Tag Archives: MU

Mutual administrative assistance in the fight against fraud

Mutual administrative assistance in the fight against fraud

Outline of the Community (European Union) legislation about Mutual administrative assistance in the fight against fraud

Topics

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

Budget

Mutual administrative assistance in the fight against fraud

Proposal

Amended proposed regulation of the European Parliament and of the Council of 14 September 2006 relating to mutual administrative assistance to protect the financial interests of the Community against fraud and any other illegal activities (presented by the Commission under Article 250 (2) of the EC Treaty).

Summary

This proposed regulation is intended to fight fraud and any other illegal activities which harm the financial interests of the Community. For this to happen, the Member States and the Commission need to cooperate and exchange information, particularly in the areas of money laundering, VAT fraud and Community expenditure. This proposed regulation therefore establishes the Community framework for mutual administrative assistance.

The Commission emphasises that it offers its assistance to Member States but that this regulation does not give it any investigative powers.

The regulation applies only to fraud cases or any other illegal activities which are of particular importance at Community level. The cases must therefore have an impact in other Member States or connections with other Member States and must exceed certain levels of financial loss.

Competent authorities

The competent authorities to obtain information are the Commission, including OLAF and the public authorities of the Member States which are:

  • responsible for managing funds originating from the Community budget; or
  • responsible for fighting fraud and any other illegal activities which harm the financial interests of the Community; or
  • the central liaison offices and liaison departments and other investigating authorities competent to deal with VAT fraud; or
  • financial information units responsible for gathering and analysing information received concerning money laundering.

Difference in status between the competent authorities of the Member States must not hinder their cooperation.

Assistance on request

On request, the competent authorities will assist one another. The authority receiving the request * must send the requesting authority * any information that is relevant for the prevention and detection of irregularities *, as well as financial information * relating to those irregularities. It has six weeks within which to send the information requested. The deadline is four weeks when it is already in possession of the information when it receives the request. If the requesting authority asks it to do so, the authority receiving the request must carry out or arrange for the administrative investigations to be carried out * regarding any operations which could constitute an irregularity.

An officer of a competent authority may carry out his activities in another Member State and obtain information at the offices of the authority to which the request is made.

The Commission may be granted access to the information from the Member States by means of the system for exchanging information on VAT.

Spontaneous assistance

Member States must supply the Commission spontaneously, in other words without a prior request on its part, with any useful information relating to fraud or other irregularities, as well as financial information about such irregularities.

The competent authorities and the Commission send general information to one another in order to improve the legislation in the fight against fraud. This information covers, for example, the new methods used to commit irregularities, as well as the detection and prevention of irregularities.

For its part, the Commission analyses the information gathered and sends the results of its analysis to the Member States.

Using the information

Every item of information communicated may have a number of uses, including the following:

  • to serve as evidence in each Member State’s administrative or judicial proceedings. The Commission must be kept informed of progress in administrative or judicial enquiries, investigations and proceedings resulting from mutual assistance under this regulation;
  • to be disclosed to a third country, under certain circumstances, and with the agreement of the authorities from whom the information originated. Additionally, information disclosed by a third country must be sent to the competent authorities of the Member States and the Commission, which therefore performs a coordinating function;
  • to be the subject of risk analysis by the Commission.

Only information used to fight fraud and other irregularities can be exchanged. The sending of information must comply with the rules governing confidentiality, such as professional secrecy and data of a personal nature.

Strengthening the possibility of recovery

To facilitate the recovery of debts resulting from irregularities, the authority receiving the request must gather any relevant financial information from banks, financial establishments and the following legal entities or natural persons, in the performance of their professional activities:

  • auditors, external accountants and tax advisers;
  • notaries and other member of independent legal professions;
  • persons providing services to companies who are not covered by the above two items;
  • estate agents;
  • other natural persons or legal entities who deal in assets, where payments are made in cash for a minimum sum of fifteen thousand euro;
  • casinos.

Member States must take the necessary steps to recover benefits illegally obtained from irregularities. Recovery relates to sums of a minimum of fifty thousand euro.

Final provisions

The competent authorities have the option not to cooperate for reasons of public policy.

Enforcement measures are provided for the purposes of the implementation of this regulation and will be adopted by the Commission in accordance with the comitology procedure. The Commission will thus be assisted by a regulatory committee.

Context

On 20 July 2004, the Commission submitted a first proposed regulation on mutual assistance against fraud [COM(2004) 509 final]. This proposal amends the initial proposal and includes some amendments made by the European Parliament

Key Terms Used In The Act

  • Authority receiving the request: a competent authority to which a request for mutual assistance is sent.
  • Requesting authority: a competent authority which makes a request for assistance.
  • Irregularity: the concept of irregularity covers practices harmful to the financial interests of the Community and also extends to money laundering and VAT fraud.
  • Financial information: any information relating to suspect transactions received by the competent national contacts and any other information relevant to the detection of financial transactions connected with the irregularities covered by this regulation.
  • Administrative investigation: all checks, verifications and actions carried out by the competent authorities in the performance of their duties in order to determine whether irregularities have been committed, except for actions undertaken at the request or under the direct control of a judicial authority.

