Explanatory report on the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union (Text approved by the Council on 30 November 2000)
Date: 2000-11-30
Institutions: Council of the European Union
Subjects: EU Member State, European Union, cooperation policy, criminal procedure, exchange of information, judicial cooperation

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

EXPLANATORY REPORT

on the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the
Member States of the European Union

(Text approved by the Council on 30 November 2000)

(2000/C 379/02)

CONTENTS

I.

INTRODUCTION

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B.

Particular considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

II.

COMMENTS ON INDIVIDUAL ARTICLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Title I:

General provisions (Articles 1 to 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Page

8

8

9

9

Title II:

Requests for certain specific forms of mutual assistance (Articles 8 to 16)

. . . . . . . . .

14

Title III:

Interception of telecommunications general introduction and technical data (Articles
17 to 22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

Title IV:

Protection of personal data (Article 23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26

Title V:

Final provisions (Articles 24 to 30)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

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I.

INTRODUCTION

A.

BACKGROUND

The Convention on Mutual Assistance in Criminal Matters
between the Member States of the European Union (hereinafter
‘the Convention’) is the first to have been adopted in this field
since the entry into force of the Treaty on European Union. It
reflects the need, voiced in particular at the practitioners’
seminar held in April 1995, for the European Union to equip
itself with suitable instruments for judicial cooperation.

The experts who attended the seminar reviewed the mutual
assistance arrangements operating among the Member States
of the Union and concluded that those arrangements needed
to be improved to meet the demands arising in the field of
judicial cooperation. They recommended that a new instru-
ment should be developed for that purpose.

Building on the results of this seminar, a draft proposal for a
convention was introduced in April 1996. This text was later
strengthened by extending its scope to areas which were not
originally covered, in particular the interception of telecom-
munications. Work on the project continued through sub-
sequent Presidencies. In view of the complexity of certain
topics, the negotiations involved often required detailed and
time-consuming discussion.

On 29 May 2000 the Convention was established by the
Council and signed on the same day by all Member States (1).
Norway and Iceland informed the Council on the same day
that they were in agreement with the content of the provisions
of the Convention applicable to them, and in due time would
take the necessary measures to implement those provisions.

B.

PARTICULAR CONSIDERATIONS

In drawing up this new Convention, the Council did not decide
to frame a separate instrument (see in this connection the
explanations concerning Article 1). This is not solely due to
the provisions in Article 26(3) of the European Convention on
Mutual Assistance in Criminal Matters of 1959. In fact, the
that mutual assistance between the Member
Council
States already lay on solid foundations, which had largely
demonstrated their effectiveness, i.e. the European Convention
on Mutual Assistance in Criminal Matters and its 1978
Protocol, on the one hand, and the Convention of 14 June
1990 implementing the Schengen Agreement of 14 June
1985, on the other hand, without overlooking the Benelux

felt

Treaty on Extradition and Mutual Assistance in Criminal
Matters of 27 June 1962, which contains certain precedents in
the field of mutual assistance, as well as some provisions and
special arrangements between certain Member States.

The primary aim of the Convention therefore is to improve
judicial cooperation by developing and modernising the
existing provisions governing mutual assistance, mainly by
extending the range of circumstances in which mutual assist-
ance may be requested and by facilitating assistance, through
a whole series of measures, so that it is quicker, more flexible
and, as a result, more effective. This aim is largely stated in
Articles 3 to 9 of the Convention.

Furthermore, the Council decided to develop other measures
which, while contributing to this primary aim, take account of
major recent changes: political and social developments, on
the one hand, and technological change, on the other.

The European Union first had to take account of a new
situation: the disappearance of checks at the borders between
most Member States as a result of the Schengen agreements,
the major consequences of which played a part in fully
achieving the internal market decided by the Single European
Act of 1985. The disappearance of
these checks, which
accentuated a considerable increase in the movement of
persons, goods and capital within the European Union in
particular owing to globalisation, meant
the police
and judicial authorities needed suitable rules to combat
international crime which was fully exploiting the potential of
this new freedom of movement, and the characteristics of
which had changed significantly as a result. These new
methods, which included the Benelux agreements, the Scheng-
en Convention and especially the Convention on mutual
assistance and cooperation between customs administrations
(Naples II) of 18 December 1997 (2) laid the foundations for
facilitating and furthering cross-border investigations. These
are referred to in Articles 12 to 16 of the Convention.

that

The European Union also had to develop new techniques, and
its high degree of political integration helped it to do so,
enabling it to take account of important developments in the
in certain cases, may facilitate
field of technology which,
mutual assistance (video-conferencing, teleconferencing) and
in others (interception of telecommunications) may, in the
absence of appropriate measures, make it difficult to put into
practice. Articles 10, 11, and 17 to 22 set out to achieve this
objective.

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

(2) OJ C 24, 23.1.1998, p. 1.

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Moreover, the Council decided to adopt rules on data protec-
tion (Article 23).

Lastly, it is worth mentioning two institutional points linked
to the fact that the Convention has the Treaty on European
Union as its legal basis.

On the one hand, the Convention is a specific instrument of
public international law complying with certain rules unknown
to the parent convention of 1959: in particular, Article 35 of
the Treaty on European Union confers on the Court of Justice
in
of the European Communities jurisdiction to interpret,
accordance with the conditions it determines, the provisions
of the Convention.

On the other hand, some of the Convention’ s provisions
apply not only to the Member States but also to Norway and
Iceland. This point requires some explanation.

The Schengen Implementation Convention, signed on 19 June
1990 between five Member States of the European Com-
munity, contains a good number of provisions on judicial
cooperation.

Other Member States subsequently acceded. In 1996 two non-
member countries, Iceland and Norway, were associated with
Schengen cooperation, particularly to allow all the Nordic
States, the three Member States, Denmark, Sweden and Finland,
and the two non-member countries, Iceland and Norway, to
accede to the Schengen agreements while at the same time
maintaining the Nordic Passport Union.

The Treaty of Amsterdam, which entered into force on 1 May
1999, integrated the Schengen acquis into the framework of
the European Union by means of a protocol annexed to it.

Moreover, an Agreement with Iceland and Norway was signed
on 18 May 1999 on the association of those two countries
with the implementation, application and development of the
Schengen acquis thus integrated (1); it entered into force on
26 June 2000.

the provisions of

Accordingly,
the Convention listed in
Article 2 thereof are identified as constituting a development
of the Schengen acquis and are applicable in the relations
between each Member State of the European Union and
Iceland and Norway.

II. COMMENTS ON INDIVIDUAL ARTICLES

TITLE I

GENERAL PROVISIONS

Article 1

The Convention supplements the instruments listed in para-
graph 1 and it cannot, of itself, be used as the only basis for a
request for mutual assistance. A further consequence of linking
the 1959 Convention and the other texts is that the provisions
of the instruments specified in the paragraph continue to have
full effect to the extent that they deal with matters which do
not come within the scope of the Convention.

Relationship to other conventions on mutual assistance

This Article provides that the purpose of the Convention is to
supplement and to facilitate the application, between the
Member States of the European Union, of the international
instruments in the field of mutual assistance in criminal
matters listed in paragraph 1. The Article is modelled on
Article 1 of the 1996 Convention relating to Extradition
between the Member States of the European Union and it takes
account, inter alia, of Article 26(3) of the European Convention
on Mutual Assistance in Criminal Matters (the 1959 Conven-
tion).

The instruments mentioned in paragraph 1 are partly ‘parent
conventions’ (the 1959 Convention and the Benelux Treaty)
and partly supplementary instruments (the Additional Protocol
to the 1959 Convention and the Schengen Implementation
Convention).

(1) OJ L 176, 10.7.1999, p. 36.

Since the Convention supplements the earlier instruments,
the position is that, where its provisions conflict with the
the
instruments listed in paragraph 1,
Convention prevail.

the provisions of

Paragraph 2 should be read in conjunction with Article 26(4)
of the 1959 Convention. It provides that paragraph 1 shall not
affect the application of provisions in bilateral or multilateral
agreements which provide Member States with more favour-
able mutual assistance arrangements (as for instance between
the Nordic countries), or arrangements in the field of mutual
assistance in criminal matters agreed on the basis of uniform
legislation, or agreements linked to special systems providing
for the reciprocal application of measures of mutual assistance
in their respective territories.

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Article 2

Provisions relating to the Schengen acquis

This Article addresses certain matters arising from the inte-
gration of the Schengen acquis into the framework of the
European Union pursuant to the Treaty of Amsterdam. In that
regard it should be noted that the Schengen arrangements
were applicable to most Member States and also to Iceland
and Norway at the time of adoption of the Convention.

Paragraph 1 identifies the provisions of the Convention to be
regarded as amending or building on the Schengen acquis for
the purpose of the Agreement concluded by the Council with
Iceland and Norway on 18 May 1999 concerning those two
countries’ association with the implementation, application
and development of the Schengen acquis. Article 2(3) of the
Agreement makes provision for acts and measures taken by
the European Union in that context to be accepted, implement-
ed and applied by Iceland and Norway.

Paragraph 2 repeals a number of provisions of the Schengen
Implementation Convention superseded by the Convention,
and thus clarifies which of the provisions on mutual assistance
in the Schengen Implementation Convention remain in force
and which do not.

in this Convention, mutual assistance may be sought in respect
of administrative and judicial proceedings arising from such
offences notwithstanding the fact that this is possible under
the 1959 Convention only for the judicial phase of an
‘Ordnungswidrigkeit’. It should be noted that equivalent con-
cepts exist in certain other Member States.

In so far as paragraph 1 is concerned, it does not matter
whether initially the proceedings in question fall within the
scope of an administrative or a criminal authority in the
Member States in question, but it is essential that they may, at
a later stage, be brought before a court which has jurisdiction
in particular in criminal matters. The inclusion of ‘in particular’
at the end of the paragraph makes it clear that the court before
which the proceedings may be heard does not have to be one
that deals exclusively with criminal cases.

Paragraph 2 ensures that mutual assistance will be afforded in
respect of criminal and administrative proceedings covered by
paragraph 1 where the relevant offence or infringement is one
for which a legal person may be held liable in the requesting
Member State. The fact that the law of the requested Member
State does not provide for administrative or criminal liability
of legal persons for the offences concerned can no longer in
itself give rise to refusing a request for assistance. Accordingly,
the Convention strengthens judicial cooperation in the field of
liability of legal persons.

