Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters
Date: 2008-12-18
Institutions: Council of the European Union
Subjects: European judicial area, area of freedom, security and justice, criminal procedure, framework decision, mutual recognition principle, proof

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COUNCIL FRAMEWORK DECISION 2008/978/JHA

of 18 December 2008

on the European evidence warrant for the purpose of obtaining objects, documents and data for use
in proceedings in criminal matters

THE COUNCIL OF THE EUROPEAN UNION,

(5)

Having regard to the Treaty on European Union, and in
particular Article 31 and Article 34(2)(b) thereof,

Having regard to the proposal of the Commission,

Having regard to the opinion of the European Parliament (1),

Whereas:

(1)

(2)

(3)

(4)

The European Union has set itself the objective of main­
taining and developing an area of freedom, security and
justice. According to the Conclusions of the Tampere
European Council of 15 and 16 October 1999, and in
particular point 33 thereof,
the principle of mutual
recognition should become the cornerstone of judicial
cooperation in both civil and criminal matters within
the Union.

On 29 November 2000 the Council, in accordance with
the Tampere Conclusions, adopted a programme of
measures to implement the principle of mutual recog­
nition in criminal matters (2). This Framework Decision
is necessary to complete measures 5 and 6 of
that
programme, which deal with the mutual recognition of
orders to obtain evidence.

Point 3.3.1 of the Hague Programme (3), included in the
the European Council of 4 and
Conclusions of
5 November 2004, emphasises the importance of the
completion of
comprehensive programme of
measures to implement the principle of mutual recog­
nition in criminal matters and highlights the introduction
of the European evidence warrant (EEW) as a matter of
priority.

the

Council Framework Decision 2002/584/JHA of 13 June
2002 on the European arrest warrant and the surrender
procedures between Member States (4) was
the first
concrete measure in the field of criminal law implemen­
ting the principle of mutual recognition.

(1) OJ C 103 E, 29.4.2004, p. 452.
(2) OJ C 12, 15.1.2001, p. 10.
(3) OJ C 53, 3.3.2005, p. 1.
(4) OJ L 190, 18.7.2002, p. 1.

Council Framework Decision 2003/577/JHA of 22 July
2003 on the execution in the European Union of orders
freezing property and evidence (5) addresses the need for
immediate mutual recognition of orders to prevent the
destruction, transformation, moving, transfer or disposal
of evidence. However, this deals only with part of the
spectrum of judicial cooperation in criminal matters with
the
to evidence, and subsequent
respect
evidence is left to mutual assistance procedures.

transfer of

It is therefore necessary further to improve judicial co­
operation by applying the principle of mutual recog­
nition to a judicial decision,
in the form of an EEW,
for the purpose of obtaining objects, documents and
data for use in proceedings in criminal matters.

The EEW may be used to obtain any objects, documents
and data for use in proceedings in criminal matters for
which it may be issued. This may include for example
objects, documents or data from a third party, from a
search of premises including the private premises of the
suspect, historical data on the use of any services
including financial
records of
interviews and hearings, and other records,
statements,
investigative techniques.
including the results of special

transactions, historical

this

this

confidence,

The principle of mutual recognition is based on a high
level of confidence between Member States. In order to
promote
Framework Decision
should contain important safeguards to protect funda­
mental rights. The EEW should therefore be issued only
by judges, courts, investigating magistrates, public prose­
cutors and certain other judicial authorities as defined by
Member States
in accordance with this Framework
Decision.

This Framework Decision is adopted under Article 31 of
the Treaty and therefore concerns judicial cooperation
within the context of that provision, aiming to assist
the collection of evidence for proceedings as defined in
this Framework Decision. Although au­
Article 5 of
thorities other than judges, courts,
investigating magis­
trates and public prosecutors may have a role in the
in accordance with
evidence
collection
Article 2(c)(ii), this Framework Decision does not cover
police, customs, border and administrative cooperation
which are regulated by other provisions of the Treaties.

such

of

(6)

(7)

(8)

(9)

(5) OJ L 196, 2.8.2003, p. 45.

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(10)

The definition of the term ‘search or seizure’ should not
be invoked for the application of any other instrument
applicable between Member States,
the
Council of Europe Convention on Mutual Assistance in
Criminal Matters of 20 April 1959, and the instruments
which supplement it.

in particular

(11) An EEW should be issued only where obtaining the
objects, documents or data sought
is necessary and
proportionate for the purpose of the criminal or other
proceedings concerned. In addition, an EEW should be
the object, documents or data
issued only where
concerned could be obtained under the national law of
the issuing State in a comparable case. The responsibility
for ensuring compliance with these conditions should lie
with the issuing authority. The grounds for non-recog­
nition or non-execution should therefore not cover these
matters.

on which it is based does not constitute an offence under
the national law of the executing State (dual criminality)
should not be possible for certain categories of offences.

