Proposal for a Council framework decision on the exchange of information under the principle of availability {SEC(2005) 1270}
Date: 2005-10-12
Institutions: European Commission
Subjects: EU Member State, EU police cooperation, EU programme, Europol, area of freedom, security and justice, cross-border cooperation, disclosure of information, exchange of information, judicial cooperation in criminal matters in the EU

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.10.2005 
COM(2005) 490 final 

2005/0207 (CNS) 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

on the exchange of information under the principle of availability 

(presented by the Commission) 

{SEC(2005) 1270} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

The level of  law  enforcement  cooperation required  to  develop the area of  freedom,  security 
and  justice  (cf.  Article  29  TEU),  calls  for  a  new  principle  for  the  exchange  of  law 
enforcement  information,  which  entails  that  information  needed  for  the  fight  against  crime 
should cross the internal borders of the EU without obstacles. For that reason, Chapter III.2.1 
of the Hague programme invited the Commission to present legislation by the end of 2005 at 
the  latest  to  implement  a  "principle  of  availability",  to  be  operational  on  1  January  20081. 
Chapter 3.1 of the Council and Commission Action Plan implementing the Hague Programme 
that was adopted by the Justice and Home Affairs Council of 2 and 3 June 20052, confirmed 
the  presentation  of  such  a  legislative  proposal  for  2005  in  conjunction  with  a  Proposal  on 
adequate  safeguards  and  effective  legal  remedies  for  the  transfer  of  personal  data  for  the 
purpose of police and judicial cooperation in criminal matters. The Justice and Home Affairs 
Council of 13 July 2005 that met in extraordinary session after the terrorist attacks in London 
on 7 July, asked the Commission to advance the presentation of the proposal on the principle 
of availability to October 2005, to provide the Union with the cooperative instruments it needs 
to prevent and combat terrorism more effectively. 

The  principle  subjects  the  exchange  of  law  enforcement  information  to  uniform  conditions 
across  the  Union.  If  a  law  enforcement  officer  or  Europol  needs  information  to  perform  its 
lawful  tasks,  it  may  obtain  this  information,  and  the  Member  State  that  controls  this 
information, is obliged to make it available for the stated purpose. 

•  General context 

The central role of information exchange in the security gambit of the Union became apparent 
after the abolition of controls at the internal borders pursuant to the Convention Implementing 
the  Schengen  Agreement  of  1990  ('the  Schengen  Convention').  It  facilitated  information 
exchange based on replying to a request of law enforcement authorities from another Member 
State,  as  well  as  electronic  data  exchange  of  alerts  on  persons  and  property.  Ever  since  the 
entry  into  force  of  the  Schengen  Convention  in  1995,  the  possibilities  offered  were  greatly 
utilised,  to  the  extent  that  need  was  felt  for  more  advanced  rules  as  is  demonstrated  by  the 
large number of consecutive bilateral cooperation agreements.  

The current Framework Decision introduces direct online access to available information and 
to  index  data  for  information  that  is  not  accessible  online,  for  Member  States’  law 
enforcement  authorities  as  well  as  for  Europol  officers.  This  goes  beyond  the  exchange  of 
information provided for by the Schengen Convention and constituting, in this sense, a new 
form  of  cooperation  which  did  not  previously  exist,  and  hence  is  not  part  of  the  Schengen 
acquis  introduced  into  the  European  Union  by  the  Schengen  Protocol  attached  to  the  1997 
Treaty of Amsterdam. For this reason, this Framework Decision is not a development of the 
Schengen Acquis. 

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2 

OJ C 53, 3.3.2005, p. 1. 
OJ C 198, 12.8.2005, p. 1. 

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This  Framework  Decision  allows  Europol  to  improve  the  performance  of  its  tasks  in 
accordance with the Convention of 26 July 1995 on the establishment of a European Police 
Office  (Europol  Convention)3  and  to  develop  information  strategies  on  the  basis  of  a  wider 
availability  of  relevant  information,  to  prevent  and  combat  organised  crime,  including 
terrorism, using as much as possible available information channels. 

Recently,  other  EU-wide  innovative  approaches  have  been  developed  of  which  the  most 
important  are  the  initiative  of  the  Kingdom  of  Sweden  for  a  Draft  Framework  Decision  on 
simplifying  the  exchange  of  information  and  intelligence,  and  the  Treaty  signed  by  seven 
Member States on 27 May 2005 in Prüm to enhance cross-border cooperation, in particular to 
combat terrorism, cross-border crime, and illegal immigration. 

From  an  analytical  perspective,  seven  main  obstacles  exist  to  information  to  be  generally 
available  throughout  the  EU,  that  is  relevant  to  make  possible,  facilitate,  or  accelerate  the 
prevention, detection or investigation of criminal offences: 

–  Bi-  and  multilateral  agreements  between  Member  States  are  either  geographically 
restricted or do not oblige Member States to provide information, making the exchange of 
data dependent on discretionary factors. 

–  Current  forms  of  law  enforcement  cooperation  usually  require  intervention  of  national 
units or of central contact points. Direct information exchange between authorities is still 
the exception. 

–  No  standardised  procedure  exists  yet  at  EU  level  to  request  and  obtain  information,  but 
progress  towards  that  aim  is  made  in  the  context  of  the  initiative  of  the  Kingdom  of 
Sweden (see below). 

–  No efficient mechanism exists at EU level to establish whether and where information is 

available. 

–  Differences in the conditions to access and exchange information, as well as in distinctions 
between  police,  customs  and  judicial  cooperation  interfere  with  an  efficient  exchange  of 
information. 

–  Differences in protection standards hinder the exchange of confidential information. 

–  Absence of common rules to control the lawful use of information that has been obtained 
from another Member State and few possibilities to trace the source and original purpose 
of the information. 

The  current  Framework  Decision  in  conjunction  with  the  Framework  Decision  on  data 
protection intends to address these obstacles. 

•  Existing provisions in the area of the proposal 

–  Convention  Implementing  the  Schengen  Agreement  of  1990.  Its  Article  39  provides  for 
police information exchange on request, but does not oblige Member States to reply. As a 
consequence,  the  outcome  of  procedure  is  erratic  and,  besides,  lengthy.  Furthermore, 

3 

OJ C 316, 27.11.1995, p. 2. 

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requests  and  replies  go  via  central  authorities  and  are  only  exceptionally  directly 
exchanged  between  officials  concerned.  The  current  proposal  emphasises  direct  channels 
of information exchange, and include a general obligation to reply, without prejudice to a 
limited number of harmonised grounds for refusal. This speeds the process and makes the 
outcome more predictable. 

–  The Europol Convention of 1995 and its Protocols. Pursuant to Article 2 the objective of 
Europol  is  to  improve  the  effectiveness  and  cooperation  of  the  competent  Member  State 
authorities  to  prevent  and  combat  terrorism,  and  other  international  and  organised  crime. 
At present, a new information exchange system within Europol's mandate is in the rollout 
phase. Europol’s main systemic challenge is the lack of information. Allowing it to obtain 
information  under  the  principle  of  availability  within  the  scope  of  its  mandate,  will 
improve its effectiveness. 

