White Paper on exchanges of information on convictions and the effect of such convictions in the European Union {SEC(2005) 63}
Date: 2005-01-25
Institutions: European Commission
Subjects: European judicial area, access to information, criminal record, exchange of information, information system, judicial cooperation in criminal matters in the EU, legal system, penalty

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.1.2005 
COM(2005) 10 final 

WHITE PAPER 

on exchanges of information on convictions and the effect of such convictions in the 
European Union 

{SEC(2005) 63} 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
 
 
WHITE PAPER 

on exchanges of information on convictions and the effect of such convictions in the 
European Union 

1. 

1. 

2. 

3. 

INTRODUCTION 

Establishing an area of freedom, security and justice entails the efficient circulation 
of information between the relevant authorities of the Member States on convictions 
or  disqualifications  of  Community  and  non-Community  nationals  residing  on  the 
territory of the Member States and the possibility of consequences being attached to 
such convictions or disqualifications outside the sentencing Member State.  

This problem has arisen on several occasions in the work of the European Union in 
connection with exchanges of information on convictions and the consequences that 
should be attached to them. The issues are dealt with in measures 2, 3, 4, 14, 20, 22 
and  23  of  the  Programme  of  measures  to  implement  the  principle  of  mutual 
recognition  of  decisions  in  criminal  matters.1  The  need  to  improve  the  quality  of 
information exchanged on criminal records was prioritised in the European Council 
Declaration on Combating Terrorism of 25 and 26 March 2004 and was reiterated at 
the Council meeting (Justice and Home Affairs) on 19 July of that year. The Hague 
Programme  called  on  the  Commission  to  put  forward  proposals  with  a  view  to 
stepping  up  exchanges  of  information  on  the  contents  of  national  registers  of 
convictions  and  disqualifications,  particularly  on  sex  offenders,  so  that  the  Council 
could adopt them by the end of 2005. This White Paper is designed to achieve that 
objective.  

It  examines  the  conditions  governing  circulation  of  information  on  convictions  and 
disqualifications  throughout  the  European  Union  and  puts  forward  an  ambitious 
action  programme  which  will  set  up  a  computerised  system  of  exchange  of 
information  on  convictions  between  the  Member  States.  It  is  also  designed  to 
stimulate  debate  on  various  factors  involved  where  convictions  handed  down  in  a 
Member  State  are  taken  into  account  in  other  Member  States.  A  great  deal  of 
additional work will have to be done on this subject in the next few years, and this 
White  Paper  is  no  more  than  an  initial  attempt  to  address  the  issue  of  the 
consequences that should be attached to convictions throughout the European Union. 

2. 

BACKGROUND  

2.1. 

Heterogeneity of national systems for recording convictions 

4. 

The  attached  tables  show  the  different  methods  of  organising  national  criminal 
records  according  to  the  Member  States’  replies  to  questionnaires  sent  by  the 

1 

OJ C 12, 15.1.1, p.10. 

EN 

2 

   EN 

 
                                                 
5. 

6. 

7. 

Commission. They show the considerable diversity in national systems for recording 
convictions (Annex 1).  

Centralisation  and  widespread  computerisation  of  national  registers:  national 
registers are centralised in virtually all the Member States. The authority where the 
data  are  centralised  varies  (Ministry  of  Justice,  Interior  Ministry,  police).  A  large 
majority  of  registers  are  computerised,  and  where  they  are  not,  plans  to  introduce 
computerisation appear to exist.  

Contents:  the  information  input  into  the  national  register  varies.  Some  registers 
contain  all  convictions;  others  merely  indicate  the  most  serious  offences.  Some 
record  convictions  against  legal  persons;  others  do  not.  Some  are  limited  to  final 
judgments  (res  judicata);  others  record,  at  least  temporarily,  judgments  that  are 
subject  to  appeal.  Some  registers  also  contain  a  section  devoted  to  ongoing 
proceedings  and  certain  acquittals  or  dismissals,  in  particular  on  the  grounds  of 
mental incapacity. In some Member States only judgments given by criminal courts 
are  recorded.  In  other  cases,  decisions  by  administrative  authorities  or  commercial 
courts, for example to impose disciplinary penalties or to remove the right to exercise 
certain  occupations,  are  also  included.  Information  on  methods  of  enforcing 
sentences also varies.  

