Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States

The purpose of this Framework Decision is: (a) to define the ways in which a Member State where a conviction is handed down against a national of another Member State (the ‘convicting Member State’) transmits the information on such a conviction to the Member State of the convicted person’s nationality (the ‘Member State of the person’s nationality’); (b) to define storage obligations for the Member State of the person’s nationality and to specify the methods to be followed when replying to a request for information extracted from criminal records; (c) to lay down the framework for a computerised system of exchange of information on convictions between Member States to be built and developed on the basis of this Framework Decision and the subsequent decision referred to in Article 11(4).

For the purposes of this Framework Decision: (a) ‘conviction’ means any final decision of a criminal court against a natural person in respect of a criminal offence, to the extent these decisions are entered in the criminal record of the convicting Member State; (b) ‘criminal proceedings’ means the pre-trial stage, the trial stage itself and the execution of the conviction; (c) ‘criminal record’ means the national register or registers recording convictions in accordance with national law.

1 For the purposes of this Framework Decision, each Member State shall designate a central authority. However, for the transmission of information under Article 4 and for replies under Article 7 to requests referred to in Article 6, Member States may designate one or more central authorities.

2 Each Member State shall inform the General Secretariat of the Council and the Commission of the central authority or authorities designated in accordance with paragraph 1. The General Secretariat of the Council shall notify the Member States and Eurojust of this information.

1 Each Member State shall take the necessary measures to ensure that all convictions handed down within its territory are accompanied, when provided to its criminal record, by information on the nationality or nationalities of the convicted person if he is a national of another Member State.

2 The central authority of the convicting Member State shall, as soon as possible, inform the central authorities of the other Member States of any convictions handed down within its territory against the nationals of such other Member States, as entered in the criminal record. If it is known that the convicted person is a national of several Member States, the relevant information shall be transmitted to each of these Member States, even if the convicted person is a national of the Member State within whose territory he was convicted.

3 Information on subsequent alteration or deletion of information contained in the criminal record shall be immediately transmitted by the central authority of the convicting Member State to the central authority of the Member State of the person’s nationality.

4 Any Member State which has provided information under paragraphs 2 and 3 shall communicate to the central authority of the Member State of the person’s nationality, on the latter’s request in individual cases, a copy of the convictions and subsequent measures as well as any other information relevant thereto in order to enable it to consider whether they necessitate any measure at national level.

1 The central authority of the Member State of the person’s nationality shall store all information in accordance with Article 11(1) and (2) transmitted under Article 4(2) and (3), for the purpose of retransmission in accordance with Article 7.

2 Any alteration or deletion of information transmitted in accordance with Article 4(3) shall entail identical alteration or deletion by the Member State of the person’s nationality regarding information stored in accordance with paragraph 1 of this Article for the purpose of retransmission in accordance with Article 7.

3 For the purpose of retransmission in accordance with Article 7 the Member State of the person’s nationality may only use information which has been updated in accordance with paragraph 2 of this Article.

1 When information from the criminal record of a Member State is requested for the purposes of criminal proceedings against a person or for any purposes other than that of criminal proceedings, the central authority of that Member State may, in accordance with its national law, submit a request to the central authority of another Member State for information and related data to be extracted from the criminal record.

2 When a person asks for information on his own criminal record, the central authority of the Member State in which the request is made may, in accordance with its national law, submit a request to the central authority of another Member State for information and related data to be extracted from the criminal record, provided the person concerned is or was a resident or a national of the requesting or requested Member State.

3 Once the time limit set out in Article 11(7) has elapsed, whenever a person asks the central authority of a Member State other than the Member State of the person’s nationality for information on his own criminal record, the central authority of the Member State in which the request is made shall submit a request to the central authority of the Member State of the person’s nationality for information and related data to be extracted from the criminal record in order to be able to include such information and related data in the extract to be provided to the person concerned.

4 All requests from the central authority of a Member State for information extracted from the criminal record shall be submitted using the form set out in the Annex.

1 When information extracted from the criminal record is requested under Article 6 from the central authority of the Member State of the person’s nationality for the purposes of criminal proceedings, that central authority shall transmit to the central authority of the requesting Member State information on: (a) convictions handed down in the Member State of the person’s nationality and entered in the criminal record; (b) any convictions handed down in other Member States which were transmitted to it after 27 April 2012, in application of Article 4, and stored in accordance with Article 5(1) and (2); (c) any convictions handed down in other Member States which were transmitted to it by 27 April 2012, and entered in the criminal record; (d) any convictions handed down in third countries and subsequently transmitted to it and entered in the criminal record.

2 When information extracted from the criminal record is requested under Article 6 from the central authority of the Member State of the person’s nationality for any purposes other than that of criminal proceedings, that central authority shall in respect of convictions handed down in the Member State of the person’s nationality and of convictions handed down in third countries, which have been subsequently transmitted to it and entered in its criminal record, reply in accordance with its national law. In respect of information on convictions handed down in another Member State, which have been transmitted to the Member State of the person’s nationality, the central authority of the latter Member State shall in accordance with its national law transmit to the requesting Member State the information which has been stored in accordance with Article 5 (1) and (2) as well as the information which has been transmitted to that central authority by 27 April 2012, and has been entered in its criminal record. When transmitting the information in accordance with Article 4, the central authority of the convicting Member State may inform the central authority of the Member State of the person’s nationality that the information on convictions handed down in the former Member State and transmitted to the latter central authority may not be retransmitted for any purposes other than that of criminal proceedings. In this case, the central authority of the Member State of the person’s nationality shall, in respect of such convictions, inform the requesting Member State which other Member State had transmitted such information so as to enable the requesting Member State to submit a request directly to the convicting Member State in order to receive information on these convictions.

3 When information extracted from the criminal record is requested from the central authority of the Member State of the person’s nationality by a third country, the Member State of the person’s nationality may reply in respect of convictions transmitted by another Member State only within the limitations applicable to the transmission of information to other Member States in accordance with paragraphs 1 and 2.

4 When information extracted from the criminal record is requested under Article 6 from the central authority of a Member State other than the Member State of the person’s nationality, the requested Member State shall transmit information on convictions handed down in the requested Member State and on convictions handed down against third country nationals and against stateless persons contained in its criminal record to the same extent as provided for in Article 13 of the European Convention on Mutual Assistance in Criminal Matters.

5 The reply shall be made using the form set out in the Annex. It shall be accompanied by a list of convictions, as provided for by national law.

1 Replies to the requests referred to in Article 6(1) shall be transmitted by the central authority of the requested Member State to the central authority of the requesting Member State immediately and in any event within a period not exceeding ten working days from the date the request was received, as provided for by its national law, rules or practice, using the form set out in the Annex. When the requested Member State requires further information to identify the person involved in the request, it shall immediately consult the requesting Member State with a view to providing a reply within ten working days from the date the additional information is received.

2 Replies to the request referred to in Article 6(2) shall be transmitted within twenty working days from the date the request was received.

1 Personal data provided under Article 7(1) and (4) for the purposes of criminal proceedings may be used by the requesting Member State only for the purposes of the criminal proceedings for which it was requested, as specified in the form set out in the Annex.

2 Personal data provided under Article 7(2) and (4) for any purposes other than that of criminal proceedings may be used by the requesting Member State in accordance with its national law only for the purposes for which it was requested and within the limits specified by the requested Member State in the form set out in the Annex.

3 Notwithstanding paragraphs 1 and 2, personal data provided under Article 7(1), (2) and (4) may be used by the requesting Member State for preventing an immediate and serious threat to public security.

4 Member States shall take the necessary measures to ensure that personal data received from another Member State under Article 4, if transmitted to a third country in accordance with Article 7(3), is subject to the same usage limitations as those applicable in a requesting Member State in accordance with paragraph 2 of this Article. Member States shall specify that personal data, if transmitted to a third country for the purposes of a criminal proceeding, may be further used by that third country only for the purposes of criminal proceedings.

5 This Article does not apply to personal data obtained by a Member State under this Framework Decision and originating from that Member State.

When submitting a request referred to in Article 6(1), the requesting Member State shall transmit to the requested Member State the form set out in the Annex in the official language or one of the official languages of the latter Member State. The requested Member State shall reply either in one of its official languages or in any other language accepted by both Member States. Any Member State may, at the time of the adoption of this Framework Decision or at a later date, indicate, in a statement to the General Secretariat of the Council, which are the official languages of the institutions of the European Union that it accepts. The General Secretariat of the Council shall notify the Member States of this information.

1 When transmitting information in accordance with Article 4(2) and (3), the central authority of the convicting Member State shall transmit the following information: (a) information that shall always be transmitted, unless, in individual cases, such information is not known to the central authority (obligatory information): (i) information on the convicted person (full name, date of birth, place of birth (town and State), gender, nationality and – if applicable – previous name(s)); (ii) information on the nature of the conviction (date of conviction, name of the court, date on which the decision became final); (iii) information on the offence giving rise to the conviction (date of the offence underlying the conviction and name or legal classification of the offence as well as reference to the applicable legal provisions); and (iv) information on the contents of the conviction (notably the sentence as well as any supplementary penalties, security measures and subsequent decisions modifying the enforcement of the sentence); (b) information that shall be transmitted if entered in the criminal record (optional information): (i) the convicted person’s parents’ names; (ii) the reference number of the conviction; (iii) the place of the offence; and (iv) disqualifications arising from the conviction; (c) information that shall be transmitted, if available to the central authority (additional information): (i) the convicted person’s identity number, or the type and number of the person’s identification document; (ii) fingerprints, which have been taken from that person; and (iii) if applicable, pseudonym and/or alias name(s). In addition, the central authority may transmit any other information concerning convictions entered in the criminal record.

2 The central authority of the Member State of the person’s nationality shall store all information of the types listed in points (a) and (b) of paragraph 1, which it has received in accordance with Article 5(1) for the purpose of retransmission in accordance with Article 7. For the same purpose it may store the information of the types listed in point (c) of the first subparagraph and in the second subparagraph of paragraph 1.

3 Until the time limit set out in paragraph 7 has elapsed, central authorities of Member States which have not carried out the notification referred to in paragraph 6 shall transmit all information in accordance with Article 4, requests in accordance with Article 6, replies in accordance with Article 7 and other relevant information by any means capable of producing a written record under conditions allowing the central authority of the receiving Member State to establish the authenticity thereof. Once the time limit set out in paragraph 7 of this Article has elapsed, central authorities of Member States shall transmit such information electronically using a standardised format.

4 The format referred to in paragraph 3 and any other means of organising and facilitating exchanges of information on convictions between central authorities of Member States shall be set up by the Council in accordance with the relevant procedures of the Treaty on the European Union by 27 April 2012. Other such means include: (a) defining all means by which understanding and automatically translating transmitted information may be facilitated; (b) defining the means by which information may be exchanged electronically, particularly as regards the technical specification to be used and, if need be, any applicable exchange procedures; (c) possible alterations to the form set out in the Annex.

5 If the mode of transmission referred to in paragraphs 3 and 4 is not available, the first subparagraph of paragraph 3 shall remain applicable for the entire period of such unavailability.

6 Each Member State shall carry out the necessary technical alterations to be able to use the standardised format and electronically transmit it to other Member States. It shall notify the Council of the date from which it will be able to carry out such transmissions.

7 Member States shall carry out the technical alterations referred to in paragraph 6 within three years from the date of adoption of the format and the means by which information on convictions may be exchanged electronically.

1 In relations between the Member States, this Framework Decision supplements the provisions of Article 13 of the European Convention on Mutual Assistance in Criminal Matters, its additional Protocols of 17 March 1978 and 8 November 2001, the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union and its Protocol of 16 October 2001 .

2 For the purposes of this Framework Decision, Member States shall waive the right to rely among themselves on their reservations to Article 13 of the European Convention on Mutual Assistance in Criminal Matters.

3 Without prejudice to their application in relations between Member States and third States, this Framework Decision replaces in relations between Member States which have taken the necessary measures to comply with this Framework Decision and ultimately with effect from 27 April 2012 the provisions of Article 22 of the European Convention on Mutual Assistance in Criminal Matters, as supplemented by Article 4 of said Convention’s additional Protocol of 17 March 1978.

4 Decision 2005/876/JHA is hereby repealed.

5 This Framework Decision shall not affect the application of more favourable provisions in bilateral or multilateral agreements between Member States.

1 Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 27 April 2012.

2 Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision.

3 On the basis of that information the Commission shall, by 27 April 2015, present a report to the European Parliament and the Council on the application of this Framework Decision, accompanied if necessary by legislative proposals.

This Framework Decision shall enter into force on the 20th day following its publication in the Official Journal of the European Union.