2006F0960 — EN — 30.12.2006 — 000.001

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▼B

COUNCIL FRAMEWORK DECISION 2006/960/JHA

of 18 December 2006

on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union







THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 30(1)(a) and (b) and 34(2)(b) thereof, Having regard to the initiative of the Kingdom of Sweden, Having regard to the opinion of the European Parliament, Whereas: (1) One of the core objectives of the European Union is to provide its citizens with a high level of security within an area of freedom, security and justice. (2) That objective is to be achieved by preventing and combating crime through closer cooperation between law enforcement authorities in the Member States, while respecting the principles and rules relating to human rights, fundamental freedoms and the rule of law on which the Union is founded and which are common to the Member States. (3) Exchange of information and intelligence on crime and criminal activities is the basis for law enforcement cooperation in the Union serving the overall objective of improving the safety of the Union's citizens. (4) The timely access to accurate and up to date information and intelligence is a crucial element for the possibility of law enforcement authorities to successfully detect, prevent and investigate crime or criminal activity, in particular within an area where internal border controls have been abolished. As the activities of criminals are carried out clandestinely, they need to be controlled, and information relating to them needs to be exchanged particularly expeditiously. (5) It is important that the possibilities for law enforcement authorities to obtain information and intelligence concerning serious crime and terrorist acts from other Member States be viewed horizontally and not in terms of differences with regard to type of crime or division of competencies between law enforcement or judicial authorities. (6) Currently, effective and expeditious exchange of information and intelligence between law enforcement authorities is seriously hampered by formal procedures, administrative structures and legal obstacles laid down in Member States' legislation; such a state of affairs is unacceptable to the citizens of the European Union and it therefore calls for greater security and more efficient law enforcement while protecting human rights. (7) It is necessary for law enforcement authorities to be able to request and obtain information and intelligence from other Member States at different stages of investigation, from the phase of gathering criminal intelligence to the phase of criminal investigation. The Member State's systems are different in that respect, but this Framework Decision does not purport to change these systems. However, it seeks, as regards certain types of information and intelligence, to ensure that certain information vital for law enforcement authorities is exchanged expeditiously within the Union. (8) The absence of a common legal framework for the effective and expeditious exchange of information and intelligence between the law enforcement authorities of the Member States is a deficiency that will have to be remedied; the Council of the European Union therefore deems it necessary to adopt a legally binding instrument on simplifying the exchange of information and intelligence. This Framework Decision should not affect existing or future instruments which allow the objectives of this Framework Decision to be extended or which facilitate the procedures for exchanging information and intelligence, such as the Convention of 18 December 1997 drawn up on the basis of Article K.3 of the Treaty on European Union on Mutual Assistance and Cooperation between Customs Administrations ( 1 ). (9) As regards the exchange of information, this Framework Decision is without prejudice to essential national security interests, the jeopardizing of the success of a current investigation or the safety of individuals, or specific intelligence activities in the field of State security. (10) It is important to promote the exchange of information as widely as possible, in particular in relation to offences linked directly or indirectly to organised crime and terrorism, and in a way which does not detract from the required level of cooperation between Member States under existing arrangements. (11) The common interest of Member States in fighting crime of a cross-border nature must strike the appropriate balance between fast and efficient law enforcement cooperation and agreed principles and rules on data protection, fundamental freedoms, human rights and individual liberties. (12) In the Declaration on combating terrorism as adopted by the European Council at its meeting on 25 March 2004, the European Council instructed the Council to examine measures for simplifying the exchange of information and intelligence between law enforcement authorities of the Member States. (13) As regards Iceland and Norway, this Framework Decision constitutes a development of the provisions of the Schengen acquis which fall within the area referred to in Article 1 of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis ( 2 ). The procedures set out in that Agreement have been followed in respect of this Framework Decision. (14) As regards Switzerland, this Framework Decision constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement signed between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1(H) of Decision 1999/437/EC read in conjunction with Article 4(1) of Decision 2004/860/EC ( 3 ) on the signing on behalf of the European Community and on the provisional application of certain provisions of that Agreement, and with Article 4(1) of Decision 2004/849/EC ( 4 ) on the signing on behalf of the European Union, and on the provisional application of certain provisions of that Agreement, Whereas: HAS ADOPTED THIS FRAMEWORK DECISION:







TITLE I

SCOPE AND DEFINITIONS

Article 1

Objective and scope

1. The purpose of this Framework Decision is to establish the rules under which Member States' law enforcement authorities may exchange existing information and intelligence effectively and expeditiously for the purpose of conducting criminal investigations or criminal intelligence operations.

2. This Framework Decision shall be without prejudice to bilateral or multilateral agreements or arrangements between Member States and third countries and to instruments of the European Union on mutual legal assistance or mutual recognition of decisions regarding criminal matters, including any conditions set by third countries concerning the use of information once supplied.

