29.5.2009 EN Official Journal of the European Union L 133/1 COUNCIL DECISION of 26 February 2009 on the signing on behalf of the European Community of the Convention on Choice of Court Agreements (2009/397/EC) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 61(c) in conjunction with the first sentence of the second paragraph of Article 300 thereof, Having regard to the proposal from the Commission, Whereas: (1) The Community is working towards the establishment of a common judicial area based on the principle of mutual recognition of judicial decisions. (2) The Convention on Choice of Court Agreements concluded on 30 June 2005 under The Hague Conference on Private International Law, (hereinafter referred to as the Convention) makes a valuable contribution to promoting party autonomy in international commercial transactions and increasing the predictability of judicial solutions in such transactions. (3) The Convention affects Community secondary legislation on jurisdiction based on choice by the parties and the recognition and enforcement of the resulting judgments, in particular Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1). (4) The Community has exclusive competence in all matters governed by the Convention. (5) Article 30 of the Convention allows the Community to sign, accept, approve or accede to the Convention. (6) The United Kingdom and Ireland are taking part in the adoption and application of this Decision. (7) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Decision and is not bound by it nor subject to its application. (8) The Convention should be signed and the attached declaration be approved, HAS DECIDED AS FOLLOWS: Article 1 The signing of the Convention on Choice of Court Agreements concluded at The Hague on 30 June 2005 is hereby approved on behalf of the European Community, subject to the conclusion of the Convention at a later date. The text of the Convention is attached to this Decision as Annex I. Article 2 The President of the Council is hereby authorised to designate the person(s) empowered to sign the Convention on behalf of the Community and to make the declaration set out in Annex II to this Decision. Article 3 This Decision shall be published in the Official Journal of the European Union. Done at Brussels, 26 February 2009. For the Council The President I. LANGER (1) OJ L 12, 16.1.2001, p. 1. ANNEX I CONVENTION ON CHOICE OF COURT AGREEMENTS The States Parties to the present Convention, Desiring to promote international trade and investment through enhanced judicial cooperation, Believing that such cooperation can be enhanced by uniform rules on jurisdiction and on recognition and enforcement of foreign judgments in civil or commercial matters, Believing that such enhanced cooperation requires in particular an international legal regime that provides certainty and ensures the effectiveness of exclusive choice of court agreements between parties to commercial transactions and that governs the recognition and enforcement of judgments resulting from proceedings based on such agreements, Have resolved to conclude this Convention and have agreed upon the following provisions: CHAPTER I SCOPE AND DEFINITIONS Article 1 Scope 1. This Convention shall apply in international cases to exclusive choice of court agreements concluded in civil or commercial matters. 2. For the purposes of Chapter II, a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State. 3. For the purposes of Chapter III, a case is international where recognition or enforcement of a foreign judgment is sought. Article 2 Exclusions from scope 1. This Convention shall not apply to exclusive choice of court agreements: (a) to which a natural person acting primarily for personal, family or household purposes (a consumer) is a party; (b) relating to contracts of employment, including collective agreements. 2. This Convention shall not apply to the following matters: (a) the status and legal capacity of natural persons; (b) maintenance obligations; (c) other family law matters, including matrimonial property regimes and other rights or obligations arising out of marriage or similar relationships; (d) wills and succession; (e) insolvency, composition and analogous matters; (f) the carriage of passengers and goods; (g) marine pollution, limitation of liability for maritime claims, general average, and emergency towage and salvage; (h) anti-trust (competition) matters; (i) liability for nuclear damage; (j) claims for personal injury brought by or on behalf of natural persons; (k) tort or delict claims for damage to tangible property that do not arise from a contractual relationship; (l) rights in rem in immovable property, and tenancies of immovable property; (m) the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs; (n) the validity of intellectual property rights other than copyright and related rights; (o) infringement of intellectual property rights other than copyright and related rights, except where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract; (p) the validity of entries in public registers. 3. Notwithstanding paragraph 2, proceedings are not excluded from the scope of this Convention where a matter excluded under that paragraph arises merely as a preliminary question and not as an object of the proceedings. In particular, the mere fact that a matter excluded under paragraph 2 arises by way of defence does not exclude proceedings from the Convention, if that matter is not an object of the proceedings. 4. This Convention shall not apply to arbitration and related proceedings. 5. Proceedings are not excluded from the scope of this Convention by the mere fact that a State, including a government, a governmental agency or any person acting for a State, is a party thereto. 6. Nothing in this Convention shall affect privileges and immunities of States or of international organisations, in respect of themselves and of their property. Article 3 Exclusive choice of court agreements For the purposes of this Convention: (a) ‘exclusive choice of court agreement’ means an agreement concluded by two or more parties that meets the requirements of paragraph (c) and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts; (b) a choice of court agreement which designates the courts of one Contracting State or one or more specific courts of one Contracting State shall be deemed to be exclusive unless the parties have expressly provided otherwise; (c) an exclusive choice of court agreement must be concluded or documented: (i) in writing; or (ii) by any other means of communication which renders information accessible so as to be usable for subsequent reference; (d) an exclusive choice of court agreement that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. The validity of the exclusive choice of court agreement cannot be contested solely on the ground that the contract is not valid. Article 4 Other definitions 1. In this Convention, ‘judgment’ means any decision on the merits given by a court, whatever it may be called, including a decree or order, and a determination of costs or expenses by the court (including an officer of the court), provided that the determination relates to a decision on the merits which may be recognised or enforced under this Convention. An interim measure of protection is not a judgment. 2. For the purposes of this Convention, an entity or person other than a natural person shall be considered to be resident in the State: (a) where it has its statutory seat; (b) under whose law it was incorporated or formed; (c) where it has its central administration; or (d) where it has its principal place of business. CHAPTER II JURISDICTION Article 5 Jurisdiction of the chosen court 1. The court or courts of a Contracting State designated in an exclusive choice of court agreement shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of that State. 2. A court that has jurisdiction under paragraph 1 shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State. 3. The preceding paragraphs shall not affect rules: (a) on jurisdiction related to subject matter or to the value of the claim; (b) on the internal allocation of jurisdiction among the courts of a Contracting State. However, where the chosen court has discretion as to whether to transfer a case, due consideration should be given to the choice of the parties. Article 6 Obligations of a court not chosen A court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless: (a) the agreement is null and void under the law of the State of the chosen court; (b) a party lacked the capacity to conclude the agreement under the law of the State of the court seised; (c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised; (d) for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed; or (e) the chosen court has decided not to hear the case. Article 7 Interim measures of protection Interim measures of protection are not governed by this Convention. This Convention neither requires nor precludes the grant, refusal or termination of interim measures of protection by a court of a Contracting State and does not affect whether or not a party may request or a court should grant, refuse or terminate such measures. CHAPTER III RECOGNITION AND ENFORCEMENT Article 8 Recognition and enforcement 1. A judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced in other Contracting States in accordance with this Chapter. Recognition or enforcement may be refused only on the grounds specified in this Convention. 2. Without prejudice to such review as is necessary for the application of the provisions of this Chapter, there shall be no review of the merits of the judgment given by the court of origin. The court addressed shall be bound by the findings of fact on which the court of origin based its jurisdiction, unless the judgment was given by default. 3. A judgment shall be recognised only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin. 4. Recognition or enforcement may be postponed or refused if the judgment is the subject of review in the State of origin or if the time limit for seeking ordinary review has not expired. A refusal does not prevent a subsequent application for recognition or enforcement of the judgment. 