Proposal for a Council Decision on the exchange of information and cooperation concerning terrorist offences
Date: 2004-03-29
Institutions: European Commission
Subjects: EU police cooperation, exchange of information, fight against crime, judicial cooperation in criminal matters in the EU, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.03.2004 
COM(2004)221 final 

2004/0069 (CNS) 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

on measures to be taken to combat terrorism and other forms of serious crime, in 
particular to improve exchanges of information 

Proposal for a 

COUNCIL DECISION  

on the exchange of information and cooperation concerning terrorist offences 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

on measures to be taken to combat terrorism and other forms of serious crime, in 
particular to improve exchanges of information 

1. 

INTRODUCTION 

The  terrorist  attacks  in  New  York  and  Washington  on  11  September  2001  were 
followed by a series of acts of terrorism elsewhere in the world in 2002 and 2003. On 
11  March  2004  Spain  was  the  victim  of  brutal  and  deadly  terrorist  attacks.  These 
violent events serve as a vivid reminder of the persistence of the threat of terrorism in 
Europe  or  against  European  interests.  Although  large-scale  measures  have  been 
taken,  we  must  continue  to  fight  relentlessly  against  such  atrocities  and  show  our 
determination to combat this odious phenomenon, which goes against the principles 
of respect for human dignity and fundamental rights on which Europe is founded. 

Terrorism  is  a  phenomenon  with  complex  and  various  causes  and  implications. 
Given its serious implications for the economy, the terrorist threat, which is a burden 
for individuals and firms alike, can imperil their confidence and thus be a negative 
factor for economic growth and the preservation of an investment-friendly climate. 

It is therefore essential that the fight against terrorism remain high on the European 
Union’s  priority list. The  European  Union  and the Member States have made great 
progress  in  a  range  of  areas,  but  the  persistence  of  the  terrorist  threat  and  the 
complexity  of  the  fight  against  the  phenomenon  raise  the  need  to  come  up  with 
innovative  solutions  in  the  Union1.  To  eradicate  the  phenomenon,  and  above  all  to 
attack terrorism as close as possible to its foundations, action must be taken on the 
sources of finance of terrorist organisations. But action on the sources and networks 
of terrorist funding is particularly difficult. As in the case of laundering the proceeds 
of organised crime, terrorist funding is based on highly secret operations conducted 
on an international scale, often using parallel circuits. 

The  purpose  of  this  Communication  is  to  set  guidelines  to  amplify  the  rules  and 
regulations already available in the Union while striking a balance between a variety 
of constraints: a higher level of security as well as respect for fundamental rights2, in 
particular the right to privacy and to protection of personal data. 

The impact of all the new measures on fundamental rights will accordingly have to 
be  analysed  and  compared  with  the  expected  value  added  in  security  terms,  the 

1 

2 

In  2004  the  Commission  is  planning  to  launch  a  “Preparatory  Action  on  the  enhancement  of  the 
European  industrial  potential  in  the  field  of  security  research”.  The  aim  is  to  improve  the  public’s 
security by means of technological research and development. Among the priority topics, the plan is to 
develop specific projects to face up to the different types of terrorist threat, in line with the European 
Security Strategy now being finalised. 
Articles  7  and  8  of  the  Charter  of  Fundamental  Rights  of  the  European  Union  enshrine  the  right  to 
privacy and the right to protection of personal data.  

2 

 
 
  
 
                                                 
objective  always  being  to  come  up  with  appropriate,  balanced  and  proportionate 
solutions3. 

2. 

THE FIGHT AGAINST TERRORISM: A STRONGER EUROPEAN COMMITMENT 

The  fight  against  terrorism  was  already  a  major  concern  in  the  European  Union 
before the attacks of 11 September 20014, but after 11 September the Heads of State 
or Government decided that this would more than ever before be a priority objective. 
They  approved  a  plan  of  action  which  included  enhanced  police  and  judicial 
cooperation, the development of international legal instruments and putting an end to 
terrorist funding5. 

The  European  Council  stated  that  it  was  determined  to  combat  terrorism  in  all  its 
forms and everywhere in the world and that it would pursue its efforts to strengthen 
the coalition formed by the international community to fight against every aspect of 
terrorism.  In  particular  it  asked  for  special  attention  to  be  paid  to  effectively 
combating the funding of terrorism. 

The  conclusions  of  the  European  Council  of  21  September  2001  state  that 
“Combating  the  funding  of  terrorism  is  a  decisive  aspect.  Energetic  international 
action is required to ensure that that fight is fully effective. The European Union will 
contribute to the full. To that end, the European Council calls upon the ECOFIN and 
Justice  and  Home  Affairs  Councils  to  take  the  necessary  measures  to  combat  any 
form of financing for terrorist activities…". 

The keen mobilisation of the Member States, the Council and the Commission meant 
that legislative and operational measures were quickly taken, considerably boosting 
the Union’s arsenal of weapons against terrorism6. Many of these are not specifically 
anti-terrorism but range wider while including terrorism, and particularly the funding 
of terrorism7. 

3 

4 

5 

6 

7 

European 

See the report on the situation of fundamental rights in the European Union and the Member States in 
2002, presented to the European Commission by the European Network of Independent Experts on 31 
March 2003 (http://europa.eu.int/comm/justice_home/index_en.htm). 
For  instance,  Council  Joint  Action  96/610/JHA  of  15  October  1996  concerning  the  creation  and 
maintenance of a Directory of specialised counter-terrorist competences, skills and expertise to facilitate 
counter-terrorist  cooperation  between  the  Member  States  of  the  European  Union;  and  Council 
Recommendation  of  9  December  1999  on  cooperation  in  combating  the  financing  of  terrorist  groups 
(OJ C 373, 23.12.1999, p.1). 
informal 
Extraordinary 
(www.europarl.eu.int/summits/pdf/bru_en.pdf). 
The measures taken by the Union are set out in Commission staff working paper SEC (2003) 414 of 28 
March 2003 on actions to combat the financing of terrorism, produced as requested by the Joint Ecofin 
& Justice and Home Affairs Council on 16 October 2001. 
For instance, 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;  Parliament  and  Council  Directive  2001/97/EC  of 
4 December  2001  amending  Council  Directive  91/308/EEC  on  prevention  of  the  use  of  the  financial 
system  for  the  purpose  of  money  laundering;  Council  Decision  of  6 December  2001  extending 
Europol's  mandate  to  deal  with  the  serious  forms  of  international  crime  listed  in  the  Annex  to  the 
Europol Convention; Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a 
view to reinforcing the fight against serious crime; Council Framework Decision 2002/465/JHA of 13 

September 

Brussels, 

Council 

2001 

21 

in 

3 

 
 
  
 
                                                 
Others  specifically  target  terrorism:  these  include  measures  based  on  UN  Security 
Council Resolutions8 and measures to equip the European Union with the means to 
combat terrorism9. 

Current  or  future  activities  are  set  out  in  the  report  of  28  March  2003  on  actions 
undertaken or planned to combat the financing of terrorism10. 

In addition to these measures, new projects need to be put in hand to boost the 
fight against terrorism and other serious forms of crime. 

3. 

THE FACILITIES AVAILABLE FOR COMBATING CRIME IN THE EU NEED BOOSTING 

(a)  A link should be established between measures to combat organised crime 
and terrorism.  

The links between terrorism and other forms of crime, in particular organised crime, 
are not always immediately obvious. 

But there are links between the two phenomena – between methods, but sometimes 
also between the actual groups11. 

