EN Official Journal of the European Union L 93/33

COUNCIL DECISION 2009/316/JHA

of 6 April 2009

on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Articles 31 and 34(2)(c) thereof,

Having regard to the Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (1), and in particular Article 11(4) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (2),

Whereas:

(1) Article 29 of the Treaty on European Union states that the Union's objective is to provide citizens with a high level of safety in the area of freedom, security and justice. This objective presupposes the systematic exchange between the competent authorities of the Member States of information extracted from criminal records in a way that would guarantee its common understanding and the efficiency of such exchange.

(2) Information on convictions handed down against Member States' nationals by other Member States does not circulate efficiently on the current basis of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. Therefore, there is a need for more efficient and accessible procedures of exchange of such information at European Union level.

(3) The need to improve the exchange of information on convictions was prioritised in the European Council Declaration on Combating Terrorism of 25 and 26 March 2004 and was subsequently reiterated in the Hague Programme (3) and in the Action Plan (4) on its implementation. Furthermore, the computerised interconnection of criminal records at European Union level was recognised as a political priority by the European Council in its Conclusions of 21 and 22 June 2007.

(4) The computerised interconnection of criminal records is part of the E-Justice project, which was acknowledged as a priority by the European Council several times in 2007.

(5) A pilot project is currently being developed with a view to interconnecting criminal records. Its achievements constitute a valuable basis for further work on computerised exchange of information at the European Union level.

(6) This Decision aims to implement Framework Decision 2009/315/JHA in order to build and develop a computerised system of exchange of information on convictions between Member States. Such a system should be capable of communicating information on convictions in a form which is easily understandable. Therefore, a standardised format allowing information to be exchanged in a uniform, electronic and easily computer-translatable way as well as any other means of organising and facilitating electronic exchanges of information on convictions between central authorities of Member States should be set up.

(7) This Decision is based on the principles established by Framework Decision 2009/315/JHA and applies and supplements those principles from a technical standpoint.

(8) The categories of data to be entered into the system, the purposes for which the data is to be entered, the criteria for its entry, the authorities permitted to access the data, and some specific rules on protection of personal data are defined in the Framework Decision 2009/315/JHA.

(9) Neither this Decision nor Framework Decision 2009/315/JHA establishes any obligation to exchange information about non-criminal rulings.

(10) Since the objective of this Decision is not to harmonise national systems of criminal records there is no obligation for a convicting Member State to change its internal system of criminal records as regards the use of information for domestic purposes.

(11) The European Criminal Records System (ECRIS) is a decentralised information technology system. The criminal records data should be stored solely in databases operated by Member States, and there should be no direct online access to criminal records databases of other Member States. Member States should bear the responsibility for the operation of national criminal records databases and for the efficient exchanges of information between themselves. The common communication infrastructure of ECRIS should be initially the Trans European Services for Telematics between Administrations (S-TESTA) network. All expenditure concerning the common communication infrastructure should be covered by the general budget of the European Union.

(12) The reference tables of categories of offences and categories of penalties and measures provided for in this Decision should facilitate the automatic translation and should enable the mutual understanding of the information transmitted by using a system of codes. The content of the tables is the result of the analysis of the needs of all 27 Member States. That analysis took into account the pilot project categorisation and the results of the clustering exercise of various national offences and penalties and measures. Moreover, in case of the table of offences, it also took into consideration the existing harmonised common definitions on the European and international level as well as the Eurojust and Europol data models.

(13) In order to ensure the mutual understanding and transparency of the common categorisation, each Member State should submit the list of national offences and penalties and measures falling in each category referred to in the respective table. Member States may provide a description of offences and penalties and measures and, given the usefulness of such description, they should be encouraged to do so. Such information should be made accessible to Member States.

(14) The reference tables of categories of offences and categories of penalties and measures provided for in this Decision are not designed to set up legal equivalences between offences and penalties and measures existing at national level. They are a tool aimed at helping the recipient to gain better understanding of the fact(s) and type of penalty(ies) or measure(s) contained in the information transmitted. The accuracy of the codes mentioned cannot be fully guaranteed by the Member State supplying the information and it should not preclude the competent authorities in the receiving Member State from interpreting the information.