–  The initiative of the Kingdom of Sweden for a Draft Framework Decision on simplifying 
the  exchange  of  information  and  intelligence  that  seeks  to  improve  on  the  above 
mechanism  established  by  the  Schengen  Convention.  It  further  harmonises  the  legal 
framework for the exchange of data and reducing response times. The current proposal on 
the  other  hand,  introduces  online  access  to  available  information  and  to  index  data  for 
information  that  is  not  accessible  online,  following  the  Member  States’  notification  of 
information available within their jurisdictions. By doing so, it avoids fishing for data, as it 
allows knowing whether the information sought is available before issuing an information 
demand, and permits efficient and targeted requests. It furthermore harmonises the grounds 
for  refusal  that  are  also  binding  on  the  authorities  that  –pursuant  to  national  law-  must 
authorise  the  access  or  transfer  of  information.  Therefore,  the  uncertainty  inherent  in  an 
information request is reduced to a minimum. 

–  The  Treaty  signed  on  27  May  2005  in  Prüm  on  enhancing  cross-border  cooperation,  in 
particular  to  combat  terrorism,  cross-border  crime,  and  illegal  immigration.  This 
instrument  (not  yet  ratified)  will  inter  alia  introduce  far-reaching  measures  to  improve 
information exchange. There are similarities between the current proposal and that Treaty, 
such  as  the  index  system  and  direct  access  to  national  databases,  but  the  Treaty  is  more 
limited in scope, and actually only concerns seven Member States. 

•  Consistency with other policies and objectives of the Union 

This Framework Decision seeks to ensure full respect for the right to liberty and security, the 
right  to  respect  for  private  and  family  life,  the  right  to  protection  of  personal  data  and  the 
principles of legality and proportionality of criminal offences and penalties (Articles 6, 7, 8, 
48 and 49 of the Charter of Fundamental Rights of the European Union).  

It does so by authorising only national authorities competent for the prevention, detection or 
investigation  of  criminal  offences  to  obtain  information,  and  by  obliging  the  authorities 
involved to verify the necessity and the quality of the information. Furthermore a committee 
will establish ex ante that information is only available for the equivalent competent authority. 

The  processing  of  personal  data  pursuant  to  this  Framework  Decision  will  be  done  in 
accordance  with  the  Council  Framework  Decision  2006/XX/JHA  on  the  protection  of 
personal  data  processed  in  the  framework  of  police  and  judicial  co-operation  in  criminal 
matters and the Europol Convention respectively. 

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2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Consultation methods, main sectors targeted and general profile of respondents 

The  Commission  organised  two  rounds  of  consultations  with  stakeholders  in  the  area  of 
exchange of data for the purpose of making possible, facilitate, or accelerate the prevention, 
detection or investigation of criminal offences. The consultations explored the concept of the 
principle  of  availability,  and  gave  feedback  on  implementation  strategies  and  on  more 
effective  ways  to  protect  fundamental  rights.  They  also  tested  the  feasibility  of  different 
options  developed  in  the  context  of  the  impact  assessment.  The  first  round  entailed 
stocktaking of the current situation on the basis of a questionnaire. The second round built on 
the analysis and was more solution-oriented. 

On  9  and  10  November  2004  and  2  March  2005,  meetings  took  place  with  representatives 
from the national ministries responsible for law enforcement organisations, as well as Europol 
and Eurojust. 

On 23 November 2004 and 8 March 2005 consultations were organised with representatives 
of  human  rights  interest  groups  and  of  the  Civil  Liberties  Committee  of  the  European 
Parliament, to receive feedback on the concerns of civil society. 

On 22 November 2004 and  11 January 2005, representatives  of the  national data  protection 
authorities  were  consulted,  including  the  European  Data  Protection  Supervisor,  and  the 
Secretariat of the Joint Supervisory Authority.  

Summary of responses and how they have been taken into account 

The  consultation  of  law  enforcement  stakeholders  confirmed  the  need  for  an  innovative 
approach  to  further  the  possibilities  to  exchange  information.  Moreover,  this  stakeholder 
group insisted on the need to be pragmatic, target specific types of information, and provide a 
common framework for the exchange of information. Because of this consultation, elements 
of  mutual  recognition  were  introduced  next  to  elements  deriving  from  the  principle  of 
equivalent access, i.e. treatment of the request for information according to the conditions in 
the  requested  Member  State.  Further  to  the  consultation,  a  comitology  mechanism  for  the 
elaboration of technical details of the information exchange was introduced. 

The  consultation  with  representatives  of  human  rights  interest  groups  and  of  the  European 
Parliament focussed mainly on traceability of each step in the information exchange chain to 
underpin meaningful legal remedies. 

Consultations with the representatives of data protection authorities motivated the distinction 
between  general  principles  applicable  to  all  sectors,  and  specific  ones  applicable  to  certain 
types  of  information.  It  furthermore  led  to  Articles  on  the  traceability  of  information 
processed under the principle of availability, and to the inclusion of the right of the defence 
i.e. to consult the information that was requested and obtained. 

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•  Collection and use of expertise 

Scientific/expertise domains concerned 

The  Commission  issued  a  call  for  tender  to  study  the  required  scope  for  legislation  for 
information exchange under the principle of availability for law enforcement cooperation, as 
well as optimum strategies to protect fundamental rights when processing personal data in that 
context, on the basis of, inter alia, a comparison of existing national situations. 

Methodology used 

The  limited  call  for  tender  was  issued  to  conduct  a  comparative  study  into  existing 
information  exchange systems for law enforcement  authorities, for the prevention, detection 
or  investigation  of  criminal  offences.  It  analysed  obstacles  to  exchange  of  information  and 
formulated  strategies  to  tackle  them.  Scientific  literature  was  analysed,  and  information 
exchange  methods  were  examined  in  the  context  of  national  legal  systems  and  of  the  main 
European instruments. Insight in the autonomy of law enforcement authorities to access data 
was  gathered  through  analysis  of  answers  to  a  questionnaire  issued  to  Member  States.  In  a 
second  phase,  research  hypotheses  were  tested  with  Europol  Liaison  Officers  and  Europol 
staff in a round table meeting at Europol on 11 May 2005. The study included a gap-analysis 
that was at the basis of subsequent testing of research hypotheses. 

Main organisations/experts consulted 

Member  State  administrations  responsible  for  national  law  enforcement  organisations, 
representatives  of  data  protection  authorities,  including  the  European  Data  Protection 
Supervisor,  Europol  including  the  Europol  Liaison  Officers,  Human  Rights  interest  groups, 
and the Civil Liberties Committee of the European Parliament. 

Summary of advice received and used 

The  existence  of  potentially  serious  risks  with  irreversible  consequences  has  not  been 
mentioned. 

The proposal follows the advice to limit the competence to obtain available information to the 
information  that  competent  authorities  may  autonomously  access,  if  necessary  after  having 
obtained an authorisation from an authority other than the designated authority. Furthermore, 
the suggestion to introduce an 'Information Demand' was followed to facilitate and track the 
processing  of  information  that  is  not  accessible  online,  following  a  hit  on  index  data  that 
Member State should make available for all relevant information that is not online available. 

Means used to make the expert advice publicly available 

The conclusions were based on a comparative study, produced on the basis of a limited call 
for tenders. 

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•  Impact assessment 

The  following  four  legislative  options  were  assessed  in  the  context  of  improvement  of 
information exchange between law enforcement authorities in the pre-trial phase. 

–  No new or additional legislation : 

Refraining  from  action  would  lead  to  the  continuation  of  the  current  situation  that  does  not 
fully meet topical security challenges. None of the existing instruments or projects brings the 
improvements that this Framework Decision aims to deliver.  

