Conflicts of jurisdiction

In recent years, the increase in European cross-border crime has led to a growing number of cases in which multiple Member States have jurisdiction to prosecute and to take such cases to trial. Parallel proceedings, where investigations into the same crime take place in two or more Member States, can be beneficial in combating crime more effectively.

However, in certain situations, the parallel progression of cases in separate jurisdictions can compromise the outcome of investigations, eventually resulting in what is known as a violation of the ne bis in idem principle, also known as double jeopardy. Such a principle constitutes a fundamental right, which aims to ensure that no individual is prosecuted for the same acts in separate Member States. In such situations, a decision must be made regarding which State is better placed to prosecute and ultimately bring the case to trial.

As part of its mission to facilitate judicial cooperation, Eurojust often assists national authorities in areas such as conflicts of jurisdiction and transfer of proceedings, as well as cases involving potential ne bis in idem issues. Eurojust helps facilitate preliminary contacts and consultations between competent authorities, coordinate their actions, encourage and expedite the exchange of information, and advise on which jurisdiction is the better placed to prosecute in the best interest of justice. For the latter, Eurojust has published a set of guidelines to help national authorities determine which jurisdiction is better placed to prosecute.

Conflicts of jurisdiction

Conflicts of jurisdiction may arise from parallel investigations without any coordination between the different Member States’ national authorities involved. In general, a solution in such cases will involve the respective competent authorities agreeing to concentrate proceedings (or parts hereof) in a single jurisdiction, for example through means of transfer to the agreed-upon State.

Challenging cases may include so-called ‘negative’ conflicts of jurisdiction: situations in which none of the Member States involved is competent, or in a position, to prosecute for different reasons. Negative conflicts of jurisdiction occur much less often than ‘positive’ ones; however, they are typically much more complex to solve.

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Report on Eurojust’s casework in the field of prevention and resolution of conflicts of jurisdiction

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How Eurojust assists with conflicts of jurisdiction

When a conflict of jurisdiction arises, direct and early consultation between the involved authorities is essential to reach an agreement between the different parties; however, the introduction of an external, independent party may be required to reach this consensus. The Council Framework Decision on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings recognises Eurojust’s capacity to support national authorities in resolving conflicts of jurisdiction and advocates the referral of potentially conflicting cases to Eurojust when the authorities have been unable to reach an agreement.

In the majority of cases in which Eurojust is involved, jurisdictional issues are settled with the sole intervention of the National Members of the Member States involved in the case. Nevertheless, the Eurojust Regulation enables the College of Eurojust to intervene in cases when two or more National Members cannot agree on how to resolve the conflict, and to issue a non-binding opinion on which State should exercise its jurisdiction in the best interest of the case.

Further information on these issues, and Eurojust’s role, can also be found in the Report on Eurojust’s casework in the field of prevention and resolution of conflicts of jurisdiction.

Transfer of proceedings

A transfer of criminal proceedings often follows a decision to concentrate parallel proceedings in a single Member State. However, this course of action can create legal and practical challenges for the national authorities involved, which may jeopardise the efficiency and effectiveness of the proceedings.

For example, a transfer may impose a significant financial and/or organisational burden on the receiving Member State, such as the difficulty and cost of translating case files. Furthermore, transferring investigations from one State to another can be extremely time-consuming; for instance, because of a lack of information about the follow-up given by the requested State, the results of a request for transfer of proceedings may remain uncertain for a considerable time.

How Eurojust assists with transfers of proceedings

Eurojust facilitates contacts and consultations among national authorities and advises on accessory measures for transfers of proceedings. For instance, by means of a coordination meeting, Eurojust can help the involved national authorities to agree on the best way to proceed and to draft requests for transfers of proceedings. Eurojust can enable national authorities to reach an agreement about the translation costs between the involved Member States. In other cases, costs may be included within the framework of a joint investigation team (JIT), and therefore covered within the JIT funding provided by Eurojust. Eurojust can also assist the receiving State in identifying the essential documents that need to be translated and (initially) transmitted electronically so investigations can proceed quickly and effectively.

Principle of 'ne bis in idem'

The ne bis in idem principle is a fundamental principle mentioned in national, European and international legal instruments, including the Convention Implementing the Schengen Agreement and the Charter of Fundamental Rights of the European Union. In general, the principle aims to ensure that individuals are not prosecuted for the same acts in separate Member States.

Despite the increasing number of decisions by the Court of Justice of the European Union (CJEU) with regard to the application of the ne bis in idem principle, a number of technical and practical issues exist that can impact the work of judicial authorities, not least the legal question of what constitutes the ‘same acts’. Other legal difficulties may arise, for instance, from the relationship between administrative and criminal sanctions, or from the differences among legal systems of the Member States concerning the question of what is to be considered as a ‘final decision’.

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Case law by the Court of Justice of the European Union on the principle of ne bis in idem in criminal matters

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How Eurojust assists with ne bis in idem issues

In the situations described above, the involved authorities may be under pressure to find appropriate and practical solutions as quickly as possible. For example, when the proceedings in the different jurisdictions dealing with a case concerning the same facts and suspects occur at different speeds without coordination between them, the faster one may undermine the outcome of the other.

Eurojust helps national authorities to detect, and consequently avoid, potential ne bis in idem situations as quickly and efficiently as possible, for instance by assisting competent authorities in examining, including at an early stage, whether related facts that are under investigation in two or more Member States may constitute the ‘same acts’. Eurojust also helps to clarify the final character of decisions under national law, specifically with regard to the question of what constitutes a final decision under the respective national laws.

Eurojust has published a document, Case law by the Court of Justice of the European Union on the principle of ne bis in idem in criminal matters, to provide further information on the case law of the CJEU, and also offers guidance in the application of the principle in a transnational context.