EUR-Lex - 22003A0719(02) - EN Avis juridique important | 22003A0719(02) Agreement on mutual legal assistance between the European Union and the United States of America Official Journal L 181 , 19/07/2003 P. 0034 - 0042 Agreementon mutual legal assistance between the European Union and the United States of AmericaCONTENTS>TABLE>THE EUROPEAN UNION AND THE UNITED STATES OF AMERICA,DESIRING further to facilitate cooperation between the European Union Member States and the United States of America,DESIRING to combat crime in a more effective way as a means of protecting their respective democratic societies and common values,HAVING DUE REGARD for rights of individuals and the rule of law,MINDFUL of the guarantees under their respective legal systems which provide an accused person with the right to a fair trial, including the right to adjudication by an impartial tribunal established pursuant to law,DESIRING to conclude an Agreement relating to mutual legal assistance in criminal matters,HAVE AGREED AS FOLLOWS:Article 1Object and purposeThe Contracting Parties undertake, in accordance with the provisions of this Agreement, to provide for enhancements to cooperation and mutual legal assistance.Article 2Definitions1. "Contracting Parties" shall mean the European Union and the United States of America.2. "Member State" shall mean a Member State of the European Union.Article 3Scope of application of this Agreement in relation to bilateral mutual legal assistance treaties with Member States and in the absence thereof1. The European Union, pursuant to the Treaty on European Union, and the United States of America shall ensure that the provisions of this Agreement are applied in relation to bilateral mutual legal assistance treaties between the Member States and the United States of America, in force at the time of the entry into force of this Agreement, under the following terms:(a) Article 4 shall be applied to provide for identification of financial accounts and transactions in addition to any authority already provided under bilateral treaty provisions;(b) Article 5 shall be applied to authorise the formation and activities of joint investigative teams in addition to any authority already provided under bilateral treaty provisions;(c) Article 6 shall be applied to authorise the taking of testimony of a person located in the requested State by use of video transmission technology between the requesting and requested States in addition to any authority already provided under bilateral treaty provisions;(d) Article 7 shall be applied to provide for the use of expedited means of communication in addition to any authority already provided under bilateral treaty provisions;(e) Article 8 shall be applied to authorise the providing of mutual legal assistance to the administrative authorities concerned, in addition to any authority already provided under bilateral treaty provisions;(f) subject to Article 9(4) and (5), Article 9 shall be applied in place of, or in the absence of bilateral treaty provisions governing limitations on use of information or evidence provided to the requesting State, and governing the conditioning or refusal of assistance on data protection grounds;(g) Article 10 shall be applied in the absence of bilateral treaty provisions pertaining to the circumstances under which a requesting State may seek the confidentiality of its request.2. (a) The European Union, pursuant to the Treaty on European Union, shall ensure that each Member State acknowledges, in a written instrument between such Member State and the United States of America, the application, in the manner set forth in this Article, of its bilateral mutual legal assistance treaty in force with the United States of America.(b) The European Union, pursuant to the Treaty on European Union, shall ensure that new Member States acceding to the European Union after the entry into force of this Agreement, and having bilateral mutual legal assistance treaties with the United States of America, take the measures referred to in subparagraph (a).(c) The Contracting Parties shall endeavour to complete the process described in subparagraph (b) prior to the scheduled accession of a new Member State, or as soon as possible thereafter. The European Union shall notify the United States of America of the date of accession of new Member States.3. (a) The European Union, pursuant to the Treaty on European Union, and the United States of America shall also ensure that the provisions of this Agreement are applied in the absence of a bilateral mutual legal assistance treaty in force between a Member State and the United States of America.(b) The European Union, pursuant to the Treaty on European Union, shall ensure that such Member State acknowledges, in a written instrument between such Member State and the United States of America, the application of the provisions of this Agreement.(c) The European Union, pursuant to the Treaty on European Union, shall ensure that new Member States acceding to the European Union after the entry into force of this Agreement, which do not have bilateral mutual legal assistance treaties with the United States of America, take the measures referred to in subparagraph (b).4. If the process described in paragraph 2(b) and 3(c) is not completed by the date of accession, the provisions of this Agreement shall apply in the relations between the United States of America and that new Member State as from the date on which they have notified each other and the European Union of the completion of their internal procedures for that purpose.5. The Contracting Parties agree that this Agreement is intended solely for mutual legal assistance between the States concerned. The provisions of this Agreement shall not give rise to a right on the part of any private person to obtain, suppress, or exclude any evidence, or to impede the execution of a request, nor expand or limit rights otherwise available under domestic law.Article 4Identification of bank information1. (a) Upon request of the requesting State, the requested State shall, in accordance with the terms of this Article, promptly ascertain if the banks located in its territory possess information on whether an identified natural or legal person suspected of or charged with a criminal offence is the holder of a bank account or accounts. The requested State shall promptly communicate the results of its enquiries to the requesting State.(b) The actions described in subparagraph (a) may also be taken for the purpose of identifying:(i) information regarding natural or legal persons convicted of or otherwise involved in a criminal offence;(ii) information in the possession of non-bank financial institutions; or(iii) financial transactions unrelated to accounts.2. A request for information described in paragraph 1 shall include:(a) the identity of the natural or legal person relevant to locating such accounts or transactions; and(b) sufficient information to enable the competent authority of the requested State to:(i) reasonably suspect that the natural or legal person concerned has engaged in a criminal offence and that banks or non-bank financial institutions in the territory of the requested State may have the information requested; and(ii) conclude that the information sought relates to the criminal investigation or proceeding;(c) to the extent possible, information concerning which bank or non-bank financial institution may be involved, and other information the availability of which may aid in reducing the breadth of the enquiry.3. Requests for assistance under this Article shall be transmitted between:(a) central authorities responsible for mutual legal assistance in Member States, or national authorities of Member States responsible for investigation or prosecution of criminal offences as designated pursuant to Article 15(2); and(b) national authorities of the United States responsible for investigation or prosecution of criminal offences, as designated pursuant to Article 15(2).The Contracting Parties may, following the entry into force of this Agreement, agree by Exchange of Diplomatic Note to modify the channels through which requests under this Article are made.4. (a) Subject to subparagraph (b), a State may, pursuant to Article 15, limit its obligation to provide assistance under this Article to:(i) offences punishable under the laws of both the requested and requesting States;(ii) offences punishable by a penalty involving deprivation of liberty or a detention order of a maximum period of at least four years in the requesting State and at least two years in the requested State; or(iii) designated serious offences punishable under the laws of both the requested and requesting States.