(15) The reference tables of categories of offences and categories of penalties and measures should be revised and updated in accordance with the procedure for the adoption of implementing measures for decisions provided for in the Treaty on European Union.

(16) Members States and the Commission should inform and consult one another within the Council in accordance with the modalities set out in the Treaty on European Union, with a view to drawing up a non-binding manual for practitioners which should address the procedures governing the exchange of information, in particular modalities of identification of offenders, common understanding of the categories of offences and penalties and measures, and explanation of problematic national offences and penalties and measures, and ensuring the coordination necessary for the development and operation of ECRIS.

(17) In order to accelerate the development of ECRIS, the Commission should adopt a number of technical measures to assist Member States in preparing the technical infrastructure for interconnecting their criminal records databases. The Commission may provide reference implementation software, namely appropriate software enabling Member States to make this interconnection, which they may choose to apply instead of their own interconnection software implementing a common set of protocols enabling the exchange of information between criminal records databases.

(18) Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (5) should apply in the context of computerised exchange of information extracted from criminal records of Member States, providing for an adequate level of data protection when information is exchanged between Member States, whilst allowing for Member States to require higher standards of protection to national data processing.

(19) Since the objective of this Decision, namely the development of a computerised system for the exchange of information on convictions between Member States, cannot be adequately achieved by the Member States unilaterally, and can therefore, by reason of the necessity for coordinated action in the European Union, be better achieved at the level of the European Union, the Council may adopt measures, in accordance with the principle of subsidiarity referred to in Article 2 of the Treaty on European Union and set out in Article 5 of the Treaty establishing the European Community. In accordance with the principle of proportionality, as set out in the Article 5 of the Treaty establishing the European Community, this Decision does not go beyond what is necessary in order to achieve that objective.

(20) This Decision respects fundamental rights and observes the principles recognised in particular by Article 6 of the Treaty on European Union and reflected by the Charter of Fundamental Rights of the European Union,

HAS DECIDED AS FOLLOWS:

Article 1

Subject matter

This Decision establishes the European Criminal Records Information System (ECRIS).

This Decision also establishes the elements of a standardised format for the electronic exchange of information extracted from criminal records between the Member States, in particular as regards information on the offence giving rise to the conviction and information on the content of the conviction, as well as other general and technical implementation means related to organising and facilitating the exchange of information.

Article 2

Definitions

For the purposes of this Decision, the definitions laid down in Framework Decision 2009/315/JHA shall apply.

Article 3

European Criminal Records Information System (ECRIS)

1. ECRIS is a decentralised information technology system based on the criminal records databases in each Member State. It is composed of the following elements:

(a) an interconnection software built in compliance with a common set of protocols enabling the exchange of information between Member States' criminal records databases;

(b) a common communication infrastructure that provides an encrypted network.

2. This Decision is not aimed at establishing any centralised criminal records database. All criminal records data shall be stored solely in databases operated by the Member States.

3. Central authorities of the Member States referred to in Article 3 of Framework Decision 2009/315/JHA shall not have direct online access to criminal records databases of other Member States. The best available techniques identified together by Member States with the support of the Commission shall be employed to ensure the confidentiality and integrity of criminal records information transmitted to other Member States.

4. The interconnection software and databases storing, sending and receiving information extracted from criminal records shall operate under the responsibility of the Member State concerned.

5. The common communication infrastructure shall be the S-TESTA communications network. Any further developments thereof or any alternative secure network shall ensure that the common communication infrastructure in place continues to meet the conditions set out in paragraph 6.

6. The common communication infrastructure shall be operated under the responsibility of the Commission, and shall fulfil the security requirements and thoroughly respond to the needs of ECRIS.

7. In order to ensure the efficient operation of ECRIS, the Commission shall provide general support and technical assistance, including the collection and drawing up of statistics referred to in Article 6(2)(b)(i) and the reference implementation software.

