Key Benefits:
The President of the Republic,
On the report of the Prime Minister and the Minister for Foreign Affairs,
Having regard to Articles 52 to 55 of the Constitution;
Given the Convention Established by the Council in accordance with Article 34 of the Treaty on European Union on mutual legal assistance in criminal matters between the Member States of the European Union, made in Brussels on 29 May 2000;
Having regard to the Protocol to the Convention On mutual legal assistance in criminal matters between the Member States of the European Union, established by the Council in accordance with Article 34 of the Treaty on European Union, done in Luxembourg on 16 October 2001;
In accordance with the law n ° 2005-288 of 30 March 2005 authorising the approval of the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, established by the Council in accordance with Article 34 of the Treaty on European Union, Luxembourg on 16 October 2001;
In view of the amended Decree No. 53-192 of 14 March 1953 on the ratification and publication of international commitments entered into by France,
Décrète:
Protocol to the Convention on mutual legal assistance in criminal matters between the Member States of the Union Established by the Council in accordance with Article 34 of the Treaty on European Union, done in Luxembourg on 16 October 2001, shall be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign Affairs shall each have responsibility for the execution of this Decree, which shall be published in the Official Journal of the French Republic.
P R O T O C O L E
TO THE CONVENTION ON THE RETIREMENT JUDICIAL IN CRIMINAL MATTERS BETWEEN THE MEMBER STATES OF THE EUROPEAN UNION, PREPARED BY THE COUNCIL IN ACCORDANCE WITH ARTICLE 34 OF THE TREATY ON EUROPEAN UNION The
Contracting Parties to this Protocol, Member States of the Union European,
Referring to the Council Act of 16 October 2001 establishing the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union,
Taking into account the conclusions adopted At the European Council held in Tampere on 15 and 16 October 1999 and the need to implement them without delay in order to achieve an area of freedom, security and justice,
Taking into account the recommendations made by the experts to The occasion for the presentation of the mutual evaluation reports on the basis of Council Joint Action 97 /827/JHA of 5 December 1997 establishing a mechanism for evaluating the implementation and implementation at national level of International commitments in the fight against organised crime (1),
Convinced of the need for additional measures in the field of mutual legal assistance in criminal matters in order to combat crime, And in particular against organised crime, money laundering and financial crime,
Have agreed on the following provisions, which are annexed to the Convention of 29 May 2000 on mutual legal assistance in criminal matters Between the Member States of the European Union (2), hereinafter referred to as ' Mutual Legal Assistance Convention 2000 ", and an integral part thereof.
Article 1
Request for information on bank accounts
1. Each Member State shall take, under the conditions laid down in this Article, the measures necessary to determine, in response to an application sent by another Member State, whether a natural or legal person subject to a criminal investigation holds Or control one or more accounts, of any nature, in any bank located within its territory and, if so, it provides all information concerning the accounts listed.
On request, and to the extent that Information may be provided within a reasonable period of time, the information also relates to the accounts for which the person subject to a proceeding has power of attorney.
2. The obligation under this section applies only to the extent that the bank that manages the account has this information.
3. The obligation laid down in this Article shall apply only if the investigation relates to:
-a fact punishable by deprivation of liberty or a measure of security deprivation of liberty of up to four years in the requesting Member State And at least two years in the requested Member State, or
-an offence referred to in Article 2 of the 1995 Convention establishing a European Police Office (Europol Convention) or the Annex to that Convention, as amended, or
- To the extent that it is not covered by the Europol Convention, an infringement referred to in the 1995 Convention on the Protection of the Financial Interests of the European Communities, its 1996 Protocol or its second Protocol 1997.
4. The authority issuing the request:
-indicates the reasons why it considers that the information requested is likely to be fundamental to the investigation of the offence;
-specifies the reasons why it Assume that banks in the requested Member State hold the accounts in question and indicate, to the extent that it has indices, which banks might be affected;
-communicates any information that may be relevant Facilitate the execution of the request.
5. Member States may make the execution of an application under this Article subject to the same conditions as they apply to requests for search and seizure.
6. The Council may decide, in accordance with Article 34 (2) (c) of the Treaty on European Union, to extend the scope referred to in paragraph 3.
Article 2
Requests for information on transactions Banking
1. At the request of the requesting Member State, the requested Member State shall provide information concerning specified bank accounts and banking transactions that have been carried out for a specified period on one or more specified accounts In the application, including information about any sending or receiving account.
2. The obligation under this section applies only to the extent that the bank that manages the account has this information.
3. The requesting Member State shall indicate in its request the reasons why it considers that the information requested is relevant to the investigation of the infringement.
4. Member States may make the execution of an application in accordance with this Article subject to the same conditions as they apply to requests for search and seizure.
