Tag Archives: Mutual recognition

Mutual recognition of pre-trial supervision measures

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

 

Execution of orders freezing property or evidence

Execution of orders freezing property or evidence

Outline of the Community (European Union) legislation about Execution of orders freezing property or evidence

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

Execution of orders freezing property or evidence

Document or Iniciative

Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.

Summary

The Council adopted this framework decision in 2003 on an initiative by Belgium, France and Sweden. The purpose of the framework decision is to establish the rules under which a Member State is to recognise and execute in its territory a freezing order issued by a judicial authority of another Member State in the framework of criminal proceedings.

Mutual recognition of pre-trial orders

The Council extends the mutual recognition principle to pre-trial orders freezing property or evidence. “Freezing order” means any measure taken by a judicial authority in a Member State to prevent the destruction, transformation, displacement, etc. of property. The evidence to which the framework decision applies means objects, documents or data that could be produced as evidence in criminal proceedings.

The state that has made, validated or in any way confirmed a freezing order in the framework of criminal proceedings is called the “issuing state”. The “executing state” is the Member State in whose territory the property or evidence is located.

Decisions executed without verification of double criminality

Article 3 of the framework decision lists a series of serious offences. They are not subject to verification of the double criminality of the act if they are punishable in the issuing state by a custodial sentence of a maximum period of at least three years. The offences include:

  • participation in a criminal organisation;
  • terrorism;
  • corruption and fraud;
  • trafficking in human beings;
  • racism;
  • rape.

The list is not exhaustive; the Council may decide at any time to add further categories. The Commission is to draft a report on the basis of which the Council is to decide whether the list should be extended. The Council is to act unanimously after consultation of the European Parliament.

Conditions for recognition and enforcement of a decision

For offences not included in the list, the executing state may subject the recognition and enforcement of a freezing order to certain conditions:

  • obtaining evidence: the acts for which the order was issued constitute an offence under the laws of that state, whatever the constituent elements or however described under the law of the issuing state;
  • confiscation of property: the acts for which the order was issued must constitute an offence which, under the laws of the executing state, allows for such freezing, whatever the constituent elements or however described under the law of the issuing state.

The execution procedure

The framework decision provides for a certificate for the request for execution. The certificate is transmitted by the judicial authority that issued it directly to the competent judicial authority for execution in the other Member State. The United Kingdom and Ireland may state in a declaration before 2 August 2005 that the freezing order together with the certificate must be sent via a central authority or authorities specified by them in their declarations. They may at any time limit the scope of such a declaration by a further declaration.

The competent judicial authorities of the executing state must recognise a freezing order without any further formality being required and forthwith take the necessary measures for its immediate execution. The executing state must also observe the formalities and procedures expressly indicated by the competent judicial authority of the issuing state in the execution of the freezing order. If such formalities and procedures are contrary to the fundamental principles of law in the executing state, it is not required to observe them.

The property must remain frozen in the executing state until that state has responded definitively to any request.

Grounds for non-recognition or non-execution

The competent judicial authorities of the executing state may refuse to recognise or execute the freezing order if:

  • the certificate is not produced, is incomplete or manifestly does not correspond to the freezing order;
  • there is an immunity or privilege under the law of the executing state that makes it impossible to execute the freezing order;
  • it is instantly clear from the information provided in the certificate that rendering judicial assistance would infringe the ne bis in idem principle – new proceedings cannot be brought if a final judgment has already been given for the same facts;
  • the act on which the freezing order is based does not constitute an offence under the law of the executing state. Two conditions apply here:

– the act must not be on the list of offences in Article 3 for which execution is automatic;

– in relation to taxes or duties, customs and exchange, execution of the freezing order may not be refused on the ground that the law of the executing state does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing state.

The competent judicial authority of the executing state may postpone the execution of a freezing order transmitted where:

  • execution might damage an ongoing criminal investigation;
  • the property or evidence concerned have already been subjected to a freezing order in criminal proceedings;
  • the property is already subject to an order made in the course of other proceedings in the executing state. However, such an order must have priority over subsequent national freezing orders in criminal proceedings under national law.

Member States must ensure that any interested party, including bona fide third parties, have legal remedies without suspensive effect against a freezing order.

