Reality and daily life at courts looks very different today than in the early 1920s. There are new challenges like multiculturalism and globalisation thanks to which clients at courts represent many different cultures and speak many different languages. At the end of 2019, there were about 19.56% foreign inhabitants (born abroad) in Sweden28 whereas the same figure for Finland in 2018 was 7%.29 At the same time, cases are more international as well. Both criminality and business are no longer confined by state borders but have an international and cross-border character. Therefore, judges need to know how to tackle these types of cultural differences and language problems and how to decide cases which are not based only on the national law. In this modern context, the strict respect of legality or origins to that type of previous legal culture in Finland seem no longer to be current issues. The daily-life situations show that many other problems and values have become more current by time.

28https://www.scb.se/hitta-statistik/statistik-efter-amne/befolkning/befolkningenssammansattn ing/befolkningsstatistik/. Accessed 14 June 2020.

29https://www.tilastokeskus.fi/tup/maahanmuutto/maahanmuuttajat-vaestossa/ulkomailla-syntyn eet.html. Accessed 14 June 2020.

### *2.4 The Main Cornerstones in Recent History Until Today*

When the Finnish Parliament adopted the Declaration of Independence of Finland on the 6th of December 1917, the new state thus already had a rich national culture and centuries of experience in managing its own affairs. As explained above, the makings of the independent nation stem partly from the times of Swedish rule (from the thirteenth century until 1809) and especially from the period when Finland was an autonomous Grand Duchy of the Russian Empire (1809–1917).

Extra flavour was added to this cultural soup by the Finnish civil war in 1918 and its consequences, as well as by the Second World War and the war-responsibility trials, which were of an accentuated political nature. The latter incidents may likely have resulted in increased demands on democracy, the rule of law and legal protection.30 In the 1970s, unemployment caused a deep crisis in Finland, as did the economic depression in the beginning of the 90s; such periods have cultural and mental effects,31 not only in general but also specifically in the court culture. With these two and other potential crises still in their minds, the general audience and professional groups like judges and legislators are more sensitive when faced with difficult situations and the associated risks. It is easy to remember what things were like during times of crisis, and it is not forgotten that new crisis are still possible in the future. There is no belief that happy days will last forever.32

In Sweden, there have been no wars and more need for workers than unemployment; even the economy has consistently been relatively buoyant, at least compared with many other countries. The current COVID-19—crisis is the biggest crisis in the last 200 years.

In Sweden, the ideology of *folkhemmet*33 well illustrates recent Swedish societal history. It still profoundly affects the self-image34 of Swedes today. Nothing similar has occurred in Finland, even though both countries are welfare states. The idea of *folkhemmet* strongly affects Swedish culture and the Swedish way of living, especially with regard to social connections like working environment and labour law. It highlights the importance of group participation in decision-making (e.g., in the

30Kekkonen (1998a), p. 936.

31According to Lehtinen et al. (1995), the economic depression increased metal problems in Finland, pp. 323–329, whereas according to Viinamäki et al. (1997) the correlation is unclear. Still, in the latter study economic factors also seem to correspond with mental problems, p. 1689.

32See, for instance, Kiander (2001), pp. 131, where the results of a research program on the "1990s economic depression" of the Finnish Academy is presented. Also, Kekkonen pays attention to how economic depressions and other crises affect legal culture. See Kekkonen (1999), pp. 51, 88 and 93. How societal changes affect courts has been discussed in Tuomioistuinlaitoksen kehittämiskomitean välimietintö (committee report) 2003, pp. 18.

33*Folkhemmet* is a political concept that played an important role in the history of the *Swedish Social Democratic Party* and the Swedish welfare state. The core of the *folkhem* vision is that the entire society ought to be like a small family where everybody contributes. See more about the concept in, e.g., Dahlqvist (2002), pp. 445–465.

34Bertilsson (2010), p. 28.

workplace). This social way of thinking arising from the *folkhemmet* ideology is very widespread throughout Swedish society.

This mindset affects legal culture as well, including the ways in which legal tools are used and laws are interpreted. The differences in juridical law-making can be explained by these societal reasons, which have led to two different court mentalities in the East-Nordic countries.

The discussion on legality, described above, its origins and meaning in daily life and during the exceptional circumstances, is current also today. The legality is not working in the same way during the exceptional times than in the normal daily life. It has been evident, for example, during the current COVID-19 period, when the government in Finland has given false information on the valid restrictions, most likely to make people more compliant. It has not clearly informed on the difference between recommendations and obligations. Because the parliament and government decided to implement emergency legislation, this type of unclear information has been deeply misleading. Under normal conditions, people can more easily estimate what is and is not legal, but a general audience cannot know the contents and limits of emergency legislation. For instance, Finnish citizens were not told that they could still come and go over the border based on their fundamental rights despite the emergency legislation.35 Only since the legal scholars started to pay attention to this lack in information, the written instructions were changed and for instance, ministers started to stress this in an oral way too. Still, I argue that it is not entirely appropriate to use exceptional political trials as daily-life examples. How the law should be interpreted and applied in daily life in routine cases should be researched as well. The situation as a whole should then be compared with the research target, like legality. Only if the legality is interpreted and followed strictly both in the daily life as well as during the exceptional circumstances, it is possible to draw conclusions which describe the local attitudes in general. The cases with political value are usually exceptional, and sadly often tragic, examples. Therefore, I would like to sum up that what Russification affected into the Finnish legality is no longer very current. The value of legality has become lower. Additionally, it must be stressed that the above described traditional effects from the periods of Russification are in contrast. On the one hand, legality is underlined in this context. On the other hand, the rapid reforms and creative case-law as a solution are mentioned too.

35For instance, the official newssheets on the website of the Finnish border guard https://www. raja.fi were misleading during the early stage of the pandemic. After the media and some professors debated the issue, they were adjusted and now it clearly whether the instructions are merely recommendations, or whether they are enforceable rules, and whether the restrictions apply only to foreigners, or also to Finnish citizens.

See for instance, https://yle.fi/uutiset/3-11487500, https://www.uusisuomi.fi/uutiset/apulai sprofessori-loytaa-useita-ongelmia-suomen-koronatoimista-ratkaisujen-tekeminen-on-karannutosin-pois-eduskunnan-kasista/1a415363-b0e5-46c0-8629-e0b1fd30a5de, https://svenska.yle.fi/ artikel/2020/05/07/manniskorattsprofessor-martin-scheinin-man-har-ansett-att-det-bara-ar-diktat urer, https://perustuslakiblogi.wordpress.com/2020/03/ and https://sverigesradio.se/artikel/746 8102. Accessed 11 Feb 2021.

### **3 Sweden as a Role Model**

The attitude towards the Swedish legal system has been extremely positive in Finland. Especially in the legislative culture, Sweden is usually seen as a good model which can safely be followed. Still, the Swedish model is not directly copied; instead, the Finnish legislator often is careful and waits for more thorough evaluation based on the Swedish experience before the Swedish model is followed in legislative reforms. By doing so, the Finnish legislator often uses Sweden as a test lab. This method is easy due to the common background and similarities in jurisdiction. Both East-Nordic countries belong to the same Scandinavian legal family and additionally have a common history. This means that the legal system, legal principles and the court system are, if not identical, very similar to each other. Additionally, the surrounding society and the mentality of people is—at least at the macro level—very similar. This facilitates legal transplants. Actually, Swedish models or experiences are not even perceived as legal transplants in Finland but rather are seen more as a 'domestic product'.36 Based on the common history of Sweden and Finland, this is understandable. Still, much has happened in Finland since the Swedish period. Therefore, the common history cannot explain everything, but the main reasons for having Sweden as a role model, must be in the common culture, which still has effects due to geographical and mental similarities. This is why the Swedish transplants feel home-made.

Another reason for easily adopting Swedish reforms and learning from the Swedish experience, is the strong common East-Scandinavian jurist identity, which is built mostly by regular Nordic contacts and co-operation in practice.37 In daily life, Nordic lawyers and researchers frequently keep in touch, especially with their Swedish colleagues. Especially in Finland, the Swedish case law and scientific literature are carefully followed, referenced and used in the Finnish research but also, for instance, at courts by judges and attorneys. In Sweden, this tradition is less common due to the language barrier. All Finns can understand Swedish, but most Swedes cannot understand Finnish. The Finnish scientific literature written in Swedish language and court cases in Swedish are the clear minority even though Finland has two national languages, Finnish and Swedish. Therefore, the Finnish legal discussion is more difficulty followed in Sweden than the Swedish discussion in Finland.

All of the above is very true with regard to the legislative culture as well as scientific research and legal education at universities. Still, the daily life in adjudication differs more than the well working collaboration at the legislative field.38 The reason for this is that the toolboxes of Swedish and Finnish judges are not identical. Whenever a new interpretation is needed due to the new practical circumstances and needs, if the legislator has not yet reacted with amendments, the Finnish courts normally interpret the valid sections of a law in an instrumental way to reach the best working

36See for instance Ervo (2015), p. 136.

37Sallila (2011), p. 457.

38See for instance Letto-Vanamo and Tamm (2019), pp. 2–5 and 14–17.

solution in a new situation. This type of common sense belongs in the toolbox of Finnish judges and is not found to be generally speaking illegal or risky39 to do so.40 However, this is not the case in Sweden. Especially before joining in the EU in 1995 Swedish courts were very careful and extremely bound to travaux preparatoires and wordings.41 Thanks to Europeanisation, this has changed somewhat since the early 2000s. Still, the difference between the neighboring countries is significant in this sense. The more creative Finnish way of interpreting and applying valid sections of laws is strange to Swedish judges. They have not traditionally used these types of creative instruments to interpret in their adjudication, even though recently the Swedish case law has grown more important and judges have become more creative and willing to solve problems within the court.42

### **4 Main Differences Between East-Nordic Countries**

### *4.1 Discuss and Run—Cultural Differences in Reacting*

Some key differences between the Finnish and Swedish legal cultures do exist.43 Among these are the differences in efficiency and speed of reforms, in addition to the above-mentioned courts' power to create justice. The Swedish legislative culture is quite dialogic compared with the Finnish one. For instance, travaux preparatoires like SOU-reports—are very comprehensive and well prepared. It is also typical that a wide societal discussion precedes planned reforms.44

This difference concerns not only the legislative culture but the culture as a whole. It is a notorious fact that the Swedish decision-making which aims to achieve consensus is time-consuming, and there are several long-lasting meetings and comprehensive discussions before the final decision. In those occasions, all actors may attend discussions and offer their opinions.45 From the Finnish perspective, this kind of decision making is time consuming and not effective.46 In Finland, the result is generally more appreciate than the method by which it is achieved.

39Nor the general audience or guardians of law and order normally find it to be allowed to do so.

40Still, this type of Finnish court culture has even been criticised as too passive despite this instrumental approach. Määttä (2011), pp. 207–225.

41See for instance Letto-Vanamo and Tamm (2019), p. 7.

42Bertilsson (2010), pp. 29–31, Fura-Sandström (2004), pp. 264–265.

43Niemi has compared Sweden and Finland and the named similarities and differences in her article from the legal theory perspective. See Niemi (2018).

44Ervo (2015), pp. 144–145 and Kekkonen (1998b), p. 936.

45See for instance, https://ruotsi.rajaneuvonta.fi/company/alku/liikekulttuuri-ruotsissa/. Accessed 14 June 2020.

46Watch for instance a TV program on the named differences: https://areena.yle.fi/1-1164648. Accessed 14 June 2020.

The Finnish way to 'run things', or to *do* instead of to *discuss* (or reflect or analyze), is the main difference between the Finnish and Swedish cultures, and this can be seen very prominently in the legal culture.47

### *4.2 Judicial Law-Making*

The above-mentioned cultural difference can be one reason for differences in judicial law-making as well, because the common atmosphere and traditions are reflected in courts and affect the work done in them. The decision-making procedures at courts when adjudicating or in the legislature when legislating naturally follow the common culture.