The  financing  of  terrorism  has  been  an  offence  in  the  Union  since  Framework 
Decision 2002/475/JHA on the fight against terrorism, which applies to all forms of 
financing of the activities of a terrorist group. This also makes it possible to tackle, 

June 2002 on joint investigation teams; Council Framework Decision 2002/584/JHA of 13 June 2002 
on the European arrest warrant. 
The  measures  based  on  UN  Security  Council  Resolutions  include:  Council  Common  Position 
2001/930/CFSP  of  27 December  2001  on  combating  terrorism,  which  directly  seeks  to  combat  the 
financing  of  terrorism  and  takes  over  provisions  from  UN  Security  Council  Resolution  1373  (2001); 
Council  Common  Position  2001/931/CFSP  of  27 December  2001  on  the  application  of  specific 
measures to combat terrorism, the Annex to which lists persons, groups and entities involved in terrorist 
acts;  Council  Regulation  (EC)  No  2580/2001  of  27  December  2001  on  specific  restrictive  measures 
directed  against  certain  persons  and  entities  with  a  view  to  combating  terrorism;  Council  Decision 
2001/927/EC  of  27  December  2001  establishing  the  list  provided  for  in  Article  2(3)  of  Council 
Regulation  (EC)  No  2580/2001,  replaced  by  Decision  2003/646/EC  (OJ  L  229,  13.9.2003,  p.  22); 
Council  Common  Position  2002/402/CFSP  of  27  May  2002  concerning  restrictive  measures  against 
Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, 
undertakings  and  entities  associated  with  them  and  repealing  Common  Positions  96/746/CFSP, 
1999/727/CFSP,  2001/154/CFSP  and  2001/771/CFSP;  Council  Regulation  (EC)  No  881/2002  of  27 
May  2002;  Council  Decision  2003/48/JHA  of  19  December  2002  on  the  implementation  of  specific 
measures  for  police  and  judicial  cooperation  to  combat  terrorism  in  accordance  with  Article  4  of 
Common Position 2001/931/CFSP. 
For instance, establishment of a team of experts to combat terrorism in Europol; the Justice and Home 
Affairs Council on 20 September 2001 decided to establish a team of experts in anti-terrorist activities 
in Europol to gather in good time all relevant information and data on the current threat, analyse it and 
carry  out  the  requisite  operational  and  strategic  analyses.  Framework  Decision  2002/475/JHA  of  13 
June 2002 on combating terrorism, adopted on the basis of a Commission initiative, is now the common 
legislative  foundation  for  criminal  law  in  the  Union.  It  approximates  offences  and  penalties  in  the 
Union. It defines terrorist offences: terrorist offences as such and offences related to a terrorist group, 
including financing. 
SEC (2003) 414, 28 March 2003: "Commission staff working paper on actions to combat the financing 
of terrorism". 
E.g. arms trafficking, drugs trafficking, diamond trafficking and counterfeiting and piracy of goods. 

8 

9 

10 

11 

4 

 
 
  
 
                                                                                                                                                         
among other things, cases where terrorist organisations obtain financial support from 
legitimate sources, for instance through charitable or other legal bodies. 

When  seeking  financing,  terrorist  organisations  often  also  use  methods  similar  to 
those of criminal organisations such as extortion, kidnapping with ransom demands 
and all kinds of trafficking and fraud. Like criminal organisations, they may practice 
corruption and money-laundering.  

The mobilisation of States against terrorism and public awareness of the fight against 
terrorism  should  dry  up  the  “legal”  sources  of  terrorist  financing12,  so  that  terrorist 
groups  will  be  tempted  to  seek  financing  more  and  more  through  the  means 
commonly deployed by ordinary criminal organisations. 

Consequently,  if  the  fight  against  terrorism  is  to  be  totally  effective,  it  must  be 
handled in conjunction with the fight against other forms of crime.  

Since  the  facilities  available  for  combating  organised  crime  can  be  used  to  combat 
terrorism  alongside  the  specific  measures  taken  for  that  purpose,  the  Union  must 
equip itself with a high-performance arsenal to combat organised crime. 

(b)  The  Joint  Action  on  making  it  a  criminal  offence  to  participate  in  a 
criminal organisation in the Member States of the European Union, adopted by 
the Council on 21 December 1998, needs reviewing. 

The concept of criminal organisation was introduced by Joint Action 1998/733/JHA 
on making it a criminal offence to participate in a criminal organisation, adopted by 
the Council on 21 December 199813.  

This  concerns  not  only  organised  crime  but  also  terrorist  organisations,  since  it 
applies  to  the  categories  of  offence  referred  to  in  Article  2  of  the  Europol 
Convention, which extends to preventing and combating terrorism14. 

But a number of factors have changed since 1998:  

– 

– 

The  Amsterdam  Treaty  introduced  new  instruments,  more  effective  than  the 
Joint  Action;  the  Framework  Decision  is  now  the  proper  instrument  for 
approximating criminal law in the Union; 

The  United  Nations  Convention  against  transnational  organised  crime  (the 
“Palermo Convention")15 sets out the offences that are related to membership 
of an organised criminal group; 

12 

13 

14 

Financing of terrorist groups can include income from legitimate sources: charitable fund-raising is one 
means of financing terrorism. But a terrorist group can also use the proceeds of criminal activity, like 
criminal organisations. 
OJ L 351, 29.12.1998, p.1. A criminal organisation is defined as “a structured association, established 
over a period of time, of more than two persons, acting in concert with a view to committing offences 
which are punishable by deprivation of liberty or a detention order of a maximum of at least four years 
or  a  more  serious  penalty,  whether  such  offences  are  an  end  in  themselves  or  a  means  of  obtaining 
material  benefits  and,  where  appropriate,  of  improperly  influencing  the  operation  of  public 
authorities”. 
Council  Act  of  26  July  1995  drawing  up  the  Convention  based  on  Article  K.3  of  the  Treaty  on 
European  Union, on  the establishment  of  a  European  Police  Office  (Europol  Convention): OJ  C 316, 
27.11.1995, p.1. 

5 

 
 
  
 
                                                 
– 

Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism16 
is a major reference. It defines a "terrorist group" on the basis of the definition 
of "criminal organisation" in Joint Action 1998/733/JHA, but it is a much fuller 
instrument17. 

The Commission considers that Joint Action 1998/733/JHA should be revised to:  

– 

– 

– 

– 

actually  harmonise  the  definition  of  offences  and  penalties  as  regards 
individuals and bodies corporate; 

provide for a specific offence of “directing a criminal organisation"; 

determine  specific  aggravating  circumstances  (commission  of  an  offence  in 
conjunction  with  a  criminal  organisation)  and  mitigating  circumstances 
(reduced penalties for those who assist the police with their inquiries);  

include  provisions  to  facilitate  cooperation  between  judicial  authorities  and 
coordinate their action. 

Reformatting  the  Joint  Action  on  membership  of  a  criminal  organisation  into  a 
Framework Decision will make it possible to bring the fight against criminal groups 
into  parallel,  whether  they  are  terrorist  organisations  or  organised  crime.  It  is  a 
necessary step on the way to tougher action against organised crime as such. And it 
will  contribute  to  the  fight  against  terrorism  and  the  financing  of  terrorism,  in 
particular: 

– 

– 

where the group’s terrorist motives have not yet become visible; 

where the group commits criminal offences, in particular to obtain sources of 
finance,  without  it  being  possible  to  charge  it  with  terrorist  offences  at  that 
stage; 

15 

16 

17 

United Nations Convention against transnational organised crime adopted by Resolution A/RES/55/25 
of  15  November  2000  at  the  55th  UN  General  Assembly.  The  40th  instrument  of  ratification  was 
deposited  with  the  Secretariat-General  of  the  United  Nations  on  1  July  2003;  Article  38  accordingly 
came into force on 29 September 2003. 
OJ L 164, 26.6.2002, p. 3. 
Framework  Decision  2002/475/JHA  creates  offences  of  directing  a  terrorist  group  and  of  different 
forms  of  participation  in  the  activities  of  a  terrorist  group  (by  supplying  information  or  material 
resources, or by funding its activities in any way, with knowledge of the fact that such participation will 
contribute  to  the  criminal  activities  of  the  terrorist  group),  and  provides  also  for  inciting,  aiding  or 
abetting, and in most cases attempting these offences. Regarding penalties, it introduces a principle of 
"aggravating  circumstance"  by  providing  that  "terrorist  offences"  and  certain  offences  linked  to 
terrorism  must  be punishable  by  custodial  sentences heavier  than  those  imposable  under  national  law 
for such offences in the absence of a terrorist intent, it sets the minimum level of the maximum penalty 
at 15 years for directing a terrorist group and 8 years for participation in a terrorist group, it enumerates 
a series of penalties that can be imposed on bodies corporate (in particular exclusion from entitlement to 
public  benefits  or  aid,  temporary  or  permanent  disqualification  from  the  practice  of  commercial 
activities, placing under judicial supervision, judicial winding-up order and closure of establishments), 
it provides for a system of "repentis" by providing for specific circumstances in which Member States 
may  reduce  prison  sentences  where  the  terrorist  renounces  terrorist  activity  or  provides  the 
administrative or judicial authorities with information. And it establishes rules of jurisdiction, provides 
for coordination between Member States and the centralisation of prosecutions.  

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– 

in  the  case  of  links,  or  even  confusion,  between  terrorist  organisations  and 
organised  criminal  groups  (use  of  terrorist  methods  by  criminal  groups,  as 
terrorist organisations drift into Mafia-type techniques).  

