Abstract
Conflict of jurisdiction is an issue that is not a new problem, but is one that is becoming more prevalent in recent times. This is especially true in the European Union with its four freedoms. One way the Union has tackled conflicts of jurisdiction is through Framework Decision 2009/948/JHA. This measure is designed to handle positive conflicts of jurisdiction, in particular attempting to prevent ne bis in idem violations. Recently the Union established the European Public Prosecutor’s Office, a new measure designed to not only resolve positive conflicts of jurisdiction, but negative ones as well. This article will highlight that the EPPO is not only a prosecution service but also a way to resolve conflicts of jurisdiction. It will do this by conducting a comparative analysis between the two measures by reviewing their respective function, communication, and determination of jurisdiction. Function examines what each measure is capable of doing. Communication examines the way authorities communicate and share information. Determination of Jurisdiction examines the criteria that is used by the mechanism to resolve the conflict. Using these methods will enhance our understanding of the measures the Union has to resolve conflicts of jurisdiction while also highlighting the role that EPPO will play in the years to come.
Keywords
Introduction
A conflict of criminal jurisdiction (herein: conflicts of jurisdiction) occurs the moment that at least two different jurisdictions or authorities could have the possibility to prosecute an individual. 1 Conflicts of jurisdiction are matters that most jurisdictions will have to contend with, with the consequences being multiple prosecutions of a person on the same facts, or no prosecution for criminal activity at all. The former is especially important in order to prevent ne bis in idem violations, while the latter would provide impunity if no State can or would prosecute alleged criminal activity.
Conflicts of jurisdiction can exist in various forms, positive or negative, explained further with the additions of in concreto and in abstracto. It is important to define these various forms. An in concreto positive conflict is when at least two jurisdictions are both investigating / prosecuting an offence, whereas an in abstracto positive conflict exists when another entity has jurisdiction, but it is unknown if they will exercise that jurisdiction. An in concreto negative conflict is when an entity refuses to exercise its jurisdiction despite having the jurisdiction to do so, whereas an in abstracto negative conflict exists when an entity could theoretically establish jurisdiction but has not done so. 2
When it comes to resolving or preventing the various forms of conflicts of jurisdiction, the European Union (‘EU’ or ‘Union’) has the ability to ‘adopt measures to […] prevent and settle conflicts of jurisdiction between Member States’ (‘MSs’). 3 The EU has adopted measures (directives) to prevent in abstracto negative conflicts from occurring. These directives mandate that MSs must criminalize a particular conduct and ensure that MSs establish jurisdiction over that conduct when committed in their respective territories or by their nationals as a minimum. 4 The latter element, however, can create other conflicts of jurisdiction issues; for example, if an EU national commits criminal activity in a MS other than their MS of nationality. 5 In order to rectify this issue, the EU created Eurojust in 2002, which has the ability to advise MSs on whom should exercise their jurisdiction. 6 In 2009, the EU adopted Council Framework Decision 2009/948/JHA (FD), 7 which mandated that MSs communicate with each other to genuinely attempt to resolve in concreto positive conflicts of jurisdiction. 8
Most recently, the EU established the European Public Prosecutor’s Office (EPPO), under Regulation 2017/1939 (EPPO Regulation), to investigate and prosecute crimes against the financial interests of the EU, 9 known as PIF-offences: offenses concerning fraud, corruption, money laundering, and misappropriation. 10 An element of the Regulation is the need to resolve conflicts of jurisdiction in two areas. First, whether the EPPO or the MS should investigate / prosecute criminal activity (vertical dimension). 11 Second, to determine the MS of forum for the EPPO to lead the investigation / prosecution in (horizontal dimension). 12
Unlike a Federal Prosecutor in the US, EPPO does not have its own jurisdiction or legal system, rather it relies on the jurisdictions of the MSs: accused persons are charged on the basis of national criminal law and the national (criminal) court systems of the MS are used. Thereby, in a traditional sense, the EPPO does not have its own jurisdiction, which is why the Regulation uses the term competence. However, the idea of conflicts of jurisdiction is not only centered on different MSs jurisdictions, but also exists between various authorities within a MS: financial fraud division, homicide division, etc. Therefore, despite the EPPO Regulation using different terminology, which is understandable, this article will equate the EPPO’s Regulation system of deciding who has competence and the ability to act on those competences as a conflict of jurisdiction.
This article will analyse and compare FD 2009/948/JHA and the EPPO Regulation to see how the Union has attempted to resolve conflicts of jurisdiction within the EU. The purpose is to highlight both how each respective measure operates when resolving a conflict of jurisdiction and how they compare to each other when it comes to resolving conflicts of jurisdiction. This will be done using three interlinked elements. First, the Function element will focus on the types of conflicts of jurisdiction and the ability to resolve those conflicts. Second, the Communication element will focus on how and when authorities should engage with each other. Third, the Determination of Jurisdiction element will focus on how authorities should determine which authority should exercise jurisdiction in a given case. The article will be divided based on the above elements. Within each element, measures from each system will be examined individually before being compared against each other.
This article will focus on in concreto positive conflicts, in abstracto positive conflicts, and in concreto negative conflicts to provide insight into how the EU has addressed conflicts of jurisdiction. The reason to exclude in abstracto negative conflicts of jurisdictions from this analysis, is that the only way to resolve such issues is by MSs adopting legislation (whether mandated by the EU or not) expanding their jurisdiction. In abstracto conflicts of jurisdiction cannot be resolved by national authorities that conduct criminal investigations working together to resolve a conflict.
