The Council adopted\nconclusions on setting EU priorities for the fight against\norganised crime between 2011 and 2013. The priorities identified\ninclude the following:
\nThese conclusions should be\nimplemented at European and, where relevant, national or regional\nlevel against agreed strategic goals and via EU annual Operational\nAction Plans.
\nThe conclusions are a\nfollow-up to the creation at the end of 2010 of the EU policy cycle\nfor organised and serious international crime. This document\nestablishes a multi-annual policy cycle and clear methodology for\nsetting, implementing and evaluating priorities in the fight\nagainst organised and serious international crime. It is proposed\nto implement an initial reduced policy cycle from 2011 to 2013 on\nthe basis of the EU Organised Crime Threat Assessment (OCTA) 2011.\nThe first fully fledged EU policy cycle will be based on the EU\nSerious and Organised Crime Threat Assessment (SOCTA) 2013 and will\ncover the years 2013 to 2017.
\nIn this context, Ministers\nalso took note of a publication that aims at experience sharing in\nthe fight against organised crime. It is called \"Complementary\napproaches and actions to prevent and combat organised crime: A\ncollection of good practice examples from EU Member States\"\nDelegations were invited to ensure proper dissemination through\ntheir national channels.
\nThe Committee on Civil\nLiberties, Justice and Home Affairs adopted the own-initiative\nreport Sonia ALFANO (ADLE, IT) on organised crime in the European\nUnion.
\nMembers note that the\nmafia-style criminal organisations operating in Europe have an\nimpressively large turnover, particularly in the case of Italian\norganised crime groups, which are conservatively estimated to have\nrevenues of at least EUR 135 billion, a figure which is\nhigher than the combined GDP of 6 EU Member States. Accordingly,\nthey welcome the measures to curb organised crime proposed in\ntheStockholm Programme, in the\nrelevant action plan and in the internal security strategy and\nhopes that under the new trio Presidency combating organised crime\nwill be included among the political priorities.
\nMembers are convinced that\norganised crime, whether or not of the mafia type, is\namong the key threats to the internal security of the EU and\nthe freedom of its citizens. They consider that, although there is\na risk that criminal organisations may cooperate increasingly\nfrequently with terrorist organisations, organised crime should be\ntreated separately from terrorism, and they call for a specific,\nhorizontal EU strategy on the issue, including legislative and\noperational measures, the allocation of funds and a strict\nimplementation timetable.
\nEndorsing the Council conclusions of 8-9 November\n2010 on the EU policy cycle for organised crime,\nMembers call on the Council to revise the decision and make\nprovision for Parliament's involvement in this area.
\nThe committee goes on to\nask Member States to :
\nAt the same time, the\ncommittee stresses that all measures to counter organised\ncrime must respect fundamental rights in full and be proportionate\nto the objectives pursued without unduly restricting the\nfreedom of individuals. It expresses deep concern at the attempts\nby organised crime to infiltrate the sectors of politics,\ngovernment at all levels, the economy and finance. Members call on\nthe Commission, the Council and the Member States to focus their\ndissuasive action on attacking criminal assets, including those\nwhich are often hidden behind a network of front men and\nsupporters, political institutions and lobby groups and make\nefforts to combat organised crime taking full account of 'white\ncollar' crime.
\nImproving the EU\nlegislative framework: given that\norganised crime is growing, Members call on Member States to\nimprove cooperation and coordination and to approximate their\nlegislation, especially with reference to the development of\ncommon, standard procedures and types of criminal offence, drawing\non the good practices. They also ask for the ratification\nand/or transposition of all European and international legal\ninstruments relating directly or indirectly to action to combat\norganised crime.
\nAmongst other measures, and\ntaking account of the extremely limited impact of Framework\nDecision 2008/841/JHA on organised crime, the report calls on the\nCommission to submit, by the end of 2013, a proposal for a\ndirective which:
\nThe Commission is also\ncalled upon to submit a framework proposal for a directive on the\nprocedure for the seizure and confiscation of the proceeds of\ncrime, including the following elements:
\nMembers also ask the\nCommission to: i) support the urgent need for European legislation\non the re-use of crime proceeds for social purposes; ii) strengthen\nthe role and competences of Asset Recovery Offices; iii) draw up a\nstudy by the end of 2013 on the investigative practices employed in\nthe Member States to combat organised crime, with particular\nreference to the use of tools such as telephone interception,\nenvironmental interception, search procedures, delayed arrest,\ndelayed seizure, undercover operations and controlled and\nsupervised delivery operations; vi) submit a proposal for a\ndirective by the end of 2014 on common investigative techniques to\ncombat organised crime, pursuant to Article 87(2)(c) of the TFEU;\nv) EU legislation covering court witnesses, informers,\nwhistleblowers and their families with all types of victim to be\ntreated equally (in particular the victims of organised crime and\nof terrorism and those injured in the course of their duties); vi)\nestablishing a European fund to protect and assist victims of\norganised crime and court witnesses; vii) promote the role of\nassociations of victims' families.
\nEradicating\nentrenched mafia-style organised crime in the\nEU: Members urge the Commission to\ndraw up a proposal for a directive to make associating with mafias\nor other criminal rings a punishable crime in all Member States, in\norder to be able to punish criminal organisations which profit from\ntheir very existence, through their ability to intimidate - even\nwithout any specific acts of violence or threats - with the aim of\ncommitting crimes, influencing the running of the economy, general\ngovernment, public services and the electoral system. They state\ntheir intent to set up a Parliamentary special committee on the\ndissemination of criminal organisations which operate across\nborders, including mafias, one of whose aims will be to investigate\nthe extent of the phenomenon. They call on the Commission, in\ncooperation with Europol and Eurojust, to conduct a study by June\n2013 to assess the negative impact of transnational organised crime\nin the EU.
\nImproving the\nfunctioning of European structures and strengthening relations with\nother international institutions: the\ncommittee calls on Member States to transpose and implement\nimmediately Council Decision 2009/426/JHA on the strengthening of\nEurojust and to comply with all its recommendations. It asserts the\nimportance of strengthening Eurojust in countering transnational\norganised crime, with reference to its powers of initiative,\nparticularly the power to initiate investigations.
\nIt also calls on Europol to\nstep up relations with the European Parliament, to engage more\neffectively with organised crime and mafia-style crime and to\ncollaborate even more closely with Interpol with a view to\ncombating criminal organisations at international level. Members go\non to recommend other measures such as the improvement of\ncooperation between national police services and judicial\nauthorities of Member States. They call on Europol, Eurojust and\nOLAF and the European Anti-Trafficking Coordinator to make tangible\nefforts to establish a clear breakdown of responsibilities with a\nview to avoiding any duplication of effort.
\nDeveloping the principle\nof the mutual recognition of criminal decisions and improving\njudicial and police cooperation in the EU and with third\ncountries: Members consider that\nconsiderable attention needs to be paid to informing and raising\nawareness among judicial and police authorities. They want to\nensure the strengthening of judicial cooperation, including that\nbetween Member States, in order to establish a common area of\nsecurity and justice.
\nSeveral measures are\nrecommended, including the following:
\nMembers set out a series of\nother measures for fighting organised crime, particularly the\nfollowing : a) promoting a culture of legality; b) developing\na framework to ensure transparency and effective monitoring of the\ndevelopment of abandoned and adopted children; c) public sector\ntransparency in the fight against organised crime d) an appropriate\nsystem of penalties and suitable detention provisions for offences\nrelating to organised crime preventing people continuing to lead\norganisations during their sentences or helping them to achieve\ntheir aims by committing further crimes;
\nCounter-measures\nrelating to specific areas of action of organised\ncrime: Members stress the need for a\nproactive approach to combating corruption and calls on the\nCommission to place emphasis on measures to counter both public and\nprivate sector corruption. Effective measures are required to\ncombat corruption in the neighbourhood policy, in the area of\npre-accession and in the use of development aid funds. The report\ncalls on European political groups to draw up internal codes of\nethics to prevent those who have been convicted, even if not\ndefinitively, of such offences from standing for\nelection.
\nLastly, Members call on the\nCommission and Member States to:
\nThe European Parliament\nadopted a resolution on organised crime in the European\nUnion.
\nA growing\nphenomenon: Parliament notes that the\nmafia-style criminal organisations operating in Europe have an\nimpressively large turnover, particularly in the case of Italian\norganised crime groups, which are conservatively estimated to have\nrevenues of at least EUR 135 billion, a figure which is\nhigher than the combined GDP of 6 EU Member States. Accordingly, it\nwelcomes the measures to curb organised crime proposed in\ntheStockholm\nProgramme, in the relevant\naction plan and in the internal security strategy and hopes that\nunder the new trio Presidency combating organised crime will be\nincluded among the political priorities.
\nConvinced that organised crime, whether or not\nof the mafia type, is among the key threats to the internal\nsecurity of the EU and the freedom of its citizens, Parliament\nstresses the real risk that criminal organisations may cooperate\nincreasingly frequently with terrorist organisations and calls\nfor a specific, horizontal EU strategy on the issue, including\nlegislative and operational measures, the allocation of funds and a\nstrict implementation timetable.
\nEndorsing the Council\nconclusions of 8-9 November 2010 on the EU policy cycle for organised crime, it\ncalls on the Council to revise the decision and make provision\nfor Parliament's involvement in this area.
\nParliament goes on to ask Member States\nto:
\nAt the same time,\nParliament stresses that all measures to counter organised crime\nmust respect fundamental rights in full and be proportionate to the\nobjectives pursued without unduly restricting the freedom of\nindividuals. It expresses deep concern at the attempts by organised\ncrime to infiltrate the sectors of politics, government at all\nlevels, the economy and finance.
\nCriminal\nassets: Parliament calls on the\nCommission, the Council and the Member States to focus their\ndissuasive action on attacking criminal assets, including those\nwhich are often hidden behind a network of front men and\nsupporters, political institutions and lobby groups and make\nefforts to combat organised crime taking full account of 'white\ncollar' crime.
\nImproving the EU\nlegislative framework: given that\norganised crime is growing, Parliament calls on Member States to\nimprove cooperation and coordination and to approximate their\nlegislation, especially with reference to the development of\ncommon, standard procedures and types of criminal offence,\ndrawing on the good practices. It also asks for the ratification\nand/or transposition of all European and international legal\ninstruments relating directly or indirectly to action to combat\norganised crime.
\nAmongst other measures, and\ntaking account of the extremely limited impact of Framework\nDecision 2008/841/JHA on organised crime, Parliament calls on\nthe Commission to submit, by the end of 2013, a proposal for a directive\nwhich: i) contains a more concrete definition of organised crime\nand better identifies the key features of the phenomenon, focusing\nin particular on the key concept of organisation; ii)\nproposes the abolition of the current dual approach which\ncriminalises both membership and conspiracy and the identification\nof a range of typical offences which could be deemed to constitute\nsuch a criminal offence; and iii) focuses on attacking criminal\nassets, including those that are indirectly linked to criminal\norganisations and their affiliates, which are often hidden behind a\nnetwork of front men and supporters.
\nThe Commission is also\ncalled upon to:
\nEradicating entrenched\nmafia-style organised crime in the EU: Parliament urges the Commission to draw up a\nproposal for a directive to make associating with mafias or other\ncriminal rings a punishable crime in all Member States, in\norder to be able to punish criminal organisations which profit from\ntheir very existence, through their ability to intimidate even\nwithout any specific acts of violence or threats. It states its\nintent to set up a Parliamentary special committee on the\ndissemination of criminal organisations which operate across\nborders, including mafias, one of whose aims will be to investigate\nthe extent of the phenomenon.
\nImproving the\nfunctioning of European structures involved in combating organised\ncrime: Parliament calls on Member\nStates to transpose and implement immediately Council\nDecision 2009/426/JHA on the strengthening of Eurojust and to\ncomply with all its recommendations. It asserts the importance of\nstrengthening Eurojust in countering transnational organised crime,\nwith reference to its powers of initiative, particularly the power\nto initiate investigations.
\nIt also\ncalls on Europol to engage more effectively with organised crime.\nCloser cooperation between EUROPOL, EUROJUST, OLAF and the European\nAnti-Trafficking Coordinator is also recommended.
\nDeveloping the principle\nof the mutual recognition of criminal decisions and improving\njudicial and police cooperation in the EU and with third\ncountries: Parliament considers that considerable attention needs to be paid to\ninforming and raising awareness among judicial and police\nauthorities. They want to ensure the strengthening of\njudicial cooperation, including that between Member States, in\norder to establish a common area of security and\njustice.
\nIncluded among the measures\nthat Parliament recommends are the following:
\nCounter-measures\nrelating to specific areas of action of organised\ncrime: Parliament stresses the need\nfor a proactive approach to combating corruption and calls on the\nCommission to place emphasis on measures to counter both public and\nprivate sector corruption.
\nThe measures favoured by\nParliament include the following:
\nThe Council adopted\nconclusions on setting EU priorities for the fight against\norganised crime between 2011 and 2013. The priorities identified\ninclude the following:
\nThese conclusions should be\nimplemented at European and, where relevant, national or regional\nlevel against agreed strategic goals and via EU annual Operational\nAction Plans.
\nThe conclusions are a\nfollow-up to the creation at the end of 2010 of the EU policy cycle\nfor organised and serious international crime. This document\nestablishes a multi-annual policy cycle and clear methodology for\nsetting, implementing and evaluating priorities in the fight\nagainst organised and serious international crime. It is proposed\nto implement an initial reduced policy cycle from 2011 to 2013 on\nthe basis of the EU Organised Crime Threat Assessment (OCTA) 2011.\nThe first fully fledged EU policy cycle will be based on the EU\nSerious and Organised Crime Threat Assessment (SOCTA) 2013 and will\ncover the years 2013 to 2017.
\nIn this context, Ministers\nalso took note of a publication that aims at experience sharing in\nthe fight against organised crime. It is called \"Complementary\napproaches and actions to prevent and combat organised crime: A\ncollection of good practice examples from EU Member States\"\nDelegations were invited to ensure proper dissemination through\ntheir national channels.
\nThe Committee on Civil\nLiberties, Justice and Home Affairs adopted the own-initiative\nreport Sonia ALFANO (ADLE, IT) on organised crime in the European\nUnion.
\nMembers note that the\nmafia-style criminal organisations operating in Europe have an\nimpressively large turnover, particularly in the case of Italian\norganised crime groups, which are conservatively estimated to have\nrevenues of at least EUR 135 billion, a figure which is\nhigher than the combined GDP of 6 EU Member States. Accordingly,\nthey welcome the measures to curb organised crime proposed in\ntheStockholm Programme, in the\nrelevant action plan and in the internal security strategy and\nhopes that under the new trio Presidency combating organised crime\nwill be included among the political priorities.
\nMembers are convinced that\norganised crime, whether or not of the mafia type, is\namong the key threats to the internal security of the EU and\nthe freedom of its citizens. They consider that, although there is\na risk that criminal organisations may cooperate increasingly\nfrequently with terrorist organisations, organised crime should be\ntreated separately from terrorism, and they call for a specific,\nhorizontal EU strategy on the issue, including legislative and\noperational measures, the allocation of funds and a strict\nimplementation timetable.
\nEndorsing the Council conclusions of 8-9 November\n2010 on the EU policy cycle for organised crime,\nMembers call on the Council to revise the decision and make\nprovision for Parliament's involvement in this area.