References

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

Framework Decision 2003/577/JHA

2.8.2003 2.8.2005 OJ L 196 of 2.8.2005

RELATED ACTS

Report from the Commission of 22 December 2008 based on Article 14 of the Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence [COM(2008) 885 final – Not published in the Official Journal].
This report evaluates the transposition measures that Member States have taken to implement Framework Decision 2003/577/JHA. However, by October 2008, only 19 Member States had notified the Commission of the transposition of the provisions into national law. Furthermore, several omissions and misinterpretations were found in the national laws, and some laws did not make any reference to the framework decision. Consequently, implementation of the framework decision cannot be deemed satisfactory.
The objective of the framework decision as well as the definitions have generally been well implemented by Member States. Similarly, a high number of Member States have implemented the list of offences that are not subject to a dual criminality check.
In terms of the procedure, more improvement is needed regarding the direct transmission of freezing orders between judicial authorities. Currently, many Member States require transmission through a central authority. Nevertheless, almost all Member States have implemented provisions on the immediate execution of decisions and on the duration of the freezing.
More improvements are needed on the implementation of the provisions concerning the grounds for non-recognition and non-execution. Member States have implemented most of these grounds, but they were transposed mostly as obligatory grounds. In addition, 14 Member States have applied additional grounds for refusal, which is not in line with the framework decision.
Concerning grounds for postponement of execution, most Member States have implemented the provisions at least in part. Furthermore, legal remedies are in place in all Member States and usually the measures provided do not require suspensive effect.
The Commission recommends that Member States take this report into consideration, proceed with the necessary legislative actions and transmit all relevant information in accordance with Article 14 of the framework decision to the Commission and the General Secretariat of the Council of the European Union.

Conflict of laws in matters concerning matrimonial property regimes

Conflict of laws in matters concerning matrimonial property regimes

Outline of the Community (European Union) legislation about Conflict of laws in matters concerning matrimonial property regimes

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

Conflict of laws in matters concerning matrimonial property regimes (Green Paper)

What happens when, say, a Franco-Estonian couple living in Spain separate and questions arise regarding their immovable property located in Germany? The European Commission is launching this Green Paper with a view to resolving the conflict of laws in matters concerning matrimonial property regimes, including jurisdiction of courts and mutual recognition of decisions taken in different Member States. The Green Paper is concerned with “traditional” marriages and other forms of union involving no matrimonial link and takes due account of the new social circumstances in the Member States.

Document or Iniciative

Commission Green Paper of 17 July 2006 on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition [COM(2006) 400 – Not published in the Official Journal].

Summary

With this Green Paper, the Commission launched a consultation exercise on the difficulties facing married and unmarried couples at European level. The Green Paper addresses the questions that arise in connection with determination of the law applicable to property and the ways in which the recognition and enforcement of court decisions can be facilitated. The consultation exercise closed on 30 November 2006.

Resolving conflicts of law: the law applicable to matrimonial property regimes

Only scattered rules exist at Community level and these are either not applicable or incomplete and so do not resolve the practical or legal difficulties that arise when a couple’s property is to be distributed and/or managed. Where there is no Community rule, the national law of the Member States applies to matrimonial property regimes (in cases involving a national connection: a German couple married in Germany and living there) or private international law applies (in cases involving connections with abroad: the above couple possesses immovable property in France and in the United States).

The Commission would like to introduce rules of a universal nature enabling either the law of a Member State or the law of a third country to be applicable. This involves the identification of connecting factors, the issue of the choice by the spouses of their matrimonial regime and the rules on jurisdiction.

  • Identification of connecting factors. First, determination of the law applicable presupposes the identification of connecting factors. The Commission examines the nature of the connecting factors and their order of priority, as well as the use of different criteria for different aspects of the situation (“dépeçage”). It stresses that a solution is needed in cases where connecting factors designated by the conflict rule (such as residence) have changed or moved with the passage of time.
  • Choice of matrimonial property regime by the spouses. Most Member States allow spouses to choose the law applicable to the matrimonial property regime. The Commission would like to know whether this choice should be retained in a future Community instrument and, if so, which connecting factors must be taken into consideration in order to allow spouses to choose the matrimonial property regime.
  • Determining the jurisdiction of the judicial authorities. The Member States have adopted a wide variety of criteria to determine international jurisdiction as regards matrimonial property regimes. At Community level, Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility has to be complied with. The Commission wonders whether the court with jurisdiction under this Regulation has to be the same when it comes to ruling on the liquidation of the matrimonial property in the event of divorce, separation or succession. Failing that, what other solutions are possible? In addition, given the importance of the functions exercised by non-judicial authorities such as notaries and advocates, the Commission would like to settle the question of their powers and facilitate recognition of the acts established by them. Lastly, the Commission takes the view that uniform rules on the applicable law and jurisdiction will enhance mutual trust between Member States so that intermediate measures for the recognition and enforcement of judgments can be dispensed with.