–  Application of the principle of equivalent access: 

Information  exchange  based  on  the  principle  of  equivalent  access  allows  for  national 
treatment  of  requests  for  information  on  conditions  not  stricter  than  those  that  apply  in  the 
requested Member State. Although this principle recognises, contrary to the previous option, 
the common responsibility for security, is does not remedy inherent flaws: lengthy response 
times,  unpredictable  outcomes  of  information  requests,  absence  of  an  obligation  to  answer, 
and difficulties to manage the requests in view of different conditions to comply with. 

–  Principle  of  mutual  recognition  mitigated  by  a  condition  of  equivalent  access  in 
conjunction a mechanism to appraise the equivalence of the authorities that are competent 
to obtain information: 

This option includes national treatment of requests originating in other Member States, like in 
the  previous  option,  but  alleviates  some  of  the  management  difficulties  by  making  the 
execution  of  a  request  mandatory,  on  the  condition  that  equivalence  has  been  formally 
established  between  the  authority  that  may  obtain  the  information  in  the  Member  State  that 
controls it, and the authority in the other Member State that needs this information to carry out 
its lawful tasks. However, this option does not cater for the situation where no reliable means 
exist to know whether information is actually available. This reduces the practical impact of a 
right to access information. 

–  Principle  of  mutual  recognition  mitigated  by  a  condition  of  equivalent  access,  in 
conjunction  with  a  mechanism  to  appraise  the  equivalence  of  the  authorities  that  are 
competent  to  obtain  information,  and  an  index  system  to  identify  information  that  is  not 
online available: 

This option builds on the previous one and removes drawbacks that hinder access to available 
information,  by  obliging  Member  States  to  make  agreed  types  of  information  accessible  for 
equivalent competent authorities of other Member States via the same modalities as for their 
national  authorities.  This  implies  providing  online  access  to  national  databases  to  which 
national  competent  authorities  have  online  access,  and  informing  about  the  existence  of 
information that is not online available. The proposal sets out that to provide knowledge about 
existing information that is not online available, Member States shall supply each other with 
index data for online consultation. These index data will indicate whether or not information 
is  available  and  which  authority  controls  or  handles  it.  Moreover,  this  option  introduces  an 
‘information demand’ further to which the information that is targeted by index data may be 
obtained.  This  ‘demand’  will  be  issued  by  the  soliciting  competent  authority.  This  option 
avoids  fishing  for  data  as  it  allows  knowing  whether  the  information  sought  is  available 
before  making  the  request,  and  permits  efficient  and  targeted  requests.  Logging  of  requests 

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and exchanges provides for traceability of the processing of information and for meaningful 
legal remedies for persons whose data are processed. 

As  regards  impacts  on  fundamental  rights,  it  should  be  emphasised  that  the  Framework 
Decision contributes to the implementation of Articles 2 and 3 of the Charter of Fundamental 
Rights  that  states  that  everyone  has  the  right  to  life  and  physical  integrity.  Enhanced 
protection of the privacy of persons whose data are processed under this Framework Decision 
is achieved by means of the Framework Decision on the protection of personal data processed 
in the framework of police and judicial cooperation in criminal matters. 

The Framework Decision furthermore respects Article 6 TEU that puts the respect for human 
rights and fundamental freedoms in the centre of the activities of the Union. The Framework 
Decision does this by implementing the fourth option analysed under the impact assessment 
that ensures reaching the set aim  

The Commission carried out an impact assessment (not listed in the Work Programme), that is 
following  URL: 
contained 
http://europa.eu.int/comm/secretariat_general/impact/index_en.htm. 

accessible 

report 

that 

the 

in 

at 

is 

a 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The  Framework  Decision  obliges  Member  States  to  ensure  that  law  enforcement  relevant 
information,  i.e.  information  able  to  make  possible,  facilitate,  or  accelerate  the  prevention, 
detection or investigation of criminal offences, controlled by authorities or by private parties 
designated for this purpose, is shared with equivalent competent authorities of other Member 
States if they need the information to carry out their lawful tasks, and with Europol in so far 
as the access to the information by Europol is necessary for the performance of its legitimate 
tasks, and complies with the Europol Convention and its Protocols. Available information is 
shared either by online access, or by transfer based on an 'information demand' after matching 
solicited information with index data that Member States shall provide for information that is 
not accessible online.  

No obligation exists to collect information by means of coercive measures.  

Where  national  law  requires  that  transfer  of  information  requires  authorisation  from  an 
authority  other  than  the  one  that  controls  it,  the  authority  that  controls  or  handles  this 
information  (the  “designated  authority”)  shall  obtain  this  authorisation  on  behalf  of  the  law 
enforcement body in the other Member State that needs the information.  

Refusal  of  transfer  further  to  an  information  demand  is  limited  to  grounds  fixed  by  the 
Framework Decision that, moreover, only apply if less restrictive options have proven to be of 
no  avail.  The  Framework  Decision  applies  to  information  exchange  prior  to  the 
commencement of a prosecution, and does not affect mutual legal assistance mechanisms.  

•  Legal basis 

Article 30(1)(b) and Article 34(2)(b) TEU  

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•  Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the Community. 

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following reason. 

The past record of action in Member States in this field has not been satisfying. There are still 
too  many  legal  and  administrative  obstacles  to  information  availability,  stemming  inter  alia 
from competition between national services leading to information retention; the differences 
in  national  frameworks  are  also  slowing  down  the  exchange  of  data;  in  some  occasions,  in 
order to obtain information the authorities concerned need to rely on the good-will of national 
counterparts as there is no clear legal framework. 

Serious  and  organised  crime,  including  terrorism  is  an  international  phenomenon  that  no 
Member State can effectively tackle in isolation. Common rules and mechanisms to facilitate 
information exchange at the level of the EU are required to be effective. 

Union action will better achieve the objectives of the proposal for the following reason. 

Setting rules at EU level will decrease resources needed for information exchange as the need 
to maintain numerous bilateral contacts and multilateral networks will cease to exist. The cost 
to  keep  running  ad  hoc  intergovernmental  cooperation,  with  25  sets  of  rules  on  information 
transmission, is higher. The European Union is also the adequate level because the information 
need of law enforcement authorities is largely determined by the level of integration between 
countries. EU integration being high, most of the relevant information for a Member State is in 
the hands of other Member States. 

One  set  of  rules  will  do  away  with  25  highly  different  sets  of  rules  on  information 
transmission. 

The processing of relevant information across the EU by competent  authorities will support 
action at national and at Union level to improve the capacity of the EU to prevent and combat 
terrorism. The purpose of the action is to empower national law enforcement authorities and 
Europol to obtain necessary law enforcement relevant information that is accessible in one of 
the  Member  States.  Without  action  at  the  level  of  the  EU,  neither  the  knowledge  that 
information  is  available  in  a  Member  State  other  than  that  of  the  requesting  authority,  nor 
uniform and consistent mechanisms to obtain it can be fully ensured. 

The  proposal  therefore  complies  with  the  subsidiarity  principle,  and  is  without  prejudice  to 
Article 33 of the EU Treaty. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons. 

The  action  sets  out  minimum  standards  and  does  not  hinder  the  development  of  bi-  or 
multilateral  systems  for  information  exchange  that  go  beyond  the  current  Framework 
Decision. Reference to national law is maintained where it does not hinder the efficiency and 

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predictability  of  the  mechanisms  of  obtaining  available  information,  and  since  it  offers 
procedural guarantees. 

•  Choice of instruments 

Proposed instruments: A Framework Decision based on Article 34(2)(b) TEU. 

Other means would not be adequate for the following reason. 

