CELEX: 52014PC0685
Language: en
Date: 2014-10-30 00:00:00
Title: Recommendation for a COUNCIL DECISION concerning the accession of Croatia to the Convention of 29 May 2000, established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union and its Protocol of 16 October 2001

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		52014PC0685
		
			Recommendation for a COUNCIL DECISION concerning the accession of Croatia to the Convention of 29 May 2000, established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union and its Protocol of 16 October 2001 /* COM/2014/0685 final - 2014/0321 (NLE) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
The Act of 2012 concerning the conditions
of accession of the Republic of Croatia to the European Union[1] simplified its
accession to the conventions and protocols concluded by the Member States on
the basis of Article 34 of the Treaty on European Union
(ex Article K.3 TEU). It is no longer necessary to negotiate and
conclude specific accession protocols (which would have to be ratified by
the 28 Member States): Article 3(4) and (5) of the Act of Accession
simply state that Croatia accedes to the conventions and protocols by virtue of
the Act.
Article 3(4) and (5) of the Act of
Accession accordingly state that the Council will take a decision determining
the date on which these conventions will enter into force in relation to
Croatia and making all the adjustments required by reason of the accession of
this new Member State to these conventions (including at the very least the
adoption of the conventions in the Croatian language so that this version can
be ‘equally authentic’). The Council will act on a recommendation by the
Commission, after consulting the European Parliament.
Annex I to the Act of Accession lists the
six conventions and protocols concerned in the area of justice and home
affairs. 
The list includes the Convention of 29 May
2000, established by the Council in accordance with Article 34 of the Treaty on
European Union, on Mutual Assistance in Criminal Matters between the Member
States of the European Union, and its Protocol of 16 October 2001, established
by the Council in accordance with Article 34 of the Treaty on European Union,
to the Convention on Mutual Assistance in Criminal Matters between the Member
States of the European Union. 
This Commission Recommendation for a
Council Decision is intended to make the adjustments required by reason of the
accession of Croatia to the aforementioned Convention and Protocol, in
accordance with Article 3(4) and (5) of the Act of Accession.
2014/0321 (NLE)
Recommendation for a
COUNCIL DECISION
concerning the accession of Croatia to the
Convention of 29 May 2000, established by the Council in accordance with
Article 34 of the Treaty on European Union, on Mutual Assistance in
Criminal Matters between the Member States of the European Union and its
Protocol of 16 October 2001
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European
Union,
Having regard to the Act of Accession of
Croatia, and in particular Article 3(4) and (5) thereof, 
Having regard to the recommendation from
the Commission[2],
Having regard to the opinion of the
European Parliament[3],
Whereas:
(1)       The Convention established by the Council in accordance
with Article 34 of the Treaty on European Union on Mutual Assistance in
Criminal Matters between the Member States of the European Union (‘the
Mutual Assistance Convention’) was signed at Brussels on 29 May 2000 and
entered into force on 23 August 2005. 
(2)       The Mutual Assistance
Convention was complemented by the Mutual Assistance Protocol of
16 October 2001, established by the Council in accordance with Article 34
of the Treaty on European Union (‘the Mutual Assistance Protocol’), which
entered into force on 5 October 2005.
(3)       Article 3(4) of the Act of
Accession provides for the accession of Croatia to the conventions and
protocols concluded between the Member States, listed in Annex I to the Act.
These conventions and protocols will enter into force in relation to Croatia on the date determined by the Council. The list includes the
Mutual Assistance Convention and the Mutual Assistance Protocol. 
(4)       In accordance with Article
3(5) of the Act of Accession the Council will make all the adjustments required
by reason of Croatia's accession to this Convention and Protocol,
HAS ADOPTED THIS DECISION:
Article 1
The Mutual Assistance Convention shall
enter into force on [the first day of the first month following the date of
adoption of this Decision] between Croatia and the Member States for which the Convention is in force at that date. 
The Mutual Assistance Protocol shall enter
into force on [the first day of the first month following the date of
adoption of this Decision] between Croatia and the Member States for which the Protocol is in force at that date. 
Article 2
The texts of the Mutual Assistance
Convention and the Mutual Assistance Protocol drawn up in the Croatian
language, which are annexed to this Decision, shall be authentic under the same
conditions as the other texts of the said Convention and the said Protocol.
Article 3
This Decision
shall take effect on the twentieth day following that of its publication in the
Official Journal of the European Union. 
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
[1]               OJ L 112, 24.4.2012, p. 10.
[2]               OJ C […], […], p. […].
[3]               OJ C […], […], p. […].
CONVENTION
established by the
Council in accordance with Article 34 of the Treaty
on European Union, on Mutual Assistance in Criminal Matters between the Member
States of the European Union
THE HIGH CONTRACTING PARTIES to this
Convention, Member States of the European Union,
REFERRING to the Council Act establishing the
Convention on Mutual Assistance in Criminal Matters between the Member States
of the European Union,
WISHING to improve judicial cooperation in
criminal matters between the Member States of the Union, without prejudice to
the rules protecting individual freedom,
POINTING OUT the Member States' common
interest in ensuring that mutual assistance between the Member States is
provided in a fast and efficient manner compatible with the basic principles of
their national law, and in compliance with the individual rights and principles
of the European Convention for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950,
EXPRESSING their confidence in the structure
and functioning of their legal systems and in the ability of all Member States
to guarantee a fair trial,
RESOLVED to supplement the European Convention
on Mutual Assistance in Criminal Matters of 20 April 1959 and
other Conventions in force in this area, by a Convention of the European Union,
RECOGNISING that the provisions of those
Conventions remain applicable for all matters not covered by this Convention,
CONSIDERING that the Member States attach
importance to strengthening judicial cooperation, while continuing to apply the
principle of proportionality,
RECALLING that this Convention regulates
mutual assistance in criminal matters, based on the principles of the
Convention of 20 April 1959,
WHEREAS, however, Article 20 of this
Convention covers certain specific situations concerning interception of
telecommunications, without having any implications with regard to other such
situations outside the scope of the Convention,
WHEREAS
the general principles of international law apply in situations which are not
covered by this Convention,
RECOGNISING that this Convention does not
affect the exercise of the responsibilities incumbent upon Member States with
regard do the maintenance of law and order and the safeguarding of internal
security, and that it is a matter for each Member State to determine, in
accordance with Article 33 of the Treaty on European Union, under which
conditions it will maintain law and order and safeguard internal security,
HAVE AGREED ON
THE FOLLOWING PROVISIONS:
TITLE I
GENERAL PROVISIONS
Article 1
Relationship to other conventions on mutual assistance
1. The
purpose of this Convention is to supplement the provisions and facilitate the
application between the
Member States of the European Union, of:
(a)    
the European Convention on
Mutual Assistance in Criminal Matters of 20 April 1959, hereinafter
referred to as the 'European Mutual Assistance Convention';
(b)    
the Additional Protocol of
17 March 1978 to the European Mutual Assistance Convention;
(c)    
the provisions on mutual
assistance in criminal matters of the Convention of 19 June 1990 implementing
the Schengen Agreement of 14 June 1985 on
the gradual abolition of checks at common borders (hereinafter referred to as
the 'Schengen Implementation Convention') which are not repealed pursuant to Article
2(2);
(d)    
Chapter 2 of
the Treaty on Extradition and Mutual Assistance in Criminal Matters between the
Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the
Netherlands of 27 June 1962,
as amended by the Protocol of 11 May
1974, (hereinafter referred to as the 'Benelux Treaty'), in the
context of relations between the Member States of the Benelux Economic Union.
2. This Convention shall not affect the
application of more favourable provisions in bilateral or multilateral
agreements between Member States or, as provided for in Article 26(4) of
the European Mutual Assistance Convention, arrangements in the field of mutual
assistance in criminal matters agreed on the basis of uniform legislation or of
a special system providing for the reciprocal application of measures of mutual
assistance in their respective territories.
Article 2
Provisions relating to
the Schengen acquis
1.            
The provisions of Articles
3, 5, 6, 7, 12 and 23
and, to the extent relevant to
Article 12, of Articles 15
and 16, to the
extent relevant to the Articles referred to, of Article 1 constitute
measures amending or building upon the provisions referred to in Annex A to the
Agreement concluded by the Council of the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the latters' association with the
implementation, application and development of the Schengen acquis (1).
