Tag Archives: Eu judicial cooperation

Mutual recognition of supervision measures

Mutual recognition of supervision measures

Outline of the Community (European Union) legislation about Mutual recognition of supervision measures

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Mutual recognition of supervision measures

Document or Iniciative

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.

Summary

The framework decision lays down rules for the mutual recognition of supervision measures during criminal proceedings by European Union (EU) countries. These rules regulate the:

  • recognition of a decision on supervision measures;
  • monitoring of supervision measures;
  • surrendering of a person breaching supervision measures imposed on him/her.

Thus, the framework decision aims at:

  • making sure that the person concerned will be available to attend his/her trial;
  • promoting the use of non-custodial measures in criminal proceedings that take place in an EU country other than that where the person concerned is resident;
  • improving the protection of victims and the general public.

Types of supervision measures

EU countries must recognise and monitor supervision measures that impose an obligation on the person concerned to:

  • inform the authority monitoring the supervision measures of any change of residence;
  • not enter certain locations;
  • stay at a specified location;
  • comply with certain restrictions for leaving the territory of the monitoring country;
  • report at specified times to the designated authority;
  • refrain from contacting specific persons connected to the alleged crime.

The framework decision lists a number of additional supervision measures that each EU country may choose to monitor.

Forwarding supervision measures

An EU country may forward a decision on supervision measures to the competent authority of the EU country of residence of the person against whom the measures are imposed. However, the latter must have been informed of these measures and agreed to return to his/her country of residence. Following a request from the person concerned, a decision on supervision measures may also be forwarded to the competent authority of another EU country. In such cases, the authority in question must have agreed to receive the decision.

The competent authority of the EU country that issued the decision on supervision measures forwards this decision (or a certified copy of it) together with a certificate annexed to the framework decision directly to the competent authority of the EU country that will carry out the monitoring tasks. The competent authority of the issuing country must indicate the validity period of the decision on supervision measures and whether this decision may be renewed. In addition, it must specify the expected length of time needed for monitoring the supervision measures.

Recognising decisions on supervision measures

The country to which a decision on supervision measures is forwarded must recognise this decision and take the necessary measures for monitoring the supervision measures within 20 days from receipt. The framework decision lists certain offences for which decisions on supervision measures must in all cases be recognised, without verifying the double criminality of the acts. However, these offences must be punishable by a custodial sentence or a measure involving deprivation of liberty for a minimum of three years in the country that issued the decision on supervision measures.

For any other offences, the country that is to monitor the supervision measures may require the decision to relate to acts that are also an offence under its law in order to recognise the decision. Under certain circumstances, this country may refuse to recognise the decision on supervision measures altogether.

In case the supervision measures are not compatible with the law of the monitoring country, its competent authority may adapt these measures. However, the adapted measures must correspond as closely as possible to, and may in no case be more severe than, the original measures imposed.

Once the monitoring country has recognised the decision on supervision measures, it becomes competent for the monitoring of the supervision measures and its national law will govern the supervision.

Taking any subsequent decisions

The country having issued the decision on supervision measures has competence for any subsequent decisions concerning: the renewal, review and withdrawal of the original decision, the modification of the supervision measures and the issuing of an arrest warrant. Any decision on these will be governed by the law of the issuing country.

In case the competent authority of the issuing country modifies the supervision measures, the competent authority of the monitoring country may either:

  • adapt these measures, if they are not compatible with its national law, or
  • refuse to monitor these measures, if they fall outside the scope of this framework decision.

In case the competent authority of the issuing country issues an arrest warrant, the person concerned must be surrendered conforming to the procedures laid down in the framework decision on the European arrest warrant.

Background

The conclusions of the Tampere European Council of 15-16 October 1999 stressed the importance of applying the principle of mutual recognition to pre-trial orders. Consequently, the mutual recognition of supervision measures was taken up in the 2001 programme of measures to implement the principle of mutual recognition in criminal matters.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2009/829/JHA

1.12.2009

1.12.2012

OJ L 294 of 11.11.2009

The right to interpretation and translation in criminal proceedings

The right to interpretation and translation in criminal proceedings

Outline of the Community (European Union) legislation about The right to interpretation and translation in criminal proceedings

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

The right to interpretation and translation in criminal proceedings

Document or Iniciative

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings.

Summary

The directive establishes common minimum rules for European Union (EU) countries on the right to interpretation and translation in criminal proceedings as well as in proceedings for the execution of the European arrest warrant. It contributes to the proper functioning of judicial cooperation within the EU by facilitating the mutual recognition of judicial decisions in criminal matters. The directive also aims to improve the protection of individual rights by developing the minimum standards for the right to a fair trial and the right of defence guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the EU.

