Initiative of the Kingdom of Sweden with a view to adopting a Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, in particular as regards serious offences including terrorist acts
Date: 2004-11-18
Institutions: Sweden
Subjects: EU police cooperation, data protection, exchange of information, fight against crime, judicial cooperation in criminal matters in the EU, public safety

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Official Journal of the European Union

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

Initiative of the Kingdom of Sweden with a view to adopting a Framework Decision on simpli-
fying the exchange of information and intelligence between law enforcement authorities of the
Member States of the European Union, in particular as regards serious offences including terrorist
acts

(2004/C 281/04)

THE COUNCIL OF THE EUROPEAN UNION,

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

of differences with regard to types of crime or division
of competencies between law enforcement or judicial
authorities.

Having regard to the initiative of the Kingdom of Sweden,

(6)

Having regard to the opinion of the European Parliament,

Whereas:

(1)

(2)

(3)

(4)

One of the Union's core objectives is to provide its citi-
zens with a high level of security within an area of
freedom, security and justice.

That objective is to be achieved by preventing and
combating crime through closer co- operation between
law enforcement authorities in the Member States, while
respecting the principles and rules relating to human
rights, fundamental freedoms and the rule of law on
which the Union is founded and which are common to
the Member States.

Exchange of information and intelligence on crime and
criminal activities is the basis for law enforcement coop-
eration in the Union serving the overall objective of
improving the safety of the Union's citizens.

authorities

The timely access to accurate and up-to-date information
and intelligence is a crucial element for the possibility of
to successfully detect,
law enforcement
prevent and investigate crime or criminal activity, in par-
ticular within an area where internal border controls
have been abolished. As terrorists and other serious
criminals' activities are carried out clandestinely, they
need to be controlled, and information relating to
suspected terrorists needs to be exchanged in a particu-
larly rapid manner.

(5)

It is important that the possibilities for law enforcement
authorities
to obtain information and intelligence
concerning serious crime and terrorist acts from other
Member States be viewed horizontally and not in terms

(7)

(8)

(9)

is

Currently, effective and expeditious exchange of infor-
mation and intelligence between law enforcement autho-
seriously hampered by formal procedures,
rities
administrative structures and legal obstacles laid down in
Member States' legislation; such a state of affairs is un-
acceptable to the citizens of the European Union which
calls for greater security and more efficient law enforce-
ment while protecting human rights.

It is necessary for law enforcement authorities to be able
to request and obtain information and intelligence from
other Member States at different stages of investigation,
from a phase of criminal
intelligence gathering to a
phase of criminal
investigation. The Member State's
systems are different in that respect, but this Framework
Decision does not purport
to change these systems.
However, it intends, as regards certain types of informa-
tion and intelligence, to ensure that certain information
vital for law enforcement authorities is exchanged in a
rapid manner within the Union, so as not to hamper
investigations into serious crime and terrorism acts.

The absence of a common legal framework for the effec-
tive and expeditious exchange of information and intelli-
gence between the law enforcement authorities of the
Member States is a deficiency that will have to be reme-
died; the Council therefore deems it necessary to adopt a
legally binding instrument on simplifying the exchange
of information and intelligence.

The Member States' common interest to fight crime of a
cross-border nature must strike the appropriate balance
between a fast and efficient law enforcement co-opera-
tion and agreed principles and rules on data protection,
fundamental
freedoms, human rights and individual
liberties; the present text achieves that balance.

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(10)

In the declaration on combating terrorism as adopted by
the European Council at its meeting on 25 March 2004,
the European Council instructs the Council to examine
measures regarding simplifying the exchange of informa-
tion and intelligence between law enforcement authori-
ties of the Member States. The present Framework Deci-
sion fulfils that instruction.

(11) As regards Iceland and Norway, this Framework Deci-
sion constitutes a development of the provisions of the
Schengen acquis which falls within the area referred to
in Article 1 of Council Decision 1999/437/EC of
17 May 1999 on certain arrangements for the applica-
tion of the Agreement concluded by the Council of the
European Union and the Republic of Iceland and the
Kingdom of Norway concerning the association of those
two States with the implementation, application and
development of the Schengen acquis (1). The procedures
set out in that Agreement have been followed in respect
of this Framework Decision.

(12)

The personal data processed in the context of the imple-
mentation of this Framework Decision will be protected
in accordance with the principles of
the Council of
Europe Convention of 28 January 1981 for the protec-
tion of individuals with regards to the automatic proces-
sing of personal data.

