Tag Archives: Judicial cooperation

Stepping up cross-border cooperation

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Stepping up cross-border cooperation

Outline of the Community (European Union) legislation about Stepping up cross-border cooperation

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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

Stepping up cross-border cooperation (Prüm Decision)

Document or Iniciative

Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime.

Summary

The purpose of this decision is to step up cross-border police and judicial cooperation between European Union (EU) countries in criminal matters. In particular, it aims to improve the exchanges of information between the authorities responsible for the prevention and investigation of criminal offences. The decision sets out provisions with regard to:

  • the automated access to DNA profiles *, dactyloscopic data * and certain national vehicle registration data;
  • supply of data in relation to major events;
  • supply of information in order to prevent terrorist offences;
  • other measures for stepping up cross-border police cooperation.

Establishment of national databases and automated access to data

EU countries are to establish national DNA analysis files for the purpose of investigating criminal offences. Reference data, consisting of the non-coding part of the DNA * and of a reference number that does not enable an individual to be identified, must be made available to other EU countries to carry out automated searches *. These searches are performed via national contact points by comparing DNA profiles, but only on the basis of individual cases and in a hit/no-hit * manner. If the search provides a match, the national contact point carrying out the search receives the reference data in an automated manner. If no profile is found for a particular individual who is under investigation or against whom criminal proceedings have been brought, the requested EU country may be obliged to establish a DNA profile for that individual.

EU countries must also make available reference data from the national automated fingerprint identification systems (AFIS). For this purpose, the reference data will consist only of dactyloscopic data and a reference number. The searches are carried out by comparing dactyloscopic data and, similarly to DNA searches, only in individual cases on a hit/no-hit basis. Confirmation of the match is conducted by the national contact point of the requesting EU country. Supply of further available personal data for matching DNA or dactyloscopic data and other information relating to the reference data is governed by national law, including the mutual legal assistance (MLA) in the requested EU country.

The national contact points shall also be given access to certain national vehicle registration data via automated online searches. These searches may only be conducted with a full chassis or registration number.

Supply of data in relation to major events

In relation to any major events that have a cross-border dimension, EU countries must provide each other non-personal data via their national contact points, as required for the purpose of preventing criminal offences and maintaining public order and security. Personal data may be supplied only if the data subjects are considered a threat to public order and security or if it is believed that they will commit criminal offences at the events. However, this data may only be used in relation to the event it was provided for and must be deleted once it has served its purpose, but no later than a year after it was supplied.

Supply of information to fight terrorism

For the purpose of preventing terrorist offences, but only in individual cases and to the extent required by the conditions leading to the supposition that criminal offences will be committed, EU countries may provide the following data to each other via the national contact points:

  • surname and first names;
  • date and place of birth;
  • description of the conditions leading to the supposition that criminal offences will be committed.

The country providing this data may impose certain binding conditions on the receiving country for the data usage.

Other measures for enhancing cross-border police cooperation

EU countries may effectuate joint patrols and other joint operations to prevent criminal offences and to maintain public order and security on a given EU country’s territory. In such cases, designated officers and officials from the seconding country participate in the hosting country’s operations. The seconding officers may be conferred executive powers, or they may be allowed to exercise their executive powers, but only under the guidance and in the presence of the host officers. The competent authority of the host country is responsible for the command and actions of the seconding officers.

With regard to mass gatherings and other comparable major events, disasters and serious accidents, EU countries are to provide mutual assistance to each other. This assistance should consist of information exchanges, coordination of police measures and contribution of material and physical resources.

An EU country must provide assistance and protection to the other country’s officers on duty, which is equivalent to that provided for its own officers.

Provisions on data protection

EU countries must guarantee that personal data processed according to this decision is protected by their national laws. Only the relevant competent authorities may process personal data. They must ensure the accuracy and current relevance of the data. Steps must be taken to rectify or delete incorrect data or data that was supplied when it should not have been. Personal data must be deleted if no longer needed for the purpose it was made available or if the storage time, as provided by national law, has expired.

The relevant authorities must take technical and organisational measures to protect personal data against destruction, loss, unauthorised access, alteration or disclosure. For the purpose of verifying the permissibility of the non-automated processing of personal data, this processing must be logged. Similarly, the automated processing of personal data must be recorded. The independent data protection authorities in EU countries are responsible for the legal examinations of the processing of personal data.

Any individual has the right to information on the data that has been processed in relation to his/her person, including information on the origin of the data, the recipients of the data and the purpose and legal basis for the processing of the data. The individual may request corrections to or the deletion of inaccurate or unlawfully processed data. If the individual’s rights with regard to data protection have been violated, he/she may lodge a complaint with an independent court or a tribunal and claim for damages or other legal compensation.

Background

The conclusions of the Tampere European Council of October 1999 asserted the need to enhance the exchange of law enforcement information between EU countries, which was further confirmed by the Hague Programme of November 2004.

The Prüm Treaty of 27 May 2005 on the stepping up of cross-border cooperation, particularly on combating terrorism, cross-border crime and illegal migration, signed between Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria, lays down procedures for more efficient exchanges of information in the framework of criminal investigations. This decision aims to incorporate the provisions of that Treaty into the EU legal framework.

Key terms used in the act
  • Dactyloscopic data: fingerprint images, images of fingerprint latents, palm prints, palm print latents and templates of such images that are stored and dealt with in an automated database.
  • Non-coding part of DNA: chromosome regions that are not expressed genetically.
  • DNA profile: a letter or number code that represents a set of identification characteristics of the non-coding part of an analysed human DNA sample.
  • Automated searching: an online access procedure for consulting the databases of one, several, or all of the EU countries.
  • Hit/no-hit procedure: in this procedure the parties grant each other limited access to the reference data in their national DNA and fingerprint databases and the right to use these data to conduct automated checks of fingerprints and DNA profiles. The personal information related to the reference data is not available to the requesting party.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2008/615/JHA

26.8.2008

26.8.2009
(26.8.2011 for Chapter 2 provisions)

OJ L 210 of 6.8.2008

Related Acts

Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime [Official Journal L 210 of 6.8.2008].

