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European evidence warrant

Outline of the Community (European Union) legislation about European evidence warrant

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

European evidence warrant (EEW)

Document or Iniciative

Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

Summary

The European evidence warrant (EEW) is a judicial decision, whereby objects, documents and data may be obtained from other Member States. The EEW is issued by competent authorities designated by the Member States. An issuing authority may be a judge, court, investigating magistrate, public prosecutor or other judicial authority. Member States must also designate the competent authorities for recognising and executing the EEW.

The EEW may be issued to request objects, documents and data from other Member States for the following types of proceedings:

criminal proceedings brought by or to be brought before a judicial authority for criminal offences under the national law of the issuing state;
proceedings brought by administrative authorities for acts that are punishable under the law of the issuing state where the decision may give rise to court proceedings;
proceedings brought by judicial authorities for acts that are punishable under the law of the issuing state where the decision may give rise to further court proceedings;
all of the above, for offences for which the issuing state may punish or hold liable a legal person.

The issuing state must ensure that the evidence requested is necessary and proportionate for these proceedings. In addition, the acquisition of such evidence under similar circumstances in the issuing state must be provided for in its national law. Only once these conditions are met may the EEW be issued.

When the competent authority of an issuing state has reasonable grounds to believe that relevant evidence is located on the territory of another Member State, it may transmit the EEW to the competent authority of that state. The EEW must be transmitted directly from the issuing to the executing authority and in a manner that leaves a written record. To this end, Member States may designate one or more central authorities that will assist the competent authorities. Member States may also take advantage of the secure telecommunications system of the European Judicial Network for the transmission of EEWs.

The EEW is to be recognised by the executing authority without any further formality. The executing authority shall take the necessary measures to execute the EEW, unless it decides to invoke a ground for non-recognition, non-execution or postponement. When the EEW has not been issued or validated by a judge, court, investigating magistrate or public prosecutor, the executing authority may decide not to carry out a search or seizure to execute the warrant. However, it must consult the competent authority of the issuing state before taking such a decision. Member States may declare that they require such validation when the executing measures in a similar domestic case must be ordered or supervised by a judge, court, investigating magistrate or public prosecutor under its law.

If not stipulated otherwise in the framework decision, the executing authority shall comply with the formalities indicated by the issuing authority. However, these formalities may not contradict the fundamental principles of law of the executing state.

The executing state may refuse to recognise or execute the EEW within 30 days of receiving it if:

the execution breaches the ne bis in idem principle;
in certain cases specified in the framework decision, the act is not an offence under its national law;
execution is not possible with the measures available to the executing authority in the specific case;
there is an immunity or privilege under the law of the executing state that makes its execution impossible;
it has not been validated by a judge, court, investigative magistrate or public prosecutor in the issuing state when so required;
the offence was committed on the territory of the executing state or outside the issuing state where the law of the executing state does not allow for legal proceedings;
it would harm national security interests;
the form is incomplete or incorrectly completed.

The recognition or execution of an EEW may only be subject to verification of double criminality if a search or seizure is required for its execution and if it is not related to the list of offences set out in the framework decision.

The executing state is to take possession of the evidence within 60 days from receiving the EEW, unless there are grounds for postponement.

Member States must ensure that all interested parties have access to legal remedies against the recognition and execution of an EEW. These remedies may be limited to cases where coercive measures are used. The actions are to be brought before a court in the executing state; however, the substantive reasons for issuing the EEW may only be brought before a court in the issuing state.

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2008/978/JHA	19.1.2009	19.1.2011	OJ L 350 of 30.12.2008

Exchange of information from criminal records

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Exchange of information from criminal records

Outline of the Community (European Union) legislation about Exchange of information from criminal records

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Exchange of information from criminal records

Document or Iniciative

Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States.

Summary

The objectives of this framework decision are to:

define how a convicting Member State is to transmit information on the conviction to the Member State of which the convicted person is a national;
define the obligations of the Member State of which the person is a national to store information on convictions and the procedures which that Member State is to follow when replying to requests for information about its nationals;
establish a framework for the development of a computerised system of exchange of information on convictions.

