(e) there is immunity under the law of the executing State, which makes it impossible to execute the decision; (f) the decision has been imposed on a natural person who under the law of the executing State due to his or her age could not yet have been held criminally liable for the acts in respect of which the decision was passed; (g) according to the certificate provided for in Article 4, the person concerned (i) in case of a written procedure was not, in accordance with the law of the issuing State, informed personally or via a representative, competent according to national law, of his right to contest the case and of time limits of such a legal remedy, or (ii) did not appear personally, unless the certificate states: — that the person was informed personally, or via a representative, competent according to national law, of the proceedings in accordance with the law of the issuing State, or — that the person has indicated that he or she does not contest the case; (h) the financial penalty is below EUR 70 or the equivalent to that amount.
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3.In cases referred to in paragraphs 1 and 2(c) and (g), before deciding not to recognise and to execute a decision, either totally or in part, the competent authority in the executing State shall consult the competent authority in the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary information without delay.
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Article 8Determination of the amount to be paid
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1.Where it is established that the decision is related to acts which were not carried out within the territory of the issuing State, the executing State may decide to reduce the amount of the penalty enforced to the maximum amount provided for acts of the same kind under the national law of the executing State, when the acts fall within the jurisdiction of that State.
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2.The competent authority of the executing State shall, if necessary, convert the penalty into the currency of the executing State at the rate of exchange obtaining at the time when the penalty was imposed.
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Article 9Law governing enforcement
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1.Without prejudice to paragraph 3 of this Article, and to Article 10, the enforcement of the decision shall be governed by the law of the executing State in the same way as a financial penalty of the executing State. The authorities of the executing State alone shall be competent to decide on the procedures for enforcement and to determine all the measures relating thereto, including the grounds for termination of enforcement.
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2.In the case where the sentenced person is able to furnish proof of a payment, totally or in part, in any State, the competent authority of the executing State shall consult the competent authority of the Issuing State in the way provided for in Article 7(3). Any part of the penalty recovered in whatever manner in any State shall be deducted in full from the amount, which is to be enforced in the executing State.
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3.A financial penalty imposed on a legal person shall be enforced even if the executing State does not recognise the principle of criminal liability of legal persons.
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Article 10
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Imprisonment or other alternative sanction by way of substitution for non-recovery of the financial penalty Where it is not possible to enforce a decision, either totally or in part, alternative sanctions, including custodial sanctions, may be applied by the executing State if its laws so provide in such cases and the issuing State has allowed for the application of such alternative sanctions in the certificate referred to in Article 4. The severity of the alternative sanction shall be determined in accordance with the law of the executing State, but shall not exceed any maximum level stated in the certificate transmitted by the issuing State.
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Article 11Amnesty, pardon, review of sentence
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1.Amnesty and pardon may be granted by the issuing State and also by the executing State.
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2.Without prejudice to the Article 10, only the issuing State may determine any application for review of the decision.
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Article 12Termination of enforcement
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1.The competent authority of the issuing State shall forthwith inform the competent authority of the executing State of any decision or measure as a result of which the decision ceases to be enforceable or is withdrawn from the executing State for any other reason.
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2.The executing State shall terminate enforcement of the decision as soon as it is informed by the competent authority of the issuing State of that decision or measure.
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Article 13Accrual of monies obtained from enforcement of decisions
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Monies obtained from the enforcement of decisions shall accrue to the executing State unless otherwise agreed between the issuing and the executing State, in particular in the cases referred to in Article 1(b)(ii).
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Article 14Information from the executing State
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The competent authority of the executing State shall without delay inform the competent authority of the issuing State by any means which leaves a written record: (a) of the transmission of the decision to the competent authority, according to Article 4(6) ; (b) of any decision not to recognise and execute a decision, according to Articles 7 or 20(3), together with the reasons for the decision; (c) of the total or partial non-execution of the decision for the reasons referred to in Article 8, Article 9(1) and (2), and Article 11(1); (d) of the execution of the decision as soon as the execution has been completed; (e) of the application of alternative sanction, according to Article 10.
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Article 15Consequences of transmission of a decision
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1.Subject to paragraph 2, the issuing State may not proceed with the execution of a decision transmitted pursuant to Article 4.
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2.The right of execution of the decision shall revert to the issuing State: (a) upon it being informed by the executing State of the total or partial non-execution or the non-recognition or the non-enforcement of the decision in the case of Article 7, with the exception of Article 7(2) (a), in the case of Article 11(1), and in the case of Article 20(3); or (b) when the executing State has been informed by the issuing State that the decision has been withdrawn from the executing State pursuant to Article 12.
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3.If, after transmission of a decision in accordance with Article 4, an authority of the issuing State receives any sum of money which the sentenced person has paid voluntarily in respect of the decision, that authority shall inform the competent authority in the executing State without delay. Article 9(2) shall apply.
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Article 16Languages
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1.The certificate, the standard form for which is given in the Annex, must be translated into the official language or one of the official languages of the executing State. Any Member State may, either 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 a translation in one or more other official languages of the Institutions of the Union.
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2.The execution of the decision may be suspended for the time necessary to obtain its translation at the expense of the executing State.
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Article 17Costs
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Member States shall not claim from each other the refund of costs resulting from application of this Framework Decision.
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Article 18Relationship with other agreements and arrangements
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This Framework Decision shall not preclude the application of bilateral or multilateral agreements or arrangements between Member States in so far as such agreements or arrangements allow the prescriptions of this Framework Decision to be exceeded and help to simplify or facilitate further the procedures for the enforcement of financial penalties.
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Article 19Territorial application
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This Framework Decision shall apply to Gibraltar.
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Article 20Implementation
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1.Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 22 March 2007.
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2.Each Member State may for a period of up to five years from the date of entry into force of this Framework Decision limit its application to: (a) decisions mentioned in Article 1(a) (i) and (iv) ; and/or (b) with regard to legal persons, decisions related to conduct for which a European instrument provides for the application of the principle of liability of legal persons.
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Any Member State that wants to make use of this paragraph, 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 Journal of the European Union.
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3.Each Member State may, where the certificate referred to in Article 4 gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 of the Treaty may have been infringed, oppose the recognition and the execution of decisions. The procedure referred to in Article 7(3) shall apply.
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4.Any Member State may apply the principle of reciprocity in relation to any Member State making use of paragraph 2.
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5.Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. On the basis of a report established on the basis of this information by the Commission, the Council shall, no later than 22 March 2008, assess the extent to which Member States have complied with this Framework Decision.
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6.The General Secretariat of the Council shall notify the Member States and the Commission of the declarations made pursuant to Articles 4(7) and 16.
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7.Without prejudice to Article 35(7) of the Treaty, a Member State which has experienced repeated difficulties or lack of activity by another Member State in the mutual recognition and execution of decisions, which have not been solved through bilateral consultations, may inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level.
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8.Any Member State which during a calendar year has applied paragraph 3, shall in the beginning of the following calendar year inform the Council and the Commission of cases in which the grounds referred to in that provision for non-recognition or non-execution of a decision have been applied.
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9.Within seven years after the entry into force of this Framework Decision, the Commission shall establish a report on the basis of the information received, accompanied by any initiatives it may deem appropriate. The Council shall on the basis of the report review this Article with a view to considering whether paragraph 3 shall be retained or replaced by a more specific provision.
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Article 21Entry into force
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This Framework Decision shall enter into force on the day of its publication in the Official Journal of the European Union.
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Done at Brussels, 24 February 2005.
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For the Council The President N. SCHMIT ANNEX CERTIFICATE referred to in Article 4 of Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties ”.
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SCHEDULE 3 Text of Council Framework Decision 2006/783/JHA of 6 October 2006 on the Application of the Principle of Mutual Recognition to Confiscation Orders “Schedule 5B Text of 2006 Framework Decision COUNCIL FRAMEWORK DECISION 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 31(1)(a) and 34(2)(b) thereof, Having regard to the initiative of the Kingdom of Denmark1 , Having regard to the opinion of the European Parliament2 , Whereas:
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(1)The European Council, meeting in Tampere on 15 and 16 October 1999, stressed that the principle of mutual recognition should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union.
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(2)According to paragraph 51 of the conclusions of the Tampere European Council, money laundering is at the very heart of organised crime, and should be rooted out wherever it occurs; the European Council is determined to ensure that concrete steps are taken to trace, freeze, seize and confiscate the proceeds of crime. In that connection, in paragraph 55 of the conclusions, the European Council calls for the approximation of criminal law and procedures on money laundering (e.g. tracing, freezing and confiscating funds).
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(3)All Member States have ratified the Council of Europe Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (the 1990 Convention). The Convention obliges signatories to recognise and enforce a confiscation order made by another party, or to submit a request to its competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, enforce it. The Parties may refuse requests for confiscation inter alia if the offence to which the request relates would not be an offence under the law of the requested Party, or if under the law of the requested Party confiscation is not provided for in respect of the type of offence to which the request relates.
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(4)On 30 November 2000 the Council adopted a programme of measures to implement the principle of mutual recognition of decisions in criminal matters, giving first priority (measures 6 and 7) to the adoption of an instrument applying the principle of mutual recognition to the freezing of evidence and property. Moreover, pursuant to paragraph 3.3 of the programme, the aim is to improve, in accordance with the principle of mutual recognition, execution in one Member State of a confiscation order issued in another Member State, inter alia for the purpose of restitution to a victim of a criminal offence, taking into account the existence of the 1990 Convention. With a view to achieving this aim, this Framework Decision, within its field of application, reduces the grounds for refusal of enforcement and suppresses, among Member States, any system of conversion of the confiscation order into a national one.
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(5)Council Framework Decision 2001/500/JHA3 lays down provisions on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds from crime. Under that Framework Decision, Member States are also obliged not to make or uphold reservations in respect of Article 2 of the 1990 Convention, in so far as the offence is punishable by deprivation of liberty or a detention order for a maximum of more than one year.
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(6)Finally, on 22 July 2003 the Council adopted Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property or evidence 4 .
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(7)The main motive for organised crime is financial gain. In order to be effective, therefore, any attempt to prevent and combat such crime must focus on tracing, freezing, seizing and confiscating the proceeds from crime. It is not enough merely to ensure mutual recognition within the European Union of temporary legal measures such as freezing and seizure; effective control of economic crime also requires the mutual recognition of orders to confiscate the proceeds from crime.
