11.3.2016 EN Official Journal of the European Union L 65/1 DIRECTIVE (EU) 2016/343 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular point (b) of Article 82(2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (1), After consulting the Committee of the Regions, Acting in accordance with the ordinary legislative procedure (2), Whereas: (1) The presumption of innocence and the right to a fair trial are enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (the Charter), Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR), Article 14 of the International Covenant on Civil and Political Rights (the ICCPR) and Article 11 of the Universal Declaration of Human Rights. (2) The Union has set itself the objective of maintaining and developing an area of freedom, security and justice. According to the Presidency conclusions of the European Council in Tampere of 15 and 16 October 1999, and in particular point (33) thereof, enhanced mutual recognition of judgments and other judicial decisions and the necessary approximation of legislation would facilitate cooperation between competent authorities and the judicial protection of individual rights. The principle of mutual recognition should therefore become the cornerstone of judicial cooperation in civil and criminal matters within the Union. (3) According to the Treaty on the Functioning of the European Union (TFEU), judicial cooperation in criminal matters in the Union is to be based on the principle of mutual recognition of judgments and other judicial decisions. (4) The implementation of that principle relies on the premise that Member States trust in each other's criminal justice systems. The extent of the principle of mutual recognition is dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspects and accused persons and common minimum standards necessary to facilitate the application of that principle. (5) Although the Member States are party to the ECHR and to the ICCPR, experience has shown that this in itself does not always provide a sufficient degree of trust in the criminal justice systems of other Member States. (6) On 30 November 2009, the Council adopted a Resolution on a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings (3) (‘the Roadmap’). Taking a step-by-step approach, the Roadmap calls for the adoption of measures regarding the right to translation and interpretation (measure A), the right to information on rights and information about the charges (measure B), the right to legal advice and legal aid (measure C), the right to communicate with relatives, employers and consular authorities (measure D), and special safeguards for suspects or accused persons who are vulnerable (measure E). (7) On 11 December 2009, the European Council welcomed the Roadmap and made it part of the Stockholm programme — An open and secure Europe serving and protecting citizens (4) (point 2.4). The European Council underlined the non-exhaustive character of the Roadmap, by inviting the Commission to examine further elements of minimum procedural rights for suspects and accused persons, and to assess whether other issues, for instance the presumption of innocence, need to be addressed, in order to promote better cooperation in that area. (8) Three measures on procedural rights in criminal proceedings have been adopted pursuant to the Roadmap to date, namely Directives 2010/64/EU (5), 2012/13/EU (6) and 2013/48/EU (7) of the European Parliament and of the Council. (9) The purpose of this Directive is to enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial. (10) By establishing common minimum rules on the protection of procedural rights of suspects and accused persons, this Directive aims to strengthen the trust of Member States in each other's criminal justice systems and thus to facilitate mutual recognition of decisions in criminal matters. Such common minimum rules may also remove obstacles to the free movement of citizens throughout the territory of the Member States. (11) This Directive should apply only to criminal proceedings as interpreted by the Court of Justice of the European Union (Court of Justice), without prejudice to the case-law of the European Court of Human Rights. This Directive should not apply to civil proceedings or to administrative proceedings, including where the latter can lead to sanctions, such as proceedings relating to competition, trade, financial services, road traffic, tax or tax surcharges, and investigations by administrative authorities in relation to such proceedings. (12) This Directive should apply to natural persons who are suspects or accused persons in criminal proceedings. It should apply from the moment when a person is suspected or accused of having committed a criminal offence, or an alleged criminal offence, and, therefore, even before that person is made aware by the competent authorities of a Member State, by official notification or otherwise, that he or she is a suspect or accused person. This Directive should apply at all stages of the criminal proceedings until the decision on the final determination of whether the suspect or accused person has committed the criminal offence has become definitive. Legal actions and remedies which are available only once that decision has become definitive, including actions before the European Court of Human Rights, should not fall within the scope of this Directive. (13) This Directive acknowledges the different needs and levels of protection of certain aspects of the presumption of innocence as regards natural and legal persons. As regards natural persons, such protection is reflected in well-established case-law of the European Court of Human Rights. The Court of Justice has, however, recognised that the rights flowing from the presumption of innocence do not accrue to legal persons in the same way as they do to natural persons. (14) At the current stage of development of national law and of case-law at national and Union level, it is premature to legislate at Union level on the presumption of innocence with regard to legal persons. This Directive should not, therefore, apply to legal persons. This should be without prejudice to the application of the presumption of innocence as laid down, in particular, in the ECHR and as interpreted by the European Court of Human Rights and by the Court of Justice, to legal persons. (15) The presumption of innocence with regard to legal persons should be ensured by the existing legislative safeguards and case-law, the evolution of which is to determine whether there is a need for Union action. (16) The presumption of innocence would be violated if public statements made by public authorities, or judicial decisions other than those on guilt, referred to a suspect or an accused person as being guilty, for as long as that person has not been proved guilty according to law. Such statements and judicial decisions should not reflect an opinion that that person is guilty. This should be without prejudice to acts of the prosecution which aim to prove the guilt of the suspect or accused person, such as the indictment, and without prejudice to judicial decisions as a result of which a suspended sentence takes effect, provided that the rights of the defence are respected. This should also be without prejudice to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and are based on suspicion or on elements of incriminating evidence, such as decisions on pre-trial detention, provided that such decisions do not refer to the suspect or accused person as being guilty. Before taking a preliminary decision of a procedural nature the competent authority might first have to verify that there are sufficient elements of incriminating evidence against the suspect or accused person to justify the decision concerned, and the decision could contain reference to those elements. (17) The term ‘public statements made by public authorities’ should be understood to be any statement which refers to a criminal offence and which emanates from an authority involved in the criminal proceedings concerning that criminal offence, such as judicial authorities, police and other law enforcement authorities, or from another public authority, such as ministers and other public officials, it being understood that this is without prejudice to national law regarding immunity. (18) The obligation not to refer to suspects or accused persons as being guilty should not prevent public authorities from publicly disseminating information on the criminal proceedings where this is strictly necessary for reasons relating to the criminal investigation, such as when video material is released and the public is asked to help in identifying the alleged perpetrator of the criminal offence, or to the public interest, such as when, for safety reasons, information is provided to the inhabitants of an area affected by an alleged environmental crime or when the prosecution or another competent authority provides objective information on the state of criminal proceedings in order to prevent a public order