5. This Article shall also apply to a judgment given by a court of a Contracting State pursuant to a transfer of the case from the chosen court in that Contracting State as permitted by Article 5(3). However, where the chosen court had discretion as to whether to transfer the case to another court, recognition or enforcement of the judgment may be refused against a party who objected to the transfer in a timely manner in the State of origin. Article 9 Refusal of recognition or enforcement Recognition or enforcement may be refused if: (a) the agreement was null and void under the law of the State of the chosen court, unless the chosen court has determined that the agreement is valid; (b) a party lacked the capacity to conclude the agreement under the law of the requested State; (c) the document which instituted the proceedings or an equivalent document, including the essential elements of the claim: (i) was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant entered an appearance and presented his case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested; or (ii) was notified to the defendant in the requested State in a manner that is incompatible with fundamental principles of the requested State concerning service of documents; (d) the judgment was obtained by fraud in connection with a matter of procedure; (e) recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State; (f) the judgment is inconsistent with a judgment given in the requested State in a dispute between the same parties; or (g) the judgment is inconsistent with an earlier judgment given in another State between the same parties on the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested State. Article 10 Preliminary questions 1. Where a matter excluded under Article 2(2), or under Article 21, arose as a preliminary question, the ruling on that question shall not be recognised or enforced under this Convention. 2. Recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment was based on a ruling on a matter excluded under Article 2(2). 3. However, in the case of a ruling on the validity of an intellectual property right other than copyright or a related right, recognition or enforcement of a judgment may be refused or postponed under the preceding paragraph only where: (a) that ruling is inconsistent with a judgment or a decision of a competent authority on that matter given in the State under the law of which the intellectual property right arose; or (b) proceedings concerning the validity of the intellectual property right are pending in that State. 4. Recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment was based on a ruling on a matter excluded pursuant to a declaration made by the requested State under Article 21. Article 11 Damages 1. Recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered. 2. The court addressed shall take into account whether and to what extent the damages awarded by the court of origin serve to cover costs and expenses relating to the proceedings. Article 12 Judicial settlements (transactions judiciaires) Judicial settlements (transactions judiciaires) which a court of a Contracting State designated in an exclusive choice of court agreement has approved, or which have been concluded before that court in the course of proceedings, and which are enforceable in the same manner as a judgment in the State of origin, shall be enforced under this Convention in the same manner as a judgment. Article 13 Documents to be produced 1. The party seeking recognition or applying for enforcement shall produce: (a) a complete and certified copy of the judgment; (b) the exclusive choice of court agreement, a certified copy thereof, or other evidence of its existence; (c) if the judgment was given by default, the original or a certified copy of a document establishing that the document which instituted the proceedings or an equivalent document was notified to the defaulting party; (d) any documents necessary to establish that the judgment has effect or, where applicable, is enforceable in the State of origin; (e) in the case referred to in Article 12, a certificate of a court of the State of origin that the judicial settlement or a part of it is enforceable in the same manner as a judgment in the State of origin. 2. If the terms of the judgment do not permit the court addressed to verify whether the conditions of this Chapter have been complied with, that court may require any necessary documents. 3. An application for recognition or enforcement may be accompanied by a document, issued by a court (including an officer of the court) of the State of origin, in the form recommended and published by the Hague Conference on Private International Law. 4. If the documents referred to in this Article are not in an official language of the requested State, they shall be accompanied by a certified translation into an official language, unless the law of the requested State provides otherwise. Article 14 Procedure The procedure for recognition, declaration of enforceability or registration for enforcement, and the enforcement of the judgment, are governed by the law of the requested State unless this Convention provides otherwise. The court addressed shall act expeditiously. Article 15 Severability Recognition or enforcement of a severable part of a judgment shall be granted where recognition or enforcement of that part is applied for, or only part of the judgment is capable of being recognised or enforced under this Convention. CHAPTER IV GENERAL CLAUSES Article 16 Transitional provisions 1. This Convention shall apply to exclusive choice of court agreements concluded after its entry into force for the State of the chosen court. 2. This Convention shall not apply to proceedings instituted before its entry into force for the State of the court seised. Article 17 Contracts of insurance and reinsurance 1. Proceedings under a contract of insurance or reinsurance are not excluded from the scope of this Convention on the ground that the contract of insurance or reinsurance relates to a matter to which this Convention does not apply. 2. Recognition and enforcement of a judgment in respect of liability under the terms of a contract of insurance or reinsurance may not be limited or refused on the ground that the liability under that contract includes liability to indemnify the insured or reinsured in respect of: (a) a matter to which this Convention does not apply; or (b) an award of damages to which Article 11 might apply. Article 18 No legalisation All documents forwarded or delivered under this Convention shall be exempt from legalisation or any analogous formality, including an Apostille. Article 19 Declarations limiting jurisdiction A State may declare that its courts may refuse to determine disputes to which an exclusive choice of court agreement applies if, except for the location of the chosen court, there is no connection between that State and the parties or the dispute. Article 20 Declarations limiting recognition and enforcement A State may declare that its courts may refuse to recognise or enforce a judgment given by a court of another Contracting State if the parties were resident in the requested State, and the relationship of the parties and all other elements relevant to the dispute, other than the location of the chosen court, were connected only with the requested State. Article 21 Declarations with respect to specific matters 1. Where a State has a strong interest in not applying this Convention to a specific matter, that State may declare that it will not apply the Convention to that matter. The State making such a declaration shall ensure that the declaration is no broader than necessary and that the specific matter excluded is clearly and precisely defined. 2. With regard to that matter, the Convention shall not apply: (a) in the Contracting State that made the declaration; (b) in other Contracting States, where an exclusive choice of court agreement designates the courts, or one or more specific courts, of the State that made the declaration. Article 22 Reciprocal declarations on non-exclusive choice of court agreements 1. A Contracting State may declare that its courts will recognise and enforce judgments given by courts of other Contracting States designated in a choice of court agreement concluded by two or more parties that meets the requirements of Article 3(c), and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, a court or courts of one or more Contracting States (a non-exclusive choice of court agreement). 2. Where recognition or enforcement of a judgment given in a Contracting State that has made such a declaration is sought in another Contracting State that has made such a declaration, the judgment shall be recognised and enforced under this Convention, if: (a) the court of origin was designated in a non-exclusive choice of court agreement; (b) there exists neither a judgment given by any other court before which proceedings could be brought in accordance with the non-exclusive choice of court agreement, nor a proceeding pending between the same parties in any other such court on the same cause of action; and (c) the court of origin was the court first seised. Article 23 Uniform interpretation In the interpretation of this Convention, regard shall be had to its international character and to the need to promote uniformity in its application. Article 24 Review of operation of the Convention The Secretary General of the Hague Conference on Private International Law shall at regular intervals make arrangements for: (a) review of the operation of this Convention, including any declarations; and (b) consideration of whether any amendments to this Convention are desirable. Article 25 Non-unified legal systems 1. In relation to a Contracting State in which two or more systems of law apply in different territorial units with regard to any matter dealt with in this Convention: (a) any reference to the law or procedure of a State shall be construed as referring, where appropriate, to the law or procedure in force in the relevant territorial unit; (b) any reference to residence in a State shall be construed as referring, where appropriate, to residence in the relevant territorial unit; (c) any reference to the court or courts of a State shall be construed as referring, where appropriate, to the court or courts in the relevant territorial unit; (d) any reference to a connection with a State shall be construed as referring, where appropriate, to a connection with the relevant territorial unit. 2. Notwithstanding the preceding paragraph, a Contracting State with two or more territorial units in which different systems of law apply shall not be bound to apply this Convention to situations which involve solely such different territorial units. 