Agreement with the United States on mutual legal assistance

SUMMARY OF:

WHAT IS THE AIM OF THE AGREEMENT AND OF THE DECISION?

The agreement sets out conditions relating to the provision of mutual legal assistance in criminal matters between the EU and the US.
It seeks to enhance cooperation between EU countries and the US, as a complement to bilateral treaties concluded between EU countries and the US.
The decision concludes on behalf of the EU the agreement with the US relating to mutual legal assistance.

KEY POINTS

EU countries and the US apply the conditions of this framework agreement to their bilateral mutual legal assistance treaties. In the absence of such a treaty, the EU and the US undertake to ensure that the agreement is applied.

In the event that existing bilateral treaties between EU countries and the US are not compatible with the agreement, the EU framework should prevail.

Mutual legal assistance

Regarding bank information, on request of the requesting country, the requested country must promptly identify and communicate information on:
- whether a natural or legal person, who is suspected of or charged with a criminal offence, has one or more bank accounts;
- individuals or legal entities that have been convicted of or involved in a criminal offence;
- information that a non-bank financial institution possesses;
- financial transactions that are not related to bank accounts.
EU countries’ requests for assistance are transmitted by central authorities responsible for mutual legal assistance or by national authorities responsible for investigating or prosecuting criminal offences. The US transmits its requests for assistance via its national authorities responsible for investigating or prosecuting criminal offences and which are specifically designated pursuant to Article 15(2) of the agreement.
The requesting country may use an expedited means of communication, such as fax or email, for the transmission of the request request for assistance and the related communications, followed by a formal confirmation if required by the requested country.
The requesting country may require the requested country to keep a request for assistance and its contents confidential. The central authority of the requested country must inform the requesting country if it cannot execute the request for assistance without breaching confidentiality. The requesting country must then decide whether the request for assistance should be executed or not.
The EU and the US must enable the establishment and operation of joint investigative teams to facilitate criminal investigations or prosecutions between one or more EU countries and the US.
The EU and the US must also enable video conferencing between EU countries and the US to take witnesses’ or experts’ testimonies in proceedings.

Assistance to administrative authorities

Mutual legal assistance must also be provided to national and other administrative authorities, but only when the conduct under investigation will lead to a criminal prosecution or to a referral to criminal investigation or prosecution authorities.
Assistance shall not be available for matters in which the administrative authority anticipates that no prosecution or referral, as applicable, will take place.
The authorities responsible for transmitting these requests for assistance are designated in accordance with the bilateral mutual legal assistance treaties between the countries concerned. Where such a treaty does not exist, the requests are transmitted between the US Department of Justice and the EU country’s Ministry of Justice or another equivalent ministry that is responsible for transmitting requests for mutual legal assistance.
Assistance may not be refused on grounds of bank secrecy.

Personal data protection

The requesting country may only use the evidence or information transmitted by the requested country for:
- its criminal investigations and proceedings;
- protecting its public security against an immediate and serious threat;
- its non-criminal judicial or administrative proceedings that directly relate to its criminal investigations or proceedings;
- other purposes, provided that the information or evidence has been made public or the requested country has given its prior consent.
The requested country may impose additional conditions limiting the use of the evidence or information in a particular case if, due to the absence of such conditions, it was not able to comply with the particular request for assistance. In such a case, the requested country may require the requesting country to provide information on the use that it makes of the evidence or information.
In addition to the above limitations on use to protect personal and other data, the agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offences (EU-US Umbrella Agreement) supplements, where necessary, data protection safeguards in the agreement.

Review of the Agreement

In line with Article 17 of the Agreement, the EU and the US have conducted a review of the functioning of the agreement in 2015-2016. The conclusion of the review is that, in general terms, the Agreement has been a success. The review process also resulted in recommendations to improve the practical functioning of the EU-US mutual legal assistance relationship, including on better sharing of knowledge among practitioners about each others’ laws and processes and to make better use of technology to speed up the transmission of requests and evidence and general communications.

DATE OF ENTRY INTO FORCE

The agreement entered into force on 1 February 2010. It was implemented in EU countries by bilateral instruments.

BACKGROUND

For more information, see:

Mutual legal assistance and extradition (European Commission).

MAIN DOCUMENTS

Agreement on mutual legal assistance between the European Union and the United States of America (OJ L 181, 19.7.2003, pp. 34-42)

Council Decision 2009/820/CFSP of 23 October 2009 on the conclusion on behalf of the European Union of the Agreement on extradition between the European Union and the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America (OJ L 291, 7.11.2009, pp. 40-41)

Council Decision 2003/516/EC of 6 June 2003 concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual legal assistance in criminal matters (OJ L 181, 19.7.2003, pp. 25-26)