(17)

It should be possible to refuse an EEW where its recog­
nition or execution in the executing State would involve
breaching an immunity or privilege in that State. There is
no common definition of what constitutes an immunity
or privilege in the European Union and the precise defi­
nition of these terms is therefore left to national
law,
which may include protections which apply to medical
and legal professions, but should not be interpreted in a
way which would run counter to the obligation to
in Article 7 of the
abolish certain grounds for refusal
Council Act of 16 October 2001 establishing,
in
accordance with Article 34 of the Treaty on European
to the Convention on Mutual
Union,
Assistance in Criminal Matters between the Member
States of the European Union (1).

the Protocol

(12)

The executing authority should use the least intrusive
means to obtain the objects, documents or data sought.

(18)

(13)

The executing authority should be obliged to execute the
EEW for electronic data not located in the executing
State only to the extent possible under its law.

It should be possible to refuse to recognise or execute an
EEW to the extent that execution would harm essential
national security interests,
jeopardise the source of the
information or involve the use of classified information
relating to specific intelligence activities. However,
it is
accepted that such ground for non-recognition or non-
execution would be applied only where, and to the extent
that, the objects, documents or data would not be used
for those reasons as evidence in a similar domestic case.

(14)

(15)

(16)

It should be possible, if the national law of the issuing
State so provides in transposing Article 12,
for the
issuing authority to ask the executing authority to
follow specified formalities and procedures in respect of
legal or administrative processes which might assist in
making the evidence sought admissible in the issuing
State, for example the official stamping of a document,
the presence of a representative from the issuing State, or
the recording of times and dates to create a chain of
evidence. Such formalities and procedures should not
encompass coercive measures.

(19)

in relation to
The specific provisions in Article 13(3)
Article 13(1)(f)(i) do not prejudice how and the extent
to which the other grounds for refusal in Article 13(1)
are implemented.

(20)

Time limits are necessary to ensure quick, effective and
consistent cooperation on obtaining objects, documents
or data for use in proceedings in criminal matters
throughout the European Union.

The execution of an EEW should, to the widest extent
possible, and without prejudice to fundamental guar­
antees under national law, be carried out in accordance
with the formalities and procedures expressly indicated
by the issuing State.

(21)

Each Member State has in its law legal remedies available
against the substantive reasons underlying decisions for
obtaining evidence,
including whether the decision is
necessary and proportionate, although those remedies
may differ between Member States and may apply at
different stages of proceedings.

To ensure the effectiveness of
judicial cooperation in
criminal matters, the possibility of refusing to recognise
or execute the EEW, as well as the grounds for post­
poning its execution, should be limited.
In particular,
refusal to execute the EEW on the grounds that the act

(22)

It is necessary to establish a mechanism to assess the
effectiveness of this Framework Decision.

(1) OJ C 326, 21.11.2001, p. 1.

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(23)

(24)

(25)

Since the objective of this Framework Decision, namely
to replace the system of mutual assistance in criminal
matters
for obtaining objects, documents or data
between Member States cannot be sufficiently achieved
by the Member States acting unilaterally and can
therefore, by reason of its scale and effects, be better
achieved at Union level,
the Council may adopt
measures in accordance with the principle of subsidiarity
as referred to in Article 2 of the Treaty on European
Union and set out in Article 5 of the Treaty establishing
In accordance with the
the European Community.
principle of proportionality, as set out
in the latter
Article, this Framework Decision does not go beyond
what is necessary in order to achieve that objective.

this

The personal data processed in the context of the im­
plementation of
Framework Decision will be
protected in accordance with the relevant instruments
including the principles of
the Council of Europe
Convention of 28 January 1981 for the protection of
individuals with regard to the automatic processing of
personal data, as well as by the additional protection
afforded by this Framework Decision in line with
Article 23 of the Convention on Mutual Assistance in
Criminal Matters between the Member States of
the
European Union of 29 May 2000 (1).

The EEW should coexist with existing mutual assistance
procedures, but such coexistence should be considered
in accordance with the Hague
transitional until,
the types of evidence-gathering excluded
Programme,
this Framework Decision are also
from the scope of
the subject of a mutual
the
recognition instrument,
adoption of which would provide a complete mutual
assistance
recognition
procedures.

replace mutual

regime

to

(28)

(29)

This Framework Decision does not prevent any Member
State from applying its constitutional rules relating to
due process,
the
press and freedom of expression in other media.

freedom of association,

freedom of

This Framework Decision does not affect the exercise of
the responsibilities incumbent upon Member States with
regard to the maintenance of
law and order and the
security in accordance with
internal
safeguarding of
Article 33 of the Treaty,

HAS ADOPTED THIS FRAMEWORK DECISION:

TITLE I

THE EUROPEAN EVIDENCE WARRANT (EEW)

Article 1

Definition of the EEW and obligation to execute it

1.
The EEW shall be a judicial decision issued by a
competent authority of a Member State with a view to
obtaining objects, documents and data from another Member
State for use in proceedings referred to in Article 5.

2. Member States shall execute any EEW on the basis of the
principle of mutual recognition and in accordance with the
provisions of this Framework Decision.