Namely, the court mentality is one crucial factor in so-called judicial activism or judicial law-making and in its opposite—that is, judicial self-restraint. These concepts refer to judges´ activity in creating new interpretations and, in difficult cases, even new solutions to problems. Judges can be like passive civil servants who just apply the law more or less technically, or they may closely resemble political actors when they actively create law and up-date interpretations.48

The precedents play a significant but practical role in Nordic legal systems. The way in which Nordic law normally tends to identify precedents is highly informative. The Nordic attitude toward precedent describes very well how in the Nordic legal culture the role of the courts and the accompanying role of the legislator are found to be at least partly parallel.49 This reveals something potentially important with regard to the Nordic spirit of law,50 particularly in Finland as compared to Sweden.

Swedish courts and judges are more bound to the wordings of rules as well as travaux préparatoires compared with their Finnish colleagues, who can make quite finalistic interpretations to find practical and well-functioning solutions, especially in situations where the older legislation does not correspond to the current societal needs and the legislator has not yet reacted.51 A search using the term 'fair trial' among the precedents of the Finnish Supreme Court yielded six examples of this, of which five included this type of creative interpretation, especially in the lower courts.52 Especially lower courts, and sometimes the minority at the Supreme Court, seem to have a tendency to interpret law quite widely and in an instrumental way. Still, the Supreme Court and especially its majority are still more bound to the wordings of sections of laws.

47Ervo (2015), p. 145.

48Ervo (2015), p. 149 and Hautamäki (2003), p. 171.

49Husa (2010), p. 6.

50Simoni and Valguarnera (2008), p. 97.

51Ervo (2015) p. 145.

52The identified cases were The Supreme Court 2016: 98, 88, 85, 84, 76 and 45, of which cases 96, 88, 84, 76 and 45 were interesting in this sense.

In the literature, Siltala has stressed that there are two different 'trends' in the Finnish adjudication: namely, the legalistic one and the more creative one. The latter is used especially when European legislation has to be applied to find the more similar interpretation between Finnish and European rules.53 Hautamäki is of the opinion that judicial activism is increasing in Finland due to more open norms which delegate more discretion to the courts.54 Tuori shares the opinion of Hautamäki and Siltala, saying that activism is increasing and affecting especially EU legislation.55

There are also dissenting opinions in the literature. For instance, Mattila wrote in 1998 that judges in Finland and Sweden see themselves as executors of the legislator.56 Husa shared the same opinion in 2010 but added that activism in the Nordic countries is increasing. According to him, the role of precedent has also been remarkably weak in the formal and doctrinal sense. One crucial factor the different legal activism between the neighboring countries, is the Finnish and Swedish legal-cultural attitude, according to which moral questions should be left to national Parliaments, not to courts of law, as Husa noted in 2010.57

I think that the reason to these different kind of opinions in the legal literature is that the authors do not compare judicial activism with the same standards. It is clear that both Swedish and Finnish courts and judges are careful in a broad sense; they are professional and follow legislation in a respectful way. The amount of offences in office are at a low level, and corruption is not a problem. In addition, there are high levels of control. For instance, ombudsmen are common in both countries, and the threshold to contact them is at a low level because there are not many formalities related to do so and the information is easily at hand. From that perspective, legalism is at a high level in both East-Nordic countries.58

Still, at the micro level the difference is essential.59 If we compare only Finland and Sweden with each other, we can see that judicial activism does not traditionally exist in Sweden. The requirements of Europeanisation have changed this domestic situation quite comprehensively, but still the activism is limited to those situations where there are no other changes to react to but where courts and judges need to find a harmonious interpretation to follow not only the Swedish national laws but also the demands of the European law.60 With regard to judicial self-restraint, it is a question of the level of restraint. It might still be true today that courts are self-restrained in both countries to some degree, but despite this fact there are differences in the Finnish and Swedish mentality in this respect.

53Siltala (2003), p. 294.

54Hautamäki (2003), p. 172.

55Tuori (2000), p. 1051.

56Mattila (1998), p. 706.

57Husa (2010), pp. 7–8.

58Ervo (2013a, b), pp. 117–132.

59Also, Letto-Vanamo and Tamm have underlined the differences between the single Nordic countries. Letto-Vanamo and Tamm (2019), pp. 1–2.

60Bertilsson (2010), pp. 29–31, Fura-Sandström (2004), pp. 264–265.

What was described above is at the same time connected to the sources of law. In Finland, judges use their discretion much more than their colleagues in Sweden do. The differences in culture and mentality lead to a situation in which individual solutions are rare in Sweden and courts wait for the legislator's reaction whenever new solutions are needed.61 In Finland, it is not considered risky to make fair and rational decisions in a situation where the law seems to be old-fashioned or otherwise lacking. The same is true in situations where the wording of provisions include the possibility for discretion. In those situations, judges do react and find a solution which works well in practice. They have an instrumental mentality, in which a quick and practical solution is appreciated. It is considered fair to react as a court to solve a problem when the legislator has not yet done so or when the legislator has delegated that power to courts by open and goal-aimed norms.62 Often, the Nordic law has been generally found to be practical and concrete, rather than theoretical and abstract, in nature.63 Despite these characteristics there are practical and 'more practical' jurisdictions among the Nordic countries. When Sweden and Finland are compared with each other, Finland is clearly the more practical jurisdiction.

In Sweden, on the other hand, these type of situations are normally found as gaps in the legislation, and those gaps in a democracy should be filled by legislative power, not by judicial activism.64 However, this is not due only to the different understanding of democracy but also to the common culture which is discursive and communal in Sweden. Legislative procedure corresponds with that type of national culture much better than juridical activism do. Therefore, judicial activism does not fit well into the Swedish court culture and the mentality of judges. Also judges are 'children' of their time and their surrounding society and therefore affected by it. Despite of the education and profession they are affected the more common lifestyle and world view in the society as such.

### **5 The Current Situation**

Today, the Finnish legal culture is still characterised by quick solutions and rapid reforms, which can be realised whenever needed through new interpretations in the case law if the legislator has not reacted to relevant new and current needs in the society. This makes flexibility, creative solutions and common sense trademarks of the Finnish legal culture, which has can be illustrated as 'folksy'; in the other words down-to-earth, practical and flexible.65 In addition, discretion has in many cases

61See, for instance, Tuori (2000), pp. 1049–1050. Also, Husa has paid attention to a big role of the parliament in Sweden from the perspective of the constitution. Husa (2019), p. 41.

62Ervo (2020), p.

63Husa (2010), p. 5.

64Holland (1991), p. 2.

65Letto-Vanamo and Tamm describe the Nordic legal culture as pragmatic, uncomplicated and realistic. There does not exist unnecessary formality and an uncomplicated and understandable legal

been delegated from the legislator to the adjudicator in the form of open norms and concepts in laws to guarantee flexible solutions in new situations of application. The reasons for this can be found in history. In particular, the periods of Russification have been said to affect the legal culture in a way which still can be seen today.66 I have partly challenged this approach above, but there might be some truth in it still today.

However, the mentality in general varies between Swedes and Finns. Finns are more individual and direct. They are straightforward and enjoy realizing plans, whereas Swedes find more enjoyment in making plans together. Long-lasting discussions with all actors before making a plan or realizing it are trademarks of the Swedish culture as such. This is true in general and not only with regard to the legal culture. This fact probably offers much more clarification than the already quite archaic explanations of Russification and the other historical reasons which were presented above.67

The other question is why Swedes are more communal, social, and collaborative compared with the more individualistic Finns.68 In Sweden, for instance, the workplace culture is from the bottom up, whereas in Finland it is still more hierarchical, though less so than in the past.69 If we do not focus on the DNA and origins of those two people but try to find the societal reasons and explanations, the Swedish '*folkhemmet*'-movement can be one explanation. Still today, this ideology of folkhemmet is affecting deeply and in a comprehensive way the Swedish way of thinking and running issues. This difference in cultures can be seen everywhere in the society. Legal culture and court culture are not exceptions to but good examples of these cultural differences and varying ways of thinking.

Some practical differences in national situations also cause cultural differences. As explained above, Swedish society is more multicultural than Finnish society. Almost 20% of Sweden's inhabitants were born abroad, a rate which is and must be seen in daily-life culture as well. The corresponding number in Finland is 7%, which is much lower but not insignificant. How this significant proportion of foreignborn residents affects the court culture is an interesting question. In fact, its impacts are visible in daily life, such as in court proceedings where foreigners are parties and should be treated in the same way as native-born citizens. As a matter of fact, its impacts are visible in daily life, such as in court proceedings where foreigners are parties and should be treated in the same way as Swedes. How to reply to this

style is characteristic like transparency, equality, and avoidance of extremes too. Letto-Vanamo and Tamm (2019), p. 9.

66Ervo (2015), pp. 143–144 and Sallila (2011), p. 466.

67See for instance, https://finlandrelocation.com/en/naapurisopu-suomi-ja-ruotsi/. Accessed 14 June 2020 and https://www.infofinland.fi/fi/elama-suomessa/tyo-ja-yrittajyys/suomalainen-tyokul ttuuri. Accessed 14 June 2020.

68See for instance, https://finlandrelocation.com/en/naapurisopu-suomi-ja-ruotsi/. Accessed 14 June 2020.

69See, e.g., Bernitz (2018), p. 386 and Isaksson (2008), pp. 16, 20 and 39.

challenge in practice, is one of current questions.70 In addition, there might be latent effects, for instance in the form of stereotypes.71 Finland shares the same challenges but so far at a lower level compared with Sweden.

These differences at the micro level, however, do not inhibit Nordic collaboration, for instance in legislative matters.72 Due to quite uniform legislation, the court culture is also more or less uniform, but only at the macro level. As explained above, there are some differences in the way of thinking and especially in the way of acting which are important to understand in order to get the correct impression of current East-Nordic court cultures (sic, plural). At the macro level, there is only one East-Nordic court culture, but at the micro level there are both Finnish and Swedish court cultures, which do vary.

### **References**

70https://www.domstol.se/globalassets/filer/gemensamt-innehall/styrning-och-riktlinjer/strategieroch-riktlinjer/bemotandestrategi-for-sveriges-domstolar.pdf. Accessed 14 June 2020 and Ökat förtroende för domstolarna—strategier och förslag—Betänkande av Förtroendeutredningen Stockholm 2008, SOU 2008:106, p. 62.

71Torstensson (2010), pp. 95–100.

72The Nordic Council, established in 1952, fosters co-operation among parliamentarians from its member nations, Denmark, Finland, Iceland, Norway and Sweden, and autonomous territories, Faroe Islands, Greenland and Åland. The Nordic Council of Ministers, created in 1971, promotes cooperation among government officials. The Nordic Council and its committees tackle, for instance, topics in legislation where the Nordic countries might wish to coordinate their policies. See, e.g., https://nordics.info/show/artikel/nordic-council-and-nordic-council-of-ministers/, https://www.nor den.org/en both accessed 14 June 2020 and Nordic programme for co-operation on legislative affairs (2015–2018)

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# **Europeanisation, Globalisation and Nordic Courts**

# **Europeanisation of Nordic Civil Procedure: Does the Map Match the Terrain?**

**Anna Nylund**

**Abstract** EU law has a tangible influence on the civil procedure law in the Nordic countries. This chapter explores how EU civil procedure law is practised and perceived in the Nordic countries. First, a brief account of the manifold levels and types of EU civil procedure law is given. The extent to which Nordic legal academics, judges and legal counsel make use of and discuss EU civil procedure law is analysed. A key question is whether lawyers appear to have a relatively superficial knowledge of EU law (i.e., they identify only central issues) or whether they have acquired profound skills (i.e., they are able to identify and address complex issues). Third, the transposition of EU hard law and case law into national civil procedure law in the Nordic countries is examined. The Nordic countries generally implement EU hard law diligently, at least formally. Nevertheless, it will be argued that the quality of implementation is sufficient and that case law-based rules are often inadequately transposed. Finally, the consequences of a superficial approach to EU civil procedure law in the Nordic countries are discussed.