This decision provides the administrative and technical provisions that are indispensable for implementing Decision 2008/615/JHA. The focus is especially on the automated exchanges of DNA, dactyloscopic and vehicle registration data, as well as on other forms of cooperation. The technical provisions are set out in the annex to the decision.

Council Decision 2010/482/EU of 26 July 2010 on the conclusion of the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/516/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto [Official Journal L 238 of 9.9.2010].

Mutual recognition of pre-trial supervision measures

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Mutual recognition of pre-trial supervision measures

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

The Commission has put forward a series of initiatives to enhance the protection of fundamental rights in the European law-enforcement area. This Proposal for a Framework Decision aims to give non-resident European suspects having their abode in another Member State the right to return home under the supervision of their home State to be tried, instead of being held unnecessarily in custody or subject to long-term non-custodial supervision measures in the Member State where the alleged offence took place. This new legal instrument, applied by means of a European supervision order, aims to enable Member States mutually to recognise each other’s pre-trial supervision measures.

Proposal

Proposal for a Council Framework Decision of 29 August 2006 on the European supervision order in pre-trial procedures between Member States of the European Union [COM(2006) 468 final – Not published in the Official Journal].

Summary

On the basis of the principle of free movement of persons within an area of freedom, security and justice, the Commission proposes to establish a European supervision order.

This is a judicial order issued by a competent authority within a Member State returning a non-resident suspect to their Member State of residence, providing they comply with the supervision measures. The aim is to ensure the due course of justice and, in particular, to ensure that the person will be available to stand trial in the Member State issuing the European supervision order.

This Proposal for a Framework Decision is a part of the programme for mutual recognition in criminal matters. Certain aspects of such mutual recognition, such as pre-trial supervision measures, had yet to be addressed in the programme. The Commission estimates that this measure should concern some 8 000 people.

There are three players involved in this Proposal:

  • an “issuing authority”, i.e. a court, a judge, an investigating judge or a public prosecutor, having jurisdiction under national law to issue a European supervision order;
  • an “executing authority”, i.e. a court, a judge, an investigating judge or a public prosecutor, having jurisdiction under national law to execute a European supervision order;
  • a suspect who is not a resident of the Member State in which the order is issued.

Risk of discrimination

Pre-trial supervision measures are not harmonised at Community level. There is currently a risk of different treatment between suspects who are resident in the trial State and those who are not. Such unequal treatment between the two categories – residents and foreigners – is seen by the Council as an obstacle to the free movement of persons within the European Union (EU).

Suspects are generally placed in pre-trial custody due to a lack of social links in the country in which they are arrested. Courts issuing these orders consider that the risk of flight, re-offending and suppression of evidence is greater for these persons.

Apart from the issues surrounding the persons detained, it should be remembered that keeping persons in pre-trial custody also has a significant cost implication for the public authorities involved. It also contributes greatly to prison overcrowding.

Scope

This Proposal for a Framework Decision aims to implement a European supervision order. Its objective is to enable suspects to benefit from pre-trial supervision measures in their place of residence; this entails mutual recognition of supervision measures.

Although the suspect may request that a European supervision order be issued, this is not a right in itself. The Commission does not intend to oblige legal authorities to issue European supervision orders, but merely gives them that possibility.

The European supervision order is not merely an alternative to pre-trial custody. It may also be issued in relation to an offence for which only less severe coercive measures (e.g. travel prohibition) than pre-trial detention are allowed, i.e. where the threshold may be lower than for remand in custody.

The Proposal also provides a last resort option of forced repatriation to the trial State of any suspect refusing to cooperate. Before such a decision is taken, the suspect has the right to be heard by the issuing authority, by means of a video link between the two Member States concerned.

Consultation and impact assessment

Following the consultation procedure preceding the adoption of a legal instrument for judicial cooperation in criminal matters, the Commission drafted a Green Paper on mutual recognition of non-custodial pre-trial supervision measures.

An impact analysis on the added value of such an initiative shows that this procedure would extend the right to liberty and the presumption of innocence throughout the EU and would reduce the costs relating to custody.

Based on this consultation procedure and notably the impact analysis, the Commission adopted the proposal for a decision of the Council on 13 December 2006.

References And Procedure

Proposal Official Journal Procedure
COM(2006) 468 – Consultation CNS/2006/0158

 

Jurisdiction in criminal proceedings: prevention and settlement of conflicts

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Jurisdiction in criminal proceedings: prevention and settlement of conflicts

Outline of the Community (European Union) legislation about Jurisdiction in criminal proceedings: prevention and settlement of conflicts

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

Jurisdiction in criminal proceedings: prevention and settlement of conflicts

Document or Iniciative

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

Summary

This framework decision aims to enhance judicial cooperation between European Union (EU) countries, in order to prevent unnecessary parallel criminal proceedings concerning the same facts and the same person.

The framework decision lays out the procedure whereby competent national authorities shall contact each other when they have reasonable grounds to believe that parallel proceedings are being conducted in another EU country. It also establishes the framework for these authorities to enter into direct consultations when parallel proceedings exist, in order to find a solution aimed at avoiding the negative consequences arising from these proceedings.

Exchange of information

If the competent authority of an EU country has reasonable grounds to believe that parallel proceedings are being conducted in another EU country, it must seek confirmation on the existence of such parallel proceedings from the competent authority of that country. The contacted authority must reply without undue delay or within the deadline set by the contacting authority.