The  Union  legislation  on  criminal  organisations  must  therefore  be  toughened 
and  made  consistent  with  Union  legislation  on  the  fight  against  terrorism:  a 
Framework  Decision  to  supersede  Joint  Action  1998/733/JHA  will  be  a  major 
step forward in the fight against the most serious forms of crime. This will also 
be the most effective way of tackling the overall terrorist phenomenon. 

The Commission is planning to make a proposal in 2004. 

4. 

AN ELECTRONIC LIST OF PERSONS, GROUPS AND ENTITIES TO WHOM RESTRICTIVE 
MEASURES  TAKEN  TO  FIGHT  TERRORISM  APPLY  OR  UNDER  INVESTIGATION  FOR 
CRIMINAL OFFENCES SHOULD BE DRAWN UP.  

Freezing  the  funds  or  other  financial  assets  and  economic  resources  of  individuals, 
groups and entities involved in terrorism is one of the mechanisms that exist in the 
Union to combat terrorism18. 

Lists have accordingly been drawn up. They are regularly updated and published in 
the Official Journal. 

A large number of individuals and organisations, whose names have been published 
in  the  Official  Journal  of  the  European  Union,  need  to  be  kept  under  close 
surveillance,  particularly  in  their  banking  business,  as  they  are  subject  to  financial 
restrictions. 

To be fully effective, freezing of assets must apply in the most appropriate manner as 
soon  as  the  person  or  entity  is  entered  on  the  list.  These  measures  must  operate 
urgently as precautionary measures.  

18 

Council Common Position 2001/931/CFSP of 27 December 2001 provides for the freezing of the funds 
and  other  financial  assets  or  economic  resources  of  persons,  groups  and  entities  involved  in  acts  of 
terrorism and a prohibition on providing them with financial services. They are listed in the Annex. The 
list  is regularly updated by new common  positions amending the original Annex. Council Regulation 
(EC)  No  2580/2001  of  27  December  2001  is  on  specific  restrictive  measures  directed  against  certain 
persons  and  entities  with  a  view  to  combating  terrorism.  It  implements  the  freezing  of  the  funds  and 
other  financial  assets  or  economic  resources  of  the  listed  persons,  groups  and  entities  and  the 
prohibition  on  providing  them  with  financial  services.  The  list  is  regularly  amended  and  updated.  It 
concerns  natural  and  legal  persons,  groups  and  entities  that  commit  or  attempt  to  commit  an  act  of 
terrorism,  participate  in  or  facilitate  such  an  act.  The  Regulation  is  implemented  by  Decisions 
publishing lists in the Official Journal. And Council Common Position 2002/402/CFSP of 27 May 2002 
concerns  measures  against  Usama  bin  Laden,  members  of  the  Al-Qaida  organisation  and  the  Taliban 
and  other  individuals,  groups,  undertakings  and  entities  associated  with  them.  It  provides  for  the 
Community to order the freezing of the funds and other financial assets or economic resources of the 
individuals, groups, undertakings and entities on the list drawn up pursuant to UNSCR 1267(1999) and 
1333(2000) which is updated regularly by the Committee established pursuant to UNSCR 1267(1999). 
Council Regulation (EC) No 881/2002 of 27 May 2002 provides for measures against the same persons 
and entities. It provides in particular that all funds and economic resources belonging to, or owned or 
held by, a natural or legal person, group or entity designated by the Sanctions Committee and listed in 
Annex I shall be frozen. The list has been updated by a succession of Regulations. 

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European banking  organisations grouping  the European Banking Federation (FBE), 
the  European  Association  of 
the  European  Savings  Bank  Group  (ESBG), 
Cooperative Banks and the European Association of Public Banks (EAPB) have set 
up  a  group  of  experts  to  draw  up  a  consolidated  electronic  list  meeting  the  banks’ 
needs. 

This initiative is based on the fact that the only source currently available is in the 
form  of  the  lists  of  individuals  and  entities  subject  to  sanctions  that  are  published 
from time to time in the Official Journal. 

These organisations consider that a consolidated electronic list permanently updated 
and  accessible  to  the  banks  would  enhance  the  effectiveness  of  the  scheme  as  the 
data on individuals and entities subject to sanctions could be processed more quickly.  

The bodies responsible for preventing and combating terrorism could then enjoy the 
benefit of a measure that seeks to set up a database or a consolidated electronic list 
combining  the  information  published  in  the  Official  Journal  and  information  on 
persons,  groups  and  bodies  under  criminal  investigation  for  terrorist  offences. 
Europol and other bodies fighting against terrorism in the Union could save time and 
enhance their efficiency.  

The Commission welcomes the involvement of the private sector here.  

It  will  have  practicable  solutions  for  improving  the  current  system  evaluated, 
and in 2004 the question will be on the agenda at the Forum on the Prevention 
of Organised Crime for discussion with those involved on the ground, including 
representatives of the private sector. 

5. 

THE  ESTABLISHMENT  OF  AN  EFFICIENT  SYSTEM  FOR  REGISTERING  BANK 
ACCOUNTS  IN  THE  MEMBER  STATES  ALLOWING  A  RAPID  RESPONSE  TO  REQUESTS 
FOR  JUDICIAL  ASSISTANCE  ON  BANK  ACCOUNTS  AND  MOVEMENTS  OF  FUNDS 
SHOULD BE LAUNCHED. 

The difficulties encountered in police and judicial cooperation on financial crime are 
due  partly  to  the  difficulty  of  successfully  investigating  bank  accounts  and 
movements  of  funds.  Consequently  the  establishment  of  means  of  identifying  the 
true  ownership  of  bank  accounts  and  of  centralising  accounts  could  help  in 
improving  the  traceability  of  capital  movements  in  the  context  of  criminal 
investigations,  in  particular  regarding  the  financing  of  terrorism  and  money-
laundering19. 

The  Protocol  to  the  Convention  on  mutual  judicial  assistance  in  criminal  matters 
between  the  Member  States  of  the  European  Union,  established  by  Council  Act  on 
16 October 2001, already contains provisions relating to requests for information on 

19 

Certain Member States have established a system of centralisation of bank accounts. In France, there is 
the  "Fichier  des  comptes  bancaires  et  assimilés"  (FICOBA).  Set  up  in  the  early  1970s,  it  has  been 
computerised  since  1982  and  currently  records  about  270  million  accounts.  It  is  fed  by  compulsory 
declarations from financial establishments, which are obliged to declare accounts they manage and to 
supply certain information about them. The data file is consulted by the tax departments and the judicial 
authorities. It is also used in judicial cooperation to answer requests for judicial assistance from foreign 
authorities to French judicial authorities. 

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bank  accounts  and  on  banking  transactions  and  requests  for  monitoring  of  banking 
transactions20. But requests for judicial assistance can be met satisfactorily only if the 
Member  States  set  up  an  efficient  system  for  registering  bank  accounts  allowing  a 
rapid response to requests for judicial assistance on bank accounts and movements of 
funds. 

The establishment of national systems for registering bank and similar accounts 
allowing  the  true  owners  to  be  identified  in  each  Member  State  would  be  a 
valuable tool in the fight against terrorism and organised financial crime. 

Such systems would have to be accessible to law-enforcement agencies and the 
judicial authorities. 

The  question  of  establishing  such  systems  is  already  being  considered  in  the 
context  of  the  preparation  of  a  proposal  for  a  third  directive  on  money-
laundering.  In  2004  the  Commission  will  pursue  its  review  of  existing 
arrangements  in  the  Union  to  determine  whether  there  is  a  need  for  a  legal 
instrument to set up an efficient system for registering bank accounts allowing 
holders  to  be  identified  and  facilitating  investigations  into  bank  accounts  and 
movements of funds. 

6. 

A MECHANISM MUST BE DEVISED ALLOWING INFORMATION TO BE GATHERED AND 
INFILTRATING  LEGITIMATE 
TRANSMITTED  TO  AVOID  TERRORIST  GROUPS 
ACTIVITIES. 

It frequently happens that legitimate entities are used to serve the needs of terrorist 
groups,  particularly  their  financial  needs.  Likewise  organised  criminal  groups 
infiltrate legitimate activities for money-laundering purposes. 

Improvement  in  the  transparency  of  bodies  corporate  and  charitable  organisations 
will help to prevent and combat both organised crime and terrorism more effectively. 