Access to national registers: the national laws determining which authorities have 
access  to  the  register  of  convictions  are  not  uniform.  In  some  cases,  full  access  to 
data in the registers is restricted to the judicial authorities or the police. This access 
may  be  direct  or  indirect.  In  some  cases  provision  is  also  made  for  administrative 
authorities  to  access  data  where  necessary  in  the  course  of  their  duties.  Access  by 
those authorities may be unrestricted or partial. In a very small number of Member 
States,  third  parties  can  access  court  records  (professional  associations,  private 
employers,  private  investigators,  etc.).  Lastly,  most  Member  States  provide  for 
individuals to access data recorded under their name. However, the entitlement may 
be to a simple oral statement or to an extract not containing the full information on 
file.  

8. 

The  period  for  which  information  included  in  the  register  may  be  kept  varies 
considerably.  Some  Member  States  do  not  have  a  system  for  deleting  data;  others 
delete data automatically or on request.  

2.2. 

Exchanges of information on convictions 

9. 

10. 

Information on convictions in other Member States is currently governed by Articles 
13  and  22  of  the  1959  European  Convention  on  Mutual  Assistance  in  Criminal 
Matters2  (“the  1959  Convention”),  supplemented  by  Article 4  of  the  Additional 
Protocol dated 17 March 1978. 

These provisions govern the conditions for communicating extracts from a criminal 
record between the parties to the Convention and require them to notify each other 
once a year of all convictions in respect of their nationals. 

2 

Council of Europe, European Treaty Series No 30. 

EN 

3 

   EN 

 
                                                 
11. 

Whilst  the  1959  Convention  constitutes  the  existing  framework  for  exchanges  of 
information, the machinery it provides for has limited scope. Various studies3 and the 
evidence  available  to  the  Commission  suggest  that  information  is  not  circulating 
efficiently. There are three main problem areas: 

–  the difficulty in rapidly identifying the Member States in which individuals have 

already been convicted; 

–  the difficulty in obtaining information quickly and by a simple procedure; 

–  the difficulty in understanding the information provided. 

12. 

The difficulty in rapidly identifying the Member States in which individuals have 
already been convicted: in practice, it is difficult for a Member State to determine, 
on a definitive, reliable basis, whether an individual has been convicted of an offence 
in another Member State. Three different situations may arise: 

–  the  mechanism  for  centralising  information  in  the  Member  State  of  nationality 
provided  for  in  Article  22  of  the  Convention  does  not  apply  to  nationals  of 
countries  which  have  not  signed  the  1959  Convention.  In  such  cases  it  is  not 
possible  to  determine  whether  individuals  have  previous  convictions  in  other 
Member States without consulting them all;  

–  in  principle,  the  mechanism  for  centralising  information  in  the  Member  State  of 
nationality should apply to non-nationals who are citizens of countries which have 
signed the 1959 Convention. However, while the Convention requires signatories 
to  notify  each  other  when  non-nationals  are  convicted,  it  does  not  require  the 
Member States of nationality to enter such convictions in their national registers. 
In practice, several signatories to the Convention do not enter such convictions in 
their national registers, or do so only on a limited basis. Others do so only where 
convictions  and  sentences  reflect  situations  covered  by  their  own  system.  As  a 
result,  the  criminal  records  of  the  Member  State  of  nationality  are  often 
incomplete.  Accordingly,  if  another  Member  State  contacts  the  Member  Stateof 
nationality  with  a view to obtaining details  of  an  individual’s  criminal  record,  it 
may not receive all the relevant information. In addition, the home Member State 
will  probably  apply  its  own  laws  governing  the  registration  or  deletion  of  data 
with regard to convictions abroad. As a result, the same conviction may be subject 
to two different sets of laws, one in the sentencing country and the second in the 
offender’s Member State of nationality, which gives rise to a degree of confusion; 

