COUNCIL OF

THE EUROPEAN UNION

Brussels, 18 May 2011

10316/11

GENVAL 56
ENFOPOL 155
COMIX 336
ENFOCUSTOM 47
COPEN 115
COVER NOTE
from:
date of receipt:
to:
No Cion doc.:
Subject:

Secretary-General of the European Commission,

signed by Mr Jordi AYET PUIGARNAU, Director
16 May 2011
Mr Pierre de BOISSIEU, Secretary-General of the Council of the European
Union
SEC(2011) 593 final
COMMISSION STAFF WORKING PAPER
Operation of the Council Framework Decision 2006/960/JHA of
18 December 2006 ("Swedish Initiative")

Delegations will find attached Commission document SEC(2011) 593 final.

________________________
Encl.: SEC(2011) 593 final

10316/11

GS/np
DG H 2B

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EUROPEAN COMMISSION

Brussels, 13.5.2011
SEC(2011) 593 final

COMMISSION STAFF WORKING PAPER

Operation of the Council Framework Decision 2006/960/JHA of 18 December 2006
("Swedish Initiative")

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TABLE OF CONTENTS

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1.

Introduction ..............................................................................................................3

1.1.

Aim and scope of the Council Framework Decision 2006/960/JHA of 18 December

2006..........................................................................................................................3

1.2.

Contents of the Council Framework Decision 2006/960/JHA of 18 December 2006 .3

1.3.

About this document .................................................................................................4

2.

Operation of the instrument.......................................................................................5

2.1.

Transposition ............................................................................................................5

2.2.

Usage........................................................................................................................6

2.2.1.

Regularity of usage ...................................................................................................6

2.2.2.

Channels ...................................................................................................................7

2.2.3.

Responding to urgent requests within at most eight hours as required by Art 4 (1) of
the Framework Decision ...........................................................................................9

2.2.4.

Judicial involvement/Rogatory Letter........................................................................9

2.2.5.

Usage of forms..........................................................................................................9

3.

Conclusions ............................................................................................................11

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1.

INTRODUCTION

1.1.

Aim and scope of the Council Framework Decision 2006/960/JHA of 18

December 2006

The aim of Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying

the exchange of information and intelligence between law enforcement authorities of the
Member States of the European Union (hereafter the Framework Decision or the Swedish
Initiative) is to establish the rules under which Member States law enforcement authorities
may exchange existing information and intelligence effectively and expeditiously for the
purpose of conducting criminal investigations or criminal intelligence operations.
Sweden presented this legislative initiative on 4 June 2004 following the Council Declaration
on Combating Terrorism of 25 March 2004 that called for 'exploration of possibilities of
greater intelligence sharing on terrorist matters'. It was adopted by the Council on 18
December 2006.
Since the Framework Decision constitutes a development of the provisions of the Schengen
acquis, it is also applicable to Iceland, Norway and Switzerland according to:
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the
application of the Agreement concluded by the Council of the European Union and the
Republic of Iceland and the Kingdom of Norway concerning the association of those two
States with the implementation, application and development of the Schengen acquis1 and
the Agreement signed between the European Union, the European Community and the
Swiss Confederation concerning the association of the Swiss Confederation with the
implementation, application and development of the Schengen acquis2.
The Framework Decision replaced Articles 39 (1), (2), (3) and 46 of the Convention
Implementing the Schengen Agreement3 as far as related to exchange of information and
intelligence for the purpose of conducting criminal investigations or intelligence operations.
1.2.

Contents of the Council Framework Decision 2006/960/JHA of 18 December

2006

The legal instrument is divided into the following titles:

Title 1 deals with the "Scope and Definitions";
Title 2 is concerned with "Exchange of Information and Intelligence", particularly tackling:

1
2
3

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OJ L 176, 10.7.1999, p. 31.

OJ L 370, 17.12.2004, p.78.
OJ L 239, 22.09.2000, p.19.

