855Eurojust
11.9. Eurojust
The interim step between a purely national system of prosecution of crimes and
prosecution of crimes by an EO prosecutor is Eurojust, a body intended to coordinate
and support national investigations, to facilitate judicial cooperation and
mutual recognition, and to assist resolving conflicts ofjurisdiction. Following
the mandate ofthe Tampere European Council, the Council adopted a Decision
establishing a provisional Eurojust late in 2000.279
Shortly after the Tampere
deadline of end-2001, the Council adopted a Decision in February 2002, which
established Eurojust definitively.P? This Decision was subsequently amended as
regard the financial rules governing Europol.r" and then again more substantially
in 2008, inter alia in order to strengthen Member States' support for Eurojust
(in particular as regards the powers of national members), to give Eurojust a
greater role settling conflicts ofjurisdiction, to increase the flow of information
to Eurojust, and to overhaul the external relations rules.r" For the future, the
Stockholm programme and the action plan on implementing the Stockholm
programme call for a proposal on Eurojust in 2012.283
The JHA Council has approved Eurojust's rules of procedure.P" and its joint
supervisory body adopted its own rules of procedure.285 According to the Court
ofJustice, a Member State cannot challenge Eurojust's staffing decisions before
the Court pursuant to Article 230 EC (as it then was), but disappointed applicants
can challenge Eurojust's decisions.P"
Eurojust is a 'body' of the EO with legal personality"? with its seat in the
Hague.r" It is made up ofone member seconded by each Member State, who may
be a prosecutor, judge, or police officer depending on the national legal system,
whose place of work must be at Eurojust. Each member must be assisted by one
deputy and one assistant, and may be assisted by more people. The deputy must
be able to replace the national member.289 The Decision specifies that national
members must have: a term of office of at least four years; access to the national
registers on criminal records, arrested persons, investigations, and DNA; and
powers to follow up mutual recognition requests, to issue such requests (in con'limitations
[on rights] may be made only if they are necessary and genuinely meet objectives of
general interest recognised by the Union or the need to protect the rights and freedoms of others'.
279 [2000] OJ L 32412.
,"0 [2002] OJ L 63/1. See the Eurojust website: <http://www.eurojust.europa.eu>.
28' [2003J OJ L 245/44.
282 [2009] OJ L 138/14, which took effect on 4 June 2009 (Art 3). See the earlier Commission
communication (COM (2007) 844, 23 Oct 2007). Member States have until 4 June 2011, if necessary,
to amend their national law to comply with these amendments (Art 2). The Decision has not
been consolidated. All further references in this section are to the Eurojust Decision as amended,
unless otherwise indicated. 283 [2010] OJ C 115 and COM (2010) 171,20 Apr 2010.
284 [2002] OJ C 286/1 and [2005] OJ C 68/1. 285 [2004] OJ C 86/1.
286 Case C-160/03 Spain v Eurojust [2005] ECR 1-2077. 287 Art 1.
288 [2004] OJ L 29/15. 289 Art 2, as amended.
Criminal Law: Jurisdiction, Coordination, and Prosecution854
EO's mutual recognition measures usually include provisions concerning
ofenforcement on grounds ofdouble jeopardy.270 However, this ground ~._~... "O I
is not always mandatory, and it is not clear whether the double jeopardy prmcrpjs
m the mutual recognition measures is identical to the principle as set out in
Schengen rules. The Court ofJustice has not yet addressed this issue.'?' although
it has addressed other types oflinks between the double jeopardy rules and
recognition measures,272 and links with other EO measures concerning crrmmar
jurisdiction can be disccmed.s"
On the second point, the Court has stated explicitly that the principle
cross-border double jeopardy is, just like the purely domestic application of
principle, a 'fundamental principle ofCommunity law';274 the rule appears in
EO Charter of Rights; and the ECHR case law has become aligned with
Court ofJustice case law.?" It must follow that the double jeopardy pnncipie
a rule ofprimary EO law, which must take precedence over conflicting seconcrary
EO Iegislation.F" The ability of the EO's political institutions to limit
double jeopardy rule is therefore restricted. In any event, in light of the require,
ment of lawfulness which applies to human rights law,277 any restrictions
application ofthe double jeopardy rules which might be justified pursuant to
Charter would have to specify precisely that they derogate from Article 54
Schengen Convention; but as we have seen, an exhaustive list ofsuch uerogations
is found only in Article 55 of that Convention, which has not been amended
the EO's mutual recognition measures. Of course, even if such derogations
the 'provided for by law' requirement, they would still have to satisfy the "V<'N"."C
