Regulation (EU) 2024/3011 of the European Parliament and of the Council of 27 November 2024 on the transfer of proceedings in criminal matters

CHAPTER 1

GENERAL PROVISIONS

Article 1

Subject matter

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘requesting State’ means a Member State in which criminal proceedings are being conducted and in which a request for the transfer of those proceedings to another Member State is issued, or which has initiated or received a request for consultations concerning a possible transfer of criminal proceedings;

(2) ‘requested State’ means a Member State to which a request for the transfer of criminal proceedings is transmitted for the purpose of taking over those proceedings, or which has received a request for or has initiated consultations concerning a possible transfer of criminal proceedings;

(3) ‘requesting authority’ means: (a) a judge, court, investigating judge or public prosecutor in the requesting State competent in the case concerned; or (b) any other competent authority which is designated as such by the requesting State and which, in the case concerned, is acting in its capacity as an investigating authority in criminal proceedings with competence to request the transfer of criminal proceedings in accordance with national law. In addition, before the request for the transfer of criminal proceedings is transmitted to the requested authority, it shall be validated by a judge, court, investigating judge or public prosecutor in the requesting State after examining its conformity with the conditions for issuing such a request under this Regulation. Where the request for the transfer of criminal proceedings has been validated by a judge, court, investigating judge or public prosecutor in the requesting State, that authority may also be regarded as a requesting authority for the purposes of transmitting the request;

(4) ‘requested authority’ means a judge, court, investigating judge or public prosecutor competent to take a decision on whether to accept or refuse the transfer of criminal proceedings in accordance with Article 11(1) and to take, where the legal system of the requested State so allows, subsequent measures in accordance with this Regulation or any measure as provided for in its national law. Without prejudice to the requirement that a decision on whether to accept or refuse a transfer of criminal proceedings in accordance with Article 11(1) must be taken exclusively by a judge, court, investigating judge or public prosecutor, on the basis of its assessment of the grounds for refusal under Article 12, the requested State may, due to the structure of its internal legal system stemming from a common law legal tradition, where its national legal system does not allow for its courts or public prosecutors to take measures other than the decision on whether to accept or refuse the transfer of criminal proceedings in accordance with Article 11(1), provide that another authority, competent to take measures in criminal proceedings under its national law, take measures for the sole purpose of facilitating such judicial decision-making. Such other competent authority may also take subsequent measures for the purposes of this Regulation;

(5) ‘decentralised IT system’ means a decentralised IT system as defined in Article 2, point (3), of Regulation (EU) 2023/2844;

(6) ‘victim’ means a victim as defined in Article 2(1), point (a), of Directive 2012/29/EU, or a legal person, as defined by national law, that has suffered harm or economic loss as a direct result of a criminal offence that is the subject of criminal proceedings to which this Regulation applies.

Article 3

Jurisdiction

To the extent that jurisdiction is not already provided for by the national law of the requested State, for the purposes of this Regulation the requested State shall have jurisdiction over any criminal offence to which the national law of the requesting State is applicable in situations where:

(a) the requested State refuses to surrender a suspect or accused person who is present in and is a national of or a resident in the requested State, on the basis of Article 4, point (7)(b), of Framework Decision 2002/584/JHA;

(b) the requested State refuses to surrender a suspect or accused person for whom a European arrest warrant has been issued and who is present in and is a national of or a resident in the requested State, if, in exceptional situations, it finds that there are substantial grounds to believe, on the basis of specific and objective evidence, that the surrender would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as enshrined in Article 6 TEU and the Charter of Fundamental Rights of the European Union (the ‘Charter’);

(c) most of the effects of the criminal offence or a substantial part of the damage forming part of the constituent elements of the criminal offence occurred on the territory of the requested State;

(d) there are ongoing criminal proceedings in the requested State against the suspect or accused person in respect of other facts and the suspect or accused person is a national of or a resident in the requested State; or

(e) there are ongoing criminal proceedings in the requested State in respect of the same, partially the same or related facts against other persons and the suspect or accused person in the criminal proceedings to be transferred is a national of or a resident in the requested State.

Article 4

Waiver, suspension or discontinuation of criminal proceedings by the requesting State

Any Member State having jurisdiction under its national law to prosecute a criminal offence may, for the purposes of applying this Regulation, waive, suspend or discontinue criminal proceedings in order to allow for the transfer of criminal proceedings in respect of that criminal offence to the requested State.

