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Prevention and Settlement of Conflicts of Exercise of Jurisdiction in Criminal Law

In its decision of 8 January 2013, the ELI Council accepted the project proposal as a project to be carried out under the auspices of the ELI. Professors André Klip, Katalin Ligeti and John Vervaele were appointed as project reporters. A Members Consultative Committee (MCC) was established.

Katalin Ligeti and John Vervaele presenting the project proposal at the 2012 ELI Project Conference in Brussels

Background information

As cross-border crime grows, international and transnational criminal justice is often confronted with situations where various States have legitimate jurisdiction over the same case. This can result in both positive and negative conflicts of jurisdiction. Traditionally the exercise of jurisdiction was usually limited by a State’s territory. Today however it extends beyond the principle of territoriality. There is, therefore, a significant need in both international and European criminal law to identify the most appropriate jurisdiction in which criminal cases should be tried. This is necessary in order to avoid, on the one hand, multiple prosecutions of the same crime, and, on the other hand, a failure to prosecution in any jurisdiction.

Project outline

The project tackles one of the most important legal problems within transnational criminal law. It aims at developing a new legal framework for the prevention and resolution of conflicts of exercise of jurisdiction. The Working Group – which is composed of practitioners and academics in the private and criminal law domain coming from different EU countries – will begin by carrying out a comparative study of different national provisions concerning conflicts of law in EU Member States. Based on the results of this work and also taking existing research into account, the Group will conduct an analysis of the existing means by which conflicts of jurisdiction are prevented and resolved. Following that, the project will move onto the second, developmental stage in which a new legal framework will be elaborated. While exploring the solutions to the problem of conflicts of jurisdictions in criminal law, the Group will give due consideration to the principles already used in that regard in the field of international private law.

Since their appointment, the reporters have been busy applying for funding. Their hard work has been fruitful and in October 2013 the Fonds National de la Recherche Luxembourg (FNR) confirmed that it would finance the project.

The work on the project commenced in November 2014 and will run until February 2017. Besides scientific research done by members of the Project Team and other members of the Working Group, four meetings are envisaged to discuss the results of the scientific research and the related practice, and to elaborate the legal framework.

The latest meeting of the Project Team took place in Vienna on 1-2 September. You can find more information about that meeting here.

Project's objectives

This project aims at elaborating a new legal framework for the prevention and resolution of conflicts of jurisdiction in criminal matters in the Area of Freedom, Security and Justice (AFSJ). In order to arrive at the proposed new legal framework the project will examine the following issues:

  • What should be the objective of a statutory horizontal framework at European level?
  • What type or types of measures are needed to prevent and settle conflicts of jurisdiction in criminal matters in the AFSJ?
  • Can useful parallels be drawn with the Brussels Regulation (in the area of private law) given the need to facilitate the mutual recognition of judgments and judicial decisions in criminal matters?
  • Should the transfer of proceedings and ne bis in idem be taken into account?
  • Does an integrated (EU) legal order with citizens’ rights make a difference (‘from conflicts of jurisdiction to choice of forum’)?
  • Is there, and if yes, to which extent, a role for European institutions, bodies and agencies?
  • What is the role, and what are the rights, of the defendant and victims, taking into account the ECHR and the EUCFR. Does the concept of EU citizenship have added value in this respect?
  • Is there a need for judicial review or ‘justiciability’?