3. A court in a territorial unit of a Contracting State with two or more territorial units in which different systems of law apply shall not be bound to recognise or enforce a judgment from another Contracting State solely because the judgment has been recognised or enforced in another territorial unit of the same Contracting State under this Convention. 4. This Article shall not apply to a Regional Economic Integration Organisation. Article 26 Relationship with other international instruments 1. This Convention shall be interpreted so far as possible to be compatible with other treaties in force for Contracting States, whether concluded before or after this Convention. 2. This Convention shall not affect the application by a Contracting State of a treaty, whether concluded before or after this Convention, in cases where none of the parties is resident in a Contracting State that is not a Party to the treaty. 3. This Convention shall not affect the application by a Contracting State of a treaty that was concluded before this Convention entered into force for that Contracting State, if applying this Convention would be inconsistent with the obligations of that Contracting State to any non-Contracting State. This paragraph shall also apply to treaties that revise or replace a treaty concluded before this Convention entered into force for that Contracting State, except to the extent that the revision or replacement creates new inconsistencies with this Convention. 4. This Convention shall not affect the application by a Contracting State of a treaty, whether concluded before or after this Convention, for the purposes of obtaining recognition or enforcement of a judgment given by a court of a Contracting State that is also a Party to that treaty. However, the judgment shall not be recognised or enforced to a lesser extent than under this Convention. 5. This Convention shall not affect the application by a Contracting State of a treaty which, in relation to a specific matter, governs jurisdiction or the recognition or enforcement of judgments, even if concluded after this Convention and even if all States concerned are Parties to this Convention. This paragraph shall apply only if the Contracting State has made a declaration in respect of the treaty under this paragraph. In the case of such a declaration, other Contracting States shall not be obliged to apply this Convention to that specific matter to the extent of any inconsistency, where an exclusive choice of court agreement designates the courts, or one or more specific courts, of the Contracting State that made the declaration. 6. This Convention shall not affect the application of the rules of a Regional Economic Integration Organisation that is a Party to this Convention, whether adopted before or after this Convention: (a) where none of the parties is resident in a Contracting State that is not a Member State of the Regional Economic Integration Organisation; (b) as concerns the recognition or enforcement of judgments as between Member States of the Regional Economic Integration Organisation. CHAPTER V FINAL CLAUSES Article 27 Signature, ratification, acceptance, approval or accession 1. This Convention is open for signature by all States. 2. This Convention is subject to ratification, acceptance or approval by the signatory States. 3. This Convention is open for accession by all States. 4. Instruments of ratification, acceptance, approval or accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention. Article 28 Declarations with respect to non-unified legal systems 1. If a State has two or more territorial units in which different systems of law apply in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that the Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time. 2. A declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies. 3. If a State makes no declaration under this Article, the Convention shall extend to all territorial units of that State. 4. This Article shall not apply to a Regional Economic Integration Organisation. Article 29 Regional Economic Integration Organisations 1. A Regional Economic Integration Organisation which is constituted solely by sovereign States and has competence over some or all of the matters governed by this Convention may similarly sign, accept, approve or accede to this Convention. The Regional Economic Integration Organisation shall in that case have the rights and obligations of a Contracting State, to the extent that the Organisation has competence over matters governed by this Convention. 2. The Regional Economic Integration Organisation shall, at the time of signature, acceptance, approval or accession, notify the depositary in writing of the matters governed by this Convention in respect of which competence has been transferred to that Organisation by its Member States. The Organisation shall promptly notify the depositary in writing of any changes to its competence as specified in the most recent notice given under this paragraph. 3. For the purposes of the entry into force of this Convention, any instrument deposited by a Regional Economic Integration Organisation shall not be counted unless the Regional Economic Integration Organisation declares in accordance with Article 30 that its Member States will not be Parties to this Convention. 4. Any reference to a ‘Contracting State’ or ‘State’ in this Convention shall apply equally, where appropriate, to a Regional Economic Integration Organisation that is a Party to it. Article 30 Accession by a Regional Economic Integration Organisation without its Member States 1. At the time of signature, acceptance, approval or accession, a Regional Economic Integration Organisation may declare that it exercises competence over all the matters governed by this Convention and that its Member States will not be Parties to this Convention but shall be bound by virtue of the signature, acceptance, approval or accession of the Organisation. 2. In the event that a declaration is made by a Regional Economic Integration Organisation in accordance with paragraph 1, any reference to a ‘Contracting State’ or ‘State’ in this Convention shall apply equally, where appropriate, to the Member States of the Organisation. Article 31 Entry into force 1. This Convention shall enter into force on the first day of the month following the expiration of three months after the deposit of the second instrument of ratification, acceptance, approval or accession referred to in Article 27. 2. Thereafter this Convention shall enter into force: (a) for each State or Regional Economic Integration Organisation subsequently ratifying, accepting, approving or acceding to it, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession; (b) for a territorial unit to which this Convention has been extended in accordance with Article 28(1), on the first day of the month following the expiration of three months after the notification of the declaration referred to in that Article. Article 32 Declarations 1. Declarations referred to in Articles 19, 20, 21, 22 and 26 may be made upon signature, ratification, acceptance, approval or accession or at any time thereafter, and may be modified or withdrawn at any time. 2. Declarations, modifications and withdrawals shall be notified to the depositary. 3. A declaration made at the time of signature, ratification, acceptance, approval or accession shall take effect simultaneously with the entry into force of this Convention for the State concerned. 4. A declaration made at a subsequent time, and any modification or withdrawal of a declaration, shall take effect on the first day of the month following the expiration of three months after the date on which the notification is received by the depositary. 5. A declaration under Articles 19, 20, 21 and 26 shall not apply to exclusive choice of court agreements concluded before it takes effect. Article 33 Denunciation 1. This Convention may be denounced by notification in writing to the depositary. The denunciation may be limited to certain territorial units of a non-unified legal system to which this Convention applies. 2. The denunciation shall take effect on the first day of the month following the expiration of 12 months after the date on which the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation shall take effect upon the expiration of such longer period after the date on which the notification is received by the depositary. Article 34 Notifications by the depositary The depositary shall notify the Members of the Hague Conference on Private International Law, and other States and Regional Economic Integration Organisations which have signed, ratified, accepted, approved or acceded in accordance with Articles 27, 29 and 30 of the following: (a) the signatures, ratifications, acceptances, approvals and accessions referred to in Articles 27, 29 and 30; (b) the date on which this Convention enters into force in accordance with Article 31; (c) the notifications, declarations, modifications and withdrawals of declarations referred to in Articles 19, 20, 21, 22, 26, 28, 29 and 30; (d) the denunciations referred to in Article 33. In witness whereof the undersigned, being duly authorised thereto, have signed this Convention. Done at The Hague, on 30 June 2005, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands, and of which a certified copy shall be sent, through diplomatic channels, to each of the Member States of the Hague Conference on Private International Law as of the date of its Twentieth Session and to each State which participated in that Session. ANNEX II Declaration by the European Community in accordance with Article 30 of the Convention on Choice of Court Agreements The European Community declares, in accordance with Article 30 of the Convention on Choice of Court Agreements, that it exercises competence over all the matters governed by this Convention. Its Member States will not sign, ratify, accept or approve the Convention, but shall be bound by the Convention by virtue of its conclusion by the European Community. For the purpose of this declaration, the term ‘European Community’ does not include Denmark by virtue of Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community.