\nThe committee goes on to\nask Member States to :
\nAt the same time, the\ncommittee stresses that all measures to counter organised\ncrime must respect fundamental rights in full and be proportionate\nto the objectives pursued without unduly restricting the\nfreedom of individuals. It expresses deep concern at the attempts\nby organised crime to infiltrate the sectors of politics,\ngovernment at all levels, the economy and finance. Members call on\nthe Commission, the Council and the Member States to focus their\ndissuasive action on attacking criminal assets, including those\nwhich are often hidden behind a network of front men and\nsupporters, political institutions and lobby groups and make\nefforts to combat organised crime taking full account of 'white\ncollar' crime.
\nImproving the EU\nlegislative framework: given that\norganised crime is growing, Members call on Member States to\nimprove cooperation and coordination and to approximate their\nlegislation, especially with reference to the development of\ncommon, standard procedures and types of criminal offence, drawing\non the good practices. They also ask for the ratification\nand/or transposition of all European and international legal\ninstruments relating directly or indirectly to action to combat\norganised crime.
\nAmongst other measures, and\ntaking account of the extremely limited impact of Framework\nDecision 2008/841/JHA on organised crime, the report calls on the\nCommission to submit, by the end of 2013, a proposal for a\ndirective which:
\nThe Commission is also\ncalled upon to submit a framework proposal for a directive on the\nprocedure for the seizure and confiscation of the proceeds of\ncrime, including the following elements:
\nMembers also ask the\nCommission to: i) support the urgent need for European legislation\non the re-use of crime proceeds for social purposes; ii) strengthen\nthe role and competences of Asset Recovery Offices; iii) draw up a\nstudy by the end of 2013 on the investigative practices employed in\nthe Member States to combat organised crime, with particular\nreference to the use of tools such as telephone interception,\nenvironmental interception, search procedures, delayed arrest,\ndelayed seizure, undercover operations and controlled and\nsupervised delivery operations; vi) submit a proposal for a\ndirective by the end of 2014 on common investigative techniques to\ncombat organised crime, pursuant to Article 87(2)(c) of the TFEU;\nv) EU legislation covering court witnesses, informers,\nwhistleblowers and their families with all types of victim to be\ntreated equally (in particular the victims of organised crime and\nof terrorism and those injured in the course of their duties); vi)\nestablishing a European fund to protect and assist victims of\norganised crime and court witnesses; vii) promote the role of\nassociations of victims' families.
\nEradicating\nentrenched mafia-style organised crime in the\nEU: Members urge the Commission to\ndraw up a proposal for a directive to make associating with mafias\nor other criminal rings a punishable crime in all Member States, in\norder to be able to punish criminal organisations which profit from\ntheir very existence, through their ability to intimidate - even\nwithout any specific acts of violence or threats - with the aim of\ncommitting crimes, influencing the running of the economy, general\ngovernment, public services and the electoral system. They state\ntheir intent to set up a Parliamentary special committee on the\ndissemination of criminal organisations which operate across\nborders, including mafias, one of whose aims will be to investigate\nthe extent of the phenomenon. They call on the Commission, in\ncooperation with Europol and Eurojust, to conduct a study by June\n2013 to assess the negative impact of transnational organised crime\nin the EU.
\nImproving the\nfunctioning of European structures and strengthening relations with\nother international institutions: the\ncommittee calls on Member States to transpose and implement\nimmediately Council Decision 2009/426/JHA on the strengthening of\nEurojust and to comply with all its recommendations. It asserts the\nimportance of strengthening Eurojust in countering transnational\norganised crime, with reference to its powers of initiative,\nparticularly the power to initiate investigations.
\nIt also calls on Europol to\nstep up relations with the European Parliament, to engage more\neffectively with organised crime and mafia-style crime and to\ncollaborate even more closely with Interpol with a view to\ncombating criminal organisations at international level. Members go\non to recommend other measures such as the improvement of\ncooperation between national police services and judicial\nauthorities of Member States. They call on Europol, Eurojust and\nOLAF and the European Anti-Trafficking Coordinator to make tangible\nefforts to establish a clear breakdown of responsibilities with a\nview to avoiding any duplication of effort.
\nDeveloping the principle\nof the mutual recognition of criminal decisions and improving\njudicial and police cooperation in the EU and with third\ncountries: Members consider that\nconsiderable attention needs to be paid to informing and raising\nawareness among judicial and police authorities. They want to\nensure the strengthening of judicial cooperation, including that\nbetween Member States, in order to establish a common area of\nsecurity and justice.
\nSeveral measures are\nrecommended, including the following:
\nMembers set out a series of\nother measures for fighting organised crime, particularly the\nfollowing : a) promoting a culture of legality; b) developing\na framework to ensure transparency and effective monitoring of the\ndevelopment of abandoned and adopted children; c) public sector\ntransparency in the fight against organised crime d) an appropriate\nsystem of penalties and suitable detention provisions for offences\nrelating to organised crime preventing people continuing to lead\norganisations during their sentences or helping them to achieve\ntheir aims by committing further crimes;
\nCounter-measures\nrelating to specific areas of action of organised\ncrime: Members stress the need for a\nproactive approach to combating corruption and calls on the\nCommission to place emphasis on measures to counter both public and\nprivate sector corruption. Effective measures are required to\ncombat corruption in the neighbourhood policy, in the area of\npre-accession and in the use of development aid funds. The report\ncalls on European political groups to draw up internal codes of\nethics to prevent those who have been convicted, even if not\ndefinitively, of such offences from standing for\nelection.
\nLastly, Members call on the\nCommission and Member States to:
\nThe European Parliament\nadopted a resolution on organised crime in the European\nUnion.
\nA growing\nphenomenon: Parliament notes that the\nmafia-style criminal organisations operating in Europe have an\nimpressively large turnover, particularly in the case of Italian\norganised crime groups, which are conservatively estimated to have\nrevenues of at least EUR 135 billion, a figure which is\nhigher than the combined GDP of 6 EU Member States. Accordingly, it\nwelcomes the measures to curb organised crime proposed in\ntheStockholm\nProgramme, in the relevant\naction plan and in the internal security strategy and hopes that\nunder the new trio Presidency combating organised crime will be\nincluded among the political priorities.
\nConvinced that organised crime, whether or not\nof the mafia type, is among the key threats to the internal\nsecurity of the EU and the freedom of its citizens, Parliament\nstresses the real risk that criminal organisations may cooperate\nincreasingly frequently with terrorist organisations and calls\nfor a specific, horizontal EU strategy on the issue, including\nlegislative and operational measures, the allocation of funds and a\nstrict implementation timetable.
\nEndorsing the Council\nconclusions of 8-9 November 2010 on the EU policy cycle for organised crime, it\ncalls on the Council to revise the decision and make provision\nfor Parliament's involvement in this area.
\nParliament goes on to ask Member States\nto:
\nAt the same time,\nParliament stresses that all measures to counter organised crime\nmust respect fundamental rights in full and be proportionate to the\nobjectives pursued without unduly restricting the freedom of\nindividuals. It expresses deep concern at the attempts by organised\ncrime to infiltrate the sectors of politics, government at all\nlevels, the economy and finance.
\nCriminal\nassets: Parliament calls on the\nCommission, the Council and the Member States to focus their\ndissuasive action on attacking criminal assets, including those\nwhich are often hidden behind a network of front men and\nsupporters, political institutions and lobby groups and make\nefforts to combat organised crime taking full account of 'white\ncollar' crime.
\nImproving the EU\nlegislative framework: given that\norganised crime is growing, Parliament calls on Member States to\nimprove cooperation and coordination and to approximate their\nlegislation, especially with reference to the development of\ncommon, standard procedures and types of criminal offence,\ndrawing on the good practices. It also asks for the ratification\nand/or transposition of all European and international legal\ninstruments relating directly or indirectly to action to combat\norganised crime.
\nAmongst other measures, and\ntaking account of the extremely limited impact of Framework\nDecision 2008/841/JHA on organised crime, Parliament calls on\nthe Commission to submit, by the end of 2013, a proposal for a directive\nwhich: i) contains a more concrete definition of organised crime\nand better identifies the key features of the phenomenon, focusing\nin particular on the key concept of organisation; ii)\nproposes the abolition of the current dual approach which\ncriminalises both membership and conspiracy and the identification\nof a range of typical offences which could be deemed to constitute\nsuch a criminal offence; and iii) focuses on attacking criminal\nassets, including those that are indirectly linked to criminal\norganisations and their affiliates, which are often hidden behind a\nnetwork of front men and supporters.
\nThe Commission is also\ncalled upon to:
\nEradicating entrenched\nmafia-style organised crime in the EU: Parliament urges the Commission to draw up a\nproposal for a directive to make associating with mafias or other\ncriminal rings a punishable crime in all Member States, in\norder to be able to punish criminal organisations which profit from\ntheir very existence, through their ability to intimidate even\nwithout any specific acts of violence or threats. It states its\nintent to set up a Parliamentary special committee on the\ndissemination of criminal organisations which operate across\nborders, including mafias, one of whose aims will be to investigate\nthe extent of the phenomenon.
\nImproving the\nfunctioning of European structures involved in combating organised\ncrime: Parliament calls on Member\nStates to transpose and implement immediately Council\nDecision 2009/426/JHA on the strengthening of Eurojust and to\ncomply with all its recommendations. It asserts the importance of\nstrengthening Eurojust in countering transnational organised crime,\nwith reference to its powers of initiative, particularly the power\nto initiate investigations.
\nIt also\ncalls on Europol to engage more effectively with organised crime.\nCloser cooperation between EUROPOL, EUROJUST, OLAF and the European\nAnti-Trafficking Coordinator is also recommended.
\nDeveloping the principle\nof the mutual recognition of criminal decisions and improving\njudicial and police cooperation in the EU and with third\ncountries: Parliament considers that considerable attention needs to be paid to\ninforming and raising awareness among judicial and police\nauthorities. They want to ensure the strengthening of\njudicial cooperation, including that between Member States, in\norder to establish a common area of security and\njustice.
\nIncluded among the measures\nthat Parliament recommends are the following:
\nCounter-measures\nrelating to specific areas of action of organised\ncrime: Parliament stresses the need\nfor a proactive approach to combating corruption and calls on the\nCommission to place emphasis on measures to counter both public and\nprivate sector corruption.
\nThe measures favoured by\nParliament include the following:
\nPURPOSE: to\n establish the European Investigation Order (EIO) on criminal matters and set\n out the terms under which it may be executed.
PROPOSED ACT:\n Initiative of Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden\n for a Directive of the European Parliament and of the Council.
BACKGROUND: Council\n Framework Decision 2003/577/JHA on the execution in the EU of orders\n freezing property and evidence addressed the need for mutual recognition of\n orders to prevent the destruction, transformation, moving, transfer or\n disposal of evidence. However, since that instrument is restricted to the\n freezing phase, a freezing order needs to be accompanied by a separate\n request for the transfer of the evidence to the issuing state in accordance\n with the rules applicable to mutual assistance in criminal matters. This\n results in a two-step procedure detrimental to its efficiency. Moreover, this\n regime coexists with the traditional instruments of cooperation and is\n therefore seldom used in practice by competent authorities.
Council\n Framework Decision 2008/978/JHA on the European evidence warrant was adopted\n to apply the principle of mutual recognition in such respect. However, the\n European evidence warrant is only applicable to evidence which already exists\n and covers therefore a limited spectrum of judicial cooperation in criminal\n matters with respect to evidence. Since the adoption of Framework Decisions\n 2003/577/JHA and 2008/978/JHA, it has become clear that the existing\n framework for the gathering of evidence is too fragmented and complicated. A\n new approach is therefore necessary.
In the Stockholm\n programme, adopted in December 2009, the European Council called for a\n comprehensive system to replace all the existing instruments in this area,\n including the Framework Decision on the European evidence warrant, covering\n as far as possible all types of evidence and containing deadlines for\n enforcement and limiting as far as possible the grounds for refusal. This new\n approach is based on a single instrument called the European Investigation\n Order.
IMPACT\n ASSESSMENT: no impact assessment was carried out.
LEGAL BASE:\n Article 82 (1)(a) of the Treaty on the Functioning of the European Union.
CONTENT: the\n draft Decision provides that the European Investigation Order (EIO) shall be\n a judicial decision issued by a competent authority of a Member State\n (\"the issuing State\") in order to have one or several specific\n investigative measure(s) carried out in another Member State (\"the\n executing State\") with a view to gathering evidence within the framework\n of the proceedings referred to in the text. Member States shall execute any\n EIO on the basis of the principle of mutual recognition and in accordance\n with the provisions of the Directive. The Directive shall not have the effect\n of modifying the obligation to respect the fundamental rights enshrined in\n the Treaty on European Union, or of requiring Member States to take any\n measures which conflict with their constitutional rules.
The proposal\n contains four Chapters.
Chapter I:\n the European Investigation Order: the main points\n are:
Scope of\n the EIO: the EIO shall cover any investigative\n measure with the exception of certain measures referred to in the proposal.\n These include the setting up of a joint investigation team, and the\n interception and immediate transmission of telecommunications in defined\n circumstances.
This Directive\n does not apply to cross-border observations as referred to in Article 40 of\n the Convention of 19 June 1990 implementing the Schengen Agreement.
Types of\n procedure for which the EIO can be issued: the\n EIO may be issued: a) with respect to criminal proceedings brought by a\n judicial authority in respect of a criminal offence under the national law of\n the issuing State; b) in proceedings brought by administrative authorities in\n respect of acts which are punishable under the national law of the issuing\n state by virtue of being infringements of the rules of law and where the\n decision may give rise to proceedings before a court having jurisdiction, in\n particular, in criminal matters; c) in proceedings brought by judicial\n authorities in respect of acts which are punishable under the national law of\n the issuing state by virtue of being infringements of the rules of law, and\n where the decision may give rise to proceedings before a court having\n jurisdiction, in particular, in criminal matters, and d) in connection with\n proceedings referred to in points (a), (b), and (c) which relate to offences\n or infringements for which a legal person may be held liable or punished in\n the issuing state.
Transmission\n of the EIO: this is transmitted from the issuing\n authority to the executing authority by any means capable of producing a\n written record under conditions allowing the executing State to establish\n authenticity. Each Member State may designate a central authority to assist\n the judicial competent authorities. When the authority in the executing State\n which receives the EIO has no jurisdiction to recognise it and to take the\n necessary measures for its execution, it shall, ex officio, transmit the EIO\n to the executing authority and so inform the issuing authority.
Recognition\n and execution: the executing authority shall\n recognise an EIO without any further formality being required, and shall\n forthwith take the necessary measures for its execution in the same way and\n under the same modalities as if the investigative measure in question had\n been ordered by an authority of the executing State, unless that authority\n decides to invoke one of the grounds for non-recognition or non-execution or\n one of the grounds for postponement.
Recourse to\n another type of investigative measure: the\n executing authority should have the possibility to use another type of\n measure either because the requested measure does not exist or is not\n available under its national law or because the other type of measure will\n achieve the same result as the measure provided for in the EIO by less coercive\n means.
Grounds for\n refusal or postponement: to ensure the\n effectiveness of judicial cooperation in criminal matters, the possibility of\n refusing to recognise or execute the EIO, as well as the grounds for\n postponing its execution, should be limited.
