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COUNCIL OF

THE EUROPEAN UNION

Brussels, 7 November 2008





15235/08





CRIMORG 180

ENFOPOL 213

ENFOCUSTOM 98

COMIX 784



NOTE

from :	Presidency

to :	Article 36 Committee (Mixed Committee
EU/Iceland/Norway/Switzerland / Liechtenstein)

No. prev. doc.:	13942/1/08 CRIMORG 161 ENFOPOL 186 ENFOCUSTOM 89 COMIX
721 REV 1

Subject :	Council Framework Decision 2006/960/JHA on simplifying the
exchange of information and intelligence between law enforcement
authorities of the Member States of the European Union

- draft Guidelines



1.	On 18 December 2006, the Council adopted the Framework Decision
2006/960/JHA on simplifying the exchange of information and intelligence
between law enforcement authorities of the Member States of the European
Union. Article 11(1) thereof stipulates that "Member States shall take
the necessary measures to comply with the provisions of this Framework
Decision before 19

December 2008". 

2.	Member States experts have consulted over the last year on practical
an technical issues, regarding the implementation of the Framework
Decision. Equally, so-called "road tests" have taken place with a view
to preparing the concerned departments for the application of the new
rules. 

3.	Resulting from these consultations and tests, a number of practical
guidelines have been gathered, as well as information about national
legislation and rules regarding available information that can be
exchanged pursuant to the Framework Decision. 

4.	The Ad Hoc Group on Information Exchange agreed on the main general
part of the guidelines in its meeting of 3 November 2008, as set out in
annex to the current document. However, because national and EU
preparations for the implementation are still on-going, the annexes to
the guidelines will require further updating between now and the date of
implementation of the Council Framework Decision so as to be of the best
use to practitioners. 

5.	The Article 36 Committee is therefore invited to 

	-	approve the guidelines as set out in annex to the current document
and submit them to Coreper/Council with a view to their endorsement

	-	request Coreper/Council to agree that these guidelines and their
annexes be completed before implementation on 18 December 2008 and
updated whenever necessary. 

6.	Delegations that have not yet done so are requested to submit
urgently

the official declarations to be submitted pursuant to the Framework
Decision concerning the competent authorities, contacts in case of
urgency and bi/multilateral agreements that remain in force, as well as 

the completed national fact sheets about information available and
languages that can be used.

ANNEX

FRAMEWORK DECISION (2006/960/JHA) OF 18 DECEMBER 2006 ON SIMPLIFYING THE
EXCHANGE OF INFORMATION AND INTELLIGENCE BETWEEN LAW ENFORCEMENT
AUTHORITIES OF THE MEMBER STATES OF THE EUROPEAN UNION

CONTENTS

0.	Introduction

1.	Implementation of the Framework Decision

2.	Use of the Framework Decision

3.	Completion and transmission of forms

4.	Links to more information

0.	Introduction

The aim of this publication is to provide guidelines for the
implementation of Council Framework Decision 2006/960/JHA on simplifying
the exchange of information and intelligence between law enforcement
authorities of the Member States of the European Union and should be
adapted in the light of experience acquired, while supplying the
competent authorities with specific information on how the forms
attached to the Council Framework Decision should ideally be filled in. 

The Framework Decision aims to enhance the effective and expeditious
exchange of information and intelligence between law enforcement
authorities, which was too often hampered by formal procedures,
administrative structures and legal obstacles. 

The Framework Decision does not purport to change the Member States’
systems of investigation and intelligence gathering and does not aim to
centralise all exchange of information and intelligence. However, the
Decision implies an improvement of the existing ways of exchanging
information and intelligence by setting rules on procedures, time limits
and grounds for refusal, with the aim of simplifying the exchange.

The Framework Decision should be used by law enforcement authorities for
exchanging existing information and intelligence effectively and
expeditiously for the purpose of conducting criminal investigations or
criminal intelligence operations. 

In that context, Member States shall ensure that the conditions for
providing information and intelligence to competent law enforcement
authorities of other Member States are not stricter than the conditions
applicable at national level for providing and requesting information
and intelligence. 

This handbook may be updated in future as necessary in the light of
practical experience and/or amendments to the Framework Decision.

1.	Implementation of the Framework Decision in the EU Member States

1.1.	Competent law enforcement authorities

In accordance with Article 2 (a) of the Framework Decision, a
“competent law enforcement authority” covers 

a national police customs or other authority

that is authorised by national law

to detect, prevent and investigate offences or criminal activities and
to exercise authority and take coercive measures in the context of such
activities.

Agencies or units dealing especially with national security issues are
not covered. 

Member States shall state in a declaration which authorities are covered
by the concept of "competent law enforcement authority". 

The list of these authorities is set out in Annex IV. 

1.2.	List of information that can be transmitted pursuant to the
Framework Decision

According to Article 2(d), “information and/or intelligence” covers
the following two categories: 

any type of information or data which is held by law enforcement
authorities

any type of information or data which is held by public authorities or
by private entities and which is available to law enforcement
authorities without the taking of coercive measures.

