(1)

The Union has set itself the objective of maintaining and developing an area of freedom, security and justice.

(2)

The Hague Programme: strengthening freedom, security and justice in the European Union (3) requires Member States to consider possibilities for concentrating the prosecution in cross-border multilateral cases in one Member State, with a view to increasing the efficiency of prosecutions while guaranteeing the proper administration of justice.

(3)

The Programme of measures to implement the principle of mutual recognition of decisions in criminal matters (4) calls for an instrument enabling criminal proceedings to be transferred to other Member States.

(4)

Further development of judicial cooperation between Member States is needed to increase the efficient and proper administration of criminal justice within the common area of freedom, security and justice and to ensure that the best-placed Member State investigates or prosecutes a criminal offence. In particular, common rules for Member States regarding the transfer of criminal proceedings could help to prevent unnecessary parallel criminal proceedings in different Member States in respect of the same facts and the same person, which could result in an infringement of the ne bis in idem principle. Such common rules could also reduce the number of multiple criminal proceedings in respect of the same facts or in respect of the same person being conducted in different Member States. Such common rules also aim to ensure that it is possible for a transfer of criminal proceedings to take place if the surrender of a person for criminal prosecution under a European arrest warrant, pursuant to Council Framework Decision 2002/584/JHA (5), is delayed or refused for reasons such as the existence of ongoing parallel criminal proceedings in another Member State for the same criminal offence, in order to avoid impunity of the person being prosecuted.

(5)

Common rules on the transfer of criminal proceedings are also essential in order to fight cross-border crime efficiently, which is especially important in relation to crimes committed by organised criminal groups, such as drug trafficking, migrant smuggling, trafficking in human beings, firearms trafficking, environmental crime, cybercrime or money laundering. Prosecuting organised criminal groups that are active in multiple Member States can create great difficulties for the authorities involved. The transfer of criminal proceedings is an important tool which would reinforce the fight against organised criminal groups that are active across the Union.

(6)

In order to ensure effective cooperation between requesting authorities and requested authorities in relation to the transfer of criminal proceedings, rules on such transfer should be established by a legally binding and directly applicable act of the Union.

(7)

This Regulation should apply to all requests for transfer issued within the framework of criminal proceedings.

(8)

Council Framework Decision 2009/948/JHA (6) aims to prevent situations where the same person is subject to parallel criminal proceedings in different Member States in respect of the same facts, which might lead to the final disposal of those proceedings in two or more Member States. That Framework Decision therefore establishes a procedure for direct consultations between competent authorities of the Member States concerned with the aim of reaching a consensus on any effective solution aimed at avoiding the adverse consequences arising from such parallel proceedings and the waste of time and resources of those competent authorities. Where those competent authorities decide, following consultations in accordance with that Framework Decision, to concentrate proceedings in one Member State through the transfer of criminal proceedings, such transfer should be carried out in accordance with this Regulation.

(9)

Other legal acts in the area of criminal matters, particularly those related to specific types of crime such as Directive (EU) 2017/541 of the European Parliament and of the Council (7) and Council Framework Decisions 2002/475/JHA (8) and 2008/841/JHA (9), include provisions referring to the factors to be taken into account with the aim of centralising criminal proceedings in a single Member State in the event that more than one Member State can validly prosecute on the basis of the same facts. Where the competent authorities of the Member States concerned decide, following cooperation in accordance with such legal acts, to centralise criminal proceedings in a single Member State through the transfer of criminal proceedings, such transfer should be carried out in accordance with this Regulation.

(10)

Several Union legal acts have been adopted on the application of the principle of mutual recognition to judgments and judicial decisions in criminal matters, in particular Council Framework Decisions 2005/214/JHA (10), 2008/909/JHA (11) and 2008/947/JHA (12). This Regulation supplements those Framework Decisions and does not affect their application.

(11)

This Regulation does not affect spontaneous exchanges of information regulated by other Union legal acts.

(12)

This Regulation does not apply to decisions to reallocate, merge or split cases in relation to which the European Public Prosecutor’s Office has exercised its competence in accordance with Council Regulation (EU) 2017/1939 (13).

(13)

For the purposes of this Regulation, Member States should designate their competent authorities in a way that promotes the principle of direct contact between those authorities.

(14)

For the purposes of this Regulation and in the interest of facilitating its effective application across the Union, in the event that the structure of the internal legal systems of Member States with common law traditions does not allow for their courts and prosecutors to take measures ancillary to the decision to accept or refuse a transfer of criminal proceedings, another authority, with competence to take measures in criminal proceedings, should be able to take such ancillary measures. The involvement of such competent authority should not prejudice in any way the decision, to be taken exclusively by a judge, court, investigating judge or public prosecutor, on whether to accept or refuse a transfer of criminal proceedings, which should, by necessity, include its assessment of the grounds for refusal under this Regulation. The involvement of any other competent authority is solely intended to facilitate such judicial decision-making and the effective application of this Regulation.

(15)

Where necessary due to the structure of their internal legal systems, it should be possible for Member States to designate one or more central authorities for the administrative transmission and reception of requests for the transfer of criminal proceedings, as well as for other official correspondence relating to such requests. Such central authorities could also provide administrative support and have coordinating and assisting roles, thereby facilitating and promoting the acceptance of requests for the transfer of criminal proceedings.

