Report from the Commission on national measures taken to comply with the Council Framework Decision of 13 June 2002 on Joint Investigation Teams {SEC(2004) 1725}
Date: 2005-01-07
Institutions: European Commission
Subjects: criminal law, fight against crime, judicial cooperation in criminal matters in the EU, offence, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 7.1.2005 
COM(2004) 858 final 

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REPORT FROM THE COMMISSION 

on national measures taken to comply with the Council Framework Decision 
of 13 June 2002 on Joint Investigation Teams 

{SEC(2004) 1725} 

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1. 

INTRODUCTION 

The  growth  of  cross-border  crime  and  the  spread  of  terrorism  prompted  Member 
States  to  adopt  a  legislative  instrument  providing  for  harmonised  legislation  which 
establishes clear rules on the setting up and operating of joint investigation teams. In 
practice,  informal  teams  were  already  operating,  but  there  was  no  common 
legislation in place to govern their action. 

A  first  step  in  this  direction  was  the  2000  Convention  on  Mutual  Assistance  in 
Criminal  Matters1  (hereinafter  referred  to  as  “the  2000  Convention”),  which  deals 
with  joint  investigation  teams  (Article  13)  and  also  provides  for  many  other 
instruments  to  combat  cross-border  crime,  such  as  spontaneous  exchange  of 
information, covert investigation, controlled deliveries, etc.  

Owing  to  the  delay  in  ratifying  the  2000  Convention,  the  Council  adopted  the 
Framework  Decision  on  joint  investigation  teams2  (hereinafter  referred  to  as  ”the 
Framework  Decision”)  on  13  June  2002,  to  provide  a  more  timely  means  of 
enhancing the operation of joint investigation teams. 

The Framework Decision will cease to have effect when the Convention on Mutual 
Assistance in Criminal Matters has entered into force in all Member States (Article 
5).  

Under  Article  4  of  the  Framework  Decision,  Member  States  have  to  take  the 
necessary measures to comply with the provisions of the Framework Decision by 1 
January 2003. 

On  28  November  2002,  the  Council  adopted  a  Protocol3  amending  the  Europol 
Convention  in  order  to  enable  Europol  officials  to  take  part  in  joint  investigation 
teams. 

On 8 May 2003, the Council adopted a Recommendation on a Model Agreement for 
setting up a joint investigation team4. 

Following the terrorist attacks of 11 March 2004 on Madrid, in its Declaration of 25 
March 20045, the European Council urged Member States to adopt any measures that 
remain necessary to fully implement the Framework Decision by June 2004 and to 
ensure that Europol and Eurojust representatives are associated with the work of joint 
investigation teams as far as possible. 

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Council  Act  of  29  May  2000  establishing  in  accordance  with  Article  34  of  the  Treaty  on  European 
Union  the  Convention  on  Mutual  Assistance  in  Criminal  Matters  between  the  Member  States  of 
the European Union, OJ C 197 of 12.7.2000, p. 1. 
Council Framework Decision of 13 June 2002 on Joint investigation teams, OJ L 162 of 20.6.2002, p. 1 
Council  Act  of  28  November  2002  drawing  up  a  Protocol  amending  the  Convention  on  the 
establishment of a European Police Office (Europol Convention) and the Protocol on the privileges and 
immunities of Europol, the members of its organs, the deputy directors and the employees of Europol, 
OJ C 312 of 16.12.2002, p. 1. 
Council Recommendation of 8 May 2003 on a model agreement for setting up a joint investigation team 
(JIT), OJ C 121 of 23.5.2003, p. 1. 
Council document 7906/04 JAI, 100. 

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2. 

PURPOSE OF THE REPORT AND METHOD OF EVALUATION 

Framework  decisions  are  binding  upon  the  Member  States  as  to  the  result  to  be 
achieved, but leave to national authorities the choice of form and methods. They do 
not have direct effect. 

As the Commission has no authority under the Third Pillar to initiate an infringement 
procedure against a Member State, the nature and purpose of this report is limited to 
a factual evaluation of the implementation measures taken. 

The  Commission  reminded  Member  States  of  their  obligation  by  means  of  a  letter 
sent  on  5  February  2003.  At  that  point  in  time  only  one  Member  State  (United 
Kingdom) had already forwarded information on implementation.  By 31 December 
2003,  nine  Member  States  (Germany,  Spain,  Italy,  Luxembourg,  Austria,  Portugal, 
Finland,  Sweden  and  United  Kingdom)  had  provided  the  Commission  with 
information  on  the  implementation.  In  April  2004,  one  Member  State  (France) 
forwarded information on implementation and one Member State (Austria) informed 
the Commission that new legislation concerning joint investigation teams was due to 
enter  into  force.  In  May  2004  the  Commission  again  contacted  the  Member  States 
which had not provided any information (Belgium, Denmark, Greece, Ireland and the 
Netherlands)  and  obtained  answers  from  three  of  them  (Belgium,  Greece  and  the 
Netherlands). 

