Proposal for a Council Decision on the exchange of information extracted from the criminal record
Date: 2004-10-13
Institutions: European Commission
Subjects: European judicial area, area of freedom, security and justice, criminal record, exchange of information, judicial cooperation in criminal matters in the EU

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.10.2004 
COM(2004) 664 final 

2004/0238 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the exchange of information extracted from the criminal record 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

Introduction 

In all Member States criminal convictions are recorded by a variety of procedures in specific 
registers.  There  are  exchange  mechanisms  to  facilitate  the  transmission  of  this  information 
between Member States, in particular under the European Convention on Mutual Assistance 
in Criminal Matters of 1959.1 But an analysis of their operation reveals that they contain gaps 
and function randomly and slowly, no longer meeting the needs for judicial cooperation in a 
frontier-free  area  such  as  the  European  Union.  Recent  tragic  paedophilia  cases  have  also 
highlighted  the  serious  malfunctioning  of  systems  for  the  exchange  of  information  on 
convictions between Member States. Likewise, the demands of the fight against terrorism are 
such that the quality of these exchanges must be improved quickly.2 

The  aim  of  this  proposal  is  to  improve  the  operation  of  existing  mechanisms  pending  the 
adoption of a computerised system of information exchanges on criminal convictions between 
Member States. The Commission will shortly be presenting proposals for such a system, but 
its  establishment  will  require  major  technical  and  legal  work  and  it  will  be  several  years 
before  it  can  become  operational.  This  proposal  accordingly  does  not  set  out  to  amend  the 
nature  of  the  obligations  imposed  on  the  Member  States  but  only  to  make  practical 
improvements  to  the  current  system,  without  prejudging  the  results  of  future  work.  That  is, 
moreover, the reason why the Commission considers that recourse to a Decision, which does 
not  involve  approximation  of  national  legal  provisions,  is  the  most  effective  means  of 
achieving a rapid improvement of current practices. 

The  proposal  provides  for  each  Member  State  to  designate  a  central  authority  and  contains 
two major elements supplementing Articles 22 and 13 of the 1959 Convention. 

The first part of the proposal aims to ensure that the criminal record in the Member State of 
the  person's  nationality  is  as  complete  as  possible  at  the  earliest  opportunity,  so  that 
exhaustive information is quickly available on a Community national’s criminal convictions 
in the territory of the European Union. The 1959 Convention already establishes an obligation 
for  the  Contracting  Parties  to  the  Convention  to  inform  each  other  of  convictions  of  their 
nationals, but the information is transmitted only once a year. This proposal would require the 
information to be transmitted without delay, as soon as it reaches the competent authorities of 
the convicting Member State. For the reasons given above, it does not change the nature of 
the obligations imposed on the Member States, and in particular it does not provide for any 
obligation  for  the  convicting  State  also  to  inform  the  State  of  residence,  which  would  have 
been conceivable for non-Community nationals or for Community nationals who reside in a 
State  other  than  the  State  of  their  nationality.  These  situations  will  be  addressed  when  the 
computerised information exchange system referred to above is set up. 

The  second  part  concerns  requests  for  information  extracted  from  the  judicial  record, 
currently governed by Article 13 of the 1959 Convention, and replies to these requests. The 

1 
2 

Council of Europe, European Treaties Series, No 30. 
See  on  this  point  the  conclusions  of  the  European  Council  of  25  March  2004  and  the  Commission 
communication  to  the  Council  and  Parliament  of  29  March  2004  on  measures  to  be  taken  to  combat 
terrorism  and  other  forms  of  serious  crime,  in  particular  to  improve  exchanges  of  information  (COM 
2004 (221)). 

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proposal  pursues  several  objectives.  Since  the  1959  Convention  specifies  no  deadline  for 
transmitting the information requested, the proposal supplements it by providing that a request 
for information extracted from the criminal record must be satisfied within a maximum of five 
days.  To  facilitate  the  exchange  of  information,  it  provides  for  standardised  request  and 
answer  forms.  These  forms,  available  in  all  the  languages  of  the  European  Union,  should 
considerably lighten the burden of translation work. 

In  an  area  where  persons  enjoy  freedom  of  movement,  the  improvement  of  the  quality  of 
information exchanges between Member States, in particular on criminal convictions, makes 
for a general increase in the level of security throughout the territory of the European Union. 
This  objective  can  be  achieved  only  by  coordinated  action  in  the  European  Union.  This 
proposal  merely  seeks  to  improve  the  current  convention-based  mechanisms  without 
fundamentally  calling  them  into  question.  In  that  respect  it  complies  strictly  with  the 
principles  of  proportionality  and  subsidiarity  provided  for  by  Article  2  of  the  Union  Treaty 
and Article 5 of the EC Treaty. 

