judicial cooperation in civil and criminal matters. 
See  further  Commission  Staff  Working  Document  Impact  Assessment  Report  accompanying  the 
digitalisation proposal, SWD/2021/392 final. 

17 

 
 
                                                           
Main  recurrent  costs  for  the  public  authorities  are  expected  as  a  result  of  translation  of  the 
documents  from  the  case  files39.  To  minimize  the  negative  effects  of  costs  resulting  from  the 
translation of case files, national authorities can consult and, if possible, agree to translate only 
the  essential  documents  or  parts  thereof.  The  proposal  also  foresees  a  possibility  for  the 
requesting authority to propose to the requested authority that large or exceptional costs could be 
shared. Finally, if a Joint Investigation Team (JIT) was set up, and if all requirements were met, 
translation costs could be covered by the JIT funding provided by Eurojust, thereby relieving the 
Member States from this financial burden (see Eurojust report on the transfer of proceedings in 
the EU). 

In  addition,  the  proposal  is  expected  to  generate  cost  reductions  for  public  authorities  as  the 
processes  become  more  efficient  through  a  clear  legal  framework  and  public  authorities  being 
able to  transfer proceedings more  effectively. A  number of existing problems  with  the transfer 
procedures  would  be  mitigated  and  costs  reduced.  For  example,  by  establishing  a  common 
template for requests for transfers of proceedings and minimum requirements for information to 
be provided in such requests by the requesting authority, the proposal would improve the quality 
of  requests  and  their  treatment,  and  would  therefore  generate  efficiency  savings  for  competent 
authorities. It would also speed up the process. The number of unjustified requests would likely 
decrease, since each transfer would be well substantiated. The fact that the proposal would cover 
all forms of crime and not be limited to serious forms of crime would also give great benefits in 
terms  of  the  efficiency  of  the  instrument.  Furthermore,  uniform  rules  introduced  in  the 
Regulation  would  also  increase  mutual  trust  between  Member  States  and  legal  certainty  for 
public authorities. 

The  initiative  is  not  expected  to  increase  costs  or  administrative  burdens  for  businesses  and 
citizens.  In  a  situation  where  individuals  or  legal  persons  would  be  parties  in  criminal 
proceedings, be it as suspects, accused persons or as victims, a common legal framework would 
contribute  to  ensuring  the  proximity  of  proceedings,  as  often  the  proceedings  would  be 
transferred  to  the  Member  State  of  their  nationality/residence,  if  possible.  While  this  will  not 
apply  in  all  cases,  as  this  will  depend  on  the  circumstances  of  each  case  (e.g.  suspects  and 
victims residing in different Member States), there will overall be a positive impact for them. 

In particular, as regards victims, it is in their best interest to have the proceedings taking place in 
the  best  placed  Member  State  to  ensure  a  successful  outcome  of  proceedings.  Under  the 
proposal,  the  interests  of  victims  would  also  have  to  be  taken  into  account  when  taking  a 
decision on the transfer, including the possibility for victims to testify during trial in a Member 
State other than the one where they reside and to obtain and provide evidence. In addition, under 

39  

To give an example of high costs incurred by the authorities in one case, which involved Eurojust support, 
2041 pages of documents from the case file had to be translated amounting to the cost of approximately 30 
000 EUR.  

18 

 
 
                                                           
Article  14  of  the  Directive  2012/29/EU  on  Victim’s  Rights40,  victims  have  a  right  to 
reimbursement  of  expenses  incurred  as  a  result  of  their  active  participation  in  criminal 
proceedings in all Member States, in accordance with their role in the relevant criminal justice 
system.  The  conditions  or  procedural  rules  under  which  victims  may  be  reimbursed  are 
determined by national laws of Member States. 

As  regards  suspects  and  accused  persons,  the  existence  of  minimum  standards  of  procedural 
rights  at  Union  level  ensures  that  whenever  transferred,  suspects  and  accused  persons  are 
guaranteed,  as  a  minimum,  equivalent  levels  of  protection.  In  particular,  Directive  (EU) 
2016/1919 on legal aid for suspects and accused persons41 requires Member States to ensure that 
suspects  and accused persons have the right  to  legal  aid  when they lack  sufficient  resources  to 
pay  for  the  assistance  of  a  lawyer  (means  test)  and/or  when  the  interests  of  justice  so  require 
(merits test).   

In  addition  to  protecting  their  individual  rights  in  the  transfer  of  proceedings,  an  EU  legal 
framework would also create more legal  certainty for suspects,  accused persons and victims of 
crime.  

6.3. 

Fundamental rights  

The  impact  for  citizens  is  expected  to  be  positive.  In  a  situation  where  individuals  would  be 
parties in criminal proceedings, be it as suspects or as victims, a common legal framework would 
contribute to ensuring the proximity of proceedings, to take place in the Member State of their 
nationality/residence, if possible. While this will not apply in all cases, as it will depend on the 
circumstances of each case (e.g. multiple suspects or victims from different Member States), an 
overall positive impact for them is expected.   

Situations where several Member States are conducting criminal investigations in respect of the 
same crime against the same person, as well as where criminal proceedings are being conducted 
in a Member State that is not best placed to prosecute, can have a significant effect on suspects, 
accused persons and victims. By facilitating transfers of criminal proceedings between Member 
States, the proposal in particular aims at preventing detrimental effects on the rights and interests 
of  individuals,  including  possible  violations  of  the  ne  bis  in  idem  principle  in  the  EU  area  of 
freedom,  security  and  justice,  in  line  with  Article  50  of  the  Charter  and  Article  54  of  the 
Convention  Implementing  the  Schengen  Agreement42.  The  increasing  number  of  preliminary 

40  

41  

42  

Directive  2012/29/EU  of  the  European  Parliament  and  of  the  Council  of  25  October  2012  establishing 
minimum  standards  on  the  rights,  support  and  protection  of  victims  of  crime,  and  replacing  Council 
Framework Decision 2001/220/JHA, OJ L 315, 14.11.2012, p. 57. 
Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid 
for  suspects  and  accused  persons  in  criminal  proceedings  and  for  requested  persons  in  European  arrest 
warrant proceedings OJ L 297, 4.11.2016, p. 1. 
Convention  implementing  the  Schengen  Agreement  of  14  June  1985  between  the  Governments  of  the 
States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the 
gradual abolition of checks at their common borders (OJ L 239, 22.9.2000, p. 19). 

19 

 
 
                                                           
references to the Court of Justice of the European Union in the past years, seeking clarifications 
on the interpretation of the ne bis in idem principle under EU law proves that violations are likely 
to  occur  in  practice,  and  are  often  of  difficult  solution.  This  is  also  reflected  in  Eurojust’s 
casework43, where it is observed that very often, when national authorities become aware of the 
existence  of  parallel  proceedings  concerning  the  same  facts  and  against  the  same  individual  in 
another Member State, the transfer of proceedings is the necessary solution to avoid violations of 
the ne bis in idem principle. 

The  proposal  also  includes  a  number  of  guarantees  for  the  individuals  involved  in  the 
proceedings.  In particular, the intervention of a judicial authority when the transfer is requested 
both  in  the  requesting  and  requested  State  ensures  that  the  legality  of  the  measure  has  been 
checked  and  that  the  request  does  not  unduly  impinge  on  fundamental  rights.  The  requesting 
authority  is  required  to  ensure  in  the  individual  case  the  applicability  of  the  criteria  for 
transferring  criminal  proceedings,  and  in  this  assessment  the  legitimate  interests  of  the 
individuals concerned, suspects or victims, must be duly taken into consideration. Moreover, the 
suspect  or  accused  person  must  be  consulted  on  the  intended  transfer  and  must  be  given  an 
opportunity to state their opinion in a language they understand. Victims must also be consulted 
on the intended transfer, in cases where the victim resides in the requesting State, and must be 
given  an  opportunity  to  state  their  opinion.  Suspects  and  accused  persons,  as  well  as  victims 
residing  in  the  requesting  State,  are  informed  of  the  decision  whether  to  accept  or  refuse  the 
transfer of criminal proceedings, as well as of the remedies available to challenge the decision to 
accept the transfer of proceedings. Exceptions may apply both to the consultation obligation and 
the  obligation  to  provide  information  about  the  decision  taken  where  this  might  prejudice  the 
confidentiality  of  investigation.  The  proposal  specifically  provides  for  the  right  to  an  effective 
remedy for suspects, accused persons and victims against the  decision to accept the transfer of 
proceedings, in order for them to challenge the legality of the procedure and any other violation 
of their rights. The review by a judicial authority serves as a further safeguard here. Moreover, it 
is  provided  that,  when  an  offence  was  perpetrated  in  the  territory  of  the  requesting  State,  the 
requested  authority  may  take  into  consideration  the  maximum  penalty  applicable  in  the 
requesting State whenever this is to the benefit of the accused person, in order to comply with the 
principle of legal certainty and foreseeability of the applicable law. 

Finally,  since  the  proposal  regulates  the  transfer  of  criminal  proceedings,  all  criminal  law 
procedural safeguards apply to those criminal proceedings. This includes in particular the right to 
a fair trial and the rights of defence, as enshrined in Article 6 European Convention on Human 
Rights and Articles 47 and 48 of the Charter. It also includes the relevant legislation at EU level 
on procedural rights for suspects and accused persons in criminal proceedings, namely Directives 
2010/64/EU, 2012/13/EU, 2013/48/EU, 2016/343, 2016/800 and 2016/1919.   

43  

https://www.eurojust.europa.eu/sites/default/files/assets/eurojust-report-on-the-transfer-of-
proceedings-in-the-eu.pdf  

20 

 
 
                                                           
6.4.  Coherence with other EU cross-border judicial cooperation instruments 

Existing Union instruments  in  the area of cross-border judicial  cooperation in  criminal  matters 
govern the recognition of judgements and judicial decisions for the purpose of: (a) enforcement 
of  sentences44,  (b)  surrender  of  requested  persons  under  a  European  Arrest  Warrant,  (c)  non-
custodial  supervision  measure  to  be  transferred  to  the  Member  State  where  the  suspect  is 
normally  resident45,  and  (d)  gathering  of  evidence  through  a  European  Investigation  Order 
(‘EIO’)46,  as  well  as  the  procedures  for  mutual  legal  assistance,  in  particular,  the  spontaneous 
exchanges  of  information  in  criminal  matters47,  and  the  carrying  out  of  criminal  investigations 
through a Joint Investigation Team (‘JITS’)48.  

The  adoption  of  common  rules  on  the  transfer  of  criminal  proceedings  would  complement  EU 
tools of cross-border judicial  cooperation, for example, by  preventing the risk of impunity that 
may result from situations when surrender of a person under an EAW is refused (see Art. 3 of the 
Regulation).  Requests  under  this  Regulation  can  be  issued  for  any  criminal  offence  and, 
therefore, the transfer of criminal proceedings may also provide a useful  alternative measure to 
an EAW, where issuing  the latter would be disproportionate or not  possible, such as when the 
penalty  thresholds  are  not  met49.  Where  following  the  creation  of  a  new  legal  framework, 
authorities would recourse more to the transfer of proceedings, this could lead to the decrease in 
the use of EAW procedures, as well as of the European Supervision Order.  

Furthermore,  in  cases  involving  provisional  measures  adopted  in  the  requesting  State,  the 
requested  State  should  be  made  aware  of  the  provisional  measures  in  place  and,  where  this  is 

44  

45  

46  

47  

48  

49  

Such  as  Council  Framework  Decision  2008/909/JHA  of  27  November  2008  on  the  application  of  the 
principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures 
involving deprivation of liberty for the purpose of their enforcement in the European Union. 
Council  Framework  Decision  2009/829/JHA  of  23  October  2009  on  the  application,  between  Member 
States of the European Union, of the principle of mutual recognition to decisions on supervision measures 
as an alternative to provisional detention, OJ L 294, 11.11.2009, p. 20. This Framework Decision enables a 
non-custodial  supervision  (e.g.  an  obligation  to  remain  at  a  specified  place  or  an  obligation  to  report  at 
specified times to a specific authority) to be transferred from the Member State where the non-resident is 
suspected of having committed an offence to the Member State where he is normally resident. It allows a 
suspected person to be subject to a supervision measure in his home Member State until the trial takes place 
in another Member State, instead of being placed into pre-trial detention. 
Directive  2014/41/EU  of  the  European  Parliament  and  of  the  Council  of  3  April  2014  regarding  the 
European  Investigation  Order  in  criminal  matters,  OJ  L  130,  1.5.2014,  p.  1.  The  Directive  replaced  the 
Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union 
and  its  Protocol,  which  set  out  the  conditions  for  mutual  legal  assistance.  The  Mutual  Assistance 
Convention remains applicable, among others, for spontaneous exchange of information under its Article 7. 
It’s also being used in combination with the 1972 Transfer Convention as a basis to communicate directly 
between  judicial  authorities  of  two  Member  States  instead  sending  requests  through  the  Ministries  of 
Justice (Art. 6). 25 Member States are parties to the Mutual Assistance Convention. 
Such  as  on  the  basis  of  the  Convention  established  by  the  Council  in  accordance  with  Article  34  of  the 
Treaty on European  Union, on Mutual Assistance in Criminal Matters between the Member States of the 
European Union. 
On  the  basis  of  the  Council  Framework  Decision  of  13  June  2002  on  joint  investigation  teams  or  of  the 
Convention established by the Council in accordance with Article 34 of the Treaty on European Union, on 
Mutual Assistance in Criminal Matters between the Member States of the European Union.  
See also Eurojust report on the Transfer of Proceedings in the EU, p. 12. 