(13)

This Framework Decision respects
the fundamental
rights and observes the principles recognised by Article
6 of the Treaty on European Union and reflected by the
Charter of Fundamental Rights of the European Union,

mutual
regarding criminal matters.

legal assistance or mutual recognition of decisions

2.
This Framework decision does not imply any obligation
on the part of the Member States to gather and store informa-
tion and intelligence only for the purpose of providing it to the
competent law enforcement authorities of other Member States.

3.
This Framework Decision does not imply any obligation
on the part of the Member States to provide information and
intelligence to be used before a judicial authority as evidence,
nor does it give any right to use such information or intelli-
gence for that purpose. Where a Member State has obtained
information or intelligence in accordance with this Framework
Decision, and wants to use it as evidence in a criminal
proceeding, it has to obtain consent from the Member State
that provided the information or intelligence, where necessary
through use of instruments regarding judicial cooperation in
force between the Member States.

4.
This Framework Decision does not imply any obligation
to obtain information or intelligence by means of coercive
measures in the State receiving the request for information or
intelligence.

Article 2

Definitions

HAS ADOPTED THE PRESENT DECISION:

For the purposes of this Framework Decision:

TITLE I

SCOPE AND DEFINITIONS

Article 1

Objective and scope

1.
The purpose of this Framework Decision is to establish
the rules under which Member States' law enforcement authori-
ties effectively and expeditiously can exchange existing infor-
mation and intelligence for the purpose of conducting crime
investigations or crime intelligence operations and in particular
as regards serious offences, including terrorist acts. It shall not
affect more favourable provisions in national law, bilateral or
multilateral agreements or arrangements between the Member
States or between Member States and third countries and shall
be without prejudice to instruments of the European Union on

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

(a) ‘competent law enforcement authority’: a national police,
customs or other authority, that is authorised by national
law to detect, prevent or investigate offences or criminal
activities and to exercise authority and take coercive
measures in the context of such activities. A judicial
authority is
law enforcement
authority if the information or intelligence, according to
national law, is only held by or accessible to that judicial
authority;

regarded as competent

(b) ‘crime investigation’: a legal

framework within which
measures are taken by competent law enforcement or judi-
cial authorities, including public prosecutors, with a view
to establishing and identifying facts, suspects and circum-
stances regarding one or several identified concrete criminal
acts;

(c) ‘criminal intelligence operation’: a legal framework, having
not yet reached the stage of a criminal investigation super-
vised and controlled by judicial authorities including public
prosecutors, within which a competent law enforcement
authority is entitled by national law to collect, process and
analyse information about crime or criminal activities with
the view to establishing if concrete criminal acts has been
or may be committed;

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(d) ‘information and intelligence’; any type of existing informa-
tion or data; appraised, processed and analysed or not, that
could be used in a crime investigation or a criminal intelli-
gence operation to detect, prevent or investigate a crime or
a
intelligence
activity. Such information or
includes:

criminal

(i) information and intelligence in records or files kept by

competent law enforcement authorities,

(ii) information kept in records or files by other authori-
ties, to which competent law enforcement authorities
have access, either directly or indirectly,

(iii) information on holders, ex-directory and listed respec-
tively, of telephone, cell-phone, telex, fax, e-mail or
web-site subscriptions or addresses kept by telecom
operators,

(iv) information on persons and freight kept by transport

companies,

(v) any other

intelligence or data;
information or
appraised, processed and analysed or not,
that has
been obtained within the framework of a criminal
intelligence operation or
investigation or a criminal
the use of coercive
that may be obtained without
powers.

Article 3

Offences

Exchange of information and intelligence under this Framework
Decision may take place concerning offences punishable by the
law of the requesting Member State by a custodial sentence or
a detention order for a maximum period of at least 12 months.
Member States may agree on a bilateral basis to make the
procedures applicable under this Framework Decision applic-
able on a broader basis.

TITLE II

3.
Information and intelligence shall be provided on request
by a competent law enforcement authority, acting within the
limits conferred upon it by national law, conducting a crime
investigation or a criminal intelligence operation.

Article 4a

Time limits for provision of information and intelligence

Information and intelligence shall be provided without
1.
delay and to the furthest possible extent within the timeframe
requested. If information or intelligence cannot be provided
within the requested timeframe, the competent law enforce-
ment authority having received a request for information or
intelligence shall indicate the timeframe within which it can be
provided. Such an indication shall be made immediately.