### **1 Introduction to Europeanisation of Civil Procedure**

### *1.1 Introductory Remarks*

Since the 1990s, European law has continuously shaped Nordic civil procedural law. Three waves of Europeanisation can be identified. The first wave was the requirements of a fair trial and other human rights enshrined in the European Convention on Human Rights (ECHR) that have been transmitted through the case law of the European Court of Human Rights (ECtHR). This wave brought procedural human rights

A. Nylund (B)

UiT, The Arctic University of Norway, Hansine Hansens veg 18, 9037 Tromsø, Norway e-mail<EMAIL_ADDRESS>
© The Author(s) 2021

L. Ervo et al. (eds.), *Rethinking Nordic Courts*, Ius Gentium: Comparative Perspectives on Law and Justice 90, https://doi.org/10.1007/978-3-030-74851-7\_7

to the forefront of Nordic law, making the ECHR an integrated part of Nordic procedural law.1 The second wave, or rather a set of waves, emanates from European Union law, and comes in various forms: 'constitutional' law, regulations, directives, case law, soft law and international conventions regulating proceedings with cross-border elements, or that are designed to improve the enforcement of central EU policies, such as consumer and competition law. The third wave consists of networks, training, rankings, information portals and so forth, mainly within the domain of EU but also through the Council of Europe and other organisations.2

The first wave was an earthquake for criminal procedure. Additionally, it caused palpable changes to civil procedure argumentation because it highlighted the role of legal principles embodying various aspects of fair trial rights in legal argumentation, particularly in legal scholarship.3 In contrast, the second wave of European law has been creeping in more gradually: the legislation is voluminous and omnipresent, and yet many lawyers working in the field of procedural law are oblivious to it, or at least underestimate the magnitude of it, and its far-reaching implications. This chapter will explore the paradoxes of mismatching perceptions and realities of the nature and impact of EU procedural law in the Nordic countries. The study is limited to civil procedural law, since also covering criminal procedure would be both beyond the scope of this chapter and at least partly redundant, as some of the basic mechanisms apply there as well.

In this chapter, the nature and amount of EU law with relevance for civil procedure is briefly discussed in Sect. 2. Section 3 explores the Nordic response to EU civil procedure law among various stakeholders: scholars, judges and practitioners. Thereafter, transposition of EU hard law and case law in Nordic civil procedure law is analysed in Sect. 4. In the final Sect. 5, the ramifications of the discrepancies between the level of EU influences and Nordic perceptions of, and reactions to, EU civil procedure law are discussed.

### *1.2 The Nordic Countries, the EU and the EEA Agreement*

In the area of Justice and Home Affairs, the Nordic countries have chosen different approaches to EU law. Finland and Sweden are bound by all EU law, whereas Denmark has an exemption from Justice and Home Affairs, as a result of the 1993 referendum where the Danish people rejected the Maastricht Treaty. Hence, EU law enacted to improve judicial cooperation in civil matters is not applicable in Denmark unless Denmark has used its right to opt in. In contrast, EU civil procedure

1See, e.g., Bang-Pedersen et al. (2017), pp. 67 ff., Bylander (2017), Frände et al. (2012), pp. 214 ff., Skoghøy (2011), pp. 4–24 and Ervo (2005).

2Storskrubb (2019a).

3Examples of doctoral disseratiotions from this period in the field of civil procedure where selected aspects of the European Convvention on Human Rights art. 6 is discussed in detail are Bernt (2011), Bylander (2006), Knuts (2006) and Ervo (2005).

law, emanating from the duty to provide effective and equivalent protection of rights derived from EU law, efficient enforcement of EU consumer law and so forth, applies in Denmark.

Although Iceland and Norway are not EU Member States, the Agreement on the European Economic Area (EEA) extends a major part of EU law directly or indirectly to EEA/EFTA states.4 Iceland and Norway are not EU Member States but rather are bound by the EEA Agreement, which extends the single, internal market to the EEA states. The EEA Agreement is limited to the four freedoms of the Single Market (i.e., free movement of goods, capital, services and labour); consequently, Justice and Home Affairs are not included in it. The EEA Agreement contains a mechanism for incorporating EU law into the agreement, which creates an obligation for EEA states to implement EU law. Moreover, the EFTA Surveillance Authority (ESA) mirrors the EU Commission, and the EFTA Court has the role of the CJEU. EEA states are obliged to ensure homogenous application of EU law across the EU and EEA states. Courts in EEA countries have the right, but not a duty, to request Advisory Opinions from the EFTA Court on interpretation of EU law.5

Although the EEA Agreement as such does not cover Justice and Home Affairs, EEA states have by no means escaped Europeanisation. Firstly, the duty to effective and equivalent protection of rights derived from EU law applies in EEA states in the same manner as in EU Member States.6 Second, the EFTA Court has found that although the EU Fundamental Rights Charter has not been formally incorporated into the EEA Agreement, it is part of the general principles of law.7 Third, substantive law (e.g., consumer and competition law) sometimes has implications for procedural law and, hence, is applicable in the EEA states. Fourth, the Lugano Convention serves in practice as an extension of the Single Market, creating free movement of judgments. The Convention mirrors the Brussels I *bis* Regulation. Fifth, EEA states regularly implement EU procedural law voluntarily to ensure effective and equal protection of rights across the Single Market. For example, Norway has implemented the Intellectual Property Rights Enforcement Directive8 in the Dispute Act,9 even though the Directive has not been incorporated into the EEA Agreement.10

Interestingly, sometimes EEA states would like to participate in EU civil justice but are barred from doing so. The Unified Patent Court system is the paramount example,

4Nylund (2016, 2020), Fredriksen and Strandberg (2018) and Fredriksen (2008). For Iceland and Norway, the term EU/EEA law, and sometimes EU/EEA/Lugano or EU/EEA/EFTA law would be more accurate than EU law, but for simplicity EU law is used to refer to all categories.

5See, e.g., Fredrisken (2018), Poulsen (2016) and Fenger et al. (2012).

6E.g., Nylund (2020), Franklin (2018), Fredriksen and Strandberg (2018), Lang (2017), Fredriksen and Franklin (2015), Fredriksen (2010, 2012) and Temple Lang (2012).

7Spano (2017) and Björgvinsson (2014).

8Parliament and Council Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights O.J. L157/48 (2004).

9Act relating to mediation and procedure in civil disputes (The Dispute Act) Lov om mekling og rettergang i sivile tvister (tvisteloven) of 17 June 2005 no. 90.

10See, e.g., Nylund (2020) and Fredriksen and Strandberg (2018).

where the CJEU Opinion 1/0911 has been interpreted to preclude non-Member States from participating.12

The Nordic countries are a paramount example of multi-speed integration in judicial cooperation, with varied approaches to EU civil procedure law. The EEA Agreement adds a layer of complexity, since the Agreement might modify the application of EU law, or EU law may not be applicable at all. Similarly, some of the EU law on judicial cooperation in civil matters, such as the Brussels I *bis* Regulation, apply in Denmark. Despite these differences among the Nordic countries, the similarities are more striking than the differences, and many differences are more a matter of nuance than fundamental differences.13

### **2 The Variegated European Civil Procedure Landscape**

The landscape of EU civil procedure law has been described and analysed in detail elsewhere14; thus, painting the landscape with a broad brush suffices here. Europeanisation exists on several levels.15

The first level consists of EU constitutional law, particularly article 47 of the EU Charter of Fundamental Rights,16 which includes the right to a fair trial. Additionally, the basic principles of EU law, primarily the principle of effective judicial protection, form part of EU constitutional law. The second level is EU hard law—directives and regulations, which come in many forms. Some of them have an overt civil procedure content that regulates mainly cross-border cases, such as the Brussels I *bis* Regulation17 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Other EU regulations create distinct European procedures for cross-border cases that parallel national procedures such as the European Small Claims Regulation.18 A notable part of procedural hard law, however, is found in instruments with a primarily substantive content or instruments aiming for efficient enforcement of a particular type of rights, such as intellectual property rights or consumer rights. The third level of EU civil procedure law consists of Court of Justice of the European Union (CJEU) case law, in which the court develops procedural rules and doctrines, such as the requirements of effective and equivalent

11Opinion 1/09 of 8 March ECLI:EU:C:2011:123.

12For a discussion on the role of the Unified Patent Courts, see Petersen and Schovsbo (2018).

13Nylund (2020). Adler-Nissen (2015) argues that the Denmark and Norway are in very similar positions regarding legislation on the Area of Freedom, Security and Justice.

14E.g., Storskrubb (2019a) and Storskrubb (2008).

15Krans (2015).

16Charter of Fundamental Rights of the European Union O.J. C326/391 (2012).

17Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters O.J. L351/1 (2012).

18Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure O.J. L199/1 (2007).

protection of rights arising from EU law.19 Another example is the duty for courts to apply selected parts of EU consumer law on their own motion. Soft law, such as various recommendations, constitutes the fourth level. Finally, international treaties entangled in EU law, such as the 2007 Hague Convention on International Recovery of Child Support and other Family Maintenance, constitute the fifth level.20

The impact EU law asserts on national law is partly overt and direct.21 The requirement of effective and equivalent protection of rights emanating from EU law is generally recognised as a doctrine with direct implications for national civil procedure law.22 In cross-border cases, national courts must clearly adhere to the EU rules on cross-border taking of evidence and service of documents. The duty to implement collective redress mechanisms for private enforcement of competition law and alternative dispute resolution mechanisms in consumer cases is also indisputable.

Nevertheless, part of the impact of EU civil procedure law is less manifest. Several factors contribute to reducing the visibility of the potential impact on national law, among others the fact that the procedural rules are embedded in EU law seemingly regulating substantive law. For instance, regulations concerning, for instance, consumer and competition law include rules on the burden and standard of proof. The procedural content risks being neglected or considered accessory: regulations are often transposed in statutory law regulating the specific subject area and not integrated in the rules of civil procedure. Moreover, EU law is sometimes considered merely 'technical' in nature, with few, if any, long term ramifications for national law.23

Case law-based rules also run the risk of remaining hidden in legislation-based legal cultures, since lawyers could be oblivious to the existence or implication of the rules, because they do not actively follow, or they misinterpret, CJEU case law.

EU civil procedure law has innate, covert features with potentially highly disruptive power. The criteria determining the identity of a case or the classification of a case, such as a family maintenance case or a labour case, could be discordant with national law.24 The classification and identity of a case have profound implications on several aspects of civil procedure law, such as the power and obligation of the court to act on its own motion and the rules on *lis pendens* and *res judicata*. Therefore, differences between national law and EU law could result in a need for significant modifications of national law.

If the interconnections and potential tensions between national law and European law are not made explicit, European civil procedure law risks becoming a jack-in-the-box that surfaces unexpectedly and uncontrollably. Thomas Wilhelmsson argued in the mid-1990s that the piecemeal, sectoral approach of EU law, where the

19Example, Prechal and Cath (2014), Bobek (2010), Storskrubb (2008), p. 15, and Dougan (2004), pp. 28–34.

20Nylund and Strandberg (2019a).

21Krans (2020).

22Example, Krans and Nylund (2020a, b), Bobek (2010), Storskrubb (2008) and Dougan (2004).

23E.g., Galiˇc (2020) and Ervo (2020).

24E.g., Nylund (2017b), pp. 355–356.

focus is on enforcing certain policies rather than on maintaining law as a coherent system, markedly increases the indeterminacy of law.25 EU law does not aspire to a coherent, hierarchical structure and lacks legal cultural roots, yet it is integrated into national law and legal culture that endeavours to be coherent. These 'hidden' elements in EU civil procedure law surface in a Member State at irregular intervals. Avoiding surprising encounters with EU law requires vigilance on the part of the legal community: policymakers, legislators, judges, legal counsel and academics. The question is how the Nordic legal community perceives and adapts to the European legal landscape.

### **3 The Nordic Map of EU Civil Procedural Law**

### *3.1 EU Civil Procedure in Legal Scholarship*

Based on Nordic research on Europeanisation of civil procedure published in English, the level of interest in the topic is high.26 Eva Storskrubb could be characterised as a trailblazer in building the foundations of European civil procedure law as a separate subfield of law situated at the crossroads of EU law and civil procedural law.27

There is also a considerable body of research that has been conducted in Nordic languages.28 Torbjörn Andersson was one of the pioneers of the field when he authored a two-volume dissertation in the mid-1990s on the influence of EU law on how competition law cases are handled in Swedish procedural law.29 Erik Werlauff explored the impact of EU law on Danish civil procedure in 1997.30 Halvard Haukeland Fredriksen's comparative study on the impact of requests for preliminary rulings on German civil procedure and the impact of requests for advisory opinions on Norwegian civil procedure was seminal, although due to the fact that it was written in German, it has reached a smaller Nordic audience.31 The considerable academic interest in the topic raises the question of whether the academic discussions translate into a high level of understanding among lawyers, judges and lawmakers.

