Agreement on mutual legal assistance between the European Union and the United States of America
Date: 2003-06-25
Institutions: European Union, United States
Subjects: United States, agreement (EU), criminal proceedings, extradition, judicial cooperation

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on mutual legal assistance between the European Union and the United States of America

AGREEMENT

Preamble

Article 1

Article 2

Article 3

Article 4

Article 5

Article 6

Article 7

Article 8

Article 9

CONTENTS

Object and purpose

Definitions

Scope of application of this Agreement in relation to bilateral mutual legal assistance treaties
with Member States and in the absence thereof

Identification of bank information

Joint investigative teams

Video conferencing

Expedited transmission of requests

Mutual legal assistance to administrative authorities

Limitations on use to protect personal and other data

Article 10

Requesting State's request for confidentiality

Article 11

Consultations

Article 12

Temporal application

Article 13

Non-derogation

Article 14

Future bilateral mutual legal assistance treaties with Member States

Article 15

Designations and notifications

Article 16

Territorial application

Article 17

Review

Article 18

Entry into force and termination

Explanatory Note

THE EUROPEAN UNION AND THE UNITED STATES OF AMERICA,

DESIRING further to facilitate cooperation between the European Union Member States and the United States of
America,

DESIRING to combat crime in a more effective way as a means of protecting their respective democratic societies and
common values,

HAVING DUE REGARD for rights of individuals and the rule of law,

MINDFUL of the guarantees under their respective legal systems which provide an accused person with the right to a fair
trial, including the right to adjudication by an impartial tribunal established pursuant to law,

DESIRING to conclude an Agreement relating to mutual legal assistance in criminal matters,

HAVE AGREED AS FOLLOWS:

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Article 1

Object and purpose

The Contracting Parties undertake,
in accordance with the
provisions of this Agreement, to provide for enhancements to
cooperation and mutual legal assistance.

Article 2

Definitions

1.

‘Contracting Parties’ shall mean the European Union and the
United States of America.

2.

‘Member State’ shall mean a Member State of the European
Union.

Article 3

Scope of application of this Agreement in relation to bilat-
eral mutual legal assistance treaties with Member States
and in the absence thereof

1.
The European Union, pursuant to the Treaty on European
Union, and the United States of America shall ensure that the
provisions of this Agreement are applied in relation to bilateral
mutual legal assistance treaties between the Member States and
the United States of America, in force at the time of the entry
into force of this Agreement, under the following terms:

(a) Article 4 shall be applied to provide for identification of
financial accounts and transactions in addition to any
authority already provided under bilateral treaty provisions;

(b) Article 5 shall be applied to authorise the formation and
activities of joint investigative teams in addition to any
authority already provided under bilateral treaty provisions;

(c) Article 6 shall be applied to authorise the taking of testi-
mony of a person located in the requested State by use of
video transmission technology between the requesting and
in addition to any authority already
requested States
provided under bilateral treaty provisions;

(d) Article 7 shall be applied to provide for the use of expe-
dited means of communication in addition to any authority
already provided under bilateral treaty provisions;

(e) Article 8 shall be applied to authorise the providing of
legal assistance to the administrative authorities
in addition to any authority already provided

mutual
concerned,
under bilateral treaty provisions;

(f) subject to Article 9(4) and (5), Article 9 shall be applied in
place of, or in the absence of bilateral treaty provisions
governing limitations on use of information or evidence
provided to the requesting State, and governing the condi-
tioning or refusal of assistance on data protection grounds;

(g) Article 10 shall be applied in the absence of bilateral treaty
provisions pertaining to the circumstances under which a
requesting State may seek the confidentiality of its request.

2.

(a) The European Union, pursuant

to the Treaty on
European Union, shall ensure that each Member State
in a written instrument between such
acknowledges,
Member State and the United States of America, the
application, in the manner set forth in this Article, of its
bilateral mutual legal assistance treaty in force with the
United States of America.