Function
FD 2009/948/JHA
According to Article 1 of FD 2009/948/JHA, the FD is meant to foster closer cooperation in criminal proceedings between competent authorities. The goal is to prevent situations where a person is subjected to parallel criminal proceedings on the basis of the same facts in more than one MS, specifically to prevent an infringement of the ne bis in idem principle. Thereby, the competent authorities of the MSs should work together to come to a consensus on avoiding these adverse consequences, including concentration of criminal proceedings in one MS. 13
The resolution system is limited to only those situations where parallel proceedings are ongoing that have the chance to violate the ne bis in idem principle. The ne bis in idem principle, under Union law, provides that ‘a person whose trial has been finally disposed of in one [MS] may not be prosecuted in another [MS] for the same acts.’ 14 The Court of Justice (the Court) has further defined ‘same acts’ as the existence of a ‘set of facts which are inextricably linked together,’ irrespective of the legal classification given to them or the legal interest protected. 15 This provides us with a guideline of what types of parallel proceedings are included: only those proceedings by MSs that involve the same person(s) committing the same set of facts are dealt with under the FD. 16 Therefore, the FD is limited to resolving only in concreto positive conflicts of jurisdiction.
The FD does not have a binding decision-making component, instead it is based on consensus. 17 In cases where consensus cannot be reached, the matter may be referred to Eurojust for a non-binding opinion. 18 The FD provides more of a framework for communication to resolve conflicts of jurisdiction instead of providing a binding resolution between the competent authorities. 19 MSs themselves determine which of their own authorities will be classified as competent authorities under the FD to handle these conflicts, which used to be limited to MS national authorities. 20 However, with the adoption of the EPPO Regulation, the EPPO has also been designated as a competent authority by participating MSs of the EPPO. 21 This allows the EPPO, as a competent authority under the FD, to use the FD to resolve conflicts of jurisdiction with MSs that are not participating in the EPPO. 22
EPPO Regulation
Vertical Dimension
The vertical dimension handles the issue of whether the EPPO or the MSs authorities should handle a case. This occurs regardless of whether EPPO or the MSs have an active ongoing investigation. In order for EPPO to be the competent authority, it generally requires that the conditions under Articles 22, 23, and 25 of the Regulation are fulfilled. In accordance with Article 22 (material competence), the EPPO is competent for the investigation and prosecution of PIF-offences, 23 offences of participating in criminal organizations if the criminal organization’s focus is to commit PIF-offences, and other criminal offences when inextricably linked to PIF-offences. 24 In accordance with Article 23 (territorial/personal competence), the EPPO becomes competent over those offences, when the crime has been committed at least partly on at least one participating MS territory, by a national of a participating MS so long as at least one participating MS has jurisdiction, or by a person subjected to the Staff Regulation or Conditions of Employment of the Union as long as a participating MS has jurisdiction; the latter two handle extraterritoriality matters. 25 The above Articles, 22 and 23, handle the EPPO’s substantive competence. This is an essential element as the EPPO is always required to have substantive competence before it is capable of acting. 26
In accordance with Article 25, the EPPO should only exercise this competence when the amount of damage is above €10,000, unless there is an overriding Union interest; 27 in cases with inextricably linked offences, the PIF-offence must carry a higher sanction compared to the other offence(s), unless the other offence is instrumental in committing the PIF-offence; 28 and finally, the damage to the Union must be higher than compared to another victim. 29 Article 25 handles when the EPPO has exercise of competence. While this is an important factor when deciding to act, it is possible for the EPPO to continue to act when it loses the ability to exercise competence if it has an ongoing investigation. 30
When it comes to in concreto positive conflicts of jurisdiction, the Regulation takes a strict approach, it is forbidden to have such a situation. When the EPPO decides to exercise its jurisdiction, it bars other relevant authorities from acting. 31 Additionally, if a case is reported to the EPPO that is under criminal investigation by an authority, the EPPO can only evoke – take over – the case from the MS, it may not open a new parallel investigation. 32 This prevention also applies to the EPPO if it refers a case back to MSs, the EPPO is barred from continuing to act. 33 Additionally, as all inextricably linked offences are handled by the authority investigating the PIF-offence(s) – which will be either the EPPO or the MSs – the protection of the ne bis in idem principle is ensured when using the Regulation to resolve a conflict of jurisdiction. 34
When it comes to in abstracto positive conflicts of jurisdiction, the Regulation tackles this issue through the use of obligatory reporting. Union authorities and participating MSs have an obligation to inform the EPPO when there is a chance that it could act. The EPPO on the other hand has an obligation to inform authorities when it cannot act. 35 This ensures that EPPO is informed whenever there is a possibility that it could act on its competence, and that the EPPO informs relevant authorities when it lacks substantive competence or exercise of competency.
When it comes to in concreto negative conflicts of jurisdiction, the Regulation is a bit more limited. It has the ability to force the EPPO to initiate an investigation if all the criteria are present and no MS has opened an investigation; 36 additionally, if the EPPO attempts to refer a case and a MS does not take over, the EPPO must continue the investigation if it still has substantive competence. 37 However, the Regulation cannot force another authority to investigate a crime.
Under the Regulation, EPPO decisions on conflicts of jurisdiction matters are binding. 38 However, national prosecution authorities do have the ability to challenge the EPPO’s decisions when it concerns matters related to criminal organizations, inextricably linked offences, or exercise of competence criteria. 39 This means that while the EPPO decides, there is the possibility of ‘review’ by competent national authorities that decides on attribution of competences in national cases: in this situation that would be either the EPPO or the MS’s. 40 However, neither the binding decision taken by the EPPO nor the review by competent national authorities would require national enforcement authorities to take action. 41 While the review would determine the correct competent authority – the EPPO or the MS – the ability to require national investigations is determined by national law, not through the Regulation; the Regulation only determines who is the competent authority, but is unable to require that national action be taken. 42 While the Regulation is unable to force non-EPPO authorities from taking action, it does prevent those authorities from taking action if the EPPO is determined to be the competent authority. 43
On the other hand, it is capable of forcing the EPPO to take or refrain from taking action. 44 The centric nature of the Regulation is to determine whether the EPPO has the competence to take action; when the EPPO is competent this prevents other authorities from taking action, and when the EPPO is not competent it prevents the EPPO from acting. Therefore, the function of the Regulation is to resolve both in concreto and in abstracto positive conflicts as well as in concreto negative conflicts of jurisdiction between itself and the participating MSs.