2.            
The provisions of Articles
49(a), 52, 53 and 73
of the Schengen Implementation
Convention are hereby repealed.
Article 3
Proceedings in
connection with which mutual assistance is also to be afforded
1. Mutual assistance shall also be afforded in
proceedings brought by the administrative authorities in respect of acts which
are punishable under the national law of the requesting or the requested Member
State, or both, 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.
2. Mutual assistance shall also be afforded in
connection with criminal proceedings and proceedings as referred to in
paragraph 1 which relate to offences or infringements for which a legal person
may be held liable in the requesting Member State.
(1) OJ L 176, 10.7.1999, p. 36.

Article 4
Formalities and procedures in the execution of requests for mutual
assistance
1. Where
mutual assistance is afforded, the requested Member State shall comply with the
formalities and procedures expressly indicated by the requesting Member State,
unless otherwise provided in this Convention and provided that such formalities
and procedures are not contrary to the fundamental principles of law in the
requested Member State.
2.            
The requested Member State shall execute the request for assistance as soon as possible, taking as full
account as possible of the procedural deadlines and other deadlines indicated
by the requesting Member State. The requesting Member State shall explain the
reasons for the deadline.
3.            
If the request cannot, or
cannot fully, be executed in accordance with the requirements set by the
requesting Member State, the authorities of the requested Member State shall
promptly inform the authorities of the requesting Member State and indicate the
conditions under which it might be possible to execute the request. The
authorities of the requesting and the requested Member State may subsequently
agree on further action to be taken concerning the request, where necessary by
making such action subject to the fulfilment of those conditions.
4.            
If it is foreseeable that the
deadline set by the requesting Member State for executing its request cannot be
met, and if the reasons referred to in paragraph 2, second
sentence, indicate explicitly that any delay will lead to substantial
impairment of the proceedings being conducted in the requesting Member State,
the authorities of the requested Member State shall promptly indicate the
estimated time needed for execution of the request. The authorities of the
requesting Member State shall promptly indicate whether the request is to be
upheld nonetheless. The authorities of the requesting and requested Member
States may subsequently agree on further action to be taken concerning the
request.
Article 5
Sending and service of
procedural documents
1.            
Each Member State shall send procedural documents intended for persons who are in the territory of another Member State to them directly by post.
2.            
Procedural documents may
be sent via the competent authorities of the requested Member State only if:
(a)    
the address of the person
for whom the document is intended is unknown or uncertain; or
(b)     the relevant procedural law of the requesting
Member State requires proof of service of the document on the addressee, other
than proof that can be obtained by post; or
(c)    
it has not been possible
to serve the document by post; or
(d)     the requesting Member State has justified
reasons for considering that dispatch by post will be ineffective or is
inappropriate.
3.            
Where there is reason to
believe that the addressee does not understand the language in which the
document is drawn up, the document, or at least the important passages thereof,
must be translated into (one of) the language(s) of the Member State in the
territory of which the addressee is staying. If the authority by which the
procedural document was issued knows that the addressee understands only some
other language, the document, or at least the important passages thereof, must
be translated into that other language.
4.            
All procedural documents
shall be accompanied by a report stating that the addressee may obtain information
from the authority by which the document was issued or from other authorities
in that Member State regarding his or her rights and obligations concerning the
document. Paragraph 3 shall also apply to that report.
5. This Article shall not affect the application
of Articles 8, 9 and 12
of the European Mutual Assistance
Convention and Articles 32, 34 and 35
of the Benelux Treaty.

Article 6
Transmission of requests for mutual assistance
1. Requests for mutual assistance and
spontaneous exchanges of information referred to in Article 7 shall be made in
writing, or by any means capable of producing a written record under conditions
allowing the receiving Member State to establish authenticity. Such requests
shall be made directly between judicial authorities with territorial competence
for initiating and executing them, and shall be returned through the same
channels unless otherwise specified in this Article.
Any information laid by a Member State with a
view to proceedings before the courts of another Member State within the
meaning of Article 21 of the European Mutual Assistance Convention and Article
42 of the Benelux Treaty may be the subject of direct communications between
the competent judicial authorities.
2. Paragraph 1 shall not prejudice the possibility
of requests being sent or returned in specific cases:
(a)    
between a central
authority of a Member State and a central authority of another Member State; or
(b)   
between a judicial
authority of one Member State and a central authority of another Member State.
3. Notwithstanding paragraph 1, the United Kingdom and Ireland, respectively, may, when giving the notification provided for in Article 27(2), declare
that requests and communications to it, as specified in the declaration, must
be sent via its central authority. These Member States may at any time by a
further declaration limit the scope of such a declaration for the purpose of
giving greater effect to paragraph 1. They shall do so when the provisions on
mutual assistance of the Schengen Implementation Convention are put into effect
for them.
Any Member State may apply the principle of reciprocity
in relation to the declarations referred to above.
4. Any request for mutual assistance may, in
case of urgency, be made via the International Criminal Police Organisation
(Interpol) or any body competent under provisions adopted pursuant to the
Treaty on European Union.
5. Where,
in respect of requests pursuant to Articles 12, 13 or 14, the
competent authority is a judicial authority or a central authority in one Member State and a police or customs authority in the other Member State, requests may be made
and answered directly between these authorities. Paragraph 4 shall apply to
these contacts.
6. Where, in respect of requests for mutual
assistance in relation to proceedings as envisaged in Article 3(1), the
competent authority is a judicial authority or a central authority in one Member State and an administrative authority in the other Member State, requests may be made
and answered directly between these authorities.
7. Any
Member State may declare, when giving the notification provided for in Article 27(2), that
it is not bound by the first sentence of paragraph 5 or by
paragraph 6 of this Article, or both or that it will apply those
provisions only under certain conditions which it shall specify. Such a
declaration may be withdrawn or amended at any time.
8. The following requests or communications
shall be made through the central authorities of the Member States:
(a)    
requests for temporary
transfer or transit of persons held in custody as referred to in Article 9 of
this Convention, in Article 11 of the European Mutual Assistance Convention and
in Article 33 of the Benelux Treaty;
(b)    
notices of information
from judicial records as referred to in Article 22 of the
European Mutual Assistance Convention and Article 43 of the Benelux Treaty.
However, requests for copies of convictions and measures as referred to in
Article 4 of the Additional Protocol to the European Mutual Assistance
Convention may be made directly to the competent authorities.

Article 7
Spontaneous exchange of
information
1.            
Within the limits of their national law, the competent authorities of the
Member States may exchange information, without a request to that effect,
relating to criminal offences and the infringements of rules of law referred to
in Article 3(1), the punishment or handling of which falls
within the competence of the receiving authority at the time the information is
provided.
2.            
The providing authority
may, pursuant to its national law, impose conditions on the use of such
information by the receiving authority.
3.           
The receiving authority
shall be bound by those conditions.
TITLE II
REQUEST FOR CERTAIN SPECIFIC FORMS OF MUTUAL
ASSISTANCE
Article 8 Restitution
1.            
At the request of the
requesting Member State and without prejudice to the rights of bona fide third parties, the requested Member State may place articles obtained by criminal means at the disposal of the
requesting State with a view to their return to their rightful owners.
2.            
In applying Articles 3 and
6 of the European Mutual Assistance Convention and Articles
24(2) and 29 of the Benelux Treaty, the requested Member State may waive the return of articles either before or after handling them over to the
requesting Member State if the restitution of such articles to the rightful
owner may be facilitated thereby. The rights of
bona fide third parties shall not be affected.
3.            
In the event of a waiver
before handing over the articles to the requesting Member State, the requested Member State shall exercise no security right or other right of recourse under tax or
customs legislation in respect of these articles.
A waiver as referred to in paragraph 2 shall
be without prejudice to the right of the requested Member State to collect
taxes or duties from the rightful owner.
Article 9
Temporary transfer of
persons held in custody for purpose of investigation
1.            
Where there is agreement
between the competent authorities of the Member States concerned, a Member State which has requested an investigation for which the presence of the person held in
custody on its own territory is required may temporarily transfer that person
to the territory of the Member State in which the investigation is to take
place.
2.            
The agreement shall cover
the arrangements for the temporary transfer of the person and the date by which
he or she must be returned to the territory of the requesting Member State.
3.            