–  as  regards  nationals,  information  about  convictions  in  other  parties  to  the 
Convention should be better by dint of the notification requirement provided for 
in the 1959 Convention. However, for legal and practical reasons, this information 
is  fragmentary  and  incomplete.  Reservations  in  respect  of  the  Convention  mean 
that provision of information is sometimes subject to restrictions by law. It is also 
the case that some situations have not been satisfactorily resolved (as in the case 

3 

See  study  carried  out  in  2000  by  the  Institute  of  Advanced  Legal  Studies  (ISLA)  under  the  Falcone 
Programme (2000/FAL/168).  
Study carried out in 2001 by the Institute for International Research on Criminal Policy (IRCP) under 
the Grotius Programme (2001/GRP/024). 

EN 

4 

   EN 

 
                                                 
 
13. 

14. 

15. 

of  persons  with  dual  nationality).  In  addition,  as  we  have  seen,  some  Member 
States do not include convictions in other states in their national register. Lastly, 
in  practice,  notification  is  sometimes  inadequate  (for  instance  when  national 
registers do not indicate the offender’s nationality) or completely non-existent. 

The  difficulty  in  obtaining  information  quickly  and  by  a  simple  procedure: 
National  authorities  wishing  to  obtain  information  on  the  previous  convictions  of 
non-nationals  can  do  so  by  means  of  a  request  for mutual  assistance  (Article  13  of 
the  1959  Convention).  In  practice,  this  mechanism  does  not  work  as  it  should,  and 
the national courts often take the view that the procedure for obtaining details of an 
individual’s  previous  offences  in  another  Member  State  is  cumbersome,  unfamiliar 
and  incompatible  with  the  constraints  of  the  domestic  proceedings.  In  practice, 
nationals  of  other  Member  States  are  often  sentenced  solely  on  the  basis  of  their 
criminal  record  in  the  country  in  which  the  trial  takes  place,  with  the  courts  in 
complete ignorance of convictions in other Member States and, in particular, in the 
Member  State  of  which  the  persons  concerned  are  nationals  or  in  which  they 
habitually reside. 

The  difficulty  in  understanding  the  information  provided:  information  from  other 
Member  States  passed  on  to  judicial  authorities  is  not  always  understood.  This  is 
partly a result of translation problems, but the legal problems are even greater. The 
reason  is  that  the  information  entered  in  the  national  register  varies  considerably 
from one country to another. There is considerable diversity in the national systems, 
and  recipients  may  sometimes  be  disconcerted  by  the  information  provided, 
particularly as regards sentencing.  

On 13 October 2004 the Commission adopted a proposal for a Council Decision on 
the  exchange  of  information  extracted  from  the  criminal  record.4  This  proposal  is 
designed  to  secure  rapid  improvements  in  the  current  mechanisms  for  exchanging 
information  between  the  Member  States.  It  does  not  fundamentally  alter  them  and 
will  only  partially  address  the  above-mentioned  problem  areas,  which  any  future 
plans to improve the system will have to tackle.  

2.3. 

Disqualifications 

16. 

Disqualifications are a special category of penalty which raise specific problems in 
connection  with  the  availability  and  exchanges  of  information  and  with  the 
consequences.  This  document  examines  only  disqualifications  associated  with  a 
conviction. They may be expressly ordered by the judge at the time of conviction or 
be  the  automatic  result  of  conviction.  They  may  also  be  ordered  in  civil, 
administrative  or  disciplinary  proceedings  which  follow  on  from  a  conviction. 
Because  of  these  differences  in  the  origin  of  disqualifications,  they  are  not  always 
included  in  national  criminal  records,  and  information  on  them  circulates  in  a  very 
haphazard  fashion.  Moreover,  where  information  is  available,  it  is  not  always 
useable,  because  the  lack  of  harmonisation  represents  a  real  obstacle  to  mutual 
recognition.  The  Commission  is  to  produce  a  separate  communication  on 
disqualifications in 2005. A sectorial approach according to type of criminal offence 
would seem appropriate here. In November 2004, Belgium submitted a proposal on 

4 

COM (2004) 664 final. 