With its request, the contacting authority must submit at least the following information:

  • contact details of the competent authority;
  • a description of the facts and circumstances concerning the criminal proceedings;
  • all relevant details about the suspected or accused person and possible victims;
  • the stage of the criminal proceedings;
  • where applicable, information concerning provisional detention or custody of the suspected or accused person.

In its response, the contacted authority must indicate whether criminal proceedings are or have been conducted in its country concerning some or all of the same facts and the same persons as those in the criminal proceedings in the country of the contacting authority. If this is the case, the contacted authority must also provide its contact details as well as the stage of the proceedings or the nature of the final decision.

Direct consultations

If parallel proceedings exist, the relevant authorities shall enter into direct consultations in order to find a solution aimed at avoiding the negative consequences arising from these proceedings. This may lead to the concentration of the proceedings in one EU country.

When the relevant authorities enter into direct consultations they must take into consideration all the facts and merits of the case and all other relevant factors. If no solution is found, the case shall be referred to Eurojust if appropriate and provided that it falls under its competence.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2009/948/JHA

15.12.2009

15.6.2012

OJ L 328 of 15.12.2009

Agreement with Japan on mutual legal assistance

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Agreement with Japan on mutual legal assistance

Outline of the Community (European Union) legislation about Agreement with Japan on mutual legal assistance

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

External relations > Relations with third countries > Asia

Agreement with Japan on mutual legal assistance

Document or Iniciative

Council Decision 2010/616/EU of 7 October 2010 on the conclusion of the Agreement between the European Union and Japan on mutual legal assistance in criminal matters.

Summary

The European Union (EU) and Japan negotiated an agreement on mutual legal assistance in criminal matters with a view to establishing more effective cooperation in this field. The agreement, which entered into force on 2 January 2011, is the first “self-standing” mutual legal assistance agreement between the EU and a non-EU country. So far, no individual EU country has concluded such an agreement with Japan.

The agreement applies to the requesting and provision of mutual legal assistance in relation to investigations, prosecutions and other proceedings in criminal matters. It does not apply to extradition, transfer of proceedings in criminal matters and enforcement of sentences, apart from confiscation.

The legal assistance consists of:

  • taking testimonies, including by videoconference;
  • searching and seizing items;
  • obtaining information on bank accounts;
  • examining and locating or identifying persons, items or places;
  • providing items held by the authorities;
  • serving documents;
  • transferring persons in custody for the purpose of testimony;
  • freezing or seizing and confiscating proceeds.

Each EU country and Japan must designate a central authority with responsibility for sending, receiving and responding to requests for assistance. These authorities are also responsible for executing the requests or for transmitting the requests to the authorities with jurisdiction to execute them.

Requests for assistance

The country making a request for assistance must do so in writing. In urgent cases, the request may be made by other reliable means of communication. Requests for assistance must contain certain specific information as set out in the agreement. The requested country may ask for additional information if necessary for executing the request for assistance. The request, together with any other documents, must be accompanied by a translation in the official language of the requested country or in another language as agreed by that country.

Execution of requests

The requested country must execute the request for assistance as swiftly as possible and in accordance with its national law. It may postpone the execution of a request, or make execution subject to specific conditions, if it could interfere with an ongoing investigation, prosecution or other proceeding. The requested country must transmit the result of the execution, together with any testimonies or items obtained, to the requesting country. If it cannot execute a request in whole or in part, it must provide the requesting country with the reasons thereof. Under certain conditions, the requested country may refuse to provide assistance, for example if the request concerns an offence that is punishable by death under the law of the requesting country. When refusing assistance, the requested country must provide the reasons thereof.

Testimonies and statements

The requesting country may only use testimonies, statements, items or information in the investigations, prosecutions or other proceedings for which they were requested. The requested country may impose provisions of confidentiality or other conditions to the use of these data. It may also impose conditions to the transport, maintenance and return of items requested.

To take testimonies or statements, the requested country may use coercive measures if necessary and provided that this is justifiable under its national law. In cases where the person concerned is to be heard as a witness in proceedings of the requesting country, the requested country may allow its competent authorities to take the testimony or statement by videoconference.

Persons, items and places

If necessary and justifiable under its national law, the requested country may use coercive measures to obtain items and to examine persons, items or places.

The requested country must provide the requesting country with records, documents or reports related to the bank accounts of the person under investigation, to the extent that the bank in question possesses the information.

The requested country must provide the requesting country with any publicly available items that its legislative, administrative or judicial authorities possess. It should also provide any non-public items, such as criminal records, that these authorities possess, to the extent and under the same conditions as they are available to its investigative and prosecuting authorities.

The requested country must serve documents and summons to persons requested to appear before the competent authorities of the requesting country. If the presence of a person in custody is requested for testimony, the requested country may temporarily transfer that person to the requesting country. However, the person to be transferred must first give his/her consent and the transfer must be permitted under the law of the requested country.

Confiscation of proceeds

The requested country should assist the requesting country in proceedings related to the freezing or seizure and confiscation of proceeds of crime, as far as it is permitted by its national law. The requesting country must provide the decision of a court or other judicial authority that imposes the confiscation together with its request. If the proceeds are in the custody of the requested country, it may transfer them in whole or in part to the requesting country.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2010/616/EU

7.10.2010

–

OJ L 271 of 15.10.2010

Criminal Justice specific programme

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Criminal Justice specific programme

Outline of the Community (European Union) legislation about Criminal Justice specific programme

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

Criminal Justice specific programme (2007-13)

Document or Iniciative

Council Decision 2007/126/JHA of 12 February 2007 establishing for the period 2007 to 2013, as part of the General Programme on Fundamental Rights and Justice, the Specific Programme Criminal Justice.