five requirements for limiting the rights set out in the EO Charter, and the
principles ofEO law.278
270 For details, see 9.2.2.3 above.
271 However, the opinion of7 Sep 2010 in the pending Mantello case (n 171 above) argues
the double Jeopardy exception m the Framework Decision on the European Arrest Warrant
~e mterp~eted consistently with the Schengen rules, at least as regards the interpretation
same acts.
272 The Miraglia judgment implicitly addressed the relationship with mutual assistance
and the Turansky case explicitly referred to Art 21 of the Council of Europe mutual assistance
Convention. The Gasparini judgment interpreted the double jeopardy rules in the context
Framework Decision On the European Arrest Warrant, and the Kretzinger judgment
the possible Issue of a European Arrest Warrant has no impact on the enforcement condrtion
Article 54 of the Convention; presumably (as noted above) other EU mutual recognition
have no impact either.
273 As noted above, the Turansky case raises implicit questions about the application
when proceedings are transferred. Also, the Miraglia case could be relevant to the consequences
applymg the Framework Decision On conflicts ofjurisdiction and/or, by analogy, any
rules on the transfer of proceedings. 274 Para 40 ofthe Van Esbroel;judgment,
275 See 11.3 above.
276 On the legal effect ofthe general principles ofEU law and the Charter, see 2.3 above.
277 See, for instance, Art 52(1) of the Charter ('[a]ny limitation ... must be provided for
278 According to Art 52(1) of the Charter, such limitations would have to 'respect the
those nghts and free dams', and would be '[s]ubject to the principle
857Eurojust
Member States must exchange extensive information with Eurojust.i'" and there
are detailed rules on data protection.
303
The provisions on the status and operation of Eurojust apply EU rules to
Eurojust's staff and budget and provide for annual reports to the EP and the
Council.304 As for external relations, the Eurojust Decision has specific provisions
on relations with the European Judicial Network, other EU bodies (Europol,
OLAF, Frontex, and the Council as regards foreign policy), and third States and
bodies, including provisions on sending and receiving liaison officers and executing
requests for judicial cooperation from third States.i'"
In practice, Eurojust suffered from its limited competence as a provisional unit
until 2002, a delay until it could take up permanent offices in the Hague in 2003, a
shortage ofsupport staffuntil 2003, and Member States' tardiness in appointing data
protection officers and amending national law to conform to the initial Eurojust
decisionr'?" Nevertheless, Eurojust has been used increasingly in practice, with the
number ofcases referred to Eurojust by national authorities rising from 180 in 2001
to 202 in 2002; 300 in 2003 (a 50% increase); 381 in 2004 (a 27% increase); 588 in
2005 (a 54% increase); 771 in 2006 (a 31% increase); 1,085 in 2007 (a 41% increase);
1,193 in 2008 (a 10% increase); and 1,372 in 2009 (a 15% increase). Eurojust has
in particular made a number of recommendations to Member States' authorities
pursuant to the Decision, including on the issue ofconflicts ofjurisdiction.
As for Eurojust's external relations, an agreement with Europol came into
force in 2004 and was revised in 2009,307 and a memorandum with OLAF was
agreed in 2003, although the relationship with OLAF was considered unsatisfactory
until a formal agreement was negotiated in 2008. Treaties with Norway,
Iceland, Romania, the US, Croatia, Switzerland, and several international bodies
are in force/os a treaty with the Former Yugoslav Republic of Macedonia has
been agreed, and further treaties are planned with Russia, Ukraine, Moldova,
other Western Balkan States, Liechtenstein, Cape Verde, and Israel.