21 

 
 
                                                           
necessary,  authorities  should  coordinate  the  transfer  of  proceedings  with  the  execution  of 
additional  judicial  cooperation  instruments,  such  as  EAWs  and/or  freezing  certificates50,  to 
ensure that provisional measures are kept in place without interruption51.  

This Regulation would also create a useful complement to the European Investigation Order. The 
EIO is used to obtain necessary evidence in criminal matters from another Member State. At an 
early  stage  of  investigation,  sending  an  EIO  to  the  requested  State  helps  to  receive  necessary 
evidence, if any is  available, and may also  help  identify a connection or  an overlap with  other 
investigations.  Requests  to  transfer  criminal  proceedings  could  follow,  where  the  requesting 
authority  considers,  taking  into  account  the  particular  circumstances  of  the  case,  that  it  could 
serve the interests of a proper administration of justice. A transfer of proceedings could in some 
cases  be  an  alternative  to  issuing  several  EIOs  where  most  of  the  evidence  is  located  in  the 
requested  State.  In  some  cases,  following  the  transfer  of  proceedings,  an  EIO  to  the  Member 
State,  which  transferred  them,  or  to  another  Member  State  might  nevertheless  be  necessary. 
However, in general, authorities might want to ensure that all necessary investigative measures 
that  should  have  been  taken  in  the  requesting  State  have  been  executed  before  the  transfer  of 
proceedings  to  prevent  further  EIOs  being  necessary  after  the  transfer  and  to  ensure  the 
admissibility  of  evidence  already  gathered.  Finally,  practice  has  also  revealed  that  in  some 
cases52 before the actual transfer of proceedings authorities might need to recourse to an EIO to 
transfer evidence from the Member State where proceedings are conducted to the Member State 
which will take them over, and that there also have been cases53 where proceedings did not need 
to  be  formally  transferred,  when  authorities  of  one  Member  State  had  already  obtained  all 
necessary  evidence  via  an  EIO  from  another  Member  State.  Such  examples  demonstrate  the 
close interconnection between the EIO system and the transfer of criminal proceedings. 

Joint Investigation Teams are an instrument of judicial cooperation whose primary purpose is the 
carrying  out  of  criminal  investigations  and  gathering  of  evidence  within  a  team  involving 
members of several Member States. Similarly as with the EIO, sharing of evidence in a JIT may 
be  a  prior  step  to  a  subsequent  transfer  of  criminal  proceedings.  Setting  up  of  a  JIT  may  also 
allow national authorities to apply for JIT funding from Eurojust, which can be used to cover the 
costs of translation and/or of the physical transfer of the case file54.  

The  Convention  on  Mutual  Assistance  in  Criminal  Matters  between  the  Member  States  of  the 
European  Union55  in  accordance  with  its  Art.  7  permits  the  competent  authorities  of  Member 
States,  without  the  need  for  a  mutual  assistance  request,  to  exchange  information  relating  to 
criminal offences or administrative infringements covered by Article 3. This provision does not 
place obligations on Member States  and provides that the  relevant  exchanges are to  be  carried 

50  

51  
52  
53  

54  
55  

Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the 
mutual recognition of freezing orders and confiscation orders. 
See further Eurojust report on the Transfer of Proceedings in the EU, p. 25.  
See further Eurojust report on the Transfer of Proceedings in the EU, p. 26. 
Report on Eurojust’s casework in the  field of prevention and resolution of conflicts of jurisdiction, p. 13. 
Eurojust report on the Transfer of Proceedings in the EU, p. 28. 
See Eurojust report on the Transfer of Proceedings in the EU, p. 31. 
Convention established by the Council in accordance with Article 34 of the Treaty on European Union, on 
Mutual Assistance in Criminal Matters between the Member States of the European Union. 

22 

 
 
                                                           
out within the limits of the national law of Member States. Spontaneous exchange of information 
might be sufficient to allow to concentrate parallel proceedings in one Member State without a 
formal  transfer  of  proceedings  from  one  Member  State  to  another  (although  that  might  not  be 
possible for Member States with a strict principle of legality which do not have a legal basis to 
close or suspend its investigation and must recur to a formal transfer of proceedings as a way to 
discharge their duty to  prosecute).  It  appears to  be often used in  cases concerning to  exchange 
information about minor offences in border regions at the beginning of the investigation or even 
before  any  investigation  has  been  initiated56.  The  Regulation  will  not  replace  this  form  of 
cooperation which the authorities will be able to continue using whenever appropriate.  

In  addition,  Council  Framework  Decision  on  prevention  and  settlement  of  conflicts  of 
jurisdiction57  establishes  a  procedure  for  exchange  of  information  and  direct  consultations 
between  competent  authorities  to  achieve  an  effective  solution  and  avoid  any  adverse 
consequences arising from parallel proceedings. Similarly, other legal instruments in the area of 
criminal  matters,  particularly  those  related  to  specific  crime  types,  such  as  the  Directive  (EU) 
2017/541  of  the  European  Parliament  and  of  the  Council,  Council  Framework  Decision 
2002/475/JHA and Council Framework Decision 2008/841/JHA, include provisions referring to 
the factors to be taken into account with the aim of centralising proceedings in a single Member 
State  when  more  than  one  Member  State  can  validly  prosecute  on  the  basis  of  the  same  facts. 
However, these legal acts do not regulate the procedure for the transfer of criminal proceedings, 
which may be a necessary solution in such cases. This Regulation would therefore provide the 
missing  link  for  situations  where  transfer  of  criminal  proceedings  is  necessary  to  solve  the 
conflict of jurisdiction that could result in an infringement of the ne bis in idem principle. 

Eurojust  plays  a  key  role  in  facilitating  preliminary  contacts  and  consultations  and  resolving 
jurisdiction issues.  In accordance  with  the Regulation (EU) 2018/172758, Eurojust may  request 
national  authorities  to  accept  that  one  of  them  may  be  in  a  better  position  to  undertake  an 
investigation  or  to  prosecute  specific  acts  and,  in  cases  of  disagreement  between  the  Member 
States, it shall issue a written opinion on the case. Competent national authorities are also under 
obligation to inform Eurojust of cases in which conflicts of jurisdiction have arisen or are likely 
to  arise.  The  advisory  role  of  Eurojust  is  also  mentioned  in  Framework  Decision  on  the 
prevention  and  settlement  of  conflicts  of  jurisdiction,  which  invites  Member  States  to  involve 
Eurojust in the direct consultations and to refer the case to Eurojust when it was not possible to 
reach consensus. 

56  

57  

58  

See further Final report of the project ‘TROP - Transfer of Proceedings in criminal matters: an exploration 
of the current practice in the EU and of possible ways for improvement, based on practitioners views’. The 
project was funded by the European Union’s Justice Programme (2014-2020). 
Council  Framework  Decision  2009/948/JHA  of  30  November  2009  on  prevention  and  settlement  of 
conflicts of exercise of jurisdiction in criminal proceedings. 
Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the 
European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council 
Decision 2002/187/JHA (OJ L 295, 21.11.2018, p. 138).  

23 

 
 
                                                           
6.5. 

Proportionality  

The  proposal  lays  down  rules  under  which  a  competent  authority  in  the  Union  may  request  to 
take over criminal proceedings, if that would improve the efficient and proper administration of 
justice  and  provided  that  established  criteria  are  respected.  Throughout  the  proposed  text,  the 
options  chosen  are  the  least  intrusive  for  the  national  criminal  justice  systems  of  the  Member 
States, taking into account  in  particular  the differences of the national  criminal  justice systems 
(see section 2.4.(b)). 

The  proposal  is  limited  to  requests  issued  in  criminal  proceedings.  Requests  can  be  issued  for 
any  criminal  offence  and therefore  the transfer  of criminal  proceedings  would complement the 
system of surrender of persons under an EAW and may provide a useful alternative measure to 
an  EAW,  where  issuing  the  latter  would  be  disproportionate  or  not  possible  such  as  when  the 
penalty  thresholds  are  not  met.  The  proposal  also  gives  the  requested  authority  sufficient 
discretion to refuse a request, in particular if it considers that the transfer is not in the interest of 
an efficient and proper administration of justice. Moreover, it does not impose any obligation on 
the requested authority to prosecute a criminal offence.  

It sets out a rule that evidence transferred from the requesting State must not be denied admission 
in  criminal  proceedings  in  the  requested  State  on  the  mere  ground  that  such  evidence  was 
gathered in another Member State, but the power of the trial court to freely assess the evidence is 
not affected by this Regulation.  

This Regulation provides for jurisdiction in specific cases in order to ensure that for proceedings 
to be transferred in accordance with the Regulation the requested State can exercise jurisdiction 
for the offences to which the law of the  requesting State is applicable. This jurisdiction can be 
exercised  only  upon  the  request  for  transfer  of  proceedings  when  the  interests  of  efficient  and 
proper administration of justice so require.  

The proposal, therefore, does not go beyond the minimum required in order to achieve the stated 
objective at EU level and what is necessary for that purpose. 

7. 

IMPACT MONITORING  

The  Regulation  will  be  evaluated  and  the  Commission  will  submit  a  report  to  the  European 
Parliament and the Council at the latest five years after the Regulation becomes applicable.  The 
evaluation would be done on the basis of, among others, input received from the Member States’ 
authorities  and  other  relevant  stakeholders.  In  particular,  Member  States’  expert  meetings, 
organised  by  the  Commission,  will  take  place  to  discuss  problems  arising  in  the  context  of 
transfers of criminal proceedings. Eurojust and EJN play an important role in the implementation 
and application of the relevant instruments. These forums, as well as other professional networks 
can  be  used  to  obtain  feedback  from  practitioners  on  the  application  of  the  Regulation  and 
identify practical problems.  

24 

 
 
An indicator of success of the Regulation would be the fact that the initiative meets its objectives 
and  thus  facilitates  cooperation  between  Member  States’  judicial  authorities  in  relation  to 
transfers  of  proceedings  in  criminal  matters.  However,  as  this  would  likely  not  be  empirically 
measurable as such,  a combination of the indicators mentioned below could be used instead to 
assess the success rate of the Regulation.  

Figure 1: Examples of potential evaluation indicators 

25 

 
 
 
Assessment criterion 
To  improve  efficiency 
and  legal  certainty  of 
transfers  of 
criminal 
proceedings.  

To  enable  transfers  of 
criminal 
proceedings, 
where  they  are  in  the 
interest  of  justice,  but 
currently  not  possible 
between Member States.  

To  improve  the  respect 
of  fundamental  rights  in 
the process of transfer of 
criminal proceedings.  

Examples of potential indicators 
The practical application of the Regulation: 

The number of requests for transfer of criminal proceedings 

• 
issued, including the criteria for requesting the transfer (source – 
Member States, yearly);  

Percentage of accepted and of refused requests for transfer of 

• 
criminal proceedings, including the grounds for refusal (source – 
Member States, yearly);  

Percentage of investigations and prosecutions that were not 

• 
pursued following the acceptance of a transfer of criminal proceedings 
(source – Member States, yearly);  

The length of time to transmit information on the decision 

• 
whether to accept the transfer of criminal proceedings (source – 
Member States, yearly); 

Percentage of legal remedies sought against the decision to 

• 
accept the transfer, including whether by a suspect, accused person or a 
victim, and the number of successfully challenged decisions (source – 
Member States, yearly); 

Case law concerning the Regulation, possible preliminary 

• 
ruling requests to the CJEU concerning the interpretation of the 
Regulation. 

