Tag Archives: Judicial proceedings

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

The right to interpretation and translation in criminal proceedings

Leave a reply

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

Insolvency proceedings

Leave a reply

Insolvency proceedings

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

Convention on parental responsibility and protection of children

Leave a reply

Convention on parental responsibility and protection of children

Outline of the Community (European Union) legislation about Convention on parental responsibility and protection of children

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

Convention on parental responsibility and protection of children

Document or Iniciative

Council Decision 2003/93/EC of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children.

Summary

The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children was concluded within the framework of The Hague Conference on Private International Law on 19 October 1996. However, only sovereign states may accede to the convention. By way of exception, the Council therefore authorises the European Union (EU) countries to sign the convention.

Nevertheless, the EU retains exclusive competence for the provisions of the convention that fall within the scope of the regulation on jurisdiction, recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility (the “Brussels II” Regulation). Consequently, EU countries must make a declaration upon signing the convention, whereby EU law continues to be applied to the recognition and enforcement within the Union of judgments given on matters relating to the convention by an EU country.

Scope

The convention contributes to the protection of children at international level. It applies to children up to 18 years of age, aiming to establish:

the country having jurisdiction to take measures to protect a child or his/her property;
the law applicable for exercising this jurisdiction;
the law applicable to parental responsibility;
recognition and enforcement of the protection measures in all signatory countries;
cooperation between the signatory countries.

The measures aimed at protecting a child relate to:

parental responsibility;
the rights of custody;
guardianship;
the representation of the child;
the placement of the child in foster or other care;
the supervision of the care provided to the child;
the management of the child’s property.

Jurisdiction

In general, the country of the child’s habitual residence has jurisdiction to take measures to protect the child or his/her property. For refugee or internationally displaced children or for children whose habitual residence cannot be established, the country in which they are present has jurisdiction.

In a particular case, if another country appears to be better placed for assessing the best interests of the child, it may be allowed to assume jurisdiction. In cases of emergency, the country on whose territory the child or his/her property is present may exercise jurisdiction to take any necessary protection measures.

Applicable law

The country exercising its jurisdiction does so under the rules of its own law. Under exceptional circumstances, it may apply or take into consideration the law of another country that is closely connected to the situation, provided that this is in the best interest of the child. The application of the law designated by the convention can only be refused for public policy reasons, and provided that it is in the best interest of the child.

Recognition and enforcement

The measures a signatory country takes under this convention to protect a child or his/her property must be recognised in all other signatory countries. Only in a limited number of cases, as specified in the convention, may recognition be refused. When protection measures are declared enforceable in another country, that country must enforce the measures as if it had taken them itself and carry out the enforcement in accordance with its own law.

Cooperation

Each signatory country must designate one or more central authorities to carry out the obligations imposed upon it by the convention. These authorities are to cooperate and exchange information with each other, as well as to promote cooperation among their national authorities.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Decision 2003/93/EC	–	1.6.2003	OJ L 48 of 21.2.2003

Related Acts

Council Decision 2008/431/EC of 5 June 2008 authorising certain Member States to ratify, or accede to, in the interests of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law [Official Journal L 151 of 11.6.2008].
This decision authorises EU countries that have not yet ratified or acceded to the convention to do so. This concerns Belgium, Germany, Ireland, Greece, Spain, France, Italy, Cyprus, Luxembourg, Malta, the Netherlands, Austria, Poland, Portugal, Romania, Finland, Sweden and the United Kingdom. In view of depositing their instruments of ratification or accession simultaneously, these countries are to exchange information with the Commission and Council on the status of the related procedures. This exchange should take place before 5 December 2009, after which the date of the simultaneous deposit (preferably before 5 June 2010) will be established.
This decision also authorises Bulgaria, Cyprus, Latvia, Malta, the Netherlands and Poland to make a declaration aimed at ensuring that EU rules on recognition and enforcement of judgements will continue to apply in the Union.

