Conflict of European Jurisdiction – A Matter of Concurrence
| Date | 01 June 2009 |
| Author | George C. Gebbie |
| DOI | 10.1177/203228440901a00103 |
| Published date | 01 June 2009 |
| Subject Matter | Analysis & Opinions |
New Journal of Eur opean Crimina l Law – Special Edit ion 11
ConflICT of eURoPean JURIsDICTIon –
a MaTTeR of ConCURRenCe
G C. G*
1. MISNOMER MEANS MISUNDERSTANDING
e Proposed EU Cou ncil Fra mework Decision on Prevention and S ettlement of
Conicts of Jurisdict ion in Crimina l Proceedings applies a misnomer from its
commencement that has the potential of obscuring the true nature of the problems in,
“cross-border” cases. More worr yingly, it conceals an implicit erosion of cit izen’s
rights constituted by the proposed remedy for t he mis-described mischief.
From the outset it is crucial to an understanding of the legal environment, wherein
the Proposed Framework Decision would have its impact, to consider that jurisdictions
never con ict with one another. Juris dictions may be concurrent, col lateral or
coincidental. By this is meant that severa l ju risdictions may have legal claim to
authority over the sa me facts or persons. ey may ex ist in relation to the same fac ts
but dierent persons and vice versa. ey may exist in pa rallel s ets of facts or in
relation to similar but separate facts and persons. ey d o not purport to wipe out or
diminish t he existence of one another. In other words, “they do not conict”.
2. FORM NOT SUBSTANCE
What is proposed i s not, despite its subject heading, “prevention and settlement of
conicts of jur isdiction in crimin al proceedings”. Instead, it is a blue-print for closer
cooperation among police and judicia l authorities both at the level of t he member
states and at the level of EU institutions. Of itself, such goals may not be objectionable.
Indeed, t hey may on occ asion be laudable and desirable. However, they are open to
abuse. As pres ently, constituted, the proposals allow for forum shopping a nd
manipulation by police and judicia l authorities without any adequate s afeguard or
remedy for the citizen.
* Advocate, Scotland .
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