Article 3
Applications Banking transaction tracking
1. Each Member State undertakes to ensure that, at the request of another Member State, it is in a position to monitor, for a specified period, the banking operations carried out on one or more accounts specified in the application and to communicate the Result in the requesting Member State.
2. The requesting Member State shall indicate in its request the reasons why it considers that the information requested is relevant to the investigation of the infringement.
3. The decision on the monitoring of transactions shall be taken in each individual case by the competent authorities of the requested Member State, in accordance with the national law of that Member
. The practical arrangements for monitoring shall be agreed between the competent authorities of the requesting and required Member States.
Article 4
Confidentiality
Each Member State shall take the measures Necessary to ensure that the banks do not disclose to the customer concerned or to other third parties that information has been transmitted to the requesting Member State in accordance with Articles 1, 2 or 3 or that an investigation is under way.
Article 5
Obligation to inform
If, in the course of the execution of a request for mutual legal assistance, the competent authority of the requested Member State deems it appropriate to undertake unplanned investigations Initially or could not be specified at the time of the request, it shall inform the requesting authority without delay to enable it to take further action.
Article 6
Additional requests Mutual legal assistance
1. If the competent authority of the requesting Member State makes a request for mutual legal assistance which supplements an earlier application, it is not required to give back the information already searched in the original application. The additional request contains the information needed to identify the initial request.
2. If, in accordance with the provisions in force, the competent authority which has applied for mutual legal assistance is involved in its execution in the requested Member State, it may, without prejudice to Article 6 (3) of the 2000 Convention, Send a supplementary request directly to the competent authority of the requested Member State as long as it is present on the territory of that State.
Article 7
Banking Secret
A Member State Does not invoke bank secrecy as a reason to reject cooperation on a request for mutual legal assistance from another Member State.
Article 8
Tax Infringements
1. Mutual legal assistance cannot be rejected on the sole ground that the application relates to an offence which the requested Member State qualifies as a tax
. In the case where a Member State has made the execution of an application for search or seizure subject to the condition that the infringement which gave rise to the application is also punishable in its legislation, that condition shall be fulfilled in respect of the Concerns the offences referred to in paragraph 1 if the infringement corresponds to an infringement of the same nature in the law of the requested Member State.
The application may not be refused on the ground that the law of the requested Member State does not require Not the same type of taxes, or does not contain the same type of tax, customs and exchange rate regulation as the legislation of the requesting Member State.
3. Article 50 of the Schengen Application Convention is repealed.
Article 9
Political violations
1. For the purpose of mutual legal assistance between Member States, no offence may be regarded by the Member State required as a political offence, an offence connected with a political offence or an offence inspired by interests Policies.
2. Each Member State may, when making the notification referred to in Article 13 (2), declare that it will apply paragraph 1 of this Article only:
(a) For the offences referred to in Articles 1 and 2 of the European Convention 27 January 1977 for the suppression of terrorism;
and
(b) Conspiracy or conspiracy offences-which correspond to the conduct described in Article 3 (4) of the Convention of 27 September 1996 on Extradition between the Member States of the European Union-contributing to the commission of one or more offences within the meaning of Articles 1 and 2 of the European Convention for the Suppression of
. The reservations made under Article 13 of the European Convention for the Suppression of Terrorism do not apply to mutual legal assistance between Member States.
Article 10
Transmission to the Council
of the Decisions to reject and refer to Eurojust
1. If an application is rejected on the basis of:
-Article 2 (b) of the European Convention on Mutual Legal Assistance or Article 22 (2) (b) of the Benelux Treaty;
-Article 51 of the Schengen Application Convention or Article 5 of the European Convention on Mutual Legal Assistance, or of
-Article 1 (5) or Article 2 (4) of this Protocol,
and if the requesting Member State persists in its application and no solution can be , the reasoned rejection decision shall be forwarded to the Council for information by the Member State required for a possible assessment of the operation of judicial cooperation between the Member
. The competent authorities of the requesting Member State may report to Eurojust, as soon as it has been established, any difficulty relating to the execution of a request having a connection with the provisions referred to in paragraph 1, with a view to a possible solution Practice, in accordance with the provisions laid down in the instrument establishing Eurojust.
Article 11
Reservations
This Protocol shall not be subject to any reservations except those which Are provided for in Article 9, paragraph 2.
Article 12
Territorial application
The application of this Protocol to Gibraltar will take effect when the 2000 Mutual Legal Assistance Convention As regards Gibraltar, in accordance with Article 26 of that Convention.
Article 13
Entry into force
1. This Protocol shall be subject to adoption by the Member States in accordance with their respective constitutional
. Member States shall notify the Secretary-General of the Council of the European Union of the completion of the procedures required by their constitutional rules for the adoption of this
. This Protocol shall enter into force in the eight Member States concerned four-ten days after the notification referred to in paragraph 2 by the State, Member of the European Union at the time of adoption by the Council of the act establishing the present Protocol, which is the eighth to proceed with this formality. However, if the Convention on Mutual Assistance in 2000 is not entered into force on that date, this Protocol shall enter into force on the same date as it.
