Brussels, 12/05/2003 (Agence Europe) - It is mainly a "practical" interest that is shown for the extradition and judicial cooperation draft agreements between the European Union and the United States, with "improvements and simplification" for cooperation, one diplomat said on the fringe of the Justice and Home Affairs Council last week. The draft agreement on judicial cooperation mainly concerns the way assistance may be granted (transmission of requests by fax, video-transmission, designation of authorities responsible for granting assistance directly, the constitution of joint inquiry teams). It is, moreover, mainly attached to a specific area, the transmission of banking data. The Presidency trusts that this agreement, like that relating to extradition, may be approved by the Fifteen at the JHA Council on 5 and 6 May. This largely depends on the attitude adopted by France (EUROPE of 10 May, p.11).
According to the draft agreement, requests for judicial cooperation and the communications referring to this may be forwarded by rapid means of communication such as telecopying or electronic mail, with formal confirmation following if requested by the requested State. The agreement should encourage the constitution of joint inquiry teams, recommending direct contacts between the relevant authorities designated by the States. The project also encourages the use of video-transmission for receiving evidence from a person or expert.
The agreement will complete the bilateral agreements that previously existed between a Member State and the United States. This means a State may still refuse to grant judicial assistance requested on the basis of provisions of a pre-existing bilateral agreement or, if there is not one, according to the principles of its internal legislation.
In terms of data protection, the state may apply additional criteria in a particular case when, in the absence of these criteria it cannot respond to the request for mutual aid, but the state may not impose a general restriction - part from the special derogation granted to Luxembourg. Generally, the draft agreement stipulates that assistance cannot be refused for reasons of banking secrecy, but later on, a specially drafted article sets out that if a bilateral mutual aid agreement already in place when the EU-US agreement is signed "limits the obligation to provide aid in the event of certain tax evasion cases", the state concerned can request to continue applying this derogation (a point marked with an asterisk states that this paragraph only applies to Luxembourg).
The agreement is expected to cover the supply of bank details of people suspected of committing crimes. The draft agreement outlines the option of applying double indemnity (option of refusing to supply information if the crime in question is not punishable in the requesting and requestee states); restrict aid to crimes carrying a punishment of four years in the requesting state and two years in the requestee; and sticking to a list of serious crimes defined by the Member State and the United States. All these restrictions must be notified to the other party before the transmission of a written instrument on the recognition and application of the agreement in bilateral relations. The document states that these restrictions should not prevent, at very least, the identification of accounts connected with terrorist offences or the laundering of money obtained through serious crimes. The draft documents sets out how requests for banking information should be transmitted and answered.
Both draft agreements have been declassified and can be consulted at the Council's online register of documents.