The perception of the Regulation by civil society, legal practitioners, 
academia and public authorities of Member States:  

  Commission’s survey of public authorities, relevant EU 
agencies, bodies and networks, lawyers’ associations;  

  The number of petitions and citizen letters complaining about 

the problems with the transfers of criminal proceedings 
received by the EU institutions; 

  The views of the Regulation in academic literature and in 
reports by individuals, organisations and international 
organisations. 

Costs of implementing and operating the decentralised IT system 
(source – Commission and Member States). 

26 

 
 
 
 
 
Annex 1: Procedural information 

1.  LEAD DG, DeCIDE PLANNING/CWP REFERENCES 

Lead DG: The Directorates-General for Justice and Consumers (JUST) is the DG responsible for 
the preparation of this initiative. 

Decide reference: PLAN/2021/11423. 

CWP reference: this initiative appears in CWP 2022 under action 30 'A new push for European 
Democracy': Initiative on transfer of criminal proceedings. 

2.  EVIDENCE AND SOURCES  

On  30  March  2022,  the  Vice-President’s  Šefčovič  Cabinet  granted  the  derogation  from  the 
requirement to  carry out an impact assessment for this initiative mainly due to lack of realistic 
options and limited impacts on citizens and businesses. To overcome the absence of an  impact 
assesment, this analytical Commission staff working document was prepared. 

This  analytical  document  accompanying  the  initiative  compiles  the  evaluative  evidence. 
Evidence  has  been  gathered  through  several  consultation  activities.  In  addition,  the  proposal 
draws on the reports59 from Eurojust and the European Judicial Network and takes into account 
the results of a research project on transfer of criminal proceedings in the EU60 which was co-
funded by the European Commission from the Justice programme. 

The  problem  definition,  the  preferred  policy  option  and  the  impacts  reflect  the  views  of  the 
relevant stakeholders that participated in the consultation activities detailed in Annex 2. 

59  
60  

Supra, at 20. 
Supra, at 23. 

27 

 
 
                                                           
Annex 2: Stakeholder consultation  

This  annex  provides  a  summary  of  all  stakeholder  consultation  activities  undertaken  in  the 
context of the Commission’s initiative on transfer of proceedings in criminal matters.  

1.  Consultation strategy 

The consultation activities aimed at ensuring that all interested parties and stakeholders will have 
the opportunity to provide feedback on possible policy options and their likely impacts.  In that 
context, the Commission reached out to a broad range of stakeholders, including Member States’ 
national  authorities,  non-governmental  organisations,  EU  agencies  and  bodies,  academia  and 
individual citizens. 

In order to ensure that the Commission’s proposal adequately takes into account the views of all 
interested stakeholders, the consultation strategy supporting this initiative has been built on the 
following components: 

I. Surveys: 

o  Call for Evidence 
-  Published  on  the  “Have  your  Say”  website  of  the  EU  Commission  on  16  November  2021. 

- 

Submissions were possible until 14 December 2021. 
Included a link to a document describing the political context, the objectives, policy options 
as well as likely impacts. 

-  Targeted  audience  were  professionals,  who  deal  with  judicial  cooperation  and  transfer  of 
proceedings,  parties  of  criminal  proceedings  affected  by  the  initiative,  as  well  as  academia 
and researchers. 

o  Open public consultation: 
-  Survey open to feedback from any interested party. 
-  Open for three months, from 7 December 2021 to 4 March 2022. 

o  Targeted consultations: 
-  Consultation  of  Member  States’  public  authorities  through  a  targeted  questionnaire  on  the 
current  situation  and  a  potential  future  legal  framework.  The  questionnaire  was  sent  on  17 
December 2021 with a deadline of 31 January 2022.  

-  Consultation of relevant stakeholders, namely Eurojust, EJN, the EPPO, Europol, and FRA, 

through targeted questionnaires. 

II. Meetings: 

o  Group expert meetings: 
-  Expert meeting organised by the Commission on 15 February 2022, which included experts 
of each Member State as well as representatives of FRA, Eurojust, EJN and the EPPO.  

28 

 
 
 
 
 
 
 
 
-  Criminal  Law  Expert  Group  on  11  February  2022  organized  by  the  Commission,  which 

focused on transfers of criminal proceedings. 

The results of each component are presented below. 

2.  Results of the consultation 

The following sections present a summary of the main results of the consultation activities. 

I. Call for Evidence  

Eight replies were gathered through the call for evidence. Three respondents identified as EU 
citizens,  two  as  non-governmental  organizations,  and  three  as  governmental  agencies. 
Overall, stakeholders supported the need for a new EU legislative initiative and outlined the 
main elements that the future proposal should cover, such as a detailed procedure and criteria 
for transfers, including  rules on effects  of the transfer  and the necessary  guarantees for the 
individuals involved in the proceedings. 

II. Open public consultation 

In  total,  22  responses  were  received;  however,  one  contributor  only  answered  one  specific 
question and did not reply to the entire questionnaire. The most frequent replies were from EU 
citizens,  followed  by  public  authorities.  The  largest  group  of  replies  came  from  Germany, 
followed  by  the  Czech  Republic.  Respondents  were  asked  in  what  capacity  they  give  their 
contribution.  Most  respondents  identified  as  an  ‘EU  citizen’  (38.1%),  while  public  authorities 
comprised the second biggest group (23.81%).  

Feedback by stakeholder type 

Stakeholder type 

EU citizen 

Public authority  

Non-governmental organisation (NGO) 

Other 

Feedback by country of origin 

Number of replies 

8 

6 

2 

6 

 Country 
Austria 
Belgium 
Czech Republic 
Germany 
Spain 

Number of replies 
2 
1 
4 
5 
1 

 Country 
Italy 
Netherlands 
Poland 
Portugal 
Sweden 

Number of replies 
1 
2 
1 
1 
1 

29 

 
 
 
 
 
 
 
France 

2 

Slovenia 

1 

  ANALYSIS OF RESPONSES TO GENERAL QUESTIONS 

Four general questions addressed the overall need for the EU to act on the area of transfer of 
criminal proceedings and the benefits of a potential EU legal framework on transfer of 
proceedings. 

  Question  1:  In  principle,  do  you  think  that  there  is  a  need  for  a  new  EU  legal 

framework on transfer of proceedings? 

A majority of respondents (71.43 %) identified a need for a new EU legal framework in 
principle. Only one respondent opposed, while five participants either didn’t know or had 
no opinion on this matter. 

Table 1: Number and percentage of replies to question 1 

Option  

Yes 

No 

I don’t know/I have no opinion 

Count 

15 

1 

5 

% 

71.43 

4.76 

23.81 

  Question 2: Is the EU best placed to regulate transfers of proceedings? 

The majority of respondents (61.9%) viewed the EU as best placed to regulate transfers 
of proceedings. Those that supported EU action saw the benefits of such action in: 

  providing  a  uniform  framework  for  transfer  of  proceedings  across  the  EU  (as 
to  case-by-case  solutions  currently  being  used),  while  also 
opposed 
complementing  the  current  EU  legal  framework  on  taking  of  evidence  and 
surrender of persons in criminal proceedings; 
filling  in  gaps  of  the  existing  legal  framework  on  transfer  of  proceedings,  in 
particular,  where  as  a  legal  basis  for  transfer  Article  21  of  the  1959  European 
Convention  on  mutual  assistance  in  criminal  matters  is  used  and  lacks  certain 
necessary common rules; and   

 

  enhancing  cooperation  within  the  EU,  such  as  providing  for  direct  contacts 
between  judicial  authorities,  simplifying  and  speeding  up  cooperation,  and 
ensuring the rights of the victims are taken into account. 

At  the  same  time,  these  respondents  noted  the  need  to  ensure  that  the  new  legal 
framework  would  facilitate  and  not  hamper  cooperation,  such  as  by  introducing 
exceptions  to  double  criminality,  by  not  allowing  to  diverge  from  the  common  set  of 
criteria for the transfer of proceedings in individual cases, or by not allowing for regional 
cooperation which goes further than a possible EU instrument. 

30 

 
 
 
 
 
 
Roughly,  one  in  every  five  respondents  (19.05  %)  did  not  consider  that  the  EU  is  best 
placed to regulate transfer of proceedings. As for the reasons mentioned to support such 
answer, the respondents indicated that the current legal framework seems to be functional 
and that the problem encountered in practice are addressed with the help of relevant EU 
bodies (European Judicial Network in criminal matters and Eurojust). 

Option  

Yes 

No 

I don’t know/I have no opinion 

No Answer 

Count 

13 

4 

4 

0 

% 

61.9 

19.05 

19.05 

0 

  Question  3:  What  would  be,  in  your  view,  the  main  benefits  of  a  new  EU  legal 

framework on transfer of proceedings?  

Concerning  the  main  benefits  of  a  new  EU  legal  framework,  multiple  replies  were 
possible. Three out of four respondents (76.19 %) saw a potential improvement of legal 
clarity  as  a  main  benefit,  closely  followed  by  an  improvement  of  efficiency  (66.67  %). 
Improving the effectiveness, as in the capability of producing a desired result, was seen as 
a  main  benefit  by  42.86  %,  while  38.1  %  of  respondents  saw  the  main  benefit  in  the 
further promotion of the interests of justice.  

While  specifying  their  answers  further,  one  respondent  indicated,  that  in  their  view  the 
benefits of EU action lie in uniform application of law and consequently, in the increase 
of legal certainty. In addition, an increase in transfers of criminal proceedings could lead 
to  prosecution  that  is  more  effective.  Another  respondent  noted  as  a  benefit  faster 
implementation  of  the  defendants’  rights  when  it  is  in  their  interest  to  transfer  the 
proceedings to their home country. A couple of respondents saw as an advantage that the 
procedure for transfers would be simplified and improved. Other two respondents saw as 
a benefit that the legitimate interests of victims would be taken into account.   

  Table 3: Number and percentage of replies to question 3 

Option  

Answers 

 Ratio in % 

Improving efficiency (the capability to do 
something without wasting resources and 
time) 

Improving effectiveness (the capability of 
producing a desired result) 

Improving legal certainty 

Further promoting the interests of justice 

14 

9 

16 

8 

31 

66.67 

42.86 

76.19 

38.1 

 
 
 
 
I don't know/I have no opinion 

No Answer 

2 

1 

9.52 

4.76 

  Question 4: Do you agree that European Union should aim for criminal proceedings 

to take place in the Member State best placed to prosecute a case? 

Question  4  posed  a  more  general  question  on  the  coordination  of  criminal  prosecution 
within the EU. Three out of four respondents (76.19 %) agreed with the notion that the 
European Union should aim for criminal proceedings to take place in the Member State 
best placed to prosecute a case, while only three respondents (14.29 %) disagreed.  

Table 4: Number and percentage of replies to question 4 

Option  

Yes 

No 

I don’t know/I have no opinion 

No Answer 

Count 

16 

3 

2 

0 

% 

76.19 

14.29 

9.52 

0 

  ANALYSIS OF RESPONSES TO QUESTIONS ON THE CURRENT SITUATION 

  Question 5: What are, in your view, the main issues currently affecting transfers of 

proceedings between EU Member States? 

On this question, respondents could contribute multiple answers.  

Transfers of criminal proceedings seem to be perceived as facing a wide variety of issues 
given  that  all  the  points  listed  as  possible  answers  were  noted.  The  issue  identified  by 
most of the participants (61.9 %) was language barriers. Most of respondents  (57.14 %) 
saw complexity, lack of legal certainty and transparency as well as lack of mutual trust 
among  the  competent  authorities  and  the  lack  of  coordination  as  an  issue.  47.62%  of 
respondents  brought  up  the  length  of  proceedings  to  take  a  decision,  due  to  lack  of 
mandatory time limits, and costs as an issue. One third (33.33 %) of respondents saw the 
lack  of  common  minimum  standards  and  the  non-admissibility  of  already  gathered 
evidence  as  problematic,  while  the  different  minimum  standards  of  rights  for 
suspects/accused persons and/or victims in the receiving State were seen as problematic 
by  28.57  %.  The  principle  of  legality  was  seen  as  problematic  by  the  least  amount  of 
respondents (23.81 %).  