(16)

Some Union legal acts already require Member States to take necessary measures to establish jurisdiction over specific criminal offences, such as those related to terrorist activities pursuant to Directive (EU) 2017/541 or to the counterfeiting of the euro pursuant to Directive 2014/62/EU of the European Parliament and of the Council (14), in cases where the surrender of a person is refused.

(17)

In order to ensure that it is possible for criminal proceedings to be transferred in accordance with this Regulation wherever the interests of efficient and proper administration of justice and the effective protection of the fundamental rights of the suspects, accused persons and victims, as set out in Union law, so require, this Regulation should provide for jurisdiction in specific cases so that the requested State is able to exercise jurisdiction in relation to the criminal offences to which the national law of the requesting State is applicable. The requested State should have jurisdiction over criminal offences for which the transfer of criminal proceedings is sought, whenever that Member State is considered to be best placed to prosecute the criminal offence in question. The rules on jurisdiction provided for in this Regulation should not prevent Member States from adopting national measures to ensure that they are able to exercise jurisdiction in the specific cases provided for in this Regulation.

(18)

In addition to the jurisdiction already provided for by the national law of the requested State, jurisdiction should be established on the basis of the specific grounds set out in this Regulation wherever that Member State is considered as being best placed to prosecute. The requested State should have jurisdiction in situations where 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 the requested State and is a national of or a resident in that State, where such refusal is based on the specific grounds set out in this Regulation. For example, jurisdiction should be established where surrender is refused on the basis of Article 4, point (7)(b), of Framework Decision 2002/584/JHA, which applies in situations where offences have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory. That rule could be applied in situations where an offence is committed on the territory of another Member State or of a third country by nationals of other Member States or third-country nationals, and the suspect or accused person is a resident in the requested State. This is of particular importance as regards serious crimes violating fundamental values of the international community, such as war crimes or genocide, where a risk of impunity might arise due to a European arrest warrant being refused on the basis of Article 4, point (7)(b), of Framework Decision 2002/584/JHA. The requested State should also have jurisdiction where the criminal offence produces its effects or causes damage mainly in the requested State. Damage should be taken into account provided that it is one of the constituent elements of the criminal offence, in accordance with the national law of the requested State. The requested State should also have jurisdiction when criminal proceedings are already ongoing in that State against the same suspect or accused person in respect of other facts, so that all the alleged criminal conduct of such a person could be judged in one single jurisdiction, or when criminal proceedings are ongoing in that State against other persons in respect of the same, partially the same or related facts, which might be of particular relevance for concentrating the investigation and prosecution of a criminal organisation in one Member State. In both cases, the suspect or accused person in the criminal proceedings being transferred should be a national of or a resident in the requested State.

(19)

In order to fulfil the purpose of this Regulation and to prevent conflicts of jurisdiction, having specific regard to those Member States whose legal systems are based on mandatory prosecution and those where there is mandatory prosecution only for certain criminal offences, the requesting State, when requesting a transfer of criminal proceedings, should be able to waive proceedings for the prosecution of the person concerned for the criminal offence for which the transfer is sought. This Regulation should therefore allow the competent authorities of the requesting State to waive, suspend or discontinue the criminal proceedings brought before them in favour of the Member State identified as being in a better position to prosecute, even where, in accordance with national law, those authorities would be under a duty to prosecute. This should be without prejudice to the provisions on the effects of the transfer of criminal proceedings in the requesting State laid down in this Regulation.

(20)

This Regulation respects the fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union (the ‘Charter’) and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

(21)

This Regulation does not affect procedural rights as set out in the Charter or in other Union legal acts, such as Directives 2010/64/EU (15), 2012/13/EU (16), 2013/48/EU (17), (EU) 2016/343 (18), (EU) 2016/800 (19) and (EU) 2016/1919 (20) of the European Parliament and of the Council, for the Member States bound by them. In particular, the requesting authority should ensure that such rights, as provided for under Union and national law, are respected when requesting a transfer of criminal proceedings under this Regulation.

(22)

Member States should ensure that, when applying this Regulation, the needs of vulnerable persons are taken into account. In accordance with the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (21), vulnerable suspects or accused persons should be understood to mean all suspects or accused persons who are not able to understand or effectively participate in criminal proceedings due to their age, their mental or physical condition or any disabilities they might have.

(23)

Similarly, Member States should ensure that, when applying this Regulation, the procedural rights of suspects and accused persons subject to pre-trial detention are taken into account, considering, where appropriate, Commission Recommendation (EU) 2023/681 (22).

(24)

A requesting authority should be able to request a transfer of criminal proceedings either on its own initiative, whether or not following consultations with a requested authority, or on a proposal from a suspect or accused person, or on a proposal from a victim. This Regulation should not impose any obligation to request the transfer of or to transfer criminal proceedings. When considering whether a request for the transfer of criminal proceedings should be issued, the requesting authority should assess whether such a transfer would serve the objective of efficient and proper administration of justice, including whether it is proportionate and appropriate for the purpose of the proceedings concerned. That assessment should be carried out on a case-by-case basis in order to identify the Member State that is best placed to prosecute the criminal offence in question.