8. Notwithstanding the possibility of using the European Union financial programmes in accordance with the applicable rules, each Member State shall bear its own costs arising from the implementation, administration, use and maintenance of its criminal records database and the interconnection software referred to in paragraph 1.

The Commission shall bear the costs arising from the implementation, administration, use, maintenance and future developments of the common communication infrastructure of ECRIS, as well as the implementation and future developments of the reference implementation software.

Article 4

Format of transmission of information

1. When transmitting information in accordance with Article 4(2) and (3) and Article 7 of Framework Decision 2009/315/JHA relating to the name or legal classification of the offence and to the applicable legal provisions, Member States shall refer to the corresponding code for each of the offences referred to in the transmission, as provided for in the table of offences in Annex A. By way of exception, where the offence does not correspond to any specific sub-category, the ‘open category’ code of the relevant or closest category of offences or, in the absence of the latter, an ‘other offences’ code, shall be used for that particular offence.

Member States may also provide available information relating to the level of completion and the level of participation in the offence and, where applicable, to the existence of total or partial exemption from criminal responsibility or to recidivism.

2. When transmitting information in accordance with Article 4(2) and (3) and Article 7 of Framework Decision 2009/315/JHA relating to the contents of the conviction, notably the sentence as well as any supplementary penalties, security measures and subsequent decisions modifying the enforcement of the sentence, Member States shall refer to the corresponding code for each of the penalties and measures referred to in the transmission, as provided for in the table of penalties and measures in Annex B. By way of exception, where the penalty or measure does not correspond to any specific sub-category, the ‘open category’ code of the relevant or closest category of penalties and measures or, in the absence of the latter, an ‘other penalties and measures’ code, shall be used for that particular penalty or measure.

Member States shall also provide, where applicable, available information relating to the nature and/or conditions of execution of the penalty or measure imposed as provided for in the parameters of Annex B. The parameter ‘non-criminal ruling’ shall be indicated only in cases where information on such a ruling is provided on a voluntary basis by the Member State of nationality of the person concerned, when replying to a request for information on convictions.

Article 5

Information on national offences and penalties and measures

1. The following information shall be provided by the Member States to the General Secretariat of the Council, with a view in particular to drawing up the non-binding manual for practitioners referred to in Article 6(2)(a):

(a) the list of national offences in each of the categories referred to in the table of offences in Annex A. The list shall include the name or legal classification of the offence and reference to the applicable legal provisions. It may also include a short description of the constitutive elements of the offence;

(b) the list of types of sentences, possible supplementary penalties and security measures and possible subsequent decisions modifying the enforcement of the sentence as defined in national law, in each of the categories referred to in the table of penalties and measures in Annex B. It may also include a short description of the specific penalty or measure.

2. The lists and descriptions referred to in paragraph 1 shall be regularly updated by Member States. Updated information shall be sent to the General Secretariat of the Council.

3. The General Secretariat of the Council shall communicate to the Member States and to the Commission the information received pursuant to this Article.

Article 6

Implementing measures

1. The Council, acting by a qualified majority and after consulting the European Parliament, shall adopt any modifications of Annexes A and B as may be necessary.

2. The representatives of the relevant departments of the administrations of the Member States and the Commission shall inform and consult one another within the Council with a view to:

(a) drawing up a non-binding manual for practitioners setting out the procedure for the exchange of information through ECRIS, addressing in particular the modalities of identification of offenders, as well as recording the common understanding of the categories of offences and penalties and measures listed respectively in Annexes A and B;

(b) coordinating their action for the development and operation of ECRIS, concerning in particular: (i) the establishment of logging systems and procedures making it possible to monitor the functioning of ECRIS and the establishment of non-personal statistics relating to the exchange through ECRIS of information extracted from criminal records; (ii) the adoption of technical specifications of the exchange, including security requirements, in particular the common set of protocols; (iii) the establishment of procedures verifying the conformity of the national software applications with the technical specifications.

Article 7

Report

The Commission services shall regularly publish a report concerning the exchange, through ECRIS, of information extracted from the criminal record based in particular on the statistics referred to in Article 6(2)(b)(i). This report shall be published for the first time one year after submitting the report referred to in Article 13(3) of Framework Decision 2009/315/JHA.