3. This Framework Decision covers all information and/or intelligence as defined in Article 2(d). It does not impose any obligation on the part of the Member States to gather and store information and intelligence for the purpose of providing it to the competent law enforcement authorities of other Member States.

4. This Framework Decision does not impose any obligation on the part of the Member States to provide information and intelligence to be used as evidence before a judicial authority nor does it give any right to use such information or intelligence for that purpose. Where a Member State has obtained information or intelligence in accordance with this Framework Decision, and wishes to use it as evidence before a judicial authority, it has to obtain consent of the Member State that provided the information or intelligence, where necessary under the national law of the Member State that provided the information or intelligence, through the use of instruments regarding judicial cooperation in force between the Member States. Such consent is not required where the requested Member State has already given its consent for the use of information or intelligence as evidence at the time of transmittal of the information or intelligence.

5. This Framework Decision does not impose any obligation to obtain any information or intelligence by means of coercive measures, defined in accordance with national law, in the Member State receiving the request for information or intelligence.

6. Member States shall, where permitted by and in accordance with their national law, provide information or intelligence previously obtained by means of coercive measures.

7. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union and any obligations incumbent on law enforcement authorities in this respect shall remain unaffected.

Article 2

Definitions

For the purposes of this Framework Decision:

(a) ‘competent law enforcement authority’: a national police, customs or other authority that is authorised by national law to detect, prevent and investigate offences or criminal activities and to exercise authority and take coercive measures in the context of such activities. Agencies or units dealing especially with national security issues are not covered by the concept of competent law enforcement authority. Every Member State shall, by 18 December 2007, state in a declaration deposited with the General Secretariat of the Council which authorities are covered by the concept of ‘competent law enforcement authority’. Such a declaration may be modified at any time.

(b) ‘criminal investigation’: a procedural stage within which measures are taken by competent law enforcement or judicial authorities, including public prosecutors, with a view to establishing and identifying facts, suspects and circumstances regarding one or several identified concrete criminal acts;

(c) ‘criminal intelligence operation’: a procedural stage, not yet having reached the stage of a criminal investigation, within which a competent law enforcement authority is entitled by national law to collect, process and analyse information about crime or criminal activities with a view to establishing whether concrete criminal acts have been committed or may be committed in the future;

(d) ‘information and/or intelligence’: (i) any type of information or data which is held by law enforcement authorities; and (ii) any type of information or data which is held by public authorities or by private entities and which is available to law enforcement authorities without the taking of coercive measures, in accordance with Article 1(5).

(e) ‘offences referred to in Article 2(2) of the Framework Decision 2002/584/JHA on the European arrest warrant ( 5 )’ (hereinafter referred to as ‘offences referred to in Article 2(2) of the Framework Decision 2002/584/JHA’): offences under national law which correspond to or are equivalent to those referred to in that provision.







TITLE II

EXCHANGE OF INFORMATION AND INTELLIGENCE

Article 3

Provision of information and intelligence

1. Member States shall ensure that information and intelligence can be provided to the competent law enforcement authorities of other Member States in accordance with this Framework Decision.

2. Information and intelligence shall be provided at the request of a competent law enforcement authority, acting in accordance with the powers conferred upon it by national law, conducting a criminal investigation or a criminal intelligence operation.

3. Member States shall ensure that conditions not stricter than those applicable at national level for providing and requesting information and intelligence are applied for providing information and intelligence to competent law enforcement authorities of other Member States. In particular, a Member State shall not subject the exchange, by its competent law enforcement authority with a competent law enforcement authority of another Member State, of information or intelligence which in an internal procedure may be accessed by the requested competent law enforcement authority without a judicial agreement or authorisation, to such an agreement or authorisation.

4. Where the information or intelligence sought may, under the national law of the requested Member State, be accessed by the requested competent law enforcement authority only pursuant to an agreement or authorisation of a judicial authority, the requested competent law enforcement authority shall be obliged to ask the competent judicial authority for an agreement or authorisation to access and exchange the information sought. The competent judicial authority of the requested Member State shall apply the same rules for its decision, without prejudice to Article 10(1) and (2), as in a purely internal case.

5. Where the information or intelligence sought has been obtained from another Member State or from a third country and is subject to the rule of speciality, its transmission to the competent law enforcement authority of another Member State may only take place with the consent of the Member State or third country that provided the information or intelligence.

Article 4

Time limits for provision of information and intelligence

1. Member States shall ensure that they have procedures in place so that they can respond within at most eight hours to urgent requests for information and intelligence regarding offences referred to in Article 2(2) of Framework Decision 2002/584/JHA, when the requested information or intelligence is held in a database directly accessible by a law enforcement authority.