(25)

When assessing whether a request for the transfer of criminal proceedings is justified, the requesting authority should have regard to several criteria, the priority and weight of which should be based on the facts and merits of each individual case. All the relevant factors should be considered in the best interests of justice. For instance, where the criminal offence has been committed in whole or in part on the territory of the requested State, or most of the effects or a substantial part of the damage caused by the criminal offence, where those effects or that damage forms part of the constituent elements of the criminal offence, occurred on the territory of the requested State, it should be possible for that State to be considered in a better position to prosecute, given that the evidence to be collected, such as testimony from witnesses and victims, or experts’ opinions, are in the requested State and could thus be more easily gathered if the criminal proceedings were transferred. Additionally, the initiation of subsequent proceedings for damages in the requested State would be facilitated if the underlying proceedings establishing criminal responsibility were also held in the same Member State. Similarly, if most of the evidence is located in the requested State, a transfer of criminal proceedings might facilitate the collection and subsequent admissibility of the evidence gathered in accordance with the national law of the requested State.

(26)

Where one or more suspects or accused persons are nationals of or residents in the requested State, a transfer of criminal proceedings might be justified for the purpose of ensuring the right of the suspect or accused person to be present at the trial, in accordance with Directive (EU) 2016/343. Similarly, where one or more victims are nationals of or residents in the requested State, a transfer of criminal proceedings might be justified to allow victims to more easily participate in criminal proceedings and to be effectively examined as witnesses during the proceedings. In cases where the surrender of a suspect or accused person for whom a European arrest warrant was issued is refused in the requested State on the grounds specified in this Regulation, a transfer might also be justified when that person is present in the requested State while not being a national of or a resident in that State.

(27)

It is for the requesting authority to assess, on the basis of material before it, whether there are reasonable grounds to believe that the suspect, accused person or victim resides in the requested State. Where only limited information is available, such an assessment should be the subject of consultations between the requesting authority and requested authority in order to confirm residence of the suspect, accused person or victim in the requested State. For the purposes of that assessment, various objective circumstances that could indicate that the person concerned has established the habitual centre of that person’s interests in a particular Member State or has the intention to do so could be of relevance. Reasonable grounds to believe that a person resides in the requested State could exist, in particular, where a person is registered as a resident in the requested State, by holding an identity card or a residence permit, or by registration in an official residence register. Where the person in question is not registered in the requested State, residence could be indicated by the fact that that person manifested the intention to settle in that Member State or has acquired, following a stable period of presence in that Member State, certain connections with it which are of a similar degree as those resulting from establishing a formal residence in that Member State. In order to determine whether, in a specific situation, there are sufficient connections between the person concerned and the requested State giving rise to reasonable grounds to believe that the person concerned resides in that Member State, it is necessary to take into account various objective factors characterising the situation of that person, which include, in particular, the length, nature and conditions of that person’s presence in the requested State or the family or economic connections which that person has with the requested State. A registered vehicle, a bank account, the fact that the person’s stay in the requested State was uninterrupted or other objective factors could be of relevance for determining that there are reasonable grounds to believe that the person concerned resides in the requested State. A short visit, a holiday stay, including in a holiday home, or a similar stay in the requested State without any further substantial link is not enough to establish residence in that Member State.

(28)

A transfer of criminal proceedings might also be justified when criminal proceedings are ongoing in the requested State in respect of the same, partially the same or other facts against the suspect or accused person, or when criminal proceedings are ongoing in the requested State in respect of the same, partially the same or related facts against other persons, for example in cases of prosecution of cross-border criminal organisations, where different co-accused persons might be prosecuted in different Member States. Moreover, if the suspect or accused person is serving or is to serve a sentence involving deprivation of liberty in the requested State for another criminal offence, a transfer of criminal proceedings might be justified to ensure the right of the convicted person to be present at the trial for which transfer of criminal proceedings is sought, while serving the sentence in the requested State. The requesting authorities should give due consideration to whether the transfer of criminal proceedings could improve the prospects of social rehabilitation of the person concerned if the sentence were to be enforced in the requested State. For that purpose, the person’s attachment to the requested State, whether that person considers it to be the place of family, as well as linguistic, cultural, social, economic or other links, could be taken into account. Additionally, competent authorities often reach agreements on the concentration of proceedings on the basis of the identification of the best-placed jurisdiction. Such agreements could be reached in coordination meetings of the European Union Agency for Criminal Justice Cooperation (Eurojust), established by Regulation (EU) 2018/1727 of the European Parliament and of the Council (23), in bilateral or multilateral meetings without the intervention of Eurojust or following consultations under Framework Decision 2009/948/JHA.

(29)

Before considering whether to transfer criminal proceedings on the sole ground that most of the evidence is located in the requested State, the requesting authority is encouraged to take into account the possibility of obtaining evidence from other Member States through existing instruments of mutual recognition of judicial decisions, such as, for the Member States bound by it, Directive 2014/41/EU of the European Parliament and of the Council (24), and mutual legal assistance.