An  alternative  would  have  been  a  Council  Decision  on  the  basis  of  article  34(2)(c)  TEU. 
However, this would not permit the harmonisation of the conditions to issue and reply to the 
information  demand,  or  to  obtain  authorisation  for  access  or  transfer  via  the  competent 
authorities in the requested or in the requesting Member State. 

4. 

BUDGETARY IMPLICATION 

The  implementation  of  the  proposed  Framework  Decision  would  entail  administrative 
expenditure, to be charged to the budget of the European Communities, for meetings of and 
the secretarial services for the committee to be established according to Articles 5 and 19. 

5. 

ADDITIONAL INFORMATION 

•  Correlation table 

The  Member  States  are  required  to  communicate  to  the  Commission  the  text  of  national 
provisions transposing the Framework Decision as well as a correlation table between those 
provisions and this Framework Decision.  

•  Detailed explanation of the proposal 

None. 

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2005/0207 (CNS) 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

on the exchange of information under the principle of availability 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission4, 

Having regard to the opinion of the European Parliament5, 

Whereas: 

(1) 

(2) 

(3) 

The European Union has set itself the objective to provide citizens with a high level of 
safety  within  an  area  of  freedom,  security  and  justice  by  developing  common  action 
among  the  Member  States  in  the  field  of  police  and  judicial  cooperation  in  criminal 
matters. 

The  conclusions  of  the  European  Council  of  15  and  16  October  1999  in  Tampere 
affirm the need for improved information exchange between the competent authorities 
of  the  Member  States  for  the  purpose  of  prevention,  detection  or  investigation  of 
criminal offences. 

The Hague Programme on strengthening freedom, security and justice in the European 
Union,  as  adopted  by  the  European  Council  on  4  November  2004,  stressed  the  need 
for  an  innovative  approach  to  the  cross-border  exchange  of  law-enforcement 
information under the principle of availability and invited the Commission to submit 
proposals in this regard by the end of 2005 at the latest. According to such principle, if 
a  competent  authority  of  a  Member  State  needs  information  in  order  to  perform  its 
lawful tasks, it should be given the ability of obtaining this from the Member State that 
controls this information, which should make it available for the stated purpose.  

(4)  Moreover, Europol should have access to available information within the framework 
of  its  tasks  and  in  accordance  with  the  Convention  of  26  July  1995  on  the 

4 
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OJ C , , p. . 
OJ C , , p. . 

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establishment  of  a  European  Police  Office6  (hereinafter  referred  to  as  the  “Europol 
Convention”). 

(5) 

Increased possibilities for information exchange should be balanced by mechanisms to 
protect  the  fundamental  rights  of  persons  whose  personal  data  are  processed  in  the 
context of this Framework Decision. Council Framework Decision 2006/XX/JHA on 
the  protection  of  personal  data  processed  in  the  framework  of  police  and  judicial 
cooperation  in  criminal  matters7  (hereinafter  referred  to  as  Framework  Decision 
2006/XX/JHA on the protection of personal data) applies to the processing of personal 
data by Member States according to the present Framework Decision. The provisions 
of  the  Europol  Convention  concerning  data  protection  apply  to  the  processing  of 
personal data by Europol, including the powers of the Joint Supervisory Body, set up 
under Article 24 of the Europol Convention, to monitor the Europol activities. Europol 
shall be liable for the unlawful processing of personal data. 

(6) 

This  Framework  Decision  should  lay  down  an  obligation  for  the  Member  States  to 
give access to or provide certain types of information available to their authorities to 
equivalent authorities of other Member States, in so far as these authorities need this 
information to fulfil their lawful tasks for the prevention, detection or investigation of 
criminal offences prior to the commencement of a prosecution.  

(7) 

This obligation should only apply to the types of information listed in Annex II.  

(8)  Member  States  should  notify  the  Commission  of  the  authorities  involved  in  the 
application of this Framework Decision, as well as the information that is available in 
each Member State and the conditions and purpose for its use.  

(9) 

On  the  basis  of  the  information  notified  to  the  Commission,  it  is  necessary  to 
determine the equivalence between authorities that have access to the different types 
of information, and the conditions that will apply to the access and use of information. 

(10)  The  equivalent  competent  authority  that  obtains  information  under  this  Framework 
Decision should only use it for the purpose for which it was provided. The information 
provided should not be used as evidence of an offence without the prior authorisation 
of a judicial authority of the Member State that provided that information.  

(11)  The designated authorities and parties that control information falling within the scope 
of this Framework Decision should verify the quality of the information prior to and 
after  its  provision  pursuant  to  the  Framework  Decision  2006/XX/JHA  on  the 
protection of personal data. 

(12)  Electronic  databases  containing  a  type  of  information  covered  by  this  Framework 
Decision  which  are  accessible  online  to  competent  authorities  of  a  Member  State 
should  be online accessible  to  equivalent competent authorities  of the  other Member 
States.  

6 

7 

OJ C 316, 27.11.1995, p. 2, as last amended by the Protocol, drawn up on the basis of Article 43(1) of 
the Convention on the establishment of a European Police Office (Europol), amending that Convention 
- OJ C 2, 6.1.2004, p. 3. 
OJ L […], […], p. […]. 

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(13) 

If online access to the information is not possible, the equivalent competent authorities 
should have online access to index data that distinctively identify information covered 
by  this  Framework  Decision  and  can  be  queried  through  a  search  routine  for  the 
purpose of establishing whether or not information to which they have access pursuant 
to  this  Framework  Decision  is  available  in  another  Member  State.  The  index  data 
should  contain  a  reference  to  the  designated  authority  that  controls  or  handles  that 
information. 

(14)  Any information demand following a match after consultation of index data should be 
addressed  to  the  designated  authority  using  the  form  laid  down  in  Annex  I.  The 
designated authority should reply within a limited period of time either providing the 
equivalent  competent  authority  with  the  information,  or  giving  the  reasons  why  it 
cannot or do so immediately. 

(15)  The designated authority that provides information further to an information demand 
should be given the ability to subject the use of the information to instructions for use 
that should be binding on the competent authority that issued the demand.  

(16) 

If  a  prior  authorisation  is  requested  by  national  law,  the  authorisation  should  be 
requested  by  the  designated  authority  that  controls  the  information.  The  authority 
responsible for the authorisation should reply within a limited period of time after the 
request is received. If the information demand concerns information that is to be used 
as evidence of an offence, the judicial authority of the Member State of the authority 
that controls the information should be responsible for the authorisation. 

(17)  The  designated  authority  that  controls  the  information  should  be  entitled  to  refuse  it 

for one of the grounds provided for by this Framework Decision.  

(18) 

If  the  necessary  technical  infrastructure  is  temporarily  deficient,  the  obligations 
incumbent on designated authorities for the provision of information should be assured 
to the extent possible by national contact points. 

(19)  The equivalent competent authority should keep a record of all information obtained 
according to this Framework Decision under the conditions set out in the Framework 
Decision 2006/XX/JHA on the protection of personal data. The information obtained 
for use as evidence should be kept in the relevant criminal file.  

(20)  The right of access by the data subject to the information demand concerning him and 
the reply made to it, should be exercised under the conditions set out in the Framework 
Decision 2006/XX/JHA on the protection of personal data.  

(21)  The conclusion of bilateral or multilateral agreements or arrangements on cooperation 
between  the  authorities  of  the  Member  States  within  the  scope  of  this  Framework 
Decision should be possible in order to further simplify or facilitate the modalities of 
the provision of information according to this Framework Decision. 