25Wilhelmsson (1997).

26E.g., Nylund (2016, 2020), Nylund and Strandberg (2019b), Šadl and Wallerman (2019), Wallerman (2018, 2019a, b), Storskrubb (2018, 2019a, b), Franklin (2018), Fredriksen and Strandberg (2018), Petersen and Schovsbo (2018), Wind (2018), Storskrubb and Wallerman (2017), Derlén and Lindholm (2017a, b),Hess et al. (2016), Petersen (2016), Wallerman (2016a, b) and Linna (2015).

27Storskrubb (2008).

28E.g., Storskrubb (2017a, b), Lindfors (2017), Fredriksen (2011, 2016), Linna (2016) and Wallerman (2015).

29Andersson (1997).

30Werlauff (1997).

31Fredriksen (2009).

### *3.2 Courts and Judges Applying EU Law*

Courts constitute an important player in the Europeanisation of procedural law in at least two ways. First, national courts contribute to shaping EU law by requesting preliminary rulings. Second, national courts enforce EU law and hence play a pivotal role in the application of EU law and in making national law conform to the requirements of EU law.

The number of references for preliminary rulings from Nordic, in particular Swedish, courts has been debated. The EU Commission has investigated Finnish and Swedish courts for failure to refer cases.32 At the end of 2020, Danish courts had made a total of 144 references, Finnish courts 127 and Swedish courts 150. Icelandic courts have made 35 requests for advisory opinions and Norwegian courts 64 requests. Considering the more limited scope of the EEA Agreement and the more limited jurisdiction of the EFTA Court, it is hardly surprising that courts in EEA countries make fewer requests than courts in EU Member States do. Additionally, the population sizes explains some of the differences among the Nordic countries. In recent years, the number of requests from Norwegian courts has increased compared to earlier years, with an annual average of 3.6 requests for advisory opinions.

Several commentators, among others Halldóra Thorsteinsdóttir in this volume,33 have spotted at least some hesitation among Nordic courts in referring cases to the CJEU.34 However, based on an quantitative analysis of *inter alia* the number of incoming civil cases, population size and size of the economy, Morten Broberg and Niels Fenger argue that the number of requests for preliminary rulings is neither high nor low.35 The alleged disinclination of Nordic courts to request preliminary rulings could stem from many factors and should not be as such taken as a sign of Euroscepticism. The Nordic legal method entails harmonising arguments derived from different sources, which makes courts comfortable with conducting an independent analysis of the content of EU law and aligning national law with EU law through interpretation.36

Referring cases to the CJEU is akin to judicial review of statutory law in light of the constitution. In both cases, courts question whether statutory law should be disregarded due to the fact that it is incompatible with law of a higher rank. The fact that the historical attitude towards judicial review has been ambivalent except for review of formal aspects of statutes could explain a certain self-restraint both in the

32Miettinen (2019) and Bernitz (2012).

33Thorstensdóttir (2021).

34Miettinen (2019), Bernitz (2012, 2018), Derlén and Lindholm (2017b), Rytter and Wind (2011), Martinsen and Wind (2010), Wind (2009) and Wind et al. (2009). For Iceland and Norway, see Fredriksen (2016), Poulsen (2016), Barnard (2014), Magnússon (2014), Sigurbjörnsson (2014) and Hreinsson (2012).

35Broberg and Fenger (2013, 2015). For related arguments regarding Icelandic courts, see Björgvinsson (2007) and Örlygsson (2007).

36Bernitz (2018), p. 31. For an account of the Nordic legal methods, see, e.g., Helland and Koch (2014) and Boucht (2014).

propensity to refer cases to the CJEU and in the form and content of the references made.37 The early 1990s mark a clear shift in attitudes towards constitutional review, and today judicial review is acknowledged as a task of (at least) the Supreme Courts in all Nordic countries.38 As a consequence of more active judicial review nationally, the threshold for making request could decrease over time.

Mastering the art of framing the request for a preliminary ruling in a manner that makes sense to the CJEU is a prerequisite for getting a useful answer. Identifying the more complex issues of EU law and issues arising at the crossroads of national and EU law necessitates a profound knowledge of EU law. The same applies to exploiting the opportunities to contribute to the development of EU law through preliminary references. Several commentators have questioned whether Nordic judges possess the skills necessary to conduct a fertile dialogue with the CJEU.39

With regard to national courts applying EU law, Nordic courts do apply EU law. However, several authors have argued that while Nordic courts apply EU law diligently when EU law is clearly applicable and the requirements it poses are unambiguous, they fail to recognise more intricate and less obvious issues.40

In matters concerning civil justice, by the end of 2020, Nordic courts had made a total of 20 requests for preliminary rulings. Finnish courts had made eight requests,41 Swedish courts seven,42 and Danish courts five requests.43 The Nordic courts had

37Bernitz (2018) pp. 31 –33, Wind (2010, 2018),Sunnqvist (2014) and Martinsen and Wind (2010). 38Example, Sunnqvist (2021), Husa (2000, 2019), Helgadóttir (2011), Nergelius (2009), Ojanen (2009), Sand (2009) and Schaumburg-Müller (2009).

39Wallerman (2016b, 2018), Wind (2018), Derlén and Lindholm (2017a, b) and Jääskinen (2005). 40Wallerman (2016b, 2018), Wind (2018), Derlén and Lindholm (2017a, b), Sunnqvist (2014) and Hreinsson (2012). See also Leijon and Karlsson (2013).

41Case C-435/06 *C* ECLI:EU:C:2007:714, Case C-523/07 *A* ECLI:EU:C:2009:225, Case C-4/14 *Christophe Bohez v Ingrid Wie*rtz ECLI:EU:C:2015:563, Case C-310/14 *Nike European Operations Netherlands BV v Sportland Oy, in liquidation* ECLI:EU:C:2015:690, Case C-521/14 *SOVAG—Schwarzmeer und Ostsee Versicherungs-Aktiengesellschaft v If Vahinkovakuutusyhtiö Oy* ECLI:EU:C:2016:41, Case C-605/14 *Virpi Komu, Hanna Ruotsalainen, Ritva Komu v Pekka Komu, Jelena Komu* ECLI:EU:C:2015:833, Case C-88/17 *Zurich Insurance plc, Metso Minerals Oy v Abnormal Load Services (International) Ltd* ECLI:EU:C:2018:558, Case C-433/18 *ML v OÜ Aktiva Finants still pending*.

42Case C-98/06 *Freeport plc v Ole Arnoldsson* ECLI:EU:C:2007:595, Case C-68/07 *Kerstin Sundelind Lopez v Miguel Enrique Lopez Lizazo*ECLI:EU:C:2007:740, Case C-111/08 *SCT Industri AB i likvidation v Alpenblume AB* ECLI:EU:C:2009:419, Case C-147/12 *ÖFAB, Östergötlands Fastigheter AB v Frank Koot, Evergreen Investments BV* ECLI:EU:C:2013:490, Case C-445/15 *PPU P v Q* ECLI:EU:C:2015:763, Case C-554/17 *Rebecka Jonsson v Société du Journal L'Est Républicain* ECLI:EU:C:2019:124, Case C-198/18 *CeDe Group AB v KAN sp. z o.o., in liquidation* ECLI:EU:C:2019:1001.

43Case C-341/93 *Danværn Production v Schuhfabriken Otterbeck* ECLI:EU:C:1995:239, Case C-18/02 *Danmarks Rederiforening, acting on behalf of DFDS Torline A/S v LO Landsorganisationen i Sverige, acting on behalf of SEKO Sjöfolk Facket för Service och Kommunikation* ECLI:EU:C:2004:74, Case C-39/02 *Märsk Olie & Gas v Firma M. de Haan en W. De Boer* ECLI:EU:C:2004:615, Case C-49/12 *The Commissioners for Her Majesty's Revenue & Customs v Sunico ApS, M & B Holding ApS, Sunil Kumar Harwani* ECLI:EU:C:2013:545, Case C-368/16 *Assens Havn v Navigators Management (UK) Limited* ECLI:EU:C:2017:546.

requested the CJEU to opine on the Brussels I *bis* Regulation and its predecessors 13 times,44 the Brussels II *bis* Regulation45 and its predecessor five times,46 the insolvency proceedings regulation47 and its predecessor twice48 and the European Small Claims Regulation once.49 Of the four Regulations, only the Brussels I Regulation applies in Denmark. Thus, it is hardly surprising that the number of requests for preliminary rulings is lower from Danish courts. Since the EFTA Court does not have the power to interpret the Lugano Convention, Icelandic and Norwegian courts cannot request advisor opinions. Therefore, there are no such cases for the EEA countries.

Analysing requests for preliminary rulings and advisory opinions for procedural questions in other areas of law is beyond the scope of this chapter. However, an indepth analysis of possible procedural aspects included in requests concerning other areas of law could give additional insight.

44Case C-98/06 *Freeport plc v Ole Arnoldsson* ECLI:EU:C:2007:595, Case C-111/08 *SCT Industri AB i likvidation v Alpenblume AB* ECLI:EU:C:2009:419, Case C-49/12 *The Commissioners for Her Majesty's Revenue & Customs v Sunico ApS, M & B Holding ApS, Sunil Kumar Harwani* ECLI:EU:C:2013:545, Case C-147/12 *ÖFAB, Östergötlands Fastigheter AB v Frank Koot, Evergreen Investments BV* ECLI:EU:C:2013:490, Case C-4/14 *Christophe Bohez v Ingrid Wiertz* ECLI:EU:C:2015:563, Case C-521/14 *SOVAG — Schwarzmeer und Ostsee Versicherungs-Aktiengesellschaft v If Vahinkovakuutusyhtiö Oy* ECLI:EU:C:2016:41, Case C-605/14 *Virpi Komu, Hanna Ruotsalainen, Ritva Komu v Pekka Komu, Jelena Komu* ECLI:EU:C:2015:833, Case C-368/16 *Assens Havn v Navigators Management (UK) Limited* ECLI:EU:C:2017:546, Case C-88/17 *Zurich Insurance plc, Metso Minerals Oy v Abnormal Load Services (International) Ltd* ECLI:EU:C:2018:558, Case C-433/18 *ML v OÜ Aktiva Finants still pending*.

45Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.

The role of EU law in the legal landscape depends partly on whether lawyers actually use EU law to argue their cases. The European Enforcement Order (EEO) Regulation50 illustrates the fact that the discreet EU procedures for cross-border cases are seldom used. In a study on cross-border cases in the EU, the Finnish legal professionals interviewed had never come across an EEO despite the fact that the interviewees were selected among persons with expertise in cross-border proceedings.51 The European small claims proceedings and payment order proceedings are also little used.52

The number of lawyers who are well-informed of EU civil procedure is low in the Nordic EU countries. In the aforementioned study on cross-border cases, a lawyer working in a law firm serving the business community explained that the firm always contacts a partner firm in the country concerned rather than using EU instruments in cross-border cases.53 Unfamiliarity with the discrete EU procedures results in few lawyers using them. The lack of use becomes self-perpetuating—why use a process when nobody else uses it? Some of the judges interviewed in the study lamented that only a small group of judges attend trainings on EU civil procedure and that many attendees already have previous experience working with EU law, while judges with limited knowledge and skills in EU law, who hence need training, do not attend. The trainings could thus contribute to increasing the knowledge gap among judges. Except for cross-border service and taking of evidence, judges and lawyers seldom encounter EU civil procedure law; thus, they think of EU civil procedure law as something that is 'technical' and useful only for a few lawyers specialising in crossborder litigation. This contributes to a perception that EU law is almost irrelevant in the domain of civil justice.

### *3.4 Conclusions on EU Law and Nordic Lawyers*

Nordic lawyers are aware of the basic instruments and characteristics of EU law and utilise them when they consider them appropriate and relevant. It is clear that Nordic court culture has become Europeanised and that Nordic courts apply European substantive law regularly. Nonetheless, the general level of knowledge is superficial and is limited to the most commonly used instruments and situations where the dissonance between national law and EU law is clear. Still, we should not infer that Nordic courts apply EU law less efficiently than do courts in other European

50Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims O.J. L143/1 (2004).

51Gascón Inchausti et al. (2017).

52Ervo (2019), pp. 88–90.