In the light of enlargement, on 13 April 2004 the Commission contacted the acceding 
Member  States,  asking  for  information  on  the  implementation  of  the  Framework 
Decision.  Six  of  them  have  answered  (Cyprus,  Hungary,  Latvia,  Lithuania,  Malta 
and Slovakia).  

Although the deadline for submitting the  report  to the  Council  was 1 July  2004, in 
order  to  assess  the  implementation  in  as  many  Member  States  as  possible,  further 
information provided by 15 August 2004 has been taken into account.  

Only  three  Member  States  (Denmark,  Latvia  and  Finland)  had  adopted  the 
transposing  legislation  by  the  deadline  set  in  Article  4  of  the  Framework  Decision 
and  only  one  (United  Kingdom)  -which  also  adopted  part  of  the  transposing 
measures before the deadline- forwarded the relevant information to the Commission 
on time.  

In  total,  14  Member  States  forwarded  the  relevant  legislation  to  the  Commission 
(Denmark,  Germany,  Spain,  France,  Latvia,  Lithuania,  Hungary,  Malta,  the 
Netherlands,  Austria,  Portugal,  Finland,  Sweden  and  United  Kingdom).  No 
information was received from five Member States (Estonia, Ireland, Poland, Czech 
Republic, Slovenia), while four Member States forwarded the text of a bill (Belgium, 
Italy, Cyprus and Slovakia) and two Member States informed the Commission that a 
draft was in preparation (Greece and Luxembourg). 

The  quality  of  the  national  information  received  by  the  Commission  inevitably 
influences  the  value  and  the  punctuality  of  this  report.  The  Commission  has 
encountered many difficulties in gathering the relevant information. Furthermore, the 
domestic legislation was partial and made reference to other provisions not supplied 
to the Commission. The evaluation of the information received highlighted the fact 

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that, even where legislation was not indispensable, it might nevertheless be useful to 
put in place guidelines or circulars clarifying certain essential issues.  

Difficulties  in  the  assessment  have  also  arisen  from  the  fact  that  the  Framework 
Decision  was created  by taking  over  Articles 13, 15  and 16 directly from  the  2000 
Convention. Provisions concerning joint investigation teams were agreed in the 2000 
Convention  as  part  of  a  complex  system  involving  several  instruments  concerning 
co-operation  in  combating  cross-border  crime.  The  Framework  Decision  on  joint 
investigation  teams  does  not  reproduce  the  whole  of  the  2000  Convention  and  this 
could  lead,  in  this  transition  period  before  the  entry  into  force  of  the  2000 
Convention, to a lack of clarity concerning aspects such as the authority competent to 
set  up  the  teams  or  the  fact  that  certain  investigative  activities  (for  example  covert 
investigation or controlled deliveries which may usefully be performed by the team) 
are not governed by the Framework Decision. 

In  this  light,  the  fact  that  the  2000  Convention  has  now  been  ratified  by  eight 
Member  States  (Denmark,  Estonia,  Spain,  Latvia,  Lithuania,  the  Netherlands, 
Portugal, Finland) must be taken into account. Certain Member States which ratified 
the  2000  Convention  also  adopted  specific  legislation  enacting  the  Framework 
Decision  (Spain,  Latvia,  Portugal,  Finland),  whereas  others  implemented  the 
Framework Decision by means of the law ratifying the 2000 Convention (Denmark 
and  the  Netherlands).  One  Member  State  (Lithuania)  forwarded  only  the  text  of 
specific  domestic  legislation  without  annexing  the  ratifying  law,  and  one  (Estonia) 
did  not  give  any  information  on  implementation,  despite  having  ratified  the  2000 
Convention. 

3. 

CONCLUSIONS 

In order to assess the implementation of the Framework Decision, it should be borne 
in  mind  that  Member  States  are  obliged  to  adopt  new  legislation  insofar  as  it  is 
needed  to  transpose  the  Framework  Decision.  Therefore,  if  the  judicial  system, 
considered  as  a  whole,  already  contains  legally  binding  rules  that  assure  the  full 
application of the Framework Decision, no further legislation is needed. Moreover, it 
is  not  necessary  that  implementing  legislation  has  the  same  wording  as  the 
Framework Decision as long as the final result guarantees the full application of the 
rules  governed  by  the  Framework  Decision  and  creates  a  legal  situation  that  is 
sufficiently clear and precise. 