2. If the requested competent law enforcement authority is unable to respond within eight hours, it shall provide reasons for that on the form set out in Annex A. Where the provision of the information or intelligence requested within the period of eight hours would put a disproportionate burden on the requested law enforcement authority, it may postpone the provision of the information or intelligence. In that case the requested law enforcement authority shall immediately inform the requesting law enforcement authority of this postponement and shall provide the requested information or intelligence as soon as possible, but not later than within three days. The use made of the provisions under this paragraph shall be reviewed by 19 December 2009.

3. Member States shall ensure that for non-urgent cases, requests for information and intelligence regarding offences referred to in Article 2(2) of Framework Decision 2002/584/JHA should be responded to within one week if the requested information or intelligence is held in a database directly accessible by a law enforcement authority. If the requested competent law enforcement authority is unable to respond within one week, it shall provide reasons for that on the form set out in Annex A.

4. In all other cases, Member States shall ensure that the information sought is communicated to the requesting competent law enforcement authority within 14 days. If the requested competent law enforcement authority is unable to respond within 14 days, it shall provide reasons for that on the form set out in Annex A.

Article 5

Requests for information and intelligence

1. Information and intelligence may be requested for the purpose of detection, prevention or investigation of an offence where there are factual reasons to believe that relevant information and intelligence is available in another Member State. The request shall set out those factual reasons and explain the purpose for which the information and intelligence is sought and the connection between the purpose and the person who is the subject of the information and intelligence.

2. The requesting competent law enforcement authority shall refrain from requesting more information or intelligence or setting narrower time frames than necessary for the purpose of the request.

3. Requests for information or intelligence shall contain at least the information set out in Annex B.

Article 6

Communication channels and language

1. Exchange of information and intelligence under this Framework Decision may take place via any existing channels for international law enforcement cooperation. The language used for the request and the exchange of information shall be the one applicable for the channel used. Member States shall, when making their declarations in accordance with Article 2(a), also provide the General Secretariat of the Council with details of the contacts to which requests may be sent in cases of urgency. These details may be modified at any time. The General Secretariat of the Council shall communicate to the Member States and the Commission the declarations received.

2. Information or intelligence shall also be exchanged with Europol in accordance with the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention) ( 6 ) and with Eurojust in accordance with the Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime ( 7 ), insofar as the exchange refers to an offence or criminal activity within their mandate.

Article 7

Spontaneous exchange of information and intelligence

1. Without prejudice to Article 10, the competent law enforcement authorities shall, without any prior request being necessary, provide to the competent law enforcement authorities of other Member States concerned information and intelligence in cases where there are factual reasons to believe that the information and intelligence could assist in the detection, prevention or investigation of offences referred to in Article 2(2) of Framework Decision 2002/584/JHA. The modalities of such spontaneous exchange shall be regulated by the national law of the Member States providing the information.

2. The provision of information and intelligence shall be limited to what is deemed relevant and necessary for the successful detection, prevention or investigation of the crime or criminal activity in question.

Article 8

Data protection

1. Each Member State shall ensure that the established rules on data protection provided for when using the communication channels referred to in Article 6(1) are applied also within the procedure on exchange of information and intelligence provided for by this Framework Decision.

2. The use of information and intelligence which has been exchanged directly or bilaterally under this Framework Decision shall be subject to the national data protection provisions of the receiving Member State, where the information and intelligence shall be subject to the same data protection rules as if they had been gathered in the receiving Member State. The personal data processed in the context of the implementation of this Framework Decision shall be protected in accordance with the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, and, for those Member States which have ratified it, the Additional Protocol of 8 November 2001 to that Convention, regarding Supervisory Authorities and Transborder Data Flows. The principles of Recommendation No. R(87) 15 of the Council of Europe Regulating the Use of Personal Data in the Police Sector should also be taken into account when law enforcement authorities handle personal data obtained under this Framework Decision.

3. Information and intelligence provided under this Framework Decision may be used by the competent law enforcement authorities of the Member State to which it has been provided solely for the purposes for which it has been supplied in accordance with this Framework Decision or for preventing an immediate and serious threat to public security; processing for other purposes shall be permitted solely with the prior authorisation of the communicating Member State and subject to the national law of the receiving Member State. The authorisation may be granted insofar as the national law of the communicating Member State permits.

4. When providing information and intelligence in accordance with this Framework Decision, the providing competent law enforcement authority may pursuant to its national law impose conditions on the use of the information and intelligence by the receiving competent law enforcement authority. Conditions may also be imposed on reporting the result of the criminal investigation or criminal intelligence operation within which the exchange of information and intelligence has taken place. The receiving competent law enforcement authority shall be bound by such conditions, except in the specific case where national law lays down that the restrictions on use be waived for judicial authorities, legislative bodies or any other independent body set up under the law and made responsible for supervising the competent law enforcement authorities. In such cases, the information and intelligence may only be used after prior consultation with the communicating Member State whose interests and opinions must be taken into account as far as possible. The receiving Member State may, in specific cases, be requested by the communicating Member State to give information about the use and further processing of the transmitted information and intelligence.