This Framework Decision shall not have the effect of
3.
fundamental rights and
modifying the obligation to respect
fundamental
legal principles as enshrined in Article 6 of the
Treaty, and any obligations incumbent on judicial authorities
in this respect shall remain unaffected.

(26) Member States are encouraged to draw up, for them­
selves and in the interest of the European Union, tables
which as far as possible show the correlation between the
provisions of this Framework Decision and the national
implementation measures and to communicate this to
the Commission together with the text of the national
law implementing this Framework Decision.

Article 2

Definitions

For the purposes of this Framework Decision:

(27)

This Framework Decision respects the fundamental rights
and observes the principles recognised by Article 6 of the
Treaty on European Union and reflected by the Charter
of Fundamental Rights of the European Union, notably
Chapter VI thereof. Nothing in this Framework Decision
may be interpreted as prohibiting refusal to execute an
EEW when there are reasons to believe, on the basis of
objective elements, that the EEW has been issued for the
purpose of prosecuting or punishing a person on
racial or ethnic origin,
sex,
account of his or her
religion,
language or
political opinions, or that the person’s position may be
prejudiced for any of these reasons.

sexual orientation, nationality,

(1) OJ C 197, 12.7.2000, p. 1.

(a)

‘issuing State’ shall mean the Member State in which the
EEW has been issued;

(b) ‘executing State’ shall mean the Member State in whose
territory the objects, documents or data are located or, in
the case of electronic data, directly accessible under the law
of the executing State;

(c)

‘issuing authority’ shall mean:

(i) a judge, a court, an investigating magistrate, a public

prosecutor; or

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(ii) any other judicial authority as defined by the issuing
State and, in the specific case, acting in its capacity as
an investigating authority in criminal proceedings with
competence to order the obtaining of evidence in cross-
border cases in accordance with national law;

(b) carry out bodily examinations or obtain bodily material or
biometric data directly from the body of any person,
including DNA samples or fingerprints;

(d) ‘executing authority’

shall mean an authority having
competence under the national law which implements this
Framework Decision to recognise or execute an EEW in
accordance with this Framework Decision;

(e)

‘search or seizure’ shall include any measures under criminal
procedure as a result of which a legal or natural person is
required, under legal compulsion, to provide or participate
in providing objects, documents or data and which, if not
complied with, may be enforceable without the consent of
such a person or it may result in a sanction.

Article 3

Designation of competent authorities

1.
Each Member State shall inform the General Secretariat of
the Council which authority or authorities, under its national
law, are competent pursuant to Article 2(c) and (d) when that
Member State is the issuing State or the executing State.

2. Member States wishing to make use of the possibility to
designate a central authority or authorities in accordance with
Article 8(2) shall communicate to the General Secretariat of the
Council information relating to the designated central author­
ity(ies). These indications shall be binding upon the authorities
of the issuing State.

3.
The General Secretariat of the Council shall make the
information received available to all Member States and the
Commission.

Article 4

Scope of the EEW

1. Without prejudice to paragraph 2 of this Article, the EEW
may be issued under the conditions referred to in Article 7 with
a view to obtaining in the executing State objects, documents or
data needed in the issuing State for the purpose of proceedings
referred to in Article 5. The EEW shall cover the objects,
documents and data specified therein.

(c) obtain information in real time such as through the inter­
ception of communications, covert surveillance or moni­
toring of bank accounts;

(d) conduct analysis of existing objects, documents or data; and

(e) obtain communications data retained by providers of a
publicly available electronic communications service or a
public communications network.

3.
Exchange of information on criminal convictions extracted
from the criminal record shall be carried out in accordance with
Council Decision 2005/876/JHA of 21 November 2005 on the
exchange of information extracted from the criminal record (1)
and other relevant instruments.

4.
The EEW may be issued with a view to obtaining objects,
documents or data falling within paragraph 2, where the
objects, documents or data are already in the possession of
the executing authority before the EEW is issued.

the EEW shall,

Notwithstanding paragraph 1,

so
5.
indicated by the issuing authority, also cover any other object,
document or data, which the executing authority discovers
during the
further
enquiries considers to be relevant to the proceedings for the
purpose of which the EEW was issued.

the EEW and without

execution of

if

Notwithstanding paragraph 2, the EEW may, if requested
6.
by the issuing authority, also cover taking statements from
persons present during the execution of the EEW and directly
related to the subject of the EEW. The relevant rules of the
executing State applicable to national cases
shall also be
applicable in respect of the taking of such statements.

Article 5

Type of proceedings for which the EEW may be issued

The EEW shall not be issued for the purpose of requiring

2.
the executing authority to:

The EEW may be issued:

(a) conduct interviews, take statements or initiate other types of
hearings involving suspects, witnesses, experts or any other
party;

(a) with respect to criminal proceedings brought by, or to be
brought before, a judicial authority in respect of a criminal
offence under the national law of the issuing State;

(1) OJ L 322, 9.12.2005, p. 33.