Apart  from  the  listed  issues,  respondents  mentioned  several  others.  Namely,  one  reply 
noted the wide discretion of the authorities to  decide on the transfer  and suggested that 
criteria  for  transfer  should  be  laid  down  in  which  the  defendant’s  interest  is  also  taken 
into  account.  Another  reply  raised  the  issue  of  unjustified  transfers  and  one  more  reply 

32 

 
 
 
 
 
noted the lack of an overview of the investigative material from the transferring country. 
Lack of double criminality and proportionality of transfers (cases of internet fraud) were 
mentioned among the existing issues by one respondent. 

Table 5: Number and percentage of replies to question 5 

Option  

Answers 

Ratio in % 

Complexity, lack of legal certainty and 
transparency (e.g. due to different rules) 

Lack of mutual trust among the competent 
authorities (e.g. whether a criminal 
proceeding would be successfully 
completed in another Member State; or 
misgivings whether a custodial sentence 
that could be ultimately imposed would be 
appropriate) 

Lack of cooperation (e.g. no response 
received from authorities of a potentially 
receiving State) 

Lack of common minimum standards for 
transfers (e.g. minimum information to be 
provided) 

The principle of legality (an obligation to 
prosecute) 

Length of proceedings to take a decision, 
due to lack of mandatory time limits 

Language barriers  

Costs (in particular high costs of 
translations)  

Different minimum standards of rights for 
suspects/accused persons and/or victims in 
the receiving State 

Non-admissibility of already collected 
evidence  

I don't know/I have no opinion 

No Answer 

12 

12 

12 

7 

5 

10 

13 

10 

6 

7 

0 

1 

33 

57.14 

57.14 

57.14 

33.33 

23.81 

47.62 

61.9 

47.62 

28.57 

33.33 

0 

4.76 

 
 
 
  Question  6:  To  your  knowledge,  in  which  situations/based  on  which  criteria  are 

proceedings most frequently transferred? 

The objective of Question 6 was to gather knowledge about grounds for transfers under 
the  current  legal  framework.  To  accomplish  this  objective,  grounds  for  transfers  were 
listed. Respondents were able to submit multiple answers.  

Respondents  identified a number of frequently used grounds for a transfer and only the 
interest of the receiving Member State was not named as a frequent ground for transfers. 
The majority of respondents named as most frequent grounds for a transfer - the offence 
being  committed  wholly  or  partly  in  the  territory  of  another  Member  State  and  the 
nationality/residence of a suspect/accused person of/in the other Member State (57.14 %).  
Similarly,  the  location  of  substantial  parts  of  the  most  important  evidence  in  the  other 
Member State was named as a ground for transfers by over one third of the respondents 
(38.1 %). The transfer being in the interest of the ongoing proceedings was named to be a 
frequent ground for a transfer by 38.1 % respectively. Six respondents (28.57 %) named 
ongoing proceedings in the receiving Member State as a frequent ground for transfer as 
well  as  it  being  more  suitable  and/or  easier  for  the  other  Member  State  to  conduct  the 
investigation  and  criminal  proceedings.  Only  three  respondents  (14.29%)  named 
nationality/residence of a victim of/in the other Member State as the ground for a transfer 
and only one respondent (4.76 %) replied with the interest of a victim for proceedings to 
take place in the other Member State. Similarly, the interest of the suspect were seen to be 
rarely taken into account when making a decision on a transfer. Accordingly, it being in 
the  interest  of  the  suspect/accused  person  for  proceedings  to  take  place  in  the  other 
Member  State  and  the  suspect/accused  person  serving  or  having  to  serve  a  sentence 
involving  deprivation  of  liberty  in  the  other  Member  State  was  replied  by  only  one 
respondent  (4.76  %)  each.  Preventing  impunity  was  named  as  a  frequent  ground  for  a 
transfer by two respondents (9.52 %).  

One respondent gave additional explanations, specifying in particular, that in many cases 
more than one criteria will be applicable. 

Table 6: Number and percentage of replies to question 6 

Answers 

12 

Ratio in % 

57.14 

8 

38.1 

Option  

The offence has been committed wholly or 
partly in the territory of another Member 
State, or most of the effects or a substantial 
part of the damage caused by the offence 
was sustained in the territory of the other 
Member State 

Substantial parts of the most important 
evidence are located in the other Member 
State (e.g. availability of evidence or 
witnesses) 

34 

 
 
It is in the interest of the ongoing 
investigations (e.g. there are ongoing 
proceedings in respect of the same or 
related facts involving other persons, in 
particular in respect of the same criminal 
organisation, in the other Member State) 

Nationality/residence of a suspect/accused 
person of/in the other Member State 

Nationality/residence of a victim of/in the 
other Member State 

It is in the interest of the suspect/accused 
person for proceedings to take place in the 
other Member State (e.g. his social 
integration: enforcement of the sentence in 
the other Member State is likely to improve 
the prospects for social rehabilitation of the 
person sentenced)  

A suspect/accused person is serving or is to 
serve a sentence involving deprivation of 
liberty in the other Member State 

There are ongoing proceedings against the 
suspect/accused person in the other Member 
State  

It is in the interest of a victim for 
proceedings to take place in the other 
Member State 

It is in the interest of the other Member 
State (e.g. security interest of another 
Member State) 

It is more suitable and/or easier for the other 
Member State to conduct the investigation 
and criminal proceedings 

To prevent impunity (e.g. when a European 
arrest warrant is refused due to poor 
detention conditions in the issuing Member 
State) 

I don't know/I have no opinion 

No Answer 

8 

12 

3 

1 

1 

6 

1 

0 

6 

2 

4 

1 

Is there a hierarchy of these criteria in your State? 

35 

38.1 

57.14 

14.29 

4.76 

4.76 

28.57 

4.76 

0 

28.57 

9.52 

19.05 

4.76 

 
 
 
 On this sub-question, a significant amount of respondents didn’t know an answer or had 
no opinion on this matter (28.57 %). Of the respondents who provided a concrete answer, 
the  vast  majority  (78.57  %)  suggested  there  is  no  hierarchy  of  such  criteria  in  their 
country (52.38 % in total). Only three participants in total (14.29 %) answered that such a 
hierarchy  existed  in  their  country.  Those  respondents  named  PL,  DE  and  IT  as  their 
country of origin.  

Table 7: Number and percentage of replies to the sub question 

Option  

Yes 

No 

I don’t know/I have no opinion 

No Answer 

Count 

3 

11 

6 

1 

% 

14.29 

52.38 

28.57 

4.76 

  Question  7:  To  your  knowledge,  on  which  basis  do  you/your  authorities  most 

frequently refuse a transfer of proceedings when requested?  

Respondents  could  provide  multiple  answers  to  the  question  on  the  grounds  for  refusal 
under the current legal framework. Respondents identified the lack of jurisdiction as the 
most common ground for refusal of a transfer (61.9 %). Some of the grounds for refusal 
related to the impossibility of further investigations were among the most common; the 
ne bis in idem principle was named as a ground for refusal by 47.62 % and the criminal 
prosecution being statute-barred by 42.86 %. In contrast, age of criminal  responsibility, 
amnesty  (both  9.52  %)  and  privileges  and  immunities  (4.76  %)  were  among  the  least 
mentioned grounds for refusal. No double criminality was named as a ground for refusal 
by  33.33  %  of  respondents.  One  of  the  respondents  named  fundamental  rights  as  a 
common ground for refusal.  

Additionally, two  respondents  indicated  as reasons situations when requested State was 
not  best  placed  to  conduct  criminal  proceedings,  and  one  other  respondent  referred  to 
lack of evidence and suspect not being in the requested country. 

Table 8: Number and percentage of replies to question 7 

Option  

Answers 

Ratio in % 

Ne bis in idem (Right not to be tried or 
punished twice in criminal proceedings for 
the same criminal offence) 

Age of criminal responsibility  

Amnesty 

Lack of jurisdiction  

10 

2 

2 

13 

36 

47.62 

9.52 

9.52 

61.9 

 
 
 
No double criminality 

Privileges and immunities (such as legal 
privilege, or medical privilege)  

The criminal prosecution is statute-barred 

Fundamental rights  

I don't know/I have no opinion 

No Answer 

7 

1 

9 

0 

4 

1 

33.33 

4.76 

42.86 

0 

19.05 

4.76 

  Question  8:  To  your  knowledge,  according  to  applicable  national  provisions,  is  a 
informed  and/or  asked  to  provide  his/her  opinion 

suspect/accused  person 
concerning a transfer of a criminal proceeding? 

Between  respondents  who  provided  a  ‘yes’  or  ‘no’  answer,  results  were  split  (28.57  % 
each).  In  addition,  one  respondent  from  Germany  specified  that  while  there  is  no  legal 
obligation to inform the accused, there is a right to have access to the file. Respondents 
from  the  Czech  Republic  noted  in  particular,  that  while  the  suspect  or  accused  is  not 
informed in advance of the intended transfer of criminal proceedings, they are informed 
of the transfer subsequently, as they are served with an order temporarily waiving certain 
acts  of  the  criminal  proceedings,  which  is  issued  in  connection  with  the  transfer  of 
criminal proceedings to a foreign State. Another respondent from Sweden indicated that 
suspect’s  opinion  will  be  sought  when  the  suspect  is  in  Sweden  and  the  transfer  is 
requested under the 1972 European Convention on the transfer of proceedings in criminal 
matters, but no such requirement existed for transfers outside this Convention.  

Table 9: Number and percentage of replies to Question 9 

Option  

Yes 

No 

I don’t know/I have no opinion 

No Answer 

Count 

6 

6 

5 

4 

% 

28.57 

28.57 

23.81 

19.05 

If yes, to your knowledge, could you please quantify, as a percentage, in how many cases 

have suspects/accused persons agreed to transfer of proceedings.  

In response to the sub question, only one respondent from Slovenia gave an indication – 

5. 

37 

 
 
 
 
 
 
  Question  9:  To  your  knowledge,  according  to  applicable  national  provisions,  is  a 
victim informed and/or asked to provide his/her opinion concerning a transfer of a 
criminal proceeding? 

Of the respondents who provided a ‘yes’ or ‘no’ answer, the majority (33.33% in total) 
didn’t  know  of  such  an  involvement  of  the  victim  in  the  proceeding.  23.81  %  of 
respondents knew of such an involvement.  

In  addition,  one  respondent  from  Germany  specified  that  while  there  is  no  legal 
obligation  to  inform  victim  of  a  crime,  there  is  a  right  to  information  on  the  state  of 
proceedings. Similarly to the answers  given in  reply the previous question, respondents 
from  the  Czech  Republic  noted  that  victims  of  the  crime  are  informed  of  the  transfer 
subsequently,  as  they  are  served  with  an  order  temporarily  waiving  certain  acts  of  the 
criminal proceedings.  

Table 10: Number and percentage of replies to Question 9 

Option  

Yes 

No 

I don’t know/I have no opinion 

No Answer 

Count 

5 

7 

6 

3 

% 

23.81 

33.33 

28.57 

14.29 

If yes, could you please quantify, as a percentage, in how many cases have victims agreed 
to transfers of proceedings 

In response to the sub question, only one respondent from Slovenia gave an indication – 
20. 

  Question 10: To your knowledge, does your national system provide a legal remedy 
for  a  suspect/accused  person  (e.g.  an  appeal  proceeding)  against  a  decision  to 
transfer a criminal proceeding from one Member State to another? 

On  the  question,  whether  the  national  system  provides  for  a  legal  remedy  against  the 
transfer  of  the  proceeding,  38.1  %  of  the  respondents  answered  with  “Yes”.  Those 
respondents  named  ES,  PT,  SI,  PL,  FR,  CZ  and  IT  as  their  state  of  origin.  Meanwhile 
33.33 % of respondents  noted there was no legal remedy in their national legal system. 
These respondents named DE, CZ and SE as their Member State of origin.  

In addition, a respondent from Sweden has clarified, that a suspect/accused person could 
ask for a review of a decision to transfer a criminal proceeding to another Member State, 
when  transfer  is  done  under  the  1959  European  Convention  on  mutual  assistance  in 
criminal  matters.  Another  responded  from  Germany  specified,  that  appeal  possibilities 
would  depend  on  whether  the  accused  is  heard  before  the  decision  is  taken,  this 

38 

 
 
 
 
presupposes  that  they  have  been  informed  of  the  planned  transfer  or  of  the  criminal 
proceedings. Whether this is the case, depends on the stage of criminal proceedings.   

Table 11: Number and percentage of replies to Question 11 

Option  

Yes 

No 

I don’t know/I have no opinion 

No Answer 

Count 

8 

7 

6 

1 

% 

38.1 

33.33 

28.57 

4.76 

  Question 11: To your knowledge, does your national system provide a legal remedy 
for  a  victim  (e.g.  an  appeal  proceeding)  against  a  decision  to  transfer  a  criminal 
proceeding from one Member State to another? 