Recommendation  No  3  in  the  Strategy  of  the  European  Union  for  the  next 
Millennium21 reads: “Member States shall seek to collect information, in compliance 
with  the  relevant  rules  relating  to  data  protection,  on  physical  persons  involved  in 
the  creation  and  direction  of  legal  persons  registered  in  the  territory  of  Member 
States,  as  a  means  to  prevent  the  penetration  of  organised  crime  in  the  public  and 
legitimate  private  sector.  A  study  shall  be  made  of  how  such  data  can  be 
systematically  compiled  and  analysed  and  be  available  for  exchange  with  other 
Member States and, where appropriate, with bodies responsible at European Union 
level  for  the  fight  against  organised  crime,  on  the  basis  of  appropriate  rules  to  be 
developed by the Council."22 

20 

21 

22 

OJ C 326, 21.11.2001 p. 1. 
OJ C 124, 3.5.2000 p.1. 
These terms are taken from recommendation 8 of the programme of action on organised crime adopted 
by the Council on 28 April 1997 which ought to have been implemented by the end of 1998. The 1997 
programme of action was fuller on this point since it referred not only to information on natural persons 
participating  in  the  formation  or  management  of  such  legal  persons  but  also  natural  persons 
participating in the financing of legal persons.  

9 

 
 
  
 
                                                 
In the same spirit, paragraph 54 of the conclusions of the Tampere European Council 
of  15  and  16  October  1999  considered  that  the  transparency  of  ownership  of 
corporate entities should be improved, subject to data-protection rules. 

A Commission staff working paper on the measures and steps taken with regard to 
the implementation of the recommendations in the European Union Strategy for the 
Beginning  of  the  New  Millennium  on  Prevention  and  Control  of  Organised  Crime 
calls for the extension of this measure, originally designed to help combat organised 
crime, to the financing of terrorism23. 

At  the  same  time  the  Commission  has  had  a  comparative  study  done  on  existing 
measures in the Member States to prevent organised crime and terrorist groups from 
infiltrating legitimate entities24. 

It  was  found  that  most  Member  States  keep  registers  of  companies  recording  a 
variety  of  items  of  information,  such  as  the  corporate  name  and  legal  form,  the 
registered  office  or  place  of  establishment  and  the  names  of  managerial  officers. 
These  registers  are  held  either  by  public  authorities  reporting  to  the  Ministry  of 
Justice,  the  Ministry  of  Trade  and  Industry  or  the  courts,  or  by  semi-public  bodies 
such  as  chambers  of  commerce.  The  average  annual  number  of  entries  in  the 
Member States is estimated at more than 4 000 000. The annual number of deletions 
is estimated at 1 000 000 or so. 

To ensure effective prevention against infiltration of the legitimate sector, the study 
recommends  that  all  Member  State  should  incorporate  in  their  legislation  on  the 
formation and management of bodies corporate mechanisms for the disqualification 
of individuals or firms convicted of offences related to terrorism or organised crime. 

The  scheme  could  be  fully  effective  if  the  relevant  persons  were  prohibited  from 
directing,  managing,  administering  or  directly  or  indirectly  controlling  a  body 
corporate and the prohibition applied throughout the Union. 

This would presuppose: 

– 

the  existence  of  reliable  national  registers  of  bodies  corporate  –  both 
companies and firms and charitable organisations. Such registers should make 
it possible to identify the true owners of a company or firm. Common standards 
could be determined to harmonise the data in the registers and make it easier 
for  national  services  preventing  and  combating  certain  forms  of  crime,  in 
particular  terrorism,  to  consult  them.  That  would  facilitate  investigations  and 
boost the effectiveness of police and judicial cooperation; 

23 

24 

SEC (2003) 378, 21.3.2003, produced in accordance with Recommendation 39 in "the European Union 
Strategy for the Beginning of the New Millennium on Prevention and Control of Organised Crime" (OJ 
C  124,  3.5.2000,  p.1).  It  was  examined  by  the  par  le  Multidisciplinary  Group  on  organised  crime 
(GMD),  which  produced  the  document  "CRIMORG  36"  of  2  June  2003  entitled  "Draft  report  on  the 
measures and steps taken with regard to the implementation of the recommendations of the European 
Union  Strategy  for  the  Beginning  of  the  New  Millennium  on  Prevention  and  Control  of  Organised 
Crime". 
Study No DG.JAI-B2/2003/01 done by IALS (Institute of Advanced Legal Studies) in 2003 under the 
direction of Constantin Stefanou and Helen Xanthaki. 

10 

 
 
  
 
                                                 
– 

– 

the introduction of mechanisms whereby persons convicted of offences related 
to  terrorism  or  organised  crime  would  be  disqualified  throughout  the  Union 
from forming, managing and directing bodies corporate; 

the  establishment  of  an  information  exchange  mechanism  to  check  whether 
persons who have been convicted of offences related to terrorism or organised 
crime  are  attempting  to  participate  in  forming  or  managing  a  body  corporate 
and apply the disqualification ordered against them25. 

The  implementation  of  Recommendation  3  in  the  European  Union  Strategy  for  the 
Beginning of the New Millennium on Prevention and Control of Organised Crime is 
thus a large-scale project. 

The  Commission  considers  that  it  is  essential  to  bring  in  measures  to  improve  the 
transparency of bodies corporate in order to counter the infiltration of the legitimate 
sector by criminal groups and terrorist organisations. 

These  measures  should  be  devised  in  close  cooperation  with  representatives  of  the 
relevant  sectors.  It  is  necessary  to  ensure  that  greater  transparency  regarding  the 
managers, shareholders and true owners of companies does not have a negative effect 
in terms of loss of efficiency and increased overheads, as a balance must be struck 
between the interests at stake and the proportionality of the means deployed.  

In 2004 the Commission will organise a debate with relevant representatives of 
the Member States on the feasibility, practical arrangements, cost-effectiveness 
and  time  needed  if  a  scheme  that  is  appropriate,  balanced,  proportionate  and 
compatible with fundamental rights, in particular data protection, is to be put 
in place. It is planning to address this issue in the Forum on Organised Crime 
Prevention.  

7. 

THE  ESTABLISHMENT  OF  A  EUROPEAN  CRIMINAL  RECORD  SHOULD  ALSO  BE 
ENVISAGED  AS  A  CONTRIBUTION  TO  THE  EFFECTIVENESS  OF  THE  FIGHT  AGAINST 
CRIME, AND IN PARTICULAR TERRORISM. 

Effectively combating the most serious forms of crime, in particular terrorism, needs 
exchanges  of  information  on  convictions,  if  only  to  enforce  certain  forms  of 
disqualification ordered to be applied throughout the European Union and measures 
confiscating the convicted person’s property or assets. 

This applies likewise to preventing and combating organised crime: the exclusion of 
persons who have committed certain offences from public procurement procedures in 
the  Member  States  and  the  Community  and  the  rejection  of  their  applications  for 
public grants or licences will be nugatory in the absence of Union-wide distribution 
of information on them26. 

25 

26 

See the considerations about the European criminal record in Chapter 7 of this Communication. 
Recommendation  7  of  the  1997  plan  of  action  on  organised  crime  provides  for  disqualifying  people 
convicted of offences related to organised crime from pubic tendering procedures in the Member States 
and the Community and rejecting their applications for grants and licences. Recommendation 2 in the 
European Union strategy for the new millennium takes up the same idea. 

11 

 
 
  
 
                                                 
The  establishment  of  an  effective  mechanism  for  transmitting  information  on 
convictions  and  disqualifications  is  one  of  the  pivots  of  a  general  scheme  for 
gathering  and  transmitting  information  to  prevent  terrorist  groups  and  criminal 
organisations from infiltrating legitimate activities. 

The  process  of  introducing  a  European  criminal  record  containing  convictions  in 
Europe was envisaged in the Commission Communication on the mutual recognition 
of  final  judgments  in  criminal  matters27  and  in  measures  2  to  4  of  the  Council  and 
Commission  programme  of  measures  to  give  effect  to  the  principle  of  mutual 
recognition of decisions in criminal matters28, 29. 

Two  studies  have  been  done  under  this  programme30,  financed  from  programmes 
managed by the Commission, and the Commission recently ordered another study31. 
They  explore  many  of  the  questions  raised  by  the  establishment  of  a  European 
register of convictions. 

The  Member  States  keep  national  registers  of  convictions,  but  there  are  major 
differences  in  the  departments  holding  them,  the  content  and  the  rules  governing 
access.  

27 
28 
29 

30 

31 

COM (2000) 495 final, 26.7.2000, section 5. 
OJ C 12, 15.1.2001, p.10. 
Measure 2 concerns the adoption of “one or more instruments establishing the principle that a court in 
one Member State must be able to take account of final criminal judgments rendered by the courts in 
other  Member  States  for  the  purposes  of  assessing  the  offender's  criminal  record  and  establishing 
whether  he  has  reoffended,  and  in  order  to  determine  the  type  of  sentence  applicable  and  the 
arrangements  for  enforcing  it.”  As  regards  taking  account  of  foreign  convictions  as  envisaged  by  the 
above measure, the situation varies widely from one Member State to another. Article 56 of the Council 
of  Europe  Convention  on  the  international  validity  of  criminal  judgments  of  1970  provides:  “Each 
Contracting State shall legislate as it deems appropriate to enable its courts when rendering a judgment 
to take into consideration any previous European criminal judgment rendered for another offence after a 
hearing of the accused with a view to attaching to this judgment all or some of the effects which its law 
attaches to judgments rendered in its territory. It shall determine the conditions in which this judgment 
is  taken  into  consideration”.  But  only  four  Member  States  have  ratified  the  Convention  (Austria, 
Denmark, Spain and Sweden) without entering reservations on the application de Article 56. Measure 3 
reads: "In order to facilitate the exchange of information, a standard form like that drawn up for the 
Schengen  bodies,  translated  into  all  the  official  Union  languages,  should  be  introduced  for  criminal 
records applications”. As regards this standard form for criminal records applications, the Commission 
has concluded that its should be combined with the model in the proposal for a Framework Decision on 
the  European  Evidence  Warrant  for  obtaining  objects,  documents  and  data  for  use  in  proceedings  in 
criminal  matters.  Under  this  proposal,  existing  judicial  assistance  procedures  for  obtaining  criminal 
records would be replaced by a warrant issued by a judicial authority and enforced in accordance with 
the  mutual  recognition  principle.  Measure  4 reads:  "A  feasibility  study  should  be  carried  out  to 
determine how best to ensure, while taking full account of requirements relating to personal freedoms 
and  data  protection,  that  the  competent  authorities  in  the  European  Union  are  informed  of  an 
individual's criminal convictions. Such a study should cover, in particular, the types of conviction that 
should  be  concerned  and  consider  which  of  the  following  would  be  the  best  method:  (a)  to  facilitate 
bilateral information exchanges; (b) to network national criminal records offices; or (c) to establish a 
genuine European central criminal records office ". 
“Blueprint  for  an  EU  criminal  records  database:  Legal,  politico-institutional  &  practical  feasibility” 
(Prof.  Gert  Vermeulen  and  Prof.  Tom  Vander  Beken,  Ghent  University;  Grotius  project 
2001/GRP/024). “A European Criminal Record as a means of combating organised crime” (coordinated 
by par Dr Helen Xanthaki, IALS, London; Falcone project 2000/FAL/168). 
Study  DG.JAI-B2/2003/01  done  by  IALS  (Institute  of  Advanced  Legal  Studies)  in  2003  under  the 
direction of Constantin Stefanou and Helen Xanthaki. 

12 

 
 
  
 
                                                 
In certain Member States the registers are held by the police, whereas in others they 
are at the Ministry of Justice. 

There are differences in the types of convictions and disqualifications entered in the 
national registers. Not all Member States record convictions of bodies corporate and 
not all Member States record convictions of their nationals in foreign courts. 

There are also major differences in the rules relating to the removal of entries from 
the register. 

The rules in the ten acceding States are just as diverse. 

Moreover,  in  the  current  situation,  mutual  judicial  assistance  is  needed  for  the 
transmission of information on convictions. 

A  European  register  of  convictions  and  disqualifications  would  have  the  advantage 
of making it unnecessary to use this procedure and would save much time, though a 
number of practical and legal problems must first be solved.  

Before embarking on this exercise, it is necessary to determine clearly what purposes 
the register is to serve.  

The programme of measures mentioned above identifies two types of use: identifying 
repeat offenders and drawing the conclusions for sentencing purposes (section 1.2 of 
the  programme),  and extending the  effectiveness of penalties throughout the Union 
(section 3.4).  

Other uses are conceivable: it would allow the court to apply the "non bis in idem" 
principle  where  the  accused  has  already  been  convicted  of  the  same  offence  in 
another  Member  State,  and  it  could  also  help  to  prevent  terrorist  groups  and 
organised crime from infiltrating the legitimate public and private sectors. 

It  will  have  to  be  decided  whether  the  register  should  provide  information  for 
investigations undertaken by criminal investigation services (which are police forces 
or  judicial  authorities,  depending  on  the  country  and  the  type  of  investigation)  or 
even  for  investigations  undertaken  by  administrative  authorities  responsible  for 
controlling  access  to  certain  activities  (such  as  work  with  children,  or  public 
tendering) from which convicted persons are disqualified.  

The study on measures in the Member States to prevent organised crime and terrorist 
groups from infiltrating legitimate entities recommends that a European Register of 
Convictions and Disqualifications be established for individuals and bodies corporate 
convicted of organised crime or terrorism offences (Recommendation 7).  

The study recommends direct access for public authorities responsible for registering 
information  on  bodies  corporate  so  as  to  prevent  them  from  being  infiltrated  by 
terrorism  and  organised  crime  (Recommendation  14).  It  adds  that  such  a  Register 
must be accessible to the judicial and prosecuting authorities, the police and public 
bodies responsible for keeping companies registers32. 

32 

Study  DG.JAI-B2/2003/01  done  by  IALS  (Institute  of  Advanced  Legal  Studies)  in  2003  under  the 
direction of Constantin Stefanou and Helen Xanthaki. 

13 

 
 
  
 
                                                 
And to control access to certain occupations, it must be decided whether there should 
be a possibility of applying for a certificate that an individual is not on the register. 

In  the  light  of  the  foregoing,  the  discussion  on  the  establishment  of  a  European 
criminal record must deal at the very least with the following questions: 

– 

– 

– 

– 

– 

Data protection. It will be necessary to determine how the data in the registers 
are to be protected. There will have to be precise provisions governing access 
to the data by the person concerned, the right to correct them and supervision 
by a control body.  

Access.  It  will  be  necessary  to  determine  who  has  access,  for  what  purposes 
and  on  what  conditions.  In  particular  it  will  have  to  be  decided  whether  not 
only  the  judicial  authorities  but  also  the  police  and  administrative  authorities 
should  have  the  possibility  of  direct  or  indirect  access.  And  the  question  of 
access for Eurojust, Europol and OLAF will arise. 

Content.  Given  the  objectives  pursued,  it  will  have  to  be  decided  what 
convictions should be entered in the European register: are all convictions and 
disqualifications  to  be  recorded  or  only  some  of  them,  those  relating  to 
particularly  serious  offences  (such  as  terrorism  and  organised  crime).  And 
there  is  the  question  of  the  inclusion  of  bodies  corporate  and  the  rules  to  be 
applied to them. 

Removal of data. The easiest solution would be to leave it up to each Member 
State to apply its own rules to the deletion of a record of a conviction. 

Organisation.  A  European  register  should  be  accessible  electronically  in  real 
time  if  it  is  to  be  quick  and  effective.  But  the  centralised  register  does  not 
necessarily  imply  a  central  computer  storing  all  the  data,  as  setting  up  links 
with  national  registers  could  well  suffice.  The  question  of  responsibility  for 
data input and updating would then arise. Whatever solution is selected, it will 
be  necessary  to  determine  what  body  is  best  placed  to  manage  the  register  at 
European  level.  The  studies  referred  to  above  raise  a  number  of  possibilities, 
including  Europol  and  Eurojust.  The  controls  of  the  operation  of  the  register 
will also have to be considered. 

– 

Financing. The question of financing the costs of establishing and operating a 
register is obviously a vital one. 

On  the  basis  of  the  main  questions  relating  to  the  establishment  of  a  European 
register  of  convictions  and  disqualifications,  the  Commission  will  shortly  be 
consulting  with  the  Member  States  with  a  view  to  producing  a  proposal  for 
legislation to establish such a register before the end of 2004. 

8. 

THE EXCHANGE OF INFORMATION BETWEEN THE MEMBER STATES AND THE UNION 
BODIES RESPONSIBLE FOR COMBATING TERRORISM MUST BE TOTAL. 

Without  awaiting  the  establishment  of  a  European  Register  of  convictions  and 
disqualifications,  which  will  require  detailed  analysis  over  a  lengthy  period,  steps 

14 

 
 
  
 
must be  taken to improve  the  exchange of information  between the  Member States 
and the bodies responsible for combating terrorism in the European Union.  

