Council Act of 16 October 2001 establishing, in accordance with Article 34 of the Treaty on European Union, the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union
Date: 2001-11-21
Institutions: Council of the European Union
Subjects: Protocol (EU), criminal law, judicial cooperation

21.11.2001

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Official Journal of the European Communities

C 326/1

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

COUNCIL ACT

of 16 October 2001

establishing, in accordance with Article 34 of the Treaty on European Union, the Protocol to the
the
Convention on Mutual Assistance in Criminal Matters between the Member States of

European Union

(2001/C 326/01)

THE COUNCIL OF THE EUROPEAN UNION,

(3)

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

Having regard to the initiative of the French Republic (1),

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

Whereas:

(1)

(2)

For the purposes of achieving the objectives of
the
Union the rules on mutual assistance in criminal matters
the European Union
between the Member States of
should be improved and a Protocol, as set out in the
Annex hereto, should be established to that end.

Article 8 of the Protocol falls within the scope of Article
1 of Council Decision 1999/437/EC of 17 May 1999
on certain arrangements for
the
Agreement concluded by the Council of the European
Union and the Republic of Iceland and the Kingdom of
Norway concerning the latters’ association with the
implementation, application and development of
the
Schengen acquis (3).

the application of

Done at Luxembourg, 16 October 2001.

The procedures set out in the Agreement concluded by
the Council of the European Union with the Republic of
Iceland and the Kingdom of Norway concerning the
latters’ association with the implementation, application
and development of the Schengen acquis (4) have been
observed in respect of this provision.

(4) When the adoption of

this Act

is notified to the
Iceland and the Kingdom of Norway in
Republic of
accordance with Article 8(2)(a) of the aforementioned
Agreement,
those two States will be informed in
particular of the contents of Article 16 on entry into
force for Iceland and Norway,

HAS DECIDED that the Protocol, the text of which is given in
the Annex and which has been signed today by the
Representatives of the Governments of the Member States of
the Union, is hereby established,

RECOMMENDS that it be adopted by the Member States in
accordance with their respective constitutional requirements,

INVITES the Member States to begin the procedures applicable
for that purpose before 1 July 2002.

For the Council

The President

D. REYNDERS

(1) OJ C 243, 24.8.2000, p. 11.
(2) Opinion delivered on 4 October 2001 (not yet published in the

Official Journal).

(3) OJ L 176, 10.7.1999, p. 31.

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

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ANNEX

PROTOCOL

established by the Council in accordance with Article 34 of the Treaty on European Union to the
the
Convention on Mutual Assistance in Criminal Matters between the Member States of

European Union

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

REFERRING to the Council Act of 16 October 2001 establishing the Protocol to the Convention on Mutual Assistance
in Criminal Matters between the Member States of the European Union,

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

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

CONVINCED of the need for additional measures in the field of mutual assistance in criminal matters for the purpose
of the fight against crime, including in particular organised crime, money laundering and financial crime,

HAVE AGREED UPON THE FOLLOWING PROVISIONS, which shall be annexed to, and form an integral part of, the
Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May
2000 (2), hereinafter referred to as the (cid:145)2000 Mutual Assistance Convention(cid:146):

Article 1

Convention), or in the Annex to that Convention, as
amended, or

Request for information on bank accounts

take the measures necessary to determine,

Each Member State shall, under the conditions set out in
1.
this Article,
in
answer to a request sent by another Member State, whether a
natural or legal person that
is the subject of a criminal
investigation holds or controls one or more accounts, of
whatever nature, in any bank located in its territory and, if so,
provide all the details of the identified accounts.

The information shall also, if requested and to the extent that
it can be provided within a reasonable time, include accounts
for which the person that is the subject of the proceedings has
powers of attorney.

The obligation set out in this Article shall apply only to
2.
the extent that the information is in the possession of the bank
keeping the account.

The obligation set out in this Article shall apply only if

3.
the investigation concerns:

(cid:151) an offence punishable by a penalty involving deprivation
of liberty or a detention order of a maximum period of at
least four years in the requesting State and at least two
years in the requested State, or

(cid:151) an offence referred to in Article 2 of the 1995 Convention
on the Establishment of a European Police Office (Europol

(cid:151) to the extent that it may not be covered by the Europol
Convention, an offence referred to in the 1995 Convention
on the Protection of the European Communities’ Financial
Interests, the 1996 Protocol thereto, or the 1997 Second
Protocol thereto.

4.

The authority making the request shall, in the request:

(cid:151) state why it considers that the requested information is
likely to be of substantial value for the purpose of the
investigation into the offence,

(cid:151) state on what grounds it presumes that banks in the
to the

requested Member State hold the account and,
extent available, which banks may be involved,

(cid:151) include any information available which may facilitate the

execution of the request.

5. Member States may make the execution of a request
according to this Article dependent on the same conditions as
they apply in respect of requests for search and seizure.

(1) OJ L 344, 15.12.1997, p. 7.
(2) OJ C 197, 12.7.2000, p. 3.

The Council may decide, pursuant to Article 34(2)(c) of
to extend the scope of

6.
the Treaty of European Union,
paragraph 3.