The majority of respondents (52.38 %) didn’t know of a legal remedy for a victim against 
a decision to transfer a criminal proceeding. These respondents named PT, PL, DE, CZ, 
SE and AT as their country of origin. In contrast, only one in every ten respondent knew 
of such a remedy for the victim (9.52 %). These respondents named ES and SI as their 
country of origin.  

Similarly to the reply to the previous question, one respondent from Sweden has clarified, 
that  a  victim  could  ask  for  a  review  of  a  decision  to  transfer  a  criminal  proceeding  to 
another  Member  State,  when  transfer  is  done  under  the  1959  European  Convention  on 
mutual assistance in criminal matters. 

Table 12: Number and percentage of replies to Question 11 

Option  

Yes 

No 

I don’t know/I have no opinion 

No Answer 

Count 

2 

11 

7 

1 

% 

9.52 

52.38 

33.33 

4.76 

  ANALYSIS OF RESPONSES TO QUESTIONS ON REQUIREMENTS AND CONSEQUENCES 

  Question  12:  To  your  knowledge,  according  to  your  national  law,  does  a  transfer 
require  that  proceedings  have  already  been  instituted  and  that  the  presumed 
suspect is known? 

Almost half of the respondents (47.62 %) did not know of such a requirement under their 
national law. These respondents named ES, PT, FR, DE, CZ, SE and AT as the country 
of their origin. Six respondents (28.57 %), who named SI, DE and IT as their country of 

39 

 
 
 
 
 
origin,  replied  that  their  national  law  required  the  proceeding  to  be  instituted  and  the 
suspect  to  be  known  to  initiate  the  transfer.  Additionally,  one  respondent  from  Sweden 
clarified,  that  the  requirement  to  know  the  presumed  suspect  would  apply  in  cases  of 
transfers under the 1972 European Convention on the transfer of proceedings in criminal 
matters, but not outside such framework. 

Table 13: Number and percentage of replies to Question 12 

Option  

Yes 

No (according to your national law, in some 
instances a transfer of proceedings is 
initiated immediately after the detection of 
an offence) 

I don’t know 

No Answer 

Count 

6 

10 

4 

1 

% 

28.57 

47.62 

19.05 

4.76 

  Question  13:  To  your  knowledge,  according  to  your  national  law,  is  a  transfer 

precluded at a certain point (e.g. when a proceeding is almost finalised)? 

Of those respondents, who provided a ‘yes’ or ‘no’ answer, majority did not consider that 
a transfer could be precluded at a certain point. These respondents named PT, SI, PL, DE, 
CZ and SE as their country of origin. Only 9.52 % of respondents, who named ES and IT 
as their country of origin, provided the opposite answer.  

Table 14: Number and percentage of replies to Question 13 

Option  

Yes 

No  

I don’t know 

No Answer 

Count 

2 

10 

8 

1 

% 

9.52 

47.62 

38.1 

4.76 

  Question  14:  To  your  knowledge,  have  you/the  authorities  of  your  Member  State 
when  acting  as  a  receiving  Member  State  encountered  any  issues  in  court 
proceedings  concerning  admissibility  of  evidence  collected  by  authorities  of  the 
transferring state? 

As to  issues  in  court proceedings  concerning the  admissibility of evidence collected by 
authorities of the transferring state, nine respondents (42.86 %) replied that they had no 
knowledge of such issues.  In contrast,  only 3 respondents  (14.29 %) had  knowledge of 
such issues. These respondents named PT, SI and CZ as their state of origin.  

40 

 
 
 
 
None  of  the  respondents  replied  to  the  sub-question,  in  case  of  a  ‘yes’  answer,  which 
asked to  specify the percentage of  cases where this  has occurred. One respondent  from 
the Czech Republic, however, indicated that in  cases of witness statements made in the 
requesting State, these could not, in principle, be used in the Czech Republic as requested 
State  after  taking  over  the  proceedings  because  a  lawyer  was  not  present  in  the  Czech 
Republic in such criminal proceedings. 

Table 15: Number and percentage of replies to Question 14 

Option  

Yes 

No  

I don’t know 

No Answer 

Count 

3 

9 

8 

1 

% 

14.29 

42.86 

38.1 

4.76 

  Question  15:  Please  indicate  if  you/the  authorities  of  your  Member  State  transfer 
proceedings  only  conditionally,  meaning  that  proceedings  could  be  reverted  to  the 
transferring Member State. 

Answers on question 15 were split: while 28.57 % of respondents (countries of origin: SI, 
CZ and DE) replied that transfers are only conducted conditionally by the authorities of 
their Member State, 33.33 % of respondents (countries of origin ES, PL, FR, DE, SE and 
IT) replied that their authorities also conduct definite transfers.  

Table 16: Number and percentage of replies to Question 15 

Option  

Yes 

No (not possible) 

I don’t know 

No Answer 

Count 

6 

7 

6 

2 

% 

28.57 

33.33 

28.57 

9.52 

To your knowledge, what is the approximate percentage of cases that have been reverted 

to the transferring authority in your Member State? 

In response to this sub question, only one respondent from Slovenia gave an indication – 

15.  

  Question 16: To your knowledge, in cases of a possibility of reverting, how is the ne 
bis  in  idem  requirement  (right  not  to  be  tried  or  punished  twice  in  criminal 
proceedings  for  the  same  criminal  offence)  regulated  in  order  to  ensure  that  two 
proceedings do not formally run in parallel? 

41 

 
 
 
 
 
 
 
Question 16 was an open question, and a large majority of respondents (76,19 %) did not 
provide an answer to it. Those respondents who did reply stated, that there was no direct 
legal  provision  on  this  issue  (4,76%)  and  that  therefore  the  transfer  in  itself  did  not 
constitute a procedural obstacle (4,76%). Other respondents replied that, before sending a 
request on the transfer to a foreign State, a temporary waiver shall be made (4,76%), or 
listed  the  sources  from  which  information  concerning  a  pending  criminal  procedure  in 
another  Member  State  can  be  ascertained  (4,76%).  Furthermore,  another  respondent 
suggested the establishment of a European foreclosure procedure to ensure that a person 
cannot be charged twice for one offence (4,76 %).   

  ANALYSIS OF RESPONSES TO QUESTIONS ADDRESSED ONLY TO DEFENCE LAWYERS 

  Question  17:  What  are  the  main  issues  encountered  in  transfers  of  criminal 

proceedings from the perspective of a defence lawyer? 

Question  17  was  an  open  question  and  as  a  result  the  majority  of  the  respondents 
(90,48%) did not provide an answer. One respondent referred to additional costs for the 
client.  Another  respondent  named  as  a  main  issue  the  fact  that  the  right  to  request  a 
transfer did not exist, even in cases in which significant reasons (such as the nationality 
of  the  accused,  a  confession  of  the  accused)  would  argue  in  favour  of  a  transfer.  As  a 
result, even a defendant who had already confessed to the crime had no means to ensure a 
transfer of proceedings. Furthermore, no effective appeal existed against a decision of a 
foreign  state  not  to  transfer  to  the  home  State  of  the  accused  person.  Overall,  the 
respondent deemed the accused person to have too little rights in the transfer procedure.    

  ANALYSIS OF RESPONSES TO QUESTIONS ON THE POSSIBLE FUTURE LEGAL FRAMEWORK 

  Question 18: In which situations should a transfer of proceedings be possible? 

Respondents  could  provide  multiple  answers  on  Question  18.  Similar  to  Question  6  on 
the  possible  grounds  for  a  transfer,  respondents  favoured  situations  where  there  is  a 
strong factual link to the potential receiving Member State. This is shown by 80.96% of 
respondents naming the offence being committed wholly or partly in the territory of the 
other  Member  State  as  a  situation  for  a  transfer.  Additionally,  71.43%  of  respondents 
named  substantial  parts  of  the  most  important  evidence  being  located  in  the  other 
Member  State  and  61.9%  the  suspect/  accused  person  being  a  national/resident  of  the 
other Member State as potential situations for a transfer.  

Preventing conflicts with the ne bis in idem principle was also seen as a valid ground for 
transferring the proceeding, as 15 respondents  (71.43%) named ongoing  proceedings in 
respect  to  the  same  facts  involving  other  persons,  in  particular  of  the  same  criminal 
organisation, in the other Member State as a potential ground for a transfer.  

A wide ground for transfer as in preventing impunity, in case none of the other grounds 
apply, was supported by 13 respondents (61,9%). A minority of the respondents agreed 
that the victim’s nationality/country of residence/other valid interest should be a deciding 

42 

 
 
 
the 
factor  (42,68%).  Only  8  respondents  (38,1%) 
suspect/accused person was serving or was to serve a sentence involving deprivation of 
liberty in the other Member State, while mere 7 respondents (33,3%) were of the opinion 
that social rehabilitation prospects of the accused person should be taken into account.   

important 

thought 

that 

it 

Additionally,  one  respondent  considered  that  the  more  advanced  stage  of  the  criminal 
procedure,  the  less  rational  will  be  the  transfer  to  another  jurisdiction.  Another 
respondent  cautioned  that  circumstances  of  the  individual  case  need  to  be  taken  into 
account. 

Table 17: Number and percentage of replies to question 18 

Answers 

17 

Ratio in % 

80.95 

Option  

The offence has been committed wholly or 
partly in the territory of the other Member 
State, or most of the effects or a substantial 
part of the damage caused by the offence 
was sustained in the territory of the other 
Member State 

The suspect/accused person is a national 
/resident of the other Member State 

Substantial parts of the most important 
evidence are located in the other Member 
State 

There are ongoing proceedings against the 
suspect/accused person in the other Member 
State 

There are ongoing proceedings in respect of 
the same or related facts involving other 
persons, in particular in respect of the same 
criminal organisation, in the other Member 
State 

The suspect/accused person is serving or is 
to serve a sentence involving deprivation of 
liberty in the other Member State 

Enforcement of the sentence in the other 
Member State is likely to improve the 
prospects for social rehabilitation of the 
person sentenced or there are other reasons 
for a more appropriate enforcement of the 
sentence in the other Member State 

13 

15 

10 

15 

8 

7 

The victim is a national/resident of the other 
Member State or the victim has another 

9 

43 

61.9 

71.43 

47.62 

71.43 

38.1 

33.33 

42.86 

 
 
significant interest in having the 
proceedings transferred 

To prevent impunity (when none of the 
above criteria apply) 

No Answer 

13 

1 

61,9 

4.76 

  Question 19: Which Member State is best placed to take over the proceedings when 
suspects/accused  persons  and  victims  from  different  Member  States  are  involved 
(e.g. a criminal organisation with numerous suspects and victims)? 

Multiple answers were possible in reply to this question. A clear majority of respondents 
(76,19%) opted that the Member State where substantial evidence was located was best 
placed to take over the proceedings. An equal number of respondents (47,62%) identified 
the  Member  State  of  nationality/residence  of  the  majority  of  victims  and  the  Member 
State  of  nationality/residence  of  the  majority  of  suspects/accused  persons  as  most 
suitable. Nine respondents (42,86%) replied that the Member State with a specific interest 
in prosecuting (e.g. offence affecting national security) should take over the proceedings.  

The majority of respondents (61,9%) opted against a non-binding hierarchy of criteria for 
such  cases.  Only  6  respondents  (28,57%)  favoured  a  non-binding  hierarchy  of  criteria. 
One respondent has specified, that the interests of victims should come first, followed by 
the  interests  of  Member  States  and  location  of  substantial  evidence,  while  another 
respondent  noted  that  the  hierarchy  of  criteria  should  not  negatively  affect  the  victim’s 
right to achieve justice in a safe manner. One respondent argued that establishing a rigid 
hierarchy of factors is not feasible since it would not allow competent authorities to take 
into account circumstances of a specific case when taking a decision. 

Table 18: Number and percentage of replies to question 19 

Option  

Answers 

The Member State with a specific interest in 
prosecuting (e.g. offence affecting national 
security) 

9 

The Member State of nationality/residence 
of the majority of victims 

The Member State of nationality/residence 
of the majority of suspects/accused persons  

The Member State where the substantial 
evidence is located 

No Answer 

10 

10 

16 

0 

Ratio in % 

42.86 

47.62 

47.62 

76.19 

0 

44 

 
 
 
2.1. 

Should there be a (non-binding) hierarchy of criteria for such cases? 