Summary: Legal certainty in international trade for EU businesses using choice of court agreements Legal certainty in international trade for EU businesses using choice of court agreements SUMMARY OF: Decision 2009/397/EC on the signing of the Convention on Choice of Court Agreements Decision 2014/887/EU approving the Hague Convention on Choice of Court Agreements between parties to international transactions WHAT IS THE AIM OF THE DECISIONS AND THE CONVENTION? On behalf of the European Union (EU), they sign and approve the Hague Convention of 30 June 2005 on Choice of Court Agreements*. The convention clarifies the rules governing international trade disputes, where the parties have chosen a court to be exclusively competent. The convention brings more legal certainty for EU companies doing business with firms outside the EU by ensuring that their choice of a court to deal with a dispute is respected. KEY POINTS Scope of the convention The convention applies to exclusive choice of court agreements in international civil and commercial matters involving countries which apply the convention. A choice of court agreement is considered to be exclusive, unless otherwise specified by the parties. Several issues are excluded. Examples of these include: consumer and employment contracts,the legal capacity of (natural) persons,the validity of legal persons and of intellectual property rights and family law matters,alternate dispute resolution* proceedings. Moreover, the parties to the convention may exclude certain other issues from its scope of application. On that basis, the EU made a declaration that it will not apply the convention to certain insurance matters. Ensuring the respect of the choice of the court Will of the parties — the parties to a contract may conclude an exclusive choice of court agreement to designate the court of one of the countries applying the convention as competent to deal with a dispute. The agreement must be made in writing or by other means that allow the information to be subsequently accessed. Court competence — the designated court is the only court that is competent to hear disputes covered by the choice of court agreement, unless it decides that the agreement is not valid under its national law. Any non-chosen court must suspend or dismiss proceedings brought in violation of the choice of court agreement, except where: the agreement is null and void under the law of the state of the chosen court;the party lacked the capacity to conclude the agreement under the national law of the court seized;implementation of the agreement contravenes the public policy of the state of the non-chosen court;the agreement cannot be performed; orthe designated court decides against hearing the case. Recognition and enforcement — the other states applying the convention must recognise and enforce a judgment given by the chosen court. However, they may postpone enforcement if the judgment is still under review in the state of origin or if the deadline for seeking ordinary review has not yet expired. The convention also sets out a number of other situations where recognition and enforcement may be refused (for instance, when a judgment was obtained by fraud). The text also lists the documents required to request recognition and enforcement. FROM WHEN DOES THE CONVENTION APPLY? Following Decision 2014/887/EU, the EU ratified the convention on 15 June 2015, making it binding for all EU countries (except Denmark) and the other countries that have ratified it from the moment of its entry into force on 1 December 2015. BACKGROUND The Choice of Court Convention was concluded under the auspices of the Hague Conference on Private International Law on 30 June 2005. The convention was signed by the EU in 2009. Parties to the convention include EU countries as well as countries outside the EU. The EU’s internal rules on recognition and enforcement of judgments in civil and commercial cases (Regulation (EU) No 1215/2012) were reformed to ensure coherence with the convention. For more information, see: ‘Choice of Court Convention: EU businesses receive a major boost for international trade’ — press release (European Commission)Civil and commercial matters (European Commission). KEY TERMS Choice of court agreement: agreement between parties to designate which court (one or more specific courts) is competent in disputes relating to a particular legal relationship. Alternative dispute resolution: resolving disputes without going to court. MAIN DOCUMENTS Council Decision 2009/397/EC of 26 February 2009 on the signing on behalf of the European Community of the Convention on Choice of Court Agreements (OJ L 133, 29.5.2009, pp. 1-13). Council Decision 2014/887/EU of 4 December 2014 on the approval, on behalf of the European Union, of the Hague Convention of 30 June 2005 on Choice of Court Agreements (OJ L 353, 10.12.2014, pp. 5-8). RELATED DOCUMENTS Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (OJ L 351, 20.12.2012, pp. 1-32). Successive amendments to Regulation (EU) No 1215/2012 have been incorporated into the original text. This consolidated version is of documentary value only. last update 24.07.2017


7.4.2009 EN Official Journal of the European Union L 93/33 COUNCIL DECISION 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Articles 31 and 34(2)(c) thereof, Having regard to the Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (1), and in particular Article 11(4) thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament (2), Whereas: (1) Article 29 of the Treaty on European Union states that the Union's objective is to provide citizens with a high level of safety in the area of freedom, security and justice. This objective presupposes the systematic exchange between the competent authorities of the Member States of information extracted from criminal records in a way that would guarantee its common understanding and the efficiency of such exchange. (2) Information on convictions handed down against Member States' nationals by other Member States does not circulate efficiently on the current basis of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. Therefore, there is a need for more efficient and accessible procedures of exchange of such information at European Union level. (3) The need to improve the exchange of information on convictions was prioritised in the European Council Declaration on Combating Terrorism of 25 and 26 March 2004 and was subsequently reiterated in the Hague Programme (3) and in the Action Plan (4) on its implementation. Furthermore, the computerised interconnection of criminal records at European Union level was recognised as a political priority by the European Council in its Conclusions of 21 and 22 June 2007. (4) The computerised interconnection of criminal records is part of the E-Justice project, which was acknowledged as a priority by the European Council several times in 2007. (5) A pilot project is currently being developed with a view to interconnecting criminal records. Its achievements constitute a valuable basis for further work on computerised exchange of information at the European Union level. (6) This Decision aims to implement Framework Decision 2009/315/JHA in order to build and develop a computerised system of exchange of information on convictions between Member States. Such a system should be capable of communicating information on convictions in a form which is easily understandable. Therefore, a standardised format allowing information to be exchanged in a uniform, electronic and easily computer-translatable way as well as any other means of organising and facilitating electronic exchanges of information on convictions between central authorities of Member States should be set up. (7) This Decision is based on the principles established by Framework Decision 2009/315/JHA and applies and supplements those principles from a technical standpoint. (8) The categories of data to be entered into the system, the purposes for which the data is to be entered, the criteria for its entry, the authorities permitted to access the data, and some specific rules on protection of personal data are defined in the Framework Decision 2009/315/JHA. (9) Neither this Decision nor Framework Decision 2009/315/JHA establishes any obligation to exchange information about non-criminal rulings. (10) Since the objective of this Decision is not to harmonise national systems of criminal records there is no obligation for a convicting Member State to change its internal system of criminal records as regards the use of information for domestic purposes. (11) The European Criminal Records System (ECRIS) is a decentralised information technology system. The criminal records data should be stored solely in databases operated by Member States, and there should be no direct online access to criminal records databases of other Member States. Member States should bear the responsibility for the operation of national criminal records databases and for the efficient exchanges of information between themselves. The common communication infrastructure of ECRIS should be initially the Trans European Services for Telematics between Administrations (S-TESTA) network. All expenditure concerning the common