(b) A State which limits its obligation pursuant to subparagraph (a)(ii) or (iii) shall, at a minimum, enable identification of accounts associated with terrorist activity and the laundering of proceeds generated from a comprehensive range of serious criminal activities, punishable under the laws of both the requesting and requested States.5. Assistance may not be refused under this Article on grounds of bank secrecy.6. The requested State shall respond to a request for production of the records concerning the accounts or transactions identified pursuant to this Article, in accordance with the provisions of the applicable mutual legal assistance treaty in force between the States concerned, or in the absence thereof, in accordance with the requirements of its domestic law.7. The Contracting Parties shall take measures to avoid the imposition of extraordinary burdens on requested States through application of this Article. Where extraordinary burdens on a requested State nonetheless result, including on banks or by operation of the channels of communications foreseen in this Article, the Contracting Parties shall immediately consult with a view to facilitating the application of this Article, including the taking of such measures as may be required to reduce pending and future burdens.Article 5Joint investigative teams1. The Contracting Parties shall, to the extent they have not already done so, take such measures as may be necessary to enable joint investigative teams to be established and operated in the respective territories of each Member State and the United States of America for the purpose of facilitating criminal investigations or prosecutions involving one or more Member States and the United States of America where deemed appropriate by the Member State concerned and the United States of America.2. The procedures under which the team is to operate, such as its composition, duration, location, organisation, functions, purpose, and terms of participation of team members of a State in investigative activities taking place in another State's territory shall be as agreed between the competent authorities responsible for the investigation or prosecution of criminal offences, as determined by the respective States concerned.3. The competent authorities determined by the respective States concerned shall communicate directly for the purposes of the establishment and operation of such team except that where the exceptional complexity, broad scope, or other circumstances involved are deemed to require more central coordination as to some or all aspects, the States may agree upon other appropriate channels of communications to that end.4. Where the joint investigative team needs investigative measures to be taken in one of the States setting up the team, a member of the team of that State may request its own competent authorities to take those measures without the other States having to submit a request for mutual legal assistance. The required legal standard for obtaining the measure in that State shall be the standard applicable to its domestic investigative activities.Article 6Video conferencing1. The Contracting Parties shall take such measures as may be necessary to enable the use of video transmission technology between each Member State and the United States of America for taking testimony in a proceeding for which mutual legal assistance is available of a witness or expert located in a requested State, to the extent such assistance is not currently available. To the extent not specifically set forth in this Article, the modalities governing such procedure shall be as provided under the applicable mutual legal assistance treaty in force between the States concerned, or the law of the requested State, as applicable.2. Unless otherwise agreed by the requesting and requested States, the requesting State shall bear the costs associated with establishing and servicing the video transmission. Other costs arising in the course of providing assistance (including costs associated with travel of participants in the requested State) shall be borne in accordance with the applicable provisions of the mutual legal assistance treaty in force between the States concerned, or where there is no such treaty, as agreed upon by the requesting and requested States.3. The requesting and requested States may consult in order to facilitate resolution of legal, technical or logistical issues that may arise in the execution of the request.4. Without prejudice to any jurisdiction under the law of the requesting State, making an intentionally false statement or other misconduct of the witness or expert during the course of the video conference shall be punishable in the requested State in the same manner as if it had been committed in the course of its domestic proceedings.5. This Article is without prejudice to the use of other means for obtaining of testimony in the requested State available under applicable treaty or law.6. This Article is without prejudice to application of provisions of bilateral mutual legal assistance agreements between Member States and the United States of America that require or permit the use of video conferencing technology for purposes other than those described in paragraph 1, including for purposes of identification of persons or objects, or taking of investigative statements. Where not already provided for under applicable treaty or law, a State may permit the use of video conferencing technology in such instances.Article 7Expedited transmission of requestsRequests for mutual legal assistance, and communications related thereto, may be made by expedited means of communications, including fax or e-mail, with formal confirmation to follow where required by the requested State. The requested State may respond to the request by any such expedited means of communication.Article 8Mutual legal assistance to administrative authorities1. Mutual legal assistance shall also be afforded to a national administrative authority, investigating conduct with a view to a criminal prosecution of the conduct, or referral of the conduct to criminal investigation or prosecution authorities, pursuant to its specific administrative or regulatory authority to undertake such investigation. Mutual legal assistance may also be afforded to other administrative authorities under such circumstances. Assistance shall not be available for matters in which the administrative authority anticipates that no prosecution or referral, as applicable, will take place.2. (a) Requests for assistance under this Article shall be transmitted between the central authorities designated pursuant to the bilateral mutual legal assistance treaty in force between the States concerned, or between such other authorities as may be agreed by the central authorities.(b) In the absence of a treaty, requests shall be transmitted between the United States Department of Justice and the Ministry of Justice or, pursuant to Article 15(1), comparable Ministry of the Member State concerned responsible for transmission of mutual legal assistance requests, or between such other authorities as may be agreed by the Department of Justice and such Ministry.3. The Contracting Parties shall take measures to avoid the imposition of extraordinary burdens on requested States through application of this Article. Where extraordinary burdens on a requested State nonetheless result, the Contracting Parties shall immediately consult with a view to facilitating the application of this Article, including the taking of such measures as may be required to reduce pending and future burdens.Article 9Limitations on use to protect personal and other data1. The requesting State may use any evidence or information obtained from the requested State:(a) for the purpose of its criminal investigations and proceedings;(b) for preventing an immediate and serious threat to its public security;(c) in its non-criminal judicial or administrative proceedings directly related to investigations or proceedings:(i) set forth in subparagraph (a); or(ii) for which mutual legal assistance was rendered under Article 8;(d) for any other purpose, if the information or evidence has been made public within the framework of proceedings for which they were transmitted, or in any of the situations described in subparagraphs (a), (b) and (c); and(e) for any other purpose, only with the prior consent of the requested State.2. (a) This Article shall not prejudice the ability of the requested State to impose additional conditions in a particular case where the particular request for assistance could not be complied with in the absence of such conditions. Where additional conditions have been imposed in accordance with this subparagraph, the requested State may require the requesting State to give information on the use made of the evidence or information.(b) Generic restrictions with respect to the legal standards of the requesting State for processing personal data may not be imposed by the requested State as a condition under subparagraph (a) to providing evidence or information.3. Where, following disclosure to the requesting State, the requested State becomes aware of circumstances that may cause it to seek an additional condition in a particular case, the requested State may consult with the requesting State to determine the extent to which the evidence and information can be protected.4. A requested State may apply the use limitation provision of the applicable bilateral mutual legal assistance treaty in lieu of this Article, where doing so will result in less restriction on the use of information and evidence than provided for in this Article.5. Where a bilateral mutual legal assistance treaty in force between a Member State and the United States of America on the date of signature of this Agreement, permits limitation of the obligation to provide assistance with respect to certain tax offences, the Member State concerned may indicate, in its exchange of written instruments with the United States of America described in Article 3(2), that, with respect to such offences, it will continue to apply the use limitation provision of that treaty.Article 10Requesting State's request for confidentialityThe requested State shall use its best efforts to keep confidential a request and its contents if such confidentiality is requested by the requesting State. If the request cannot be executed without breaching the requested confidentiality, the central authority of the requested State shall so inform the requesting State, which shall then determine whether the request should nevertheless be executed.Article 11ConsultationsThe Contracting Parties shall, as appropriate, consult to enable the most effective use to be made of this Agreement, including to facilitate the resolution of any dispute regarding the interpretation or application of this Agreement.Article 12Temporal application1. This