2. Member States shall ensure that they have procedures in
place so that they may respond within at most 12 hours to
requests for information and intelligence where the requesting
State indicates that it is carrying out a crime investigation or a
criminal
following
offences, as defined by the law of the requesting State:

intelligence operation as

regards

the

— participation in a criminal organisation,

— terrorism,

— trafficking in human beings,

— sexual exploitation of children and child pornography,

— illicit

trafficking in narcotic drugs

and psychotropic

substances,

— illicit trafficking in weapons, munitions and explosives,

— corruption,

— fraud, including that affecting the financial interests of the
European Communities within the meaning of the Conven-
tion of 26 July 1995 on the protection of the European
Communities' financial interests,

EXCHANGE OF INFORMATION AND INTELLIGENCE

— laundering of the proceeds of crime,

— counterfeiting currency, including of the euro,

Article 4

— computer-related crime,

Provision of information and intelligence

1. Member States shall ensure that information and intelli-
gence, held by or accessible without the use of coercive means
to competent law enforcement agencies, can be provided to the
competent law enforcement authorities of other Member States
in accordance with this Framework Decision.

2. Member States shall ensure that conditions not stricter
for providing and
than those applicable at national
requesting
applied for
providing information and intelligence to competent law en-
forcement authorities of other Member States.

level
information and intelligence

are

— environmental crime, including illicit trafficking in endan-
gered animal species and in endangered plant species and
varieties,

— facilitation of unauthorised entry and residence,

— murder and grievous bodily injury,

— illicit trade in human organs and tissue,

— kidnapping, illegal restraint and hostage-taking,

— racism and xenophobia,

— organised or armed robbery,

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— illicit trafficking in cultural goods, including antiques and

Article 6

works of art,

— swindling,

— racketeering and extortion,

— counterfeiting and piracy of products,

— forgery of administrative documents and trafficking therein,

— forgery of means of payment,

— illicit trafficking in hormonal substances and other growth

promoters,

— illicit 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 pertaining to driving hours and rest
periods and regulations on hazardous goods,

— smuggling of goods,

— infringements of intellectual property rights,

— threats and acts of violence against persons and property,
in particular violence during sports events or international
events such as meetings of The European Council,

— torture.

Where the requesting State indicates that it wishes to have the
information more rapidly, the requested State shall use its best
endeavours to respond quickly to the request.

Article 5

Requests for information and intelligence

1.
Information and intelligence may be requested for the
purpose of detection, prevention or investigation of an offence
or a criminal activity involving the offences referred to in
Article 3 where there are reasons to believe that relevant infor-
mation and intelligence is available in another Member States.

The requesting competent

law enforcement authority
2.
shall refrain from requesting more information or intelligence
or setting more narrow timeframes than necessary for the
underlying purpose of the request.

3.
Requests for information or intelligence shall contain at
least the information contained in the Annex to this Frame-
work Decision (to be prepared).

Categories of persons regarding which information or
intelligence may be exchanged

Exchange of

1.
this
Framework Decision may relate to persons who, in accordance
with the national law of the requesting Member State:

information and intelligence under

(a) are suspected of having committed or taken part

in a
offence or a criminal activity involving the offences speci-
fied in Article 3, or

(b) may, according to criminal intelligence or other evidentiary
circumstances, commit or take part in an offence or a crim-
inal activity involving the offences specified in Article 3, or

(c) are not falling under category (a) or (b), but there are
factual reasons to believe that an exchange of information
and intelligence, as a necessary part of a criminal investiga-
tion or criminal
in
detecting, preventing or investigating a crime or a criminal
activity involving the offences specified in Article 4(a).

intelligence operation, could assist

2.
Exchange of information and intelligence may also take
place with a view to identifying persons falling under categories
1(a) to (c).

Article 7

Communication channels

Exchange of

information and intelligence under

this
1.
Framework Decision may take place via the Sirene bureaux or
in accordance with Articles 4(4) and 5(4) of the Convention on
the establishment of a European Police Office (the Europol
Convention) or in customs matters via the central units as
defined in Article 5(1) of the Convention on mutual assistance
and cooperation between customs administrations or within
any other framework established at bilateral or multilateral
level among the Member States of the European Union. Any
such framework shall be notified to the General Secretariat of
the Council within three months of the entry in to force of this
Framework Decision and subsequently notified to the other
Member States. The notification shall be published in the
Official Journal of the European Union.

2. Member States may agree, on a case-by-case basis or in
general, that other channels may be used for the exchange of
information and intelligence under this Framework Decision,
instance through liaison officers or directly between
for
national or local law enforcement authorities.

3.
Information or intelligence not exchanged by virtue of
Articles 4(4) and 5(4) of the Europol Convention shall be
communicated also with Europol
in accordance with the
Europol Convention insofar as the exchange refers to an
offence or criminal activity within the Europol mandate.