References And Procedure

Proposal Official Journal Procedure
COM(2006) 473 COD/2004/0172

 

Mutual assistance by Member States in the field of direct taxation and taxation of insurance premiums

Mutual assistance by Member States in the field of direct taxation and taxation of insurance premiums

Outline of the Community (European Union) legislation about Mutual assistance by Member States in the field of direct taxation and taxation of insurance premiums

Topics

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

Other

Mutual assistance by Member States in the field of direct taxation and taxation of insurance premiums

To combat international tax evasion and avoidance the European Union is strengthening collaboration between the Member States’ tax administrations and facilitate the exchange of information which appears relevant for the correct assessment of taxes on income and on capital.

Document or Iniciative

Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums.

Summary

Under this Directive, Member States’ competent authorities are required to exchange any information which appears relevant for the correct assessment of taxes on income and on capital and the assessment of indirect taxes:

  • value added tax;
  • excise duty on alcohol and alcoholic beverages:
  • excise duty on manufactured tobacco.

Taxes on income and on capital are deemed to include all taxes, irrespective of the manner in which they are levied, imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the disposal of movable or immovable property, taxes on the amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.

The competent authority of a Member State may request the competent authority of another Member State to forward the information referred to at point 1.

All information made known to a Member State under the directives must be kept secret in that state in the same manner as information received under its domestic legislation.

These directives impose no obligation to have enquiries carried out or to provide information if the Member State which should furnish the information would be prevented by its laws or administrative practices from carrying out these enquiries or from collecting or using this information for its own purposes.

Directive 79/1070/EEC makes some changes to the wording of Directive 77/799/EEC.

Directive 92/12/EEC amends Directive 77/799/EEC to extend its scope to cover excise duties.

Directive 2003/93/EC extends the scope of mutual assistance provided for in Directive 77/799/EEC to cover the taxes on insurance premiums referred to in Directive 76/308/EEC so as to better protect the financial interests of the Member States and the neutrality of the internal market.

Directive 2004/56/EC is designed to speed up the flow of information between Member States’ tax authorities. On direct taxation (income tax, company tax and capital gains tax), in conjunction with taxes on insurance premiums, it permits the Member States to coordinate their investigative action against cross-border tax fraud and to carry out more procedures on behalf of each other. It thus updates Directive 77/799/EEC on mutual assistance and rectifies its weaknesses.

Council Directive 2004/106/EC amends the original title and the content of Directive 77/799/EEC. As provisions covering administrative cooperation in the field of excise duties are included in Council Regulation 2073/2004, Directive 77/799/EEC will henceforth focus only on mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 77/799/EEC [adoption by consultation] 23.12.1977 01.01.1979 OJ L 336 of 27.12.1977
Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Directive 79/1070/EEC 07.12.1979 01.01.1981 OJ L 331 of 27.12.1979
Directive 92/12/EEC 06.03.1992 01.01.1993 OJ L 76 of 23.03.1992
Directive 2003/93/EC 15.10.2003 31.12.2003 OJ L 264 of 15.10.2003
Directive 2004/56/EC 29.04.2004 01.01.2005 OJ L 127 of 29.04.2004
Directive 2004/106/EC 24.12.2004 30.06.2005 OJ L 359 of 04.12.2004
Directive 2006/98/EC 1.1.2007 1.1.2007 OJ L 363 of 20.12.2006

Mutual recognition of pre-trial supervision measures

Mutual recognition of pre-trial supervision measures

Outline of the Community (European Union) legislation about Mutual recognition of pre-trial supervision measures

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

Mutual recognition of pre-trial supervision measures

The Commission has put forward a series of initiatives to enhance the protection of fundamental rights in the European law-enforcement area. This Proposal for a Framework Decision aims to give non-resident European suspects having their abode in another Member State the right to return home under the supervision of their home State to be tried, instead of being held unnecessarily in custody or subject to long-term non-custodial supervision measures in the Member State where the alleged offence took place. This new legal instrument, applied by means of a European supervision order, aims to enable Member States mutually to recognise each other’s pre-trial supervision measures.

Proposal

Proposal for a Council Framework Decision of 29 August 2006 on the European supervision order in pre-trial procedures between Member States of the European Union [COM(2006) 468 final – Not published in the Official Journal].

Summary

On the basis of the principle of free movement of persons within an area of freedom, security and justice, the Commission proposes to establish a European supervision order.

This is a judicial order issued by a competent authority within a Member State returning a non-resident suspect to their Member State of residence, providing they comply with the supervision measures. The aim is to ensure the due course of justice and, in particular, to ensure that the person will be available to stand trial in the Member State issuing the European supervision order.

This Proposal for a Framework Decision is a part of the programme for mutual recognition in criminal matters. Certain aspects of such mutual recognition, such as pre-trial supervision measures, had yet to be addressed in the programme. The Commission estimates that this measure should concern some 8 000 people.

There are three players involved in this Proposal:

  • an “issuing authority”, i.e. a court, a judge, an investigating judge or a public prosecutor, having jurisdiction under national law to issue a European supervision order;
  • an “executing authority”, i.e. a court, a judge, an investigating judge or a public prosecutor, having jurisdiction under national law to execute a European supervision order;
  • a suspect who is not a resident of the Member State in which the order is issued.

Risk of discrimination

Pre-trial supervision measures are not harmonised at Community level. There is currently a risk of different treatment between suspects who are resident in the trial State and those who are not. Such unequal treatment between the two categories – residents and foreigners – is seen by the Council as an obstacle to the free movement of persons within the European Union (EU).