Agreement shall apply to offences committed before as well as after it enters into force.2. This Agreement shall apply to requests for mutual legal assistance made after its entry into force. Nevertheless, Articles 6 and 7 shall apply to requests pending in a requested State at the time this Agreement enters into force.Article 13Non-derogationSubject to Article 4(5) and Article 9(2)(b), this Agreement is without prejudice to the invocation by the requested State of grounds for refusal of assistance available pursuant to a bilateral mutual legal assistance treaty, or, in the absence of a treaty, its applicable legal principles, including where execution of the request would prejudice its sovereignty, security, ordre public or other essential interests.Article 14Future bilateral mutual legal assistance treaties with Member StatesThis Agreement shall not preclude the conclusion, after its entry into force, of bilateral Agreements between a Member State and the United States of America consistent with this Agreement.Article 15Designations and notifications1. Where a Ministry other than the Ministry of Justice has been designated under Article 8(2)(b), the European Union shall notify the United States of America of such designation prior to the exchange of written instruments described in Article 3(3) between the Member States and the United States of America.2. The Contracting Parties, on the basis of consultations between them on which national authorities responsible for the investigation and prosecution of offences to designate pursuant to Article 4(3), shall notify each other of the national authorities so designated prior to the exchange of written instruments described in Article 3(2) and (3) between the Member States and the United States of America. The European Union shall, for Member States having no mutual legal assistance treaty with the United States of America, notify the United States of America prior to such exchange of the identity of the central authorities under Article 4(3).3. The Contracting Parties shall notify each other of any limitations invoked under Article 4(4) prior to the exchange of written instruments described in Article 3(2) and (3) between the Member States and the United States of America.Article 16Territorial application1. This Agreement shall apply:(a) to the United States of America;(b) in relation to the European Union, to:- Member States,- territories for whose external relations a Member State has responsibility, or countries that are not Member States for whom a Member State has other duties with respect to external relations, where agreed upon by exchange of diplomatic note between the Contracting Parties, duly confirmed by the relevant Member State.2. The application of this Agreement to any territory or country in respect of which extension has been made in accordance with subparagraph (b) of paragraph 1 may be terminated by either Contracting Party giving six months' written notice to the other Contracting Party through the diplomatic channel, where duly confirmed between the relevant Member State and the United States of America.Article 17ReviewThe Contracting Parties agree to carry out a common review of this Agreement no later than five years after its entry into force. The review shall address in particular the practical implementation of the Agreement and may also include issues such as the consequences of further development of the European Union relating to the subject matter of this Agreement.Article 18Entry into force and termination1. This Agreement shall enter into force on the first day following the third month after the date on which the Contracting Parties have exchanged instruments indicating that they have completed their internal procedures for this purpose. These instruments shall also indicate that the steps specified in Article 3(2) and (3) have been completed.2. Either Contracting Party may terminate this Agreement at any time by giving written notice to the other Party, and such termination shall be effective six months after the date of such notice.In witness whereof the undersigned Plenipotentiaries have signed this AgreementDone at Washington D.C. on the twenty-fifth day of June in the year two thousand and three in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic.Por la Unión Europea/For Den Europæiske Union/Für die Europäische Union/Για την Ευρωπαϊκή Ένωση/For the European Union/Pour l'Union européenne/Per l'Unione europea/Voor de Europese Unie/Pela União Europeia/Euroopan unionin puolesta/På Europeiska unionens vägnar>PIC FILE= "L_2003181EN.004001.TIF">Por los Estados Unidos de América/For Amerikas Forenede Stater/Für die Vereinigten Staaten von Amerika/Για τις Ηνωμένες Πολιτείες της Αμερικής/For the United States of America/Pour les États-Unis d'Amérique/Per gli Stati Uniti d'America/Voor de Verenigde Staten van Amerika/Pelos Estados Unidos da América/Amerikan yhdysvaltojen puolesta/På Amerikas förenta staters vägnar>PIC FILE= "L_2003181EN.004002.TIF">Explanatory Note on the Agreement on Mutual Legal Assistance between the European Union and the United States of AmericaThis note reflects understandings regarding the application of certain provisions of the Agreement on Mutual Legal Assistance between the European Union and the United States of America (hereinafter "the Agreement") agreed between the Contracting Parties.On Article 8With respect to the mutual legal assistance to administrative authorities under Article 8(1), the first sentence of Article 8(1) imposes an obligation to afford mutual legal assistance to requesting United States of America federal administrative authorities and to requesting national administrative authorities of Member States. Under the second sentence of that paragraph mutual legal assistance may also be made available to other, that is non-federal or local, administrative authorities. This provision however, is available at the discretion of the requested State.The Contracting Parties agree that under the first sentence of Article 8(1) mutual legal assistance will be made available to a requesting administrative authority that is, at the time of making the request, conducting investigations or proceedings in contemplation of criminal prosecution or referral of the investigated conduct to the competent prosecuting authorities, within the terms of its statutory mandate, as further described immediately below. The fact that, at the time of making the request referral for criminal prosecution is being contemplated does not exclude that, other sanctions than criminal ones may be pursued by that authority. Thus, mutual legal assistance obtained under Article 8(1) may lead the requesting administrative authority to the conclusion that pursuance of criminal proceedings or criminal referral would not be appropriate. These possible consequences do not affect the obligation upon the Contracting Parties to provide assistance under this Article.However, the requesting administrative authority may not use Article 8(1) to request assistance where criminal prosecution or referral is not being contemplated, or for matters in which the conduct under investigation is not subject to criminal sanction or referral under the laws of the requesting State.The European Union recalls that the subject matter of the Agreement for its part falls under the provisions on police and judicial cooperation in criminal matters set out in Title VI of the Treaty on European Union and that the Agreement has been concluded within the scope of these provisions.On Article 9Article 9(2)(b) is meant to ensure that refusal of assistance on data protection grounds may be invoked only in exceptional cases. Such a situation could arise if, upon balancing the important interests involved in the particular case (on the one hand, public interests, including the sound administration of justice and, on the other hand, privacy interests), furnishing the specific data sought by the requesting State would raise difficulties so fundamental as to be considered by the requested State to fall within the essential interests grounds for refusal. A broad, categorical, or systematic application of data protection principles by the requested State to refuse cooperation is therefore precluded. Thus, the fact the requesting and requested States have different systems of protecting the privacy of data (such as that the requesting State does not have the equivalent of a specialised data protection authority) or have different means of protecting personal data (such as that the requesting State uses means other than the process of deletion to protect the privacy or the accuracy of the personal data received by law enforcement authorities), may as such not be imposed as additional conditions under Article 9(2a).On Article 14Article 14 provides that the Agreement shall not preclude the conclusion, after its entry into force, of bilateral agreements on mutual legal assistance between a Member State and the United States of America consistent with the Agreement.Should any measures set forth in the Agreement create an operational difficulty for the United States of America and one or more Member States, such difficulty should in the first place be resolved, if possible, through consultations between the Member State or Member States concerned and the United States of America, or, if appropriate, through the consultation procedures set out in the Agreement. Where it is not possible to address such operational difficulty through consultations alone, it would be consistent with the Agreement for future bilateral agreements between a Member State and the United States of America to provide an operationally feasible alternative mechanism that would satisfy the objectives of the specific provision with respect to which the difficulty has arisen.

