Explanatory report to the Protocol to the 2000 Convention on mutual assistance in criminal matters between the Member States of the European Union (Text approved by the Council on 14 October 2002)
Date: 2002-10-14
Institutions: Council of the European Union
Subjects: bank deposit, cooperation policy, criminal law, criminal procedure, exchange of information, judicial cooperation in criminal matters in the EU

24.10.2002

EN

Official Journal of the European Communities

C 257/1

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

Explanatory report to the Protocol to the 2000 Convention on mutual assistance in criminal
matters between the Member States of the European Union

(Text approved by the Council on 14 October 2002)

(2002/C 257/01)

I. INTRODUCTION

In June 2000 France introduced a draft instrument relating to
mutual assistance in criminal matters between the Member
States of the Union. The initiative was made in the light of
the conclusions of the European Council held at Tampere on
15 and 16 October 1999,
in which it was concluded that
serious economic crime is one of the sectors of particular
relevance and that money laundering is at the very heart of
organised crime and should be rooted out wherever it occurs.
The initiative also took into account the results of the mutual
evaluations relating to the implementation of
international
obligations
in the field of mutual assistance in criminal
matters that have been carried out on the basis of the 1997
joint action (1).

The initiative was originally framed as a new Convention
in particular the 1959 Council of
designed to supplement
Europe Convention on mutual assistance in criminal matters
(hereinafter referred to as the ‘European Mutual Assistance
Convention’) and the Convention on mutual assistance in
criminal matters between the Member States of the European
Union adopted on 29 May 2000 (2) (hereinafter referred to as
‘the 2000 Convention’). In the course of the negotiations the
instrument was
to the 2000
changed into a Protocol
Convention and supplemented by certain provisions which
were not originally covered (Articles 3 and 9). One provision
in the original draft relating to abolishment of the dual crimi-
nality requirement was not included in the Protocol.

was entered in the minutes of the Council at the adoption of
the instrument (4).

II. GENERAL OBSERVATIONS

the provisions of

the provisions in Article 24 of

As stated in the preamble of the Protocol, the provisions of the
Protocol are annexed to and form an integral part of the 2000
Convention. This implies that
the 2000
Convention apply to those of the Protocol, and vice versa, in
the same way as they would have done if they had all been in
the same instrument. The 2000 Convention,
in its turn,
supplements the European Mutual Assistance Convention, the
1978 additional protocol to that Convention as well as the
Schengen Implementation Convention and the Benelux Treaty
(see Article 1 of the 2000 Convention). This means, inter alia,
the European Mutual
that
Assistance Convention relating to the definition of
‘judicial
authority’, Article 3 of the same Convention relating to the
manner in which a request shall be executed, Article 4 of
the 2000 Convention relating to formalities and procedures
in the execution of requests and Article 6 of
the 2000
Convention allowing for requests to be made by means of
fax or
receiving
conditions
Member State to establish authenticity and providing for
direct
transmission of requests between judicial authorities
apply also to the measures provided for in the Protocol. Like
the European Mutual Assistance Convention and the 2000
Convention,
the Protocol are of general
application with one important exception: the provisions in
Article 1 apply only to certain offences.

the provisions of

e-mail under

allowing the

The Protocol was established by the Council on 16 October
2001 (3) and was signed on the same day by all Member States.
Norway and Iceland informed the Council that they were in
agreement with the content of the provision applicable to them
(Article 8). A declaration by the Council relating to the dual
criminality requirement and other issues of refusals of requests

(1) Joint action establishing a mechanism for evaluating the application
level of international under-
and the implementation at national
takings in the fight against organized crime (OJ L 344, 15.12.1997,
p. 7).

(2) OJ C 197, 12.7.2000, p. 1. See also the explanatory report on the

Convention in OJ C 379, 29.12.2000, p. 7.

(3) OJ C 326, 21.11.2001, p. 1.

The provisions of
the Protocol can be divided into three
different parts: Assistance relating to bank accounts (Articles
1-4), Additional requests (Articles 5 and 6) and Grounds for
refusals
(Articles 7-10). Articles 11-16 include provisions
relating to reservations, entry into force, accession of new
Member States, position of and entry into force for Iceland
and Norway and depository.

(4) The Council declaration reads as follows: ‘The Council takes note of
the fact that the debate on the abolition of the dual criminality
requirement has not allowed for the establishment of a definitive
position of the Member States on that question. The Council agrees
that the issue of refusals of requests for mutual assistance, including
in particular refusals based on the dual criminality requirement,
shall be further examined by the Council
two years after the
entry into force of the Protocol in the light of any information
transmitted to the Council and to Eurojust pursuant to Article 10
of the Protocol’.

