EUROPEAN COMMISSION Strasbourg, 19.1.2016 COM(2016) 6 final REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Council Framework Decision 2009/315/JHA of

26 February 2009 on the organisation and content of the exchange of information extracted from criminal record between Member States



Introduction In a European area of Freedom, Security and Justice, every effort must be made to ensure an effective European response to criminal activities, in particular serious cross-border crime and terrorism. The European Agenda on Security highlights the need to maximise EU measures on information exchange and operational cooperation. The rapid and efficient exchange between competent Member State authorities of information extracted from criminal records is important if we are to avoid national courts passing sentences on the sole basis of past convictions registered in national criminal records, with no knowledge of convictions in other Member States, thus allowing criminals to escape their past by moving between Member States. Framework Decision 2008/675/JHA requires Member States to ensure that previous convictions are taken into account in the course of criminal procedures. Council Framework Decision 2009/315/JHA on the organisation and content of the exchange of information extracted from the criminal record between Member States (the ‘Framework Decision’ or ‘FD’) aims to address these shortcomings by stipulating that information on any EU citizen’s previous convictions by any criminal court in the EU is available to all Member State courts and law-enforcement authorities for criminal proceedings in the pre-trial and trial stages and the execution of the conviction. By imposing a series of obligations on the convicting Member State and the Member State of nationality, the Framework Decision ensures that each Member State can provide exhaustive and complete information in relation to the criminal records of its nationals upon request by another Member State. The Framework Decision is based on the principle that each Member State stores all convictions against its nationals, including those handed down in other Member States. The exchange of information is organised on a decentralised basis between the central authorities designated by the Member States, for the purpose of criminal proceedings or for other purposes in accordance with national law. It thus contributes to the implementation of the principle of mutual recognition of judgments in criminal matters and also allows national authorities to obtain criminal record information that may be of relevance for certain activities (e.g. employment at in childcare). The Framework Decision provided a foundation for a computerised system allowing faster and easier transmission of information on criminal convictions. The European Criminal Records Information System (ECRIS) was established by Council Decision 2009/316/JHA and has been operational since April 2012. Currently, 25 Member States exchange information via ECRIS . The annual volume exchange has reached over 1.8 million messages (including notifications, requests and responses to requests) by the end of 2015. On average, over 24 000 requests are made each per month, with over 30 % leading to a ‘positive hit’. Evaluation of implementation In accordance with Article 13 FD, the Commission received notifications of national transposition laws from 22 Member States: AT, BE, BG, CY, CZ, DE, EE, ES, FI, FR, HR, HU, LT, LU, LV, NL, PL, PT, SE, SI, SK and UK. This report is based on the transposition provisions of these Member States. Thus, where the term ‘all Member States’ is used in this report, it refers to the Member States having notified national transposition. Six Member States (DK, EL, IE, IT, MT and RO) have not yet notified measures transposing the obligations under the Framework Decision, but five of these (DK, EL, IE, IT and RO) exchange criminal record information through the ECRIS system. The Member States have taken various approaches to transpose the Framework Decision into their national legislation. AT, BG, CZ, DE, FR, HU, SE and SK have amended multiple national acts; EE, NL, PL and PT have amended their national criminal records act. In addition to these amendments, FI and BE adopted or proposed separate implementing acts. ES and LU only adopted a separate implementing act. HR, LT and LV adopted new legislation regulating matters concerning criminal records in general, and some specific secondary acts. Two Member States adopted new legislation that was wider in scope (SI: a law on international cooperation in criminal matters; UK: a law on criminal law and data protection). In CY, the text of the Framework Decision was directly integrated into national law. In accordance with Article 10(3) of Protocol No 36 on transitional provisions, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union are fully applicable as of 1 December 2014. As of that date, the Commission is therefore in a position to launch infringement proceedings against Member States that have not or not correctly transposed a Framework Decision. 