PURPOSE: to create a device to facilitate proof in cross-border cases on the basis of the principle of mutual recognition.

LEGISLATIVE ACT: Council Framework Decision 2008/978/JHA on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

CONTENT: the European Evidence Warrant will be a decision issued by a judicial authority in a Member State and directly recognised and executed in another Member State . By comparison with the existing mutual assistance procedures which it replaces, the European Evidence Warrant will speed up proceedings and provide guarantees for the issue and execution of a warrant.

The European Evidence Warrant applies to specified objects, documents and data needed in the issuing State for the purpose of criminal proceedings or other proceedings which may ultimately give rise to proceedings before a criminal court. This may include, for example: objects, documents or data from a third party, from a search of premises including the private premises of the suspect, historical data on the use of any services including financial transactions, historical records of statements, interviews and hearings, and other records, including the results of special investigative techniques.

The main provisions of the Framework Decision are as follows:

Issuing authority : in order to protect fundamental rights, the European Evidence Warrant should be issued only by judges, courts, investigating magistrates, public prosecutors and certain other judicial authorities as defined by Member States in accordance with this Framework Decision.

Content and form : the European Evidence Warrant set out in the form provided for in the Annex shall be completed, signed, and its contents certified as accurate, by the issuing authority. It shall be written in, or translated by the issuing State into, the official language or one of the official languages of the executing State.

Recognition : the executing authority shall recognise a European Evidence Warrant, transmitted in accordance with the provisions of the text, without any further formality being required and shall take the necessary measures for its execution, unless that authority decides to invoke one of the grounds for non-recognition or non-execution or one of the grounds for postponement provided for in the text.

Deadlines for recognition, execution and transfer : any decision to refuse recognition or execution shall be taken as soon as possible and no later than 30 days after the receipt of the European Evidence Warrant by the competent executing authority. Unless grounds for postponement exist or the executing authority has the objects, documents or data sought already in its possession, the executing authority shall take possession of the objects, documents or data without delay and no later than 60 days after the receipt of the European Evidence Warrant by the competent executing authority.

Personal data : personal data obtained under this Framework Decision may be used by the issuing State for the purpose of: (a) proceedings for which the European Evidence Warrant may be issued; (b) other judicial and administrative proceedings directly related to the proceedings referred to under point (a); (c) preventing an immediate and serious threat to public security.

For any purpose other than those set out above, personal data may be used only with the prior consent of the executing State, unless the issuing State has obtained the consent of the data subject.

Double criminality : the Framework Decision provides that, for 32 categories of offence, the executing State shall not invoke double criminality for refusing to execute a European Evidence Warrant if the offence in question is punished in the issuing State by a custodial sentence of at least three years.

Legal remedies : Member States shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, have legal remedies against the recognition and execution of a European Evidence Warrant, in order to preserve their legitimate interests. Member States may limit the legal remedies provided for to cases in which the European Evidence Warrant is executed using coercive measures.

Existing mutual assistance procedures : the European Evidence Warrant should coexist with existing mutual assistance procedures. Such coexistence should be considered transitional until, in accordance with the Hague Programme, the types of evidence-gathering excluded from the scope of this Framework Decision are also the subject of a mutual recognition instrument, the adoption of which would provide a complete mutual recognition regime to replace mutual assistance procedures. In this context, mutual assistance requests received before 19 January 2011 shall continue to be governed by existing instruments relating to mutual assistance in criminal matters.

Implementation : Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 19 January 2011.

Through the opt out mechanism, Germany may, by a declaration, reserve its right to make the execution of a European Evidence Warrant subject to verification of double criminality in cases relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling if it is necessary to carry out a search or seizure for the execution of the European Evidence Warrant, except where the issuing authority has declared that the offence concerned under the law of the issuing State falls within the scope of criteria indicated in the declaration.

The Commission shall, by 19 January 2012, submit a report assessing the extent to which the Member States have taken the necessary measures in order to comply with this Framework Decision, accompanied, if necessary, by legislative proposals.

Review : each Member State shall each year before 1 May inform the Council and the Commission of any difficulties encountered by it during the previous calendar year concerning the execution of European Evidence Warrants in relation to grounds for non-recognition or non-execution.