C 257/2

EN

Official Journal of the European Communities

24.10.2002

III. COMMENTS ON INDIVIDUAL ARTICLES

A. Assistance relating to bank accounts

Articles 1 to 4 of the Protocol contain provisions, which aim at
improving mutual assistance in respect of information held by
banks. Article 1 can be used to get
information on bank
accounts
requesting Member State
the
in cases where
considers that the information is likely to be of substantial
value for the purpose of an ongoing investigation. Article 2
sets out provisions on assistance for the purpose of getting
information on operations carried out during a certain period
on a specified bank account, whereas Article 3 contains
provisions on assistance relating to the monitoring of any
operations that may take place in the future on a specified
bank account. Article 4 includes provisions to ensure that
any assistance given in accordance with Articles 1 to 3 is
not made known to the holder of the bank account or any
third persons.

Article 1: Requests for information on bank accounts

This Article obliges Member States to, upon request in concrete
cases, trace bank accounts that are located in its territory, and
thereby indirectly obliges the Member States to set up a
requested
they
mechanism whereby
information. The scope of
limited by
paragraphs 2, 3 and 5. The intention of paragraph 4 is to
restrict
the request where possible to certain banks and/or
accounts and to facilitate the execution of the request.

the
provide
can
the obligation is

With regard to formalities and procedure, Article 3 of the
European Mutual Assistance Convention and Article 4 of the
2000 Convention apply.

Paragraph 1

The obligation in the first paragraph extends to being able to
trace bank accounts throughout the territory of the requested
Member State. Paragraph 1 does not oblige the Member States
to set up a centralised register of bank accounts, but leaves it to
each Member State to decide how to comply with the
provision in an efficient way. If the requested State manages
to trace any bank accounts in its territory it is under an obli-
gation to provide the requesting State with the bank account
numbers and all its details. The requesting Member State may
on the basis of this information wish to proceed with a request
under Article 2 or 3, making use of the simplified procedure
provided for in Article 6.

The obligation is restricted to accounts that are held, or
controlled, by a natural or legal person that is the subject of a
for which any such
criminal
person has powers of attorney are, under certain conditions,
included (second subparagraph).

investigation. Also accounts

controlled by

the person under

It was understood during the negotiations that accounts that
are
investigation include
accounts of which that person is the true economic beneficiary
and that this applies irrespective of whether those accounts are
held by a natural person, a legal person or a body acting in the
form of, or on behalf of, trust funds or other instruments for
administering special purpose funds, the identity of the settlers
or beneficiaries of which is unknown. The concept of
economic beneficiary should be interpreted in accordance
with Article 3(7) of Council Directive 91/308/EEC of 10 June
1991 on prevention of the use of the financial system for the
purpose of money laundering (1), as amended by Directive
2001/97/EC of the European Parliament and of the Council
of 4 December 2001 (2)
‘the
Money Laundering Directive’).

referred to as

(hereinafter

that

is the subject of

Accounts for which the person that
the
proceedings has powers of attorney are as such covered by the
notion ‘accounts controlled by, but in respect of such accounts
a special provision applies (second subparagraph)’. They are not
It presupposes that such information
automatically covered.
has been specifically requested by the
requesting State.
the information can be
it presupposes
Furthermore,
provided within a reasonable time. That expression implies
an obligation on the requested Member State not to make
every effort, however costly and time consuming it may be
to collect the information, but to make an effort which is
proportional,
in terms of resources, to the importance and
urgency of the case. The requested State will be in a position
to make such an appraisal on the basis of the information that
the requesting State must supply under paragraph 4. One
reason for these restrictions is that information relating to
powers of attorney often is more complicated to get access
to, even if it is ‘in the possession of the bank’. For example,
it may be that such information is not available via the
computer system of the head office of the bank, but has to
be found in the local offices of the bank. In some cases, the
information sought may be available only in files other than
computer files.

Paragraph 2

that

the obligation to supply
This paragraph clarifies
information only applies to the extent
the information is
available to the bank keeping the account. Accordingly, the
Protocol does not put any new obligations on Member States
or banks to retain information relating to bank accounts.
Provisions relating to retention of such information, which
are not to be dealt with within a third pillar instrument, are
the Money Laundering
in particular found in Article 4 of
Directive.

(1) OJ L 166, 28.6.1991, p. 77.
(2) OJ L 344, 28.12.2001, p. 76.