Eurojust also has a role in other Council measures, in particular as regards
the EAW where it can be asked to address the issue of competing warrants and
must be informed of delays in the execution of warrants.i''" In practice, Eurojust
has adopted guidelines on competing warrants, and receives reports of dozens
of delayed executions ofEAWs every year. Furthermore, Council Decisions on
the exchange of information on terrorism provide for a role for Eurojust."? and
another Council Decision gives Eurojust access to the Schengen Information
302 Art 13, as amended. 303 Arts 14-24, as amended. 304 Arts 28-39, as amended.
305 Arts 25a-27b, as amended; on the judicial network and the liaison magistrates, see 9.9
above.
306 See the annual reports for 2001-09, available on the Eurojust website, as well as the report in
COM (2004) 457, 6 July 2004. 307 See 12.8 below.
308 For the texts, see: <http://www.eurojust.europa.eu/officiaLdocuments/eju_agreements.
htm>. 309 Arts 16 and 17 ofthe EAW Framework Decision ([20021OJ L 190/1).
310 [2003] OJ L 16/68, replaced by later Decision ([2005] OJ L 252/23).
Criminal Law: Jurisdiction, Coordination, and Prosecution856
290 Arts 9-9f, as amended. On controlled deliveries and joint investigation teams,
12.9 below. 29l Art
292 Art 3(2). 293 Art 3(3).
294 Art 4(1), as amended. On the competence ofEuropol, see 12.8 below.
296 Art Sa, as inserted. 297 Art 6(1)(a), as amended. 298 Art 7, as amended.
299 See 11.6 above, and also the Eurojust guidelines on jurisdiction in the
annual report.
300 Art 8, as amended. Member States may decline to give reasons f01' refiisino
on grounds of national security or protecting individual safety.
junction with a national authority), to execute mutual recognition requests,
authorize controlled deliveries in urgent cases, and to participate in joint investigative
teams.F'"
The activities of Eurojust are threefold: to coordinate national investigations
and prosecutions; to improve cooperation between national authorities, in
ticular by facilitating judicial cooperation and mutual recognition; and to
port in other ways the effectiveness ofnational investigations and prosecutions.
Eurojust may also become involved in assisting investigations and prosecutions
involving only one Member State and a non-Member State once Eurojust has
eluded an agreement with the relevant non-Member State (see below) or
there is an 'essential interest' in specific cases.292
It may also become involved
investigations involving only one Member State and the Comrnunity.F"
Eurojust's competence encompasses the crimes which Europol is competent
to address, plus other offences committed in conjunction with any ofthe
over which it is competent.F" Eurojust may also assist in other investigations
request ofa Member State's authorities.?" It has established an 'on-call coordination
centre' to deal with urgent requests?" When it acts through its individual
members, it can inter alia request Member States' authorities to begin investizations
or prosecutions, to accept that one ofthem is in a better position to undertake
a prosecution, to coordinate between authorities, to set up a joint investigation
team, or to take special investigative measures.297 When acting as a college,
do many ofthe same things, plus it also has a distinct role suggesting resolutions
of conflicts ofjurisdiction or recommending the settlement of disputes
ing the application of mutual recognition measures.?" On the issue of connicts
ofjurisdiction, several EU substantive criminal law measures also specify a
for Eurojust in advising which Member State should exercise jurisdiction
cross-border offences, and the Framework Decision on conflicts
requires Member States to send a dispute over jurisdiction to Eurojust,
appropriate', if it cannot be agreed by means of consultation.F" Member
have to motivate 'without undue delay' any refusals to comply with a
a national member or the college, as well as any decision not to rr.rro"l"
opinion by the college in the context of dispute settlernent.:'?"
In order to support Eurojust's activities, Member States must appoint na.tlcm<l!
correspondents and establish a national coordination system for Eurojust.
857Eurojust
Member States must exchange extensive information with Eurojust.i'" and there
are detailed rules on data protection.