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(8)The purpose of this Framework Decision is to facilitate cooperation between Member States as regards the mutual recognition and execution of orders to confiscate property so as to oblige a Member State to recognise and execute in its territory confiscation orders issued by a court competent in criminal matters of another Member State. This Framework Decision is linked to Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property 5 . The purpose of that Framework Decision is to ensure that all Member States have effective rules governing the confiscation of proceeds from crime, inter alia in relation to the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime.
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(9)Cooperation between Member States, based on the principle of mutual recognition and immediate execution of judicial decisions, presupposes confidence that the decisions to be recognised and executed will always be taken in compliance with the principles of legality, subsidiarity and proportionality. It also presupposes that the rights granted to the parties or bona fide interested third parties will be preserved. In this context, due consideration should be given to preventing successful dishonest claims by legal or natural persons.
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(10)The proper practical operation of this Framework Decision presupposes close liaison between the competent national authorities involved, in particular in cases of simultaneous execution of a confiscation order in more than one Member State.
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(11)The terms ‘proceeds’ and ‘instrumentalities’ used in this Framework Decision are sufficiently broadly defined to include objects of offences whenever necessary.
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(12)Where there are doubts with regard to the location of property which is the subject of a confiscation order, Member States should use all available means in order to identify the correct location of that property, including the use of all available information systems.
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(13)This Framework Decision respects 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, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to confiscate property for which a confiscation order has been issued when objective grounds exist for believing that the confiscation order was issued for the purpose of prosecuting or punishing a person on account of his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or that that person's position may be prejudiced for any of these reasons.
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(14)This Framework Decision does not prevent any Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.
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(15)This Framework Decision does not address the restitution of property to its rightful owner.
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(16)This Framework Decision does not prejudice the end to which the Member States apply the amounts obtained as a consequence of its application.
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(17)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 safeguarding of internal security in accordance with Article 33 of the Treaty on European Union, HAS ADOPTED THIS FRAMEWORK DECISION:
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Article 1Objective
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1.The purpose of this Framework Decision is to establish the rules under which a Member State shall recognise and execute in its territory a confiscation order issued by a court competent in criminal matters of another Member State.
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2.This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union, and any obligations incumbent on judicial authorities in this respect shall remain unaffected.
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Article 2Definitions
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For the purpose of this Framework Decision, (a) ‘issuing State’ shall mean the Member State in which a court has issued a confiscation order within the framework of criminal proceedings; (b) ‘executing State’ shall mean the Member State to which a confiscation order has been transmitted for the purpose of execution; (c) ‘confiscation order’ shall mean a final penalty or measure imposed by a court following proceedings in relation to a criminal offence or offences, resulting in the definitive deprivation of property; (d) ‘property’ shall mean property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents and instruments evidencing title to or interest in such property, which the court in the issuing State has decided: (i) is the proceeds of an offence, or equivalent to either the full value or part of the value of such proceeds, or (ii) constitutes the instrumentalities of such an offence, or (iii) is liable to confiscation resulting from the application in the issuing State of any of the extended powers of confiscation specified in Article 3(1) and (2) of Framework Decision 2005/212/JHA, or (iv) is liable to confiscation under any other provisions relating to extended powers of confiscation under the law of the issuing State; (e) ‘proceeds’ shall mean any economic advantage derived from criminal offences. It may consist of any form of property; (f) ‘instrumentalities’ shall mean any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences; (g) ‘cultural objects forming part of the national cultural heritage’ shall be defined in accordance with Article 1(1) of Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State6 ; (h) where the criminal proceedings leading to a confiscation order involve a predicate offence as well as money laundering, a ‘criminal offence’ mentioned in Article 8(2) (f) shall mean a predicate offence.
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Article 3Determination of the competent authorities
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1.Each Member State shall inform the General Secretariat of the Council which authority or authorities, under its law, are competent according to this Framework Decision when that Member State is: — the issuing State, or — the executing State.
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2.Notwithstanding Articles 4(1) and (2), each Member State may designate, if it is necessary as a result of the organisation of its internal system, one or more central authorities responsible for the administrative transmission and reception of the confiscation orders and to assist the competent authorities.
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3.The General Secretariat of the Council shall make the information received available to all Member States and the Commission.
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Article 4Transmission of confiscation orders
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1.A confiscation order, together with the certificate provided for in paragraph 2, the standard form for which is given in the Annex, may, in the case of a confiscation order concerning an amount of money, 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 the natural or legal person against whom the confiscation order has been issued has property or income.
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In the case of a confiscation order concerning specific items of property, the confiscation order and the certificate 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 property covered by the confiscation order is located.
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If there are no reasonable grounds which would allow the issuing State to determine the Member State to which the confiscation order may be transmitted, the confiscation order may be transmitted to the competent authority of the Member State where the natural or legal person against whom the confiscation order has been issued is normally resident or has its registered seat respectively.
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2.The confiscation order or a certified copy thereof, together with the certificate, shall be transmitted by the competent authority of the issuing State directly to the authority of the executing State which is competent to execute it, by any means capable of producing a written record, under conditions allowing the executing State to establish authenticity. The original of the confiscation order, or a certified copy thereof, and the original of the certificate shall be transmitted to the executing State if it so requires. All official communications shall be made directly between the said competent authorities.
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3.The certificate, shall be signed, and its contents certified as accurate, by the competent authority of the issuing State.
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4.If the authority competent to execute the confiscation order is not known to the competent authority of the issuing State, the latter shall make all necessary enquiries, including via the contact points of the European judicial network, in order to obtain information from the executing State.
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5.Where the authority of the executing State which receives a confiscation order has no jurisdiction to recognise it and take the necessary measures for its execution, it shall, ex officio, transmit the order to the authority competent to execute it, and shall inform the competent authority of the issuing State accordingly.
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Article 5Transmission of a confiscation order to one or more executing States
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1.Subject to paragraphs 2 and 3, a confiscation order may only be transmitted pursuant to Article 4 to one executing State at any one time.
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2.A confiscation order concerning specific items of property may be transmitted to more than one executing State at the same time in cases where: — the competent authority of the issuing State has reasonable grounds to believe that different items of property covered by the confiscation order are located in different executing States, — the confiscation of a specific item of property covered by the confiscation order involves action in more than one executing State, or — the competent authority of the issuing State has reasonable grounds to believe that a specific item of property covered by the confiscation order is located in one of two or more specified executing States.
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3.A confiscation order concerning an amount of money may be transmitted to more than one executing State at the same time, where the competent authority of the issuing State deems there is a specific need to do so, for example where: — the property concerned has not been frozen under Council Framework Decision 2003/577/JHA of, or — the value of the property which may be confiscated in the issuing State and any one executing State is not likely to be sufficient for the execution of the full amount covered by the confiscation order.
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Article 6Offences
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1.If the acts giving rise to the confiscation order constitute one or more of the following offences, as defined by the law of the issuing State, and are punishable in the issuing State by a custodial sentence of a maximum of at least three years, the confiscation order shall give rise to execution without verification of the double criminality of the acts: — participation in a criminal organisation, — terrorism, — trafficking in human beings, — sexual exploitation of children and child pornography, — illicit trafficking in narcotic drugs and psychotropic substances, — illicit trafficking in weapons, munitions and explosives, — corruption, — fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests, — laundering of the proceeds of crime, — counterfeiting currency, including of the euro, — computer-related crime, — environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, — 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, — arson, — crimes within the jurisdiction of the International Criminal Court, — unlawful seizure of aircraft/ships, — sabotage.
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2.The Council may decide to add other categories of offences to the list contained in paragraph 1 at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the TEU. The Council shall consider, in the light of the report submitted by the Commission pursuant to Article 22, whether the list should be extended or amended.
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3.For offences other than those covered by paragraph 1, the executing State may make the recognition and execution of a confiscation order subject to the condition that the acts giving rise to the confiscation order constitute an offence which permits confiscation under the law of the executing State, whatever its constituent elements or however it is described under the law of the issuing State.
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Article 7Recognition and execution
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1.The competent authorities in the executing State shall without further formality recognise a confiscation order which has been transmitted in accordance with Articles 4 and 5, and shall forthwith take all the necessary measures for its execution, unless the competent authorities decide to invoke one of the grounds for non-recognition or non-execution provided for in Article 8, or one of the grounds for postponement of execution provided for in Article 10.
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2.If a request for confiscation concerns a specific item of property, the competent authorities of the issuing and the executing States may, if provided for under the law of those States, agree that confiscation in the executing State may take the form of a requirement to pay a sum of money corresponding to the value of the property.
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3.If a confiscation order concerns an amount of money, the competent authorities of the executing State shall, if payment is not obtained, execute the confiscation order in accordance with paragraph 1 on any item of property available for that purpose.
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4.If a confiscation order concerns an amount of money, the competent authorities of the executing State shall, if necessary, convert the amount to be confiscated into the currency of the executing State at the rate of exchange obtaining at the time when the confiscation order was issued.
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5.Each Member State may state in a declaration deposited with the General Secretariat of the Council that its competent authorities will not recognise and execute confiscation orders under circumstances where confiscation of the property was ordered under the extended powers of confiscation referred to in Article 2(d) (iv). Any such declaration may be withdrawn at any time.
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Article 8Reasons for non-recognition or non-execution
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1.The competent authority of the executing State may refuse to recognise and execute the confiscation order if the certificate provided for in Article 4 is not produced, is incomplete, or manifestly does not correspond to the order.
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2.The competent judicial authority of the executing State, as defined in the law of that State, may also refuse to recognise and execute the confiscation order if it is established that: (a) execution of the confiscation order would be contrary to the principle of ne bis in idem; (b) in one of the cases referred to in Article 6(3), the confiscation order relates to acts which do not constitute an offence which permits confiscation under the law of the executing State; however, in relation to taxes, duties, customs duties and exchange activities, execution of a confiscation order may not be refused on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain the same types of rules concerning taxes, duties, customs duties and exchange activities as the law of the issuing State; (c) there is immunity or privilege under the law of the executing State which would prevent the execution of a domestic confiscation order on the property concerned; (d) the rights of any interested party, including bona fide third parties, under the law of the executing State make it impossible to execute the confiscation order, including where this is a consequence of the application of legal remedies in accordance with Article 9; (e) according to the certificate provided for in Article 4(2), the person concerned did not appear personally and was not represented by a legal counsellor in the proceedings resulting in the confiscation order, unless the certificate states that the person was informed personally, or via his representative competent according to national law, of the proceedings in accordance with the law of the issuing State, or that the person has indicated that he or she does not contest the confiscation order; (f) the confiscation order is based on criminal proceedings in respect of criminal offences which: — under the law of the executing State, are regarded as having been committed wholly or partly within its territory, or in a place equivalent to its territory, or — were committed outside the territory of the issuing State, and the law of the executing State does not permit legal proceedings to be taken in respect of such offences where they are committed outside that State's territory; (g) the confiscation order, in the view of that authority, was issued in circumstances where confiscation of the property was ordered under the extended powers of confiscation referred to in Article 2(d) (iv) ; (h) the execution of a confiscation order is barred by statutory time limitations in the executing State, provided that the acts fall within the jurisdiction of that State under its own criminal law.