No later than 19 January 2014, the Commission shall establish a report accompanied by any initiatives it may deem appropriate. On the basis of the report the Council shall review this Framework Decision with a view to considering whether the following provisions should be repealed or modified: Article 13(1) and (3) (grounds for non-recognition or non-execution) and Article 23(4) (opt out mechanism for Germany).

ENTRY INTO FORCE: 20/01/2009.

The European Parliament adopted, by 568 votes to 67 with 34 abstentions, a legislative resolution amending the Council framework decision on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. The report had been tabled for consideration in plenary by Gérard DEPREZ (ALDE, BE), on behalf of the Committee on Civil Liberties, Justice and Home Affairs.

The European Parliament is asked to give a second opinion on this proposal, which was the subject of a Council compromise.

The main amendments – adopted in the framework of the consultation procedure – are as follows :

Issuing authority : the definition of issuing authority is narrowed so that it includes only a judge, investigating magistrate or public prosecutor competent under national law to issue a European Evidence Warrant.. Members deleted the part of Council's text where issuing authority could also mean a court and any other judicial authority as defined by the issuing State and, in the specific case, acting in its capacity as an investigating authority in criminal proceedings with competence to order the obtaining of evidence in cross-border cases in accordance with national law.

Scope : a new clause states that the European Evidence Warrant is an instrument available to both the defence and the prosecution. Consequently both the defence and the prosecution may ask the competent judicial authority to issue a European Evidence. Members deleted the Council's text stating that the EEW may, if requested by the issuing authority, also cover taking statements from persons present during the execution of the EEW and directly related to the subject of the EEW. They felt that there was no reason for this clause.

Issuing conditions: the issuing authority shall certify in the warrant that the conditions laid down have been fulfilled.

Administration : Parliament deleted the clause in the Council's text stating that a Member State may, if necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of the EEW as well as for other official correspondence relating thereto

Data protection : anyone affected by an exchange of data carried out in accordance with the present framework decision may claim the right to data protection, including blocking, correction, deletion and access to information pertaining to them, as well as access to any means of redress to which they are entitled under the legislation of the issuing State or the executing State.

Safeguards for execution : pending the adoption of a far-reaching instrument in the field of procedural safeguards, Members proposed to establish, at the least, minimum procedural safeguards concerning execution of the European Evidence Warrant. A new clause stipulates that each Member State shall take the necessary measures to ensure that the European Evidence Warrant is executed in accordance with certain minimum conditions. Each Member State must also take the necessary measures to ensure that, where a search and seizure is considered necessary in order to obtain objects, documents or data, certain minimum safeguards shall apply. Parliament added that Member States must do everything they can before the date of application of the Framework Decision to agree a Framework Decision on procedural rights in criminal proceedings throughout the European Union, taking the European Parliament's opinion into consideration.

Requirements by issuing authority : the issuing authority may also require the executing authority to: preserve the confidentiality of the investigation; allow a competent authority from the issuing State to be present at the execution of the warrant and to have access, to any object, document or item of data obtained; record the names of the people through whose hands the evidence has passed between the execution of the warrant and its transfer to the issuing State.

Grounds for non-recognition or non-execution : recognition or execution of the EEW may be refused in the executing State: (i) if the offence on which it is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law; (ii) if the person who is the subject of the European evidence warrant may not, owing to his age, be held criminally responsible for the acts on which the evidence warrant is based under the law of the executing Member State.

Territoriality : the Council had inserted a 'territoriality clause' which was not in the original proposal. This allowed a Member State to refuse an EEW if the EEW relates to criminal offences which: (i) under the law of the executing State are regarded as having been committed wholly or for a major or essential part within its territory, or in a place equivalent to its territory; or (ii) were committed outside the territory of the issuing State, and the law of the executing State does not permit legal proceedings to be taken in respect of such offences where they are committed outside that State's territory. Parliament deleted this clause.

Double criminality : the Council had stated that if it is necessary to carry out a search or seizure for the execution of the EEW, certain offences, if they are punishable in the issuing State by a custodial sentence or a detention order for a maximum period of at least three years, shall not be subject to verification of double criminality under any circumstances. Members deleted the text on custodial sentence and detention orders, and felt that verification of double criminality should gradually disappear from instruments founded on mutual recognition.

