Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union
Date: 2006-12-18
Institutions: Council of the European Union
Subjects: EU Member State, cooperation policy, criminal law, exchange of information, fight against crime, form, repression

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(Acts adopted under Title VI of the Treaty on European Union)

COUNCIL FRAMEWORK DECISION 2006/960/JHA

of 18 December 2006

on simplifying the exchange of information and intelligence between law enforcement authorities of
the Member States of the European Union

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the initiative of the Kingdom of Sweden,

Having regard to the opinion of the European Parliament,

Whereas:

(1)

(2)

(3)

(4)

(5)

One of the core objectives of the European Union is to
provide its citizens with a high level of security within an
area of freedom, security and justice.

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

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

The timely access to accurate and up to date information
and intelligence is a crucial element for the possibility of
law enforcement authorities to successfully detect, prevent
and investigate crime or criminal activity, in particular
within an area where internal border controls have been
abolished. As the activities of criminals are carried out
clandestinely, they need to be controlled, and information
relating to them needs to be exchanged particularly
expeditiously.

It is important that the possibilities for law enforcement
authorities to obtain information and intelligence concern-
ing serious crime and terrorist acts from other Member
States be viewed horizontally and not in terms of differ-
ences with regard to type of crime or division of compe-
tencies between law enforcement or judicial authorities.

(6)

(7)

(8)

is

Currently, effective and expeditious exchange of informa-
tion and intelligence between law enforcement authori-
ties
seriously hampered by formal procedures,
administrative structures and legal obstacles laid down in
Member States’ legislation; such a state of affairs is unac-
ceptable to the citizens of the European Union and it
therefore calls for greater security and more efficient law
enforcement while protecting human rights.

It is necessary for law enforcement authorities to be able
to request and obtain information and intelligence from
other Member States at different stages of investigation,
from the phase of gathering criminal intelligence to the
phase of criminal investigation. The Member State’s sys-
tems are different in that respect, but this Framework Deci-
sion does not purport to change these systems. However,
it seeks, as regards certain types of information and intel-
ligence, to ensure that certain information vital for law
enforcement authorities is exchanged expeditiously within
the Union.

The absence of a common legal framework for the effec-
tive and expeditious exchange of information and intelli-
gence between the law enforcement authorities of the
Member States is a deficiency that will have to be rem-
edied; the Council of the European Union therefore deems
it necessary to adopt a legally binding instrument on sim-
plifying the exchange of information and intelligence. This
Framework Decision should not affect existing or future
instruments which allow the objectives of this Framework
Decision to be extended or which facilitate the procedures
for exchanging information and intelligence, such as the
Convention of 18 December 1997 drawn up on the basis
of Article K.3 of the Treaty on European Union on Mutual
Assistance
Customs
Administrations (1).

Cooperation

between

and

(9)

As regards the exchange of information, this Framework
Decision is without prejudice to essential national secu-
rity interests, the jeopardizing of the success of a current
investigation or the safety of individuals, or specific intel-
ligence activities in the field of State security.

(1) OJ C 24, 23.1.1998, p. 2.

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(10)

(11)

(12)

It is important to promote the exchange of information
as widely as possible, in particular in relation to offences
linked directly or indirectly to organised crime and terror-
ism, and in a way which does not detract from the
required level of cooperation between Member States
under existing arrangements.

The common interest of Member States in fighting crime
of a cross-border nature must strike the appropriate bal-
ance between fast and efficient law enforcement coopera-
tion and agreed principles and rules on data protection,
freedoms, human rights and individual
fundamental
liberties.

In the Declaration on combating terrorism as adopted by
the European Council at its meeting on 25 March 2004,
the European Council instructed the Council to examine
measures for simplifying the exchange of information and
intelligence between law enforcement authorities of the
Member States.