Council  Decision  2003/48/JHA  of  19  December  2002  on  the  implementation  of 
specific measures for police and judicial cooperation to combat terrorism is already a 
major step forward.  

It  was  adopted  on  the  basis  of  an  initiative  of  the  Kingdom  of  Spain  and  helps  to 
improve  exchanges  of  information  on  criminal  investigations  and  proceedings 
concerning the "persons, groups or entities" listed in the Annex to Council Common 
Position 2001/931/CFSP of 27 December 2001. 

But  more  must  be  done  to  extend  the  scope  of  these  information  exchanges  to  all 
terrorist offences within the meaning of Framework Decision 2002/475/JHA, without 
them  being  confined 
to  Common  Position 
2001/931/CFSP. 

the  Annex 

listed 

those 

to 

in 

The obligation to provide information would not be defined by reference to a list of 
persons  and  entities,  however  broad,  but  to  all  the  offences  defined  by  Framework 
Decision  2002/475/JHA on combating  terrorism with  which the Member States are 
acquainted:  terrorist  offences,  offences  relating  to  a  terrorist  group,  including  all 
forms  of  financing  for  its  activities,  offences  linked  to  terrorist  activities  and 
incitement, complicity and attempts. 

These  exchanges  of  information  should  concern  all  the  stages  of  the  procedure, 
including  criminal  convictions,  whereas  Decision  2003/48/JHA  applies  only  to 
convictions. 

The  information  –  concerning  investigations,  prosecutions  and  convictions  for 
terrorist offences – should be sent to Europol and Eurojust. 

It  should  provide  input  for  ongoing  investigations  and  all  useful  links  and 
comparisons with current proceedings should be made.  

A proposal for a Decision is attached to this Communication. 

9. 

CONCLUSION 

Greater  efforts  must  be  made  in  the  fight  against  terrorism  and  the  most  serious 
forms  of  crime.  A  qualitative  and  quantitative  improvement  in  exchanges  of 
information is needed. At the same time, regard must be had for fundamental rights, 
and particularly data protection, and the practicability of measures. 

The Commission proposes a step-by-step approach: 

– 

– 

It is essential in the fight against terrorism for the relevant services to have the 
fullest  and  most  up-to-date  information  possible  in  their  respective  fields, 
including  information  on  convictions.  The  Commission  is  accordingly 
presenting the attached proposal for a Decision. 

The Union legislation on criminal organisations must be toughened and made 
consistent with the Union legislation on the fight against terrorism. Before the 

15 

 
 
  
 
– 

– 

– 

– 

end of 2004 the Commission will prepare a Framework Decision to replace the 
Joint Action of 1998. 

In 2004  the  Commission will launch work  in the Forum  on  Organised  Crime 
Prevention for the establishment of a database or a consolidated computerised 
list of persons, groups and entities covered by restrictive measures for the fight 
against  terrorism  or  under  criminal  proceedings  for  terrorist  offences.  This 
work  will  be  undertaken  in  partnership  with  the  private  sector  and  in  liaison 
with Europol. 

In  2004  the  Commission  will  have  a  study  done  on  existing  arrangements  in 
the Union to determine whether there is a need for a European legal instrument 
to  require  the  Member  States  to  have  national  systems  for  registering  bank 
accounts  allowing  holders  to  be  identified  and  facilitating  investigations  into 
bank accounts and movements of funds. 

The  Commission  regards  measures  to  improve  the  transparency  of  bodies 
corporate  as  indispensable  to  counter  infiltration  of  the  legitimate  sector  by 
criminal groups and terrorist organisations. Such measures must be prepared in 
close  cooperation  with  representatives  of  the  relevant  sectors.  In  2004  the 
Commission  will  organise  a  debate  with  relevant  representatives  of  the 
Member  States  on  the  feasibility,  practical  arrangements,  cost-effectiveness 
and  time  needed  if  a  scheme  that  is  appropriate,  balanced,  proportionate  and 
compatible with fundamental rights, in particular data protection, is to be put in 
place.  It  is  planning  to  address  this  issue  in  the  Forum  on  Organised  Crime 
Prevention. 

The  Commission  considers  that  the  establishment  of  an  effective  mechanism 
for exchanging information on convictions and disqualifications is one means 
of  preventing  terrorist  groups  and  criminal  organisations  from  infiltrating 
legitimate  activities.  The  main  questions  relating  to  the  establishment  of  a 
European  register  of  convictions  and  disqualifications  have  been  identified. 
The Commission will continue analysing this horizontal issue and will seek out 
the  most  appropriate  solutions  before  presenting  a  proposal  for 
the 
establishment of a register. It will sound out the Member States on the basis of 
a questionnaire in 2004. 

16 

 
 
  
 
Proposal for a 

COUNCIL DECISION  

on the exchange of information and cooperation concerning terrorist offences 

17 

 
 
  
 
EXPLANATORY MEMORANDUM 

INTRODUCTION 

The  purpose  of  this  Decision  is  to  improve  the  effectiveness  of  activities  to  prevent  and 
combat  terrorism  and  to  boost  cooperation  between  the  Member  States’  authorities 
responsible for combating terrorism, Europol and Eurojust.  

In particular the point is to broaden the exchanges of information on convictions for terrorist 
offences. 

A European Register of convictions and disqualifications was envisaged in the programme of 
measures to implement the principle of mutual recognition of criminal judgments. 

The idea was also developed in the Commission Communication on measures to be taken to 
combat  terrorism  and  other  forms  of  serious  crime,  in  particular  to  improve  exchanges  of 
information. 

However, without awaiting the establishment of the Register, which needs thorough analysis 
and  will  take  time,  rapid  progress  must  be  made  towards  improving  the  exchange  of 
information  between  the  Member  States  and  the  European  Union  bodies  responsible  for 
combating terrorism.  

It  is  essential  in  combating  terrorism  for  the  Member  States  to  routinely  transmit  to  the 
relevant  European  Union  bodies  information  on  all  persons  investigated,  prosecuted  or 
convicted for acts of terrorism and to exchange information in this respect. 

Council  Decision  2003/48/JHA  of  19  December  2002  on  the  implementation  of  specific 
measures for police and judicial cooperation to combat terrorism is a major step forward for 
the exchange of information at the time of ongoing criminal proceedings, particularly at the 
investigation stage. 

The Decision, adopted on the basis of an initiative by the Kingdom of Spain, helps to improve 
exchanges of information on criminal investigations and proceedings concerning the "persons, 
groups  or  entities"  listed  in  the  Annex  to  Council  Common  Position  2001/931/CFSP  of  27 
December 2001. 

The persistence of the terrorist threat and the complexity of the phenomenon raise a need for 
greater effectiveness. More must be done to extend the scope of these information exchanges 
to  all  terrorist  offences  within  the  meaning  of  Framework  Decision  2002/475/JHA,  without 
them being confined to those listed in the Annex to Common Position 2001/931/CFSP. 

These  exchanges  of  information  should  concern  all  the  stages  of  the  procedure,  including 
criminal convictions; 

The  information  –  concerning  investigations,  prosecutions  and  convictions  for  terrorist 
offences – should be sent to Europol and Eurojust. 

Under Article 8 of the Convention on the establishment of a European Police Office, Europol 
can enter data relating to convictions in its information system.  

Article  8(1)(1)  of  the  Europol  Convention  allows  data  on  persons  convicted  of  an  offence 
within Europol’s jurisdiction to be entered in the Europol Information System. 

18 

 
 
  
 
Article  8(3)(5)  allows  information  on  the  conviction  of  such  persons  for  offences  within 
Europol’s jurisdiction to be stored in the Europol Information System.  

Such  information  can  also  be  processed  in  working  files  held  by  Europol  for  analysis 
purposes in the performance of its tasks. And Europol can supply information on convictions 
to the Member States.  

This  information  is  optional,  and  in  practice  Europol  receives  very  little  information  on 
convictions.  

It is therefore important for the Member States to take the necessary measures to ensure that 
the  appropriate  authorities  routinely  supply  Europol  with  at  least  the  basic  information  it 
needs on convictions for terrorist offences within the meaning of the Framework Decision of 
13 June 2002 on combating terrorism. 

As regards Eurojust, Article 9(4) of the Council Decision of 28 February 2002 establishing it 
provides: "In order to meet Eurojust's objectives, the national member shall have access to the 
information contained in the national criminal records or in any other register of his Member 
State in the same way as stipulated by his national law in the case of a prosecutor, judge or 
police officer of equivalent competence." 

It is also important here for the Member States to take the necessary measures to ensure that 
the  relevant  authorities  actually  and  automatically  send  Eurojust  information  on  terrorist 
offences, including convictions and the offenders’ criminal records. 

Council  Decision  2003/48/JHA  of  19  December  2002  on  the  implementation  of  specific 
measures for police and judicial cooperation to combat terrorism in accordance with Article 4 
of Common Position 2001/931/CFSP will be repealed and replaced by this Decision.  

ARTICLE-BY-ARTICLE COMMENTARY 

Preamble 

Recitals  1  and  2  restate  the  Council’s  determination  to  combat  terrorism.  They  take  over 
recitals  1  and  4  of  Council  Decision  2003/48/JHA  of  19  December  2002  on  the 
implementation of specific measures for police and judicial cooperation to combat terrorism. 

Recital  3  states  that  it  is  essential  in  the  fight  against  terrorism  for  the  relevant  services  to 
have the fullest and most up-to-date information possible in their respective fields, including 
information  on  convictions.  The  Member  States’  specialised  national  services,  the  judicial 
authorities  and  relevant  European  Union  bodies  such  as  Europol  and  Eurojust  have  a  vital 
need for information if they are to perform their tasks. 

Recital  4  defines  the  objective  of  the  Decision,  with  an  express  reference  to  Decision 
2003/48/JHA of 19 December 2002, adopted on the basis of an initiative of the Kingdom of 
Spain, the scope of which must be extended to all stages of criminal proceedings, including 
convictions,  and  to  all  individuals  and  bodies  corporate,  groups  or  entities  investigated, 
prosecuted or convicted for terrorist offences.  

Recital  5  states  that  the  Decision  is  in  conformity  with  the  rules  on  subsidiarity  and 
proportionality. 

19 

 
 
  
 
The  final  recital  states  that  the  Decision  respects  the  fundamental  rights  and  observes  the 
principles  recognised  in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European 
Union. 

Article 1 

Article 1 is  devoted  to definitions of the main  concepts used in the  Decision: most of them 
refer to other European Union instruments. 

“Terrorist  offences”,  for  instance,  are  the  offences  specified  in  Articles  1  to  3  of  Council 
Framework  Decision  2002/475/JHA  of  13  June  2002  on  combating  terrorism,  the  “Europol 
convention"  is  the  Convention  of  26  July  1995  on  the  establishment  of  a  European  Police 
Office  and  the  “Eurojust  Decision”  is  the  Council  Decision  2002/187/JHA  of  28  February 
2002 setting up Eurojust with a view to reinforcing the fight against serious crime. 

The concept of “group or entity" has been defined in a specific way for this Decision to reflect 
the fact that it is broader in scope than 2003/48/JHA. It accordingly includes: 

– 

– 

"terrorist  groups"  within  the  meaning  of  Article  2  of  Council  Framework  Decision 
2002/475/JHA of 13 June 2002; and  

the groups and entities listed in the Annex to Common Position 2001/931/CFSP. 

There is not necessarily a total correlation between the two concepts. It has therefore been felt 
preferable  to  refer  to  the  two  instruments  so  as  to  broaden  the  scope  of  the  terrorism 
information exchanges as far as possible. 

Article 2 

Article  2  is  the  main  provision  of  the  Decision,  since  it  governs  information  exchanges  on 
terrorist offences.  

It is in six paragraphs. 

Paragraph 1 takes over Article 2(1) of Decision 2003/48/JHA but drops the phrase "involving 
any  of  the  listed  persons,  groups  or  entities"  so  as  to  extend  the  scope  of  the  information 
exchanges  to  all  terrorist  offences.  It  takes  over  the  principle  that  each  Member  State  must 
designate  a  specialised  service  within  its  police  services  to  receive  all  relevant  information 
concerning terrorist offences. 

Paragraph 2 corresponds to Article 3(1) of Decision 2003/48/JHA. It takes the same principle 
of  the  designation  of  an  appropriate  judicial  or  other  competent  authority  that  has  access  to 
and can collect all relevant information concerning criminal proceedings conducted under the 
responsibility of the judicial authorities. But its scope is extended to include convictions. And 
provision  is  made  for  a  single  authority  to  be  designated  in  each  Member  State,  whereas 
Decision 2003/48/JHA allowed several authorities to be designated where the Member State’s 
legal system so provides. 

The  effectiveness  of  the  information  collection  and  transmission  system  depends  on 
simplicity  and  centralisation:  each  Member  State  must  have  a  single  police  service  and 
judicial authority for information exchanges. 

20 

 
 
  
 
Paragraph 3 requires each Member State to take the necessary measures to ensure that at least 
the information referred to in paragraph 4 is transmitted to: 

– 

– 

Europol,  in  accordance  with  national  law  and  where  the  provisions  of  the 
Europol Convention so allow, for processing in accordance with Article 10 of 
that Convention, and in particular paragraph 6; and 

Eurojust,  in  accordance  with  national  law  and  where  the  provisions  of  the 
Eurojust Decision so allow, in order to enable Eurojust to perform its tasks. 

Paragraph  4  lists  the  information  to  be  transmitted.  The  list  is  based  on  Articles  2  and  3  of 
Decision 2003/48/JHA, but it has been amplified to reflect the broader scope of this Decision 
and to ensure that Europol and Eurojust receive the fullest possible information. 

Europol  and  Eurojust  must  be  sent  all  relevant  information  that  is  available  on  terrorism  so 
that they can perform their tasks in the best possible conditions.  

References to convictions have been added to the lists in Articles 2(2) and 3(2) of Decision 
2003/48/JHA:  terrorist  offences  for  which  a  person  has  been  convicted,  sentenced  or 
disqualified and criminal record.  

The common list for Europol and Eurojust now contains the following: 

– 

– 

– 

– 

– 

– 

– 

– 

– 

data which identify the person, group or entity; 

acts under investigation and their specific circumstances; 

the offence concerned; 

links with other relevant cases of terrorist offences;  

requests  for  judicial  assistance,  including  letters  rogatory,  addressed  to  or  by 
another Member State and the response; 

terrorist  offences  of  which  the  person  has  already  been  convicted  and  the 
specific circumstances surrounding them;  

penalties imposed and information regarding their enforcement; 

disqualifications ordered by reason of the conviction; 

prior criminal record.  

Only  the  information  provided  for  by  paragraph  5  is  reserved  solely  for  Europol.  This 
information, which corresponds to points (c) and (d) of Article 2 of Decision 2003/48/JHA, 
will be of no use to Eurojust (information relating to the use of communication technologies 
and the threat posed by the possession of weapons of mass destruction). 

Paragraph 6 is taken over from Article 7 of Decision 2003/48/JHA, which will be repealed. It 
concerns  information  exchanges  between  Member  States.  The  only  difference  concerns  the 
scope, which is broader here. It is no longer confined to the listed persons, groups or entities 
(annex to common position 2001/931/CFSP). All terrorist offences are now concerned. 

21 

 
 
  
 
Each Member State must take the necessary measures to ensure that any relevant information 
included in a document, file, item of information, object or other means of evidence, seized or 
confiscated  in  the  course  of  criminal  investigations  or  criminal  proceedings  in  connection 
with terrorist offences can be made accessible or available immediately to the authorities of 
other  interested  Member  States  in  accordance  with  national  law  and  relevant  international 
legal  instruments  where  investigations  are  being  carried  out  or  might  be  initiated,  or 
prosecutions are in progress in connection with terrorist offences. 

Article 3 

Article  13  of  the  Convention  on  mutual  judicial  assistance  in  criminal  matters  between  the 
Member  States  of  the  European  Union  (OJ  C  197,  12.7.2000,  p.  3)  provides  for  joint 
investigation  teams  to  be  formed.  Framework  Decision  2002/465/JHA  of  13  June  2002  on 
joint investigation teams determines the legal rules governing such teams, leaving it open to 
the Member States to decide whether to use them or not. But the Tampere European Council 
on 15 and 16 October 1999 asked for investigation teams to be set up without delay, initially 
to combat terrorism.  

Decision 2003/48/JHA went a step further than the earlier instruments. Article 4 provides that 
"Member  States  shall,  where  appropriate,  take  the  necessary  measures  to  set  up  joint 
investigation  teams  in  order  to  carry  out  criminal  investigations  into  terrorist  offences 
involving any of the listed persons, groups or entities."  

Even if it goes beyond the information exchanges which are the main subject-matter of this 
Decision, the principle of that provision should be preserved, as it adds value over and above 
the  basic  instruments  on  joint  investigation  teams,  which  simply  introduce  the  optional 
possibility of setting them up. 

But  the  scope  will  be  extended.  It  is  no  longer  confined  to  the  listed  persons,  groups  or 
entities  (annex  to  common  position  2001/931/CFSP).  All  terrorist  offences  are  now 
concerned. 

And the expression "in appropriate cases" is used in place of "where appropriate" to clarify 
and strengthen the text.  

Article 4 

Article  4  concerns  requests  for  mutual  legal  assistance  and  recognition  and  enforcement  of 
judgments. It takes over Article 6 of Decision 2003/48/JHA. The scope is extended to cover 
all terrorist offences.  

Article 5 

Article 5 repeals Decision 2003/48/JHA. This is thought to be the best way of making the law 
easier  to  read.  The  new  Decision  takes  over  virtually  all  the  provisions  of  Decision 
2003/48/JHA but broadens the scope and reinforces some of them. 

Article 5 of Decision 2003/48/JHA has not been taken over in the new Decision and must be 
regarded as repealed.  

22 

 
 
  
 
It has not been felt useful to take over Article 5 as the list of information items to be supplied 
to  Europol  and  Eurojust  has  been  unified,  with  the  exception  only  of  those  in  Article  2(5), 
which are not relevant to Eurojust. 

Article 6 governs the entry into force of the Decision. 

Article 6 

23 

 
 
  
 
2004/0069 (CNS) 

Proposal for a 

COUNCIL DECISION  

on the exchange of information and cooperation concerning terrorist offences 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, and in particular Articles 29, 30(1), 31 and 
34(2)(c) thereof,  

Having regard to the proposal from the Commission, 

Having regard to the Opinion of the European Parliament, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

At its extraordinary meeting on 21 September 2001, the European Council stated that 
terrorism  was  a  real  challenge  to  the  world  and  to  Europe  and  that  the  fight  against 
terrorism would be a priority objective of the European Union. 

On  19  October  2001  the  European  Council  stated  that  it  was  determined  to  combat 
terrorism in every form throughout the world and that it would continue its efforts to 
strengthen  the  coalition  of  the  international  community  to  combat  terrorism  in  every 
shape  and  form,  for  example  by  increased  cooperation  between  the  operational 
services  responsible  for  combating  terrorism:  Europol,  Eurojust,  the  intelligence 
services, police forces and judicial authorities. 

It is essential in the fight against terrorism for the relevant services to have the fullest 
and  most  up-to-date  information  possible  in  their  respective  fields.  The  Member 
States’  specialised  national  services,  the  judicial  authorities  and  relevant  European 
Union bodies such as Europol and Eurojust absolutely need information if they are to 
perform their tasks. 

Decision 2003/48/JHA of 19 December 2002 is a major step forward. The persistence 
of  the  terrorist  threat  and  the  complexity  of  the  phenomenon  raise  the  need  for  ever 
greater  exchanges  of  information.  The  scope  of  information  exchanges  must  be 
extended  to  all  stages  of  criminal  proceedings,  including  convictions,  and  to  all 
individuals  and  bodies  corporate,  groups  or  entities  investigated,  prosecuted  or 
convicted  for  terrorist  offences.  The  information  exchanges  must  be  extended  in 
to 
terrorism  offences, 
particular 
disqualifications ordered by reason of such convictions and to the criminal record. 

for  convictions 

to  penalties 

imposed 

for 

(5) 

The objectives of the proposed action cannot be satisfactorily attained by the Member 
States acting alone and can therefore, given the need for reciprocity, be better attained 
by the Union, which may accordingly act in accordance with the subsidiarity principle. 

24 

 
 
  
 
In accordance with the principle of proportionality, this Framework Decision does not 
go beyond what is necessary to attain those objectives. 

(6) 

This Decision respects the fundamental rights and observes the principles recognised 
in particular by the Charter of Fundamental Rights of the European Union, 

HAS DECIDED AS FOLLOWS:  

Article 1 

Definitions 

For the purposes of this Decision, the following definitions shall apply: 

(a) 

(b) 

(c) 

(d) 

1. 

2. 

3. 

“terrorist offences”: the offences specified in Articles 1 to 3 of Council Framework 
Decision 2002/475/JHA of 13 June 2002 on combating terrorism33; 

“Europol  Convention":  the  Convention  of  26  July  1995  on  the  establishment  of  a 
European Police Office34; 

“Eurojust  Decision”:  Council  Decision  2002/187/JHA  of  28  February  2002  setting 
up Eurojust with a view to reinforcing the fight against serious crime35; 

"group  or  entity":  "terrorist  groups"  within  the  meaning  of  Article  2  of  Council 
Framework  Decision  2002/475/JHA  of  13  June  2002  and  the  groups  and  entities 
listed in the Annex to Common Position 2001/931/CFSP. 

Article 2 

Exchanges of information concerning terrorist offences 

Each  Member  State  shall  designate  a  specialised  service  within  its  police  services, 
which, in accordance with national law, will have access to and collect all relevant 
information  concerning  and  resulting  from  criminal  investigations  conducted  by  its 
law enforcement authorities with respect to terrorist offences.  

Each  Member  State  shall  designate  a  Eurojust  national  correspondent  for  terrorism 
matters or an appropriate judicial or other competent authority which, in accordance 
with  national  law,  shall  have  access  to  and  can  collect  all  relevant  information 
concerning prosecutions and convictions for terrorist offences. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  at  least  the 
information  referred 
investigations, 
prosecutions  and  convictions  for  terrorist  offences,  gathered  by  the  relevant 
authority, is transmitted to: 

in  paragraph  4  concerning  criminal 

to 

33 

34 

35 

OJ L 164, 22.6.2002, p.3. 
OJ C 316, 27.11.1995, p.2. 
OJ L 63, 6.3.2002, p.1. 

25 

 
 
  
 
                                                 
– 

– 

Europol,  in  accordance  with  national  law  and  where  the  provisions  of  the 
Europol Convention so allow, for processing in accordance with Article 10 of 
that Convention, and in particular paragraph 6; and 

Eurojust,  in  accordance  with  national  law  and  where  the  provisions  of  the 
Eurojust Decision so allow, in order to enable Eurojust to perform its tasks. 

4. 

The information to be transmitted in accordance with paragraph 3 is the following: 

– 

– 

– 

– 

– 

– 

– 

– 

– 

data which identify the person, group or entity; 

acts under investigation and their specific circumstances; 

the offence concerned; 

links with other relevant cases of terrorist offences;  

requests  for  judicial  assistance,  including  letters  rogatory,  addressed  to  or  by 
another Member State and the response; 

terrorist  offences  of  which  the  person  has  already  been  convicted  and  the 
specific circumstances surrounding them;  

penalties imposed and information regarding their enforcement; 

disqualifications ordered by reason of the conviction; 

prior criminal record.  

5. 

6. 

The  following  information  shall  also  be  transmitted  to  Europol  as  provided  by 
paragraph 2: 

– 

– 

the use of communication technologies; 

the threat posed by the possession of weapons of mass destruction. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  any  relevant 
information included in document, file, item of information, object or other means of 
evidence,  seized  or  confiscated  in  the  course  of  criminal  investigations  or  criminal 
proceedings in connection with terrorist offences can be made accessible or available 
immediately to the authorities of other interested Member States in accordance with 
national  law  and  relevant  international  legal  instruments  where  investigations  are 
being carried out or might be initiated, or prosecutions are in progress in connection 
with terrorist offences. 

Article 3 

Joint investigation teams 

In  appropriate  cases  the  Member  States  shall  take  the  necessary  measures  to  set  up  joint 
investigation teams to conduct criminal investigations into terrorist offences. 

26 

 
 
  
 
Article 4 

Requests for judicial assistance and enforcement of judgments 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  requests  from  other 
Member States for mutual legal assistance and recognition and enforcement of judgments in 
connection  with  terrorist  offences  are  dealt  with  as  a  matter  of  urgency  and  shall  be  given 
priority. 

Article 5 

Repeal of existing provisions 

Decision 2003/48/JHA is repealed. 

Article 6 

Entry into force 

This  Decision  shall  enter  into  force  on  the  …  day  following  its  publication  in  the  Official 
Journal of the European Union. 

Done at Brussels,  

For the Council 
The President 

27