Considerations on COM(2023)185 - Transfer of proceedings in criminal matters - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)185 - Transfer of proceedings in criminal matters. |
|---|---|
| document | COM(2023)185 |
| date | April 5, 2023 |
(2) The Hague Programme for strengthening freedom, security and justice in the European Union41 requires Member States to consider possibilities of 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 matters42 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 the Member States regarding the transfer of criminal proceedings could help to prevent unnecessary parallel criminal proceedings in different Member States concerning the same facts and the same person, that could result in an infringement of the ne bis in idem principle. They 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. They also aim to ensure that a transfer of criminal proceedings can take place, when the surrender of a person for criminal prosecution under a European Arrest Warrant43 is delayed or refused for reasons such as those that parallel criminal proceedings for the same criminal offence are ongoing in the other Member State, in order to enable the person being prosecuted to avoid impunity.
(5) Common rules on the transfer of criminal proceedings are also essential in order to efficiently fight cross-border crime. This is especially important for crimes perpetrated 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 in the Member States across the EU.
(6) In order to ensure the effective cooperation between the requesting and requested authorities in relation to the transfer of criminal proceedings, such rules should be established by a legally binding and directly applicable act of the Union.
(7) This Regulation should apply to all requests issued within the framework of criminal proceedings. Criminal proceedings is an autonomous concept of Union law interpreted by the Court of Justice of the European Union, notwithstanding the case law of the European Court of Human Rights, starting from the time when persons are informed by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of those proceedings, to be understood as the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal.
(8) The Council Framework Decision 2009/948/JHA44 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. It therefore establishes a procedure for direct consultations between competent authorities of the Member States concerned with the aim of achieving a consensus on any effective solution aimed at avoiding the adverse consequences arising from such parallel proceedings and avoiding waste of time and resources of the competent authorities concerned. When the competent authorities of the Member States concerned decide, following consultations in accordance with that Framework Decision, to concentrate proceedings in one Member State through the transfer of criminal proceedings, this Regulation should be used for such a transfer.
(9) Other legal instruments in the area of criminal matters, particularly those related to specific crime types, such as the Directive (EU) 2017/541 of the European Parliament and of the Council45, Council Framework Decision 2002/475/JHA46 and Council Framework Decision 2008/841/JHA47, include provisions referring to the factors to be taken into account with the aim of centralising proceedings in a single Member State when 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 line with those legal acts, to centralise criminal proceedings in a single Member State through the transfer of criminal proceedings, this Regulation should be used for such a transfer.
(10) Several Union legal acts have been adopted on the application of the principle of mutual recognition to judgments in criminal matters for enforcement of sentences in other Member States, in particular Council Framework Decisions 2005/214/JHA48, 2008/909/JHA49 and 2008/947/JHA50. This Regulation should supplement the provisions of those Framework Decisions and should be interpreted as not affecting their application.
(11) This Regulation does not affect spontaneous exchanges of information regulated by other acts of Union law.
(12) This Regulation does not apply to decisions to reallocate, merge or split cases on which the European Public Prosecutor's Office has exercised its competence in accordance with Council Regulation (EU) 2017/193951.
(13) For the purpose of this Regulation, Member States should designate the competent authorities in a way that promotes the principle of direct contact between those authorities.
(14) With a view to the administrative transmission and reception of requests for transfer of criminal proceedings, as well as for other official correspondence relating to such requests, Member States could designate one or more central authorities where necessary due to the structure of their internal legal systems. Such central authorities could also provide administrative support, have coordinating and assisting roles, thus facilitating and promoting the acceptance of requests for transfers of criminal proceedings.
(15) 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 activities52 or to the counterfeiting of the euro53 in cases where the surrender of a person is refused.
(16) This Regulation provides jurisdiction in specific cases, in order to ensure that, for criminal proceedings to be transferred in accordance with this Regulation, wherever the interests of efficient and proper administration of justice so require, the requested State can exercise jurisdiction for the criminal offences to which the law of the requesting State is applicable. The requested State should have jurisdiction to try the criminal offences for which the transfer is sought, whenever that Member State is considered as being the best placed one to prosecute.
(17) Such jurisdiction should be established 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 specific grounds mentioned in this Regulation. A requested State should also have jurisdiction when the criminal offence produces its effects or causes damages mainly in the requested State. Damage should be taken into account whenever it is one of the constituent elements of the criminal offence, in accordance with the 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 criminality of such person could be judged in one single criminal proceeding, or when criminal proceedings are ongoing in that State against other persons in respect of the same or related facts, which might in particular be relevant 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.
