With the adoption of a regulation to facilitate the transfer of criminal proceedings between Member States, the EU is taking a crucial step towards more coherent, coordinated and effective justice in cross-border matters. The regulation has been drafted to streamline investigations and reduce overlap in cases, thus optimising the allocation of matters by using jurisdiction criteria that have been adapted to the complexity of many cross-border matters.
The regulation on the transfer of criminal proceedings [1] (Regulation) intends “to improv[e] the efficient and proper administration of criminal justice” [2] and to “fight cross-border crime efficiently”, [3] while also respecting fundamental rights. The Regulation was approved by the Council of the EU on 5 November 2024 after the proposal was adopted by the EU Commission on 5 April 2023.
In a context where international businesses and financial institutions operate across multiple jurisdictions, this new legal instrument will make it possible to better anticipate and manage duplicated prosecutions or conflicts of jurisdiction. By consolidating investigations within a single jurisdiction, the Regulation limits the impacts of multiple proceedings, thus reinforcing legal certainty and providing a more effective framework for handling complex financial offences.
The criteria and conditions for implementing a request to transfer criminal proceedings pursuant to the Regulation are summarised below:
Authorities and persons who can request a transfer
- A judge, court, investigating judge or public prosecutor in the requesting State competent in the case concerned;
- Any other competent authority which is designated as such by the requesting State;
The suspect, an accused person or a victim may also propose to the competent authorities of the requesting State or of the requested State that criminal proceedings be transferred in accordance with the Regulation. [4]
Criteria required to request the transfer of criminal proceedings
First, the authority that requests transfer of the proceedings must consider that the objective of efficient and proper administration of justice, including proportionality, would be better served if the criminal proceedings concerned were carried out in another Member State. The assessment by the authority must take into account the following criteria:
- the criminal offence has been committed in whole or in part on the territory of the requested State, or most of its effects or a substantial part of the damage forming part of the constituent elements of the criminal offence occurred on the territory of the requested State;
- one or more suspects or accused persons are nationals of or residents in the requested State;
- the suspect or accused person is present in the requested State and that State refuses to surrender this person to the requesting State; [5]
- one or more suspects or accused persons for whom a European arrest warrant has been issued are present in the requested State and that State refuses to surrender those persons; [6]
- most of the evidence relevant to the investigation is located in, or the majority of the relevant witnesses are residents in, this State;
- there are ongoing criminal proceedings in the requested State in respect of the same or other facts against the suspect or accused person;
- there are ongoing criminal proceedings in the requested State in respect of the same, partially the same or related facts against other persons;
- one or more suspects or accused persons are serving or are to serve a sentence involving deprivation of liberty in the requested State;
- the enforcement of the sentence in the requested State is likely to improve the prospects of social rehabilitation of the person sentenced or there are other reasons why enforcement of the sentence in the requested State would be more appropriate;
- one or more victims are nationals of or residents in the requested State;
- the competent authorities of the Member States have reached consensus, under Framework Decision 2009/948/JAI [7] or otherwise, on the concentration of the criminal proceedings in one Member State.
The rights of the suspect or accused person
Before a request for the transfer of criminal proceedings is issued, the requesting authority must give consideration to the legitimate interests of the suspect or accused person, including aspects related to restorative justice.
The rights of the victim
Before a request for the transfer of criminal proceedings is issued, the requesting authority must give consideration to the legitimate interests of the victim, including aspects related to restorative justice.
Right to legal remedy
Suspects, accused persons and victims have the right to an effective legal remedy [8] in the requested State against a decision to accept the transfer of criminal proceedings. The time limit for seeking a remedy must not be longer than 15 days from the date of receipt of the reasoned decision to accept the transfer of criminal proceedings.
Procedure for requesting the transfer of criminal proceedings
The request for the transfer of criminal proceedings must be duly substantiated and drawn up using the form in the annex to the Regulation which includes, in particular, the following information:
- information about the requesting authority;
- a description of the criminal offence which is the subject of the criminal proceedings, and the applicable provisions of the criminal law of the requesting State;
- the reasons why the transfer of criminal proceedings is necessary and appropriate;
- the necessary information available on the suspect or accused person and the victim;
- an assessment of the impact of the transfer of criminal proceedings on the rights of the suspect or accused person and the victim;
- information on procedural acts or measures with a bearing on the criminal proceedings that have been undertaken in the requesting State;
- any applicable specific conditions for the processing of personal data.
Withdrawal of the request
The requesting authority may withdraw the request for the transfer of criminal proceedings at any time before receiving the decision of the requested authority to accept or refuse the transfer of criminal proceedings.
Time limits
The requested authority must communicate to the requesting authority its decision on whether or not to accept the transfer of criminal proceedings without undue delay and in any event no later than 60 days after receipt of the request. This time limit may be extended by a maximum of 30 days.
Effects
Upon receipt of the reasoned decision to accept the transfer of criminal proceedings or of the final decision on a legal remedy, the criminal proceedings will be suspended or discontinued in the requesting State. The transferred criminal proceedings will be governed by the national law of the requested State.
Any act carried out for the purposes of the criminal proceedings or preparatory inquiries performed by competent authorities in the requesting State will have the same validity in the requested State as if it had been validly performed by its own competent authorities.
Evidence transferred by the requesting authority must not be denied admission in criminal proceedings in the requested State only on the grounds that the evidence was gathered in another Member State.
Next steps
The Regulation will enter into force on the twentieth day following that of its publication in the Official Journal of the EU.
[1] Regulation of the European Parliament and of the Council on the transfer of proceedings in criminal matters.
[2] Article 1 of the Regulation.
[3] Recital (5) of the Regulation.
[4] Requests made in this way do not create an obligation for the requesting State or requested State to transfer criminal proceedings to the requested State or to make a request accordingly.
[5] Where such refusal is not based on a final judgment of which this person is the subject in respect of the same criminal offence and which prevents further criminal proceedings.
[6] If it finds that, in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the surrender would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right.
[7] Council Framework Decision 2009/948/JAI of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings.
[8] Set out in Article 17 of the Regulation.
