To which prosecution service? Analyzing the way the Union resolves conflicts of criminal jurisdiction
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/20322844231191373 |
| Author | Andrew Zuidema |
| Date | 01 September 2023 |
Article
New Journal of European Criminal Law
2023, Vol. 14(3) 374–396
© The Author(s) 2023
Article reuse guidelines:
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DOI: 10.1177/20322844231191373
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To which prosecution service?
Analyzing the way the Union
resolves conflicts of criminal
jurisdiction
Andrew Zuidema
University of Groningen, Groningen, the Netherlands
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 ju-
risdiction. 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
European public prosecutor’soffice, conflicts of jurisdiction, ne bis in idem, European public
prosecutor’soffice, MS of forum, Prosecutors
Corresponding author:
Andrew Zuidema, Department of Criminal Law and Criminology, Faculty of Law, University of Groningen, Oude Kijk in ‘t
Jatstraat 26, Groningen 9700 AS, the Netherlands.
Email: a.j.zuidema@rug.nl
Introduction
Aconflict of cri minal jurisdiction (herein: conflicts of jurisdiction) occurs the momentthat at least two
differentjurisdictions or authorities couldhave the possibility to prosecute an individual.
1
Conflicts of
jurisdictionare matters that most jurisdictionswill have to contend with, with the consequencesbeing
multiple prosecutions of a person on the same facts, or no prosecution for criminalactivity at all. The
former is especially important in order to prevent ne bis in idem violations, while the latter would
provide impunity if noState 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
1.These conflicts of jurisdiction can exist in both civil and criminal law; however, this article will focus on the criminal
aspect; additionally, a conflict can exist when there are competing jurisdiction (i.e., two States) or between authorities
within a State (i.e., federal versus local).
2.P Caeiro, ‘Jurisdiction in Criminal Matters in the EU: Negative and Positive Conflicts, and Beyond’(2010) 93 Kritische
Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 366; F Zimmermann, ‘Conflicts of Criminal Jurisdiction’
(2015) 3 Bergen Journal of Criminal law and Criminal Justice 1, 2; V Mitsilegas & F Giuffrida, ‘Ne Bis in Idem and
Conflicts of Jurisdiction’in V Mitsilegas (ed), EU Criminal Law (2nd edn, Hart Publishing 2022), 171 –172; J Birk & A
Curcio ‘Conflicts of Jurisdiction’Eurojust News (The Hague, January 2016), 2.
3.Consolidated ver sion of the Treaty on the Functioning of th e European Union [2012] OJ C326/47, ar t 82(1)(b); the
obligaiton to handle criminal conflicts of jurisidiciton was first stated in the Treaty of Amsterdam, Treaty of Amsterdam
[1997] OJ C340/18 art K.3(d); with its current text adopted under the TreatyofLisbon, Treaty of Lisbon [2007] OJ C306/
42, art 2(67).
4.For example, Directive 2011/93/EU on combating the sexual abuse and sexual exploita tion of children and child pornography
[2011] OJ L 335/1, art 17; Directive (EU) 2017/1371 of 5 July 2017 on the fight against fraud to the Union’sfinancial interests
by means of criminal law [2017] OJ L198/29 (PIF Directive), art 11; Directive (EU) 2019/713 of 17 April 2019 on combating
fraud and counterfeiting of non-cash means of payment [2019] OJ L123/18, art 12.
5.Caeiro (n2), 366 –367, 370 –373.
6.Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against
serious crime [2002] OJ L63/1 (Eurojust Decision), art 5–7; Eurojust Regulation (EU) 2018/1727 on the European Union
Agency for Criminal Justice Cooperation (Eurojust) [2018] OJ L295/138, arts 2 –4; C Deboyser, ‘Eurojust’s Role in the
Matter of Choice of Forum’in M Luchtman (ed), Choice of Forum in Cooperation Against EU Financial Crime (Eleven
International Publishing 2013),101; HH Herrnfeld,‘Mechanisms for SettlingConflicts of Jurisdiction’in M Luchtman (ed),
Choiceof Forum in Cooperation AgainstEU Financial Crime (Eleven International Publishing 2013), 185; V Mitsilegas&
F Giuffrida,‘Bodies, Officesand Agencies’in V Mitsilegas (ed), EU Criminal Law (2nd edn,Hart Publishing 2022), 397&
403.
Zuidema 375
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