Rules of Procedure of the Court of Justice of the European Union

Leave a reply

Rules of Procedure of the Court of Justice of the European Union

Outline of the Community (European Union) legislation about Rules of Procedure of the Court of Justice of the European Union

Topics

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

Institutional affairs > The institutions bodies and agencies of the union

Rules of Procedure of the Court of Justice of the European Union

Document or Iniciative

Rules of Procedure of the Court of Justice of 29 September 2012 [Official Journal L 265 of 29.9.2012].

Summary

These Rules of Procedure lay down the provisions required to implement and supplement the Statute of the Court of Justice detailed in Protocol No. 3 annexed to the Treaties.

The Court of Justice is one of the three courts comprising the Court of Justice of the European Union, the judicial institution of the Union and the European Atomic Energy Community (EAEC). The other two courts are the General Court and the Civil Service Tribunal. Their mission is to ensure the law is complied with in the interpretation and implementation of the Treaties by monitoring the legality of Union acts.

Organisation of the Court

The Court shall be organised as follows:

composition of the Court: the Court shall comprise 27 judges and 8 Advocates General, appointed for six years. The tasks of the Advocates General shall be to attend the Court and present legal opinions. The judges shall elect the President of the Court and the Vice-President for a term of three years. The President shall be responsible for representing the Court and managing its work programme; the Vice-President shall assist the President with his duties.
Constitution of chambers and designation of the Judge-Rapporteurs:The Court shall set up Chambers of five Judges, the President of which shall be elected for three years, and Chambers of three judges, the President of which shall be elected for one year. The President of the Court shall designate a Judge-Rapporteur to deal with a case, while an Advocate General shall be designated by the First Advocate General. If necessary, the Court may appoint Assistant Rapporteurs.
role of the Registrar:The Court shall appoint a Registrar for a term of six years. The Registrar shall be responsible for the acceptance, transmission and custody of all documents, and shall be responsible for the records. In addition, the Registrar shall assist the Members of the Court and shall be in charge of the publications of the Court. Lastly, he shall direct the services of the Court under the authority of the President of the Court.
working of the Court:Cases shall be assigned to the full Court, the Grand Chamber or to a Chamber of five or three judges. Several cases may be heard and determined together by one and the same formation of the Court. The deliberations of the Court shall remain secret.
languages:a language shall be assigned for each case. In direct actions, the applicant may choose the language from the twenty-three official European Union languages. In preliminary ruling proceedings, the language of the case shall be that of the national court or tribunal.

Characteristics of proceedings

In general, proceedings before the Court shall comprise the following phases:

written proceedings: this involves an exchange of pleadings between the parties. The pleadings must have clearly-defined content. Once the procedure is closed, a preliminary report shall be presented by the Judge-Rapporteur to the general meeting of the Court.
measures of inquiry: The Court can determine the measures of inquiry such as the personal appearance of the parties, requests for information and documents, oral testimony, the commissioning of an expert’s report and an inspection of the place or thing in question. Minutes of every inquiry hearing shall be drawn up.
Oral proceedings shall take place, if necessary, after the inquiry. Oral proceedings shall thus be opened and directed by the President. Oral proceedings may take place in camera.
Opinion of the Advocate General:at the end of these proceedings, the Advocate General shall deliver his Opinion.
the final decision:the Court shall decide by judgment or by order. Only the judgment shall be delivered in open court. Judgments and orders contain different information, such as a summary of the facts and the grounds for the decision. A copy shall then be distributed to each of the parties.

Furthermore, the Rules shall contain specific provisions concerning the different procedures before the Court: preliminary ruling procedure, direct actions, appeals against decisions of the General Court, opinions, and other particular forms of procedure.

References for a preliminary hearing

National courts may submit a reference for a preliminary hearing before the General Court in order to question the interpretation of European Union law. As part of a reference for a preliminary hearing, observations may be made by, in particular:

the parties to the main proceedings;
the Member States;
the European Commission;
the institution which adopted the act, the validity or interpretation of which is in dispute.