Member States are to designate a central authority to carry out the tasks relating to exchanges of information on convictions. For transmitting information and for replying to a request for information, Member States may designate more than one central authority.

Obligations of Member States

Along with information on the conviction, the convicting Member State has the obligation to provide information on the nationality(ies) of the person convicted on its territory in its criminal record.

The central authority of the convicting Member State is obliged to inform the central authorities of the Member State(s) of which the convicted person is national of any convictions of that person provided in its criminal record as soon as possible, including any subsequent alterations or deletions of this information. Such notification must include information on the convicted person, the nature and contents of the conviction, as well as the offence that gave rise to the conviction. The central authority is also to transmit optional information if entered in the criminal record and additional information if available, as listed in the framework decision.

The Member State of which the convicted person is a national has an obligation to store information transmitted to it, as well as to reply to requests for information on convictions within the given period of time. The convicting Member State may stipulate that the information it transmits to the Member State of the convicted person’s nationality may not be retransmitted by the latter for any other purpose than for criminal proceedings.

Requesting information and replying to requests

When information from the criminal record of a Member State is requested, its central authority may in return request information from the criminal record of the central authority of another Member State. The same applies when a person requests information from his/her criminal record from a Member State, provided that s/he is a resident/national of one of the Member States concerned. All requests to central authorities must be made with the form annexed to the framework decision.

When the central authority of the Member State of which the person is a national is asked for information, it is to transmit information on convictions that were handed down on its territory, in other Member States or in third countries and that were either stored by it or entered in its criminal record. All replies to requests for information must be made with the form annexed to the framework decision and within 10 working days from receiving the request. In case the request was made by a person for information from his/her record, the reply must be sent within 20 working days from its receipt.

The requesting Member State may use personal data transmitted to it only for the purposes the data was requested for, unless it is used to prevent an immediate and serious threat to public security.

The Council should adopt further instruments setting up the format of exchanges of information extracted from criminal records and any other means for organising and facilitating such exchanges between Member States by 27 April 2012.

This framework decision repeals Decision 2005/876/JHA on the exchange of information extracted from the criminal record.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2009/315/JHA	27.4.2009	27.4.2012	OJ L 93 of 7.4.2009

Related Acts

Council Decision of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA [Official Journal L 93 of 7.4.2009].
This decision implements Framework Decision 2009/315/JHA in establishing the European Criminal Records Information System (ECRIS). The system will enable an electronic interconnection of criminal records, where information on convictions is exchanged between Member States in a uniform and easily computer-transferable manner.
The objectives of this decision are to:

set up the general architecture for the electronic exchange of information extracted from criminal records. ECRIS is a decentralised information technology system based on the criminal record databases in Member States. It consists of an interconnection software that allows exchanges of information between the national databases and of a common communication infrastructure, which will initially be the Trans-European Services for Telematics between Administrations (S-TESTA) network;
create a standardised European format of transmission of information on convictions. In this respect it provides for two reference tables of categories of offences and categories of sanctions, which should facilitate the automatic translation and enable the mutual understanding of the information transmitted by using a system of codes. Member States are to refer to these tables when transmitting information on the offence giving rise to the conviction and information on the content of the conviction.

Criminal Justice specific programme

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Criminal Justice specific programme

Outline of the Community (European Union) legislation about Criminal Justice specific programme

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Criminal Justice specific programme (2007-13)

Document or Iniciative

Council Decision 2007/126/JHA of 12 February 2007 establishing for the period 2007 to 2013, as part of the General Programme on Fundamental Rights and Justice, the Specific Programme Criminal Justice.

Summary

This decision establishes the specific programme Criminal Justice. This programme is one of the five specific programmes that make up the Fundamental Rights and Justice general programme, developed with the aim of creating an area of freedom, security and justice within the European Union (EU).

This Criminal Justice programme covers the period from 1 January 2007 to 31 December 2013.