According to the Commission, it would be worth improving the publicity of matrimonial property regimes in the European Union in order to guarantee legal certainty for all parties concerned, in particular creditors.

Taking account of social circumstances: other forms of union

The steady increase in the number of unmarried couples, whether in registered partnerships or in de facto unions, is reflected in the corresponding increase in the number of legal situations facing them.

Registered partnerships. The Commission looks at the need for specific rules of conflict for registered partnerships: Does the law applicable have to be the law of the place at which the partnership is registered or some other law? Will the designated law govern all the matters at issue or will other criteria such as the law of the place at which the property is located have to be taken into account? The Commission raises the question of the jurisdiction of the judicial authorities in the matter but also that of the recognition and enforcement of decisions relating to registered partnerships.

De facto unions. As with registered partnerships, the Commission examines the specific conflict rules for de facto unions, i.e. non-formalised cohabitation, and wonders whether there should at least be specific rules for the effects of separation of such unions in relation to third parties. Lastly, the Commission looks at the specific rules on jurisdiction and the recognition of property relationships resulting from de facto unions.

The consultation exercise closed on 30 November 2006. The replies received by national governments and parliaments from local and regional authorities and from other entities such as associations of legal professions and universities may be consulted on the website of the European Commission, Directorate-General (DG) for Justice, Freedom and Security, along with a summary of the replies (pdf ).

Background

The adoption of a European instrument relating to matrimonial property regimes was among the priorities identified in the 1998 Vienna Action Plan. This Green Paper forms part of the objectives of the Hague Programme, adopted by the European Council on 4 and 5 November 2004.

 

Internal market: general framework

Internal market: general framework

Outline of the Community (European Union) legislation about Internal market: general framework

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

Internal market > Internal market: general framework

Internal market: general framework

The internal market is one of the pillars of the European Union. Completed in 1992, the single market is an area without internal frontiers in which persons, goods, services and capital can move freely, in accordance with the Treaty establishing the European Community. The internal market is essential for prosperity, growth and employment in the EU, contributing to the achievement of its objectives under the Lisbon strategy. As an integrated, open and competitive area, it in fact promotes mobility, competitiveness and innovation, interacting in particular with the EU sectoral policies. To ensure that everyone, citizen or business, can make the most of the advantages of the single market, the EU concentrates on dismantling barriers still impeding its operation. It seeks to harmonise legislation in order to improve its response to the challenges of globalisation and to adapt to advances, such as the new technologies.

Internal Market strategy

  • Single Market Act: improving our work, business and exchanges with one another
  • Single market: improving its functioning
  • Driving European recovery
  • A single market for 21st century Europe
  • Interim report on the single market in the 21st century
  • Monitoring consumer outcomes in the single market
  • The Internal Market Information System (IMI)
  • Internal market Strategy – Priorities 2003-2006
  • Strategy for the internal market

Mutual recognition

  • The mutual recognition principle in the single market

Conflict resolution

  • Internal Market Problem Solving System (SOLVIT network)

Transposal into national law

  • Transposition into national law of directives relating to the internal market

The mutual recognition principle in the single market

The mutual recognition principle in the single market

Outline of the Community (European Union) legislation about The mutual recognition principle in the single market

Topics

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

Internal market > Internal market: general framework

The mutual recognition principle in the single market

Document or Iniciative

Communication from the Commission “Mutual recognition in the context of the follow-up of the action plan for the single market” [COM(1999) 299 final – Not published in the Official Journal].

Summary

At the invitation of the Internal Market Council of March 1998, the Commission has undertaken an analysis of the difficulties encountered in the application of mutual recognition.

IMPORTANCE OF MUTUAL RECOGNITION FOR THE SINGLE MARKET

The mutual recognition principle guarantees free movement of goods and services without the need to harmonise Member States’ national legislation. Goods which are lawfully produced in one Member State cannot be banned from sale on the territory of another Member State, even if they are produced to technical or quality specifications different from those applied to its own products. The only exception allowed – overriding general interest such as health, consumer or environment protection – is subject to strict conditions. The same principle applies to services.

In general, the rules of the Member State of origin prevail. This guarantees compliance with the principle of subsidiarity by avoiding the creation of detailed rules at EU level and by ensuring greater observance of local, regional and national traditions and makes it possible to maintain the diversity of products and services. It is thus a pragmatic and powerful tool for economic integration.

PROBLEMS WITH APPLICATION AND ANALYSIS OF THE CAUSES

Available information. One of the problems concerns availability of reliable information necessary for evaluation. Available figures do not allow a precise estimation of the economic impact of mutual recognition, but it is clear that the principle is a very important mechanism for a large number of industry and services sectors. The only figures available concern the number of complaints lodged with the Commission. The number of cases where producers have complied with countries’ requirements or withdrawn their products is unknown.