CHAPTER 2

TRANSFER OF CRIMINAL PROCEEDINGS

Article 5

Criteria for requesting the transfer of criminal proceedings

The requesting authority shall take into account in particular the following criteria when considering whether to request the transfer of criminal proceedings:

(a) the criminal offence has been committed in whole or in part on the territory of the requested State, or most of the effects of the criminal offence or a substantial part of the damage forming part of the constituent elements of the criminal offence occurred on the territory of the requested State;

(b) one or more suspects or accused persons are nationals of or residents in the requested State;

(c) one or more suspects or accused persons are present in the requested State and that State refuses to surrender those persons to the requesting State on the basis of: (i) Article 4, point (2), of Framework Decision 2002/584/JHA; (ii) Article 4, point (3), of Framework Decision 2002/584/JHA where such refusal is not based on a final judgment passed upon that person in respect of the same criminal offence which prevents further criminal proceedings; or (iii) Article 4, point (7), of Framework Decision 2002/584/JHA;

(d) one or more suspects or accused persons for whom a European arrest warrant has been issued are present in the requested State and that State refuses to surrender those persons, if it finds that, in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the surrender would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as enshrined in Article 6 TEU and the Charter;

(e) most of the evidence relevant to the investigation is located in, or the majority of the relevant witnesses are residents in, the requested State;

(f) there are ongoing criminal proceedings in the requested State in respect of the same, partially the same or other facts against the suspect or accused person;

(g) there are ongoing criminal proceedings in the requested State in respect of the same, partially the same or related facts against other persons;

(h) one or more suspects or accused persons are serving or are to serve a sentence involving deprivation of liberty in the requested State;

(i) the enforcement of the sentence in the requested State is likely to improve the prospects of social rehabilitation of the person sentenced or there are other reasons why enforcement of the sentence in the requested State would be more appropriate;

(j) one or more victims are nationals of or residents in the requested State;

(k) the competent authorities of the Member States have reached consensus, under Framework Decision 2009/948/JHA or otherwise, on the concentration of the criminal proceedings in one Member State.

For the purposes of the first subparagraph, point (j), the requesting authority shall take due account of child victims and other vulnerable persons.

Article 6

The rights of the suspect or accused person

The requesting authority shall, prior to issuing a request for the transfer of criminal proceedings:

(a) inform the suspect or accused person, in accordance with applicable national law and in a language which the suspect or accused person understands, of its intention to issue a request for the transfer of criminal proceedings; and

(b) provide the suspect or accused person with an opportunity to state an opinion on such transfer, including on aspects related to restorative justice.

The requesting authority shall not be required to fulfil the obligations laid down in the first subparagraph of this paragraph where:

(a) the fulfilment of those obligations would undermine the confidentiality of an investigation or otherwise prejudice the investigation;

(b) the suspect or accused person cannot be located or reached despite reasonable efforts being made by the requesting authority; or

(c) the request for the transfer of criminal proceedings follows a proposal from the suspect or accused person under Article 5(3).

Article 7

The rights of the victim

Where the victim is a natural person who resides in the requesting State and receives the information about the criminal proceedings in accordance with Article 6(1) of Directive 2012/29/EU, as implemented in national law, or is a legal person that is established in the requesting State and receives such information in accordance with national law, the requesting authority shall, prior to issuing a request for the transfer of criminal proceedings:

(a) inform the victim, in accordance with applicable national law and in a language which the victim understands, of its intention to issue a request for the transfer of criminal proceedings; and

(b) provide the victim with an opportunity to state an opinion on such transfer, including on aspects related to restorative justice.

The requesting authority shall not be required to fulfil the obligations laid down in the first subparagraph of this paragraph where:

(a) the fulfilment of those obligations would undermine the confidentiality of an investigation or otherwise prejudice the investigation; or

(b) the request for the transfer of criminal proceedings follows a proposal from the victim under Article 5(3).

Article 8

Procedure for requesting the transfer of criminal proceedings

The request for the transfer of criminal proceedings shall be duly substantiated and shall, in particular, contain the following information:

(a) information about the requesting authority;

(b) a description of the criminal offence which is the subject of the criminal proceedings, and the applicable provisions of the criminal law of the requesting State;

(c) the reasons why the transfer of criminal proceedings is necessary and appropriate and in particular which of the criteria under Article 5(2) are applicable;

(d) the necessary information available on the suspect or accused person and the victim;

(e) an assessment of the impact of the transfer of criminal proceedings on the rights of the suspect or accused person and the victim, on the basis of information available to the requesting authority including, where applicable, the opinion of the persons concerned, obtained in accordance with Article 6(3) and (4) or Article 7(2) and (3), or the proposals made under Article 5(3);

(f) information on procedural acts or measures with a bearing on the criminal proceedings that have been undertaken in the requesting State, including any ongoing temporary coercive measures and the time-limit for the application of such measures;

(g) any applicable specific conditions for the processing of personal data pursuant to Article 9(3) of Directive (EU) 2016/680.