1. Definition of ‘conviction’ The definition of ‘conviction’ in Article 2(a) FD covers only final decisions of criminal courts against a natural person in respect of a criminal offence to the extent that these decisions are entered in the criminal record of the convicting Member State. The ‘criminal record’ is the national register recording these convictions; Member States may have several registers. They may agree bilaterally or multilaterally, in accordance with Article 12(5) FD, on a wider scope of information to be exchanged. Some Member States (AT, CY, CZ, FI, PL, PT, SK and UK) adopted the definition in the Framework Decision; for BG and HU, this can be inferred from the general context of the legislation. In a considerable number of Member States (BE, DE, EE, HR, LU, NL, SE and SI), ‘conviction’ seems to go beyond decisions of criminal courts only. For example, NL would also exchange decisions taken by a prosecutor and, in some cases, judicial data on investigations or on-going cases. Several Member States (ES, FR, LT and LV) did not provide an explicit definition of what they consider to be a ‘conviction’ for the purposes of the Framework Decision. 2. Central authorities In 17 Member States (BE, BG, CZ, DE, EE, EL, ES, FI, FR, HR, IT, LU, NL, PL, PT, SI and SK), criminal records are under the responsibility of the Ministry of Justice and in 11 (AT, CY, DK, HU, IE, LT, LV, MT, RO, SE and UK) of the Ministry of Interior . In the Ministries of Justice, the majority of Member States nominated their criminal records offices as the central authorities for the purposes of the Framework Decision; LU and SK nominated the general public prosecutor’s office. In the Ministries of Interior, Member States nominated the relevant departments of police. In accordance with Article 3(1) FD, two Member States appointed more one central authority at national level: four in the case of CY and two in the case of CZ. 3. Obligations of the convicting Member State 3.1. Registering information on the nationality of the convicted person Article 4(1) FD requires each Member State to ensure that all convictions of nationals of another Member State are accompanied by information on the nationality or nationalities of the convicted person, when provided to its criminal record. Otherwise, the convicting Member State would not be able to transmit information to the Member State of the person’s nationality, and the principle of centralising information in one place would not work.

Almost all Member States (AT, BE, BG, CY, DE, EE, ES, FI, FR, HR, HU, LT, LU, LV, NL, PL, PT, SI, SK and UK) included a direct reference to nationality in their national criminal records, by including ‘nationality’ in the list of identification details of the convicted person to be entered in the criminal records and/or by introducing a provision explicitly creating such an obligation. In CZ and SE, this obligation can be deduced from the general context of the legislative acts. HU, LU and NL also register information on previously-held nationalities. NL has a provision ensuring that data are passed on between Member States in the event of a change of nationality by an offender. 3.2. Notifications of convictions The Framework Decision obliges the convicting Member State to send information on convictions handed down within its territory (‘notifications’) as soon as possible to the offender’s Member State of nationality. If the person has several nationalities, the notification should be sent to all the Member States in question, even if he/she is also a national of the convicting Member State. Almost all Member States (AT, BE, BG, CY, CZ, EE, ES, FI, FR, HR, HU, LT, LU, LV, NL, PL, PT, SE, SI, SK and UK) fully transposed the notification obligation. While most indicated that the notification should be sent ‘immediately’, ‘without delay’, ‘as soon as possible’ or ‘when entered in the criminal record’, three introduced a concrete deadline for transmission. This ranges from ‘the next working day at the latest’ (LT), through 10 days (CZ) to two months after the entry of the information in the criminal records (ES). DE and PT seem not to have stipulated in their national law when such notifications should be sent; in practice, however, DE complies with the requirement in Article 4(2) FD. Under Article11(1) FD, the convicting Member State should include in its notification to the Member State of nationality ‘obligatory’ information on the convicted person, the nature of the conviction, the offence giving rise to the conviction and the contents of the conviction. It should also transmit ‘optional’ information if entered in the criminal record and ‘additional’ information if available to the central authority. While the vast majority of the Member States (AT, BE, BG, CY, DE, EE, ES, FR, HR, HU, LT, LU, NL, PL, PT, SI, SK and UK) register and transmit all the obligatory information, in four cases (CZ, FI, LV and SE) the implementing provisions are more general or include some specific conditions. For instance, FI includes ‘date, place and country of birth’ only in the absence of a ‘personal identification code’ and in LV ‘date of birth’ is included only in the absence of such a code. Only some Member States introduced explicit legal provisions allowing for registration and transmission of the ‘optional’ and ‘additional’ information. In order to ensure that information on convictions can be transmitted to the Member State of the person’s nationality as soon as possible, it must be available promptly in the criminal records register. To that end, beyond their legal obligations under the Framework Decision, some Member States (e.g. CZ, DE, EE, LU and LV) imposed an additional obligation on the courts to deliver the information on convictions to the criminal records register. 