Brussels, 28/05/2001 (Agence Europe) - The first discussion at the Justice Council on the French proposal of a protocol to the convention on mutual assistance in criminal matters confirmed, on Monday, the major divergence that appeared during preparatory discussions in working groups and at Coreper. The Swedish Presidency was to propose a new compromise solution to seek to come to a very difficult agreement. It had hinted before the Council that it would be very difficult to reach an agreement on this text from Monday on. The text aims to complete the convention on judicial cooperation in criminal matters, adopted in May 2000 but not yet in force, adding provisions on organised crime, money laundering and financial crime. It is essentially a report with letters rogatory on search and seizure, on one hand, and information on banking transactions and accounts, on the other.
As predicted, discussions initially stumbled over Article 2, which proposes the abolition, for seizure and search requests, of the dual criminality rule. According to the principle of dual criminality liability, a country may refuse to approve a request for search and seizure if the offence concerned, considered as such in the country making the request, is not considered an offence according to its own national law. Opinions are very divided and several draft proposals of compromise from the Presidency or from another Member State have been discussed. The proposal that the Presidency planned to make at the end of the day could comprise an "opt in" clause, evoked at the end of the morning's debate. It would be a matter of keeping the principle of dual criminality by leaving each Member State free to give up this requirement. Earlier, the Presidency had presented the contrary solution - that of giving up the requirement of dual criminality except for countries that specifically request it - but this proposal had been rejected by a large majority, either because they wanted to keep this principle (Germany, Luxembourg, and Austria in particular) or through a desire to give up this principle, but with a certain amount of flexibility for acts liable to a maximum prison sentence of one year, as proposed by France (United Kingdom, Portugal, Italy). Denmark is said to have accepted this first Swedish compromise, specifying that it would choose to keep the dual criminality rule. The European Commission is in favour of giving up the requirement.
Regarding the transmission of information on banking accounts and transactions, the Presidency made a compromise proposal for information on the possession of bank accounts, whereby the information must be forwarded if the act in question is punishable by at least four years imprisonment in the complainant State and at least 2 years in the other, or if it is covered by Article 2 of the Europol Convention (information on transactions). For information on banking transactions, the same provisions as for acts of research and seizure could be applied, at the request of each State.