Deadlines: the decision on the recognition or execution shall be taken as\n soon as possible and no later than 30 days after the receipt of the EIO by\n the competent executing authority. Unless either grounds for postponement\n exist or evidence referred to in the investigative measure covered by the EIO\n is already in the possession of the executing State, the executing authority\n shall carry out the investigative measure without delay and no later than 90\n days after the decision is taken. When it is not practicable in a specific\n case for the competent executing authority to meet the deadline, it shall\n without delay inform the competent authority of the issuing State by any\n means, giving the reasons for the delay and the estimated time needed for the\n decision to be taken. In this case, the time limit may be extended by a\n maximum of 30 days.
Investigative\n measures implying a gathering of evidence in real time, continuously and over\n a certain period of time are covered by the EIO, but flexibility should be\n given to the executing authority for these measures given the differences\n existing in the national laws of the Member States.
Fundamental\n Rights: this Directive respects the fundamental\n rights and observes the principles recognised by Article 6 of the Treaty on\n European Union and by the Charter of Fundamental Rights of the European\n Union, notably Title VI thereof.
Nothing in\n this Directive may be interpreted as prohibiting refusal to execute an EIO\n when there are reasons to believe, on the basis of objective elements, that\n the EIO has been issued for the purpose of prosecuting or punishing a person\n on account of his or her sex, racial or ethnic origin, religion, sexual orientation,\n nationality, language or political opinions, or that the person's position\n may be prejudiced for any of these reasons.
It should be\n noted that the United Kingdom and Ireland have notified their wish to take\n part in the adoption of this Directive. Denmark, on the other hand, is not\n taking part in the adoption of this Directive and is not bound by it or\n subject to its application.
FINANCIAL\n IMPLICATIONS: this proposal has no implications for the EU budget.
\nPURPOSE: to\n establish the European Investigation Order (EIO) on criminal matters and set\n out the terms under which it may be executed.
PROPOSED ACT:\n Initiative of Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden\n for a Directive of the European Parliament and of the Council.
BACKGROUND: Council\n Framework Decision 2003/577/JHA on the execution in the EU of orders\n freezing property and evidence addressed the need for mutual recognition of\n orders to prevent the destruction, transformation, moving, transfer or\n disposal of evidence. However, since that instrument is restricted to the\n freezing phase, a freezing order needs to be accompanied by a separate\n request for the transfer of the evidence to the issuing state in accordance\n with the rules applicable to mutual assistance in criminal matters. This\n results in a two-step procedure detrimental to its efficiency. Moreover, this\n regime coexists with the traditional instruments of cooperation and is\n therefore seldom used in practice by competent authorities.
Council\n Framework Decision 2008/978/JHA on the European evidence warrant was adopted\n to apply the principle of mutual recognition in such respect. However, the\n European evidence warrant is only applicable to evidence which already exists\n and covers therefore a limited spectrum of judicial cooperation in criminal\n matters with respect to evidence. Since the adoption of Framework Decisions\n 2003/577/JHA and 2008/978/JHA, it has become clear that the existing\n framework for the gathering of evidence is too fragmented and complicated. A\n new approach is therefore necessary.
In the Stockholm\n programme, adopted in December 2009, the European Council called for a\n comprehensive system to replace all the existing instruments in this area,\n including the Framework Decision on the European evidence warrant, covering\n as far as possible all types of evidence and containing deadlines for\n enforcement and limiting as far as possible the grounds for refusal. This new\n approach is based on a single instrument called the European Investigation\n Order.
IMPACT\n ASSESSMENT: no impact assessment was carried out.
LEGAL BASE:\n Article 82 (1)(a) of the Treaty on the Functioning of the European Union.
CONTENT: the\n draft Decision provides that the European Investigation Order (EIO) shall be\n a judicial decision issued by a competent authority of a Member State\n (\"the issuing State\") in order to have one or several specific\n investigative measure(s) carried out in another Member State (\"the\n executing State\") with a view to gathering evidence within the framework\n of the proceedings referred to in the text. Member States shall execute any\n EIO on the basis of the principle of mutual recognition and in accordance\n with the provisions of the Directive. The Directive shall not have the effect\n of modifying the obligation to respect the fundamental rights enshrined in\n the Treaty on European Union, or of requiring Member States to take any\n measures which conflict with their constitutional rules.
The proposal\n contains four Chapters.
Chapter I:\n the European Investigation Order: the main points\n are:
Scope of\n the EIO: the EIO shall cover any investigative\n measure with the exception of certain measures referred to in the proposal.\n These include the setting up of a joint investigation team, and the\n interception and immediate transmission of telecommunications in defined\n circumstances.
This Directive\n does not apply to cross-border observations as referred to in Article 40 of\n the Convention of 19 June 1990 implementing the Schengen Agreement.
Types of\n procedure for which the EIO can be issued: the\n EIO may be issued: a) with respect to criminal proceedings brought by a\n judicial authority in respect of a criminal offence under the national law of\n the issuing State; b) in proceedings brought by administrative authorities in\n respect of acts which are punishable under the national law of the issuing\n state by virtue of being infringements of the rules of law and where the\n decision may give rise to proceedings before a court having jurisdiction, in\n particular, in criminal matters; c) in proceedings brought by judicial\n authorities in respect of acts which are punishable under the national law of\n the issuing state by virtue of being infringements of the rules of law, and\n where the decision may give rise to proceedings before a court having\n jurisdiction, in particular, in criminal matters, and d) in connection with\n proceedings referred to in points (a), (b), and (c) which relate to offences\n or infringements for which a legal person may be held liable or punished in\n the issuing state.
Transmission\n of the EIO: this is transmitted from the issuing\n authority to the executing authority by any means capable of producing a\n written record under conditions allowing the executing State to establish\n authenticity. Each Member State may designate a central authority to assist\n the judicial competent authorities. When the authority in the executing State\n which receives the EIO has no jurisdiction to recognise it and to take the\n necessary measures for its execution, it shall, ex officio, transmit the EIO\n to the executing authority and so inform the issuing authority.
Recognition\n and execution: the executing authority shall\n recognise an EIO without any further formality being required, and shall\n forthwith take the necessary measures for its execution in the same way and\n under the same modalities as if the investigative measure in question had\n been ordered by an authority of the executing State, unless that authority\n decides to invoke one of the grounds for non-recognition or non-execution or\n one of the grounds for postponement.
Recourse to\n another type of investigative measure: the\n executing authority should have the possibility to use another type of\n measure either because the requested measure does not exist or is not\n available under its national law or because the other type of measure will\n achieve the same result as the measure provided for in the EIO by less coercive\n means.
Grounds for\n refusal or postponement: to ensure the\n effectiveness of judicial cooperation in criminal matters, the possibility of\n refusing to recognise or execute the EIO, as well as the grounds for\n postponing its execution, should be limited.
Deadlines: the decision on the recognition or execution shall be taken as\n soon as possible and no later than 30 days after the receipt of the EIO by\n the competent executing authority. Unless either grounds for postponement\n exist or evidence referred to in the investigative measure covered by the EIO\n is already in the possession of the executing State, the executing authority\n shall carry out the investigative measure without delay and no later than 90\n days after the decision is taken. When it is not practicable in a specific\n case for the competent executing authority to meet the deadline, it shall\n without delay inform the competent authority of the issuing State by any\n means, giving the reasons for the delay and the estimated time needed for the\n decision to be taken. In this case, the time limit may be extended by a\n maximum of 30 days.
Investigative\n measures implying a gathering of evidence in real time, continuously and over\n a certain period of time are covered by the EIO, but flexibility should be\n given to the executing authority for these measures given the differences\n existing in the national laws of the Member States.
Fundamental\n Rights: this Directive respects the fundamental\n rights and observes the principles recognised by Article 6 of the Treaty on\n European Union and by the Charter of Fundamental Rights of the European\n Union, notably Title VI thereof.
Nothing in\n this Directive may be interpreted as prohibiting refusal to execute an EIO\n when there are reasons to believe, on the basis of objective elements, that\n the EIO has been issued for the purpose of prosecuting or punishing a person\n on account of his or her sex, racial or ethnic origin, religion, sexual orientation,\n nationality, language or political opinions, or that the person's position\n may be prejudiced for any of these reasons.
It should be\n noted that the United Kingdom and Ireland have notified their wish to take\n part in the adoption of this Directive. Denmark, on the other hand, is not\n taking part in the adoption of this Directive and is not bound by it or\n subject to its application.
FINANCIAL\n IMPLICATIONS: this proposal has no implications for the EU budget.
\nOpinion of the European Data Protection Supervisor on the initiative\n of several Member States for a Directive of the European Parliament and of\n the Council regarding the European Investigation Order in criminal matters.
This opinion\n reacts on two initiatives for a Directive of a number of Member States, as\n foreseen by Article 76 TFEU, namely:
Advising on these initiatives falls within the remit of\n the task entrusted to the EDPS in Article 41 of Regulation (EC) No 45/2001\n for advising EU institutions and bodies on all matters concerning the\n processing of personal data. This opinion, therefore, comments upon the\n initiatives as far as they relate to the processing of personal data. Since\n no request for advice has been sent to the EDPS, this opinion is issued on\n his own initiative. He regrets that he was not consulted when these\n initiatives were issued.
Although the two initiatives have different objectives —\n i.e. improving protection of victims and cross-border co- operation in\n criminal matters through the collection of evidence cross border — they have\n important similarities:
For these reasons, the EDPS considers it appropriate to\n examine them jointly.
The EDPS\n recommends with regard to both the EPO and the EIO initiatives:
· \n to include specific provisions stating that\n the instruments apply without prejudice to Council Framework Decision 2008/977/JHA of 27 November 2008 on the\n protection of personal data processed in the framework of police and judicial\n cooperation in criminal matters,
· \n to include provisions requiring the Member\n States to ensure that:
· \n competent authorities have the resources\n necessary for the application of the proposed directives,
· \n competent officials shall observe professional\n standards and be subject to appropriate internal procedures that ensure, in\n particular, the protection of individuals with regard to the processing of\n personal data, procedural fairness and the proper observance of the\n confidentiality and professional secrecy provisions,
· \n authentication systems allow only authorised\n individuals to have access to both databases containing personal data or\n premises where evidence are located,
· \n tracking of accesses and operations are\n performed,
· \n audit controls are implemented.
The EDPS\n recommends with regard to the EIO initiative:
· \n to include a provision on translations,\n similar to Article 16 of the EIO initiative;
· \n to include a provision that prevents the use\n of evidence for purposes other than the prevention, investigation, detection\n or prosecution of crime or the enforcement of criminal sanctions and the\n exercise of the right of defence, as an exception to Article 11(1)(d) of\n Framework Decision 2008/977/JHA;
· \n to add an evaluation clause to the EIO\n initiative, requiring from the Member States to report on a regular basis on\n the application of the instrument and from the Commission to synthesise these\n reports and, where relevant, issue appropriate proposals for amendments.
Moreover, and\n more in general, the EDPS:
· \n recommends the Council to establish a\n procedure in which consultation of the EDPS will take place, in case an\n initiative introduced by Member States is related to the processing of\n personal data,
· \n reiterates the need for a comprehensive data\n protection legal framework covering all areas of EU competence, including\n police and justice, to be applied to both personal data transmitted or made\n available by competent authorities of other Member States and to domestic\n processing in AFSJ.
\nThe Council held\n a first orientation debate regarding the creation of a European\n Investigation Order (EIO) in criminal matters. The EIO is an initiative which\n was presented in May 2010 by seven Member States.
Mutual\n recognition as the basis to allow one EU Member State to carry out\n investigative measures at the request of another EU Members State - with this\n goal in mind ministers held a first policy debate regarding the\n creation of a European Investigation Order (EIO) in criminal matters.
On the basis\n of a working document (see Council doc. 15531/10),\n ministers focused their debate on the following key issues which touch upon\n the core of the principle of mutual recognition:
The main goal\n of this initiative is to allow one EU Member State (\"the issuing\n state\") to issue a European Investigation Order and forward it to\n another Member State (\"the executing state\") in order to have one\n or several specific investigative measure(s) carried out with a view to\n gathering evidence. The investigative measures would, for example, include\n the hearing of witnesses, searches and seizures as well as, with additional\n safeguards, interceptions of telecommunications, observation, infiltration\n and monitoring of bank accounts.
The United\n Kingdom decided to participate in the EIO by using the opt-in option provided\n for in Protocol 21 of the Lisbon Treaty. Ireland and Denmark are not taking\n part.
\nMinisters\n continued work on the creation of a European Investigation Order (EIO) in\n criminal matters, with the aim of establishing mutual recognition as the\n basis for allowing one Member State to carry out investigative measures at\n the request of another Member State.
On the basis\n of a working document, Ministers discussed five main issues:
Scope of\n the proposal: already during the preliminary\n discussions, delegations broadly supported the idea of setting up a single\n legal regime for the obtaining of evidence within the EU. Most delegations\n agree that such a general scope should however not extend to forms of mutual\n legal assistance not directly linked to the gathering of evidence and that police\n cooperation should also be outside the scope of this instrument.\n Furthermore, exceptions to the general scope would have to be listed as\n narrowly as possible. While the exclusion of the joint investigation teams -\n which benefit from a specific regime in the EU - was generally agreed from\n the beginning, further examination was required regarding the inclusion\n within the scope of the directive of specific forms of interception of telecommunications.
Delegations\n generally supported the inclusion, within the scope of the Directive, of all forms\n of interception of telecommunications. However, one delegation maintained a\n scrutiny reservation on this solution.
Further\n discussions will also have to be continued on the procedures with respect to\n which an EIO may be issued. The proposed approach of the Presidency\n was to focus the discussions on criminal proceedings in a first stage and\n assess only in a second stage if the agreed solutions could be extended to\n some specific kind of non-criminal procedures.
The\n orientation drawn from the discussion is that:
· \n the new instrument should cover all\n investigative measures aimed at the obtaining of evidence, the only exception\n being the joint investigation teams which benefit from a specific regime in\n the EU;
· \n the discussions should focus on criminal\n proceedings in a first stage and assess only in a second stage if the agreed\n solutions could be extended to some specific kind of noncriminal procedures
Competent\n authorities
a) Issuing\n authorities: from the beginning, several\n delegations opposed the provision introducing an obligation to recognize EIOs\n issued by authorities other than a judge, prosecutor or investigating\n magistrate. Others insisted, on the contrary, on the fact that measures\n covered by the Directive may be ordered by non judicial authorities, such as\n police investigators, according to their national law and that these\n authorities should therefore be able to issue an EIO. With a view to\n addressing this issue and taking into account the chosen legal basis for this\n proposal, the Presidency tabled a compromise proposal based on the\n introduction of a compulsory validation procedure in respect of the\n conformity of the EIO with the conditions for issuing of an EIO, where the\n latter has been issued by a competent authority other than a judge,\n prosecutor or investigating magistrate. This orientation was generally\n supported by the delegations.
b)\n Executing authorities: delegations agreed on the\n need to rely on the executing State to decide which would be the competent\n authority for the execution of an EIO. The orientation drawn from the\n discussion is that:
· \n the new instrument should only apply to EIOs\n which have been issued or validated by a judge, a prosecutor or an\n investigating magistrate;
· \n the designation of the authorities competent\n to execute an EIO should be left to the Member States.