53Gascón Inchausti et al. (2017).

countries. On the contrary, there is reason to believe that judges across Europe have limited knowledge of EU law and that their encounters with EU law are scarce.54

The high interest in EU civil procedure among legal academics has not translated into a high level of knowledge among lawyers and judges. One reason for this discrepancy could be that a significant portion of the writings are in English and the intended audience is international, while Nordic lawyers seldom read English language texts. Handbooks and commentaries, where lawyers and judges would find information related to the specific hard law provisions or specific CJEU rulings in Nordic languages, could enable judges to access information more efficiently. Mainstreaming European civil procedure law in textbooks on civil procedure could also be helpful.

### **4 Transposing of EU Civil Procedure in Nordic Law**

### *4.1 Implementation of EU Hard Law in Nordic Legislation*

Although Nordic legislators implement EU law loyally, the quality of implementation does not always suffice. EU procedural law that is fragmental, is sectoral or contains concepts and ideas that are not fully concordant with national law necessitates careful analysis before it is transposed into law, so as to uphold the coherence of national law.

In the Nordic countries, the method of implementation of EU law is often haphazardly chosen. For instance, the rules on disclosure of evidence in actions for infringement of intellectual property rights are incorporated in the Norwegian Dispute Act, while corresponding rules for competition law will be implemented in the Competition Act.55 The preparatory works do not provide reasons for selecting a specific method of implementation.56 Although the rules on disclosure for competition and intellectual property rights are not identical, transposing them in different ways augments the existing disconnection between them by reducing links between them.57 Since the context influences interpretation, the rules on disclosure for intellectual property rights cases are likely to be construed in the light of the general rules of civil procedure, whereas the rules on competition law will be read in the light of substantive competition law.58 The result is an atomisation of civil procedure law

54E.g., Krans and Nylund (2020b), Andrews (2016), Galiˇc (2016), Krans (2016), Piszcz (2016) and Nowak et al. (2011).

55*Act on competition between undertakings and control with concentrations* (Competition Act) Lov om konkurranse mellom foretak og kontroll med foretakssammenslutninger (konkurranseloven) 5 March 2004 no 12.

56Hjort (2019).

57Petersen (2016), pp. 19–20.

58Petersen (2016), pp. 24–25.

where rules applicable only for a specific type of case increasingly reduce the role of general procedural rules.

The rules of evidence are central: They determine *inter alia* whether or not witnesses must be heard orally and or in written form, the standard of proof and the burden of evidence.59 In the Nordic countries, the general rules of evidence apply to all cases, unless special rules have been enacted for a specific type of case. However, EU law does not have a doctrine of evidence; that is, there is no clear baseline definition of the standard of proof, nor a shared idea of how evidence should be presented.60 This should be taken into account when implementing EU evidence law in national law.

For instance, the Antitrust Damages Directive61 that regulates actions for infringement of competition law contains numerous rules on evidence, including rules on the standard of proof. When these rules are transposed, the legislator should, when applicable, use national terminology rather than the terminology used in the Directive to describe the standard of proof. In the event that the standard of proof does not have an equivalence in national law, new standards of proof that are intelligible to national lawyers should be crafted. None of the legislation implementing the Directive in the Nordic EU Member States62 includes any reference to the standard of proof. The Finnish implementing act even makes a reference to the general rules on evidence in the Code of Judicial Procedure. In the absence of specific rules on the standard of proof, Nordic lawyers will most likely apply their national rules and doctrines. The transposing legislation mentions other aspects of evidence, such as disclosure, but evidence is not comprehensively regulated. Since EU law is implemented as if there was a single European doctrine of evidence and as if the national doctrine fully corresponds to it, discrepancies are likely to be overlooked, and judges and lawyers will be unlikely to detect them. National evidence law will influence the type and amount of admissible evidence as well as the form (i.e., oral or written) in which the evidence is presented, which will consequently impact the outcome of the case.

Nordic cooperation could improve the quality of implementation of EU hard law. The basic tenets of procedural law are similar in the Nordic countries to provide a fertile ground for analysing possible discrepancies between national law and EU law and finding the most appropriate method of implementation. Cooperation does not necessitate all five countries embracing identical solutions; rather, the aim should be to provide a sound basis for decision-making. Furthermore, active cooperation could

59For an overview of the standards of evidence in Nordic law, see Strandberg (2019).

60Example, the Brussels I *bis*Regulation O.J. L351/1 (2012), Payment Order Regulation O.J. L399/1 (2006), and the Damages Directive O.J. L349/1 (2014). For a more detailed discussion, see Hau (2020).

61Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union O.J. L349/1 (2014).

62The Danish Act on Actions for Infringement of Competition Law (Lov om behandling af erstatningssager vedrørende overtædelser af konkurrenceretten no. 1541 af 12/12/2106), the Finnish Act on Damages in Competition Law (Laki kilpailuoikeudellisista vahingonkorvauksista 2016/1077) and the Swedish Competition Damages Act (Konkurrensskadelag 2016:964).

also result in the Nordic countries detecting potential weaknesses and pitfalls during the drafting of EU law and, hence, give them the opportunity to address the issues before the legislation is enacted.

### *4.2 Transposition of Case Law Based Civil Procedural Law*

Part of EU civil procedure law is based almost exclusively on case law. The doctrine of procedural autonomy63 and the duty of courts to apply EU consumer law on their own motion64 are paramount examples. Case law-based procedural law is unfamiliar to Nordic lawyers, except for Norwegian lawyers: Nordic courts make law only when the new rules can be derived directly from statutory law or fundamental legal principles. The innate nature of case law is to take two steps forward and one step back, resulting in gradual development and a partly disjointed line of argumentation, which in the context of procedural law is unfamiliar to Nordic lawyers. Furthermore, courts respond to the particular legal and factual issues in each case rather than taking a principled, general approach, resulting in considerable opacity and a need for further clarification. Hence, determining the scope of the obligations on national civil procedure law arising from CJEU case law is rather onerous.

If national statutory law is incompatible with EU law, courts must strive to interpret the national rule in a manner that renders it compatible with EU law. When interpretation does not yield satisfactory results, courts are obliged to give primacy to EU law. Several examples where Nordic courts have failed to align national rules with EU law through interpretation, although such an interpretation is feasible, can be found. Norwegian rules for demanding a security for the liability of costs constitute one example. The Norwegian Dispute Act section 20–11 stated that a party domiciled outside Norway could be required to provide a security unless it would be contrary to Norway's international obligations, but it did not mention the EEA Agreement specifically. Technically, the provision was concordant with EU law, because it clearly included the EEA Agreement. However, Norwegian lower courts regularly required claimants domiciled in EEA countries to provide a security, and they continued to do so even after the Supreme Court65 found the practice unlawful. Finally, the EFTA Surveillance Authority demanded that the provision should be amended to explicitly include parties from EEA States. The Norwegian government complied and amended the law.66

Another example is the duty of courts to apply EU consumer law on their own motion. Nordic courts already have the power, and partly also a duty, to exercise active judicial guidance.67 Hence, one could conclude that judicial guidance as is it

63Krans and Nylund (2020a, b).

64Example, Wallerman Ghavanini (2020) and Andersson (2019).

65HR-2014–377-U.

66Hjort (2019), pp. 114–116.

67E.g., Wallerman Ghavanini (2020), Andersson (2019) and Fredriksen and Strandberg (2019).

is regulated in Nordic procedural law fulfils these obligations. However, there are several caveats. First, most consumer cases are dealt with outside the courts or in simplified proceedings, such as orders for payment proceedings. In these proceedings, the case documents are not available to the court. This could be problematic, particularly in the wake of the CJEU ruling in the *Bondora* case.68 Second, the fact that the consumer remains passive in most cases, which hinders the court from giving active guidance, entails a further complication in many consumer cases.69 Third, even when both parties are active, the duty to judicial guidance based on EU law probably exceeds the minimum requirements of national law, at least in some situations. However, judges appear to lack awareness of possible differences between national law and EU law,70 in the same way as in the Norwegian case on a security for legal costs. Thus, resorting to judicial guidance is not a panacea; rather, the Nordic legislators should assess whether current legislation complies with the obligations under EU law.71

In consumer cases, vigilant staff handling simplified cases and judges supervising them are pivotal, as the Finnish Supreme Court ruling KKO 2015:6072 illustrates. In the case, a consumer credit company filed a simplified claim against a consumer. The consumer did not file a statement of defence, although the late payment interest rate was 118% and the terms for determination of the rate were unclear. The district court rejected the late payment interests, since the terms of the interest were not compliant with the Unfair Terms Directive.73 The consumer credit company appealed, first to the Court of Appeals and then to the Supreme Court, while the consumer remained passive. The Supreme Court held for the consumer: it obligated courts to analyse the case file in their own motion. However, this case is likely to be exceptional, both since the court spotted the unfair term and since the consumer credit company persistently pursued the case. Although the ruling entails clarification of some issues, many other issues remain unresolved.

Despite the challenges that CJEU case law has caused for consumer cases, Nordic lawmakers have not been inclined to explore the problems and weaknesses of their current systems. As Anna Wallerman Ghavanini has noted, complex issues are left to the courts to solve despite the fact that the workload prevents judges from actively

The Nordic rules on judicial guidance are similar to the German rules on die materielle Prozessleitung.

68Joined Cases C-453/18 and C-494/18 *Bondora AS v Carlos V. C. and XY*, Judgment of the Court of 19 December 2019, ECLI:EU:C:2019:1118.

69Andersson (2019).

70Wallerman Ghavanini (2020).

71Wallerman Ghavanini (2020), Andersson (2019), Fredriksen and Strandberg (2019) and Nylund (2019).

72See also Mäenpää (2016).

73Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts O.J. L95/29 (1993).

searching for unfair terms and that problems arise from institutional structures and regulation rather than how work is organised within courts.74

### *4.3 Conclusions on the Transposition of EU Civil Procedure Law*

The Nordic countries implement EU law diligently and, in the case of Norway (and Iceland), sometimes opt to implement EU law even when they have no formal obligation to do so.75 Consequently, the problem is the mode and quality of implementation, particularly with regard to the fact that much of the adaptation is left to the judiciary. While Nordic judges are accustomed to flexible norms and to weighing, balancing and harmonising principles and rules, the marked differences in approach between EU law and national civil procedure law are not easily bridged through interpretation alone. Makeshift implementation adds up to a patchwork that erodes the system from within. Systematic changes could be put in place to reduce the number of times the jack-in-the-box of EU law pops up and to help retain comprehensive, coherent Nordic court cultures. However, one should not infer that the quality of implementation of EU law is solely Nordic problem: on the contrary, it appears to be omnipresent.76

### **5 Navigating When the Map and the Terrain Do Not Match**

### *5.1 Lost Opportunities for Developing Nordic Civil Procedure Law*

Overlooking the density and potential impact of European civil procedural law has several detrimental consequences related to the development of national law.

EU law contains several procedural innovations, such as court-connected mediation, disclosure of documents, and collective redress, that should be regarded as potential benchmarks. For example, court-connected mediation was introduced in Finland partly as a result of the Civil Mediation Directive.77 Steps had already been taken to enact rules on court-connected mediation, and EU law served as an additional argument to propel the reform. Although the Directive only mandates providing court-connected mediation in cross-border cases, Finland—and many

74Wallerman Ghavanini (2020).See also, e.g., Andersson (2019), Fredriksen and Strandberg (2019), Rudanko (2016) and Savola (2016).

75Nylund (2020).

76Krans and Nylund (2020b).

77Directive 008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial mattersO.J. L136/1 (2008).

other Member States—opted to extend mediation to all civil cases. The impact on Finnish court proceedings and court culture has been palpable, as Kirsikka Linnanmäki demonstrates in her chapter in this volume.78

However, there are numerous examples of lost opportunities of benchmarking. For example, the Norwegian government did not use the Civil Mediation Directive to assess its court-connected mediation regime. One probable reason for this is that the Dispute Act had been adopted a few years earlier, and thus the time was not ripe for revising the rules. Still, any amendments resulting from benchmarking could have been enacted a few years later simultaneously with other changes. Unlike in EU Member States, agreements to mediate a dispute before litigation are not enforceable in Norway. Furthermore, out-of-court mediation does not influence limitation and prescription periods in Norway, which could deter the parties from attempting to mediate before starting court proceedings.79 Thus, out-of-court mediation is less favourably treated in Norway than in many other European countries.