3.3. Updates To ensure that information is exhaustive and up to date, Article 4(3) FD requires the convicting Member State immediately to notify the Member State of nationality of any subsequent alterations or deletion of information in previous notifications. Almost all Member States (AT, BE, BG, CY, DE, EE, ES, FI, FR, HR, HU, LT, LU, LV, PL, PT, SE, SI, SK and UK) implemented this provision, explicitly referring to the transmission of updates. In the case of CZ, the obligation can be deduced from the context. NL included a provision on correcting and erasing ‘inaccurate data’ in previous notifications. 3.4. Providing additional information At the request of the Member State of nationality and in individual cases, the convicting Member State is obliged to provide a copy of convictions and subsequent measures and other information relevant thereto. Member States may appoint an additional central authority for the transmission of such information. The majority of Member States (AT, BE, BG, CY, CZ, FI, HR, LT, LU, LV, NL, SI, SK and UK) transposed Article 4(4) FD in its entirety. BG appears to be sending transcripts of judgments not on request in individual cases, but automatically for all notifications. In many Member States, copies of judgments are not directly available to the central authorities or in the criminal records. Some Member States (CZ, LT, LV and SK) therefore imposed an explicit obligation on their courts or relevant state authorities to provide the central authority with the requested information. AT forwards such requests to its courts for further action. CZ and CY appointed additional central authorities that have direct access to copies of judgments to deal with Article 4(4) requests. PT does not explicitly refer to an obligation to respond to such requests, but its central authority may request copies of judgments from the issuing courts for the purpose of responding to requests from other Member States. A considerable number of Member States (DE, EE, ES, FR, HU, PL and SE) have not adopted relevant provisions. FR and PL informed the Commission that they do transmit such information, but via the channels of the MLA Convention, as their central authorities do not have direct access to the copies of judgments. 4. Obligations of the Member State of nationality 4.1. Storage of information for the purpose of retransmission Article 5(1) FD requires the Member State of the person’s nationality to store all information transmitted to it for the purpose of retransmission, but leaves it to each Member State to decide how to store the information. As information on convictions handed down in other Member States is kept for retransmission purposes only, it should be stored regardless of whether a certain offence is also punishable under the law of the Member State of nationality. Almost all Member States (AT, BE, BG, CZ, CY, DE, EE, ES, FI, FR, HR, HU, LT, LU, LV, NL, PL, PT, SE, SK and UK) introduced an explicit provision on the storage obligation into their legislation. Most stipulated that all information received from other Member States is to be stored in their criminal records, i.e. independently of whether the offence is punishable also under their law. AT, LT and PT made this explicit in their provisions. SI does not appear to have included a provision on storage obligations in its law. Article 11(2) FD determines which categories of data received from the convicting Member State in relation to a person convicted abroad should be stored by the Member State of nationality. While the vast majority of the Member States (AT, BE, BG, CY, DE, EE, FI, FR, HR, HU, LT, LU, NL, PL, SK and UK) store all the required information, three (CZ, LV and SE) have adopted implementing provisions that do not specify what information needs to be stored, but are more general or include specific conditions. ES and PT have not provided lists of stored information, but established a general obligation to store all information transmitted by other Member States. Almost all Member States register information on foreign convictions of their citizens received from other Member States in their existing criminal records databases. Four (BG, FI, HU and PT) have chosen to create separate registers for storing such convictions for the purpose of retransmission. In the vast majority, there is one criminal records office with one or more criminal records register. Some (e.g. BG) have a decentralised structure of entities responsible for storing data.