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Article 2

Article 5

Requests for information on banking transactions

Obligation to inform

On request by the requesting State, the requested State
1.
shall provide the particulars of specified bank accounts and of
banking operations which have been carried out during a
specified period through one or more accounts specified in the
request, including the particulars of any sending or recipient
account.

2.
The obligation set out in this Article shall apply only to
the extent that the information is in the possession of the bank
holding the account.

3.
The requesting Member State shall in its request indicate
why it considers the requested information relevant for the
purpose of the investigation into the offence.

4. Member States may make the execution of a request
according to this Article dependent on the same conditions as
they apply in respect of requests for search and seizure.

Article 3

Requests for the monitoring of banking transactions

Each Member State shall undertake to ensure that, at the
1.
request of another Member State, it is able to monitor, during
a specified period,
the banking operations that are being
carried out through one or more accounts specified in the
request and communicate the results thereof to the requesting
Member State.

2.
The requesting Member State shall in its request indicate
why it considers the requested information relevant for the
purpose of the investigation into the offence.

3.
The decision to monitor shall be taken in each individual
case by the competent authorities of the requested Member
law of that Member
State, with due regard for the national
State.

4.
The practical details regarding the monitoring shall be
agreed between the competent authorities of the requesting
and requested Member States.

that

If the competent authority of the requested Member State in
the course of the execution of a request for mutual assistance
considers
undertake
be
investigations not initially foreseen, or which could not be
specified when the request was made,
immediately
inform the requesting authority accordingly in order to enable
it to take further action.

appropriate

it may

it shall

to

Article 6

Additional requests for mutual assistance

the

competent

authority of

1. Where
requesting
Member State makes a request for mutual assistance which is
additional to an earlier request,
it shall not be required to
provide information already provided in the initial request. The
additional request shall contain information necessary for the
purpose of identifying the initial request.

the

2. Where, in accordance with the provisions in force, the
competent authority which has made a request for mutual
assistance participates in the execution of the request in the
requested Member State, it may, without prejudice to Article
the 2000 Mutual Assistance Convention, make an
6(3) of
additional request directly to the competent authority of the
requested Member State while present in that State.

Article 7

Banking secrecy

A Member State shall not invoke banking secrecy as a reason
for refusing any cooperation regarding a request for mutual
assistance from another Member State.

Article 8

Fiscal offences

Article 4

Confidentiality

1. Mutual assistance may not be refused solely on the
ground that
the request concerns an offence which the
requested Member State considers a fiscal offence.

Each Member State shall take the necessary measures to ensure
that banks do not disclose to the bank customer concerned or
to other third persons that information has been transmitted
to the requesting State in accordance with Articles 1, 2 or 3 or
that an investigation is being carried out.

If a Member State has made the execution of a request
2.
for search and seizure dependent on the condition that the
offence giving rise to the request is also punishable under its
law, this condition shall be fulfilled, with regard to offences
referred to in paragraph 1, if the offence corresponds to an
offence of the same nature under its law.

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The request may not be refused on the ground that the law of
the requested Member State does not impose the same kind of
tax or duty or does not contain a tax, duty, customs and
exchange regulation of
the
requesting Member State.

the same kind as the law of

Article 50 of the Schengen Implementation Convention

3.
is hereby repealed.

the requested Member State,
for possible evaluation of
functioning of judicial cooperation between Member States.

the

The competent authorities of

2.
the requesting Member
State may report to Eurojust, once it has been established, any
problem encountered concerning the execution of a request in
relation to the provisions referred to in paragraph 1 for a
possible practical solution in accordance with the provisions
laid down in the instrument establishing Eurojust.

Article 9

Political offences

Article 11

Reservations

For the purposes of mutual

1.
legal assistance between
Member States, no offence may be regarded by the requested
Member State as a political offence, an offence connected with
a political offence or an offence inspired by political motives.

2.
Each Member State may, when giving the notification
referred to in Article 13(2), declare that it will apply paragraph
1 only in relation to:

(a)

referred to in Articles 1 and 2 of

the offences
the
European Convention on the Suppression of Terrorism of
27 January 1977; and

(b) offences of conspiracy or association, which correspond to
the description of behaviour referred to in Article 3(4) of
the Convention of 27 September 1996 relating to
extradition between the Member States of the European
Union, to commit one or more of the offences referred to
in Articles 1 and 2 of the European Convention on the
Suppression of Terrorism.

Reservations made pursuant

3.
the
European Convention on the Suppression of Terrorism shall
not apply to mutual legal assistance between Member States.

to Article 13 of

Article 10

Forwarding refusals to the Council and involvement of
Eurojust

1.

If a request is refused on the basis of:

(cid:151) Article 2(b) of the European Mutual Assistance Convention

or Article 22(2)(b) of the Benelux Treaty, or

(cid:151) Article 51 of the Schengen Implementation Convention or
Article 5 of the European Mutual Assistance Convention,
or

(cid:151) Article 1(5) or Article 2(4) of this Protocol,

and the requesting Member State maintains its request, and no
solution can be found, the reasoned decision to refuse the
request shall be forwarded to the Council for information by

No reservations may be entered in respect of this Protocol,
other than those provided for in Article 9(2).