Horizontal Dimension
Whenever a case is sent to the EPPO, the EPPO must decide on the MS of forum, in other words where the case will be investigated/prosecuted. 45 While this decision must be taken when a case is reported, it may also be taken before a prosecution by the EPPO is initiated. 46 As mentioned in the vertical dimension of the Regulation, the Regulation prevents in concerto negative conflicts from arising between the various authorities. This preventative element also exists in the horizontal dimension. The EPPO must ensure the protection of the ne bis in idem principle and may only conduct one investigation into the same person for the same facts. 47 The Regulation goes beyond the ne bis in idem principle by mandating that the EPPO take account of the principle of concentration. 48
The principle of concentration, under the Regulation, exists on the basis of same facts or same persons. In ‘principle a suspect or accused person should only face one investigation or prosecution by the EPPO’ or ‘where an offence has been committed by several persons, the EPPO should in principle initiate only one case and conduct investigations in respect of all suspects or accused persons jointly.’ 49 While the EPPO is meant to employ the principle of concentration (i.e., merge cases), it is permitted to split these cases if it is in the general interest of justice. 50 Thereby, unlike the ne bis in idem principle, it is not bound to always apply the principle of concentration but must take due consideration of it.
A limitation that is present within the Regulation is that all decisions taken on MS of forum are limited to the EPPO only. 51 If a case is referred to the MSs, MS authorities are not bound to the decisions taken by the EPPO. This may then necessitate a separate decision under the FD if more than one MS wishes to exercise its jurisdiction. 52 Therefore, while the EPPO has a mandate to resolve conflicts in a horizontal dimension, this does not bind the MSs to follow that decision if a case is returned to the MS. This limits the decisions taken by the EPPO to the EPPO alone.
Comparative Analysis
While the function of both the FD and the Regulation is to resolve conflicts of jurisdiction, there are differences in the types of conflicts they can handle and the ability to make binding decisions. The FD function is to handle parallel proceedings between the competent authorities of the MSs – horizontal dimension. Meanwhile the Regulation function is to handle whether the EPPO should exercise its competence – vertical dimension – and in which MS this competence should be exercised – horizontal dimension. There are four elements that will be compared.
First, the FD is only capable of resolving in concreto positive conflicts of jurisdiction; meanwhile, the Regulation resolves in concreto and in abstracto positive conflicts of jurisdiction and in concreto negative conflicts of jurisdiction. This is due to the function of each measure. The Regulation, when handling conflicts between the EPPO and another authority (the vertical dimension), must decide which of these authorities is competent. This is regardless of the investigation status of the case: the matter must be decided upon. Meanwhile the FD is only capable of handling a conflict if at least two MSs are actively investigating a case with the same facts and person (parallel proceedings occurring). The latter is meant to protect against potential violation of the ne bis in idem principle, whereas the Regulation is designed to decide whether and where the EPPO should act.
Second, the way the Regulation and the FD handle the MS of forum (the horizontal dimension) differs. The FD is limited to conflicts that arise due to parallel proceedings; this limits the ability to select a MS of forum to only those authorities that are invoking the FD. Meanwhile, the Regulation allows the EPPO to select any participating MS as long as the criteria of selection of the MS of forum under Article 26(4) is followed and the MS chosen has established jurisdiction under its national law over the criminal conduct and accused person. Additionally, the Regulation has an obligation to respect both the ne bis in idem principle and the principle of concentration, while the FD only focuses on the former.
Third, the two measures are directed at different authorities. The FD is directed towards all competent authorities of the MSs – including the EPPO 53 – whereas the Regulation is meant for the EPPO, the participating MSs, and Union authorities. 54 The MSs (and the EU) have therefore expanded the scope of the FD from purely national authorities to also include an EU authority, the EPPO. At the same time, the ability to use the FD by participating MSs is prevented when a conflict arises that involves them and the EPPO. In those cases, the Regulations must utilized. However, if a case is not evoked by the EPPO or is referred back to the MSs, MSs must determine, amongst themselves, the MS of forum. This would then necessitate the use of the FD if parallel proceedings were to arise.
Finally, the way the FD and the Regulation take decisions differs. Under the Regulation, decisions are taken by the EPPO and are binding upon all Union and participating MS authorities. 55 This decision prevents authorities from acting if the EPPO takes a case; however, it cannot force other authorities from opening an investigation if the EPPO does not take a case or refers a case back to the MSs. The Regulation does mandate that the EPPO must open a case, if it has substantive competence and the ability to exercise that competence (Articles 22, 23, and 25), and there is no current investigation by the MSs. 56 The FD, on the other hand, does not have a binding decision-making element. The involved authorities are meant to work together to come to a solution through consensus. This limitation means that it is possible that consensus cannot be reached, and no solution is found. While the matter could be referred to Eurojust, this decision is also non-binding. 57 Therefore, if the authorities are unable to decide, a conflict of jurisdiction can either persist indefinitely or lead to a potential infringement of the ne bis in idem principle, something the FD was designed to prevent.
Communication
FD 2009/948/JHA
The FD provides that when ‘a competent authority of a [MS] has reasonable grounds to believe that parallel proceedings are being conducted in another [MS], it shall contact the competent authority of that other [MS].’ 58 In response, any ‘contacted authority shall reply to a request submitted’ to them. 59 Based upon this initial communication, and information shared between the authorities, 60 they determine whether parallel proceeding actually exist that could lead to an infringement of the ne bis in idem principle. 61 If parallel proceedings do exist, the involved authorities ‘shall enter into direct consultation in order to reach consensus on any effective solution aimed at avoiding the adverse consequences arising from such parallel proceedings.’ 62 If consensus is not possible, the matter may be referred to Eurojust. 63 The above provides the basis of communication within the FD.