EN 

5 

   EN 

 
                                                 
3. 

17. 

mutual  recognition  of  disqualification  from  working  with  children  as  a  result  of 
convictions for child pornography offences which is a first step.  

IMPROVING CIRCULATION OF INFORMATION THROUGH COMPUTERISATION 

Objective: Any system for exchanging information on convictions must be designed 
to allow final users to obtain exhaustive and readily understandable information  on 
the  European  Union.  The 
an 
information  must  be  made  available  to  final  users  rapidly,  electronically,  and  on  a 
secure basis via their national criminal record.  

individual’s  previous  convictions 

throughout 

3.1. 

Possible options 

18. 

19. 

20. 

The mutual recognition programme provided for three options (measure 4) designed 
to  improve  circulation  between  the  Member  States  of  information  on  convictions: 
(i) facilitating  bilateral  information  exchanges,  (ii) networking  national  criminal 
records  offices  and  (iii) setting  up  a  genuine  European  central  criminal  records 
office. 

The advantage of the first two options is that information is kept at national level and 
that the national rules on management of and access to this sensitive information are 
complied with and not duplicated. However, they do have three major disadvantages: 

–  to obtain exhaustive information on convictions, all the national registers have to 
be consulted, which would considerably increase the number of requests received 
by the national systems; 

–  they  would  entail  the  organisation  of  25  ×  24  =  600  possible  channels  or  the 

setting-up of the same number of access capacities from different systems; 

–  they do not enable readily understandable, immediately useable information to be 

provided to the requesting authorities.  

The  third  option  avoids  these  problems  and  consists  in  setting  up  a  standard 
exchange  format  with  information  stored  centrally.  However,  it  would  be 
disproportionate  to  the  objectives.  It  would  mean  duplicating  the  information  in 
national files at European level. It would also mean creating an ad hoc maintenance 
and  access  system  and  establishing  legal  arrangements  for  the  information  in 
question. 

3.2. 

The proposed solution 

21. 

With a view to putting in place an effective mechanism for exchanging information 
on convictions within a reasonable time frame, a hybrid solution somewhere between 
setting up a European central records office and networking national criminal records 
offices should be considered. This solution should address the three major problems 
identified above. Its implementation would entail a two-stage approach: 

–  stage one: a system for identifying the Member States in which an individual has 
previous convictions is set up and technical and electronic infrastructure enabling 
rapid, secure exchanges of information on convictions is put in place; 

EN 

6 

   EN 

 
22. 

23. 

24. 

25. 

26. 

27. 

28. 

–  stage  two:  a  “standard  European  format”  is  established  for  exchanges  enabling 

final users to obtain readily understandable and useable information;  

Stage  one  should  enable  the  Member  State  or  States  in  which  the  individual 
concerned  has  previous  convictions  to  be  rapidly  identified.  At  present,  checks  on 
individuals’  previous  convictions  are  carried  out  by  consulting  criminal  records  in 
the  country  of  which  they  are  nationals  but,  as  we  have  seen,  this  does  not  yield 
reliable results.  

It entails setting up a European index of offenders. This index would consist solely 
of personal identification data (name, first name, place and date of birth, nationality, 
etc.) and the Member State in which the individual concerned had been convicted. It 
would not include details of the offence committed or the sentence passed and would 
comply with national and European privacy laws. By consulting the index it will be 
possible  to  identify  immediately  any  other  Member  State  in  which  the  individual 
concerned has previous convictions. Further details can be obtained by contacting the 
Member State in question direct (see diagram in Annex 2). 