4. Any notification made by a Member State after the entry into force of this Protocol under paragraph 3 shall have the effect that, ninety days after that notification, this Protocol shall enter into force between that Member State and the States Members for which this Protocol has already entered into force.
5. Before the entry into force of this Protocol in accordance with paragraph 3, any Member State may, when making the notification referred to in paragraph 2 or at any time after such notification, declare that this Protocol is applicable in its Relations with the Member States which have made the same declaration. Such declarations shall take effect ninety days after the date of their filing.
6. Notwithstanding paragraphs 3 to 5, the entry into force or application of this Protocol shall not take effect in relations between two Member States, whatever they may be, before the entry into force or application of the Assistance Convention Between these Member States.
7. This Protocol shall apply to mutual legal assistance proceedings initiated after the date on which it entered into force, or is applied in accordance with paragraph 5, between the Member States concerned.
Article 14
New member states join
1. This Protocol shall be open for accession by any State which becomes a member of the European Union and accedes to the 2000 Mutual Legal Assistance Convention.
2. The text of this Protocol in the language of the acceding State, established by the Council of the European Union, is authentic.
3. The instruments of accession shall be deposited with the
. This Protocol shall enter into force in respect of any State which accedes thereto ninety days after the deposit of its instrument of accession, or on the date of its entry into force if it has not yet entered into force at the time of the expiration of the said instrument of accession. Period of 90 days.
5. Article 13 (5) shall apply to acceding States if this Protocol has not yet entered into force upon the deposit of their instrument of accession.
6. Notwithstanding paragraphs 4 and 5, the entry into force or the application of this Protocol in respect of the acceding State shall not take effect before the entry into force or the application of the Convention on Mutual Assistance of 2000 in respect of that State State.
Article 15
Position of Iceland and Norway
Article 8 constitutes measures amending or relying on the provisions referred to in Annex A of the Agreement concluded by the Council of The European Union, the Republic of Iceland and the Kingdom of Norway on the association of these two States with the implementation, application and development of the Schengen acquis (1), hereinafter referred to as " Association Agreement ".
Article 16
Coming into force for Iceland and Norway
1. Without prejudice to Article 8 of the Association Agreement, the provision referred to in Article 15 of this Protocol shall enter into force for Iceland and Norway ninety days after receipt by the Council and the Commission of information Article 8 (2) of the Association Agreement concerning the satisfaction of their constitutional requirements, in their relations with any Member State for which this Protocol has already entered into force by virtue of its Article 13, paragraph 3 or 4.
2. Any entry into force of this Protocol for a Member State after the date of entry into force of the provision referred to in Article 15 for Iceland and Norway shall also make that provision applicable in the relations between that Member State and Iceland and between that Member State and Norway.
3. In any event, the provision referred to in Article 15 shall not bind Iceland and Norway before the entry into force of the provisions referred to in Article 2 (1) of the Convention on Legal Assistance of 2000 in respect of those two States
4. Without prejudice to paragraphs 1, 2 and 3, the entry into force of the provision referred to in Article 15 for Iceland and Norway shall take place no later than the date of entry into force of this Protocol for the fifteenth Member State of the European Union At the time of adoption by the Council of the act establishing this Protocol.
Article 17
Depositary
The Secretary-General of the Council of the European Union shall be the depositary of this Protocol.
The depositary shall publish in the Official Journal of the European Communities the status of adoptions and adhesions, declarations and any other notification relating to this Protocol.
In faith: The undersigned have signed at the bottom of this Protocol.
Done at Luxembourg on 16 October 2000, in a single copy, in the German, English, Danish, Spanish, Finnish, French, Greek, Irish, Italian and Spanish languages, Dutch, Portuguese and Swedish, all texts being equally authentic, which is deposited in the archives of the General Secretariat of the Council of the European Union. The Secretary-General shall transmit a certified copy to each Member State.
Statements by the French Republic
Article 9, paragraph 2
France declares, in accordance with paragraph 2 Article 9, that it will apply paragraph 1 of Article 9 only to the offences referred to in Articles 1 and 2 of the European Convention of 27 January 1977 for the suppression of terrorism and the acts of conspiracy or association of Criminals who contribute to the perpetuation of one or more of these offences.
Article 13, paragraph 5
France declares that this Protocol is applicable, in accordance with paragraph 5 of Article 13 in its relations with the Member States which have made the same declaration.
Done at Paris, January 5, 2006.
Jacques Chirac
By the President of the Republic:
The Prime Minister,
Dominique de Villepin
The Minister for Foreign Affairs,
Philippe Douste-Blazy
