22003A0719(02) 22003A0719(02) Agreement on mutual legal assistance between the European Union and the United States of America Official Journal L 181 , 19/07/2003 P. 0034 - 0042 Dates: of document: 25
Article 3(3) between the Member States and the United States of America.
2. The Contracting Parties, on the basis of consultations between them on which national authorities responsible for the investigation and prosecution of offences to designate pursuant to Article 4
(3), shall notify each other of the national authorities so designated prior to the exchange of
Article 3(2) and (3) between the Member States and the United States of America.
The European Union shall, for Member States having no mutual legal assistance treaty with the United States of America, notify the United States of America prior to such exchange of the identity of the central authorities under Article 4
(3). 3. The Contracting Parties shall notify each other of any limitations invoked under Article 4
(4)prior to the exchange of
Article 3(2) and (3) between the Member States and the United States of America.
Article 16 Territorial application 1. This Agreement shall apply: (
- a)to the United States of America; (
- b)in relation to the European Union, to: - Member States, - territories for whose external relations a Member State has responsibility, or countries that are not Member States for whom a Member State has other duties with respect to external relations, where agreed upon by exchange of diplomatic note between the Contracting Parties, duly confirmed by the relevant Member State. 2. The application of this Agreement to any territory or country in respect of which extension has been made in accordance with subparagraph (
- b)of paragraph 1 may be terminated by either Contracting Party giving six months' written notice to the other Contracting Party through the diplomatic channel, where duly confirmed between the relevant Member State and the United States of America. Article 17 Review The Contracting Parties agree to carry out a common review of this Agreement no later than five years after its entry into force. The review shall address in particular the practical implementation of the Agreement and may also include issues such as the consequences of further development of the European Union relating to the subject matter of this Agreement. Article 18 Entry into force and termination 1. This Agreement shall enter into force on the first day following the third month after the date on which the Contracting Parties have exchanged instruments indicating that they have completed their internal procedures for this purpose. These instruments shall also indicate that the steps specified in Article 3
(2)and
(3)have been completed. 2. Either Contracting Party may terminate this Agreement at any time by giving written notice to the other Party, and such termination shall be effective six months after the date of such notice. In witness whereof the undersigned Plenipotentiaries have signed this Agreement Done at Washington D.C. on the twenty-fifth day of June in the year two thousand and three in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic. Por la Uniėn Europea/For Den Europöiske Union/FŽr die Europōische Union/>ISO_7>Ćłń Į÷ż ÅįęųĘńŪśČ øżųė÷/>ISO_1>For the European Union/Pour l'Union europłenne/Per l'Unione europea/Voor de Europese Unie/Pela Unióo Europeia/Euroopan unionin puolesta/Põ Europeiska unionens vōgnar >PIC FILE= "L_2003181EN.004001.TIF"> Por los Estados Unidos de Amłrica/For Amerikas Forenede Stater/FŽr die Vereinigten Staaten von Amerika/>ISO_7>Ćłń ĮłĖ ĒżųüążõĖ Š˙ūłĮõčõĖ Į÷Ė ĮüõęłśČĖ/>ISO_1>For the United States of America/Pour les États-Unis d'Amłrique/Per gli Stati Uniti d'America/Voor de Verenigde Staten van Amerika/Pelos Estados Unidos da Amłrica/Amerikan yhdysvaltojen puolesta/Põ Amerikas fŠrenta staters vōgnar >PIC FILE= "L_2003181EN.004002.TIF"> Explanatory Note on the Agreement on Mutual Legal Assistance between the European Union and the United States of America This note reflects understandings regarding the application of certain provisions of the Agreement on Mutual Legal Assistance between the European Union and the United States of America (hereinafter "the Agreement") agreed between the Contracting Parties. On Article 8 With respect to the mutual legal assistance to administrative authorities under Article 8
(1), the first sentence of Article 8
(1)imposes an obligation to afford mutual legal assistance to requesting United States of America federal administrative authorities and to requesting national administrative authorities of Member States. Under the second sentence of that paragraph mutual legal assistance may also be made available to other, that is non-federal or local, administrative authorities. This provision however, is available at the discretion of the requested State. The Contracting Parties agree that under the first sentence of Article 8
(1)mutual legal assistance will be made available to a requesting administrative authority that is, at the time of making the request, conducting investigations or proceedings in contemplation of criminal prosecution or referral of the investigated conduct to the competent prosecuting authorities, within the terms of its statutory mandate, as further described immediately below. The fact that, at the time of making the request referral for criminal prosecution is being contemplated does not exclude that, other sanctions than criminal ones may be pursued by that authority. Thus, mutual legal assistance obtained under Article 8
(1)may lead the requesting administrative authority to the conclusion that pursuance of criminal proceedings or criminal referral would not be appropriate. These possible consequences do not affect the obligation upon the Contracting Parties to provide assistance under this Article. However, the requesting administrative authority may not use Article 8
(1)to request assistance where criminal prosecution or referral is not being contemplated, or for matters in which the conduct under investigation is not subject to criminal sanction or referral under the laws of the requesting State. The European Union recalls that the subject matter of the Agreement for its part falls under the provisions on police and judicial cooperation in criminal matters set out in Title VI of the Treaty on European Union and that the Agreement has been concluded within the scope of these provisions. On Article 9 Article 9
(2)(b) is meant to ensure that refusal of assistance on data protection grounds may be invoked only in exceptional cases. Such a situation could arise if, upon balancing the important interests involved in the particular case (on the one hand, public interests, including the sound administration of justice and, on the other hand, privacy interests), furnishing the specific data sought by the requesting State would raise difficulties so fundamental as to be considered by the requested State to fall within the essential interests grounds for refusal. A broad, categorical, or systematic application of data protection principles by the requested State to refuse cooperation is therefore precluded. Thus, the fact the requesting and requested States have different systems of protecting the privacy of data (such as that the requesting State does not have the equivalent of a specialised data protection authority) or have different means of protecting personal data (such as that the requesting State uses means other than the process of deletion to protect the privacy or the accuracy of the personal data received by law enforcement authorities), may as such not be imposed as additional conditions under Article 9
(2a). On Article 14 Article 14 provides that the Agreement shall not preclude the conclusion, after its entry into force, of bilateral agreements on mutual legal assistance between a Member State and the United States of America consistent with the Agreement. Should any measures set forth in the Agreement create an operational difficulty for the United States of America and one or more Member States, such difficulty should in the first place be resolved, if possible, through consultations between the Member State or Member States concerned and the United States of America, or, if appropriate, through the consultation procedures set out in the Agreement. Where it is not possible to address such operational difficulty through consultations alone, it would be consistent with the Agreement for future bilateral agreements between a Member State and the United States of America to provide an operationally feasible alternative mechanism that would satisfy the objectives of the specific provision with respect to which the difficulty has arisen.