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Agreement with the United States on mutual legal assistance

This agreement sets out conditions relating to the provision of mutual legal assistance in criminal matters between the European Union (EU) and the United States of America (U.S.).

ACT

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.

SUMMARY

The European Union (EU) and the United States of America (U.S.) concluded an agreement on mutual legal assistance, with a view to improving cooperation between EU countries and the U.S. as well as to combating crime more effectively. The agreement entered into force on 1 February 2010.

EU countries and the U.S. apply the provisions of this agreement to their bilateral mutual legal assistance treaties. In the absence of such a treaty, the EU and the U.S. will ensure that the provisions of the agreement are nevertheless applied.

Mutual legal assistance

On request, the requested country must promptly identify and communicate to the requesting country information on:

  • banks where a natural or legal person, who is suspected of or charged with a criminal offence, has one or more bank accounts;
  • natural or legal persons 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 U.S. transmits its requests for assistance via its national authorities responsible for investigating or prosecuting criminal offences.

The requesting country may use an expedited means of communication for the 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 U.S. must enable the establishment and operation of joint investigative teams to facilitate criminal investigations or prosecutions between one or more EU countries and the U.S.

The EU and the U.S. must also enable video conferencing between EU countries and the U.S. 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. 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 U.S. Department of Justice and the EU country’s Ministry of Justice or other equivalent Ministry that is responsible for transmitting requests for mutual legal assistance.

Limitations to the provision of assistance

A country may limit its provision of assistance to offences that are:

  • punishable under the laws of both countries (requesting and requested);
  • punishable by deprivation of liberty or a detention order of a maximum period (minimum four years in the requesting and two years in the requested country);
  • designated as serious and punishable under the laws of both countries.

Where a country limits its provision of assistance to the last two kinds of offences, it must nevertheless provide for the identification of bank accounts related to terrorist activity and the laundering of proceeds from serious criminal activity that are punishable under the laws of both countries.

Limitations to the use of evidence or information

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 it makes of the evidence or information.

REFERENCES

Act Entry into force Deadline for transposition in the Member States Official Journal

Decision 2009/820/CFSP

23.10.2009

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OJ L 291, 7.11.2009

Last updated: 01.04.2011

See also

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