Summary

This decision establishes the specific programme Criminal Justice. This programme is one of the five specific programmes that make up the Fundamental Rights and Justice general programme, developed with the aim of creating an area of freedom, security and justice within the European Union (EU).

This Criminal Justice programme covers the period from 1 January 2007 to 31 December 2013.

General objectives

The Criminal Justice programme is aimed at creating a European area of justice. It has four main objectives, including:

  • promoting judicial cooperation in criminal matters;
  • bringing the judicial systems of EU countries closer together and to that of the EU;
  • enhancing contacts and the exchange of information and best practices between legal, judicial and administrative authorities and the legal professions and promoting the training of the members of the judiciary;
  • further improving mutual trust between the judicial authorities.

Specific objectives

More precisely, the Criminal Justice programme seeks to foster judicial cooperation in criminal matters, with the aim of:

  • promoting mutual recognition of judicial decisions;
  • approximating the judicial systems of EU countries in criminal matters, in particular with regard to serious cross-border crime;
  • establishing minimum standards concerning aspects of procedural criminal law;
  • avoiding conflicts of jurisdiction;
  • improving the exchange of information, for example, through a computerised system for exchanging information on national criminal records;
  • promoting the protection of individuals involved in criminal proceedings and assistance to victims;
  • strengthening EU countries cooperation with Eurojust;
  • promoting measures aimed at re-socialising offenders.

The programme also aims to achieve the following specific objectives:

  • to improve mutual knowledge of EU countries’ legal and judicial systems and to strengthen networking, cooperation and the exchange of information and best practices;
  • to ensure the sound implementation and evaluation of EU action in the area of judicial cooperation in criminal matters;
  • to better inform the public about legal systems in EU countries and about access to justice;
  • to promote training in European law for those involved in the work of the judiciary;
  • to improve mutual understanding between EU countries to pave the way for mutual trust;
  • to implement a computerised system for the exchange of information on criminal records and to examine the possibility of establishing other types of exchanges of information.

Eligible actions

The Criminal Justice programme supports various initiatives, including:

  • actions taken by the Commission, such as research, the implementation of specific projects, the formulation of indicators and methodologies, the development of networks of national experts and the dissemination of information;
  • transnational projects presented by several EU countries working together (at least two EU countries or at least one EU country and one other country that may either be an acceding or a candidate country);
  • the activities of non-governmental organisations (NGOs) or other entities pursuing aims of general European interest;
  • expenditure of the European Judicial Training Network, which may obtain an operating grant as part of this programme;
  • EU countries’ national projects, individually, may be supported under this programme, subject to certain conditions.

Target groups

The programme is targeted in particular at those involved in the work of the judiciary, national authorities and the citizens of the Union in general.

The programme is open to both public and private organisations, including professional organisations, universities, research and training institutes, legal practitioners and NGOs. It is also open to organisations that are profit oriented, but subject to certain conditions.

Non-EU countries and international organisations may participate in transnational projects only as partners.

Types of EU funding

There are two types of EU funding provided under the programme, including:

  • grants, which are normally awarded following calls for proposals, through operating grants and grants to actions. The annual work programme must specify the minimum rate of annual expenditure to be awarded to grants, which shall be at least 65 %. It must also specify the maximum rate of co-financing of projects;
  • public procurement contracts are foreseen for accompanying measures, such as the purchase of goods and services, particularly expenditure on information and communications, the implementation and monitoring of projects, policies, programmes and legislation.

Implementing measures

The Commission implements the financial support in accordance with the Financial Regulation applicable to the general budget of the EU. It also adopts an annual work programme specifying the specific objectives, thematic priorities and the accompanying measures that are funded through public procurement contracts.

The evaluation and award procedures take several criteria into account, including:

  • conformity with the annual work programme, the four general objectives, the specific objectives and the eligible actions;
  • quality of the action;
  • amount of EU financing requested;
  • relationship between the expected results and the general objectives, specific objectives and eligible actions.

The award of operating grants to actions taken by NGOs or by the European Judicial Training Network is also subject to certain criteria.

Coordination with other programmes

Synergies should be created with other programmes, including the:

  • Civil Justice specific programme, which, like the Criminal Justice programme, is also part of the general programme on Fundamental Rights and Justice;
  • general programme on Security and Safeguarding Liberties;
  • general programme on Solidarity and the Management of Migration Flows;
  • EU statistical programme.

Monitoring and evaluation

To allow the Commission to monitor any action financed by the programme, the beneficiary of the funding must:

  • submit technical and financial reports on the progress of the work and a final report within three months of completion of the action funded;
  • keep available for the Commission all the supporting documents regarding expenditure for a period of five years following the last payment in respect of the action taken.

For its part, the Commission will:

  • carry out supervision and financial control of actions resulting from this programme, in particular by on-the-spot checks. The Court of Auditors may also carry out audits in order to ensure the proper implementation of expenditure;
  • ensure that, if necessary, the scale or conditions of allocation of the financial assistance and timetable for payments are adjusted;
  • ensure that every other necessary step be taken to verify that the actions are properly carried out.

The Commission must apply measures to prevent fraud, corruption and any other illegal activities. It will carry out checks, recover amounts unduly paid and apply penalties in the event of irregularities.

The Commission will ensure the regular, independent and external monitoring and evaluation of the programme. It will annually publish a list of actions financed under the programme.

References

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

Decision 2007/126/JHA

24.2.2007

–

OJ L 58, 24.2.2007

Insolvency proceedings

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Insolvency proceedings

Outline of the Community (European Union) legislation about Insolvency proceedings

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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

Insolvency proceedings

Document or Iniciative

Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.