24.10.2002

EN

Official Journal of the European Communities

C 257/3

Paragraph 3

— trafficking in nuclear and radioactive substances,

Paragraph 3 prescribes that the obligations under Article 1
only apply to certain forms of offences. This is an exception
to the normal rule in respect of mutual assistance in criminal
matters; the European Mutual Assistance Convention and its
protocols as well as the 2000 Convention have a general scope
of application. The provisions in this paragraph are the result
of a compromise between those Member States which were in
favour of a general scope of application, those which preferred
(different) penalty thresholds and yet others which preferred a
list of offences. The final text was agreed in the light of the
amount of work that the execution of requests for information
on bank accounts may involve and the fact that the measure is
a new measure, not provided for in any earlier instruments
relating to mutual assistance in criminal matters, and so far
not available in certain Member States. The provision in
paragraph 6, which includes a reminder that
the Council
may in the future decide to extend the scope of application
to other forms of offences, forms part of the compromise.

The solution chosen is that the offence concerned must be
covered by at least one of three alternatives. The first alter-
native is a combination of penalty thresholds in both States —
four years in the requesting Member State and two years in the
requested Member State — (first indent). The second and third
alternatives are lists of crimes, namely the list of offences found
in the Europol Convention (second indent) or the offences
covered by the instruments relating to the protection of the
European Communities' financial interests, to the extent they
are not already covered by the Europol list (third indent).

The reference to the offences referred to in the Europol
Convention — as amended — means that all
forms of
offences listed in Article 2 of that Convention and in the
Annex to the Convention are covered (1). It should be noted
that the reference to the Europol Convention does not include
a reference to the qualifications set out in Article 2 relating to
factual
indications that an organised criminal structure is
involved or that a common approach is required.

— illegal immigrant smuggling,

— trade in human beings,

— motor vehicle crime,

— crimes committed or likely to be committed in the course
of terrorist activities against life, limb, personal freedom or
property,

— illegal money-laundering activities in connection with these
forms of crime or specific manifestations thereof, and

— related criminal offences (3).

The offences
Convention (4) are the following:

referred to in the Annex to the Europol

— murder, grievous bodily injury,

— illicit trade in human organs and tissue,

— kidnapping, illegal restraint and hostage-taking,

— racism and xenophobia,

— organised robbery,

— illicit trafficking in cultural goods, including antiquities and

works of art,

— swindling and fraud,

— racketeering and extortion,

— counterfeiting and product piracy,

The offences
the Europol
referred to in Article 2, of
Convention on the date of publication of the present report
are the following:

— forgery of administrative documents and trafficking therein,

— forgery of money and means of payment,

— terrorism,

— unlawful drug trafficking (2),

— computer crime,

— corruption,

(1) The reference to the Europol Convention covers the Council
Decision of 3 December 1998 supplementing the definition of
the form of crime ‘trafficking in human beings’ in the Annex to
the Europol Convention (OJ C 26, 30.1.1999, p. 21), and the
Protocol of 30 November 2000, amending Article 2 and the
Annex to the Europol Convention (OJ C 358, 13.12.2000, p. 1).
(2) For the purpose of Article 2 of the Europol Convention, ‘unlawful
trafficking’ means the criminal offences listed in Article 3(1) of the
1988 United Nations Convention against illicit traffic in narcotic
drugs and psychotropic substances and the provisions amending or
replacing that Convention.

— illicit trafficking in arms, ammunition and explosives,

— illicit trafficking in endangered animal species,

(3) Criminal offences committed in order to procure the means for
perpetrating, to facilitate or carry out or to ensure the impunity
of the listed offences (see Article 2(3), second subparagraph, of the
Europol Convention).

(4) The Annex includes a reminder that,

in accordance with Article
2(2), the competence extends to related money-laundering activities
and related criminal offences.

C 257/4

EN

Official Journal of the European Communities

24.10.2002

— illicit trafficking in endangered plant species and varieties,

— environmental crime, and

— illicit trafficking in hormonal substances and other growth

promoters.

The request should also include information relating to the
banks it
if such
is thought may hold relevant accounts,
information is available (second indent). From this it follows
that the requesting Member State should try to limit its request
to certain types of bank accounts only and/or accounts kept by
certain banks only. This will enable the requested State to
restrict the execution of the request accordingly.

the European
The 1995 Convention on the protection of
Communities'
include
offences, which are already to a large extent, if not entirely,
covered by the Europol list. They include:

interests and its protocols

financial

— fraud affecting

the European Communities'

financial

interests,

— the intentional preparation or supply of false, incorrect or
incomplete statements or documents having the same effect
(if it is not already punishable as a principal offence or as
to commit,
participation in,
fraud) (1),

instigation of, or attempt

— passive corruption which damages or is likely to damage

the European Communities' financial interests,

— active corruption which damages or is likely to damage the

European Communities' financial interests, and

— money laundering related to the proceeds of

fraud as
referred to, at least in serious cases, and of active and
passive corruption as referred to.