Grounds for\n non recognition or non execution based on categories of measures: most delegations agreed that, even if the evolution from mutual\n legal assistance to mutual recognition will not involve full automaticity in\n the execution of the decisions, grounds for refusal should only be specific\n ones and that a wide ground for refusal, drafted in general terms as in the\n existing regime of mutual legal assistance, should be avoided. Delegations\n underlined that, beside other elements, the efficiency of the instrument will\n depend on such approach and that accordingly, it should be ensured that there\n will be no step backwards in comparison to the existing instruments. The modalities\n of the execution will however still be governed by national law of the\n executing State. Some grounds for refusal such as, for example, immunity and\n privilege or essential national security interests should be applicable\n irrespective of the measures concerned. Discussions will have to be continued\n on the exact content of this list.
Most\n delegations also endorsed the approach proposed by the Presidency to differentiate\n categories of investigative measures, on the basis of the coerciveness or\n intrusiveness of the measure, in order to specify the additional grounds\n for refusal applicable to them.
The following\n principles highlighted during the discussion at Council gave further\n guidance:
· \n there should be no regression compared to the\n acquis (both MLA and mutual recognition instruments), in terms of\n availability of the measure and possibility of checking for double criminality;
· \n the current cooperation should be further\n improved;
· \n this new approach should not add complexity\n for practitioners.
On this basis,\n the Presidency presented a proposal for grounds for refusal based on a\n combination of generic and specific differentiation between measures and\n grounds for refusal linked to them. The orientation drawn from the discussion\n is that:
· \n grounds for refusals should only be specific\n ones;
· \n when differentiating between categories of\n investigative measures, the solution should be looked for on the basis of the\n threefold approach proposed by the Presidency.
Proportionality: the following principles were supported by most delegations:
· \n proportionality should systematically be\n checked by the issuing authority;
· \n the executing authority should be entitled to\n opt for a less intrusive measure than the one indicated in the EIO if it\n makes it possible to achieve similar results;
· \n proportionality should not constitute a\n general ground for refusal for the executing authority applicable to all\n kinds of measures;
· \n direct communication between the issuing and\n executing authority should play an important role.
The Presidency\n proposed to delegations an approach whereby, in addition to the\n proportionality check made by the issuing authority on the issuing of the\n EIO, the executing authority would have the possibility to consult with the\n issuing authority on the relevance of the execution of an EIO where it had\n reason to believe that, in the specific case, the investigative measure\n concerned a minor offence. The provision proposed by the Presidency\n underlined the importance of communication between the competent\n authorities of the issuing and executing States in order to assess the\n possibility, in such a case, of withdrawal of the EIO. This new provision was\n generally supported by the delegations.
Costs: during the orientation debate at the JHA Council of 9 November,\n the Council agreed that disproportionate costs or lack of resources in the\n executing State should however not be a ground for refusal for the executing\n authority. With a view to further reflecting on possible alternative\n solutions, the Presidency proposed a solution in which there would be the\n possibility of making, in exceptional circumstances, the execution of the\n investigative measure subject to the condition that the costs will be born by\n (or shared with) the issuing State. In this case, the issuing authority\n would have the possibility to withdraw the EIO. Delegations generally agreed\n with this approach. However some concerns were raised as to the consequence\n of the solution proposed in the case where the consultations between the\n issuing and executing authorities do not lead to a conclusion in respect of\n costs or the withdrawal of the EIO. Further clarification was felt necessary\n and discussions will have to be continued on this specific question.
\nThe Council agreed on the main principles\n governing the proposed European Investigation Order (EIO) in criminal\n matters. This directive would allow one EU Member State to carry out\n investigative measures following the decision of another EU Member State,\n based on the principle of mutual recognition of judicial decisions.
The investigative measures would, for\n example, include the hearing of witnesses, searches and seizures as well as,\n with additional safeguards, interceptions of telecommunications, observation,\n infiltration and monitoring of bank accounts.
The agreement covers the following\n general issues:
PURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nOpinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November\n2008 on the protection of personal data processed in the framework\nof police and judicial cooperation in criminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EIO\ninitiative:
\n\n· \nto include a provision on translations, similar\nto Article 16 of the EIO initiative;
\n\n· \nto include a provision that prevents the use of\nevidence for purposes other than the prevention, investigation,\ndetection or prosecution of crime or the enforcement of criminal\nsanctions and the exercise of the right of defence, as an exception\nto Article 11(1)(d) of Framework Decision 2008/977/JHA;
\n\n· \nto add an evaluation clause to the EIO\ninitiative, requiring from the Member States to report on a regular\nbasis on the application of the instrument and from the Commission\nto synthesise these reports and, where relevant, issue appropriate\nproposals for amendments.
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\nOpinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November\n2008 on the protection of personal data processed in the framework\nof police and judicial cooperation in criminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EIO\ninitiative:
\n\n· \nto include a provision on translations, similar\nto Article 16 of the EIO initiative;
\n\n· \nto include a provision that prevents the use of\nevidence for purposes other than the prevention, investigation,\ndetection or prosecution of crime or the enforcement of criminal\nsanctions and the exercise of the right of defence, as an exception\nto Article 11(1)(d) of Framework Decision 2008/977/JHA;
\n\n· \nto add an evaluation clause to the EIO\ninitiative, requiring from the Member States to report on a regular\nbasis on the application of the instrument and from the Commission\nto synthesise these reports and, where relevant, issue appropriate\nproposals for amendments.
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\nOpinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November\n2008 on the protection of personal data processed in the framework\nof police and judicial cooperation in criminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EIO\ninitiative:
\n\n· \nto include a provision on translations, similar\nto Article 16 of the EIO initiative;
\n\n· \nto include a provision that prevents the use of\nevidence for purposes other than the prevention, investigation,\ndetection or prosecution of crime or the enforcement of criminal\nsanctions and the exercise of the right of defence, as an exception\nto Article 11(1)(d) of Framework Decision 2008/977/JHA;
\n\n· \nto add an evaluation clause to the EIO\ninitiative, requiring from the Member States to report on a regular\nbasis on the application of the instrument and from the Commission\nto synthesise these reports and, where relevant, issue appropriate\nproposals for amendments.
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to\n establish the European Investigation Order (EIO) on criminal matters and set\n out the terms under which it may be executed.
PROPOSED ACT:\n Initiative of Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden\n for a Directive of the European Parliament and of the Council.
BACKGROUND: Council\n Framework Decision 2003/577/JHA on the execution in the EU of orders\n freezing property and evidence addressed the need for mutual recognition of\n orders to prevent the destruction, transformation, moving, transfer or\n disposal of evidence. However, since that instrument is restricted to the\n freezing phase, a freezing order needs to be accompanied by a separate\n request for the transfer of the evidence to the issuing state in accordance\n with the rules applicable to mutual assistance in criminal matters. This\n results in a two-step procedure detrimental to its efficiency. Moreover, this\n regime coexists with the traditional instruments of cooperation and is\n therefore seldom used in practice by competent authorities.
Council\n Framework Decision 2008/978/JHA on the European evidence warrant was adopted\n to apply the principle of mutual recognition in such respect. However, the\n European evidence warrant is only applicable to evidence which already exists\n and covers therefore a limited spectrum of judicial cooperation in criminal\n matters with respect to evidence. Since the adoption of Framework Decisions\n 2003/577/JHA and 2008/978/JHA, it has become clear that the existing\n framework for the gathering of evidence is too fragmented and complicated. A\n new approach is therefore necessary.
In the Stockholm\n programme, adopted in December 2009, the European Council called for a\n comprehensive system to replace all the existing instruments in this area,\n including the Framework Decision on the European evidence warrant, covering\n as far as possible all types of evidence and containing deadlines for\n enforcement and limiting as far as possible the grounds for refusal. This new\n approach is based on a single instrument called the European Investigation\n Order.
IMPACT\n ASSESSMENT: no impact assessment was carried out.
LEGAL BASE:\n Article 82 (1)(a) of the Treaty on the Functioning of the European Union.
CONTENT: the\n draft Decision provides that the European Investigation Order (EIO) shall be\n a judicial decision issued by a competent authority of a Member State\n (\"the issuing State\") in order to have one or several specific\n investigative measure(s) carried out in another Member State (\"the\n executing State\") with a view to gathering evidence within the framework\n of the proceedings referred to in the text. Member States shall execute any\n EIO on the basis of the principle of mutual recognition and in accordance\n with the provisions of the Directive. The Directive shall not have the effect\n of modifying the obligation to respect the fundamental rights enshrined in\n the Treaty on European Union, or of requiring Member States to take any\n measures which conflict with their constitutional rules.
The proposal\n contains four Chapters.
Chapter I:\n the European Investigation Order: the main points\n are:
Scope of\n the EIO: the EIO shall cover any investigative\n measure with the exception of certain measures referred to in the proposal.\n These include the setting up of a joint investigation team, and the\n interception and immediate transmission of telecommunications in defined\n circumstances.
This Directive\n does not apply to cross-border observations as referred to in Article 40 of\n the Convention of 19 June 1990 implementing the Schengen Agreement.
Types of\n procedure for which the EIO can be issued: the\n EIO may be issued: a) with respect to criminal proceedings brought by a\n judicial authority in respect of a criminal offence under the national law of\n the issuing State; b) in proceedings brought by administrative authorities in\n respect of acts which are punishable under the national law of the issuing\n state by virtue of being infringements of the rules of law and where the\n decision may give rise to proceedings before a court having jurisdiction, in\n particular, in criminal matters; c) in proceedings brought by judicial\n authorities in respect of acts which are punishable under the national law of\n the issuing state by virtue of being infringements of the rules of law, and\n where the decision may give rise to proceedings before a court having\n jurisdiction, in particular, in criminal matters, and d) in connection with\n proceedings referred to in points (a), (b), and (c) which relate to offences\n or infringements for which a legal person may be held liable or punished in\n the issuing state.
Transmission\n of the EIO: this is transmitted from the issuing\n authority to the executing authority by any means capable of producing a\n written record under conditions allowing the executing State to establish\n authenticity. Each Member State may designate a central authority to assist\n the judicial competent authorities. When the authority in the executing State\n which receives the EIO has no jurisdiction to recognise it and to take the\n necessary measures for its execution, it shall, ex officio, transmit the EIO\n to the executing authority and so inform the issuing authority.
Recognition\n and execution: the executing authority shall\n recognise an EIO without any further formality being required, and shall\n forthwith take the necessary measures for its execution in the same way and\n under the same modalities as if the investigative measure in question had\n been ordered by an authority of the executing State, unless that authority\n decides to invoke one of the grounds for non-recognition or non-execution or\n one of the grounds for postponement.
Recourse to\n another type of investigative measure: the\n executing authority should have the possibility to use another type of\n measure either because the requested measure does not exist or is not\n available under its national law or because the other type of measure will\n achieve the same result as the measure provided for in the EIO by less coercive\n means.
Grounds for\n refusal or postponement: to ensure the\n effectiveness of judicial cooperation in criminal matters, the possibility of\n refusing to recognise or execute the EIO, as well as the grounds for\n postponing its execution, should be limited.
Deadlines: the decision on the recognition or execution shall be taken as\n soon as possible and no later than 30 days after the receipt of the EIO by\n the competent executing authority. Unless either grounds for postponement\n exist or evidence referred to in the investigative measure covered by the EIO\n is already in the possession of the executing State, the executing authority\n shall carry out the investigative measure without delay and no later than 90\n days after the decision is taken. When it is not practicable in a specific\n case for the competent executing authority to meet the deadline, it shall\n without delay inform the competent authority of the issuing State by any\n means, giving the reasons for the delay and the estimated time needed for the\n decision to be taken. In this case, the time limit may be extended by a\n maximum of 30 days.
Investigative\n measures implying a gathering of evidence in real time, continuously and over\n a certain period of time are covered by the EIO, but flexibility should be\n given to the executing authority for these measures given the differences\n existing in the national laws of the Member States.
Fundamental\n Rights: this Directive respects the fundamental\n rights and observes the principles recognised by Article 6 of the Treaty on\n European Union and by the Charter of Fundamental Rights of the European\n Union, notably Title VI thereof.
Nothing in\n this Directive may be interpreted as prohibiting refusal to execute an EIO\n when there are reasons to believe, on the basis of objective elements, that\n the EIO has been issued for the purpose of prosecuting or punishing a person\n on account of his or her sex, racial or ethnic origin, religion, sexual orientation,\n nationality, language or political opinions, or that the person's position\n may be prejudiced for any of these reasons.
It should be\n noted that the United Kingdom and Ireland have notified their wish to take\n part in the adoption of this Directive. Denmark, on the other hand, is not\n taking part in the adoption of this Directive and is not bound by it or\n subject to its application.
FINANCIAL\n IMPLICATIONS: this proposal has no implications for the EU budget.
\nThe Council agreed on the\nmain principles governing the proposed European Investigation Order\n(EIO) in criminal matters. This directive would allow one EU Member\nState to carry out investigative measures following the decision of\nanother EU Member State, based on the principle of mutual\nrecognition of judicial decisions.
\nThe investigative measures\nwould, for example, include the hearing of witnesses, searches and\nseizures as well as, with additional safeguards, interceptions of\ntelecommunications, observation, infiltration and monitoring of\nbank accounts.
\nThe agreement covers the\nfollowing general issues:
\nThe Council agreed on the main principles\n governing the proposed European Investigation Order (EIO) in criminal\n matters. This directive would allow one EU Member State to carry out\n investigative measures following the decision of another EU Member State,\n based on the principle of mutual recognition of judicial decisions.
The investigative measures would, for\n example, include the hearing of witnesses, searches and seizures as well as,\n with additional safeguards, interceptions of telecommunications, observation,\n infiltration and monitoring of bank accounts.
The agreement covers the following\n general issues:
Opinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November\n2008 on the protection of personal data processed in the framework\nof police and judicial cooperation in criminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EIO\ninitiative:
\n\n· \nto include a provision on translations, similar\nto Article 16 of the EIO initiative;
\n\n· \nto include a provision that prevents the use of\nevidence for purposes other than the prevention, investigation,\ndetection or prosecution of crime or the enforcement of criminal\nsanctions and the exercise of the right of defence, as an exception\nto Article 11(1)(d) of Framework Decision 2008/977/JHA;
\n\n· \nto add an evaluation clause to the EIO\ninitiative, requiring from the Member States to report on a regular\nbasis on the application of the instrument and from the Commission\nto synthesise these reports and, where relevant, issue appropriate\nproposals for amendments.
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\nOpinion of the European Data Protection Supervisor on the initiative\n of several Member States for a Directive of the European Parliament and of\n the Council regarding the European Investigation Order in criminal matters.
This opinion\n reacts on two initiatives for a Directive of a number of Member States, as\n foreseen by Article 76 TFEU, namely:
Advising on these initiatives falls within the remit of\n the task entrusted to the EDPS in Article 41 of Regulation (EC) No 45/2001\n for advising EU institutions and bodies on all matters concerning the\n processing of personal data. This opinion, therefore, comments upon the\n initiatives as far as they relate to the processing of personal data. Since\n no request for advice has been sent to the EDPS, this opinion is issued on\n his own initiative. He regrets that he was not consulted when these\n initiatives were issued.
Although the two initiatives have different objectives —\n i.e. improving protection of victims and cross-border co- operation in\n criminal matters through the collection of evidence cross border — they have\n important similarities:
For these reasons, the EDPS considers it appropriate to\n examine them jointly.