Article 3

Article 4

Proceedings in connection with which mutual assistance
is also to be afforded

This Article goes beyond the scope of the 1959 Convention
and takes over Article 49(a) of the Schengen Implementation
Convention, repealed by Article 2(2). Assistance can be
requested and obtained under Article 3 not only for investi-
gations in criminal matters but also for investigations of
conduct that is subject to certain administrative sanctions.

Paragraph 1 provides that mutual assistance shall also be
provided in respect of administrative proceedings which relate
to offences punishable under the national law of the requesting
or the requested Member State, or both, as infringements of
legal rules where the decision may result in proceedings before
a court having jurisdiction in particular in criminal matters.

The effect of this provision is to enable mutual assistance to
be requested in certain types of cases which are not covered,
or are only covered to a limited degree, by the 1959
Convention, which applies only to judicial proceedings as
opposed to administrative proceedings. For example, an
‘Ordnungswidrigkeit’ under German law is an offence which is
not classified as criminal and is punishable by fines imposed
by administrative authorities. Under the arrangements adopted

Formalities and procedures in the execution of requests
for mutual assistance

The purpose of this Article is to:

— enable a request for mutual assistance to be carried out in
accordance with formalities and procedures expressly
indicated by the requesting Member State to the
maximum extent possible (paragraphs 1 and 3),

— oblige the requested Member State to take as full account
as possible of any deadline that may be specified in the
request
(paragraph 2) within the limits indicated in
paragraph 4.

Article 3 of the 1959 Convention provides for the execution
of requests in the manner provided for by the law of the
requested State. Article 4 of this Convention shifts the balance
of mutual assistance so as to require where possible that
assistance be provided in a manner requested by the requesting
Member State.

It should be noted that declarations made under Article 5 of
the 1959 Convention are not affected by Article 4 of the
Convention.

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Paragraph 1 lays down the general principle that a requested
Member State which is executing a request must comply with
the formalities and procedures expressly indicated by the
requesting Member State. The reason for this provision is to
facilitate the use of the information gathered by mutual
assistance as evidence in the subsequent proceedings in
the requesting Member State. The words ‘formalities and
procedures’ should be interpreted in a broad sense and may
include, for example, the situation where a request indicates
that a representative of the judicial authorities of the requesting
Member State or defence representative must be permitted to
attend the taking of evidence from a witness. On account of
the burden this might place on the requested Member State,
the requesting Member State should set out only those
formalities and procedures which are indispensable for its
investigations.

The requested Member State can only refuse to give effect to
the formalities and procedures in question where they are
contrary to its fundamental principles of law or where the
Convention itself expressly states that the execution of requests
is governed by the law of the requested Member State.

Paragraph 2 relates to deadlines for the execution of requests
by requesting Member States and it recognises that in certain
cases it can be crucial that a mutual assistance request be dealt
with within a specific time limit. In that context the paragraph
commits requested Member States to taking as full account as
possible of any deadlines that are set in requests for mutual
assistance. If the requesting Member State authority considers
it necessary to have the request executed before a certain date,
it may state this in the request, provided it explains the relevant
reasons.

It is clearly in the interests of all Member States that the
possibility of setting deadlines should not be abused and,
accordingly, where a requesting Member State considers it
appropriate to adopt that course, it should only specify a
deadline which in its view is reasonable or necessary under the
particular circumstances.

Paragraph 3 is concerned with the situation where a request
cannot, or cannot fully, be executed in accordance with the
formalities sought by a requesting Member State in accordance
with paragraph 1. In that case the requested Member State is
obliged to outline the position to the other Member State
without delay and to indicate the conditions under which the
request can be executed. Such conditions may, where necess-
ary, include the provision of supplementary documentation or
information. Provision has also been made that the requesting
and requested authorities may agree on how the request can
be dealt with, where necessary, subject to the fulfilment of the
relevant conditions.

While paragraphs 3 and 4 oblige a requested Member State to
provide information to the requesting Member State under
certain circumstances, no specific procedure has been provided
for that purpose. This leaves the requested Member State
free to choose the means of communicating the relevant
information.

Paragraph 4 refers to the arrangements to be adopted if a
deadline set by a requesting Member State cannot be complied
with. Where the requested Member State is aware that a
particular deadline cannot be met and that, on the basis of the
grounds provided for the deadline under paragraph 2, this will
lead to substantial difficulties with the proceedings under way
in the requesting Member State, its authorities must indicate
as quickly as possible the estimated time that will be required
to execute the request. The authorities of the requesting
Member State must respond without delay indicating whether
the request should continue to be processed. In addition the
text permits the authorities of both Member States to agree as
to how the matter should be taken forward. In this connection
Joint Action 98/427/JHA of 29 June 1998 on good practice in
mutual legal assistance in criminal matters (1) should be borne
in mind.

Article 5

Sending and service of procedural documents

The objective of this Article is to ensure that procedural
documents can be sent and served as speedily as possible by a
Member State where the recipient is present in the territory of
another Member State. In the framing of the Article, to a large
degree, account was taken of the arrangements set out in
Article 52 of the Schengen Implementation Convention which
is repealed by Article 2(2) of this Convention.

Paragraph 1 establishes the general rule that procedural
documents relating to criminal proceedings which are required
to be sent by a Member State to a person in the territory of
another Member State should be sent directly to that person
by post.

It should be noted that, as in Article 52 of the Schengen
Implementation Convention, the term ‘procedural documents’
has not been defined. As was the case regarding said Article 52,
Article 5 of this Convention should be interpreted in a broad
sense and be taken to include, for example, summonses and
court decisions.

The words ‘who are in the territory’, also found in Article 52
the Schengen Implementation Convention, should be
of
interpreted in a broad sense and do not necessarily mean that
the person is resident in the requested State.

(1) OJ L 191, 7.7.1998, p. 1.

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Communication by post is the rule henceforth. Exceptions to
the use of postal means for communicating documents are
outlined in paragraph 2 and, where they apply, documents
may be sent via the competent authorities of another Member
State for transmission to the intended recipient. These excep-
tions are concerned with cases where communication by post
is not possible or appropriate. It is essential that the Member
State sending the documents should make reasonable efforts
to ascertain the address of the person in question before
making a request to another Member State. Furthermore, any
such request should be accompanied by as much relevant
information as possible to assist the requested Member State
in finding the person concerned.

least

its most

Paragraph 3 requires that, where a Member State sending a
document has grounds for believing that the addressee will
not understand the language in which the document has been
drafted, it must make arrangements to have the document, or
at
translated into a
important provisions,
language of the Member State where the person is staying.
This is primarily designed to protect the interests of the
addressee but it is also likely to enhance the effectiveness of the
document. Similarly, the paragraph caters for circumstances
where the issuing Member State knows that the addressee only
understands some other language.
it must
translate the document, or at least the most important parts of
it, into the language in question.

In that event,

Paragraph 5 confirms the application of certain provisions of
the 1959 Convention and the Benelux Treaty in relation to
recipients of documents under Article 5. The relevant pro-
visions of the 1959 Convention and the Benelux Treaty are
concerned with the position of a witness or expert who fails
to answer a summons, expenses arising for a witness or expert
and immunity from prosecution/detention where a witness
appears in response to a summons issued by a foreign State.

Article 6

Transmission of requests for mutual assistance

The 1959 European Convention on Mutual Assistance in
Criminal Matters provides that in most cases requests for
mutual assistance should be forwarded between Ministries of
Justice. Article 53 of the Schengen Implementation Conven-
tion, repealed by Article 2(2) of this Convention, gave the
judicial authorities the ability to communicate directly with
each other. Article 6 of
this Convention replaces these
provisions by making direct contacts between the judicial
authorities the general rule tempering it, however, with some
exceptions.

In accordance with paragraph 4, a document must be
accompanied by a report containing details of how he or she
can obtain information from the issuing authority or other
bodies in that Member State concerning his or her rights and
obligations. The primary objective here is to safeguard the
position of the recipient and, where language difficulties may
arise, translations must be provided in respect of the report on
the same basis as in paragraph 3. It should be borne in mind
that no provision will oblige a person to attend in another
Member State.

Paragraph 1 requires, unless otherwise permitted by this
Article,
that mutual assistance requests between Member
States, and also communications relating to spontaneous
exchanges of information under Article 7, be made directly
between the appropriate judicial authorities and returned
through the same channels. In addition, the said paragraph
enables requests for the institution of proceedings in another
Member State, in accordance with Article 21 of the 1959
Convention and Article 42 of the Benelux Treaty, to be
handled directly between the competent judicial authorities.

While no specific requirements have been laid down for
it is important that,
reports provided under paragraph 4,
where appropriate, they should address the consequences of a
failure to comply with the relevant procedural document
under the law of the Member State from which the document
was issued. In the event that the addressee has been sum-
monsed to appear as a defendant, the report should indicate
the circumstances in which the person concerned may be
assisted by a lawyer. Furthermore, a person summonsed as a
witness or an expert should, where appropriate, be informed
whether he or she can obtain an advance to cover travel
expenses and subsistence costs and also be informed of the
rates involved.

An important and innovative feature of the paragraph is that
it provides for requests to be made and dealt with, not only in
writing but also by any means capable of producing a written
record under conditions allowing the receiving Member State
to establish authenticity. This allows requests to be made, inter
alia, by fax and e-mail and in that sense it goes further than
the 1996 Convention relating to Extradition between the
Member States of the European Union which permitted the
transmission of extradition requests by fax. At the same time,
however, the requested Member State has to be able to be
satisfied that a request is authentic. The Member States should
consult regarding the precise arrangements to be made for
establishing authenticity where requests are made by fax,
e-mail or other means of telecommunication.

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While paragraph 1 has paved the way for an effective and up-
to-date communication of requests,
it does not prevent
Member States from going even further and agreeing to accept
oral requests, perhaps in certain types of case. In particular,
oral requests might be accepted where the circumstances are
especially urgent and could be made on the basis that they
would be confirmed in writing as quickly as possible.

Paragraph 2 permits the sending and return in specific cases of
requests between central authorities or between a judicial
authority in one Member State and a central authority in
another Member State. That course was adopted in recognition
of the fact that circumstances may arise where it would be
appropriate that a particular request should be dealt with by a
central authority in a Member State, for example in complex
cases or cases where the request is addressed to more than one
competent authority in the requested Member State.