Table 19: Number and percentage of replies to sub question 1 to question 19 

Option  

Yes 

No 

I don’t know/I have no opinion 

No Answer 

Count 

6 

13 

1 

1 

% 

28.57 

61.9 

4.76 

4.76 

  Question  20:  Should  a  transfer  of  criminal  proceedings  establish  a  jurisdiction  in 
the Member State to which the proceedings are being transferred, if that Member 
State would otherwise not have jurisdiction (= subsidiary jurisdiction)? 

A majority of respondents (52,38% in total) favoured the establishment of a jurisdiction, 
either in all or in specific cases, in the Member State to which the proceedings are being 
transferred,  if  the  Member  State  would  otherwise  have  no  jurisdiction.  In  comparison, 
only 6 respondents (28,57%) opposed the establishment of a jurisdiction in such cases.  

Table 20: Number and percentage of replies question 20 

Option  

Yes, in all cases 

Yes, only in specific cases 

No 

I have no opinion 

No Answer 

Count 

4 

7 

6 

3 

1 

% 

19.05 

33.33 

28.57 

14.29 

4.76 

Please  elaborate  on  the  advantages/disadvantages  of  subsidiary  jurisdiction  and  describe 
possible situations when subsidiary jurisdiction could apply. 

In response to this sub-question, some respondents argued, that there is no need to establish 
subsidiary jurisdiction, and noted that such jurisdiction would not fit with the criminal justice 
system  of  the  requested  State.  On  the  other  hand,  other  respondents  suggested  for  instance 
that  subsidiary  jurisdiction  would  provide  for  greater  flexibility  in  the  conduct  of  criminal 
proceedings;  that  it  would  be  useful  in  cases  where  a  Member  State  refuses  surrender  of  a 
person  takes  over  criminal  proceedings;  that  rules  on  subsidiary  jurisdiction  are  already 
provided  for  under  the  1972  European  Convention  on  the  transfer  of  criminal  proceedings 
and should therefore be upheld in a possible new legal framework. One respondent noted that 
victims’  access  to  justice  should  be  ensured  and  measures  could  be  established  mitigating 
any loss of rights resulting from the transfer in such context. 

45 

 
 
 
 
 
  Question  21:  In  which  situations  should  the  authority  requested  to  take  over  the 

proceedings be able to refuse the transfer? 

Multiple  answers  were  possible  in  reply  to  this  question.  All  of  the  grounds  for  refusal 
were supported by the respondents, with the majority of the answers (80,95%) pointing to 
the lack of double criminality as an important reason to refuse the transfer.  

Table 21: Number and percentage of replies to question 21 

Option  

Answers 

Lack of double criminality (if the act does 
not constitute an offence under the law of 
that Member State) 

If taking proceedings would be contrary to 
the ne bis in idem principle (right not to be 
tried or punished twice in criminal 
proceedings for the same criminal offence)  

If the suspect cannot be held criminally 
liable for the offence due to his or her age 

If there is an immunity or privilege under 
the law of that Member State which makes 
it impossible to take action 

Where the criminal prosecution is statute 
barred in accordance with the law of that 
Member State 

If the offence is covered by amnesty in 
accordance with the law of that Member 
State 

A ground for a transfer does not exist 

Fundamental rights in accordance with 
Article 6 of the Treaty on the European 
Union and the Charter of Fundamental 
Rights of the European Union 

No Answer 

17 

15 

14 

16 

15 

11 

10 

10 

2 

Ratio in % 

80.95 

71.43 

66.67 

76.19 

71.43 

52.38 

47.62 

47.62 

9.52 

  Question 22: Do you agree that the following persons should be consulted, if feasible 

or appropriate, when a transfer of proceedings is envisaged? 

38,1%  of  respondents  agreed  that  both  the  victim  and  the  suspect(s)/accused  person(s) 
should be consulted in cases of envisaged transfer of proceedings. 33,33% of respondents 
replied  that  only  the  victim(s)  of  a  crime  should  be  consulted,  while  19,05%  of 
respondents  thought  that  solely  the  suspect(s)/accused  person(s)  should  be  consulted. 
28.57%  of  respondents  did  not  agree  that  such  consultation  should  take  place.  Among 

46 

 
 
 
those that replied in a negative, few respondents have specified that informing a suspect 
in early stage of criminal proceedings could undermine the purpose of such proceedings 
and  suggested  that  information  should  only  be  provided  when  the  requested  State  has 
decided to take over the criminal proceedings. 

Table 22: Number and percentage of replies question 22 

Option  

Count 

The suspect(s) or accused person(s)  

The victim(s)  

Both 

None of the above 

I have no opinion 

No Answer 

4 

7 

8 

6 

1 

2 

% 

19.05 

33.33 

38.1 

28.57 

4.76 

9.52 

  Question  23:  Besides  consulting  them,  are  there  other  ways  the  rights  of 
suspects/accused persons and those of victims should be strengthened in the transfer 
of proceedings? 

Among the other ways to strengthen different rights, respondents  indicated the right for 
the  defendant  to  request  a  transfer,  the  right  to  be  heard,  to  have  a  possibility  to  raise 
objections and appeal against a decision on the transfer; additionally a right to free legal 
aid was mentioned, as well as different victims’ support measures. 

Table 23: Number and percentage of replies to Question 23 

Option  

Yes 

No  

I have no opinion 

No Answer 

Count 

7 

7 

6 

1 

% 

33.33 

33.33 

28.57 

4.76 

  Question 24: Should a new instrument provide for cooperation between lawyers in 
both  Member  States  (the  transferring  Member  State  and  the  receiving  Member 
State) to assist the suspect/accused person? 

A majority of respondents (52,38%) favoured new rules on cooperation between lawyers 
in both Member States to assist the suspect/accused person. Almost a third of respondents 
opposed.  Additionally,  one  respondent  mentioned  the  importance  of  legal  support  and 
representation  for  victims  of  crime,  and  another  respondent  considered  that  appropriate 
lawyers’ remuneration is provided in case of mandatory defence. 

47 

 
 
 
 
Table 24: Number and percentage of replies to Question 24 

Option  

Yes 

No  

I have no opinion 

No Answer 

Count 

11 

6 

2 

2 

% 

52.38 

28.57 

9.52 

9.52 

  Question  25:  Should  the  future  instrument  provide  for  strict  time  limits  for 
consultations and for taking a decision whether to accept a transfer of proceeding? 

A majority of respondents (57,14%) favoured a strict time limits for consultations/taking 
a  decision  whether  to  accept  a  transfer  of  proceedings.  Close  to  a  third  of  respondents 
opposed.  Among  the  time  limits  suggested,  deadlines  varied  between  4  weeks  and  90 
days for taking a decision on the transfer. 

Table 25: Number and percentage of replies to Question 25 

Option  

Yes 

No 

I have no opinion 

No Answer 

Count 

12 

6 

2 

1 

% 

57.14 

28.57 

9.52 

4.76 

  Question 26: As a minimum, what should be the consequences of a transfer?  

Almost three quarters of respondents (71,43%) agreed that there should be an obligation 
to  investigate  for  the  receiving  Member  State.  In  comparison,  only  one  respondent 
(4,76%) went so far as to opt for an obligation to prosecute.  

Table 26: Number and percentage of replies to Question 26 

Option  

An obligation to investigate 

An obligation to prosecute  

I have no opinion 

No Answer 

Count 

15 

1 

2 

3 

% 

71.43 

4.76 

9.52 

14.29 

48 

 
 
 
 
 
  Question  27:  To  what  extent  should  procedural  acts  executed  in  the  transferring 
Member State, including the collection of evidence, be legally valid in the receiving 
Member State? 

The  majority  of  respondents  (66,67%)  favoured  limitations  to  the  legal  validity  of 
procedural  acts  in  the  receiving  Member  State.  In  comparison,  roughly  a  fifth  of 
respondents (23,81%) favoured an unlimited legal validity. Additionally, two respondents 
specified,  that  should  the  rule  of  equivalence  apply,  it  could  lead  to  conflicting 
assessments,  in  cases  where  certain  investigative  measures  were  not  possible  in  own 
proceedings, but evidence from such measures would be used in transferred proceedings. 
Another respondent considered it important to ensure that practical measures are in place 
to reduce the number of times the victim has to re-live the trauma and limit the number of 
superfluous interactions with competent authorities, which enhance the risk of secondary 
victimisation. 

Table 27: Number and percentage of replies to Question 27 

Option  

Count 

With no limitations (rule of equivalence) 

With limitations (e.g. only as far as it is 
compatible with the law of the receiving 
State) 

I have no opinion 

No Answer 

5 

14 

1 

1 

% 

23.81 

66.67 

4.76 

4.76 

  Question  28:  Once  a  transfer  takes  place,  the  law  of  the  receiving  Member  State 

should apply: 

A majority of respondents (61,9%) favoured that, once a transfer takes place, the law of 
the receiving Member State should apply without any restrictions. Roughly a quarter of 
respondents (23,81%) opted for exceptions to the applicability of the law of the receiving 
Member State.  

Table 28: Number and percentage of replies to Question 28 

Option  

Without any exceptions 

With exceptions, meaning that the law of 
the transferring Member State could still 
apply to certain aspects 

I have no opinion 

No Answer 

Count 

13 

5 

2 

1 

% 

61.9 

23.81 

9.52 

4.76 

49 

 
 
 
  Question  29:  Which  law  should  apply  to  sentencing  following  a  transfer  of 

proceedings? 

A  majority  of  respondents  (57,14%)  gave  the  opinion  that  the  law  of  the  receiving 
Member State should apply to sentencing following a transfer of proceedings. An equal 
number of respondents (14,29%) favoured either a limitation to the maximum sentence of 
the  two  Member  States  involved  or  the  taking  into  account  the  advice  or  sentencing 
practise of the transferring Member State.  

Table 29: Number and percentage of replies to Question 29 

Option  

To protect the suspect/accused person: the 
maximum sentence to be imposed should be 
the one which is the lowest of the two 
Member States involved (lex mitior)  

The law of the receiving Member State 

The law of the receiving Member State, but 
taking into account the advice or sentencing 
practice of the transferring Member State 

No Answer 

Count 

3 

12 

3 

4 

% 

14.29 

57.14 

14.29 

19.05 

  Question 30: Competence reverting back to the transferring Member State: Should 
the  transferring  Member  State  have  a  possibility  to  (re-)open  proceedings  if  the 
receiving Member State informs it of its decision to discontinue the proceedings? 

Two  thirds  of  respondents  favoured  the  possibility  of  the  transferring  Member  State  to 
reopen proceedings (66,67% in total – 23,81% subject to exceptions). Roughly a fifth of 
respondents (19,05%) objected. A few respondents have further specified that re-opening 
of  proceedings  should  be  possible  where  the  ne  bis  in  idem  principle  does  not  prevent 
further prosecution. 

Table 30: Number and percentage of replies to Question 30 

Option  

Yes 

Yes, subject to exceptions  

No 

I have no opinion 

No Answer 

Count 

9 

5 

4 

1 

2 

50 

% 

42.86 

23.81 

19.05 

4.76 

9.52 

 
 
 
 
  Question  31:  Should  the  future  EU  instrument  provide  a  role  for  Eurojust  and/or 

the European Judicial Network (EJN)? 

Two thirds of respondents (66,67%) agreed that the future EU instrument should provide 
a role for Eurojust and/or the European Judicial Network (EJN). 28,57% of respondents 
objected.  In  particular,  Eurojust’s  assistance  in  holding  coordination  meetings  and  in 
other forms of cooperation (such as Joint Investigation Teams) was mentioned, as well as 
EJN’s  support in  identifying  competent  authorities and speeding up the transmission of 
information between them. 

Table 31: Number and percentage of replies to Question 31 

Option  

Yes 

No 

I have no opinion 

No Answer 

III. Targeted consultations 

Count 

14 

6 

1 

0 

% 

66.67 

28.57 

4.76 

0 

The  targeted  consultations  gathered  views  on  the  current  situation  concerning  transfers  of 
criminal  proceedings  as  well  as  on  the  possible  future  instrument,  including  on  the  rights  of 
suspects,  accused  persons  and  victims,  affected  by  the  transfer  procedure  and  on  the  role  of 
Eurojust and EJN. Replies from 26 Member States, Eurojust, EJN, the EPPO, Europol and FRA 
were received.  