Right to interpretation and translation

The right to interpretation and translation must be provided to persons who do not speak or understand the language of the procedure. This right must be provided from the time these persons are made aware of being suspected or accused of a criminal offence until the end of the criminal proceedings, including sentencing and ruling on appeal. In the case of minor offences, if sanctions are imposed by an authority other than a court having jurisdiction in criminal matters (e.g. the police following a traffic control), the right to interpretation and translation will only apply to the proceedings following an appeal before such a court.

EU countries must also make interpretation available for the persons concerned to communicate with their legal counsel on matters relating directly to any questioning or hearing during the proceedings or to the lodging of an appeal. They must have in place a mechanism for determining whether interpretation is necessary or not.

EU countries must also provide, within a reasonable time period, the suspected or accused persons with a written translation of essential documents, namely of any:

  • decision depriving them of liberty;
  • charge or indictment;
  • judgement.

On a case by case basis, the competent authorities may decide to translate any other documents. The suspected or accused persons or their legal counsel may also request the translation of other essential documents. In exceptional cases, an oral translation or an oral summary of the essential documents may be provided instead of a written translation, if this does not compromise the fairness of the proceedings.

Similarly, in proceedings for the execution of a European arrest warrant, the competent authorities must provide the persons concerned with interpretation and with a written translation of the warrant, if necessary.

The suspected or accused persons must have the right to challenge a decision whereby interpretation or translation is refused. They must also have the right to complain about the quality of the provided interpretation or translation, if it is not sufficient to guarantee the fairness of the proceedings.

Quality of interpretation and translation

EU countries must ensure that the quality of translation and interpretation is sufficient to allow the persons concerned to understand the case against them and to exercise the right of defence. To this end, EU countries should take concrete measures and, in particular, set up a register or registers of independent and appropriately qualified interpreters and translators.

Costs and recording

Regardless of the outcome of the criminal proceedings, EU countries must bear the costs of the interpretation and translation provided to the suspected or accused persons.

EU countries must use the recording procedure in accordance with their national law to note when the person concerned has:

  • been questioned or heard with an interpreter;
  • been provided with an oral translation or oral summary of essential documents;
  • waived the right to translation of documents.

Background

On 30 November 2009, the Council adopted a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, which called for the adoption of measures also on the right to translation and interpretation. This roadmap was included into the Stockholm programme adopted on 10 December 2009. At the same time, the Commission was invited to assess further aspects of minimum procedural rights for suspected or accused persons to improve cooperation between EU countries in this field.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2010/64/EU

15.11.2010

27.10.2013

OJ L 280 of 26.10.2010

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Outline of the Community (European Union) legislation about Mutual recognition of custodial sentences and measures involving deprivation of liberty

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Document or Iniciative

Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [See amending act(s)].

Summary

This framework decision sets out the rules whereby judgements that impose custodial sentences or measures involving the deprivation of liberty delivered in one Member State are to be recognised and enforced in another Member State. The aim is to thus facilitate the social rehabilitation and reintegration of sentenced persons.

Member States must designate the competent authorities for issuing and executing judgements. The competent authority of the issuing state is responsible for forwarding the judgement accompanied by the certificate annexed to the framework decision directly to the competent authority of one executing state at a time and in a manner that leaves a written record.

When the sentenced person is located in the issuing or executing state and, under certain circumstances, has given his/her permission for forwarding the judgement, it may be transmitted to:

  • the Member State of which the sentenced person is a national and where s/he lives;
  • the Member State of which the sentenced person is a national and to which s/he could be deported following the judgement, even if this is not his/her place of residence;
  • any other Member State, provided that its competent authority agrees to the forwarding.

A judgement may be forwarded only once the issuing state has ensured that the enforcement of the sentence in the executing state would serve the purpose of facilitating the sentenced person’s social rehabilitation and reintegration. The latter may provide the issuing state with a reasoned opinion indicating that enforcement by it would not serve this purpose. The executing state, as well as the sentenced person, may also request the initiation of the procedure for forwarding judgements.

Upon receiving the forwarded judgement and certificate, the executing state must decide within a maximum of 90 days whether it will recognise the judgement and enforce the sentence.

The competent authority of the executing state has to recognise the judgment and take all necessary measures to enforce the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided in the framework decision. The non-recognition of the judgement and non-enforcement of the sentence is possible when the:

  • certificate is incomplete or does not correspond to the judgement;
  • criteria for forwarding the judgement and the certificate have not been fulfilled;
  • enforcement would contravene the ne bis in idem principle;
  • offence is not recognised as such under the law of the executing state, with certain exceptions;
  • enforcement is statute-barred under the law of the executing state;
  • law of the executing state provides for immunity;
  • sentenced person cannot be held liable under the law of the executing state due to his/her age;
  • remaining sentence is less than six months when the executing state receives the judgement;
  • sentenced person had not appeared in person at the trial where the judgement was passed, with certain exceptions;
  • issuing state rejects the request of the executing state to prosecute, sentence or otherwise deprive the liberty of the sentenced person for another offense committed before the transfer;
  • sentence requires for psychiatric or health care or for another measure involving the deprivation of liberty that the executing state cannot provide;
  • offence was committed on the territory of the executing state.