Paragraph 4

The text in paragraph 4 was included having in mind the
amount of work that the execution of requests for information
may involve. It establishes certain obligations on the requesting
State. The intention is to restrict the request where possible to
certain banks and/or accounts and to facilitate the execution of
the request. It puts an obligation on the requesting State to
consider carefully if
likely to be of
substantial value for the purpose of the investigation into the
offence’ and to state this expressly in its request (first indent),
and also to consider carefully to which Member State or States
it should send the request (second indent).

the information ‘is

Paragraph 4 implies that the requesting Member State may not
use this measure as a means to ‘fish’ information from just any
— or all — Member States but that it must direct the request
to a Member State which is likely to be able to provide the
requested information. However, the provision does not allow
the
requested
the
information is
purpose of the investigation concerned pursuant to the first
indent of the paragraph.

to question whether

substantial value for

likely to be of

requested State

the

(1) See Article 1(3) of the 1995 Convention.

According to the third indent, the requesting State shall also
provide the requested State with any other information, which
may facilitate the execution of
this
provision was included having regard to the amount of work
that the execution may involve.

the request. Again,

Paragraph 5

Paragraph 5 provides that Member States may equate requests
under Article 1 with requests for search and seizure and
thereby apply the same conditions that they apply in relation
to requests for search and seizure. This allows the Member
States to require dual criminality and consistency with its law
to the same extent that they may apply these requirements in
search and seizure. A follow-up
relation to requests
mechanism designed to keep track of any refusals related to
non-compliance with these conditions is found in Article 10.

for

The dual criminality requirement will normally be fulfilled in
respect of offences covered by paragraph 3. If, however, the
offence under investigation is not an offence in the requested
State the dual criminality requirement may be used as a ground
for refusal.

The right for a Member State to make the execution dependent
on the condition that the request is consistent with its law must
be interpreted in the light of the obligations set out in the
Article; the requested State must not jeopardise the practical
effect of paragraphs 1 to 4 of the Article by applying this
condition. The possibilities for a Member State to refuse
assistance on the ground that the request is not consistent
with its law are therefore limited. This means for example
that a Member State cannot refuse a request made under
Article 1 solely because its national law does not provide for
the production of information relating to the existence of bank
accounts in criminal
investigations, or because its national
provisions on search and seizure normally demands a higher
threshold than that set in paragraph 3. On the other hand the
provision allows a judicial control in the requested State. Since
there are no common rules in this respect, the nature of that
control may be different in the different Member States. In
general terms it means that the requested State will be able
to put the request before a judicial authority for an assessment
of the request with regard to national conditions,
including
constitutional requirements, that are not covered in Article 1.
Such conditions might
example, privileged
include,
information.

for

24.10.2002

EN

Official Journal of the European Communities

C 257/5

Paragraph 6

Paragraph 6 includes a provision that the Council may decide
to extend the scope of application of Article 1. The extension
of the scope of application can be adopted by the Council in
the form of a decision within the meaning of Article 34(2) of
the Treaty on European Union. Under this provision,
the
Council acts unanimously on the initiative of any Member
State or of the Commission and — as results from Article
39(1) of the Treaty on European Union — after consultation
of the European Parliament. The Protocol can thus be amended
in this
an amending
Convention.

the necessity of

respect without

Article 2: Requests for information on banking trans-
actions

Article 2 contains provisions on assistance relating to the
particulars of specified, already identified, bank accounts and
to banking operations that have been carried out through them
during a specified period. The Article does not introduce a new
measure but merely clarifies and elaborates a measure, which is
already
the European Mutual Assistance
Convention.

applied under

There is a link between Article 1 and Article 2 in that the
requesting State may have obtained the details of the account
the measure provided for in Article 1 and
by means of
the system for additional
subsequently — making use of
measures provided for in Article 6 — may ask for information
on banking operations that have taken place on the account.
self-standing and may also be
However,
requested in respect of a bank account
that has become
known to the investigating authorities of the requesting State
by any other means or channels.

the measure is

Paragraph 1

to criminal

Paragraph 1 does not — as does Article 1 — make any
references to accounts linked to a person that is the subject
investigation. There is no need to make a
of a criminal
reference
since the instrument
investigations
builds on the European Mutual Assistance Convention and
the 2000 Convention. The Article therefore applies in respect
of the same proceedings as those referred to in Article 1 of the
European Mutual Assistance Convention and Article 3 of the
2000 Convention. The absence of a reference to a person that
is the subject of a criminal investigation clarifies that Member
States are obliged to assist also in respect of accounts held by
third persons, persons who are not themselves subject of any
criminal proceedings but whose accounts are, in one way or
another, linked to a criminal investigation. Any such link must
be accounted for by the requesting State in the request (see
paragraph 3). A practical
example provided during the
negotiations is the situation where the bank account of an
innocent, and totally unaware, person is used as a ‘means of
transport’ between two accounts, which are held by the
suspect, in order to confuse and hide the transaction. Article
2 allows the requesting State to get information on any trans-
actions to or from such an account.