Suspects are generally placed in pre-trial custody due to a lack of social links in the country in which they are arrested. Courts issuing these orders consider that the risk of flight, re-offending and suppression of evidence is greater for these persons.

Apart from the issues surrounding the persons detained, it should be remembered that keeping persons in pre-trial custody also has a significant cost implication for the public authorities involved. It also contributes greatly to prison overcrowding.

Scope

This Proposal for a Framework Decision aims to implement a European supervision order. Its objective is to enable suspects to benefit from pre-trial supervision measures in their place of residence; this entails mutual recognition of supervision measures.

Although the suspect may request that a European supervision order be issued, this is not a right in itself. The Commission does not intend to oblige legal authorities to issue European supervision orders, but merely gives them that possibility.

The European supervision order is not merely an alternative to pre-trial custody. It may also be issued in relation to an offence for which only less severe coercive measures (e.g. travel prohibition) than pre-trial detention are allowed, i.e. where the threshold may be lower than for remand in custody.

The Proposal also provides a last resort option of forced repatriation to the trial State of any suspect refusing to cooperate. Before such a decision is taken, the suspect has the right to be heard by the issuing authority, by means of a video link between the two Member States concerned.

Consultation and impact assessment

Following the consultation procedure preceding the adoption of a legal instrument for judicial cooperation in criminal matters, the Commission drafted a Green Paper on mutual recognition of non-custodial pre-trial supervision measures.

An impact analysis on the added value of such an initiative shows that this procedure would extend the right to liberty and the presumption of innocence throughout the EU and would reduce the costs relating to custody.

Based on this consultation procedure and notably the impact analysis, the Commission adopted the proposal for a decision of the Council on 13 December 2006.

References And Procedure

Proposal Official Journal Procedure
COM(2006) 468 Consultation CNS/2006/0158

 

Mutual recognition of financial penalties

Mutual recognition of financial penalties

Outline of the Community (European Union) legislation about Mutual recognition of financial penalties

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

Mutual recognition of financial penalties

Document or Iniciative

Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [See amending act(s)].

Summary

This framework decision is the result of an initiative of the United Kingdom, the French Republic and the Kingdom of Sweden. It extends the principle of mutual recognition to financial penalties imposed by the judicial and administrative authorities of another Member State.

Recognition and enforcement of decisions

The principle of mutual recognition of decisions applies to financial penalties *. The competent authorities must recognise decisions relating to financial penalties transmitted by another Member State without any further formality.

These penalties are imposed in the case of infringements that cover actions such as participation in a criminal organisation, terrorism, trafficking in human beings, trafficking in arms, swindling, trafficking in stolen vehicles, rape, etc. The framework decision also covers financial penalties for road traffic offences.

In the case of infringements not listed in the framework decision, the state executing the decision of another state can make its recognition and execution subject to the decision being related to conduct that would constitute an offence under its national law.

The decision imposing a financial penalty can relate to both a natural person (human being) and a legal person (company).

The penalties must be imposed by the judicial or administrative authorities of the Member States. Each Member State will inform the General Secretariat of the Council which authority is competent under its national law. The decision imposing a financial penalty must be final, i.e. there is no longer any possibility to appeal the decision. On account of the organisation of their internal systems, Member States may designate one or more central authorities responsible for the management of the transmission of decisions.

Transmission of decisions

The decision imposing a financial penalty is transmitted from the “issuing state”, i.e. the Member State that delivered the decision, to the “executing state”, i.e. the Member State that executes the decision in its territory. To this effect, the framework decision provides a certificate in its annex that must accompany the decision. This certificate must be made out in the official language of the executing state. The issuing state will only transmit a decision to one executing state at any one time. The decision is transmitted to the competent authorities of the Member State where the natural or legal person has property or income, is normally resident or, in the case of a legal person, has its registered seat. Member States will not call for reimbursement of the costs resulting from the application of this framework decision.

Provision is made for a special system for Ireland and the United Kingdom; these states may declare that the decision together with the certificate must be sent via their designated central authority. These Member States can limit the scope of the declaration at any time for the purpose of giving greater effect to the management of the transmission of decisions. They will do so when the provisions on mutual assistance of the Schengen Implementation Convention are put into effect for them.

Grounds for non-recognition and non-execution

The state to which the decision was transmitted can refuse to execute the decision if the certificate provided for by this framework decision is not produced, is incomplete or manifestly does not correspond to the decision.