(22)  This Framework Decision should define the procedure for determining the equivalence 
between  authorities  that  have  access  to  the  different  types  of  information,  the 
conditions applying to the access and use of information as well as for the definition of 
an electronic format for the communication of information or index data, the technical 

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specifications  relating  to  the  information  demand  and  reply  and  the  means  for  the 
transmission of information. 

(23)  Since  the  objectives  of  the  proposed  action,  namely  improving  the  exchange  of 
information  that  is  available  within  the  European  Union,  cannot  be  sufficiently 
achieved by the Member States acting alone, having regard to the cross-border nature 
of security issues. It can therefore by reason of the interdependence of Member States 
be  better  achieved  at  the  level  of  the  European  Union.  The  Council  may  adopt 
measures, in accordance with the principle of subsidiarity as set out in Article 5 of the 
EC  Treaty  and  referred  to  in  Article  2  of  the  EU  Treaty.  In  accordance  with  the 
principle  of  proportionality  as  set  out  in  Article  5  of  the  EC  Treaty,  this  Framework 
Decision does not go beyond what is necessary in order to achieve those objectives. 

(24)  This  Framework  Decision  does  not  affect  specific  cooperation  regimes  between 
competent authorities established under Title VI of the Treaty on European Union. In 
addition,  in  accordance  with  Article  47  of  the  Treaty  on  European  Union,  this 
Framework Decision does not affect the protection of personal data under Community 
law, in particular, as provided for in Directive 95/46/EC of the  European Parliament 
and of the Council of 24 October 1995 on the protection of individuals with regard to 
the processing of personal data and on the free movement of such data8.  

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

HAS ADOPTED THIS FRAMEWORK DECISION : 

Article 1 

Subject-matter 

1. 

2. 

This Framework Decision determines the conditions and modalities under which the 
types of information listed in Annex II, that are available to competent authorities of 
a  Member  State,  shall  be  provided  to  equivalent  competent  authorities  of  other 
Member States and Europol, in order to assist them in the execution of their lawful 
tasks for the prevention, detection or investigation of criminal offences.  

Nothing  in  this  Framework  Decision  shall  be  interpreted  as  to  have  the  effect  of 
impairing  respect  for  the  procedural  safeguards  for  the  protection  of  fundamental 
rights and fundamental legal principles as enshrined in Article 6 of the EU Treaty. 

Article 2 

Scope 

1. 

This  Framework  Decision  shall  apply  to  the  processing  of  information  prior  to  the 
commencement of a prosecution.  

8 

OJ L 281, 23.11.1995, p. 31. 

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2. 

3. 

4. 

This  Framework  Decision  does  not  entail  any  obligation  to  collect  and  store 
information either with or without coercive measures for the sole purpose of making 
it  available  to  the  competent  authorities  of  other  Member  States  and  Europol. 
Information that has been lawfully collected by means of coercive measures shall be 
treated as available information that may be obtained under the conditions foreseen 
by this Framework Decision. 

This  Framework  Decision  shall  not  apply  when  a  specific  cooperation  regime 
between competent authorities is established under Title VI of the EU Treaty. 

Nothing  in  this  Framework  Decision  shall  affect  applicable  instruments  on  mutual 
legal assistance or mutual recognition of decisions regarding criminal matters. 

Article 3 

Definitions 

For the purpose of this Framework Decision : 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

“information” shall mean existing information, listed in Annex II; 

“competent authority” shall mean any national authority covered by Article 29, first 
hyphen, of the EU Treaty, as notified according to the procedure foreseen in Article 
4,  as  well  as  Europol  within  the  limits  of  its  competences  pursuant  to  the  Europol 
Convention and its Protocols; 

“equivalent competent authority” shall mean any competent authority determined in 
accordance with the procedure set out in Article 5, to be equivalent to an authority of 
another Member State for the purpose of this Framework Decision; 

“designated  authorities”  and  “designated  parties”  shall  mean  the  authorities  and 
parties  that  control  the  information  or  index  data,  as  notified  according  to  the 
procedure foreseen in Article 4; 

“national  contact  point”  shall  mean  the  competent  authority  for  the  purpose  of 
providing or accessing information in case of deficiency of the technical means put 
in place following this Framework Decision, as notified according to the procedure 
laid down in Article 4; 

“online  access”  shall  mean  the  automated  access  to  an  electronic  database  for  the 
purpose  of  consultation  of  and  access  to  its  content,  from  another  location  than  in 
which the database is located, without intervention of another authority or party; 

“index  data”  shall  mean  data  the  purpose  of  which  is  to  distinctively  identify 
information  and  that  can  be  queried  by  means  of  a  search  routine  to  ascertain 
whether or not information is available. 

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Article 4 

Notification 

1. 

Member  States  shall,  not  later  than  six  months  after  the  entry  into  force  of  this 
Framework Decision, notify the Commission of: 

(a) 

the  competent  authorities  for  the  purpose  of  this  Framework  Decision,  with 
mention of their specific competence under national law;  

(b) 

the national contact points for each type of information; 

(c) 

(d) 

(e) 

the designated authorities and, as appropriate, designated parties for each type 
of  information  or  related  index  data,  and,  for  each  designated  party,  the 
corresponding  designated  authority  for  the  execution  of  the  information 
demand pertaining to information controlled by that designated party; 

the  depository  of  each  type  of  information  and  related  index  data,  and  the 
modalities to access each type of information and data, in particular whether or 
not information is accessible online; 

the  purpose  for  which  each  type  of  information  may  be  processed  and  the 
competences  of  the  authorities  of  that  Member  State  that  may  obtain  the 
information under their national law;  

(f)  where  prior  authorisation  by  an  authority  is  required  before  providing 

information, the authority concerned and the applicable procedure; 

(g)  where  applicable,  the  channel  for  the  transfer  of  each  type  of  information 

referred to by index data. 

Member  States  shall  forthwith  notify  the  Commission  of  changes  to  the  elements 
notified  in  accordance  with  paragraph  1  that  shall  supersede  the  corresponding 
previous notification. 

Article 5 

Equivalence between competent authorities 

In order to determine the competent authorities which are entitled to access available 
information  under  this  Framework  Decision,  the  equivalence  between  competent 
authorities of the Member States shall be assessed on the basis of the criteria listed in 
Annex  III  and  the  notifications  received  pursuant  to  Article  4,  not  later  than  six 
months after the entry into force of this Framework Decision.  

Measures  determining  the  equivalence  between  competent  authorities  shall  be 
adopted in accordance with the procedure laid down in Article 19.  These measures 
shall cover:  

2. 

1. 

2. 

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16 

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(a) 

(b) 

for  each  type  of  information  that  is  accessible  online  for  national  competent 
authorities  in  a  Member  State,  which  competent  authorities  of  other  Member 
States  with  equivalent  competences  shall  be  entitled  to  access  it  online,  with 
full respect of the purpose for which that information is processed in the former 
Member State; 

for each type of index data relating to information that is accessible for national 
competent authorities in a Member State, which competent authorities of other 
Member States with equivalent competences shall be entitled to consult it, with 
full respect of the purpose for which that information is processed in the former 
Member State. 

3. 

4. 

The measures adopted according to this Article shall be classified "EU Confidential". 

After receipt of a notification in accordance with Article 4(2), the measures adopted 
according to this Article shall be adapted within six months. 

