The model of jurisdiction introduced by the proposal on the framework decision on combating racism was the first elaborate solution which served as a model for later legislation. In the subsequent framework decision on the protection of non-cash means of payment,546 the Council again takes territoriality as a compulsory basis for
Article 9(1)(a).
547
Article 9(2) and (3).
548
Art. 7(3) of that fram ework decision, see above.
549
Council fram ework decision of 13 June 2002 on com bating terrorism (2002/475/JHA);
550
am ended by Council fram ework decision of 28 Novem ber 2008 (2008/919/JHA). Article 9(1)(a).
551
the allocation of jurisdiction.547
The active personality principle, instead, is compulsory only for those Member States that do not extradite their nationals.548 And it is still further restrained in this framework decision: National legislation can limit the application of the personality principle to those cases where the act is also punishable under the law of the (foreign) state where it was committed. This requirement of a double criminality, effectively a lex loci, is exclusively found in this framework decision.
As to the question of avoiding multiple fora, Article 11(2) only provides for consultations, as did the framework decision on eurocounterfeiting.549
6.5.1.4 Framework decision on combating terrorism
The most extensive rules for the allocation of jurisdiction were adopted by the 2002 framework decision on combating terrorism.550 Here, the Council not only provided for ample possibilities of assuming jurisdiction, but also developed a more decisive approach towards multiple fora.
The first basis for claiming jurisdiction is, again, the territoriality principle.551 But in contrast to all other legislative acts, territoriality can be understood as a pan- European territoriality: It is left open to the Member States to claim jurisdiction whenever an offence is committed on the territory of another Member State. If a national legislation adopts this concept, it will claim extraterritorial jurisdiction even in cases where there is no significant link to its own territory. Such a universal jurisdiction is rare in the existing legislation as outlined above. Although this form of the universality principle would entail problems in public international law if a state were to apply it of its own motion, it is possible to implement it through a framework
Cf. Klip, EU Crim inal Law, p. 181.
552
Docum ent A5-0206/2001fin., p. 16.
553
decision on the European level. From the standpoint of European Union legislation, it seems to be regarded as an adequate means to protect vital interests that are common to all Member States. Additionally, we find the flag principle for offences committed on board a vessel or an aircraft mentioned in Article 9(1)(b);552 this principle is not widened to a European flag principle but represents the traditional flag principle.
But there is not only an extension of the territoriality principle - the active personality principle is widened as well: Article 9(1)(c) allocates jurisdiction to Member States over their own nationals, but also over persons residing on their territory. Which are the reasons for claiming jurisdiction over cases where the terrorist act is committed in another country and the offender is no citizen of the state? A similar proposal had been made by the European Parliament in its opinion on the framework decision on child pornography. It suggested to claim jurisdiction if “the offender is one of its nationals, or resides permanently or temporarily on the territory of the Member State concerned”.553 But this proposal of extending jurisdiction to residents had not been adopted in the framework decision on child pornography. Probably the provision of the framework decision on combating terrorism is a singular reaction to the fear of foreign citizens planning terrorist acts on the territory of the EU and executing them abroad, as has happened in the assaults of September 11, 2001.
To complete the survey on jurisdiction in the framework decision on combating terrorism, one must pay attention to Article 9(1)(e) that establishes the protective principle in this ambit: A Member State has jurisdiction if “the offence is committed against the institutions or people of the Member State in question or against an institution of the European Union or a body set up in accordance with the Treaty establishing the European Community or the Treaty on European Union and based in that Member State.” The protective principle comprises, generally speaking, the passive personality principle (the offence is committed against the state’s nationals) and the protection of state interests (the offence is directed against other national
See infra.
554
See e.g. Hecker, ZIS 2011, p. 61.
555
Report on the Com m ission proposal for a Council fram ework decision on com bating
556
terrorism , A5-0397/2001 final.
interests). Article 9(1)(e) comprises both aspects and thereby tries to extend a Member State’s jurisdiction over terrorist acts. It even extends the passive personality principle to the “people” of the Member State, so that not only its nationals are protected.
It has become a commonplace to argue that an extension of jurisdiction is undesirable because it leads to legal uncertainty. The legislator seems to accept this uncertainty in order to avoid “loopholes” for criminals.554 It tries to deal with the inevitable positive conflicts of jurisdiction on a second step: In Article 9(2), the Council creates a detailed procedure in multiple fora-cases. The respective Member States shall “cooperate” to find an exclusive place for jurisdiction by applying the principles of territoriality, active personality/residence, passive personality and lastly the state of arrest as hierarchical criteria (the framework decision speaks of “sequential account”).555 This is an important progress in comparison to earlier legislation where the Council contented itself with a simple recourse to “consultation”.
Whether this system of first widening jurisdiction and then solving conflicts on a second step is a feasible concept will be revealed in practice. The question here is not whether this system can work in practice, but rather what it implies about the European legislator’s understanding of criminal justice. I will deal with this in more detail later. Here it is sufficient to say that the extension of jurisdiction is an express aim of the legislator. If one accepts this political goal, the framework decision on combating terrorism is a step forward on the legal level, because it at least establishes legal criteria for dealing with multiple proceedings. It would, however, have been a still more far-reaching step to provide for a conflict-solving mechanism, as proposed by the opinion of the European Parliament.556 It may occur that a simple “cooperation” between the Member States will not suffice to assign the jurisdiction to one Member State in cases of controversy. There is no binding decision-making procedure if one Member State does not want to waive its jurisdiction. The
Cf. am endm ent 40 with the view of introducing a new Article 12(2a).
557
Council fram ework decision of 22 July 2003 on com bating corruption in the private sector
558
(2003/568/JHA). Cf. Article 7(1)-(3).
559
Council fram ework decision of 22 Decem ber 2003 on com bating the sexual exploitation of
560
children and child pornography (2004/68/JHA ).
Council fram ework decision of 19 July 2002 on com bating trafficking in hum an beings
561
(2002/629/JHA).
Council fram ework decision of 25 October 2004 laying down m inim um provisions on the
562
constituent elem ents of crim inal acts and penalties in the field of illicit drug trafficking (2004/757/JHA).
Parliament brought forward the idea of giving Eurojust or the European Court of Justice a competence to finally decide on the question of jurisdiction according to the criteria of the framework decision,557 which would be a desirable step forward.
6.5.1.5 Framework decision on corruption in the private sector
The very extensive approach to jurisdiction, as introduced by the framework decision on terrorism, has remained singular. The 2003 framework decision on combating corruption in the private sector558 has returned to the original system again: It prescribes jurisdiction on the basis of territoriality and active personality (including the above-mentioned system for legal persons), but makes this extraterritorial jurisdiction optional to those states who surrender their own nationals.559 However, a system of dealing with multiple fora is not implemented here.
6.5.1.6 Framework decisions on child pornography, on trafficking in