Execution can also be refused if it is established that:

  • the decision has been delivered in respect of the same acts in the executing state or in any state other than the issuing or executing state and, in the latter case, has been executed;
  • the decision relates to an act that is neither listed as an infringement in the framework decision nor constitutes an offence under the national law of the executing state;
  • the execution of the decision is statute-barred according to the law of the executing state and relates to acts that fall within the jurisdiction of that state under its own law;
  • the decision relates to acts that are regarded by the law of the executing state as having been committed in its territory or to acts committed outside the territory of the executing state when its national law does not allow for the prosecution of such acts;
  • there is immunity under the law of the executing state, which makes it impossible to execute the decision;
  • the decision has been imposed on a person who could not have been held criminally liable under the law of the executing state due to his/her age;
  • according to the certificate that accompanies the decision, the person concerned was not informed of the right to contest the case and of the time limits of such a legal remedy;
  • the decision provides that the financial penalty will be below EUR 70 or the equivalent;
  • according to the certificate that accompanies the decision, the person concerned did not personally appear at the trial, except where the certificate states that the person was informed of the date and place of the trial and that a decision may be handed down there regardless of his/her presence, or where the person was represented by a legal counsellor, or where information on the right to a retrial or appeal was provided, yet the person did not contest the decision nor request a retrial or an appeal within the set time limit;
  • according to the certificate that accompanies the decision, the person concerned did not personally appear at the trial, except where the certificate states that the person had waived his/her right to an oral hearing as well as indicated that s/he did not contest the case.

Fundamental rights and other legal aspects

This framework decision respects fundamental rights.

The framework decision provides that the execution of the decision is governed by the law of the executing state. The latter can also decide to reduce the amount of the financial penalty in accordance with the amount provided for by national law, on condition that the acts had not been committed in the territory of the issuing state. A financial penalty imposed on a company will be enforced even if the executing state does not recognise the principle of criminal liability of legal persons. It can impose imprisonment or other penalties provided for by national law in the event of non-recovery of the financial penalty. Amnesty, pardon and review of sentence can be granted by both the issuing state and the executing state. Monies obtained from the enforcement of decisions will accrue to the executing state, unless otherwise agreed by the respective Member States.

This framework decision also applies to Gibraltar.

Member States will take the necessary measures to comply with the framework decision by 22 March 2007. The framework decision provides for a transitional period of 5 years from the date of entry into force.

Key terms used in the act

Financial penalty: the obligation to pay:

  • a sum of money on conviction of an offence (which must be listed in the framework decision);
  • compensation for victims;
  • costs of court or administrative proceedings;
  • sums of money to a public fund or a victim support organisation.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2005/214/JHA

22.3.2005

22.3.2007

OJ L 76 of 22.3.2005

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2009/299/JHA

28.3.2009

28.3.2011

OJ L 81 of 27.3.2009

Related Acts

Report from the Commission of 22 December 2008 based on Article 20 of the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [COM(2008) 888 final – Not published in the Official Journal].
This report evaluates the measures Member States have taken to transpose the provisions of Framework Decision 2005/214/JHA into national law. However, by October 2008, only 11 Member States had notified the Commission of the transposition, which is not sufficient for making a full assessment of the implementation of the framework decision at this point in time.
The implementing provisions of these 11 Member States are generally in line with the framework decision, especially among the most important issues such as the recognition and execution of decisions without any further formality and without verification of dual criminality. In addition, most Member States have applied the provisions concerning alternative sanctions, amnesty, pardon and review of sentences, as well as those concerning the accrual of monies obtained from the enforcement of decisions.
With regard to the law governing the enforcement of decisions, some of the Member States have only partially implemented the provisions.
Furthermore, the optional provisions on the grounds that may constitute a basis for refusing the recognition or execution of a decision were transposed in most Member States as obligatory. Several Member States have also laid down additional grounds for refusal, which is not in line with the framework decision.
The Commission encourages Member States to take into consideration this report, proceed with the necessary legislative actions and transmit the relevant information in accordance with the provisions of Article 20 of the framework decision to the Commission and the General Secretariat of the Council of the European Union.

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Outline of the Community (European Union) legislation about Mutual recognition of custodial sentences and measures involving deprivation of liberty

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

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Document or Iniciative

Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [See amending act(s)].

Summary

This framework decision sets out the rules whereby judgements that impose custodial sentences or measures involving the deprivation of liberty delivered in one Member State are to be recognised and enforced in another Member State. The aim is to thus facilitate the social rehabilitation and reintegration of sentenced persons.

Member States must designate the competent authorities for issuing and executing judgements. The competent authority of the issuing state is responsible for forwarding the judgement accompanied by the certificate annexed to the framework decision directly to the competent authority of one executing state at a time and in a manner that leaves a written record.

When the sentenced person is located in the issuing or executing state and, under certain circumstances, has given his/her permission for forwarding the judgement, it may be transmitted to:

  • the Member State of which the sentenced person is a national and where s/he lives;
  • the Member State of which the sentenced person is a national and to which s/he could be deported following the judgement, even if this is not his/her place of residence;
  • any other Member State, provided that its competent authority agrees to the forwarding.

A judgement may be forwarded only once the issuing state has ensured that the enforcement of the sentence in the executing state would serve the purpose of facilitating the sentenced person’s social rehabilitation and reintegration. The latter may provide the issuing state with a reasoned opinion indicating that enforcement by it would not serve this purpose. The executing state, as well as the sentenced person, may also request the initiation of the procedure for forwarding judgements.

Upon receiving the forwarded judgement and certificate, the executing state must decide within a maximum of 90 days whether it will recognise the judgement and enforce the sentence.