Issues currently affecting transfers of proceedings 

As the main issues currently affecting transfers of proceedings, most stakeholders noted the 
costs arising from transfers, lack of communication, long duration of the procedure, as well as a 
number of other issues, including complexity, lack of legal certainty and transparency. A total of 
15  Member  States  considered  that  the  current  situation  is  not  satisfactory,  while  10  Member 
States found the situation satisfactory or at least partially satisfactory. 

Possible future legal framework  

On  the  question  whether  there  is  a  need  for  a  new  EU  legal  framework,  18  Member  States 
replied  positively  and  only  3  Member  States  considered  that  it  is  not  necessary.  One  of  those 
Member States however noted that while a new EU legal  framework is  not  necessary, it could 
potentially  simplify  and  improve  the  procedure  of  transfer  of  criminal  proceedings.  Another 
Member  State  pointed  out  that  all  Member  States  should  join  the  1972  Transfer  Convention. 
There were some other Member States, which either did not take a specific view on this question, 
or noted that the current situation is for them satisfactory but that they were open to discuss the 

51 

 
 
 
 
possibility  of  a  new  legal  framework  and  listed  several  advantages  thereof.  Both  Eurojust  and 
EJN acknowledge the need for a dedicated EU legal framework. As concerns the main benefits 
of a future framework, a majority of replies pointed to the increase in legal certainty (20 MS) 
and in effectiveness (19 MS), as well as the improvement of efficiency (15 MS) and promotion 
of the interests of justice (15 MS). Replies also indicated other benefits, such as improvement of 
the quality of requests, as well as avoidance of impunity. 

In  reply  to  the  question,  in  which  situations  should  a  transfer  of  proceedings  be  possible 
(criteria for a transfer), - a number of different criteria were considered possible and viewed as 
almost  equally  important61.  The  situation  which  received  least  support  (only  8  Member  States 
considered  it  applicable)  was  where  the  enforcement  of  the  sentence  would  improve  prospects 
for  social  rehabilitation  of  the  person  sentenced  or  where  there  are  other  reasons  for  a  more 
appropriate enforcement of the sentence. Both Eurojust and EJN expressed preference for a non-
exhaustive  list  of  criteria  while  FRA  saw  as  the  most  important  criteria  –  transfer  to  a  place 
where  the  crime  was  committed  and  where  the  most  victims  and  witnesses  reside  and  most 
evidence is located. 

In reply to the question, whether there should be a general obligation to accept a transfer, 8 
Member  States  considered  that  there  should  not  be  such  an  obligation,  11  Member  States 
considered that there should be an obligation with restrictions, and two Member States suggested 
that  there  should  be  an  obligation  without  restrictions.  One  Member  State  noted  that  it  would 
appear  difficult  to  impose  a  general  obligation  to  take  over  the  proceedings.  Member  States 
which replied ‘yes, with restrictions’ noted a number of different criteria that would have to be 
met  for  such  an  obligation  to  apply.  Many  of  those  criteria  seemed  to  be  given  equal 
importance62. The situations concerning a suspect who is already serving a sentence received less 
positive  replies.  EJN  was  of  the  view  that  there  should  be  no  obligation  to  take  over  the 
proceedings with some exceptions (such as in case of refusal to surrender a person) and Eurojust 
suggested  that  a  request  for  transfer  should  have  a  mandatory  nature  where  it  is  based  on  the 
criteria for transfers. 

On  the  question,  if  an  obligation  to  accept  a  transfer,  even  if  only  in  limited  cases,  would 
create an issue for the legal system of a particular Member State, 7 Member States indicated 
different  reasons  why  such  an  obligation  would  be  problematic,  in  particular  because  of  the 
principle of opportunity, and issues related to the lack of jurisdiction, as well as the difference in 
the level  of proof  required to  start the proceedings in different  national  systems,  or because in 
some  cases  the  transfer  may  be  ineffective.  6  Member  States  indicated  that  such  an  obligation 

61  

62  

In particular, the first five situations listed in the questionnaire - when either the offence was committed in 
the territory of another Member State, or when the suspect is a national/resident of the other Member State, 
or when the substantial parts of the most important evidence are located in another Member State, or where 
there  are  ongoing  proceedings  in  another  Member  States  (either  parallel  ones  or  others  in  respect  of  the 
same suspect). 
In particular, the first five situations listed in the questionnaire - when either the offence was committed in 
the territory of another Member State, or when the suspect is ordinarily resident in the other Member State, 
or when the substantial parts of the most important evidence are located in another Member State, or where 
there are ongoing proceedings in another Member State (either parallel ones or others in respect of the same 
suspect). 

52 

 
 
                                                           
does not create an issue. Three MS noted that it would depend on the possible future scope, the 
criteria for the transfer and the grounds for refusal.  

As  to  the  question  which  grounds  for  refusal  should  be  possible,  Member  States  attached 
similar  importance  to  all  of  the  grounds  listed  in  the  questionnaire  (ranking  from  the  lack  of 
double  criminality,  which  24  Member  States  consider  important,  to  the  lack  of  the  interests  of 
justice, which 13 Member States consider relevant). Additional grounds were suggested by some 
Member  States,  specifically  a  situation  when  the  transfer  would  deprive  the  victim  of  the 
possibility to claim her/his rights; also a situation when a Member State has no jurisdiction. EJN 
was of the view that it should be possible to refuse a transfer if, according to the national law, the 
investigation and prosecution for certain reasons would become ultimately impossible. Eurojust 
also noted that the proposal should include a possibility to refuse a transfer where it would not be 
in the interests of justice, however, that it should not cover considerations linked to the requested 
State’s criminal policy priorities or costs. 

On  the  question,  should  a  transfer  establish  a  subsidiary  jurisdiction,  14  Member  States 
replied positively (either for all or specific cases), 8 Member States replied negatively, 1 Member 
State considered that it depends on the scope of the instrument. As to the cases when subsidiary 
jurisdiction could apply, there was no common answer63. While some Member States considered 
that subsidiary jurisdiction would beneficial to avoid a risk transfer of proceedings could not take 
place  due  to  a  lack  of  jurisdiction  even  if  transfer  is  justified,  some  others  considered  that 
grounds for jurisdiction are already broad or that subsidiary jurisdiction could cause legal issues 
because  it  would  be  established  without  a  specific  link  to  the  receiving  Member  State.  A  few 
Member  States  indicated  that  their  law  already  provides  for  the  creation  of  subsidiary 
jurisdiction,  either  in  cases  of  transfer  of  proceedings,  or  that  in  some  cases  their  authorities 
would have jurisdiction over a crime committed by a person whose extradition or surrender was 
refused.  EJN  supported  the  need  for  rules  on  subsidiary  jurisdiction,  while  Eurojust  did  not 
express an opinion on the matter. 

On the question, whether the suspect/accused person or a victim should be consulted on the 
possible transfer, 14 Member States  considered that both  suspects/accused persons and victims 
should be consulted, one Member State considered that only suspects/accused persons should be 
consulted, one other Member State suggested that only victims should be consulted. 9 Member 
States considered that none of these persons should be consulted. Some Member States pointed 
out that consultation should not bind the final decision of the authorities whether to initiate the 
transfer.  It  was  also  suggested that consultation  could  be encouraged but not  made mandatory. 
Some  replies  indicated  a  need  to  inform  the  suspects/accused  persons  and  victims  after  the 
transfer in cases where there was no consultation. Both Eurojust and EJN considered that in most 
cases  consultation  with  suspects/accused  persons  or  victims  is  neither  feasible  nor  appropriate 
because transfer often take place at an early stage of investigation, where the proceedings are still 
confidential.  Instead,  they  suggested  that  authorities  should  consideration  to  the  interests  of 

63  

Among the examples mentioned: cases when the surrender of a persons under the European Arrest Warrant 
was  refused;  when  suspect  or  victim  is  resident  in  receiving  Member  State;  or  when  any  of  the  criteria 
listed in Article 8 of the 1972 Transfer Convention are applicable.  

53 

 
 
                                                           
suspects/accused  persons  and  victims.  According  to  FRA,  victims  of  crime  should  always  be 
consulted, while suspects/accused persons should be able to present their statement.   

On  the  related  question,  if  there  are  other  ways  to  strengthen  the  rights  of  suspect  and 
victims in the transfer of proceedings, some Member States noted that the transfer should not 
deprive the victims of the possibility to claim their rights, a couple of Member States noted that 
secondary  victimisation  should  be  avoided  (e.g.  by  hearing  the  victim  in  the  transferring  State 
before the transfer), and the possibility of remote hearing (or absence of it) should be taken into 
account. EJN proposed the inclusion of a possibility for the victim to bring charges forward if the 
prosecutor decides not  to.  Eurojust considered that suspects  and victims should have a right  to 
request the competent authorities to consider transfer of proceedings without a binding effect on 
authorities. FRA noted that for victims most important is that proceedings are not transferred to a 
distant country where they could not be able to participate in proceedings; victims should also be 
entitled to support, legal advice and representation and support in communication. As concerns 
the suspect/accused person, FRA noted the importance of the right to a fair trial, need to ensure 
that a transfer does not prevent the suspect/accused person from enjoying their family and private 
life and where deprivation of liberty is involved, that it does not lead to situations where a person 
is  detained  under  conditions  that  could  lead  to  inhuman  or  degrading  treatment  within  the 
meaning of Article 4 of the Charter. 

On the question,  if  a new instrument should facilitate  cooperation between lawyers in two 
Member States, 9 Member States and EJN considered that it should, while  14 Member States 
and Eurojust noted that it should not.  

A  majority  of  Member  States  (17)  were  supportive  of  indicative  time  limits  for  consultations 
and for taking a decision on the request for transfer, while 7 Member States would accept strict 
time limits.  Among the Member States  which supported strict time limits, the deadlines varied 
between 30 to  90 days  with  a possibility to  extend. Member States which supported indicative 
time limits suggested timelines between 30 days and 1 year. Both Eurojust and EJN agreed that 
at the consultation stage time limits could be indicative, while at the stage of taking a decision on 
the request they could be mandatory.  

Majority of Member States (16) supported that the future instrument should regulate provisional 
measures,  while  7  Member  States  opposed.  5  Member  States  considered  that  non-judicial 
authorities  (such  as  Ministries  of  Justice)  should  be  able  to  agree  on  a  transfer  of  criminal 
proceedings,  while  a  majority  of  Member  States  (20)  considered  that  only  judicial  authorities 
should be able to take such decisions. All Member States considered that a transferring authority 
should have a possibility to withdraw a request before the receiving authority has made a final 
decision on the transfer.  

As to  what minimum information should be provided by the transferring authority when 
starting  consultations,  a  majority  of  Member  States  considered  that  it  is  equally  important  to 
provide  information  in  a  standard  form  (certificate),  as  well  as  include  relevant  provisions  of 
national  legislation  and  state  of  play  concerning  procedural  acts  or  measures  taken.  6  Member 
States noted that a complete criminal file should be provided.  2 Member States considered that 

54 

 
 
there  should  be  a  right  for  the  requested  State  to  request  a  full  file,  if  it is  necessary  to  take  a 
decision. 1 Member State specified that a report with an excerpt from the file with the essential 
evidence  might  be  optimal.  Eurojust  and  EJN  also  listed  specific  elements  which  should  be 
included in a standard form.  

A majority of Member States and EJN noted that translation of the certificate, as well as of the 
relevant parts of the criminal file and of other documents, if requested by the receiving authority 
would  be  needed.  Additionally,  one  Member  State  mentioned  translation  of  the  relevant 
provisions  of  national  legislation,  and  another  one,  translation  of  the  complete  file.  Eurojust 
suggested  that  a  translation  of  certificate  should  be  sufficient  at  the  stage  of  preliminary 
consultation.  

In reply to the question, at what time should the transferring authority suspend or terminate 
its  own  proceedings,  a  large  majority  (19)  of  Member  States  and  EJN  considered  that  this 
should be done upon receiving a notification that the receiving authority has accepted the transfer 
(similarly, Eurojust was  of the view that it should be done following acceptance and when the 
receiving State receives the case file). Three Member States believed this should be done when a 
formal agreement on transfer of proceedings is reached, three Member States considered that this 
should be done when the decision is taken to transfer the file or before the request for transfer is 
sent out and one other Member State noted that it should be up to the national legislation.  