Article 12

Territorial application

The application of this Protocol to Gibraltar will take effect
when the 2000 Mutual Assistance Convention has taken effect
in Gibraltar, in accordance with Article 26 of that Convention.

Article 13

Entry into force

This Protocol shall be subject to adoption by the Member
constitutional

in accordance with their

respective

1.
States
requirements.

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

the European Union of

3.
This Protocol shall enter into force in the eight Member
States concerned 90 days after the notification referred to in
paragraph 2 by the State, member of the European Union at
the time of adoption by the Council of the Act establishing
this Protocol, which is the eighth to complete that formality.
If, however, the 2000 Mutual Assistance Convention has not
entered into force on that date, this Protocol shall enter into
force on the date on which that Convention enters into force.

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

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

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6.
Notwithstanding paragraphs 3 to 5, the entry into force
or application of this Protocol shall not take effect in relations
between any two Member States before the entry into force or
application of
the 2000 Mutual Assistance Convention
between these Member States.

This Protocol shall apply to mutual assistance initiated
7.
after the date on which it enters into force, or is applied
pursuant
to paragraph 5, between the Member States
concerned.

Article 14

Acceding States

This Protocol shall be open to accession by any State
1.
which becomes a member of the European Union and which
accedes to the 2000 Mutual Assistance Convention.

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

The instruments of accession shall be deposited with the

3.
depositary.

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

5. Where this Protocol is not yet in force at the time of the
deposit of their instrument of accession, Article 13(5) shall
apply to acceding Member States.

6.
Notwithstanding paragraphs 4 and 5, the entry into force
or application of this Protocol with respect to the acceding
State shall not
take effect before the entry into force or
application of the 2000 Mutual Assistance Convention with
respect to that State.

the latters’ association with the implementation, application
and development of
(hereinafter
referred to as the (cid:145)Association Agreement(cid:146)).

the Schengen acquis (1)

Article 16

Entry into force for Iceland and Norway

1. Without prejudice to Article 8 of
the Association
Agreement, the provision referred to in Article 15 shall enter
into force for Iceland and Norway 90 days after the receipt by
the Council and the Commission of the information pursuant
to Article 8(2) of the Association Agreement upon fulfilment
of their constitutional requirements, in their mutual relations
with any Member State for which this Protocol has already
entered into force pursuant to Article 13(3) or (4).

2.
Any entry into force of this Protocol for a Member State
after the date of entry into force of the provision referred to in
Article 15 for Iceland and Norway, shall render that provision
also applicable in the mutual relations between that Member
State and Iceland and Norway.

The provision referred to in Article 15 shall in any event
3.
not become binding on Iceland and Norway before the entry
into force of the provisions referred to in Article 2(1) of the
2000 Mutual Assistance Convention with respect to those two
States.

4. Without prejudice to paragraphs 1, 2 and 3,
the
provision referred to in Article 15 shall enter into force for
Iceland and Norway not later than on the date of entry into
force of this Protocol for the fifteenth State, being a member
of the European Union at the time of the adoption by the
Council of the Act establishing this Protocol.

Article 17

Depositary

Article 15

Position of Iceland and Norway

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

Article 8 shall constitute measures amending or based upon
the provisions referred to in Annex A to the Agreement
concluded by the Council of the European Union with the
Republic of Iceland and the Kingdom of Norway concerning

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

Journal of

IN WITNESS WHEREOF, the undersigned plenipotentiaries have hereunto set their hands.

in the Danish, Dutch,
Done at Luxembourg, on 16 October 2001 in a single original
English, Finnish, French, German, Greek,
Italian, Portuguese, Spanish and Swedish
Irish,
languages, each text being equally authentic, the original being deposited in the archives of
the General Secretariat of the Council of the European Union. The Secretary-General shall
forward a certified copy thereof to each Member State.

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

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Pour le gouvernement du Royaume de Belgique
Voor de Regering van het Koninkrijk Belgiº
F(cid:252)r die Regierung des K(cid:246)nigreichs Belgien

For regeringen for Kongeriget Danmark

F(cid:252)r die Regierung der Bundesrepublik Deutschland

Cia sgm jtb(cid:221)qmgrg sgy Ekkgmij(cid:222)y Dglojqas(cid:223)ay

Por el Gobierno del Reino de Espaæa

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Pour le gouvernement de la RØpublique fran(cid:231)aise

Thar ceann Rialtas na h(cid:201)ireann
For the Government of Ireland

Per il governo della Repubblica italiana

Pour le gouvernement du Grand-DuchØ de Luxembourg

Voor de Regering van het Koninkrijk der Nederlanden

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F(cid:252)r die Regierung der Republik (cid:214)sterreich

Pelo Governo da Repœblica Portuguesa

Suomen hallituksen puolesta
P(cid:229) finska regeringens v(cid:228)gnar

P(cid:229) svenska regeringens v(cid:228)gnar

For the Government of the United Kingdom of Great Britain and Northern Ireland