Slowly the European area of freedom, security and justice is taking shape. Two important justice and home affairs (JHA) acts concerning criminal records in cross-border cases have been published in the Official Journal of the European Union (OJEU) 7.4.2009 L 93.
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).
Criminal Records Information System (ECRIS)
The second act is Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA.
This Decision establishes the European Criminal Records Information System (ECRIS).
This Decision also establishes the elements of a standardised format for the electronic exchange of information extracted from criminal records between the Member States, in particular as regards information on the offence giving rise to the conviction and information on the content of the conviction, as well as other general and technical implementation means related to organising and facilitating the exchange of information.
Both acts are based on Article 31 and the Framework Decision on Article 34(2)(b) and the ECRIS Decision on Article 34(2)(c) of the Treaty on European Union (TEU), where the provisions on police and judicial cooperation in criminal matters are still located, because the Treaty of Lisbon is not yet in force.
As a reminder, here are the relevant treaty provisions (OJEU 29.12.2006 C 321 E):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
Article 34(2)(b) and (c) TEU
2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:
(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect;
(c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union;