Pursuant to paragraph 3, it has been left open to the United
Kingdom and Ireland, respectively, to declare that requests,
other mutual assistance communications or Article 7 infor-
mation be sent via its central authority. The grounds on which
such a right of declaration was accepted were that the judicial
authorities in the United Kingdom and in Ireland do not, or do
not in general, have the authority to execute requests received
from judicial authorities or requests from a central authority.
In the event of any such declaration being made, each of the
Member States is entitled to apply the principle of reciprocity
in so far as it is concerned. The second and third sentences of
the first subparagraph of Article 6(3) allow for further
limitation of the declaration referred to above. In consequence,
either Member State can, at any time, by a further declaration
limit the scope of the original declaration, for the purpose of
giving greater effect to the concept of direct transmission. It
must do so when the mutual legal assistance provisions of the
Schengen Implementation Convention come into effect for it.

Paragraph 4 allows requests to be made via Interpol where an
urgent reply is needed.
In addition the reference in the
paragraph to any body competent under provisions introduced
pursuant to the Treaty on European Union was primarily
designed to enable requests to be channelled through a body
such as Europol or a body yet to be created, such as Eurojust,
if it were authorised to fulfil that function in the future.

answered directly, in appropriate cases, by a competent judicial
or central authority in one Member State and a competent
police or customs authority in another Member State. Para-
graph 4 has also been made applicable to requests dealt with
in that manner.

Similarly, paragraph 6 enables requests in relation to adminis-
trative proceedings under Article 3(1) to be made and answered
directly where the competent authorities involved are a judicial
or central authority in one Member State and an administrative
authority in the other Member State.

Under paragraph 7 Member States may, however, declare that
they will not apply paragraphs 5 and/or 6, or declare that they
will only apply either or both of those provisions under
specified conditions. The need to provide for such declarations
arose from the fact that not all Member States were satisfied
that they would be in a position to adopt the arrangements set
out in paragraphs 5 and 6, at least during the initial stages
of the operation of the Convention. To cater for future
developments, a declaration made under paragraph 7 may be
withdrawn or amended at any time.

The negotiators felt that the requests mentioned in para-
graph 8(a) and notices of information mentioned in the first
line of paragraph 8(b) were not supposed to be sent by the
local judicial authorities in particular because in most Member
States the Ministries of
Justice have jurisdiction over the
temporary transfer of detainees and over the transmission of
notices of
information from judicial records, which are
centralised before being sent. For these reasons, such com-
munication was reserved for the central authorities.

An exception has, however, been made for requests for details
of convictions and subsequent measures which are sought
with reference to Article 4 of the Additional Protocol of
17 March 1978 to the 1959 Convention. Article 4 of the
Protocol inserted a new paragraph in Article 22 of the 1959
Convention which is concerned with the obligation of a
Contracting Party to inform any other Party of criminal
convictions and subsequent measures in respect of nationals
of the latter, entered in the judicial records.

Article 7

Spontaneous exchange of information

Article 12 (controlled deliveries), Article 13 (joint investigation
teams) and Article 14 (covert investigations) are concerned
with matters in which in some Member States law enforcement
authorities may play a leading role, but which in other
Member States may be under direct judicial control. In the
circumstances of the said Articles, paragraph 5 allows requests
made with reference to those provisions to be made and

This Article recognises the very useful purpose that can be
served where a Member State shares information it has
obtained in the criminal field with another Member State. The
intention is to provide a general framework within which such
information can be exchanged. Spontaneous exchanges of
information by law enforcement agencies were already pro-
vided for in Article 46 of the Schengen Implementation
Convention.

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Paragraph 1 permits the competent authorities of Member
States, without the need for a mutual assistance request,
to exchange information relating to criminal offences or
administrative infringements covered by Article 3. It should be
noted that this is a facilitative provision which does not place
obligations on Member States and that it expressly provides
that the relevant exchanges are to be carried out within the
limits of the national law of Member States.

In accordance with paragraph 2, conditions may be attached
to the use of information provided under this Article, and
paragraph 3 provides that, if that is the case, the receiving
authority is bound by those conditions. In that case the data
protection measures under Article 23(1) and (2) of
the
Convention do not apply in so far as they cover the same
subject matter.

TITLE II

REQUESTS FOR CERTAIN SPECIFIC FORMS
OF MUTUAL ASSISTANCE

Article 8

Restitution

This Article introduces new arrangements whereby mutual
assistance requests may be made to place articles obtained by
criminal means, stolen goods for example, at the disposal of a
requesting Member State with a view to restoring them to their
rightful owners. Paragraph 1 permits, but does not oblige, a
requested Member State to give effect to such a request. The
requested Member State could, for example, refuse such a
request where property has been seized for evidential purposes
in that Member State. This paragraph is not intended to bring
about any change of provisions of national law on confiscation.
It should furthermore be noted that the paragraph has been
framed on the basis that it should apply only in cases in which
there is no doubt as to who is the rightful owner of the
property. It also operates ‘without prejudice to the rights of
bona fide third parties’. This ensures that legitimate claims
involving the property will be fully preserved.

Provision was made in Article 6(2) of the 1959 Convention
and in Article 29(2) of the Benelux Treaty for waiving the
return of property handed over in the execution of letters
rogatory. Article 8(2) allows a Member State to exercise such a
waiver for the purpose of restoring property to its rightful
owner. As in the case of paragraph 1, it is envisaged that the
ownership of the property should be clear. Paragraph 2 also
applies without prejudice to the rights of bona fide third
parties.

Paragraph 3 supplements paragraph 2 by providing that, where
the requested Member State, under the specified conditions, has
waived the return of articles before they are surrendered under
that paragraph, it is prohibited from exercising any security
right or other right of recourse under tax or customs legislation
it might enjoy in respect of a surrendered article. However, the
text also provides that the exercise of a waiver under para-
graph 2 shall not prevent the requested Member State from
collecting any customs taxes or duties it may be owed by the
rightful owner of the property.

Article 9

Temporary transfer of persons held in custody
for purposes of investigation

Article 11 of the 1959 Convention enables a person in custody
in a requested State whose personal appearance as a witness
or for the purposes of confrontation is sought by a requesting
State to be transferred to the requesting State. Article 9 of the
Convention supplements said Article 11 by authorising a
Member State to make arrangements for the temporary transfer
of a person in its custody to another Member State in
connection with an investigation being carried out by the
custodial Member State. Paragraph 1 makes the transfer of
persons in custody under this Article subject to the agreement
of the competent authorities of both the requesting and the
requested Member States. In accordance with paragraph 2,
such agreement must cover the arrangements to be made for
the transfer and specify a date for the return of the person
concerned.

Paragraph 3 takes account of the fact that a Member State may
require the consent of the person to be transferred and, where
such consent is necessary, it must be provided to the requested
Member State promptly. The paragraph is linked to para-
graph 6.

Paragraph 4 seeks to ensure that any period spent in custody
in the requested Member State in the course of a transfer will
be deducted from the period of detention to be served by the
transferred person in the requesting Member State.

Paragraph 5 makes the application of the Article subject to
certain provisions of the 1959 Convention. The relevant parts
of that instrument are concerned with transit arrangements
for transfers of persons in custody, ensuring that transferred
persons remain in custody and have immunity from pros-
ecution for earlier offences, and expenses. No reference is
made to the Benelux Treaty because of the general rule that
the provisions of the said Treaty fully apply unless this
Convention states the contrary.

Paragraph 6 allows a Member State to declare that, in so far as
the application of this Article is concerned, it will still require
the consent of the person concerned or will require such
consent under certain precise conditions.

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Article 10

in the requesting Member State. Although the requesting
Member State must provide the reasons for its request, it is
entirely up to it to assess the relevant circumstances.

Hearing by videoconference

The development of new technology has made it possible for
a person in one country to communicate with a person in
another country via a direct video link. Article 10 is designed
to serve as a basis for and facilitate the use of this procedure
to overcome difficulties that can arise in criminal cases when
a person is in one Member State and attendance at a hearing
in a second Member State is not desirable or possible. In
particular, it lays down rules relating to requests for, and the
conduct of, videoconference hearings. The Article applies
generally to hearings of experts and witnesses, but may, under
the particular conditions contained in paragraph 9, also be
applied to hearings of accused persons.

Paragraph 1 establishes the principle that a request for a
videoconference hearing may be submitted by a Member State
in respect of a person who is in another Member State. The
circumstances in which such a request may be made are that
the judicial authorities of the requesting Member State require
the person in question to be heard as a witness or expert and
that it is not desirable or not possible for him or her to travel
to that State for a hearing. ‘Not desirable’ could for example
apply in cases where the witness is very young, very old, or in
bad health; ‘not possible’ could for instance cover cases where
the witness would be exposed to serious danger by appearing
in the requesting Member State.

Paragraph 2 obliges a requested Member State to agree to a
videoconference request provided that the hearing would not,
in the circumstances of the particular case, be contrary to the
fundamental principles of its law and that it has the technical
capacity to carry out the hearing. In that context the reference
to ‘fundamental principles of law’ implies that a request may
not be refused for the sole reason that hearing of witnesses
and experts by videoconference is not provided under the law
of the requested Member State, or that one or more detailed
conditions for a hearing by videoconference would not be met
under national law. Where the relevant technical means are
lacking, the requesting Member State may, with the agreement
of the requested Member State, provide suitable equipment to
permit the hearing to take place.

Paragraph 3 concerns the information that must accompany
requests made under Article 10 and requires, inter alia, that a
request must explain why it is undesirable or impossible for
the person who is the subject of the request to attend a hearing

Paragraph 4 provides that the person in question is summoned
to appear by the judicial authorities of the requested Member
State. Its purpose is to ensure that appropriate steps can be
taken to secure his or her attendance for the hearing. This is a
derogation from Articles 4 and 5. Unlike paragraph 9 concern-
ing accused persons, the consent of a witness or expert to be
heard by way of videoconference is not required.