The obligatory nature of the FD is implied by the word ‘shall.’ 64 This obligation exists for authorities to communicate with each other (to contact and to reply) and enter into consultations to resolve parallel proceedings. The obligation to contact is contingent upon the competent authority believing that there are ‘reasonable grounds’ that parallel proceedings exist. 65 The FD provides a non-exhaustive list of what may constitute ‘reasonable grounds’: when a suspect has informed the authority that another MS has questioned them on the basis of the same facts, the authority has received a relevant mutual legal assistance request on the same facts, or the authority has been informed by the police that another MS’s authorities may be investigating the same facts. 66 Eurojust is also capable of informing competent authorities that there may exist parallel proceedings with another MS(s). Eurojust is unable to invoke the FD; 67 however, its role in assisting juridical authorities in MSs means that it can ‘see’ if various competent authorities are investigating the same facts or person(s). 68
As stated, the reasons to suspect parallel proceedings are not limited to what is provided within the FD; nonetheless it is interesting to note that nationality of the suspect was not included within that list. This is interesting as EU criminal directives mandate that MSs ensure they will have jurisdiction over crimes committed in their territory or by one of their nationals. 69 For example, if an EU national commits a crime covered by an EU directive in a MS other than their State of nationality, there would be two MS with jurisdiction over that criminal activity – the MS where the crime occurred and the MS of which the person is a national. This means that there is a possibility that two MSs are investigating / prosecuting that criminal conduct – an in abstracto positive conflicts of jurisdiction, as it is only a possibility not a certainty. The reason for excluding nationality – as well as providing a clear understanding of what constitutes ‘reasonable grounds’ – can be examined in light of the function of the FD. It is a way to resolve in concreto positive conflicts of jurisdiction only. It is not a way to inform other MSs of criminal activity, nor to find a way to determine if other MSs are investigating. Therefore, reasonable grounds are present when there are factual indicators that another authority is conducting parallel proceedings, not that they potentially could be. Only when there are reasonable grounds, must the competent authorities of the MSs contact each other
EPPO Regulation
Vertical Dimension
Communication within the Regulation is handled differently depending on who must initiate contact. First, there are the authorities who have an obligation to report to the EPPO, and second, the obligation of the EPPO to report to authorities. This section will analyse these obligations in two parts.
Authorities Reporting to the EPPO
The Regulation provides that Union authorities or participating MS competent authorities ‘shall … report to the EPPO any criminal conduct in respect of which it could exercise its competence in accordance with Article 22, Article 25(2) and (3).’ 70 Specifically, judicial or law enforcement authorities in the participating MS also have this obligation whenever initiating an investigation and at any time after initiating an investigation. 71 The EPPO then ‘shall inform the competent national authorities’ 72 or ‘shall […] inform the authority that reported [it],’ 73 of its decision on whether it will take a case. The above provides the basis of communication when it comes to reporting to the EPPO.
The use of ‘shall’ within the Regulation is a strong indicator of the obligatory nature that authorities must report to the EPPO and that the EPPO must respond to those reports. 74 The obligation to report, however, is centred on whether the EPPO could exercise its competence based upon Articles 22 & 25(2) – (3) only. 75 This means that national and EU authorities do not review whether the EPPO may have territorial/personal competence under Article 23. 76 Authorities are meant to take a preliminary review of the criminal activity. They are not required to know whether that conduct actually fulfills the requirements under those Articles, only that there is a possibility that the EPPO could have competence. 77 This limits auhtorities to checking whether there is a chance that the criminal conduct is a criminal offence that the EPPO can handle, and whether the criteria under the exercise of competence are met.
The EPPO also has an obligation to report back to authorities when it decides to open or evoke a case. 78 However, when it concerns a report coming from an authority that is conducting a criminal investigation, there is an added element. In these cases, the EPPO ‘shall, where appropriate, consult the competent authorities of the [MS] concerned before deciding whether to exercise its right of evocation.’ 79 Therefore, when a case is under criminal investigation, the EPPO should engage with national authorities to determine if it would bring added value by evoking a case. 80 This open discussion can ensure that EPPO focuses its resources where they are needed most, instead of attempting to handle all cases within its competence.
Reporting to Non-EPPO Authorities.
The Regulation provides that the EPPO must report to national authorities when: • ‘it comes to the knowledge of the EPPO that a criminal offence outside its competence may have been committed’,
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• ‘an investigation conducted by the EPPO reveals that the facts subject to investigation do not constitute a criminal offence for which it is competent [substantive competence]’,
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• ‘an investigation conducted by the EPPO reveals that the specific conditions for the exercise of its competence […] are no longer met,’
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or • if the EPPO wishes to dismiss a case that either has inextricable linked offences or concerns expenditure fraud where the potential damage to the Union’s financial interests does not exceed the potential damage to another victim.
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Similar obligations exist for the EPPO to report to OLAF (the EU’s Anti-Fraud Office), if OLAF could have competence to conduct an administrative investigation and the EPPO lacks the ability to exercise its competence.
85
The above elements handle various situations of when the EPPO must report to the MS. The common theme is that whenever the EPPO finds a situation where it lacks substantive competence or the exercise of competence, it must report this to national authorities. Additionally, the EPPO must report to national authorities when it wishes to dismiss a case that has inextricably linked offences attached or concerns expenditure fraud with potentially higher damage to a victim other than the Union. Unlike authorities reporting to the EPPO, the EPPO obligation only exists after it has decided that it lacks substantive competence, the ability to exercise that competence, or in limited cases wishes to dismiss a case. Interestingly, the Regulation does not mandate that authorities reply to the EPPO’s attempts to contact them. 86
An interesting, but understandable, provision is Article 27(3) of the Regulation. The provision provides that if the EPPO becomes aware of an investigation by a participating MS into a situation over which it could have competence, EPPO must inform that authority. 87 It is meant to remind authorities that they have an obligation to inform the EPPO of cases that the EPPO could investigate. The reason why the EPPO knows of the case can vary, from whistleblowers to the EPPO investigating the case and becoming aware of parallel investigations by a MS. 88 It would seem that this provision is meant to ‘fix’ issues within the obligation to report to the EPPO by national authorities, if the EPPO believes this may be the case. Although the provision does not seem to demand action by the MS outright, 89 it is a clear message that they should at least review whether they have an obligation to report.