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3.If it appears to the competent authority of the executing State that: — the confiscation order was issued in circumstances where confiscation of the property was ordered under the extended powers of confiscation referred to in Article 2(d) (iii), and — the confiscation order falls outside the scope of the option adopted by the executing State under Article 3(2) of Framework Decision 2005/212/JHA, it shall execute the confiscation order at least to the extent provided for in similar domestic cases under national law.
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4.The competent authorities of the executing State shall give specific consideration to consulting, by any appropriate means, the competent authorities of the issuing State before deciding not to recognise and execute a confiscation order pursuant to paragraph 2, or to limit the execution thereof pursuant to paragraph 3. Consultation is obligatory where the decision is likely to be based on: — paragraph 1, — paragraph 2(a), (e), (f) or (g), — paragraph 2(d) and information is not being provided under Article 9(3), or — paragraph 3.
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5.Where it is impossible to execute the confiscation order for the reason that the property to be confiscated has already been confiscated, has disappeared, has been destroyed, cannot be found in the location indicated in the certificate or the location of the property has not been indicated in a sufficiently precise manner, even after consultation with the issuing State, the competent authority of the issuing State shall be notified forthwith.
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Article 9Legal remedies in the executing State against recognition and execution
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1.Each Member State shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, has legal remedies against the recognition and execution of a confiscation order pursuant to Article 7, in order to preserve his or her rights. The action shall be brought before a court in the executing State in accordance with the law of that State. The action may have suspensive effect under the law of the executing State.
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2.The substantial reasons for issuing the confiscation order cannot be challenged before a court in the executing State.
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3.If action is brought before a court in the executing State, the competent authority of the issuing State shall be informed thereof.
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Article 10Postponement of execution
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1.The competent authority of the executing State may postpone the execution of a confiscation order transmitted in accordance with Articles 4 and 5: (a) if, in the case of a confiscation order concerning an amount of money, it considers that there is a risk that the total value derived from its execution may exceed the amount specified in the confiscation order because of simultaneous execution of the confiscation order in more than one Member State; (b) in the cases of legal remedies referred to in Article 9; (c) where the execution of the confiscation order might damage an ongoing criminal investigation or proceedings, until such time as it deems reasonable; (d) where it is considered necessary to have the confiscation order or parts thereof translated at the expense of the executing State, for the time necessary to obtain its translation, or (e) where the property is already the subject of confiscation proceedings in the executing State.
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2.The competent authority of the executing State shall, for the duration of postponement, take all the measures it would take in a similar domestic case to prevent the property from no longer being available for the purpose of execution of the confiscation order.
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3.In the case of postponement pursuant to paragraph 1(a), the competent authority of the executing State shall inform the competent authority of the issuing State thereof immediately by any means capable of producing a written record, and the competent authority of the issuing State shall comply with the obligations referred to in Article 14(3).
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4.In the cases referred to in paragraph 1(b), (c), (d) and (e), a report on the postponement, including the grounds for the postponement and, if possible, the expected duration of the postponement, shall be made forthwith by the competent authority of the executing State to the competent authority of the issuing State by any means capable of producing a written record.
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As soon as the ground for postponement has ceased to exist, the competent authority of the executing State shall forthwith take the necessary measures for the execution of the confiscation order and inform the competent authority of the issuing State thereof by any means capable of producing a written record.
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Article 11Multiple confiscation orders
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If the competent authorities of the executing State are processing: — two or more confiscation orders concerning an amount of money, which have been issued against the same natural or legal person, and the person concerned does not have sufficient means in the executing State to enable all the orders to be executed, or — two or more confiscation orders concerning the same specific item of property, the decision on which of the confiscation orders is or are to be executed shall be taken by the competent authority of the executing State according to the law of the executing State, with due consideration of all the circumstances, which may include the involvement of frozen assets, the relative seriousness and the place of the offence, the dates of the respective orders and the dates of transmission of the respective orders.
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Article 12Law governing execution
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1.Without prejudice to paragraph 3, the execution of the confiscation order shall be governed by the law of the executing State and its authorities alone shall be competent to decide on the procedures for execution and to determine all the measures relating thereto.
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2.In the case where the person concerned is able to furnish proof of confiscation, totally or in part, in any State, the competent authority of the executing State shall consult the competent authority of the issuing State by any appropriate means. Any part of the amount, in the case of confiscation of proceeds, that is recovered pursuant to the confiscation order in any State other than the executing State shall be deducted in full from the amount to be confiscated in the executing State.
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3.A confiscation order issued against a legal person shall be executed even if the executing State does not recognise the principle of criminal liability of legal persons.
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4.The executing State may not impose measures as an alternative to the confiscation order, including custodial sanctions or any other measure limiting a person's freedom, as a result of a transmission pursuant to Articles 4 and 5, unless the issuing State has given its consent.
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Article 13Amnesty, pardon, review of confiscation order
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1.Amnesty and pardon may be granted by the issuing State and also by the executing State.
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2.Only the issuing State may determine any application for review of the confiscation order.
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Article 14Consequences of transmission of confiscation orders
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1.The transmission of a confiscation order to one or more executing States in accordance with Articles 4 and 5 does not restrict the right of the issuing State to execute the confiscation order itself.
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2.In the case of transmission of a confiscation order concerning an amount of money to one or more executing States, the total value derived from its execution may not exceed the maximum amount specified in the confiscation order.
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3.The competent authority of the issuing State shall immediately inform the competent authority of any executing State concerned by any means capable of producing a written record: (a) if it considers that there is a risk that execution beyond the maximum amount may occur, for example on the basis of information notified to it by an executing State pursuant to Article 10(3). In the event of the application of Article 10(1) (a), the competent authority of the issuing State shall as soon as possible inform the competent authority of the executing State whether the risk referred to has ceased to exist; (b) if all or a part of the confiscation order has been executed in the issuing State or in another executing State. The amount for which the confiscation order has not yet been executed shall be specified; (c) if, after transmission of a confiscation order in accordance with Articles 4 and 5, an authority of the issuing State receives any sum of money which the person concerned has paid voluntarily in respect of the confiscation order. Article 12(2) shall apply.
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Article 15Termination of execution
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The competent authority of the issuing State shall forthwith inform the competent authority of the executing State by any means capable of reducing a written record of any decision or measure as a result of which the order ceases to be enforceable or shall be withdrawn from the executing State for any other reason. The executing State shall terminate execution of the order as soon as it is informed by the competent authority of the issuing State of that decision or measure.
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Article 16Disposal of confiscated property
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1.Money which has been obtained from the execution of the confiscation order shall be disposed of by the executing State as follows: (a) if the amount obtained from the execution of the confiscation order is below EUR 10 000, or the equivalent to that amount, the amount shall accrue to the executing State; (b) in all other cases, 50 % of the amount which has been obtained from the execution of the confiscation order shall be transferred by the executing State to the issuing State.
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2.Property other than money, which has been obtained from the execution of the confiscation order, shall be disposed of in one of the following ways, to be decided by the executing State: (a) the property may be sold. In that case, the proceeds of the sale shall be disposed of in accordance with paragraph 1; (b) the property may be transferred to the issuing State. If the confiscation order covers an amount of money, the property may only be transferred to the issuing State when that State has given its consent; (c) when it is not possible to apply (a) or (b), the property may be disposed of in another way in accordance with the law of the executing State.
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3.Notwithstanding paragraph 2, the executing State shall not be required to sell or return specific items covered by the confiscation order which constitute cultural objects forming part of the national heritage of that State.
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4.Paragraphs 1, 2 and 3 apply unless otherwise agreed between the issuing State and the executing State.
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Article 17Information on the result of the execution
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The competent authority of the executing State shall without delay inform the competent authority of the issuing State by any means capable of producing a written record: (a) of the transmission of the confiscation order to the competent authority, according to Article 4(5) ; (b) of any decision not to recognise the confiscation order, together with the reasons for the decision; (c) of the total or partial non-execution of the order for the reasons referred to in Article 11, Article 12(1) and (2) or Article 13(1) ; (d) as soon as the execution of the order has been completed; (e) of the application of alternative measures, according to Article 12(4).
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Article 18Reimbursement
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1.Without prejudice to Article 9(2), where the executing State under its law is responsible for injury caused to one of the interested parties mentioned in Article 9 by the execution of a confiscation order transmitted to it pursuant to Articles 4 and 5, 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 exclusively due to the conduct of the executing State.
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2.Paragraph 1 is without prejudice to the law of the Member States on claims by natural or legal persons for compensation of damage.
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Article 19Languages
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1.The certificate shall be translated into the official language or one of the official languages of the executing State.
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2.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 a translation in one or more other official languages of the Institutions of the European Communities.
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Article 20Costs
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1.Without prejudice to Article 16, Member States may not claim from each other the refund of costs resulting from application of this Framework Decision.
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2.Where the executing State has had costs which it considers large or exceptional, it may propose to the issuing State that the costs be shared. The issuing State shall take into account any such proposal on the basis of detailed specifications given by the executing State.
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Article 21Relationship with other agreements and arrangements
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This Framework Decision shall not affect the application of bilateral or multilateral agreements or arrangements between Member States in so far as such agreements or arrangements help to further simplify or facilitate the procedures for the execution of confiscation orders.
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Article 22Implementation
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1.Member States shall take the necessary measures to comply with this Framework Decision by 24 November 2008.
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2.Member States shall communicate to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations resulting from this Framework Decision. On the basis of a report established on the basis of this information by the Commission, the Council shall, by 24 November 2009, assess the extent to which Member States have taken the necessary measures to comply with this Framework Decision.
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3.The General Secretariat of the Council shall notify the Member States and the Commission of the declarations made pursuant to Articles 7(5) and 19(2).