Setting up this index will also entail adopting a common European definition of the 
concept  of  conviction.  According  to  the  Member  States,  criminal  records  may 
include a series of procedural decisions taken in the pre-trial stage among others (see 
paragraph 6 above). The quality of information exchanges and the reliability of the 
proposed  index  depend  on  agreement  being  reached  on  the  type  of  decision  which 
gives  rise  to  an  entry  in  the  index.  In  the  proposal  for  a  Council  Decision  on  the 
exchange of information extracted from the criminal record, the Commission has put 
forward  a  definition  of  the  concept  of  conviction.  This  definition,  which  was 
deliberately  confined  to  final  decisions  handed  down  by  criminal  courts  and 
establishing  an  individual’s  guilt,  plus  a  number  of  mixed  (administrative/criminal 
law) decisions which usually form part of judicial cooperation, could be taken over.  

The system must operate between the central authorities of each Member State. 
Each of those authorities, in accordance with national law, must first ensure that the 
requesting authority or individual has the right of access to the requested information 
and  then  provide  them  with  a  comprehensive  answer  which  includes  all  available 
information at national and European level. 

Technically, this solution is similar to tried and tested mechanisms in other European 
information  systems,  such  as  SIS  or  Eurodac.  In  addition,  the  infrastructure  which 
already  exists  for  those  two  systems  could  be  reused,  thus  enabling  significant 
economies  of  scale  while  fully  preserving  each  system’s  autonomy,  since  reusing 
infrastructure does not imply sharing data.  

This proposal also includes the installation of the technical infrastructure needed for 
rapid, secure exchanges of information between national registers. As of stage one, 
therefore, requests and answers can be transmitted rapidly and securely between the 
national authorities electronically (electronic transmission of scanned documents).  

This system would address a number of the current difficulties but would not enable 
the  parties  to  obtain  readily  understandable,  useable  information,  in  so  far  as  the 
information exchanged has not been standardised. 

EN 

7 

   EN 

 
29. 

That  will  be  the  objective  of  stage  two,  which  will  enable  information  to  be 
circulated more rapidly. The respective national registers are highly diverse in terms 
of  data  input.  If  a  computerised  information  exchange  system  is  to  be  set  up,  a 
"standard  European  format”  recognised  by  all  the  Member  States  will  be  needed 
which will enable information to be transmitted which can be readily translated and 
understood by all parties.  

30. 

This format should enable the following to be included: 

–  data  on  the  individual  concerned  by  the  decision (name,  first  names,  date  and 
place of birth, pseudonym or alias where applicable, sex and nationality, or legal 
status and head office for legal persons, etc.); 

–  information relating to the form of the decision (date and place, name and status 
of  the  relevant  authority,  type  of  decision:  final  judgment,  decision  by  public 
prosecutor not subject to appeal, etc.); 

–  information  on  the  acts  which  gave  rise  to  the  decision  (date,  place,  type,  legal 

definition, legal provision, etc.); 

–  information  on  the  contents  of  the  decision:  (judgment,  sentence,  accessory 
penalties, security measures, length of sentence or measure, subsequent decisions 
affecting enforcement of the sentence, disqualification, etc.).  

31. 

To  facilitate  data  transmission,  each  item  of  information  must  be  carefully  defined 
and,  if  possible,  be  coded  to  facilitate  translation.  Once  the  “standard  European 
format” has been set up, the requesting authority will receive information in its own 
language within a very short time frame. To tackle the problem of the different legal 
concepts used, the mechanism could incorporate a “dictionary” explaining the nature 
and  significance  of  terms.  Whilst  this  mechanism  would  not  resolve  the  problems 
associated with differences in the type of sentences, it would at least ensure effective 
transparency and an acceptable level of mutual understanding for final users. 

3.3.  Work programme 

32. 

4. 

33. 

34. 