The EDPS\n recommends with regard to both the EPO and the EIO initiatives:
· \n to include specific provisions stating that\n the instruments apply without prejudice to Council Framework Decision 2008/977/JHA of 27 November 2008 on the\n protection of personal data processed in the framework of police and judicial\n cooperation in criminal matters,
· \n to include provisions requiring the Member\n States to ensure that:
· \n competent authorities have the resources\n necessary for the application of the proposed directives,
· \n competent officials shall observe professional\n standards and be subject to appropriate internal procedures that ensure, in\n particular, the protection of individuals with regard to the processing of\n personal data, procedural fairness and the proper observance of the\n confidentiality and professional secrecy provisions,
· \n authentication systems allow only authorised\n individuals to have access to both databases containing personal data or\n premises where evidence are located,
· \n tracking of accesses and operations are\n performed,
· \n audit controls are implemented.
The EDPS\n recommends with regard to the EIO initiative:
· \n to include a provision on translations,\n similar to Article 16 of the EIO initiative;
· \n to include a provision that prevents the use\n of evidence for purposes other than the prevention, investigation, detection\n or prosecution of crime or the enforcement of criminal sanctions and the\n exercise of the right of defence, as an exception to Article 11(1)(d) of\n Framework Decision 2008/977/JHA;
· \n to add an evaluation clause to the EIO\n initiative, requiring from the Member States to report on a regular basis on\n the application of the instrument and from the Commission to synthesise these\n reports and, where relevant, issue appropriate proposals for amendments.
Moreover, and\n more in general, the EDPS:
· \n recommends the Council to establish a\n procedure in which consultation of the EDPS will take place, in case an\n initiative introduced by Member States is related to the processing of\n personal data,
· \n reiterates the need for a comprehensive data\n protection legal framework covering all areas of EU competence, including\n police and justice, to be applied to both personal data transmitted or made\n available by competent authorities of other Member States and to domestic\n processing in AFSJ.
\nMinisters continued work on the creation of a European\nInvestigation Order (EIO) in criminal matters, with the aim of\nestablishing mutual recognition as the basis for allowing one\nMember State to carry out investigative measures at the request of\nanother Member State.
\nOn the basis of a working document, Ministers\ndiscussed five main issues:
\nScope of the proposal:\nalready during the preliminary discussions, delegations broadly\nsupported the idea of setting up a single legal regime for the\nobtaining of evidence within the EU. Most delegations agree that\nsuch a general scope should however not extend to forms of mutual\nlegal assistance not directly linked to the gathering of evidence\nand that police cooperation should also be outside the scope of\nthis instrument. Furthermore, exceptions to the general scope\nwould have to be listed as narrowly as possible. While the\nexclusion of the joint investigation teams - which benefit from a\nspecific regime in the EU - was generally agreed from the\nbeginning, further examination was required regarding the inclusion\nwithin the scope of the directive of specific forms of\ninterception of telecommunications.
\nDelegations generally supported the inclusion, within\nthe scope of the Directive, of all forms of interception of\ntelecommunications. However, one delegation maintained a scrutiny\nreservation on this solution.
\nFurther discussions will also have to be continued on\nthe procedures with respect to which an EIO may be issued.\nThe proposed approach of the Presidency was to focus the\ndiscussions on criminal proceedings in a first stage and assess\nonly in a second stage if the agreed solutions could be extended to\nsome specific kind of non-criminal procedures.
\nThe orientation drawn from the discussion is\nthat:
\n\n· \nthe new instrument should cover all\ninvestigative measures aimed at the obtaining of evidence, the only\nexception being the joint investigation teams which benefit from a\nspecific regime in the EU;
\n\n· \nthe discussions should focus on criminal\nproceedings in a first stage and assess only in a second stage if\nthe agreed solutions could be extended to some specific kind of\n noncriminal procedures
\nCompetent authorities
\na) Issuing authorities:\nfrom the beginning, several delegations opposed the provision\nintroducing an obligation to recognize EIOs issued by authorities\nother than a judge, prosecutor or investigating magistrate. Others\ninsisted, on the contrary, on the fact that measures covered by the\nDirective may be ordered by non judicial authorities, such as\npolice investigators, according to their national law and that\nthese authorities should therefore be able to issue an EIO. With a\nview to addressing this issue and taking into account the chosen\nlegal basis for this proposal, the Presidency tabled a\ncompromise proposal based on the introduction of a compulsory\nvalidation procedure in respect of the conformity of the EIO with\nthe conditions for issuing of an EIO, where the latter has been\nissued by a competent authority other than a judge, prosecutor or\ninvestigating magistrate. This orientation was generally\nsupported by the delegations.
\nb) Executing authorities: delegations agreed on the need to rely on the\nexecuting State to decide which would be the competent authority\nfor the execution of an EIO. The orientation drawn from the\ndiscussion is that:
\n\n· \nthe new instrument should only apply to EIOs\nwhich have been issued or validated by a judge, a prosecutor or an\ninvestigating magistrate;
\n\n· \nthe designation of the authorities competent to\nexecute an EIO should be left to the Member States.
\nGrounds for non recognition or non execution based on\ncategories of measures: most\ndelegations agreed that, even if the evolution from mutual legal\nassistance to mutual recognition will not involve full automaticity\nin the execution of the decisions, grounds for refusal should only\nbe specific ones and that a wide ground for refusal, drafted in\ngeneral terms as in the existing regime of mutual legal assistance,\nshould be avoided. Delegations underlined that, beside other\nelements, the efficiency of the instrument will depend on such\napproach and that accordingly, it should be ensured that there will\nbe no step backwards in comparison to the existing instruments. The\nmodalities of the execution will however still be governed by\nnational law of the executing State. Some grounds for refusal such\nas, for example, immunity and privilege or essential national\nsecurity interests should be applicable irrespective of the\nmeasures concerned. Discussions will have to be continued on the\nexact content of this list.
\nMost delegations also endorsed the approach proposed\nby the Presidency to differentiate categories of investigative\nmeasures, on the basis of the coerciveness or intrusiveness of\nthe measure, in order to specify the additional grounds for refusal\napplicable to them.
\nThe following principles highlighted during the\ndiscussion at Council gave further guidance:
\n\n· \nthere should be no regression compared to the\nacquis (both MLA and mutual recognition instruments), in terms of\navailability of the measure and possibility of checking for double\ncriminality;
\n\n· \nthe current cooperation should be further\nimproved;
\n\n· \nthis new approach should not add complexity for\npractitioners.
\nOn this basis, the Presidency presented a proposal for\ngrounds for refusal based on a combination of generic and specific\ndifferentiation between measures and grounds for refusal linked to\nthem. The orientation drawn from the discussion is that:
\n\n· \ngrounds for refusals should only be specific\nones;
\n\n· \nwhen differentiating between categories of\ninvestigative measures, the solution should be looked for on the\nbasis of the threefold approach proposed by the\nPresidency.
\nProportionality: the\nfollowing principles were supported by most delegations:
\n\n· \nproportionality should systematically be checked\nby the issuing authority;
\n\n· \nthe executing authority should be entitled to\nopt for a less intrusive measure than the one indicated in the EIO\nif it makes it possible to achieve similar results;
\n\n· \nproportionality should not constitute a general\nground for refusal for the executing authority applicable to all\nkinds of measures;
\n\n· \ndirect communication between the issuing and\nexecuting authority should play an important role.
\nThe Presidency proposed to delegations an approach\nwhereby, in addition to the proportionality check made by the\nissuing authority on the issuing of the EIO, the executing\nauthority would have the possibility to consult with the issuing\nauthority on the relevance of the execution of an EIO where it had\nreason to believe that, in the specific case, the investigative\nmeasure concerned a minor offence. The provision proposed by the\nPresidency underlined the importance of communication between\nthe competent authorities of the issuing and executing States\nin order to assess the possibility, in such a case, of withdrawal\nof the EIO. This new provision was generally supported by the\ndelegations.
\nCosts: during the\norientation debate at the JHA Council of 9 November, the Council\nagreed that disproportionate costs or lack of resources in the\nexecuting State should however not be a ground for refusal for the\nexecuting authority. With a view to further reflecting on possible\nalternative solutions, the Presidency proposed a solution in which\nthere would be the possibility of making, in exceptional\ncircumstances, the execution of the investigative measure\nsubject to the condition that the costs will be born by (or shared\nwith) the issuing State. In this case, the issuing authority\nwould have the possibility to withdraw the EIO. Delegations\ngenerally agreed with this approach. However some concerns were\nraised as to the consequence of the solution proposed in the case\nwhere the consultations between the issuing and executing\nauthorities do not lead to a conclusion in respect of costs or the\nwithdrawal of the EIO. Further clarification was felt necessary and\ndiscussions will have to be continued on this specific\nquestion.
\nMinisters\n continued work on the creation of a European Investigation Order (EIO) in\n criminal matters, with the aim of establishing mutual recognition as the\n basis for allowing one Member State to carry out investigative measures at\n the request of another Member State.
On the basis\n of a working document, Ministers discussed five main issues:
Scope of\n the proposal: already during the preliminary\n discussions, delegations broadly supported the idea of setting up a single\n legal regime for the obtaining of evidence within the EU. Most delegations\n agree that such a general scope should however not extend to forms of mutual\n legal assistance not directly linked to the gathering of evidence and that police\n cooperation should also be outside the scope of this instrument.\n Furthermore, exceptions to the general scope would have to be listed as\n narrowly as possible. While the exclusion of the joint investigation teams -\n which benefit from a specific regime in the EU - was generally agreed from\n the beginning, further examination was required regarding the inclusion\n within the scope of the directive of specific forms of interception of telecommunications.
Delegations\n generally supported the inclusion, within the scope of the Directive, of all forms\n of interception of telecommunications. However, one delegation maintained a\n scrutiny reservation on this solution.
Further\n discussions will also have to be continued on the procedures with respect to\n which an EIO may be issued. The proposed approach of the Presidency\n was to focus the discussions on criminal proceedings in a first stage and\n assess only in a second stage if the agreed solutions could be extended to\n some specific kind of non-criminal procedures.
The\n orientation drawn from the discussion is that:
· \n the new instrument should cover all\n investigative measures aimed at the obtaining of evidence, the only exception\n being the joint investigation teams which benefit from a specific regime in\n the EU;
· \n the discussions should focus on criminal\n proceedings in a first stage and assess only in a second stage if the agreed\n solutions could be extended to some specific kind of noncriminal procedures
Competent\n authorities
a) Issuing\n authorities: from the beginning, several\n delegations opposed the provision introducing an obligation to recognize EIOs\n issued by authorities other than a judge, prosecutor or investigating\n magistrate. Others insisted, on the contrary, on the fact that measures\n covered by the Directive may be ordered by non judicial authorities, such as\n police investigators, according to their national law and that these\n authorities should therefore be able to issue an EIO. With a view to\n addressing this issue and taking into account the chosen legal basis for this\n proposal, the Presidency tabled a compromise proposal based on the\n introduction of a compulsory validation procedure in respect of the\n conformity of the EIO with the conditions for issuing of an EIO, where the\n latter has been issued by a competent authority other than a judge,\n prosecutor or investigating magistrate. This orientation was generally\n supported by the delegations.
b)\n Executing authorities: delegations agreed on the\n need to rely on the executing State to decide which would be the competent\n authority for the execution of an EIO. The orientation drawn from the\n discussion is that:
· \n the new instrument should only apply to EIOs\n which have been issued or validated by a judge, a prosecutor or an\n investigating magistrate;
· \n the designation of the authorities competent\n to execute an EIO should be left to the Member States.
Grounds for\n non recognition or non execution based on categories of measures: most delegations agreed that, even if the evolution from mutual\n legal assistance to mutual recognition will not involve full automaticity in\n the execution of the decisions, grounds for refusal should only be specific\n ones and that a wide ground for refusal, drafted in general terms as in the\n existing regime of mutual legal assistance, should be avoided. Delegations\n underlined that, beside other elements, the efficiency of the instrument will\n depend on such approach and that accordingly, it should be ensured that there\n will be no step backwards in comparison to the existing instruments. The modalities\n of the execution will however still be governed by national law of the\n executing State. Some grounds for refusal such as, for example, immunity and\n privilege or essential national security interests should be applicable\n irrespective of the measures concerned. Discussions will have to be continued\n on the exact content of this list.
Most\n delegations also endorsed the approach proposed by the Presidency to differentiate\n categories of investigative measures, on the basis of the coerciveness or\n intrusiveness of the measure, in order to specify the additional grounds\n for refusal applicable to them.
The following\n principles highlighted during the discussion at Council gave further\n guidance:
· \n there should be no regression compared to the\n acquis (both MLA and mutual recognition instruments), in terms of\n availability of the measure and possibility of checking for double criminality;
· \n the current cooperation should be further\n improved;
· \n this new approach should not add complexity\n for practitioners.
On this basis,\n the Presidency presented a proposal for grounds for refusal based on a\n combination of generic and specific differentiation between measures and\n grounds for refusal linked to them. The orientation drawn from the discussion\n is that:
· \n grounds for refusals should only be specific\n ones;
· \n when differentiating between categories of\n investigative measures, the solution should be looked for on the basis of the\n threefold approach proposed by the Presidency.
Proportionality: the following principles were supported by most delegations:
· \n proportionality should systematically be\n checked by the issuing authority;
· \n the executing authority should be entitled to\n opt for a less intrusive measure than the one indicated in the EIO if it\n makes it possible to achieve similar results;
· \n proportionality should not constitute a\n general ground for refusal for the executing authority applicable to all\n kinds of measures;
· \n direct communication between the issuing and\n executing authority should play an important role.
The Presidency\n proposed to delegations an approach whereby, in addition to the\n proportionality check made by the issuing authority on the issuing of the\n EIO, the executing authority would have the possibility to consult with the\n issuing authority on the relevance of the execution of an EIO where it had\n reason to believe that, in the specific case, the investigative measure\n concerned a minor offence. The provision proposed by the Presidency\n underlined the importance of communication between the competent\n authorities of the issuing and executing States in order to assess the\n possibility, in such a case, of withdrawal of the EIO. This new provision was\n generally supported by the delegations.
Costs: during the orientation debate at the JHA Council of 9 November,\n the Council agreed that disproportionate costs or lack of resources in the\n executing State should however not be a ground for refusal for the executing\n authority. With a view to further reflecting on possible alternative\n solutions, the Presidency proposed a solution in which there would be the\n possibility of making, in exceptional circumstances, the execution of the\n investigative measure subject to the condition that the costs will be born by\n (or shared with) the issuing State. In this case, the issuing authority\n would have the possibility to withdraw the EIO. Delegations generally agreed\n with this approach. However some concerns were raised as to the consequence\n of the solution proposed in the case where the consultations between the\n issuing and executing authorities do not lead to a conclusion in respect of\n costs or the withdrawal of the EIO. Further clarification was felt necessary\n and discussions will have to be continued on this specific question.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to\n establish the European Investigation Order (EIO) on criminal matters and set\n out the terms under which it may be executed.
PROPOSED ACT:\n Initiative of Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden\n for a Directive of the European Parliament and of the Council.