(30)

Suspects, accused persons or victims should be able to propose that criminal proceedings concerning them be transferred to another Member State. Suspects, accused persons or victims should be able to make such a proposal to the competent authorities either of the requesting State or of the requested State where they consider that there are reasons for which a transfer of criminal proceedings is justified in the interests of justice. For example, such a proposal could be made in the requesting State by a suspect, accused person or victim who is aware that there are ongoing criminal proceedings in the requested State in respect of the same, partially the same or other facts against the same suspect or accused person or in respect of the same, partially the same or related facts against other persons. Such a proposal could be made in the requested State where, for example, a suspect, accused person or victim resides in or is a national of that State, or is aware of proceedings having been opened in respect of the same, partially the same, or other facts concerning the same suspects or accused persons. Although such a proposal should be considered and recorded, it should not impose any obligation on the requesting authority or requested authority to request the transfer of or to transfer criminal proceedings or to engage in consultations with the authority of another Member State for that purpose. If either of those authorities become aware of parallel criminal proceedings on the basis of a proposal for the transfer of criminal proceedings submitted by a suspect, accused person or victim, or a lawyer on their behalf, it is under an obligation to consult with the other authority in accordance with Framework Decision 2009/948/JHA.

(31)

The requesting authority should inform as soon as possible the suspect or accused person of the intention to issue a request for the transfer of criminal proceedings and should provide for the possibility for such person to state an opinion, including on aspects related to restorative justice, in accordance with applicable national law, to enable the authorities to take into account that person’s legitimate interests before issuing a request for transfer. It is important to provide such information in writing. It should also be possible for the information to be provided orally on condition that the fact that the information has been provided is noted in accordance with the recording procedure under national law. It should be possible for the information to be provided using standard forms. Where the requesting authority considers it necessary, for example in view of the age or the physical or mental condition of the suspect or accused person concerned, the opportunity to state an opinion should be given to that person’s legal representative, where available. When assessing the legitimate interest of the suspect or accused person to be informed about the intention to issue a request for transfer, the requesting authority should take into account the need to ensure confidentiality of an investigation or the risk of prejudicing the investigation against that person, for example whenever it is necessary to safeguard an important public interest, such as in cases where such information could prejudice ongoing covert investigations or seriously harm the national security of the Member State in which the criminal proceedings are instituted. Where the requesting authority cannot locate or reach the suspect or accused person despite reasonable efforts being made, the obligation to inform such person should apply from the moment that the suspect or accused person could be located or reached.

(32)

The rights of victims set out in Directive 2012/29/EU of the European Parliament and of the Council (25), including the right to information, should be taken into account when applying this Regulation. This Regulation should not be interpreted as preventing Member States from granting victims more extensive rights under national law than those laid down in Union law.

(33)

When taking a decision on the request for the transfer of criminal proceedings, the requesting authority should have due regard to the legitimate interests of victims, including their protection and aspects related to restorative justice, and should assess whether the transfer of criminal proceedings might be detrimental for the ability of victims to effectively exercise their rights in the criminal proceedings concerned. That assessment could encompass, for example, consideration of the possibility and arrangements available for victims to testify during trial in the requested State if that is not the Member State where they reside. Furthermore, consideration should be given to the possibility for victims to obtain and provide evidence, for instance from witnesses and experts, to claim compensation or to benefit from witness protection or restorative justice programmes in the requested State. The victims’ rights to compensation should not be prejudiced by the transfer of criminal proceedings. This Regulation does not affect rules on compensation and the restitution of property to victims in national proceedings.

(34)

Where it is necessary to ensure that the protection provided to the victim in the requesting State is continued in the requested State, competent authorities in the requesting State should consider the issuance of a European protection order in accordance with Regulation (EU) No 606/2013 of the European Parliament and of the Council (26) or, for the Member States bound by it, Directive 2011/99/EU of the European Parliament and of the Council (27).

(35)

Once the requesting authority intends to issue a request for the transfer of criminal proceedings, it should as soon as possible inform the victims who reside or, in the case of legal persons, that are established in the requesting State and who receive information on the criminal proceedings in accordance with Article 6(1) of Directive 2012/29/EU, as implemented in national law, or, in the case of legal persons, that receive such information in accordance with national law. The requesting authority should provide for the possibility for such persons to state their opinion, in accordance with applicable national law, to enable the authorities to take into account their legitimate interests before issuing a request for transfer. It is important to provide such information in writing. It should also be possible to provide the information orally on condition that the fact that the information has been provided is noted in accordance with the recording procedure under national law. It should be possible for the information to be provided using standard forms or, where there are exceptionally large numbers of victims to be informed, via other means of general information to the public, such as in specific online publication instruments available to judicial authorities under national law. Where the requesting authority considers it necessary, for example in view of the age or the physical or mental condition of the victim concerned, the opportunity to state their opinion should be given to their legal representative, where available. When assessing the legitimate interest of victims to be informed about the intention to issue a request for transfer, the requesting authority should take into account the need to ensure confidentiality of an investigation or the risk of prejudicing the investigation, for instance in cases where such information could prejudice ongoing covert investigations or seriously harm the national security of the requesting State.