In case the certificate is incomplete or does not correspond to the judgement, the executing state may postpone its recognition.

The framework decision provides a list of offences that must be recognised and enforced without a double criminality check, if they result in a custodial sentence or a measure involving deprivation of liberty of a maximum of at least three years in the issuing state. For all other offences, the executing state may require that they constitute an offence also under its national law in order for them to be recognised and enforced. Where the duration or nature of the sentence is not compatible with the national law of the executing state, it may adapt the sentence. However, the adapted sentence must correspond as closely as possible to and in no case be harsher than the original sentence.

In line with the law of the issuing state, the consent of the sentenced person is required for the forwarding of a judgment and certificate to the executing state for recognition and enforcement of the sentence. However, this consent is not required when the executing state is the Member State:

  • of which the sentenced person is a national and where s/he lives;
  • to which the sentenced person is deported upon release, by reason of the order included in the judgement;
  • to which the sentenced person has fled or returned, while criminal proceedings against him/her are pending or following a conviction in the issuing state.

In any event, if the sentenced person is in the issuing state, s/he must be given the opportunity to provide an oral or written opinion.

When the sentenced person is located on the territory of the issuing state, s/he must be transferred to the territory of the executing state within a period of 30 days from the date when the latter has recognised the judgement.

Both the issuing and executing state may grant amnesty or pardon. However, only the issuing state may decide on the review of the judgement.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2008/909/JHA

5.12.2008

5.12.2011

OJ L 327 of 5.12.2008

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2009/299/JHA

28.3.2009

28.3.2011

OJ L 81 of 27.3.2009

Cooperation in criminal matters: protection of personal data

Cooperation in criminal matters: protection of personal data

Outline of the Community (European Union) legislation about Cooperation in criminal matters: protection of personal data

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Cooperation in criminal matters: protection of personal data

Document or Iniciative

Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters.

Summary

This framework decision aims to protect the fundamental rights and freedoms of natural persons when their personal data are processed for the purposes of preventing, investigating, detecting or prosecuting a criminal offence or of executing a criminal penalty. It concerns personal data that are processed in part or entirely by automatic means, as well as personal data forming part of a filing system that are processed by non-automatic means.

Data processing

The competent authorities of Member States may collect personal data only for specified, explicit and legitimate purposes. The processing of these data is permitted only for the purposes for which they were collected. Processing for other purposes is allowed only under certain circumstances or when certain appropriate safeguards are in place.

In principle, personal data that reveals a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership or concerns his/her health or sex life may not be processed. Their processing may be allowed only if it is absolutely necessary and if appropriate safeguards have been established.

Inaccurate personal data must be rectified and updated or completed if possible. Once the data are no longer needed for the purposes they were collected, they must be erased, made anonymous or, in certain cases, blocked. The need to store personal data must be reviewed regularly, with time limits set for their erasure.

The competent authorities of Member States must verify that the personal data to be transmitted or made available are accurate, up to date and complete. In order to be able to verify that the processing of data is lawful and to ensure the integrity and security of the data, their transmissions must be logged or documented.

Data transmission

Personal data received from another Member State are to be processed only for the purposes for which they were transmitted. In certain cases however, they may be processed for other purposes, for example for the prevention, investigation, detection or prosecution of other criminal offences, the execution of other criminal penalties or the prevention of threats to public security. The receiving Member State must respect any specific restrictions to the exchanges of data provided for in the law of the transmitting Member State.

Under certain circumstances, the receiving Member State may transfer personal data to third countries or to international bodies. To this end, the Member State that first made the data available must provide its consent. Only in urgent cases may data be transferred without a prior consent. Personal data may also be transferred to private parties in Member States for exclusive purposes, provided that the competent authority of the Member State from where the data was received has given its consent.

Rights of data subjects

The data subject is to be kept informed of any collection or processing of personal data relating to him/her. However, when data have been transmitted from one Member State to another, the first may demand that the second does not divulge any information to the subject.

The data subject may request to receive a confirmation on whether data concerning him/her have been transmitted, who the recipients are, what data are being processed, as well as a confirmation that the necessary verifications of that data have been made. In certain cases, Member States may restrict the subject’s access to information. Any decision restricting access must be given in writing to the data subject, together with the factual and legal reasons thereof. The data subject must also be given advice on his/her right to appeal such a decision.

The data subject may demand that personal data relating to him/her be rectified, erased or blocked. Any refusal to that end must be given in writing, along with information on the right to lodge a complaint or seek a judicial remedy.