Deadlines : Members stated that it was necessary to set a maximum deadline for the transfer of the objects, documents or data obtained under a European Evidence Warrant. Accordingly, the executing State shall transfer to the issuing State the objects, documents or data obtained by virtue of the European Evidence Warrant, immediately where the latter are already under the control of the executing authority or, where this is not the case, as early as possible and no later than 30 days following the date on which the executing authority takes possession of the evidence. Failure to meet deadlines can only be justified by exceptional circumstances.

Remedies : Members deleted a clause stating that Member States may limit the legal remedies provided for to cases in which the EEW is executed using coercive measures.

Opt-out clause : an opt-out clause in favour of Germany was deleted. The clause had stated that Germany may reserve its right to make the execution of an EEW subject to verification of double criminality in cases relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling if it is necessary to carry out a search or seizure for the execution of the EEW, except where the issuing authority has declared that the offence concerned under the law of the issuing State falls within the scope of criteria indicated in the declaration.

The Committee on Civil Liberties, Justice and Home Affairs adopted a report drafted by Gérard DEPREZ (ALDE, BE), and amended the Council framework decision on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

The European Parliament is asked to give a second opinion on this proposal, which was the subject of a Council compromise.

The main amendments – adopted in the framework of the consultation procedure – are as follows :

Issuing authority : the committee felt that one of the most important guarantees for the public is that evidence should only be collected by the judicial authorities. The definition of issuing authority is narrowed so that it includes only a judge, investigating magistrate or public prosecutor competent under national law. Members deleted the part of Council's text where issuing authority could also mean any other judicial authority as defined by the issuing State and, in the specific case, acting in its capacity as an investigating authority in criminal proceedings.

Scope: a new clause states that the European Evidence Warrant is an instrument available to both the defence and the prosecution. Consequently both the defence and the prosecution may ask the competent judicial authority to issue a European Evidence. Members deleted the Council's text stating that the EEW may, if requested by the issuing authority, also cover taking statements from persons present during the execution of the EEW and directly related to the subject of the EEW. They felt that there was no reason for this clause.

Issuing conditions: the issuing authority shall certify in the warrant that the conditions laid down have been fulfilled.

Data protection : anyone affected by an exchange of data carried out in accordance with the present framework decision may claim the right to data protection, including blocking, correction, deletion and access to information pertaining to them, as well as access to any means of redress to which they are entitled under the legislation of the issuing State or the executing State.

Safeguards for execution : pending the adoption of a far-reaching instrument in the field of procedural safeguards, Members proposed to establish, at the least, minimum procedural safeguards concerning execution of the European Evidence Warrant. A new clause stipulates that each Member State shall take the necessary measures to ensure that the European Evidence Warrant is executed in accordance with certain minimum conditions .

Grounds for non-recognition or non-execution : recognition or execution of the EEW may be refused in the executing State: (i) if the offence on which it is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law; (ii) if the person who is the subject of the European evidence warrant may not, owing to his age, be held criminally responsible for the acts on which the evidence warrant is based under the law.

Territoriality : the Council had inserted a 'territoriality clause' which was not in the original proposal. This allowed a Member State to refuse an EEW if the EEW relates to criminal offences which: (i) under the law of the executing State are regarded as having been committed wholly or for a major or essential part within its territory, or in a place equivalent to its territory; or (ii) were committed outside the territory of the issuing State, and the law of the executing State does not permit legal proceedings to be taken in respect of such offences where they are committed outside that State's territory. The committee felt that such a clause had no place in an instrument founded on mutual recognition.

Double criminality : the Council had stated that if it is necessary to carry out a search or seizure for the execution of the EEW, certain offences , if they are punishable in the issuing State by a custodial sentence or a detention order for a maximum period of at least three years, shall not be subject to verification of double criminality under any circumstances. Members deleted the text on custodial sentence and detention orders, and felt that verification of double criminality should gradually disappear from instruments founded on mutual recognition.

Deadlines : Members stated that it was necessary to set a maximum deadline for the transfer of the objects, documents or data obtained under a European Evidence Warrant. Accordingly, the executing State shall transfer to the issuing State the objects, documents or data obtained by virtue of the European Evidence Warrant, immediately where the latter are already under the control of the executing authority or, where this is not the case, as early as possible and no later than 30 days following the date on which the executing authority takes possession of the evidence. Failure to meet deadlines can only be justified by exceptional circumstances.

Remedies: Members deleted a clause stating that Member States may limit the legal remedies provided for to cases in which the EEW is executed using coercive measures. Pending the adoption of a far-reaching instrument in the area of procedural safeguards, they felt that it would be appropriate to establish, at the least, minimum procedural safeguards concerning execution of the European Evidence Warrant, and therefore to provide for the broadest possible means of remedy.

Opt-out clause : an opt-out clause in favour of Germany was deleted. The clause had stated that Germany may reserve its right to make the execution of an EEW subject to verification of double criminality in cases relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling if it is necessary to carry out a search or seizure for the execution of the EEW, except where the issuing authority has declared that the offence concerned under the law of the issuing State falls within the scope of criteria indicated in the declaration. Members stated that the inclusion of an opt-out clause in a Europe-wide legal instrument is in itself contrary to the European spirit, where the trend should be towards increasing consolidation of shared bases of cooperation between Member States.

Before proceeding with the final adoption of the Framework Decision, and in view of the substantial amendments made to the Commission’s initial proposal, the Council has requested that the European Parliament give a second opinion in time for the 20-23 October 2008 plenary session.

The key features of the draft Decision as agreed upon by the Council are the following:

Main purpose of the EEW : the underlying idea is that the European Evidence Warrant is an order that would be issued by a judicial authority in one Member State and directly recognised and enforced by a judicial authority in another Member State. As compared to the existing mutual assistance procedures that it would replace, the European Evidence Warrant would bring benefits including faster procedures and clear safeguards for the issuing of a warrant and for its execution.

Scope of application and type of proceedings concerned : the European Evidence Warrant covers the objects, documents and data specified needed in the issuing State for the purpose of criminal proceedings or other proceedings that might give rise to further proceedings before a criminal court.

The EEW is being established in two steps . The first step covers in principle evidence which exists and is readily available. The Commission will in due course make a proposal for a second instrument to cover other evidence. This means that the following evidence is not included in the provisions just agreed and will be covered by the second instrument:

to conduct interviews, taking statements or initiating other types of hearings involving suspects, witnesses, experts or any other party; to carry out bodily examinations or obtain bodily material or biometric data directly from the body of any person, including DNA samples or fingerprints; to obtain information in real-time such as through the interception of communications, covert surveillance or monitoring of bank accounts; to conduct analysis of existing objects, documents or data.

The Council added to the Commission's proposal, the obtaining from the executing authority of communications data retained by providers of a publicly available electronic communications service or a public communications network.

Nevertheless, under the text agreed, evidence falling in these categories which has been gathered prior to the issuing of the warrant it is also covered.

Issuing and transmission of an EEW : the European Evidence Warrant will be a single document translated by the issuing authority into an official language of the executing State. No further translation would be necessary. This means that the European Evidence Warrant could be executed immediately in the same way as a domestic procedural measure. It would lay down the objective to be achieved, while leaving it to the executing State to decide on the most appropriate way of obtaining the evidence in accordance with its domestic law.

Before sending an EEW, the issuing authority has to assess that the objects, documents or data can be obtained under the law of the issuing State in a comparable case if they were available on the territory of the issuing State, even though different procedural measures might be used.

Recognition and execution of a EEW : the executing authority will recognise a EEW, transmitted in accordance with rules provided for in the text, without any further formality being required and take the necessary measures for its execution unless that authority decides to invoke one of the grounds for non-recognition or non-execution or one of the grounds for postponement specified in the text.

In principle, any decision to refuse recognition or execution must be taken as soon as possible, and no later than 30 days after the receipt of the European Evidence Warrant by the competent executing authority. Unless either grounds for postponement exist or the executing authority has the objects, documents or data sought already in its possession, the executing authority will, in general, execute the EEW without delay, and no later than 60 days after the receipt of the European Evidence Warrant.

Grounds for non-recognition and non-execution of a EEW :

1) Territoriality : the original Commission proposal did not provide for any territoriality clause. The solution retained in the compromise text limits the scope of that ground for refusal to the cases where the offence concerned has been committed wholly or partly in the territory of the executing State, but the decision to refuse must be taken exceptionally and on a case-by-case basis. Where a competent authority considers using the ground for refusal, it shall consult Eurojust before taking the decision. Where a competent authority is not in agreement with Eurojust's opinion, Member States shall ensure that it give the reasons for its decision and that the Council be informed.