In  general  terms,  the  implementation  of  the  Framework  Decision  has,  in  most 
Member States, required the adoption of new legislation or at least the amendment of 
certain internal provisions. 

Some Member States transposed the Framework Decision into domestic laws having 
more  or  less  the  same  content  as  the  Framework  Decision  (Spain,  Portugal)  while 
others  amended  existing  provisions  or  adopted  legislation  providing  for  new  rules 
(Denmark, France, Latvia, Hungary, Austria, Finland, Sweden).  

One  Member  State  (United  Kingdom)  stated  that  only  certain  provisions  needed  to 
be enacted whereas the others have been transposed by means of a Circular. As the 

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circular  is  not  legally  binding,  the  relevant  provisions  have  been  considered  as  not 
complying with the Framework Decision. 

Three Member States (Germany, Lithuania and Malta) took the view that no specific 
legislation was needed to implement the Framework Decision  

In one Member State (the Netherlands) legislation in place allows the setting up of 
joint  investigation  teams  “insofar  as  provided  for  by  treaty  or  convention”.  As  the 
Framework Decision is not a treaty nor a convention, the relevant provisions are not 
compliant with the Framework Decision. 

The  conclusions  which  follow  assess  the  implementation  of  each  provision  of  the 
Framework Decision one by one. For further clarification and a detailed examination 
of national legislation see Annex 1. 

With  regard  to  Article  1(1),  which  is  the  most  crucial  part  of  the  Framework 
Decision, it is sufficient that the general legal context allows the setting up of joint 
investigation  teams  as  working  groups  operating  in  a  transnational  dimension  for 
limited  periods  and  with  specific  purposes.  Almost  every  Member  State  with 
legislation in place has implemented this provision (Spain, France, Latvia, Lithuania, 
Hungary,  Austria,  Portugal,  Finland,  Sweden).  In  several  Member  States  the 
legislation  in  force  makes  reference  to  an  agreement  (Spain,  Latvia,  Hungary, 
Austria,  Portugal,  Finland  and  Sweden),  which  in  some  cases  is  indicated  as  the 
Model Agreement adopted by the Council (Austria) whereas in others the term refers 
to general contact between competent authorities (France, Lithuania). 

Regarding the proposal for the composition of the team contained in Article 1(2), it 
must  be  noted  that  legislation  in  place,  whenever  it  refers  to  an  agreement  or  a 
different  understanding  between  competent  authorities,  even  if  it  does  not  make 
reference  to  the  Model  Agreement  adopted  by  the  Council,  implicitly  involves  the 
composition of the team.  

With regard to Article 1(3), concerning the leadership of the team, the applicable law 
and the organisational arrangements, it is sufficient that each Member State provides 
for rules to be applied within its borders without specifying what rules are applicable 
in the other Member States. Nevertheless, it has been fully implemented by only two 
Member  States  (Spain  and  Austria).  Four  Member  States  have  transposed  only 
certain provisions such as general rules on the “supervisory powers” accorded to the 
team leader or on the applicable law (France), or such as provisions concerning the 
leader of the team and the applicable law without any reference to the organisational 
arrangements  (Latvia,  Hungary  and  Finland).  The  legislation  adopted  by  the  other 
Member  States  (Denmark,  Germany,  Lithuania,  Malta,  the  Netherlands,  Portugal, 
Sweden, United Kingdom) does not deal with these issues. 

Concerning Article 1(4) (dealing with the definition of “seconded member”) it must 
be noted that, even if no provision expressly provides for a definition of “seconded 
member”, when implementing legislation refers to people seconded to the team, it is 
clear  from  the  general  context,  that  it  refers  to  members  of  the  joint  investigation 
team from Member States other than the one where the team operates. 

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One of the most significant aspects of the Framework Decision deals with the powers 
accorded to seconded members (Article 1(5) and (6)). The implementing legislation 
differs  considerably  from  one  State  to  another.  While  in  some  Member  States  the 
activities with which seconded members may be entrusted are listed and specifically 
indicated  (France,  Malta  and  Finland),  in  others  the  provision  is  very  general 
(Lithuania) or makes reference to the agreement required to set up the team (Spain), 
to other types of approval by the competent authority (Germany), or to national law 
(Austria) and in certain others it is up to the team leader to decide with which powers 
seconded members may be entrusted (Latvia and Portugal).  