Obstacles. According to the results of surveys conducted in industry, there are still some obstacles at the level of technical standards and regulations. The service sector estimates that in general the obstacles to free movement of goods remained practically the same between 1996 and 1998. Other problematic issues have been identified:

  • on consumer protection grounds, controls that are not always necessary are imposed in the countries of destination;
  • in the internal administrative organisation, better management is hampered by administrative delays, costs of procedures and inability to deal with complex issues (for example innovative products and services);
  • a lack of mutual confidence in the acts of other Member States continues.

These problems have prompted some operators to adapt their products to local requirements or even, in extreme cases, to forgo marketing their products or services in another Member State.

Products. Most problems relate to guaranteed protection, since the country of destination is often convinced that its safety arrangements are the only good ones. The fields most affected are food, electrical engineering, vehicles, precious metals, construction and chemicals.

Services. The service sectors about which the Commission receives most complaints are as follows: business communications, construction, patent agents and security services. Available figures do not give an accurate picture of the situation because of the small number of complaints lodged with the Commission. In the regulated professions, difficulties in the implementation of the mutual recognition principle continue to affect individuals. In the field of financial services, the Commission finds evidence of inappropriate use of the notion of “general interest” and of consumer protection designed to inhibit the marketing of financial products. In the field of business communications, national differences, in particular in advertising, frustrate the creation of a genuine single market. Finally, as regards electronic commerce, legal barriers still restrict the opportunities in the single market.

PROPOSALS

Ensure credible monitoring. In order to assess progress, the Commission will prepare, every two years, evaluation reports, whose conclusions will be included in the single market scoreboard in order to make Member States more aware of the existing problems and to find solutions. The Commission undertakes to give greater attention to the compliance with obligations by the Member States, including the opening of infringement proceedings. Moreover, the possibilities offered by the notification procedure should be fully used to promote mutual recognition and prevent the emergence of new obstacles.

Actions targeted at citizens and economic operators. The Commission proposes two action plans, one for the Commission itself, the other for the Member States.

Action by the Commission. The Commission undertakes to facilitate dialogue between the citizens and companies. To improve information and economic analysis, the Commission proposes:

  • producing a Guide on application of the mutual recognition principle in the field of industrial products and a brochure explaining the implementation of Decision 3052/95 concerning the measures derogating from the principle of free movement of goods;
  • an economic analysis of the application of mutual recognition in various different sectors in order to obtain a better evaluation (economic benefits and costs of non-implementation);
  • an analysis of the national consumer protection rules for financial products.

The Commission proposes the following training measures:

  • organise sectoral roundtables of representatives of Member States’ competent authorities and professional organisations;
  • draw up specific projects at national level in order to disseminate information about the mutual recognition principle to the target public.

In order to make mechanisms for dealing with problems more effective, it is planned to:

  • use biennial reports to assess more accurately whether or not new harmonisation initiatives are needed;
  • draw up a model application form to be used between bodies responsible for application of mutual recognition and the European and national federations;
  • make it possible for economic operators to ask for reasons why an application has been rejected and improve the handling of complaints by the Commission, in particular in problem sectors;
  • extend the “package meetings” on goods between the Commission and Member States to the services sector and follow more systematically solutions proposed by Member States;
  • develop a Community network for handling complaints in the field of financial services;
  • take specific sectorial initiatives for better application of the principle in services, in particular in the sectors of air transport and telecommunications.

In order to take into account the international dimension of mutual recognition and to reduce, or even eliminate, barriers to trade, the Commission intends to conclude mutual recognition agreements under the General Agreement on Trade in Services (GATS) and in the area of trade in goods under the World Trade Organisation (WTO).

Action by Member States. As Member States are the main actors in the implementation of the mutual recognition principle, the Commission proposes that they give the following undertakings:

  • to apply the judgments of the Court of Justice on including mutual recognition clauses in national legislation;
  • to reply within a reasonable time to requests for the application of mutual recognition, except in particularly sensitive cases;
  • to strengthen cooperation between the national administrations of Member States with the new telematics contact network, meetings of heads of coordination centres, and more systematic use of contact points as well as greater involvement of national coordinators (particularly in the area of regulated professions);
  • to prepare regular reports on problems with application and potential solutions.