communication infrastructure should be covered by the general budget of the European Union. (12) The reference tables of categories of offences and categories of penalties and measures provided for in this Decision should facilitate the automatic translation and should enable the mutual understanding of the information transmitted by using a system of codes. The content of the tables is the result of the analysis of the needs of all 27 Member States. That analysis took into account the pilot project categorisation and the results of the clustering exercise of various national offences and penalties and measures. Moreover, in case of the table of offences, it also took into consideration the existing harmonised common definitions on the European and international level as well as the Eurojust and Europol data models. (13) In order to ensure the mutual understanding and transparency of the common categorisation, each Member State should submit the list of national offences and penalties and measures falling in each category referred to in the respective table. Member States may provide a description of offences and penalties and measures and, given the usefulness of such description, they should be encouraged to do so. Such information should be made accessible to Member States. (14) The reference tables of categories of offences and categories of penalties and measures provided for in this Decision are not designed to set up legal equivalences between offences and penalties and measures existing at national level. They are a tool aimed at helping the recipient to gain better understanding of the fact(s) and type of penalty(ies) or measure(s) contained in the information transmitted. The accuracy of the codes mentioned cannot be fully guaranteed by the Member State supplying the information and it should not preclude the competent authorities in the receiving Member State from interpreting the information. (15) The reference tables of categories of offences and categories of penalties and measures should be revised and updated in accordance with the procedure for the adoption of implementing measures for decisions provided for in the Treaty on European Union. (16) Members States and the Commission should inform and consult one another within the Council in accordance with the modalities set out in the Treaty on European Union, with a view to drawing up a non-binding manual for practitioners which should address the procedures governing the exchange of information, in particular modalities of identification of offenders, common understanding of the categories of offences and penalties and measures, and explanation of problematic national offences and penalties and measures, and ensuring the coordination necessary for the development and operation of ECRIS. (17) In order to accelerate the development of ECRIS, the Commission should adopt a number of technical measures to assist Member States in preparing the technical infrastructure for interconnecting their criminal records databases. The Commission may provide reference implementation software, namely appropriate software enabling Member States to make this interconnection, which they may choose to apply instead of their own interconnection software implementing a common set of protocols enabling the exchange of information between criminal records databases. (18) Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (5) should apply in the context of computerised exchange of information extracted from criminal records of Member States, providing for an adequate level of data protection when information is exchanged between Member States, whilst allowing for Member States to require higher standards of protection to national data processing. (19) Since the objective of this Decision, namely the development of a computerised system for the exchange of information on convictions between Member States, cannot be adequately achieved by the Member States unilaterally, and can therefore, by reason of the necessity for coordinated action in the European Union, be better achieved at the level of the European Union, the Council may adopt measures, in accordance with the principle of subsidiarity referred to in Article 2 of the Treaty on European Union and set out in Article 5 of the Treaty establishing the European Community. In accordance with the principle of proportionality, as set out in the Article 5 of the Treaty establishing the European Community, this Decision does not go beyond what is necessary in order to achieve that objective. (20) This Decision respects fundamental rights and observes the principles recognised in particular by Article 6 of the Treaty on European Union and reflected by the Charter of Fundamental Rights of the European Union, HAS DECIDED AS FOLLOWS: Article 1 Subject matter This Decision establishes the European Criminal Records Information System (ECRIS). This Decision also establishes the elements of a standardised format for the electronic exchange of information extracted from criminal records between the Member States, in particular as regards information on the offence giving rise to the conviction and information on the content of the conviction, as well as other general and technical implementation means related to organising and facilitating the exchange of information. Article 2 Definitions For the purposes of this Decision, the definitions laid down in Framework Decision 2009/315/JHA shall apply. Article 3 European Criminal Records Information System (ECRIS) 1. ECRIS is a decentralised information technology system based on the criminal records databases in each Member State. It is composed of the following elements: (a) an interconnection software built in compliance with a common set of protocols enabling the exchange of information between Member States' criminal records databases; (b) a common communication infrastructure that provides an encrypted network. 2. This Decision is not aimed at establishing any centralised criminal records database. All criminal records data shall be stored solely in databases operated by the Member States. 3. Central authorities of the Member States referred to in Article 3 of Framework Decision 2009/315/JHA shall not have direct online access to criminal records databases of other Member States. The best available techniques identified together by Member States with the support of the Commission shall be employed to ensure the confidentiality and integrity of criminal records information transmitted to other Member States. 4. The interconnection software and databases storing, sending and receiving information extracted from criminal records shall operate under the responsibility of the Member State concerned. 5. The common communication infrastructure shall be the S-TESTA communications network. Any further developments thereof or any alternative secure network shall ensure that the common communication infrastructure in place continues to meet the conditions set out in paragraph 6. 6. The common communication infrastructure shall be operated under the responsibility of the Commission, and shall fulfil the security requirements and thoroughly respond to the needs of ECRIS. 7. In order to ensure the efficient operation of ECRIS, the Commission shall provide general support and technical assistance, including the collection and drawing up of statistics referred to in Article 6(2)(b)(i) and the reference implementation software. 8. Notwithstanding the possibility of using the European Union financial programmes in accordance with the applicable rules, each Member State shall bear its own costs arising from the implementation, administration, use and maintenance of its criminal records database and the interconnection software referred to in paragraph 1. The Commission shall bear the costs arising from the implementation, administration, use, maintenance and future developments of the common communication infrastructure of ECRIS, as well as the implementation and future developments of the reference implementation software. Article 4 Format of transmission of information 1. When transmitting information in accordance with Article 4(2) and (3) and Article 7 of Framework Decision 2009/315/JHA relating to the name or legal classification of the offence and to the applicable legal provisions, Member States shall refer to the corresponding code for each of the offences referred to in the transmission, as provided for in the table of offences in Annex A. By way of exception, where the offence does not correspond to any specific sub-category, the ‘open category’ code of the relevant or closest category of offences or, in the absence of the latter, an ‘other offences’ code, shall be used for that particular offence. Member States may also provide available information relating to the level of completion and the level of participation in the offence and, where applicable, to the existence of total or partial exemption from criminal responsibility or to recidivism. 