(b) The European Union, pursuant

to the Treaty on
European Union, shall ensure that new Member States
acceding to the European Union after the entry into
force of this Agreement, and having bilateral mutual
legal assistance treaties with the United States of
America, take the measures referred to in subparagraph
(a).

(c) The Contracting Parties shall endeavour to complete the
process described in subparagraph (b) prior
to the
scheduled accession of a new Member State, or as soon
as possible thereafter. The European Union shall notify
the United States of America of the date of accession of
new Member States.

3.

(a) The European Union, pursuant

to the Treaty on
European Union, and the United States of America shall
also ensure that the provisions of this Agreement are
applied in the absence of a bilateral mutual legal assis-
tance treaty in force between a Member State and the
United States of America.

(b) The European Union, pursuant

to the Treaty on
European Union, shall ensure that such Member State
in a written instrument between such
acknowledges,
Member State and the United States of America, the
application of the provisions of this Agreement.

(c) The European Union, pursuant

to the Treaty on
European Union, shall ensure that new Member States
acceding to the European Union after the entry into
force of this Agreement, which do not have bilateral
mutual legal assistance treaties with the United States of
America, take the measures referred to in subparagraph
(b).

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If the process described in paragraph 2(b) and 3(c) is not
4.
completed by the date of accession, the provisions of this
Agreement shall apply in the relations between the United
States of America and that new Member State as from the date
on which they have notified each other and the European
Union of the completion of their internal procedures for that
purpose.

this Agreement

The Contracting Parties agree that

5.
is
intended solely for mutual legal assistance between the States
concerned. The provisions of this Agreement shall not give rise
to a right on the part of any private person to obtain, suppress,
or exclude any evidence, or to impede the execution of a
request, nor expand or limit rights otherwise available under
domestic law.

Requests for assistance under this Article shall be trans-

3.
mitted between:

(a) central authorities responsible for mutual legal assistance in
Member States, or national authorities of Member States
responsible for investigation or prosecution of criminal
offences as designated pursuant to Article 15(2); and

(b) national authorities of the United States responsible for
investigation or prosecution of criminal offences, as desig-
nated pursuant to Article 15(2).

The Contracting Parties may, following the entry into force of
this Agreement, agree by Exchange of Diplomatic Note to
modify the channels through which requests under this Article
are made.

Article 4

Identification of bank information

4.

(a) Subject to subparagraph (b), a State may, pursuant to
its obligation to provide assistance

limit

Article 15,
under this Article to:

1.

in accordance with the terms of

(a) Upon request of the requesting State, the requested State
shall,
this Article,
promptly ascertain if the banks located in its territory
possess information on whether an identified natural or
legal person suspected of or charged with a criminal
offence is the holder of a bank account or accounts. The
requested State shall promptly communicate the results
of its enquiries to the requesting State.

(b) The actions described in subparagraph (a) may also be

taken for the purpose of identifying:

(i) information regarding natural or

legal persons
convicted of or otherwise involved in a criminal
offence;

(ii) information in the possession of non-bank financial

institutions; or

(iii) financial transactions unrelated to accounts.

(i) offences punishable under the laws of both the

requested and requesting States;

(ii) offences punishable by a penalty involving depriva-
tion 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

(iii) designated serious offences punishable under the
laws of both the requested and requesting States.

(b) A State which limits its obligation pursuant to subpara-
graph (a)(ii) or (iii) shall, at a minimum, enable identifi-
cation of accounts associated with terrorist activity and
the laundering of proceeds generated from a compre-
hensive range of serious criminal activities, punishable
under the laws of both the requesting and requested
States.

A request for information described in paragraph 1 shall

2.
include:

Assistance may not be refused under this Article on

5.
grounds of bank secrecy.

(a) the identity of

the natural or legal person relevant

to

locating such accounts or transactions; and

(b) sufficient information to enable the competent authority of

the requested State to:

that

(i) reasonably suspect

the natural or legal person
concerned has engaged in a criminal offence and that
banks or non-bank financial institutions in the territory
of
the requested State may have the information
requested; and

(ii) conclude that

the information sought relates to the

criminal investigation or proceeding;

(c) to the extent possible, information concerning which bank
or non-bank financial
institution may be involved, and
other information the availability of which may aid in redu-
cing the breadth of the enquiry.