2. 

Legal basis 

The legal basis for this proposal is Article 31 of the Treaty on European Union, as amended 
by  the  Nice  Treaty,  which  deals  with  joint  action  in  the  field  of  judicial  cooperation  in 
criminal matters, and Article 34(2)(c). 

3. 

Financial statement 

The  implementation  of  the  proposed  Decision  would  entail  no  additional  operational 
expenditure  to  be  charged  to  the  budgets  of  the  Member  States  or  to  the  budget  of  the 
European Union. 

4. 

Comments on the articles 

Article 1 - Definitions 

This Article contains the definitions of “criminal record” and “conviction”. The definition of 
“convictions”  takes  account  of  the  concept  of  offence  under  Article  51  of  the  Convention 
implementing  the  Schengen  Agreement  of  1990,  taken  over  in  the  Convention  on  Mutual 
Assistance in Criminal Matters between the Member States of the European Union of 29 May 
2000.3 It is consistent with the traditional scope of mutual judicial assistance. 

The  “criminal  record”  is  the  national  register  recording  these  convictions.  Certain  Member 
States may have several registers. 

Article 2 - Central authority 

This Article requires each Member State to designate a central authority for the purposes of 
the Decision. 

3 

OJ C 197, 12.7.2000, p. 1. 

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Article 3 – Own-initiative information on convictions 

This  Article,  combined  with  Article  2,  specifies  detailed  rules  for  the  application  of  Article 
6(8)(b) of the Convention of 29 May 2000 with regard to the competent central authorities. It 
takes  over  the  obligation  contained  in  Article  22  of  the  1959  Convention  but  specifies  that 
information must be transmitted without delay. 

Article 4 - Request for information on convictions 

This Article concerns information requests and replies to them. It supplements Article 13 of 
the 1959 Convention. It does not replace the possibility available to the judicial authorities of 
transmitting information concerning criminal records direct to each other under Article 6(1) of 
the  Convention  of  29  May  2000.  The  judicial  authorities  may  therefore  obtain  this 
information either by approaching their counterparts in the relevant Member State direct or by 
applying to the designated central authority.  

The request is made on the basis of the form annexed to the Decision and is sent by the central 
authority  of  the  requesting  Member  State  to  that  of  the  requested  Member  State.  The 
requested  Member  State  must  reply  immediately,  and  in  any  event  within  a  period  not 
exceeding  five  days,  using  the  reply  form  provided  for.  The  reply  must  include  any 
information transmitted under Article 3 and be accompanied by a statement of convictions. 

Article 5 - Conditions for the use of personal data 

This Article specifies the conditions for the use of data transmitted under Article 4. Data may 
be used for the purposes of criminal proceedings. Use for other purposes is governed both by 
the limits specified by the requested Member State and by national rules governing access to 
the  information  contained  in  the  criminal  record  in  the  requesting  Member  State.  Where 
information  was  transmitted  for  other  purposes,  the  requested  Member  State  may  ask  the 
requesting Member State to inform it of the use made of it. In accordance with the usual rules 
on data protection, the limitations on use do not apply to data obtained by a Member State and 
coming from that Member State.  

Article 6 - Languages 

This  Article  aims  to  facilitate  exchanges  of  information  as  far  as  possible  by  providing  in 
particular that the request must be sent by the requesting State to the requested State in one of 
the official languages of the requested State.  

Article 7 – Relation to other legal instruments 

This  Decision  supplements  existing  conventions  and  does  not  constitute  an  information 
exchange  mechanism  separate  from  them.  But  the  proper  functioning  of  the  envisaged 
mechanism means that Member States must waive their reservations to Article 13 of the 1959 
Convention.  

Article 8 - Implementation 

This Article requires the Member States to take any necessary measures to bring their national 
laws into line with this Decision no later than 30 June 2005. 

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Article 9 – Entry into force 

This Article specifies that the Decision takes effect on the day of its publication in the Official 
Journal of the European Union. 

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2004/0238 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the exchange of information extracted from the criminal record 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission,4 

Having regard to the opinion of the European Parliament,5 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The European Union has set itself the objective of maintaining and developing an area 
of  freedom,  security  and  justice.  This  objective  presupposes  the  movement  between 
the  competent  authorities  of  the  Member  States  of  information  concerning  criminal 
convictions of persons who reside in the territory of the Member States.  