Any person may demand compensation for the damages s/he has suffered due to an unlawful processing of personal data or any other act that is not compatible with this framework decision. In case a data subject’s rights are breeched, s/he has the right to a judicial remedy.

Safeguarding data processing

The competent authorities must take the necessary security measures to protect personal data against any unlawful form of processing. This includes accidental loss, alteration and unauthorised disclosure of, as well as access to, personal data. In particular, specific measures need to be taken with regard to the automated processing of data.

National supervisory authorities in Member States monitor and advise on the application of this framework decision. To that end, they are granted investigative powers, effective powers of intervention, as well as the power to pursue legal proceedings. For any infringements of the provisions of this framework decision, Member States must establish effective, proportionate and dissuasive penalties.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2008/977/JHA

19.1.2009

27.11.2010

OJ L 350 of 30.12.2008

Facilitating judicial cooperation in civil matters

Facilitating judicial cooperation in civil matters

Outline of the Community (European Union) legislation about Facilitating judicial cooperation in civil matters

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

Facilitating judicial cooperation in civil matters

Document or Iniciative

Council Regulation (EC) No 743/2002 of 25 April 2002 establishing a general Community framework of activities to facilitate the implementation of judicial cooperation in civil matters.

Summary

This regulation aims to establish a general framework for Community activities for the period from 1 January 2002 to 31 December 2006 to facilitate judicial cooperation in civil matters. The European Commission put forward a proposal on 6 April 2005 to establish for the period 2007-13 the specific “Civil justice” programme as part of the general “Fundamental Rights and Justice” programme (see “related acts”).

This regulation is not applicable in Denmark. The United Kingdom and Ireland, on the other hand, expressed their wish to participate in the adoption and application of this regulation (in accordance with the Protocols on the position of the United Kingdom and Ireland annexed to the EU and EC Treaties).

Providing grants, working towards the programme’s objectives

The programme’s objectives are to:

  • promote judicial cooperation in civil matters with a view to ensuring legal certainty and improving access to justice;
  • improve mutual knowledge of legal and judicial systems between European Union (EU) countries;
  • ensure the sound implementation and application of Community instruments in the area of judicial cooperation in civil matters;
  • improve information to the public on access to justice, judicial cooperation and the legal systems of EU countries.

As regards the activities supported, the general framework is to provide:

  • grants for co-financed projects that meet at least one of the objectives;
  • grants to cover the running costs of European non-governmental organisations;
  • funding for actions set up by the Commission of its own motion.

Providing grants for private and public institutions

This regulation provides for grants for the activities of non-governmental organisations and for specific projects submitted by institutions and public or private organisations.

Non-governmental organisations may be granted financial support if they meet specified criteria:

  • they must be non-profit-making organisations, established under the law of one of the EU countries;
  • they must pursue activities with a European dimension, involving, as a general rule, at least half of the EU countries;
  • they must pursue activities with a view to promoting judicial cooperation in civil matters.

Specific projects may be submitted by institutions and public or private organisations, including professional organisations, research institutes, etc. They must consist of training, exchanges and work experience placements, studies and research, meetings and seminars or dissemination of information.

Article 4 of the regulation provides for this general framework to be opened up to include the participation of the candidate countries of central and eastern Europe, Cyprus, Malta and Turkey, and other countries, subject to various conditions and if the relevant agreements and procedures permit. This article is no longer applicable to the ten new EU countries that joined the Union on 1 May 2004.

Ensuring implementation of the Community activity framework

To ensure implementation of the framework for activities, the Commission, if possible before 30 June each year, is to publish an annual work programme setting out the priorities in terms of objectives and types of activities for the following year.

The Commission is responsible for the evaluation and selection of projects, having regard to a series of priority criteria (the European dimension, ability to contribute to the objectives set, complementarity with other activities, etc.).

All financing decisions are subject to financial control by the Commission and to audits by the Court of Auditors. The proportion of financial support from the general budget of the EU should in principle not exceed 60% of the total cost of the actions undertaken. However, under exceptional circumstances, financial support may amount to 80%.

The Commission is to ensure the yearly publication of a list of recipients and actions financed to ensure transparency. Recipients are to report to the Commission on each action. The Commission may reduce, suspend or recover financial support granted for an activity if it detects irregularities.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 743/2002

1.5.2002

OJ L 115 of 1.5.2002

Related Acts

Decision No 1149/2007/EC of the European Parliament and of the Council of 25 September 2007 establishing for the period 2007-2013 the Specific Programme “Civil Justice” as part of the General Programme “Fundamental Rights and Justice” [Official Journal L 257 of 3.10.2007].