The competent authority of the executing state has to recognise the judgment and take all necessary measures to enforce the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided in the framework decision. The non-recognition of the judgement and non-enforcement of the sentence is possible when the:

  • certificate is incomplete or does not correspond to the judgement;
  • criteria for forwarding the judgement and the certificate have not been fulfilled;
  • enforcement would contravene the ne bis in idem principle;
  • offence is not recognised as such under the law of the executing state, with certain exceptions;
  • enforcement is statute-barred under the law of the executing state;
  • law of the executing state provides for immunity;
  • sentenced person cannot be held liable under the law of the executing state due to his/her age;
  • remaining sentence is less than six months when the executing state receives the judgement;
  • sentenced person had not appeared in person at the trial where the judgement was passed, with certain exceptions;
  • issuing state rejects the request of the executing state to prosecute, sentence or otherwise deprive the liberty of the sentenced person for another offense committed before the transfer;
  • sentence requires for psychiatric or health care or for another measure involving the deprivation of liberty that the executing state cannot provide;
  • offence was committed on the territory of the executing state.

In case the certificate is incomplete or does not correspond to the judgement, the executing state may postpone its recognition.

The framework decision provides a list of offences that must be recognised and enforced without a double criminality check, if they result in a custodial sentence or a measure involving deprivation of liberty of a maximum of at least three years in the issuing state. For all other offences, the executing state may require that they constitute an offence also under its national law in order for them to be recognised and enforced. Where the duration or nature of the sentence is not compatible with the national law of the executing state, it may adapt the sentence. However, the adapted sentence must correspond as closely as possible to and in no case be harsher than the original sentence.

In line with the law of the issuing state, the consent of the sentenced person is required for the forwarding of a judgment and certificate to the executing state for recognition and enforcement of the sentence. However, this consent is not required when the executing state is the Member State:

  • of which the sentenced person is a national and where s/he lives;
  • to which the sentenced person is deported upon release, by reason of the order included in the judgement;
  • to which the sentenced person has fled or returned, while criminal proceedings against him/her are pending or following a conviction in the issuing state.

In any event, if the sentenced person is in the issuing state, s/he must be given the opportunity to provide an oral or written opinion.

When the sentenced person is located on the territory of the issuing state, s/he must be transferred to the territory of the executing state within a period of 30 days from the date when the latter has recognised the judgement.

Both the issuing and executing state may grant amnesty or pardon. However, only the issuing state may decide on the review of the judgement.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2008/909/JHA

5.12.2008

5.12.2011

OJ L 327 of 5.12.2008

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2009/299/JHA

28.3.2009

28.3.2011

OJ L 81 of 27.3.2009

Mutual recognition of supervision measures

Mutual recognition of supervision measures

Outline of the Community (European Union) legislation about Mutual recognition of supervision measures

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

Mutual recognition of supervision measures

Document or Iniciative

Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention.

Summary

The framework decision lays down rules for the mutual recognition of supervision measures during criminal proceedings by European Union (EU) countries. These rules regulate the:

  • recognition of a decision on supervision measures;
  • monitoring of supervision measures;
  • surrendering of a person breaching supervision measures imposed on him/her.

Thus, the framework decision aims at:

  • making sure that the person concerned will be available to attend his/her trial;
  • promoting the use of non-custodial measures in criminal proceedings that take place in an EU country other than that where the person concerned is resident;
  • improving the protection of victims and the general public.

Types of supervision measures

EU countries must recognise and monitor supervision measures that impose an obligation on the person concerned to:

  • inform the authority monitoring the supervision measures of any change of residence;
  • not enter certain locations;
  • stay at a specified location;
  • comply with certain restrictions for leaving the territory of the monitoring country;
  • report at specified times to the designated authority;
  • refrain from contacting specific persons connected to the alleged crime.

The framework decision lists a number of additional supervision measures that each EU country may choose to monitor.

Forwarding supervision measures

An EU country may forward a decision on supervision measures to the competent authority of the EU country of residence of the person against whom the measures are imposed. However, the latter must have been informed of these measures and agreed to return to his/her country of residence. Following a request from the person concerned, a decision on supervision measures may also be forwarded to the competent authority of another EU country. In such cases, the authority in question must have agreed to receive the decision.

The competent authority of the EU country that issued the decision on supervision measures forwards this decision (or a certified copy of it) together with a certificate annexed to the framework decision directly to the competent authority of the EU country that will carry out the monitoring tasks. The competent authority of the issuing country must indicate the validity period of the decision on supervision measures and whether this decision may be renewed. In addition, it must specify the expected length of time needed for monitoring the supervision measures.

Recognising decisions on supervision measures

The country to which a decision on supervision measures is forwarded must recognise this decision and take the necessary measures for monitoring the supervision measures within 20 days from receipt. The framework decision lists certain offences for which decisions on supervision measures must in all cases be recognised, without verifying the double criminality of the acts. However, these offences must be punishable by a custodial sentence or a measure involving deprivation of liberty for a minimum of three years in the country that issued the decision on supervision measures.

For any other offences, the country that is to monitor the supervision measures may require the decision to relate to acts that are also an offence under its law in order to recognise the decision. Under certain circumstances, this country may refuse to recognise the decision on supervision measures altogether.

In case the supervision measures are not compatible with the law of the monitoring country, its competent authority may adapt these measures. However, the adapted measures must correspond as closely as possible to, and may in no case be more severe than, the original measures imposed.

Once the monitoring country has recognised the decision on supervision measures, it becomes competent for the monitoring of the supervision measures and its national law will govern the supervision.