Summary: Agreement with the United States on mutual legal assistance Agreement with the United States on mutual legal assistance SUMMARY OF: Agreement on mutual legal assistance between the EU and the US Decision 2009/820/CFSP on the conclusion on behalf of the EU of the Agreements on extradition and on mutual legal assistance between it and the US Decision 2003/516/EC on the signature of the Agreements between the EU and the US on extradition and mutual legal assistance in criminal matters WHAT IS THE AIM OF THE AGREEMENT AND OF THE DECISION? The agreement sets out conditions relating to the provision of mutual legal assistance in criminal matters between the EU and the US. It seeks to enhance cooperation between EU countries and the US, as a complement to bilateral treaties concluded between EU countries and the US. The decision concludes on behalf of the EU the agreement with the US relating to mutual legal assistance. KEY POINTS EU countries and the US apply the conditions of this framework agreement to their bilateral mutual legal assistance treaties. In the absence of such a treaty, the EU and the US undertake to ensure that the agreement is applied. In the event that existing bilateral treaties between EU countries and the US are not compatible with the agreement, the EU framework should prevail. Mutual legal assistance Regarding bank information, on request of the requesting country, the requested country must promptly identify and communicate information on: whether a natural or legal person, who is suspected of or charged with a criminal offence, has one or more bank accounts;individuals or legal entities that have been convicted of or involved in a criminal offence;information that a non-bank financial institution possesses;financial transactions that are not related to bank accounts. EU countries’ requests for assistance are transmitted by central authorities responsible for mutual legal assistance or by national authorities responsible for investigating or prosecuting criminal offences. The US transmits its requests for assistance via its national authorities responsible for investigating or prosecuting criminal offences and which are specifically designated pursuant to Article 15(2) of the agreement. The requesting country may use an expedited means of communication, such as fax or email, for the transmission of the request request for assistance and the related communications, followed by a formal confirmation if required by the requested country. The requesting country may require the requested country to keep a request for assistance and its contents confidential. The central authority of the requested country must inform the requesting country if it cannot execute the request for assistance without breaching confidentiality. The requesting country must then decide whether the request for assistance should be executed or not. The EU and the US must enable the establishment and operation of joint investigative teams to facilitate criminal investigations or prosecutions between one or more EU countries and the US. The EU and the US must also enable video conferencing between EU countries and the US to take witnesses’ or experts’ testimonies in proceedings. Assistance to administrative authorities Mutual legal assistance must also be provided to national and other administrative authorities, but only when the conduct under investigation will lead to a criminal prosecution or to a referral to criminal investigation or prosecution authorities. Assistance shall not be available for matters in which the administrative authority anticipates that no prosecution or referral, as applicable, will take place. The authorities responsible for transmitting these requests for assistance are designated in accordance with the bilateral mutual legal assistance treaties between the countries concerned. Where such a treaty does not exist, the requests are transmitted between the US Department of Justice and the EU country’s Ministry of Justice or another equivalent ministry that is responsible for transmitting requests for mutual legal assistance. Assistance may not be refused on grounds of bank secrecy. Personal data protection The requesting country may only use the evidence or information transmitted by the requested country for: its criminal investigations and proceedings;protecting its public security against an immediate and serious threat;its non-criminal judicial or administrative proceedings that directly relate to its criminal investigations or proceedings;other purposes, provided that the information or evidence has been made public or the requested country has given its prior consent. The requested country may impose additional conditions limiting the use of the evidence or information in a particular case if, due to the absence of such conditions, it was not able to comply with the particular request for assistance. In such a case, the requested country may require the requesting country to provide information on the use that it makes of the evidence or information. In addition to the above limitations on use to protect personal and other data, the agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offences (EU-US Umbrella Agreement) supplements, where necessary, data protection safeguards in the agreement. Review of the Agreement In line with Article 17 of the Agreement, the EU and the US have conducted a review of the functioning of the agreement in 2015-2016. The conclusion of the review is that, in general terms, the Agreement has been a success. The review process also resulted in recommendations to improve the practical functioning of the EU-US mutual legal assistance relationship, including on better sharing of knowledge among practitioners about each others’ laws and processes and to make better use of technology to speed up the transmission of requests and evidence and general communications. DATE OF ENTRY INTO FORCE The agreement entered into force on 1 February 2010. It was implemented in EU countries by bilateral instruments. BACKGROUND For more information, see: Mutual legal assistance and extradition (European Commission). MAIN DOCUMENTS Agreement on mutual legal assistance between the European Union and the United States of America (OJ L 181, 19.7.2003, pp. 34-42) Council Decision 2009/820/CFSP of 23 October 2009 on the conclusion on behalf of the European Union of the Agreement on extradition between the European Union and the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America (OJ L 291, 7.11.2009, pp. 40-41) Council Decision 2003/516/EC of 6 June 2003 concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual legal assistance in criminal matters (OJ L 181, 19.7.2003, pp. 25-26) RELATED DOCUMENTS Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offences (OJ L 336, 10.12.2016, pp. 3-13) Information concerning the date of entry into force of the Agreements on Extradition and on Mutual Legal Assistance between the European Union and the United States of America (OJ L 323, 10.12.2009, p. 11) last update 16.04.2019


EUR-Lex - 22003A0719(01) - EN Avis juridique important | 22003A0719(01) Agreement on extradition between the European Union and the United States of America Official Journal L 181 , 19/07/2003 P. 0027 - 0033 Agreementon extradition between the European Union and the United States of AmericaCONTENTS>TABLE>THE EUROPEAN UNION AND THE UNITED STATES OF AMERICA,DESIRING further to facilitate cooperation between the European Union Member States and the United States of America,DESIRING to combat crime in a more effective way as a means of protecting their respective democratic societies and common values,HAVING DUE REGARD for rights of individuals and the rule of law,MINDFUL of the guarantees under their respective legal systems which provide for the right to a fair trial to an extradited person, including the right to adjudication by an impartial tribunal established pursuant to law,DESIRING to conclude an Agreement relating to the extradition of offenders,HAVE AGREED AS FOLLOWS:Article 1Object and PurposeThe Contracting Parties undertake, in accordance with the provisions of this Agreement, to provide for enhancements to cooperation in the context of applicable extradition relations between the Member States and the United States of America governing extradition of offenders.Article 2Definitions1. "Contracting Parties" shall mean the European Union and the United States of America.2. "Member State" shall mean a Member State of the European Union.3. "Ministry of Justice" shall, for the United States of America, mean the United States Department of Justice; and for a Member State, its Ministry of Justice, except that with respect to a Member State in which functions described in Articles 3, 5, 6, 8 or 12 are carried out by its Prosecutor General, that body may be designated to carry out such function in lieu of the Ministry of Justice in accordance with Article 19, unless the United States and the Member State concerned agree to designate another body.Article 3Scope of application of this Agreement in relation to bilateral extradition treaties with Member States1. The European Union, pursuant to the Treaty on European Union, and the United States of America shall ensure that the provisions of this Agreement are applied in relation to bilateral extradition treaties between the Member States and the United States of America, in force at the time of the entry into force of this Agreement, under the following terms:(a) Article 4 shall be applied in place of bilateral treaty provisions that authorise extradition exclusively with respect to a list of specified criminal offences;(b) Article 5 shall be applied in place of bilateral treaty