2. When transmitting information in accordance with Article 4(2) and (3) and Article 7 of Framework Decision 2009/315/JHA relating to the contents of the conviction, notably the sentence as well as any supplementary penalties, security measures and subsequent decisions modifying the enforcement of the sentence, Member States shall refer to the corresponding code for each of the penalties and measures referred to in the transmission, as provided for in the table of penalties and measures in Annex B. By way of exception, where the penalty or measure does not correspond to any specific sub-category, the ‘open category’ code of the relevant or closest category of penalties and measures or, in the absence of the latter, an ‘other penalties and measures’ code, shall be used for that particular penalty or measure. Member States shall also provide, where applicable, available information relating to the nature and/or conditions of execution of the penalty or measure imposed as provided for in the parameters of Annex B. The parameter ‘non-criminal ruling’ shall be indicated only in cases where information on such a ruling is provided on a voluntary basis by the Member State of nationality of the person concerned, when replying to a request for information on convictions. Article 5 Information on national offences and penalties and measures 1. The following information shall be provided by the Member States to the General Secretariat of the Council, with a view in particular to drawing up the non-binding manual for practitioners referred to in Article 6(2)(a): (a) the list of national offences in each of the categories referred to in the table of offences in Annex A. The list shall include the name or legal classification of the offence and reference to the applicable legal provisions. It may also include a short description of the constitutive elements of the offence; (b) the list of types of sentences, possible supplementary penalties and security measures and possible subsequent decisions modifying the enforcement of the sentence as defined in national law, in each of the categories referred to in the table of penalties and measures in Annex B. It may also include a short description of the specific penalty or measure. 2. The lists and descriptions referred to in paragraph 1 shall be regularly updated by Member States. Updated information shall be sent to the General Secretariat of the Council. 3. The General Secretariat of the Council shall communicate to the Member States and to the Commission the information received pursuant to this Article. Article 6 Implementing measures 1. The Council, acting by a qualified majority and after consulting the European Parliament, shall adopt any modifications of Annexes A and B as may be necessary. 2. The representatives of the relevant departments of the administrations of the Member States and the Commission shall inform and consult one another within the Council with a view to: (a) drawing up a non-binding manual for practitioners setting out the procedure for the exchange of information through ECRIS, addressing in particular the modalities of identification of offenders, as well as recording the common understanding of the categories of offences and penalties and measures listed respectively in Annexes A and B; (b) coordinating their action for the development and operation of ECRIS, concerning in particular: (i) the establishment of logging systems and procedures making it possible to monitor the functioning of ECRIS and the establishment of non-personal statistics relating to the exchange through ECRIS of information extracted from criminal records; (ii) the adoption of technical specifications of the exchange, including security requirements, in particular the common set of protocols; (iii) the establishment of procedures verifying the conformity of the national software applications with the technical specifications. Article 7 Report The Commission services shall regularly publish a report concerning the exchange, through ECRIS, of information extracted from the criminal record based in particular on the statistics referred to in Article 6(2)(b)(i). This report shall be published for the first time one year after submitting the report referred to in Article 13(3) of Framework Decision 2009/315/JHA. Article 8 Implementation and time limits 1. Member States shall take the necessary measures to comply with the provisions of this Decision by 7 April 2012. 2. Member States shall use the format specified in Article 4 and comply with the means of organising and facilitating exchanges of information laid down in this Decision from the date notified in accordance with Article 11(6) of Framework Decision 2009/315/JHA. Article 9 Taking of effect This Decision shall take effect on the day of its publication in the Official Journal of the European Union. Done at Luxembourg, 6 April 2009. For the Council The President J. POSPÍŠIL (1) See page 23 of this Official Journal. (2) Opinion delivered on 9 October 2008 (not yet published in the Official Journal). (3) OJ C 53, 3.3.2005, p. 1. (4) OJ C 198, 12.8.2005, p. 1. (5) OJ L 350, 30.12.2008, p. 60. ANNEX A Common table of offences categories referred to in Article 4 Parameters Level of completion: Completed act C Attempt or preparation A Non-transmitted element Ø Level of participation: Perpetrator M Aider and abettor or instigator/organiser, conspirator H Non-transmitted element Ø Exemption from criminal responsibility: Insanity or diminished responsibility S Recidivism R Code Categories and sub-categories of offences 0100 00 open category Crimes within the jurisdiction of the International Criminal Court 0101 00 Genocide 0102 00 Crimes against humanity 0103 00 War crimes 0200 00 open category Participation in a criminal organisation 0201 00 Directing a criminal organisation 0202 00 Knowingly taking part in the criminal activities of a criminal organisation 0203 00 Knowingly taking part in the non-criminal activities of a criminal organisation 0300 00 open category Terrorism 0301 00 Directing a terrorist group 0302 00 Knowingly participating in the activities of a terrorist group 0303 00 Financing of terrorism 0304 00 Public provocation to commit a terrorist offence 0305 00 Recruitment or training for terrorism 0400 00 open category Trafficking in human beings 0401 00 Trafficking in human beings for the purposes of labour or services exploitation 0402 00 Trafficking in human beings for the purposes of the exploitation of the prostitution of others or other forms of sexual exploitation 0403 00 Trafficking in human beings for the purposes of organ or human tissue removal 0404 00 Trafficking in human beings for the purpose of slavery, practices similar to slavery or servitude 0405 00 Trafficking in human beings for the purposes of labour or services exploitation of a minor 0406 00 Trafficking in human beings for the purposes of the exploitation of the prostitution of minors or other forms of their sexual exploitation 0407 00 Trafficking in human beings for the purposes of organ or human tissue removal of a minor 0408 00 Trafficking in human beings for the purpose of slavery, practices similar to slavery or servitude of a minor 0500 00 open category Illicit trafficking (1) and other offences related to weapons, firearms, their parts and components, ammunition and explosives 0501 00 Illicit manufacturing of weapons, firearms, their parts and components, ammunition and explosives 0502 00 Illicit trafficking of weapons, firearms, their parts and components ammunition and explosives at national level (2) 0503 00 Illicit exportation or importation of weapons, firearms, their parts and components, ammunition and explosives 0504 00 Unauthorised possession or use of weapons, firearms, their parts and components, ammunition and explosives 0600 00 open category Environmental crime 0601 00 Destroying or damaging protected fauna and flora species 0602 00 Unlawful discharges of polluting substances or ionising radiation into air, soil or water 0603 00 Offences related to waste, including hazardous waste 0604 00 Offences related to illicit trafficking (1) in protected fauna and flora species or parts thereof 0605 00 Unintentional environmental offences 0700 00 open category Offences related to drugs or precursors, and other offences against public health 0701 00 Offences related to illicit trafficking (3) in narcotic drugs, psychotropic substances and precursors not exclusively for own personal consumption 0702 00 Illicit consumption of drugs and their acquisition, possession, manufacture or production exclusively for own personal consumption 0703 00 Aiding or inciting others to use narcotic drugs or psychotropic substances illicitly 0704 00 Manufacture or production of narcotic drugs not exclusively for personal consumption 0800 00 open category Crimes against the person 0801 00 Intentional killing 0802 00 Aggravated cases of intentional killing (4) 0803 00 Unintentional killing 0804 00 Intentional killing of a new-born by his/her mother 0805 00 Illegal abortion 0806 00 Illegal euthanasia 0807 00 Offences related to committing suicide 0808 00 Violence causing death 0809 00 Causing grievous bodily injury, disfigurement or permanent disability 0810 00 Unintentionally causing grievous bodily injury, disfigurement or permanent disability 0811 00 Causing minor bodily injury 0812 00 Unintentionally causing minor bodily injury 0813 00 Exposing to danger of loss of life or grievous bodily injury 0814 