303
The provisions on the status and operation of Eurojust apply EU rules to
Eurojust's staff and budget and provide for annual reports to the EP and the
Council.304 As for external relations, the Eurojust Decision has specific provisions
on relations with the European Judicial Network, other EU bodies (Europol,
OLAF, Frontex, and the Council as regards foreign policy), and third States and
bodies, including provisions on sending and receiving liaison officers and executing
requests for judicial cooperation from third States.i'"
In practice, Eurojust suffered from its limited competence as a provisional unit
until 2002, a delay until it could take up permanent offices in the Hague in 2003, a
shortage ofsupport staffuntil 2003, and Member States' tardiness in appointing data
protection officers and amending national law to conform to the initial Eurojust
decisionr'?" Nevertheless, Eurojust has been used increasingly in practice, with the
number ofcases referred to Eurojust by national authorities rising from 180 in 2001
to 202 in 2002; 300 in 2003 (a 50% increase); 381 in 2004 (a 27% increase); 588 in
2005 (a 54% increase); 771 in 2006 (a 31% increase); 1,085 in 2007 (a 41% increase);
1,193 in 2008 (a 10% increase); and 1,372 in 2009 (a 15% increase). Eurojust has
in particular made a number of recommendations to Member States' authorities
pursuant to the Decision, including on the issue ofconflicts ofjurisdiction.
As for Eurojust's external relations, an agreement with Europol came into
force in 2004 and was revised in 2009,307 and a memorandum with OLAF was
agreed in 2003, although the relationship with OLAF was considered unsatisfactory
until a formal agreement was negotiated in 2008. Treaties with Norway,
Iceland, Romania, the US, Croatia, Switzerland, and several international bodies
are in force/os a treaty with the Former Yugoslav Republic of Macedonia has
been agreed, and further treaties are planned with Russia, Ukraine, Moldova,
other Western Balkan States, Liechtenstein, Cape Verde, and Israel.
Eurojust also has a role in other Council measures, in particular as regards
the EAW where it can be asked to address the issue of competing warrants and
must be informed of delays in the execution of warrants.i''" In practice, Eurojust
has adopted guidelines on competing warrants, and receives reports of dozens
of delayed executions ofEAWs every year. Furthermore, Council Decisions on
the exchange of information on terrorism provide for a role for Eurojust."? and
another Council Decision gives Eurojust access to the Schengen Information
302 Art 13, as amended. 303 Arts 14-24, as amended. 304 Arts 28-39, as amended.
305 Arts 25a-27b, as amended; on the judicial network and the liaison magistrates, see 9.9
above.
306 See the annual reports for 2001-09, available on the Eurojust website, as well as the report in
COM (2004) 457, 6 July 2004. 307 See 12.8 below.
308 For the texts, see: <http://www.eurojust.europa.eu/officiaLdocuments/eju_agreements.
htm>. 309 Arts 16 and 17 ofthe EAW Framework Decision ([20021OJ L 190/1).
310 [2003] OJ L 16/68, replaced by later Decision ([2005] OJ L 252/23).
Criminal Law: Jurisdiction, Coordination, and Prosecution856
290 Arts 9-9f, as amended. On controlled deliveries and joint investigation teams,
12.9 below. 29l Art
292 Art 3(2). 293 Art 3(3).
294 Art 4(1), as amended. On the competence ofEuropol, see 12.8 below.
296 Art Sa, as inserted. 297 Art 6(1)(a), as amended. 298 Art 7, as amended.
299 See 11.6 above, and also the Eurojust guidelines on jurisdiction in the
annual report.
300 Art 8, as amended. Member States may decline to give reasons f01' refiisino
on grounds of national security or protecting individual safety.
junction with a national authority), to execute mutual recognition requests,
authorize controlled deliveries in urgent cases, and to participate in joint investigative
teams.F'"
The activities of Eurojust are threefold: to coordinate national investigations
and prosecutions; to improve cooperation between national authorities, in
ticular by facilitating judicial cooperation and mutual recognition; and to
port in other ways the effectiveness ofnational investigations and prosecutions.