Additionally, the EPPO is allowed to refer cases under its investigation to national competent authorities if the damage is less than €100,000 and does not warrant the EPPO’s involvement, 90 or, in cases of expenditure fraud, if the (likely) damage caused to the EU does not exceed the (likely) damage caused to another victim. The latter element is only optional as long as the EPPO does not attempt to dismiss the case. 91 Reporting to authorities in these cases is different from the above-mentioned obligation to report: the EPPO does not have an obligation in this case. It only allows for the EPPO to transfer a case to national authorities if it believes this is the best course of action. This optional referral is only in cases where the EPPO wishes to refer a case of which it still has competence.
Horizontal Dimension
The horizontal dimension within the Regulation handles the issue of where a case will be investigated/prosecuted, i.e., the MS of forum. This matter is dealt with internally by the EPPO with the concerned European Delegated Prosecutors and European Prosecutors of the MSs, the Permanent Chamber(s) overseeing the case, and the European Chief Prosecutor. 92 As this is an internal communication matter, the article will not go into depth here. However, it should be noted that the EPPO communicates within itself to determine where a case goes and if it needs to be reassigned to another MS. 93
Comparative Analysis
Remnants of the FD are still present within the Regulation. The FD is built upon the requirement to communicate and have open dialogue between the competent authorities on who may be better placed to handle a case. The Regulation requires that authorities communicate with each other and that the EPPO should consult with competent MS authorities when handling evocation situations. However, there is a difference between the two measures regarding when the obligation to communicate arises. The FD is based on a test of reasonable grounds: does an authority have a reason to believe that another authority is investigating the same person and facts? This trigger is equal for all authorities. On the other hand, the Regulation has two different triggers: one for non-EPPO authorities and one for the EPPO. Non-EPPO authorities are required to report when they believe that the EPPO could investigate the matter. Meanwhile, the EPPO is required to report when they know they cannot act or do not wish to act. This is understandable when reviewing the main function of the two measures. The FD is only meant to resolve in concreto positive conflicts that could violate the ne bis in idem principle; while the Regulation function is to determine whether the EPPO should act. This means that the FD’s ‘higher’ threshold makes sense as it can only resolve situations where at least two MSs authorities are investigating. On the other hand, the Regulation determines if the EPPO is the competent authority, requiring ‘lower’ thresholds to report to the EPPO, but only requiring the EPPO to report when it is sure it cannot act.
Determination of Jurisdiction
FD 2009/948/JHA
The FD establishes a means for competent authorities in MSs to resolve in concreto positive conflicts of jurisdiction. In order for the authorities to resolve the conflict, the FD provides that authorities ‘shall consider the facts and merits of the case and all factors they deem relevant.’ 94 These are the only binding criteria contained within the FD. 95 The last criterion in particular allows the MSs’ authorities to make use of any factors as long as they deem them ‘relevant,’ which can lead to forum-shopping. 96 However, the FD does provide that when assessing the MS of forum, the Eurojust Guidelines (Guidelines) on MS of forum should be considered. 97 The Guidelines not only provide what to take into account, but also what not to take into account.
The Guidelines state that MSs should strive to have the case prosecuted in the territory where the majority of the crime took place (or where the loss was greatest). 98 However, the Guidelines provide additional factors that could be used to determine jurisdiction; they are, in no particular order: the location of the suspect, 99 availability and admissibility of evidence, ability to obtain evidence from witnesses, experts or victims, protection of witnesses, interest of the victims, and the stage of proceedings. 100 Additionally, the guidelines provide that the length of proceedings or the costs and resources needed to handle a case should only be considered if all other factors are equal. The Guidelines mention that MSs may consider the legal requirements, sentencing powers, and proceeds of crime; however, these must not be used to circumvent legal obligations, to gain a harsher sentence, or obtain a more effective recovery of the proceeds of crime. Additionally, MSs’ priorities should never be used as a reason to not take a case. 101
The Guidelines take the strong position that the territory where the crime was committed or where the loss was sustained should be the jurisdiction that handles the case. Despite this pull to territory, the Guidelines explore various other factors that authorities can take into account: from the location of the suspect to the stage of proceedings. The issue is that the Guidelines are vague and open-ended. While this allows for its application in various situations, it can also lead to potential abuse. 102 In order to counteract this issue, the Guidelines note that certain elements should not be used to the determinant of the accused. Rather, as the FD seems to indicate already, the Guidelines are signposts for authorities on the various factors that may arise and how they potentially could be used when taking decisions on the appropriate jurisdiction.
EPPO Regulation
Vertical Dimension
The function, as previously stated, of the Regulation is to determine whether the EPPO is competent to act. This decision has far reaching consequences, from preventing MSs from acting or preventing the EPPO from taking action. The Regulation is therefore built on various conditions that the EPPO must analyse before taking or returning a case. To make sense of these various conditions and what they mean for the EPPO, they will be examined individually: substantive competence – comprising both material and territorial/personal competence – and exercise of competency, and then how those conditions are applied to a case.