Summary

This regulation establishes a common framework for insolvency proceedings in the European Union (EU). The purpose of harmonised arrangements regarding insolvency proceedings is to avoid assets or judicial proceedings from being transferred from one EU country to another in order to obtain a more favourable legal position to the detriment of creditors (“forum shopping”).

It should be noted that one quarter of cases of insolvency in the EU are associated with late payments.

Avoiding the transfer of assets or judicial proceedings from one EU country to another

Cases of insolvency with cross-border implications affect the proper functioning of the internal market. With a view to developing more uniform procedures that will discourage the parties from transferring assets or judicial proceedings from one EU country to another in order to obtain a more favourable legal position, the proposed solutions rely on the principle of proceedings with universal scope. At the same time, they retain the possibility of opening secondary proceedings within the territory of the EU country concerned.

The regulation applies to “collective insolvency proceedings that entail the partial or total divestment of a debtor and the appointment of a liquidator”. It applies equally to all proceedings, whether the debtor is a natural or a legal person, a trader, or an individual. A “liquidator” is a person or body that administers or liquidates the assets of which the debtor has been divested or supervises the administration of his/her affairs. Annex C of the regulation lists the persons or bodies who are authorised to exercise this function in each EU country.

However, the regulation does not apply to insolvency proceedings concerning:

  • insurance undertakings;
  • credit institutions;
  • investment undertakings that provide services involving the holding of funds or securities for third parties;
  • collective investment undertakings.

Determining the courts with jurisdiction and the applicable law

The regulation defines the concept of “court” as a judicial or other competent body that is authorised in national law to open proceedings. The courts with jurisdiction to open the main proceedings are those of the EU country where the debtor has his/her centre of main interests. This should be the place where the debtor usually administers his/her interests and that is verifiable by third parties. In the case of a company or legal person, this is the place of the registered office, in the absence of proof to the contrary. In the case of a natural person, in principle it is the place where his/her work is domiciled or the place of his/her usual residence.

Secondary proceedings (listed in Annex B) may be opened subsequently in another EU country if the debtor has an establishment in its territory. “Establishment” means any place of operations where the debtor carries out a non-transitory economic activity with human resources and goods. The effects of the winding-up proceedings must be limited to the assets of the debtor located in that territory. The opening of such proceedings may be requested by the liquidator of the main proceedings or by other persons or authorities according to the law of the country in which the opening of the proceedings is requested. In some cases, such territorial proceedings may be opened independently before the main proceedings, if the local creditors and the creditors of the local establishment request it or where main proceedings cannot be opened under the law of the EU country where the debtor has his/her centre of interests. However, these proceedings will become secondary proceedings once the main proceedings are opened.

The law of the EU country in which insolvency proceedings are opened determines all the terms of those proceedings: the conditions for their opening, conduct and closure. It also determines practical rules such as the definition of debtors and assets, the respective powers of the debtor and the liquidator, the effects of proceedings on contracts, individual creditors, claims, etc.

There are provisions throughout the EU guaranteeing the rights in rem of third parties, the right of a creditor to demand a set-off and the right of a seller based on reservation of title, such that these rights are not affected by the opening of the proceedings. Rights to immovable property are governed solely by the law of the EU country where the property is situated. Similarly, employment contracts and relationships, as well as the rights and obligations of parties to a payment or settlement system or to a financial market are governed solely by the law of the EU country that is applicable to them (for further details, see the directive on settlement finality in payment and securities settlement systems).

Recognition of insolvency proceedings

Decisions by the court with jurisdiction for the main proceedings are to be recognised immediately in other EU countries without further scrutiny, except:

  • where the effects of such recognition would be contrary to the country’s public policy;
  • in the case of judgments that might result in a limitation of personal freedom or postal secrecy.

However, restrictions on creditors’ rights (a stay or discharge) are possible only if they have given their consent.

If a court of an EU country decides to open insolvency proceedings, the decision is to be recognised in all other EU countries, even if the debtor could not be the subject of such proceedings in the other countries. The effects of the decision are those provided for by the law of the country in which proceedings are opened and they come to an end in the event of secondary proceedings being opened in another EU country.

The liquidator appointed by a court with jurisdiction may act in the other EU countries in accordance with his powers provided for by the law of the EU country where the proceedings are opened, but respecting the law of the country on whose territory s/he is acting. In particular, s/he may have the debtor’s assets removed and may bring any action to set aside that is in the interests of the creditors if assets were removed from the country of the main proceedings after the opening of the proceedings, subject to rights in rem of third parties or reservation of title.

A creditor domiciled in the EU who obtains total or partial satisfaction of his/her claim on the assets belonging to the debtor must return what s/he has obtained to the liquidator (subject to rights in rem or reservation of title). A consolidated account of dividends for the Union is drawn up to ensure that creditors receive equivalent dividends.

Publication measures may be taken in any other EU country at the request of the liquidator (publication of the decision opening the insolvency proceedings and/or registration in a public register). Publication may be mandatory, but in any event it is not a prior condition for recognition of the foreign proceedings.

If a person concerned is not aware of the opening of proceedings, s/he may be considered to act in good faith when making a payment to the debtor instead of the liquidator in another EU country. If such a payment is made before publication of the decision opening the proceedings, the person concerned is considered to have been unaware of the opening of proceedings. On the other hand, if a payment is made after publication of the decision, the person concerned is assumed to have been aware unless there is proof to the contrary.

Limitation of the applicability of the regulation

The regulation does not apply to:

  • Denmark;
  • any EU country where it is irreconcilable with obligations in respect of winding-up resulting from a convention concluded prior to its entry into force by this country and one or more third countries;
  • the United Kingdom, to the extent that it is irreconcilable with existing arrangements with the Commonwealth.