Eurojust may also become involved in assisting investigations and prosecutions
involving only one Member State and a non-Member State once Eurojust has
eluded an agreement with the relevant non-Member State (see below) or
there is an 'essential interest' in specific cases.292
It may also become involved
investigations involving only one Member State and the Comrnunity.F"
Eurojust's competence encompasses the crimes which Europol is competent
to address, plus other offences committed in conjunction with any ofthe
over which it is competent.F" Eurojust may also assist in other investigations
request ofa Member State's authorities.?" It has established an 'on-call coordination
centre' to deal with urgent requests?" When it acts through its individual
members, it can inter alia request Member States' authorities to begin investizations
or prosecutions, to accept that one ofthem is in a better position to undertake
a prosecution, to coordinate between authorities, to set up a joint investigation
team, or to take special investigative measures.297 When acting as a college,
do many ofthe same things, plus it also has a distinct role suggesting resolutions
of conflicts ofjurisdiction or recommending the settlement of disputes
ing the application of mutual recognition measures.?" On the issue of connicts
ofjurisdiction, several EU substantive criminal law measures also specify a
for Eurojust in advising which Member State should exercise jurisdiction
cross-border offences, and the Framework Decision on conflicts
requires Member States to send a dispute over jurisdiction to Eurojust,
appropriate', if it cannot be agreed by means of consultation.F" Member
have to motivate 'without undue delay' any refusals to comply with a
a national member or the college, as well as any decision not to rr.rro"l"
opinion by the college in the context of dispute settlernent.:'?"
In order to support Eurojust's activities, Member States must appoint na.tlcm<l!
correspondents and establish a national coordination system for Eurojust.
11.10. European Public Prosecutor
System; this took effect in December 2007.311
Eurojust will in future have
to the Customs Information System (CIS).312
859
318 See generally ch 9.
European Public Prosecutor
316 See further 11.2.3 and 11.2.4 above.
317 [2010] OJ C 115, point 3.1.1; COM (2010) 171,20 Apr 2010.
319 See 12.4.6 below.
about the details. In particular, many called for an enlarged competence for the
Prosecutor, a greater degree of approximation of relevant substantive criminal
law, more limited investigatory powers for the Prosecutor, and further harmonization
of the law of evidence and defence rights.
Article 86 TFEU, as inserted by the Treaty of Lisbon, gives the Council the
power (not the obligation) to establish the Public Prosecutor, with the option to
extend his or her competence to areas other than the EU's financial interests, and
accepts the model of the Prosecutor bringing prosecutions in national courts.?"
As mentioned above, the Stockholm programme refers to consideration of the
creation of the Public Prosecutor, and the Commission intends to issue a communication
on this issue in 2013.317
But in any case, is a European Public Prosecutor desirable? Certainly the
objective ofensuring more effective prosecutions in defence ofthe EU's financial
interests, and potentially other serious crimes, while still securing the fundamental
rights ofcriminal defendants, can only be supported. But with great respect to
the supporters ofthe idea, the notion ofcreating the post ofthe Public Prosecutor
as a means to this end is fundamentally flawed.
The first basic problem with the idea is that the Commission did not properly
consider the effectiveness of more limited measures to achieve the same objective.
Examining in turn the specific arguments made by the Commission (summarized
above), the PIF Convention and both of its Protocols have now been
ratified; judicial cooperation has been speeded up by adopted EU measures (the
mutual assistance Convention and its Protocol, the Framework Decisions on the
arrest warrant, freezing orders, evidence warrant, financial penalties, custodial
penalties, probation, and pre-trial supervision) and would be further speeded up
by proposed measures (the European investigation order) and further plans set
out in the Stockholm programme (for example, as regards mutual admissibility of
evidencej.?" the Commission has made proposals relating to OLAF powers and
on cooperation on EU financial interests;"? and further measures strengthening
the relationship between OLAF and national prosecutors and/or Eurojust could
be adopted; the Protocol to the Mutual Assistance and the Framework Decisions
on freezing orders and the EAW have or will make tax or banking information
more accessible; and the effectiveness ofinternal investigations could be enhanced
by amending the rules applicable to OLAE Finally, as regards individual rights, as
noted already, the speed of proceedings has been increased already by the application
of the EAW and the Framework Decision on pre-trial supervision should
reduce detention in cross-border cases. It should be reiterated that in all mutual
recognition measures adopted or agreed to date, the dual criminality principle has
been dropped as regards crimes against the EU's financial interests, except for a
few cases where Member States could insist on retaining the principle.