Report from the Commission to the European Parliament and the Council of 9 February 2005 on the implementation of the framework programme for judicial cooperation in civil matters (2002-2006) [COM(2005) 34 – Not published in the Official Journal].
This report documents the programme’s progress from its adoption in 2002 to 30 June 2004. The Commission’s actions, which aimed to inform legal practitioners and the general public of progress made in the field of cooperation in civil matters (e.g. the European Judicial Atlas in Civil Matters, the case-law database under the “Brussels I” and “Brussels II” and an information campaign aimed at legal practitioners), have been very well received. However, the 2002, 2003 and 2004 calls for proposals for specific civil-society projects attracted a limited amount of interest, probably owing to the available budget. 51 of the 106 proposals were accepted.

Taking account of convictions in Member States in the course of new criminal proceedings

Taking account of convictions in Member States in the course of new criminal proceedings

Outline of the Community (European Union) legislation about Taking account of convictions in Member States in the course of new criminal proceedings

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Taking account of convictions in Member States in the course of new criminal proceedings

Document or Iniciative

Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings.

Summary

This Framework Decision establishes the criteria whereby previous convictions * delivered by any Member State are taken into account during criminal proceedings in another Member State against the same person, but for different facts.

The information regarding previous convictions can be obtained under applicable instruments on mutual assistance in criminal matters between Member States or on the exchange of information extracted from the criminal record. In the context of new criminal proceedings, Member States must ensure that previous convictions handed down in another Member State are duly taken into consideration under the same conditions as the previous national convictions.

The previous convictions are to be taken into account at the pre-trial and trial stage, as well as when the conviction is executed. They should be given due consideration especially in relation to the applicable rules of procedure concerning:

  • provisional detention;
  • definition of the offence;
  • type and level of the sentence;
  • execution of the decision.

When previous convictions are taken into consideration by the Member State conducting the new proceedings, this shall not have the effect of interfering with, revoking or reviewing the previous convictions.

In instances where the previous conviction was not handed down or fully executed by another Member State prior to the commission of the offence for which the new proceedings are conducted, it is not required to comply with national rules on imposing sentences, if the application of the national rules to previous foreign convictions limits the judge in imposing a sentence. Nevertheless, the previous convictions must be taken into consideration by other means.

This Framework Decision replaces Article 56 of the European Convention of 28 May 1970 on the International Validity of Criminal Judgements as between the Member States. The Article provides for the possibility to take into consideration criminal judgements handed down in other states that are parties to the Convention.

Background

The programme of measures to implement the principle of mutual recognition of decisions in criminal matters was adopted by the Council on 29 November 2000. This programme also provides for the establishment of the principle by which a Member State must take into account previous criminal judgements rendered by the courts in other Member States, in order to assess the offender’s criminal record, establish whether s/he has reoffended and decide on the type of sentence and its execution.

Key terms used in the act
  • Conviction: any final decision of a criminal court establishing guilt of a criminal offence.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Council Framework Decision 2008/675/JHA

24.7.2008

15.8.2010

OJ L 220 of 15.8.2008

The law applicable to contractual obligations – The Rome I Regulation

The law applicable to contractual obligations – The Rome I Regulation

Outline of the Community (European Union) legislation about The law applicable to contractual obligations – The Rome I Regulation

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

The law applicable to contractual obligations – The Rome I Regulation

Document or Iniciative

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

Summary

This Regulation applies to contractual obligations in civil and commercial matters in the event of a conflict of laws. It does not apply to revenue, customs or administrative matters, or to evidence and procedure.

Nor does the Regulation apply to the obligations relating to the following:

  • a natural person’s status or legal capacity;
  • family relationships;
  • matrimonial property regimes;
  • negotiable instruments such as bills of exchange, cheques and promissory notes;
  • arbitration and choice of court;
  • law of companies and other corporate or unincorporated bodies;
  • the binding of a principal or a company to a third party;
  • trusts;
  • dealings that occur before a contract is concluded;
  • insurance contracts, except those defined in Article 2 of Directive 2002/83/EC concerning life assurance.

Any law indicated in this Regulation should be applied, even if it is not that of a Member State.

Freedom of choice

The parties to a contract are to choose the governing law. It may be applied to only a part or the whole of the contract. Provided that all the parties agree, the applicable law may be changed at any time. If the law chosen is that of a country other than that relating most closely to the contract, the provisions of the latter law need to be respected. If the contract relates to one or more Member States, the applicable law chosen, other than that of a Member State, must not contradict the provisions of Community law.

Applicable law in the absence of choice

Where the parties have not chosen the applicable law for contracts for the sale of goods, provision of services, franchises or distribution, it will be determined based on the country of residence of the principal actor carrying out the contract. For contracts concerning immovable property, the law of the country where the property is located is applied, except in the cases of temporary and private tenancy (maximum six consecutive months). In such cases the applicable law is that of the landlord’s country of residence. In the case of sale of goods by auction, the law of the country of the auction will apply. With regard to certain financial instruments governed by a single law, the applicable law will be that law.