Taking any subsequent decisions

The country having issued the decision on supervision measures has competence for any subsequent decisions concerning: the renewal, review and withdrawal of the original decision, the modification of the supervision measures and the issuing of an arrest warrant. Any decision on these will be governed by the law of the issuing country.

In case the competent authority of the issuing country modifies the supervision measures, the competent authority of the monitoring country may either:

  • adapt these measures, if they are not compatible with its national law, or
  • refuse to monitor these measures, if they fall outside the scope of this framework decision.

In case the competent authority of the issuing country issues an arrest warrant, the person concerned must be surrendered conforming to the procedures laid down in the framework decision on the European arrest warrant.

Background

The conclusions of the Tampere European Council of 15-16 October 1999 stressed the importance of applying the principle of mutual recognition to pre-trial orders. Consequently, the mutual recognition of supervision measures was taken up in the 2001 programme of measures to implement the principle of mutual recognition in criminal matters.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2009/829/JHA

1.12.2009

1.12.2012

OJ L 294 of 11.11.2009

Mutual recognition of protection measures in civil matters

Mutual recognition of protection measures in civil matters

Outline of the Community (European Union) legislation about Mutual recognition of protection measures in civil matters

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

Mutual recognition of protection measures in civil matters (Proposal)

Proposal

Proposal for a Regulation of the European Parliament and of the Council on mutual recognition of protection measures in civil matters [COM(2011) 276 final – Not published in the Official Journal].

Summary

Victims of violence must continue to benefit from protection measures * against their offender, such as the obligation not to contact or the obligation not to approach the protected person, when they travel or move to another European Union (EU) Member State.

The Commission therefore proposes a Regulation to establish the arrangements for the mutual recognition of protection measures in civil matters. The initiative comes from the Stockholm Programme which recognises the need to go further in matters of victim protection. It also forms part of a series of measures aimed at strengthening victims’ rights. Lastly, it complements an initiative submitted by a group of Member States in September 2009 relating to a Proposal for a Directive on the European Protection Order, aimed at ensuring the mutual recognition of protection measures taken in criminal matters.

Scope

The Regulation concerns protection measures taken in civil matters only. It does not cover protection measures taken in matrimonial matters and matters of parental responsibility. In the event of a violation of a protection measure, criminal sanctions will continue to be dealt with by the national law of each EU country.

Due to their more specific nature, the measures provided for by this Regulation will replace those on the jurisdiction, recognition and enforcement of judgments in civil and commercial matters.

Recognition and enforcement of judgments

To invoke a protection order in another EU country (the Member State of recognition), the protected person must simply present a certificate issued by the country which adopted the order (the Member State of origin). The Proposal provides for a standardised certificate containing all the information required for recognition, and if necessary, for enforcing the protection measure.

In cases of a cross-border nature or if requested by the protected person, the certificate shall be issued at the time of adoption of the measure.

One ground for refusal of recognition is provided for: in cases where the decision is irreconcilable with a decision taken by the Member State of recognition. The fact that the country does not have protection measures or has different measures does not prevent it from recognising the decision. If necessary, the Member State may adapt the protection measure to a similar one known under its own law.

If required, the Member State of recognition must ensure the enforcement of the measure by the competent authorities.

Arrangements are put in place in order to safeguard fundamental rights:

  • before issuing the certificate, the Member State of origin must verify that the fundamental rights of the person causing the risk, such as the right to a fair trial and the right of defence, have been respected;
  • in the event of suspension or withdrawal of the measure by the Member State of origin, the Member State of recognition shall suspend or withdraw the recognition and the enforcement of the measure at request of the person causing the risk;
  • the Member State of origin and the Member State of recognition must bring to the notice of the person causing the risk and of the protected person any information related to the issuing, recognition, possible enforcement and sanctions, and suspension or withdrawal of the protection measure.
Key terms of the Act
  • Protection measure: any decision of a preventive and temporary nature taken by an authority in a Member State with a view to protecting a person when serious reasons exist to consider the person’s physical and/or psychological integrity or liberty to be at risk. This includes measures which are adopted without the person causing the risk being summoned to appear.

Reference

Proposal Official Journal Procedure

COM(2011) 276 final

2011/130/COD

Related Acts

Proposal for a Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime [COM(2011) 275 final – Not published in the Official Journal].

The proposed Directive establishes minimum standards for the victims of crime. It aims to ensure that the specific needs of victims are taken into account during criminal proceedings, regardless of the nature of the offence or where it took place within the EU.

Co-decision procedure (2011/0129/COD)

Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions of 18 May 2011 – Strengthening victims’ rights in the EU [COM(2011) 274 final – Not published in the Official Journal].

Mutual information mechanism for national asylum and immigration measures

Mutual information mechanism for national asylum and immigration measures

Outline of the Community (European Union) legislation about Mutual information mechanism for national asylum and immigration measures

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 > Free movement of persons asylum and immigration

Mutual information mechanism for national asylum and immigration measures

Document or Iniciative

Council Decision 2006/688/EC of 5 October 2006 on the establishment of a mutual information mechanism concerning Member States’ measures in the areas of asylum and immigration.

Summary

The mutual information mechanism (MIM) provides for exchanges of information between the Commission and European Union (EU) countries concerning national laws on asylum and immigration.

EU countries are required to transmit through a web-based network, and using the report form annexed to the decision, the measures they intend to take or have recently taken. Such information should be transmitted as soon as possible and at the latest when it becomes publicly available.