General objectives

The Criminal Justice programme is aimed at creating a European area of justice. It has four main objectives, including:

promoting judicial cooperation in criminal matters;
bringing the judicial systems of EU countries closer together and to that of the EU;
enhancing contacts and the exchange of information and best practices between legal, judicial and administrative authorities and the legal professions and promoting the training of the members of the judiciary;
further improving mutual trust between the judicial authorities.

Specific objectives

More precisely, the Criminal Justice programme seeks to foster judicial cooperation in criminal matters, with the aim of:

promoting mutual recognition of judicial decisions;
approximating the judicial systems of EU countries in criminal matters, in particular with regard to serious cross-border crime;
establishing minimum standards concerning aspects of procedural criminal law;
avoiding conflicts of jurisdiction;
improving the exchange of information, for example, through a computerised system for exchanging information on national criminal records;
promoting the protection of individuals involved in criminal proceedings and assistance to victims;
strengthening EU countries cooperation with Eurojust;
promoting measures aimed at re-socialising offenders.

The programme also aims to achieve the following specific objectives:

to improve mutual knowledge of EU countries’ legal and judicial systems and to strengthen networking, cooperation and the exchange of information and best practices;
to ensure the sound implementation and evaluation of EU action in the area of judicial cooperation in criminal matters;
to better inform the public about legal systems in EU countries and about access to justice;
to promote training in European law for those involved in the work of the judiciary;
to improve mutual understanding between EU countries to pave the way for mutual trust;
to implement a computerised system for the exchange of information on criminal records and to examine the possibility of establishing other types of exchanges of information.

Eligible actions

The Criminal Justice programme supports various initiatives, including:

actions taken by the Commission, such as research, the implementation of specific projects, the formulation of indicators and methodologies, the development of networks of national experts and the dissemination of information;
transnational projects presented by several EU countries working together (at least two EU countries or at least one EU country and one other country that may either be an acceding or a candidate country);
the activities of non-governmental organisations (NGOs) or other entities pursuing aims of general European interest;
expenditure of the European Judicial Training Network, which may obtain an operating grant as part of this programme;
EU countries’ national projects, individually, may be supported under this programme, subject to certain conditions.

Target groups

The programme is targeted in particular at those involved in the work of the judiciary, national authorities and the citizens of the Union in general.

The programme is open to both public and private organisations, including professional organisations, universities, research and training institutes, legal practitioners and NGOs. It is also open to organisations that are profit oriented, but subject to certain conditions.

Non-EU countries and international organisations may participate in transnational projects only as partners.

Types of EU funding

There are two types of EU funding provided under the programme, including:

grants, which are normally awarded following calls for proposals, through operating grants and grants to actions. The annual work programme must specify the minimum rate of annual expenditure to be awarded to grants, which shall be at least 65 %. It must also specify the maximum rate of co-financing of projects;
public procurement contracts are foreseen for accompanying measures, such as the purchase of goods and services, particularly expenditure on information and communications, the implementation and monitoring of projects, policies, programmes and legislation.

Implementing measures

The Commission implements the financial support in accordance with the Financial Regulation applicable to the general budget of the EU. It also adopts an annual work programme specifying the specific objectives, thematic priorities and the accompanying measures that are funded through public procurement contracts.

The evaluation and award procedures take several criteria into account, including:

conformity with the annual work programme, the four general objectives, the specific objectives and the eligible actions;
quality of the action;
amount of EU financing requested;
relationship between the expected results and the general objectives, specific objectives and eligible actions.

The award of operating grants to actions taken by NGOs or by the European Judicial Training Network is also subject to certain criteria.

Coordination with other programmes

Synergies should be created with other programmes, including the:

Civil Justice specific programme, which, like the Criminal Justice programme, is also part of the general programme on Fundamental Rights and Justice;
general programme on Security and Safeguarding Liberties;
general programme on Solidarity and the Management of Migration Flows;
EU statistical programme.

Monitoring and evaluation

To allow the Commission to monitor any action financed by the programme, the beneficiary of the funding must:

submit technical and financial reports on the progress of the work and a final report within three months of completion of the action funded;
keep available for the Commission all the supporting documents regarding expenditure for a period of five years following the last payment in respect of the action taken.