Substantive Competence
The main basis of the EPPO’s material competence is that the criminal activity must be a PIF-offence as defined by both EU and national law. 103 If the criminal activity does not meet this definition under both Union and national law, the EPPO will lack material competence. 104 If the above condition is met, the EPPO has the possibility to extend its material competence to participation in a criminal organization or additional offences. 105
In order for the EPPO to expand its competence to participation in a criminal organization, the criminal organization must focus its criminal activity on committing PIF-offences. 106 There is doubt whether a multi-focal criminal organization would qualify if their primary focus is not limited to committing PIF-offences. 107 In order for the EPPO to handle additional offences beyond PIF-offences, these two types of offences must be inextricably linked together. 108 There is debate as to whether ‘inextricably linked’ covers only additional offences that would generate ne bis in idem consequences, or if a more expansive interpretation should be used. The Regulation seems to indicate a more restrictive understanding of those cases which have potential ne bis in idem consequences, whereas the EPPO has a more expansive understanding. 109 However, the EPPO lacks competence when it concerns national direct tax, including PIF-offences when inextricably linked. 110
The territorial/personal competence of the EPPO is centered on ensuring that at least one participating MS has established jurisdiction over the person committing the offence. This may occur in one of three ways. First, that at least part of the criminal activity occurred on the territory of a participating MS. Second, that a national of a participating MS committed the offence and any participating MS has established jurisdiction over this person. Third, that the offence was committed by a person subjected to the Staff Regulations or conditions of Employment of the Union when the offence took place. 111 This final condition is limited to ‘staff’ and does not apply to more high-level Union persons: for example, MEPs or Commissioners. This clause allows for the EPPO to investigate and prosecute Union staff, even if they are not nationals of participating MSs. 112 However, it would require that a participating MS has established jurisdiction over those concerned persons.
Exercise of Competence
The first exercising competency criterion is the ‘minor damages criteria,’ under Article 25(2) of the Regulation. This entails that if the damages caused to the Union’s financial interest is below €10,000, the case must remain with the concerned authorities. However, there is an exception: if the case has repercussion at the Union level or if the suspect is an official, servant, or member of the institutions of the Union. 113 A reason for the €10,000 damages level can be due to the nature of the PIF Directive itself, which allows MS to not criminalize PIF-offences if the damage is below €10,000. 114 This latter point may also prevent the EPPO from using the exceptions – the Union aspect – in this criteria if MSs have not criminalized this conduct, since the EPPO must have a criminal offence in order to investigate/prosecute a person. 115 This means that there would be a level playing field across the EU, as the EPPO would only handle cases where all participating MSs have criminalized the conduct, with a safeguard in cases where there is an overriding Union interest. However, in order for the EPPO to exercise its competence due to an overriding Union interest would require that MS to have criminalized conduct that results in damage of less than €10,000.
The second exercising competency criterion is the ‘preponderant inextricably linked offence criteria,’ under Article 25(3)(a) of the Regulation. While the EPPO is competent to investigate and prosecute any other offence that is inextricably linked to a PIF-offence, it is limited to cases where the PIF-offence carries a higher sanction. 116 The Regulation here is ensuring that the EPPO only takes cases where the PIF-offence is preponderant to another offence. 117 In order to reflect this, there is an exception that the PIF-offence must carry a higher sanction, whenever an inextricably linked offence was instrumental to commit the PIF-offence EPPO has the ability to exercise its competence. 118 In other words, was the goal to commit a PIF-offence and the other criminal activity simply a means to that end? Therefore, this element can be seen as ensuring that the focus of the EPPO is on PIF-offences and not other offences where a PIF-offence may have been committed but is not the focus of that criminal activity.
An issue noted by the EPPO arises when a MS has two offences for a PIF-offence, one for the MS and one for the Union, unlike MSs that only have one offence for both the MS and the Union. 119 For example, under Austrian law, subsidy fraud against Austria is covered under §146 whereas subsidy fraud against the Union is covered under §168f of the Austrian Criminal Code (Strafgesetzbuch). 120 Meanwhile, under Dutch law, subsidiary fraud against the Dutch State and the EU is covered by the same criminal law provision, Article 323a of the Dutch Criminal Code (Wetboek van Strafrecht). 121 In the latter case, if subsidy fraud is committed against the Union and the Netherlands, there would not be an issue of inextricably linked offences, as it is the same offence and the EPPO would be competent. However, under the Austrian system, if the fraud occurred against both the EU and Austria there would be two inextricably linked offences, and if both carry the same penalty the EPPO would lack the ability to exercise its competency. This creates issues, as two similar cases in two MSs would lead to different outcomes depending on how the PIF Directive was implemented.
The third exercising competency criterion is the ‘preponderant victim criteria,’ under Article 25(3)(b) of the Regulation. This criterion is only applicable to Revenue Fraud, Money Laundering, Corruption, and Misappropriation Offences. 122 This criteria provides that if another victim (likely) suffered more damages than the Union, the case must remain with the national authorities. 123 However, in unique situations, competent national authorities are allowed to waive this criteria and thereby allow the EPPO to act instead. 124 This is a unique aspect that shows the importance of open dialogue and communication between the EPPO and national authorities, since it may be the case that the EPPO is better placed to handle the case – especially in cross-border situations.
Application
The application of the competence elements above affect the outcome of resolving a conflict of jurisdiction depending on whether there is an active national criminal investigation ongoing by a participating MS – ‘initiating an investigation’ if there is not or ‘evoking an investigation’ if there is – or if the EPPO must refer a case back to the participating MS (refer an investigation). 125
When it comes to the application of the EPPO’s substantive competences and exercise of competence to either initiating an investigation or evoking an investigation, there is not a demand that the conditions must be known to be met. Rather, in accordance with the applicable national law, that it is reasonable to assume that the criteria are met. 126 The difference between initiating and evoking is with regards to what action the EPPO must take after they determine these conditions are met. If there is no active national criminal investigation, the EPPO must initiate an investigation. 127 This mandatory obligation to initiate an investigation prevents in concreto negative conflicts of jurisdiction from occurring. However, if there is an active national criminal investigation ongoing, the EPPO has the ability to take over the case, but is not obligated to do so. 128 Evoking a case from a participating MS prevents in concreto positive conflicts from arising – if the EPPO takes over – as it prevents other authorities from investigating, 129 or settles potential in concreto negative or in abstracto positive conflicts of jurisdiction – if the EPPO does not take over – as it would be decided that the MSs continues the investigation instead. However, this would not prevent other MSs from acting if the EPPO does not take the case.