Since the content of these categories depends on national legislation,
some practical guidance is set out in the national fact sheets in Annex
III. Without being limitative, these lists set out the type of
information available to the Member States' authorities that can
generally be provided pursuant to the Framework Decision. 

With a view to a clear understanding of Article 1(5), it should be taken
into account that "coercive measures" can be understood differently by
Member States. Where appropriate, indications are given in the national
fact sheets (see Annex III). 



1.3	Contacts in the case of urgency

In accordance with Article 6(1) of the Framework Decision, exchange of
information and intelligence applying the rules of the Framework
Decision may take place via any existing channel of international law
enforcement cooperation. 

However, it was felt useful to draw up a list of contacts that can be
used in case of urgency. 

The details provided by Member States about these contacts are set out
in Annex V.

2.	Use of the Framework Decision

2.1	Channel of communication

Pursuant to Article 6 of the Framework Decision, the requesting Member
State may choose between any of the existing channel for international
law enforcement cooperation, the most important ones being currently:

SIRENE

ENU/EUROPOL Liaison Officer

INTERPOL NCB

Liaison officers

Mutual administrative international customs assistance ("Naples II
Convention")

Bilateral cooperation channels

The requested Member State normally replies through the same channel
used for the request. Where the requested Member State must for
legitimate reasons reply through another channel, the requesting
authority is informed of this change.

The choice of channel will be guided by the following criteria:

subject

requested country

level of security/confidentiality required

urgency

The Manual of Good Practices concerning the International Police
Cooperation Units at National Level (document 7968/08 ENFOPOL 63 + COR
1), as approved by the Police Chiefs, includes the following proposed
criteria for use of channels: 

a)	geographical approach:

nationality/residence/origin of person or object concerned is known and
request concerns establishing details (address, phone number,
fingerprints, DNA, registration, …)

nationality/residence/origin of person or object concerned is not known



b)	thematic approach:

Europol (organised crime, at least 2 MS, connection to AWF, need for
joint approach) 

confidentiality / sensitivity

channel used for previous related request

c)	technical approach:

IT-criteria: need of secure channels (BDL for intelligence and
terrorism-related information) or technical compatibility (SIRPIT for
fingerprints)

d)	urgency

urgency / proven speed of channel (in particular immediate risk for
person's physical integrity, immediate loss of evidence, request for
urgent cross border operation or surveillances)

priority

2.2.	Requests in cases of urgency

As the notion of urgency is not defined in Framework Decision
2006/960/JHA, it seems advisable for all Member States to have a
convergent approach to urgent requests so that this procedure, which
places heavy demands on the requested State, is used in a balanced and
reasonable manner. Also, Member States will ensure that the notion of
“urgency” is interpreted in a restricted manner. 

The following guidance is therefore offered to provide help in
determining what circumstances may be deemed as “urgent”, but is not
to be regarded as definitive. In any case, the question of whether a
request is urgent shall be evaluated on a case-by-case basis, avoiding
that it becomes a trite indication. 



"Urgent" cases as referred to in Article 4 of Framework Decision
2006/960 can be understood to mean any situation during which the fact
of obtaining information will:

prevent a risk of death or harm to persons or serious damage to
property;

result in, or terminate, a decision involving deprivation of liberty
(where such a decision has to be taken within a short period of time);

prevent the loss of information that is important for the further stages
of an investigation.

Examples of such situations would be:

abductions and hostage-takings; 

the risk that a serious offence will be committed or repeated;

the disappearance of minors, and the disappearance of adults giving
cause for concern;

decisions relating to the keeping a person in police custody, or
remanding a suspect in custody or releasing a person;

the possible escape of a suspect in a serious case;

the need to obtain information at risk of imminent destruction.

2.3.	Exchange with Europol

Care should be taken to copy Europol each time a request falls within
Europol's mandate. In addition, the answer provided by the requested
Member State should also be copied to Europol. 

This principle has to be applied whatever the channel is chosen,
including the Europol channel. 

In this respect, a difference has to be made between, on the one hand,
the use of the Europol channel as a means of information exchange
between Member States, using their liaison officers and, on the other
hand, the direct communication to Europol, as an organisation, for any
intelligence falling within its mandate.

3.	Completion and transmission of forms

It is recommended to use the electronic version of the forms. 

In Annex II, detailed guidelines are given on how to use certain boxes.
These guidelines are not binding on Member States' authorities but carry
a certain weight because they were drawn up by experts and reflect
feedback given after a road test by several Member States.

4.	Links to more information 

See also Manual of good practices concerning the International Police
Cooperation Units at National Level (doc. 7968/08 ENFOPOL 63 + COR 1) ,
as adopted by the Police Chiefs meeting on 19 March 2008).

			

 OJ L 386 of 29.12.2006, p. 89.

 See doc. 13942/1/08 CRIMORG 161 ENFOPOL 186 ENFOCUSTOM 89 COMIX 721 REV
1. 

 	The comments contained here are not binding and do not affect domestic
legislation implementing the Framework Decision. Comments are merely
recommendations. Authorities are, however, reminded of their obligation
to interpret their national law in conformity with the Framework
Decision (see the Pupino case in the European Court of Justice
C-105/03).

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