18.3.2010   

EN

Official Journal of the European Union

C 69/1

(1)

The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice. According to the conclusions of the European Council in Tampere of 15 and 16 October 1999, and in particular point 33 thereof, the principle of mutual recognition should become the cornerstone of judicial cooperation in both civil and criminal matters within the European Union.

(2)

On 29 November 2000 the Council, in accordance with the Tampere Conclusions, adopted a programme of measures to implement the principle of mutual recognition of decisions in criminal matters (3). The introduction to the programme of measures states that mutual recognition is ‘designed to strengthen cooperation between Member States but also to enhance the protection of individual rights’.

(3)

Implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States have trust in each other's criminal justice systems. The extent of the mutual recognition exercise is very much dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspects and common minimum standards necessary to facilitate the application of the principle of mutual recognition.

(4)

Mutual recognition can only operate effectively in a spirit of confidence, whereby not only judicial authorities, but all actors in the criminal process see decisions of the judicial authorities of other Member States as equivalent to their own, implying not only trust in the adequacy of one's partners' rules, but also trust that those rules are correctly applied.

(5)

Although all Member States are parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), experience has shown that this in itself does not always provide a sufficient degree of trust in the criminal justice systems of other Member States.

(6)

Article 82(2) of the Treaty provides for the establishment of minimum rules applicable in the Member States so as to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. Point (b) of Article 82(2) refers to ‘the rights of individuals in criminal procedure’ as one of the areas in which minimum rules may be established.

(7)

Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which in turn should lead to more efficient judicial cooperation in a climate of mutual trust. Such common minimum rules should be applied in the fields of interpretation and translation in criminal proceedings.

(8)

The rights to interpretation and to translation for those who do not understand the language of the proceedings are enshrined in Article 6 of the ECHR, as elaborated upon by the case law of the European Court of Human Rights. The provisions of this Directive facilitate the application of those rights in practice. To this end, this Directive intends to ensure the rights of a suspected or accused person to interpretation and to translation in criminal proceedings with a view to safeguarding that person's right to fair proceedings.

(9)

The rights provided for in this Directive should also apply to proceedings for the execution of a European Arrest Warrant within the limits provided for by this Directive. Executing Members States should provide, and bear the costs of, interpretation and translation for the benefit of the requested person who does not understand or speak the language of the proceedings.

(10)

The provisions of this Directive should ensure that the rights of the suspected or accused person who does not speak or understand the language of the proceedings to understand the suspicions or accusations brought against him and to understand the proceedings in order to be able to exercise his rights are protected by providing free and accurate linguistic assistance. The suspected or accused person should be able, inter alia, to explain to his legal counsel his version of the events, point out any statements with which he disagrees and make his legal counsel aware of any facts that should be put forward in the defence. It is recalled in this connection that the provisions of this Directive set minimum rules. Member States may extend the rights set out in this Directive in order to provide a higher level of protection also in situations not explicitly dealt with in this Directive. The level of protection should never fall below the standards provided by the ECHR, as interpreted in the case-law of the European Court of Human Rights.

(11)

Member States should not be obliged to ensure interpretation of communication between the suspected or accused person and his legal counsel in cases where they can effectively communicate in the same language. Neither should the Member States be obliged to ensure interpretation of such communication where the right to interpretation is clearly used for purposes other than exercising fair trial rights in the proceedings concerned.

(12)

The finding that there is no need for interpretation or translation should be subject to the possibility of review, in accordance with national law. Such review may be carried out, for example, through a specific complaint procedure, or in the context of an ordinary appeal procedure against decisions on the merits.

(13)

Appropriate assistance should be provided also to suspected or accused persons suffering from hearing impediments.

(14)

The duty of care towards suspected or accused persons who are in a potentially weak position, in particular because of physical impairments which affect their ability to communicate effectively, underpins a fair administration of justice. The prosecution, law enforcement and judicial authorities should therefore ensure that these persons are able to exercise effectively the rights provided for in this Directive, for example by paying attention to any potential vulnerability that affects their ability to follow the proceedings and make themselves understood, and by taking appropriate steps to ensure these rights.

(15)

Safeguarding the fairness of the proceedings requires that essential documents, or at least the important passages of such documents, be translated for the benefit of the suspected or accused person. It is up to the authorities of the Member States to decide which documents should be translated, in accordance with national law. Some documents should always be considered essential documents that should be translated, such as the decision depriving a person of his liberty, the charge or indictment and any judgment.