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4.A Member State which has experienced repeated difficulties or lack of activity by another Member State in the mutual recognition and execution of confiscation orders, which have not been resolved through bilateral consultations, may inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level.
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5.The Member States, acting as executing States, shall inform the Council and the Commission, at the beginning of the calendar year, of the number of cases in which Article 17(b) has been applied and a summary of reasons for this.
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By 24 November 2013, the Commission shall establish a report on the basis of the information received, accompanied by any initiatives it may deem appropriate.
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Article 23Entry into force
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This Framework Decision shall enter into force on the day of its publication in the Official Journal of the European Union.
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Done at Luxembourg, 6 October 2006.
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For the Council The President K. RAJAMÄKI ANNEX CERTIFICATE referred to in Article 4 of Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders ”.
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SCHEDULE 4 Text of Council Decision 2008/617/JHA of 23 June 2008 on the Improvement of Cooperation Between Special Intervention Units of the Member States of the European Union in Crisis Situations “Schedule 7A Text of the 2008 Council Decision (special intervention units) COUNCIL DECISION 2008/617/JHA of 23 June 2008 on the improvement of cooperation between the special intervention units of the Member States of the European Union in crisis situations THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 30, 32 and 34(2) (c) thereof, Having regard to the initiative of the Republic of Austria 1 , Having regard to the opinion of the European Parliament 2 , Whereas:
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(1)Article 29 of the Treaty states that the Union's objective is to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters.
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(2)In their Declaration on Solidarity against Terrorism of 25 March 2004, the Heads of State and Government of the Member States of the European Union declared their firm intention that the Member States mobilise all the instruments at their disposal to assist a Member State or an acceding State in its territory at the request of its political authorities in the event of a terrorist attack.
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(3)Following the attacks of 11 September 2001, the special intervention units of all law enforcement authorities of the Member States have already initiated cooperation activities under the aegis of the Police Chiefs Task Force. Since 2001, their network, called ‘Atlas’, has conducted various seminars, studies, exchanges of materials, and joint exercises.
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(4)No single Member State has all the means, resources and expertise at its disposal to deal effectively with all possible kinds of specific or large-scale crisis situations requiring special intervention. It is therefore of crucial importance that each Member State be able to request the assistance of another Member State.
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(5)Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime 3 (Prüm Decision), and in particular Article 18 thereof, regulates forms of police assistance between Member States in connection with mass gatherings and similar major events, disasters and serious accidents. This Decision does not cover mass gatherings, natural disasters or serious accidents within the meaning of Article 18 of the Prüm Decision but complements those provisions of the Prüm Decision envisaging forms of police assistance between Member States through special intervention units in other situations, namely in man-made crisis situations presenting a serious direct physical threat to persons, property, infrastructure or institutions, in particular hostage taking, hijacking and similar events.
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(6)The availability of this legal framework and of a compilation indicating the competent authorities will allow Member States to react speedily and gain time should such a crisis situation arise. Moreover, with a view to enhancing Member States' ability to prevent and respond to such crisis situations, and in particular terrorist incidents, it is essential for the special intervention units to meet regularly and organise joint trainings, so as to benefit from mutual experiences, HAS DECIDED AS FOLLOWS:
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Article 1Subject matter
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This Decision lays down general rules and conditions to allow for special intervention units of one Member State to provide assistance and/or operate on the territory of another Member State (hereinafter referred to as the requesting Member State) in cases where they have been invited by the requesting Member State and have agreed to do so in order to deal with a crisis situation. The practical details and implementing arrangements complementing this Decision shall be agreed directly between the requesting Member State and the requested Member State.
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Article 2Definitions
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For the purpose of this Decision: (a) ‘special intervention unit’ shall mean any law enforcement unit of a Member State which is specialised in the control of a crisis situation; (b) ‘crisis situation’ shall mean any situation in which the competent authorities of a Member State have reasonable grounds to believe that there is a criminal offence presenting a serious direct physical threat to persons, property, infrastructure or institutions in that Member State, in particular those situations referred to in Article 1(1) of Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism4 ; (c) ‘competent authority’ shall mean the national authority which may make requests and give authorisations regarding the deployment of the special intervention units.
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Article 3Assistance to another Member State
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1.Through a request via the competent authorities, setting out the nature of the assistance requested as well as the operational necessity therefor, a Member State may ask to be assisted by a special intervention unit of another Member State with a view to dealing with a crisis situation. The competent authority of the requested Member State may accept or refuse such a request or may propose a different kind of assistance.
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2.Subject to agreement between the Member States concerned, assistance may consist of providing the requesting Member State with equipment and/or expertise and/or of carrying out actions on the territory of that Member State, using weapons if so required.
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3.In the case of actions on the territory of the requesting Member State, officers of the assisting special intervention unit shall be authorised to operate in a supporting capacity on the territory of the requesting Member State and take all necessary measures to provide the requested assistance in so far as they: (a) operate under the responsibility, authority and direction of the requesting Member State and in accordance with the law of the requesting Member State; and (b) operate within the limits of their powers under their national law.
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Article 4Civil and criminal liability
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When officers of a Member State operate within another Member State and/or equipment is used under this Decision, the provisions on civil and criminal liability, set out in Articles 21(4) and (5) and 22 of the Prüm Decision shall apply.
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Article 5Meetings and joint training
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The participating Member States shall ensure that their special intervention units hold meetings and organise joint training and exercises, whenever necessary, with a view to exchanging experience, expertise and general, practical and technical information on dealing with a crisis situation. Such meetings, training and exercises may be funded under possibilities offered by the financial programmes of the Union to obtain grants from the budget of the European Union. In this context, the Member State holding the Presidency of the Union shall endeavour to ensure that such meetings, training and exercises take place.
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Article 6Costs
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The requesting Member State shall bear the operational costs incurred by the requested Member State's special intervention units in connection with the application of Article 3, including transport and accommodation costs, unless otherwise agreed between the Member States concerned.
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Article 7Relation to other instruments
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1.Without prejudice to their commitments under other acts adopted pursuant to Title VI of the Treaty, in particular the Prüm Decision: (a) Member States may continue to apply bilateral or multilateral agreements or arrangements on cross-border cooperation in force on 23 June 2008 in so far as such agreements or arrangements are not incompatible with the objectives of this Decision; (b) Member States may conclude or bring into force bilateral or multilateral agreements or arrangements on cross-border cooperation after 23 December 2008 in so far as such agreements or arrangements provide for the objectives of this Decision to be extended or enlarged.
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2.The agreements and arrangements referred to in paragraph 1 may not affect relations with Member States which are not parties thereto.
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3.Member States shall inform the Council and the Commission of the agreements or arrangements referred to in paragraph 1.
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Article 8Final provisions
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The General Secretariat of the Council shall compile and keep up to date the list of the competent authorities of the Member States which may make requests and give authorisations for providing assistance as referred to in Article 3.
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The General Secretariat of the Council shall inform the authorities mentioned in paragraph 1 of any change to the list established pursuant to this Article.
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Article 9Entry into force
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This Decision shall enter into force on 23 December 2008.
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Done at Luxembourg, 23 June 2008.
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For the Council The President I. JARC ”.
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SCHEDULE 5 Text of Council Decision 2009/426/JHA of 16 December 2008 on the Strengthening of Eurojust and Amending Decision 2002/187/JHA Setting up Eurojust with a view to Reinforcing the Fight Against Serious Crime “Schedule 7B Text of 2009 Council Decision COUNCIL DECISION 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 31(2) and 34(2) (c) thereof, Having regard to the initiative of the Kingdom of Belgium, the Czech Republic, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic and the Kingdom of Sweden, Having regard to the Opinion of the European Parliament 1 Whereas:
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(1)Eurojust was set up by Council Decision 2002/187/JHA2 as a body of the European Union with legal personality to stimulate and to improve coordination and cooperation between competent judicial authorities of the Member States.
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(2)On the basis of an assessment of the experience gained by Eurojust, a further enhancement of its operational effectiveness is needed by taking account of that experience.
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(3)The time has come to ensure that Eurojust becomes more operational and that the status of national members is approximated.
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(4)In order to ensure continuous and effective contribution from the Member States to the achievement by Eurojust of its objectives, the national member should be required to have his regular place of work at the seat of Eurojust.
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(5)It is necessary to define a common basis of powers which every national member should have in his capacity as a competent national authority acting in accordance with national law. Some of these powers should be granted to the national member for urgent cases where it is not possible for him to identify or to contact the competent national authority in a timely manner. It is understood that these powers will not have to be exercised in so far as it is possible to identify and to contact the competent authority.
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(6)This Decision does not affect the manner in which the Member States organise their internal judicial system or administrative procedures for the designation of the national member and the setting up of the internal working of the national desks at Eurojust.
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(7)The setting up of an On-Call Coordination (OCC) within Eurojust is necessary to make Eurojust available around the clock and to enable it to intervene in urgent cases. It should be the responsibility of each Member State to ensure that their representatives in the OCC are able to act on a 24-hour/7-day basis.
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(8)Member States should ensure that competent national authorities respond without undue delay to requests made under this Decision, even if competent national authorities refuse to comply with requests made by the national member.
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(9)The role of the College should be enhanced in cases of conflict of jurisdiction and in cases of recurrent refusals or difficulties concerning the execution of requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition.
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(10)Eurojust national coordination systems should be set up in the Member States to coordinate the work carried out by the national correspondents for Eurojust, the national correspondent for Eurojust for terrorism matters, the national correspondent for the European Judicial Network and up to three other contact points of the European Judicial Network, as well as representatives in the Networks for Joint Investigation Teams, War Crimes, Asset Recovery and Corruption.
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(11)The Eurojust national coordination system should ensure that the Case Management System receives information related to the Member State concerned in an efficient and reliable manner. However, the Eurojust national coordination system should not have to be responsible for actually transmitting information to Eurojust. Member States should decide on the best channel to be used for the transmission of information to Eurojust.
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(12)In order to enable the Eurojust national coordination system to fulfil its tasks, a connection to the Case Management System should be ensured. The connection to the Case Management System should be made taking due account of national information technology systems. Access to the Case Management System at national level should be based on the central role played by the national member who is responsible for the opening and management of temporary work files.
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(13)Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters 3 is applicable to the processing by the Member States of the personal data transferred between the Member States and Eurojust. The relevant set of data protection provisions of Decision 2002/187/JHA will not be affected by Framework Decision 2008/977/JHA and contains specific provisions on the protection of personal data regulating these matters in more detail because of the particular nature, functions and competences of Eurojust.