The regulation applies to insolvency proceedings opened after its entry into force on 31 May 2002. It replaces existing bilateral and multilateral conventions between two or more EU countries.

Background

The winding-up of insolvent companies, compositions and analogous proceedings are excluded from the scope of the 1968 Brussels Convention. Work has been carried out at various levels since 1963 with a view to formulating a Community instrument in the field. A convention on insolvency proceedings was concluded on 23 November 1995. However, this convention could not enter into force because one EU country failed to sign it within the time limit.

The Amsterdam Treaty, signed on 2 October 1997, lays down new provisions for judicial cooperation in civil matters. It was on this basis that this regulation on insolvency proceedings was adopted.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 1346/2000

31.5.2002

–

OJ L 160 of 30.6.2000

Successive amendments and corrections to Regulation (EC) No 1346/2000 have been incorporated in the basic text. This consolidated versionis for reference purposes only.

European Judicial Network in civil and commercial matters

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European Judicial Network in civil and commercial matters

Outline of the Community (European Union) legislation about European Judicial Network in civil and commercial 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

European Judicial Network in civil and commercial matters

Document or Iniciative

Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters [See amending act(s)].

Summary

The gradual establishment of an area of freedom, security and justice, as well as the sound operation of the internal market, entails the need to improve, simplify and expedite effective judicial cooperation between Member States in civil and commercial matters.

This decision is intended to implement that objective, the importance of which was recognised in the December 1998 action plan of the Council and the Commission as well as by the European Council held at Tampere in October 1999, by the establishment of a European Judicial Network in civil and commercial matters.

The European Judicial Network in civil and commercial matters comprises:

  • central contact points designated by Member States and, if appropriate, a limited number of additional contact points;
  • liaison magistrates and other authorities (having responsibility in the field of judicial cooperation in civil and commercial matters), whose membership of the Network is considered useful by Member States;
  • professional associations that represent legal practitioners participating in the application of Community and international civil justice instruments.

In this decision, the term “Member State” means all Member States other than Denmark.

Informing Member States and their citizens about civil and commercial matters

The Network has two specific tasks:

  • to facilitate judicial cooperation between Member States in civil and commercial matters by setting up an information system for members of the Network;
  • to facilitate access to justice by providing information on Community and international judicial cooperation instruments.

The Network also helps to:

  • smooth procedures that have cross-border implications;
  • facilitate requests for cooperation between Member States, especially when no Community act or international instrument is applicable;
  • apply Community acts or conventions in force between Member States.

Meeting network requirements: contact points

The contact points play a key role in the Network, they provide general information on Community and international instruments as well as information needed for cooperation and for applying the law of the Member State that is applicable, facilitate the processing of requests for judicial cooperation, seek solutions to any difficulties that arise, and coordinate cooperation between national members.

The contact points respond to requests for judicial cooperation within a set time limit (within 15 days of receipt, unless extended) by using the technological facilities provided by Member States. The Commission keeps a register of the requests and replies of contact points.

The contact points meet at least once every six months to exchange information and experiences, to identify problems and best practices, and to determine parameters for the information system.

Regardless of Denmark not being subject to the application of this decision, it may be represented at Network meetings. In addition, accession and candidate countries as well as certain third countries may send a maximum of three representatives each to participate as observers at these meetings.

Outside the meetings, the contact points can exchange information via a secure limited-access system set up by the Commission.

The Network is to liaise with similar networks and international organisations, such as the European Judicial Network in criminal matters, the European Judicial Training Network, the European Consumers Centres Network (ECC-Net), as well as judicial cooperation networks set up between third countries and with international organisations.

Providing information to the public

An internet-based information system gives access to information concerning judicial measures in force, case law, Member States legal and judicial systems, and cooperation in civil and commercial matters. The system also contains practical information sheets for the public.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2001/470/EC

1.12.2002

–

OJ L 174 of 27.6.2001
Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Decision No 568/2009/EC

11.1.2011

–

OJ L 168 of 30.6.2009

Successive amendments and corrections to Council Decision 2001/470/EC have been incorporated in the basic text. This consolidated versionis for reference purpose only.

Related Acts

Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 16 May 2006 on the application of Council Decision 2001/470/EC establishing a European Judicial Network in civil and commercial matters [COM(2006) 203 final – Not published in the Official Journal].

This report was drawn up by the Commission in accordance with Article 19 of the decision referred to above. It summarises the current characteristics and workings of the Network. The Commission believes that the Network has generally satisfied expectations, but recognises that it still has tremendous potential for development. The Network must be given the resources it needs if it is to fulfil that potential. The Commission would accordingly like:

  • all the main contact points in Member States to be able to devote their time entirely to the network, and Member States to grant them the necessary prerogatives and resources;
  • greater efforts to be made to complete the development of the Network’s website in terms of content and languages;
  • work to continue on practical guides, information initiatives and other activities regarding the discussion of concrete examples;
  • contact points gradually to become accessible to the public by using on-line communication techniques.

Judicial cooperation in criminal matters

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Judicial cooperation in criminal matters

Outline of the Community (European Union) legislation about Judicial cooperation in criminal 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 criminal matters

Judicial cooperation in criminal matters

Combating crime involves strengthening dialogue and action between the criminal justice authorities of Member States. Consequently, the European Union (EU) has established specific bodies to facilitate mutual assistance. In particular, Eurojust and the European Judicial Network support cooperation between judicial authorities.
Judicial cooperation in criminal matters is based on the principle of mutual recognition of judgements and judicial decisions by Member States. It involves the approximation of related national laws and the application of common minimum rules. The minimum rules mainly relate to the admissibility of evidence and the rights of crime victims as well as of individuals in criminal procedures.
Introduced by the Maastricht Treaty in 1993, judicial cooperation in criminal matters comes under Title V of the Treaty on the Functioning of the European Union.