(18) In order to fulfil the purpose of this Regulation and to prevent conflicts of jurisdiction, having specific regard to those Member States which have their legal systems – or the prosecution of certain criminal offences – based on mandatory prosecution, the requesting State, when requesting a transfer of criminal proceedings, should waive its jurisdiction in the prosecution of the person concerned for the criminal offence for which the transfer is sought. On this basis, the competent authorities of the requesting State should be able to 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, they would be under a duty to prosecute. Such a waiver of jurisdiction 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.
(19) 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.
(20) This Regulation does not affect procedural rights as enshrined in Union law, such as the Charter, the procedural rights directives 2010/64/EU54, 2012/13/EU55, 2013/48/EU56, (EU) 2016/34357, (EU) 2016/80058 and (EU) 2016/191959.
(21) Member States should ensure that, when applying this Regulation, the needs of vulnerable persons are taken into account. According to the Commission Recommendation (2013/C 378/02)60, 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 may have.
(22) 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 in accordance with the Commission Recommendation C(2022) 8987 final61.
(23) This Regulation should not impose any obligation to request a transfer of criminal proceedings. When assessing whether a request for transfer of criminal proceedings should be issued, the requesting authority should examine whether such a transfer is necessary and appropriate. This 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.
(24) When assessing whether a request for 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 interest of justice. For instance, where the criminal offence has been committed wholly or in part in the territory of the requested State, or most of the effects or damage caused by the criminal offence were sustained in the territory of the requested State, that State may 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 can 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 the criminal responsibility were also held in the same Member State. Similarly, if most of the evidence are located in the requested State, a transfer of criminal proceeding might ease the collection and subsequent admissibility of the evidence gathered in accordance with the law of the requested State.
(25) Where the suspect or accused person is a national of the requested State or a resident in that 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 trial, in accordance with Directive (EU) 2016/343. Similarly, where the majority of victims are nationals or residents in the requested State, a transfer can be justified to allow victims to easily participate in the 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 may also be justified when that person is present in the requested State while not being a national of or a resident in that State.
(26) 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 the victim resides in the requested State. Where only limited information is available, such an assessment could also be the object of consultations between the requesting and requested authorities. Various objective circumstances that could indicate that the person concerned has established the habitual centre of his or her interests in a particular Member State or has the intention to do so, can 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, a residence permit, or a registration in an official residence register. Where that person is not registered in the requested State, residence could be indicated by the fact that a 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 that Member State 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 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 their presence in the requested State or the family or economic connections which that person has with the requested State. A registered vehicle, the registration of a telephone number, a bank account, the fact that the person’s stay in the requested State was uninterrupted or other objective factors may be of relevance to determine 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 should not be enough to establish residence in that Member State. On the other hand, an uninterrupted stay of at least three months should in most cases be regarded as sufficient to establish residence.
(27) A transfer of criminal proceedings may also be justified when criminal proceedings are ongoing in the requested State in respect of 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 or related facts against other persons, e.g. in cases of prosecution of cross-border criminal organisations, where different co-accused 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 may 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. Moreover, the requesting authorities should give due consideration to whether the transfer of criminal proceedings could enhance the aim of social rehabilitation of the person concerned in case the sentence were to be enforced in the requested State: for this purpose, the person’s attachment to the requested State, whether they consider it the place of family, linguistic, cultural, social or economic and any other links to the requested State should be taken into account.
(28) When requesting a transfer of criminal proceedings, the requesting authority should take into account possibilities of obtaining evidence from other Member States through existing instruments of mutual recognition of judicial decisions, such as the Directive 2014/41/EU of the European Parliament and of the Council62, and mutual legal assistance, where applicable, before considering transfer of criminal proceedings on the sole ground that most of the evidence is located in the requested State.
(29) Suspects or accused persons or victims should have the possibility to request for the criminal proceedings concerning them to be transferred to another Member State. These requests should not however impose any obligation on the requesting or requested authority to request or transfer criminal proceedings. If the authorities become aware of parallel criminal proceedings on the basis of a request of transfer submitted by the suspect or accused person, or the victim, or a lawyer on their behalf, then they are under the obligation to consult each other in accordance with the Framework Decision 2009/948/JHA.