Article 6 

Obligation to provide information 

Member  States  shall  ensure  that  information  shall  be  provided  to  equivalent  competent 
authorities  of  other  Member  States  and  Europol,  under  the  conditions  set  out  in  this 
Framework Decision, in so far as these authorities need this information to fulfil their lawful 
tasks for the prevention, detection or investigation of criminal offences.  

Article 7 

Purpose limitation 

The  information  under  this  Framework  Decision  shall  only  be  used  for  the  prevention, 
detection or investigation of the criminal offence for which the information is provided.  

Article 8 

Obligations of designated authorities and designated parties 

1. 

2. 

3. 

The  designated  authority  or  the  designated  party  shall  verify  the  quality  of  the 
information prior to and after the provision of information, and inform forthwith the 
equivalent  competent  authority  of  any  element  affecting  the  quality  of  the 
information,  in  accordance  with  Framework  Decision  2006/XX/JHA  on  the 
protection of personal data. 

Information shall be provided in the language in which it is available. 

If information is provided following an information demand pursuant to Article 11, 
the following data shall be recorded, in addition to the requirements of Article 10 of 
Framework Decision 2006/XX/JHA on the protection of personal data:  

(a) the reference details of the information demand;  

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17 

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4. 

5. 

1. 

2. 

3. 

1. 

2. 

3. 

1. 

(b) the name of the official who authorised the transmission. 

The  record  containing  the  documentation  and/or  the  logging  data  shall  be 
communicated to a competent supervisory authority in accordance with Framework 
Decision 2006/XX/JHA on the protection of personal. 

The  technical  specifications  for  logging  and  recording  of  data  shall  be  adopted  in 
accordance with the procedure laid down in Article 19. 

Article 9 

Online access to information 

Member  States  shall  ensure  that  equivalent  competent  authorities  of  other  Member 
States and Europol shall have online access to the information contained in electronic 
databases to which their corresponding competent authorities have online access. 

If online access according to the first paragraph is not possible, Article 10 applies. 

The  technical  measures  necessary  to  realise  online  access  to  information  shall  be 
adopted in accordance with the procedure laid down in Article 19. 

Article 10 

Online consultation of index data 

Member  States  shall  ensure  that  index  data  of  information  that  is  not  accessible 
online, shall be available for online consultation by equivalent competent authorities 
of  other  Member  States  and  Europol  and  shall  establish  to  this  end  the  appropriate 
technical infrastructure. 

The index data shall at least contain a reference to the type of information to which it 
relates as well as to the designated authority that controls or handles that information, 
and  that  shall  be  managing  the  index  data  for  the  purpose  of  this  Framework 
Decision.  

The  rules  necessary  for  the  creation  of  index  data  as  well  as  an  electronic  format 
shall be adopted in accordance with the procedure laid down in Article 19. 

Article 11 

Information demand 

When  consultation  of  index  data  by  an  equivalent  competent  authority  results  in  a 
match, this authority may issue an information demand in accordance with Annex I, 
and send it to the designated authority in order to obtain the information identified by 
the index data.  

EN 

18 

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2. 

3. 

4. 

5. 

6. 

7. 

The  designated  authority  shall  reply  within  twelve  hours  after  receipt  of  the 
information demand, after having obtained the authorisation provided for in Article 
13, where applicable. 

In  the  case  where  the  designated  authority  cannot  or  not  immediately  provide  the 
information demanded, the reply shall inform the equivalent competent authority of 
the grounds thereof. It shall further indicate, where relevant, the procedure necessary 
to obtain the available information, or to obtain it more rapidly. 

If the designated authority is not competent to deal with the information demand, it 
shall forthwith inform the equivalent competent authority of the designated authority 
that controls or handles the information demanded. The reference to the designated 
authority in the index data concerned shall be corrected, where necessary. 

A designated authority that receives an information demand may subject the use of 
the information it makes available to instructions for use pursuant to Article 12.  

All transmissions shall be by means that guarantee their integrity and authenticity.  

Technical specifications relating to the electronic format of the information demand 
and reply and the means for their transmission shall be adopted in accordance with 
the procedure laid down in Article 19.  

Article 12 

Instructions for use 

1. 

A designated authority may, by its reply, limit the use of the information with such 
instructions as are necessary:  

(a) 

to avoid jeopardising the success of an on-going investigation ; 

(b) 

to protect a source of information or the physical integrity of a natural person ; 

(c) 

to protect the confidentiality of information at any stage of processing.  

The instructions for use shall be binding upon the competent authority that issued the 
information demand.  

A  standard  format  for  communication  of  instructions  for  use  shall  be  adopted  in 
accordance with the procedure laid down in Article 19. 

Article 13 

Prior authorisation 

If  required  by  national  law,  the  provision  of  information  shall  be  subject  to  prior 
authorisation,  unless  a  ground  for  refusal  exists  as  set  out  in  Article  14.  This 
authorisation  shall  be  requested  by  the  designated  authority  and  the  authority 

2. 

3. 

1. 

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19 

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responsible for the authorisation shall reply within twelve hours after receipt of the 
request.  

2. 

In  cases  where  the  information  is  to  be  used  as  evidence  of  an  offence,  the  prior 
authorisation shall be requested from a judicial authority of the Member State of the 
designated authority. 

Article 14 

Grounds for refusal 

1. 

The  designated  authority  may  refuse  the  provision  of  information  on  the  following 
grounds : 

(a) 

to avoid jeopardising the success of an on-going investigation; 

(b) 

to protect a source of information or the physical integrity of a natural person; 

(c) 

to protect the confidentiality of information at any stage of processing;  

to  protect  the  fundamental  rights  and  freedoms  of  persons  whose  data  are 

(d) 
processed under this Framework Decision; 

2. 

A  standard  format  for  communicating  the  grounds  for  refusal  shall  be  adopted  in 
accordance with the procedure laid down in Article 19.  

Article 15  

Interim and emergency arrangements  

In the case of a temporal deficiency of the technical infrastructure for providing information, 
the information shall be provided to the extent possible via the national contact points. 

Article 16 

Traceability  

The equivalent competent authorities shall : 

(a) 

keep a record of all information as set out in Article 8;  

(b)  where authorisation for use as evidence was obtained, include all information 
that  is  obtained  pursuant  to  this  Framework  Decision  in  the  relevant  criminal 
file together with a copy of the information demand issued in accordance with 
Article 11. 

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Article 17 

Right of access  

Under the conditions foreseen in the Framework Decision 2006/XX/JHA on the protection of 
personal data , the data subject shall have access to the information demand provided for in 
Article 11 concerning him, and to the reply including the instructions for use issued pursuant 
to Article 12. 

Article 18 

Bilateral agreements on cooperation between the authorities covered by this Framework 
Decision 

1. 

Member  States  may  conclude  bilateral  or  multilateral  agreements  or  arrangements 
covering  the  scope  of  this  Framework  Decision  in  order  to  further  simplify  or 
facilitate the modalities of the provision of information according to this Framework 
Decision which are compatible with this Framework Decision and with Framework 
Decision 2006/XX/JHA on the protection of personal data. 

2. 

Member States shall notify the Commission of such agreements or arrangements. 

Article 19 

Committee 

1. 

2. 

3. 

Where  reference  is  made  to  this  Article,  the  Commission  shall  be  assisted  by  a 
Committee composed of the representatives of the Member States and chaired by the 
representative of the Commission. 

The Committee shall adopt its rules of procedure on a proposal made by the Chair on 
the  basis  of  standard  rules  of  procedure  which  have  been  published  in  the  Official 
Journal of the European Union. 