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(b) in proceedings brought by administrative authorities in
respect of acts which are punishable under the national
law of the issuing State by virtue of being infringements
of the rules of law, and where the decision may give rise to
proceedings before a court having jurisdiction in particular
in criminal matters;

(b) the objects, documents or data can be obtained under the
law of the issuing State in a comparable case if they were
available on the territory of the issuing State, even though
different procedural measures might be used.

(c)

in proceedings brought by judicial authorities in respect of
acts which are punishable under the national
law of the
issuing State by virtue of being infringements of the rules
of law, and where the decision may give rise to further
proceedings before a court having jurisdiction in particular
in criminal matters; and

(d) in connection with proceedings referred to in points (a), (b)
and (c) which relate to offences or infringements for which
a legal person may be held liable or punished in the issuing
State.

Article 6

Content and form of the EEW

1.
The EEW set out in the form provided for in the Annex
shall be completed, signed, and its contents certified as accurate,
by the issuing authority.

2.
The EEW shall be written in, or translated by the issuing
State into, the official language or one of the official languages
of the executing State.

Any Member State may, when this Framework Decision is
adopted or at a later date, state in a declaration deposited
with the General Secretariat of the Council that it will accept
EEWs or a translation of an EEW in one or more other official
languages of the institutions of the Union.

TITLE II

PROCEDURES AND SAFEGUARDS FOR THE ISSUING STATE

Article 7

Conditions for issuing the EEW

Each Member State shall take the necessary measures to ensure
that
the EEW is issued only when the issuing authority is
satisfied that the following conditions have been met:

These conditions shall be assessed only in the issuing State in
each case.

Article 8

Transmission of the EEW

1.
The EEW may be transmitted to the competent authority
of a Member State in which the competent authority of the
issuing State has reasonable grounds to believe that relevant
objects, documents or data are located or, in the case of elec­
tronic data, directly accessible under the law of the executing
State. It shall be transmitted without delay from the issuing
authority to the executing authority by any means capable of
producing a written record under conditions allowing the
executing State to establish authenticity. All
further official
communications shall be made directly between the issuing
authority and the executing authority.

2.
Each Member State may designate a central authority or,
when its legal system so provides, more than one central
authority to assist the competent authorities. A Member State
may, if necessary as a result of the organisation of its internal
judicial system, make its central authority(ies) responsible for
the administrative transmission and reception of the EEW as
well as for other official correspondence relating thereto.

If the issuing authority so wishes, transmission may be
the

3.
effected via the secure telecommunications
European Judicial Network.

system of

If

the

executing authority is unknown,

4.
authority shall make all necessary inquiries,
European Judicial Network contact points,
the information from the executing State.

the

issuing
including via the
in order to obtain

5. When the authority in the executing State which receives
the EEW has no jurisdiction to recognise it and to take the
ex officio,
necessary measures
transmit the EEW to the executing authority and so inform
the issuing authority.

execution,

shall,

for

its

it

(a) obtaining the objects, documents or data sought is necessary
and proportionate for the purpose of proceedings referred
to in Article 5;

6.
All difficulties concerning the transmission or the authen­
ticity of any document needed for the execution of the EEW
shall be dealt with by direct contacts between the issuing and
executing authorities involved, or, where appropriate, with the
involvement of the central authorities of the Member States.

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Article 9

EEW related to an earlier EEW or a freezing order

the

1. Where
issuing authority issues an EEW which
supplements an earlier EEW or which is a follow-up to a
Framework Decision
freezing
order
2003/577/JHA,
in the EEW in
fact
accordance with the form provided for in the Annex.

under
indicate this

transmitted

shall

it

shall

required and

forthwith take

the
formality being
necessary measures for its execution in the same way as an
authority of
the executing State would obtain the objects,
documents or data, unless that authority decides to invoke
the grounds for non-recognition or non-execution
one of
provided for in Article 13 or one of the grounds for post­
ponement provided for in Article 16.

2. Where,
in accordance with the provisions in force, the
issuing authority participates in the execution of the EEW in
the executing State,
it may without prejudice to declarations
made under Article 3(2) address an EEW which supplements
the earlier EEW directly to the competent executing authority
while present in that State.

The executing State shall be responsible for choosing the
2.
measures which under its national law will ensure the provision
of the objects, documents or data sought by an EEW and for
deciding whether it is necessary to use coercive measures to
provide that assistance. Any measures rendered necessary by
the EEW shall be taken in accordance with the applicable
procedural rules of the executing State.

Article 10

3.

Each Member State shall ensure:

Conditions for the use of personal data

Personal data obtained under this Framework Decision

1.
may be used by the issuing State for the purpose of:

(i) that any measures which would be available in a similar
domestic case in the executing State are also available for
the purpose of the execution of the EEW;

(a) proceedings for which the EEW may be issued;

and

(b) other judicial and administrative proceedings directly related

to the proceedings referred to under point (a);

(c) preventing an immediate and serious

threat

to public

security.

For any purpose other than those set out in points (a), (b) and
(c), personal data obtained under this Framework Decision may
be used only with the prior consent of the executing State,
unless the issuing State has obtained the consent of the data
subject.