(36)

It should also be possible to use standard forms in certain situations provided for under this Regulation to make it easier for the requesting authority and the requested authority to assist each other in informing the suspect, accused person or victim and seeking their opinion on the intention to issue a request for the transfer of criminal proceedings. The possibility to use such standard forms should not preclude the possibility of direct notifications to suspects, accused persons or victims by the requesting authority or the requested authority.

(37)

The proper application of this Regulation presupposes communication between the requesting authority and requested authority, which should be encouraged to consult each other whenever appropriate to facilitate the smooth and efficient application of this Regulation, either directly or, where appropriate, via Eurojust.

(38)

The requesting authority should be able to consult the requested authority prior to issuing a request for the transfer of criminal proceedings when that is necessary, in particular, to determine if the transfer of criminal proceedings would serve the interests of efficient and proper administration of justice, including whether it is proportionate and appropriate for the purpose of the proceedings concerned, as well as if the requested authority is likely to invoke one of the grounds for refusal under this Regulation.

(39)

When transmitting a request for the transfer of criminal proceedings, the requesting authority should provide accurate and clear information on the circumstances and conditions underlying the request, as well as any other supporting documentation, with a view to enabling the requested authority to take an informed decision on the request for the transfer of criminal proceedings. The completed request form and, with a view to reducing translation costs and time, at least the essential parts of any written supporting documentation or information should be translated by the requesting authority into an official language of the requested State or any other language accepted by that State in accordance with this Regulation. The essential parts of the documents concerned are those extracts that appear necessary for the requested authority to take an informed decision on the request for the transfer of criminal proceedings.

(40)

As long as the requested authority has not taken a decision to accept or refuse a transfer of criminal proceedings, the requesting authority should be able to withdraw the request for transfer, for instance when it becomes aware of further elements due to which the transfer no longer appears justified. Information about the withdrawal of the request for the transfer of criminal proceedings should be provided immediately to the requested authority and should be communicated to the suspects or accused persons and the victims, as relevant.

(41)

The requested authority should inform the requesting authority of its decision on whether to accept or refuse the transfer of criminal proceedings without undue delay and in any event no later than 60 days after the receipt of the request for the transfer of criminal proceedings. In specific cases, when it is not feasible for the requested authority to comply with that time-limit, for instance if it considers that additional information is necessary, it should be possible for the time-limit to be extended only by a maximum of 30 days to avoid excessive delays. When accepting the transfer of criminal proceedings, the requested authority should take a duly reasoned decision. In cases where the requested authority refuses the transfer of criminal proceedings, it should inform the requesting authority of the reasons for refusal. For that purpose, it is sufficient for the requested authority to provide succinct information as to the relevant ground or grounds for refusal.

(42)

Where the requested authority has accepted the transfer of criminal proceedings, the requesting authority should without undue delay forward to the requested authority originals or certified copies of all documents of the case file, or at least the relevant parts thereof, accompanied by their translation. Once the national proceedings are discontinued, the requesting authority should transmit any remaining relevant parts of the case file in original or certified copy, including relevant physical evidence such as objects of offence or blood or DNA samples, to the requested authority without undue delay. Original documentation should only be transmitted if requested by the requested authority, for instance where there is a need to examine a document for forensic purposes. Provided that the original documents of the case file and the physical evidence are no longer needed in the requested State, they should be returned to the requesting State upon its request, for example if such documents or physical evidence are needed for the purposes of another criminal investigation. Where the requesting State, when asked by the requested State, indicates that it does not intend to recover the original documents of the case file or the physical evidence when it is no longer needed or at the end of the proceedings, the requested State should be able to decide, in accordance with its national law, how to deal with the remaining evidence, including whether to preserve or destroy such evidence. Once a request for the transfer of criminal proceedings has been accepted, and in order to facilitate an efficient transfer, the requesting authority and requested authority should be able to consult each other to determine the necessary documents or parts of such documents to be forwarded, as well as to be translated, where necessary. However, it is important that a decision to send only parts of the documents be balanced and based on a careful consideration of the documents in question so as not to prejudice the fairness of the proceedings.

(43)

Transfer of criminal proceedings should not be refused on grounds other than those provided for in this Regulation. For the transfer of criminal proceedings to be accepted, prosecution of the facts underlying the criminal proceedings that are subject to the transfer should be possible in the requested State. The requested authority should refuse the transfer of criminal proceedings if the conduct for which transfer is sought is not a criminal offence in the requested State, or if the requested State does not have jurisdiction over that criminal offence, unless it exercises jurisdiction provided for under this Regulation. The requested authority should also refuse the transfer of criminal proceedings if the conditions for prosecuting the criminal offence in the requested State are not fulfilled. This could be the case, for example, if a complaint by the victim, which is necessary for prosecuting the criminal offence in the requested State, has not been filed in time, or where, because of the death or insanity of the suspect or accused person, prosecution has become impossible pursuant to the national law of the requested State. Furthermore, the requested authority should refuse the transfer of criminal proceedings if there are other impediments to prosecution in the requested State. The requested authority should be able to refuse a transfer of criminal proceedings if the suspect or accused person benefits from a privilege or immunity in accordance with the national law of the requested State, for example in relation to certain categories of persons, such as diplomats, or specifically protected relationships, such as lawyer-client privilege, or if the requested authority believes that such transfer is not justified by the interests of efficient and proper administration of justice, for instance because none of the criteria for requesting a transfer of criminal proceedings are met, or if the request form for the transfer of criminal proceedings is incomplete or manifestly incorrect and has not been completed or corrected by the requesting authority, thus meaning the requested authority does not have the necessary information to assess the request for the transfer of criminal proceedings. The requested authority should also be able to refuse the request if the conduct is not a criminal offence at the place where it was committed and the requested State has no original jurisdiction to investigate and prosecute such offence. That ground for refusal takes into account the principle of territoriality, meaning that the requested State should be able to refuse the transfer of criminal proceedings in cases where the alleged criminal offence, which is committed outside the territory of the requesting State, is not a criminal offence at the place where it was committed, and the national law of the requested State does not authorise the prosecution of such offences where committed outside its territory. For the purposes of this Regulation, ‘original jurisdiction’ is the jurisdiction which is already provided for by national law and does not derive from this Regulation.