6.
The requested State shall respond to a request for produc-
tion of the records concerning the accounts or transactions
identified pursuant
in accordance with the
provisions of the applicable mutual legal assistance treaty in
force between the States concerned, or in the absence thereof,
in accordance with the requirements of its domestic law.

to this Article,

7.
The Contracting Parties shall take measures to avoid the
imposition of extraordinary burdens on requested States
this Article. Where extraordinary
through application of
burdens on a requested State nonetheless result, including on
banks or by operation of the channels of communications fore-
seen in this Article, the Contracting Parties shall immediately
consult with a view to facilitating the application of this Article,
including the taking of such measures as may be required to
reduce pending and future burdens.

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Article 5

Joint investigative teams

1.
The Contracting Parties shall, to the extent they have not
already done so, take such measures as may be necessary to
enable joint investigative teams to be established and operated
in the respective territories of each Member State and the
United States of America for the purpose of facilitating criminal
investigations or prosecutions involving one or more Member
States and the United States of America where deemed appro-
priate by the Member State concerned and the United States of
America.

2.
The procedures under which the team is to operate, such
as its composition, duration, location, organisation, functions,
purpose, and terms of participation of team members of a State
in investigative activities taking place in another State's territory
shall be as agreed between the competent authorities respon-
sible for the investigation or prosecution of criminal offences,
as determined by the respective States concerned.

3.
The competent authorities determined by the respective
States concerned shall communicate directly for the purposes
of the establishment and operation of such team except that
where the exceptional complexity, broad scope, or other
circumstances involved are deemed to require more central
coordination as to some or all aspects, the States may agree
upon other appropriate channels of communications to that
end.

4. Where the joint
investigative team needs investigative
measures to be taken in one of the States setting up the team, a
member of the team of that State may request its own compe-
tent authorities to take those measures without the other States
having to submit a request for mutual
legal assistance. The
required legal standard for obtaining the measure in that State
shall be the standard applicable to its domestic investigative
activities.

Article 6

Video conferencing

arising in the course of providing assistance (including costs
associated with travel of participants in the requested State)
shall be borne in accordance with the applicable provisions of
the mutual legal assistance treaty in force between the States
concerned, or where there is no such treaty, as agreed upon by
the requesting and requested States.

3.
The requesting and requested States may consult in order
to facilitate resolution of legal, technical or logistical issues that
may arise in the execution of the request.

4. Without prejudice to any jurisdiction under the law of
the requesting State, making an intentionally false statement or
other misconduct of the witness or expert during the course of
the video conference shall be punishable in the requested State
in the same manner as if it had been committed in the course
of its domestic proceedings.

5.
This Article is without prejudice to the use of other
means for obtaining of testimony in the requested State avail-
able under applicable treaty or law.

6.
This Article is without prejudice to application of provi-
sions of bilateral mutual legal assistance agreements between
Member States and the United States of America that require or
permit the use of video conferencing technology for purposes
other than those described in paragraph 1,
including for
purposes of identification of persons or objects, or taking of
investigative statements. Where not already provided for under
applicable treaty or law, a State may permit the use of video
conferencing technology in such instances.

Article 7

Expedited transmission of requests

legal assistance, and communications
Requests for mutual
related thereto, may be made by expedited means of communi-
cations, including fax or e-mail, with formal confirmation to
follow where required by the requested State. The requested
State may respond to the request by any such expedited means
of communication.

The Contracting Parties shall take such measures as may
1.
be necessary to enable the use of video transmission technology
between each Member State and the United States of America
for taking testimony in a proceeding for which mutual legal
located in a
assistance is available of a witness or expert
requested State, to the extent such assistance is not currently
available. To the extent not specifically set forth in this Article,
the modalities governing such procedure shall be as provided
under the applicable mutual
legal assistance treaty in force
between the States concerned, or the law of the requested State,
as applicable.