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

(14) As regards Switzerland, this Framework Decision consti-
tutes a development of provisions of the Schengen acquis
within the meaning of the Agreement signed between the
European Union, the European Community and the Swiss
Confederation concerning the association of the Swiss
Confederation with the implementation, application and
development of the Schengen acquis, which fall within the
area referred to in Article 1(H) of Decision 1999/437/EC
read
of
Decision 2004/860/EC (2) on the signing on behalf of the
European Community and on the provisional application
of certain provisions of
that Agreement, and with
Article 4(1) of Decision 2004/849/EC (3) on the signing
on behalf of the European Union, and on the provisional
application of certain provisions of that Agreement,

conjunction

Article

with

4(1)

in

HAS ADOPTED THIS FRAMEWORK DECISION:

TITLE I

SCOPE AND DEFINITIONS

Article 1

Objective and scope

1.
The purpose of this Framework Decision is to establish the
rules under which Member States’ law enforcement authorities
may exchange existing information and intelligence effectively
and expeditiously for the purpose of conducting criminal inves-
tigations or criminal intelligence operations.

2.
This Framework Decision shall be without prejudice to
bilateral or multilateral agreements or arrangements between
Member States and third countries and to instruments of the
European Union on mutual legal assistance or mutual recogni-
tion of decisions regarding criminal matters, including any con-
ditions set by third countries concerning the use of information
once supplied.

3.
This Framework Decision covers all information and/or
intelligence as defined in Article 2(d). It does not impose any
obligation on the part of the Member States to gather and store
information and intelligence for the purpose of providing it to
the competent law enforcement authorities of other Member
States.

4.
This Framework Decision does not impose any obligation
on the part of the Member States to provide information and
intelligence to be used as evidence before a judicial authority nor
does it give any right to use such information or intelligence for
that purpose. Where a Member State has obtained information
or intelligence in accordance with this Framework Decision, and
wishes to use it as evidence before a judicial authority, it has to
obtain consent of the Member State that provided the informa-
tion or intelligence, where necessary under the national law of
the Member State that provided the information or intelligence,
through the use of instruments regarding judicial cooperation in
force between the Member States. Such consent is not required
where the requested Member State has already given its consent
for the use of information or intelligence as evidence at the time
of transmittal of the information or intelligence.

(1) OJ L 176, 10.7.1999, p. 31.
(2) OJ L 370, 17.12.2004, p. 78.
(3) OJ L 368, 15.12.2004, p. 26.

5.
This Framework Decision does not impose any obligation
to obtain any information or intelligence by means of coercive
measures, defined in accordance with national law, in the Mem-
ber State receiving the request for information or intelligence.

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6. Member States shall, where permitted by and in accordance
with their national law, provide information or intelligence pre-
viously obtained by means of coercive measures.

(ii) any type of information or data which is held by public
authorities or by private entities and which is available
to law enforcement authorities without the taking of
coercive measures, in accordance with Article 1(5).

7.
This Framework Decision shall not have the effect of modi-
fying the obligation to respect fundamental rights and fundamen-
tal legal principles as enshrined in Article 6 of the Treaty on
European Union and any obligations incumbent on law enforce-
ment authorities in this respect shall remain unaffected.

(e)

‘offences referred to in Article 2(2) of the Framework Deci-
sion 2002/584/JHA on the European arrest warrant (1)’
(hereinafter referred to as ‘offences referred to in Article 2(2)
of the Framework Decision 2002/584/JHA’): offences under
national law which correspond to or are equivalent to those
referred to in that provision.

Article 2

Definitions

For the purposes of this Framework Decision:

(a)

(b)

(c)

‘competent law enforcement authority’: a national police,
customs or other authority that is authorised by national
law to detect, prevent and investigate offences or criminal
activities and to exercise authority and take coercive mea-
sures in the context of such activities. Agencies or units deal-
ing especially with national security issues are not covered
by the concept of competent law enforcement authority.
Every Member State shall, by 18 December 2007, state in a
declaration deposited with the General Secretariat of the
Council which authorities are covered by the concept of
‘competent law enforcement authority’. Such a declaration
may be modified at any time.

‘criminal investigation’: a procedural stage within which mea-
sures are taken by competent law enforcement or judicial
authorities, including public prosecutors, with a view to
establishing and identifying facts, suspects and circum-
stances regarding one or several identified concrete criminal
acts;

‘criminal intelligence operation’: a procedural stage, not yet
having reached the stage of a criminal investigation, within
which a competent law enforcement authority is entitled by
national law to collect, process and analyse information
about crime or criminal activities with a view to establish-
ing whether concrete criminal acts have been committed or
may be committed in the future;

(d)

‘information and/or intelligence’:

(i)

any type of information or data which is held by law
enforcement authorities;

TITLE II

EXCHANGE OF INFORMATION AND INTELLIGENCE

Article 3

Provision of information and intelligence

1. Member States shall ensure that information and intelli-
gence can be provided to the competent law enforcement
authorities of other Member States in accordance with this
Framework Decision.

