1999/364/JHA: Common Position of 27 May 1999 adopted by the Council on the basis of Article 34 of the Treaty on European Union, on negotiations relating to the Draft Convention on Cyber Crime held in the Council of Europe
Date: 1999-05-27
Institutions: Council of the European Union
Subjects: EU Member State, European Union, computer crime, legal cooperation, new technology

5. 6. 1999

EN

Official Journal of the European Communities

L 142/1

(Acts adopted pursuant to Title VI of the Treaty on European Union)

COMMON POSITION

of 27 May 1999

adopted by the Council on the basis of Article 34 of the Treaty on European
Union, on negotiations relating to the Draft Convention on Cyber Crime held in
the Council of Europe

(1999/364/JHA)

THE COUNCIL OF THE EUROPEAN UNION,

HAS ADOPTED THIS COMMON POSITION:

Having regard to the Treaty on European Union, and in
particular Article 34(2)(a) thereof,

Recognising the importance of developing effective
means of preventing and combating the misuse of new
technologies which are increasingly being used,

Whereas the European Council meeting in Amsterdam in
June 1997 approved the action plan of the High-Level
Group on Organised Crime, which, inter alia, contains
proposals for strengthening the fight against high-tech
crime;

Taking into account the measures that have already been
adopted by the European Union or are in the course of
preparation or adoption relating to the fight against high-
tech crime;

Whereas arrangements have been made for the develop-
ment and negotiation of a Council of Europe Convention
on Cyber Crime;

Whereas in the paper ‘Elements of the Union’s strategy
against high-tech crime', which was approved by the
Council on 3 December 1998, Member States were
requested to concentrate their efforts in this field, for
example through the adoption of common positions
regarding the work of other international forums in the
area of high-tech crime;

Taking into account the European Union’s Joint Action
concerning action to combat racism and xenophobia;

Having regard to the Europan Union’s ‘Action plan on
promoting the safe use of the Internet',

Desiring to contribute as fully as possible to the nego-
tiations of the proposed Convention on Cyber Crime and
to avoid incompatibility between that Convention and
instruments drawn up in the European Union,

Article 1

1. Member States shall support the drawing up of the
Council of Europe’s draft Convention on Cyber Crime
(hereinafter referred to as ‘the Convention'). They shall
advocate the inclusion in the Convention of provisions
which will facilitate the effective investigation and prose-
cution of criminal offences related to computer systems
and data.

the substantive criminal

2.
The provisions of the Convention should adequately
supplement
law and should
integrity
encompass crimes against the confidentiality,
and availability of computer data, computer-related
offences such as computer fraud and forgery and content-
related offences such as in the field of child pornography.
Member States should ensure that the definition of the
offences related to the field of child pornography deal
with a wide range of specific criminal activities. Further-
more, Member States shall advocate, where appropriate,
the inclusion of rules which call for the application of
content-related offences to conduct committed by means
of a computer system.

3. Member States shall ensure that appropriate jurisdic-
tion is established over the offences provided for in the
Convention.

4. Member States should support the establishment of
provisions, which will facilitate international cooperation
including provisions concerning mutual legal assistance
to the widest extent possible. The Convention should
facilitate the swift cooperation regarding computer-related
and computer-aided offences. This form of cooperation
may include the setting of 24-hour law enforcement
points of contact, which supplement existing structures of
mutual assistance.

L 142/2

EN

Official Journal of the European Communities

5. 6. 1999

5. Member States should support provisions which, as a
subsidiary measure, provide for Parties to the Convention
to preserve as far as necessary stored data on request of
another Party, the procedure of preservation being in
accordance with their national law.

the inclusion of
6. Member States should support
provisions by which the Contracting Parties
to the
Convention undertake to provide for an expedited search
of data stored in their own territory regarding the investi-
gation of serious criminal offences.

7.
Subject to constitutional principles and specific safe-
guards in order to respect appropriately the sovereignty,
security, public policy or other essential interests of other
States, a transborder computer search for the purpose of
the investigation of a serious criminal offence,
to be
further defined in the Convention, may be considered in
exceptional cases, and in particular where there is an
emergency, for example, as far as necessary to prevent the
destruction or alteration of evidence of
the serious
offence, or to prevent the commission of an offence that
is likely to result in the death of or serious physical injury
to, a person.

Provisions

8.
searches
transborder
relating to serious criminal offences should be fully

computer

for

consistent with the instruments of the European Union
regarding the access to and use of traffic data.

Article 2

In the consultations on the Convention, Member States
shall, as far as is practicable, coordinate their positions, at
the Presidency’s initiative, and seek to arrive at common
standpoints on all issues which have significant implica-
the European Union. The
tions for
Commission shall be fully associated with this work.

the interests of

Article 3

The Council shall endeavour to achieve further common
positions, as necessary, in relation to the Convention.

Article 4

This Common Position shall be published in the Official
Journal.

Done at Brussels, 27 May 1999.

For the Council

The President

O. SCHILY