GENERAL FRAMEWORK

  • The Stockholm Programme
  • Action plan on the Stockholm Programme
  • The Hague Programme: 10 priorities for the next five years
  • Standing Committee on operational cooperation on internal security
  • Rights of victims of crime (Proposal)
  • Right of access to a lawyer (Proposal)
  • Compensation to crime victims
  • Exchange of information from criminal records
  • Cooperation in criminal matters: protection of personal data
  • Standing of victims in criminal proceedings
  • Mutual assistance in criminal matters between Member States
  • Convention on extradition between Member States
  • Simplified extradition procedure between Member States
  • Cooperation of individuals to combat organised crime
  • European e-Justice Strategy
  • European Case Law Identifier
  • Justice Forum
  • The rights of crime victims
  • Plan d’action statistique 2011-2015 pour l’évaluation de la criminalité
    (FR)
  • Developing a comprehensive EU strategy to measure crime and criminal justice
  • The external dimension of the area of freedom, security and justice
  • Jurisdiction in criminal matters: first and third pillar
  • Green Paper on criminal proceedings
  • Agreement with the United States on extradition
  • Agreement with the United States on mutual legal assistance
  • Agreement with Japan on mutual legal assistance

Eurojust

  • Decision establishing Eurojust
  • Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

European network of points of contact

  • European Judicial Network
  • A new dimension for European judicial training
  • Judicial training in the European Union
  • Framework for the exchange of liaison magistrates

Action programmes

  • Criminal Justice specific programme (2007-13)
  • Specific programme: Preventing and combating crime (2007-2013)
  • Framework programme concerning police and judicial cooperation in criminal matters (AGIS)
  • Grotius II – Criminal
  • Grotius

MUTUAL RECOGNITION

  • European protection order
  • The right to interpretation and translation in criminal proceedings
  • Jurisdiction in criminal proceedings: prevention and settlement of conflicts
  • Mutual recognition of supervision measures
  • Mutual recognition of pre-trial supervision measures
  • European evidence warrant (EEW)
  • Green Paper on mutual recognition of non-custodial pre-trial supervision measures
  • Supervision of sentenced persons or persons on conditional release
  • Mutual recognition of custodial sentences and measures involving deprivation of liberty
  • Taking account of convictions in Member States in the course of new criminal proceedings
  • Recognition and execution of confiscation orders
  • Mutual recognition of financial penalties
  • Execution of orders freezing property or evidence
  • European arrest warrant
  • Agreement on the surrender procedure between the EU Member States, Iceland and Norway
  • Convention on Driving Disqualifications
  • Criminal convictions: disqualifications
  • Recognition of decisions in criminal matters: strengthening mutual trust
  • Green Paper on the presumption of innocence
  • Criminal proceedings: conflicts of jurisdiction and the ne bis in idem principle (Green Paper)

WAR CRIMES

  • Genocide, crimes against humanity and war crimes: criminal investigation and prosecution
  • Network of contact points in respect of persons responsible for genocide and crimes against humanity
  • European and international courts

Maintenance obligations

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Maintenance obligations

Outline of the Community (European Union) legislation about Maintenance obligations

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

Maintenance obligations

Document or Iniciative

Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

Summary

This Regulation provides a series of measures aimed at facilitating the payment of maintenance claims in cross-border situations. Such claims arise from the obligation to help family members in need. For example, they may take the form of maintenance paid to a child or to a former spouse following divorce.

The Regulation applies to maintenance obligations arising from:

  • a family relationship;
  • parentage;
  • marriage or affinity.

Jurisdiction

In matters relating to maintenance obligations, jurisdiction shall lie with:

  • the court of the place where the defendant or the creditor is habitually resident; or
  • the court which has jurisdiction to entertain proceedings regarding the status of a person (a divorce for example) or parental responsibility, if the matter concerning maintenance is related thereto (provided that jurisdiction is not based solely on the nationality of one of the parties).

Unless the dispute relates to a maintenance obligation towards a child under the age of 18, the parties may, subject to certain conditions, agree on the court or courts of a Member State which have jurisdiction to settle it.

Where the defendant makes an appearance before a court of a Member State, that court shall have jurisdiction, unless the defendant contests the jurisdiction.

If none of the conditions cited above is fulfilled, the dispute may, subject to certain conditions, be brought before the courts of a Member State of which both parties are nationals.

Failing this, if the proceedings cannot be brought in a country outside the EU with which the dispute is closely connected, the matter may be brought before the court of a Member State with which the case has sufficient connection.

As long as the creditor continues to reside in the Member State which gave the decision on maintenance obligations, the debtor may not, subject to exceptions, bring proceedings to modify the decision in another Member State. The creditor may nevertheless agree that the dispute is decided by another court.

If proceedings concerning the same parties and involving the same cause of action are brought before the courts of different Member States, jurisdiction shall lie with the court first seised.

Regardless of the court having jurisdiction as to substance, applications for provisional and protective measures may be lodged with any court of any Member State where they are provided for by the law of the State concerned.

Recognition and enforcement of decisions

A decision on maintenance obligations by one Member State is to be recognised in another Member State without any special procedure.

The vast majority of Member States are bound by the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.

Where the decision was taken by a Member State bound by the 2007 Hague Protocol, its recognition may not be opposed. If it is enforceable in the Member State in which it was taken, it is enforceable in another Member State without the need for a declaration. In certain cases, however, it is still possible to apply for a review of the decision and the refusal or suspension of its enforcement.

Where the decision was taken by a Member State not bound by the 2007 Hague Protocol, its recognition may be refused in certain cases. It may be enforced in another Member State – if it is enforceable in the Member State in which it was taken – on condition that a declaration of enforceability is obtained from the Member State of enforcement.