disturbance. The use of such reasons should be confined to situations in which this would be reasonable and proportionate, taking all interests into account. In any event, the manner and context in which the information is disseminated should not create the impression that the person is guilty before he or she has been proved guilty according to law. (19) Member States should take appropriate measures to ensure that, when they provide information to the media, public authorities do not refer to suspects or accused persons as being guilty for as long as such persons have not been proved guilty according to law. To that end, Member States should inform public authorities of the importance of having due regard to the presumption of innocence when providing or divulging information to the media. This should be without prejudice to national law protecting the freedom of press and other media. (20) The competent authorities should abstain from presenting suspects or accused persons as being guilty, in court or in public, through the use of measures of physical restraint, such as handcuffs, glass boxes, cages and leg irons, unless the use of such measures is required for case-specific reasons, either relating to security, including to prevent suspects or accused persons from harming themselves or others or from damaging any property, or relating to the prevention of suspects or accused persons from absconding or from having contact with third persons, such as witnesses or victims. The possibility of applying measures of physical restraint does not imply that the competent authorities are to take any formal decision on the use of such measures. (21) Where feasible, the competent authorities should also abstain from presenting suspects or accused persons in court or in public while wearing prison clothes, so as to avoid giving the impression that those persons are guilty. (22) The burden of proof for establishing the guilt of suspects and accused persons is on the prosecution, and any doubt should benefit the suspect or accused person. The presumption of innocence would be infringed if the burden of proof were shifted from the prosecution to the defence, without prejudice to any ex officio fact-finding powers of the court, to the independence of the judiciary when assessing the guilt of the suspect or accused person, and to the use of presumptions of fact or law concerning the criminal liability of a suspect or accused person. Such presumptions should be confined within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence, and the means employed should be reasonably proportionate to the legitimate aim pursued. Such presumptions should be rebuttable and in any event, should be used only where the rights of the defence are respected. (23) In various Member States not only the prosecution, but also judges and competent courts are charged with seeking both inculpatory and exculpatory evidence. Member States which do not have an adversarial system should be able to maintain their current system provided that it complies with this Directive and with other relevant provisions of Union and international law. (24) The right to remain silent is an important aspect of the presumption of innocence and should serve as protection from self-incrimination. (25) The right not to incriminate oneself is also an important aspect of the presumption of innocence. Suspects and accused persons should not be forced, when asked to make statements or answer questions, to produce evidence or documents or to provide information which may lead to self-incrimination. (26) The right to remain silent and the right not to incriminate oneself should apply to questions relating to the criminal offence that a person is suspected or accused of having committed and not, for example, to questions relating to the identification of a suspect or accused person. (27) The right to remain silent and the right not to incriminate oneself imply that competent authorities should not compel suspects or accused persons to provide information if those persons do not wish to do so. In order to determine whether the right to remain silent or the right not to incriminate oneself has been violated, the interpretation by the European Court of Human Rights of the right to a fair trial under the ECHR should be taken into account. (28) The exercise of the right to remain silent or the right not to incriminate oneself should not be used against a suspect or accused person and should not, in itself, be considered to be evidence that the person concerned has committed the criminal offence concerned. This should be without prejudice to national rules concerning the assessment of evidence by courts or judges, provided that the rights of the defence are respected. (29) The exercise of the right not to incriminate oneself should not prevent the competent authorities from gathering evidence which may be lawfully obtained from the suspect or accused person through the use of legal powers of compulsion and which has an existence independent of the will of the suspect or accused person, such as material acquired pursuant to a warrant, material in respect of which there is a legal obligation of retention and production upon request, breath, blood or urine samples and bodily tissue for the purpose of DNA testing. (30) The right to remain silent and the right not to incriminate oneself should not preclude Member States from deciding that, with regard to minor offences, such as minor road traffic offences, the conduct of the proceedings, or certain stages thereof, may take place in writing or without questioning of the suspect or accused person by the competent authorities in relation to the offence concerned, provided that this complies with the right to a fair trial. (31) Member States should consider ensuring that, where suspects or accused persons are provided with information about rights pursuant to Article 3 of Directive 2012/13/EU, they are also provided with information concerning the right not to incriminate oneself, as it applies under national law in accordance with this Directive. (32) Member States should consider ensuring that, where suspects or accused persons are provided with a Letter of Rights pursuant to Article 4 of Directive 2012/13/EU, such a Letter also contains information concerning the right not to incriminate oneself as it applies under national law in accordance with this Directive. (33) The right to a fair trial is one of the basic principles in a democratic society. The right of suspects and accused persons to be present at the trial is based on that right and should be ensured throughout the Union. (34) If, for reasons beyond their control, suspects or accused persons are unable to be present at the trial, they should have the possibility to request a new date for the trial within the time frame provided for in national law. (35) The right of suspects and accused persons to be present at the trial is not absolute. Under certain conditions, suspects and accused persons should be able, expressly or tacitly, but unequivocally, to waive that right. (36) Under certain circumstances it should be possible for a decision on the guilt or innocence of a suspect or accused person to be handed down even if the person concerned is not present at the trial. This might be the case where the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance and does not, nevertheless, appear. Informing a suspect or accused person of the trial should be understood to mean summoning him or her in person or, by other means, providing that person with official information about the date and place of the trial in a manner that enables him or her to become aware of the trial. Informing the suspect or accused person of the consequences of non-appearance should, in particular, be understood to mean informing that person that a decision might be handed down if he or she does not appear at the trial. (37) It should also be possible to hold a trial which may result in a decision on guilt or innocence in the absence of a suspect or accused person where that person has been informed of the trial and has given a mandate to a lawyer who was appointed by that person or by the State to represent him or her at the trial and who represented the suspect or accused person. (38) When considering whether the way in which the information is provided is sufficient to ensure the person's awareness of the trial, particular attention should, where appropriate, also be paid to the diligence exercised by public authorities in order to inform the person concerned and to the diligence exercised by the person concerned in order to receive information addressed to him or her. (39) Where Member States provide for the possibility of holding trials in the absence of suspects or accused persons but the conditions for taking a decision in the absence of a particular suspect or accused person are not met because the suspect or accused person could not be located despite reasonable efforts having been made, for example because the person has fled