is not enough that

the requested State,

Paragraph 1 gives provisions on assistance not only relating to
the particulars of a specified bank account and to banking
operations that have been carried out through it during a
specified period but also provides that
the requested State
shall provide assistance relating to ‘the particulars of any
this is to
recipient account’. The purpose of
sending or
clarify that
in
it
response to a request, provides information that a certain
amount of money was sent to/from the account or from/to
another account on a certain date but also to provide the
requesting State with information relating to the recipient/
sending account,
the bank account number and other
details necessary to enable the requesting State to proceed
with a request
that account
in
(making use of
Article 6 if the account is held in the same State or making
a new request to another State, as the case may be). This will
enable the requesting State to trace the movements of money
from account to account. When providing the particulars of
any sending or recipient account, as mentioned here,
the
requested State will take into account, as appropriate, its obli-
gations under
the
protection of individuals with regard to automatic processing
of personal data.

for assistance in respect of
the simplified procedure provided for

the 1981 European Convention for

i.e.

Paragraph 2

This provision corresponds to Article 1(2). See the comments
above on that provision.

Paragraph 3

This provision corresponds to Article 1(4), first indent, but has
a less demanding wording, due to the fact that requests under
Article 2 represent a well established area of mutual assistance
and by nature are more specific than those under Article 1.

Paragraph 4

This provision corresponds to Article 1(5). See the comments
above on that provision.

Article 3: Requests
actions

for monitoring of banking trans-

This Article provides for a new measure, not provided for in
any earlier instruments relating to mutual assistance in criminal
matters. This being the case, the Article has been worded in a
different manner to Articles 1 and 2 in that Article 3 only
obliges Member States to set up the mechanism — Member
States shall be able to provide the assistance upon request —
but leaves to each Member State to decide if and under what
conditions the assistance may be given in a specific case. The
result is an Article with very few details. The Article has been
modelled on the provision regulating controlled deliveries in
Article 12 of the 2000 Convention.

C 257/6

EN

Official Journal of the European Communities

24.10.2002

Paragraph 1

This paragraph obliges Member States to set up a mechanism
whereby they are able to, upon request, monitor any banking
operations that in the future will take place on a specified bank
account during a specified period.

it, in the course of executing a request, finds that it may be
appropriate to take additional measures which it was not
possible for the requesting authority to foresee or to specify
in its initial request. This may involve giving information
before the formal answer to the request can be made.

Paragraph 2

This provision corresponds to Article 2(3).

Paragraph 3

This provision is a copy of Article 12(2) of
the 2000
Convention relating to controlled deliveries. This means inter
alia that the requested Member State may apply conditions,
including penalty thresholds and dual criminality, which
would have to be observed in a similar domestic case.

Paragraph 4

Paragraph 4 states that the practical details regarding the moni-
toring shall be agreed between the competent authorities of the
requesting and the requested State. This gives the requested
State full control of the conditions under which the monitoring
shall take place and allows the requesting and requested State
to agree for example on monitoring on a day-by-day basis or
that monitoring on a weekly basis is enough having regard to
the circumstances of the case. It is left to the requested State to
decide if real-time monitoring can be provided or not.

Article 4: Confidentiality

This Article is designed to ensure that the holder of the bank
account, or any third person, is not informed that any measure
provided for in Articles 1-3 is being or has been taken. The
wording used is close to the wording of Article 8 of the Money
Laundering Directive. It is up to each Member State to decide
how to implement Article 4. The provision may for example
be implemented by providing a specific ban against disclosure,
but may also be implemented by more general measures sanc-
tioning behaviour that may endanger an ongoing investigation.

in this Article apply for example if

The provisions
the
requested State in the course of the execution of a request
pursuant to Article 1 identifies an account and it considers
that the requesting State might be interested in getting, as
quickly as possible,
information on what has happened on
the account during the immediate past or will happen on the
account in the near future. The obligation to inform is however
not limited to requests covered by this Protocol but has a
general application and applies, e.g., if the need for additional
measures is revealed during the execution of a request for a
house search. In such a case the requesting State can, after
having been alerted, make an additional request using the
simplified procedure provided for in Article 6. Article 5 (but
not Article 6) also applies if the additional measure is to be
taken by another State, e.g. where, in the course of execution
of a request pursuant to article 2, it is found out that money
has been paid to a bank account held by a bank in another
Member State or by a third State.