In all cases, the court of origin may declare a decision as provisionally enforceable. When the decision is to be enforced in a Member State other than that in which it was originally taken, enforcement is governed by the law of that Member State.

The decision taken in a Member State cannot be reviewed as to its substance in the Member State in which its recognition, enforceability or enforcement is sought.

Parties who are involved in a dispute covered by this Regulation shall have effective access to justice in another Member State, including enforcement and appeal and review procedures. In particular, Member States shall provide legal aid under certain conditions. Free legal aid shall be provided in respect of applications by creditors concerning a decision on maintenance obligations arising from a parent-child relationship towards a person under the age of 21.

Central authorities

Each Member State must appoint a central authority responsible for assisting parties in the establishment and recovery of maintenance. In particular, they will send and receive applications provided for under the Regulation and take all appropriate measures to introduce or facilitate the introduction of the necessary procedures.

The central authorities shall cooperate with each other, promote cooperation among the competent authorities of their Member State and seek solutions to difficulties which may arise in the application of this Regulation. Moreover, to facilitate the application of the Regulation and to strengthen cooperation between the central authorities, use shall be made of the European Judicial Network in civil and commercial matters.

Final provisions

This Regulation replaces the provisions concerning maintenance obligations of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It also replaces Regulation (EC) No 805/2004 creating a European enforcement order for uncontested claims, except for European enforcement orders concerning maintenance obligations issued by Member States that are not bound by the 2007 Hague Protocol.

This Regulation has been applicable since 18 June 2011.

References

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

Regulation (EC) No 4/2009

30.1.2009

–

OJ L 7 of 10.1.2009

Related Acts

Council Decision 2011/220/EU of 31 March 2011 on the signing, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance [Official Journal L 93 of 7.4.2011].
The Hague Convention of 23 November 2007 establishes, between the parties to the Convention, a worldwide system for the recovery of maintenance claims.

Agreement with the United States on mutual legal assistance

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Agreement with the United States on mutual legal assistance

Outline of the Community (European Union) legislation about Agreement with the United States on mutual legal assistance

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

Agreement with the United States on mutual legal assistance

Document or Iniciative

Council Decision 2009/820/CFSP of 23 October 2009 on the conclusion on behalf of the European Union of the Agreement on extradition between the European Union and the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America.

Summary

The European Union (EU) and the United States of America (U.S.) concluded an agreement on mutual legal assistance, with a view to improving cooperation between EU countries and the U.S. as well as to combating crime more effectively. The agreement entered into force on 1 February 2010.

EU countries and the U.S. apply the provisions of this agreement to their bilateral mutual legal assistance treaties. In the absence of such a treaty, the EU and the U.S. will ensure that the provisions of the agreement are nevertheless applied.

Mutual legal assistance

On request, the requested country must promptly identify and communicate to the requesting country information on:

  • banks where a natural or legal person, who is suspected of or charged with a criminal offence, has one or more bank accounts;
  • natural or legal persons that have been convicted of or involved in a criminal offence;
  • information that a non-bank financial institution possesses;
  • financial transactions that are not related to bank accounts.

EU countries’ requests for assistance are transmitted by central authorities responsible for mutual legal assistance or by national authorities responsible for investigating or prosecuting criminal offences. The U.S. transmits its requests for assistance via its national authorities responsible for investigating or prosecuting criminal offences.

The requesting country may use an expedited means of communication for the request for assistance and the related communications, followed by a formal confirmation if required by the requested country.

The requesting country may require the requested country to keep a request for assistance and its contents confidential. The central authority of the requested country must inform the requesting country if it cannot execute the request for assistance without breaching confidentiality. The requesting country must then decide whether the request for assistance should be executed or not.

The EU and the U.S. must enable the establishment and operation of joint investigative teams to facilitate criminal investigations or prosecutions between one or more EU countries and the U.S.

The EU and the U.S. must also enable video conferencing between EU countries and the U.S. to take witnesses’ or experts’ testimonies in proceedings.

Assistance to administrative authorities

Mutual legal assistance must also be provided to national and other administrative authorities, but only when the conduct under investigation will lead to a criminal prosecution or to a referral to criminal investigation or prosecution authorities. The authorities responsible for transmitting these requests for assistance are designated in accordance with the bilateral mutual legal assistance treaties between the countries concerned. Where such a treaty does not exist, the requests are transmitted between the U.S. Department of Justice and the EU country’s Ministry of Justice or other equivalent Ministry that is responsible for transmitting requests for mutual legal assistance.

Limitations to the provision of assistance

A country may limit its provision of assistance to offences that are:

  • punishable under the laws of both countries (requesting and requested);
  • punishable by deprivation of liberty or a detention order of a maximum period (minimum four years in the requesting and two years in the requested country);
  • designated as serious and punishable under the laws of both countries.

Where a country limits its provision of assistance to the last two kinds of offences, it must nevertheless provide for the identification of bank accounts related to terrorist activity and the laundering of proceeds from serious criminal activity that are punishable under the laws of both countries.

Limitations to the use of evidence or information

The requesting country may only use the evidence or information transmitted by the requested country for:

  • its criminal investigations and proceedings;
  • protecting its public security against an immediate and serious threat;
  • its non-criminal judicial or administrative proceedings that directly relate to its criminal investigations or proceedings;
  • other purposes, provided that the information or evidence has been made public or the requested country has given its prior consent.

The requested country may impose additional conditions limiting the use of the evidence or information in a particular case if, due to the absence of such conditions, it was not able to comply with the particular request for assistance. In such a case, the requested country may require the requesting country to provide information on the use it makes of the evidence or information.

References

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

Decision 2009/820/CFSP

23.10.2009

–

OJ L 291, 7.11.2009