2.
Unless otherwise agreed by the requesting and requested
States, the requesting State shall bear the costs associated with
establishing and servicing the video transmission. Other costs

Article 8

Mutual legal assistance to administrative authorities

1. Mutual legal assistance shall also be afforded to a national
administrative authority, investigating conduct with a view to a
criminal prosecution of the conduct, or referral of the conduct
to criminal investigation or prosecution authorities, pursuant to
its specific administrative or regulatory authority to undertake
such investigation. Mutual legal assistance may also be afforded
to other administrative authorities under such circumstances.
Assistance shall not be available for matters in which the
administrative authority anticipates that no prosecution or
referral, as applicable, will take place.

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2.

(a) Requests for assistance under this Article shall be trans-
mitted between the
authorities designated
central
pursuant to the bilateral mutual legal assistance treaty in
force between the States concerned, or between such
other authorities as may be agreed by the central autho-
rities.

(b) In the absence of a treaty, requests shall be transmitted
between the United States Department of Justice and the
Ministry of Justice or, pursuant to Article 15(1), compar-
able Ministry of the Member State concerned responsible
for transmission of mutual legal assistance requests, or
between such other authorities as may be agreed by the
Department of Justice and such Ministry.

3.
The Contracting Parties shall take measures to avoid the
imposition of extraordinary burdens on requested States
this Article. Where extraordinary
through application of
the
burdens on a
Contracting Parties shall immediately consult with a view to
facilitating the application of this Article, including the taking
of such measures as may be required to reduce pending and
future burdens.

State nonetheless

requested

result,

Article 9

Limitations on use to protect personal and other data

The requesting State may use any evidence or information

1.
obtained from the requested State:

(a) for the purpose of its criminal investigations and proceed-

ings;

(b) for preventing an immediate and serious threat to its public

security;

(c) in its non-criminal

judicial or administrative proceedings

directly related to investigations or proceedings:

(i) set forth in subparagraph (a); or

(ii) for which mutual legal assistance was rendered under

Article 8;

(d) for any other purpose, if the information or evidence has
been made public within the framework of proceedings for
which they were transmitted, or in any of the situations
described in subparagraphs (a), (b) and (c); and

(e) for any other purpose, only with the prior consent of the

requested State.

2.

(a) This Article shall not prejudice the ability of

the
requested State to impose additional conditions in a
particular case where the particular request for assis-
tance could not be complied with in the absence of such
conditions. Where additional conditions have been
imposed in accordance with this subparagraph,
the
requested State may require the requesting State to give
information on the use made of the evidence or infor-
mation.

(b) Generic restrictions with respect to the legal standards
of the requesting State for processing personal data may
not be imposed by the requested State as a condition
under subparagraph (a) to providing evidence or infor-
mation.

3. Where, following disclosure to the requesting State, the
requested State becomes aware of circumstances that may cause
it to seek an additional condition in a particular case, the
requested State may consult with the requesting State to deter-
mine the extent to which the evidence and information can be
protected.

A requested State may apply the use limitation provision
4.
of the applicable bilateral mutual legal assistance treaty in lieu
of this Article, where doing so will result in less restriction on
the use of information and evidence than provided for in this
Article.

5. Where a bilateral mutual legal assistance treaty in force
between a Member State and the United States of America on
the date of signature of this Agreement, permits limitation of
the obligation to provide assistance with respect to certain tax
offences,
in its
exchange of written instruments with the United States of
America described in Article 3(2), that, with respect to such
offences, it will continue to apply the use limitation provision
of that treaty.

the Member State concerned may indicate,

Article 10

Requesting State's request for confidentiality

The requested State shall use its best efforts to keep confidential
a request and its contents if such confidentiality is requested by
the requesting State. If the request cannot be executed without
breaching the requested confidentiality, the central authority of
the requested State shall so inform the requesting State, which
shall then determine whether the request should nevertheless
be executed.