If none, or more than one of the above rules apply to a contract, the applicable law will be determined based on the country of residence of the principal actor carrying out the contract. If, however, the contract is related more closely to another country than provided by these rules, the law of that country will be applied. The same applies when no applicable law can be determined.

Rules applicable to specific contracts

For the following types of contract, the Regulation lays down options for the selection of applicable law and determines the law to be applied in the absence of choice:

  • contracts for the carriage of goods – in the absence of choice, the applicable law will be that of the country of residence of the carrier, provided that this is also the place of receipt or delivery, or the residence of the consignor. Otherwise, the law of the country to which the delivery will be made will apply;
  • contracts for the carriage of passengers – the applicable law may be chosen from either the country of residence of the passenger or carrier, the country where the central administration of the carrier is located, or the country of departure or destination. In the absence of choice, the law of the country of residence of the passenger will apply, provided that it is also the place of departure or destination. Yet, if the contract is more closely related to another country, then the law of that country will apply;
  • consumer contracts between consumers and professionals – the applicable law is that of the country of residence of the consumer, provided that this is also the country where the professional carries out his/her activities or to which his/her activities are directed. The parties may also, based on freedom of choice, apply another law, as long as it provides the same level of protection to the consumer as that of his/her country of residence;
  • insurance contracts – in the absence of choice, the applicable law will be that of the country of residence of the insurer. However, if the contract is more closely related to another country, that country’s law will apply;
  • individual employment contracts – the applicable law may be determined on the basis of the freedom of choice principle, provided that the level of protection granted to the employee remains the same as with the applicable law in the absence of choice. In the latter case, the law governing the contract will be that of the country where, or from where, the employee carries out his/her tasks. If this cannot be determined, the applicable law will be that of the country where the place of business is located. However, if the contract is more closely related to another country, that country’s law will apply.

Scope of the law applicable

The law this Regulation determines as applicable to a contract will regulate interpretation, performance, penalties for breaching obligations, assessment of damages, termination of obligations, instructions for actions, and penalties for invalid contracts. The Community law that establishes conflict-of-law rules for contractual obligations relating to particular matters takes precedence over this Regulation, except in the case of insurance contracts.

The Commission will submit a report on the application of this Regulation to the European Parliament, the Council and the European Economic and Social Committee by 17 June 2013.

The Regulation will apply to contracts that are concluded as from 17 December 2009.

Background

The Vienna Action Plan of 1998 acknowledged the importance of harmonised conflict-of-law rules in the implementation of the mutual recognition principle for decisions in civil and commercial matters. The joint Commission and Council programme of 2000 provides measures for this harmonisation. The Hague Programme of 2004 reasserted the importance of pursuing work on conflict-of-law rules for contractual obligations, with its Action Plan providing for the adoption of the Rome I proposal. This ensuing Regulation replaces the Rome Convention of 1980 on the law applicable to contractual obligations, transforming it into a Community instrument and modernising it.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 593/2008

24.7.2008 OJ L 177 of 4.7.2008

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.

European e-Justice Strategy

European e-Justice Strategy

Outline of the Community (European Union) legislation about European e-Justice Strategy

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

European e-Justice Strategy

Document or Iniciative

Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 30 May 2008 – Towards a European e-Justice Strategy [COM(2008) 329 final – Not published in the Official Journal].

Summary

This Communication presents a strategy for e-Justice, which is to improve judicial cooperation on both the national and European levels. e-Justice refers to the judicial systems’ application of information and communication technologies (ICT) in their administrative procedures. It enhances these systems’ functional and financial effectiveness, the collaboration between legal authorities, as well as citizens’ access to justice. With this strategy, the Commission aims to encourage the operational priority projects, the decentralisation of the ICT architectures and the implementation of the existing legal instruments.

Several projects that improve the diffusion of information have already been established at national and European levels. To strengthen the exchange of best practices resulting from these projects, the Commission intends to create an e-Justice sub-group within the Justice Forum, which will enhance cooperation among national judicial systems as well as among legal professionals.

In order to also promote European Union (EU) judicial action, with a view to making it more understandable, accessible and efficient, the Commission intends to support Member States in developing appropriate tools. In addition, the Commission intends to develop electronic tools that aim to improve access to justice and collaboration among the relevant stakeholders, as well as to attain a higher level of system interoperability and economies of scale.

The EU’s priorities for action consist of providing citizens with easier access to judicial information and of boosting judicial cooperation. With regard to the first, the Commission will create an e-Justice portal, which will have a minimum of three functions:

  • giving access to information concerning judicial systems and procedures, as well as to practical information concerning the competent authorities and methods of obtaining legal aid;
  • referring users to the Internet sites of European legal institutions, networks and registers;
  • providing a direct access to selected European procedures; in the long-term the judicial procedures could be fully electronic.