(ii) that measures, including search or seizure, are available for
the purpose of the execution of the EEW where it is related
to any of the offences as set out in Article 14(2).

4.
If the issuing authority is not a judge, a court, an inves­
tigating magistrate or a public prosecutor and the EEW has not
been validated by one of those authorities in the issuing State,
the executing authority may, in the specific case, decide that no
search or seizure may be carried out for the purpose of the
execution of
the executing
the EEW. Before so deciding,
authority shall consult the competent authority of the issuing
State.

2.
In the circumstances of the particular case, the executing
State may require the Member State to which the personal data
have been transferred to give information on the use made of
the data.

This Article shall not apply to personal data obtained by a
3.
Member State under this Framework Decision and originating
from that Member State.

5.
A Member State may, at the time of adoption of this
Framework Decision, make a declaration or subsequent notifi­
cation to the General Secretariat of the Council requiring such
validation in all cases where the issuing authority is not a judge,
a court, an investigating magistrate or a public prosecutor and
where the measures necessary to execute the EEW would have
to be ordered or supervised by a judge, a court, an investigating
magistrate or a public prosecutor under the law of the executing
State in a similar domestic case.

TITLE III

Article 12

PROCEDURES AND SAFEGUARDS FOR THE EXECUTING
STATE

Article 11

Recognition and execution

1.
The executing authority shall recognise an EEW, trans­
mitted in accordance with Article 8, without any further

Formalities to be followed in the executing State

The executing authority shall comply with the formalities and
procedures expressly indicated by the issuing authority unless
otherwise provided in this Framework Decision and provided
that such formalities and procedures are not contrary to the
fundamental principles of
the executing State. This
law of
Article shall not create an obligation to take coercive measures.

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Article 13

Grounds for non-recognition or non-execution

Recognition or execution of the EEW may be refused in

1.
the executing State:

(a)

if its execution would infringe the ne bis in idem principle;

(b) if, in cases referred to in Article 14(3), the EEW relates to
acts which would not constitute an offence under the law of
the executing State;

(c)

if it is not possible to execute the EEW by any of the
executing authority in the
measures available
specific case in accordance with Article 11(3);

to the

investigating magistrate or public prosecutor in the executing
State. Where the EEW has been issued by a judicial authority
referred to in Article 2(c)(ii), and the EEW has not been
validated by a judge, court,
investigating magistrate or public
prosecutor in the issuing State, the decision may also be taken
by any other judicial authority competent under the law of the
executing State if provided for under that law.

territory of

Any decision under paragraph 1(f)(i)
committed partly within the

in relation to
3.
offences
the
executing State, or in a place equivalent to its territory, shall
be taken by the competent authorities referred to in paragraph
2 in exceptional circumstances and on a case-by-case basis,
having regard to the specific circumstances of the case, and in
particular to whether a major or essential part of the conduct in
question has taken place in the issuing State, whether the EEW
relates to an act which is not a criminal offence under the law
of the executing State and whether it would be necessary to
carry out a search and seizure for the execution of the EEW.

(d)

if there is an immunity or privilege under the law of the
executing State which makes it impossible to execute the
EEW;

4. Where a competent authority considers using the ground
for refusal under paragraph 1(f)(i),
it shall consult Eurojust
before taking the decision.

(e)

if, in one of the cases referred to in Article 11(4) or (5), the
EEW has not been validated;

Where a competent authority is not
in agreement with
Eurojust’s opinion, Member States shall ensure that it give the
reasons for its decision and that the Council be informed.

(f)

if the EEW relates to criminal offences which:

(i) under the law of the executing State are regarded as
having been committed wholly or
for a major or
essential part within its territory, or in a place equivalent
to its territory; or

(ii) were committed outside the territory of

the issuing
the executing State does not
State, and the law of
permit
legal proceedings to be taken in respect of
such offences where they are committed outside that
State’s territory;

(g)

in a specific case,

its execution would harm essential
if,
national security interests, jeopardise the source of the infor­
mation or involve the use of classified information relating
to specific intelligence activities; or

(h) if the form provided for in the Annex is incomplete or
manifestly incorrect and has not been completed or
corrected within a
the
executing authority.

reasonable deadline

set by

5.
In cases referred to in paragraph 1(a), (g) and (h), before
deciding not to recognise or not to execute an EEW, either
totally or in part, the competent authority in the executing
the competent authority in the issuing
State shall consult
State, by any appropriate means, and shall, where appropriate,
ask it to supply any necessary information without delay.