or absconded, it should nevertheless be possible to take a decision in the absence of the suspect or accused person and to enforce that decision. In that case, Member States should ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they should also be informed of the possibility to challenge the decision and of the right to a new trial or to another legal remedy. Such information should be provided in writing. The information may also be provided orally on condition that the fact that the information has been provided is noted in accordance with the recording procedure under national law. (40) Competent authorities in the Member States should be allowed to exclude a suspect or accused person temporarily from the trial where this is in the interests of securing the proper conduct of the criminal proceedings. This could, for example, be the case where a suspect or accused person disturbs the hearing and must be escorted out of the court room on order of the judge, or where it appears that the presence of a suspect or accused person prevents the proper hearing of a witness. (41) The right to be present at the trial can be exercised only if one or more hearings are held. This means that the right to be present at the trial cannot apply if the relevant national rules of procedure do not provide for a hearing. Such national rules should comply with the Charter and with the ECHR, as interpreted by the Court of Justice and by the European Court of Human Rights, in particular with regard to the right to a fair trial. This is the case, for example, if the proceedings are conducted in a simplified manner following, solely or in part, a written procedure or a procedure in which no hearing is provided for. (42) Member States should ensure that in the implementation of this Directive, in particular with regard to the right to be present at the trial and the right to a new trial, the particular needs of vulnerable persons are taken into account. According to the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (8), vulnerable suspects or accused persons should be understood to mean all suspects or accused persons who are not able to understand or effectively participate in criminal proceedings due to their age, their mental or physical condition or any disabilities they may have. (43) Children are vulnerable and should be given a specific degree of protection. Therefore, in respect of some of the rights provided for in this Directive, specific procedural safeguards should be established. (44) The principle of effectiveness of Union law requires that Member States put in place adequate and effective remedies in the event of a breach of a right conferred upon individuals by Union law. An effective remedy, which is available in the event of a breach of any of the rights laid down in this Directive, should, as far as possible, have the effect of placing the suspects or accused persons in the same position in which they would have found themselves had the breach not occurred, with a view to protecting the right to a fair trial and the rights of the defence. (45) When assessing statements made by suspects or accused persons or evidence obtained in breach of the right to remain silent or the right not to incriminate oneself, courts and judges should respect the rights of the defence and the fairness of the proceedings. In that context, regard should be had to the case-law of the European Court of Human Rights, according to which the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 ECHR as evidence to establish the relevant facts in criminal proceedings would render the proceedings as a whole unfair. According to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, any statement which is established to have been made as a result of torture should not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. (46) In order to monitor and evaluate the effectiveness of this Directive, Member States should send available data with regard to the implementation of the rights laid down in this Directive to the Commission. Such data could include records made by law enforcement and judicial authorities as regards remedies applied in the case of a breach of any of the aspects of the presumption of innocence covered by this Directive or of the right to be present at the trial. (47) This Directive upholds the fundamental rights and principles recognised by the Charter and by the ECHR, including the prohibition of torture and inhuman or degrading treatment, the right to liberty and security, respect for private and family life, the right to the integrity of the person, the rights of the child, the integration of persons with disabilities, the right to an effective remedy and the right to a fair trial, the presumption of innocence and the rights of the defence. Regard should be had, in particular, to Article 6 of the Treaty on European Union (TEU), according to which the Union recognises the rights, freedoms and principles set out in the Charter, and according to which fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, are to constitute general principles of Union law. (48) As this Directive establishes minimum rules, Member States should be able to extend the rights laid down in this Directive in order to provide a higher level of protection. The level of protection provided for by Member States should never fall below the standards provided for by the Charter or by the ECHR, as interpreted by the Court of Justice and by the European Court of Human Rights. (49) Since the objectives of this Directive, namely setting common minimum rules for certain aspects of the presumption of innocence and for the right to be present at the trial in criminal proceedings, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (50) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application. (51) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive, and is not bound by it or subject to its application, HAVE ADOPTED THIS DIRECTIVE: CHAPTER 1 SUBJECT MATTER AND SCOPE Article 1 Subject matter This Directive lays down common minimum rules concerning: (a) certain aspects of the presumption of innocence in criminal proceedings; (b) the right to be present at the trial in criminal proceedings. Article 2 Scope This Directive applies to natural persons who are suspects or accused persons in criminal proceedings. It applies at all stages of the criminal proceedings, from the moment when a person is suspected or accused of having committed a criminal offence, or an alleged criminal offence, until the decision on the final determination of whether that person has committed the criminal offence concerned has become definitive. CHAPTER 2 PRESUMPTION OF INNOCENCE Article 3 Presumption of innocence Member States shall ensure that suspects and accused persons are presumed innocent until proved guilty according to law. Article 4 Public references to guilt 1. Member States shall take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, public statements made by public authorities, and judicial decisions, other than those on guilt, do not refer to that person as being guilty. This shall be without prejudice to acts of the prosecution which aim to prove the guilt of the suspect or accused person, and to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and which are based on suspicion or incriminating evidence. 2. Member States shall ensure that appropriate measures are available in the event of a breach of the obligation laid down in paragraph 1 of this Article not to refer to suspects or accused persons as being guilty, in accordance with this Directive and, in particular, with Article 10. 3. The obligation laid down in paragraph 1 not to refer to suspects or accused persons as being guilty shall not prevent public authorities from publicly disseminating information on the criminal proceedings where strictly necessary for reasons relating to the criminal investigation or to the public interest. Article 5 Presentation of suspects and accused persons 1. Member States shall take appropriate measures to ensure that suspects and accused persons are not presented as being guilty, in court or in public, through the use of measures of physical restraint. 2. Paragraph 1 shall not prevent Member States from applying measures of physical restraint that are required for case-specific reasons, relating to security or to the prevention of suspects or accused persons from absconding or from having contact with third persons. Article 6 Burden of proof 1. Member States shall ensure that the burden of proof for establishing the guilt of suspects and accused persons is on the prosecution. This shall be without prejudice to any obligation on the judge or the competent court to seek both inculpatory and exculpatory evidence, and to the right of the defence to submit evidence in accordance with the applicable national law. 2. Member States shall ensure that any doubt as to the question of guilt is to benefit the suspect or accused person, including where the court assesses whether the person concerned should be acquitted. Article 7 Right to remain silent and right not to incriminate oneself 1. Member States shall ensure that suspects and accused persons have the right to remain silent in relation to the criminal offence that they are suspected or accused of having committed. 