Where consent to the
transfer is required from the person concerned, a statement of consent or a
copy thereof shall be provided promptly to the requested Member State.
4.            
The period of custody in
the territory of the requested Member State shall be deducted from the period
of detention which the person concerned is or will be obliged to undergo in the
territory of the requesting Member State.
5.            
The provisions of Articles
11(2) and (3), 12 and 20
of the European Mutual Assistance
Convention shall apply mutatis mutandis to
this Article.
6.            
When giving the
notification provided for in Article 27(2),
each Member State may declare
that, before an agreement is reached under paragraph 1 of this Article, the
consent referred to in paragraph 3 of this Article will be required or will be
required under certain conditions indicated in the declaration.

Article 10 
Hearing by videoconference
1.            
If a person is in one
Member State's territory and has to be heard as a witness or expert by the
judicial authorities of another Member State, the latter may, where it is not
desirable or possible for the person to be heard to appear in its territory in
person, request that the hearing take place by videoconference, as provided for
in paragraphs 2 to 8.
2.            
The requested Member State shall agree to the hearing by videoconference provided that the use of the
videoconference is not contrary to fundamental principles of its law and on
condition that it has the technical means to carry out the hearing. If the
requested Member State has no access to the technical means for
videoconferencing, such means may be made available to it by the requesting Member State by mutual agreement.
3.            
Requests for a hearing by
videoconference shall contain, in addition to the information referred to in
Article 14 of the European Mutual Assistance Convention and Article 37 of
the Benelux Treaty, the reason why it is not desirable or possible for the
witness or expert to attend in person, the name of the judicial authority and
of the persons who will be conducting the hearing.
4.            
The judicial authority of
the requested Member State shall summon the person concerned to appear in
accordance with the forms laid down by its law.
5.           
With reference to hearing
by videoconference, the following rules shall apply:
(a)    
a judicial authority of
the requested Member State shall be present during the hearing, where necessary
assisted by an interpreter, and shall also be responsible for ensuring both the
identification of the person to be heard and respect for the fundamental
principles of the law of the requested Member State. If the judicial authority
of the requested Member State is of the view that during the hearing the fundamental
principles of the law of the requested Member State are being infringed, it
shall immediately take the necessary measures to ensure that the hearing
continues in accordance with the said principles;
(b)    
measures for the
protection of the person to be heard shall be agreed, where necessary, between
the competent authorities of the requesting and the requested Member States;
(c)    
the hearing shall be
conducted directly by, or under the direction of, the judicial authority of the
requesting Member State in accordance with its own laws;
(d)    
at the request of the
requesting Member State or the person to be heard the requested Member State shall ensure that the person to be heard is assisted by an interpreter, if
necessary;
(e)    
the person to be heard may
claim the right not to testify which would accrue to him or her under the law
of either the requested or the requesting Member State.
6.            
Without prejudice to any
measures agreed for the protection of the persons, the judicial authority of
the requested Member State shall on the conclusion of the hearing draw up
minutes indicating the date and place of the hearing, the identity of the
person heard, the identities and functions of all other persons in the
requested Member State participating in the hearing, any oaths taken and the
technical conditions under which the hearing took place. The document shall be
forwarded by the competent authority of the requested Member State to the competent authority of the requesting Member State.
7.            
The cost of establishing
the video link, costs related to the servicing of the video link in the
requested Member State, the remuneration of interpreters provided by it and
allowances to witnesses and experts and their travelling expenses in the
requested Member State shall be refunded by the requesting Member State to the
requested Member State, unless the latter waives the refunding of all or some
of these expenses.
8.            
Each Member State shall
take the necessary measures to ensure that, where witnesses or experts are
being heard within its territory in accordance with this Article and refuse to
testify when under an obligation to testify or do not testify according to the
truth, its national law applies in the same way as if the hearing took place in
a national procedure.
9.            
Member States may at their
discretion also apply the provisions of this Article, where appropriate and
with the agreement of their competent judicial authorities, to hearings by
videoconference involving an accused person. In this case, the decision to hold
the videoconference, and the manner in which the videoconference shall be
carried out, shall be subject to agreement between the Member States concerned,
in accordance with their national law and relevant international instruments,
including the 1950 European Convention for the Protection of
Human Rights and Fundamental Freedoms.
Any Member State may, when giving its
notification pursuant to Article 27(2), declare that it will not apply the
first subparagraph. Such a declaration may be withdrawn at any time.
Hearings shall only be carried out with the
consent of the accused person. Such rules as may prove to be necessary, with a
view to the protection of the rights of accused persons, shall be adopted by
the Council in a legally binding instrument.
Article 11
Hearing of witnesses and
experts by telephone conference
1.            
If a person is one Member State's territory and has to be heard as a witness or expert by judicial authorities of
another Member State, the latter may, where its national law so provides,
request assistance of the former Member State to enable the hearing to take
place by telephone conference, as provided for in paragraphs 2 to
5.
2.            
A hearing may be conducted
by telephone conference only if the witness or expert agrees that the hearing
take place by that method.
3.            
The requested Member State shall agree to the hearing by telephone conference where this is not contrary
to fundamental principles of its law.
4.            
A request for a hearing by
telephone conference shall contain, in addition to the information referred to
in Article 14 of the European Mutual Assistance Convention
and Article 37 of the Benelux Treaty, the name of the
judicial authority and of the persons who will be conducting the hearing and an
indication that the witness or expert is willing to take part in a hearing by
telephone conference.
5.            
The practical arrangements
regarding the hearing shall be agreed between the Member States concerned. When
agreeing such arrangements, the requested Member State shall undertake to:
(a)     notify the witness or expert concerned of the
time and the venue of the hearing;
(b)     ensure the identification of the witness or
expert;
(c)     verify that the witness or expert agrees to
the hearing by telephone conference.
The requested Member State may make its
agreement subject, fully or in part, to the relevant provisions of Article 10(5) and
(8). Unless otherwise agreed, the provisions of Article 10(7) shall
apply mutatis mutandis.
Article 12 
Controlled deliveries
1.            
Each Member State shall undertake to ensure that, at the request of another Member State, controlled
deliveries may be permitted on its territory in the framework of criminal
investigations into extraditable offences.
2.            
The decision to carry out
controlled deliveries shall be taken in each individual case by the competent
authorities of the requested Member State, with due regard for the national law
of that Member State.
3.            
Controlled deliveries
shall take place in accordance with the procedures of the requested Member State. The right to act and to direct and control operations shall lie with the
competent authorities of that Member State.
Article 13
Joint investigation
teams
1. By mutual agreement, the competent authorities
of two or more Member States may set up a joint investigation team for a
specific purpose and a limited period, which may be extended by mutual consent,
to carry out criminal investigations in one or more of the Member States
setting up the team. The composition of the team shall be set out in the
agreement.
A joint investigation team may, in particular, be set up
where:
(a)    
a Member State's investigations into criminal offences require difficult and demanding investigations
having links with other Member States;
(b)    
a number of Member States
are conducting investigations into criminal offences in which the circumstances
of the case necessitate coordinated, concerted action in the Member States
involved.
A request for the setting up of a joint
investigation team may be made by any of the Member States concerned. The team
shall be set up in one of the Member States in which the investigations are
expected to be carried out.
2.            
In addition to the
information referred to in the relevant provisions of Article 14 of
the European Mutual Assistance Convention and Article 37 of the
Benelux Treaty, requests for the setting up of a joint investigation team shall
include proposals for the composition of the team.
3.            
A joint investigation team
shall operate in the territory of the Member States setting up the team under
the following general conditions:
(a)    
the leader of the team
shall be a representative of the competent authority participating in criminal
investigations from the Member State in which the team operates. The leader of
the team shall act within the limits of his or her competence under national
law;
(b)    
the team shall carry out
its operations in accordance with the law of the Member State in which it
operates. The members of the team shall carry out their tasks under the
leadership of the person referred to in subparagraph (a), taking into account
the conditions set by their own authorities in the agreement on setting up the
team;
(c)    
the Member State in which the team operates shall make the necessary organizational arrangements for it to
do
so.
4.            
In this Article, members
of the joint investigation team from Member States other than the Member State in which the team operates are referred to as being 'seconded' to the team.
5.            
Seconded members of the
joint investigation team shall be entitled to be present when investigative
measures are taken in the Member State of operation. However, the leader of the
team may, for particular reasons, in accordance with the law of the Member State where the team operates, decide otherwise.