For its part, the Commission will:

carry out supervision and financial control of actions resulting from this programme, in particular by on-the-spot checks. The Court of Auditors may also carry out audits in order to ensure the proper implementation of expenditure;
ensure that, if necessary, the scale or conditions of allocation of the financial assistance and timetable for payments are adjusted;
ensure that every other necessary step be taken to verify that the actions are properly carried out.

The Commission must apply measures to prevent fraud, corruption and any other illegal activities. It will carry out checks, recover amounts unduly paid and apply penalties in the event of irregularities.

The Commission will ensure the regular, independent and external monitoring and evaluation of the programme. It will annually publish a list of actions financed under the programme.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Decision 2007/126/JHA	24.2.2007	–	OJ L 58, 24.2.2007

The law applicable to contractual obligations – The Rome I Regulation

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The law applicable to contractual obligations – The Rome I Regulation

Outline of the Community (European Union) legislation about The law applicable to contractual obligations – The Rome I Regulation

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

The law applicable to contractual obligations – The Rome I Regulation

Document or Iniciative

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

Summary

This Regulation applies to contractual obligations in civil and commercial matters in the event of a conflict of laws. It does not apply to revenue, customs or administrative matters, or to evidence and procedure.

Nor does the Regulation apply to the obligations relating to the following:

a natural person’s status or legal capacity;
family relationships;
matrimonial property regimes;
negotiable instruments such as bills of exchange, cheques and promissory notes;
arbitration and choice of court;
law of companies and other corporate or unincorporated bodies;
the binding of a principal or a company to a third party;
trusts;
dealings that occur before a contract is concluded;
insurance contracts, except those defined in Article 2 of Directive 2002/83/EC concerning life assurance.

Any law indicated in this Regulation should be applied, even if it is not that of a Member State.

Freedom of choice

The parties to a contract are to choose the governing law. It may be applied to only a part or the whole of the contract. Provided that all the parties agree, the applicable law may be changed at any time. If the law chosen is that of a country other than that relating most closely to the contract, the provisions of the latter law need to be respected. If the contract relates to one or more Member States, the applicable law chosen, other than that of a Member State, must not contradict the provisions of Community law.

Applicable law in the absence of choice

Where the parties have not chosen the applicable law for contracts for the sale of goods, provision of services, franchises or distribution, it will be determined based on the country of residence of the principal actor carrying out the contract. For contracts concerning immovable property, the law of the country where the property is located is applied, except in the cases of temporary and private tenancy (maximum six consecutive months). In such cases the applicable law is that of the landlord’s country of residence. In the case of sale of goods by auction, the law of the country of the auction will apply. With regard to certain financial instruments governed by a single law, the applicable law will be that law.

If none, or more than one of the above rules apply to a contract, the applicable law will be determined based on the country of residence of the principal actor carrying out the contract. If, however, the contract is related more closely to another country than provided by these rules, the law of that country will be applied. The same applies when no applicable law can be determined.

Rules applicable to specific contracts

For the following types of contract, the Regulation lays down options for the selection of applicable law and determines the law to be applied in the absence of choice:

contracts for the carriage of goods – in the absence of choice, the applicable law will be that of the country of residence of the carrier, provided that this is also the place of receipt or delivery, or the residence of the consignor. Otherwise, the law of the country to which the delivery will be made will apply;
contracts for the carriage of passengers – the applicable law may be chosen from either the country of residence of the passenger or carrier, the country where the central administration of the carrier is located, or the country of departure or destination. In the absence of choice, the law of the country of residence of the passenger will apply, provided that it is also the place of departure or destination. Yet, if the contract is more closely related to another country, then the law of that country will apply;
consumer contracts between consumers and professionals – the applicable law is that of the country of residence of the consumer, provided that this is also the country where the professional carries out his/her activities or to which his/her activities are directed. The parties may also, based on freedom of choice, apply another law, as long as it provides the same level of protection to the consumer as that of his/her country of residence;
insurance contracts – in the absence of choice, the applicable law will be that of the country of residence of the insurer. However, if the contract is more closely related to another country, that country’s law will apply;
individual employment contracts – the applicable law may be determined on the basis of the freedom of choice principle, provided that the level of protection granted to the employee remains the same as with the applicable law in the absence of choice. In the latter case, the law governing the contract will be that of the country where, or from where, the employee carries out his/her tasks. If this cannot be determined, the applicable law will be that of the country where the place of business is located. However, if the contract is more closely related to another country, that country’s law will apply.