(16)

A waiver of the right to written translation of documents should be unequivocal, with minimum safeguards, and should not run counter to any important public interest.

(17)

This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to promote the right to liberty, the right to a fair trial and the right of defence.

(18)

Member States should ensure that the provisions of this Directive, where they correspond to rights guaranteed by the ECHR, are implemented consistently with those of the ECHR as elaborated upon by the relevant case-law of the European Court of Human Rights.

(19)

Since the objective of this Directive, that is, achieving common minimum standards, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the proposed action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as referred to and defined in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective,

18.3.2010   

EN

Official Journal of the European Union

C 69/5

(1)

The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice.

(2)

Article 82(1) of the Treaty on the Functioning of the European Union (TFEU) provides that judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions.

(3)

According to the Stockholm programme, adopted by the European Council at its meeting on 10 and 11 December 2009, mutual recognition could extend to all types of judgments and decisions of a judicial nature, which may, depending on the legal system, be either criminal or administrative. The programme also points out that victims of crime can be offered special protection measures which should be effective within the Union.

(4)

The resolution of the European Parliament of 2 February 2006 on the current situation in combating violence against women and any future actions recommends that Member States formulate a zero-tolerance policy as regards all forms of violence against women and calls on Member States to take appropriate measures to ensure better protection of and support to actual and potential victims.

(5)

In a common area of justice without internal borders, it is necessary to ensure that the protection provided to a person in one Member State is maintained and continued in any other Member State to which the person moves or has moved. It should also be ensured that the legitimate exercise by citizens of the Union of their right to move and reside freely within the territory of Member States, in accordance with Article 3(2) of the Treaty on European Union (TEU) and Article 21 of the TFEU, does not result in a loss of their security.

(6)

In order to attain these objectives, this Directive should set out rules whereby the protection stemming from a protection measure adopted according to the law of one Member State (‘the issuing State’) can be extended to another Member State to which the protected person moves (‘the executing State’), regardless of the type or duration of the obligations or prohibitions contained in the protection measure concerned.

(7)

In order to prevent a new crime being committed against the victim in the executing State, that State should be given a legal basis for recognising the decision previously adopted in the issuing State in favour of the victim, while also avoiding the need for the victim to start new proceedings or to produce the evidence in the executing State again as if the issuing State had not adopted the decision.

(8)

This Directive should be applied and enforced in such a way that the protected person receives the same or equivalent protection in the executing State as he would have received if the protection measure had been issued in that State ab initio, thus avoiding any discrimination.

(9)

Given that this Directive deals with situations in which the protected person moves to another Member State, executing its provisions does not imply any transfer to the executing State of powers relating to principal, suspended, alternative, conditional or secondary penalties, or relating to security measures imposed on the person causing danger, if the latter continues to reside in the State that issued the protection measure.

(10)

Where appropriate, it should be possible to use electronic means with a view to putting into practice the measures adopted in application of this Directive, in accordance with national laws and procedures.

(11)

Since the objective of this Directive, namely to protect persons who are in danger, cannot be sufficiently achieved by the Member States acting unilaterally, given the cross-border nature of the situations involved, and could instead, due to the scale and potential effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as referred to in Article 5(3) of the TEU. In accordance with the principle of proportionality, as set out in Article 5(4) of the TEU, this Directive does not go beyond what is necessary to achieve that objective.

(12)

This Directive should contribute to the protection of persons who are in danger, thereby complementing the instruments already in place in this field, such as Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (2), and Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (3),

1)

‘European protection order’ means a judicial decision relating to a protection measure issued by a Member State and aiming at facilitating the taking by another Member State, where appropriate, of a protection measure under its own national law with a view to the safeguard of the life, physical and psychological integrity, freedom or sexual integrity of a person.

2)

‘Protection measure’ means a decision adopted by a competent authority of a Member State imposing on a person causing danger one or more of the obligations or prohibitions referred to in Article 2(2), provided that the infringement of such obligations or prohibitions constitutes a criminal offence under the law of the Member State concerned or may otherwise be punishable by a deprivation of liberty in that Member State.

3)

‘Protected person’ means the person whose life, physical and psychological integrity, freedom, or sexual integrity are the object of the protection stemming from a protection measure adopted by the issuing State.

4)

‘Person causing danger’ means the person on whom one or more of the obligations or prohibitions, referred to in Article 2(2), have been imposed.

5)

‘Issuing State’ means the Member State in which a protection measure has been originally adopted, constituting the basis for issuing a European protection order.

6)

‘Executing State’ means the Member State to which a European protection order has been forwarded with a view to its recognition.