On  29  November  2000  the  Council,  in  accordance  with  the  conclusions  of  the 
Tampere  European  Council,  adopted  a  programme  of  measures  to  implement  the 
principle  of  mutual  recognition  in  criminal  matters.6  This  Decision  contributes  to 
achieving the goals provided for by measure 3 of the programme, which calls for the 
establishment  of  a  standard  form  like  that  drawn  up  for  the  Schengen  bodies, 
translated into all the official Union languages, for criminal records applications. 

Articles  13  and  22  of  the  European  Convention  on  Mutual  Assistance  in  Criminal 
Matters of 20 April 19597 provide for systems for the transmission of information on 
convictions  between  the  Contracting  Parties,  but  they  are  too  slow  to  meet  the 
demands of judicial cooperation in an area such as the European Union. 

The final report on the first evaluation exercise – mutual legal assistance in criminal 
matters8  called  on  the  Member  States  to  simplify  the  procedures  for  transferring 
documents  between  States,  using,  if  necessary,  standard  forms  to  facilitate  mutual 
judicial assistance.  

4 
5 
6 
7 
8 

OJ C […] […], p.[…] 
OJ C […] […], p.[…] 
OJ C 12, 15.1.2001, p. 10. 
Council of Europe, European Treaties Series, No 30. 
OJ C 216, 1.8.2001, p. 14. 

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(5) 

(6) 

(7) 

(8) 

(9) 

On  25  March  2004  the  European  Council  instructed  the  Council  to  examine  the 
possibility  of  a  European  register  on  convictions  and  disqualifications,  and  the 
Commission  in  its  communication  on  measures  to  be  taken  to  combat  terrorism  and 
other  forms  of  serious  crime,  in  particular  to  improve  exchanges  of  information,9 
stressed the importance of an effective mechanism for transmission of information on 
convictions and disqualifications.  

This  Decision  respects  the  principle  of  subsidiarity  referred  to  in  Article  2  of  the 
Treaty  on  European  Union  and  Article  5  of  the  Treaty  establishing  the  European 
Community since the improvement of systems for the transmission of information on 
convictions between Member States cannot be carried out adequately by the Member 
States  unilaterally  and  requires  coordinated  action  in  the  European  Union.  In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  the  latter  Article,  this 
Decision does not go beyond what is necessary in order to achieve that objective.  

The  improvement  of  systems  for  the  transmission  of  information  on  convictions 
depends  on  convictions  pronounced  in  a  Member  State  against  nationals  of  another 
Member State being known about as soon as possible and on each Member State being 
able  to  obtain  the  information  contained  in  national  registers  which  they  need  from 
other Member States within a very short time.  

This  Decision  supplements  existing  conventions  and  does  not  constitute  an 
information  exchange  mechanism  separate  from  them.  In  particular,  the  provisions 
concerning requests for information extracted from the criminal record do not replace 
the  possibility  available  to  the  judicial  authorities  of  transmitting  information 
concerning criminal records direct to each other under Article 6(1) of the Convention 
of 29 May 2000. It provides, however, for a specific right for the central authority of a 
Member State to send a request for information extracted from the criminal record to 
the  central  authority  of  another  Member  State,  in  the  circumstances  determined  by 
national law.  

The personal data processed under this Decision will be protected in accordance with 
the principles enacted in the Council of Europe Convention of 28 January 1981 for the 
Protection  of  Individuals  with  regard  to  Automatic  Processing  of  Personal  Data.  In 
addition,  since  this  Decision  falls  within  the  context  of the  current  convention-based 
law  on  mutual  judicial  assistance,  they  will  enjoy  the  protection  of  Article  23  of  the 
Convention  of  29  May  2000  on  Mutual  Assistance  in  Criminal  Matters  between  the 
Member States of the European Union as regards the use made of the data exchanged. 

(10)  Under Council of Europe Recommendation No R (84) 10 on the criminal record and 
rehabilitation  of  convicted  persons,  the  main  aim  of  establishment  of  the  criminal 
record  is  to  inform  the  authorities  responsible  for  the  criminal  justice  system  on  the 
background  of  a  person  subject  to  legal  proceedings  with  a  view  to  adapting  the 
decision  to  be  taken  to  the  individual  situation.  Since  all  other  use  of  the  criminal 
record  that  might  compromise  the  chances  of  social  rehabilitation  of  the  convicted 
person  must  be  as  limited  as  possible,  the  use  of  information  transmitted  under  this 
Decision for use otherwise than in the course of criminal proceedings can be limited in 
accordance with the national legislation of the requested State and the requesting State. 