00 Torture 0815 00 Failure to offer aid or assistance 0816 00 Offences related to organ or tissue removal without authorisation or consent 0817 00 Offences related to illicit trafficking (3) in human organs and tissue 0818 00 Domestic violence or threat 0900 00 open category Offences against personal liberty, dignity and other protected interests, including racism and xenophobia 0901 00 Kidnapping, kidnapping for ransom, illegal restraint 0902 00 Unlawful arrest or deprivation of liberty by public authority 0903 00 Hostage-taking 0904 00 Unlawful seizure of an aircraft or ship 0905 00 Insults, slander, defamation, contempt 0906 00 Threats 0907 00 Duress, pressure, stalking, harassment or aggression of a psychological or emotional nature 0908 00 Extortion 0909 00 Aggravated extortion 0910 00 Illegal entry into private property 0911 00 Invasion of privacy other than illegal entry into private property 0912 00 Offences against protection of personal data 0913 00 Illegal interception of data or communication 0914 00 Discrimination on grounds of gender, race, sexual orientation, religion or ethnic origin 0915 00 Public incitement to racial discrimination 0916 00 Public incitement to racial hatred 0917 00 Blackmail 1000 00 open category Sexual offences 1001 00 Rape 1002 00 Aggravated rape (5) other than rape of a minor 1003 00 Sexual assault 1004 00 Procuring for prostitution or sexual act 1005 00 Indecent exposure 1006 00 Sexual harassment 1007 00 Soliciting by a prostitute 1008 00 Sexual exploitation of children 1009 00 Offences related to child pornography or indecent images of minors 1010 00 Rape of a minor 1011 00 Sexual assault of a minor 1100 00 open category Offences against family law 1101 00 Illicit sexual relations between close family members 1102 00 Polygamy 1103 00 Evading the alimony or maintenance obligation 1104 00 Neglect or desertion of a minor or a disabled person 1105 00 Failure to comply with an order to produce a minor or removal of a minor 1200 00 open category Offences against the State, public order, course of justice or public officials 1201 00 Espionage 1202 00 High treason 1203 00 Offences related to elections and referendum 1204 00 Attempt against life or health of the Head of State 1205 00 Insult of the State, Nation or State symbols 1206 00 Insult or resistance to a representative of public authority 1207 00 Extortion, duress, pressure towards a representative of public authority 1208 00 Assault or threat on a representative of public authority 1209 00 Public order offences, breach of the public peace 1210 00 Violence during sports events 1211 00 Theft of public or administrative documents 1212 00 Obstructing or perverting the course of justice, making false allegations in the course of criminal or judicial proceedings, perjury 1213 00 Unlawful impersonation of a person or an authority 1214 00 Escape from lawful custody 1300 00 open category Offences against public property or public interests 1301 00 Public, social security or family benefit fraud 1302 00 Fraud affecting European benefits or allowances 1303 00 Offences related to illegal gambling 1304 00 Obstructing of public tender procedures 1305 00 Active or passive corruption of a civil servant, a person holding public office or public authority 1306 00 Embezzlement, misappropriation or other diversion of property by a public official 1307 00 Abuse of a function by a public official 1400 00 open category Tax and customs offences 1401 00 Tax offences 1402 00 Customs offences 1500 00 open category Economic and trade related offences 1501 00 Bankruptcy or fraudulent insolvency 1502 00 Breach of accounting regulation, embezzlement, concealment of assets or unlawful increase in a company’s liabilities 1503 00 Violation of competition rules 1504 00 Laundering of proceeds from crime 1505 00 Active or passive corruption in the private sector 1506 00 Revealing a secret or breaching an obligation of secrecy 1507 00 ‘Insider trading’ 1600 00 open category Offences against property or causing damage to goods 1601 00 Unlawful appropriation 1602 00 Unlawful appropriation or diversion of energy 1603 00 Fraud, including swindling 1604 00 Dealing in stolen goods 1605 00 Illicit trafficking (6) in cultural goods, including antiques and works of art 1606 00 Intentional damage or destruction of property 1607 00 Unintentional damage or destruction of property 1608 00 Sabotage 1609 00 Offences against industrial or intellectual property 1610 00 Arson 1611 00 Arson causing death or injury to persons 1612 00 Forest arson 1700 00 open category Theft offences 1701 00 Theft 1702 00 Theft after unlawful entry into property 1703 00 Theft, using violence or weapons, or using threat of violence or weapons against person 1704 00 Forms of aggravated theft which do not involve use of violence or weapons, or use of threat of violence or weapons, against persons. 1800 00 open category Offences against information systems and other computer-related crime 1801 00 Illegal access to information systems 1802 00 Illegal system interference 1803 00 Illegal data interference 1804 00 Production, possession, dissemination of or trafficking in computer devices or data enabling commitment of computer-related offences 1900 00 open category Forgery of means of payment 1901 00 Counterfeiting or forging currency, including the euro 1902 00 Counterfeiting of non-cash means of payment 1903 00 Counterfeiting or forging public fiduciary documents 1904 00 Putting into circulation/using counterfeited or forged currency, non-cash means of payment or public fiduciary documents 1905 00 Possession of a device for the counterfeiting or forgery of currency or public fiduciary documents 2000 00 open category Falsification of documents 2001 00 Falsification of a public or administrative document by a private individual 2002 00 Falsification of a document by a civil servant or a public authority 2003 00 Supply or acquisition of a forged public or administrative document; supply or acquisition of a forged document by a civil servant or a public authority 2004 00 Using forged public or administrative documents 2005 00 Possession of a device for the falsification of public or administrative documents 2006 00 Forgery of private documents by a private individual 2100 00 open category Offences against traffic regulations 2101 00 Dangerous driving 2102 00 Driving under the influence of alcohol or narcotic drugs 2103 00 Driving without a licence or while disqualified 2104 00 Failure to stop after a road accident 2105 00 Avoiding a road check 2106 00 Offences related to road transport 2200 00 open category Offences against labour law 2201 00 Unlawful employment 2202 00 Offences relating to remuneration, including social security contributions 2203 00 Offences relating to working conditions, health and safety at work 2204 00 Offences relating to access to or exercise of a professional activity 2205 00 Offences relating to working hours and rest time 2300 00 open category Offences against migration law 2301 00 Unauthorised entry or residence 2302 00 Facilitation of unauthorised entry and residence 2400 00 open category Offences against military obligations 2500 00 open category Offences related to hormonal substances and other growth promoters 2501 00 Illicit importation, exportation or supply of hormonal substances and other grown promoters 2600 00 open category Offences related to nuclear materials or other hazardous radioactive substances 2601 00 Illicit importation, exportation, supply or acquisition of nuclear or radioactive materials 2700 00 open category Other offences 2701 00 Other intentional offences 2702 00 Other unintentional offences (1) Unless otherwise specified in this category, ‘trafficking’ means import, export, acquisition, sale, delivery, movement or transfer. (2) For the purpose of this sub-category trafficking includes acquisition, sale, delivery, movement or transfer. (3) For the purpose of this sub-category trafficking includes import, export, acquisition, sale, delivery, movement or transfer. (4) For example: particularly grave circumstances. (5) For example rape with particular cruelty. (6) Trafficking includes import, export, acquisition, sale, delivery, movement or transfer. ANNEX B Common table of penalties and measures categories referred to in Article 4 Code Categories and sub-categories of offences 1000 open category Deprivation of freedom 1001 Imprisonment 1002 Life imprisonment 2000 open category Restriction of personal freedom 2001 Prohibition from frequenting some places 2002 Restriction to travel abroad 2003 Prohibition to stay in some places 2004 Prohibition from entry to a mass event 2005 Prohibition to enter in contact with certain persons through whatever means 2006 Placement under electronic surveillance (1) 2007 Obligation to report at specified times to a specific authority 2008 Obligation to stay/reside in a certain place 2009 Obligation to be at the place of residence on the set time 2010 Obligation to comply with the probation measures ordered by the court, including the obligation to remain under supervision 3000 open category Prohibition of a specific right or capacity 3001 Disqualification from function 3002 Loss/suspension of capacity to hold or to be