provisions governing transmission, certification, authentication or legalisation of an extradition request and supporting documents transmitted by the requesting State;(c) Article 6 shall be applied in the absence of bilateral treaty provisions authorising direct transmission of provisional arrest requests between the United States Department of Justice and the Ministry of Justice of the Member State concerned;(d) Article 7 shall be applied in addition to bilateral treaty provisions governing transmission of extradition requests;(e) Article 8 shall be applied in the absence of bilateral treaty provisions governing the submission of supplementary information; where bilateral treaty provisions do not specify the channel to be used, paragraph 2 of that Article shall also be applied;(f) Article 9 shall be applied in the absence of bilateral treaty provisions authorising temporary surrender of persons being proceeded against or serving a sentence in the requested State;(g) Article 10 shall be applied, except as otherwise specified therein, in place of, or in the absence of, bilateral treaty provisions pertaining to decision on several requests for extradition of the same person;(h) Article 11 shall be applied in the absence of bilateral treaty provisions authorising waiver of extradition or simplified extradition procedures;(i) Article 12 shall be applied in the absence of bilateral treaty provisions governing transit; where bilateral treaty provisions do not specify the procedure governing unscheduled landing of aircraft, paragraph 3 of that Article shall also be applied;(j) Article 13 may be applied by the requested State in place of, or in the absence of, bilateral treaty provisions governing capital punishment;(k) Article 14 shall be applied in the absence of bilateral treaty provisions governing treatment of sensitive information in a request.2. (a) The European Union, pursuant to the Treaty on European Union, shall ensure that each Member State acknowledges, in a written instrument between such Member State and the United States of America, the application, in the manner set forth in this Article, of its bilateral extradition treaty in force with the United States of America.(b) The European Union, pursuant to the Treaty on European Union, shall ensure that new Member States acceding to the European Union after the entry into force of this Agreement and having bilateral extradition treaties with the United States of America, take the measures referred to in subparagraph (a).(c) The Contracting Parties shall endeavour to complete the process described in subparagraph (b) prior to the scheduled accession of a new Member State, or as soon as possible thereafter. The European Union shall notify the United States of America of the date of accession of new Member States.3. If the process described in paragraph 2(b) is not completed by the date of accession, the provisions of this Agreement shall apply in the relations between that new Member State and the United States of America as from the date on which they have notified each other and the European Union of the completion of their internal procedures for that purpose.Article 4Extraditable offences1. An offence shall be an extraditable offence if it is punishable under the laws of the requesting and requested States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty. An offence shall also be an extraditable offence if it consists of an attempt or conspiracy to commit, or participation in the commission of, an extraditable offence. Where the request is for enforcement of the sentence of a person convicted of an extraditable offence, the deprivation of liberty remaining to be served must be at least four months.2. If extradition is granted for an extraditable offence, it shall also be granted for any other offence specified in the request if the latter offence is punishable by one year's deprivation of liberty or less, provided that all other requirements for extradition are met.3. For the purposes of this Article, an offence shall be considered an extraditable offence:(a) regardless of whether the laws in the requesting and requested States place the offence within the same category of offences or describe the offence by the same terminology;(b) regardless of whether the offence is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court; and(c) in criminal cases relating to taxes, customs duties, currency control and the import or export of commodities, regardless of whether the laws of the requesting and requested States provide for the same kinds of taxes, customs duties, or controls on currency or on the import or export of the same kinds of commodities.4. If the offence has been committed outside the territory of the requesting State, extradition shall be granted, subject to the other applicable requirements for extradition, if the laws of the requested State provide for the punishment of an offence committed outside its territory in similar circumstances. If the laws of the requested State do not provide for the punishment of an offence committed outside its territory in similar circumstances, the executive authority of the requested State, at its discretion, may grant extradition provided that all other applicable requirements for extradition are met.Article 5Transmission and authentication of documents1. Requests for extradition and supporting documents shall be transmitted through the diplomatic channel, which shall include transmission as provided for in Article 7.2. Documents that bear the certificate or seal of the Ministry of Justice, or Ministry or Department responsible for foreign affairs, of the requesting State shall be admissible in extradition proceedings in the requested State without further certification, authentication, or other legalisation.Article 6Transmission of requests for provisional arrestRequests for provisional arrest may be made directly between the Ministries of Justice of the requesting and requested States, as an alternative to the diplomatic channel. The facilities of the International Criminal Police Organisation (Interpol) may also be used to transmit such a request.Article 7Transmission of documents following provisional arrest1. If the person whose extradition is sought is held under provisional arrest by the requested State, the requesting State may satisfy its obligation to transmit its request for extradition and supporting documents through the diplomatic channel pursuant to Article 5(1), by submitting the request and documents to the Embassy of the requested State located in the requesting State. In that case, the date of receipt of such request by the Embassy shall be considered to be the date of receipt by the requested State for purposes of applying the time limit that must be met under the applicable extradition treaty to enable the person's continued detention.2. Where a Member State on the date of signature of this Agreement, due to the established jurisprudence of its domestic legal system applicable at such date, cannot apply the measures referred to in paragraph 1, this Article shall not apply to it, until such time as that Member State and the United States of America, by exchange of diplomatic note, agree otherwise.Article 8Supplemental information1. The requested State may require the requesting State to furnish additional information within such reasonable length of time as it specifies, if it considers that the information furnished in support of the request for extradition is not sufficient to fulfil the requirements of the applicable extradition treaty.2. Such supplementary information may be requested and furnished directly between the Ministries of Justice of the States concerned.Article 9Temporary surrender1. If a request for extradition is granted in the case of a person who is being proceeded against or is serving a sentence in the requested State, the requested State may temporarily surrender the person sought to the requesting State for the purpose of prosecution.2. The person so surrendered shall be kept in custody in the requesting State and shall be returned to the requested State at the conclusion of the proceedings against that person, in accordance with the conditions to be determined by mutual agreement of the requesting and requested States. The time spent in custody in the territory of the requesting State pending prosecution in that State may be deducted from the time remaining to be served in the requested State.Article 10Requests for extradition or surrender made by several States1. If the requested State receives requests from the requesting State and from any other State or States for the extradition of the same person, either for the same offence or for different offences, the executive authority of the requested State shall determine to which State, if any, it will surrender the person.2. If a requested Member State receives an extradition request from the United States of America and a request for surrender pursuant to the European arrest warrant for the same person, either for the same offence or for different offences, the competent authority of the requested Member State shall determine to which State, if any, it will surrender the person. For this purpose, the competent authority shall be the requested Member State's executive authority if, under the bilateral extradition treaty in force between the United States and the Member State, decisions on competing requests are made by that authority; if not so provided in the bilateral extradition treaty, the competent authority shall be designated by the Member State concerned pursuant to Article 19.3. In making its decision under paragraphs 1 and 2, the requested State shall consider all