Background

In 1997, the Commission adopted the Single Market Action Plan, which set out in detail the priority measures to be taken to improve the functioning of the single market by 1 January 1999. These included the application of the principle of mutual recognition.
Two years later in 1999, the Commission published this Communication, which serves as a basis for the Council Resolution on mutual recognition (see “Related Acts”).

Related Acts

Council Resolution of 28 October 1999 on mutual recognition [Official Journal C 141 of 19.5.2000].
The Council stresses the importance of mutual recognition for the proper functioning of the single market. This requires a coherent combination of harmonised legislation, standardisation, instruments for conformity assessment and mutual recognition. The Council considers further efforts necessary in the area of products (in particular food, electrical engineering, construction and motor vehicles), services (in particular financial services) and professional qualifications (recognition of diplomas). It criticises unduly burdensome and complicated administrative procedures and the lack of information in the administrations of several Member States about legislation and verification procedures in other Member States.

The Council urges Member States to:

  • review and simplify relevant national legislation and application procedures, step up the effectiveness and speed of these procedures, and strengthen administrative cooperation;
  • make economic operators and the general public aware of their rights;
  • keep the Commission informed about the problems with application and ensure that obligations relating to exchange of information are honoured.

The Council calls on the Commission to:

  • gather all information about successes and shortcomings and their economic impacts and publish this in the single market scoreboard;
  • make the general public and economic operators aware of their rights via general information campaigns;
  • ensure that the policies in that domain are coordinated with other Community policies.

Economic operators and citizens are encouraged to inform the Member States and the Commission about all problems they have encountered.

Commission interpretative communication on facilitating the access of products to the markets of other Member States: the practical application of mutual recognition [C/2003/3944 – Official Journal C 265 of 4.11.2003].
This communication aims to clarify the “mutual recognition” principle and thus help businesses and national administrations make it work better. It is a practical guide which describes how this principle should work in practice and summarises the rights it gives to economic operators. The communication forms part of the internal market strategy 2003-06. It will be followed by wide consultation with Member States, industry and consumer organisations. Depending on the results of this consultation, the Commission could submit a proposal for legislation to reinforce the way mutual recognition is implemented.

EXTERNAL ASPECTS – AGREEMENTS WITH THIRD COUNTRIES

Council Resolution of 24 June 1999 on the management of agreements on mutual recognition [Official Journal C 190 of 7.7.1999].
The Council welcomes the conclusion of mutual recognition agreements between the European Community (EC) and Australia, Canada, New Zealand and the United States of America. These agreements aim to ensure effective market access across the whole territory of the parties to all products covered by the agreements. The Council calls on the Commission to:

  • prepare a proposal for guiding principles for the management of agreements on mutual recognition with third countries and draft a model agreement for future negotiations;
  • prepare a vade mecum explaining the agreements on mutual recognition and their application;
  • prepare regular reports on the application of existing agreements.

 

Green Paper on mutual recognition of non-custodial pre-trial supervision measures

Green Paper on mutual recognition of non-custodial pre-trial supervision measures

Outline of the Community (European Union) legislation about Green Paper on mutual recognition of non-custodial 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

Green Paper on mutual recognition of non-custodial pre-trial supervision measures

By presenting this Green Paper the Commission is initiating a debate on a new legislative instrument which would enable the mutual recognition of judicial decisions relating to non-custodial pre-trial supervision measures. The aim is to comply with one of the general principles of law, namely that custody pending trial should be regarded as an exceptional measure and the widest possible use made of non-custodial supervision measures.

Document or Iniciative

Green Paper on mutual recognition of non-custodial pre-trial supervision measures [COM (2004) 562 final – Not published in the Official Journal].

Summary

This Green Paper is designed to serve as a basis for preparation of a new legislative instrument on mutual recognition of judicial decisions relating to non-custodial pre-trial supervision measures. A Commission staff working paper associated with the Green Paper contains a detailed analysis of the relevant legal framework and the Commission’s thinking on how such an instrument could be drawn up.

Its main objective is to extend the consultation process to a wider public, including legal practitioners, relevant NGOs, and academic circles. Some of the items dealt with in this Green Paper have already been covered in an earlier Green Paper and in the proposal for a Council Framework Decision on certain procedural rights.

Why the Commission is presenting a Green Paper

The excessive use of pre-trial detention is one of the main causes of prison overpopulation. Owing to the risk of flight, non-resident suspects are often remanded in custody, while residents benefit from alternative measures.

The general principles of law dictate that custody pending trial should be regarded as an exceptional measure and preference be given to non-custodial supervision measures. However, such non-custodial measures cannot at present be transposed across borders as States do not recognise foreign judicial decisions in this area.