Article 14

Double criminality

The recognition or execution of the EEW shall not be
is

1.
subject
necessary to carry out a search or seizure.

to verification of double criminality unless

it

the EEW,

the following offences,

If it is necessary to carry out a search or seizure for the
2.
execution of
they are
punishable in the issuing State by a custodial sentence or a
detention order for a maximum period of at least three years
and as they are defined by the law of that State, shall not be
subject to verification of double criminality under any circum­
stances:

if

— participation in a criminal organisation,

2.
The decision to refuse the execution or recognition of the
EEW pursuant to paragraph 1 shall be taken by a judge, court,

— terrorism,

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— trafficking in human beings,

— arson,

— sexual exploitation of children and child pornography,

— crimes within the jurisdiction of the International Criminal

— illicit

trafficking

in narcotic drugs

and psychotropic

substances,

— unlawful seizure of aircraft/ships,

Court,

— illicit trafficking in weapons, munitions and explosives,

— sabotage.

— corruption,

— fraud, including that affecting the financial interests of the
the
European Communities within the meaning of
the
Convention of 26 July 1995 on the protection of
European Communities’ financial interests (1),

3.
If the EEW is not related to any of the offences set out in
paragraph 2 and its execution would require a search or seizure,
recognition or execution of the EEW may be subject to the
condition of double criminality.

— laundering of the proceeds of crime,

— counterfeiting currency, including of the euro,

— computer-related crime,

— environmental

in
including
endangered animal species and in endangered plant species
and varieties,

trafficking

crime,

illicit

— facilitation of unauthorised entry and residence,

— murder, grievous bodily injury,

— illicit trade in human organs and tissue,

— kidnapping, illegal restraint and hostage-taking,

— racism and xenophobia,

— organised or armed robbery,

— illicit trafficking in cultural goods,

including antiques and

works of art,

— swindling,

— racketeering and extortion,

— counterfeiting and piracy of products,

— forgery of administrative documents and trafficking therein,

— forgery of means of payment,

— illicit trafficking in hormonal substances and other growth

promoters,

— illicit trafficking in nuclear or radioactive materials,

— trafficking in stolen vehicles,

— rape,

(1) OJ C 316, 27.11.1995, p. 49.

In relation to offences in connection with taxes or duties,
customs and exchange, recognition or execution may not be
opposed on the ground that the law of the executing State does
not impose the same kind of tax or duty or does not contain a
tax, duty, customs and exchange regulation of the same kind as
the law of the issuing State.

4.
The condition of double criminality set out in paragraph 3
shall be further examined by the Council by 19 January 2014 in
the light of any information transmitted to the Council.

The Council may decide, acting unanimously, after consul­
5.
tation of the European Parliament under the conditions laid
down in Article 39(1) of the Treaty, to add other categories
of offences to the list contained in paragraph 2.

Article 15

Deadlines for recognition, execution and transfer

1.
Each Member State shall take the necessary measures to
ensure compliance with the deadlines provided for in this
Article. Where the issuing authority has indicated in the EEW
that, due to procedural deadlines or other particularly urgent
circumstances, a shorter deadline is necessary, the executing
authority shall
this
requirement.

full account as possible of

take as

2.
Any decision to refuse recognition or execution shall be
taken as soon as possible and, without prejudice to paragraph 4,
no later than 30 days after the receipt of the EEW by the
competent executing authority.

3.
Unless either grounds for postponement under Article 16
exist or the executing authority has the objects, documents or
data sought already in its possession, the executing authority
shall take possession of the objects, documents or data without
delay and, without prejudice to paragraph 4, no later than 60
days after the receipt of the EEW by the competent executing
authority.

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is not practicable in a specific case for the
4. When it
competent executing authority to meet the deadline set out in
paragraphs 2 or 3 respectively, it shall without delay inform the
competent authority of the issuing State by any means, giving
the reasons for the delay and the estimated time needed for the
action to be taken.

authority referred to in Article 2(c)(ii), and the EEW has not
been validated by a judge, court,
investigating magistrate or
public prosecutor in the issuing State, the decision may also
be taken by any other judicial authority competent under the
law of the executing State if provided for under that law.

Unless a legal remedy is pending in accordance with
5.
Article 18 or grounds for postponement under Article 16
exist, the executing State shall without undue delay transfer
the objects, documents or data obtained under the EEW to
the issuing State.

4.
As soon as the ground for postponement has ceased to
exist, the executing authority shall forthwith take the necessary
measures for the execution of the EEW and inform the relevant
competent authority in the issuing State thereof by any means
capable of producing a written record.

6. When transferring the objects, documents or data
it
obtained,
requires them to be returned to the executing State as soon
as they are no longer required by the issuing State.

the executing authority shall

indicate whether

Article 17

Obligation to inform

The executing authority shall inform the issuing authority:

Article 16

1.

immediately by any means:

Grounds for postponement of recognition or execution

The recognition of the EEW may be postponed in the

1.
executing State where:

(a)

the form provided for in the Annex is incomplete or mani­
festly incorrect, until such time as the form has been
completed or corrected; or

(a)

if the executing authority, in the course of the execution
of the EEW, considers without further enquiries that it
may be appropriate to undertake investigative measures
not initially foreseen, or which could not be specified
to enable the
when the EEW was issued,
issuing authority to take further action in the specific
case;

in order

(b) in one of the cases referred to in Article 11(4) or (5), the
EEW has not been validated, until such time as the vali­
dation has been given.