Article 9

Information to be provided by the requesting authority after the transmission of the request

Article 10

Withdrawal of the request

Article 11

Decision of the requested authority

Article 12

Grounds for refusal

The requested authority shall refuse the transfer of criminal proceedings, in whole or in part, where criminal proceedings under the national law of the requested State cannot be brought or pursued in relation to the facts underlying the request for the transfer of criminal proceedings if one or more of the following grounds apply:

(a) the conduct in connection with which the request was made does not constitute a criminal offence under the national law of the requested State;

(b) taking over criminal proceedings would be contrary to the principle of ne bis in idem;

(c) the suspect or accused person cannot be held criminally liable for the criminal offence due to that suspect or accused person’s age;

(d) the criminal prosecution is statute-barred in accordance with the national law of the requested State;

(e) the conditions for prosecuting the criminal offence in the requested State are not fulfilled;

(f) the criminal offence is covered by amnesty in accordance with the national law of the requested State;

(g) the requested State does not have jurisdiction over the criminal offence in accordance with national law or jurisdiction on the basis of Article 3.

The requested authority may refuse the transfer of criminal proceedings, in whole or in part, if one or more of the following grounds apply:

(a) privilege or immunity under the national law of the requested State makes it impossible to take action;

(b) the requested authority considers that the transfer of criminal proceedings is not in the interests of efficient and proper administration of justice;

(c) the criminal offence has not been committed either in whole or in part on the territory of the requested State, most of the effects or a substantial part of the damage forming part of the constituent elements of the criminal offence did not occur on the territory of that State, and the suspect or accused person is not a national of or a resident in that State;

(d) the request form as referred to in Article 8(1) is incomplete or manifestly incorrect and has not been completed or corrected following consultation referred to in paragraph 3 of this Article;

(e) the conduct in connection with which the request was made is not a criminal offence at the place where it was committed, and the requested State has no original jurisdiction under its national law to prosecute the criminal offence.

Article 13

Time-limits

Article 14

Consultations between the requesting authority and requested authority

Article 15

Information to be provided to the suspect and accused person about the decision to accept or refuse the transfer

Where the requested authority has taken a decision in accordance with Article 11(1) to accept the transfer of criminal proceedings, the requested authority shall, without undue delay, in a language which the suspect or accused person understands:

(a) inform the suspect or accused person about the decision to accept the transfer of criminal proceedings;

(b) provide the suspect or accused person with a copy of the reasoned decision to accept the transfer of criminal proceedings; and

(c) inform the suspect or accused person about the right to an effective legal remedy in the requested State, including the time-limits for such a remedy.

Where appropriate, the requested authority may seek the assistance of the requesting authority in order to carry out the tasks referred to in this paragraph.

Where appropriate, the requesting authority may seek the assistance of the requested authority in order to carry out the tasks referred to in this paragraph.

The requested authority shall not be required to fulfil the obligations laid down in paragraph 1 and the requesting authority shall not be required to fulfil the obligations laid down in paragraph 3 where:

(a) the fulfilment of those obligations would undermine the confidentiality of an investigation or otherwise prejudice the investigation; or

(b) the suspect or accused person cannot be located or reached despite reasonable efforts being made by the requested authority or the requesting authority, respectively.

Article 16

Information to be provided to the victim about the decision to accept or refuse the transfer

Where the requested authority has taken a decision in accordance with Article 11(1) of this Regulation to accept the transfer of criminal proceedings, and the victim is a natural person who resides in the requesting State and receives the information about the criminal proceedings in accordance with Article 6(1) of Directive 2012/29/EU, as implemented in national law, or is a legal person that is established in the requesting State and receives such information in accordance with national law, the requested authority shall, without undue delay, in a language which the victim understands:

(a) inform the victim about the decision to accept the transfer by the requested authority;

(b) provide the victim with a copy of the reasoned decision to accept the transfer of criminal proceedings; and

(c) inform the victim about the right to an effective legal remedy in the requested State, including the time-limits for such a remedy.

Where appropriate, the requested authority may seek the assistance of the requesting authority in order to carry out the tasks referred to in this paragraph.

The requested authority shall not be required to fulfil the obligations laid down in paragraph 1 and the requesting authority shall not be required to fulfil the obligations laid down in paragraph 3 where:

(a) the fulfilment of those obligations would undermine the confidentiality of an investigation or otherwise prejudice the investigation; or

(b) the victim cannot be located or reached despite reasonable efforts being made by the requested authority or the requesting authority, respectively.

Article 17

Right to an effective legal remedy