(44)

The principle of ne bis in idem, as set out in Articles 54 to 58 of the Convention implementing the Schengen Agreement of 14 June 1985 (28) and in Article 50 of the Charter, and as interpreted by the Court of Justice of the European Union, is a basic fundamental principle of criminal law, according to which a defendant should not be tried or punished again in criminal proceedings for the criminal offence for which that defendant has already been finally acquitted or convicted. Therefore, the requested authority should refuse the transfer of criminal proceedings if taking them over would be contrary to that principle.

(45)

When examining whether to accept or refuse a request for the transfer of criminal proceedings, the requested authority should assess whether such a transfer would serve the objective of efficient and proper administration of justice. That assessment should be carried out on a case-by-case basis in order to identify the Member State that is best placed to prosecute the criminal offence in question. The requested authority should enjoy a broad margin of discretion for the purpose of that assessment. Such assessment should be limited to the relevant circumstances of the case, including whether there is a prima facie indication that the criminal offence has not been committed either in whole or in part on the territory of the requested State, that 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 that the suspect or accused person is not a national of or a resident in that State. The personal, material or family situation of a victim, witness or other individual concerned should not be decisive in itself on the assessment of whether the transfer of criminal proceedings would serve the objective of efficient and proper administration of justice.

(46)

Before deciding to refuse a request for the transfer of criminal proceedings on the basis of any ground for refusal, the requested authority should, where appropriate, consult the requesting authority in order to obtain any necessary additional information.

(47)

The requested State should ensure access to an effective legal remedy for suspects, accused persons and victims, against the decision to accept the transfer of criminal proceedings, in accordance with Article 47 of the Charter and the procedures applicable under national law, whenever their rights are adversely affected by the application of this Regulation. Review of the decision concerning the transfer of criminal proceedings should be based exclusively on the criteria provided for in the grounds for refusal set out in this Regulation. The assessment of whether the criminal proceedings should be transferred should involve a consideration of all circumstances which are relevant for the examination of those criteria. That assessment might often involve not only balancing the interests or rights of individuals whose rights may be affected, but also a consideration of the specificities and practical aspects of the operation of the criminal justice system. Such legal remedy should be without prejudice to other legal remedies under national law.

(48)

The requested authority should have broad discretion in assessing whether the transfer of criminal proceedings is in the interests of efficient and proper administration of justice, and whether a request for transfer should be refused on any of the optional grounds for refusal set out in this Regulation. The examination of the exercise of such discretion should be limited to reviewing whether the requested authority, when taking the decision to accept the request for the transfer of criminal proceedings, has manifestly exceeded the limits of its discretion.

(49)

The outcome of the legal remedy could be that the decision to accept the transfer of criminal proceedings is upheld or overturned in whole or in part. In principle, in the case of a successful remedy, the criminal proceedings will revert to the requesting State. However, in some situations the court could also decide, in accordance with its national law, that the decision to accept the transfer of criminal proceedings can be upheld provided that certain conditions or additional formalities are complied with, for example the condition that some missing elements of the request form are completed, or that additional measures are taken for the execution of the transfer, such as continuing witness protection.

(50)

A legal remedy under this Regulation should not entail any review of the merits of the case, such as whether the evidence is sufficient to justify opening or continuing an investigation, whether the facts of the case or the subjective aspects, such as intention or serious negligence, are established to the applicable standards, or concerning the probative value or the probative force of already collected evidence or the credibility of statements.

(51)

With a view to guaranteeing that the right to a legal remedy can be exercised effectively, the requested State should ensure that suspects, accused persons and victims have the right of access to all documents related to the transfer of criminal proceedings that formed the basis for the decision to accept a transfer under this Regulation, and that are necessary to effectively challenge that decision. The right of access to such documents should be exercised in accordance with procedures under the national law of the requested State and might be limited where it would undermine the confidentiality of an investigation, or otherwise prejudice the investigation or harm the safety of persons. Any refusal of such access should be weighed against the rights of the persons concerned, taking into account the different stages of the criminal proceedings. Restrictions on such access should be interpreted strictly and in accordance with the right to a fair trial under the Charter.