(30) The requesting authority should inform as soon as possible the suspect or accused person of the intended transfer and should provide for the possibility for such person to express their opinion orally or in writing, in accordance with applicable national law, to enable the authorities to take into account their legitimate interests before issuing a request for transfer. When assessing the legitimate interest of the suspect or accused person to be informed about the intended transfer, the requesting authority should take into account the need to ensure confidentiality of an investigation and the risk of prejudicing criminal proceedings against that person, e.g. 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 the suspect or accused person despite its reasonable efforts being made, the obligation to inform such person should apply from the moment these circumstances change.
(31) The rights of victims set out in Directive 2012/29/EU of the European Parliament and of the Council63 should be taken into account in 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.
(32) When taking a decision on the transfer of criminal proceedings, the requesting authority should have due regard to the legitimate interests of victims, including their protection, and assess whether the transfer of criminal proceedings might be detrimental for the victim to effectively exercise their rights in the criminal proceeding concerned. This encompasses, for example, the possibility and arrangements available for victims to testify during trial in the requested State if it’s 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 witnesses’ protection programmes in the requested State. The victims’ rights to compensation should not be prejudiced by the transfer of criminal proceedings. This Regulation is not to affect rules on compensation and restitution of property to victims in national proceedings.
(33) Whenever there is a need 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 line with Regulation (EU) No 606/2013 of the European Parliament and of the Council64 or the Directive 2011/99/EU of the European Parliament and of the Council65.
(34) The requested State should ensure access to effective legal remedies for suspects and accused persons, as well as for victims, against the decision to accept the transfer of criminal proceedings in line with Article 47 of the Charter and the procedures applicable under national law, whenever their rights are adversely affected in the application of this Regulation.
(35) The proper application of this Regulation presupposes communication between the requesting and requested authorities involved, which should be encouraged to consult each other whenever it is appropriate to facilitate the smooth and efficient application of this Regulation, either directly or, where appropriate, via European Union Agency for Criminal Justice Cooperation (Eurojust).
(36) The requesting authority should consult with the requested authority prior to issuing a request for transfer of criminal proceedings when this is necessary, in particular, in order to determine if the transfer of criminal proceedings would serve the interests of efficient and proper administration of justice, as well as if the requested authority is likely to invoke one of the grounds for refusal under this Regulation.
(37) When transmitting a request for 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 transfer of criminal proceedings.
(38) Until the requested authority has not taken a decision to accept a transfer of criminal proceedings, the requesting authority should be able to withdraw the request, for instance when it becomes aware of further elements due to which the transfer no longer appears justified.
(39) The requested authority should inform the requesting authority of its reasoned decision on whether to accept the transfer of criminal proceedings without delay and no later than 60 days after the receipt of the request for transfer of criminal proceedings. In specific cases, when it is not feasible for the requested authority to comply with this period, for instance if it considers that additional information is necessary, it may only be extended for further 30 days to avoid excessive delays.
(40) Transfer of a criminal proceeding should not be refused on grounds other than those provided for in this Regulation. To be able to accept the transfer of criminal proceedings, 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 not accept the transfer of criminal proceedings when the conduct for which transfer is sought is not a criminal offence in the requested State, or when the requested State does not have jurisdiction over that criminal offence, unless it exercises jurisdiction provided under this Regulation. Furthermore, the transfer of criminal proceedings should not be accepted in case of other impediments to prosecution in the requested State. The requested authority should also be able to refuse a transfer of criminal proceedings, if the suspect or accused person benefits from an immunity or privilege in accordance with the law of the requested State, e.g. 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 certificate for a request for transfer is incomplete or was incorrectly completed by the requesting authority, thus not enabling the requested authority to have the necessary information to assess the request for transfer of criminal proceedings.
(41) The principle of ne bis in idem, as set out in Articles 54 to 58 of the Convention implementing the Schengen Agreement66 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 he or she 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.
(42) Before deciding not to accept a request for transfer of criminal proceedings on the basis of any ground for refusal, the requested authority should consult the requesting authority in order to obtain any necessary additional information.
(43) The acceptance of 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 and requested State. This should be without prejudice to investigations or other procedural measures which may be necessary to execute decisions based on mutual recognition instruments or to comply with requests for mutual legal assistance linked to the proceedings subject to the transfer. 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 avoid abusive challenges and ensure that the criminal proceedings are not suspended at length, if a legal remedy with a suspensive effect has been invoked in the requested State the criminal proceedings should not be suspended nor discontinued in the requesting State until a decision on the remedy has been taken in the requested State.