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 Provision of information and intelligence (Art. 3);

Time limits for provision of information and intelligence (Art. 4);
Requests for information and intelligence (Art. 5);
Communication channels and language (Art. 6);
Spontaneous exchange of information and intelligence (Art. 7);
Data protection (Art. 8);
Confidentiality (Art. 9);
Reasons to withhold data (Art. 10).
Title 3 containing "Final Provisions".
Relation to other instruments (Art. 12).
The JHA Council endorsed on 27-28 November 2008 guidelines on the implementation of the
Framework Decision which were updated by 17 December 20104.
Annexed to the legal instrument are two forms (A and B):
Form B shall be used when requesting information and intelligence under
Framework Decision 2006/960/JHA.
Form A shall be used by the requested Member States to transmit information
and/or intelligence requested via form B, to inform the requesting authority of the
impossibility of meeting the normal deadline, of the necessity of submitting the
request to the judicial authority for an authorisation, or of the refusal to transmit
the information.
1.3.

About this document

Article 11 of the Framework Decision requires the Member States to take the necessary
measures to comply with its provisions before 19 December 2008 and to transmit to the
General Secretariat of the Council and to the Commission the text of the provisions
transposing into their national laws the obligations imposed. On the basis of this and other
information provided by the Member States on request, the Commission shall, before 19
December 2010, submit a report to the Council on the operation of the Framework Decision.
Thereupon, the Council shall assess before 19 December 2011 the extent to which Member
States have complied with the provisions of the Framework Decision.

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Document 9512/1/10 REV1 DAPIX 59 CRIMORG 90 ENFOPOL 125 ENFOCUSTOM 36 COMIX 346.

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This document sets out how the Framework Decision has operated in practice from December
2008 until December 2010. It does not purport to evaluate the Framework Decision nor assess
the extent to which Member States have complied with its provisions as that prerogative has
been reserved for the Council by the instrument itself.
This document draws on information from the following sources:
Meetings of specialists of EU Member States, Europol and Eurojust held in Brussels on 5/6
November 2007, 16/17 January 2008 and 3/4 June 2008;
Meeting of Member States' specialists on the review of needs and instruments for the
exchange of law enforcement relevant information held in Brussels on 16-17 July 2008;
Meetings of representatives from EU Member States, Europol and Eurojust on the
evaluation of cross-border information exchange and on simplifying the exchange of
information and intelligence between law enforcement authorities of the Member States of
the European Union held in Brussels on 27 April 2009, 19 June 2009 and 15 October 2010
co-organised with the Belgian Presidency;
Second meeting of the Sub-Group on Police Cooperation Statistics held in Brussels on 10
February 2010;
Discussions in the Ad hoc Working group on Information Exchange (DAPIX) within the
Council in 2009 and 2010.
2.

OPERATION OF THE INSTRUMENT

2.1.

Transposition

By 31 December 2010, almost two-thirds of the Member States have informed that they
have transposed the Framework Decision into their domestic legislation.
Those who have done so are: BG, CZ, DK, CY, ES, HU, LT, LV, NL, PT, FI, SE, SI, and SK.
The UK and IE have informed that they had no need to transpose this instrument as their
domestic legislation is already in line with the Framework Decision.
The following Member States have informed that they have not transposed the Framework
Decision yet: AT, BE, DE, EE, EL, FR, IT, LU, PL.
The main reasons given by Member States for not having transposed the Framework Decision
are lengthy parliamentary procedures.
The Swedish Initiative also required Member States to notify to the Commission by 19
December 2007 their bilateral/multilateral cooperation agreements. It also required them to
notify to the Commission their National Contact Points (NCP) and competent authorities

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within the meaning of Article 2 (a) of the Framework Decision by 18 December 2007, as well
as the text of their national implementing legislation by 31 December 2010:
All EU Member States as well as Norway, Iceland and Switzerland have
notified their bilateral/multilateral agreements;
All EU Member States as well as Norway, Iceland and Switzerland have
notified their NCPs and/or competent authorities;
10 Member States (BG, DK, IE, ES, CY, LV, PT, SI, SK, and FI) have notified
to the Commission the text of their national legislation.
2.2.

Usage

2.2.1.