2.
Information and intelligence shall be provided at the request
of a competent law enforcement authority, acting in accordance
with the powers conferred upon it by national law, conducting a
criminal investigation or a criminal intelligence operation.

3. Member States shall ensure that conditions not stricter than
those applicable at national level for providing and requesting
information and intelligence are applied for providing informa-
tion and intelligence to competent law enforcement authorities
of other Member States. In particular, a Member State shall not
subject the exchange, by its competent law enforcement author-
ity with a competent law enforcement authority of another Mem-
ber State, of information or intelligence which in an internal
procedure may be accessed by the requested competent law
enforcement authority without a judicial agreement or authori-
sation, to such an agreement or authorisation.

4. Where the information or intelligence sought may, under
the national law of the requested Member State, be accessed by
the requested competent law enforcement authority only pursu-
ant to an agreement or authorisation of a judicial authority, the
requested competent law enforcement authority shall be obliged
to ask the competent judicial authority for an agreement or
authorisation to access and exchange the information sought.
The competent judicial authority of the requested Member State
shall apply the same rules for its decision, without prejudice to
Article 10(1) and (2), as in a purely internal case.

and

(1) OJ L 190, 18.7.2002, p. 1.

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5. Where the information or intelligence sought has been
obtained from another Member State or from a third country
and is subject to the rule of speciality, its transmission to the
competent law enforcement authority of another Member State
may only take place with the consent of the Member State or
third country that provided the information or intelligence.

Article 5

Requests for information and intelligence

Article 4

Time limits for provision of information and intelligence

1.
Information and intelligence may be requested for the pur-
pose of detection, prevention or investigation of an offence where
there are factual reasons to believe that relevant information and
intelligence is available in another Member State. The request
shall set out those factual reasons and explain the purpose for
which the information and intelligence is sought and the connec-
tion between the purpose and the person who is the subject of
the information and intelligence.

1. Member States shall ensure that they have procedures in
place so that they can respond within at most eight hours to
urgent requests for information and intelligence regarding
offences referred to in Article 2(2) of Framework Decision
2002/584/JHA, when the requested information or intelligence
is held in a database directly accessible by a law enforcement
authority.

2.
The requesting competent law enforcement authority shall
refrain from requesting more information or intelligence or set-
ting narrower time frames than necessary for the purpose of the
request.

Requests for information or intelligence shall contain at

3.
least the information set out in Annex B.

2.
If the requested competent law enforcement authority is
unable to respond within eight hours, it shall provide reasons for
that on the form set out in Annex A. Where the provision of the
information or intelligence requested within the period of eight
hours would put a disproportionate burden on the requested law
enforcement authority, it may postpone the provision of the
information or intelligence.
In that case the requested law
enforcement authority shall immediately inform the requesting
law enforcement authority of this postponement and shall pro-
vide the requested information or intelligence as soon as pos-
sible, but not later than within three days. The use made of the
provisions under this paragraph shall be reviewed by 19 Decem-
ber 2009.

3. Member States shall ensure that for non-urgent cases,
requests for information and intelligence regarding offences
referred to in Article 2(2) of Framework Decision 2002/584/JHA
should be responded to within one week if the requested infor-
mation or intelligence is held in a database directly accessible by
a law enforcement authority. If the requested competent law
enforcement authority is unable to respond within one week, it
shall provide reasons for that on the form set out in Annex A.

Article 6

Communication channels and language

Exchange of information and intelligence under this Frame-
1.
work Decision may take place via any existing channels for inter-
national law enforcement cooperation. The language used for the
request and the exchange of information shall be the one appli-
cable for the channel used. Member States shall, when making
their declarations in accordance with Article 2(a), also provide
the General Secretariat of the Council with details of the con-
tacts to which requests may be sent in cases of urgency. These
details may be modified at any time. The General Secretariat of
the Council shall communicate to the Member States and the
Commission the declarations received.