4.2. Updating information Under Article 5(2) and (3) FD, when the Member State of nationality receives notification of any alteration or deletion of information previously notified by a convicting Member State, it is obliged to amend or delete the information accordingly. This must not, however, lead to persons being treated less favourably than if they had been convicted by their national court. For instance, where national rules on retention and deletion of information would have prompted the deletion of a certain conviction, the Member State of the person’s nationality may no longer use such information in national proceedings; it must, however, always be able to transmit such information to another Member State on request. The Framework Decision thus establishes the principle of ‘dual legal regime’, depending on whether information is used internally in the Member State of nationality or transmitted to another Member State. The vast majority of the Member States (AT, BE, BG, CY, CZ, DE, ES, FI, FR, HR, HU, LV, NL, PL, PT, SK and UK) implemented these provisions, explicitly referring to the registering of updates. Some (e.g. BE, HR, HU and UK) provided that only the updated information may be retransmitted further. FR and PT developed the ‘dual legal regime’ principle in more detail, providing that deletion of a foreign conviction from their national registers in accordance with national rules does not prevent its transmission to another Member State unless it was deleted in the convicting Member State. In LT’s provisions, the update obligation, although not explicit, can be inferred from the context. SE does not mention the registering of amendments, only deletion. In EE, only the deletion obligation can be inferred from the reference to the relevant legislation, not the amendment obligation. Two Member States provide for the compulsory deletion of foreign convictions of their citizens after a maximum of five years (DE) or 20 years (SE) from the conviction date, if deletion information has not been received from the convicting Member State in the meantime. LU and SI seem not to have regulated updates. In addition to updates of stored information, NL introduced a specific form of updates of information provided previously to another Member State in response to a request, if this information changed within a year of being provided. 5. Replies to requests for information 5.1. Requests for criminal proceedings The Framework Decision requires the Member State of nationality to reply to other Member States’ requests for information on its nationals for the purpose of criminal proceedings. The criminal proceedings encompass the pre-trial and trial stages and the execution of the conviction. The reply includes information on national convictions, convictions handed down in other Member States and obligatorily transmitted after 27 April 2012, or transmitted by them before that date and entered in the criminal record. This obligation also covers convictions handed down in third countries and entered in the criminal record of the Member State of nationality. All Member States (AT, BE, BG, CY, CZ, DE, EE, ES, FI, FR, HR, HU, LT, LU, LV, NL, PL, PT, SE, SI, SK, UK)transposed Article 7(1) FD in its entirety into their national law. The majority have taken over the exact list of categories of information as provided in the Article. The others provided for an obligation to respond with the relevant information included in their register (DE, EE, FI, HU, LV, NL and PL) or in a national extract issued for criminal purposes (FR and LU). EE would also send a copy of the conviction. 5.2. Requests for purposes other than criminal proceedings Article 7(2) FD stipulates that, if information is requested for purposes other than criminal proceedings (this applies to around 20 % of all requests), the central authorities may reply in accordance with national law. The information that may be included in the reply is potentially the same as in the case of requests for the purposes of criminal proceedings, depending on the national law, which might regulate differently the scope of information or arrangements for its provision. Additionally, the Framework Decision lays down specific rules for transmitting information that the convicting Member State has declared not retransmissible for purposes other than criminal proceedings. In such cases, the Member State of nationality would need to tell the requesting Member State to contact the convicting Member State directly. This ensures a high level of protection for personal data transmitted by the convicting Member State to the Member State of nationality. Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children contains special provisions in Article 10(3) laying down an obligation of Member States to transmit information on criminal convictions for child sex abuse offences and resulting disqualifications, following a request under Article 6 FD, in order to ensure that employers can become aware of those convictions when recruiting a person for professional or voluntary activities involving direct and regular contacts with children. The implementation by Member States of these special provisions will be dealt with in the specific implementation report on Directive 2011/93/EU. All Member States transposed Article 7(2) FD into their national law, but the detailed provisions vary considerably. The majority (BE, BG, CZ, CY, DE, EE, ES, FR, HR, LT, NL, SE, SI and UK) would reply to requests for other purposes in accordance with their national rules; more specifically: BE would respond in accordance with the BE code of criminal procedure; CZ and DE would not send certain convictions handed down in other Member States that their national courts would not regard as convictions as well; DE and ES would send information for the same purposes and to the same extent as to their respective national authorities; EE would reply where permitted under its criminal records act; FR referred to information included in a national extract issued for purposes other than criminal proceedings; HR would reply in certain specified situations; LT would reply without the consent of the convicted person if its national legislation restricts the person's rights and freedoms in a concrete case due to his/her conviction; otherwise the person's consent is needed; NL provides that a reply may be given after a careful assessment of each case; the scope of transmitted information would depend on this assessment;