(52)

The time-limit for the suspect, accused person or victim to seek an effective legal remedy should not be longer than 15 days from the date of receipt by the person concerned of the reasoned decision to accept the transfer of criminal proceedings. Situations where the suspect, accused person or victim is not identified at the time of the transfer of criminal proceedings, and where for that reason the reasoned decision could not be communicated to such person at that time, should be subject to national law.

(53)

The acceptance of the transfer of criminal proceedings by the requested authority should result in the suspension or discontinuation of criminal proceedings in the requesting State to avoid duplication of measures in the requesting State and requested State. That should however be without prejudice to necessary investigative or other procedural measures, including necessary urgent measures, which the requesting State might need to undertake after the receipt of notification of the acceptance by the requested authority, where the efficient and proper administration of justice so requires. The notion of ‘investigative or other procedural measures’ should be interpreted broadly as including not only any measure for the purpose of gathering evidence, but also any procedural act imposing pre-trial detention or any other interim measure. To ensure that the criminal proceedings are not prolonged at length in the requesting State, once the investigative or other procedural measures undertaken are finalised or no longer necessary, the criminal proceedings in the requesting State should be suspended or discontinued. If a legal remedy with a suspensive effect has been invoked in the requested State, the criminal proceedings should not be suspended or discontinued in the requesting State until a decision on the remedy has been taken in the requested State.

(54)

In cases where jurisdiction for the criminal proceedings is derived exclusively on the basis of this Regulation and where a request for transfer has been received and pending the decision on whether to accept or refuse the transfer of criminal proceedings, Member States should be able to provide under their national law a legal basis for the provisional arrest of the suspect or accused person staying in the requested State or for the adoption of other provisional measures by the competent authority of such State. Such provisional arrest or other provisional measures should only be taken in accordance with national law, and only where necessary. Such provisional arrest or other provisional measures should be subject to the same procedural safeguards applicable to the same measures under national law, including judicial oversight. Moreover, such provisional arrest or other provisional measures should be taken following a proper assessment on the basis of the information available to the requested authority. This Regulation should however not constitute a legal basis for arresting persons with a view to their physical transfer to the requested State in order for the latter to bring criminal proceedings against that person.

(55)

A competent authority of the requested State should inform the requesting authority in writing of any decision taken at the end of the criminal proceedings in the requested State. Framework Decision 2009/948/JHA imposes a similar obligation where an agreement was reached on the concentration of proceedings in one Member State. Where the requested authority decides to discontinue criminal proceedings related to the facts underlying the request for transfer, it should inform the requesting authority of the reasons for such discontinuation. At least the essential parts of such information and of the final written decision taken in the requested State should be translated by the requested authority into an official language of the requesting State or any other language accepted by that State in accordance with this Regulation. The essential parts of the information and the decision are meant to be those extracts that appear necessary for the requesting authority to have knowledge of their general content.

(56)

If the requested authority decides to discontinue criminal proceedings related to the facts underlying the request for transfer, the requesting authority should be able to continue or reopen criminal proceedings if that would not entail a violation of the ne bis in idem principle, as interpreted by the Court of Justice of the European Union, namely where the decision to discontinue proceedings does not definitively bar further prosecution under the national law of the requested State and was not taken after a determination had been made on the merits of the case, therefore not precluding further criminal proceedings, in respect of the same acts, in that State. Victims should have the possibility to initiate or to request the reopening of criminal proceedings in the requesting State in accordance with the national law of that State, provided that this would not entail a violation of the ne bis in idem principle.

(57)

Once criminal proceedings are transferred in accordance with this Regulation, the requested authority should apply its relevant national law and procedures. Nothing in this Regulation should be interpreted as interfering with any prosecutorial discretion provided for in national law.

(58)

Nothing in this Regulation should be interpreted as affecting the duration of the period of limitation in the requested State, as provided for in the national law of that State.

(59)

With the aim of giving full effect to the transfer of criminal proceedings, evidence transferred by the requesting authority should not be denied admission in the corresponding criminal proceedings in the requested State on the sole basis that such evidence was gathered in another Member State. The competent court in the requested State should maintain its judicial discretion in assessing such evidence in accordance with national law, while suspects and accused persons should maintain their rights to challenge the admissibility of such evidence in accordance with their rights of defence under the Charter. In line with those principles, and respecting the different legal systems and traditions of the Member States as provided for in Article 67(1) of the Treaty on the Functioning of the European Union (TFEU), nothing in this Regulation is to be interpreted as prohibiting the courts from applying the fundamental principles of national law on fairness of the procedure that they apply in their national systems, including in common law systems.

(60)

The requested State should apply its national law to determine the sentence applicable to the criminal offence in question. In cases where the criminal offence has been committed on the territory of the requesting State, the requested authorities should be able to take into consideration in the determination of the sentence the maximum sentence provided for in the national law of the requesting State, whenever this is to the benefit of the accused person, and in accordance with the national law of the requested State. This should be taken into account in situations where the transfer of criminal proceedings would lead to the application in the requested State of a higher sentence than the maximum sentence provided for in the requesting State for the same criminal offence, with a view to ensuring a degree of legal certainty and foreseeability of the applicable law for the suspects or accused persons concerned. The maximum sentence provided for in the national law of the requesting State should always be taken into account where jurisdiction of the requested State is based exclusively on this Regulation.