5. For judicial cooperation, the Commission will develop electronic tools on the basis of the existing legal networks and Eurojust. Information and training on these tools will be developed in collaboration with the competent national and European training establishments, such as the European judicial training network. More specifically, to improve judicial cooperation, the Commission intends to:

  • continue the work on interconnecting the criminal records of Member States;
  • develop the existing instruments to create a secure network for judicial authorities to share and exchange information of confidential nature;
  • promote the use of videoconferencing in cross-border civil or criminal judicial proceedings by endorsing efforts made at national level, while coordinating at European level to ensure interoperability;
  • providing aid with regard to translation by developing automated translation tools, establishing a database of qualified legal translators and interpreters and creating standardised online forms for automatic translation.

A draft action plan that provides a timetable for the Commission’s priority actions is annexed to this Communication. The development of the e-Justice related projects will be covered by the Civil Justice and Criminal Justice financial programmes. The Commission will be responsible for coordinating the actions and for promoting the exchange of best practices among Member States.

Exchange of information between the law enforcement authorities of the Member States

Exchange of information between the law enforcement authorities of the Member States

Outline of the Community (European Union) legislation about Exchange of information between the law enforcement authorities of the Member States

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Exchange of information between the law enforcement authorities of the Member States

Document or Iniciative

Communication from the Commission to the Council and the European Parliament of 16 June 2004: Towards enhancing access to information by law enforcement agencies [COM(2004) 429 final – Not published in the Official Journal].

Summary

In this communication, the Commission proposes an approach aimed at improving free circulation of information between the law enforcement authorities of the Member States and the authority in charge of crime prevention. These authorities include the police forces, customs authorities, financial intelligence units, the judicial authorities and all the public bodies involved in the detection of security threats, conviction and punishment. The Commission’s proposals come in the wake of the declaration on combating terrorism of the European Council of 25 March 2004 and encompass legal, technical and organisational measures for combating terrorist threats and organised crime.

The Commission points out that there are two main obstacles to this free circulation of information. The first is that the information tends to be compartmentalised at both organisational and legal levels. For example, it is divided between different ministries and services and is intended for use in different procedures, thereby affecting the nature and sensitivity of the information that can be handled by the services. The second obstacle is the lack of a clear policy on information channels, resulting in disagreement on the choice of channel and on how to handle sensitive and confidential information.

The three main objectives proposed by the Commission are therefore the following:

  • to take stock and analyse the conditions needed to improve access to, and the use and exchange of, relevant information on law enforcement and crime prevention;
  • to introduce an EU intelligence-led police and judicial policy;
  • to maintain a strict balance between effective respect for citizens’ rights and an increase in state powers of obtaining and using information in order to ensure that the security level demanded by these citizens is maintained by democratic processes.

In order to achieve these objectives, the Commission points out that the policy on exchange of information between the law enforcement agencies must take into account several factors. Firstly, there must be common and concerted action by the national, European and international agencies. As well as security, respect for individual rights, human rights and fundamental freedoms must be ensured. Compatible information exchange systems protected against unlawful access are also needed, as are common standards for information storage, analysis and exchange between the relevant services.

The Commission calls on the Member States to implement an information policy aimed at:

  • making accessible necessary and relevant data for the law enforcement authorities and those responsible for preventing crime and terrorism;
  • promoting the production and use of EU criminal intelligence that is of high-quality in both strategic and operational terms;
  • building trust between the relevant services, in particular through personal data protection.

Access to data and information

The main aim of the information policy is to make the information needed for combating terrorism and organised crime accessible to all the EU law enforcement authorities who need this information in order to carry out their statutory tasks. To this end, the Commission proposes launching initiatives associated with conditions for access to information and with data collection and exchange.

The main obstacles to data sharing identified by the Commission are created by the lack of:

  • common standards for data processing and access;
  • compatible crime definitions and statistics;
  • culture of cooperation between the relevant authorities and between public- and private-sector players;
  • awareness of data protection rules.

The Commission proposes laying down transparent and straightforward conditions for access to data. Member States will be responsible for the implementation of these conditions. The Commission intends to launch studies on:

  • needs and restrictions in this area;
  • conditions of access;
  • data protection and security procedures.

The information policy introduces the principle of right of equivalent access to data. Once established, this principle would allow mutual exchange of data between the authorities and agencies in the Member States based on the standards and conditions applicable in the Member State in which the data are to be accessed.

This principle of equivalent access is underpinned by the following basic considerations:

  • the security of the Union and its citizens is a joint responsibility;
  • Member States depend on each other to enforce laws in order to combat terrorism and organised crime;
  • the law enforcement authorities in the various Member States fulfil similar tasks;
  • the law enforcement authorities act lawfully when accessing data.

In order to develop further the principle of equivalent access, the Commission proposes introducing minimum standards for the collection of data. It also plans to create a network of databases or a central database.