of the relevant factors, including, but not limited to, factors already set forth in the applicable extradition treaty, and, where not already so set forth, the following:(a) whether the requests were made pursuant to a treaty;(b) the places where each of the offences was committed;(c) the respective interests of the requesting States;(d) the seriousness of the offences;(e) the nationality of the victim;(f) the possibility of any subsequent extradition between the requesting States; and(g) the chronological order in which the requests were received from the requesting States.Article 11Simplified extradition proceduresIf the person sought consents to be surrendered to the requesting State, the requested State may, in accordance with the principles and procedures provided for under its legal system, surrender the person as expeditiously as possible without further proceedings. The consent of the person sought may include agreement to waiver of protection of the rule of specialty.Article 12Transit1. A Member State may authorise transportation through its territory of a person surrendered to the United States of America by a third State, or by the United States of America to a third State. The United States of America may authorise transportation through its territory of a person surrendered to a Member State by a third State, or by a Member State to a third State.2. A request for transit shall be made through the diplomatic channel or directly between the United States Department of Justice and the Ministry of Justice of the Member State concerned. The facilities of Interpol may also be used to transmit such a request. The request shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit shall be detained in custody during the period of transit.3. Authorisation is not required when air transportation is used and no landing is scheduled on the territory of the transit State. If an unscheduled landing does occur, the State in which the unscheduled landing occurs may require a request for transit pursuant to paragraph 2. All measures necessary to prevent the person from absconding shall be taken until transit is effected, as long as the request for transit is received within 96 hours of the unscheduled landing.Article 13Capital punishmentWhere the offence for which extradition is sought is punishable by death under the laws in the requesting State and not punishable by death under the laws in the requested State, the requested State may grant extradition on the condition that the death penalty shall not be imposed on the person sought, or if for procedural reasons such condition cannot be complied with by the requesting State, on condition that the death penalty if imposed shall not be carried out. If the requesting State accepts extradition subject to conditions pursuant to this Article, it shall comply with the conditions. If the requesting State does not accept the conditions, the request for extradition may be denied.Article 14Sensitive information in a requestWhere the requesting State contemplates the submission of particularly sensitive information in support of its request for extradition, it may consult the requested State to determine the extent to which the information can be protected by the requested State. If the requested State cannot protect the information in the manner sought by the requesting State, the requesting State shall determine whether the information shall nonetheless be submitted.Article 15ConsultationsThe Contracting Parties shall, as appropriate, consult to enable the most effective use to be made of this Agreement, including to facilitate the resolution of any dispute regarding the interpretation or application of this Agreement.Article 16Temporal application1. This Agreement shall apply to offences committed before as well as after it enters into force.2. This Agreement shall apply to requests for extradition made after its entry into force. Nevertheless, Articles 4 and 9 shall apply to requests pending in a requested State at the time this Agreement enters into force.Article 17Non-derogation1. This Agreement is without prejudice to the invocation by the requested State of grounds for refusal relating to a matter not governed by this Agreement that is available pursuant to a bilateral extradition treaty in force between a Member State and the United States of America.2. Where the constitutional principles of, or final judicial decisions binding upon, the requested State may pose an impediment to fulfilment of its obligation to extradite, and resolution of the matter is not provided for in this Agreement or the applicable bilateral treaty, consultations shall take place between the requested and requesting States.Article 18Future bilateral extradition treaties with Member StatesThis Agreement shall not preclude the conclusion, after its entry into force, of bilateral Agreements between a Member State and the United States of America consistent with this Agreement.Article 19Designation and notificationThe European Union shall notify the United States of America of any designation pursuant to Article 2(3) and Article 10(2), prior to the exchange of written instruments described in Article 3(2) between the Member States and the United States of America.Article 20Territorial application1. This Agreement shall apply:(a) to the United States of America;(b) in relation to the European Union to:- Member States,- territories for whose external relations a Member State has responsibility, or countries that are not Member States for whom a Member State has other duties with respect to external relations, where agreed upon by exchange of diplomatic note between the Contracting Parties, duly confirmed by the relevant Member State.2. The application of this Agreement to any territory or country in respect of which extension has been made in accordance with subparagraph (b) of paragraph 1 may be terminated by either Contracting Party giving six months' written notice to the other Contracting Party through the diplomatic channel, where duly confirmed between the relevant Member State and the United States of America.Article 21ReviewThe Contracting Parties agree to carry out a common review of this Agreement as necessary, and in any event no later than five years after its entry into force. The review shall address in particular the practical implementation of the Agreement and may also include issues such as the consequences of further development of the European Union relating to the subject matter of this Agreement, including Article 10.Article 22Entry into force and termination1. This Agreement shall enter into force on the first day following the third month after the date on which the Contracting Parties have exchanged instruments indicating that they have completed their internal procedures for this purpose. These instruments shall also indicate that the steps specified in Article 3(2) have been completed.2. Either Contracting Party may terminate this Agreement at any time by giving written notice to the other Party, and such termination shall be effective six months after the date of such notice.In witness whereof the undersigned Plenipotentiaries have signed this AgreementDone at Washington DC on the twenty-fifth day of June in the year two thousand and three in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic.Por la Unión Europea/For Den Europæiske Union/Für die Europäische Union/Για την Ευρωπαϊκή Ένωση/For the European Union/Pour l'Union européenne/Per l'Unione europea/Voor de Europese Unie/Pela União Europeia/Euroopan unionin puolesta/På Europeiska unionens vägnar>PIC FILE= "L_2003181EN.003201.TIF">Por los Estados Unidos de América/For Amerikas Forenede Stater/Für die Vereinigten Staaten von Amerika/Για τις Ηνωμένες Πολιτείες της Αμερικής/For the United States of America/Pour les États-Unis d'Amérique/Per gli Stati Uniti d'America/Voor de Verenigde Staten van Amerika/Pelos Estados Unidos da América/Amerikan yhdysvaltojen puolesta/På Amerikas förenta staters vägnar>PIC FILE= "L_2003181EN.003202.TIF">Explanatory Note on the Agreement on Extradition between the European Union and the United States of AmericaThis Explanatory Note reflects understandings regarding the application of certain provisions of the Agreement on Extradition between the European Union and the United States of America (hereinafter "the Agreement") agreed between the Contracting Parties.On Article 10Article 10 is not intended to affect the obligations of States Parties to the Rome Statute of the International Criminal Court, nor to affect the rights of the United States of America as a non-Party with regard to the International Criminal Court.On Article 18Article 18 provides that the Agreement shall not preclude the conclusion, after its entry into force, of bilateral agreements on extradition between a Member State and the United States of America consistent with the Agreement.Should any measures set forth in the Agreement create an operational difficulty for either one or more Member States or the United States of America, such difficulty should in the first place be resolved, if possible, through consultations between the Member State or Member States concerned and the United States of America, or, if appropriate, through the consultation procedures set out in this Agreement. Where it is not possible to address such operational difficulty through consultations alone, it would be consistent with the Agreement for future bilateral agreements between the Member State or Member States and the United States of America to provide an operationally feasible alternative mechanism that would satisfy the objectives of the specific provision with respect to which the difficulty has arisen.