(61)

Each Member State should bear its own costs of transfers of criminal proceedings, including those related to the exercise of procedural rights to which the suspect or the accused person is entitled in each of the Member States concerned, in accordance with the applicable Union and national law. Member States should not be able to claim from each other compensation for costs resulting from the application of this Regulation. However, if the requesting State has incurred large or exceptional costs related to the translation of the documents in the case file to be transferred to the requested State, a proposal by the requesting authority to share the costs should be considered by the requested authority. In such cases, the requesting authority and requested authority should consult each other in order to reach an agreement on the sharing of costs. Ideally such consultations should take place before the request for transfer is issued. If no agreement can be reached before the decision to accept the transfer of criminal proceedings is adopted, the requesting authority should be able to decide to withdraw the request in accordance with this Regulation or to maintain the request and bear the part of the costs deemed to be exceptionally high.

(62)

The use of a standardised request form translated in all official Union languages would facilitate cooperation and the exchange of information between the requesting authority and requested authority, allowing them to take a decision on the request for the transfer of criminal proceedings more quickly and effectively. The use of such a request form would also reduce translation costs and contribute to a higher quality of requests.

(63)

The request form should only include personal data necessary to facilitate the requested authority’s decision on the request for the transfer of criminal proceedings. The request form should contain an indication of the categories of personal data, such as whether the person concerned is a suspect, accused person or victim, as well as the specific fields for each of those categories.

(64)

In order to effectively address a possible need for improvement regarding the request form to be used to request the transfer of criminal proceedings or other forms, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amending the Annexes to this Regulation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (29). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(65)

In order to ensure swift, direct, interoperable, reliable and secure exchange of case-related data, communication under this Regulation between the requesting authority and requested authority and with the involvement of central authorities, where a Member State has designated a central authority, as well as with Eurojust, should as a rule be carried out through the decentralised IT system within the meaning of Regulation (EU) 2023/2844 of the European Parliament and of the Council (30). In particular, the decentralised IT system should, as a rule, be used for the exchange of the request form, of any other relevant information and documents and of all other communication between the authorities under this Regulation. In cases where one or more of the exceptions provided for in Regulation (EU) 2023/2844 apply, in particular where the use of the decentralised IT system is not possible or appropriate, it should be possible to use other means of communication as specified in that Regulation.

(66)

Member States should be able to use software developed by the Commission (‘reference implementation software’) instead of a national IT system. The reference implementation software should be based on a modular setup, meaning that the software is packaged and delivered separately from the components of the e-CODEX system, established pursuant to Regulation (EU) 2022/850 of the European Parliament and of the Council (31), which are needed to connect it to the decentralised IT system. That setup should enable Member States to reuse or enhance their existing national judicial communication infrastructure for the purpose of cross-border use.

(67)

The Commission should be responsible for the creation, maintenance and development of the reference implementation software. The Commission should design, develop and maintain the reference implementation software in a way that allows the controllers to ensure compliance with the data protection requirements and principles laid down in Regulation (EU) 2018/1725 of the European Parliament and of the Council (32) and Directive (EU) 2016/680 of the European Parliament and of the Council (33), in particular the obligations of data protection by design and by default as well as a high level of cybersecurity. The reference implementation software should also include appropriate technical measures and enable the organisational measures necessary for ensuring an appropriate level of security and interoperability, taking into account that special categories of data may also be exchanged. The Commission does not process personal data in the context of creation, maintenance and development of the reference implementation software.

(68)

The reference implementation software developed by the Commission as a back-end system should programmatically collect the statistical data necessary for monitoring purposes and such data should be transmitted to the Commission. Where Member States choose to use a national IT system instead of the reference implementation software developed by the Commission, such a system could be equipped to collect those data programmatically and, in that case, those data should be transmitted to the Commission. The e-CODEX connector could also be equipped with a feature allowing retrieval of relevant statistical data.

(69)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission to establish a decentralised IT system. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (34).

(70)

This Regulation should create the legal basis for the exchange of personal data between Member States for the purposes of the transfer of criminal proceedings in accordance with Article 8 and Article 10, point (a), of Directive (EU) 2016/680. However, as regards any other aspects related to personal data, such as the period for the retention of personal data received by the requesting authority, the processing of personal data by the requesting authority and the requested authority should be subject to the national law of Member States adopted pursuant to Directive (EU) 2016/680. The requesting authority and the requested authority should be considered as controllers with respect to the processing of personal data under that Directive. The central authorities could provide administrative support to the requesting authority and requested authority and, to the extent they are processing personal data on behalf of those controllers, they should be considered as processors of the respective controller. As regards the processing of personal data by Eurojust, Regulation (EU) 2018/1725 should apply in the context of this Regulation without prejudice to the specific data protection rules laid down in Regulation (EU) 2018/1727. Nothing in this Regulation should be interpreted as further extending access rights to other Union information systems under the Union legal acts establishing those systems.

(71)

Since the objective of this Regulation, namely the transfer of criminal proceedings, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and its effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(72)

In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, Ireland has notified, by letter of 13 July 2023, its wish to take part in the adoption and application of this Regulation.

(73)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(74)

The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on 22 May 2023 (35),