EU countries are required to communicate to the Commission and the other EU countries only measures that are likely to have a significant impact:

  • in other EU countries;
  • at the level of the EU as a whole.

The Commission is responsible for the development and management of the network. In setting up the network, it will make use of the existing technical platform of the trans-European telematic network for the exchange of information between EU country authorities (CIRCA). The network has a specific functionality that allows the Commission and EU countries to request from one or more countries additional information on measures communicated.

Any specific national measure notified in this way may give rise to an exchange of views between EU country experts and the Commission. In addition to these technical discussions, the Commission will prepare each year a report summarising the most relevant information transmitted by EU countries. The report will be submitted to the European Parliament and the Council for use as the basis of ministerial discussions on national asylum and immigration policies.

The Commission will evaluate the functioning of the mechanism two years after the entry into force of the decision and regularly thereafter.

Background

National measures in the areas of immigration and asylum are likely to have an impact on other EU countries. This is due to the absence of border checks in the Schengen area, the close economic and social relations between EU countries and the development of common visa, immigration and asylum policies.

The EU has been striving to draw up a common asylum and immigration policy since the entry into force of the Treaty of Amsterdam in 1999. Although a large number of common measures have already been taken in these areas at the EU level, the national authorities continue to play an important role, notably in the areas not yet covered by EU rules. They are constantly adopting new measures (e.g. important changes to asylum and immigration policies, setting quotas, large-scale regularisation measures or concluding readmission agreements) that may have implications for other EU countries or for the EU as a whole.

Therefore, this decision proposes the establishment of a formal information procedure between EU countries and the Commission, with the aim of improving the coordination of immigration and asylum policies between EU countries.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2006/688/EC

3.11.2006

OJ L 283 of 14.10.2006

Related Acts

Report from the Commission of 17 December 2009 pursuant to Article 4 and 5 of the Council Decision of 5 October 2006 on the establishment of a mutual information mechanism concerning Member States’ measures in the areas of asylum and immigration [COM(2009) 687 final – Not published in the Official Journal].
This report contains a summary of the most relevant information transmitted by EU countries and an evaluation on the functioning of the MIM during its first operational period.
From the beginning of the MIM becoming operational in April 2007 until 30 September 2009, only 16 EU countries had transmitted information via the MIM on only 45 measures:

  • 21 on adopted legislation;
  • 4 on draft legislation;
  • 9 on policy intentions and long-term programming;
  • 7 on administrative decisions affecting a large group of non-EU country nationals or having a general nature;
  • 4 on other measures.

No communications were made on final decisions of the highest courts or tribunals.
The format in which the communications were made was rarely homogenous. The reporting form annexed to the decision was not always used, which resulted in the ineffective reception of information in that the essence of the measures or their impact remained unidentifiable. In addition to this, at times only the English title and the text in the original language were provided, resulting in problems of comprehension. There were also differences in the contents of the reporting forms submitted: some were fairly comprehensive, while others only provided a cursory description without indication of the nature of the measure.
The MIM cannot be deemed as fulfilling its objectives since the quantity of information submitted was nominal. The rate of information exchanges varied somewhat, reaching an all-time low in 2009 with only 4 communications.
Yet, there is no evidence that the unsatisfactory application of the decision is caused by its provisions. In addition, since the MIM has only been operational for a short period, the Commission does not yet consider it relevant to propose amendments to the decision.

Multi-annual programme of action for health

Multi-annual programme of action for health

Outline of the Community (European Union) legislation about Multi-annual programme of action for health

Topics

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

Public health > European health strategy

Multi-annual programme of action for health (2014-2020) (Proposal)

Proposal

Proposal for a Regulation of the European Parliament and of the Council of 9 November 2011 on establishing a Health for Growth Programme, the third multi-annual programme of EU action in the field of health for the period 2014-2020 [COM(2011) 709 final – Not published in the Official Journal].

Summary

The Health for Growth Programme (2014-2020) is the third multi-annual programme of European Union (EU) action. It helps/supports Member States in order to:

  • undertake the necessary reforms to achieve innovative and sustainable health systems;
  • improve access to better and safer health care for citizens;
  • promote good health of European citizens and prevent diseases;
  • protect European citizens from cross-border threats.

Objective No 1: Contributing to innovative and sustainable health systems

The European Commission must help Member States to address shortages of human and financial resources. It must also promote the implementation of innovation in health care, for example e-Health, and the sharing of expertise in this field. The Programme also supports the European Innovation Partnership on Active and Healthy Ageing.

Objective No 2: Increasing access to better and safer healthcare for citizens

The Commission suggests setting up the accreditation of European Reference Networks. This would allow, for example, action to be supported in the field of rare diseases. European guidelines should also be developed on patient safety and the use of antimicrobials.

Objective No 3: Promoting good health and preventing diseases

Member States are invited to exchange best practices on smoking prevention, abuse of alcohol and obesity. Specific action should also help to prevent chronic diseases, including cancer.

Objective No 4: Protecting citizens from cross border health threats

The Commission considers that the level of preparedness and response for serious cross border health threats must be improved.