7)

‘State of supervision’ means the Member State to which a judgment, as defined in Article 2 of Council Framework Decision 2008/947/JHA, or a decision on supervision measures, as defined in Article 4 of Framework Decision 2009/829/JHA, has been transferred.

(a)

an obligation not to enter certain localities, places or defined areas where the protected person resides or that he visits;

(b)

an obligation to remain in a specified place, where applicable during specified times;

(c)

an obligation containing limitations on leaving the territory of the issuing State;

(d)

an obligation to avoid contact with the protected person; or

(e)

a prohibition on approaching the protected person closer than a prescribed distance.

(a)

the identity and nationality of the protected person, as well as the identity and nationality of the person's legal representative if the protected person is a minor or is legally incapacitated;

(b)

the use of any technological instruments, if any, that have been provided to the protected person to carry out the immediate enforcement of the protection measure, where appropriate;

(c)

the name, address, telephone and fax numbers, and e-mail address of the competent authority of the issuing State;

(d)

the identification of the protection measure on the basis of which the European protection order is adopted;

(e)

a summary of the facts and circumstances which have led to the imposition of the protection measure in the issuing State;

(f)

the obligations or prohibitions imposed in the protection measure underlying the European protection order on the person causing danger, their length and the express indication that their infringement constitutes a criminal offence under the law of the issuing State or may otherwise be punishable by a deprivation of liberty;

(g)

the identity and nationality of the person causing a danger;

(h)

where appropriate, other circumstances that could have an influence on the assessment of the danger that confronts the protected person;

(i)

the express indication, where applicable, that a judgement, as defined by Article 2 of Council Framework Decision 2008/947/JHA, or a decision on supervision measures, as defined by Article 4 of Council Framework Decision 2009/829/JHA, has already been transferred to another Member State and the identification of the competent authority for the enforcement of such a judgment or decision.

(a)

upon receipt of a European protection order transmitted in accordance with Article 7, recognise that order and take, where appropriate, all measures that would be available under its national law in a similar case in order to ensure the protection of the protected person, unless it decides to invoke one of the grounds for non-recognition referred to in Article 9;

(b)

inform the person causing danger, where appropriate, of any measure taken in the executing State;

(c)

take any urgent and provisional measure needed in order to ensure the continued protection of the protected person;

(d)

immediately notify the competent authority of the issuing State and, if the issuing State is different from the State of supervision, the competent authority of the State of supervision, of any breach of the protection measure underlying the European protection order and described therein. Notice shall be given using the standard form set out in Annex II.

(a)

the European protection order is not complete or has not been completed within the time-limit set by the competent authority of the executing State;

(b)

the requirements set out in Article 2(2) have not been met;

(c)

the protection derives from the execution of a penalty or measure that is covered by amnesty according to the law of the executing State and relates to an act which falls within its competence according to that law;

(d)

there is immunity conferred under the law of the executing State on the person causing danger, which makes it impossible to adopt the protection measures;

(a)

the renewal, review and withdrawal of the protection measure;

(b)

the modification of the protection measure;

(c)

the issuing of an arrest warrant or any other enforceable judicial decision having the same effect;

(d)

the initiation of new criminal proceedings against the person causing the danger.

(a)

the extent to which the Member States have taken the necessary measures in order to comply with this Directive, and

(b)

the application of this Directive.

18.3.2010   

EN

Official Journal of the European Union

C 69/19

ML1

Smooth-bore weapons with a calibre of less than 20 mm, other arms and automatic weapons with a calibre of 12,7 mm (calibre 0,50 inches) or less and accessories, as follows, and specially designed components therefor:

ML1 does not apply to smooth-bore weapons used for hunting or sporting purposes. These weapons must not be specially designed for military use or of the fully automatic firing type.

ML1 does not apply to firearms specially designed for dummy ammunition and which are incapable of firing any ammunition specified by ML3.

ML1 does not apply to weapons using non-centre fire cased ammunition and which are not of the fully automatic firing type.

ML1.d. does not apply to optical weapon sights without electronic image processing, with a magnification of 4 times or less, provided they are not specially designed or modified for military use.

ML2

Smooth-bore weapons with a calibre of 20 mm or more, other weapons or armament with a calibre greater than 12,7 mm (calibre 0,50 inches), projectors and accessories, as follows, and specially designed components therefor:

ML3

Ammunition and fuse setting devices, as follows, and specially designed components therefor:

ML4

Bombs, torpedoes, rockets, missiles, other explosive devices and charges and related equipment and accessories, as follows, and specially designed components therefor:

For guidance and navigation equipment, see ML11.