2.
Information or intelligence shall also be exchanged with
Europol in accordance with the Convention based on Article K.3
of the Treaty on European Union, on the establishment of a Euro-
pean Police Office (Europol Convention) (1) and with Eurojust in
accordance with the Council Decision 2002/187/JHA of 28 Feb-
ruary 2002 setting up Eurojust with a view to reinforcing the
fight against serious crime (2), insofar as the exchange refers to
an offence or criminal activity within their mandate.

In all other cases, Member States shall ensure that the infor-
4.
mation sought is communicated to the requesting competent law
enforcement authority within 14 days. If the requested compe-
tent law enforcement authority is unable to respond within 14
days, it shall provide reasons for that on the form set out in
Annex A.

(1) OJ C 316, 27.11.1995, p. 2. Convention as last amended by the Pro-
tocol drawn up on the basis of Article 43(1) of the Europol Conven-
tion (OJ C 2, 6.1.2004, p. 3).

(2) OJ L 63, 6.3.2002, p. 1. Decision as last amended by Decision

2003/659/JHA (OJ L 245, 29.9.2003, p. 44).

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Article 7

Spontaneous exchange of information and intelligence

the competent

1. Without prejudice to Article 10,
law
enforcement authorities shall, without any prior request being
necessary, provide to the competent law enforcement authori-
ties of other Member States concerned information and intelli-
gence in cases where there are factual reasons to believe that the
information and intelligence could assist in the detection, preven-
tion or investigation of offences referred to in Article 2(2) of
Framework Decision 2002/584/JHA. The modalities of such
spontaneous exchange shall be regulated by the national law of
the Member States providing the information.

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

Article 8

Data protection

Information and intelligence provided under this Frame-
3.
work Decision may be used by the competent law enforcement
authorities of the Member State to which it has been provided
solely for the purposes for which it has been supplied in accor-
dance with this Framework Decision or for preventing an imme-
diate and serious threat to public security; processing for other
purposes shall be permitted solely with the prior authorisation
of the communicating Member State and subject to the national
law of the receiving Member State. The authorisation may be
granted insofar as the national law of the communicating Mem-
ber State permits.

4. When providing information and intelligence in accor-
dance with this Framework Decision, the providing competent
law enforcement authority may pursuant to its national law
impose conditions on the use of the information and intelligence
by the receiving competent law enforcement authority. Condi-
tions may also be imposed on reporting the result of the crimi-
nal investigation or criminal intelligence operation within which
the exchange of information and intelligence has taken place.
The receiving competent law enforcement authority shall be
bound by such conditions, except in the specific case where
national law lays down that the restrictions on use be waived for
judicial authorities, legislative bodies or any other independent
body set up under the law and made responsible for supervising
the competent law enforcement authorities. In such cases, the
information and intelligence may only be used after prior con-
sultation with the communicating Member State whose interests
and opinions must be taken into account as far as possible. The
receiving Member State may, in specific cases, be requested by
the communicating Member State to give information about the
use and further processing of the transmitted information and
intelligence.

1.
Each Member State shall ensure that the established rules
on data protection provided for when using the communication
channels referred to in Article 6(1) are applied also within the
procedure on exchange of information and intelligence provided
for by this Framework Decision.

Article 9

Confidentiality

2.
The use of information and intelligence which has been
exchanged directly or bilaterally under this Framework Decision
shall be subject to the national data protection provisions of the
receiving Member State, where the information and intelligence
shall be subject to the same data protection rules as if they had
been gathered in the receiving Member State. The personal data
processed in the context of the implementation of this Frame-
work Decision shall be protected in accordance with the Council
of Europe Convention of 28 January 1981 for the Protection of
Individuals with regard to Automatic Processing of Personal Data,
and, for those Member States which have ratified it, the Addi-
tional Protocol of 8 November 2001 to that Convention, regard-
ing Supervisory Authorities and Transborder Data Flows. The
principles of Recommendation No. R(87) 15 of the Council of
Europe Regulating the Use of Personal Data in the Police Sector
should also be taken into account when law enforcement authori-
ties handle personal data obtained under this Framework
Decision.

law enforcement authorities shall

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

Article 10

Reasons to withhold information or intelligence

1. Without prejudice to Article 3(3), a competent law enforce-
ment authority may refuse to provide information or intelligence
only if there are factual reasons to assume that the provision of
the information or intelligence would:

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(a) harm essential national security interests of the requested

Article 12

Member State;

or

Relation to other instruments

(b)

jeopardise the success of a current investigation or a crimi-
nal intelligence operation or the safety of individuals;

or

1.
The provisions of Article 39(1), (2) and (3) and of Article 46
of the Convention Implementing the Schengen Agreement (1), in
as far as they relate to exchange of information and intelligence
for the purpose of conducting criminal investigations or crimi-
nal intelligence operations as provided for by this Framework
Decision, shall be replaced by the provisions of this Framework
Decision.