Regularity of usage

Two Member States Slovenia and Sweden have informed the Commission that they use
the Framework Decision frequently. All other Member States state that they do not draw on
it on a regular basis.
The below overview demonstrates the number5 of Swedish Initiative requests sent via
Europol's Secure Information Exchange Network Application (SIENA), which represents
only the figures on the information exchanges via this tool:

Member States

2009

AT
BE

BG

2010

All

CY

DE

12

13

DK

2011

9
2

26

ES

FR

24

33

Notes:
1 request sent to more than one recipient is considered as 1 request.
2009 figures start from July 2009.
2011 figures up to 19 January 2011.
Only requests sent are counted, not requests received nor answers.

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HU

IE

LT

LU
LV

NL

1
2

NO

SE

SI

SK

UK

56

51

Total

2.2.2.

3
10
4

111

Channels

The choice of channels used when exchanging information according to the Framework
Decision is left to Member States, according to Article 6 (1) they may select any of the
existing communication channels used for international law enforcement co-operation.
According to the Manual of Good Practices concerning the International Police Cooperation Units at national level6, the following criteria should be observed when selecting
the most appropriate communication channel:
geographical approach:
nationality/residence/origin of person or object concerned is known and request
concerns establishing details (address, phone number, fingerprints, DNA,
registration, );
nationality/residence/origin of person or object concerned is not known.
thematic approach:

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Document 7968/08 ENFOPOL 63 + COR 1.

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 EUROPOL (organised crime, terrorism and other forms of serious crime, at least
2 Member States, connection to Analysis Work Files (AWF), need for joint
approach);

confidentiality / sensitivity;
channel used for previous related request.
technical approach:
IT-criteria: need of secure channels (Bureau de Liaison (BDL) network: European
Union's official communication system connecting officials of the Member States
for intelligence and terrorism-related information);
information or technical compatibility (SIRene PIcture Transfer (SIRPIT) in order
to be able to exchange pictures and fingerprints quickly and electronically
between Sirene bureaux).
urgency
urgency / proven speed of channel (in particular immediate risk for person's
physical integrity, immediate loss of evidence, request for urgent cross-border
operation or surveillances);
priority.
Member States informed the Commission that the decision of Member States in this regard
usually depends on the subject matter, the country to which the request for information is
addressed, the level of security/confidentiality and the urgency of the request.
Requested Member States usually respond by using the same communication channel as was
used for the incoming request. In cases where a requested Member State replies by using
another communication channel, the requested Member State generally informs the requesting
Member State about the communication channel(s) that is going to be used.
The most-used communication channels for the purpose of information exchange on the basis
of the Framework Decision are:
SIRENE channel (via the contact points of each Schengen State for the Schengen
Information System (SIS));
EUROPOL channel (via the Europol National Units/Europol Liaison Officers);
INTERPOL channel (via the INTERPOL National Central Bureaux placed at the National
Police Headquarters);

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 liaison officers channels (via Liaison Officers stationed abroad);

mutual assistance channels among customs authorities (Council Act 98/C 24/01 of 18
December 1997 drawing up, on the basis of Article K3 of the Treaty on European Union,
the Convention on mutual assistance and cooperation between customs administrations
(Naples II)7);
bilateral channels (information exchange based on cooperation agreements at national,
regional and local level).
2.2.3.

Responding to urgent requests within at most eight hours as required by Art 4 (1) of
the Framework Decision

All Member States have informed that they have legislative-based or practical procedures in
place so that they can respond within at most eight hours to urgent requests for information
and intelligence, in accordance with Article 4(1) of the Framework Decision.
Feedback from Member States shows that, under the Framework Decision, requests for urgent
data transmission by Member States are not very frequent. Only 11 % of Member States have
requested urgent data transmission while 57% have scarcely done so and 32% have never
done so.
However, Member States do take urgent requests seriously. 26% of Member States report that
such requests have always been complied with while 62% of Member States report that they
have often been complied with. On the negative side, 9% of Member States see no
compliance at all while 3% see compliance as a rare occurrence.
2.2.4.

Judicial involvement/Rogatory Letter

Efficient and swift information exchange between law enforcement agencies is slowed down
by the requirements of different national legal systems and different interpretations thereof,
inter alia in relation to the need for a judicial involvement or a Rogatory Letter.
Where the information or intelligence sought may, under the national law of the requested
Member State, be accessed by the requested competent law enforcement authority only
pursuant to an agreement or authorisation of a judicial authority, the requested competent law
enforcement authority shall be obliged to ask the competent judicial authority for an
agreement or authorisation to access and exchange the information sought (Article 3(4) of the
Framework Decision).
2.2.5.