Appeals against decisions by the General Court

It is possible to bring an appeal against a decision by the General Court. In this case, an application must be lodged with the Registry containing, in particular, the pleas in law and legal arguments relied on. The application must seek to have the decision set aside, in whole or in part.

Review of decisions of the General Court

In two instances, specifically when it ruled in an appeal against a decision by the Civil Service Tribunal, the decisions of the General Court can be subject to a review by the Court. A Chamber of five Judges shall be designated for a period of one year to carry out the reviews.

Reference

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Rules of Procedure of the Court of Justice	1.11.2012	–	OJ L 265 of 29.9.2012 and OJ C 337 of 6.11.2012

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Rules of Procedure of the Court of Justice

1.11.2012

–

OJ L 265 of 29.9.2012 and

OJ C 337 of 6.11.2012

Related Act(S)

Council Regulation (EU, Euratom) No. 904/2012 of 24 September 2012 amending Regulation No 422/67/EEC, No 5/67/Euratom determining the emoluments of the President and Members of the Commission, of the President, Judges, Advocates-General and Registrar of the Court of Justice of the Communities, of the President, Members and Registrar of the Court of First Instance and of the President, Members and Registrar of the European Union Civil Service Tribunal [Official Journal L 269 of 4.10.2012].

Reorganisation and winding-up of insurance undertakings

Leave a reply

Reorganisation and winding-up of insurance undertakings

Outline of the Community (European Union) legislation about Reorganisation and winding-up of insurance undertakings

Topics

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

Internal market > Single market for services > Financial services: insurance

Reorganisation and winding-up of insurance undertakings (until November 2012)

Document or Iniciative

European Parliament and Council Directive 2001/17/EC on the reorganisation and winding-up of insurance undertakings.

Summary

Background

The measure forms an integral part of the Financial Services Action Plan (FSAP) and fills a major gap in the financial services legislation. Its adoption comes at a time when financial services and personal investment are booming. The Directive was first proposed in 1987 but has involved a considerable amount of work, in particular owing to the complexity of Member States’ insolvency rules.

Status

As matters stand, if an insurance undertaking with branches in other Member States has to be wound up, the authorities of each Member State in which the undertaking is represented may open separate winding-up proceedings. This can lead to conflicts of jurisdiction, and policyholders are not always treated equally. Similarly, if an undertaking has to be reorganised, the approaches can differ from one Member State to another. The Directive is designed to guarantee consumer protection, irrespective of the place of residence.

Principle of home country control

If an undertaking with branches in other Member States fails, the winding-up will be subject to a single bankruptcy proceeding initiated in the Member State where the insurance undertaking has its registered office (known as the home State). The proceedings will thus be governed by a single bankruptcy law. This approach is consistent with the home country control principle that is the basis for the European insurance directives (life and non-life insurance).
The home country’s legislation will assess the definition of branch and the way in which the assets and liabilities held by independent persons who have a permanent authority to act as agent for an insurance undertaking should be treated.

Scope

The Directive applies to undertakings having their head office inside the EU, European branches of insurance undertakings having their head office in a third country and creditors residing in the EU.
It will also apply to winding-up proceedings, whether or not they are founded on insolvency or are voluntary or compulsory, and collective proceedings as defined in the laws of the home Member State.

Principles of unity and universality

Only the competent authorities of the home Member State are empowered to take decisions on winding-up proceedings (principle of unity). These proceedings will produce their effects and be recognised by all Member States. All the assets and liabilities of the insurance undertaking should as a general rule be taken into consideration in such proceedings (principle of universality).

Principle of coordination

The supervisory authorities of the home Member State and those of all the Member States must be informed as a matter of urgency of the opening of winding-up proceedings.

Publication

The decision to open winding-up proceedings must have appropriate publicity within the EU. In addition to publication of the decision, known creditors residing in the European Union must be individually informed of the decision and kept regularly informed of the progress of proceedings.