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(14)Eurojust should be authorised to process certain personal data on persons who, under the national legislation of the Member States concerned, are suspected of having committed or having taken part in a criminal offence in respect of which Eurojust is competent, or who have been convicted of such an offence. The list of such personal data should include telephone numbers, e-mail addresses, vehicle registration data, DNA profiles established from the non-coding part of DNA, photographs and fingerprints. The list should also include traffic data and location data and the related data necessary to identify the subscriber or user of a publicly available electronic communications service; this should not include data revealing the content of the communication. It is not intended that Eurojust carry out an automated comparison of DNA profiles or fingerprints.
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(15)Eurojust should be given the opportunity to extend the deadlines for storage of personal data in order to achieve its objectives. Such decisions should be taken following careful consideration of particular needs. Any extension of deadlines for processing personal data, where prosecution is statute barred in all Member States concerned, should be decided only where there is a specific need to provide assistance under this Decision.
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(16)The Rules on the Joint Supervisory Body should facilitate its functioning.
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(17)With a view to increasing the operational effectiveness of Eurojust, transmission of information to Eurojust should be improved by providing clear and limited obligations for national authorities.
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(18)Eurojust should implement priorities set by the Council, in particular those set on the basis of the Organised Crime Threat Assessment (OCTA), as referred to in the Hague Programme 4 .
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(19)Eurojust is to maintain privileged relations with the European Judicial Network based on consultation and complementarity. This Decision should help clarify the respective roles of Eurojust and the European Judicial Network and their mutual relations, while maintaining the specificity of the European Judicial Network.
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(20)Nothing in this Decision should be construed to affect the autonomy of the secretariats of the networks mentioned in this Decision when they discharge their function as Eurojust staff in accordance with the Staff Regulations of Officials of the European Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68 of the Council 5 .
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(21)It is also necessary to strengthen Eurojust’s capacity to work with external partners, such as third States, the European Police Office (Europol), the European Anti-Fraud Office (OLAF), the Council’s Joint Situation Centre and the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex).
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(22)Provision should be made for Eurojust to post liaison magistrates to third States in order to achieve objectives similar to those assigned to liaison magistrates seconded by the Member States on the basis of Council Joint Action 96/277/JHA of 22 April 1996 concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union 6 .
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(23)This Decision allows the principle of public access to official documents to be taken into account, HAS DECIDED AS FOLLOWS:
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Article 1Amendments to Decision 2002/187/JHA
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Decision 2002/187/JHA is hereby amended as follows:
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1.Article 2 shall be replaced by the following: ‘Article 2 Composition of Eurojust 1. Eurojust shall have one national member seconded by each Member State in accordance with its legal system, who is a prosecutor, judge or police officer of equivalent competence.
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2.Member States shall ensure continuous and effective contribution to the achievement by Eurojust of its objectives under Article 3. To fulfil those objectives: (a) the national member shall be required to have his regular place of work at the seat of Eurojust; (b) each national member shall be assisted by one deputy and by another person as an assistant. The deputy and the assistant may have their regular place of work at Eurojust. More deputies or assistants may assist the national member and may, if necessary and with the agreement of the College, have their regular place of work at Eurojust.
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3.The national member shall have a position which grants him the powers referred to in this Decision in order to be able to fulfil his tasks.
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4.National members, deputies and assistants shall be subject to the national law of their Member State as regards their status.
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5.The deputy shall fulfil the criteria provided for in paragraph 1 and be able to act on behalf of or to substitute the national member. An assistant may also act on behalf of or substitute the national member if he fulfils the criteria provided for in paragraph 1.
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6.Eurojust shall be linked to a Eurojust national coordination system in accordance with Article 12.
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7.Eurojust shall have the possibility of posting liaison magistrates in third States in accordance with this Decision.
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8.Eurojust shall, in accordance with this Decision, have a Secretariat headed by an Administrative Director.’;
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2.Article 3 shall be amended as follows: (a) in paragraph 1(b), the words ‘international mutual legal assistance and the implementation of extradition requests’ shall be replaced by ‘requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition;’; (b) in paragraph 2, the words ‘Article 27(3) ’ shall be replaced by ‘Article 26a(2) ’;
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3.Article 4(1) shall be amended as follows: (a) point (b) shall be replaced by the following: ‘(a) the types of crime and the offences in respect of which Europol is at all times competent to act;’ 7 ; (b) point (b) shall be deleted; (c) in point (c), the words ‘in points (a) and (b) ’ shall be replaced by ‘in point (a) ’;
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4.the following Article shall be inserted: ‘Article 5a On-Call Coordination 1. In order to fulfil its tasks in urgent cases, Eurojust shall put in place an On-Call Coordination (OCC) able to receive and process at all times requests referred to it. The OCC shall be contactable, through a single OCC contact point at Eurojust, on a 24-hour/7-day basis.
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2.The OCC shall rely on one representative (OCC representative) per Member State who may be either the national member, his deputy, or an assistant entitled to replace the national member. The OCC representative shall be able to act on a 24-hour/7-day basis.
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3.When in urgent cases a request for, or a decision on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition, needs to be executed in one or more Member States, the requesting or issuing competent authority may forward it to the OCC. The OCC contact point shall immediately forward it to the OCC representative of the Member State from which the request originates and, if explicitly requested by the transmitting or issuing authority, to the OCC representatives of the Member States on the territory of which the request should be executed. These OCC representatives shall act without delay, in relation to the execution of the request in their Member State, through the exercise of tasks or powers available to them and referred to in Article 6 and Articles 9a to 9f.’;
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5.Article 6 shall be amended as follows: (a) the existing paragraph shall become paragraph 1; (b) paragraph 1(a) shall be replaced by the following: ‘(a) may ask the competent authorities of the Member States concerned, giving its reasons, to: (i) undertake an investigation or prosecution of specific acts; (ii) accept that one of them may be in a better position to undertake an investigation or to prosecute specific acts; (iii) coordinate between the competent authorities of the Member States concerned; (iv) set up a joint investigation team in keeping with the relevant cooperation instruments; (v) provide it with any information that is necessary for it to carry out its tasks; (vi) take special investigative measures; (vii) take any other measure justified for the investigation or prosecution;’; (c) paragraph 1(g) shall be deleted; (d) the following paragraph shall be added: ‘2. The Member States shall ensure that competent national authorities respond without undue delay to requests made under this Article.’;
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6.Article 7 shall be amended as follows: (a) the existing paragraph shall become paragraph 1; (b) the following paragraphs shall be added: ‘2. Where two or more national members can not agree on how to resolve a case of conflict of jurisdiction as regards the undertaking of investigations or prosecution pursuant to Article 6 and in particular Article 6(1) (c), the College shall be asked to issue a written non-binding opinion on the case, provided the matter could not be resolved through mutual agreement between the competent national authorities concerned. The opinion of the College shall be promptly forwarded to the Member States concerned. This paragraph is without prejudice to paragraph 1(a) (ii).
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3.Notwithstanding the provisions contained in any instruments adopted by the European Union regarding judicial cooperation, a competent authority may report to Eurojust recurrent refusals or difficulties concerning the execution of requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition, and request the College to issue a written non-binding opinion on the matter, provided it could not be resolved through mutual agreement between the competent national authorities or through the involvement of the national members concerned. The opinion of the College shall be promptly forwarded to the Member States concerned.’;
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7.Articles 8 and 9 shall be replaced by the following: ‘Article 8 Follow up to requests and opinions of Eurojust If the competent authorities of the Member States concerned decide not to comply with a request referred to in Article 6(1) (a) or Article 7(1) (a) or decide not to follow a written opinion referred to in Article 7(2) and (3), they shall inform Eurojust without undue delay of their decision and of the reasons for it. Where it is not possible to give the reasons for refusing to comply with a request because to do so would harm essential national security interests or would jeopardise the safety of individuals, the competent authorities of the Member States may cite operational reasons.
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Article 9National members
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1.The length of a national member’s term of office shall be at least four years. The Member State of origin may renew the term of office. The national member shall not be removed before the end of a term without informing the Council before the removal and indicating to it the reason therefor. Where a national member is President or Vice-President of Eurojust, his term of office as a member shall at least be such that he can fulfil his function as President or Vice-President for the full elected term.
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2.All information exchanged between Eurojust and Member States shall be directed through the national member.
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3.In order to meet Eurojust’s objectives, the national member shall have at least equivalent access to, or at least be able to obtain the information contained in, the following types of registers of his Member State as would be available to him in his role as a prosecutor, judge or police officer, whichever is applicable, at national level: (a) criminal records; (b) registers of arrested persons; (c) investigation registers; (d) DNA registers; (e) other registers of his Member State where he deems this information necessary for him to be able to fulfil his tasks.
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4.A national member may contact the competent authorities of his Member State directly.’;
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8.the following Articles shall be inserted: ‘Article 9a Powers of the national member granted to him at national level 1. When a national member exercises the powers referred to in Articles 9b, 9c and 9d, he does so in his capacity as a competent national authority acting in accordance with national law and subject to the conditions laid down in this Article and Articles 9b to 9e. In the performance of his tasks the national member shall, where appropriate, make it known whenever he is acting in accordance with the powers granted to national members under this Article and Articles 9b, 9c and 9d.
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2.Each Member State shall define the nature and extent of the powers it grants its national member as regards judicial cooperation in respect of that Member State. However, each Member State shall grant its national member at least the powers described in Article 9b and, subject to Article 9e, the powers described in Articles 9c and 9d, which would be available to him as a judge, prosecutor or police officer, whichever is applicable, at national level.
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3.When appointing its national member and at any other time if appropriate, the Member State shall notify Eurojust and the General Secretariat of the Council of its decision regarding the implementation of paragraph 2 so that the latter can inform the other Member States. The Member States shall undertake to accept and recognise the prerogatives thus granted in so far as they are in conformity with international commitments.
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4.Each Member State shall define the right for a national member to act in relation to foreign judicial authorities, in accordance with its international commitments.
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Article 9bOrdinary powers
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1.National members, in their capacity as competent national authorities, shall be entitled to receive, transmit, facilitate, follow up and provide supplementary information in relation to the execution of requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition. When powers referred to in this paragraph are exercised, the competent national authority shall be informed promptly.
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2.In case of partial or inadequate execution of a request for judicial cooperation, national members, in their capacity as competent national authorities, shall be entitled to ask the competent national authority of their Member State for supplementary measures in order for the request to be fully executed.