BACKGROUND: Council\n Framework Decision 2003/577/JHA on the execution in the EU of orders\n freezing property and evidence addressed the need for mutual recognition of\n orders to prevent the destruction, transformation, moving, transfer or\n disposal of evidence. However, since that instrument is restricted to the\n freezing phase, a freezing order needs to be accompanied by a separate\n request for the transfer of the evidence to the issuing state in accordance\n with the rules applicable to mutual assistance in criminal matters. This\n results in a two-step procedure detrimental to its efficiency. Moreover, this\n regime coexists with the traditional instruments of cooperation and is\n therefore seldom used in practice by competent authorities.
Council\n Framework Decision 2008/978/JHA on the European evidence warrant was adopted\n to apply the principle of mutual recognition in such respect. However, the\n European evidence warrant is only applicable to evidence which already exists\n and covers therefore a limited spectrum of judicial cooperation in criminal\n matters with respect to evidence. Since the adoption of Framework Decisions\n 2003/577/JHA and 2008/978/JHA, it has become clear that the existing\n framework for the gathering of evidence is too fragmented and complicated. A\n new approach is therefore necessary.
In the Stockholm\n programme, adopted in December 2009, the European Council called for a\n comprehensive system to replace all the existing instruments in this area,\n including the Framework Decision on the European evidence warrant, covering\n as far as possible all types of evidence and containing deadlines for\n enforcement and limiting as far as possible the grounds for refusal. This new\n approach is based on a single instrument called the European Investigation\n Order.
IMPACT\n ASSESSMENT: no impact assessment was carried out.
LEGAL BASE:\n Article 82 (1)(a) of the Treaty on the Functioning of the European Union.
CONTENT: the\n draft Decision provides that the European Investigation Order (EIO) shall be\n a judicial decision issued by a competent authority of a Member State\n (\"the issuing State\") in order to have one or several specific\n investigative measure(s) carried out in another Member State (\"the\n executing State\") with a view to gathering evidence within the framework\n of the proceedings referred to in the text. Member States shall execute any\n EIO on the basis of the principle of mutual recognition and in accordance\n with the provisions of the Directive. The Directive shall not have the effect\n of modifying the obligation to respect the fundamental rights enshrined in\n the Treaty on European Union, or of requiring Member States to take any\n measures which conflict with their constitutional rules.
The proposal\n contains four Chapters.
Chapter I:\n the European Investigation Order: the main points\n are:
Scope of\n the EIO: the EIO shall cover any investigative\n measure with the exception of certain measures referred to in the proposal.\n These include the setting up of a joint investigation team, and the\n interception and immediate transmission of telecommunications in defined\n circumstances.
This Directive\n does not apply to cross-border observations as referred to in Article 40 of\n the Convention of 19 June 1990 implementing the Schengen Agreement.
Types of\n procedure for which the EIO can be issued: the\n EIO may be issued: a) with respect to criminal proceedings brought by a\n judicial authority in respect of a criminal offence under the national law of\n the issuing State; b) in proceedings brought by administrative authorities in\n respect of acts which are punishable under the national law of the issuing\n state by virtue of being infringements of the rules of law and where the\n decision may give rise to proceedings before a court having jurisdiction, in\n particular, in criminal matters; c) in proceedings brought by judicial\n authorities in respect of acts which are punishable under the national law of\n the issuing state by virtue of being infringements of the rules of law, and\n where the decision may give rise to proceedings before a court having\n jurisdiction, in particular, in criminal matters, and d) in connection with\n proceedings referred to in points (a), (b), and (c) which relate to offences\n or infringements for which a legal person may be held liable or punished in\n the issuing state.
Transmission\n of the EIO: this is transmitted from the issuing\n authority to the executing authority by any means capable of producing a\n written record under conditions allowing the executing State to establish\n authenticity. Each Member State may designate a central authority to assist\n the judicial competent authorities. When the authority in the executing State\n which receives the EIO has no jurisdiction to recognise it and to take the\n necessary measures for its execution, it shall, ex officio, transmit the EIO\n to the executing authority and so inform the issuing authority.
Recognition\n and execution: the executing authority shall\n recognise an EIO without any further formality being required, and shall\n forthwith take the necessary measures for its execution in the same way and\n under the same modalities as if the investigative measure in question had\n been ordered by an authority of the executing State, unless that authority\n decides to invoke one of the grounds for non-recognition or non-execution or\n one of the grounds for postponement.
Recourse to\n another type of investigative measure: the\n executing authority should have the possibility to use another type of\n measure either because the requested measure does not exist or is not\n available under its national law or because the other type of measure will\n achieve the same result as the measure provided for in the EIO by less coercive\n means.
Grounds for\n refusal or postponement: to ensure the\n effectiveness of judicial cooperation in criminal matters, the possibility of\n refusing to recognise or execute the EIO, as well as the grounds for\n postponing its execution, should be limited.
Deadlines: the decision on the recognition or execution shall be taken as\n soon as possible and no later than 30 days after the receipt of the EIO by\n the competent executing authority. Unless either grounds for postponement\n exist or evidence referred to in the investigative measure covered by the EIO\n is already in the possession of the executing State, the executing authority\n shall carry out the investigative measure without delay and no later than 90\n days after the decision is taken. When it is not practicable in a specific\n case for the competent executing authority to meet the deadline, it shall\n without delay inform the competent authority of the issuing State by any\n means, giving the reasons for the delay and the estimated time needed for the\n decision to be taken. In this case, the time limit may be extended by a\n maximum of 30 days.
Investigative\n measures implying a gathering of evidence in real time, continuously and over\n a certain period of time are covered by the EIO, but flexibility should be\n given to the executing authority for these measures given the differences\n existing in the national laws of the Member States.
Fundamental\n Rights: this Directive respects the fundamental\n rights and observes the principles recognised by Article 6 of the Treaty on\n European Union and by the Charter of Fundamental Rights of the European\n Union, notably Title VI thereof.
Nothing in\n this Directive may be interpreted as prohibiting refusal to execute an EIO\n when there are reasons to believe, on the basis of objective elements, that\n the EIO has been issued for the purpose of prosecuting or punishing a person\n on account of his or her sex, racial or ethnic origin, religion, sexual orientation,\n nationality, language or political opinions, or that the person's position\n may be prejudiced for any of these reasons.
It should be\n noted that the United Kingdom and Ireland have notified their wish to take\n part in the adoption of this Directive. Denmark, on the other hand, is not\n taking part in the adoption of this Directive and is not bound by it or\n subject to its application.
FINANCIAL\n IMPLICATIONS: this proposal has no implications for the EU budget.
\nThe Council held a first orientation debate\nregarding the creation of a European Investigation Order (EIO) in\ncriminal matters. The EIO is an initiative which was presented in\nMay 2010 by seven Member States.
\nMutual recognition as the basis to allow one EU Member\nState to carry out investigative measures at the request of another\nEU Members State - with this goal in mind ministers held a first\npolicy debate regarding the creation of a European\nInvestigation Order (EIO) in criminal matters.
\nOn the basis of a working document (see Council\ndoc. 15531/10),\nministers focused their debate on the following key issues which\ntouch upon the core of the principle of mutual\nrecognition:
\nThe main goal of this initiative is to allow one EU\nMember State (\"the issuing state\") to issue a European\nInvestigation Order and forward it to another Member State (\"the\nexecuting state\") in order to have one or several specific\ninvestigative measure(s) carried out with a view to gathering\nevidence. The investigative measures would, for example, include\nthe hearing of witnesses, searches and seizures as well as, with\nadditional safeguards, interceptions of telecommunications,\nobservation, infiltration and monitoring of bank\naccounts.
\nThe United Kingdom decided to participate in the EIO\nby using the opt-in option provided for in Protocol 21 of the\nLisbon Treaty. Ireland and Denmark are not taking part.
\nThe Council held\n a first orientation debate regarding the creation of a European\n Investigation Order (EIO) in criminal matters. The EIO is an initiative which\n was presented in May 2010 by seven Member States.
Mutual\n recognition as the basis to allow one EU Member State to carry out\n investigative measures at the request of another EU Members State - with this\n goal in mind ministers held a first policy debate regarding the\n creation of a European Investigation Order (EIO) in criminal matters.
On the basis\n of a working document (see Council doc. 15531/10),\n ministers focused their debate on the following key issues which touch upon\n the core of the principle of mutual recognition:
The main goal\n of this initiative is to allow one EU Member State (\"the issuing\n state\") to issue a European Investigation Order and forward it to\n another Member State (\"the executing state\") in order to have one\n or several specific investigative measure(s) carried out with a view to\n gathering evidence. The investigative measures would, for example, include\n the hearing of witnesses, searches and seizures as well as, with additional\n safeguards, interceptions of telecommunications, observation, infiltration\n and monitoring of bank accounts.
The United\n Kingdom decided to participate in the EIO by using the opt-in option provided\n for in Protocol 21 of the Lisbon Treaty. Ireland and Denmark are not taking\n part.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nOpinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November\n2008 on the protection of personal data processed in the framework\nof police and judicial cooperation in criminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EIO\ninitiative:
\n\n· \nto include a provision on translations, similar\nto Article 16 of the EIO initiative;
\n\n· \nto include a provision that prevents the use of\nevidence for purposes other than the prevention, investigation,\ndetection or prosecution of crime or the enforcement of criminal\nsanctions and the exercise of the right of defence, as an exception\nto Article 11(1)(d) of Framework Decision 2008/977/JHA;
\n\n· \nto add an evaluation clause to the EIO\ninitiative, requiring from the Member States to report on a regular\nbasis on the application of the instrument and from the Commission\nto synthesise these reports and, where relevant, issue appropriate\nproposals for amendments.
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\nThe Council held a first orientation debate\nregarding the creation of a European Investigation Order (EIO) in\ncriminal matters. The EIO is an initiative which was presented in\nMay 2010 by seven Member States.
\nMutual recognition as the basis to allow one EU Member\nState to carry out investigative measures at the request of another\nEU Members State - with this goal in mind ministers held a first\npolicy debate regarding the creation of a European\nInvestigation Order (EIO) in criminal matters.
\nOn the basis of a working document (see Council\ndoc. 15531/10),\nministers focused their debate on the following key issues which\ntouch upon the core of the principle of mutual\nrecognition:
\nThe main goal of this initiative is to allow one EU\nMember State (\"the issuing state\") to issue a European\nInvestigation Order and forward it to another Member State (\"the\nexecuting state\") in order to have one or several specific\ninvestigative measure(s) carried out with a view to gathering\nevidence. The investigative measures would, for example, include\nthe hearing of witnesses, searches and seizures as well as, with\nadditional safeguards, interceptions of telecommunications,\nobservation, infiltration and monitoring of bank\naccounts.
\nThe United Kingdom decided to participate in the EIO\nby using the opt-in option provided for in Protocol 21 of the\nLisbon Treaty. Ireland and Denmark are not taking part.
\nMinisters continued work on the creation of a European\nInvestigation Order (EIO) in criminal matters, with the aim of\nestablishing mutual recognition as the basis for allowing one\nMember State to carry out investigative measures at the request of\nanother Member State.
\nOn the basis of a working document, Ministers\ndiscussed five main issues:
\nScope of the proposal:\nalready during the preliminary discussions, delegations broadly\nsupported the idea of setting up a single legal regime for the\nobtaining of evidence within the EU. Most delegations agree that\nsuch a general scope should however not extend to forms of mutual\nlegal assistance not directly linked to the gathering of evidence\nand that police cooperation should also be outside the scope of\nthis instrument. Furthermore, exceptions to the general scope\nwould have to be listed as narrowly as possible. While the\nexclusion of the joint investigation teams - which benefit from a\nspecific regime in the EU - was generally agreed from the\nbeginning, further examination was required regarding the inclusion\nwithin the scope of the directive of specific forms of\ninterception of telecommunications.
\nDelegations generally supported the inclusion, within\nthe scope of the Directive, of all forms of interception of\ntelecommunications. However, one delegation maintained a scrutiny\nreservation on this solution.
\nFurther discussions will also have to be continued on\nthe procedures with respect to which an EIO may be issued.\nThe proposed approach of the Presidency was to focus the\ndiscussions on criminal proceedings in a first stage and assess\nonly in a second stage if the agreed solutions could be extended to\nsome specific kind of non-criminal procedures.
\nThe orientation drawn from the discussion is\nthat:
\n\n· \nthe new instrument should cover all\ninvestigative measures aimed at the obtaining of evidence, the only\nexception being the joint investigation teams which benefit from a\nspecific regime in the EU;
\n\n· \nthe discussions should focus on criminal\nproceedings in a first stage and assess only in a second stage if\nthe agreed solutions could be extended to some specific kind of\n noncriminal procedures
\nCompetent authorities
\na) Issuing authorities:\nfrom the beginning, several delegations opposed the provision\nintroducing an obligation to recognize EIOs issued by authorities\nother than a judge, prosecutor or investigating magistrate. Others\ninsisted, on the contrary, on the fact that measures covered by the\nDirective may be ordered by non judicial authorities, such as\npolice investigators, according to their national law and that\nthese authorities should therefore be able to issue an EIO. With a\nview to addressing this issue and taking into account the chosen\nlegal basis for this proposal, the Presidency tabled a\ncompromise proposal based on the introduction of a compulsory\nvalidation procedure in respect of the conformity of the EIO with\nthe conditions for issuing of an EIO, where the latter has been\nissued by a competent authority other than a judge, prosecutor or\ninvestigating magistrate. This orientation was generally\nsupported by the delegations.
\nb) Executing authorities: delegations agreed on the need to rely on the\nexecuting State to decide which would be the competent authority\nfor the execution of an EIO. The orientation drawn from the\ndiscussion is that:
\n\n· \nthe new instrument should only apply to EIOs\nwhich have been issued or validated by a judge, a prosecutor or an\ninvestigating magistrate;
\n\n· \nthe designation of the authorities competent to\nexecute an EIO should be left to the Member States.
\nGrounds for non recognition or non execution based on\ncategories of measures: most\ndelegations agreed that, even if the evolution from mutual legal\nassistance to mutual recognition will not involve full automaticity\nin the execution of the decisions, grounds for refusal should only\nbe specific ones and that a wide ground for refusal, drafted in\ngeneral terms as in the existing regime of mutual legal assistance,\nshould be avoided. Delegations underlined that, beside other\nelements, the efficiency of the instrument will depend on such\napproach and that accordingly, it should be ensured that there will\nbe no step backwards in comparison to the existing instruments. The\nmodalities of the execution will however still be governed by\nnational law of the executing State. Some grounds for refusal such\nas, for example, immunity and privilege or essential national\nsecurity interests should be applicable irrespective of the\nmeasures concerned. Discussions will have to be continued on the\nexact content of this list.
\nMost delegations also endorsed the approach proposed\nby the Presidency to differentiate categories of investigative\nmeasures, on the basis of the coerciveness or intrusiveness of\nthe measure, in order to specify the additional grounds for refusal\napplicable to them.
\nThe following principles highlighted during the\ndiscussion at Council gave further guidance:
\n\n· \nthere should be no regression compared to the\nacquis (both MLA and mutual recognition instruments), in terms of\navailability of the measure and possibility of checking for double\ncriminality;
\n\n· \nthe current cooperation should be further\nimproved;
\n\n· \nthis new approach should not add complexity for\npractitioners.
\nOn this basis, the Presidency presented a proposal for\ngrounds for refusal based on a combination of generic and specific\ndifferentiation between measures and grounds for refusal linked to\nthem. The orientation drawn from the discussion is that:
\n\n· \ngrounds for refusals should only be specific\nones;
\n\n· \nwhen differentiating between categories of\ninvestigative measures, the solution should be looked for on the\nbasis of the threefold approach proposed by the\nPresidency.