Criminal Law: Jurisdiction, Coordination, and Prosecution
311 [2005] OJ L 68/44. On the SIS, see 12.6.1.1 below.
312 Art 12 ofthe CIS Decision ([2009] OJ L 323/20), which applies from 27 May 2011
of the Decision). On the CIS, see 12.6.1.2 below.
313 See Annex I to the subsequent Commission Green Paper on the Public Prosecutor
(2001) 715, 11 Dec 2001).
315 COM (2003) 128, 19 Mar 2003.
The Commission initially suggested during negotiation of the Treaty
2000 that provisions on a European Public Prosecutor should be inserted
EC Treaty (as it then was), but the suggestion was not taken Up.313 Subsequently
in 2001, it attempted to lay the groundwork for further consideration
by releasing a Green Paper.l" arguing that the existing and contemplated arrangements
for judicial cooperation and investigation related to the EU's financial
interests were (and would be) ineffective. The Commission argued in particular
that the legal framework was inadequate as regards lack ofratification
Convention and its Protocols, traditional judicial cooperation was 'cumbersome
and inappropriate' (without citing details), judges often did not follow up
investigations, and evidence was often inadmissible or (in the case of
banking information) inaccessible. Furthermore, the Public Prosecutor
increase the effectiveness of internal investigations within the EU institutions,
and would enhance protection offundamental rights, by speeding up pn)Ce:ec1111l5S
and reducing the need for pre-trial detention.
As to the details, the Commission proposed that the Public Prosecutor
centralize the investigation and prosecution ofthe crimes within his or her
but that trials would subsequently take place within the criminal
Member State. The existing substantive criminal law in this area could nprh~His
be supplemented, and rules on penalties for such crimes could be adopted;
could rules on limitation periods. There would have to be agreement
prosecution would be mandatory or discretionary, and on the division ot competence
between the Public Prosecutor and national prosecuting authorrties:
Public Prosecutor would enjoy extensive investigatory powers and
in which Member State's courts a trial would take place, subject to establishe:
criteria for making this choice. Evidence gathered lawfully in one rviemoer
would have to be admitted before the courts ofany other Member State,
would have to be detailed rules on judicial review of the Public Prosecutor,
According to the Commission's communication on the follow-up to
Paper.I" the majority of those responding to the Green Paper were supportrve
of the idea of a European Public Prosecutor, although most had reservations
858
11.10. European Public Prosecutor
System; this took effect in December 2007.311
Eurojust will in future have
to the Customs Information System (CIS).312
859
318 See generally ch 9.
European Public Prosecutor
316 See further 11.2.3 and 11.2.4 above.
317 [2010] OJ C 115, point 3.1.1; COM (2010) 171,20 Apr 2010.
319 See 12.4.6 below.
about the details. In particular, many called for an enlarged competence for the
Prosecutor, a greater degree of approximation of relevant substantive criminal
law, more limited investigatory powers for the Prosecutor, and further harmonization
of the law of evidence and defence rights.
Article 86 TFEU, as inserted by the Treaty of Lisbon, gives the Council the
power (not the obligation) to establish the Public Prosecutor, with the option to
extend his or her competence to areas other than the EU's financial interests, and
accepts the model of the Prosecutor bringing prosecutions in national courts.?"
As mentioned above, the Stockholm programme refers to consideration of the
creation of the Public Prosecutor, and the Commission intends to issue a communication
on this issue in 2013.317
But in any case, is a European Public Prosecutor desirable? Certainly the
objective ofensuring more effective prosecutions in defence ofthe EU's financial
interests, and potentially other serious crimes, while still securing the fundamental
rights ofcriminal defendants, can only be supported. But with great respect to
the supporters ofthe idea, the notion ofcreating the post ofthe Public Prosecutor
as a means to this end is fundamentally flawed.
The first basic problem with the idea is that the Commission did not properly
consider the effectiveness of more limited measures to achieve the same objective.