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Article 8

Spontaneous exchange of information and intelligence

1. Without prejudice to Articles 11(a) to (c), the competent
law enforcement authorities shall, without being so requested,
provide to the competent law enforcement authorities of other
Member States concerned information and intelligence in case
there are factual reasons to believe that the information and
intelligence could assist in the detection, prevention or investi-
gation of offences or a criminal activities involving the offences
referred to in Article 4(a).

The provision of information and intelligence shall be
2.
limited to what
is deemed relevant and necessary for the
successful detection, prevention or investigation of the crime or
criminal activity in question.

Article 9

Data protection

1.
Each Member State shall ensure that the established rules
and standards on data protection provided for when using the
communication channels referred to in Article 7(1) are applied
also within the procedure on exchange of information and
intelligence provided for by this Framework Decision.

Each Member State shall ensure that, where a communi-
2.
cation channel referred to in Article 7(2) is used, the equivalent
standards of data protection, as referred to in paragraph 1, are
applied within the simplified procedure for exchange of infor-
mation and intelligence provided for by this Framework Deci-
sion.

Information and intelligence,

3.
including personal data,
provided under this Framework Decision may be used by the
competent law enforcement authorities of the Member State to
which it has been provided for the purpose of:

(a) proceedings to which this Framework Decision applies;

(b) other law enforcement proceedings directly related to the

one referred to under (a);

(c) for preventing an immediate and serious threat to public

security;

(d) for any other purpose including prosecution or administra-
tive proceedings only with the explicit prior consent of the
competent law enforcement authority having provided the
information or intelligence.

4. When providing information and intelligence in accord-
ance with this Framework Decision, the providing competent
law
law enforcement authority may pursuant to its national
impose conditions on the use of information and intelligence
by the receiving competent law enforcement authority. Condi-
tions may also be imposed on reporting the result of the crim-

investigation or criminal

inal
intelligence operation within
which the exchange of information and intelligence has taken
place. The receiving competent law enforcement authority shall
be bound by such conditions.

Article 10

Confidentiality

law enforcement authorities shall

take due
The competent
account, in each specific case of exchange of information or
intelligence, of the requirements of investigation secrecy. To
that end the competent law enforcement authorities shall, in
accordance with their national law, guarantee the confidenti-
ality of all provided information and intelligence determined as
confidential.

Article 11

Reasons to withhold information or intelligence

A competent law enforcement authority may refuse to provide
information or intelligence only if there are factual reasons to
assume that the provision of the information or intelligence
would:

(a) harm essential national security interests of the requested

Member State or;

(b) jeopardise the success of a current investigation or a crim-

inal intelligence operation or;

(c) be clearly disproportionate or irrelevant with regard to the

purposes for which it has been requested.

TITLE III

FINAL PROVISIONS

Article 12

Implementation

1. Member States shall
take the necessary measures to
comply with the provisions of this Framework Decision two
years after the entry into force of this Framework Decision.

2. Member States shall transmit to the General Secretariat of
the Council and the Commission the text of any provisions
transposing into their national laws the obligations imposed on
them under this Framework Decision. On the basis of this and
other information, the Commission shall, two years after the
date in paragraph 1, submit a report to the Council on the
operation of this Framework Decision. The Council shall no
later than one year after that date assess the extent to which
the Member States have complied with this Framework Deci-
sion.

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Article 13

Relation to other instruments

Article 39, paragraphs 1 and 2, of the Schengen Imple-

1.
mentation Convention are hereby repealed.

2. Member States may continue to apply bilateral or multi-
lateral agreements or arrangements in force when this Frame-
work Decision is adopted in so far as such agreements or
arrangements allow the objectives of this Framework Decision
to be extended or enlarged and help to simplify or facilitate
further the procedures for exchanging information and intelli-
gence falling within the scope of this Framework Decision.

3. Member States may conclude bilateral or multilateral
agreements or arrangements after this Framework Decision has
come into force in so far as such agreements or arrangements
allow the objectives of this Framework Decision to be extended
or enlarged and help to simplify or facilitate further the proce-
dures for exchanging information falling within the scope of
this Framework Decision.

4.
The agreements and arrangements referred to in para-
graphs 2 and 3 may in no case affect relations with Member
States which are not parties to them.

5. Member States shall, within three months from the entry
into force of this Framework Decision, notify the Council and
the Commission of the existing agreements and arrangements
referred to in paragraph 2 which they wish to continue
applying.

6. Member States shall also notify the Council and the
Commission of any new agreement or arrangement as referred
to in paragraph 3, within three months of signing it.

Article 14

Entry into force

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

Done at

For the Council

The President