Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings

1 The objective of this Framework Decision is to promote a closer cooperation between the competent authorities of two or more Member States conducting criminal proceedings, with a view to improving the efficient and proper administration of justice.

2 Such closer cooperation aims to: (a) prevent situations where the same person is subject to parallel criminal proceedings in different Member States in respect of the same facts, which might lead to the final disposal of the proceedings in two or more Member States thereby constituting an infringement of the principle of ‘ne bis in idem’; and (b) reach consensus on any effective solution aimed at avoiding the adverse consequences arising from such parallel proceedings.

1 With a view to achieving the objective set out in Article 1, this Framework Decision establishes a framework on: (a) a procedure for establishing contact between the competent authorities of Member States, with a view to confirming the existence of parallel criminal proceedings in respect of the same facts involving the same person; (b) the exchange of information, through direct consultations, between the competent authorities of two or more Member States conducting parallel criminal proceedings in respect of the same facts involving the same person, in case they already have knowledge of the existence of parallel criminal proceedings, with a view to reaching consensus on any effective solution aimed at avoiding the adverse consequences arising from such parallel proceedings.

2 This Framework Decision shall not apply to proceedings which are covered by the terms of Articles 5 and 13 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty .

For the purposes of this Framework Decision: (a) ‘parallel proceedings’ means criminal proceedings, including both the pre-trial and the trial phases, which are conducted in two or more Member States concerning the same facts involving the same person; (b) ‘competent authority’ means a judicial authority or another authority, which is competent, under the law of its Member State, to carry out the acts envisaged by Article 2(1) of this Framework Decision; (c) ‘contacting authority’ means a competent authority of a Member State, which contacts a competent authority of another Member State to confirm the existence of parallel proceedings; (d) ‘contacted authority’ means the competent authority which is asked by a contacting authority to confirm the existence of parallel criminal proceedings.

1 Member States shall determine the competent authorities in a way that promotes the principle of direct contact between authorities.

2 In accordance with paragraph 1, each Member State shall inform the General Secretariat of the Council which authorities under its national law are competent to act in accordance with this Framework Decision.

3 Notwithstanding paragraphs 1 and 2, each Member State may designate, if it is necessary as a result of the organisation of its internal system, one or more central authorities responsible for the administrative transmission and reception of requests for information according to Article 5 and/or for the purpose of assisting the competent authorities in the consultation process. Member States wishing to make use of the possibility to designate a central authority or authorities shall communicate this information to the General Secretariat of the Council.

4 The General Secretariat of the Council shall make the information received under paragraphs 2 and 3 available to all Member States and to the Commission.

1 When a competent authority of a Member State has reasonable grounds to believe that parallel proceedings are being conducted in another Member State, it shall contact the competent authority of that other Member State to confirm the existence of such parallel proceedings, with a view to initiating direct consultations as provided for in Article 10.

2 If the contacting authority does not know the identity of the competent authority to be contacted, it shall make all necessary inquiries, including via the contact points of the European Judicial Network, in order to obtain the details of that competent authority.

3 The procedure of contacting shall not apply when the competent authorities conducting parallel proceedings have already been informed of the existence of these proceedings by any other means.

1 The contacted authority shall reply to a request submitted in accordance with Article 5(1) within any reasonable deadline indicated by the contacting authority, or, if no deadline has been indicated, without undue delay, and inform the contacting authority whether parallel proceedings are taking place in its Member State. In cases where the contacting authority has informed the contacted authority that the suspected or accused person is held in provisional detention or custody, the latter authority shall treat the request as a matter of urgency.

2 If the contacted authority cannot provide a reply within any deadline set by the contacting authority, it shall promptly inform the contacting authority of the reasons thereof and indicate the deadline within which it shall provide the requested information.

3 If the authority which has been contacted by a contacting authority is not the competent authority under Article 4, it shall without undue delay transmit the request for information to the competent authority and shall inform the contacting authority accordingly.

The contacting and contacted authorities shall communicate by any means whereby a written record can be produced.

1 When submitting a request in accordance with Article 5, the contacting authority shall provide the following information: (a) the contact details of the competent authority; (b) a description of the facts and circumstances that are the subject of the criminal proceedings concerned; (c) all relevant details about the identity of the suspected or accused person and about the victims, if applicable; (d) the stage that has been reached in the criminal proceedings; and (e) information about provisional detention or custody of the suspected or accused person, if applicable.

2 The contacting authority may provide relevant additional information relating to the criminal proceedings that are being conducted in its Member State, for example relating to any difficulties which are being encountered in that State.

1 The response by the contacted authority in accordance with Article 6 shall contain the following information: (a) whether criminal proceedings are being or were conducted in respect of some or all of the same facts as those which are subject of the criminal proceedings referred to in the request for information submitted by the contacting authority, and whether the same persons are involved; in case of a positive answer under (a): (b) the contact details of the competent authority; and (c) the stage of these proceedings, or, where a final decision has been reached, the nature of that final decision.

2 The contacted authority may provide relevant additional information relating to the criminal proceedings that are being or were conducted in its Member State, in particular concerning any related facts which are the subject of the criminal proceedings in that State.

1 When it is established that parallel proceedings exist, the competent authorities of the Member States concerned shall enter into direct consultations in order to reach consensus on any effective solution aimed at avoiding the adverse consequences arising from such parallel proceedings, which may, where appropriate, lead to the concentration of the criminal proceedings in one Member State.

2 As long as the direct consultations are being conducted, the competent authorities concerned shall inform each other of any important procedural measures which they have taken in the proceedings.

3 In the course of the direct consultations, competent authorities involved in those consultations shall whenever reasonably possible reply to requests for information emanating from other competent authorities that are involved in those consultations. However, when a competent authority is requested by another competent authority to provide specific information which could harm essential national security interests or could jeopardise the safety of individuals, it shall not be required to provide that information.

When the competent authorities of Member States enter into direct consultations on a case in order to reach consensus in accordance with Article 10, they shall consider the facts and merits of the case and all the factors which they consider to be relevant.

1 This Framework Decision shall be complementary and without prejudice to the Eurojust Decision.

2 Where it has not been possible to reach consensus in accordance with Article 10, the matter shall, where appropriate, be referred to Eurojust by any competent authority of the Member States involved, if Eurojust is competent to act under Article 4(1) of the Eurojust Decision.

If during the course of the direct consultations in accordance with Article 10 consensus has been reached on the concentration of the criminal proceedings in one Member State, the competent authority of that Member State shall inform the respective competent authority (authorities) of the other Member State(s) about the outcome of the proceedings.

1 Each Member State shall state in a declaration to be deposited with the General Secretariat of the Council which languages, among the official languages of the institutions of the Union, may be used in the procedure of taking contact in accordance with Chapter 2.

2 The competent authorities may agree to use any language in the course of their direct consultations in accordance with Article 10.

1 In so far as other legal instruments or arrangements allow the objectives of this Framework Decision to be extended or help to simplify or facilitate the procedure under which national authorities exchange information about their criminal proceedings, enter into direct consultations and try to reach consensus on any effective solution aimed at avoiding adverse consequences arising from the parallel proceedings, the Member States may: (a) continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision comes into force; (b) conclude bilateral or multilateral agreements or arrangements after this Framework Decision has come into force.

2 The agreements and arrangements referred to in paragraph 1 shall in no case affect relations with Member States which are not parties to them.

Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 15 June 2012. By 15 June 2012 Member States shall transmit to the General Secretariat of Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision.

The Commission shall, by 15 December 2012, submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have complied with this Framework Decision, accompanied, if necessary, by legislative proposals.

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