The evolution of European Union criminal law (1957-2012)

to chance, and this seems to be the reason why the principle of ne bis in idem is still
subject to several exceptions.” 899
The Commission’s proposed solution is thus to act a priori by allocating jurisdiction
before final decisions are reached by any State. This was in fact attempted with the
adoption of Framework Decision on prevention and settlement of conflicts of exercise of
jurisdiction in criminal proceedings, 900 aiming at fostering and promoting cooperation
between competent authorities of two or more Member States in cases of positive
jurisdictions. 901 The Framework Decision however does not set in place a system of
allocation of jurisdiction but merely obligations on States to contact and reply to each
other when there are grounds to believe that parallel proceedings are being conducted. 902
It also sets the obligation for States to enter into direct negotiations when there is
confirmation that parallel proceedings are in course in two or more Member States. 903
This Framework Decision clearly ventures into a new realm of mutual recognition in
criminal matters, a managerial/ regulatory one, and perhaps sets the foundations for
future regulation of States’ competences and allocation of jurisdiction. This could help
to prevent conflicts of jurisdiction a posteriori and could also permit a choice of the
better jurisdiction which in cases of serious criminality (such as organised crime) or with
vulnerable victims could be sensible and necessary for a proper evaluation of the merits
of the case. However, as Mitsilegas suggests, the tone of the Commission’s Green paper
raises concerns that the criteria for allocation of jurisdiction would prioritise the goal of
prosecutorial efficiency. Additionally, a system of allocation of jurisdiction could
represent an additional intrusion into the domestic sphere, namely by preventing
Member States from prosecuting behaviour which may lead to a criminal conviction in
their jurisdiction. 904 Given that mutual recognition suffered several blows in the latest
framework decisions, it is uncertain whether this path could be feasible.
899 European Commission, Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in
idem in Criminal Proceedings, COM(2005)696final, Brussels, 23.12.2005, 3.
900 Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and
settlement of conflicts of exercise of jurisdiction in criminal proceedings, OJ L 328/42 [2009].
901 Article 1, ibid..
902 Articles 5 and 6, ibid..
903 Article 10, ibid..
904 V. Mitsilegas, EU Criminal Law, supra note 14, 156.
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