1. Conflicts of Criminal Jurisdiction: Roadmap to Legislation at EU Level Vertical Mechanism Prof. J.A.E. Vervaele EPRS & ELI Roundtable Brussels, 4 December 2017

2. Vertical Mechanism: Overview
Goes beyond the ‘horizontal philosophy’ of the current legal framework by involving Eurojust.
Focuses on ‘settlement’ of conflicts of jurisdiction; horizontal consultation remains first step – but will be complemented by supranational procedure.
Involvement of Eurojust offers additional implementation options:
Current role: maintain, or develop?
Outcome: opinion/recommendation, or binding decision?
Judicial review: None, limited review, or full?

3. Draft vertical instrument: chosen options
Eurojust decision triggered by NAs or suspect
Possibility for suspect(s) and victim(s) to submit written opinion before Eurojust adopts its decision
Clear criteria for the choice of forum
Final binding decision by Eurojust
Limited judicial review of the ECJ on the Eurojust decision

4. Rationale and added value of vertical mechanism
Vis-à-vis Framework Decision 2009/948/JHA
Enhances legal certainty and consistency in the determination of jurisdiction to prosecute by:
Spelling out criteria for choice of forum
Involving Eurojust and empowering it with a binding decision
Providing for involvement of suspect(s) and victim(s)
Providing for judicial review by ECJ

5. Legal basis and choice of instrument
Art. 82 par. 1 (b) TFEU provides the legal basis for the adoption of “measures” to prevent and settle conflicts of jurisdiction in criminal matters;
“Measures” encompasses both regulations and directives;
Vertical model contains binding rules on settlement of conflicts of jurisdiction in criminal cases, in particular:
Definition of criteria and procedure
Role of Eurojust

6. Legal basis and choice of instrument continued
Art. 82(1) TFEU allows EU legislator to go beyond minimum rules.
Main aim is not approximation of national criminal laws  inappropriate to make instrument conditional on national implementing laws.
A Regulation is preferred.
Concerning role of Eurojust: amendment required to proposed EJ Regulation (COM (2013) 535 final).
On basis of Art.85 TFEU, as separate legislative initiative.

7. Proposed legislative instrument
First 10 articles correspond to those in horizontal mechanism.
Chapter 4: Eurojust Decision on the Choice of Forum
Article 11: Notification of Eurojust
Article 12: Ongoing obligation and precautionary measures
Article 13: Eurojust’s decision on the choice of forum
Article 14: Judicial review of the Eurojust decision on the choice of forum

8. Notification of Eurojust (Article 11)
Request from national authority or suspect.
Window in Art. 8(2).
Eurojust cannot act ex officio.
Negative conflicts vis-à-vis legal basis
Idem?
Notification by Eurojust
Exception to be narrowly construed

9. Ongoing obligation and precautionary measures (Article 12)
Investigative measures
Must not jeopardise outcome of procedure
Cf. necessary and urgent measures
Refrain from taking case to court
Standstill obligation = sincere cooperation

10. Eurojust’s decision on the choice of forum (Article 13)
Criteria: an integral part of the instrument.
Goal: Speedy progress (deadlines, time limits)
Art. 13(4): Written, reasoned, binding decision
Concentration of proceedings
Consequences of binding decision

11. Action for annulment pursuant to Article 263 paras 4 and 5 TFEU.
Judicial review of the Eurojust decision on the choice of forum (Article 14)
Action for annulment pursuant to Article 263 paras 4 and 5 TFEU.
Suspect directly affected
Victims?
“Arbitrariness” – not a full review
Action for failure to act pursuant to Article 265(1) TFEU

12. Vertical Mechanism