2. Member States shall ensure that suspects and accused persons have the right not to incriminate themselves. 3. The exercise of the right not to incriminate oneself shall not prevent the competent authorities from gathering evidence which may be lawfully obtained through the use of legal powers of compulsion and which has an existence independent of the will of the suspects or accused persons. 4. Member States may allow their judicial authorities to take into account, when sentencing, cooperative behaviour of suspects and accused persons. 5. The exercise by suspects and accused persons of the right to remain silent or of the right not to incriminate oneself shall not be used against them and shall not be considered to be evidence that they have committed the criminal offence concerned. 6. This Article shall not preclude Member States from deciding that, with regard to minor offences, the conduct of the proceedings, or certain stages thereof, may take place in writing or without questioning of the suspect or accused person by the competent authorities in relation to the offence concerned, provided that this complies with the right to a fair trial. CHAPTER 3 RIGHT TO BE PRESENT AT THE TRIAL Article 8 Right to be present at the trial 1. Member States shall ensure that suspects and accused persons have the right to be present at their trial. 2. Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that: (a) the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance; or (b) the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State. 3. A decision which has been taken in accordance with paragraph 2 may be enforced against the person concerned. 4. Where Member States provide for the possibility of holding trials in the absence of suspects or accused persons but it is not possible to comply with the conditions laid down in paragraph 2 of this Article because a suspect or accused person cannot be located despite reasonable efforts having been made, Member States may provide that a decision can nevertheless be taken and enforced. In that case, Member States shall ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they are also informed of the possibility to challenge the decision and of the right to a new trial or to another legal remedy, in accordance with Article 9. 5. This Article shall be without prejudice to national rules that provide that the judge or the competent court can exclude a suspect or accused person temporarily from the trial where necessary in the interests of securing the proper conduct of the criminal proceedings, provided that the rights of the defence are complied with. 6. This Article shall be without prejudice to national rules that provide for proceedings or certain stages thereof to be conducted in writing, provided that this complies with the right to a fair trial. Article 9 Right to a new trial Member States shall ensure that, where suspects or accused persons were not present at their trial and the conditions laid down in Article 8(2) were not met, they have the right to a new trial, or to another legal remedy, which allows a fresh determination of the merits of the case, including examination of new evidence, and which may lead to the original decision being reversed. In that regard, Member States shall ensure that those suspects and accused persons have the right to be present, to participate effectively, in accordance with procedures under national law, and to exercise the rights of the defence. CHAPTER 4 GENERAL AND FINAL PROVISIONS Article 10 Remedies 1. Member States shall ensure that suspects and accused persons have an effective remedy if their rights under this Directive are breached. 2. Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of the right to remain silent or the right not to incriminate oneself, the rights of the defence and the fairness of the proceedings are respected. Article 11 Data collection Member States shall, by 1 April 2020 and every three years thereafter, send to the Commission available data showing how the rights laid down in this Directive have been implemented. Article 12 Report The Commission shall, by 1 April 2021, submit a report to the European Parliament and to the Council on the implementation of this Directive. Article 13 Non-regression Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under the Charter, the ECHR, or other relevant provisions of international law or the law of any Member State which provides a higher level of protection. Article 14 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 April 2018. They shall immediately inform the Commission thereof. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive. Article 15 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 16 Addressees This Directive is addressed to the Member States in accordance with the Treaties. Done at Strasbourg, 9 March 2016. For the European Parliament The President M. SCHULZ For the Council The President J.A. HENNIS-PLASSCHAERT (1) OJ C 226, 16.7.2014, p. 63. (2) Position of the European Parliament of 20 January 2016 (not yet published in the Official Journal) and decision of the Council of 12 February 2016. (3) OJ C 295, 4.12.2009, p. 1. (4) OJ C 115, 4.5.2010, p. 1. (5) Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, p. 1). (6) Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ L 142, 1.6.2012, p. 1). (7) Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294, 6.11.2013, p. 1). (8) OJ C 378, 24.12.2013, p. 8.

Summary: Criminal proceedings — Presumption of innocence and the right to be present at the trial Criminal proceedings — Presumption of innocence and the right to be present at the trial SUMMARY OF: Directive (EU) 2016/343 — strengthening certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings WHAT IS THE AIM OF THE DIRECTIVE? It aims to guarantee: the presumption of innocence of anyone accused or suspected of a crime by the police or justice authorities; the right of an accused person to be present at their criminal trial. KEY POINTS Scope The directive applies to any individual (natural person) suspected or accused in criminal proceedings. It applies at all stages of the criminal proceedings, from the moment a person is suspected or accused of having committed a criminal offence to the final verdict. Rights The directive sets out fundamental rights of an accused or suspected person in a criminal proceeding: innocentuntil proven guilty EU countries must take steps to ensure that public statements by public authorities and judicial decisions (other than those on guilt) do not refer to the person as being guilty EU countries must also take steps to ensure that suspected or accused persons are not presented as being guilty in court or in public by physically restraining them; burden of proof on the prosecution; right to remain silent and not to incriminate oneself; right to be present at one’s own trial — a trial can be held in the absence of a suspected or accused person when one of these conditions is met the person has been informed in due time of the trial and of the consequences of non-appearance the person is represented by a mandated lawyer who they themselves were appointed by the state. Remedies EU countries must ensure that effective remedies are in place for breaches of these rights. Where the right to silence or the right not to incriminate oneself has been breached, EU countries must ensure that the rights of the defence and the fairness of the proceedings are taken into account when assessing the statements concerned. Where a suspected or accused person was not present at their trial and the above conditions were not met, they have the right to a new trial or to another legal remedy that allows the merits of the case to be determined anew (including the presentation of new evidence). FROM WHEN DOES THE DIRECTIVE APPLY? It applies from 31 March 2016. EU countries have to incorporate it into national law by 1 April 2018. BACKGROUND Directive (EU) 2016/343 is the fourth in a series of measures to establish minimum rules for procedural rights across the EU in accordance with a 2009 roadmap. It follows rules on the rights to interpretation and translation, to information, and to access to a lawyer. Two further directives set out special rights for children in criminal proceedings and to legal aid in criminal proceedings. For more information, see: European Commission press release ‘Right to a fair trial: new rules to guarantee presumption of innocence’ ‘Rights of suspects and accused’ on the European Commission's website. MAIN DOCUMENT Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ L 65, 11.3.2016, pp. 1-11) RELATED DOCUMENTS Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, pp. 1-7) Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings ( OJ L 142, 1.6.2012, pp. 1-10) Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294, 6.11.2013, pp. 1-12) Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, pp. 1-20) Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297, 4.11.2016, pp. 1-8) last update 14.02.2017


