PURPOSE: Report from the Commission on national measures taken to comply with the Council Framework Decision of 13 June 2002 on Joint Investigation Teams.

CONTENT:

As the Commission has no authority under the Third Pillar to initiate an infringement procedure against a Member State, this report is limited to a factual evaluation of the implementation measures taken.

In total, 14 Member States forwarded the relevant legislation to the Commission (Denmark, Germany, Spain, France, Latvia, Lithuania, Hungary, Malta, the Netherlands, Austria, Portugal, Finland, Sweden and the UK). No information was received from Estonia, Ireland, Poland, Czech Republic and Slovenia, while Belgium, Italy, Cyprus and Slovakia forwarded the text of a bill and Greece and Luxembourg informed the Commission that a draft was in preparation.

In general terms, the implementation of the Framework Decision has, in most Member States, required the adoption of new legislation or at least the amendment of certain internal provisions. Some transposed the Framework Decision into domestic laws having more or less the same content as the Framework Decision (Spain, Portugal) while others amended existing provisions or adopted legislation providing for new rules (Denmark, France, Latvia, Hungary, Austria, Finland, Sweden).

The UK stated that only certain provisions needed to be enacted and that the others have been transposed by means of a Circular. As the circular is not legally binding, the relevant provisions have been considered as not complying with the Framework Decision.

Three Member States (Germany, Lithuania and Malta) took the view that no specific legislation was needed to implement the Framework Decision.

In the Netherlands, legislation in place allows the setting up of joint investigation teams "insofar as provided for by treaty or convention". As the Framework Decision is neither a treaty nor a convention, the relevant provisions are not compliant with the Framework Decision.

The conclusions that follow assess the implementation of each provision of the Framework Decision.

With regard to Art 1(1), it is sufficient that the general legal context allows the setting up of joint investigation teams as working groups operating in a transnational dimension for limited periods and with specific purposes. Almost every Member State with legislation in place has implemented this provision In several Member States the legislation in force makes reference to an agreement that in some cases is indicated as the Model Agreement adopted by the Council (Austria) whereas in others the term refers to general contact between competent authorities (France, Lithuania).

Regarding the proposal for the composition of the team contained in Art 1(2), it must be noted that legislation in place, whenever it refers to an agreement or a different understanding between competent authorities, even if it does not make reference to the Model Agreement adopted by the Council, implicitly involves the composition of the team.

With regard to Art 1(3), concerning leadership of the team, the applicable law and the organizational arrangements, it is sufficient that each Member State provides for rules to be applied within its borders without specifying what rules are applicable in the other Member States. Nevertheless, it has been fully implemented by only two Member States (Spain and Austria). Four Member States have transposed only certain provisions such as general rules on the "supervisory powers" accorded to the team leader or on the applicable law (France), or such as provisions concerning the leader of the team and the applicable law without any reference to the organizational arrangements (Latvia, Hungary and Finland). The legislation adopted by Denmark, Germany, Lithuania, Malta, the Netherlands, Portugal, Sweden and the UK does not deal with these issues.

Concerning Art 1(4) (dealing with the definition of "seconded member") it must be noted that, even if no provision expressly provides for a definition of "seconded member", when implementing legislation refers to people seconded to the team, it is clear from the general context, that it refers to members of the joint investigation team from Member States other than the one where the team operates.

One of the most significant aspects of the Framework Decision deals with the powers accorded to seconded members (Arts 1(5) and (6)). The implementing legislation differs considerably from one State to another. While in France, Malta and Finland the activities with which seconded members may be entrusted are listed and specifically indicated, in others the provision is very general (Lithuania) or makes reference to the agreement required to set up the team (Spain), to other types of approval by the competent authority (Germany), or to national law (Austria) and in certain others it is up to the team leader to decide with which powers seconded members may be entrusted (Latvia and Portugal).

Art 1(7) deals with the case in which the team requires investigative measures to be taken in one of the Member States setting up the team. The aim of this provision is to prevent joint investigation teams from needing letters rogatory. Only Spain, Finland, Sweden have complied with this provision. The UK has restricted investigative measures to search warrant and production orders and most of the national enacting legislation does not deal with it (Denmark, Germany, France, Lithuania, Hungary, Malta, the Netherlands, Austria, Portugal). Latvia adopted unclear provisions that seem not to comply.

Art 1(8) concerning assistance needed from a Member State other than those participating in the team, or from a third State, has been fully transposed by Spain and Portugal and Latvia adopted unclear provisions. According to the information received, the other Member States have no relevant legislation in place regarding Art 1 (8).

Provisions on the provision of information (Art 1(9)) have been directly implemented by Latvia, Portugal and Sweden. Nevertheless, in several cases the possibility for seconded members to provide the team with information available in the seconding Member State may be deduced from a general interpretation of the legislation (Spain, Hungary, Austria, Finland). No relevant provision could be found in the other Member States' legislation.

Concerning the use of the information gathered (Art 1(10)) it may be observed that Spain, Portugal,

and Sweden have fully complied with this provision and Austria and Finland have implemented it partially. Latvia adopted provisions that are not in line with the Framework Decision.

With regard to Article 1(11) (stating that the Framework Decision shall be without prejudice to any other existing provisions or arrangements on the setting up or operation of joint investigation teams), no Member State forwarded specific legislation. Nevertheless, as far as no conflicting provision arises from the implementing legislations, it must be considered that every Member State is compliant with Art 1(11).

The option of permitting persons other than representatives of the Member States to take part in the team (Art 1(12)) has been provided for only by Spain, Latvia, Hungary, Austria, Portugal and Finland. In Lithuania, legislation in place makes reference to "cases provided for in international treaty". The other Member States have not transposed this provision.

COM(2004)0858
EUR-Lex

T5-0591/2001
OJ C 140 13.06.2002, p. 0026-0139 E

T5-0591/2001

Debate in Parliament

A5-0369/2001

A5-0369/2001

12442/2001
OJ C 295 20.10.2001, p. 0009

12442/2001