The European Payment Order Procedure80 and the European Small Claims Procedure are other examples of lost opportunities to improve national legislation. Despite the fact that Finnish law does not have fully-fledged payment order proceedings and has no small claims proceedings at all, the European procedures were not used to discuss whether Finnish procedural rules should be coordinated with EU procedures and whether EU procedures had any tangible advantages *vis-à-vis* national procedures. Non-harmonisation, as well as harmonisation, should ensue from a deliberate choice and comparison of the rules: it should not be the result of a haphazard process.

### *5.2 The Missing Nordic Input in the Development of EU Civil Procedure Law*

The magnitude of the Europeanisation of civil procedure law should induce national governments to act proactively by attempting to influence the content of EU civil procedure law at an early stage (i.e., before rules are enacted).81 Several methods could be used, often in parallel. Whitepapers, green papers and other policy documents should be scrutinised to recognise issues that are pertinent from a Nordic perspective. The Nordic governments could consequently argue why a solution on the EU level is redundant, why a different solution would be superior to the one proposed by the EU, why some solutions are problematic for Nordic law, or any combination of these. The Nordic countries could also position themselves as innovators by strategically enacting innovations.

78Linnanmäki (2021).

79E.g., Nylund (2017a) and Bernt (2015).

80Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure O.J L399/1 (2006).

81Stadler (2018), p. 777.

Nordic cooperation is the key to increasing the quality of implementation and the quality of EU civil procedure law. It is unfeasible for a single Nordic country to be proactive in multiple legal fields. Therefore, the Nordic countries should join forces to detect potentially problematic issues early, advance Nordic viewpoints and, when necessary, lobby for specific solutions. Additionally, formal Nordic cooperation in the field of civil procedure could make the Nordic countries a powerhouse of innovation. Pilot projects could be designed across the countries; for example, one country could pilot one model and another country could pilot another model. The results could then be contrasted to optimise one or both models. As a result, Nordic countries could be a European trailblazer, and Nordic innovations could serve as a blueprint for EU law.

### *5.3 Nordic Cooperation as a Method of Improving Quality*

EU civil procedure law exerts substantial influence on Nordic civil procedure law and Nordic court culture. Europeanisation does not abolish the need for Nordic cooperation; in fact, the opposite is true. Nordic cooperation, both formal and informal, at all stages of the process of Europeanisation could enable us to foresee and prepare for the challenges that lie ahead by influencing EU law.82 It could also enable us to ameliorate problems arising from Europeanisation and to reduce the tensions between Nordic law and legal culture and European law. The first step should be to recognise that our map does not fit the terrain and to take Europeanisation seriously.

### **References**

82Leino-Sandberg and Leppävirta (2018).

Helgadóttir R (2011) Nonproblematic judicial review: a case study. Int J Const Law 9(2):532–547

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# **Nordic and European Judicial Cooperation in Criminal Matters**

### **Dan Helenius**

**Abstract** Judicial cooperation in criminal matters between the Nordic states has traditionally been extensive. This cooperation has included matters of extradition, legal assistance in regard to evidence, transfer of the enforcement of punishments and transfer of criminal proceedings and criminal jurisdiction. Since the late twentieth century and the early twenty-first century, the Nordic cooperation agreements have to a rather significant degree been replaced or complemented by EU legislation. Nevertheless, the Nordic agreements continue to be of relevance in many aspects, which gives rise to a rather complicated system of interwoven legal frameworks. This contribution aims to point out legal similarities and differences as well as overlaps between these frameworks, but also to elaborate on the characteristics of the Nordic cooperation as compared to the EU regulated cooperation system. It is specifically argued that the reason for the success of the Nordic cooperation is the mutual trust that the Nordic states share. However, this trust differs somewhat from the trust that is presumed to exist also between the EU Member States.

### **1 Introduction**

Within the EU—a form of regional cooperation itself—there have historically existed two regions with an even closer regional—or sub-regional—cooperation, namely the Benelux states and the Nordic states. This regional cooperation has also concerned criminal and criminal procedural matters.1 In this chapter, I will focus on matters of judicial cooperation in criminal matters between the Nordic states. By this, I mean cooperation through different means with the aim of facilitating transnational criminal law enforcement. A systematic examination of the core areas of judicial cooperation and their regulation in the Nordic states is given. Today, these areas are to a significant degree regulated by EU law, but to a large extent they are also

D. Helenius (B)

© The Author(s) 2021

1See Lahti and Träskman (1994), pp. 251–252 and Thunberg Schunke (2004), p. 49.

University of Helsinki, Yliopistonkatu 3, 00101 Helsinki, Finland e-mail<EMAIL_ADDRESS>
L. Ervo et al. (eds.), *Rethinking Nordic Courts*, Ius Gentium: Comparative Perspectives on Law and Justice 90, https://doi.org/10.1007/978-3-030-74851-7\_8

regulated by regional Nordic agreements. The Nordic framework is compared to the corresponding EU legal framework throughout the text. The aim is not only to point out legal similarities and differences as well as overlaps between these frameworks but also to elaborate on the characteristics of the Nordic cooperation as compared to the EU regulated cooperation system. Specifically, I will discuss whether the mutual trust on which the Nordic cooperation is based is comparable to the mutual trust that is presumed to exist between the EU Member States.

I will mainly use Finnish legislation to exemplify the national implementation of Nordic cooperation agreements. This is done with the full understanding that the legal provisions in other Nordic states may differ in certain specific regards. References are, however, occasionally also made to the legislation of other Nordic states. Since the Nordic legal framework in this area is largely based on inter-Nordic agreements, national legislation is to a large degree comparable. My aim is not to conduct an in-depth comparison between specific legal provisions of the Nordic states but to highlight features that are common for all of these states.

### **2 Judicial Cooperation in Criminal Matters Between the Nordic States**

Judicial cooperation in criminal matters between the Nordic states has traditionally been extensive. Perhaps unlike the cooperation between the Benelux states, the Nordic cooperation has not decreased with time, at least not significantly, although it has to a rather significant degree been replaced or complemented by EU cooperation since the late twentieth century and the early twenty-first century.2 Nevertheless, inter-Nordic agreements are in many respects still relevant. This gives rise to a rather complicated system that is not always easy to grasp, since several inter-related legal frameworks have to be taken into consideration. The answer to the question of whether the Nordic cooperation has acted as a concrete inspiration and ideal model for the current EU cooperation based on the principle of mutual recognition does not seem to be unequivocally clear, but there does seem to be consensus that this is almost certainly the case.3

As a starting point, cooperation between the Nordic EU states of Denmark, Finland and Sweden is based on EU legislation, while cooperation between these countries and Norway and Iceland is based on inter-Nordic agreements. However, EU legislation takes precedence only so long as the Nordic countries have not introduced legislation of their own that allows cooperation to be "extended or enlarged" and helps to "simplify and facilitate further the procedures" dealt with by EU law and

2See Thunberg Schunke (2004), pp. 49–50. See generally on the historical development of the EU regulated judicial cooperation in criminal matters, Klip (2016), pp. 374–380.

3See, e.g., Strandbakken (2009), p. 364, Mathisen (2010), p. 11 and Elholm and Feldtman (2014), p. 151.

"provided that the level of safeguards set out" in EU law is respected.4 This circumstance calls for due care, since authorities in the Nordic states have to keep different legal regimes in mind with regard to matters of judicial cooperation.5

The Nordic cooperation in criminal matters intensified after the Second World War and especially during the 1960's, when several agreements on cooperation were adopted.6 The general framework for this cooperation was based on the so-called Helsinki Treaty of 1962, which included provisions on, *inter alia*:

Since the 1960s, the main forum for furthering cooperation has been the Nordic council of ministers. In addition, the Nordic Criminal Law Committee—a body consisting of civil servants with expertise in criminal law—has also been of great importance through its legislative draft reports.7

There are, of course, many reasons why the Nordic states have chosen to cooperate so closely with each other and why this cooperation has proven so successful.8 First of all, the Nordic countries have a long history of cooperation in legal matters in general. The common history between the Nordic countries has led to similar legal traditions and similarities in economic, social and cultural development, as well as common approaches to crime control and human rights policies. Much has been written on the largely common penal policy of the Nordic states. This policy is commonly characterised by a low level of penal repression. Another joint feature is the traditionally welfarist view on criminality, which considers crime to be foremost a social problem that should be dealt with not only by means of criminal law. Needless to say, these features amount to a certain degree of common understanding on how

4Most EU instruments explicitly allow such further integration; see, e.g., art. 34.3 of directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters O.J. L130/1 (2014).

5Additionally, there are also separate agreements between Norway and Iceland and the EU (excluding the Nordic EU countries); e.g., the Agreement on the surrender procedure between the Member States of the European Union and Iceland and Norway O.J. L292/1 (2006). See further on this matter Suominen and Kvam (2009).

6See, e.g., Lahti and Träskman (1994), p. 256.

7On the history of Nordic cooperation in criminal matters, see, e.g., Lahti and Träskman (1994), p. 256 and Melander (2007), pp. 111 ff.

8See generally Lahti and Träskman (1994), pp. 256–257.

criminality should be managed.9 Still today, the Nordic states often look to each other for possible solutions when deliberating on legal amendments.10

These factors, in turn, have fostered a strong mutual confidence or trust between the Nordic countries, which can be regarded as a pre-requisite for a well-functioning cooperation. This mutual trust has, in turn, enabled a more effective cooperation due to the fact that the Nordic states have been able to agree upon common principles and procedural rules governing such cooperation. As is well known, the current cooperation in the EU, based on the principle of mutual recognition, is specifically presumed to require a sufficient degree of mutual trust among the Member States.

According to the Court of Justice of the European Union (ECJ), the principle of mutualrecognition by necessity implies that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied.11 The principle of mutual recognition is said to be founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level.12 This presumption of mutual trust in turn requires that each Member State consider all the other Member States to be in compliance with EU law and particularly with the fundamental rights recognised by EU law.13

This legal structure is said to be based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded. This premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.14 Consequently, the EU *prima facie* demands of its Member States that they trust each other in the name of effective cooperation.

However, as the recent development with regard to upholding human rights and the rule of law within the EU has shown, trust is not something that can be simply be presumed and taken for granted.15 According to the ECJ, limitations of the principles of mutual recognition and mutual trust between Member States can be made 'in exceptional circumstances'.16 Judicial cooperation through mutual recognition can function to different degrees, depending on how far the states are willing to go. This

9See, e.g., Melander (2007) and Lappi-Seppälä and Nuotio (2019), pp. 194–197.

10See Letto-Vanamo and Tamm (2019), p. 7 and Lappi-Seppälä and Nuotio (2019), p. 181.

11Joined cases C-187/01 *Gözütok* and C-385/01 *Brügge*, Judgment of the Court of 11 February 2003, ECLI:EU:C:2003:87, para. 33.

12Joined cases C-404/15 *Aranyosi* and C-659/15 *C˘ald˘araru*, Judgment of the Court (Grand Chamber) of 5 April 2016, ECLI:EU:C:2016:198, para. 77.

13Opinion 2/13 of the ECJ, ECLI:EU:C:2014:2454, para. 191. Further on this presumption, see Sicurella (2018), pp. 309–312.

14Opinion 2/13 of the ECJ, ECLI:EU:C:2014:2454, para. 168.

15See in depth Satzger (2018a).