The rules to be observed where a hearing takes place by way
of videoconference are set out in paragraph 5. In particular,
provision has been made in point (a) for the attendance, and if
necessary the intervention, of a judicial authority from the
requested Member State to ensure, inter alia, that the fundamen-
tal principles of law of that Member State are not contravened
during a hearing. The requesting Member State may, for
example, on the basis of this point in conjunction with
Article 4 and Article 10(5)(c) of the Convention, request that
counsel for the person to be heard be present at the hearing.

Under point (b), steps to ensure the protection of the person
to be heard are, where necessary, to be agreed between
the relevant competent authorities. These may include the
application of any legislation which the requesting Member
State may have on the protection of persons to be heard.

Point (c) states that hearings are to be conducted directly by,
or under the direction of, the judicial authorities of the
requesting Member State in accordance with its own laws.
Without prejudice to point (e), the person to be heard by way
of a videoconference must not have fewer rights than they
would if they were participating in a hearing in the requesting
Member State.

In addition, point (d) requires the requested Member State to
make an interpreter available for the person to be heard if this
is necessary and is sought by the requesting Member State or
the person in question.

A safeguard is provided for that person in point (e) under
which he or she is entitled to claim any right not to testify
which he or she would enjoy under the law of either the
requested or the requesting Member State. Where such a right
is claimed, it will fall to be determined by the judicial authority
conducting the hearing subject, of course, to the duty of the
judicial authority from the requested Member State to take the
necessary measures for the conduct of the hearing according
to the fundamental principles of its law. The relevant judicial
authorities should consult together in relation to any claim to
refuse to testify at a hearing.

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Paragraph 6 provides for minutes of a videoconference hearing
to be drawn up by the judicial authority of the requested
Member State and transmitted to the requesting Member State.
The said paragraph sets out the items to be included in the
‘minutes’. They are not concerned with the substance of the
hearing. It should also be noted, however, that, arising from
the need to ensure the protection of relevant persons, including
participants in the requested Member State other than the
person heard, the Member States concerned may, subject to
their domestic law, agree on specific arrangements to be made
in respect of the minutes. As a result of such an agreement it
could be the case, for example, that the names of certain
persons who were present in the requested Member State at
the hearing would not be recorded in the minutes but their
functions should if appropriate, be indicated.

In view of
the substantial costs that could be involved,
paragraph 7 establishes the rule that certain expenses arising
from a videoconference hearing will be refunded to the
requested Member State by the requesting Member State. It is,
however, left open to the requested Member State to waive
such refunds in whole or in part.

Paragraph 8 provides that if, in the course of a hearing by
videoconference, a person refuses to testify or provides false
testimony, the Member State in which the person being heard
is located must be in a position to deal with that person in the
same way as if he or she were appearing at a hearing conducted
under its own national procedures. This follows from the fact
that the obligation to testify at a videoconference hearing
arises, pursuant to this paragraph, under the law of the
requested Member State. The paragraph is in particular intend-
ed to guarantee that the witness, in case of non-compliance
with an obligation to testify, is subject to consequences of his
or her behaviour similar to those applicable in a domestic case
where videoconferencing is not used.

Where the difficulties mentioned in paragraph 8 occur, the
requesting and the requested Member States may communicate
with each other in relation to the application of the paragraph.
This will normally imply that the authority of the requesting
Member State conducting the hearing as soon as possible
provides the authority of the requested Member States with the
information necessary to enable the latter to take appropriate
measures against the witness or expert.

Paragraph 9 permits Member States to extend the application
of Article 10 to videoconference hearings involving accused
persons. Each Member State enjoys full discretion as to
whether or not it will agree to execute requests for such
hearings. A Member State may make a general declaration to
the effect that it will not do so and such a declaration may be
withdrawn at a later stage.

The Member States concerned must specifically agree on a
decision to hold a videoconference hearing in respect of an
accused person and any arrangements to be adopted in that
regard. These arrangements are to operate subject to the
national laws of the Member States and in conformity with the
European Convention for the Protection of Human Rights
and Fundamental Freedoms and other relevant international
instruments.

To safeguard the position of the accused person, he or she
must consent in each case before the hearing takes place. Since
the position of an accused person differs substantially from
that of a witness or expert, provision has also been made for
the adoption by the Council of any rules that may be necessary
for the purpose of ensuring that the rights of accused persons
are adequately protected. The adoption of such rules is not,
however, a pre-condition for the operation of paragraph 9.

Article 11

Hearing of witnesses and experts by telephone conference

Telephone-conference hearings represent a further area in
which means of telecommunications can be employed in the
mutual assistance field. Such hearings can be particularly
useful
in situations where, for example, a statement on a
routine matter is required from a witness. In addition they can
be arranged and conducted quite easily and economically.

It should be noted, however,

This Article sets out the arrangements to apply between the
Member States in respect of requests relating to hearings by
telephone conference.
that
nothing in Article 11 is intended to undermine the practice
that exists in some Member States whereby a person is heard
as a witness by telephone from abroad, perhaps on consular
premises, without the assistance of the Member State where he
or she is situated.

from that

The overall approach of this Article is to establish a general
framework for telephone hearing requests which is somewhat
different
adopted for videoconferencing in
Article 10. In that context it may be noted, in particular, that,
according to Article 11(2), a hearing may be conducted only if
the witness or expert agrees thereto. For that reason there was
no need to establish that it is not desirable or possible for the
person to be heard to appear for a hearing in person.

Paragraph 1 enables requests for assistance in arranging a
telephone conference hearing to be made where a person who
is to be heard as a witness or expert in one Member State is
present in another Member State. A request will come within

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the terms of the Article where the hearing in question is
conducted by the judicial authorities of the requesting Member
State and the law of that State provides for the making of such
requests.

Paragraph 2 imposes the pre-condition that the person to be
heard must consent where a request is made in relation to a
hearing by telephone conference.

Paragraph 3 obliges the requested Member State to comply
with a request provided it is not contrary to the fundamental
principles of
its law (see further explanations regarding
‘fundamental principles of law’ under Article 10). In accordance
with paragraph 5, however, that Member State may, in so far
as the practical arrangements relating to the hearing are
concerned, require that the provisions in Article 10(5) and (8)
will operate in respect of the hearing to the extent that they
are applicable. Article 10(7) will apply automatically unless
the Member States agree otherwise.

the Member States of the European Union. Under Article 2 of
the said Convention, an extraditable offence is one which is
punishable under the law of the requesting Member State by
deprivation of liberty or a detention order for a maximum
period of at least 12 months and under the law of the requested
Member State by deprivation of liberty or a detention order
for a maximum period of at least six months.

Paragraph 2 provides that it is the requested Member State
which decides whether or not a controlled delivery should take
place on its territory. These decisions are to be made on a case-
by-case basis and they must be taken within the framework of
the relevant rules of the requested Member State.

While the practical arrangements to be undertaken for con-
trolled deliveries will require close consultation and cooper-
ation between the relevant agencies and authorities of the
Member States concerned, paragraph 3 makes it clear, as an
exception to Article 4(1), that such deliveries must be under-
taken in conformity with the procedures of the requested
Member State. Furthermore, the competent authorities of that
Member State are to carry out any action and to direct any
operations that may be required.

Article 12

Controlled deliveries

Article 13

Joint investigation teams

The purpose of this Article is to provide a framework for
cooperation between Member States in relation to controlled
deliveries. This is a technique which has proved to be very
effective in combating drug trafficking and other forms of
serious crime. The Article is broader in scope than Article 73
of the Schengen Implementation Convention which also dealt
with controlled deliveries, as it is not limited to controlled
deliveries offences related to drug trafficking. Europol has
drawn up a ‘European manual on controlled deliveries’ contain-
ing information on the operation of such deliveries.

The expression ‘controlled delivery’ has not been specifically
defined in the Convention and it should be interpreted in
accordance with national
law and practice. The provision
applies if, for example, the illicit consignment, with the consent
of the Member States concerned, has been intercepted and
allowed to continue with the initial contents intact or removed
or replaced in whole or in part.

The effect of paragraph 1 is that each Member State is obliged
to adopt means to ensure that, where it is requested to do so
by another Member State, it can permit a controlled delivery
to take place on its territory in the framework of a criminal
investigation into an extraditable offence. The concept of what
constitutes an extraditable offence at the level of the Union
was addressed in the 1996 Convention on Extradition between

Experience has shown that where a State is investigating
offences with a cross-border dimension, particularly in relation
to organised crime, the investigation can benefit from the
participation of law enforcement and other relevant personnel
from another State in which there are links to the offences in
question. The importance of operational cooperation among
law enforcement agencies was specifically recognised by
Article 30 of the Treaty on European Union.

One of the obstacles which has arisen in so far as joint teams
are concerned has been the lack of a specific framework within
which such teams should be established and operate. To meet
that concern it was decided that the relevant matters should
be dealt with in the Convention. In that regard Article 13 lays
down the conditions under which joint teams are to be set up
and how they will carry out their tasks.

Paragraph 1 contains the basic rules for the establishment of a
joint investigation team. In order to set up a team, there must
first be agreement between the competent authorities of the
Member States concerned. No limitation has been placed on
the number of Member States which may be involved.

Under the agreement the investigation team will be assigned a
particular purpose, which will be to carry out criminal
investigations in one or more of the participating Member
States.

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In addition, it will operate for a specified period which can be
extended by mutual consent. The persons who will make up
the team will also be specified in the agreement. While most
of these persons are likely to be law enforcement officers, they
will in many cases include prosecutors and judges, as well as
other persons. Where agreement is achieved on the setting up
of a team, the team will normally be established in the Member
State in which the main part of the investigations is expected
to be undertaken. The Member States will also have to
take into account the question of costs, including the daily
allowances for the members of the team.

its leader will be a representative of

Paragraph 3 states that an investigation team will operate on
the basis that
the
competent authority participating in criminal investigations
for the Member State in which the team operates. This means,
in particular, that the leadership of the team will change, for
the specific purposes concerned, if investigations are carried
out by the team in more than one Member State. The leader of
the team must act within the requirements of his or her
national law. In addition, the team is obliged to respect fully
the law of the Member State where it operates. The leader will,
from time to time, direct the other members of the team who
will carry out his or her instructions with reference to the
conditions under which the team was set up.