\nProportionality: the\nfollowing principles were supported by most delegations:
\n\n· \nproportionality should systematically be checked\nby the issuing authority;
\n\n· \nthe executing authority should be entitled to\nopt for a less intrusive measure than the one indicated in the EIO\nif it makes it possible to achieve similar results;
\n\n· \nproportionality should not constitute a general\nground for refusal for the executing authority applicable to all\nkinds of measures;
\n\n· \ndirect communication between the issuing and\nexecuting authority should play an important role.
\nThe Presidency proposed to delegations an approach\nwhereby, in addition to the proportionality check made by the\nissuing authority on the issuing of the EIO, the executing\nauthority would have the possibility to consult with the issuing\nauthority on the relevance of the execution of an EIO where it had\nreason to believe that, in the specific case, the investigative\nmeasure concerned a minor offence. The provision proposed by the\nPresidency underlined the importance of communication between\nthe competent authorities of the issuing and executing States\nin order to assess the possibility, in such a case, of withdrawal\nof the EIO. This new provision was generally supported by the\ndelegations.
\nCosts: during the\norientation debate at the JHA Council of 9 November, the Council\nagreed that disproportionate costs or lack of resources in the\nexecuting State should however not be a ground for refusal for the\nexecuting authority. With a view to further reflecting on possible\nalternative solutions, the Presidency proposed a solution in which\nthere would be the possibility of making, in exceptional\ncircumstances, the execution of the investigative measure\nsubject to the condition that the costs will be born by (or shared\nwith) the issuing State. In this case, the issuing authority\nwould have the possibility to withdraw the EIO. Delegations\ngenerally agreed with this approach. However some concerns were\nraised as to the consequence of the solution proposed in the case\nwhere the consultations between the issuing and executing\nauthorities do not lead to a conclusion in respect of costs or the\nwithdrawal of the EIO. Further clarification was felt necessary and\ndiscussions will have to be continued on this specific\nquestion.
\nThe Council agreed on the\nmain principles governing the proposed European Investigation Order\n(EIO) in criminal matters. This directive would allow one EU Member\nState to carry out investigative measures following the decision of\nanother EU Member State, based on the principle of mutual\nrecognition of judicial decisions.
\nThe investigative measures\nwould, for example, include the hearing of witnesses, searches and\nseizures as well as, with additional safeguards, interceptions of\ntelecommunications, observation, infiltration and monitoring of\nbank accounts.
\nThe agreement covers the\nfollowing general issues:
\nOpinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November 2008 on the protection of personal data\nprocessed in the framework of police and judicial cooperation in\ncriminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EPO\ninitiative:
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\nOpinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November\n2008 on the protection of personal data processed in the framework\nof police and judicial cooperation in criminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EIO\ninitiative:
\n\n· \nto include a provision on translations, similar\nto Article 16 of the EIO initiative;
\n\n· \nto include a provision that prevents the use of\nevidence for purposes other than the prevention, investigation,\ndetection or prosecution of crime or the enforcement of criminal\nsanctions and the exercise of the right of defence, as an exception\nto Article 11(1)(d) of Framework Decision 2008/977/JHA;
\n\n· \nto add an evaluation clause to the EIO\ninitiative, requiring from the Member States to report on a regular\nbasis on the application of the instrument and from the Commission\nto synthesise these reports and, where relevant, issue appropriate\nproposals for amendments.
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\nOpinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November 2008 on the protection of personal data\nprocessed in the framework of police and judicial cooperation in\ncriminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EPO\ninitiative:
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nThe Council held a first orientation debate\nregarding the creation of a European Investigation Order (EIO) in\ncriminal matters. The EIO is an initiative which was presented in\nMay 2010 by seven Member States.
\nMutual recognition as the basis to allow one EU Member\nState to carry out investigative measures at the request of another\nEU Members State - with this goal in mind ministers held a first\npolicy debate regarding the creation of a European\nInvestigation Order (EIO) in criminal matters.
\nOn the basis of a working document (see Council\ndoc. 15531/10),\nministers focused their debate on the following key issues which\ntouch upon the core of the principle of mutual\nrecognition:
\nThe main goal of this initiative is to allow one EU\nMember State (\"the issuing state\") to issue a European\nInvestigation Order and forward it to another Member State (\"the\nexecuting state\") in order to have one or several specific\ninvestigative measure(s) carried out with a view to gathering\nevidence. The investigative measures would, for example, include\nthe hearing of witnesses, searches and seizures as well as, with\nadditional safeguards, interceptions of telecommunications,\nobservation, infiltration and monitoring of bank\naccounts.
\nThe United Kingdom decided to participate in the EIO\nby using the opt-in option provided for in Protocol 21 of the\nLisbon Treaty. Ireland and Denmark are not taking part.
\nThe Council held a first orientation debate\nregarding the creation of a European Investigation Order (EIO) in\ncriminal matters. The EIO is an initiative which was presented in\nMay 2010 by seven Member States.
\nMutual recognition as the basis to allow one EU Member\nState to carry out investigative measures at the request of another\nEU Members State - with this goal in mind ministers held a first\npolicy debate regarding the creation of a European\nInvestigation Order (EIO) in criminal matters.
\nOn the basis of a working document (see Council\ndoc. 15531/10),\nministers focused their debate on the following key issues which\ntouch upon the core of the principle of mutual\nrecognition:
\nThe main goal of this initiative is to allow one EU\nMember State (\"the issuing state\") to issue a European\nInvestigation Order and forward it to another Member State (\"the\nexecuting state\") in order to have one or several specific\ninvestigative measure(s) carried out with a view to gathering\nevidence. The investigative measures would, for example, include\nthe hearing of witnesses, searches and seizures as well as, with\nadditional safeguards, interceptions of telecommunications,\nobservation, infiltration and monitoring of bank\naccounts.
\nThe United Kingdom decided to participate in the EIO\nby using the opt-in option provided for in Protocol 21 of the\nLisbon Treaty. Ireland and Denmark are not taking part.
\nMinisters continued work on the creation of a European\nInvestigation Order (EIO) in criminal matters, with the aim of\nestablishing mutual recognition as the basis for allowing one\nMember State to carry out investigative measures at the request of\nanother Member State.
\nOn the basis of a working document, Ministers\ndiscussed five main issues:
\nScope of the proposal:\nalready during the preliminary discussions, delegations broadly\nsupported the idea of setting up a single legal regime for the\nobtaining of evidence within the EU. Most delegations agree that\nsuch a general scope should however not extend to forms of mutual\nlegal assistance not directly linked to the gathering of evidence\nand that police cooperation should also be outside the scope of\nthis instrument. Furthermore, exceptions to the general scope\nwould have to be listed as narrowly as possible. While the\nexclusion of the joint investigation teams - which benefit from a\nspecific regime in the EU - was generally agreed from the\nbeginning, further examination was required regarding the inclusion\nwithin the scope of the directive of specific forms of\ninterception of telecommunications.
\nDelegations generally supported the inclusion, within\nthe scope of the Directive, of all forms of interception of\ntelecommunications. However, one delegation maintained a scrutiny\nreservation on this solution.
\nFurther discussions will also have to be continued on\nthe procedures with respect to which an EIO may be issued.\nThe proposed approach of the Presidency was to focus the\ndiscussions on criminal proceedings in a first stage and assess\nonly in a second stage if the agreed solutions could be extended to\nsome specific kind of non-criminal procedures.
\nThe orientation drawn from the discussion is\nthat:
\n\n· \nthe new instrument should cover all\ninvestigative measures aimed at the obtaining of evidence, the only\nexception being the joint investigation teams which benefit from a\nspecific regime in the EU;
\n\n· \nthe discussions should focus on criminal\nproceedings in a first stage and assess only in a second stage if\nthe agreed solutions could be extended to some specific kind of\n noncriminal procedures
\nCompetent authorities
\na) Issuing authorities:\nfrom the beginning, several delegations opposed the provision\nintroducing an obligation to recognize EIOs issued by authorities\nother than a judge, prosecutor or investigating magistrate. Others\ninsisted, on the contrary, on the fact that measures covered by the\nDirective may be ordered by non judicial authorities, such as\npolice investigators, according to their national law and that\nthese authorities should therefore be able to issue an EIO. With a\nview to addressing this issue and taking into account the chosen\nlegal basis for this proposal, the Presidency tabled a\ncompromise proposal based on the introduction of a compulsory\nvalidation procedure in respect of the conformity of the EIO with\nthe conditions for issuing of an EIO, where the latter has been\nissued by a competent authority other than a judge, prosecutor or\ninvestigating magistrate. This orientation was generally\nsupported by the delegations.
\nb) Executing authorities: delegations agreed on the need to rely on the\nexecuting State to decide which would be the competent authority\nfor the execution of an EIO. The orientation drawn from the\ndiscussion is that:
\n\n· \nthe new instrument should only apply to EIOs\nwhich have been issued or validated by a judge, a prosecutor or an\ninvestigating magistrate;
\n\n· \nthe designation of the authorities competent to\nexecute an EIO should be left to the Member States.
\nGrounds for non recognition or non execution based on\ncategories of measures: most\ndelegations agreed that, even if the evolution from mutual legal\nassistance to mutual recognition will not involve full automaticity\nin the execution of the decisions, grounds for refusal should only\nbe specific ones and that a wide ground for refusal, drafted in\ngeneral terms as in the existing regime of mutual legal assistance,\nshould be avoided. Delegations underlined that, beside other\nelements, the efficiency of the instrument will depend on such\napproach and that accordingly, it should be ensured that there will\nbe no step backwards in comparison to the existing instruments. The\nmodalities of the execution will however still be governed by\nnational law of the executing State. Some grounds for refusal such\nas, for example, immunity and privilege or essential national\nsecurity interests should be applicable irrespective of the\nmeasures concerned. Discussions will have to be continued on the\nexact content of this list.
\nMost delegations also endorsed the approach proposed\nby the Presidency to differentiate categories of investigative\nmeasures, on the basis of the coerciveness or intrusiveness of\nthe measure, in order to specify the additional grounds for refusal\napplicable to them.
\nThe following principles highlighted during the\ndiscussion at Council gave further guidance:
\n\n· \nthere should be no regression compared to the\nacquis (both MLA and mutual recognition instruments), in terms of\navailability of the measure and possibility of checking for double\ncriminality;
\n\n· \nthe current cooperation should be further\nimproved;
\n\n· \nthis new approach should not add complexity for\npractitioners.
\nOn this basis, the Presidency presented a proposal for\ngrounds for refusal based on a combination of generic and specific\ndifferentiation between measures and grounds for refusal linked to\nthem. The orientation drawn from the discussion is that:
\n\n· \ngrounds for refusals should only be specific\nones;
\n\n· \nwhen differentiating between categories of\ninvestigative measures, the solution should be looked for on the\nbasis of the threefold approach proposed by the\nPresidency.
\nProportionality: the\nfollowing principles were supported by most delegations:
\n\n· \nproportionality should systematically be checked\nby the issuing authority;
\n\n· \nthe executing authority should be entitled to\nopt for a less intrusive measure than the one indicated in the EIO\nif it makes it possible to achieve similar results;
\n\n· \nproportionality should not constitute a general\nground for refusal for the executing authority applicable to all\nkinds of measures;
\n\n· \ndirect communication between the issuing and\nexecuting authority should play an important role.
\nThe Presidency proposed to delegations an approach\nwhereby, in addition to the proportionality check made by the\nissuing authority on the issuing of the EIO, the executing\nauthority would have the possibility to consult with the issuing\nauthority on the relevance of the execution of an EIO where it had\nreason to believe that, in the specific case, the investigative\nmeasure concerned a minor offence. The provision proposed by the\nPresidency underlined the importance of communication between\nthe competent authorities of the issuing and executing States\nin order to assess the possibility, in such a case, of withdrawal\nof the EIO. This new provision was generally supported by the\ndelegations.
\nCosts: during the\norientation debate at the JHA Council of 9 November, the Council\nagreed that disproportionate costs or lack of resources in the\nexecuting State should however not be a ground for refusal for the\nexecuting authority. With a view to further reflecting on possible\nalternative solutions, the Presidency proposed a solution in which\nthere would be the possibility of making, in exceptional\ncircumstances, the execution of the investigative measure\nsubject to the condition that the costs will be born by (or shared\nwith) the issuing State. In this case, the issuing authority\nwould have the possibility to withdraw the EIO. Delegations\ngenerally agreed with this approach. However some concerns were\nraised as to the consequence of the solution proposed in the case\nwhere the consultations between the issuing and executing\nauthorities do not lead to a conclusion in respect of costs or the\nwithdrawal of the EIO. Further clarification was felt necessary and\ndiscussions will have to be continued on this specific\nquestion.
\nMinisters continued work on the creation of a European\nInvestigation Order (EIO) in criminal matters, with the aim of\nestablishing mutual recognition as the basis for allowing one\nMember State to carry out investigative measures at the request of\nanother Member State.
\nOn the basis of a working document, Ministers\ndiscussed five main issues:
\nScope of the proposal:\nalready during the preliminary discussions, delegations broadly\nsupported the idea of setting up a single legal regime for the\nobtaining of evidence within the EU. Most delegations agree that\nsuch a general scope should however not extend to forms of mutual\nlegal assistance not directly linked to the gathering of evidence\nand that police cooperation should also be outside the scope of\nthis instrument. Furthermore, exceptions to the general scope\nwould have to be listed as narrowly as possible. While the\nexclusion of the joint investigation teams - which benefit from a\nspecific regime in the EU - was generally agreed from the\nbeginning, further examination was required regarding the inclusion\nwithin the scope of the directive of specific forms of\ninterception of telecommunications.
\nDelegations generally supported the inclusion, within\nthe scope of the Directive, of all forms of interception of\ntelecommunications. However, one delegation maintained a scrutiny\nreservation on this solution.
\nFurther discussions will also have to be continued on\nthe procedures with respect to which an EIO may be issued.\nThe proposed approach of the Presidency was to focus the\ndiscussions on criminal proceedings in a first stage and assess\nonly in a second stage if the agreed solutions could be extended to\nsome specific kind of non-criminal procedures.
\nThe orientation drawn from the discussion is\nthat:
\n\n· \nthe new instrument should cover all\ninvestigative measures aimed at the obtaining of evidence, the only\nexception being the joint investigation teams which benefit from a\nspecific regime in the EU;
\n\n· \nthe discussions should focus on criminal\nproceedings in a first stage and assess only in a second stage if\nthe agreed solutions could be extended to some specific kind of\n noncriminal procedures
\nCompetent authorities
\na) Issuing authorities:\nfrom the beginning, several delegations opposed the provision\nintroducing an obligation to recognize EIOs issued by authorities\nother than a judge, prosecutor or investigating magistrate. Others\ninsisted, on the contrary, on the fact that measures covered by the\nDirective may be ordered by non judicial authorities, such as\npolice investigators, according to their national law and that\nthese authorities should therefore be able to issue an EIO. With a\nview to addressing this issue and taking into account the chosen\nlegal basis for this proposal, the Presidency tabled a\ncompromise proposal based on the introduction of a compulsory\nvalidation procedure in respect of the conformity of the EIO with\nthe conditions for issuing of an EIO, where the latter has been\nissued by a competent authority other than a judge, prosecutor or\ninvestigating magistrate. This orientation was generally\nsupported by the delegations.