(b) if the competent authority of the executing State estab­
the EEW was not executed in a manner

lishes that
consistent with the law of the executing State;

The execution of

2.
executing State where:

the EEW may be postponed in the

(c)

if the executing authority establishes that, in the specific
case, it cannot comply with formalities and procedures
expressly indicated by the issuing authority in accordance
with Article 12.

(a)

its execution might prejudice an ongoing criminal investi­
gation or prosecution, until such time as the executing State
deems reasonable; or

Upon request by the issuing authority, the information shall
be confirmed without delay by any means capable of
producing a written record;

(b) the objects, documents or data concerned are already being
used in other proceedings until such time as they are no
longer required for this purpose.

2. without delay by any means capable of producing a written

record:

3.
The decision to postpone recognition or execution of the
EEW pursuant to paragraphs 1 or 2 shall be taken by a judge,
court,
in the
investigating magistrate or public prosecutor
executing State. Where the EEW has been issued by a judicial

(a) of

the transmission of

authority responsible for its execution,
with Article 8(5);

the EEW to the competent
in accordance

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(b) of any decision taken in accordance with Article 15(2) to
refuse recognition or execution of the EEW, together
with the reasons for the decision;

The executing State may suspend the transfer of objects,
6.
documents and data pending the outcome of a legal remedy.

(c) of the postponement of the execution or recognition of
if possible, the

the EEW, the underlying reasons and,
expected duration of the postponement;

(d) of

the impossibility to execute the EEW because the
objects, documents or data have disappeared, been
destroyed or cannot be found in the location indicated
in the EEW or because the location of
the objects,
documents or data has not been indicated in a suf­
ficiently precise manner, even after consultation with
the competent authority of the issuing State.

Article 18

Legal remedies

States

in place

shall put

the necessary
1. Member
arrangements to ensure that any interested party,
including
bona fide third parties, have legal remedies against the recog­
nition and execution of an EEW pursuant to Article 11, in order
to preserve their legitimate interests. Member States may limit
the legal remedies provided for in this paragraph to cases in
which the EEW is executed using coercive measures. The action
in the executing State in
shall be brought before a court
accordance with the law of that State.

The substantive reasons for issuing the EEW,

including
2.
whether the conditions established in Article 7 have been
met, may be challenged only in an action brought before a
court in the issuing State. The issuing State shall ensure the
in a
applicability of
comparable domestic case.

remedies which are available

legal

3. Member States shall ensure that any time limits for
bringing an action mentioned in paragraphs 1 and 2 are
applied in a way that guarantees the possibility of an effective
legal remedy for interested parties.

4.
If the action is brought in the executing State, the judicial
authority of the issuing State shall be informed thereof and of
the grounds of the action, so that it can submit the arguments
that it deems necessary. It shall be informed of the outcome of
the action.

Article 19

Reimbursement

1. Without prejudice to Article 18(2), where the executing
State under its law is responsible for injury caused to one of the
parties mentioned in Article 18 by the execution of an EEW
transmitted to it pursuant to Article 8, the issuing State shall
reimburse to the executing State any sums paid in damages by
virtue of that responsibility to the said party except if, and to
the extent that, the injury or any part of it is due to the conduct
of the executing State.

2.
Paragraph 1 shall be without prejudice to the national law
of the Member States on claims by natural or legal persons for
compensation of damage.

TITLE IV

FINAL PROVISIONS

Article 20

Monitoring the effectiveness of this Framework Decision

1.
A Member State which has experienced repeated problems
which it had not been possible to solve by consultation on the
part of another Member State in the execution of EEWs shall
inform the Council in order to assist in its evaluation of the
implementation of this Framework Decision at Member State
level.

The Council shall conduct a review, in particular, of the
this Framework

the provisions of

2.
practical application of
Decision by Member States.

Article 21

Relation to other legal instruments

Subject to paragraph 2 and without prejudice to the appli­
1.
cation of existing legal
in relations between
instruments
Member States and third countries, this Framework Decision
shall
in relations
between the Member States in so far as these instruments
concern mutual assistance requests for evidence falling within
the scope of this Framework Decision.

coexist with existing legal

instruments

The issuing and executing authorities

take the
5.
necessary measures to facilitate the exercise of the right
to
bring actions mentioned in paragraphs 1 and 2, in particular
by providing interested parties with relevant and adequate infor­
mation.

shall

issuing au­
2. Without prejudice to paragraphs 3 and 4,
thorities shall
the objects,
rely on the EEW when all of
documents or data required from the executing State fall
within the scope of this Framework Decision.

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Issuing authorities may use mutual

legal assistance to
3.
obtain objects, documents or data falling within the scope of
this Framework Decision if they form part of a wider request
for assistance or if the issuing authority considers in the specific
case that this would facilitate cooperation with the executing
State.

computer-related crime, racism and xenophobia, sabotage, rack­
eteering and extortion or swindling if it is necessary to carry out
a search or seizure for the execution of the EEW, except where
the issuing authority has declared that the offence concerned
under the law of the issuing State falls within the scope of
criteria indicated in the declaration.