The representative of the Commission shall submit to the Committee a draft of the 
measures to be taken. The Committee shall deliver its opinion on the draft within a 
time  limit  which  the  chairperson  may  lay  down  according  to  the  urgency  of  the 
matter. The opinion shall be delivered by the majority laid down in Article 205(2) of 
the Treaty establishing the European Community, in the case of decisions which the 
Council  is  required  to  adopt  on  a  proposal  from  the  Commission.  The  votes  of  the 
representatives of the Member States within the Committee shall be weighted in the 
manner set out in that Article. The chairperson shall not vote. 

4. 

The Commission shall adopt the measures envisaged if they are in accordance with 
the opinion of the Committee. 

If the measures envisaged are not in accordance with the opinion of the Committee, 
or  if  no  opinion  is  delivered,  the  Commission  shall,  without  delay,  submit  to  the 

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Council  a  proposal  relating  to  the  measures  to  be  taken  and  shall  inform  the 
European Parliament thereof. 

5. 

The Council may act by qualified majority on the proposal, within two months from 
the date of referral to the Council. 

If within that period, the Council has indicated by qualified majority that it opposes 
the  proposal,  the  Commission  shall  re-examine  it.  It  may  submit  an  amended 
proposal to the Council, resubmit its proposal or present a legislative proposal. 

If  on  after  the  expiry  of  that  period  the  Council  has  neither  adopted  the  proposed 
implementing  act  nor  indicated  its  opposition  to  the  proposal  for  implementing 
measures, the proposed implementing act shall be adopted by the Commission. 

The  representatives  of  the  Member  States  are  designated  from  the  authorities 
responsible for the implementation of this Framework Decision. Each Member State 
shall designate one representative. 

Article 20 

Implementation and application 

Member  States  shall  take  all  necessary  measures  to  comply  with  this  Framework 
Decision within the time limits provided for in this Framework Decision, and in any 
case on 30 June 2007 at the latest. 

By  the  same  date,  Member  States  shall  communicate  to  the  Council  and  the 
Commission  the  text  of  the  provisions  transposing  this  Framework  Decision  into 
their  national  law,  as  well  as  a  correlation  table  between  those  provisions  and  this 
Framework Decision. 

By December 2008 at the latest, and every second year thereafter, the Council shall 
assess  the  implementation  of  this  Framework  Decision  and  take  all  measures 
necessary to ensure full compliance with it, on the basis of a report established by the 
Commission  further  to  the  information  received  in  accordance  with  the  second 
paragraph, as well as other relevant information provided by the Member States and 
following  consultation  of  the  Working  Party  established  under  Article  31  of  the 
Framework Decision 2006/XX/JHA on the protection of personal data.  

6. 

1. 

2. 

3. 

Article 21 

Entry into force 

This Framework Decision shall enter info force on the twentieth day following its publication 
in the Official Journal of the European Union. 

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Done at Brussels,  

For the Council 
The President 

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ANNEX I 

Information demand 

[DEMAND] 

Further  to  [reference  details  of  the  of  the  hit]  the  undersigned  [name  of  the  competent 
authority], issues herewith the present information demand for the attention of the [name 
of the designated authority that controls or handles the demanded information] to obtain the 
data specified herewith. 

1) 

2) 

Type(s) of information that is requested 

Issuing competent authority: 

Name :  
:  
Address 
Member State 
:  
Telephone 
:  
Telefax 
: 
e-mail 

: 

3) 

Designated authority: 

Name :  
Address 
:  
Member State 
:  
Telephone 
:  
Telefax 
: 
e-mail 

: 

4) 

5) 

6) 

Type of offence(s) or criminal activity(-ies) concerned  

Purpose for which the information is requested: 

Known identity(-ies) of the person(s) subject to the action pursuant to which the 
information is requested: 

7) 

Whether the information shall be used as evidence for a criminal offence: 

[Place of issue], [date] <SIGNATURE> 

[RESPONSE] 

Having  regard  to  the  information  demand  issued  by  [name  authority],  the 
undersigned  [name  authority],  charges  [name  authority]  to  respect  the  following 
instructions for use of the information that it provides herewith: 

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Instructions for use 

(1) 

The information that is obtained under this Framework Decision shall only be 
used  to  make  possible,  facilitate,  or  accelerate  the  prevention,  detection  or 
investigation of criminal offences. 

(2) 

[Other]  

[Place of issue], [date] <SIGNATURE> 

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ANNEX II 

Types of information that may be obtained under this Decision 
to prevent, detect or investigate criminal offences 

Under  the  conditions  set  out  in  this  Framework  Decision,  the  following  types  of 
information may be obtained :  

– 

– 

– 

– 

– 

DNA-profiles, i.e. a code of numbers and letters established on the basis of the 
seven  DNA  markers  of  the  European  Standard  Set  comprising  as  defined  in 
Council Resolution 2001/C 187/01 of 25 June 2001 on the exchange of DNA 
analysis results9. These markers will not contain any information about specific 
hereditary characteristics.  

Fingerprints. 

Ballistics. 

Vehicle registration information. 

Telephone  numbers  and  other  communications  data,  with  the  exclusion  of 
content data and traffic data unless the latter data are controlled by a designated 
authority. 

–  Minimum data for the identification of persons contained in civil registers. 

9 

OJ C 187, 3.7.2001, p. 1. 

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ANNEX III 

Criteria for the appraisal of correlations between equivalent competent authorities  
pursuant to Article 5  

The  Committee  mentioned  in  Article  19  shall  appraise  the  equivalence  of  competent 
authorities  for  each  of  type  of  information  listed  in  Annex  II  on  the  basis  of  the  following 
elements. 

I 

Name  of  the  authority  or  authorities  of  the  Member  State  that  controls  the 
information that is or are entitled to access one or more types of information listed in 
Annex II 

I.1  Competence of the authority or authorities with regard to the 

I.1.a  collection or creation 

I.1.b  access 

I.1.c  use 

I.1.d  other forms of processing of each type of information listed in Annex II 

I.2  Purpose  for  which  the  information  may  be  processed  by  the  authority  or 
authorities  under  the  law  of  the  Member  State  that  controls  the 
information 

I.2.a  prevention 

I.2.b  detection 

I.2.c  investigation for each type of information listed in Annex II 

II 

Name  of  the  competent  authority  or  authorities  for  each  Member  State  notified 
pursuant to Article 4(1)(a) 

II.1  Competence of the authority or authorities with regard to the 

II.1.a collection or creation 

II.1.b access 

II.1.c use 

II.1.d other forms of processing of each type of information listed in Annex II. 

II.2  Purpose for which the information may be processed under national law 

II.2.a prevention 

II.2.b detection 

II.2.c investigation for each type of information listed in Annex II. 

EN 

27 

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ANNEX IV 

LEGISLATIVE FINANCIAL STATEMENT 

Policy area(s): Justice and Home Affairs 

Activit(y/ies): 1806 – Establishing a genuine area in criminal and civil matters 

TITLE  OF  ACTION:  PROPOSAL  FOR  A  COUNCIL  FRAMEWORK  DECISION  ON  THE  EXCHANGE  OF 

INFORMATION UNDER THE PRINCIPLE OF AVAILABILITY 

1. 

BUDGET LINE(S) + HEADING(S) 

NA 

2. 

OVERALL FIGURES  

2.1. 

Total allocation for action (Part B): € million for commitment 

NA 

2.2. 

Period of application: 

Starting 2006. 

2.3. 