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Article 9cPowers exercised in agreement with a competent national authority
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1.National members may, in their capacity as competent national authorities, in agreement with a competent national authority, or at its request and on a case-by-case basis, exercise the following powers: (a) issuing and completing requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition; (b) executing in their Member State requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition; (c) ordering in their Member State investigative measures considered necessary at a coordination meeting organised by Eurojust to provide assistance to competent national authorities concerned by a concrete investigation and to which competent national authorities concerned with the investigation are invited to participate; (d) authorising and coordinating controlled deliveries in their Member State.
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2.Powers referred to in this Article shall, in principle, be exercised by a competent national authority.
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Article 9dPowers exercised in urgent cases
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In their capacity as competent national authorities, national members shall, in urgent cases and in so far as it is not possible for them to identify or to contact the competent national authority in a timely manner, be entitled: (a) to authorise and to coordinate controlled deliveries in their Member State; (b) to execute, in relation to their Member State a request for, or a decision on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition.
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As soon as the competent national authority is identified or contacted, it shall be informed of the exercise of powers referred to in this Article.
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Article 9eRequests from national members where powers cannot be exercised
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1.The national member, in his capacity as a competent national authority, shall be at least competent to submit a proposal to the authority competent for the carrying out of powers referred to in Articles 9c and 9d when granting such powers to the national member is contrary to: (a) constitutional rules; or (b) fundamental aspects of the criminal justice system: (i) regarding the division of powers between the police, prosecutors and judges; (ii) regarding the functional division of tasks between prosecution authorities; or (iii) related to the federal structure of the Member State concerned.
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2.Member States shall ensure that, in cases referred to in paragraph 1, the request issued by the national member be handled without undue delay by the competent national authority.
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Article 9fParticipation of national members in joint investigation teams
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National members shall be entitled to participate in joint investigation teams, including in their setting up, in accordance with Article 13 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union or Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams8 , concerning their own Member State. However, Member States may make the participation of the national member subject to the agreement of the competent national authority. National members, their deputies or their assistants, shall be invited to participate in any joint investigation team involving their Member State and for which Community funding is provided under the applicable financial instruments. Each Member State shall define whether the national member participates in the joint investigation team as a national competent authority or on behalf of Eurojust.
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9.Article 10 shall be amended as follows: (a) in paragraph 2, the first sentence shall be replaced by the following: ‘2. The Council shall, acting by qualified majority, approve Eurojust’s Rules of Procedure on a proposal from the College. The College shall adopt its proposal by a two-thirds majority after consulting the Joint Supervisory Board provided for in Article 23 as regards the provisions on the processing of personal data.’; (b) in paragraph 3, the words ‘in accordance with Article 7(a) ’ shall be replaced by ‘in accordance with Article 7(1) (a), (2) and (3) ’;
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10.Article 12 shall be replaced by the following: ‘Article 12 Eurojust national coordination system 1. Each Member State shall designate one or more national correspondents for Eurojust.
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2.Each Member State shall, before 4 June 2011, set up a Eurojust national coordination system to ensure coordination of the work carried out by: (a) the national correspondents for Eurojust; (b) the national correspondent for Eurojust for terrorism matters; (c) the national correspondent for the European Judicial Network and up to three other contact points of the European Judicial Network; (d) national members or contact points of the Network for Joint Investigation Teams and of the networks set up by Council Decision 2002/494/JHA of 13 June 2002 setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes9 , Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to, crime10 and by Council Decision 2008/852/JHA of 24 October 2008 on a contact-point network against corruption11 .
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3.The persons referred to in paragraphs 1 and 2 shall maintain their position and status under national law.
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4.The national correspondents for Eurojust shall be responsible for the functioning of the Eurojust national coordination system. When several correspondents for Eurojust are designated, one of them shall be responsible for the functioning of the Eurojust national coordination system.
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5.The Eurojust national coordination system shall facilitate, within the Member State, the carrying out of the tasks of Eurojust, in particular by: (a) ensuring that the Case Management System referred to in Article 16 receives information related to the Member State concerned in an efficient and reliable manner; (b) assisting in determining whether a case should be dealt with with the assistance of Eurojust or of the European Judicial Network; (c) assisting the national member to identify relevant authorities for the execution of requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition; (d) maintaining close relations with the Europol National Unit.
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6.In order to meet the objectives referred to in paragraph 5, persons referred to in paragraph 1 and paragraph 2(a), (b) and (c) shall, and persons referred to in paragraph 2(d) may, be connected to the Case Management System in accordance with this Article and Articles 16, 16a, 16b and 18 as well as with the Rules of Procedure of Eurojust. The connection to the Case Management System shall be at the charge of the general budget of the European Union.
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7.Nothing in this Article shall be construed to affect direct contacts between competent judicial authorities as provided for in instruments on judicial cooperation, such as Article 6 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. Relations between the national member and national correspondents shall not preclude direct contacts between the national member and his competent authorities.
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11.Article 13 shall be replaced by the following: ‘Article 13 Exchanges of information with the Member States and between national members 1. The competent authorities of the Member States shall exchange with Eurojust any information necessary for the performance of its tasks in accordance with Articles 4 and 5 as well as with the rules on data protection set out in this Decision. This shall at least include the information referred to in paragraphs 5, 6 and 7.
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2.The transmission of information to Eurojust shall be interpreted as a request for the assistance of Eurojust in the case concerned only if so specified by a competent authority.
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3.The national members of Eurojust shall be empowered to exchange any information necessary for the performance of the tasks of Eurojust, without prior authorisation, among themselves or with their Member State’s competent authorities. In particular national members shall be promptly informed of a case which concerns them.
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4.This Article shall be without prejudice to other obligations regarding the transmission of information to Eurojust, including Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences 12.
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5.Member States shall ensure that national members are informed of the setting up of a joint investigation team, whether it is set up under Article 13 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union or under Framework Decision 2002/465/JHA, and of the results of the work of such teams.
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6.Member States shall ensure that their national member is informed without undue delay of any case in which at least three Member States are directly involved and for which requests for or decisions on judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition, have been transmitted to at least two Member States and (a) the offence involved is punishable in the requesting or issuing Member State by a custodial sentence or a detention order for a maximum period of at least five or six years, to be decided by the Member State concerned, and is included in the following list: (i) trafficking in human beings; (ii) sexual exploitation of children and child pornography; (iii) drug trafficking; (iv) trafficking in firearms, their parts and components and ammunition; (v) corruption; (vi) fraud affecting the financial interests of the European Communities; (vii) counterfeiting of the euro; (viii) money laundering; (ix) attacks against information systems; or (b) there are factual indications that a criminal organisation is involved; or (c) there are indications that the case may have a serious cross-border dimension or repercussions at European Union level or that it might affect Member States other than those directly involved.
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7.Member States shall ensure that their national member is informed of: (a) cases where conflicts of jurisdiction have arisen or are likely to arise; (b) controlled deliveries affecting at least three States, at least two of which are Member States; (c) repeated difficulties or refusals regarding the execution of requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition.
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8.National authorities shall not be obliged in a particular case to supply information if this would mean: (a) harming essential national security interests; or (b) jeopardising the safety of individuals.
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9.This Article shall be without prejudice to conditions set in bilateral or multilateral agreements or arrangements between Member States and third countries including any conditions set by third countries concerning the use of information once supplied.
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10.Information transmitted to Eurojust pursuant to paragraphs 5, 6 and 7 shall at least include, where available, the types of information contained in the list provided for in the Annex.
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11.Information referred to in this Article shall be transmitted to Eurojust in a structured way.
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12.By 4 June 201412 , the Commission shall establish, on the basis of information transmitted by Eurojust, a report on the implementation of this Article, accompanied by any proposal it may deem appropriate, including with a view to considering an amendment of paragraphs 5, 6 and 7 and the Annex.
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12.the following Article shall be inserted: ‘Article 13a Information provided by Eurojust to competent national authorities 1. Eurojust shall provide competent national authorities with information and feedback on the results of the processing of information, including the existence of links with cases already stored in the Case Management System.
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2.Furthermore, where a competent national authority requests Eurojust to provide it with information, Eurojust shall transmit it in the timeframe requested by that authority.’;
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13.Article 14 shall be amended as follows: (a) in paragraph 3, the words ‘in accordance with Articles 13 and 26’ shall be replaced by ‘in accordance with Articles 13, 26 and 26a’; (b) paragraph 4 shall be deleted;
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14.Article 15(1) shall be amended as follows: (a) in the introductory phrase the words ‘are the subject of a criminal investigation or prosecution for one or more of the types of crime and the offences defined in Article 4’ shall be replaced by ‘are suspected of having committed or having taken part in a criminal offence in respect of which Eurojust is competent or who have been convicted of such an offence’; (b) the following points shall be added: ‘(l) telephone numbers, e-mail addresses and data referred to in Article 2(2)(a) of Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks13 ; (m) vehicle registration data; (n) DNA profiles established from the non-coding part of DNA, photographs and fingerprints.
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15.Article 16 shall be replaced by the following: ‘Article 16 Case Management System, index and temporary work files 1. In accordance with this Decision, Eurojust shall establish a Case Management System composed of temporary work files and of an index which contain personal and non-personal data.
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2.The Case Management System shall be intended to: (a) support the management and coordination of investigations and prosecutions for which Eurojust is providing assistance, in particular by the cross-referencing of information; (b) facilitate access to information on ongoing investigations and prosecutions; (c) facilitate the monitoring of lawfulness and compliance with the provisions of this Decision concerning the processing of personal data.
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3.The Case Management System, in so far as this is in conformity with rules on data protection contained in this Decision, may be linked to the secure telecommunications connection referred to in Article 9 of Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network14 .
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4.The index shall contain references to temporary work files processed within the framework of Eurojust and may contain no personal data other than those referred to in Article 15(1)(a) to (i), (k) and (m) and in Article 15(2).
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5.In the performance of their duties in accordance with this Decision, the national members of Eurojust may process data on the individual cases on which they are working in a temporary work file. They shall allow the Data Protection Officer to have access to the work file. The Data Protection Officer shall be informed by the national member concerned of the opening of each new temporary work file that contains personal data.
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6.For the processing of case related personal data, Eurojust may not establish any automated data file other than the Case Management System.