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

Should Germany wish to make use of this paragraph, it shall
notify a declaration to that effect to the Secretary-General of the
Council upon the adoption of this Framework Decision. The
declaration shall be published in the Official
the
European Union.

Journal of

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

The Commission shall, by 19 January 2012, submit a
5.
to the European Parliament and to the Council,
report
assessing the extent to which the Member States have taken
to comply with this
the necessary measures
in order
Framework Decision, accompanied,
if necessary, by legislative
proposals.

States

6. Member
and the
Commission of any new agreement or arrangement referred
to in paragraph 4, within three months of signing it.

the Council

shall notify

The General Secretariat of

shall notify
6.
the
the Commission and
Member
declarations made pursuant to Articles 6 and 11 and to this
Article.

the Council

Eurojust of

States,

Article 22

Transitional arrangements

Mutual assistance requests received before 19 January 2011
shall continue to be governed by existing instruments relating
to mutual assistance in criminal matters.

Article 23

Implementation

1. Member States
to
comply with the provisions of this Framework Decision by
19 January 2011.

take the necessary measures

shall

2.
By 19 January 2011, Member States shall transmit to the
General Secretariat of the Council and to the Commission the
law the
text of the provisions transposing into their national
obligations imposed on them under this Framework Decision.

3.
Any Member State that intends to transpose the ground
for refusal set out in Article 13(1)(f) into its national law shall
notify the Secretary-General of
thereof upon
adoption of this Framework Decision by making a declaration.

the Council

Article 24

Review

Each Member State shall each year before 1 May inform
1.
the Council and the Commission of any difficulties encountered
by it during the previous calendar year concerning the
execution of EEWs in relation to Article 13(1).

2.
At the beginning of every calendar year, Germany shall
inform the Council and the Commission of the number of cases
in which the ground for non-recognition or non-execution
referred to in Article 23(4) was applied in the previous year.

No later than 19 January 2014, the Commission shall
3.
establish a report on the basis of the information received in
accordance with paragraphs 1 and 2, accompanied by any
initiatives
the
report the Council shall review this Framework Decision with
a view to considering whether the following provisions should
be repealed or modified:

it may deem appropriate. On the basis of

— Article 13(1) and (3), and

4.
Germany may by a declaration reserve its right to make
the execution of an EEW subject to verification of double crim­
inality in cases referred to in Article 14(2) relating to terrorism,

— Article 23(4).

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Article 25

Entry into force
This Framework Decision shall enter into force on the 20th day following its publication in the Official
Journal of the European Union.

Done at Brussels, 18 December 2008.

For the Council
The President

M. BARNIER

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ANNEX

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DECLARATION OF THE FEDERAL REPUBLIC OF GERMANY

Where the execution of a European Evidence Warrant under Council Framework Decision 2008/978/JHA of
18 December 2008 on the European Evidence Warrant for the purpose of obtaining objects, documents
and data for use in proceedings in criminal matters (1) requires search or seizure, the Federal Republic of
Germany reserves the right under Article 23(4) of that Framework Decision to make execution subject to
verification of double criminality in the case of the offences relating to terrorism, computer-related crime,
racism and xenophobia, sabotage, racketeering and extortion and swindling listed in Article 14(2) of that
Framework Decision, unless the issuing authority has stated that the offence in question meets the following
criteria under the law of the issuing State:

Terrorism:

— An act which constitutes an offence within the meaning of and as defined in the International
Convention for the Suppression of Acts of Nuclear Terrorism of 13 April 2005, the International
Convention for the Suppression of the Financing of Terrorism of 9 December 1999 or within the
meaning of one of the treaties listed in the annex thereto, or

— an act to be criminalised under the Council Framework Decision 2002/475/JHA of 13 June 2002 on

combating terrorism (2), or

— an act to be prohibited under United Nations Security Council Resolution 1624 (2005) of 14 September

2005.

Computer-related crime:

Offences as defined in the Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks
against information systems (3), or in Title 1 of Section I of the European Convention on Cybercrime of
23 November 2001.

Racism and xenophobia:

Offences as defined in the Council Joint Action 96/443/JHA of 15 July 1996 concerning action to combat
racism and xenophobia (4).

Sabotage:

Acts unlawfully and intentionally causing large-scale damage to a government facility, another public facility,
a public transport system or other infrastructure which entails or is likely to entail considerable economic
loss.

Racketeering and extortion:

Demanding by threats, use of force or by any other form of intimidation goods, promises, revenues or the
signing of any document containing or resulting in an obligation, alienation or discharge.

Swindling:

Using false names or claiming a false position or using fraudulent means to abuse people’s trust or good
faith with the aim of appropriating something belonging to another person.

(1) OJ L 350, 30.12.2008, p. 72.
(2) OJ L 164, 22.6.2002, p. 3.
(3) OJ L 69, 16.3.2005, p. 67.
(4) OJ L 185, 24.7.1996, p. 5.