Summary: Agreement with the United States on extradition Agreement with the United States on extradition SUMMARY OF: Agreement on extradition between the European Union and the USA Decision 2009/820/CFSP on the conclusion of the Agreements on extradition and on mutual legal assistance between the EU and the USA Decision 2003/516/EC on the signing of the Agreements on extradition and mutual legal assistance in criminal matters between the EU and the USA WHAT IS THE AIM OF THE AGREEMENT AND OF THE DECISION? The agreement lays down the conditions relating to the extradition of offenders between the EU and the US with a view to improving cooperation within their applicable extradition relations. The decision concludes on behalf of the EU the agreement with the US on extradition. KEY POINTS The agreement supplements the bilateral extradition treaties between EU countries and the US and enhances cooperation in the context of applicable extradition relations. Extraditable offencesExtraditable offences consist of: offences that are punishable by deprivation of liberty for a maximum period (more than 1 year) or by a more severe penalty under the laws of both the requesting and requested country; an attempt to commit or participation in the commission of such an offence. If the requested country grants extradition for an extraditable offence, it must also grant extradition for any other offence included in the request, provided that the other offence is punishable by deprivation of liberty for up to one year and that all the other requirements for extradition are fulfilled. Extradition requests The requesting country transmits its requests for extradition and any supporting documents via the diplomatic channel. These documents need not be authenticated further if they bear the certificate or seal of the requesting country’s Ministry of Justice or Ministry or Department responsible for foreign affairs. The requesting country may transmit requests for provisional arrest via the Ministries of Justice, instead of using the diplomatic channel. These requests may also be transmitted via the International Criminal Police Organization (Interpol). When the requesting country seeking the extradition of a person who already is under provisional arrest in the requested country, it may submit its request directly to the requested country’s embassy located on its territory. If the requested country deems the information provided in the request for extradition is insufficient for carrying it out, it may require the requesting country to submit additional information. Requests for and transmissions of additional information may be done directly between the Ministries of Justice. Extradition procedures The requested country may temporarily surrender a person who is being proceeded against or who is serving a sentence to the requesting country for prosecution. When several countries request the extradition of the same person for the same or different offences, the requested country’s executive authority decides to which country that person will be surrendered. Similarly, if the US submits an extradition request for a person whose surrender has also been requested pursuant to the European arrest warrant (EAW) for the same or different offences, the requested EU country’s competent authority decides to which country the person will be surrendered. However, when the extradition request from the US is addressed to an EU country which has rules in place granting its own nationals protection against extradition and the request concerns a national of another EU country, the executing judicial authority must inform the EU country of which the citizen in question is a national, and, where applicable, surrender the person to that country pursuant to its EAW, in accordance with the judgment of the Court of Justice in Case C-182/15 Petruhhin. Article 18 TFEU and Article 21 TFEU must be interpreted as meaning that, when an EU country to which an EU citizen, a national of another EU country, has moved receives an extradition request from a non-EU country with which the first EU country has concluded an extradition agreement, it must inform the EU country of which the citizen in question is a national and, should that country so request, surrender that citizen to it, in accordance with Council Framework Decision 2002/584/JHA provided that that EU country has jurisdiction, pursuant to its national law, to prosecute that person for offences committed outside its national territory. Where an EU country receives a request from a non-EU country seeking the extradition of a national of another EU country, that first EU country must verify that the extradition will not prejudice the rights referred to in Article 19 of the Charter of Fundamental Rights of the European Union. Consequently, the Court of Justice clarified in its judgment in Case C-191/16 Pisciotti: ‘In a case in which an EU citizen who has been the subject of a request for extradition to the US under the agreement on extradition between the EU and the US has been arrested in an EU country other than the country of which he is a national, for the purposes of potentially acceding to that request, Articles 18 and 21 TFEU must be interpreted as not precluding the requested EU country from drawing a distinction, on the basis of a rule of constitutional law, between its nationals and the nationals of other EU countries and from granting that extradition whilst not permitting extradition of its own nationals, provided that the requested EU country has already put the competent authorities of the EU country of which the citizen is a national in a position to seek the surrender of that citizen pursuant to a EAW and the latter EU country has not taken any action in that regard.’ Moreover, the Court of Justice held in its judgment in Case C-247/17 Raugevicius: ‘Articles 18 and 21 TFEU must be interpreted as meaning that, where an extradition request has been made by a non-EU country for an EU citizen who has exercised his right to free movement, not for the purpose of prosecution, but for the purpose of enforcing a custodial sentence, the requested EU country, whose national law prohibits the extradition of its own nationals out of the EU for the purpose of enforcing a sentence and makes provision for the possibility that such a sentence pronounced abroad may be served on its territory, is required to ensure that that EU citizen, provided that he resides permanently in its territory, receives the same treatment as that accorded to its own nationals in relation to extradition.’ The requested country may use simplified extradition procedures, that is surrender a person without delay and further proceedings, when the person concerned consents to being surrendered. EU countries and the US may allow for the transit through their territories of a person surrendered to or by one or the other and a third country. Requests for transit may be made via the diplomatic channel, directly between the US Department of Justice and the EU country’s Ministry of Justice or via Interpol. No authorisation is needed for air transportation, provided that no landing is scheduled onto the territory of the transit country. In the case of an unscheduled landing, the country in question may require a request for transit. The requested country may grant extradition for an offence that is punishable by death under the laws of the requesting country but not under its own laws on condition that: the death penalty will not be imposed;if the death penalty is imposed, it will not be carried out. Decision 2009/933/CFSP extends the territorial scope of the agreement on extradition between the EU and the US to the Netherlands Antilles and Aruba. DATE OF ENTRY INTO FORCE The agreement entered into force on 1 February 2010. BACKGROUND For more information, see: Mutual legal assistance and extradition (European Commission). MAIN DOCUMENTS Agreement on extradition between the European Union and the United States of America (OJ L 181, 19.7.2003, pp. 27-33) Council Decision 2009/820/CFSP of 23 October 2009 on the conclusion on behalf of the European Union of the Agreement on extradition between the European Union and the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America (OJ L 291, 7.11.2009, pp. 40-41) Council Decision 2003/516/EC of 6 June 2003 concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual legal assistance in criminal matters (OJ L 181, 19.7.2003, pp. 25-26) RELATED DOCUMENTS Council Decision 2009/933/CFSP of 30 November 2009 on the extension, on behalf of the European Union, of the territorial scope of the Agreement on extradition between the European Union and the United States of America (OJ L 325, 11.12.2009, pp. 4-5) Information concerning the date of entry into force of the Agreements on Extradition and on Mutual Legal Assistance between the European Union and the United States of America (OJ L 323, 10.12.2009, p. 11) Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States — Statements made by certain Member States on the adoption of the Framework Decision (OJ L 190, 18.7.2002, pp. 1-20) Successive amendments to Decision 2002/584/JHA have been incorporated into the original text. This consolidated version is of documentary value only. last update 05.12.2019