Lastly, the Commission wishes to promote research on security co-financed by the AGIS programme. In addition, a preparatory security research action for 2004-06 is aimed at launching a comprehensive European security research programme from 2007.

Enforcement of EU intelligence-led law

The second objective of the information policy is to establish measures aimed at developing intelligence-led law enforcement in the EU. The police and judicial authorities are to be encouraged to enhance cooperation through intelligence-led actions. The Commission intends to make the necessary information available to a criminal intelligence network and to format this information so that it can be used throughout the EU. The aim is to improve the security of the EU and its citizens while respecting individuals’ fundamental rights and the rule of law.

The Commission envisages a two-phased approach. In the first phase, it proposes that the Member States’ criminal intelligence services should meet on a monthly basis, under the aegis of Europol, to exchange intelligence and discuss their strategic assessments. In the second phase, these services could produce criminal intelligence using standardised analytical tools.

To this end, the Commission would like to involve Europol more closely and increase its importance. It also plans to call on the Chiefs of Police Task Force (CPTF) to set up a common curriculum for training intelligence officials of the European Police College (CEPOL).

Building of trust

The third objective of the information policy is to contribute to the building of trust between the authorities, officials and partners responsible for law enforcement in Europe by establishing a joint platform of shared values, standards and policies. Another aim of the information policy is to develop working relations between the Member States. The Commission plans to present more proposals in this area by the end of 2005.

Related Acts

Draft Framework Decision of 28 April 2004 on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of prevention, investigation, detection and prosecution of crime and criminal offences, including terrorism [JAI(2004) 8 – Not published in the Official Journal].
This draft framework decision is an initiative of France, Ireland, Sweden and the United Kingdom. It proposes retaining data processed or transmitted on public communications networks in order to prevent, detect and prosecute crimes and criminal offences, including organised crime and terrorism.

Communication from the Commission to the Council and the European Parliament of 16 December 2003: Transfer of Air Passenger Name Record (PNR) Data: A Global EU Approach [COM(2003) 826 final – Not published in the Official Journal].

This communication proposes better standards of protection for personal data transferred from the EU in the context of reinforced aviation and border security as part of the fight against terrorism.

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) [Official Journal L 201 of 31 July 2002].

Identification and confiscation of instrumentalities and proceeds from crime

Identification and confiscation of instrumentalities and proceeds from crime

Outline of the Community (European Union) legislation about Identification and confiscation of instrumentalities and proceeds from crime

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against organised crime

Identification and confiscation of instrumentalities and proceeds from crime

Document or Iniciative

Joint Action 98/699/JHA of 3 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds from crime [See amending act(s)].

Summary

To improve cooperation between European Union (EU) countries in the fight against organised crime, this joint action provides for the preparation, within the scope of operations of the European Judicial Network, of user-friendly guides on identifying, tracing, freezing or seizing and confiscating of instrumentalities and proceeds from crime. Each EU country must ensure that its guide is up-to-date and includes information on:

  • where to obtain assistance;
  • the assistance it is prepared to provide and the restrictions thereto;
  • the information a country requesting assistance must supply.

These guides are sent to the General Secretariat of the Council, which translates them and distributes them to the EU countries, the European Judicial Network and Europol.

EU countries must promote direct contacts through the existing cooperation arrangements between their investigators, investigating magistrates and prosecutors, with a view to ensuring that no unnecessary requests for assistance are made through formal channels.

To make a formal request for assistance, the requesting EU country must first identify the precise nature of the assistance it needs. The request for assistance must be properly prepared and meet the requirements that the requested EU country has set down for such requests. In case the request is labelled as “urgent”, the requesting country must provide the reasons thereof. If the requested country cannot execute the request for assistance in a way expected by the requesting country, it must consult the requesting country and attempt to execute the request in an alternative way.

EU countries must ensure that their judiciary is acquainted with best practice in international cooperation on the identification, tracing, freezing or seizing and confiscation of instrumentalities and proceeds from crime, as well as that all officials concerned with international cooperation in this area are provided with appropriate training.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Joint Action 98/699/JHA

9.12.1998

OJ L 333, 9.12.1998

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2001/500/JHA

5.7.2001

31.12.2002

OJ L 182, 5.7.2001

Successive amendments and corrections to Joint Action 98/699/JHA have been incorporated in the basic text. This consolidated versionis for reference purposes only.

Related Acts

Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property [Official Journal L 68 of 15.3.2005].
This framework decision supplements the arrangements provided for by Framework Decision 2001/500/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime. It requires each EU country to take the necessary measures to enable it to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences that are punishable by deprivation of liberty for more than one year, or property of a value corresponding to such proceeds.
In relation to tax offences, EU countries may use procedures other than criminal procedures to deprive the perpetrator of the proceeds of the offence. The aim of the framework decision is to ensure that all EU countries have effective rules governing the confiscation of proceeds from crime, especially in relation to the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime.

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.