Article 8

Implementation and time limits

1. Member States shall take the necessary measures to comply with the provisions of this Decision by 7 April 2012.

2. Member States shall use the format specified in Article 4 and comply with the means of organising and facilitating exchanges of information laid down in this Decision from the date notified in accordance with Article 11(6) of Framework Decision 2009/315/JHA.

Article 9

Taking of effect

This Decision shall take effect on the day of its publication in the Official Journal of the European Union.

Done at Luxembourg, 6 April 2009. For the Council The President J. POSPÍŠIL

(1) See page 23 of this Official Journal.

(2) Opinion delivered on 9 October 2008 (not yet published in the Official Journal).

(3) OJ C 53, 3.3.2005, p. 1.

(4) OJ C 198, 12.8.2005, p. 1.

(5) OJ L 350, 30.12.2008, p. 60.

ANNEX A Common table of offences categories referred to in Article 4 Parameters Level of completion: Completed act C Attempt or preparation A Non-transmitted element Ø Level of participation: Perpetrator M Aider and abettor or instigator/organiser, conspirator H Non-transmitted element Ø Exemption from criminal responsibility: Insanity or diminished responsibility S Recidivism R

Code Categories and sub-categories of offences 0100 00 open category Crimes within the jurisdiction of the International Criminal Court 0101 00 Genocide 0102 00 Crimes against humanity 0103 00 War crimes 0200 00 open category Participation in a criminal organisation 0201 00 Directing a criminal organisation 0202 00 Knowingly taking part in the criminal activities of a criminal organisation 0203 00 Knowingly taking part in the non-criminal activities of a criminal organisation 0300 00 open category Terrorism 0301 00 Directing a terrorist group 0302 00 Knowingly participating in the activities of a terrorist group 0303 00 Financing of terrorism 0304 00 Public provocation to commit a terrorist offence 0305 00 Recruitment or training for terrorism 0400 00 open category Trafficking in human beings 0401 00 Trafficking in human beings for the purposes of labour or services exploitation 0402 00 Trafficking in human beings for the purposes of the exploitation of the prostitution of others or other forms of sexual exploitation 0403 00 Trafficking in human beings for the purposes of organ or human tissue removal 0404 00 Trafficking in human beings for the purpose of slavery, practices similar to slavery or servitude 0405 00 Trafficking in human beings for the purposes of labour or services exploitation of a minor 0406 00 Trafficking in human beings for the purposes of the exploitation of the prostitution of minors or other forms of their sexual exploitation 0407 00 Trafficking in human beings for the purposes of organ or human tissue removal of a minor 0408 00 Trafficking in human beings for the purpose of slavery, practices similar to slavery or servitude of a minor 0500 00 open category Illicit trafficking (1) and other offences related to weapons, firearms, their parts and components, ammunition and explosives 0501 00 Illicit manufacturing of weapons, firearms, their parts and components, ammunition and explosives 0502 00 Illicit trafficking of weapons, firearms, their parts and components ammunition and explosives at national level (2) 0503 00 Illicit exportation or importation of weapons, firearms, their parts and components, ammunition and explosives 0504 00 Unauthorised possession or use of weapons, firearms, their parts and components, ammunition and explosives 0600 00 open category Environmental crime 0601 00 Destroying or damaging protected fauna and flora species 0602 00 Unlawful discharges of polluting substances or ionising radiation into air, soil or water 0603 00 Offences related to waste, including hazardous waste 0604 00 Offences related to illicit trafficking (1) in protected fauna and flora species or parts thereof 0605 00 Unintentional environmental offences 0700 00 open category Offences related to drugs or precursors, and other offences against public health 0701 00 Offences related to illicit trafficking (3) in narcotic drugs, psychotropic substances and precursors not exclusively for own personal consumption 0702 00 Illicit consumption of drugs and their acquisition, possession, manufacture or production exclusively for own personal consumption 0703 00 Aiding or inciting others to use narcotic drugs or psychotropic substances illicitly 0704 00 Manufacture or production of narcotic