EUR-Lex - 32003R1185 - EN Avis juridique important | 32003R1185 Council Regulation (EC) No 1185/2003 of 26 June 2003 on the removal of fins of sharks on board vessels Official Journal L 167 , 04/07/2003 P. 0001 - 0003 Council Regulation (EC) No 1185/2003of 26 June 2003on the removal of fins of sharks on board vesselsTHE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 37 thereof,Having regard to the proposal from the Commission(1),Having regard to the opinion of the European Parliament(2),Whereas:(1) According to Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy(3), the Common Fisheries Policy shall ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions, and the Council is to establish Community measures governing access to waters and resources and the sustainable pursuit of fishing activities.(2) Fish belonging to the taxon Elasmobranchii, which includes sharks, skates, rays and similar species are generally very vulnerable to exploitation due to their life-cycle characteristics. Most of these species are often caught as by-catch in Community fishing activities directed to other more valuable species.(3) Current scientific knowledge, generally based on the examination of catch rates, indicates that many stocks of sharks are seriously under threat.(4) Until more is known about the population dynamics of sharks and their response to exploitation, which would allow the drafting of well-tailored and comprehensive management plans, any measure preventing the development of unsustainable practices or leading to decreased exploitation of sharks will have positive effects on their conservation.(5) The practice of "shark finning", whereby the fins are removed from sharks, with the remainder of the shark being discarded at sea, may contribute to the excessive mortality of sharks to such an extent that many stocks of sharks are depleted, and their future sustainability may be endangered.(6) Measures to restrict or prevent the further development of the practice of shark finning are urgently required, and the removal of shark fins on board vessels should therefore be prohibited. In view of the practical difficulties involved in the identification of species based on removed fins, this prohibition should apply to all Elasmobranchii, except for the removal of ray wings.(7) However, the removal of fins from dead sharks on board may be allowed if the removal aims at a more efficient use of all shark parts by the separate processing on board of fins and of the remaining parts of the sharks. In this case, the flag Member State should issue and manage, with associated conditions, a special fishing permit in accordance with Council Regulation (EC) No 1627/94 of 27 June 1994 laying down general provisions concerning special fishing permits(4).(8) In order to ensure that all the remaining parts of sharks are kept on board, after the removal of fins, masters of vessels which hold a valid special fishing permit should keep records of the amounts of shark fins and of the remaining parts of sharks after evisceration and beheading. Such records should be kept in the logbook as provided for by Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy(5), or in a special register as appropriate.(9) The problems resulting from the practice of shark finning extend well beyond Community waters. It is appropriate that the Community shows equal commitment towards stock conservation in all maritime waters. This Regulation should therefore be applicable to all Community vessels.(10) In accordance with the principle of proportionality, it is necessary and appropriate for the achievement of the basic objective of conservation of shark stocks to lay down rules on the removal of shark fins on board vessels. This Regulation does not go beyond what is necessary in order to achieve the objectives pursued in accordance with the third paragraph of Article 5 of the Treaty,HAS ADOPTED THIS REGULATION:Article 1ScopeThis Regulation shall apply to the removal of shark fins, retention on board, transhipment and landing of sharks or shark fins:1. by vessels in maritime waters under the sovereignty or the jurisdiction of Member States;2. by vessels flying the flag or registered in Member States in other maritime waters.Article 2DefinitionsFor the purposes of this Regulation, the following definitions shall apply:1. "shark fins" means any fins of sharks including caudal fins, but excluding the pectoral fins of rays, which are a constituent part of raywings;2. "shark" means any fish of the taxon Elasmobranchii;3. "special fishing permit" means a prior fishing authorisation issued and managed in accordance with Regulation (EC) No 1627/94.Article 3Prohibitions1. It shall be prohibited to remove shark fins on board vessels, and to retain on board, tranship or land shark fins.2. It shall be prohibited to purchase, offer for sale or sell shark fins which have been removed on board, retained on board, transhipped or landed in contravention of this Regulation.Article 4Derogation and associated conditions1. By way of derogation from Article 3(1), and subject to paragraphs 2, 3, 4 and 5 of this Article, it may be allowed to remove shark fins from dead sharks on board and to retain on board, tranship or land shark fins with regard to vessels which hold a special fishing permit.2. Such a special fishing permit shall only be issued to fishing vessels where a capacity to use all parts of sharks has been demonstrated and where the need for the separate processing on board of shark fins and the remaining parts of sharks has been justified.3. It shall be prohibited to discard at sea the remaining parts of sharks after removal of the shark fins, except those parts resulting from basic processing operations, such as beheading, gutting and skinning.4. The weight of the fins kept from the catch shall never exceed the theoretical weight of the fins that would correspond to the remaining parts of sharks retained on board, transhipped or landed.5. For the purpose of controlling the application of paragraph 4, the theoretical correspondence between weights of fins and bodies shall be established by Member States, taking into account the type of fishery, the species composition and the type of processing and storage. In no case shall the theoretical weight of the fins exceed 5 % of the live weight of the shark catch.Article 5Records1. Masters of vessels which hold a valid special fishing permit shall keep records of the weight of shark fins and the remaining parts of sharks retained on board, transhipped or landed.These records shall be kept in the logbook established by Article 6(1) of Regulation (EEC) No 2847/93, where applicable. For those vessels not subject to Article 6(1) of that Regulation, these records shall be kept in a special register to be provided by the competent authority issuing the special fishing permit.When the shark catch is not landed as a whole, masters of vessels shall complete the logbook records with valid documentation on landings, transhipments and sales of shark fins or remaining parts of sharks.The Member States shall define the type of documentation which is deemed valid for this purpose and check systematically the logbook records.2. In order to facilitate the control of landings by the port authorities and the documentation referred to in paragraph 1, masters of vessels, or their representatives, who hold a valid special fishing permit and who intend to land shark fins or remaining parts of sharks outside Community ports, shall notify the authorities of the flag State and the competent authorities of the State whose ports or landing facilities they want to use, at least 72 hours before the estimated time of arrival at the port of landing, of the catches retained on board, the catches intended for landing and their estimated time of arrival at the port.Article 6Reports and Review1. Member States shall send the Commission, by 1 May at the latest, a comprehensive annual report on the implementation of this Regulation during the previous year. The report shall describe the monitoring of compliance of vessels with the requirements of Articles 3, 4 and 5 and shall detail in particular the number of special permits issued, the technical basis for setting the theoretical correspondence between weights of fins and bodies and the documentation considered valid for the purposes of monitoring separate landings of fins and bodies.2. After the submission by Member States of their second annual report, the Commission shall no later than 1 January 2006 report to the European Parliament and the Council on the operation of this Regulation and the international developments in this field, and submit, if appropriate, any amendment to this Regulation. Where the proposed amendments would affect the theoretical correspondence between weights of fins and bodies, these amendments shall be made in the light of the advice of the Scientific, Technical and Economic Committee for Fisheries.Article 7Entry into forceThis Regulation shall enter into force on the 60th day following that of its publication in the Official Journal of the European Union.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Luxembourg, 26 June 2003.For the CouncilThe PresidentG. Drys(1) OJ C 331 E, 31.12.2002, p. 121.(2) Opinion delivered on 27 March 2003 (not yet published in the Official Journal).(3) OJ L 358, 31.12.2002, p. 59.(4) OJ L 171, 6.7.1994, p. 7.(5) OJ L 261, 20.10.1993, p. 1. Regulation as last amended by Regulation (EC) No 806/2003 (OJ L 122, 16.5.2003, p. 1).

Summary: Removal of shark fins Removal of shark fins SUMMARY OF: Regulation (EC) No 1185/2003 on the removal of fins of sharks on board vessels WHAT IS THE AIM OF THE REGULATION? It aims to ban the practice of shark finning whereby a shark’s fins are removed and the remainder of the shark is discarded at sea. The regulation was amended by Regulation (EU) No 605/2013 to remove exemptions to the ban. KEY POINTS Scope The regulation applies to: all fishing vessels operating in EU waters; EU vessels operating outside those maritime waters falling within the sovereignty of the EU countries. It prohibits: the removal of shark fins* on board vessels and their retention on board, transshipment* or landing; the purchase or sale of shark fins which have been removed on board, retained on board, transshipped or landed in contravention of the regulation. This prohibition applies to fish belonging to the taxon Elasmobranchii (which includes sharks, skates, rays and similar species), except for the removal of ray wings. Conditions To facilitate on-board storage, fins may be partially sliced through and folded against the carcass, but must not be removed from the carcass before landing. Reporting Under this regulation, the country under whose flag the vessel is fishing, in accordance with the EU fisheries control system, must send the European Commission an annual report on the compliance with the regulation including: the number of landings of sharks; the number, date and place of the inspections that have been carried out; the number and nature of cases of non-compliance detected, including a full identification of the vessel(s) involved and the penalty applied for each case of non-compliance; and the total landings by species (weight/number) and by port. In 2016, the Commission published a report on the operation of the regulation following its amendment in 2013, and on the international developments in this field. FROM WHEN DOES THE REGULATION APPLY? It has applied since 2 September 2003. BACKGROUND The EU’s fisheries control system (European Commission). KEY TERMS Shark fins: any fins of sharks including caudal fins, but excluding the pectoral fins of rays, which are a constituent part of raywings. Transshipment: the transfer of a catch from a smaller fishing boat to a larger one which then incorporates it into a larger batch for shipment. MAIN DOCUMENT Council Regulation (EC) No 1185/2003 of 26 June 2003 on the removal of fins of sharks on board vessels (OJ L 167, 4.7.2003, pp. 1-3) Successive amendments to Regulation (EC) No 1185/2003 have been incorporated into the original text. This consolidated version is of documentary value only. RELATED DOCUMENT Report from the Commission to the European Parliament and the Council on the operation of Council Regulation (EC) No 1185/2003 on the removal of fins of sharks on board vessels, as amended by Regulation (EU) No 605/2013, and on the international developments in this field (COM(2016) 207 final, 15.4.2016) last update 20.09.2019