The introduction of a legal instrument enabling the Member States of the European Union to mutually recognise non-custodial pre-trial supervision measures would:

  • help reduce the number of non-resident pre-trial detainees in the European Union;
  • reinforce the right to liberty and the presumption of innocence in the European Union;
  • decrease the risk of unequal treatment of non-resident suspects.

There is a clear mandate to take action on this issue under the programme of measures to implement the principle of mutual recognition of decisions in criminal matters adopted on November 2000, the broad lines of which were set out in the Commission staff working paper.

The main idea of this new instrument is to substitute pre-trial detention with a non-custodial supervision measure and to transfer this measure to the Member State where the suspect normally has his or her residence. This would allow suspects to be subject to a supervision measure in their normal environment until such time as they are brought to trial in the foreign Member State..

For such a measure to be effective the new instrument would have to include, as a last resort, a coercive mechanism to return uncooperative suspects to the trial State, if necessary by force.

The consultation process

This Green Paper is the third step in the consultation process on alternatives to pre-trial detention.

The first step was to draw up and send out a questionnaire on pre-trial detention and alternatives to such detention in order to identify possible obstacles to cooperation between Member States in this area. The replies are summarised in the Commission staff working paper.

The second step was to produce a discussion paper on the basis of the replies to the questionnaire and to organise an experts’ meeting. The paper includes a proposal to introduce a European order to report regularly to a designated authority as a European-level non-custodial pre-trial supervision measure.

 

Recognition of decisions in criminal matters: strengthening mutual trust

Recognition of decisions in criminal matters: strengthening mutual trust

Outline of the Community (European Union) legislation about Recognition of decisions in criminal matters: strengthening mutual trust

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

Recognition of decisions in criminal matters: strengthening mutual trust

Document or Iniciative

Communication from the Commission to the Council and the European Parliament: Communication on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States [COM (2005) 195 final – Not published in the Official Journal]

Summary

The Commission focuses on aspects of the mutual recognition programme that have not yet been implemented. It resets the priorities for the years ahead in the light of the Hague Programme and analyses progress to date.

The pre-trial stage

The gathering of evidence is an important pre-trial stage. The evidence permits identification of the person committing an offence or, on the contrary, may confirm an individual’s innocence. In this communication, the Commission reviews several aspects of the pre-trial stage, namely:

  • mutual recognition of evidence: At European level, a proposal for a framework decision on the European evidence warrant (COM(2003) 688) should be adopted by the end of 2005 in accordance with the Hague Programme. However, it does not cover the entire range of necessary evidence. Moreover, the Commission would like to see mutual recognition of investigation measures such as questioning suspects, witnesses and experts, bank account surveillance or telephone-tapping orders. It considers that the ultimate objective is to adopt a single administrative instrument that will facilitate the gathering of evidence of all kinds in criminal cases throughout the Union. In the Commission’s view, the effect of applying the mutual recognition principle to the gathering of evidence should be to leave the investigations to be run by the issuing State (the State requesting another Member State to gather evidence). The executing State (the one providing the evidence) cannot question the decision to seek this or that piece of evidence;
  • supervision measures: As regards mutual recognition of non-custodial pre-trial supervision measures in the investigation procedure, the Commission mentions the Green Paper that was published in August 2004 [COM(2004) 562 final]. It observes that excessive use of pre-trial detention is one of the causes of prison overcrowding and that the alternatives available in national law are often impossible to use where the person resides in another Member State.

Mutual recognition of final judgments

Recognition of a final judgment given in one Member State has a series of consequences in the other Member States. In this communication the Commission considers a number of aspects of fundamental importance for effective mutual recognition, namely:

  • mutual information on convictions: Mutual recognition here depends on information on convictions being able to circulate freely. In line with the Hague Programme, the Commission presented in January 2005 a White Paper (PDF ) analysing the main difficulties in exchanging information on convictions;
  • the ne bis in idem principle means that no-one can be tried or punished again in criminal proceedings for an offence for which he has already been finally acquitted or convicted within the Union in accordance with the law. This principle is enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, which extends application of this principle throughout the Union, and this represents considerable progress compared with Protocol 7 to the European Human Rights Convention (ECHR). In addition, the Court of Justice of the European Communities has examined the scope of this principle and delivered major judgments in this respect in connection with the Schengen Agreements (C-385/01 Gozütok and Brugge; C-469/03 Miraglia);
  • taking account of convictions in other Member States in the course of criminal proceedings: The Commission advocates that convictions in criminal proceedings in other Member States should be taken into account. To this end, it has presented a proposal for a framework decision establishing a general principle whereby Member States would be required to attach the same effects to convictions handed down in the other Member States as to national convictions. Previous convictions may influence the course of a trial: the judge may assess the risk of repeat offending, thereby also influencing the nature and quantum of the sentence;
  • enforcement of criminal penalties: It must be possible for a sentence handed down in a Member State to be enforced anywhere in the Union. In April 2004 the Commission launched a consultation exercise on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union on the basis of a Green Paper (COM(2004) 334). In particular, Austria, Sweden and Finland have presented an initiative to permit enforcement in the Member State of nationality or residence, but not in the Member State that imposed the penalty. This instrument should also make it easier to apply certain provisions on the European arrest warrant. Nevertheless, the Commission would also like to address the question of the enforcement of non-custodial measures, suspended sentences and the conditions for them to be overridden by a penalty ordered in another Member State. It will present legislative proposals in 2007;
  • mutual recognition of disqualifications: Convicted offenders are often subject to disqualifications (e.g. from working with children, tendering for public contracts, driving or whatever). Such disqualifications vary widely in nature and because there are difficulties in exchanging information about them. The Commission takes the view that progress can be achieved once information on convictions can be exchanged via a computerised system. It recommends a sector-by-sector approach here, taking each type of sentence in turn.

Reinforcing mutual trust

The Commission stresses that reinforcing mutual trust is the key to making mutual recognition operate smoothly. This involves legislative action to ensure a high degree of protection for personal rights in the EU and a series of practical measures to give legal practitioners a stronger sense of belonging to a common judicial culture. The Commission envisages strengthening mutual trust between Member States both by legislative measures and by practical accompanying measures.

When it comes to strengthening mutual trust by way of legislative measures, the Commission would like to harmonise certain provisions of criminal law. In particular, it would like to see harmonisation of the law of criminal procedure at Community level so that mutually recognised judgments meet high standards in terms of securing personal rights, such as the presumption of innocence, decisions in absentia and minimum standards on the gathering of evidence. Consideration should also be given to the further approximation of substantive criminal law (definition of liability, offences and corresponding fines).

As regards strengthening mutual trust by practical flanking measures, the Commission would like to reinforce evaluation mechanisms so as to evaluate properly the practical needs of the justice system and, in particular, to identify potential barriers before new instruments are adopted. It would also like to see evaluation of the specific practical conditions for implementing EU instruments, and in particular best practices and the way in which the needs identified can be met. It is particularly important to reinforce mutual trust between judicial systems and, to this end, the Commission advocates promoting networking among practitioners of justice, such as the European Network of Councils for the Judiciary and the European Network of Supreme Courts. In addition, it attaches crucial importance to judicial training, which must, while respecting the powers of the Member States, fully reflect the European and international dimension of the judicial function, something that must be fully integrated into syllabuses.

The annex to the communication contains a Commission working paper setting out in tabular form the different objectives, the method of implementation and a schedule for the measures envisaged.

 

A new boost to trade in goods

A new boost to trade in goods

Outline of the Community (European Union) legislation about A new boost to trade in goods

Topics

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

Internal market > Free movement of goods: general framework

A new boost to trade in goods

Document or Iniciative

Communication from the Commission of 14 February 2007, “The Internal Market for Goods: a cornerstone of Europe’s competitiveness” [COM(2007) 35 final – not published in the Official Journal].

Summary

Improving the internal market is an ongoing process that requires continuous updating, taking account of recent technological progress, the constantly changing global situation and the needs of consumers.

Following a recent consultation process, the Commission has noted satisfaction at the considerable progress that has been achieved, although there are two major problems:

  • some national technical rules still constitute important barriers to free trade within the EU, particularly in sectors that have not been harmonised;
  • several EU rules are inconsistent and a burden to trade.

Small and medium-sized enterprises are the most seriously affected by this problem and the additional tests and red tape it entails.

The Commission proposes four initiatives:

  • mutual recognition

    A proposal for a regulation laying down procedures that the national authorities must follow in applying national technical rules to products lawfully marketed in another Member State. This proposal also envisages the establishment of national “product contact points” to provide information on the applicable technical rules.
    This proposal for a regulation will place the emphasis on transparency and efficiency: transparency in the exchange of information between businesses and the national authorities and efficiency by abolishing controls and tests involving duplication of work;
  • accreditation and surveillance

    A proposal for a regulation setting out the requirements for accreditation and market surveillance relating to the marketing of products. This measure will step up market surveillance activities – to ensure that non-compliant products are quickly withdrawn from the market – and make it easier to assess the conformity of goods. In order to do this, the certifications issued by accredited laboratories and testing facilities will have to be accepted throughout the EU;
  • conformity

    A proposal for a decision on a common framework for the marketing of products, aimed at streamlining the various product conformity assessment procedures;
  • registration of motor vehicles

    An interpretative communication on procedures for the registration of motor vehicles originating in another Member State. This will serve as the basis for a citizen’s guide on the transfer of vehicles within the EU, an issue that currently creates numerous practical difficulties as a result of bureaucratic registration formalities.