drugs not exclusively for personal consumption 0800 00 open category Crimes against the person 0801 00 Intentional killing 0802 00 Aggravated cases of intentional killing (4) 0803 00 Unintentional killing 0804 00 Intentional killing of a new-born by his/her mother 0805 00 Illegal abortion 0806 00 Illegal euthanasia 0807 00 Offences related to committing suicide 0808 00 Violence causing death 0809 00 Causing grievous bodily injury, disfigurement or permanent disability 0810 00 Unintentionally causing grievous bodily injury, disfigurement or permanent disability 0811 00 Causing minor bodily injury 0812 00 Unintentionally causing minor bodily injury 0813 00 Exposing to danger of loss of life or grievous bodily injury 0814 00 Torture 0815 00 Failure to offer aid or assistance 0816 00 Offences related to organ or tissue removal without authorisation or consent 0817 00 Offences related to illicit trafficking (3) in human organs and tissue 0818 00 Domestic violence or threat 0900 00 open category Offences against personal liberty, dignity and other protected interests, including racism and xenophobia 0901 00 Kidnapping, kidnapping for ransom, illegal restraint 0902 00 Unlawful arrest or deprivation of liberty by public authority 0903 00 Hostage-taking 0904 00 Unlawful seizure of an aircraft or ship 0905 00 Insults, slander, defamation, contempt 0906 00 Threats 0907 00 Duress, pressure, stalking, harassment or aggression of a psychological or emotional nature 0908 00 Extortion 0909 00 Aggravated extortion 0910 00 Illegal entry into private property 0911 00 Invasion of privacy other than illegal entry into private property 0912 00 Offences against protection of personal data 0913 00 Illegal interception of data or communication 0914 00 Discrimination on grounds of gender, race, sexual orientation, religion or ethnic origin 0915 00 Public incitement to racial discrimination 0916 00 Public incitement to racial hatred 0917 00 Blackmail 1000 00 open category Sexual offences 1001 00 Rape 1002 00 Aggravated rape (5) other than rape of a minor 1003 00 Sexual assault 1004 00 Procuring for prostitution or sexual act 1005 00 Indecent exposure 1006 00 Sexual harassment 1007 00 Soliciting by a prostitute 1008 00 Sexual exploitation of children 1009 00 Offences related to child pornography or indecent images of minors 1010 00 Rape of a minor 1011 00 Sexual assault of a minor 1100 00 open category Offences against family law 1101 00 Illicit sexual relations between close family members 1102 00 Polygamy 1103 00 Evading the alimony or maintenance obligation 1104 00 Neglect or desertion of a minor or a disabled person 1105 00 Failure to comply with an order to produce a minor or removal of a minor 1200 00 open category Offences against the State, public order, course of justice or public officials 1201 00 Espionage 1202 00 High treason 1203 00 Offences related to elections and referendum 1204 00 Attempt against life or health of the Head of State 1205 00 Insult of the State, Nation or State symbols 1206 00 Insult or resistance to a representative of public authority 1207 00 Extortion, duress, pressure towards a representative of public authority 1208 00 Assault or threat on a representative of public authority 1209 00 Public order offences, breach of the public peace 1210 00 Violence during sports events 1211 00 Theft of public or administrative documents 1212 00 Obstructing or perverting the course of justice, making false allegations in the course of criminal or judicial proceedings, perjury 1213 00 Unlawful impersonation of a person or an authority 1214 00 Escape from lawful custody 1300 00 open category Offences against public property or public interests 1301 00 Public, social security or family benefit fraud 1302 00 Fraud affecting European benefits or allowances 1303 00 Offences related to illegal gambling 1304 00 Obstructing of public tender procedures 1305 00 Active or passive corruption of a civil servant, a person holding public office or public authority 1306 00 Embezzlement, misappropriation or other diversion of property by a public official 1307 00 Abuse of a function by a public official 1400 00 open category Tax and customs offences 1401 00 Tax offences 1402 00 Customs offences 1500 00 open category Economic and trade related offences 1501 00 Bankruptcy or fraudulent insolvency 1502 00 Breach of accounting regulation, embezzlement, concealment of assets or unlawful increase in a company’s liabilities 1503 00 Violation of