2) Double criminality : regarding the definition of offences, the proposal provides that for 32 categories of offences, double criminality may not be invoked by the executing State as a ground for refusing an EEW if the offence concerned is punishable in the issuing State with at least three years of imprisonment. If the EEW is not related to any of the offences set out in the list and its execution would require a search or seizure, recognition or execution of the EEW may be subject to the condition of double criminality

If the EEW is not related to any of the offences set out in the list and its execution would require a search or seizure, recognition or execution of the EEW may be subject to the condition of double criminality. In relation to offences in connection with taxes or duties, customs and exchange, recognition or execution may not be opposed on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing State.

Germany may, by a declaration, reserve its right to make the execution of an EEW subject to verification of double criminality in cases relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling if it is necessary to carry out a search or seizure for the execution of the EEW, except where the issuing authority has declared that the offence concerned under the law of the issuing State falls within the scope of criteria indicated in the declaration.

The condition of double criminality shall be further examined by the Council five years after the entry into force of the Framework Directive in the light of any information transmitted to the Council. The Council may decide, acting unanimously, after consultation of the European Parliament, to add other categories of offences to the list.

The Council preparatory bodies will finalise the necessary form for the EEW and the recitals of the text with a view to the adoption of the text as soon as possible.

Before proceeding with the final adoption of the Framework Decision, and in view of the substantial amendments made to the Commission’s initial proposal, the Council has requested that the European Parliament give a second opinion in time for the 20-23 October 2008 plenary session.

The key features of the draft Decision as agreed upon by the Council are the following:

Main purpose of the EEW : the underlying idea is that the European Evidence Warrant is an order that would be issued by a judicial authority in one Member State and directly recognised and enforced by a judicial authority in another Member State. As compared to the existing mutual assistance procedures that it would replace, the European Evidence Warrant would bring benefits including faster procedures and clear safeguards for the issuing of a warrant and for its execution.

Scope of application and type of proceedings concerned : the European Evidence Warrant covers the objects, documents and data specified needed in the issuing State for the purpose of criminal proceedings or other proceedings that might give rise to further proceedings before a criminal court.

The EEW is being established in two steps . The first step covers in principle evidence which exists and is readily available. The Commission will in due course make a proposal for a second instrument to cover other evidence. This means that the following evidence is not included in the provisions just agreed and will be covered by the second instrument:

to conduct interviews, taking statements or initiating other types of hearings involving suspects, witnesses, experts or any other party; to carry out bodily examinations or obtain bodily material or biometric data directly from the body of any person, including DNA samples or fingerprints; to obtain information in real-time such as through the interception of communications, covert surveillance or monitoring of bank accounts; to conduct analysis of existing objects, documents or data.

The Council added to the Commission's proposal, the obtaining from the executing authority of communications data retained by providers of a publicly available electronic communications service or a public communications network.

Nevertheless, under the text agreed, evidence falling in these categories which has been gathered prior to the issuing of the warrant it is also covered.

Issuing and transmission of an EEW : the European Evidence Warrant will be a single document translated by the issuing authority into an official language of the executing State. No further translation would be necessary. This means that the European Evidence Warrant could be executed immediately in the same way as a domestic procedural measure. It would lay down the objective to be achieved, while leaving it to the executing State to decide on the most appropriate way of obtaining the evidence in accordance with its domestic law.

Before sending an EEW, the issuing authority has to assess that the objects, documents or data can be obtained under the law of the issuing State in a comparable case if they were available on the territory of the issuing State, even though different procedural measures might be used.

Recognition and execution of a EEW : the executing authority will recognise a EEW, transmitted in accordance with rules provided for in the text, without any further formality being required and take the necessary measures for its execution unless that authority decides to invoke one of the grounds for non-recognition or non-execution or one of the grounds for postponement specified in the text.

In principle, any decision to refuse recognition or execution must be taken as soon as possible, and no later than 30 days after the receipt of the European Evidence Warrant by the competent executing authority. Unless either grounds for postponement exist or the executing authority has the objects, documents or data sought already in its possession, the executing authority will, in general, execute the EEW without delay, and no later than 60 days after the receipt of the European Evidence Warrant.

Grounds for non-recognition and non-execution of a EEW :

1) Territoriality : the original Commission proposal did not provide for any territoriality clause. The solution retained in the compromise text limits the scope of that ground for refusal to the cases where the offence concerned has been committed wholly or partly in the territory of the executing State, but the decision to refuse must be taken exceptionally and on a case-by-case basis. Where a competent authority considers using the ground for refusal, it shall consult Eurojust before taking the decision. Where a competent authority is not in agreement with Eurojust's opinion, Member States shall ensure that it give the reasons for its decision and that the Council be informed.

2) Double criminality : regarding the definition of offences, the proposal provides that for 32 categories of offences, double criminality may not be invoked by the executing State as a ground for refusing an EEW if the offence concerned is punishable in the issuing State with at least three years of imprisonment. If the EEW is not related to any of the offences set out in the list and its execution would require a search or seizure, recognition or execution of the EEW may be subject to the condition of double criminality

If the EEW is not related to any of the offences set out in the list and its execution would require a search or seizure, recognition or execution of the EEW may be subject to the condition of double criminality. In relation to offences in connection with taxes or duties, customs and exchange, recognition or execution may not be opposed on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing State.

Germany may, by a declaration, reserve its right to make the execution of an EEW subject to verification of double criminality in cases relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling if it is necessary to carry out a search or seizure for the execution of the EEW, except where the issuing authority has declared that the offence concerned under the law of the issuing State falls within the scope of criteria indicated in the declaration.

The condition of double criminality shall be further examined by the Council five years after the entry into force of the Framework Directive in the light of any information transmitted to the Council. The Council may decide, acting unanimously, after consultation of the European Parliament, to add other categories of offences to the list.

The Council preparatory bodies will finalise the necessary form for the EEW and the recitals of the text with a view to the adoption of the text as soon as possible.

At its meeting on 1 and 2 June 2006, the Justice and Home Affairs Council agreed on a general approach to the proposal for a Framework Decision on the European evidence warrant and instructed its preparatory bodies to give further consideration to the broader issue of the categories of offence, with a view to the adoption by the Council of a horizontal approach by the end of 2007 in relation to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion, and swindling.

The horizontal approach stems from the wish of a Member State which argued that those categories of offence might differ greatly in substance and in coverage from one legal system to another. In its view, a common understanding by Member States of the substance of the six categories in question could eliminate that scope for differing interpretations.

The Council believes that legal instruments based on the principle of mutual recognition, such as the European arrest warrant, have not yet been in application for long enough to identify any problems in putting them into practice. In order to discover any such problems, the European evidence warrant would also need to be assessed. This will have to wait until the evidence warrant has been implemented in all Member States. Only then will it be possible to ascertain whether and, if so, on what basis any specific steps can be taken towards a horizontal instrument.

The Council reached a general approach on a draft Decision on the EEW for obtaining objects, documents and data for use in proceedings in criminal matters. The aim of this proposal is to establish a mechanism to facilitate the obtaining of evidence in cross-border cases based on mutual recognition principles.

The Council's agreement is based on a compromise text put forward by the Presidency which, in particular, addressed the two main outstanding issues, i.e. the possibility of a refusal of an EEW because of reasons linked to territoriality, and the definition of offences.

The key features of the draft Decision as agreed upon by the Council are the following:

Main purpose of the EEW :

The underlying idea is that the European Evidence Warrant is an order that would be issued by a judicial authority in one Member State and directly recognised and enforced by a judicial authority in another Member State. As compared to the existing mutual assistance procedures that it would replace, the European Evidence Warrant would bring benefits including faster procedures and clear safeguards for the issuing of a warrant and for its execution.

Scope of application and type of proceedings concerned :

The European Evidence Warrant covers the objects, documents and data specified needed in the issuing State for the purpose of criminal proceedings or other proceedings that might give rise to further proceedings before a criminal court.

The EEW is being established in two steps. The first step covers in principle evidence which exists and is readily available. The Commission will in due course make a proposal for a second instrument to cover other evidence. This means that the following evidence is not included in the provisions just agreed and will be covered by the second instrument:

to conduct interviews, taking statements or initiating other types of hearings involving suspects, witnesses, experts or any other party; to carry out bodily examinations or obtain bodily material or biometric data directly from the body of any person, including DNA samples or fingerprints; to obtain information in real-time such as through the interception of communications, covert surveillance or monitoring of bank accounts; to conduct analysis of existing objects, documents or data.

The Council added to the Commission's proposal, the obtaining from the executing authority of communications data retained by providers of a publicly available electronic communications service or a public communications network.

Nevertheless, under the text agreed, evidence falling in these categories which has been gathered prior to the issuing of the warrant it is also covered. For example, this would include obtaining a statement previously given by a suspect to an investigating authority in the executing State with respect to an earlier investigation conducted by that State.

Issuing and transmission of an EEW: The European Evidence Warrant will be a single document translated by the issuing authority into an official language of the executing State. No further translation would be necessary. This means that the European Evidence Warrant could be executed immediately in the same way as a domestic procedural measure. It would lay down the objective to be achieved, while leaving it to the executing State to decide on the most appropriate way of obtaining the evidence in accordance with its domestic law.

Before sending an EEW, the issuing authority has to assess that the objects, documents or data can be obtained under the law of the issuing State in a comparable case if they were available on the territory of the issuing State, even though different procedural measures might be used.

The EEW may be transmitted to a Member State in which the competent authority of the issuing State has reasonable grounds to believe that relevant objects, documents or data are located or, in the case of electronic data, directly accessible under the law of the executing State.

Recognition and execution of a EEW: The executing authority will recognise a EEW, transmitted in accordance with rules provided for in the text, without any further formality being required and take the necessary measures for its execution unless that authority decides to invoke one of the grounds for non-recognition or non-execution or one of the grounds for postponement specified in the text.

In principle, any decision to refuse recognition or execution must be taken as soon as possible, and no later than 30 days after the receipt of the European Evidence Warrant by the competent executing authority. Unless either grounds for postponement exist or the executing authority has the objects, documents or data sought already in its possession, the executing authority will, in general, execute the EEW without delay, and no later than 60 days after the receipt of the European Evidence Warrant.

Grounds for non-recognition and non-execution of a EEW:

Territoriality : the original Commission proposal did not provide for any territoriality clause. However, the Council decided to include it in the text at its February 2005 meeting. The solution retained in the compromise text limits the scope of that ground for refusal to the cases where the offence concerned has been committed wholly or partly in the territory of the executing State, but the decision to refuse must be taken exceptionally and on a case-by-case basis. Where a competent authority considers using territoriality as a ground for refusal of a EEW, it will consult Eurojust before taking the decision. If the competent authority is not in agreement with Eurojust's opinion, Member States shall ensure that it will motivate its decision and that the Council be informed. Double criminality : regarding the definition of offences, the proposal provides that, for 32 categories of offences, double criminality may not be invoked by the executing State as a ground for refusing an EEW if the offence concerned is punishable in the issuing State with at least three years of imprisonment. This approach is in line with earlier instruments such as the European arrest warrant, freezing orders, financial penalties or the draft text on confiscation orders.

However, Germany may by a declaration reserve its right to make the execution of an EEW subject to verification of double criminality in cases relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling, if it is necessary to carry out a search or seizure for the execution of the EEW, except where the issuing authority has declared that the offence concerned under the law of the issuing State falls within the scope of criteria indicated in the declaration. The provisions relating to territoriality and to the German possibility for opting-out for the definition of offences will be reviewed by the Council no later than 5 years after the entry into force of this framework Decision.

The Council preparatory bodies will finalise the necessary form for the EEW and the recitals of the text with a view to the adoption of the text as soon as possible.

The Council examined two important outstanding issues in this proposal:

1) definition of offences : the proposal provides that, for 32 categories of offence, double criminality may not be invoked by the executing State as a ground for refusing an EEW if the offence concerned is punishable in the issuing State with a maximum of at least 3 years of imprisonment. This approach is in line with earlier instruments such as the European arrest warrant, freezing orders, financial penalties or the draft text on confiscation orders. However, one delegation called for the introduction of legally binding criteria defining 6 of these 32 offences. The other delegations and the Commission could not agree to that, but could only accept the inclusion of criteria of an advisory nature. The matter was sent back to the relevant Council working parties with a view to exploring different possibilities for finding a compromise;

2) telecommunication and electronic data : the competent bodies of the Council should examine if it could be included in the scope of the Framework Decision.

The Council discussed the following questions concerning this draft Framework Decision:

1) definition of offences, and

2) measures available for execution.

Regarding definition of offences, a large majority of delegations supported the approach suggested by the Presidency, which consisted in:

• keeping the draft Framework Decision unchanged regarding a list of 32 offences for which double criminality may not be invoked as a ground for refusal;

• drafting a Council Statement defining certain of the offences listed in the text, i.e. racism and xenophobia and sabotage;

• introducing a recital regarding peer evaluation on the application of the European Evidence Warrant (EEW).

The Council confirmed agreement on a provision regarding certain measures that Member States must have available for the purpose of executing EEWs. These measures include those which would be available in a similar domestic case. The measures available must include search and seizure in respect of a list of 32 offences. It was also accepted that it should be possible to refuse to execute the EEW where the measures which must be available do not allow for execution in a specific case.

The Council held an exchange of views on a Framework Decision on the European Evidence Warrant (EEW) for obtaining objects, documents and data for use in proceedings in criminal matters.

The debate focused on grounds for refusal based on the principle of territoriality, definitions of offences and legal remedies, and on the question of which authorities should be competent for issuing, postponing and refusing EEWs.

The Council asked the Permanent Representatives Committee to continue negotiations on this file.

The text adopts the same approach to mutual recognition as the European arrest warrant. The EEW would thus be a single document translated by the issuing authority into an official language of the executing State. No further translation would be necessary. This means that the EEW could be executed immediately in the same way as a domestic procedural measure. It would lay down the objective to be achieved, while leaving it to the executing State to decide the most appropriate manner for obtaining the evidence in accordance with its domestic law.

The Council broadly agreed on certain principles which will apply when issuing and executing an EEW. The debate focused on the conditions under which the obligation to assist a Member State should arise and the cases in which a State can refuse the warrant.

The EEW is a judicial decision intended to improve existing cooperation arrangements for crossborder exchange of evidence (objects, documents or data) in criminal proceedings. This facilitates national investigations and prosecutions.

The EEW could be issued when evidence is necessary for the purpose of proceedings, provided that the evidence sought could have been obtained under the law of the issuing State.

The Framework Decision on the EEW is a mutual recognition measure, with a deadline for completion by the end of 2005. Its adoption requires unanimity.

The Council held a policy debate on two questions relating to the draft Framework Decision on the European Evidence Warrant: the territoriality clause and the question of possible inclusion of a provision on computer data in the territory of another Member State.

The JHA Council had discussed the need for a territoriality clause at its meeting on 24 February 2005 and agreed that the text should contain such a clause but decided to discuss the scope and exact wording of the clause at a subsequent meeting.

The present wording provides that a European Evidence Warrant may be refused if it relates to criminal offences which:

- under the law of the executing State are regarded as having been committed wholly or partly within its territory, or in a place equivalent to its territory, or

- were committed outside the territory of the issuing State, and the law of the executing State does not permit legal proceedings to be taken in respect of such offences where they are committed outside that State's territory.

Several delegations considered that the inclusion of such a territoriality clause would involve too great a limitation on mutual assistance in criminal matters.

The other question related to the possibility of obtaining computer information from another Member State for procedural purposes. The majority of delegations considered that judicial cooperation questions in this area should be dealt with more fully in a separate instrument and that it would be desirable to gain greater experience first with the application of other instruments, such as the 2000 Convention on Mutual Assistance in Criminal Matters and the 2001 Council of Europe Convention on Cybercrime.

The Council agreed on a general approach to certain aspects of the proposal for a Framework Decision on the European Evidence Warrant (EEW) for obtaining objects, documents and data for use in proceedings in criminal matters.

The Council agreed to a list of 32 offences with regard to which it will not be possible to invoke double criminality (the list is the same as that in the Framework Decision on the European arrest warrant). Other offences may be added later by unanimous agreement. The offences concerned must be punishable in the State of issue of the warrant by a term of imprisonment of more than three years.

It was also decided that the Framework Decision should include the principle of a "territoriality clause" enabling a Member State to refuse a European evidence warrant where the offences were committed wholly or partly on its territory. The scope of the clause will be reviewed at technical level.

The Council will review the Framework Decision five years after its adoption, in the light of practical experience.