Overall multi-annual estimate of expenditure: 

(a) 

Schedule  of  commitment  appropriations/payment  appropriations 
intervention) (see point 6.1.1) 

(financial 

€ million (to three decimal places) 

[2006] 

[2007]

[2008] 

[2009] 

[2010] 

[2011] 

Total 

Commitments 

Payments 

(b) 

Technical and administrative assistance and support expenditure (see point 6.1.2) 

Commitments 

Payments 

Subtotal a+b 

Commitments 

Payments 

EN 

28 

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(c) 

Overall  financial  impact  of  human  resources  and  other  administrative  expenditure 
(see points 7.2 and 7.3) 

0.362 

0.362 

0.362 

0.362 

0.362 

0.362 

2,172 

Commitments/ 
payments 

TOTAL a+b+c 

Commitments 

0.362 

0.362 

0.362 

0.362 

0.362 

0.362 

2,172 

Payments 

0.362 

0.362 

0.362 

0.362 

0.362 

0.362 

2,172 

2.4. 

Compatibility with financial programming and financial perspective 

NA 

2.5. 

Financial impact on revenue: 

Proposal has no financial implications 

3. 

BUDGET CHARACTERISTICS 

Type of expenditure 

New 

EFTA 
contribution 

Contributions 
form applicant 
countries 

Heading in 
financial 
perspective 

Non-comp 

Non-diff 

NA 

NA 

NA 

No NA 

4. 

LEGAL BASIS  

Article 30, and 34 (2)(b)TEU 

5. 

DESCRIPTION AND GROUNDS 

5.1. 

Need for Community intervention  

5.1.1.  Objectives pursued 

The  Framework  Decision  establishes  an  obligation  for  Member  States  to  make 
existing information that is accessible to their competent authorities, also accessible 
to the competent authorities of other Member States and to Europol. It lays down the 
obligation  to  make  information  contained  in  electronic  databases,  and  directly 
accessible  to  competent  authorities  via  online  access  also  accessible  via  the  same 
means  to  the  competent  authorities  of  other  Member  States  and  to  Europol.  Where 
this  information  is  indirectly  accessible  based  on  an  authorisation  of  an  authority 
other  than  the  one  that  controls  the  data,  the  authorisation  shall  be  given  promptly 
unless a ground for refusal foreseen by this Framework Decision exists. It also lays 
down the obligation to provide online access to index data of information that is not 
accessible  online,  and  to  transfer  that  information  further  to  a  formal  information 
demand. It furthermore lays down the limits to these obligations.  

EN 

29 

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Furthermore,  according  to  the  Articles  5  and  19  of  the  Framework  Decision  a 
committee, composed of the representatives of the Member States and chaired by a 
representative of the Commission, shall assist the Commission in order to determine 
the equivalence between competent authorities of the Member States and to develop, 
where necessary, technical details of the exchange of information. 

5.1.2.  Measures taken in connection with ex ante evaluation  

Representatives  of  the  Governments  and  of  the  independent  supervisory  authorities 
of the Member States as well as of the European Data Protection Supervisor, Europol 
and  Eurojust  were  consulted.  In  particular,  taking  into  account  different  views  the 
Commission  proposes  to  establish  the  information  exchange  on  the  basis  of  the 
principle  of  availability.  In  order  to  estimate  the  possible  cost  caused  by  this 
measure,  the  Commission  verified  the  cost  (travel  expenses,  secretarial  support  for 
the preparation and organisation of meetings) estimated for the Committee proposed 
in Article 3(3) of the Proposal for a Council Decision on the improvement of police 
cooperation  between  the  Member  States  of  the  European  Union,  especially  at  the 
internal  borders  and  amending  the  Convention  implementing  the  Schengen 
Agreement - COM (2005) 317, 18 July 2005 -, and those currently incurred by the 
Working Party established according Article 29 of Directive 95/46/EC. 

5.2. 

Action envisaged and budget intervention arrangements 

The above mentioned Committee will probably meet regularly, estimated three times 
a  year,  whenever  necessary.  One  participant  per  Member  State  will  have  to  be 
reimbursed. 

5.3.  Methods of implementation 

All  meetings  will  have  to  be  organised  and  hosted  by  the  Commission.  The 
Commission  will  have  to  provide  secretarial  services  for  the  above  mentioned 
committee and to prepare/organise their meetings. 

6. 

FINANCIAL IMPACT 

6.1. 

Total financial impact on Part B - (over the entire programming period) 

6.1.1.  Financial intervention 

NA 

6.1.2.  Technical  and  administrative  assistance,  support  expenditure  and  IT  expenditure 

(commitment appropriations) 

NA 

6.2. 

Calculation  of  costs  by  measure  envisaged  in  Part  B  (over  the  entire 
programming period) 

NA 

EN 

30 

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7. 

IMPACT ON STAFF AND ADMINISTRATIVE EXPENDITURE  

The impact on staff and administrative expenditure will be covered in the context of 
allocation  of  resources  of  the  lead  DG  in  the  context  of  the  annual  allocation 
procedure. 

The allocation of posts also depends on the attribution of functions and resources in 
the context of the financial perspectives 2007-2013. 

7.1. 

Impact on human resources 

Types of post 

Staff to be assigned to management of the 
action  using  existing  and/or  additional 
resources 

Number 
permanent posts 

of 

Number 
temporary posts 

of 

Officials 
temporary staff 

or 

0.25 
0,50 
1,00 C 

A 

B 

C 

A
B

Other human resources 

Total 

Description  of  tasks  deriving  from  the 
action 

Providing secretarial support, 

preparing  the  meetings  of  the  working 
party and the committee 

Total 

0,25A
0,50B
1,00C 

7.2. 

Overall financial impact of human resources 

Type of human resources 

Amount (€) 

Method of calculation *  

Officials 

Temporary staff 

Other human resources 

1rst 
189. 000 

year:

X 
X 

1 
0.5 
0,25 
= 189 .000 

X 

108 
108 

000
000
108.000

(specify budget line) 

Total  189.000 

The amounts are total expenditure for twelve months. 

EN 

31 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
7.3. 

Other administrative expenditure deriving from the action 

Budget line 

(number and heading) 

Amount € 

Method of calculation 

3  meetings  *  (25  *  740€)  per 
annum 

Overall allocation (Title A7) 

55.000 

A0701 – Missions 

A07030 – Meetings 

A07031 – Compulsory committees 

A07032 – Non-compulsory committees 

A07040 – Conferences 

A0705 – Studies and consultations 

Other expenditure (specify) 

Information systems (A-5001/A-4300) 

Other expenditure - Part A (specify) 

Total  55.000 

The amounts are total expenditure for twelve months. 

Specify the type of committee and the group to which it belongs. 

I. 

II. 

Annual total (7.2 + 7.3) 

€ 244.000 

Duration of action 

III. 

Total cost of action (I x II) 

8. 

FOLLOW-UP AND EVALUATION 

8.1. 

Follow-up arrangements 

The  working  party  and  the  committee  will  lay  down  their  rules  of  procedure, 
including  rules  on  confidentiality.  The  European  Parliament  will  be  informed 
analogous to Article 7 of Council Decision 99/468/EC of 28 June 1999 laying down 
the  procedures  for  the  exercise  of  implementing  powers  conferred  on  the 
Commission - OJ L 184, 17.7.1999, p. 23. 

8.2. 

Arrangements and schedule for the planned evaluation 

NA 

EN 

32 

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9. 

ANTI-FRAUD MEASURES 

NA 

EN 

33 

   EN