Article 6: Additional requests for mutual assistance

This Article includes two paragraphs, which are designed to
facilitate and speed up the procedure when additional measures
are needed.

Paragraph 1

This provision lays down a procedure which is of great
practical
importance, namely that the requesting State does
not have to make a completely new request when an additional
measure is needed in respect of the same investigation or
proceedings. It will be enough for it to make a reference to
the initial request when requesting the additional measure and
add the necessary supplementary information.

B. Additional measures and requests

Paragraph 2

Articles 5 and 6 are designed to speed up and simplify the
procedures when, in the course of execution of a request for
mutual assistance, it appears that an additional measure may be
needed. The Articles will of course be of significant use in
respect of assistance relating to bank accounts — where
speed often is of utmost importance — but their application
is not restricted to such assistance. The provisions apply to any
request for mutual assistance.

Article 5: Obligation to inform

Article 5 puts an obligation on the competent authority of the
requested State to inform the requesting authority immediately if

The rationale behind the provision in paragraph 2 is that
experience has shown that not all authorities of the Member
States are prepared to accept that an additional request is made
directly by e.g. a foreign prosecutor or investigating judge who
is present in the requested State when its request is executed.
such an
The provision in paragraph 2 will ensure that
the
additional request can be made on the spot and that
from the
additional
the
territory of
provision in the individual case presupposes that the person
that is present in the requested State is competent under Article
24 of the European Mutual assistance Convention or Article 24
of
for mutual
assistance.

the 2000 Convention to make a request

the requesting State. The application of

request does not have to be sent

24.10.2002

EN

Official Journal of the European Communities

C 257/7

includes

special provisions

Article 6(3) of the 2000 Convention, to which this provision
refers,
to United
Kingdom and Ireland relating to direct communication; since
these States may make a provisional reservation preserving
communication with their respective central authorities, any
additional request must be directed to these authorities as
long as the reservation prevail.

applicable

C. Grounds for refusals

the

application of grounds

Articles 7-10 include provisions, which are intended to limit or
monitor
refusals. These
provisions apply to requests for mutual assistance in criminal
matters in general, and not just for cases covered by Articles 1
to 4 of the Protocol.

for

Article 7: Banking secrecy

The provisions in this Article, which prohibit Member States
from invoking bank secrecy as a ground for refusal, are
modelled on the first sentence of Article 18(7) of the 1990
Money Laundering Convention. During the negotiations it was
agreed that the expression ‘bank secrecy’ should be interpreted
in a broad way, having in mind Community and national law
applicable in the financial sector.

Since Article 3 of the European Mutual Assistance Convention
applies, Member States are allowed to apply formalities and
procedures provided for in its domestic law (1).

Article 8: Fiscal offences

the 1978 Additional Protocol

Article 8(1) and (2) reproduce the content of Articles 1 and 2
to the European Mutual
of
Assistance Convention.
the
In contrast
present Protocol does not allow any reservations to this
provision (Article 11). Article 8(1) and (2)
replace and
further develop Article 50 of the Schengen Implementation
Convention. The latter provision is therefore repealed by
Article 8(3) of the Protocol.

instrument,

to that

Article 9: Political offences

This Article is in its entirety modelled on Article 5 of the 1996
EU Extradition Convention. The provisions were not covered
by the original draft but were included in the interest of
covering all grounds for refusals provided for in Article 2(a)
of the European Mutual Assistance Convention; Article 2(b) of
that Convention is covered by Article 10 (see below).

Paragraph 1 provides for the principle that for the purpose of
mutual legal assistance between the Member States no offence
may be regarded as a political offence. Paragraph 2 allows the

(1) See Article 18, paragraph 7, second sentence, of the 1990 Money
‘Where its domestic law so
Laundering Convention which reads:
requires, a Party may require that a request
for cooperation
which would involve the lifting of bank secrecy be authorised by
either a judge or another judicial authority, including public pros-
ecutors, any of
these authorities acting in relation to criminal
offences’.

Member States to derogate from that principle by way of a
declaration. However, no derogation is allowed regarding the
terrorist offences defined in that paragraph. These offences are:

(a) The offences referred to in Articles 1 and 2 of

the
European Convention on Suppression of Terrorism of 27
January 1977.