10.12.2016 EN Official Journal of the European Union L 336/3 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 TABLE OF CONTENTS Preamble Article 1: Purpose of the Agreement Article 2: Definitions Article 3: Scope Article 4: Non-Discrimination Article 5: Effect of the Agreement Article 6: Purpose and Use Limitations Article 7: Onward Transfer Article 8: Maintaining Quality and Integrity of Information Article 9: Information Security Article 10: Notification of an Information Security Incident Article 11: Maintaining Records Article 12: Retention Period Article 13: Special Categories of Personal Information Article 14: Accountability Article 15: Automated Decisions Article 16: Access Article 17: Rectification Article 18: Administrative Redress Article 19: Judicial Redress Article 20: Transparency Article 21: Effective Oversight Article 22: Cooperation between Oversight Authorities Article 23: Joint Review Article 24: Notification Article 25: Consultation Article 26: Suspension Article 27: Territorial Application Article 28: Duration of the Agreement Article 29: Entry into force and Termination MINDFUL that the United States and the European Union are committed to ensuring a high level of protection of personal information exchanged in the context of the prevention, investigation, detection, and prosecution of criminal offences, including terrorism; INTENDING to establish a lasting legal framework to facilitate the exchange of information, which is critical to prevent, investigate, detect and prosecute criminal offences, including terrorism, as a means of protecting their respective democratic societies and common values; INTENDING, in particular, to provide standards of protection for exchanges of personal information on the basis of both existing and future agreements between the US and the EU and its Member States, in the field of preventing, investigating, detecting, and prosecuting criminal offences, including terrorism; RECOGNISING that certain existing agreements between the Parties concerning the processing of personal information establish that those agreements provide an adequate level of data protection within the scope of those agreements, the Parties affirm that this Agreement should not be construed to alter, condition, or otherwise derogate from those agreements; noting however, that the obligations established by Article 19 of this Agreement on judicial redress would apply with respect to all transfers that fall within the scope of this Agreement, and that this is without prejudice to any future review or modification of such agreements pursuant to their terms; ACKNOWLEDGING both Parties' longstanding traditions of respect for individual privacy including as reflected in the Principles on Privacy and Personal Data Protection for Law Enforcement Purposes elaborated by the EU-US High Level Contact Group on Information Sharing and Privacy and Personal Data Protection, the Charter of Fundamental Rights of the European Union and applicable EU laws, the United States Constitution and applicable US laws, and the Fair Information Practice Principles of the Organization for Economic Cooperation and Development; and RECOGNISING the principles of proportionality and necessity, and relevance and reasonableness, as implemented by the Parties in their respective legal frameworks; THE UNITED STATES OF AMERICA AND THE EUROPEAN UNION HAVE AGREED AS FOLLOWS: Article 1 Purpose of the Agreement 1. The purpose of this Agreement is to ensure a high level of protection of personal information and enhance cooperation between the United States and the European Union and its Member States, in relation to the prevention, investigation, detection or prosecution of criminal offences, including terrorism. 2. For this purpose, this Agreement establishes the framework for the protection of personal information when transferred between the United States, on the one hand, and the European Union or its Member States, on the other. 3. This Agreement in and of itself shall not be the legal basis for any transfers of personal information. A legal basis for such transfers shall always be required. Article 2 Definitions For purposes of this Agreement: (1) ‘Personal information’ means information relating to an identified or identifiable natural person. An identifiable person is a person who can be identified, directly or indirectly, by reference to, in particular, an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity; (2) ‘Processing of personal information’ means any operation or set of operations involving collection, maintenance, use, alteration, organisation or structuring, disclosure or dissemination, or disposition; (3) ‘Parties’ means the European Union and the United States of America; (4) ‘Member State’ means a Member State of the European Union; (5) ‘Competent Authority’ means, for the United States, a US national law enforcement authority responsible for the prevention, investigation, detection or prosecution of criminal offences, including terrorism and, for the European Union, an authority of the European Union, and an authority of a Member State, responsible for the prevention, investigation, detection or prosecution of criminal offences, including terrorism. Article 3 Scope 1. This Agreement shall apply to personal information transferred between the Competent Authorities of one Party and the Competent Authorities of the other Party, or otherwise transferred in accordance with an agreement concluded between the United States and the European Union or its Member States, for the prevention, detection, investigation, and prosecution of criminal offences, including terrorism. 2. This Agreement does not affect, and is without prejudice to, transfers or other forms of cooperation between the authorities of the Member States and of the United States other than those referred to in Article 2(5), responsible for safeguarding national security. Article 4 Non-Discrimination Each Party shall comply with its obligations under this Agreement for the purpose of protecting personal information of its own nationals and the other Party's nationals regardless of their nationality, and without arbitrary and unjustifiable discrimination. Article 5 Effect of the Agreement 1. This Agreement supplements, as appropriate, but does not replace, provisions regarding the protection of personal information in international agreements between the Parties, or the United States and Member States that address matters within the scope of this Agreement. 2. The Parties shall take all necessary measures to implement this Agreement, including, in particular, their respective obligations regarding access, rectification and administrative and judicial redress for individuals provided herein. The protections and remedies set forth in this Agreement shall benefit individuals and entities in the manner implemented in the applicable domestic laws of each Party. For the United States, its obligations shall apply in a manner consistent with its fundamental principles of federalism. 3. By giving effect to paragraph 2, the processing of personal information by the United States, or the European Union and its Member States, with respect to matters falling within the scope of this Agreement, shall be deemed to comply with their respective data protection legislation restricting or conditioning international transfers of personal information, and no further authorisation under such legislation shall be required. Article 6 Purpose and Use Limitations 1. The transfer of personal information shall be for specific purposes authorised by the legal basis for the transfer as set forth in Article 1. 2. The further processing of personal information by a Party shall not be incompatible with the purposes for which it was transferred. Compatible processing includes processing pursuant to the terms of existing international agreements and written international frameworks for the prevention, detection, investigation or prosecution of serious crimes. All such processing of personal information by other national law enforcement, regulatory or administrative authorities shall respect the other provisions of this Agreement. 3. This Article shall not prejudice the ability of the transferring Competent Authority to impose additional conditions in a specific case to the extent the applicable legal framework for transfer permits it to do so. Such conditions shall not include generic data protection conditions, that is, conditions imposed that are unrelated to the specific facts of the case. If the information is subject to conditions, the receiving Competent Authority shall comply with them. The Competent Authority providing the information may also require the recipient to give information on the use made of the transferred information. 