(44) This Regulation should 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.
(45) The requested authority should inform the requesting authority in writing of any decision delivered 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 also include the reasons for such discontinuation.
(46) If the requested authority decides to discontinue criminal proceedings related to the facts underlying the request for transfer, the requesting authority may continue or reopen criminal proceedings whenever this would not entail a violation of the ne bis in idem principle, i.e. whenever that decision does not definitely bar further prosecution under the law of the requested State and therefore does not prevent further proceedings, in respect of the same acts, in that State. Victims should have the possibility to initiate or to request reopening of the 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.
(47) 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.
(48) 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 perpetrated in the territory of the requesting State, the requested authorities may take into consideration in the determination of the sentence the maximum penalty envisaged in the law of the requesting State, whenever this is to the benefit of the accused person, and in accordance with the 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 ensure a degree of legal certainty and foreseeability of the applicable law for the suspects or accused persons concerned. The maximum sentence envisaged in the law of the requesting State should always be taken into account where jurisdiction of the requested State is based exclusively on this Regulation.
(49) Member States should not be able to claim from each other compensation for costs resulting from the application of this Regulation. However, when 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.
(50) The use of a standardised certificate translated in all official Union languages would facilitate cooperation and the exchange of information between the requesting and requested authorities, allowing them to take a decision on the request for transfer more quickly and effectively. It also reduces translation costs and contributes to higher quality of requests.
(51) The certificate should only include personal data necessary to facilitate the requested authority’s decision on the request. The certificate should contain an indication of the categories of personal data, such as whether the related person is suspect, accused or victim, as well as the specific fields for each of these categories.
(52) In order to effectively address a possible need for improvement regarding the certificate to be used to request transfer of criminal proceedings, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission to amend the Annex to this Regulation. It is of particular importance that the Commission carries 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-Making67. 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.
(53) In order to ensure swift, direct, interoperable, reliable and secure exchange of case-related data, communication under this Regulation between the requesting and requested authorities 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) …/…[Digitalisation Regulation]68. In particular, the decentralised IT system should, as a rule, be used for the exchange of the certificate and of any other relevant information and documents, and all other communication between the authorities under this Regulation. In cases where one or more of the exceptions mentioned in the Regulation (EU) …/…. [Digitalisation Regulation] apply, in particular, where the use of the decentralised IT system is not possible or appropriate, other means of communication may be used as specified in that Regulation.
(54) Member States could use a software developed by the Commission (reference implementation software) instead of a national IT system. This reference implementation software should be based on a modular setup, meaning that the software is packaged and delivered separately from the e-CODEX components needed to connect it to the decentralised IT system. This setup should enable Member States to reuse or enhance their existing national judicial communication infrastructures for the purpose of cross-border use.
(55) The Commission should be responsible for the creation, maintenance and development of this 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 Regulations (EU) 2018/172569 and (EU) 2016/67970 of the European Parliament and of the Council and Directive (EU) 2016/680 of the European Parliament and of the Council71, in particular the obligations of data protection by design and by default as well as 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 this reference implementation software.
(56) 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 programmatically collect those data 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.
(57) 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 Council72.
(58) This Regulation should create the legal basis for the exchange of the personal data between the Member States for the purposes of the transfer of criminal proceedings in line with Article 8 and Article 10(a) of the Directive (EU) 2016/680. However, as regards any other aspect, such as the time period for the retention of personal data received by the requesting authority, the processing of personal data by the requesting and requested authorities should be subject to the national laws of Member States adopted pursuant to the Directive (EU) 2016/680. The requesting and requested authority should be considered as controllers with respect of the processing of the personal data under that Directive. The central authorities provide administrative support to the requesting and requested authorities 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 of the European Parliament and of the Council should apply in the context of this Regulation without prejudice to the specific data protection rules of the Regulation (EU) 2018/1727 of the European Parliament and of the Council73.
(59) 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. 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.
(60) [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 Treaty on European Union and the Treaty on the Functioning of the European Union, Ireland has notified [, by letter of …,] its wish to take part in the adoption and application of this Regulation.] OR [In accordance with Articles 1 and 2 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 Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.]
(61) In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.
(62) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) No 2018/1725 of the European Parliament and of the Council74 and delivered an opinion on […].