This covers the most serious offences, such as the taking of
firearms and explosives, acts of
hostages,
violence against the life or liberty of persons or which
create collective danger for persons.

the use of

(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 (2),
the offences
referred to in Articles 1 and 2 of the 1977 Convention.

to commit one or more of

This goes beyond Article 1(f) of the 1977 Convention,
which is limited to an attempt
the
offences of Article 1 of the 1977 Convention or partici-
pation as an accomplice of a person who commits or
attempts to commit such an offence.

to commit any of

Article 3(4) of the 1996 Convention defines the behaviour
concerned as follows: ‘The behaviour of any person which
contributes to the commission by a group of persons
acting with a common purpose of one or more offences
in the field of terrorism as in Articles 1 and 2 of the
European Convention on the Suppression of Terrorism,
drug trafficking and other forms of organised crime or
other acts of violence against the life, physical
integrity
or liberty of a person, or creating a collective danger for
persons, punishable by deprivation of liberty or a detention
order of a maximum of at least 12 months, even where the
person does not take part in the actual execution of the
offence or offences concerned; such contribution shall be
intentional and made having knowledge either of
the
purpose and the general criminal activity of the group or
of the intention of the group to commit the offence or
offences concerned.’

Finally, Article 9(3) provides that reservations made pursuant
to Article 13 of
the 1977 Convention shall not apply to
mutual legal assistance between Member States. This is valid
both for Member States, which fully apply the principle
specified in Article 9(1), and for Member States, which make
a declaration under Article 9(2).

(2) OJ C 313, 23.10.1996, p. 11.

C 257/8

EN

Official Journal of the European Communities

24.10.2002

Article 10: Forwarding
involvement of Eurojust (1)

refusals

to the Council

and

Paragraph 1

The first paragraph of Article 10 obliges, in certain situations, a
Member State that refuses a request for mutual legal assistance
to forward the reasoned decision to refuse to the Council for
possible consideration and subsequent evaluation. The obli-
gation only applies when the requested Member State has
taken a formal decision to refuse the request and does not,
in paragraph 2, apply in
in contrast
pending cases. Therefore,
interfere
with the independence of the judiciary. In addition, the obli-
gation only applies where the requesting Member State
maintains its request and no solution can be found.

the procedure will not

to the provisions

to in paragraph 1. The Council adopted on 28 February 2002
Council Decision 2002/187/JHA setting up Eurojust with a
view to reinforcing the fight against serious crime (2). Article
10(2) does not provide any competencies for Eurojust — these
are laid down in the said Council Decision. Article 10(2) can be
used in case the requested State is not able to assist
in
accordance with the wishes of the requesting State. Eurojust
may of course only deal with a case reported to Eurojust to the
extent that it falls within the competence of Eurojust. The two
national members of Eurojust — the member of the requesting
State and the member of the requested State — can in such a
case be made aware of the conflict and can assist in finding a
solution which is acceptable to both States. The assistance of
Eurojust
to the provisions in paragraph 1,
available in pending cases.

in contrast

is,

The purpose of paragraph 1 is to give the Council a possibility
to evaluate and follow-up the functioning of judicial coop-
eration between the Member States. The information to the
Council should of course be limited to facts that are relevant
for the purpose of evaluating the functioning of judicial coop-
eration between Member States. Accordingly, the obligation to
include any confidential or
inform the Council does not
otherwise sensitive information that might be found in the
case file.

D. Final provisions

Article 11: reservations

This Article prevents Member States from entering reservations
to the Protocol other than those expressly provided for in
Article 9(2).

Article 12: Territorial application

inter alia,

Justice has

jurisdiction,

The procedure is without prejudice to Article 35(7) of the
Treaty on European Union. Under this provision, the Court
of
to rule on certain
disputes between the Member States, whenever the Council
it being
cannot settle such dispute within six months of
referred to the Council by one of its members. The procedures
that are provided for respectively in Article 35(7) of the EU
Treaty and in Article 10(1) of the Protocol are independent one
from the other.

The first
security, public order or other essential interests.

indent refers to refusals related to the sovereignty,

The second indent refers to refusals related to non-compliance
with the dual criminality requirement and non-consistency
with national law.

indent of paragraph 1 was, even though
The third and last
covered by the second indent,
introduced primarily for the
purpose of high-lighting the need to follow up the application
of Article 1(5) and more specifically the application of the
law. This
condition regarding the consistency with national
provision was
several Member States
included because
expressed concerns that the possibility to apply national law
otherwise might dilute the obligation provided for in Article 1.