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16.the following Articles shall be inserted: ‘Article 16a Functioning of temporary work files and the index 1. A temporary work file shall be opened by the national member concerned for every case with respect to which information is transmitted to him in so far as this transmission is in accordance with this Decision or with instruments referred to in Article 13(4). The national member shall be responsible for the management of the temporary work files which he has opened.
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2.The national member who has opened a temporary work file shall decide, on a case-by-case basis, whether to keep the temporary work file restricted or to give access to it or to parts of it, where necessary to enable Eurojust to carry out its tasks, to other national members or to authorised Eurojust staff.
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3.The national member who has opened a temporary work file shall decide which information related to this temporary work file shall be introduced in the index.
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Article 16bAccess to the Case Management System at national level
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1.Persons referred to in Article 12(2) in so far as they are connected to the Case Management System in accordance with Article 12(6) may only have access to: (a) the index, unless the national member who has decided to introduce the data in the index expressly denied such access; (b) temporary work files opened or managed by the national member of their Member State; (c) temporary work files opened or managed by national members of other Member States and to which the national member of their Member States has received access unless the national member who opened or manages the temporary work file expressly denied such access.
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2.The national member shall, within the limitations provided for in paragraph 1, decide on the extent of access to the temporary work files which is granted in his Member State to persons referred to in Article 12(2) in so far as they are connected to the Case Management System in accordance with Article 12(6).
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3.Each Member State shall decide, after consultation with its national member, on the extent of access to the index which is granted in that Member State to persons referred to in Article 12(2) in so far as they are connected to the Case Management System in accordance with Article 12(6). Member States shall notify Eurojust and the General Secretariat of the Council of their decision regarding the implementation of this paragraph so that the latter can inform the other Member States.
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However, persons referred to in Article 12(2), in so far as they are connected to the Case Management System in accordance with Article 12(6), shall at least have access to the index to the extent necessary to access the temporary work files to which they have been granted access in accordance with paragraph 2 of this Article.
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4.By 4 June 2013, Eurojust shall report to the Council and the Commission on the implementation of paragraph 3. Each Member State shall consider, on the basis of that report, the opportunity to review the extent of access provided in accordance with paragraph 3.’;
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17.Article 17 shall be amended as follows: (a) in paragraph 1, the words ‘take instructions from no-one’ shall be replaced by ‘act independently’; (b) in paragraphs 3 and 4, the words ‘the Officer’ shall be replaced by ‘the Data Protection Officer’;
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18.Article 18 shall be replaced by the following: ‘Article 18 Authorised access to personal data Only national members, their deputies and their assistants referred to in Article 2(2), persons referred to in Article 12(2) in so far as they are connected to the Case Management System in accordance with Article 12(6) and authorised Eurojust staff may, for the purpose of achieving Eurojust’s objectives and within the limits provided for in Articles 16, 16a and 16b, have access to personal data processed by Eurojust.’;
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19.in Article 19(4)(b), the words ‘which Eurojust is assisting’ shall be deleted;
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20.Article 21 shall be amended as follows: (a) paragraph 2 shall be amended as follows: (i) in the introductory phrase the words ‘the first applicable date among the following dates’ shall be inserted after the word ‘beyond’; (ii) the following point shall be inserted: ‘(aa) the date on which the person was acquitted and the decision became final;’ (iii) point (b) shall be replaced by the following: ‘(b) three years after the date on which the judicial decision of the last of the Member States concerned by the investigation or prosecutions became final;’ (iv) in point (c), the words ‘, unless there is an obligation to provide Eurojust with this information in accordance with Article 13(6) and (7) or with instruments referred to in Article 13(4) ’ shall be added after the word ‘prosecutions’; (v) the following point shall be added: ‘(d) three years after the date on which data were transmitted in accordance with Article 13(6) and (7) or with the instruments referred to in Article 13(4).’ (b) paragraph 3 shall be amended as follows: (i) in points (a) and (b) the words ‘in paragraph 2’ shall be replaced by ‘in paragraph 2(a), (b), (c) and (d) ’; (ii) in point (b) the following sentence shall be added: ‘However, once prosecution is statute barred in all Member States concerned as referred to in paragraph 2(a), data may only be stored if they are necessary in order for Eurojust to provide assistance in accordance with this Decision.’;
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21.Article 23 shall be amended as follows: (a) paragraph 1 shall be amended as follows: (i) in the first subparagraph, the words ‘in Articles 14 to 22’ shall be replaced by ‘in Articles 14 to 22, 26, 26a and 27’; (ii) the second subparagraph shall be replaced by the following: ‘The Joint Supervisory Body shall meet at least once in each half year. It shall also meet within the three months following the lodging of an appeal referred to in Article 19(8) or within three months following the date when a case was referred to it in accordance with Article 20(2). The Joint Supervisory Body may also be convened by its chairman when at least two Member States so request.’; (iii) in the third subparagraph, second sentence, the words ‘eighteen months’ shall be replaced by ‘three years’; (b) paragraph 3 shall be replaced by the following: ‘3. A judge appointed by a Member State shall become a permanent member after being elected by the plenary meeting of the persons appointed by the Member States in accordance with paragraph 1, and shall remain a permanent member for three years. Elections shall be held yearly for one permanent member of the Joint Supervisory Body by means of secret ballot. The Joint Supervisory Body shall be chaired by the member who is in his third year of mandate after elections. Permanent members may be re-elected. Appointees wishing to be elected shall present their candidacy in writing to the Secretariat of the Joint Supervisory Body 10 days before the meeting in which the election is to take place.’; (c) the following paragraph shall be inserted: ‘4a. The Joint Supervisory Body shall adopt in its rules of procedure measures necessary to implement paragraphs 3 and 4.’; (d) in paragraph 10, the following sentence shall be added: ‘The Secretariat of the Joint Supervisory Body may rely upon the expertise of the secretariat established by Decision 2000/641/JHA15 .
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22.Article 25 shall be amended as follows: (a) paragraph 1 shall be replaced by the following: ‘1. The national members, their deputies and their assistants referred to in Article 2(2), Eurojust staff, national correspondents and the Data Protection Officer shall be bound by an obligation of confidentiality, without prejudice to Article 2(4).’; (b) in paragraph 4, the words ‘Article 9(1) ’ shall be replaced by ‘Article 2(4) ’.
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23.the following Article shall be inserted: ‘Article 25a Cooperation with the European Judicial Network and other networks of the European Union involved in cooperation in criminal matters 1. Eurojust and the European Judicial Network shall maintain privileged relations with each other, based on consultation and complementarity, especially between the national member, the European Judicial Network contact points of the same Member State and the national correspondents for Eurojust and the European Judicial Network. In order to ensure efficient cooperation, the following measures shall be taken: (a) national members shall, on a case-by-case basis, inform the European Judicial Network contact points of all cases which they consider the Network to be in a better position to deal with; (b) the Secretariat of the European Judicial Network shall form part of the staff of Eurojust. It shall function as a separate unit. It may draw on the administrative resources of Eurojust which are necessary for the performance of the European Judicial Network’s tasks, including for covering the costs of the plenary meetings of the Network. Where plenary meetings are held at the premises of the Council in Brussels, the costs may only cover travel expenses and costs for interpretation. Where plenary meetings are held in the Member State holding the Presidency of the Council, the costs may only cover part of the overall costs of the meeting; (c) European Judicial Network contact points may be invited on a case-by-case basis to attend Eurojust meetings.
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2.Without prejudice to Article 4(1), the Secretariat of the Network for Joint Investigation Teams and of the network set up by Decision 2002/494/JHA shall form part of the staff of Eurojust. These secretariats shall function as separate units. They may draw on the administrative resources of Eurojust which are necessary for the performance of their tasks. Coordination between the secretariats shall be ensured by Eurojust.
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This paragraph shall apply to the secretariat of any new network set up by a decision of the Council where that decision provides that the secretariat shall be provided by Eurojust.
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3.The network set up by Decision 2008/852/JHA may request that Eurojust provide a secretariat to the network. If such request is made, paragraph 2 shall apply.’;
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24.Article 26 shall be replaced by the following: ‘Article 26 Relations with Community or Union related institutions, bodies and agencies 1. In so far as is relevant for the performance of its tasks, Eurojust may establish and maintain cooperative relations with the institutions, bodies and agencies set up by, or on the basis of, the Treaties establishing the European Communities or the Treaty on European Union. Eurojust shall establish and maintain cooperative relations with at least: (a) Europol; (b) OLAF; (c) the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex); (d) the Council, in particular its Joint Situation Centre.
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Eurojust shall also establish and maintain cooperative relations with the European Judicial Training Network.
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2.Eurojust may conclude agreements or working arrangements with the entities referred to in paragraph 1. Such agreements or working arrangements may, in particular, concern the exchange of information, including personal data, and the secondment of liaison officers to Eurojust. Such agreements or working arrangements may only be concluded after consultation by Eurojust with the Joint Supervisory Body concerning the provisions on data protection and after the approval by the Council, acting by qualified majority. Eurojust shall inform the Council of any plans it has for entering into any such negotiations and the Council may draw any conclusions it deems appropriate.
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3.Prior to the entry into force of an agreement or arrangement as referred to in paragraph 2, Eurojust may directly receive and use information, including personal data, from the entities referred to in paragraph 1, in so far as this is necessary for the legitimate performance of its tasks, and it may directly transmit information, including personal data, to such entities, in so far as this is necessary for the legitimate performance of the recipient’s tasks and in accordance with the rules on data protection provided in this Decision.
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4.OLAF may contribute to Eurojust’s work to coordinate investigations and prosecution procedures regarding the protection of the financial interests of the European Communities, either on the initiative of Eurojust or at the request of OLAF where the competent national authorities concerned do not oppose such participation.
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5.For purposes of the receipt and transmission of information between Eurojust and OLAF, and without prejudice to Article 9, Member States shall ensure that the national members of Eurojust shall be regarded as competent authorities of the Member States solely for the purposes of Regulation (EC) No 1073/1999 and Council Regulation (Euratom) No 1074/1999 of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)16 . The exchange of information between OLAF and national members shall be without prejudice to the information which must be given to other competent authorities under those Regulations.
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25.the following Article shall be inserted: ‘Article 26a Relations with third States and organisations 1. In so far as is required for the performance of its tasks, Eurojust may establish and maintain cooperative relations with the following entities: (a) third States; (b) organisations such as: (i) international organisations and their subordinate bodies governed by public law; (ii) other bodies governed by public law which are based on an agreement between two or more States; and (iii) the International Criminal Police Organisation (Interpol).
