On February 1, 2010, fifty-six new agreements regarding extradition and mutual legal assistance between the European Union (EU) and the United States became effective. According to the DOJ, the new treaties “represent a milestone in cooperation on criminal matters between the EU, along with its Member States, and the United States.”8 Negotiations on the treaties arose following the September 11, 2001 terrorist attacks, as a means to improve cooperation in criminal matters between the EU Member States and the U.S. But terrorists are not the only targets that will be affected by the treaties. Those charged with FCPA violations will also be more easily extraditable based on the new treaties.
The agreements intend to facilitate extradition of individuals charged with transnational crimes and the sharing of information needed to investigate and prosecute those crimes. Under the previous treaty regime, crimes had to be expressly listed within a treaty in order for it to be deemed extraditable.9 The individual charged could defeat extradition by pointing to the absence of the particular offense charged. The potential for this outcome was heightened as new criminal statutes were adopted by countries following the effective date of the treaty. To combat this issue, the new treaties incorporate a flexible “dual criminality standard.” This standard typically requires only that the charged offense comprises a criminal act in both countries, regardless of whether it is expressly listed or named in the applicable treaty.
According to the DOJ, the new treaties enhance global enforcement efforts by: “allowing prompt identification of financial account information in criminal investigations; permitting the acquisition of evidence, including testimony, by means of video conferencing; and authorizing the participation of U.S. criminal investigators and prosecutors in joint investigative teams in the EU.”10
Under the former regime, the host country needed to assign a local prosecutor to act on behalf of the requesting prosecutor for purposes of obtaining evidence (like issuing subpoenas and examining witnesses) when the requesting prosecutor could not travel to the host country. By now permitting joint investigative teams and video conferencing, requesting prosecutors will likely now have an easier time in obtaining evidence overseas at lower costs. The effect of these treaties with respect to international enforcement will be interesting to observe. The U.S. has long been the most aggressive pursuer of FCPA violators.11 Permitting U.S. prosecutors greater access to EU investigative teams may spur other countries to dedicate more time and effort to enforcing foreign bribery and increasing their own enforcement efforts.