Members of a joint team who are not operating in their own
Member State (seconded members) are permitted, under
paragraph 5, to be present when investigative measures are
taken in the Member State of operation. However, the team
leader may, for particular reasons, in accordance with the law
of the State where the team is operating, decide otherwise. In
this context the expression ‘particular reasons’ has not been
defined but it can be taken to include, for example, situations
where evidence is being taken in cases involving sexual crimes,
especially where the victims have been children. Any decision
to exclude a seconded member from being present may not be
based on the sole fact that the member is a foreigner. In certain
cases operational reasons may form the basis for such
decisions.

Paragraph 6 permits seconded members to carry out investiga-
tive measures in the Member State of operation, in accordance
with the national law of that Member State. This will be done
on the instructions of the team leader and with the approval
of the competent authorities of the Member State of operation
and the seconding Member State. Such approval may be
included in the agreement establishing the team or it may be
granted at a later stage. It may also apply in general terms or it
may be restricted to specific cases or circumstances.

One of the most innovative aspects of Article 13 is provided
for in paragraph 7. The effect of this provision is that it enables
a seconded member to request his or her own national

authorities to take measures which are required by the team.
In that case it will not be necessary for the Member State of
operation to submit a request for assistance and the relevant
measures will be considered in the Member State in question
in accordance with the conditions that would apply if they had
been sought in a national investigation.

Paragraph 8 covers the situation where assistance is required
from a Member State which was not involved in establishing
the team or a third State. In these circumstances the assistance
will be sought by the Member State of operation, according to
the rules normally applicable.

Paragraph 9 facilitates the work of the joint investigation
teams by opening the way for a seconded member to share
with the joint investigation team information which is available
in his or her Member State and is relevant to the investigations
being conducted by the team. However, this will only be
possible where it can be undertaken within the scope of the
seconded member’s national law and the limits of his or her
competence.

Paragraph 10 is concerned with the conditions for the use of
information lawfully obtained by a member or a seconded
member of a joint team where the information in question
would not otherwise be available to the competent authorities
of the Member States concerned.

In the course of the drafting of the paragraph the point was
made by the Irish delegation that, where the information in
question relates to a voluntary statement provided by a witness
solely for the purposes for which the team was set up, the
consent of the witness should be required for its use for other
purposes unless the requirements of subparagraph (c) involving
an immediate and serious threat to public security are satisfied.
While the text does not provide direct guidance on this point,
it would be in keeping with the spirit of the Article that such
matters should be the subject of consultation between the
Member States establishing the team and that, as appropriate,
the consent of the witness should be sought.

Paragraph 11 provides that Article 13 shall be without
prejudice to any other existing provisions or arrangements on
the setting up or operation of joint investigation teams.

Paragraph 12 paves the way for the Member States which have
established a joint investigation team to agree that persons
who are not representatives of their competent authorities can
take part in the activities of the team. What the drafters of the
Convention had in mind was that additional assistance and
expertise could be provided to a joint investigation team
by appropriate persons from other States or international
organisations. In that context it should be noted that specific
reference is made to officials of bodies set up pursuant to the

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Treaty on European Union. This could include a body such as
Europol or a body yet to be set up, such as Eurojust, in so far
as its staff would in the future be authorised to take part in
such teams.

The participation of Commission staff (OLAF) may also be
the
considered, as ‘persons other than representatives of
competent authorities of the Member States setting up the
team’.

Paragraph 3 has been formulated in broad terms to allow
Member States the flexibility they are likely to need in
connection with covert operations. It provides that covert
investigations are to be carried out in conformity with the law
and procedures of the Member State where the investigation
takes place, as an exception to Article 4(1). The preparation
and supervision of the investigation, including security for the
relevant officers, are to be the subject of cooperation between
the relevant Member States.

Persons who are authorised to participate in an investigation
team under paragraph 12 will act primarily in a supportive or
advisory role and are not permitted to exercise the functions
conferred on members or seconded members of a team or to
use the information referred to in paragraph 10 unless this is
permitted under the relevant agreement between the Member
States concerned.

Article 14

Covert investigations

While a covert investigation into a criminal offence may take
different forms, this Article is only concerned with criminal
investigations by officers acting under covert or false identity.
Such officers are generally referred to as undercover agents.
They should be specially trained and can be used in particular
to penetrate a criminal network in order to obtain information
or to help with the identification and arrest of the members of
the network.

Under this Article, assistance may be requested to enable an
undercover agent to operate in the requested Member State or,
alternatively, for the requested Member State to be able to send
an agent to the requesting Member State. In addition, the
requested Member State could be asked to provide an under-
cover agent to carry out a covert investigation on its own
territory.

Paragraph 1 is expressed in flexible terms and makes it clear
that both the requesting and the requested Member State must
agree in order for an undercover agent to be deployed in a
particular case. Given this flexibility, it was not considered
necessary to limit the investigations in respect of which
assistance can be sought
to those linked to extraditable
offences, as was done in Article 12.

In accordance with paragraph 2, the decision in respect of a
request relating to a covert investigation is to be taken by the
competent authorities of the requested Member State. Where
a request is agreed to, the paragraph also requires the Member
States concerned to agree on a number of matters, including
the duration of the investigation and its detailed conditions,
having due regard to their national law and procedures.

Member States may decide not to apply Article 14 by entering
a reservation to that effect in accordance with paragraph 4.
Such a reservation may subsequently be withdrawn.

Article 15

Criminal liability regarding officials

This Article makes provision for criminal liability in respect of
offences committed by or against officials from a foreign
Member State where they are operating in another Member
State under Articles 12, 13 or 14. The position is that, for that
purpose, the officials concerned will be placed in the same
position as the officials of the Member State where the offences
are committed. The Article is modelled on Article 42 of the
Schengen Implementation Convention.

Article 16

Civil liability regarding officials

The purpose of this Article is to provide arrangements for the
satisfaction of civil claims that may arise from operations
carried out by the officials of a Member State on the territory
of another Member State in accordance with Articles 12,
13 or 14. It is modelled on Article 43 of the Schengen
Implementation Convention.

The basic rule that applies is that a Member State is liable for
any damage that is caused by its officials during the operations
concerned. However, the Member State where the damage was
caused is required, in the first instance, to make good such
damage on the same basis as if the damage had been caused
by its own officials. In such an event, the other Member State
must reimburse in full any compensation that has been paid
out to victims of the damage or persons claiming on their
behalf. Subject to such reimbursement and to any claims that
it may make from third parties, for example the officials who
carried out the operations, no further claims for reimburse-
ment are permitted by the Member State where the damage
occurred.

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TITLE III

INTERCEPTION OF TELECOMMUNICATIONS

— or, on the other, that a State, for its own purposes (or the
purposes of another) can technically from now on
intercept telecommunications made from or received on
the territory of another State, without having to request
assistance from the latter (see point (b) below).

GENERAL INTRODUCTION AND TECHNICAL DATA

This is the first time that a multilateral convention on mutual
assistance in criminal matters has dealt with the question of
the international interception of telecommunications, at least
in a specific way. It attempts this by focusing on the traditional
aspects of telecommunications interception, but also by taking
into account recent developments, while keeping its provisions
sufficiently general in order to guarantee as far as possible
their adaptability to future developments.

Article 1(1) of the European Convention on Mutual Assistance
in Criminal Matters has of course made it possible for the
Member States to develop practices in this area, particularly on
the basis of Council of Europe Recommendation No R(85)10.
However, the Council believed it was time to adopt specific
provisions, particularly because it seems that not all Member
States recognise Article 1(1) of the European Convention on
Mutual Assistance in Criminal Matters as the relevant basis for
responding favourably to a request for an interception of
telecommunications.

In the last decade telecommunications technology has under-
gone considerable development, particularly in the field of
mobile telecommunications. These are very widely used by
offenders in the context of their criminal activities.

The absence of specific international agreements has made
cooperation contingent on the goodwill of the individual
Member States, whose practices are scarcely homogenous,
which makes the work of practitioners more difficult.

Drawing up Articles 17 to 21 involved a substantial amount
of work; this can be explained by two factors in particular:

— on the one hand, the subject of telecommunications
interception necessitated finding a particularly delicate
balance between the efficiency of
investigations and
respect for individual freedoms,

— on the other hand, modern technologies create new

situations which needed to be regulated.

During negotiations, the following situations were taken into
account more specifically:

(a) Wherever the subject of the interception may be located,
the interception of
telecommunications made via a
satellite system (and one day, undoubtedly, via other
technologies) requires only one single operation by the
technical installation known as the ‘gateway’. The gateway
makes it possible to establish the satellite link, thus
enabling the use of telecommunications equipment in
very large geographical areas. All of this potentially
means that a State whose territory falls within the
satellite’s coverage area, but which does not have a
gateway, would not be technically capable of directly
intercepting telecommunications made from or received
on its territory via a satellite telephone.

None the less,
following two ways:

it is still possible to intercept in the

— for each interception it intends to carry out, the
State in question may request assistance from the
State on whose territory the gateway is located,

— the operator installs remote access to the gateway, a
sort of ‘remote control’. This equipment enables a
country to give an interception order from a distance
via a gateway situated outside its territory. It may be
given to the company or companies (the ‘service
in the Convention) which provide the
providers’
satellite
service on each
telecommunications
national territory, on condition that they carry out
the orders for interceptions which are lawfully
requested by the competent authorities.

It is technically possible to limit use of this remote control
equipment to those telecommunications made from or
received on the territory of the Member State making use
of them (therefore, with the remote control equipment to
which the competent authorities of a Member State have
access, it will only be possible to intercept telecommuni-
cations made from or received on the territory of that
Member State).

— it could happen, on the one hand, that a State is not
technically capable of directly intercepting telecommuni-
cations made from or received on its own territory (see
point (a) below),

The installation of such a system, and the definition of its
operating arrangements, cannot be envisaged without
international regulation. This is the subject of Article 19.

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(b) There are two explanations for the new situation:

— firstly, and as stated above, by issuing just one
interception order via a gateway, satellite telecom-
munications technology makes it possible to inter-
cept a subject (1),
the satellite’ s
coverage area, i.e. in principle a large number of
States,

irrespective of

— secondly,

traditional mobile telephone networks
(such as GSM networks) make interception abroad
possible,
for example in border areas, as their
coverage areas do not match the contour of borders
exactly. The same is likely to be true of territorial
limits affecting the use of remote control equipment
(see above).

In their own way, neither of the scenarios outlined above
fit into the traditional framework of the conventions on
mutual assistance.