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2.Eurojust may conclude agreements with the entities referred to in paragraph 1. Such agreements may, in particular, concern the exchange of information, including personal data, and the secondment of liaison officers or liaison magistrates to Eurojust. Such agreements may only be concluded after consultation by Eurojust with the Joint Supervisory Body concerning the provisions on data protection and after the approval by the Council, acting by qualified majority. Eurojust shall inform the Council of any plans it has for entering into any such negotiations and the Council may draw any conclusions it deems appropriate.
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3.Agreements referred to in paragraph 2 containing provisions on the exchange of personal data may only be concluded if the entity concerned is subject to the Council of Europe Convention of 28 January 1981 or after an assessment confirming the existence of an adequate level of data protection ensured by that entity.
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4.Agreements referred to in paragraph 2 shall include provisions on the monitoring of their implementation, including implementation of the rules on data protection.
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5.Prior to the entry into force of the agreements referred to in paragraph 2, Eurojust may directly receive information, including personal data in so far as this is necessary for the legitimate performance of its tasks.
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6.Prior to the entry into force of the agreements referred to in paragraph 2, Eurojust may under the conditions laid down in Article 27(1), directly transmit information, except for personal data, to these entities, in so far as this is necessary for the legitimate performance of the recipient’s tasks.
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7.Eurojust may, under the conditions laid down in Article 27(1), transmit personal data to the entities referred to in paragraph 1, where: (a) this is necessary in individual cases for the purposes of preventing or combating criminal offences for which Eurojust is competent; and (b) Eurojust has concluded an agreement as referred to in paragraph 2 with the entity concerned which has entered into force and which permits the transmission of such data.
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8.Any subsequent failure, or substantial likelihood of failure, on the part of the entities referred to in paragraph 1 to meet the conditions referred to in paragraph 3, shall immediately be communicated by Eurojust to the Joint Supervisory Body and the Member States concerned. The Joint Supervisory Body may prevent the further exchange of personal data with the relevant entities until it is satisfied that adequate remedies have been provided.
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9.However, even if the conditions referred to in paragraph 7 are not fulfilled, a national member may, acting in his capacity as a competent national authority and in conformity with the provisions of his own national law, by way of exception and with the sole aim of taking urgent measures to counter imminent serious danger threatening a person or public security, carry out an exchange of information involving personal data. The national member shall be responsible for the legality of authorising the communication. The national member shall keep a record of communications of data and of the grounds for such communications. The communication of data shall be authorised only if the recipient gives an undertaking that the data will be used only for the purpose for which they were communicated.’ 26. Article 27 shall be replaced by the following: ‘Article 27 Transmission of data 1. Before Eurojust exchanges any information with the entities referred to in Article 26a, the national member of the Member State which submitted the information shall give his consent to the transfer of that information. In appropriate cases the national member shall consult the competent authorities of the Member States.
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2.Eurojust shall be responsible for the legality of the transmission of data. Eurojust shall keep a record of all transmissions of data under Articles 26 and 26a and of the grounds for such transmissions. Data shall only be transmitted if the recipient gives an undertaking that the data will be used only for the purpose for which they were transmitted.’;
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27.the following Articles shall be inserted: ‘Article 27a Liaison magistrates posted to third States 1. For the purpose of facilitating judicial cooperation with third States in cases in which Eurojust is providing assistance in accordance with this Decision, the College may post liaison magistrates to a third State, subject to an agreement as referred to in Article 26a with that third State. Before negotiations are entered into with a third State, the Council, acting by qualified majority, shall give its approval. Eurojust shall inform the Council of any plans it has for entering into any such negotiations and the Council may draw any conclusions it deems appropriate.
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2.The liaison magistrate referred to in paragraph 1 is required to have experience of working with Eurojust and adequate knowledge of judicial cooperation and how Eurojust operates. The posting of a liaison magistrate on behalf of Eurojust shall be subject to the prior consent of the magistrate and of his Member State.
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3.Where the liaison magistrate posted by Eurojust is selected among national members, deputies or assistants: (i) he shall be replaced in his function as a national member, deputy or assistant, by the Member State; (ii) he ceases to be entitled to exercise the powers granted to him in accordance with Articles 9a to 9e.
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4.Without prejudice to Article 110 of the Staff Regulations of Officials of the European Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/6817 , the College shall draw up rules on the posting of liaison magistrates and adopt the necessary implementing arrangements in this respect in consultation with the Commission.
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5.The activities of liaison magistrates posted by Eurojust shall be the subject of supervision by the Joint Supervisory Body. The liaison magistrates shall report to the College, which shall inform the European Parliament and the Council in the annual report and in an appropriate manner of their activities. The liaison magistrates shall inform national members and national competent authorities of all cases concerning their Member State.
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6.Competent authorities of the Member States and liaison magistrates referred to in paragraph 1 may contact each other directly. In such cases, the liaison magistrate shall inform the national member concerned of such contacts.
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7.The liaison magistrates referred to in paragraph 1 shall be connected to the Case Management System.
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Article 27bRequests for judicial cooperation to and from third States
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1.Eurojust may, with the agreement of the Member States concerned, coordinate the execution of requests for judicial cooperation issued by a third State where these requests are part of the same investigation and require execution in at least two Member States. Requests referred to in this paragraph may also be transmitted to Eurojust by a competent national authority.
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2.In case of urgency and in accordance with Article 5a, the OCC may receive and process requests referred to in paragraph 1 of this Article and issued by a third State which has concluded a cooperation agreement with Eurojust.
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3.Without prejudice to Article 3(2), where requests for judicial cooperation, which relate to the same investigation and require execution in a third State, are made, Eurojust may also, with the agreement of the Member States concerned, facilitate judicial cooperation with that third State.
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4.Requests referred to in paragraphs 1, 2 and 3 may be transmitted through Eurojust if it is in conformity with the instruments applicable to the relationship between that third State and the European Union or the Member States concerned.
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Article 27cLiability other than liability for unauthorised or incorrect processing of data
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1.Eurojust’s contractual liability shall be governed by the law applicable to the contract in question.
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2.In the case of non-contractual liability, Eurojust shall, independently of any liability under Article 24, make good any damage caused through the fault of the College or the staff of Eurojust in the performance of their duties in so far as it may be imputed to them and regardless of the different procedures for claiming damages which exist under the law of the Member States.
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3.Paragraph 2 shall also apply to damage caused through the fault of a national member, a deputy or an assistant in the performance of his duties. However, when he is acting on the basis of the powers granted to him pursuant to Articles 9a to 9e, his Member State of origin shall reimburse Eurojust the sums which Eurojust has paid to make good such damage.
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4.The injured party shall have the right to demand that Eurojust refrain from taking, or cease, any action.
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5.The national courts of the Member States competent to deal with disputes involving Eurojust’s liability as referred to in this Article shall be determined by reference to Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters18 .
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28.in the second sentence of Article 28(2), the words ‘acting by qualified majority,’ shall be inserted after ‘the Council’;
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29.Article 29 shall be amended as follows: (a) in paragraph 1: (i) the words ‘unanimously’ shall be replaced by ‘by two-thirds majority’; (ii) the following sentence shall be added: ‘The Commission shall be entitled to participate in the selection process and to sit on the selection board.’; (b) in paragraph 2, the second sentence shall be replaced by the following: ‘It may be extended once without a need for a call for applications, provided that the College so decides by a three-fourths majority and appoints the Administrative Director with the same majority.’; (c) in paragraph 5, the following sentence shall be added: ‘To that end, he shall be responsible for establishing and implementing, in cooperation with the College, an effective monitoring and evaluation procedure relating to the performance of Eurojust’s administration in terms of achieving its objectives. The Administrative Director shall report regularly to the College on the results of that monitoring.’;
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30.Article 30 shall be amended as follows: (a) in paragraph 2: (i) in the fourth sentence, the words ‘who may also assist the national member’ shall be added; (ii) the last sentence shall be replaced by the following: ‘The College shall adopt the necessary implementing arrangements for seconded national experts.’; (b) in paragraph 3, the words ‘without prejudice to Article 25a(1) (c) and (2) ’ shall be added;
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31.Article 32 shall be amended as follows: (a) the title shall be replaced by the following: ‘Informing the European Parliament, the Council and the Commission’; (b) the following paragraph shall be added: ‘3. The Commission or the Council may seek Eurojust’s opinion on all draft instruments prepared under Title VI of the Treaty.’;
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32.Article 33 shall be replaced by the following: ‘Article 33 Finance 1. The salaries and emoluments of the national members, deputies and assistants referred to in Article 2(2) shall be borne by their Member State of origin.
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2.Where national members, deputies and assistants act within the framework of Eurojust’s tasks, the relevant expenditure related to these activities shall be regarded as operational expenditure within the meaning of Article 41(3) of the Treaty.’;
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33.Article 35(1) shall be amended as follows: (a) the words ‘31 March’ shall be replaced by ‘10 February’; (b) the following sentence shall be added: ‘The European Judicial Network and networks referred to in Article 25a(2) shall be informed on the parts related to the activities of their secretariats in due time before the forwarding of the estimate to the Commission.’;
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34.Article 36 shall be amended as follows: (a) in paragraph 2, the first sentence shall be replaced by the following: ‘2. By 1 March at the latest following each financial year, the accounting officer of Eurojust shall communicate the provisional accounts to the Commission’s accounting officer and the Court of Auditors together with a report on the budgetary and financial management for that financial year.’; (b) paragraph 3 shall be replaced by the following: ‘3. Eurojust shall send the report on the budgetary and financial management for the financial year to the European Parliament and the Council by 31 March of the following year.’; (c) in paragraph 10, the words ‘30 April’ shall be replaced by ‘15 May’;
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35.the following Article shall be inserted: ‘Article 39a EU classified information Eurojust shall apply the security principles and minimum standards set out in Council Decision 2001/264/EC of 19 March 2001 adopting the Council’s security regulations19 _ in the management of EU classified information.
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36.Article 41 shall be replaced by the following: ‘Article 41 Reporting 1. Member States shall notify Eurojust and the General Secretariat of the Council of the designation of national members, deputies, assistants as well as persons referred to in Article 12(1) and (2) and of any change to this designation. The General Secretariat of the Council shall keep an updated list of these persons and shall make their names and contact details available to all Member States and to the Commission.
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2.The definitive appointment of a national member can not take effect before the day on which the General Secretariat of the Council receives the official notifications referred to in paragraph 1 and Article 9a(3).’;
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37.the following Article shall be inserted: