Initiative of the French Republic with a view to adopting a Convention on improving mutual assistance in criminal matters, in particular in the area of combating organised crime, laundering of the proceeds from crime and financial crime

(2000/C 243/04)

THE HIGH CONTRACTING PARTIES to this Convention, Member States of the European Union,

REFERRING to the Council Act of ...,

TAKING ACCOUNT of the conclusions adopted at the European Council held at Tampere on 15 and 16 October 1999, and of the need to implement them immediately in order to achieve an area of freedom, security and justice,

BEARING IN MIND the recommendations made by the experts when presenting the mutual evaluation reports based on Joint Action 97/827/JHA of 5 December 1997 adopted by the Council on the basis of Article K(3) of the Treaty of Union establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organised crime(1),

CONVINCED that the European Union must be in the vanguard of the fight against organised crime and money laundering,

HAVE AGREED ON THE FOLLOWING PROVISIONS:

Article 1

Relationship with other conventions

1. The purpose of this Convention is to supplement the provisions and facilitate the application between the Member States of the European Union of the following instruments for cooperation governing mutual assistance between their competent authorities (hereinafter called "mutual assistance"):

(a) the European Convention on Mutual Assistance in Criminal Matters signed at Strasbourg on 20 April 1959 (Council of Europe ETS No 30), hereinafter called "the 1959 Convention";

(b) the Additional Protocol to the European Convention on Mutual Assistance, signed at Strasbourg on 17 March 1978 (Council of Europe ETS No 99);

(c) the Convention on Mutual Assistance in Criminal Matters, established on the basis of Articles 31 and 34 of the Treaty on European Union by the Council Act of 29 May 2000(2) hereinafter referred to as the "2000 Convention";

(d) the provisions in force on mutual assistance in criminal matters of the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders signed at Schengen on 19 June 1990;

(e) Chapter 2 of the Treaty on Extradition and Mutual Assistance in Criminal Matters between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, of 27 June 1962, as amended by the Protocol of 11 May 1974, in the context of relations between the Member States of the Benelux Economic Union;

(f) the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, signed at Strasbourg on 8 November 1990 (Council of Europe ETS No 141).

2. This Convention shall not affect the application of more favourable provisions in bilateral or multilateral agreements between Member States or, as provided for in Article 26(4) of the 1959 Convention, arrangements in the field of mutual assistance in criminal matters agreed on the basis of uniform legislation or of a special system providing for the reciprocal application of measures of mutual assistance in their respective territories.

Article 2

Reservations and declarations in Article 5 of the 1959 Convention

1. The reservations and declarations made by the Member States relating to Article 5 of the 1959 Convention shall not be invoked between them.

2. The relevant provision of Article 51 of the Convention implementing the Schengen Agreement is hereby repealed.

Article 3

Banking and commercial secrecy

A Member State may not invoke the provisions on confidentiality applicable to banking activities and other commercial activities in order to refuse to implement a request for mutual assistance from another Member State.

Article 4

Traceability of the proceeds of crime

1. In order to facilitate the investigations conducted by the requesting Member State, Member States shall take appropriate measures to encourage the provision and securing of documents, information and other data likely to constitute evidence as to the existence of proceeds of crime, their location or movement, their nature, legal status or value, and the final beneficiary.

2. The Council, acting by a qualified majority, may, acting on a proposal from the Commission or on the initiative of a Member State, adopt measures to implement paragraph 1.

Article 5

Request for banking information

1. The Member State which receives a request for mutual assistance shall provide, as quickly as possible, the list of all types of bank accounts of which a natural person being prosecuted or under suspicion in the requesting Member State is or was the holder or financial beneficiary.

2. The Member State which receives a request for mutual assistance in investigations into serious organised crime or laundering of the proceeds of crime shall provide as quickly as possible details of banking operations carried out during a period specified by the requesting Member State through each of the accounts identified in accordance with paragraph 1, so as to enable capital movements to be traced, particularly between its territory and that of States or territories whose legislation or rules are recognised as being inadequate, or whose practices are considered a hindrance to combating the laundering of capital by the international body for concertation and coordination of the fight against money laundering.

3. The information referred to in paragraphs 1 and 2 shall be provided by the requesting Member State, even if it proves to concern accounts held by bodies acting in the form of, or on behalf of, trust funds or other instruments for administering special purpose funds, of which the identity of the settlors or beneficiaries is unknown.

4. The information referred to in paragraphs 1 and 2 shall also be supplied regarding all legal persons which are the subject of prosecution or investigations in the requesting Member State, or in respect of which the natural person referred to in paragraph 1 has managerial power within it, based on the following:

- a power of representation of the legal person, or

- an authority to take decisions on behalf of the legal person.

Article 6

Additional requests for mutual assistance

If, in implementing a request for mutual assistance, it appears necessary to undertake investigations which, while not explicitly provided for in the request, in particular because the need for such investigations was unknown at the time the request was made, might be useful to establish the facts, the requested Member State shall immediately inform the authorities of the requesting Member State thereof. The latter may forward an additional request under the conditions set out in the relevant provisions of the applicable cooperation agreement without the need to forward again other items already in the possession of the requested Member State except for those which are necessary for identifying the initial request.

Article 7

Fiscal offences

1. Mutual assistance may not be refused solely on the grounds that the request concerns offences relating to taxes and excise duties, customs or foreign exchange.

2. The relevant provisions of Article 50 of the Convention implementing the Schengen Agreement are hereby repealed.

Article 8

Fundamental interests

1. With regard to prosecutions of or investigations into serious organised crime or laundering of the proceeds of crime, mutual assistance requested pursuant to the provisions of the applicable cooperation instrument may be refused only where the requested Member State considers that implementation of the request is likely to jeopardise its essential interests.

2. A Member State which invokes these grounds for refusing mutual assistance shall give written reasons for its decision and inform the requesting Member State of those reasons. If, however, the requesting Member State maintains its request and no solution can be found, the reasoned decision to refuse the request shall be forwarded to the Council for information by the requested Member State, for possible consideration in the context of a subsequent evaluation at the level of the European Union of the operation of this Convention.

3. Where mutual assistance is refused on those grounds, the Council, at the request of the Member States concerned, shall, within two months of being thus informed and without prejudice to Article 35(7) of the Treaty on European Union, appoint an ad hoc committee to help in finding an amicable settlement of the difficulty.

4. The procedure referred to in paragraph 3 shall be determined by a Council decision pursuant to Article 34(2)(c) of the Treaty on European Union.

Article 9

Multidisciplinary structures

While taking account of its own constitutional structures and national traditions, each Member State shall set up integrated multidisciplinary teams at national level, where they do not already exist, specifically in the area of organised crime, in particular with regard to laundering of the proceeds of crime. The coordinating teams should be familiar with national criminal investigations to enable them to contribute to developing national policies in their field of competence and to exchange information amongst themselves, in particular pursuant to Article 7 of the 2000 Convention.

Article 10

Reservations

No reservations may be entered in respect of this Convention.

Article 11

Entry into force

1. This Convention shall be subject to adoption by the Member States in accordance with their respective constitutional requirements.

2. Member States shall notify the Secretary-General of the Council of the European Union of the completion of the constitutional procedures for the adoption of this Convention.

3. This Convention shall enter into force in the eight Member States concerned 90 days after the notification referred to in paragraph 2 by that Member State of the European Union at the time of adoption by the Council of the Act establishing this Convention which is the eighth to complete that formality.

4. Any notification by a Member State subsequent to the entry into force of this Convention under paragraph 3 shall have the effect that, 90 days after such notification, this Convention shall enter into force as between that Member State and those Member States for which this Convention has already entered into force.

5. Before the entry into force of this Convention pursuant to paragraph 3, any Member State may, when giving the notification referred to in paragraph 2 or at any time thereafter, declare that it will apply this Convention in its relations with Member States which have made the same declaration. Such declarations shall take effect 90 days after the date of deposit thereof.

6. This Convention shall apply to mutual assistance initiated after the date on which it has entered into force, or is applied pursuant to paragraph 5, between the Member States concerned.

Article 12

Accession of new Member States

1. This Convention shall be open to accession by any State which becomes a member of the European Union.

2. The text of this Convention in the language of the acceding State, drawn up by the Council of the European Union, shall be authentic.

3. The instruments of accession shall be deposited with the depositary.

4. This Convention shall enter into force with respect to any State which accedes to it 90 days after the deposit of its instrument of accession or on the date of entry into force of this Convention if it has not already entered into force at the time of expiry of the said period of 90 days.

5. Where this Convention is not yet in force at the time of the deposit of their instrument of accession, Article 11(5) shall apply to acceding Member States.

Article 13

Position of Iceland and Norway

Articles 2 and 7 constitute measures amending or building upon the provisions referred to in Annex 1 to the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis.

Article 14

Depositary

The Secretary-General of the Council of the European Union shall act as depositary of this Convention.

The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions, accessions and declarations and also any other notification concerning this Convention.

IN WITNESS WHEREOF, the undersigned Plenipotentiaries have hereunto set their hands,

Done at ..., on ... in a single original in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic, the original being deposited in the archives of the General Secretariat of the Council of the European Union. The Secretary-General shall forward a certified copy thereof to each Member State.

For the Government of ...

For the Government of ...

(1) OJ L 344, 15.12.1997, p. 7.

(2) OJ C 197, 12.7.2000. p. 1.