Protection of creditors and equal treatment

The Directive provides for the protection of insured persons, policyholders, beneficiaries and any injured party having a direct right of action against the undertaking on an insurance claim. Member States may choose between two methods of protection: either granting insurance claims absolute precedence, or granting insurance claims a special rank which may be preceded by only claims on salaries, social security and rights in rem. Nothing impedes a Member State from establishing a ranking between different categories of insurance claims. In any event, creditors must be treated in the same way without any discrimination on the grounds of nationality or residence.

Withdrawal of authorisation

The opening of winding-up proceedings entails withdrawal of the authorisation to conduct business granted to the insurance undertaking.

Exceptions

The Directive provides for exceptions to the principle of the home country as regards the effects of the winding-up on certain contracts and rights (e.g. those of staff), third parties’ rights in rem, reservations of title, set-off, regulated markets, detrimental acts, third party purchasers and lawsuits pending.

Professional secrecy

All persons required to receive or divulge information connected with procedures of communication are bound by professional secrecy.

Third countries

The host Member State of a branch of an insurance undertaking whose head office is located in a third country is regarded as the home Member State. If the parent undertaking has branches in several Member States, each branch must be treated independently (coordination between competent authorities, supervisory authorities, administrators and liquidators).

This directive is repealed by the Directive on the taking-up of the business of insurance and reinsurance from 1° November 2012.

REFERENCES

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 2001/17/EC	20.04.2001	20.04.2003	OJ L 110 of 20.04.2001

European arrest warrant

Leave a reply

European arrest warrant

Outline of the Community (European Union) legislation about European arrest warrant

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 terrorism

European arrest warrant

Document or Iniciative

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [See amending act(s)].

Summary

The European arrest warrant adopted in 2002 replaces the extradition system by requiring each national judicial authority (the executing judicial authority) to recognise, ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial authority of another Member State (the issuing judicial authority). The framework decision entered into force on 1 January 2004 and replaced the existing texts in this area.

However, Member States remain at liberty to apply and conclude bilateral or multilateral agreements insofar as such agreements help to simplify or facilitate the surrender procedures further. The application of such agreements should in no case affect relations with Member States that are not parties to them.

General principles

The framework decision defines “European arrest warrant” as any judicial decision issued by a Member State with a view to the arrest or surrender by another Member State of a requested person, for the purposes of:

conducting a criminal prosecution;
executing a custodial sentence;
executing a detention order.

The warrant applies in the following cases:

where a final sentence of imprisonment or a detention order has been imposed for a period of at least four months;
for offences punishable by imprisonment or a detention order for a maximum period of at least one year.

If they are punishable in the issuing Member State by a custodial sentence of at least three years, the following offences, among others, may give rise to surrender without verification of the double criminality of the act: terrorism, trafficking in human beings, corruption, participation in a criminal organisation, counterfeiting currency, murder, racism and xenophobia, rape, trafficking in stolen vehicles, and fraud, including that affecting the financial interests of the Communities.

For criminal acts other than those mentioned above, surrender may be subject to the condition that the act for which surrender is requested constitutes an offence under the law of the executing Member State (double criminality rule).

The European arrest warrant must contain information on the identity of the person concerned, the issuing judicial authority, the final judgment, the nature of the offence, the penalty, etc. (a specimen form is attached to the framework decision).

Procedures

As a general rule, the issuing authority transmits the European arrest warrant directly to the executing judicial authority. Provision is made for cooperation with the Schengen Information System (SIS) and with Interpol. If the authority of the executing Member State is not known, the issuing Member State will receive assistance from the European Judicial Network.

All Member States may take necessary and proportionate coercive measures vis-à-vis requested persons. When an individual is arrested, he/she must be made aware of the contents of the arrest warrant and is entitled to the services of a lawyer and an interpreter.

In all cases, the executing authority may decide to keep the individual in custody or to release him/her subject to certain conditions.