Financial provisions

The financial allocation for the Programme is EUR 446 million for the period from 1 January 2014 to 31 December 2020. The following may participate in the Programme:

  • all EU Member States;
  • countries acceding to the EU, candidate countries and potential candidates benefiting from a pre-accession strategy;
  • European Free Trade Association (EFTA) countries in accordance with the conditions established in the European Economic Area (EEA) Agreement;
  • neighbouring countries and countries to which the European Neighbourhood Policy (ENP) applies in accordance with the conditions established in bilateral or multilateral agreements.

The EU may also make financial contributions in the form of grants or public procurement to fund actions having European added value, or grants for the functioning of non-governmental bodies. Such grants contribute 60 % of eligible costs and cover a wide spectrum of legally established organisations such as:

  • public authorities and public sector bodies;
  • research institutions;
  • health institutions;
  • universities;
  • higher education establishments;
  • undertakings.

In exceptional cases only, these grants may be up to 80 % of eligible costs.

Funding may also cover expenditure on preparatory, monitoring, control, audit and evaluation activities required for the implementation of the Programme.

Implementation of the Programme

Implementation of Programme actions shall be monitored by the Commission, in close collaboration with Member States. The Commission shall, furthermore, be assisted by a committee pursuant to the Regulation on the Commission’s exercise of implementing powers.

Member States shall designate National Focal Points in order to disseminate the Programme and its results in their countries.

This Regulation repeals the Decision on the Second programme of Community action in the field of health from 1 January 2014.

Reference

Proposal Official Journal Procedure

COM(2011) 709 final

2011/0339/COD

Multilateral Environment for Europe process

Multilateral Environment for Europe process

Outline of the Community (European Union) legislation about Multilateral Environment for Europe process

Topics

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

External relations > Eastern europe and central asia

Multilateral Environment for Europe process

Document or Iniciative

Communication from the Commission of 21 May 2007 – Commission Cooperation with the Environment for Europe Process after the 2007 Ministerial Conference in Belgrade [COM(2007) 262 final – Not published in the Official Journal].

Summary

The Environment for Europe process is an informal multilateral framework created in 1991 and overseen by the United Nations Economic Commission for Europe (UNECE) to promote environmental protection in the countries of Central and Eastern Europe.

The European landscape has changed since the creation of this multilateral process, in particular through the enlargement of the EU to the east which integrated most of the countries of Central and Eastern Europe targeted by this process and thereby made them subject to the Community environment acquis. In addition, relations between the EU and UNECE countries have also been taken into account in the European Neighbourhood Policy and the development of bilateral relations (for example with Russia and the Ukraine) or regional relations (Black Sea region).

The main success stories of the Environment for Europe process include holding multilateral forums, its contribution to the drafting of pan-European reports evaluating the state of the environment, as well as the environmental strategy for the countries of Eastern Europe, the Caucasus and Central Asia (Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kirgizstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan) which aims to find solutions to environmental problems shared by these countries.

However, the Commission notes that the process has encountered some problems, such as difficulties for countries of the former Soviet Union which have not joined the EU to make progress in environmental matters (due mainly to internal political and financial constraints). The Commission also underlines the difficulties linked to the range of subjects dealt with at ministerial conferences and the fact that the role of the Environment for Europe process has progressively decreased as other cooperation frameworks and initiatives have developed.

At the ministerial meeting in Kiev in 2003 the parties decided from then on to focus the process more on countries in Eastern Europe, the Caucasus and Central Asia. They also rearranged the activities of the various working groups to make better use of available resources. Three trends emerged at this meeting, namely the progressive expansion of the EU towards the east (27 of the 56 members of UNECE are now in the EU and another three are EU candidates); the diversity of the countries in Eastern Europe, the Caucasus and Central Asia and the difficulty in seeing them as a unified region; and the decrease in donations to countries such as Russia and Kazakhstan following their rapid economic growth since the end of the 1990s.

The Commission is of the opinion that, following the meeting to be held in Belgrade in October 2007, the central role of the UNECE should be to facilitate the implementation of the UN’s conventions in the region and to continue in its role of coordinating environmental activities in the countries covered by the Environment for Europe process and helping to evaluate these countries’ environmental performance.

In turn the Commission will concentrate in particular on helping to implement the existing UNECE environmental conventions, contributing to UNECE environmental performance reviews, supporting Regional Environmental Centres, participating in selected sub-regional initiatives and improving the water sector in the region.

Related Acts

Communication from the Commission to the Council and the European Parliament of 4 December 2006 on

strengthening the European Neighbourhood Policy

[COM(2006) 726 final – Not published in the Official Journal].

Communication from the Commission of 17 December 2001 – EU-

Russia

Environmental Cooperation [COM(2001) 772 final – Not published in the Official Journal].

Communication from the Commission to the Council and the European Parliament of 6 February 2003 –

Pan-European Environmental Cooperation

after the 2003 Kiev Conference [COM(2003) 62 final – Not published in the Official Journal].

Council Decision of 15 October 1996 on the conclusion, on behalf of the Community, of the Convention on environmental impact assessment in a transboundary context (Espoo Convention).

The Espoo Convention, signed on 26 February 1991, aims to set out the obligations of Parties to assess the environmental impact of certain activities at an early stage of planning and imposes on States the general obligation regarding notification and consultation on all major projects that are likely to have a significant adverse environmental impact across borders. This Convention covers the UNECE countries.