Examining in turn the specific arguments made by the Commission (summarized
above), the PIF Convention and both of its Protocols have now been
ratified; judicial cooperation has been speeded up by adopted EU measures (the
mutual assistance Convention and its Protocol, the Framework Decisions on the
arrest warrant, freezing orders, evidence warrant, financial penalties, custodial
penalties, probation, and pre-trial supervision) and would be further speeded up
by proposed measures (the European investigation order) and further plans set
out in the Stockholm programme (for example, as regards mutual admissibility of
evidencej.?" the Commission has made proposals relating to OLAF powers and
on cooperation on EU financial interests;"? and further measures strengthening
the relationship between OLAF and national prosecutors and/or Eurojust could
be adopted; the Protocol to the Mutual Assistance and the Framework Decisions
on freezing orders and the EAW have or will make tax or banking information
more accessible; and the effectiveness ofinternal investigations could be enhanced
by amending the rules applicable to OLAE Finally, as regards individual rights, as
noted already, the speed of proceedings has been increased already by the application
of the EAW and the Framework Decision on pre-trial supervision should
reduce detention in cross-border cases. It should be reiterated that in all mutual
recognition measures adopted or agreed to date, the dual criminality principle has
been dropped as regards crimes against the EU's financial interests, except for a
few cases where Member States could insist on retaining the principle.
Criminal Law: Jurisdiction, Coordination, and Prosecution
311 [2005] OJ L 68/44. On the SIS, see 12.6.1.1 below.
312 Art 12 ofthe CIS Decision ([2009] OJ L 323/20), which applies from 27 May 2011
of the Decision). On the CIS, see 12.6.1.2 below.
313 See Annex I to the subsequent Commission Green Paper on the Public Prosecutor
(2001) 715, 11 Dec 2001).
315 COM (2003) 128, 19 Mar 2003.
The Commission initially suggested during negotiation of the Treaty
2000 that provisions on a European Public Prosecutor should be inserted
EC Treaty (as it then was), but the suggestion was not taken Up.313 Subsequently
in 2001, it attempted to lay the groundwork for further consideration
by releasing a Green Paper.l" arguing that the existing and contemplated arrangements
for judicial cooperation and investigation related to the EU's financial
interests were (and would be) ineffective. The Commission argued in particular
that the legal framework was inadequate as regards lack ofratification
Convention and its Protocols, traditional judicial cooperation was 'cumbersome
and inappropriate' (without citing details), judges often did not follow up
investigations, and evidence was often inadmissible or (in the case of
banking information) inaccessible. Furthermore, the Public Prosecutor
increase the effectiveness of internal investigations within the EU institutions,
and would enhance protection offundamental rights, by speeding up pn)Ce:ec1111l5S
and reducing the need for pre-trial detention.
As to the details, the Commission proposed that the Public Prosecutor
centralize the investigation and prosecution ofthe crimes within his or her
but that trials would subsequently take place within the criminal
Member State. The existing substantive criminal law in this area could nprh~His
be supplemented, and rules on penalties for such crimes could be adopted;
could rules on limitation periods. There would have to be agreement
prosecution would be mandatory or discretionary, and on the division ot competence
between the Public Prosecutor and national prosecuting authorrties:
Public Prosecutor would enjoy extensive investigatory powers and
in which Member State's courts a trial would take place, subject to establishe:
criteria for making this choice. Evidence gathered lawfully in one rviemoer
would have to be admitted before the courts ofany other Member State,
would have to be detailed rules on judicial review of the Public Prosecutor,
According to the Commission's communication on the follow-up to
Paper.I" the majority of those responding to the Green Paper were supportrve
of the idea of a European Public Prosecutor, although most had reservations
858
11.11. External relations
861Conclusions
11.12. Conclusions
EU action in this field is a mixture of welcome developments and disappointing
shortcomings. The rules on double jeopardy, as interpreted by the Court of
Justice, are generally very welcome, although a number ofissues relating to these
rules could usefully be clarified, in particular the definition ofa 'final judgment'
and the relationship with the specific double jeopardy rules in EU mutual recognition
measures. In other areas, the EU's substantive criminal law measures
do too much to encourage or require extraterritorial jurisdiction, in the absence
of any particular need (in light of the possibility of extraditing States' nationals,
and other developments in the area of mutual recognition), and without any
countervailing system to ensure that individuals are not subjected to multiple
prosecutions-which in any event waste the scarce time and money of prosecutors,
police, and judges.