Pending a decision, the executing authority (in accordance with national law) hears the person concerned. The executing judicial authority must take a final decision on execution of the European arrest warrant no later than 60 days after the arrest. It then immediately notifies the issuing authority of the decision taken.

Any period of detention arising from execution of the European arrest warrant must be deducted from the total period of deprivation of liberty imposed.

The arrested person may consent to his or her surrender. Consent may not be revoked and must be given voluntarily and in full knowledge of the consequences. In this specific case, the executing judicial authority must take a final decision on execution of the warrant within a period of ten days after consent has been given.

Grounds for refusal to execute a warrant and refusal to surrender

A Member State may refuse to execute a European arrest warrant if:

final judgment has already been passed by a Member State upon the requested person in respect of the same offence (ne bis in idem principle);
the offence is covered by an amnesty in the executing Member State;
the person concerned may not be held criminally responsible by the executing State owing to his/her age.

In certain other circumstances (e.g. when criminal prosecution or punishment is statute-barred according to the law of the executing Member State or when a final judgment has been passed by a third State in respect of the same act), the executing Member State may refuse to execute the arrest warrant. It may also refuse to execute the warrant if the person concerned did not personally appear at the trial where the decision was rendered, unless the appropriate safeguards were taken. In all cases grounds for the refusal must be given.

On presentation of certain information (relating to the arrest warrant, the nature of the offence, the identity of the person concerned, etc.), each Member State must permit the transit through its territory of a requested person who is being surrendered.

The warrant is translated into the official language of the executing Member State and sent by any means capable of producing written records and allowing the executing Member State to establish its authenticity.

Practical, general and final provisions

Since 1 January 2004, extradition requests received by Member States have been dealt with in accordance with the national measures adopted to implement the framework decision.

The framework decision applies to Gibraltar.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2002/584/JHA	7.8.2002	31.12.2003	OJ L 190, 18.7.2002

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, 27.3.2009

Related Acts

Report from the Commission to the European Parliament and the Council of 11 April 2011 on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [COM(2011) 175 final – Not published in the Official Journal].

This report describes seven years of implementation of the European arrest warrant. The initiative seems to be a success in operational terms – 54,689 warrants have been issued and 11,630 executed. Extradition between EU countries now takes fourteen to seventeen days, if the person consents to their transfer, and forty-eight days if they do not give consent. Previously, this process took more than one year. By using this mechanism to ensure that the opening of borders does not assist those seeking to avoid the application of the law, the free movement of persons in the EU has been strengthened. The Commission notes some shortcomings, however, particularly with regard to respect for fundamental rights. It requests that Member States should bring their legislation into line with Framework Decision 2002/584/JHA where that is not already the case, and implement instruments already adopted in order to improve the functioning of the warrant. The report also notes that too many warrants are issued for minor offences and encourages requesting Member States to apply the principle of proportionality.

Report from the Commission of 24 January 2006 based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (revised version) [COM(2006) 8 final – Not published in the Official Journal].

In its revised version, the report focuses above all on the Italian legislation adopted since the first report. The Commission considers that, despite the initial delay, the European arrest warrant is operational in most of the cases provided for by the Member States.

Report from the Commission of 23 February 2005 based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [COM(2005) 63 final – Not published in the Official Journal].
According to the evaluation made by the Commission in its report, the impact of the European arrest warrant since its entry into force on 1 January 2004 has been positive both in terms of depoliticisation and effectiveness as well as in terms of the speed of the surrender procedure, while the fundamental rights of the persons concerned have been observed.

Statements provided for in Article 31(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedure between Member States [Official Journal L 246 of 29.9.2003].
Denmark, Finland and Sweden state that their uniform legislation in force allows the provisions of the framework decision to be extended and enlarged. They will continue to apply the uniform legislation in force between them, namely:

Denmark: Nordic Extradition Act (Act No 27 of 3 February 1960, as amended);
Finland: Nordic Extradition Act (270/1960);
Sweden: Act (1959:254) concerning extradition to Denmark, Finland, Iceland and Norway for criminal offences.