4. Where the United States, on the one hand, and the European Union or a Member State on the other, conclude an agreement on the transfer of personal information other than in relation to specific cases, investigations or prosecutions, the specified purposes for which the information is transferred and processed shall be further set forth in that agreement. 5. The Parties shall ensure under their respective laws that personal information is processed in a manner that is directly relevant to and not excessive or overbroad in relation to the purposes of such processing. Article 7 Onward Transfer 1. Where a Competent Authority of one Party has transferred personal information relating to a specific case to a Competent Authority of the other Party, that information may be transferred to a State not bound by the present Agreement or international body only where the prior consent of the Competent Authority originally sending that information has been obtained. 2. When granting its consent to a transfer under paragraph 1, the Competent Authority originally transferring the information shall take due account of all relevant factors, including the seriousness of the offence, the purpose for which the data is initially transferred and whether the State not bound by the present Agreement or international body in question ensures an appropriate level of protection of personal information. It may also subject the transfer to specific conditions. 3. Where the United States, on the one hand, and the European Union or a Member State on the other, conclude an agreement on the transfer of personal information other than in relation to specific cases, investigations or prosecutions, the onward transfer of personal information may only take place in accordance with specific conditions set forth in the agreement that provide due justification for the onward transfer. The agreement shall also provide for appropriate information mechanisms between the Competent Authorities. 4. Nothing in this Article shall be construed as affecting any requirement, obligation or practice pursuant to which the prior consent of the Competent Authority originally transferring the information must be obtained before the information is further transferred to a State or body bound by this Agreement, provided that the level of data protection in such State or body shall not be the basis for denying consent for, or imposing conditions on, such transfers. Article 8 Maintaining Quality and Integrity of Information The Parties shall take reasonable steps to ensure that personal information is maintained with such accuracy, relevance, timeliness and completeness as is necessary and appropriate for lawful processing of the information. For this purpose, the Competent Authorities shall have in place procedures, the object of which is to ensure the quality and integrity of personal information, including the following: (a) the measures referred to in Article 17; (b) where the transferring Competent Authority becomes aware of significant doubts as to the relevance, timeliness, completeness or accuracy of such personal information or an assessment it has transferred, it shall, where feasible, advise the receiving Competent Authority thereof; (c) where the receiving Competent Authority becomes aware of significant doubts as to the relevance, timeliness, completeness or accuracy of personal information received from a governmental authority, or of an assessment made by the transferring Competent Authority of the accuracy of information or the reliability of a source, it shall, where feasible, advise the transferring Competent Authority thereof. Article 9 Information Security The Parties shall ensure that they have in place appropriate technical, security and organisational arrangements for the protection of personal information against all of the following: (a) accidental or unlawful destruction; (b) accidental loss; and (c) unauthorised disclosure, alteration, access, or other processing. Such arrangements shall include appropriate safeguards regarding the authorisation required to access personal information. Article 10 Notification of an Information Security Incident 1. Upon discovery of an incident involving accidental loss or destruction, or unauthorised access, disclosure, or alteration of personal information, in which there is a significant risk of damage, the receiving Competent Authority shall promptly assess the likelihood and scale of damage to individuals and to the integrity of the transferring Competent Authority's programme, and promptly take appropriate action to mitigate any such damage. 2. Action to mitigate damage shall include notification to the transferring Competent Authority. However, notification may: (a) include appropriate restrictions as to the further transmission of the notification; (b) be delayed or omitted when such notification may endanger national security; (c) be delayed when such notification may endanger public security operations. 3. Action to mitigate damage shall also include notification to the individual, where appropriate given the circumstances of the incident, unless such notification may endanger: (a) public or national security; (b) official inquiries, investigations or proceedings; (c) the prevention, detection, investigation, or prosecution of criminal offences; (d) rights and freedoms of others, in particular the protection of victims and witnesses. 4. The Competent Authorities involved in the transfer of the personal information may consult concerning the incident and the response thereto. Article 11 Maintaining Records 1. The Parties shall have in place effective methods of demonstrating the lawfulness of processing of personal information, which may include the use of logs, as well as other forms of records. 2. The Competent Authorities may use such logs or records for maintaining orderly operations of the databases or files concerned, to ensure data integrity and security, and where necessary to follow backup procedures. Article 12 Retention Period 1. The Parties shall provide in their applicable legal frameworks specific retention periods for records containing personal information, the object of which is to ensure that personal information is not retained for longer than is necessary and appropriate. Such retention periods shall take into account the purposes of processing, the nature of the data and the authority processing it, the impact on relevant rights and interests of affected persons, and other applicable legal considerations. 2. Where the United States, on the one hand, and the European Union or a Member State on the other, conclude an agreement on the transfer of personal information other than in relation to specific cases, investigations or prosecutions, such agreement will include a specific and mutually agreed upon provision on retention periods. 3. The Parties shall provide procedures for periodic review of the retention period with a view to determining whether changed circumstances require further modification of the applicable period. 4. The Parties shall publish or otherwise make publicly available such retention periods. Article 13 Special Categories of Personal Information 1. Processing of personal information revealing racial or ethnic origin, political opinions or religious or other beliefs, trade union membership or personal information concerning health or sexual life shall only take place under appropriate safeguards in accordance with law. Such appropriate safeguards may include: restricting the purposes for which the information may be processed, such as allowing the processing only on a case by case basis; masking, deleting or blocking the information after effecting the purpose for which it was processed; restricting personnel permitted to access the information; requiring specialised training to personnel who access the information; requiring supervisory approval to access the information; or other protective measures. These safeguards shall duly take into account the nature of the information, particular sensitivities of the information, and the purpose for which the information is processed. 2. Where the United States, on the one hand, and the European Union or a Member State on the other, conclude an agreement on the transfer of personal information other than in relation to specific cases, investigations or prosecutions, such agreement will further specify the standards and conditions under which such information can be processed, duly taking into account the nature of the information and the purpose for which it is used. Article 14 Accountability 1. The Parties shall have in place measures to promote accountability for processing personal information within the scope of this Agreement by their Competent Authorities, and any other of their authorities to which personal information has been transferred. Such measures shall include notification of the safeguards applicable to transfers of personal information under this Agreement, and of the conditions that may have been imposed by the transferring Competent Authority pursuant to Article 6(3). Serious misconduct shall be addressed through appropriate and dissuasive criminal, civil or administrative sanctions. 