Article 1(7) deals with the case in which the team requires investigative measures to 
be taken in one of the Member States setting up the team. The aim of this provision 
is  to  prevent  joint  investigation  teams  from  needing  letters  rogatory.  Only  three 
Member  States  (Spain,  Finland,  Sweden)  have  complied  with  this  provision.  One 
Member  State  (United  Kingdom)  has  restricted  investigative  measures  to  search 
warrant and production orders and most of the national enacting legislation does not 
deal  with 
the 
Netherlands,  Austria,  Portugal).  One  Member  State  (Latvia)  adopted  unclear 
provisions which seem not to comply with Article 1(7).  

it  (Denmark,  Germany,  France,  Lithuania,  Hungary,  Malta, 

Article  1(8)  concerning  assistance  needed  from  a  Member  State  other  than  those 
participating  in  the  team,  or  from  a  third  State,  has  been  fully  transposed  by  two 
Member States (Spain and Portugal) and one Member State (Latvia) adopted unclear 
provisions. According to the information received, the other Member States have no 
relevant legislation in place regarding Article 1 (8). 

Provisions  on  the  providing  of  information  (Article  1(9))  have  been  directly 
implemented by three Member States (Latvia, Portugal and Sweden). Nevertheless, 
in  several  cases  the  possibility  for  seconded  members  to  provide  the  team  with 
information available in the seconding Member State may be deduced from a general 
interpretation  of  the  legislation  (Spain,  Hungary,  Austria,  Finland).  No  relevant 
provision could be found in the other Member States’ legislation. 

Concerning the use of the information gathered (Article 1(10)) it  may  be  observed 
that  three  Member  States  have  fully  complied  with  this  provision  (Spain,  Portugal, 
Sweden) and two have implemented it partially (Austria and Finland). One Member 
State adopted provisions which are not in line with the Framework Decision (Latvia).  

With regard to Article 1(11) (stating that the Framework Decision shall be without 
prejudice  to  any  other  existing  provisions  or  arrangements  on  the  setting  up  or 
operation  of  joint  investigation  teams),  no  Member  State  forwarded  specific 
legislation.  Nevertheless,  as  far  as  no  conflicting  provision  arises  from  the 
implementing  legislations,  it  must  be  considered  that  every  Member  State  is 
compliant with Article 1(11). 

The option of permitting persons other than representatives of the Member States to 
take  part  in  the  team  (Article  1(12))  has  been  provided  for  by  six  Member  States 
only  (Spain,  Latvia,  Hungary,  Austria,  Portugal,  Finland).  In  one  Member  State 
legislation  in  place  makes  reference  to  “cases  provided  for  in  international  treaty” 
(Lithuania). The other Member States have not transposed this provision. 

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With  regard  to  Article  2  (criminal  liability)  implementing  provisions  have  been 
adopted  by  six  Member  States  (Denmark,  Spain,  Lithuania,  Malta,  Austria,  United 
Kingdom);  one  Member  State  has  implemented  it  partially  (Germany).  The  others 
have not adopted any transposing measures. 

Article  3  (civil  liability)  has  been  fully  transposed  in  three  Member  States  (Spain, 
Austria,  Portugal)  and  partially  transposed  in  four  Member  States  (Denmark, 
Lithuania,  Finland,  Sweden,  United  Kingdom).  No  provision  has  been  adopted  in 
other Member States. 

In conclusion, only one Member State adopted transposing measures which are fully 
compliant with the Framework Decision (Spain). 

Nevertheless, it is essential to underline that whenever legislation in place provides 
for  joint  investigation  teams  to  be  set  up  through  an  agreement  (see  comments  on 
Article 1 (1)), this should ensure a satisfactory implementation. 

The  Commission  will,  in  a  supplementary  report,  take  into  account  further 
information  supplied  and  update,  where  necessary,  the  information  on  national 
legislation. In the meantime, the Commission invites all Member States to ensure the 
rapid  and  complete  transposition  of  the  Framework  Decision  on  Joint  investigation 
teams and to inform it of any measures taken. 

Two staff documents in the form of Commission staff working papers are annexed to 
this  report:  in  the  first,  in  accordance  with  the  information  collected  by  the 
Commission,  legislation  adopted  or  due  to  be  adopted  in  each  Member  State  is 
evaluated  with  reference  to  each  provision  of  the  Framework  Decision;  the  second 
contains a table detailing the transposition into national provisions of each article of 
the Framework Decision. 

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