When it comes to the application of the EPPO’s substantive competence or exercise of competence in referral situations, the EPPO must refer the case back to the MSs if one of the competence conditions is no longer fulfilled. 130 This can create in concreto negative conflicts of jurisdictional issues if a MS does not continue the investigation, as the EPPO would be barred from acting. However, there is an exception; if a referral to the MS was only triggered due to the EPPO not fulfilling the exercise of competence conditions and the MS does not takeover the case, then the EPPO must continue the investigation as if that condition was fulfilled. 131 This is due to the fact that the EPPO’s substantive competence remains intact. 132 This ability for the EPPO to keep a case, despite ‘losing’ exercise of competence, ensures a protection against in concreto negative conflicts from arising.
In all cases, regardless of the way the EPPO has obtained the case, participating MSs and Union authorities are barred from acting. 133 This means that situations of in concreto positive conflicts of jurisdiction are automatically resolved between the EPPO and other authorities. If the EPPO takes the case, other authorities are barred, if the case remains with the national authorities, the EPPO is barred. While there may still be issues where MSs are unaware that the EPPO is acting, the very nature of the Regulation means that they must report to the EPPO and would most likely be prevented from continuing their national investigation on the basis that the EPPO has competence.
Additional Elements
There are additional elements that the EPPO should consider when deciding on whether it should act. These elements are, however, limited to situations where the EPPO evokes, refers, or dismisses cases. They may not be used as a reason to not initiate an investigation by the EPPO. 134 First, there is the major damages criteria, under Articles 27(8) and 34(3). This criterion is similar to the minor damages criteria, however the limit is set at €100,000. 135 This element may only be used if national authorities are willing to conduct an investigation, and cannot be used to circumvent an obligation to initiate an investigation. 136 Second, is extending the application of the ‘preponderant victim criteria’ to situations involving expenditure fraud if the EPPO wishes to dismiss a case or if there are inextricably linked offences attached. The EPPO then determines if a MS wishes to take over the case before dismissing it. 137
Horizontal Dimension
The Regulation handles horizontal dimension issues internally: the EPPO alone decides on the correct MS of forum. 138 The standard MS of forum is the territory where the focus of the criminal activity has occurred or, if there are several connected offences within the EPPO’s competence, the bulk of where these offences has occurred. 139 The idea of territory is limited by the Regulation to where the activity has happened, not where the financial damage has occurred. 140 This indicates that actual acts have taken place within a MS territory, and where the majority of these acts have happened should be the MS of forum.
This can lead to issues where it is difficult (or impossible) to determine the correct territory: e.g., two MS are equally eligible under the territorial element. This is resolved with additional criteria that can be considered. These available criteria are, in order of priority: suspect’s habitual residence, nationality of the suspect, and the place where the main financial damage has occurred. 141 The Regulation places a high importance on the suspects’ personal situation. This is seen on the focus that first their habitual residence is an important factor and must be considered before the EPPO considers the accused person’s nationality. 142 This ensures that the suspect will be investigated or tried in a place that they would have familiar ties with. Additionally, the place of financial damage is not an indicator of where the focus of the damage occurred, but is a separate ranked issue. The above elements are the only conditions that may be taken into account.
When using the other three conditions – habitual residence, nationality, financial damage – the EPPO must ‘duly justify’ why they were needed. 143 There is debate on when a situation would be duly justified; however, at a minimum the EPPO must be able to explain why they took the decision they did. 144 Additionally, the EPPO could re-assign cases to another MS, and also has the power to split or merge cases. 145 The criteria here is that the EPPO can only make this decision if it is in the general interest of justice to do so. Again, when a matter is in the general interest of justice is unknown. What can be stated about this is that the EPPO must not only consider their own interest but must also take due account of the suspect’s interest and the current state of the investigation. 146 An additional element to the splitting and merging of cases is that the EPPO is required to apply the principle of concentration. A person – or persons if it concerns similar facts against all of them – should generally only face one prosecution by the EPPO. However, the EPPO is still given a lot of leeway when deciding on these matters, so long as the ne bis in idem principle is upheld and the interest of suspects is taken into account before the EPPO takes a decision. 147
Comparative Analysis
The two measures handle the issue of determination of jurisdiction differently. The FD settles conflicts of jurisdiction in a horizontal dimension only, thereby deciding both on the authority to have the case and the MS of forum at once. On the other hand, the Regulation settles conflicts of jurisdiction in a vertical dimension – handling only issues of the correct authority – and in a horizontal dimension – handling only issues of MS of forum.
Another difference is that the FD lacks any binding criteria when settling a conflict of jurisdiction, whereas the Regulation is strictly criteria based. Despite the lack of binding criteria within the FD, the Guidelines are recommended. Here we see similarities between the two measures: territory, residency, nationality, financial damages. Unlike the Guidelines however, the Regulation limits the number of allowable criteria, takes a stronger demand to using the territory of where the criminal activity took place, and limits the meaning of territory to actual acts committed.
Another aspect is that the Guidelines provide multiple options on the location/situation of the suspect to help determine the MS of forum – for example, nationality, residence, personal connection, etc. The Regulation only provides for two options: habitual residence and nationality; and, unlike the Guidelines, has provided them in an order of priority. An interesting aspect here is how habitual residence trumps nationality as EU criminal law directives only provided that MSs must establish jurisdiction over their own nationals for criminal activity committed abroad. 148 Yet, the Regulation here dictates that when deciding on the MS of forum, the habitual residence of the suspect is of a higher importance than nationality. The Guidelines, on the other hand, do not differentiate between the two. In fact, they are listed within the same bullet point, with nationality listed first. 149
The options for MS of forum are also wider within the Guidelines. The EPPO is restricted to territory, residence/nationality of the suspect, and place of financial damage; whereas under the Guidelines, it is permissible to make use of arguments based on location of evidence, protection of witnesses, etc. The Guidelines seems to provide that MSs can make use of any of the permissible criteria. However, in fact there are limitations within the Guidelines. For example, it is never permissible to decide based on the argument that one jurisdiction is better as it would ease the recovery of funds, that a national court has more sentencing powers, or to avoid complying with legal obligations. Compared to the Regulation, however, the permissible elements to be used when deciding jurisdiction are numerous. The EPPO is limited in the criteria it may use and must always justify the reason why it has taken a decision that deviates from handling a case in the territory of the MS where the bulk/focus of criminal activity occurred. Additionally, the interest of the suspect must be considered when attempting to change a MS of forum or splitting/merging cases. This latter element is unique, as the idea of taking account of the suspect’s interest is unknown within EU resolution measures until now.