Article 11

Consultations

The Contracting Parties shall, as appropriate, consult to enable
the most effective use to be made of this Agreement, including
to facilitate the resolution of any dispute regarding the interpre-
tation or application of this Agreement.

Article 12

Temporal application

This Agreement shall apply to offences committed before

1.
as well as after it enters into force.

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This Agreement shall apply to requests for mutual legal
2.
assistance made after its entry into force. Nevertheless, Articles
6 and 7 shall apply to requests pending in a requested State at
the time this Agreement enters into force.

Article 16

Territorial application

Article 13

Non-derogation

Subject to Article 4(5) and Article 9(2)(b), this Agreement is
without prejudice to the invocation by the requested State of
grounds for refusal of assistance available pursuant to a bilat-
eral mutual legal assistance treaty, or, in the absence of a treaty,
its applicable legal principles, including where execution of the
request would prejudice its sovereignty, security, ordre public
or other essential interests.

Article 14

Future bilateral mutual

legal assistance treaties with

Member States

This Agreement shall not preclude the conclusion, after its
entry into force, of bilateral Agreements between a Member
State and the United States of America consistent with this
Agreement.

Article 15

Designations and notifications

1. Where a Ministry other than the Ministry of Justice has
been designated under Article 8(2)(b), the European Union shall
notify the United States of America of such designation prior
to the exchange of written instruments described in Article 3(3)
between the Member States and the United States of America.

2.
The Contracting Parties, on the basis of consultations
between them on which national authorities responsible for the
investigation and prosecution of offences to designate pursuant
to Article 4(3), shall notify each other of the national authori-
ties so designated prior to the exchange of written instruments
described in Article 3(2) and (3) between the Member States
and the United States of America. The European Union shall,
for Member States having no mutual legal assistance treaty with
the United States of America, notify the United States of
America prior to such exchange of the identity of the central
authorities under Article 4(3).

1.

This Agreement shall apply:

(a) to the United States of America;

(b) in relation to the European Union, to:

— Member States,

— territories for whose external relations a Member State
has responsibility, or countries that are not Member
States for whom a Member State has other duties with
respect
to external relations, where agreed upon by
exchange of diplomatic note between the Contracting
Parties, duly confirmed by the relevant Member State.

2.
The application of this Agreement to any territory or
country in respect of which extension has been made in accor-
dance with subparagraph (b) of paragraph 1 may be terminated
by either Contracting Party giving six months' written notice to
the other Contracting Party through the diplomatic channel,
where duly confirmed between the relevant Member State and
the United States of America.

Article 17

Review

The Contracting Parties agree to carry out a common review of
this Agreement no later than five years after its entry into force.
The review shall address in particular the practical implementa-
tion of the Agreement and may also include issues such as the
consequences of further development of the European Union
relating to the subject matter of this Agreement.

Article 18

Entry into force and termination

1.
This Agreement shall enter into force on the first day
the date on which the
following the third month after
Contracting Parties have exchanged instruments indicating that
they have completed their internal procedures for this purpose.
These instruments shall also indicate that the steps specified in
Article 3(2) and (3) have been completed.

3.
The Contracting Parties shall notify each other of any
limitations invoked under Article 4(4) prior to the exchange of
written instruments described in Article 3(2) and (3) between
the Member States and the United States of America.

2.
Either Contracting Party may terminate this Agreement at
any time by giving written notice to the other Party, and such
termination shall be effective six months after the date of such
notice.

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In witness whereof the undersigned Plenipotentiaries have signed this Agreement

Done at Washington D.C. on the twenty-fifth day of June in the year two thousand and three in duplicate
in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish
languages, each text being equally authentic.