For Aircraft Missile Protection Systems (AMPS), see ML4.c.

ML5

Fire control, and related alerting and warning equipment, and related systems, test and alignment and countermeasure equipment, as follows, specially designed for military use, and specially designed components and accessories therefor:

ML6

Ground vehicles and components, as follows:

For guidance and navigation equipment, see ML11.

See also ML13.a

ML6.a. includes:

Modification of a ground vehicle for military use specified by ML6.a. entails a structural, electrical or mechanical change involving one or more components that are specially designed for military use. Such components include:

ML6 does not apply to civil automobiles, or trucks designed or modified for transporting money or valuables, having armoured or ballistic protection.

ML7

Chemical or biological toxic agents, "riot control agents", radioactive materials, related equipment, components and materials, as follows:

See also entry 1A004 on the EU Dual-Use List.

ML7.b. and ML7.d. do not apply to the following:

The cultures of cells and biological systems specified by ML7.h. and ML7.i.2. are exclusive and these sub-items do not apply to cells or biological systems for civil purposes, such as agricultural, pharmaceutical, medical, veterinary, environmental, waste management, or in the food industry.

ML8

"Energetic materials", and related substances, as follows:

See also 1C011 on the EU Dual-Use List.

For charges and devices, see ML4 and 1A008 on the EU Dual-Use List

Technical Notes

Not used since 2009

ML8 does not apply to the following substances unless they are compounded or mixed with the "energetic material" specified by ML8.a. or powdered metals specified by ML8.c.:

ML9

Vessels of war (surface or underwater), special naval equipment, accessories, components and other surface vessels, as follows:

For guidance and navigation equipment, see ML11.

ML10

"Aircraft", "lighter-than-air vehicles", unmanned airborne vehicles, aero-engines and "aircraft" equipment, related equipment and components, specially designed or modified for military use, as follows:

For guidance and navigation equipment, see ML11.

ML10.b. does not apply to "aircraft" or variants of those "aircraft" specially designed for military use, and which are all of the following:

ML10.d. does not apply to:

ML10.b. and ML10.d. on specially designed components and related equipment for non-military "aircraft" or aero-engines modified for military use applies only to those military components and to military related equipment required for the modification to military use.

ML11

Electronic equipment, not specified elsewhere on the EU Common Military List, as follows, and specially designed components therefor:

ML12

High velocity kinetic energy weapon systems and related equipment, as follows, and specially designed components therefor:

For weapon systems using sub-calibre ammunition or employing solely chemical propulsion, and ammunition therefor, see ML1 to ML4.

ML12 includes the following when specially designed for kinetic energy weapon systems:

ML12 applies to weapon systems using any of the following methods of propulsion:

ML13

Armoured or protective equipment, constructions and components, as follows:

ML13.b. includes materials specially designed to form explosive reactive armour or to construct military shelters.

ML13.c. does not apply to conventional steel helmets, neither modified or designed to accept, nor equipped with any type of accessory device.

ML13.c. and d. do not apply to helmets, body armour or protective garments, when accompanying their user for the user’s own personal protection.

The only helmets specially designed for bomb disposal personnel that are specified by ML13. are those specially designed for military use.

See also entry 1A005 on the EU Dual-Use List.

For "fibrous or filamentary materials" used in the manufacture of body armour and helmets, see entry 1C010 on the EU Dual Use List

ML14

‧Specialised equipment for military training‧ or for simulating military scenarios, simulators specially designed for training in the use of any firearm or weapon specified by ML1 or ML2, and specially designed components and accessories therefor.

Technical Note

The term ‧specialised equipment for military training‧ includes military types of attack trainers, operational flight trainers, radar target trainers, radar target generators, gunnery training devices, anti-submarine warfare trainers, flight simulators (including human-rated centrifuges for pilot/astronaut training), radar trainers, instrument flight trainers, navigation trainers, missile launch trainers, target equipment, drone "aircraft", armament trainers, pilotless "aircraft" trainers, mobile training units and training equipment for ground military operations.

ML14 includes image generating and interactive environment systems for simulators, when specially designed or modified for military use.

ML14 does not apply to equipment specially designed for training in the use of hunting or sporting weapons.

ML15

Imaging or countermeasure equipment, as follows, specially designed for military use, and specially designed components and accessories therefor:

ML15.f. includes equipment designed to degrade the operation or effectiveness of military imaging systems or to minimize such degrading effects.