Scope of the law applicable

The law this Regulation determines as applicable to a contract will regulate interpretation, performance, penalties for breaching obligations, assessment of damages, termination of obligations, instructions for actions, and penalties for invalid contracts. The Community law that establishes conflict-of-law rules for contractual obligations relating to particular matters takes precedence over this Regulation, except in the case of insurance contracts.

The Commission will submit a report on the application of this Regulation to the European Parliament, the Council and the European Economic and Social Committee by 17 June 2013.

The Regulation will apply to contracts that are concluded as from 17 December 2009.

Background

The Vienna Action Plan of 1998 acknowledged the importance of harmonised conflict-of-law rules in the implementation of the mutual recognition principle for decisions in civil and commercial matters. The joint Commission and Council programme of 2000 provides measures for this harmonisation. The Hague Programme of 2004 reasserted the importance of pursuing work on conflict-of-law rules for contractual obligations, with its Action Plan providing for the adoption of the Rome I proposal. This ensuing Regulation replaces the Rome Convention of 1980 on the law applicable to contractual obligations, transforming it into a Community instrument and modernising it.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Regulation (EC) No 593/2008	24.7.2008	–	OJ L 177 of 4.7.2008

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.

European e-Justice Strategy

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European e-Justice Strategy

Outline of the Community (European Union) legislation about European e-Justice Strategy

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

European e-Justice Strategy

Document or Iniciative

Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 30 May 2008 – Towards a European e-Justice Strategy [COM(2008) 329 final – Not published in the Official Journal].

Summary

This Communication presents a strategy for e-Justice, which is to improve judicial cooperation on both the national and European levels. e-Justice refers to the judicial systems’ application of information and communication technologies (ICT) in their administrative procedures. It enhances these systems’ functional and financial effectiveness, the collaboration between legal authorities, as well as citizens’ access to justice. With this strategy, the Commission aims to encourage the operational priority projects, the decentralisation of the ICT architectures and the implementation of the existing legal instruments.

Several projects that improve the diffusion of information have already been established at national and European levels. To strengthen the exchange of best practices resulting from these projects, the Commission intends to create an e-Justice sub-group within the Justice Forum, which will enhance cooperation among national judicial systems as well as among legal professionals.

In order to also promote European Union (EU) judicial action, with a view to making it more understandable, accessible and efficient, the Commission intends to support Member States in developing appropriate tools. In addition, the Commission intends to develop electronic tools that aim to improve access to justice and collaboration among the relevant stakeholders, as well as to attain a higher level of system interoperability and economies of scale.

The EU’s priorities for action consist of providing citizens with easier access to judicial information and of boosting judicial cooperation. With regard to the first, the Commission will create an e-Justice portal, which will have a minimum of three functions:

giving access to information concerning judicial systems and procedures, as well as to practical information concerning the competent authorities and methods of obtaining legal aid;
referring users to the Internet sites of European legal institutions, networks and registers;
providing a direct access to selected European procedures; in the long-term the judicial procedures could be fully electronic.

5. For judicial cooperation, the Commission will develop electronic tools on the basis of the existing legal networks and Eurojust. Information and training on these tools will be developed in collaboration with the competent national and European training establishments, such as the European judicial training network. More specifically, to improve judicial cooperation, the Commission intends to:

continue the work on interconnecting the criminal records of Member States;
develop the existing instruments to create a secure network for judicial authorities to share and exchange information of confidential nature;
promote the use of videoconferencing in cross-border civil or criminal judicial proceedings by endorsing efforts made at national level, while coordinating at European level to ensure interoperability;
providing aid with regard to translation by developing automated translation tools, establishing a database of qualified legal translators and interpreters and creating standardised online forms for automatic translation.