— In the first case (a), a Member State is allowed to
implement a measure on its own territory; the
mutual assistance consists in principle of allowing a
Member State (the requesting Member State) to
implement an investigative measure on the territory
of another Member State (the requested Member
State).

— In the second (b), rules are provided for a situation
where there is neither a requesting Member State
nor a requested Member State (the intercepting
Member State does not need technical assistance
from the Member State on whose territory the
subject is located).

In choosing not to disregard these two situations in the
Convention, the Council made the political decision to
deal in a non-restrictive manner with the question of
interceptions carried out for the purpose of criminal
investigations, and not only with the question of inter-
national mutual assistance in the area of interception. In
particular, the adoption of Article 20 met the Council’ s
concern to regulate activities which gave every indication

(1) The subject is in principle the person specified in the interception
order. However, because the identity of the person using the
telecommunications equipment can never be certain, Article 20(2)
refers more specifically to ‘the telecommunication address of the
subject specified in the interception order’.

of developing, but were not likely to be regulated by any
international rules. This is a step forward in legal terms,
to be credited to the European Union, and stems from its
resolve to create an area of freedom, security and justice.

Article 17

Authorities competent to order interception
of telecommunications

This Article allows a Member State, where no judicial authority
has competence for applying Articles 18, 19 and 20, to specify
pursuant to Article 24(1)(e) an equivalent competent authority
investigation. This
acting for the purpose of a criminal
provision means that under the conditions laid down in
Articles 18, 19 and 20, the other Member States accept
interception requests from a competent authority acting for
investigation, but which is not
the purpose of a criminal
necessarily a judicial authority.

This Article does not exempt those Member States for which a
judicial authority is competent to make a statement within the
meaning of Article 24(1)(e), from specifying which of its
authorities are competent
in
particular for applying, as a notified State, Article 20.

for applying these Articles,

Article 18

Requests for interception of telecommunications

This Article governs those situations in which a Member State
is requested by another Member State to order an interception
operation from its own territory.

Paragraph 1 makes a distinction, in points (a) and (b), between
two types of interception:

— the first concerns the immediate transmission to the
Member State requesting the interception of telecom-
munications. Immediate transmission means forwarding
the
intercepted telecommunication directly to the
requesting Member State, where it can be listened to
and/or recorded by the competent authority which
ordered it. This type of transmission, a novelty in the
context of international cooperation, will be the rule
from now on,

— the second concerns the recording and subsequent trans-
mission of telecommunications to the requesting Member
State; this is the current practice in judicial assistance.
This second type of request is dealt with specifically in
paragraphs 6 and 7 and should be the exception from
now on.

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The Council, after examining the matter, considered that it
was not necessary to define the term ‘telecommunications’,
which is not limited to telephone conversations, but rather
should be understood in the widest sense of
the word.
Moreover, it is necessary that, as far as possible, the requested
Member State also transmits technical data concerning each
telecommunication, for example, the number called, the time
and duration of the telecommunication, and, if known, the
place from which the telecommunication was made or
received. Due to this lack of a definition, it is self-evident that
the provisions on the interception of telecommunications may
apply to all forms of communication made possible by current
and future technologies. However, when negotiating the
Convention,
it was absolutely impossible to foresee every
conceivable hypothetical case given the speed of technological
development in this area.

It is worth noting that the Convention has effect within
the European Union only, even if the telecommunications
technologies to which it applies or might apply cover the
whole world.

Paragraph 2 determines, according to the location of the
subject the three scenarios in which a request for judicial
assistance may be made.

The first (a) concerns the situation where the subject is on
the territory of the requesting Member State (see general
introduction and technical data above).

The second (b) concerns the situation where the subject is on
the territory of the requested Member State.

The third (c) concerns the situation where the subject is on the
territory of a Member State other than the requested Member
State, but where technical assistance from the requested
Member State is needed for such interception (see general
introduction and technical data above). The text lays down
that the Member State on whose territory the subject is located,
for whom the interception of telecommunications is requested,
must be informed of
in accordance with
Article 20(2)(a).

the request

On account of the diversity of these situations, each of these
types of request is dealt with individually in paragraphs 4 to 8.

Paragraph 3 specifies the form in which the interception
request must be submitted. In order to facilitate implemen-
tation of the text, it was decided to list in the body of the
Article all of the information which must be provided by the
requesting State. Article 18(3) therefore replaces Article 14 of
the European Convention on Mutual Assistance in Criminal

Matters with regard to requests for the interception of telecom-
munications between Member States. The information to be
provided in the request does not require any particular
comment.

in
Paragraph 4 is intended to supplement paragraph 3,
principle for those cases referred to in paragraph 2(b), i.e.
where the subject is on the territory of the requested Member
State. It is, in fact, the only scenario where, in accordance with
paragraph 5(b), the requested Member State assesses how to
follow up the request by establishing whether the measure
could be taken in a similar national case. Under the terms of
this paragraph, the requesting Member State must immediately
supply a ‘summary of the facts’ with which the investigations
are concerned. Although the terms are not exactly similar, they
should be interpreted by reference to those of Article 12(2)(b)
of the European Convention on Extradition of 13 December
1957. The requested Member State will be entitled to ask the
requesting Member State for any additional information it
considers necessary for it to assess ‘whether the requested
measure would be taken in a similar national case’.

This latter wording, which occurs at numerous points in the
provisions on the interception of telecommunications, was
adopted in preference to the concept of ‘conformity with
national law’. The fact that the requests concerned inevitably
come from a competent authority in another Member State
should be borne in mind. Different national laws on intercep-
tions generally stipulate a limited list of authorities empowered
to order interception, so that a request from a competent
authority in another Member State is in danger of contravening
the national law on interceptions.

Moreover, it is self-evident that this paragraph also applies
where requests are made in accordance with paragraph 1(b)
(request for interception, recording and subsequent trans-
mission of telecommunications to the requesting Member
State).

Paragraph 5 lays down the conditions under which a requested
Member State must comply with a request
to intercept
telecommunications with immediate transmission to the
requesting Member State. The paragraph cites two different
cases:

(a) where the subject of the interception is present on the
territory of a Member State other than the requested
Member State (including the territory of the requesting
Member State) and the information provided for in
paragraph 3 has been received by the requested Member
State.

Such a request must be accepted ‘without further for-
mality’. These terms were used to spell out that Member
States must not treat such requests as they would a
thereby
conventional

for mutual assistance,

request

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enabling the request to be spared some of the formalities
applicable when the request is one which the requested
Member State is to execute itself on its own territory. It
follows therefore that the requested Member State does
not have to check whether the request for interception
complies with its national law but must merely check
that
in the Convention for such
requests have been fulfilled, as for example the fact that
the information referred in Article 20(2)(a) (informing
the notified Member State prior to interception) has
actually been forwarded, otherwise interception cannot
commence.

the conditions set

(b) where the subject of the interception is present on
the territory of the requested Member State and that State
has received the information referred to in paragraphs 3
and 4.

Should this be the case, the requested Member State must
agree to the measure if such a measure would be taken
by it in a similar national case. It may also make its
consent subject to any conditions which would, under its
national law, have to be observed in a similar national
case. These could, for example, be conditions which
exclude certain categories of person from the measure or
which cover the use of the intercepted material. In the
latter case, the data protection measures in Article 23 of
the Convention are not applicable — that is if they relate
to the same matter.

Paragraph 6 lays down special rules governing requests for
interception, recording and subsequent transmission to the
requesting Member State of the recording of telecommuni-
cations (paragraph 1(b)). It is only when immediate trans-
mission is not possible that Member States are obliged to
comply with such requests. This is to be understood as
meaning an impossibility attributable to the requesting and/or
the requested Member State.

Paragraph 7 permits a Member State to declare, when giving
the notification provided for in Article 27(2), that it will apply
paragraph 6 only when it is unable to provide immediate
transmission. In other words, the fact that a requesting Member
State is unable to provide facilities for receiving immediate
transmission would not mean that the requested Member State
was obliged to comply with the request if that State were itself
able to transmit the telecommunications directly. Any Member
State which chooses to apply such a restriction could find itself
facing the opposition of the other Member States on grounds
of reciprocity. The possibility of making a declaration in
accordance with Article 18(7) was included in order to meet
the requirements of the United Kingdom, where the national
law and procedures do not allow for the systematic recording
of intercepted data.

Naturally, there is nothing to prevent a Member State, as is
already the practice, complying with a request within the
meaning of paragraph 1(b) in cases where direct transmission
is possible. It would be useful if the European Judicial Network
could provide details of each Member State’s practice in this
respect.

In addition, the Council felt that the mere fact that a Member
State was obliged to record intercepted telecommunications
should mean that the situation was treated as though the
subject of
the interception were present on its national
territory. It is for this reason that the text refers to paragraph 4
which deals with the further information to be provided in
support of a request, stating as it does that the requested
Member State may make its consent subject to the requested
measure being one that would be taken in a similar national
case, and also that it may make its consent subject to any
conditions which would have to be observed in a similar
national case. Restrictions on the duration of recording, or the
use to which the information is put come to mind here for
example. In the latter case, the data protection measures in
Article 23(1) and (2) of the Convention do not apply, if they
cover the same matter.

Paragraph 8 refers to requests for transcriptions of telecom-
munications recordings. As very considerable resources, par-
ticularly human resources, may be needed to deal with such
requests, the Convention provides for special arrangements in
such cases. First, the requesting Member State may only submit
such a request if it has a special reason for doing so. The text
— even if it does not say so explicitly — may be interpreted as
meaning that a Member State making such a request should
explain the reasons why it is asking for a transcription, for
example because it would be easier to find interpreters or
translators in the requested Member State than in the
requesting Member State for the language or dialect
in
which the intercepted telecommunications would probably be
conducted.

Lastly, the requested Member State will examine such requests
in accordance with its national law and procedures, which
means that should such law or procedures not permit the use
of transcriptions the Convention would not oblige that State
to amend them for that purpose. If, on the other hand, its law
does permit
the Member State concerned
transcriptions,
should comply with any request to that effect.

Paragraph 9 requires no special comment: it is in the interests
of both an investigation and the persons being investigated
that an interception measure remain confidential.