2. The measures set out in paragraph 1 shall include, as appropriate, discontinuation of transfer of personal information to authorities of constituent territorial entities of the Parties not covered by this Agreement that have not effectively protected personal information, taking into account the purpose of this Agreement, and in particular the purpose and use limitations and onward transfer provisions of this Agreement. 3. In case of allegations of improper implementation of this Article, a Party may request the other Party to provide relevant information, including, where appropriate, regarding the measures taken under this Article. Article 15 Automated Decisions Decisions producing significant adverse actions concerning the relevant interests of the individual may not be based solely on the automated processing of personal information without human involvement, unless authorised under domestic law, and with appropriate safeguards that include the possibility to obtain human intervention. Article 16 Access 1. The Parties shall ensure that any individual is entitled to seek access to his or her personal information and, subject to the restrictions set forth in paragraph 2, to obtain it. Such access shall be sought and obtained from a Competent Authority in accordance with the applicable legal framework of the State in which relief is sought. 2. The obtaining of such information in a particular case may be subject to reasonable restrictions provided under domestic law, taking into account legitimate interests of the individual concerned, so as to: (a) protect the rights and freedoms of others, including their privacy; (b) safeguard public and national security; (c) protect law enforcement sensitive information; (d) avoid obstructing official or legal inquiries, investigations or proceedings; (e) avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties; (f) otherwise protect interests provided for in legislation regarding freedom of information and public access to documents. 3. Excessive expenses shall not be imposed on the individual as a condition to access his or her personal information. 4. An individual is entitled to authorise, where permitted under applicable domestic law, an oversight authority or other representative to request access on his or her behalf. 5. If access is denied or restricted, the requested Competent Authority will, without undue delay, provide to the individual, or to his or her duly authorised representative as set forth in paragraph 4, the reasons for the denial or restriction of access. Article 17 Rectification 1. The Parties shall ensure that any individual is entitled to seek correction or rectification of his or her personal information that he or she asserts is either inaccurate or has been improperly processed. Correction or rectification may include supplementation, erasure, blocking or other measures or methods for addressing inaccuracies or improper processing. Such correction or rectification shall be sought and obtained from a Competent Authority in accordance with the applicable legal framework of the State in which relief is sought. 2. Where the receiving Competent Authority concludes following: (a) a request under paragraph 1; (b) notification by the provider; or (c) its own investigations or inquiries; that information it has received under this Agreement is inaccurate or has been improperly processed, it shall take measures of supplementation, erasure, blocking or other methods of correction or rectification, as appropriate. 3. An individual is entitled to authorise, where permitted under applicable domestic law, an oversight authority or other representative to seek correction or rectification on his or her behalf. 4. If correction or rectification is denied or restricted, the requested Competent Authority will, without undue delay, provide to the individual, or to his or to her duly authorised representative as set forth in paragraph 3, a response setting forth the basis for the denial or restriction of correction or rectification. Article 18 Administrative Redress 1. The Parties shall ensure that any individual is entitled to seek administrative redress where he or she believes that his or her request for access pursuant to Article 16 or rectification of inaccurate information or improper processing pursuant to Article 17 has been improperly denied. Such redress shall be sought and obtained from a Competent Authority in accordance with the applicable legal framework of the State in which relief is sought. 2. An individual is entitled to authorise, where permitted under applicable domestic law, an oversight authority or other representative to seek administrative redress on his or her behalf. 3. The Competent Authority from which relief is sought shall carry out the appropriate inquiries and verifications and without undue delay shall respond in written form, including through electronic means, with the result, including the ameliorative or corrective action taken where applicable. Notice of the procedure for seeking any further administrative redress shall be as provided for in Article 20. Article 19 Judicial Redress 1. The Parties shall provide in their applicable legal frameworks that, subject to any requirements that administrative redress first be exhausted, any citizen of a Party is entitled to seek judicial review with regard to: (a) denial by a Competent Authority of access to records containing his or her personal information; (b) denial by a Competent Authority of amendment of records containing his or her personal information; and (c) unlawful disclosure of such information that has been willfully or intentionally made, which shall include the possibility of compensatory damages. 2. Such judicial review shall be sought and obtained in accordance with the applicable legal framework of the State in which relief is sought. 3. Paragraphs 1 and 2 are without prejudice to any other judicial review available with respect to the processing of an individual's personal information under the law of the State in which relief is requested. 4. In the event of the suspension or termination of the Agreement, Articles 26(2) or 29(3) shall not create a basis for judicial redress that is no longer available under the law of the Party concerned. Article 20 Transparency 1. The Parties shall provide notice to an individual, as to his or her personal information, which notice may be effected by the Competent Authorities through publication of general notices or through actual notice, in a form and at a time provided for by the law applicable to the authority providing notice, with regard to the: (a) purposes of processing of such information by that authority; (b) purposes for which the information may be shared with other authorities; (c) laws or rules under which such processing takes place; (d) third parties to whom such information is disclosed; and (e) access, correction or rectification, and redress available. 2. Such notice requirement is subject to the reasonable restrictions under domestic law with respect to the matters set forth in Article 16(2) (a) through (f). Article 21 Effective Oversight 1. The Parties shall have in place one or more public oversight authorities that: (a) exercise independent oversight functions and powers, including review, investigation and intervention, where appropriate on their own initiative; (b) have the power to accept and act upon complaints made by individuals relating to the measures implementing this Agreement; and (c) have the power to refer violations of law related to this Agreement for prosecution or disciplinary action when appropriate. 2. The European Union shall provide for oversight under this Article through its data protection authorities and those of the Member States. 3. The United States shall provide for oversight under this Article cumulatively through more than one authority, which may include, inter alia, inspectors general, chief privacy officers, government accountability offices, privacy and civil liberties oversight boards, and other applicable executive and legislative privacy or civil liberties review bodies. Article 22 Cooperation between Oversight Authorities 1. Consultations between authorities conducting oversight under Article 21 shall take place as appropriate with respect to carrying out the functions in relation to this Agreement, with a view towards ensuring effective implementation of the provisions of Articles 16, 17, and 18. 2. The Parties shall establish national contact points that will assist with the identification of the oversight authority to be addressed in a particular case. Article 23 Joint Review 1. The Parties shall conduct periodic joint reviews of the policies and procedures that implement this Agreement and of their effectiveness. Particular attention in the joint reviews shall be paid to the effective implementation of the protections under Article 14 on accountability, Article 16 on access, Article 17 on rectification, Article 18 on administrative redress, and Article 19 on judicial redress. 