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COM(2004)221. 

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(11)  This Decision respects the fundamental rights and observes the principles recognised 
by  Article  6  of  the  Treaty  on  European  Union  and  restated  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) 

1. 

2. 

“criminal  record”:  the  national  register  or  registers  recording  convictions  in 
accordance with national law; 

“conviction”: any final decision of a criminal court or of an administrative authority 
whose decision can be appealed against in the criminal courts establishing guilt of a 
criminal offence or an act punishable in accordance with national law as an offence 
against the law. 

Article 2 
Central authority 

For  the  purposes  of  this  Decision,  each  Member  State  shall  designate  a  central 
authority.  

Each  Member  State  shall  inform  the  General  Secretariat  of  the  Council  and  the 
Commission  of  the  authority  designated  in  accordance  with  paragraph  1.  The 
General  Secretariat  of  the  Council  shall  notify  the  Member  States  and  Eurojust  of 
this information. 

Article 3 
Own-initiative information on convictions 

Each central authority shall without delay inform the central authorities of the other Member 
States of convictions of nationals of those Member States registered in the national criminal 
record and of relevant subsequent entries in the criminal record. 

Article 4 
Request for information on convictions 

1. 

2. 

Where  information  from  the  criminal  record  of  a  Member  State  is  requested,  the 
central  authority  may,  in  accordance  with  national  law,  send  a  request  for 
information  to  the  central  authority  of  another  Member  State.  All  information 
requests shall be sent on the basis of request form A annexed hereto. 

The reply shall be sent immediately and in any event within a period not exceeding 
five working days from the receipt of the request, under the conditions provided for 
by national law, by the central authority of the requested Member State to the central 

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authority  of  the  requesting  Member  State  on  the  basis  of  reply  form  B  annexed 
hereto. It shall include the information transmitted in accordance with Article 3. 

3. 

The reply form shall be accompanied by a statement of convictions. 

Article 5 
Conditions for the use of personal data 

1. 

Personal data communicated under Article 4 may be used by the requesting Member 
State: 

2. 

3. 

1. 

2. 

1. 

a) 

b) 

for the purpose of criminal proceedings; 

for  other  purposes  within  the  limits  specified  by  the  requested  Member  State 
and in accordance with national law of the requesting Member State. 

Where personal data is transmitted under paragraph 1(b) of this Article, the requested 
Member State may ask the requesting Member State to inform it of the use made of 
it. 

This Article does not apply to personal data obtained by a Member State under this 
Decision and originating from that Member State. 

Article 6 
Languages 

Form A shall be sent by the requesting Member State in the official language or one 
of the official languages of the requested Member State. Any Member State may, at 
the time of the adoption of this Decision or at a later date, indicate, in a statement to 
the  General  Secretariat  of  the  Council,  what  are  the  official  languages  of  the 
institutions of the European Communities that it accepts.  

Form B shall sent by the requested Member State to the requesting Member State in 
the  official  language  or  languages  of  the  requested  Member  State  or  in  any  other 
official  language  of  the  institutions  of  the  European  Communities  that  it  wishes  to 
use.  

Article 7 
Relation to other legal instruments 

This Decision supplements and facilitates the implementation of Articles 13 and 22 
of the European Convention on Mutual Assistance  in Criminal Matters of  20 April 
1959,  its  additional  Protocols  of  17  March  197810  and  8  November  2001,11  the 
Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 
on  the  gradual  abolition  of  checks  at  common  borders,  the  Convention  on  Mutual 

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Council of Europe, European Treaty Series, No 99. 
Council of Europe, European Treaty Series, No 182. 

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Assistance in Criminal Matters between the Member States of the European Union of 
29 May 200012 and its Protocol of 16 October 2001.13  

2. 

Member States shall waive the right to rely among themselves on their reservations 
to Article 13 of the European Convention on Mutual Assistance in Criminal Matters 
of 20 April 1959.  

Article 8 
Implementation 

Member  States  shall  implement  this  Decision  as  soon  as  possible  and  in  any  event  no  later 
than 30 June 2005.  

Article 9 
Entry into force 

This  Decision  shall  take  effect  on  the  day  of  its  publication  in  the  Official  Journal  of  the 
European Union. 

Done at Brussels,  

For the Council 
The President 

12 
13 

OJ C 197, 12.7.2000, p. 1. 
OJ C 326, 21.11.2001, p.1. 