Paragraph 2

Article 10(2) is a reminder that the competent authorities of a
Member State may, once Eurojust has been established, make
in solving any difficulties concerning the
use of Eurojust
execution of a request in relation to the provisions referred

that

the 2000 Convention provides
the Convention to Gibraltar will

the
Article 26 of
application of
take effect
upon extension of the European Mutual Assistance Convention
to Gibraltar. In continuation thereof, Article 12 of the Protocol
provides that the application of the Protocol to Gibraltar will
take effect when the 2000 Convention has taken effect in
Gibraltar
the 2000
in accordance with Article 26 of
Convention.

Article 13: Entry into force

This Article governs in principle the entry into force of the
in the same way as Article 27 in the 2000
Protocol
Convention, with the addition that
the Protocol does not
enter into force or applies before the 2000 Convention has
entered into force or has become applicable.

The Protocol comes into force 90 days after completion of the
procedures necessary for the adoption of the Protocol by the
eighth State which was a Member of the European Union on
16 October 2001 when the Act establishing the Protocol was
adopted by the Council. However, if the 2000 Convention is
not in force on that date, the Protocol enters into force when
the 2000 Convention enters into force. The Protocol will first
operate among the eight Member States in question or,
if
the eight Member States or more, which have
applicable,
adopted the Protocol at the time when the 2000 Convention
enters into, force. It will enter into force for each of the other
Member States 90 days after they complete their adoption
procedures. The entry into force of the Protocol gives rise to
the implementation of Article 35 of the Treaty on European
Union on the jurisdiction of
the
European Communities.

the Court of

Justice of

(1) See Council Declaration relating to the dual criminality and other

issues of refusals of requests in footnote to Chapter I.

(2) OJ L 63, 6.3.2002, p. 1.

24.10.2002

EN

Official Journal of the European Communities

C 257/9

Paragraph 5 allows for the possibility whereby each Member
State, at the time of its adoption of the Protocol or at any time
subsequently, can issue a declaration making the Protocol
applicable in advance vis-à-vis any other Member States that
have made a similar declaration. This will enable the Protocol
to be implemented as soon as possible between the Member
States concerned. A declaration made under the said paragraph
takes effect 90 days after being deposited. However,
if the
2000 Convention pursuant to Article 27(5) of that Convention
applies between the Member States concerned with effect from
a later date, the Protocol also applies between those Member
States with effect from that date.

Paragraph 7 is concerned with commencement matters and it
restricts the application of the Protocol to mutual assistance
proceedings which are initiated after the Protocol has entered
into force or has become applicable between the Member
States concerned.

Article 14: Acceding States

The provisions relating to acceding States are modelled on the
corresponding provisions
the 2000
Convention.

in Article 28 of

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

is already in
Paragraph 4 provides that where the Protocol
force when a new Member State accedes,
it will come into
force with respect to that Member State 90 days after the
the
deposit of
Protocol 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 13.

instrument of accession. However,

its

if

An acceding State will also be able to make a declaration of
anticipated application as provided for in Article 13(5).

Following the principle in Article 13(6), Article 14(6) provides
that the protocol can not enter into force or apply in relation
to an acceding State before the entry into force or application
of the 2000 Convention in relation to that State.

Article 15: Position of Iceland and Norway

This provision corresponds
the 2000
Convention. It specifies that Article 8 on fiscal offences is to

to Article 2 of

be regarded as measures amending or based upon the
provisions
referred to in Annex A to the Agreement
concluded by the Council with Iceland and Norway on 18
May 1999 concerning those two countries' association with
the
the implementation, application and development of
Schengen acquis (the ‘Association Agreement’). Article 2(3) of
the Association Agreement makes provision for acts and
measures taken by the European Union in that context to be
accepted, implemented and applied by Iceland and Norway.

Article 16: Entry into force for Iceland and Norway

This Article corresponds to Article 29 of the 2000 Convention.
It contains the arrangements for the entry into force for Iceland
and Norway of Article 8 of the Protocol. These arrangements
are governed by the Association Agreement (see comments on
Article 15).

Essentially, the position, as set out in Article 16(1), is that the
provisions of Article 8 of the Protocol will come into operation
for Iceland and Norway 90 days after each of those countries
provides notification of the fulfilment of its appropriate consti-
tutional requirements. When that happens, the provisions will
apply in their mutual assistance arrangements with any
Member State for which the Protocol
is already in force. It
should be noted, however,
that anticipated application by
Iceland and Norway has not been provided for.

Paragraph 2 covers the situation where the Protocol enters into
force for a Member State when the provisions of Article 8 of
the Protocol are already in operation in relation to Iceland
and/or Norway. Paragraph 3 provides that Article 8 shall not
become binding on Iceland and Norway before the entry into
force of the provisions referred to in Article 2(1) of the 2000
Convention in relation to those countries. Paragraph 4 ensures
that the provisions of Article 8 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 17: Depository

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

Journal of