2. The first joint review shall be conducted no later than three years from the date of entry into force of this Agreement and thereafter on a regular basis. The Parties shall jointly determine in advance the modalities and terms thereof and shall communicate to each other the composition of their respective delegations, which shall include representatives of the public oversight authorities referred to in Article 21 on effective oversight, and of law enforcement and justice authorities. The findings of the joint review will be made public. 3. Where the Parties or the United States and a Member State have concluded another agreement, the subject matter of which is also within the scope of this Agreement, which provides for joint reviews, such joint reviews shall not be duplicated and, to the extent relevant, their findings shall be made part of the findings of the joint review of this Agreement. Article 24 Notification 1. The United States shall notify the European Union of any designation made by US authorities in relation to Article 19, and any modifications thereto. 2. The Parties shall make reasonable efforts to notify each other regarding the enactment of any laws or the adoption of regulations that materially affect the implementation of this Agreement, where feasible before they become effective. Article 25 Consultation Any dispute arising from the interpretation or application of this Agreement shall give rise to consultations between the Parties with a view to reaching a mutually agreeable resolution. Article 26 Suspension 1. In the event of a material breach of this Agreement, either Party may suspend this Agreement in whole or in part by written notification to the other Party through diplomatic channels. Such written notification shall not be made until after the Parties have engaged in a reasonable period of consultation without reaching a resolution and suspension shall take effect twenty days from the date of receipt of such notification. Such suspension may be lifted by the suspending Party upon written notification to the other Party. The suspension shall be lifted immediately upon receipt of such notification. 2. Notwithstanding any suspension of this Agreement, personal data falling within the scope of this Agreement and transferred prior to its suspension shall continue to be processed in accordance with this Agreement. Article 27 Territorial Application 1. This Agreement shall only apply to Denmark, the United Kingdom, or Ireland if the European Commission notifies the United States in writing that Denmark, the United Kingdom, or Ireland has decided that this Agreement applies to its State. 2. If the European Commission notifies the United States before the entry into force of this Agreement that this Agreement will apply to Denmark, the United Kingdom, or Ireland, this Agreement shall apply to such States from the date of entry into force of this Agreement. 3. If the European Commission notifies the United States after the entry into force of this Agreement that it applies to Denmark, the United Kingdom, or Ireland, this Agreement shall apply to such State on the first day of the month following receipt of the notification by the United States. Article 28 Duration of the Agreement This Agreement is concluded for an unlimited duration. Article 29 Entry into force and Termination 1. This Agreement shall enter into force on the first day of the month following the date on which the Parties have exchanged notifications indicating that they have completed their internal procedures for entry into force. 2. Either Party may terminate this Agreement by written notification to the other Party through diplomatic channels. Such termination shall take effect thirty days from the date of receipt of such notification. 3. Notwithstanding any termination of this Agreement, personal information falling within the scope of this Agreement and transferred prior to its termination shall continue to be processed in accordance with this Agreement. IN WITNESS WHEREOF, the undersigned Plenipotentiaries have signed this Agreement. Done at Amsterdam this second day of June in the year two thousand and sixteen, in two originals, in the English language. Pursuant to EU law, this Agreement shall also be drawn up by the EU in the Bulgarian, Croatian, Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages. These additional language versions can be authenticated by an exchange of diplomatic notes between the United States and the European Union. In the case of divergence between authentic language versions, the English language shall prevail. For the European Union For the United States of America

Summary: EU-US agreement on personal data protection EU-US agreement on personal data protection SUMMARY OF: Decision (EU) 2016/920 on the signing of the Agreement between the US and the EU on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offences EU-US agreement on standards of protection when personal data are transferred between EU-US law enforcement authorities WHAT IS THE AIM OF THE DECISION AND THE AGREEMENT? The decision authorised the signature (on 2 June 2016) of the agreement between the United States of America (US) and the European Union (EU) on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offences (the so-called ‘Umbrella Agreement’). The agreement will enter into force only after the parties have notified each other that their respective internal procedures for entry into force have been completed (which, on the EU side, requires that the Council adopts a decision to conclude the agreement following consent by the European Parliament). The agreement aims to ensure that personal data is protected to a high standard when being transferred by law enforcement authorities (police and criminal justice authorities). It also aims to foster law enforcement cooperation between the EU and the EU countries, on the one hand, and the US on the other. It provides greater legal certainty and strengthens the rights of the individuals concerned by the transfer of their data. The agreement is 1 of 3 key actions set out in a 2016 Communication designed to restore trust in data flows between the EU and the US. KEY POINTS Scope The agreement complements rules regarding personal data protection in existing EU/EU country-US agreements, and in national laws, that authorise the exchange of information for law enforcement purposes. It establishes a common data protection framework which will also apply to future agreements and national laws in this field. The agreement covers all personal data (including names, addresses, criminal records) exchanged between the EU and the US for the purpose of the prevention, detection, investigation and prosecution of criminal offences, including terrorism. Protection The agreement provides a number of protections for personal data when they are exchanged between police and criminal justice authorities including: clear limitations on data use — personal data may only be used for the purpose of preventing, investigating, detecting or prosecuting criminal offences. restrictions on onward transfer — any onward transfer to a non-US, non-EU country or international organisation must be approved by the competent authority of the country which had originally transferred personal data. retention periods — personal data may not be retained for longer than necessary or appropriate. These retention periods must be published or otherwise made publicly available. right to access personal data and to rectification — any individual is entitled to access their personal data, subject to certain conditions, and can request the data be corrected if inaccurate. notification in the case of data security breaches — a mechanism will be put in place so as to ensure that the competent authority and, where appropriate, the data subject* is notified of any data security breach. judicial redress and enforceability of rights — EU citizens will be granted an additional right to seek judicial redress before US courts if US authorities deny access or rectification, or unlawfully disclose their personal data. In addition, any EU data subject can rely on the already existing judicial redress rights in the US. FROM WHEN DO THE DECISION AND THE AGREEMENT APPLY? The decision has applied since 20 May 2016. The agreement was signed by the EU and US on 2 June 2016. BACKGROUND For more information, see: Press release on the European Commission’s website. * KEY TERMS Data subject: the person to whom personal data relate. MAIN DOCUMENTS Council Decision (EU) 2016/920 of 20 May 2016 on the signing, on behalf of the European Union, of 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 (OJ L 154, 11.6.2016, pp. 1-2) 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) RELATED DOCUMENTS Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, pp. 89-131) last update 23.01.2017