Por la Unión Europea

For Den Europæiske Union

Für die Europäische Union
Για την Ευρωπαϊκή Ένωση

For the European Union

Pour l'Union européenne

Per l'Unione europea

Voor de Europese Unie

Pela União Europeia

Euroopan unionin puolesta

På Europeiska unionens vägnar

Por los Estados Unidos de América

For Amerikas Forenede Stater

Für die Vereinigten Staaten von Amerika
Για τις Ηνωµένες Πολιτείες της Αµερικής

For the United States of America

Pour les États-Unis d'Amérique

Per gli Stati Uniti d'America

Voor de Verenigde Staten van Amerika

Pelos Estados Unidos da América

Amerikan yhdysvaltojen puolesta

På Amerikas förenta staters vägnar

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Explanatory Note on the Agreement on Mutual Legal Assistance between the European Union and
the United States of America

This note reflects understandings regarding the application of certain provisions of the Agreement on
Mutual Legal Assistance between the European Union and the United States of America (hereinafter ‘the
Agreement’) agreed between the Contracting Parties.

On Article 8

legal assistance to administrative authorities under Article 8(1), the first
With respect to the mutual
sentence of Article 8(1) imposes an obligation to afford mutual legal assistance to requesting United States
of America federal administrative authorities and to requesting national administrative authorities of
Member States. Under the second sentence of that paragraph mutual legal assistance may also be made
available to other, that is non-federal or local, administrative authorities. This provision however, is avail-
able at the discretion of the requested State.

The Contracting Parties agree that under the first sentence of Article 8(1) mutual legal assistance will be
made available to a requesting administrative authority that is, at the time of making the request,
conducting investigations or proceedings in contemplation of criminal prosecution or referral of the inves-
tigated conduct to the competent prosecuting authorities, within the terms of its statutory mandate, as
further described immediately below. The fact that, at the time of making the request referral for criminal
prosecution is being contemplated does not exclude that, other sanctions than criminal ones may be
pursued by that authority. Thus, mutual
legal assistance obtained under Article 8(1) may lead the
requesting administrative authority to the conclusion that pursuance of criminal proceedings or criminal
referral would not be appropriate. These possible consequences do not affect the obligation upon the
Contracting Parties to provide assistance under this Article.

However, the requesting administrative authority may not use Article 8(1) to request assistance where
criminal prosecution or referral is not being contemplated, or for matters in which the conduct under
investigation is not subject to criminal sanction or referral under the laws of the requesting State.

The European Union recalls that the subject matter of the Agreement for its part falls under the provisions
on police and judicial cooperation in criminal matters set out in Title VI of the Treaty on European Union
and that the Agreement has been concluded within the scope of these provisions.

On Article 9

Article 9(2)(b) is meant to ensure that refusal of assistance on data protection grounds may be invoked
only in exceptional cases. Such a situation could arise if, upon balancing the important interests involved
in the particular case (on the one hand, public interests, including the sound administration of justice and,
on the other hand, privacy interests), furnishing the specific data sought by the requesting State would raise
difficulties so fundamental as to be considered by the requested State to fall within the essential interests
grounds for refusal. A broad, categorical, or systematic application of data protection principles by the
requested State to refuse cooperation is therefore precluded. Thus, the fact the requesting and requested
States have different systems of protecting the privacy of data (such as that the requesting State does not
have the equivalent of a specialised data protection authority) or have different means of protecting
personal data (such as that the requesting State uses means other than the process of deletion to protect
the privacy or the accuracy of the personal data received by law enforcement authorities), may as such not
be imposed as additional conditions under Article 9(2a).

On Article 14

Article 14 provides that the Agreement shall not preclude the conclusion, after its entry into force, of bilat-
eral agreements on mutual legal assistance between a Member State and the United States of America
consistent with the Agreement.

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Should any measures set forth in the Agreement create an operational difficulty for the United States of
America and one or more Member States, such difficulty should in the first place be resolved, if possible,
through consultations between the Member State or Member States concerned and the United States of
America, or, if appropriate, through the consultation procedures set out in the Agreement. Where it is not
possible to address such operational difficulty through consultations alone, it would be consistent with the
Agreement for future bilateral agreements between a Member State and the United States of America to
provide an operationally feasible alternative mechanism that would satisfy the objectives of the specific
provision with respect to which the difficulty has arisen.