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Article 19

Interceptions of telecommunications in national territory
by the use of service providers

Paragraph 1 contains the rule which specifies that the Member
State in whose territory the gateway is situated permits the
installation of ‘remote control equipment’, the usefulness of
which is outlined in the general introduction and technical
data given above.

In paragraph 2 the Convention restricts the use of such ‘remote
access equipment’ to interceptions ordered for the purposes of
a criminal investigation in accordance with its national law by
the Member State which uses that equipment. In addition,
such ‘remote control equipment’ may only be used for
telecommunications sent and/or received by the subject from
the national territory of that Member State.

Paragraph 3 allows a requested Member State to use remote
access equipment on behalf of another Member State to
intercept telecommunications sent or received from its own
territory, in response to a request for assistance made pursuant
to Article 18(2)(b) (subject present in the territory of the
requested Member State, a territory with remote control
equipment in this case).

Paragraphs 1, 2 and 3 do not require Member States to use
remote access equipment. It is therefore for them to decide as
to the need to establish and use this system for the interception
of subjects present in their territory.

Paragraph 4 is intended to respond to the following situation:
in so far as a Member State has remote access equipment, it can
no longer, in principle, submit a request under Article 18(2)(a),
because it is no longer true that it ‘needs technical assistance’
as stated in that Article. Paragraph 4 waives this rule, so as not
to deprive Member States of the convenience of making a
single interception order through the gateway (see general
introduction and technical data above) in situations where it is
likely that a subject will move around a large number of
Member States, including the Member State whose authorities
need to carry out the interception.

Moreover, paragraph 4 highlights the fact that a Member State
may submit a request under Article 18 in cases where there is
no service provider in this Member State because the con-
ditions laid down in this Article, i.e. that it ‘needs technical
assistance’, are met.

In order
to provide the best possible framework for
implementing Article 19, the Council, when adopting the
Convention, made a declaration specifically providing that ‘the
Member States shall ... consult each other within the Council
on all practical and technical aspects related to the application
of the Convention’, going on to state that ‘the obligations
contained in Articles 4 and 5 of Directive 97/66/EC of the
European Parliament and of the Council of 15 December
1997, concerning the processing of personal data and the
protection of privacy in the telecommunications sector shall
be taken into account’.

Article 20

Interception of telecommunications without the technical
assistance of another Member State

The title of Article 20 is self-explanatory.
situations described in the explanatory technical details.

It covers the

limiting its
Paragraph 1 defines the scope of the Article,
application to criminal
investigations presenting certain
characteristics. The paragraph therefore does not contain any
definition of a criminal investigation, nor does it have any
implications for the other provisions of the Convention or the
conventions (see the third last recital).

The only function of the Article is to lay down an obligation
to inform another Member State in certain interception
situations relating to cases which in most Member States
would be equivalent to a criminal investigation. It cannot be
interpreted, a contrario, as authorising interception in other
situations which it does not cover, those situations being
governed by the general principles of international law, which
remain unaffected by the Convention. The Council emphasised
this point in the penultimate recital.

The Council agreed to make a United Kingdom declaration on
this point an integral part of the Convention, stating the
conditions for applying Article 20 in the United Kingdom with
particular regard to interceptions by the security service in
cases where, in accordance with the United Kingdom’s national
law, that service acts in support of an investigation presenting
the characteristics described in Article 20(1). The words
‘detection of serious crime’ in the declaration are the terms
used in United Kingdom law on the subject at the time the
Convention was signed and are not intended to widen the
scope of Article 20.

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Paragraph 2 imposes an obligation on any intercepting
Member State, when in the situation referred to by this
Article and within the scope of the Article as referred to in
paragraph 1, to inform the Member State on whose territory
the subject of the interception is present (the notified Member
State). This information must be provided:

permissible pursuant to the national law of the State
concerned or where that State would be entitled to
refuse mutual assistance on the basis of Article 2 of
the European Convention on Mutual Assistance in
Criminal Matters. The reasons for such a require-
ment must be given in writing.

— prior to the interception in cases where the requesting
Member State knows when ordering the interception that
the subject is on the territory of the notified Member
State. In such circumstances interception cannot com-
mence until the measure has been agreed to by another
Member State (the notified Member State) under the
conditions laid down in paragraph 4,

— where interception is already taking place, immediately
after the requesting Member State becomes aware that
the subject is present on the territory of the notified
Member State.

Paragraph 3 lists the information which has to be notified by
the intercepting Member State at the same time as the main
body of information.

Paragraph 4 lays down the rules applicable once the infor-
mation stipulated in paragraphs 2 and 3 has been transmitted.

Paragraph 4(a) obliges the notified Member State to respond
without delay, and at the latest within 96 hours, to the
intercepting Member State so as not to hinder the proper
course of the investigations.

There are two possibilities open to the notified Member State,
depending on whether it is (a) able or (b) unable to reply
immediately:

(a)

paragraph 4(a)(i), (ii) and (iii) covers cases where the
notified State is able to take a decision on a notified
interception within 96 hours. It has two options.

1.

2.

The notified Member State may agree to the intercep-
tion or else make its consent subject to any con-
ditions which have to be observed in a similar
national case. This is the same procedure as that
adopted for Article 18(5)(b).

It may also require the interception not to be carried
out (for those cases referred to in Article 20(2)(a),
where prior information has been provided) or to
be terminated [the cases referred to in Article
20(2)(b), where someone who is already the subject
of an interception enters the territory of a new
Member State] where the interception would not be

In this second case (Article 20(4)(b)(ii)) the notified
Member State may also require that the material
obtained from the interception up to the moment
when it announces its refusal — whether the
material was obtained before or after notification —
should not be used, or may only be used under
certain conditions that it specifies. The intercepting
Member State must be informed of the reasons for
such a requirement. It is understood that Member
States will show flexibility regarding the use of
for the purpose of
already intercepted material
taking urgent measures to prevent an immediate
and serious threat to public security. It might also
be necessary in some cases to use the material
already intercepted in proceedings
concerning
claims for damages in relation to the interception
carried out or action taken on the basis of
Article 20(4)(b). Article 20(4)(a)(iii) does not prevent
the intercepting Member State from fully informing
any Court in response to any legal action brought
against that Member State;

(b) paragraph 4(a)(iv) covers cases where the notified Member
State is unable to reply within 96 hours. It is assumed
here that such inability to reply is due to special
procedures having to be followed by the notified Member
State before it can take a decision: these procedures
might, for example, be specifically imposed in certain
countries by the status or professional activity of certain
persons, such as Members of Parliament or lawyers. In
such case the notified Member State may, after consulting
the intercepting Member State, request a further period
of not more than eight days in order to carry out internal
procedures under its national
law, which may, where
appropriate, include certain checks. The notified Member
State must inform the intercepting Member State in
writing of the reasons justifying the requested extension
of the deadline. The extension starts on expiry of the
initial period of four days.

Paragraph 4(b) was drafted to govern situations where a
Member State has not yet taken any decision regarding a
notified interception. The Council felt that it was important to
have clear rules in such cases in order to provide a stronger
framework of legal certainty for investigations.

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The following rule has been posited: until a Member State has
replied to a request either by the end of the initial 96-hour
deadline or by the end of the further period of no more than
eight days, the intercepting Member State may continue the
interception. It may not use the material already intercepted
except where otherwise agreed with the notified Member State
or for taking urgent measures to prevent an immediate and
serious threat to public security. The latter phrase must not be
understood in too restrictive a manner and would cover, for
example, measures taken in respect of crimes involving threats
to human life, serious drugs offences and similar serious
crimes.

Article 21

Responsibility for charges made by telecommunications
operators

This Article specifies that it is the requesting Member State
which must bear the interception costs. These are the costs of
each separate interception, and not those necessarily incurred
by telecommunications operators in modifying their systems
to permit interceptions.

follows

the same line of

reasoning as
Paragraph 4(c)
Article 18(4). However, the text clearly states that any such
request for further information does not call into question the
rules set out in paragraph 4(b), unless otherwise agreed by the
Member States concerned.

The Council felt that, if the system thus established was to
function effectively, Member States would have to be able to
react swiftly. Not only does paragraph 4(d) contain a general
obligation to ensure that a reply is given within 96 hours, but
it also obliges Member States to establish contact points, on
duty 24 hours a day, and include them in their statements
under Article 24(1)(e).

Paragraphs 5 and 6 deal with the confidentiality of the
information provided by the intercepting Member State when
the interception is notified.

Paragraph 5 lays down the principle that the information
provided must be kept confidential. This provision has been
included to ensure that ongoing investigations can be conduc-
ted with the required secrecy.

Paragraph 6 provides for possible transmission of particularly
sensitive information through specific authorities. However,
the Member States concerned must agree to this on a bilateral
basis. Such an agreement could be concluded in general terms
and not in each separate case. If no bilateral agreement exists,
the normal channels will be used.

Paragraph 7 covers Member States which do not wish to
receive information pursuant to Article 20.

Article 22

Bilateral arrangements

This Article specifies that Member States may conclude
bilateral or multilateral agreements for the purpose of facilitat-
ing the exploitation of present and future technical possibilities
regarding the lawful interception of telecommunications.

TITLE IV

Article 23

Protection of personal data

This is the first time that a convention on judicial cooperation
in criminal matters has incorporated rules on protecting
personal data exchanged between two or more Member States.
The Council, however, saw a need for these rules, particularly
given the inclusion in the Convention of certain methods of
investigation which are not exclusively judicial.

Scope of the Article

The Article applies ‘to personal data communicated under this
Convention’. The expression ‘personal data’ has been used
within the meaning of the definition of that expression in
Article 2(a) of the 1981 Council of Europe Convention for the
Protection of Individuals with regard to Automatic Processing
of Personal Data. Article 2(a) provides that ‘personal data’
means any information relating to an identified or identifiable
individual (‘data subject’). That definition applies irrespective
of the way in which the personal data concerned are filed or
processed. Article 23 consequently applies to both data
processed automatically and data not processed automatically.

At the same time, the obligations of Member States under the
1981 Convention are not affected by Article 23 in any way.
The definition is to be understood as implying that an
identifiable person is one who can be identified, directly or

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indirectly, by reference to an identification number or to one
or more factors specific to his or her physical, mental,
physiological, economic, cultural or social identity.

— data obtained in the territory of the requesting Member
State pursuant to Article 19 (Interceptions of telecom-
munications on national territory by the use of service
providers): data derived from the interception of the
telecommunications of a subject present in the territory
of the intercepting Member State.