16Opinion 2/13 of the ECJ, ECLI:EU:C:2014:2454, para. 191 and joined cases C-404/15 *Aranyosi* and C-659/15 *C˘ald˘araru*, Judgment of the Court (Grand Chamber) of 5

in turn depends on the level of trust the states have in each other: the more trust, the farther recognition may be taken. The number of limitations the states place on cooperation indicates the character and degree of mutual recognition they are willing to accept.17

The Nordic states have abolished—or at least alleviated—several of the traditional obstacles to judicial cooperation in criminal matters, simplified the procedures for cooperation and even harmonised parts of their national criminal procedural legislation. The Nordic states were also forerunners in allowing direct communication between competent authorities (prosecutors, courts) in matters of judicial cooperation—without involvement of central authorities such as the ministries of justice even before this model was adopted in the cooperative framework of the EU and the Council of Europe.18

One of the fundamental initial ideas behind applying mutual recognition in criminal matters in the EU was that cooperation should be possible despite differences in substantive and procedural law.19 Mutual recognition was regarded as a less intrusive method: instead of harmonising the laws of the Member States, the Member States should simply accept and disregard legal differences and recognise each other's judicial decisions. However, the cooperation between the Nordic states seems to have functioned so well precisely because these areas of law do not differ very much between them. It should be noted, however, that the legal similarities between the Nordic States have not simply come about by coincidence but are also a result of conscious measures. For instance, the Nordic council endeavoured to harmonise the criminal and procedural legislations of the Nordic states during the latter half of the twentieth century. This precondition of legal similarity has gradually also become clear at the EU level: mutual recognition is not feasible without some degree of harmonisation of both substantive criminal law and criminal procedural law.20 However, it should also be pointed out that the criminal legislations in the Nordic states are far from completely identical. One area in which the solutions differ quite radically is prostitution. Prostitution is legal in Denmark and Finland, whereas Norway, Iceland and Sweden have criminalised the purchase of sexual services.21 It is certainly not inconceivable that such differences might have a negative impact on the possibilities of cooperation.22

Also, it should not be forgotten that the inter-state movement between the Nordic states has traditionally been relatively intense. This has, among other things, been

April 2016, ECLI:EU:C:2016:198, para. 82. See most recently, Case C-128/18 *Dorobantu* ECLI:EU:C:2019:857, para. 47.

17Satzger (2019), p. 54. See also Asp (1998), p. 36 for a similar argument in regard to the Nordic states.

18Thunberg Schunke (2004), p. 177.

19See, e.g., Communication from the Commission to the Council and the European Parliament— Mutual recognition of Final Decisions in criminal matters (COM/2000/0495 final), p. 4 and Satzger (2019), p. 45.

20See, e.g., Thunberg Schunke (2013), p. 8.

21See further Träskman (2009), pp. 296–301 and Toftegaard Nielsen et al. (2017), pp. 402–403.

22Cf Mathisen (2010), p. 25.

due to the countries' geographical proximity and flexible migration rules.23 Among the individual criminal cases with foreign elements, many contain elements (e.g., the nationality of the offender or victim) that pertain to other Nordic countries. These circumstances in turn, have made effective cooperation in criminal matters more or less a necessity among the Nordic states.24

Below, I will give an account of the main forms of judicial cooperation in criminal matters, which include: extradition, legal assistance in regard to evidence, transfer of the enforcement of punishments and transfer of criminal proceedings and criminal jurisdiction.25 The Nordic agreements will be reflected against the EU framework throughout the text.

### **3 Extradition**

Extradition between the Nordic states was initially based on bilateral treaties during the early twentieth century. However, cooperation gradually became increasingly informal and detached from these treaty obligations.26 In a sense, trust grew naturally out of this perceived well-functioning and effective cooperation.

Following this early period, the Nordic countries agreed upon substantially identical legislation on extradition in the 1950s and 1960s.This agreement did not take the form of an international convention, which is something that overall has been characteristic for the Nordic cooperation.27 Cooperation has often been based not on officially binding conventions but, rather, on 'informal' agreements on harmonisation and a willingness to assist one another. A certain reluctance towards overformalisation and an emphasis on pragmatical solutions can clearly be perceived.28 In fact, the mutual trust between the Nordic states may initially have led to the notion that cooperation did not require binding agreements, since this trust rendered cooperation possible on its own.29 This type of cooperation is strikingly different from the EU cooperation, where trust has formally been declared and demanded of the Member States by way of binding instruments in order to achieve effective cooperation.

In a way, Nordic cooperation during this era did indeed signify a form of mutual recognition. However, the system was in fact based on facultative cooperation and

23See Tolttila (2011), pp. 369–370.

24Lahti and Träskman (1994), p. 257.

25On different forms of judicial cooperation in criminal matters, see, e.g., Satzger (2018b) pp. 4–6. 26Strandbakken (2009), p. 368 and Tolttila (2011), p. 373.

27See Lahti and Träskman (1994), p. 271 and Mathisen (2010), p. 5.

28Melander (2007), pp. 113–115 calls this type of cooperation 'soft harmonisation'. Voluntary and informal cooperation due to practical needs has been characteristic in regard to not only criminal but also civil matters; see Smits (2007), pp. 63–64 and Letto-Vanamo and Tamm (2019), pp. 9–12. 29See Melander (2007), p. 115 and Tolttila (2011), p. 375.

did not explicitly require any recognition at all.30 The formal requirement to cooperate and the institutionalisation of mutual recognition only came later due to EU obligations. Thus, one could say that the Nordic system does not require mutual recognition, but that it nevertheless functions in the same way as a mutual recognition based system due to a strong degree of mutual trust and willingness to cooperate.

The Nordic extradition regime functioned in parallel with the extradition framework of the Council of Europe and the EU during the latter half of the twentieth century. In 2003, the framework decision on the European arrest warrant (EAW) was adopted in the EU.31 This was the first instrument based on the principle of mutual recognition in criminal matters. The idea behind the EAW as well as the principle of mutual recognition was to simplify judicial cooperation in criminal matters and make it more effective by removing several of the legal obstacles that had traditionally made such cooperation cumbersome and time-consuming.

However, it did not take long for the Nordic countries to update their own extradition framework. The Nordic ministers of justice had already concluded in 2002 that the Nordic extradition regime should be revised.32 In 2012, the Convention on surrender on the basis of an offence between the Nordic states finally entered into force. This convention is generally referred to as the 'Nordic arrest warrant' (NAW).33

To take Finland as an example, this situation entails that the authorities have to operate with three different extradition regimes, depending on which country is involved in the extradition procedure. The Act on Extradition between Finland and Other Nordic Countries (1383/2007) specifically applies to surrender procedures between Finland and other Nordic countries. If surrender is to take place between Finland and another EU country that is not a Nordic country, the Act on Extradition on the Basis of an Offence Between Finland and Other Member States of the European Union (1286/2003) applies. To make things even more complicated, if surrender is to take place between Finland and a state that is neither an EU nor a Nordic state, the socalled General Extradition Act (456/1970) applies. This means that three different extradition regimes apply depending on the nature of the country involved in the extradition procedure.34

As already mentioned, the premise within both the EU and the Council of Europe has been that regional cooperation is allowed and even desirable, as long as this cooperation goes further than the existing European regulations. According to the EAW framework decision (art. 31.2), 'Member States may conclude bilateral or multilateral agreements or arrangements […] in so far as such agreements or arrangements allow the prescriptions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons'.

30Mathisen (2010), p. 16.

31Council framework decision (2002/584/JHA) of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States O.J. L190/1 (2002).

32Mathisen (2010), p. 17.

33See generally, e.g., Suominen (2014).

34The situation would also seem to be similar in the other Nordic countries. See, e.g., Strandbakken (2009), p. 367.

The NAW, in many ways, goes further than the EAW in simplifying the extradition procedure and making it more effective.35 Perhaps one of the greatest divergences between the EAW and the NAW is that the NAW does not require double criminality under any circumstances; rather, it only requires that the offence in question must have a more severe punishment than fines. If all legal systems were identical, the requirement of double criminality would essentially lose its significance. Although far from completely identical, the Nordic systems are still so similar that requiring double criminality has been considered redundant.36 However, it should be noted that the abolishment of the double criminality requirement did not come about with the NAW. Rather, this requirement had already been abolished in the previous legal framework for extradition between the Nordic countries from the 1960s.37

Another change that came with the EAW was the obligation for Member States to surrender their own nationals.38 As is well known, states traditionally do not surrender their own nationals.39 If the EAW has been issued for the purposes of execution of a custodial sentence or detention order, surrender may be refused if the executing Member State undertakes to execute the sentence or detention order in accordance with its domestic law, provided that the requested person is staying in, or is a national or a resident of, the executing Member State (art. 4.6). Furthermore, if the EAW has been issued for the purpose of conducting a criminal prosecution and the person who is the subject of the EAW is a national or resident of the executing Member State, the executing Member State may make surrender subject to the condition that the person is returned to the executing Member State in order to serve his or her sentence (art. 5.3).

The Nordic states have also acted as forerunners in this regard. The extradition regime preceding the NAW already allowed for the surrender of nationals to other Nordic countries, albeit with certain additional requirements.40 The abolishment of these requirements can, again, be regarded as a sign of mutual trust between the Nordic states.

Interestingly, the Nordic states have abolished several grounds for refusal that still persist within the EU cooperation regime, whereas they have preserved grounds for refusal that have been difficult for the EU to accept. According to ch. 2, sec. 4.6 of the act on Extradition between Finland and Other Nordic Countries, extradition shall be refused if there are justifiable grounds to suspect that the requested person is threatened by capital punishment, torture or other degrading treatment or that he or she would be subjected to persecution due to, *inter alia*, his or her religion, beliefs or political opinions. The same also applies if there is justifiable cause to assume that he

35For an in-depth analysis of the differences between the EAW and the NAW, see Mathisen (2010).

36See Asp (1998), p. 11. However, the territoriality exception may still apply. According to Finland's 'Nordic' extradition act, double criminality is required when the act in question is deemed to have been committed in Finland or on board a Finnish vessel.

37Lahti and Träskman (1994), p. 274.

38Suominen (2011), p. 129.

39See, e.g., Mathisen (2010), p. 13 and Suominen (2011), pp. 127–129.

40See further Lahti and Träskman (1994), p. 275 and Mathisen (2010), p. 10.

or she would be subjected to a violation of his or her human rights or constitutionally protected due process, freedom of speech or freedom of association.

The question of refusal to surrender due to potential human rights violations has been highly topical in regard to the EAW during the last few years. The threat of persecution or other human rights violations is an established ground for refusal in the traditional system of extradition as well as other forms of judicial cooperation in criminal matters.41 However, when the EAW framework decision was adopted, no such ground for refusal was explicitly included in the instrument. This was largely the case because such a ground for refusal would intrinsically seem to be contradictory to the whole idea of mutual recognition and mutual trust. If there is a presumption of trust, then Member States should in principle also have faith that human rights are respected in all other Member States. It was not until 2016 that the EU Court of Justice explicitly confirmed that a risk of human or fundamental rights violations in the requesting state may act as a ground for refusal, albeit under 'exceptional circumstances'.42

When Finland implemented the EAW framework decision in Finnish legislation, it was nevertheless decided that threats of persecution or other human rights violations should be included as a mandatory ground for refusal. According to the Finnish government, this ground for refusal could be derived from the general wording of the framework decision as well as Finland's other international human rights obligations.43 The same solution was also adopted in several other Member States.44

If we consider mutual trust to inherently require that the human rights standards of other states should never be questioned, it would seem natural that the Nordic states would not apply such a ground for refusal. However, this assumption was evidently not regarded as a problem when the NAW was implemented in Finland, as well as in the other Nordic states, even though the NAW convention does not explicitly contain such a ground for refusal.45 According to the Finnish government, the obligation to respect human rights, and consequently the obligation to refuse extradition when these rights are threatened, can be derived from the purpose of the convention as well as the Finnish constitution.46 This clearly demonstrates that mutual trust does not require blind trust in other states' abilities to invariably uphold human rights guarantees. Trust can be conditional even between states that are as closely interconnected and confident in each other's legal systems as the Nordic states.47

41See, e.g., Lahti and Träskman (1994), pp. 279–280.

42See joined Cases C-404/15, *Aranyosi* and C-659/15 PPU, *C˘ald˘araru,* Judgment of the Court (Grand Chamber) of 5 April 2016, ECLI:EU:C:2016:198. See further on this topic, e.g., Satzger (2018a), Bárd and Ballegooij (2018) and Helenius (2019).

43Finnish Government Bill HE 88/2003 vp, p. 22.

44See Suominen (2011), p. 307.

45See Suominen (2011), pp. 204–218.

46Finnish Government Bill 51/2007 vp, p. 18.

47Similarly also Suominen (2011), p. 220.

### **4 Legal Assistance in Regard to Evidence**

A treaty on mutual legal assistance in criminal matters was adopted among the Nordic states in 1974.48 This treaty mainly concerns mutual legal assistance through service and taking of evidence. For instance, it enables the hearing of witnesses to be conducted in another Nordic state.49

The treaty was implemented in Finland through a Decree (470/1975) but also partly through a separate Act on the obligation in certain cases to appear before a court in another Nordic country (349/1975). According to this Act, a person who has reached the age of 18 years and who permanently resides in a Nordic country has an obligation to appear before a court in another Nordic country to be heard as a witness, taking into account the importance of such a hearing and possible inconveniences that may be caused by it. This obligation concerns not only witnesses but also parties in criminal cases (secs. 1 and 9).