Article 9

Confidentiality

The competent law enforcement authorities shall take due account, in each specific case of exchange of information or intelligence, of the requirements of investigation secrecy. To that end the competent law enforcement authorities shall, in accordance with their national law, guarantee the confidentiality of all provided information and intelligence determined as confidential.

Article 10

Reasons to withhold information or intelligence

1. Without prejudice to Article 3(3), a competent law enforcement authority may refuse to provide information or intelligence only if there are factual reasons to assume that the provision of the information or intelligence would:

(a) harm essential national security interests of the requested Member State; or

(b) jeopardise the success of a current investigation or a criminal intelligence operation or the safety of individuals; or

(c) clearly be disproportionate or irrelevant with regard to the purposes for which it has been requested.

2. Where the request pertains to an offence punishable by a term of imprisonment of one year or less under the law of the requested Member State, the competent law enforcement authority may refuse to provide the requested information or intelligence.

3. The competent law enforcement authority shall refuse to provide information or intelligence if the competent judicial authority has not authorised the access and exchange of the information requested pursuant to Article 3(4).







TITLE III

FINAL PROVISIONS

Article 11

Implementation

1. Member States shall take the necessary measures ►C1 to comply with the provisions of this Framework Decision before 19 December 2008. ◄

2. Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national laws the obligations imposed on them under this Framework Decision. On the basis of this and other information provided by the Member States on request, ►C1 the Commission shall, before 19 December 2010, submit a report to the Council ◄ on the operation of this Framework Decision. ►C1 The Council shall before 19 December 2011 assess ◄ the extent to which Member States have complied with the provisions of this Framework Decision.

Article 12

Relation to other instruments

1. The provisions of Article 39(1), (2) and (3) and of Article 46 of the Convention Implementing the Schengen Agreement ( 8 ), in as far as they relate to exchange of information and intelligence for the purpose of conducting criminal investigations or criminal intelligence operations as provided for by this Framework Decision, shall be replaced by the provisions of this Framework Decision.

2. The Decision of the Schengen Executive Committee of 16 December 1998 on cross-border police cooperation in the area of crime prevention and detection (SCH/Com-ex (98) 51 rev 3) ( 9 ) and the Decision of the Schengen Executive Committee of 28 April 1999 on the improvement of police cooperation in preventing and detecting criminal offences (SCH/Com-ex (99) 18) ( 10 ) are hereby repealed.

3. Member States may continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended and help to simplify or facilitate further the procedures for exchanging information and intelligence falling within the scope of this Framework Decision.

4. Member States may conclude or bring into force bilateral or multilateral agreements or arrangements after this Framework Decision has come into force in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended and help to simplify or facilitate further the procedures for exchanging information and intelligence falling within the scope of this Framework Decision.

5. The agreements and arrangements referred to in paragraphs 3 and 4 may in no case affect relations with Member States which are not parties to them.

6. ►C1 Member States shall no later than 19 December 2007, notify the Council and the Commission ◄ of the existing agreements and arrangements referred to in paragraph 3 which they wish to continue applying.

7. Member States shall also notify the Council and the Commission of any new agreement or arrangement as referred to in paragraph 4, within three months of their signature or, for those instruments which had already been signed before the adoption of this Framework Decision, their entry into force.

Article 13

Entry into force

This Framework Decision shall enter into force on the day following its publication in the Official Journal of the European Union.









ANNEX A

INFORMATION EXCHANGE UNDER COUNCIL FRAMEWORK DECISION 2006/960/JHA FORM TO BE USED BY THE REQUESTED MEMBER STATE IN CASE OF TRANSMISSION/DELAY/REFUSAL OF INFORMATION

This form shall be used to transmit the requested information and/or intelligence, to inform the requesting authority of the impossibility of meeting the normal deadline, of the necessity of submitting the request to a judicial authority for an authorisation, or of the refusal to transmit the information.

This form may be used more than once during the procedure (e.g. if the request has first to be submitted to a judicial authority and it later transpires that the execution of the request has to be refused).









ANNEX B

INFORMATION EXCHANGE UNDER COUNCIL FRAMEWORK DECISION 2006/960/JHA REQUEST FORM FOR INFORMATION AND INTELLIGENCE TO BE USED BY THE REQUESTING MEMBER STATE

This form shall be used when requesting information and intelligence under Framework Decision 2006/960/JHA