The FD does not provide for any elements covering where a national authority itself should be able to investigate or prosecute a person(s), unlike the Regulation where various components of competences are covered. This ties back to the function of the two measures. The FD starting point is that national authorities have already decided whether they are competent to investigate/prosecute a person. The main element here is that at least two MSs are already conducting parallel investigations. Meanwhile, the Regulation must provide regulations on whether the EPPO could conduct the investigation/prosecution. Due to Article 25(1) of the Regulation, if the EPPO has competence and then acts on those competences, it prevents authorities from acting. The regulation also contains requirements for the EPPO to open a case when it has substantive competence and exercise of competence if no other criminal investigation is ongoing in the participating MS. This means that the Regulation, when deciding if the EPPO has the power to act, has also automatically engaged with resolving conflicts of jurisdiction between two authorities.
Conclusion
This article examined two EU measures used to resolve conflicts of jurisdiction: FD 2009/948/JHA and the EPPO Regulation. It did this by examining the Function of each measure, how each measure uses Communication between the authorities, and finally how it regulates Determination of Jurisdiction. Additionally, it demonstrated throughout how the Regulation both regulates the EPPO and decides on conflicts of jurisdiction between it and participating MS and Union authorities. A major component throughout the article was highlighting key differences between the two measures. The function of the FD is centered on resolving in concreto positive conflicts meanwhile the function of the Regulation is to resolve both in concreto and in abstracto positive and in concreto negative conflicts.
The criteria used by the various measures differ. The Regulation provides detailed conditions that the EPPO must meet to act, and when determining the MS of forum. Meanwhile, the FD only provides that authorities should consider the facts and merits of a case and all factors which the authorities themselves consider to be relevant, with a remark to the Guidelines. The Regulation in this area has taken it a step further by stating what the relevant factors are. While issues as to the meanings of ‘duly justified’ and ‘general interest of justice’ remain, the Regulation at least provides for the first time an obligation to justify why a decision was taken in the field of conflicts of jurisdiction. This can ensure that issues of forum-shopping are curtailed, or at least provide insight to why the EPPO decided on the MS of forum.
Despite these differences, similarities and remnants of the FD are still present throughout the Regulation. The obligation to communicate is present in both. The difference lies in the ‘trigger’ for when an authority must communicate. However, this is understandable as the EPPO must rely on MS authorities, as it lacks its own dedicated enforcement agency. Additionally, the FD is based upon consensus decision-making. This same idea is present within the Regulation when the EPPO is made aware of a case that is already under investigation. Here the EPPO should engage with the national competent authority before evoking a case. This open dialogue is used by the EPPO to determine if it would provide an added benefit by evoking the case. Nonetheless, this idea of an open dialogue has been retained when it concerns two authorities who may wish to investigate a case.
Another remnant is on the matter of in concreto positive conflicts of jurisdiction. The FD is structured to prevent the adverse consequences of infringing the ne bis in idem principle if more than two MSs continue their investigation. The Regulation has taken it a step further by ensuring that this may not occur between it and the participating MS and Union authorities. At all times, a case is either with the EPPO (and no one else) or is with other authorities. It has done this by ensuring that if the EPPO acts, no one else bound to the Regulation can; additionally, when the EPPO takes over a case, it does not open a new investigation against a person(s). In order to give substance to these provisions, the Regulation has provided a strong decision-making authority, the EPPO, to decide who may act.
A final remark on the two measures. This article has contrasted two various methods used by the EU to resolve conflicts of jurisdiction. It highlighted similarities and differences, and how elements contained within the Regulation seem to be remnants of the FD. Instead of seeing these two measures as separate and different measures, it is best to see the Regulation as the next step. Just as the FD provided for a better way to resolve conflicts of jurisdiction compared to the more generic system established in the Eurojust Decision (now Eurojust Regulation), the Regulation has built upon the FD; e.g., it provides for binding decision-making by a single authority. Likewise, it must be remembered that the two measures are resolving conflicts of jurisdiction on different subject matters. The FD is capable of resolving a conflict on any criminal action by MS authorities, whereas the Regulation is limited to criminal activity around PIF-offences. This difference must be remembered when critiquing either measure, as they were, and are, designed to handle different issues the EU and its MSs faced at the time of adoption.
While questions remain as to various aspects of the Regulation in the area of resolving conflicts of jurisdiction, it must be remembered that advances have also been made. The Regulation provides for tangible criteria when deciding on the MS of forum (preventing forum-shopping), forbids two authorities from conducting an investigation (prevents potential ne bis in idem consequences), provides a way to merge cases together to the benefit of the accused (principle of concentration), and finally expands beyond only resolving in concreto positive conflicts by also including in abstracto positive conflicts and in concreto negative conflicts.
Footnotes
Acknowledgements
The author would like to thank Prof Hein Wolswijk and Dr. Pim Geelhoed for their excellent supervision and feedback. A special thanks to Alex Belloir for his continued assistance in proof-reading this article.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This article was written as part of the PhD program at the University of Groningen through the National Sector Plan of the Netherlands (Law Sector Plan). This funding allows the author to work on their PhD.