In addition to this Nordic agreement, the general act on International Legal Assistance in Criminal Matters (4/1994) applies in Finland. This act concerns most forms of legal assistance, except, *inter alia*, extradition and transfer of the enforcement of punishments (sec. 1 and 2). It is applied parallel to the above-mentioned Nordic agreement, insofar as the same forms of legal assistance are concerned. However, the Nordic agreement allows for more extensive communication between competent authorities and also makes it possible to communicate in Danish and Norwegian, in addition to Finnish and Swedish.50

On the EU level, directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order (EIO) in criminal matters was adopted on 3 April 2014. The directive makes it possible for a Member State to have one or several specific investigative measures carried out in another Member State to obtain evidence. It also concerns evidence that is already in the possession of the competent authorities of the executing State (art. 1). With regard to the relationship between Finland and the other EU Member States, the general act on International Legal Assistance in Criminal Matters applies only to measures that are not regulated by the EIO directive (sec. 1.3). However, since Denmark does not take part in the EIO (p. 45 of the directive's preamble), previous agreements—including Nordic ones—on legal assistance will continue to apply in regard to Denmark.51 Naturally, Norway and Iceland also do not take part in the EIO. It should also be noted that the EIO directive, in the same way as the EAW framework decision, allows for bilateral and multilateral agreements, 'insofar as these make it possible to further strengthen the aims of this Directive and contribute to simplifying or further facilitating the procedures for gathering evidence' (art. 34.3).

48Treaty of 26 April 1974 between Finland, Denmark, Iceland, Norway and Sweden on mutual assistance through service and taking of evidence.

49See Lahti and Träskman (1994), p. 282.

50See further on this matter, Finnish Government Bill 61/1993 vp, pp. 11–12, 26, 28 and 34.

51Finnish Government Bill 29/2017 vp, p. 90. See also Espina Ramos (2019), p. 55.

Again, we can see that inter-Nordic agreements are not completely replaced by EU legislation but continue to apply and to be of practical relevance. However, it must be said that things are not made easy for the legal authorities, since these again have to keep in mind several different, inter-related legal frameworks. To some degree, more far-reaching obligations than those between the EU Member States seem to be rendered possible between the Nordic states specifically due to their close geographical proximity. This especially concerns the obligation to appear before other Nordic courts to be heard as a witness.52

### **5 Transfer of the Enforcement of Sentences**

In the 1960s, an agreement was concluded between the Nordic States on transferring of the enforcement of a sentence from one Nordic country to another. In Finland, the Act on cooperation between Finland and the other Nordic states on the enforcement of criminal sentences was adopted in 1963 (326/1963).

This form of cooperation, among other things, makes it possible to transfer the enforcement of fines, confiscations, conditional and unconditional prison sentences, conditional release from prison and community service sentences from one Nordic country to another. Such transfer of enforcement can be deemed appropriate especially when the sentenced person is a citizen of a Nordic state other than the one that imposed the sentence, or when he or she has his or her permanent residence or has resided for a long time in such a state. After the transfer, the punishment is enforced largely in accordance with the law of the enforcing state.53

Like extradition and legal assistance in regard to evidence, this form of cooperation also takes place alongside the EU framework on the transfer of criminal sentences. At the EU level, there are four instruments that deal with transfer of enforcement. Specifically, these concern financial penalties,54 confiscation,55 probation measures and alternative sanctions56 and custodial sentences.57 When these instruments were implemented in Finland, it was concluded that the Nordic enforcement act should continue to apply between Finland and the Nordic EU Member States (i.e., Denmark

52See Asp (1998), pp. 27 and 37.

53Lahti and Träskman (1994), p. 284.

54Council framework decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties O.J. L76/16 (2005).

55Council framework decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders O.J. L328/59 (2006).

56Council framework decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions O.J. L377/102 (2008).

57Council framework decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union O.J. L327/27 (2008).

and Sweden), since this act essentially helps to simplify and further facilitate the procedures regulated by the EU instruments. Here, again, all the EU instruments in question allow for more far-reaching cooperation. Denmark and Sweden have also declared that they will continue to apply the Nordic arrangements.58

### **6 Criminal Jurisdiction and Transfer of Criminal Proceedings**

In 1970, the chief prosecutorial authorities of the Nordic countries concluded an agreement on the transfer of criminal proceedings in certain cases. The agreement essentially consolidated practice that had been common among the Nordic police and prosecutorial authorities since the 1940s.59 Like many other Nordic agreements, this agreement does not have the nature of an official treaty and has not been implemented as such in the Nordic states. In practice, however, it has nevertheless been applied as an official treaty.60 The agreement also does not impose any legal duties on the states per se but, rather, is a practical agreement between the prosecutorial authorities of the states.61 Here, again, we can see that informal cooperation is the key feature, which is made practically functional due to mutual trust.

The aforementioned agreement makes it possible for charges for an offence that has been committed in one Nordic state to be brought in another Nordic state, if the suspect resides in the latter state and the act in question is also punishable in that state. Under certain conditions, charges may also be brought in the state where the suspect is found instead of in the place where the act was committed. When choosing the proper forum for prosecution, both the interests of the suspect and the possibilities of an effective investigation of the matter should be taken into consideration.62 Prosecution is then transferred following a request of the competent authority (i.e., a prosecutorial authority) in the Nordic state where the act was committed. The aim is essentially to enable a 'proper administration of justice' that renders it possible to take into account all circumstances that have a bearing on the matter when deciding where to prosecute.63

58See Finnish Government Bills HE 142/2006 vp, pp. 8–9, 25 and 28; HE 47/2007 vp, pp. 11–12 and 40–44; HE 10/2011 vp, pp. 33, 51–52, 62 and 66; and HE 97/2014 vp, p. 7.

59Asp (1998), p. 17.

60Lahti and Träskman (1994), p. 283.

61See Strandbakken (2009), p. 371.

62Lahti and Träskman (1994), pp. 283–284.

63See Vander Beken et al. (2002), p. 25 and Helenius (2014), p. 135. Cf. also Explanatory report (Basic Solutions) to the European Convention on the Transfer of Proceedings in Criminal Matters (CETS No. 73): 'The transfer of proceedings may take place in respect of any offence which may be prosecuted in the requesting State and in respect of which the condition of dual criminal liability is fulfilled, if such a transfer is in the interests of a proper administration of justice.' It should be noted that among the Nordic States, Finland has not signed the European Convention on the Transfer

In ch. 1 of the Finnish Criminal Code (39/1889), concerning the scope of application of Finnish criminal law (i.e., Finland's criminal jurisdiction), this agreement can be seen firstly in the provision on offences committed by Finns (sec. 6). According to this provision, Finnish law applies to offences committed outside of Finland by Finnish citizens. The provision further states that 'a person who was apprehended in Finland and who at the beginning of the court proceedings is a citizen of Denmark, Iceland, Norway or Sweden or at that time is permanently resident in one of those countries' is deemed equivalent to a Finnish citizen. This means that charges can be brought in Finland against a resident of another Nordic country, even if the only connection to Finland is that the person in question was apprehended in Finland. Consequently, from a jurisdictional perspective, all Nordic citizens are treated equally, with the additional requirement that they are apprehended in the forum state. Today, all Nordic states have a corresponding jurisdictional provision on Nordic residents.64 Here, one can speak of a 'Nordic' principle of active personality in combination with a principle of apprehension.65

The agreement between the Nordic prosecutors can also be seen in the Finnish criminal code's provision on the requirement of a prosecution order by the Prosecutor General (ch. 1, sec. 12). The point of departure of this provision is that offences committed outside Finland may not be investigated or prosecuted in Finland without a separate prosecution order by the Prosecutor General. The idea behind the provision is that the Prosecutor General should make an assessment of whether or not it is appropriate that the case be handled in Finland, taking into consideration both the interests of the suspect and those of other states that might be better suited to deal with the matter. In the same way as mentioned above, this mechanism enables a proper administration of justice in cases of concurrent criminal jurisdiction.66

However, an order by the Prosecutor General is not required if the offence was committed in one of the other Nordic countries and the competent public prosecutor of the place of commission has requested that the offence be tried in a Finnish court. In this case, a request of transfer from one Nordic prosecutor to another is sufficient. Since the Nordic agreement on transfer of criminal proceedings is intended to facilitate flexible cooperation between the Nordic prosecutors, the requirement of a separate prosecution order by the Prosecutor General would be contradictory to this purpose.67 The competent Nordic prosecutors are thus authorised to handle the question of where to prosecute among themselves, without the involvement of any higher prosecutorial authorities.

of Proceedings in Criminal Matters of 1972 (ETS No.073). Iceland has signed the treaty but not ratified it.

64Helenius (2014), p. 241 and Elholm and Feldtman (2014), pp. 149–150. The Norwegian criminal code previously did not include such a provision, but today it is found in sec. 5.2.

65Helenius (2014), p. 241. 'Active personality' here refers to both the nationality and the domicile of the person, since both connections constitute sufficient grounds for jurisdiction.

66See Helenius (2015), pp. 43–47.

67Finnish Government Bill HE 1/1996 vp, p. 27.

This form of Nordic cooperation is perhaps the most far-reaching one in comparison to the EU level. In 2009, several Member States put forward an initiative for a framework decision on the transfer of proceedings in criminal matters.68 The objective of the framework decision would have been to 'increase efficiency in criminal proceedings and to improve the proper administration of justice within the area of freedom, security and justice by establishing common rules facilitating the transfer of criminal proceedings between competent authorities of the Member States, taking into account the legitimate interests of suspects and victims'. However, the framework decision was never adopted due to the entry into force of the Lisbon Treaty, and no similar proposal has been put forward since then.69 From a jurisdictional perspective, the populations of the EU Member States are not treated as EU citizens but rather as citizens of each Member State. In contrast to the Nordic States, the EU is apparently not yet ready for such a level of mutual trust and profound cooperation.

### **7 Conclusion**

Nordic cooperation is still very much alive in practice, although common legislative efforts (e.g., by the Nordic Criminal Law Committee) have decreased since the 1980's.70 The latest large-scale common project was the NAW. However, despite EU instruments replacing several of the former Nordic agreements, the Nordic states still continue to apply their own regional framework in many areas.

A few years before the EU cooperation in criminal matters seriously took off in the early 2000s, it was explicitly stated that the Nordic states should endeavour as far as possible to create a 'borderless area for cooperation in criminal matters'.71 Here, parallels can clearly be drawn to the idea of the EU as a 'single judicial area'. In such an area, not only would judgments and other judicial decisions ideally move freely, but also it would not be of relevance where an offence was committed, since all states would have jurisdiction over all offences committed within the common area. Law enforcement authorities would also be able to move freely and apply coercive and other measures irrespective of national borders.72 Although the Nordic states cannot yet be said to constitute a 'single judicial area' of their own, one can see that

68Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Latvia, the Republic of Lithuania, Republic of Hungary, the Kingdom of the Netherlands, Romania, the Republic of Slovenia, the Slovak Republic and the Kingdom of Sweden for a Council Framework Decision 2009/…/JHA of … on transfer of proceedings in criminal matters O.J. C219/7 (2009).

69On the added value of transfer of criminal proceedings within the EU, see Klip (2016), pp. 533– 534.

70See Melander (2007), p. 112 and Lappi-Seppälä and Nuotio (2019), pp. 181–182.

71See Swedish Government Bill 1999/2000:61, p. 61.

72See especially the ideals expressed in Wersäll (2006).

the Nordic cooperation relatively consistently goes deeper than the EU cooperation does.

On the other hand, EU legislation should not necessarily be regarded as something negative that has only encroached upon the 'good old' Nordic cooperation. Simplification and pragmatism are certainly desirable, as long as they do not bring about legal uncertainty or disadvantages for the individual persons involved.73 EU legislation in the field of judicial cooperation in criminal matters has perhaps resulted in more strictly prescribed formalities, but it has likely also strengthened the procedural rights of suspects, defendants and victims.74