The EU should be bolder in ensuring not only that the useful rules on conflicts
ofjurisdiction and transfers ofproceedings in the Council ofEurope Convention
on transfers of proceedings apply to all Member States, but also further developing
those rules. There should be a prima facie obligation to centralize a prosecution
in the Member State where the alleged criminal activity took place,
subject to reasonable exceptions in the interests ofjustice, while clearly ruling
out forum-shopping by the prosecution or the defence. A rule establishing that
there can only be a single prosecution, determined by objective and fair criteria,
would contribute significantly to the development of an EU criminal justice
model. After all, why should prosecutors be treated any differently than asylum
scekersi'P'
jurisdiction rules, including effective lis pendens provisions, leaving the rules on
conflicting judgments (the equivalent of the criminal law double jeopardy rules)
somewhat secondary.?" As we have seen, the position as regards criminal law is
rather different. There is also a declaration to the Treaty of Lisbon on the EU's
external competence over civil law, but arguably it does nothing more than confirm
that EU competence can only become exclusive when the relevant internal
law is fully harmonized.P" So as the law now stands, it is probably the case that
the EU has exclusive competence over any international treaty provisions that
could impact upon the EU's double jeopardy rules, but shares competence with
the Member States as regards any other rules relating to criminal jurisdiction.330
328 Moreover, the double jeopardy rules apply even if the judgments in question are not
conflicting. 329 See 9.10 above.
330 See the Council conclusions on cooperation with the Council ofEurope as regards criminal
law ([2009] OJ C 50/8). 331 See the Dublin rules, discussed in 5.8 above.
Criminal Law: Jurisdiction, Coordination, and Prosecution
320 See 11.6 above. 321 [2009] OJ L 328/42, Art 15, 322 See 9,10 above.
323 See explicitly para 15 in the preamble to the Framework Decision, 324 See
325 See 11.7 above. Compare Art 58 ofthe Convention with Arts 48, 59, and 67 ([2000] OJ
326 See 11.9 above.
327 Opinion 112003 [2006] ECR 1-1145. See further 8.9 above.
The Framework Decision on conflicts ofjurisdiction contains a general DDOV:isic)I
permitting Member States to sign agreements which facilitate the objectives
that Framework Decision.F' Unlike the EU's mutual recognition measures,
that Framework Decision does not require Member States to disapply
responding provisions of the relevant Council of Europe Convention
transfer of proceedings) or any other treaties.F' which is significant because
provisions in the transfer of proceedings Convention are, on the whole,
than those ofthe Framework Decision.324 On the other hand, as noted
Schengen Convention does not expressly clarify the relationship of
jeopardy provisions with any other international measures.F" There
specific rules governing the external relations ofEurojust.F"
It should be kept in mind that although the Court ofJustice has
assertive approach as regards the EU's exclusive competence
civil jurisdiction.I" the case in question concerned a fully harmonized
860
Moving on to the detailed aspects of Public Prosecutor's role as proposed
the Commission, it would be possible to harmonize the substantive criminal
law as regards the EU's financial interests further, including the adoption
harmonized rules on penalties and limitation periods, without creating a
Prosecutor. Furthermore, a case could be made that the EU should regulate
national prosecutions in this area, for example as to whether prosecutions
be mandatory, the extent of investigatory powers, and the decision on
to prosecute (going further to allocate jurisdiction than the 2009
Decision on conflicts of'jurisdictionj.?"
The second basic problem is that the model of centralized prosecution
decentralized trials proposed by the Commission-and now
Article 86 TFEU, following the entry into force of the Treaty of Lisbon...--lS
half-baked. This model was notably not followed by the Rome Statute cn~atilI1g
the International Criminal Court, and its defects are obvious: the rules r"]'lti"d
to investigations and prosecutions on the one hand and trials on the other
be separated any more than eggs can be extracted from omelettes. In particular,
this model risks lowering the protection of the rights of criminal defendants;
since that protection is provided at different stages in the criminal nrocedure
different Member States.