in SE, the information would be given if SE is also entitled to receive such information from the requesting Member State; additionally, there are some categories of information that cannot be transmitted for purposes other than criminal proceedings; SI would exchange information only on national criminal convictions and those handed down in third countries, but not on convictions handed down in other Member States and transmitted to it; the UK stipulated that only ‘spent’ convictions, as defined in its national legislation, can be transmitted. Three Member States require additionally the consent of the person concerned if the reply is to be given: in ES, this is always the case, except where the law obliges an individual to present the criminal records extract; in LT, consent is required in those cases where the person’s rights and freedoms are not restricted by LT legislation due to his/her conviction; in LU, exchanges take place only for the purpose of working with children and consent is always required. AT, LV, PL and SK do not include a reference to national law in replies to requests for other purposes, nor any other information limitations, allowing in this way for transmissions comparable to those for criminal proceedings. Four Member States do not exchange information for purposes other than criminal proceedings, except for requests from an individual (FI, HU and PT) or for the purpose of working with children (thus implementing Directive 2011/93/EU) (LU). Two of these countries (HU and LU), together with SI, which does not transmit convictions handed down in other Member States, did not include in their provisions restrictions on transmitting information further in line with rules set by the convicting Member State. FI, HU, LU, SI, EE, FR and NL did not include an obligation to indicate the convicting Member State from which the restricted information can be obtained. While some Member States (e.g. BG, EE, and SE) have provided that, when sending notifications on convictions on their territory, they may restrict the further transmission of this information to criminal purposes only, notifications from ES and PT would always be restricted in this way. 5.3. Requests from a third country Under Article 7(3) FD, when replying to requests from third countries (i.e. non-EU countries), the Member State of nationality may, subject to the conditions in Article 7(1) and (2), transmit conviction information received from other Member States. In Member States’ legislation, the transmission of criminal records information to third countries is governed by conventions on mutual legal assistance, other international agreements or specific provisions in criminal records law. The vast majority of the Member States (BE, BG, CY, CZ, DE, EE, ES, FI, HR, HU, LV, NL, PL, SE, SI, SK and UK) explicitly included the Article 7(3) condition in their legislation. In LT, it can be deduced from the context. PT provides for requests from non-EU countries to be replied to under the terms of the applicable international agreements, subject to reciprocity. AT, FR and LU have not adopted provisions in this area. 5.4. Requests to a Member State other than the Member State of nationality It may be that a request for information is addressed to a Member State other than the Member State of nationality. For example, the convicting Member State may be asked for information on convictions prior to the entry into force of the Framework Decision that might not have been transmitted to the Member State of nationality, or a request may concern a third country national who does not have EU nationality also. Article 7(4) FD requires the Member State that receives the request to respond by providing the information it holds in its criminal record on convictions handed down in its territory and convictions on non-EU country nationals and stateless persons. The reply is subject to the same conditions as those in Article 13 of the MLA Convention, i.e. it is obligatory and must contain all information (in the case of requests for the purpose of criminal proceedings) or be in accordance with national law (in the case of requests for other purposes). As regards third country nationals, the ECRIS mechanism whereby ‘blanket’ requests are sent to all Member States in order to determine where such a person was convicted, combined with the Article 7(4) FD obligation to respond, produces a huge administrative burden for all Member States, including the Member States (the majority) that do not hold the requested information. For this reason, the Commission is proposing an amending directive on the exchange of criminal records information regarding third country nationals convicted in the EU. The vast majority of Member States (AT, BE, BG, CY, CZ, DE, EE, ES, FI, FR, HR, HU, LT, LV, NL, PL, PT, SE and UK) have implemented Article 7(4) FD in its entirety. Most (AT, CZ, DE, EE, ES, FI, FR, LT, NL, PL and SE) did not make any distinction between replies to requests regarding their own citizens, citizens of other Member States and third country nationals, for criminal proceedings or other purposes; all are governed by the same broad provisions. In addition to such provisions, two Member States stipulate more specifically that the information should be provided according to the MLA Convention (HU) or international treaties (LV). FI, HU and PT would reply to requests only for the purpose of criminal proceedings. BE, BG, CY, HR and UK adopted a separate provision, mostly reproducing the content of Article 7(4) FD, specifically for replies to requests regarding citizens of other Member States. Two other Member States have a similar separate provision, but in SI this addresses only replies concerning third country nationals and stateless persons (not the citizens of other Member States) and in SK it is mentioned only that the information should be provided to the extent required by international agreement. LU seems not to have transposed this provision. 5.5. Deadline for replies Replies to requests for the purpose of criminal proceedings and other purposes should be given immediately and in any event within ten working days, or 20 working days if the request is from an individual asking for information on his/her own record. If the Member State receiving the request requires further information to identify the subject of the request, it should consult the requesting Member State immediately and reply within ten working days of receiving the information. Almost all Member States (AT, BE, CY, CZ, BG, EE, ES, FI, FR, HR, HU, LT, LU, LV, NL, PL, SI, SK and UK) transposed the provisions on deadlines. HU and PL did not adopt detailed provisions on asking for additional information. CZ, NL and SK apply the tenday deadline also to requests from an individual. SE regulated replies to requests for criminal proceedings, but not for other purposes. DE did not mention the deadline for replies to requests in accordance with Article 6(1) FD, only for those from an individual. PT seems not to have laid down deadlines in its legislation.