(c)

clearly be disproportionate or irrelevant with regard to the
purposes for which it has been requested.

2. Where the request pertains to an offence punishable by a
term of imprisonment of one year or less under the law of the
requested Member State, the competent law enforcement author-
ity may refuse to provide the requested information or
intelligence.

3.
The competent law enforcement authority shall refuse to
provide information or intelligence if the competent judicial
authority has not authorised the access and exchange of the infor-
mation requested pursuant to Article 3(4).

TITLE III

FINAL PROVISIONS

Article 11

Implementation

1. Member States shall take the necessary measures to com-
ply with the provisions of this Framework Decision before 19
December 2006.

2.
The Decision of the Schengen Executive Committee of
16 December 1998 on cross-border police cooperation in the
area of crime prevention and detection (SCH/Com-ex (98) 51 rev
3) (2) and the Decision of the Schengen Executive Committee of
28 April 1999 on the improvement of police cooperation in pre-
venting and detecting criminal offences (SCH/Com-ex (99) 18) (3)
are hereby repealed.

3. Member States may continue to apply bilateral or multilat-
eral agreements or arrangements in force when this Framework
Decision is adopted in so far as such agreements or arrangements
allow the objectives of this Framework Decision to be extended
and help to simplify or facilitate further the procedures for
exchanging information and intelligence falling within the scope
of this Framework Decision.

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

2. Member States shall transmit to the General Secretariat of
the Council and to the Commission the text of the provisions
transposing into their national laws the obligations imposed on
them under this Framework Decision. On the basis of this and
other information provided by the Member States on request, the
Commission shall, before 19 December 2006, submit a report
to the Council on the operation of this Framework Decision. The
Council shall before 19 December 2006 assess the extent to
which Member States have complied with the provisions of this
Framework Decision.

5.
The agreements and arrangements referred to in para-
graphs 3 and 4 may in no case affect relations with Member
States which are not parties to them.

(1) OJ L 239, 22.9.2000, p. 19. Convention as last amended by Regula-
tion (EC) No 1160/2005 of the European Parliament and of the Coun-
cil (OJ L 191, 22.7.2005, p. 18).

(2) OJ L 239, 22.9.2000, p. 407.
(3) OJ L 239, 22.9.2000, p. 421.

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6. Member States shall no later than 19 December 2006,
notify the Council and the Commission of the existing agree-
ments and arrangements referred to in paragraph 3 which they
wish to continue applying.

7. Member States shall also notify the Council and the Com-
mission of any new agreement or arrangement as referred to in
paragraph 4, within three months of their signature or, for those
instruments which had already been signed before the adoption
of this Framework Decision, their entry into force.

Article 13

Entry into force

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

Done at Brussels, 18 December 2006.

For the Council
The President
J.-E. ENESTAM

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INFORMATION EXCHANGE UNDER COUNCIL FRAMEWORK DECISION 2006/960/JHA FORM TO BE USED BY THE
REQUESTED MEMBER STATE IN CASE OF TRANSMISSION/DELAY/REFUSAL OF INFORMATION

ANNEX A

This form shall be used to transmit the requested information and/or intelligence, to inform the requesting authority of
the impossibility of meeting the normal deadline, of the necessity of submitting the request to a judicial authority for an
authorisation, or of the refusal to transmit the information.

This form may be used more than once during the procedure (e.g. if the request has first to be submitted to a judicial
authority and it later transpires that the execution of the request has to be refused).

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INFORMATION EXCHANGE UNDER COUNCIL FRAMEWORK DECISION 2006/960/JHA REQUEST FORM FOR
INFORMATION AND INTELLIGENCE TO BE USED BY THE REQUESTING MEMBER STATE

ANNEX B

This form shall be used when requesting information and intelligence under Framework Decision 2006/960/JHA

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