Background

This Communication is part of the Commission’s review of the Single Market in the 21st Century, which is based on a public consultation procedure launched in April 2006. As part of this review, a comprehensive analysis will be carried out on the four freedoms making up the Single Market, with a final report setting out the initiatives that will supplement the measures described in this Communication.

Accreditation and market surveillance

Accreditation and market surveillance

Outline of the Community (European Union) legislation about Accreditation and market surveillance

Topics

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

Internal market > Free movement of goods: general framework

Accreditation and market surveillance

Document or Iniciative

Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (Text with EEA relevance).

Summary

This Regulation envisages the laying down of clear rules on the organisation and operation of accreditation, in the Member States, of conformity assessment bodies performing assessment of any substance, preparation or other product, transformed or not, to be placed on the Community market.

It is important to guarantee a high level of market surveillance in order to satisfy the requirements of protection of public interests such as health and safety in general, health and safety in the workplace, protection of consumers, the environment and security.

These rules reinforce the existing system, without weakening existing instruments such as the General Product Safety Directive, which has on the whole been successful.

Accreditation

This Regulation provides a framework for European accreditation policy. For the first time it establishes a common legal basis for accreditation, therefore providing a comprehensive legal framework for regulating the organisation of accreditation within the European Economic Area (EEA) from 1 January 2010.

Whether voluntary or compulsory, accreditation is recognised as the last level of control of the suitability of conformity assessment services. Accreditation has no commercial purpose, since this would reduce its value and credibility.

Accreditation is characterised by the following:

  • there is only one accreditation body per Member State
  • there is no competition between accreditation bodies and conformity assessment bodies;
  • accreditation is carried out by a public authority;
  • accreditation bodies operate on a not-for-profit basis and comply with the principles of impartiality and objectivity.

The European cooperation for Accreditation (EA) shall be responsible for managing the peer assessment which monitors the responsibilities and functioning of the national accreditation bodies. Through this peer evaluation system, the EA contributes to the quality of the services provided by national accreditation bodies and therefore to the mutual acceptance of conformity certificates throughout the EU and the rest of the world.

Market surveillance

Member States guarantee effective surveillance of their market. They are required to organise and carry out close monitoring so that the products covered by Community harmonisation legislation meet the requirements for protection of public interests such as health or safety.

The competent market surveillance authorities in each Member State monitor products on the Community market. They are responsible for:

  • monitoring compliance with product safety requirements;
  • following up complaints or reports on product-related risks;
  • monitoring accidents and damage to health suspected to have been caused by these products;
  • verifying corrective action has been taken;
  • following up and updating scientific and technical knowledge concerning safety issues;
  • following up on the notification of dangerous products on RAPEX.

The Member States must cooperate with each other and ensure that information is exchanged between them and the Commission and the relevant Community agencies.

Market surveillance authorities must perform appropriate checks on the characteristics of products – through documentary, physical and laboratory checks – and may require economic operators to make available the necessary information and enter their premises to better perform, totally independently, their surveillance task.

If the authorities identify a product as presenting a risk, they shall alert users by taking the appropriate measures. If it presents a serious risk Member States ensure that:

  • the product details are changed on RAPEX;
  • the product is recalled or withdrawn;
  • the product is modified and the risk removed.

In cases of risk, Member States must inform the economic operator in question and the Commission of their decision without delay, stating precisely the reasons for this.

Where controls on products entering the Community market are concerned, the Member States provide their customs authorities with all the means necessary to ensure that the appropriate checks are carried out on the product’s safety before it is released for free circulation. In the event of serious danger, assumed or actual, or in the absence of the necessary accompanying documents, the customs authorities must suspend release for free circulation of the product in question.
The market surveillance authorities and the customs authorities cooperate to ensure effective control of product safety.

Certain activities planned for the application of this Regulation may be financed by the Union.

This Regulation repeals Regulation (EC) No 339/93 as of 1 January 2010.

Reference

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

Regulation (EC) No 765/2008

2.9.2008

OJ L 218 of 13.8.2008

Related Act

Regulation (EC) No 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No 3052/95/EC (Text with EEA relevance) [OJ L 218 of 13.8.2008].