appointed to public office 3003 Loss/suspension of the right to vote or to be elected 3004 Incapacity to contract with public administration 3005 Ineligibility to obtain public subsidies 3006 Cancellation of the driving licence (2) 3007 Suspension of driving licence 3008 Prohibition to drive certain vehicles 3009 Loss/suspension of the parental authority 3010 Loss/suspension of right to be an expert in court proceedings/witness under oath/juror 3011 Loss/suspension of right to be a legal guardian (3) 3012 Loss/suspension of right of decoration or title 3013 Prohibition to exercise professional, commercial or social activity 3014 Prohibition from working or activity with minors 3015 Obligation to close an establishment 3016 Prohibition to hold or to carry weapons 3017 Withdrawal of a hunting/fishing license 3018 Prohibition to issue cheques or to use payment/credit cards 3019 Prohibition to keep animals 3020 Prohibition to possess or use certain items other than weapons 3021 Prohibition to play certain games/sports 4000 open category Prohibition or expulsion from territory 4001 Prohibition from national territory 4002 Expulsion from national territory 5000 open category Personal obligation 5001 Submission to medical treatment or other forms of therapy 5002 Submission to a social-educational programme 5003 Obligation to be under the care/control of the family 5004 Educational measures 5005 Socio-judicial probation 5006 Obligation of training/working 5007 Obligation to provide judicial authorities with specific information 5008 Obligation to publish the judgment 5009 Obligation to compensate for the prejudice caused by the offence 6000 open category Penalty on personal property 6001 Confiscation 6002 Demolition 6003 Restoration 7000 open category Placing in an institution 7001 Placing in a psychiatric institution 7002 Placing in a detoxification institution 7003 Placing in an educational institution 8000 open category Financial penalty 8001 Fine 8002 Day-fine (4) 8003 Fine for the benefit of a special recipient (5) 9000 open category Working penalty 9001 Community service or work 9002 Community service or work accompanied with other restrictive measures 10000 open category Military penalty 10001 Loss of military rank (6) 10002 Expulsion from professional military service 10003 Military imprisonment 11000 open category Exemption/deferment of sentence/penalty, warning 12000 open category Other penalties and measures Parameters (to be specified where applicable) ø Penalty m Measure a Suspended penalty/measure b Partially suspended penalty/measure c Suspended penalty/measure with probation/supervision d Partially suspended penalty/measure with probation/supervision e Conversion of penalty/measure f Alternative penalty/measure imposed as principal penalty g Alternative penalty/measure imposed initially in case of non-respect of the principal penalty h Revocation of suspended penalty/measure i Subsequent formation of an overall penalty j Interruption of enforcement/postponement of the penalty/measure (7) k Remission of the penalty l Remission of the suspended penalty n End of penalty o Pardon p Amnesty q Release on parole (liberation of a person before end of the sentence under certain conditions) r Rehabilitation (with or without the deletion of penalty from criminal records) s Penalty or measure specific to minors t Non-criminal ruling (8) (1) Fixed or mobile placement. (2) Reapplication in order to obtain a new driving licence is necessary. (3) Legal guardian for a person who is legally incompetent or for a minor. (4) Fine expressed in daily units. (5) E.g.: for an institution, association, foundation or a victim. (6) Military demotion. (7) Does not lead to avoidance of enforcement of penalty. (8) This parameter will be indicated only when such information is provided in reply to the request received by the Member State of nationality of the person concerned.

Summary: European Criminal Records Information System (ECRIS) European Criminal Records Information System (ECRIS) SUMMARY OF: Decision 2009/316/JHA on the establishment of the European Criminal Records Information System WHAT IS THE AIM OF THE DECISION? It establishes: the European Criminal Records Information System (ECRIS); a standardised format for the electronic exchange of information, particularly on offences and convictions, held in national criminal records. KEY POINTS ECRIS is a decentralised information technology system based on national criminal record databases. It allows for the exchange of information extracted from national criminal records between EU countries’ central authorities. It consists of: interconnecting software using a common set of protocols to exchange information;common communication infrastructure, operated under the responsibility of the European Commission, with an encrypted network. National central authorities do not have direct online access to criminal record databases in other EU countries. The Commission: provides general support, technical assistance and the reference implementation software;covers the costs of implementing, administering, using, maintaining and the future developing of ECRIS’s common communication infrastructure as well as the costs of implementing and the future developing of the reference implementation software;regularly publishes reports on the use and functioning of ECRIS. The EU countries: use the appropriate code for an offence (Annex A) and a penalty (Annex B) when exchanging information;pay for their own criminal records databases and the interconnecting software;provide the General Secretariat of the Council with a list of national offences and sentences to help produce a non-binding manual for ECRIS users;act together in the Council to amend Annexes A and B by qualified majority. The EU countries and the Commission inform and consult each other in the Council to: draw up a non-binding manual setting out the information exchange procedures, addressing in particular the problem of identifying offenders;coordinate ECRIS’s development and operation, particularly by establishing logging systems and procedures, technical and security specifications, and procedures for conformity of national software. The decision: does not aim to establish a centralised criminal record database, as all criminal data is stored in national databases;implements Framework Decision 2009/315/JHA (see summary), setting out the general principles for the operation of the exchange of criminal records between EU countries. The decision is complemented by: Directive 2011/93/EU on fighting child sexual abuse (see summary), requiring information exchange, if requested, in recruitment procedures for posts involving direct and regular contact with children;Regulation (EU) 2019/816 on ECRIS-TCN, addressing conviction information on third-country nationals (see summary);Regulation (EU) 2018/1726 establishing the European Union Agency for the Operational Management of Large-Scale IT Systems (eu-LISA) – see summary. It should be noted that Directive (EU) 2019/884, in addition to amending Framework Decision 2009/315/JHA (see above), replaces Council Decision 2009/316/JHA, which set up ECRIS, and must become law in the EU countries no later than 28 June 2022. FROM WHEN DOES THE DECISION APPLY? It has applied since 7 April 2012. BACKGROUND Before ECRIS was established, national courts frequently passed sentences without knowing whether a criminal had previous convictions in another EU country. Since 2008, Framework Decision 2008/675/JHA (see summary) requires that previous criminal convictions be taken into account by a court in the course of new criminal proceedings against an individual. ECRIS supports this process by providing judges, prosecutors and relevant administrative authorities with comprehensive information of an EU citizen’s criminal history, no matter where they were convicted. For further information, see: European Criminal Records Information System (ECRIS) (European Commission)ECRIS (European e-Justice Portal). MAIN DOCUMENT Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA (OJ L 93, 7.4.2009, pp. 33-48) RELATED DOCUMENTS Directive (EU) 2019/884 of the European Parliament and of the Council of 17 April 2019 amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third-country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA (OJ L 151, 7.6.2019, pp. 143-150) Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April 2019 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and amending Regulation (EU) 2018/1726 (OJ L 135, 22.5.2019, pp. 1-26) Successive amendments to Regulation (EU) 2019/816 have been incorporated into the original text. This consolidated version is of documentary value only. Regulation (EU) 2018/1726 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), and amending Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) No 1077/2011 (OJ L 295, 21.11.2018, pp. 99-137) See consolidated version. Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, pp. 1-14) See consolidated version. Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (OJ L 93, 7.4.2009, pp. 23-32) See consolidated version. Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings (OJ L 220, 15.8.2008, pp. 32-34) last update 03.02.2021