As to the consequences of a transfer, 14 Member States considered that a transfer should create 
an obligation to  consider investigation or prosecution,  8 Member  States and EJN  believed that 
the  transfer  should  imply  an  obligation  to  investigate,  one  Member  State  noted  that  it  should 
create  an  obligation  to  prosecute.  Another  Member  State  and  Eurojust  specified  that  it  would 
depend  on  the  stage  of  the  proceedings  in  their  view  -  if  an  indictment  was  already  issued,  an 
obligation  to  prosecute  would  be  preferred,  otherwise,  an  obligation  to  investigate  and  a 
consideration  to  prosecute  would  be  sufficient.  Additionally,  one  Member  State  noted  that  in 
case it is evident that no charges will be brought in the receiving State, the transfer should not be 
accepted.  One  reply  indicated  that  an  obligation  to  inform  the  transferring  authority  about  the 
decision taken, and, periodically, about the advances in the investigation, needs to be established. 

On  the  question  to  what  extent  should  procedural  acts,  including  collected  evidence, 
performed  in  the  transferring  Member  State  be  legally  valid  in  the  receiving  Member 
State, 7 Member States considered that there should be no limitations (rule of equivalence would 
apply). 14 Member States believed that there should be limitations, e.g. a requirement that such 
evidence  could  also  have  been  collected  under  the  law  of  the  receiving  State,  or  that  it  is  not 
contrary to the fundamental principles of the law of the receiving State (the latter condition also 
supported by EJN and Eurojust), or an exception where the evidence was gathered in the State of 
the  transferring  authority  irregularly.  One  Member  State  considered  it  should  be  a  matter  of 
national law of the receiving State, another Member State underlined that it is always up to the 
court  of  the  receiving  State  to  consider  the  probative  value  of  the  evidence  on  the  basis  of  its 
national legislation. 

55 

 
 
In  reply  to  a  question,  should  the  receiving  authority  have  a  possibility  to  revert  a 
proceeding  back  to  a  transferring  Member  State,  20  Member  States  and  Eurojust  replied 
positively,  two  Member  States  and  EJN  negatively.  Member  States  gave  different  examples  in 
which  cases  this  possibility  should  apply,  such  as  if  circumstances  change  during  the 
investigation  in  the  receiving  State  and  new  facts  show  that  the  transferring  MS  has  better 
conditions  to  investigate  and  prosecute  the  case,  e.g.  when  the  suspect/accused  person  moves 
back to the transferring State or when new victims, witnesses or evidence appears. Two Member 
States underlined the possibility to revert a proceeding back should limited, while one Member 
State referred more broadly to cases when it is in the interest of proper administration of justice. 
One reply noted that such an action by the receiving authority should be well motivated.  

All  Member  States,  which  replied  to  the  question,  except  one,  as  well  as  EJN  and  Eurojust 
considered  that  the  transferring  Member  State  should  have  a  possibility  to  re-open 
proceedings,  if  the  receiving  Member  State  informs  of  its  decision  to  discontinue  the 
proceedings. Certain exceptions were however mentioned, most prominently, the need to respect 
the ne bis in idem principle.  One reply suggested an obligation for the transferring authority to 
transmit  new  evidence,  which  is  found  in  the  transferring  State  and  useful  for  the  purpose  of 
proceedings in the receiving State.  

After the transfer takes  place,  a majority of Member  States  (17), EJN  and Eurojust  considered 
that  the  law  of  the  receiving  State  should  apply  without  any  exceptions.  4  Member  States 
considered that exceptions should be possible.  

Similarly,  a  majority  of  Member  States  (19),  EJN  and  Eurojust  believed  that  law  of  the 
receiving  State  should  apply  to  the  sentencing  that  follows  the  transfer.  One  Member  State 
specified that this rule should apply only in situations when the receiving State has jurisdiction. 
Three other Member States however are of the view that the maximum sentence to be imposed 
should  be  the  one  which  is  the  lowest  of  the  two  Member  States  involved,  and  another  State 
thinks  this  should  be  the  case  when  the  offence  was  committed  in  the  transferring  State. 
Similarly, another reply indicated that in accordance with the national law of that Member State, 
when the offence was committed abroad the maximum penalty prescribed in the law of the place 
of commission of the crime could not be exceeded. Two other Member States considered that the 
advice or sentencing practice of the transferring Member State should be taken into account.  

Majority of Member States (21 and 18 respectively) saw the need to provide a role for Eurojust 
and EJN in the transfer procedure. Eurojust itself pointed to its key role in identifying parallel 
proceedings,  in  facilitating  preliminary  contacts  and  consultations  between  the  authorities 
involved,  resolving  jurisdiction  issues,  deciding  on  the  best  place  to  prosecute.  Eurojust 
suggested that Member States could involve it to facilitate preliminary consultations, in line with 
its mandate under the Eurojust  Regulation.  Additionally, the involvement of Eurojust could  be 
suggested  also  in  cases  of  delays  in  receiving  the  decision  from  the  requested  authority. 
According  to  the  EJN  itself,  it  should  have  the  role  of  facilitating  the  practical  application  of 
transfer of proceedings as it does in the context of all other instruments on judicial cooperation in 
criminal  matters.  This  should  include  –  amongst  other  things  –  consultations  in  view  of 

56 

 
 
requesting the transfer; where to send the request; assisting in handling the request; supporting in 
cases of delays. 

On the question of costs, most Member States (13) shared the view that each State should bear 
its own costs. Five Member States believed that the transferring Member States should bear the 
total costs of the transfer and one Member State noted that costs should be shared evenly. Two 
Member States were of the view that costs should be shared evenly and no Member State agreed 
that  the  receiving  Member  State  should  bear  the  total  cost  of  the  transfer.  The  question  of 
exceptional  costs  was  also  raised  with  the  suggestion  to  foresee  a  consultation  and  possible 
sharing of such costs.   

IV. Meetings  

  Expert meeting organised by the Commission on 15 February 2022.  

The aim of the meeting was to discuss the findings of the targeted questionnaire on the transfer 
of criminal proceedings, and questions related to the possible future legal framework.  A report 
with the minutes of the meeting was published64.  

  Criminal  Law  Expert  Group  on  11  February  2022  organised  by  the  Commission, 

which focused on transfers of criminal proceedings. 

On  11  February  2022,  the  Commission  organised  a  meeting  with  the  Expert  Group  on  EU 
Criminal  Policy.  Members  of  this  Expert  Group  are  academics  and  practitioners  with 
considerable  expertise  in  national  and  European  criminal  law.  The  participants  discussed  the 
feasibility and possible design of a possible new instrument. Overall, the experts welcomed the 
initiative at hand since they overwhelmingly acknowledged the need to adopt a new legislative 
instrument on the transfer of criminal proceedings at the EU level.  

They mentioned several issues that currently affect the transfer of criminal proceedings under the 
existing  legal  instruments,  including  the  lack  of  communication  between  Member  States’ 
authorities,  high  costs  for  translations,  legal  uncertainty  following  the  transfer  of  proceedings, 
and inadmissibility of evidence. 

The question of whether the transfer of proceedings should be regulated by a mutual recognition 
instrument (as such mandatory for the requesting State) was discussed at length. The majority of 
the experts  favoured an instrument  that would not  build on the principle of mutual  recognition 
but would rather enhance consultation and agreement among national authorities.  

Most  experts  raised  concerns  about  the  introduction  of  an  obligation  for  the  Member  States  to 
take  over  criminal  proceedings.  If  such  an  obligation  were  to  be  provided  for  by  the  new 

64  

https://ec.europa.eu/transparency/expert-groups-
register/screen/meetings/consult?lang=en&meetingId=41334&fromExpertGroups=false  

57 

 
 
 
 
 
 
 
 
                                                           
instrument, it should be accompanied by sufficiently flexible grounds for refusal. No consensus 
emerged on whether, once transferred to the requested Member State, criminal proceedings can 
be transferred back to the requesting Member State.  

Some experts warned that the topic should be examined in a broader context. In particular, they 
claimed it could not be properly addressed without prior regulation of the ne bis in idem principle 
and without a solution for conflicts of jurisdiction in the Union.   

The majority of the experts agreed on the need to protect the interests of all individuals involved 
in  criminal  proceedings,  notably  suspects,  accused  persons  and  victims.  The  participants  noted 
that  rules  on  the  suspect’s  or  accused  person’s  participation  in  the  process  of  agreeing  on  the 
transfer  of  criminal  proceedings,  judicial  review  and  mandatory  legal  assistance  should  be 
included in the forthcoming legal instrument. 

58 

 
 
 
 
 
 
 
Annex 3: List of international instruments for transfer of proceedings in criminal matters  

This  annex  presents  a  list  of  main  international  instruments  regulating  transfer  of  criminal 
proceedings: 

1. Multilateral agreements: 

a.  European Convention  on  the  Transfer  of  Proceedings  in  Criminal  Matters. This 
instrument  provides  a  comprehensive  international  legal  framework  on  the  transfer  of 
proceedings.  The  Convention  is  detailed  and  its  underlying  concept  is  simple:  when  a 
person is suspected of having committed an offence under the law of a Contracting State, 
that State may request another Contracting State to take proceedings. 13 Member States 
are Parties to this Convention.  

b.  European  Convention  on  Mutual  Assistance  in  Criminal  Matters.  Article  21  of  the 
Convention sets out a procedure for one Contracting Party to lay information with a view 
to  proceedings  in  the  courts  of  another  Party.  All  Member  States  are  Parties  to  this 
Convention.  Moreover,  Second  Additional  Protocol  to  this  Convention  provides  for 
spontaneous  exchange  of  information  (Art.  11).  26  Member  States  are  Parties  to  this 
Protocol.  

c.  United Nations Convention against Transnational Organized Crime.  In accordance with 
Article  21,  States  parties  must  consider  the  possibility  of  transferring  to  one  another 
proceedings for the prosecution of an offence covered by the Convention in cases where 
such transfer is considered to be in the interests of the proper administration of justice, in 
particular in cases where several jurisdictions are involved, with a view to concentrating 
the  prosecution.  The  provision  is  not  mandatory,  meaning  that  State  parties  are  not 
obliged  to  implement  it  but  they  are  obliged  to  consider  the  possibility.  All  Member 
States are Parties to this Convention. 

d.  United  Nations  Convention  against  Corruption.  In  accordance  with  Article  47,  States 
Parties  must  consider  the  possibility  of  transferring  to  one  another  proceedings  for  the 
prosecution of an offence established in accordance with this Convention in cases where 
such transfer is considered to be in the interests of the proper administration of justice, in 
particular in cases where several jurisdictions are involved, with a view to concentrating 
the prosecution. All Member States are Parties to this Convention.  

e.  United  Nations  Convention  against  Illicit  Traffic  in  Narcotic  Drugs  and  Psychotropic 
Substances.  In  accordance  with  Article  8,  Parties  must  consider  the  possibility  of 
transferring to  one another proceedings for criminal  prosecution of offences established 
under that Convention, in cases where such transfer is considered to be in the interests of 
proper administration of justice. All Member States are Parties to this Convention. 

f.  European  Convention  on  extradition.  In  accordance  with  Article  6  (‘Extradition  of 
national’), if the requested Party does not extradite its national, it  must at the request of 
the requesting Party submit the case to its competent authorities in order that proceedings 
may be taken if they are considered appropriate. For this purpose, the files, information 
and  exhibits  relating  to  the  offence  must  be  transmitted  without  charge.  The  requesting 

59 

 
 
Party must be informed of the result of its request. All Member States are Parties to this 
Convention. 

2. Bilateral  agreements  between EU  Member  States:  a  few  Member  States  (AT,  RO,  IT,  HU, 
BG, FI, LT, PL, SI, SK, CZ, HR, EE,  EL, DE, SE) reported that they have concluded some 
bilateral agreements with other Member States on mutual legal assistance which govern either 
the transfer of criminal  proceedings  or spontaneous exchange of information. Some of those 
Member  States  have  mentioned  that  either  (some  of)  those  agreements  were  not  frequently 
used, or that they do not contain detailed regulation of the procedures for the transfer. A few 
Member  States  have  specified  that  they  may  use  a  bilateral  agreement  in  combination  with 
another  international  convention  on  the  matter.  In  some  cases,  often  between  neighbouring 
Member  States  more  frequent  transfers  have  been  noticed  due  to  bilateral  agreements 
providing  for  simplified  or  clearer  procedures,  more  convenient  arrangements  for  costs  and 
translation  of  documents,  and  due  to  well-established  contacts  between  such  Member  States 
which facilitate the exchange of information65. 

65  

See further Final report of the project ‘TROP - Transfer of Proceedings in criminal matters: an exploration 
of the current practice in the EU and of possible ways for improvement, based on practitioners views’. The 
project was funded by the European Union’s Justice Programme (2014-2020). 

60