competition rules 1504 00 Laundering of proceeds from crime 1505 00 Active or passive corruption in the private sector 1506 00 Revealing a secret or breaching an obligation of secrecy 1507 00 ‘Insider trading’ 1600 00 open category Offences against property or causing damage to goods 1601 00 Unlawful appropriation 1602 00 Unlawful appropriation or diversion of energy 1603 00 Fraud, including swindling 1604 00 Dealing in stolen goods 1605 00 Illicit trafficking (6) in cultural goods, including antiques and works of art 1606 00 Intentional damage or destruction of property 1607 00 Unintentional damage or destruction of property 1608 00 Sabotage 1609 00 Offences against industrial or intellectual property 1610 00 Arson 1611 00 Arson causing death or injury to persons 1612 00 Forest arson 1700 00 open category Theft offences 1701 00 Theft 1702 00 Theft after unlawful entry into property 1703 00 Theft, using violence or weapons, or using threat of violence or weapons against person 1704 00 Forms of aggravated theft which do not involve use of violence or weapons, or use of threat of violence or weapons, against persons. 1800 00 open category Offences against information systems and other computer-related crime 1801 00 Illegal access to information systems 1802 00 Illegal system interference 1803 00 Illegal data interference 1804 00 Production, possession, dissemination of or trafficking in computer devices or data enabling commitment of computer-related offences 1900 00 open category Forgery of means of payment 1901 00 Counterfeiting or forging currency, including the euro 1902 00 Counterfeiting of non-cash means of payment 1903 00 Counterfeiting or forging public fiduciary documents 1904 00 Putting into circulation/using counterfeited or forged currency, non-cash means of payment or public fiduciary documents 1905 00 Possession of a device for the counterfeiting or forgery of currency or public fiduciary documents 2000 00 open category Falsification of documents 2001 00 Falsification of a public or administrative document by a private individual 2002 00 Falsification of a document by a civil servant or a public authority 2003 00 Supply or acquisition of a forged public or administrative document; supply or acquisition of a forged document by a civil servant or a public authority 2004 00 Using forged public or administrative documents 2005 00 Possession of a device for the falsification of public or administrative documents 2006 00 Forgery of private documents by a private individual 2100 00 open category Offences against traffic regulations 2101 00 Dangerous driving 2102 00 Driving under the influence of alcohol or narcotic drugs 2103 00 Driving without a licence or while disqualified 2104 00 Failure to stop after a road accident 2105 00 Avoiding a road check 2106 00 Offences related to road transport 2200 00 open category Offences against labour law 2201 00 Unlawful employment 2202 00 Offences relating to remuneration, including social security contributions 2203 00 Offences relating to working conditions, health and safety at work 2204 00 Offences relating to access to or exercise of a professional activity 2205 00 Offences relating to working hours and rest time 2300 00 open category Offences against migration law 2301 00 Unauthorised entry or residence 2302 00 Facilitation of unauthorised entry and residence 2400 00 open category Offences against military obligations 2500 00 open category Offences related to hormonal substances and other growth promoters 2501 00 Illicit importation, exportation or supply of hormonal substances and other grown promoters 2600 00 open category Offences related to nuclear materials or other hazardous radioactive substances 2601 00 Illicit importation, exportation, supply or acquisition of nuclear or radioactive materials 2700 00 open category Other offences 2701 00 Other intentional offences 2702 00 Other unintentional offences (1) Unless otherwise specified in this category, ‘trafficking’ means import, export, acquisition, sale, delivery, movement or transfer. (2) For the purpose of this sub-category trafficking includes acquisition, sale, delivery, movement or transfer. (3) For the purpose of this sub-category trafficking includes import, export, acquisition, sale, delivery, movement or transfer. (4) For example: particularly grave circumstances. (5) For example rape with particular cruelty. (6) Trafficking includes import, export, acquisition, sale, delivery, movement or transfer.