A draft action plan that provides a timetable for the Commission’s priority actions is annexed to this Communication. The development of the e-Justice related projects will be covered by the Civil Justice and Criminal Justice financial programmes. The Commission will be responsible for coordinating the actions and for promoting the exchange of best practices among Member States.

Convention on parental responsibility and protection of children

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Convention on parental responsibility and protection of children

Outline of the Community (European Union) legislation about Convention on parental responsibility and protection of children

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

Convention on parental responsibility and protection of children

Document or Iniciative

Council Decision 2003/93/EC of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children.

Summary

The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children was concluded within the framework of The Hague Conference on Private International Law on 19 October 1996. However, only sovereign states may accede to the convention. By way of exception, the Council therefore authorises the European Union (EU) countries to sign the convention.

Nevertheless, the EU retains exclusive competence for the provisions of the convention that fall within the scope of the regulation on jurisdiction, recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility (the “Brussels II” Regulation). Consequently, EU countries must make a declaration upon signing the convention, whereby EU law continues to be applied to the recognition and enforcement within the Union of judgments given on matters relating to the convention by an EU country.

Scope

The convention contributes to the protection of children at international level. It applies to children up to 18 years of age, aiming to establish:

the country having jurisdiction to take measures to protect a child or his/her property;
the law applicable for exercising this jurisdiction;
the law applicable to parental responsibility;
recognition and enforcement of the protection measures in all signatory countries;
cooperation between the signatory countries.

The measures aimed at protecting a child relate to:

parental responsibility;
the rights of custody;
guardianship;
the representation of the child;
the placement of the child in foster or other care;
the supervision of the care provided to the child;
the management of the child’s property.

Jurisdiction

In general, the country of the child’s habitual residence has jurisdiction to take measures to protect the child or his/her property. For refugee or internationally displaced children or for children whose habitual residence cannot be established, the country in which they are present has jurisdiction.

In a particular case, if another country appears to be better placed for assessing the best interests of the child, it may be allowed to assume jurisdiction. In cases of emergency, the country on whose territory the child or his/her property is present may exercise jurisdiction to take any necessary protection measures.

Applicable law

The country exercising its jurisdiction does so under the rules of its own law. Under exceptional circumstances, it may apply or take into consideration the law of another country that is closely connected to the situation, provided that this is in the best interest of the child. The application of the law designated by the convention can only be refused for public policy reasons, and provided that it is in the best interest of the child.

Recognition and enforcement

The measures a signatory country takes under this convention to protect a child or his/her property must be recognised in all other signatory countries. Only in a limited number of cases, as specified in the convention, may recognition be refused. When protection measures are declared enforceable in another country, that country must enforce the measures as if it had taken them itself and carry out the enforcement in accordance with its own law.

Cooperation

Each signatory country must designate one or more central authorities to carry out the obligations imposed upon it by the convention. These authorities are to cooperate and exchange information with each other, as well as to promote cooperation among their national authorities.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Decision 2003/93/EC	–	1.6.2003	OJ L 48 of 21.2.2003

Related Acts

Council Decision 2008/431/EC of 5 June 2008 authorising certain Member States to ratify, or accede to, in the interests of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law [Official Journal L 151 of 11.6.2008].
This decision authorises EU countries that have not yet ratified or acceded to the convention to do so. This concerns Belgium, Germany, Ireland, Greece, Spain, France, Italy, Cyprus, Luxembourg, Malta, the Netherlands, Austria, Poland, Portugal, Romania, Finland, Sweden and the United Kingdom. In view of depositing their instruments of ratification or accession simultaneously, these countries are to exchange information with the Commission and Council on the status of the related procedures. This exchange should take place before 5 December 2009, after which the date of the simultaneous deposit (preferably before 5 June 2010) will be established.
This decision also authorises Bulgaria, Cyprus, Latvia, Malta, the Netherlands and Poland to make a declaration aimed at ensuring that EU rules on recognition and enforcement of judgements will continue to apply in the Union.