\nb) Executing authorities: delegations agreed on the need to rely on the\nexecuting State to decide which would be the competent authority\nfor the execution of an EIO. The orientation drawn from the\ndiscussion is that:
\n\n· \nthe new instrument should only apply to EIOs\nwhich have been issued or validated by a judge, a prosecutor or an\ninvestigating magistrate;
\n\n· \nthe designation of the authorities competent to\nexecute an EIO should be left to the Member States.
\nGrounds for non recognition or non execution based on\ncategories of measures: most\ndelegations agreed that, even if the evolution from mutual legal\nassistance to mutual recognition will not involve full automaticity\nin the execution of the decisions, grounds for refusal should only\nbe specific ones and that a wide ground for refusal, drafted in\ngeneral terms as in the existing regime of mutual legal assistance,\nshould be avoided. Delegations underlined that, beside other\nelements, the efficiency of the instrument will depend on such\napproach and that accordingly, it should be ensured that there will\nbe no step backwards in comparison to the existing instruments. The\nmodalities of the execution will however still be governed by\nnational law of the executing State. Some grounds for refusal such\nas, for example, immunity and privilege or essential national\nsecurity interests should be applicable irrespective of the\nmeasures concerned. Discussions will have to be continued on the\nexact content of this list.
\nMost delegations also endorsed the approach proposed\nby the Presidency to differentiate categories of investigative\nmeasures, on the basis of the coerciveness or intrusiveness of\nthe measure, in order to specify the additional grounds for refusal\napplicable to them.
\nThe following principles highlighted during the\ndiscussion at Council gave further guidance:
\n\n· \nthere should be no regression compared to the\nacquis (both MLA and mutual recognition instruments), in terms of\navailability of the measure and possibility of checking for double\ncriminality;
\n\n· \nthe current cooperation should be further\nimproved;
\n\n· \nthis new approach should not add complexity for\npractitioners.
\nOn this basis, the Presidency presented a proposal for\ngrounds for refusal based on a combination of generic and specific\ndifferentiation between measures and grounds for refusal linked to\nthem. The orientation drawn from the discussion is that:
\n\n· \ngrounds for refusals should only be specific\nones;
\n\n· \nwhen differentiating between categories of\ninvestigative measures, the solution should be looked for on the\nbasis of the threefold approach proposed by the\nPresidency.
\nProportionality: the\nfollowing principles were supported by most delegations:
\n\n· \nproportionality should systematically be checked\nby the issuing authority;
\n\n· \nthe executing authority should be entitled to\nopt for a less intrusive measure than the one indicated in the EIO\nif it makes it possible to achieve similar results;
\n\n· \nproportionality should not constitute a general\nground for refusal for the executing authority applicable to all\nkinds of measures;
\n\n· \ndirect communication between the issuing and\nexecuting authority should play an important role.
\nThe Presidency proposed to delegations an approach\nwhereby, in addition to the proportionality check made by the\nissuing authority on the issuing of the EIO, the executing\nauthority would have the possibility to consult with the issuing\nauthority on the relevance of the execution of an EIO where it had\nreason to believe that, in the specific case, the investigative\nmeasure concerned a minor offence. The provision proposed by the\nPresidency underlined the importance of communication between\nthe competent authorities of the issuing and executing States\nin order to assess the possibility, in such a case, of withdrawal\nof the EIO. This new provision was generally supported by the\ndelegations.
\nCosts: during the\norientation debate at the JHA Council of 9 November, the Council\nagreed that disproportionate costs or lack of resources in the\nexecuting State should however not be a ground for refusal for the\nexecuting authority. With a view to further reflecting on possible\nalternative solutions, the Presidency proposed a solution in which\nthere would be the possibility of making, in exceptional\ncircumstances, the execution of the investigative measure\nsubject to the condition that the costs will be born by (or shared\nwith) the issuing State. In this case, the issuing authority\nwould have the possibility to withdraw the EIO. Delegations\ngenerally agreed with this approach. However some concerns were\nraised as to the consequence of the solution proposed in the case\nwhere the consultations between the issuing and executing\nauthorities do not lead to a conclusion in respect of costs or the\nwithdrawal of the EIO. Further clarification was felt necessary and\ndiscussions will have to be continued on this specific\nquestion.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nPURPOSE: to establish the European Investigation Order\n(EIO) on criminal matters and set out the terms under which it may\nbe executed.
\nPROPOSED ACT: Initiative of Belgium, Bulgaria,\nEstonia, Spain, Austria, Slovenia and Sweden for a Directive of the\nEuropean Parliament and of the Council.
\nBACKGROUND: Council\nFramework Decision 2003/577/JHA on the execution in the EU of\norders freezing property and evidence addressed the need for mutual\nrecognition of orders to prevent the destruction, transformation,\nmoving, transfer or disposal of evidence. However, since that\ninstrument is restricted to the freezing phase, a freezing order\nneeds to be accompanied by a separate request for the transfer of\nthe evidence to the issuing state in accordance with the rules\napplicable to mutual assistance in criminal matters. This results\nin a two-step procedure detrimental to its efficiency. Moreover,\nthis regime coexists with the traditional instruments of\ncooperation and is therefore seldom used in practice by competent\nauthorities.
\nCouncil Framework Decision 2008/978/JHA on the\nEuropean evidence warrant was adopted to apply the principle of\nmutual recognition in such respect. However, the European evidence\nwarrant is only applicable to evidence which already exists and\ncovers therefore a limited spectrum of judicial cooperation in\ncriminal matters with respect to evidence. Since the adoption of\nFramework Decisions 2003/577/JHA and 2008/978/JHA, it has become\nclear that the existing framework for the gathering of evidence is\ntoo fragmented and complicated. A new approach is therefore\nnecessary.
\nIn the Stockholm\nprogramme, adopted in December 2009, the European Council\ncalled for a comprehensive system to replace all the existing\ninstruments in this area, including the Framework Decision on the\nEuropean evidence warrant, covering as far as possible all types of\nevidence and containing deadlines for enforcement and limiting as\nfar as possible the grounds for refusal. This new approach is based\non a single instrument called the European Investigation\nOrder.
\nIMPACT ASSESSMENT: no impact assessment was carried\nout.
\nLEGAL BASE: Article 82 (1)(a) of the Treaty on the\nFunctioning of the European Union.
\nCONTENT: the draft Decision provides that the European\nInvestigation Order (EIO) shall be a judicial decision\nissued by a competent authority of a Member State (\"the issuing\nState\") in order to have one or several specific investigative\nmeasure(s) carried out in another Member State (\"the executing\nState\") with a view to gathering evidence within the framework of\nthe proceedings referred to in the text. Member States shall\nexecute any EIO on the basis of the principle of mutual recognition\nand in accordance with the provisions of the Directive. The\nDirective shall not have the effect of modifying the obligation to\nrespect the fundamental rights enshrined in the Treaty on European\nUnion, or of requiring Member States to take any measures which\nconflict with their constitutional rules.
\nThe proposal contains four Chapters.
\nChapter I: the European Investigation\nOrder: the main points\nare:
\nScope of the EIO: the\nEIO shall cover any investigative measure with the exception of\ncertain measures referred to in the proposal. These include the\nsetting up of a joint investigation team, and the interception and\nimmediate transmission of telecommunications in defined\ncircumstances.
\nThis Directive does not apply to cross-border\nobservations as referred to in Article 40 of the Convention of 19\nJune 1990 implementing the Schengen Agreement.
\nTypes of procedure for which the EIO can be\nissued: the EIO may be issued: a)\nwith respect to criminal proceedings brought by a judicial\nauthority in respect of a criminal offence under the national law\nof the issuing State; b) in proceedings brought by administrative\nauthorities in respect of acts which are punishable under the\nnational law of the issuing state by virtue of being infringements\nof the rules of law and where the decision may give rise to\nproceedings before a court having jurisdiction, in particular, in\ncriminal matters; c) in proceedings brought by judicial authorities\nin respect of acts which are punishable under the national law of\nthe issuing state by virtue of being infringements of the rules of\nlaw, and where the decision may give rise to proceedings before a\ncourt having jurisdiction, in particular, in criminal matters, and\nd) in connection with proceedings referred to in points (a), (b),\nand (c) which relate to offences or infringements for which a legal\nperson may be held liable or punished in the issuing\nstate.
\nTransmission of the EIO:\nthis is transmitted from the issuing authority to the executing\nauthority by any means capable of producing a written record under\nconditions allowing the executing State to establish authenticity.\nEach Member State may designate a central authority to assist the\njudicial competent authorities. When the authority in the executing\nState which receives the EIO has no jurisdiction to recognise it\nand to take the necessary measures for its execution, it shall, ex\nofficio, transmit the EIO to the executing authority and so inform\nthe issuing authority.
\nRecognition and execution: the executing authority shall recognise an EIO\nwithout any further formality being required, and shall forthwith\ntake the necessary measures for its execution in the same way and\nunder the same modalities as if the investigative measure in\nquestion had been ordered by an authority of the executing State,\nunless that authority decides to invoke one of the grounds for\nnon-recognition or non-execution or one of the grounds for\npostponement.
\nRecourse to another type of investigative\nmeasure: the executing authority\nshould have the possibility to use another type of measure either\nbecause the requested measure does not exist or is not available\nunder its national law or because the other type of measure will\nachieve the same result as the measure provided for in the EIO by\nless coercive means.
\nGrounds for refusal or postponement: to ensure the effectiveness of judicial cooperation\nin criminal matters, the possibility of refusing to recognise or\nexecute the EIO, as well as the grounds for postponing its\nexecution, should be limited.
\nDeadlines: the decision\non the recognition or execution shall be taken as soon as possible\nand no later than 30 days after the receipt of the EIO by the\ncompetent executing authority. Unless either grounds for\npostponement exist or evidence referred to in the investigative\nmeasure covered by the EIO is already in the possession of the\nexecuting State, the executing authority shall carry out the\ninvestigative measure without delay and no later than 90 days after\nthe decision is taken. When it is not practicable in a specific\ncase for the competent executing authority to meet the deadline, it\nshall without delay inform the competent authority of the issuing\nState by any means, giving the reasons for the delay and the\nestimated time needed for the decision to be taken. In this case,\nthe time limit may be extended by a maximum of 30 days.
\nInvestigative measures implying a gathering of\nevidence in real time, continuously and over a certain period of\ntime are covered by the EIO, but flexibility should be given to the\nexecuting authority for these measures given the differences\nexisting in the national laws of the Member States.
\nFundamental Rights: this\nDirective respects the fundamental rights and observes the\nprinciples recognised by Article 6 of the Treaty on European Union\nand by the Charter of Fundamental Rights of the European Union,\nnotably Title VI thereof.
\nNothing in this Directive may be interpreted as\nprohibiting refusal to execute an EIO when there are reasons to\nbelieve, on the basis of objective elements, that the EIO has been\nissued for the purpose of prosecuting or punishing a person on\naccount of his or her sex, racial or ethnic origin, religion,\nsexual orientation, nationality, language or political opinions, or\nthat the person's position may be prejudiced for any of these\nreasons.
\nIt should be noted that the United Kingdom and Ireland\nhave notified their wish to take part in the adoption of this\nDirective. Denmark, on the other hand, is not taking part in the\nadoption of this Directive and is not bound by it or subject to its\napplication.
\nFINANCIAL IMPLICATIONS: this proposal has no\nimplications for the EU budget.
\nOpinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November\n2008 on the protection of personal data processed in the framework\nof police and judicial cooperation in criminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EIO\ninitiative:
\n\n· \nto include a provision on translations, similar\nto Article 16 of the EIO initiative;
\n\n· \nto include a provision that prevents the use of\nevidence for purposes other than the prevention, investigation,\ndetection or prosecution of crime or the enforcement of criminal\nsanctions and the exercise of the right of defence, as an exception\nto Article 11(1)(d) of Framework Decision 2008/977/JHA;
\n\n· \nto add an evaluation clause to the EIO\ninitiative, requiring from the Member States to report on a regular\nbasis on the application of the instrument and from the Commission\nto synthesise these reports and, where relevant, issue appropriate\nproposals for amendments.
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\nOpinion of the European Data Protection Supervisor on\nthe initiative of several Member States for a Directive of the\nEuropean Parliament and of the Council regarding the European\nInvestigation Order in criminal matters.
\nThis opinion reacts on two initiatives for a Directive\nof a number of Member States, as foreseen by Article 76 TFEU,\nnamely:
\nAdvising on these initiatives falls within the\nremit of the task entrusted to the EDPS in Article 41 of Regulation\n(EC) No 45/2001 for advising EU institutions and bodies on all\nmatters concerning the processing of personal data. This opinion,\ntherefore, comments upon the initiatives as far as they relate to\nthe processing of personal data. Since no request for advice has\nbeen sent to the EDPS, this opinion is issued on his own\ninitiative. He regrets that he was not consulted when these\ninitiatives were issued.
\nAlthough the two initiatives have different\nobjectives - i.e. improving protection of victims and cross-border\nco- operation in criminal matters through the collection of\nevidence cross border - they have important\nsimilarities:
\nFor these reasons, the EDPS considers it\nappropriate to examine them jointly.
\nThe EDPS recommends with regard to both the EPO and\nthe EIO initiatives:
\n\n· \nto include specific provisions stating that the\ninstruments apply without prejudice to Council Framework Decision\n2008/977/JHA of 27 November\n2008 on the protection of personal data processed in the framework\nof police and judicial cooperation in criminal matters,
\n\n· \nto include provisions requiring the Member\nStates to ensure that:
\n\n· \ncompetent authorities have the resources\nnecessary for the application of the proposed\ndirectives,
\n\n· \ncompetent officials shall observe professional\nstandards and be subject to appropriate internal procedures that\nensure, in particular, the protection of individuals with regard to\nthe processing of personal data, procedural fairness and the proper\nobservance of the confidentiality and professional secrecy\nprovisions,
\n\n· \nauthentication systems allow only authorised\nindividuals to have access to both databases containing personal\ndata or premises where evidence are located,
\n\n· \ntracking of accesses and operations are\nperformed,
\n\n· \naudit controls are implemented.
\nThe EDPS recommends with regard to the EIO\ninitiative:
\n\n· \nto include a provision on translations, similar\nto Article 16 of the EIO initiative;
\n\n· \nto include a provision that prevents the use of\nevidence for purposes other than the prevention, investigation,\ndetection or prosecution of crime or the enforcement of criminal\nsanctions and the exercise of the right of defence, as an exception\nto Article 11(1)(d) of Framework Decision 2008/977/JHA;
\n\n· \nto add an evaluation clause to the EIO\ninitiative, requiring from the Member States to report on a regular\nbasis on the application of the instrument and from the Commission\nto synthesise these reports and, where relevant, issue appropriate\nproposals for amendments.
\nMoreover, and more in general, the EDPS:
\n\n· \nrecommends the Council to establish a procedure\nin which consultation of the EDPS will take place, in case an\ninitiative introduced by Member States is related to the processing\nof personal data,
\n\n· \nreiterates the need for a comprehensive data\nprotection legal framework covering all areas of EU competence,\nincluding police and justice, to be applied to both personal data\ntransmitted or made available by competent authorities of other\nMember States and to domestic processing in AFSJ.
\n