In  spring  2005,  once  an  initial  technical  feasibility  study  has  been  carried  out,  the 
Commission  will  submit  a  proposal  for  a  Decision  on  a  computerised  European 
mechanism for exchanging information on convictions along the lines of stage 1 as 
outlined above. Also in 2005, a second feasibility study will be carried out on legal 
and technical aspects of the standard European format with a view to preparing stage 
2 of the project. A start could be made on implementing stage 1 in 2006.  

USE  OF  INFORMATION  ON  CONVICTIONS  HANDED  DOWN  IN  OTHER 
EU MEMBER STATES 

There  is  no  point  in  improving  the  quality  of  exchanges  of  information  on 
convictions unless this information can actually be used. A conviction may impact on 
the law of the other Member States in a number of different ways. 

One  of  the  main  effects  is  to  prevent  new  proceedings  being  launched  in  another 
Member  State  for  the  same  offence  (ne  bis  in  idem  principle).  That  principle  is 

EN 

8 

   EN 

 
35. 

36. 

37. 

38. 

39. 

enshrined  in  the  European  Union’s  Charter  of  Fundamental  Rights  and  is  closely 
related to the issue of jurisdiction. A Green Paper is to be produced on this subject in 
the  first  half  of  2005.  However,  it  should  be  borne  in  mind  that  the  planned 
mechanism for providing information on previous convictions will not be sufficient 
to ensure the effective circulation of information with regard to ne bis in idem. This 
is because in most cases not guilty decisions (decisions ordering release or acquittal) 
are not included in national court records but have to be taken into account by dint of 
the ne bis in idem principle.  

A  conviction  in  a  Member  State  may  also  have  effects  in  another  Member  State 
which is required to enforce it. This is a different issue in which information on the 
conviction  is  of  secondary  importance  in  so  far  as  enforcement  of  a  conviction 
requires action to be taken either by the sentencing Member State or by the Member 
State wishing to enforce it (e.g. to refuse enforcement of a European arrest warrant). 
These  issues  should  be  examined  separately.  An  Austrian  initiative  on  this  subject 
was tabled recently.  

This White Paper therefore merely seeks to stimulate debate on the action that should 
be taken on the basis of information obtained via the exchange mechanism described 
above  when  a  new  set  of  proceedings  is  launched  in  another  Member  State  in 
connection with a different offence. 

The  1959  Convention  makes  no  mention  of  the  legal  consequences  that  should  be 
attached  to  foreign  convictions.  The  European  Convention  on  the  International 
Validity of Criminal Judgements5 of 28 May 1970 makes provision for measures in 
that area but has been ratified by only a few Member States. At EU level, just one 
provision on the protection of the euro deals with reoffending.6  

At  present,  the  scope  for  attaching  consequences  to  foreign  convictions  is  a  matter 
covered by national law. It is often limited. 

Within  a  national  legal  framework,  previous  convictions  may  have  a  variety  of 
consequences. They may affect: 

–  the  rules  governing  prosecution  (e.g.  type  of  procedure  applicable,  rules  on  pre-

trial detention); 

–  the trial procedure (e.g.  choice  of court), definition  of the offence  and  choice of 
sentence (e.g. it might be impossible to give a suspended sentence to persons with 
previous convictions);  

–  sentence enforcement (arrangements for early release or adjusting the conditions 
of imprisonment may be different for persons with previous convictions), and the 
possibility of sentences running concurrently. 

5 

6 

European  Treaty  Series  No 70.  By  19 October  2004  this  Convention  had  been  ratified  by  nine 
Member States. 
OJ L 329, 14.12.2001, p. 3. 

EN 

9 

   EN 

 
                                                 
40. 

Depending  on  the  Member  State  concerned,  the  consequences  of  previous 
convictions are set out in law or left to the judge’s discretion. In both cases, the scope 
for  taking  account  of  convictions  in  other  Member  States  is  often  limited.  With  a 
view to tackling these shortcomings, the Commission is to submit a draft framework 
decision on the taking-into-account of convictions, which will enable the objectives 
referred to in measure 2 of the mutual recognition programme to be achieved.  

EN 

10 

   EN