Crime does not pay

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Crime does not pay

Outline of the Community (European Union) legislation about Crime does not pay

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against organised crime

“Crime does not pay”

Document or Iniciative

Communication from the Commission to the European Parliament and the Council of 20 November 2008 – Proceeds of organised crime: ensuring that “crime does not pay” [COM(2008) 766 final – Not published in the Official Journal].

Summary

The confiscation and recovery of criminal assets, as well as international cooperation in this field, are essential to fight organised crime in the European Union (EU). However, the results achieved in this area are modest if compared to the estimated revenues of organised crime, and the legal procedures in Member States have not yet been fully harmonised.

The existing EU legal framework consists of Framework Decisions:

2001/500/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime;
2003/577/JHA on the execution of orders freezing property or evidence;
2005/212/JHA on confiscation of crime-related proceeds, instrumentalities and property;
2006/783/JHA on the mutual recognition of confiscation orders.

These aim to ensure that a common approach prevails for confiscating and recovering the proceeds of crime. Nevertheless, implementation at national level remains incomplete with regard to Framework Decisions 2003/577/JHA and 2005/212/JHA. It is still too early to assess the implementation of Framework Decision 2006/783/JHA. The flawed implementation may be the result of a lack of clarity and coherence in the texts. Consequently, the Commission proposes that the existing EU legal framework be recast.

At the same time, the Commission proposes to proceed with discussions on the basis of Member States’ experience, in order to extend certain legal concepts and introduce new rules for confiscation. The focus would be on:

non-conviction based (civil) confiscation, which could be allowed when assets are suspected to be proceeds of crime and the suspect is not available to be prosecuted (dead or a fugitive);
“unjustified” assets, owning of which should be made a criminal offence when they are not proportionate to the income declared by a person who has regular contacts with known criminals;
ensuring mutual recognition of freezing and confiscation orders in the EU, irrespective of their nature (criminal or civil);
extending the scope of mandatory confiscation to cases where a conviction was issued for certain serious criminal offences;
the obligatory provision of information on the bank accounts and banking operations of identified persons, thereby putting into effect the provisions of the 2001 Protocol to the EU Convention on Mutual Legal Assistance in Criminal Matters, which remains to be ratified by a number of countries.

Cooperation between Member States needs to be further improved, in order to enable national authorities to exchange information more swiftly and thus enhance the identification of criminal assets. To this end, the Commission is encouraging Member States to proceed with the transposition of Council Decision 2007/845/JHA, whereby national Asset Recovery Offices (AROs) are to be established. For the moment, not all Member States have designated such offices, where they have, the structures, powers and practices vary greatly. The Commission recommends that AROs are established as national contact points for all confiscation-related activities with:

a multidisciplinary structure and expertise from a variety of related fields;
a standardised secure channel of communication for easier and faster exchanges of information;
the necessary powers to identify, trace and provisionally freeze assets;
Europol coordinating their operational activities to ensure the rapid exchange of information;
Eurojust facilitating their cooperation with judicial authorities as well as the mutual recognition of freezing and confiscation orders.

It is also essential to enhance cooperation with third countries on confiscation issues. Consequently, the Commission will continue to promote the ratification and implementation by the EU and Member States of the international conventions that contain provisions on the confiscation of criminal proceeds, such as the:

UN Convention against Transnational Organised Crime (UNTOC);
UN Convention against Corruption (UNCAC);
Council of Europe Conventions on Money Laundering and Confiscation (“Strasbourg Conventions”).

These conventions aim at promoting international cooperation in the identification, tracing, freezing and confiscation of criminal assets. Nevertheless, cooperation with third countries needs to be developed further, in particular through the promotion of asset-sharing agreements as well as the sharing of best practices.

The Commission also encourages the take-up of non-legislative measures, such as:

enhanced tools relating to the identification and tracing of assets, including centralised national registers to which the AROs should have access, and a list on outstanding freezing and confiscation orders in the EU;
a common EU training programme for financial investigations and criminal analysis, development of which is currently underway;
a methodology through which comparable statistics on frozen and confiscated assets may be made available, which is being developed in the context of the EU Action Plan 2006-10 on crime statistics.