In ML15, the term specially designed components includes the following when specially designed for military use:

ML15 does not apply to "first generation image intensifier tubes" or equipment specially designed to incorporate "first generation image intensifier tube".

For the classification of weapons sights incorporating "first generation image intensifier tubes" see ML1., ML2. and ML5.a.

See also 6A002.a.2. and 6A002.b. on the EU Dual-Use List.

ML16

Forgings, castings and other unfinished products the use of which in a specified product is identifiable by material composition, geometry or function, and which are specially designed for any products specified by ML1 to ML4, ML6, ML9, ML10, ML12 or ML19.

ML17

Miscellaneous equipment, materials and ‧libraries‧, as follows, and specially designed components therefor:

Technical Notes

ML18

Production equipment and components, as follows:

Technical Note

For the purposes of ML18, the term ‧production‧ includes design, examination, manufacture, testing and checking.

ML18.a. and ML18.b. include the following equipment:

ML19

Directed energy weapon systems (DEW), related or countermeasure equipment and test models, as follows, and specially designed components therefor:

Directed energy weapon systems specified by ML19 include systems whose capability is derived from the controlled application of:

ML19 includes the following when specially designed for directed energy weapon systems:

ML20

Cryogenic and "superconductive" equipment, as follows, and specially designed components and accessories therefor:

ML21

"Software", as follows:

ML22

"Technology" as follows:

"Technology""required" for the "development", "production" or "use" of items specified by the EU Common Military List remains under control even when applicable to any item not specified by the EU Common Military List.

ML22 does not apply to:

ML7

"Adapted for use in war"

Any modification or selection (such as altering purity, shelf life, virulence, dissemination characteristics, or resistance to UV radiation) designed to increase the effectiveness in producing casualties in humans or animals, degrading equipment or damaging crops or the environment.

ML8

"Additives"

Substances used in explosive formulations to improve their properties.

ML8, ML9 and ML10

"Aircraft"

A fixed wing, swivel wing, rotary wing (helicopter), tilt rotor or tilt-wing airborne vehicle.

ML11

"Automated Command and Control Systems"

Electronic systems, through which information essential to the effective operation of the grouping, major formation, tactical formation, unit, ship, subunit or weapons under command is entered, processed and transmitted. This is achieved by the use of computer and other specialised hardware designed to support the functions of a military command and control organisation. The main functions of an automated command and control system are: the efficient automated collection, accumulation, storage and processing of information; the display of the situation and the circumstances affecting the preparation and conduct of combat operations; operational and tactical calculations for the allocation of resources among force groupings or elements of the operational order of battle or battle deployment according to the mission or stage of the operation; the preparation of data for appreciation of the situation and decision-making at any point during operation or battle; computer simulation of operations.

ML22

"Basic scientific research"

Experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective.

ML7, 22

"Biocatalysts"

Enzymes for specific chemical or biochemical reactions or other biological compounds which bind to and accelerate the degradation of CW agents.

Technical Note

"Enzymes" means "biocatalysts" for specific chemical or biochemical reactions.

ML7, 22

"Biopolymers"

Biological macromolecules as follows:

Technical Notes

ML10

"Civil aircraft"

Those "aircraft" listed by designation in published airworthiness certification lists by the civil aviation authorities to fly commercial civil internal and external routes or for legitimate civil, private or business use.

ML21, 22

"Development"

Is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts.

ML17

"End-effectors"

Grippers, active tooling units and any other tooling that is attached to the baseplate on the end of a "robot" manipulator arm.

Technical Note

"Active tooling units" are devices for applying motive power, process energy or sensing to a work piece.

ML4, 8

"Energetic materials"

Substances or mixtures that react chemically to release energy required for their intended application. "Explosives", "pyrotechnics" and "propellants" are subclasses of energetic materials.

ML8, 18

"Explosives"

Solid, liquid or gaseous substances or mixtures of substances which, in their application as primary, booster, or main charges in warheads, demolition and other applications, are required to detonate.

ML7

"Expression Vectors"

Carriers (e.g. plasmid or virus) used to introduce genetic material into host cells.

ML 17

"Fuel cell"

An electrochemical device that converts chemical energy directly into Direct Current (DC) electricity by consuming fuel from an external source.

ML13

"Fibrous or filamentary materials"

Include:

ML15

"First generation image intensifier tubes"

Electrostatically focused tubes, employing input and output fibre optic or glass face plates, multi-alkali photocathodes (S-20 or S-25), but not microchannel plate amplifiers.

ML22