Usage of forms

Annexed to the Framework Decision are forms to be used for requesting information. Annex
II to the Guidelines on the implementation of Council Framework Decision 2006/960/JHA of

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OJ C 24, 23.01.1998. p.1.

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18 December 20068 set out the preferred method for such requests (the simplified form). In
case it is not feasible to use this simplified form, a different form or an unstructured free-text
format may be used. In order to comply with the requirements of Article 5 of the Framework
Decision and in order to be valid under the Framework Decision, a request shall in all cases
contain the following:9
administrative information, i.e. requesting Member State, requesting authority, date,
reference number(s), requested Member State(s),
whether urgency is requested, and, if so, what the reasons are,
description of the requested information or intelligence,
identity(ies) (as far as known) of person(s) or object(s) who are the main subject(s) of the
criminal investigation or criminal intelligence operation underlying the request for
information or intelligence (e.g. description of the offence(s), circumstances in which
the offence(s) was (were) committed etc.),
purpose for which the information and intelligence is sought,
connection between the purpose and the person who is the subject of the information and
intelligence,
reasons for believing that the information or intelligence is in the requested Member State,
any restrictions on the use of information contained in the request ("handling codes").
According to information provided to the Commission, only five Member States use the form
annexed to the Framework Decision in order to request information. The users consider the
forms to be rather complex and cumbersome; instead of filling in forms, users prefer an
unstructured free-text format.
Furthermore, the forms are often used only by some agencies within a Member State (e.g. by
the UK SOCAs Asset Recovery Office in relation to complex financial transactions).
Where SIENA is in use, the system provides for specific electronic forms for the exchange of
information in accordance with the Framework Decision. These forms contain all mandatory
fields. Alternatively, any other completed form can be added to the message as an attachment;
either as an electronic or as a scanned copy.10
The development of the Universal Message Format (UMF II), which should allow for sending
the relevant information in a standardised e-form, is backed by all Member States and should

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Document 9512/1/10 REV1 DAPIX 59 CRIMORG 90 ENFOPOL 125 ENFOCUSTOM 36 COMIX
346.
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ensure a more harmonised usage of forms. As an interoperability coordination programme, it

aims at establishing a common framework for structured information exchange and to make
different data systems interoperable.
3.

CONCLUSIONS

Police cooperation and information exchange between law enforcement authorities of the
Member States of the European Union has always been based on mutual trust. There have
always been practical procedures for the exchange of information in place. The Swedish
Initiative has provided a new broad legal basis for information exchange between law
enforcement authorities of the Member States of the European Union, in particular for those
who cannot use the provisions of the Schengen acquis, and simplifies the exchange of
information and intelligence between law enforcement authorities across the European Union.
This document has shown that the forms annexed to the Council Framework Decision
2006/960/JHA of 18 December 2006 are not generally used. However, the legislative-based
or practical procedures in place to respond to urgent requests for information and intelligence
and the current handling of such requests, the identification of clear and common sets of data
categories and the strict time limits demonstrate that the underlying principles of the
Framework Decision have been implemented.
The Swedish initiative has not reached its full potential yet, but the interoperability
coordination programme within the EU Information Management Strategy11 will foster the
usage of this instrument and increase the importance of this information exchange tool in the
future.
In addition, also the implementation of Council Decisions 2008/615/JHA and 2008/616/JHA
(Prm Decisions) could enhance the usage of this instrument, as Council Framework Decision
2006/960/JHA provides a solid and broad basis for the necessary follow-up information
exchange for hits related to DNA, fingerprint and Vehicle Registration data.
This option will be further examined within the Communication from the Commission on the
European Information Exchange Model as foreseen by the Stockholm Programme12 in 2012.

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Council Conclusions on an Information Management Strategy for EU internal security, Justice and
Home Affairs Council, 30.11.2009 (EU Information Management Strategy).
OJ C 115, 4.5.2010, p.1.

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