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Form A: Request for information extracted from the criminal record14 

a) 

Information relating to the requesting State: 

Member State: 

Central authority: 

Contact person: 

Telephone (with STD code): 

Fax (with STD code): 

E-mail: 

b) 

Information relating to the identity of the person concerned by the request: 

Name: 

First name(s): 

Maiden name, if appropriate: 

Alias, if appropriate: 

Sex: 

Nationality: 

Date of birth: 

Place of birth: 

Father's name (optional): 

Mother's name (optional): 

Residence or known address (optional): 

c) 

(cid:0) 

(cid:0) 

14 

Purpose of request: 

criminal proceedings 

other 

All the fields on this form are mandatory unless otherwise specified. 

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request from a judicial authority outside the context of criminal proceedings 

request from a competent administrative authority 

request from the person concerned 

(cid:0) 

(cid:0) 

(cid:0) 

Done at, 

on 

Signature and official stamp (if available): 

Name and position: 

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Form B: Reply to a request for information extracted from the criminal record 

a) 

Identification of request 

Member State: 

Central authority: 

Date of request: 

Name and first name(s) of person concerned: 

Purpose of request: 

(cid:0) 

(cid:0) 

criminal proceedings 

other 

(cid:0) 

(cid:0) 

(cid:0) 

request from a judicial authority outside the context of criminal proceedings 

request from a competent administrative authority 

request from the person concerned 

b) 

Limits on the use of information 

Use of form 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

the form may be given to the person concerned 

the form may be given to a competent administrative or judicial authority 

the form may not be forwarded 

other limits: (specify) 

Use of statement of convictions 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

the statement may be given to the person concerned 

the statement may be given to a competent administrative authority 

the statement may not be forwarded 

other limits: (specify) 

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c) 

Reply 

The undersigned authority confirms 

that there are no convictions recorded in the criminal record of the above-mentioned 

(cid:0) 
person 

(cid:0) 
that  there  are  convictions  recorded  in  the  criminal  record  of  the  person  concerned; 
these convictions are for offences in the following categories (reply mandatory – please tick 
the relevant categories) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

participation in a criminal organisation; 

terrorism 

trafficking in human beings 

sexual exploitation of children and child pornography 

trafficking in narcotic drugs and psychotropic substances 

trafficking in weapons, munitions and explosives 

corruption 

fraud, including fraud affecting the financial interests of the European Communities 
(cid:0) 
within  the  meaning  of  the  Convention  of  26  July  1995  on  the  protection  of  the  European 
Communities' financial interests 

(cid:0) 

(cid:0) 

(cid:0) 

laundering the proceeds of crime 

counterfeiting currency, including the euro 

computer-related crime 

environmental  crime,  including  trafficking  in  endangered  animal  species  and  in 

(cid:0) 
endangered plant species and varieties 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

facilitation of unauthorised entry and residence 

murder, grievous bodily harm 

illicit trade in human organs and tissue 

kidnapping, illegal restraint and hostage-taking 

racism and xenophobia 

organised or armed robbery 

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(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

illicit trafficking in cultural goods, including antiques and works of art 

swindling 

racketeering and extortion 

counterfeiting and piracy of products 

forgery of administrative documents and trafficking therein 

forgery of means of payment 

trafficking in hormonal substances and other growth promoters 

trafficking in nuclear or radioactive materials 

trafficking in stolen vehicles 

rape 

arson 

crimes within the jurisdiction of the International Criminal Court 

unlawful seizure of aircraft/ships 

sabotage 

conduct  which  infringes  road  traffic  regulations,  including  breaches  of  regulations 

(cid:0) 
pertaining to driving hours and rest periods and regulations on hazardous goods 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

smuggling of goods 

infringements of intellectual property rights 

threats and acts of violence against persons, including during sports events 

criminal damage 

theft 

offences  established  by  the  issuing  State  and  serving  the  purpose  of  implementing 
(cid:0) 
obligations  arising  from  instruments  adopted  under  the  Treaty  establishing  the  European 
Community or under Title VI of the Treaty on European Union 

(cid:0) 

other 

If necessary, whether the conviction was accompanied by the following sentence or sentences 
(please tick the relevant categories): 

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(cid:0) 

total imprisonment: 

- number of years: 

- number of months: 

(cid:0) 

(cid:0) 

firm 

suspended 

fine (amount):  

prohibition or disqualification from engaging in an activity 

(cid:0) 

(cid:0) 

(cid:0) 

(cid:0) 

activity concerned: 

period (years): 

(cid:0) 

other (specify) 

Done at, 

on 

Signature and official stamp (if available): 

Name and position: 

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