6.            
Seconded members of the
joint investigation team may, in accordance with the law of the Member State
where the team operates, be entrusted by the leader of the team with the task
of taking certain investigative measures where this has been approved by the
competent authorities of the Member State of operation and the seconding Member
State.
7.            
Where the joint
investigation team needs investigative measures to be taken in one of the
Member States setting up the team, members seconded to the team by that Member State may request their own competent authorities to take those measures. Those
measures shall be considered in that Member State under the conditions which would
apply if they were requested in a national investigation.
8.            
Where the joint
investigation team needs assistance from a Member State other than those which
have set up the team, or from a third State, the request for assistance may be
made by the competent authorities of the State of operations to the competent
authorities of the other State concerned in accordance with the relevant
instruments or arrangements.
9.            
A member of the joint
investigation team may, in accordance with his or her national law and within
the limits of his or her competence, provide the team with information
available in the Member State which has seconded him or her for the purpose of
the criminal investigations conducted by the team.
10.             
Information lawfully
obtained by a member or seconded member while part of a joint investigation
team which is not otherwise available to the competent authorities of the
Member States concerned may be used for the following purposes:
(a)    
for the purposes for which
the team has been set up;
(b)    
subject to the prior
consent of the Member State where the information became available, for
detecting, investigation and prosecuting other criminal offences. Such consent
may be withheld only in cases where such use would endanger criminal
investigations in the Member State concerned or in respect of which that Member
State could refuse mutual assistance;

(c)     for preventing an immediate and serious threat
to public security, and without prejudice to subparagraph (b) if subsequently a
criminal investigation is opened;
(d)    
for other purposes to the
extent that this is agreed between Member States setting up the team.
11.            
This Article shall be
without prejudice to any other existing provisions or arrangements on the
setting up or operation of joint investigation teams.
12.            
To the extent that the
laws of the Member States concerned or the provisions of any legal instrument
applicable between them permit, arrangements may be agreed for persons other
than representatives of the competent authorities of the Member States setting
up the joint investigation team to take part in the activities of the team.
Such persons may, for example, include officials of bodies set up pursuant to
the Treaty on European Union. The rights conferred upon the members or seconded
members of the team by virtue of this Article shall not apply to these persons
unless the agreement expressly states otherwise.
Article 14 
Covert investigations
1.            
The requesting and the
requested Member State may agree to assist one another in the conduct of
investigations into crime by officers acting under covert or false identity
(covert investigations).
2.            
The decision on the
request is taken in each individual case by the competent authorities of the
requested Member State with due regard to its national law and procedures. The
duration of the covert investigation, the detailed conditions, and the legal
status of the officers concerned during covert investigations shall be agreed
between the Member States with due regard to their national law and procedures.
3.            
Covert investigations
shall take place in accordance with the national law and procedures of the
Member States on the territory of which the covert investigation takes place.
The Member States involved shall cooperate to ensure that the covert
investigation is prepared and supervised and to make arrangements for the
security of the officers acting under covert or false identity.
4.            
When giving the
notification provided for in Article 27(2),
any Member State may declare that
it is not bound by this Article. Such a declaration may be withdrawn at any
time.
Article 15
Criminal liability
regarding officials
During the operations referred to in Articles 12, 13 and
14, officials from a Member State other than the Member State of operation shall be regarded as officials of the Member State of operation with
respect of offences committed against them or by them.
Article
16
Civil liability
regarding officials
1.            
Where, in accordance with
Articles 12, 13 and 14,
officials of a Member State are
operating in another Member State, the first Member State shall be liable for
any damage caused by them during their operations, in accordance with the law
of the Member State in whose territory they are operating.
2.            
The Member State in whose territory the damage referred to in paragraph 1 was caused shall make good such
damage under the conditions applicable to damage caused by its own officials.
3.            
The Member State whose officials have caused damage to any person in the territory of another Member State shall reimburse the latter in full any sums it has paid to the victims or persons
entitled on their behalf.
4.            
Without prejudice to the
exercise of its rights vis-à-vis third parties and with the exception of
paragraph 3, each Member State shall refrain in the case
provided for in paragraph 1 from requesting reimbursement of damages it has
sustained from another Member State.

TITLE III
INTERCEPTION OF TELECOMMUNICATIONS
Article 17
Authorities competent to
order interception of telecommunications
For the purpose of the application of the
provisions of Articles 18, 19 and 20,
'competent authority' shall mean
a judicial authority, or, where judicial authorities have no competence in the
area covered by those provisions, an equivalent competent authority, specified
pursuant to Article 24(1)(e) and acting for the purpose of a criminal investigation.
Article 18
Requests for
interception of telecommunications
1.            
For the purpose of a
criminal investigation, a competent authority in the requesting Member State may, in accordance with the requirements of its national law, make a request to a
competent authority in the requested Member State for:
(a)    
the interception and
immediate transmission to the requesting Member State of telecommunications; or
(b)     the interception, recording and subsequent
transmission to the requesting Member State of the recording of
telecommunications.
2.            
Requests under paragraph 1 may
be made in relation to the use of means of telecommunications by the subject of
the interception, if this subject is present in:
(a)     the requesting Member State and the requesting
 Member State needs the technical assistance of the requested Member State to intercept his or her communications;
(b)    
the requesting Member State and his or her communications can be intercepted in that Member State;
(c)     a third Member State which has been informed
pursuant to Article 20(2)(a) and the requesting Member State needs the
technical assistance of the requested Member State to intercept his or her
communications.
3.            
By way of derogation from
Article 14 of the European Mutual Assistance Convention and Article 37 of the
Benelux Treaty, requests under this Article shall include the following:
(a)    
an indication of the
authority making the request;
(b)     confirmation that a lawful interception order
or warrant has been issued in connection with a criminal investigation;
(c)     information for the purpose of identifying the
subject of this interception;
(d)     an indication of the criminal conduct under
investigation;
(e)     the desired duration of the interception; and
(f)      if possible, the provision of sufficient
technical data, in particular the relevant network connection number, to ensure
that the request can be met.
4.            
In the case of a request
pursuant to paragraph 2(b), a request shall also include a summary of the
facts. The requested Member State may require any further information to enable
it to decide whether the requested measure would be taken by it in a similar
national case.
5.           
The requested Member State shall undertake to comply with requests under paragraph 1(a):
(a) in the case of a request pursuant to paragraph 2(a)
and 2(c), on being provided with the information in paragraph 3. The
requested Member State may allow the interception to proceed without further
formality;

(b) in
the case of a request pursuant to paragraph 2(b), on being provided with the
information in paragraphs 3 and 4 and where the requested measure would be
taken by it in a similar national case. The requested Member State may make its consent subject to any conditions which would have to be observed in a
similar national case.
6. Where
immediate transmission is not possible, the requested Member State shall undertake to comply with requests under paragraph 1(b) on being provided with the
information in paragraphs 3 and 4
and where the requested measure
would be taken by it in a similar national case. The requested Member State may make its consent subject to any condition which would have to be observed
in a similar national case.
7. When
giving the notification provided for in Article 27(2), any Member State may declare that it is bound by paragraph 6 only when it is unable to provide
immediate transmission. In this case the other Member State may apply the
principle of reciprocity.
8. When
making a request under paragraph 1(b), the requesting Member State may, where it has a particular reason to do so, also request a transcription of the
recording. The requested Member State shall consider such requests in
accordance with its national law and procedures.
9. The Member State receiving the information
provided under paragraphs 3 and 4 shall keep that information confidential in
accordance with its national law.
Article
19
Interceptions of
telecommunications on national territory by the use of service providers
1. Member States shall ensure that systems of
telecommunications services operated via a gateway on their territory, which
for the lawful interception of the communications of a subject present in
another Member State are not directly accessible on the territory of the
latter, may be made directly accessible for the lawful interception by that
Member State through the intermediary of a designated service provider present
on its territory.
2. In the case referred to in paragraph 1, the
competent authorities of a Member State shall be entitled, for the purposes of
a criminal investigation and in accordance with applicable national law and
provided that the subject of the interception is present in that Member State,
to carry out the interception through the intermediary of a designated service
provider present on its territory without involving the Member State on whose
territory the gateway is located.
3. Paragraph
2 shall also apply where the interception is carried out
upon a request made pursuant to Article 18(2)(b).
4. Nothing
in this Article shall prevent a Member State from making a request to the Member State on whose territory the gateway is located for the lawful interception of
telecommunications in accordance with Article 18, in
particular where there is no intermediary in the requesting Member State.
Article 20
Interception of
telecommunications without the technical assistance of another Member State
1. Without prejudice to the general principles of
international law as well as to the provisions of Article 18(2)(c), the obligations under this Article shall apply
to interception orders made or authorised by the competent authority of one Member
State in the course of criminal investigations which present the
characteristics of being an investigation following the commission of a
specific criminal offence, including attempts in so far as they are
criminalised under national law, in order to identify and arrest, charge,
prosecute or deliver judgment on those responsible.
2. Where for the purpose of a criminal
investigation, the interception of telecommunications is authorised by the
competent authority of one Member State (the 'intercepting Member State'), and
the telecommunication address of the subject specified in the interception
order is being used on the territory of another Member State (the 'notified
Member State') from which no technical assistance is needed to carry out the
interception, the intercepting Member State shall inform the notified Member
State of the interception:
(a)    
prior to the interception
in cases where it knows when ordering the interception that the subject is on
the territory of the notified Member State;
(b)    
in other cases, immediately
after it becomes aware that the subject of the interception is on the territory
of the notified Member State.
3. The
information to be notified by the intercepting Member State shall include:
(a)    
an indication of the
authority ordering the interception;
(b)    
confirmation that a lawful
interception order has been issued in connection with a criminal investigation;
(c)    
information for the
purpose of identifying the subject of the interception;
(d)    
an indication of the
criminal conduct under investigation; and
(e)    
the expected duration of
the interception.
4. The
following shall apply where a Member State is notified pursuant to paragraphs 2 and
3:
(a) Upon receipt of the information provided
under paragraph 3 the competent authority of the notified Member
State shall, without delay, and at the latest within 96 hours,
reply to the intercepting Member State, with a view to:
(i)     
allowing the interception
to be carried out or to be continued. The notified Member State may make its
consent subject to any conditions which would have to be observed in a similar
national case;
(ii)   
requiring the interception
not to be carried out or to be terminated where the interception would not be
permissible pursuant to the national law of the notified Member State, or for the reasons specified in Article 2 of the European Mutual Assistance Convention.
Where the notified Member State imposes such a requirement, it shall give
reasons for its decision in writing;
(iii)  
in cases referred to in
point (ii), requiring that any material already intercepted while the subject
was on its territory may not be used, or may only be used under conditions
which it shall specify. The notified Member State shall inform the intercepting
  Member State of the reasons justifying the said conditions;
(iv)  
requiring a short
extension, of up to a maximum period of eight days, to the original 96-hour
deadline, to be agreed with the intercepting Member State, in order to carry
out internal procedures under its national law. The notified Member State shall communicate, in writing, to the intercepting Member State, the conditions
which, pursuant to its national law, justify the requested extension of the
deadline.
(b)   
Until a decision has been
taken by the notified Member State pursuant to points (i) or (ii) of
subparagraph (a), the intercepting Member State:
(i)     
may continue the
interception; and
(ii)   
may not use the material
already intercepted, except:
—     if otherwise agreed between the Member States
concerned; or
—     for taking urgent measures to prevent an
immediate and serious threat to public security. The notified Member State shall be informed of any such use and the reasons justifying it.
(c)    
The notified Member State may request a summary of the facts of the case and any further information
necessary to enable it to decide whether interception would be authorised in a
similar national case. Such a request does not affect the application of
subparagraph (b), unless otherwise agreed between the notified Member State and the intercepting Member State.
(d) The
Member States shall take the necessary measures to ensure that a reply can be
given within the 96-hour period. To this end they shall designate contact
points, on duty twenty-four hours a day, and include them in their statements
under Article 24(1)(e).
5. The
notified Member State shall keep the information provided under paragraph 3 confidential
in accordance with its national law.
6.            
Where the intercepting Member State is of the opinion that the information to be provided under paragraph 3 is
of a particularly sensitive nature, it may be transmitted to the competent
authority through a specific authority where that has been agreed on a
bilateral basis between the Member States concerned.
7.            
When giving its
notification under Article 27(2), or at any time thereafter, any Member State may declare that it will not be necessary to provide it
with information on interceptions as envisaged in this Article.
Article 21
Responsibility for
charges made by telecommunications operators
Costs which are incurred by telecommunications
operators or service providers in executing requests pursuant to Article 18
shall be borne by the requesting Member State.
Article
22
Bilateral arrangements
Nothing in this Title shall preclude any
bilateral or multilateral arrangements between Member States for the purpose of
facilitating the exploitation of present and future technical possibilities
regarding the lawful interception of telecommunications.
TITLE IV
Article 23 
Personal data protection
1.            
Personal data communicated
under this Convention may be used by the Member State to which they have been
transferred:
(a)     for the purpose of proceedings to which this
Convention applies;
(b)     for other judicial and administrative
proceedings directly related to proceedings referred to under point (a);
(c)     for preventing an immediate and serious threat
to public security;
(d)    
for any other purpose,
only with the prior consent of the communicating Member State, unless the Member State concerned has obtained the consent of the data subject.
2.            
This Article shall also
apply to personal data not communicated but obtained otherwise under this
Convention.
3.            
In the circumstances of
the particular case, the communicating Member State may require the Member State to which the personal data have been transferred to give information on the
use made of the data.
4.           
Where conditions on the
use of personal data have been imposed pursuant to Articles 7(2), 18(5)(b),
18(6) or 20(4), these conditions shall prevail. Where no such
conditions have been imposed, this Article shall apply.
5.            
The provisions of Article 13(10) shall
take precedence over this Article regarding information obtained under Article 13.
6.            
This Article does not
apply to personal data obtained by a Member State under this Convention and
originating from that Member State.
7.            
Luxembourg may, when signing the Convention, declare
that where personal data are communicated by Luxembourg under this Convention
to another Member State, the following applies:
Luxembourg may, subject to paragraph 1(c), in
the circumstances of a particular case require that unless that Member State
concerned has obtained the consent of the data subject, the personal data may
only be used for the purposes referred to in paragraph 1(a) and (b) with the
prior consent of Luxembourg in respect of proceedings for which Luxembourg
could have refused or limited the transmission or use of the personal data in
accordance with the provisions of this Convention or the instruments referred
to in Article 1.
If, in a particular case, Luxembourg refuses to give its consent to a request from a Member State pursuant to the provisions
of paragraph 1, it must give reasons for its decision in writing.
TITLE V FINAL
PROVISIONS
Article 24 
Statements
1.           
When giving the
notification referred to in Article 27(2),
each Member State shall make a
statement naming the authorities which, in addition to those already indicated
in the European Mutual Assistance Convention and the Benelux Treaty, are
competent for the application of this Convention and the application between
the Member States of the provisions on mutual assistance in criminal matters of
the instruments referred to in Article 1(1), including in particular:
(a)    
the competent
administrative authorities within the meaning of Article 3(1), if
any;
(b)     one or more central authorities for the
purposes of applying Article 6 as well as the authorities competent to deal
with the requests referred to in Article 6(8);
(c)    
the police or customs
authorities competent for the purpose of Article 6(5), if
any;
(d)    
the administrative
authorities competent for the purposes of Article 6(6), if
any; and
(e)     the authority or authorities competent for the
purposes of the application of Articles 18
and 19 and
Article 20(1) to (5).
2.            
Statements made in
accordance with paragraph 1 may be amended in whole or in part at any time
by the same procedure.
Article 25
 Reservations
No reservations
may be entered in respect of this Convention, other than those for which it
makes express provision.
Article 26 
Territorial
application
The application of this Convention to
Gibraltar will take effect upon extension of the European Mutual Assistance
Convention to Gibraltar.
The United Kingdom shall notify in writing the President of the Council when it wishes to apply the
Convention to the Channel Islands and the Isle of Man following extension of
the European Mutual Assistance Convention to those territories. A decision on
this request shall be taken by the Council acting with the unanimity of its
members.
Article 27 
Entry into force
1.            
This Convention shall be
subject to adoption by the Member States in accordance with their respective
constitutional requirements.
2.            
Member States shall notify the Secretary-General of the Council of the
European Union of the completion of the constitutional procedures for the
adoption of this Convention.
3.            
This Convention shall, 90 days
after the notification referred to in paragraph 2 by the
State, member of the European Union at the time of adoption by the Council of
the Act establishing this Convention, which is the eighth to complete this
formality, enter into force for the eight Member States concerned.
4.            
Any notification by a Member State subsequent to the receipt of the eighth notification referred to in paragraph 2 shall
have the effect that, 90 days after the subsequent notification, this
Convention shall enter into force as between this Member State and those Member States for which the Convention has already entered into force.
5.            
Before the Convention has
entered into force pursuant to paragraph 3, any Member State may, when giving the notification referred to in paragraph 2 or at any time
thereafter, declare that it will apply this Convention in its relations with
Member States which have made the same declaration. Such declarations shall
take effect 90 days after the date of deposit thereof.
6.            
This Convention shall
apply to mutual assistance initiated after the date on which it has entered
into force, or is applied pursuant to paragraph 5, between the Member States
concerned.
Article 28 
Accession of new Member States
1.           
This Convention shall be
open to accession by any State which becomes a member of the European Union.
2.            
The text of this
Convention in the language of the acceding State, drawn up by the Council of
the European Union, shall be authentic.
3.           
The instruments of
accession shall be deposited with the depositary.
4.            
This Convention shall
enter into force with respect to any State which accedes to it 90 days
after the deposit of its instrument of accession or on the date of entry into
force of this Convention if it has not already entered into force at the time
of expiry of the said period of 90 days.
5.            
Where this Convention is
not yet in force at the time of the deposit of their instrument of accession,
Article 27(5) shall apply to acceding Member States.
Article 29
Entry into force for
Iceland and Norway
1.            
Without prejudice to
Article 8 of the Agreement concluded by the Council of the European Union and
the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and
development of the Schengen acquis (the
'Association Agreement'), the provisions referred to in Article 2(1) shall
enter into force for Iceland and Norway 90
days after the receipt by the
Council and the Commission of the information pursuant to Article 8(2) of
the Association Agreement upon fulfilment of their constitutional requirements,
in their mutual relations with any Member State for which this Convention has
already entered into force pursuant to Article 27(3) or (4).
2.            
Any entry into force of
this Convention for a Member State after the date of entry into force of the
provisions referred to in Article 2(1)
for Iceland and Norway, shall render these provisions also applicable in the mutual relations between that Member State and Iceland and Norway.
3.            
The provisions referred to
in Article 2(1) shall in any event not become binding on Iceland and Norway before the date to be fixed pursuant to Article 15(4) of
the Association Agreement.
4. Without
prejudice to paragraphs 1, 2 and 3
above, the provisions referred to
in Article 2(1) shall enter into force for Iceland and Norway
not later than on the date of entry into force of this Convention for the
fifteenth State, being a member of the European Union at the time of the
adoption by the Council of the Act establishing this Convention.
Article 30 
Depositary
1.           
The Secretary-General of
the Council of the European Union shall act as depositary of this Convention.
2.            
The depositary shall
publish in the Official Journal of the European
Communities information on the progress of adoptions and accessions,
statements and reservations and also any other notification concerning this
Convention.
Hecho en Bruselas, el veintinueve de mayo de
dos mil, en un ejemplar unico, en
lenguas alemana, danesa,
española, finesa, francesa, griega, inglesa, irlandesa, italiana, neerlandesa,
portuguesa y sueca, cuyos textos son igualmente auténticos y que sera
depositado en los archivos de la Secretaría General del Consejo de la Union Europea. El Secretario General remitiraí
una copia certificado del mismo a cada Estado miembro.
Udfærdiget i Bruxelles den niogtyvende
maj to tusind i ét eksemplar på dansk, engelsk, finsk, fransk, græsk, irsk,
italiensk, nederlandsk, portugisisk, spansk, svensk og tysk, idet hver af disse
tekster har samme gyldighed; de deponeres i arkiverne i Generalsekretariatet
for Den Europæiske Union. Generalsekretæren
fremsender en bekræftet kopi heraf til hver medlemsstat.
Geschehen zu Brüssel am neunundzwanzigsten Mai
zweitausend in einer Urschrift in dänischer, deutscher, englischer, finnischer,
französischer, griechischer, irischer, italienischer, niederländischer, portugiesischer,
schwedischer und spanischer Sprache, wobei jeder Wortlaut gleichermaßen
verbindlich ist; die Urschrift wird im Archiv des Generalsekretariats des Rates
der Europäischen Union hinterlegt. Der Generalsekretär übermittelt jedem
Mitgliedstaat eine beglaubigte Abschrift dieser Urschrift.
'Εγινε σης
Βρυξέλλες σης είκοσι
εννεα Μαίου
δυο χιλιάδες
σε ενα μόνο αντίτυπο
στην αγγλική,
γαλλική,
γερμανική,
δανική, ελληνική,
ιρλανδική,
ισπανική,
ιταλική,
ολλανδική, πορτογαλική,
σουηδική και
φινλανδική
γλώσσα, και ολα
τα κεόμενα
εόναι εξήσου
αυθενικα. Η
συμβασή
κατατίθεται
στο αρχειο τής
Γενικής
Γραμματείας
του Συμβουλίου
τής Ευρωπαϊκής
'Ενωσής. Ο Γενικος
Γραμματεας
διαβιβαζει
ακριβες
επικυρωμενο αντιγραφο
σε καθε κρατος
μελος.
Done at Brussels on the twenty-ninth day of
May in the year two thousand in a single original in the Danish, Dutch,
English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish
and Swedish languages, all texts being equally authentic, such original being
deposited in the archives of the General Secretariat of the Council of the
European Union. The Secretary-General shall forward a certified copy thereof to
each Member State.
Fait à Bruxelles, le vingt-neuf mai deux mille,
en un exemplaire unique, en langues allemande, anglaise, danoise, espagnole,
finnoise, française, grecque, irlandaise, italienne, néerlandaise, portugaise
et suédoise, les textes établis dans chacune de ces langues faisant également
foi, lequel est déposé dans les archives du secrétariat général du Conseil de
l'Union européenne. Le secrétaire général en fait parvenir une copie certifiée
à chaque Etat membre.
Arna dhéanamh
sa Bhruiséil, an naou la is fiche de Bhealtaine sa bhliain dha mhile i scríbhinn bhunaidh
amhain sa Bhéarla, sa Danmhairgis, san Fhionlainnis, sa Fhraincis, sa Ghaeilge, sa
Ghearmainis, sa Ghréigis, san Iodailis, san Ollainnis, sa Phortaingéilis, sa Spainnis agus sa
tSualainnis, agus comhudarás ag gach ceann
de na téacsanna sin; déanfar an scríbhinn
bhunaidh sin a
thaisceadh i gcartlann Ardránaíocht Chomhairle
an Aontais Eorpaigh. Díreoidh an
tArdrúnaí œip fhíordheimhnithe
de chuig gach Ballstat.
Fatto a Bruxelles, addì ventinove maggio duemila,
in un esemplare unico nelle lingue danese, finlandese, francese, greca,
inglese, irlandese, italiana, olandese, portoghese, spagnola, svedese e
tedesca, ciascuna di esse facente ugualmente fede, depositato negli archivi del
segretariato generale del Consiglio dell'Unione europea. Il segretario generale
ne trasmette una copia certificata conforme a ogni Stato membro.
Gedaan te Brussel,
de negenentwintigste mei tweeduizend, in één exemplaar, in de Deense, de
Duitse, de Engelse, de Finse, de Franse, de Griekse, de Ierse, de
Italiaanse, de Nederlandse,
de Portugese, de Spaanse en
de Zweedse taal, zijnde alle teksten gelijkelijk authentiek,
dat wordt neergelegd in het archief van het secretariaat-generaal van de Raad
van de Europese Unie. De secretaris-generaal zendt een voor eensluidend
gewaarmerkt afschrift daarvan toe aan elke lidstaat.
Feito em Bruxelas, aos vinte e nove
de Maio de dois mil num unico exemplar, nas línguas alema, dinamarquesa,
espanhola, finlandesa, francesa, grega, inglesa, irlandesa, italiana,
neerlandesa, portuguesa e sueca, todos os textos fazendo igualmente fé, o qual sera depositado
nos arquivos do Secretariado-Geral do Conselho da Uniao Europeia. O
secretario-geral remetera dele uma œpia
autenticada a cada Estado-Membro.
Tehty Brysselissä
kahdentenakymmenentenäyhdeksäntenä päivänä toukokuuta vuonna kaksituhatta yhtenä ainoana
alkuperäiskappaleena englannin, espanjan, hollannin, iirin, italian,
kreikan, portugalin, ranskan, ruotsin, saksan, suomen ja tanskan kielellä, jonka
kullakin kielellä laadittu teksti on yhtä todistusvoimainen,
ja se talletetaan Euroopan unionin
neuvoston pääsihteeristön arkistoon. Pääsihteeri toimittaa oikeaksi todistetun
jäljennöksen yleissopimuksesta jokaiselle jäsenvaltiolle.
Som skedde i Bryssel den tjugonionde maj
tjugohundra i ett enda exemplar på danska, engelska, finska, franska, grekiska,
iriska, italienska, nederländska, portugisiska, spanska, svenska och tyska språken, varvid
varje text äger samma giltighet, och detta exemplar skall deponeras i arkivet
hos generalsekretariatet för Europeiska unionens råd. Generalsekreteraren
skall överlämna en bestyrkt kopia därav till varje medlemsstat.

Pour le gouvernement du Royaume de Belgique
Voor de regering
van het Koninkrijk België Für die
Regierung des Königreichs Belgien
Για την
κυβέρνηση της
Ελληνικής
Δημοκρατίας
Por
el Gobierno del Reino de España
Pour
le gouvernement de la République française
Thar
ceann Rialtas na hEireann For the Government of
Ireland
 ¡UuO ί&ντλ ^ 

Pour le gouvernement du Grand-Duché de Luxembourg
-ν
Voor de regering van het Koninkrijk der Nederlanden
Für
die Regierung der Republik Österreich
α M ibtůuíé/

Pelo Governo da Republica
Portuguesa
Suomen
hallituksen puolesta På finska
regeringens vägnar
For
the Government of the United Kingdom of Great Britain and Northern Ireland
Council Declaration on Article
10(9)
When
considering the adoption of an instrument as referred to in Article 10(9), the Council shall respect Member States' obligations under the
European Convention on Human Rights.
Declaration by the United Kingdom on Article 20
This Declaration
shall form an agreed, integral part of the Convention
In the United Kingdom, Article 20 will apply in
respect of interception warrants issued by the Secretary of State to the police
service or HM Customs & Excise where, in accordance with national law
on the interception of communications, the stated purpose of the warrant is the
detection of serious crime. It will also apply to such warrants issued to the
Security Service where, in accordance with national law, it is acting in
support of an investigation presenting the characteristics described in Article
20(1).
                                                
Protocol
established by the Council in accordance with Article 34 of the Treaty on
European Union to the Convention on Mutual Assistance in Criminal Matters
between the Member States of the European Union
PROTOCOL
established by the
Council in accordance with Article 34 of the Treaty on European Union to the
Convention on Mutual Assistance in Criminal Matters between the Member States
of the European Union
THE HIGH CONTRACTING
PARTIES to this Protocol, Member States of the European Union,
REFERRING to the
Council Act of 16 October 2001 establishing the Protocol to the Convention on
Mutual Assistance in Criminal Matters between the Member States of the European
Union,
TAKING ACCOUNT of the
conclusions adopted at the European Council held in Tampere on 15 and 16
October 1999, and of the need to implement them immediately in order to achieve
an area of freedom, security and justice,
BEARING IN MIND the
recommendations made by the experts when presenting the mutual evaluation
reports based on Council Joint Action 97/827/JHA of 5 December 1997
establishing a mechanism for evaluating the application and implementation at
national level of international undertakings in the fight against organised
crime(1),
CONVINCED of the need
for additional measures in the field of mutual assistance in criminal matters
for the purpose of the fight against crime, including in particular organised
crime, money laundering and financial crime,
HAVE AGREED UPON THE
FOLLOWING PROVISIONS, which shall be annexed to, and form an integral part of,
the Convention on Mutual Assistance in Criminal Matters between the Member
States of the European Union of 29 May 2000(2), hereinafter referred to as the
"2000 Mutual Assistance Convention":
Article 1
Request for
information on bank accounts
1. Each Member State
shall, under the conditions set out in this Article, take the measures
necessary to determine, in answer to a request sent by another Member State,
whether a natural or legal person that is the subject of a criminal
investigation holds or controls one or more accounts, of whatever nature, in
any bank located in its territory and, if so, provide all the details of the
identified accounts.
The information shall
also, if requested and to the extent that it can be provided within a reasonable
time, include accounts for which the person that is the subject of the
proceedings has powers of attorney.
2. The obligation set
out in this Article shall apply only to the extent that the information is in
the possession of the bank keeping the account.
3. The obligation set
out in this Article shall apply only if the investigation concerns:
- an offence
punishable by a penalty involving deprivation of liberty or a detention order
of a maximum period of at least four years in the requesting State and at least
two years in the requested State, or
- an offence referred
to in Article 2 of the 1995 Convention on the Establishment of a European
Police Office (Europol Convention), or in the Annex to that Convention, as
amended, or
- to the extent that
it may not be covered by the Europol Convention, an offence referred to in the
1995 Convention on the Protection of the European Communities' Financial
Interests, the 1996 Protocol thereto, or the 1997 Second Protocol thereto.
4. The authority
making the request shall, in the request:
- state why it
considers that the requested information is likely to be of substantial value
for the purpose of the investigation into the offence,
- state on what
grounds it presumes that banks in the requested Member State hold the account
and, to the extent available, which banks may be involved,
- include any
information available which may facilitate the execution of the request.
5. Member States may
make the execution of a request according to this Article dependent on the same
conditions as they apply in respect of requests for search and seizure.
6. The Council may
decide, pursuant to Article 34(2)(c) of the Treaty of European Union, to extend
the scope of paragraph 3.
Article 2
Requests for
information on banking transactions
1. On request by the
requesting State, the requested State shall provide the particulars of
specified bank accounts and of banking operations which have been carried out
during a specified period through one or more accounts specified in the
request, including the particulars of any sending or recipient account.
2. The obligation set
out in this Article shall apply only to the extent that the information is in
the possession of the bank holding the account.
3. The requesting Member State shall in its request indicate why it considers the requested information
relevant for the purpose of the investigation into the offence.
4. Member States may
make the execution of a request according to this Article dependent on the same
conditions as they apply in respect of requests for search and seizure.
Article 3
Requests for the
monitoring of banking transactions
1. Each Member State
shall undertake to ensure that, at the request of another Member State, it is able to monitor, during a specified period, the banking operations that are being
carried out through one or more accounts specified in the request and
communicate the results thereof to the requesting Member State.
2. The requesting Member State shall in its request indicate why it considers the requested information
relevant for the purpose of the investigation into the offence.
3. The decision to
monitor shall be taken in each individual case by the competent authorities of
the requested Member State, with due regard for the national law of that Member State.
4. The practical
details regarding the monitoring shall be agreed between the competent
authorities of the requesting and requested Member States.
Article 4
Confidentiality
Each Member State shall take the necessary measures to ensure that banks do not disclose to the
bank customer concerned or to other third persons that information has been
transmitted to the requesting State in accordance with Articles 1, 2 or 3 or
that an investigation is being carried out.
Article 5
Obligation to inform
If the competent authority
of the requested Member State in the course of the execution of a request for
mutual assistance considers that it may be appropriate to undertake
investigations not initially foreseen, or which could not be specified when the
request was made, it shall immediately inform the requesting authority
accordingly in order to enable it to take further action.
Article 6
Additional requests
for mutual assistance
1. Where the
competent authority of the requesting Member State makes a request for mutual
assistance which is additional to an earlier request, it shall not be required
to provide information already provided in the initial request. The additional
request shall contain information necessary for the purpose of identifying the
initial request.
2. Where, in
accordance with the provisions in force, the competent authority which has made
a request for mutual assistance participates in the execution of the request in
the requested Member State, it may, without prejudice to Article 6(3) of the
2000 Mutual Assistance Convention, make an additional request directly to the
competent authority of the requested Member State while present in that State.
Article 7
Banking secrecy
A Member State shall not invoke banking secrecy as a reason for refusing any cooperation
regarding a request for mutual assistance from another Member State.
Article 8
Fiscal offences
1. Mutual assistance
may not be refused solely on the ground that the request concerns an offence
which the requested Member State considers a fiscal offence.
2. If a Member State
has made the execution of a request for search and seizure dependent on the
condition that the offence giving rise to the request is also punishable under
its law, this condition shall be fulfilled, with regard to offences referred to
in paragraph 1, if the offence corresponds to an offence of the same nature
under its law.
The request may not
be refused on the ground that the law of the requested Member 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 requesting Member State.
3. Article 50 of the
Schengen Implementation Convention is hereby repealed.
Article 9
Political offences
1. For the purposes
of mutual legal assistance between Member States, no offence may be regarded by
the requested Member State as a political offence, an offence connected with a
political offence or an offence inspired by political motives.
2. Each Member State
may, when giving the notification referred to in Article 13(2), declare that it
will apply paragraph 1 only in relation to:
(a) the offences
referred to in Articles 1 and 2 of the European Convention on the Suppression
of Terrorism of 27 January 1977; and
(b) offences of
conspiracy or association, which correspond to the description of behaviour
referred to in Article 3(4) of the Convention of 27 September 1996 relating to
extradition between the Member States of the European Union, to commit one or
more of the offences referred to in Articles 1 and 2 of the European Convention
on the Suppression of Terrorism.
3. Reservations made
pursuant to Article 13 of the European Convention on the Suppression of
Terrorism shall not apply to mutual legal assistance between Member States.
Article 10
Forwarding refusals
to the Council and involvement of Eurojust
1. If a request is
refused on the basis of:
- Article 2(b) of the
European Mutual Assistance Convention or Article 22(2)(b) of the Benelux Treaty, or
- Article 51 of the
Schengen Implementation Convention or Article 5 of the European Mutual
Assistance Convention, or
- Article 1(5) or
Article 2(4) of this Protocol,
and the requesting Member State maintains its request, and no solution can be found, the reasoned decision to
refuse the request shall be forwarded to the Council for information by the
requested Member State, for possible evaluation of the functioning of judicial
cooperation between Member States.
2. The competent
authorities of the requesting Member State may report to Eurojust, once it has
been established, any problem encountered concerning the execution of a request
in relation to the provisions referred to in paragraph 1 for a possible
practical solution in accordance with the provisions laid down in the
instrument establishing Eurojust.
Article 11
Reservations
No reservations may
be entered in respect of this Protocol, other than those provided for in
Article 9(2).
Article 12
Territorial
application
The application of
this Protocol to Gibraltar will take effect when the 2000 Mutual Assistance
Convention has taken effect in Gibraltar, in accordance with Article 26 of that
Convention.
Article 13
Entry into force
1. This Protocol
shall be subject to adoption by the Member States in accordance with their
respective constitutional requirements.
2. Member States
shall notify the Secretary-General of the Council of the European Union of the
completion of the constitutional procedures for the adoption of this Protocol.
3. This Protocol
shall enter into force in the eight Member States concerned 90 days after the
notification referred to in paragraph 2 by the State, member of the European
Union at the time of adoption by the Council of the Act establishing this
Protocol, which is the eighth to complete that formality. If, however, the 2000
Mutual Assistance Convention has not entered into force on that date, this
Protocol shall enter into force on the date on which that Convention enters
into force.
4. Any notification
by a Member State subsequent to the entry into force of this Protocol under
paragraph 3 shall have the effect that, 90 days after such notification, this
Protocol shall enter into force as between that Member State and those Member States for which this Protocol has already entered into force.
5. Before the entry
into force of this Protocol pursuant to paragraph 3, any Member State may, when giving the notification referred to in paragraph 2 or at any time thereafter,
declare that it will apply this Protocol in its relations with Member States
which have made the same declaration. Such declarations shall take effect 90
days after the date of deposit thereof.
6. Notwithstanding
paragraphs 3 to 5, the entry into force or application of this Protocol shall
not take effect in relations between any two Member States before the entry
into force or application of the 2000 Mutual Assistance Convention between
these Member States.
7. This Protocol
shall apply to mutual assistance initiated after the date on which it enters
into force, or is applied pursuant to paragraph 5, between the Member States
concerned.
Article 14
Acceding States
1. This Protocol
shall be open to accession by any State which becomes a member of the European
Union and which accedes to the 2000 Mutual Assistance Convention.
2. The text of this
Protocol in the language of the acceding State, drawn up by the Council of the
European Union, shall be authentic.
3. The instruments of
accession shall be deposited with the depositary.
4. This Protocol
shall enter into force with respect to any State which accedes to it 90 days
after the deposit of its instrument of accession or on the date of entry into
force of this Protocol if it has not already entered into force at the time of
expiry of the said period of 90 days.
5. Where this
Protocol is not yet in force at the time of the deposit of their instrument of
accession, Article 13(5) shall apply to acceding Member States.
6. Notwithstanding
paragraphs 4 and 5, the entry into force or application of this Protocol with
respect to the acceding State shall not take effect before the entry into force
or application of the 2000 Mutual Assistance Convention with respect to that
State.
Article 15
Position of Iceland and Norway
Article 8 shall
constitute measures amending or based upon the provisions referred to in Annex
A to the Agreement concluded by the Council of the European Union with the
Republic of Iceland and the Kingdom of Norway concerning the latters'
association with the implementation, application and development of the
Schengen acquis(3) (hereinafter referred to as the "Association Agreement").
Article 16
Entry into force for Iceland and Norway
1. Without prejudice
to Article 8 of the Association Agreement, the provision referred to in Article
15 shall enter into force for Iceland and Norway 90 days after the receipt by
the Council and the Commission of the information pursuant to Article 8(2) of
the Association Agreement upon fulfilment of their constitutional requirements,
in their mutual relations with any Member State for which this Protocol has
already entered into force pursuant to Article 13(3) or (4).
2. Any entry into
force of this Protocol for a Member State after the date of entry into force of
the provision referred to in Article 15 for Iceland and Norway, shall render that provision also applicable in the mutual relations between that Member State and Iceland and Norway.
3. The provision
referred to in Article 15 shall in any event not become binding on Iceland and Norway before the entry into force of the provisions referred to in Article 2(1) of the
2000 Mutual Assistance Convention with respect to those two States.
4. Without prejudice
to paragraphs 1, 2 and 3, the provision referred to in Article 15 shall enter
into force for Iceland and Norway not later than on the date of entry into
force of this Protocol for the fifteenth State, being a member of the European
Union at the time of the adoption by the Council of the Act establishing this
Protocol.
Article 17
Depositary
The Secretary-General
of the Council of the European Union shall act as depositary of this Protocol.
The depositary shall
publish in the Official Journal of the European Communities information on the
progress of adoptions and accessions, declarations and also any other
notification concerning this Protocol.
IN WITNESS WHEREOF,
the undersigned plenipotentiaries have hereunto set their hands.
Done at Luxembourg,
on 16 October 2001 in a single original in the Danish, Dutch, English, Finnish,
French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish
languages, each text being equally authentic, the original being deposited in
the archives of the General Secretariat of the Council of the European Union.
The Secretary-General shall forward a certified copy thereof to each Member State.
Pour le gouvernement
du Royaume de Belgique/Voor de Regering van het Koninkrijk België/Für die
Regierung des Königreichs Belgien
For regeringen for
Kongeriget Danmark
Für die Regierung der
Bundesrepublik Deutschland
Για
την κυβέρνηση
της Ελληνικής
Δημοκρατίας
Por el Gobierno del
Reino de España
Pour le gouvernement
de la République française
Thar ceann Rialtas na
hÉireann/For the Government of Ireland
Per il governo della
Repubblica italiana
Pour le gouvernement
du Grand-Duché de Luxembourg
Voor de Regering van
het Koninkrijk der Nederlanden
Für die Regierung der
Republik Österreich
Pelo Governo da
República Portuguesa
Suomen hallituksen
puolesta/På finska regeringens vägnar
På svenska
regeringens vägnar
For the Government of
the United Kingdom of Great Britain and Northern Ireland
 (1) OJ L 344,
15.12.1997, p. 7.
(2) OJ C 197,
12.7.2000, p. 3.
(3) OJ L 176,
10.7.1999, p. 36.