The innovative arrangements established by the Convention
led the drafters to specify what should happen to data
exchanged in certain specific situations.

Arrangements for the use of personal data

Accordingly, paragraph 2 specifies that personal data ‘obtained
otherwise’ as opposed to ‘communicated’ are also covered
under the Convention. It was important to include in the scope
of all the provisions of this Article data obtained pursuant to
Articles 9 (Temporary transfer of persons held in custody for
purposes of investigation) and 20 (Interception of telecom-
munications without the technical assistance of another Mem-
ber State). Similarly, as regards Articles 10 (Hearing by
videoconference) and 11 (Hearing of witnesses and experts by
telephone conference), the data are not really communicated
but should not receive less protection as a result.

it was considered expedient for paragraph 6
By contrast,
explicitly to exclude from the scope of Article 23 ‘personal
data obtained by a Member State under this Convention and
originating from that Member State’. That provision states an
it was nevertheless
obvious, explicit principle but
felt
in an Article dealing with the
important to spell
restrictions on the use of data communicated or obtained
through the Convention. The negotiators were thinking of the
following situations in particular:

it out

— data obtained by videoconference (Article 10) or tele-
phone conference (Article 11): data derived from a
statement made by a witness in one Member State during
a videoconference, for example in a confrontation where
that procedure exists, in so far as the data are used by the
competent authorities of the Member State on whose
territory the witness is present,

The purpose for which personal data will be used dictates the
conditions in which they may be used i.e. with or without the
prior consent of the Member State which forwarded them.

In three cases, the Member State to which such data have been
sent may use them without the prior consent of the Member
State which forwarded them:

— the first case (paragraph 1(a)) covers use ‘for the purpose
of proceedings to which this Convention applies’. These
proceedings are those defined by the conventions men-
tioned in Article 1 and those referred to in Article 3
(Proceedings in connection with which mutual assistance
is also to be afforded). These proceedings can obviously
differ from those for which judicial assistance has been
requested,

— the second case (paragraph 1(b)) covers use ‘for other
judicial and administrative proceedings directly related to
proceedings referred to under point
(a)’. The words
‘directly related’ may include the following examples, inter
alia:

— commercial proceedings related to following a

fraudulent bankruptcy,

— proceedings for withdrawing parental authority
related to criminal proceedings for ill-treatment of
children,

— proceedings for withdrawing a firearms licence
related to criminal proceedings for violence with
firearms.

In the cases referred to in paragraph 1(b), personal data
letter of
obtained in the context of an international
request may be used without the prior consent of the
Member State which forwarded them,

— data collected by joint investigation teams (Article 13):
data derived from the hearing of a witness on the territory
of the Member State which wishes to use those data. It
should be noted that this is an exception to Article 13(10),
confined to those cases where the data are ‘otherwise
available’ (see the text of that paragraph),

— the last case (paragraph 1(c)) covers the prevention of ‘an
immediate and serious threat to public security’. This
concept is the same as that in Article 20(4)(b)(ii) and its
inclusion in this Article follows the same logic. The
statement made by the Federal Republic of Germany on
this point should be borne in mind; this questioned the
extent to which data collected by the legal authorities in

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one Member State may be used by the police services in
another Member State for preventing serious risks and
combating serious crime in the future.

As regards the use of personal data for any other purpose,
paragraph 1(d) stipulates that the Member State wanting to
use them must obtain the prior consent of the Member State
which has sent them unless it has obtained the consent of the
data subject.

Paragraph 7 lays down a special arrangement for Luxembourg.
That State may, at the time of signing the Convention, declare
that, when Luxembourg communicates personal data to
another Member State under the Convention, the following
provisions shall apply: depending on the particular case,
Luxembourg may require that the data may only be used for
the purposes referred to in paragraph 1(a) and (b) with its prior
consent in respect of proceedings for which Luxembourg
could have refused or limited the transmission or use of the
personal data in accordance with the provisions of
the
Convention or the instruments referred to in Article 1.
Luxembourg cannot, by virtue of
this declaration, make
systematic use of the possibility afforded by paragraph 7.
The last subparagraph of paragraph 7 also specifies that
Luxembourg must give reasons in writing for refusing to
consent to a request to use data in the framework of this
provision.

Paragraph 3 provides that the communicating Member State
may require the Member State to which the personal data have
been transferred to give information on the use made of the
data. To avoid excessive bureaucracy, a Member State may not
make systematic use of the option given in this Article.

Compatibility with special data protection rules

Since certain provisions in the Convention include special
rules on data protection, it was necessary to define precisely
the relations between these specific rules and the general rules
laid down in this Article. This is done in paragraphs 4 and 5.

Paragraph 4 covers the cases where the Convention accords
the Member States the right to attach certain conditions to the
use of data they transmit. This Article lays down that where
conditions on the use of personal data have been imposed at
the time of transmitting the data, these conditions will prevail
over the rules in Article 23. Where no such conditions have
been imposed, Article 23 will apply.

Paragraph 5 stipulates that the provisions governing the use of
data contained in Article 13(10), specially adapted to the
original situation from the point of view of the assistance
afforded by the joint investigation teams, will take precedence
over the general rules laid down in Article 23.

TITLE V

FINAL PROVISIONS

Article 24

Statements

This Article takes account of the fact that, under the provisions
of the Convention, certain additional authorities within Mem-
ber States will become competent
for mutual assistance
purposes. In that regard it provides that statements are to be
made by the Member States with details of the authorities
which are competent for the application of the Convention,
with particular reference to a number of its provisions, and
similarly the authorities competent to deal with the application
between Member States of the mutual assistance provisions of
the instruments mentioned in Article 1(1). These statements,
which may be amended at any stage, are not to include
authorities which have already been designated for the pur-
poses of the operation of the 1959 Convention and the
Benelux Treaty.

Given that Member States can specify different authorities for
different provisions of the Convention, it is essential that the
statements made under this Article are fully clear as to the
exact competence of each of the authorities named in the
statements.

Article 25

Reservations

This Article prevents Member States from entering reservations
to the Convention other than those for which express provision
is made in the Convention. Reservations are provided for in
Articles 6(3), 6(7), 9(6), 10(9), 14(4), 18(7) and 23(7).

Article 26

Territorial application

This Article makes arrangements for the application of the
Convention, in due course, to Gibraltar, the Channel Islands
and the Isle of Man.

On the adoption of the Act establishing the Convention, the
Council adopted a declaration which specifies that this Article
is without prejudice to the application of the Convention to
the territories of Member States other than the United Kingdom
and does not affect the right of Member States to extend the
application of the Convention to their overseas countries and
territories.

29.12.2000

EN

Official Journal of the European Communities

C 379/29

Article 27

Entry into force

This Article governs the entry into force of the Convention in
a manner which is somewhat different from the rules estab-
lished in these matters by earlier conventions adopted by the
European Union. In this regard no departure was made from
Article 34(2)(d) of the Treaty on European Union.

The Convention comes into force 90 days after completion of
the procedures necessary for the adoption of the Convention
by the eighth State which was a Member of the European
Union on 29 May 2000 when the Act establishing the
Convention was adopted by the Council. The Convention will
operate among the eight Member States in question and it will
apply to each of the other Member States 90 days after they
complete their adoption procedures. The entry into force of
the Convention gives rise to the implementation of Article 35
of the Treaty on European Union on the jurisdiction of the
Court of Justice of the European Communities.

its adoption of

As in judicial cooperation instruments concluded previously
between the Member States and within the Union, paragraph 5
allows for the possibility whereby each Member State, at the
the Convention or at any time
time of
subsequently, can issue a declaration making the Convention
applicable in advance vis-à-vis any other Member States
that have made a similar declaration. This will enable the
Convention to be implemented as soon as possible between
the Member States most concerned. A declaration made under
the said paragraph takes effect 90 days after being deposited.

Paragraph 6 is concerned with commencement matters and it
restricts the application of the Convention to mutual assistance
proceedings which are initiated after the Convention has
entered into force for the Member States concerned.
In
addition, however, the provisions of the Convention will
operate between two Member States which have made declar-
ations which are in force in respect of anticipated application
under paragraph 5.

Article 28

Accession of new Member States

This Article opens the Convention for accession by any State
which becomes a Member of the European Union, and lays
down the arrangements for such accession.

Where the Convention is already in force when a new Member
State accedes, it will come into force with respect to that

Member State 90 days after the deposit of its instrument of
accession. However, if the Convention is still not in force
90 days after that State’s accession, it will come into force with
respect to that State at the time of entry into force specified in
Article 27. An acceding State will also be able to make a
declaration of anticipated application as provided for in
Article 27(5).

Article 29

Entry into force for Iceland and Norway

This Article contains the arrangements for the entry into force
for Iceland and Norway of the provisions of the Convention
specified in Article 2(1). These arrangements are governed by
the Agreement of 18 May 1999 concluded by the Council,
Iceland and Norway concerning the implementation, appli-
cation and development of the Schengen acquis.

Essentially, the position, as set out in paragraph 1, is that the
relevant provisions of the Convention will come into operation
for Iceland and Norway 90 days after each of those countries
provides notification of
its appropriate
constitutional requirements. When that happens, the pro-
visions will apply in their mutual assistance arrangements with
any Member State for which the Convention is already in
force. It should be noted, however, that anticipated application
by Iceland and Norway has not been provided for.

the fulfilment of

Paragraph 2 covers the situation where the Convention enters
into force for a Member State when the provisions referred to
in Article 2(1) are already in operation in relation to Iceland
and/or Norway. Paragraph 3 provides that those provisions
shall not become binding on Iceland and Norway before the
date which will be determined in accordance with Article 15(4)
of the Agreement referred to in Article 29(1). Paragraph 4 of
this Article ensures that these provisions will enter into force
for Iceland and/or Norway at the latest when they become
operational for all the 15 Member States who were members
of the Union when the Convention was adopted.

Article 30

Depositary

This Article provides that the Secretary-General of the Council
is the depositary for the Convention. The Secretary-General
will inform the Member States of any notification received
from Member States in relation to the Convention. These
notifications are to be published in the Official Journal of the
European Communities as well as relevant information on the
progress of adoptions, accessions, declarations and reser-
vations.