EU Council Framework 2009/315/JHA of 26 February 2009 regulates the organization and content of the exchange of information from the criminal record between Member States.
The Framework Decision comprises the general principles for the operation of the exchange of criminal records between EU countries, together with Decision 2009/316/JHA establishing the European Criminal Record Information System (ECRIS).
The aim is to prevent criminals from escaping their past by moving to another EU country other than the one in which they were convicted. This is established by ensuring, that information on all their convictions are available whenever necessary, regardless of the EU country in which they were convicted.
In 2019, the Directive (EU) 2019/884 has been amended, and is regulating the exchange of information between EU countries on non-EU nationals and stateless persons and, together with Regulation (EU) 2019/816, ensures that ECRIS will be more effective than sentencing non-EU nationals within the Union. In addition, Directive (EU) 2019/884 will replace Decision 2009/316/JHA on 28 June 2022.
The objectives of the Framework-Decision are:
- the obligation of an EU country to convict a national of another EU country to transmit information regarding the convicted country of origin of the person;
- the obligation of an EU country, of which the person is a national, to maintain the information received on convictions and the procedures that an EU country must follow when responding to a request for information concerning its nationals;
- the establishment of a set of rules for the development of an electronic system for the exchange of information on convictions.
Definition of Principles:
EU countries should designate central authorities to carry out tasks related to the exchange of information.
Registration of convictions and storage of information
An EU convicted country must register the convicted person's nationality(s) and disclose to his or her country(s) the details of any conviction entered in that person ‘s criminal record, including information on:
- the person against whom a conviction has been made
- the details and content of the conviction; and
- the offense that led to the conviction.
The EU country against which the convicted person is a national must retain the information sent to it in order to respond to requests for information on convictions of its nationals. The answer should:
- include information on convictions in its territory and in any other country; and
- be made within 10 working days, or within 20 working days in case the request concerns a person who asks for his own criminal record.
Exchange of information
The exchange of information may take place for the purposes of criminal proceedings or for any other legitimate purpose e.g. control of a prospective employee. While replies to requests for criminal purposes are mandatory, those for other purposes should be made in accordance with national law.
When a central authority of an EU country receives a request for information from any relevant national authority, it may in turn request information from another EU country, in particular the country of nationality of the person concerned.
When a central EU authority receives an application from a national of another EU country regarding its own criminal record, it should request information from the EU country of its own nationality and include it in the certificate to be issued.
In 2017, the European Commission published a report on the exchange of criminal record information between EU countries through ECRIS.
Amending Directive (EU) 2019/884
The Framework-Decision was amended in 2019 by Directive (EU) 2019/884, which seeks to ensure the effective exchange of information on convictions of non-EU nationals (including stateless persons and persons of unknown nationality) through ECRIS. The directive also ensures that ECRIS will be more effective than non-EU nationals with previous convictions in an EU country. In addition, the directive:
- obliges EU countries to ensure that convictions are accompanied by information on the nationality, or nationalities, of the convicted person, when such information is available;
- introduces procedures for responding to requests for information;
- ensure that any extract from the criminal record requested by a non-EU national is supplemented by information from other EU countries; and
- sets out the technical modifications required to ensure the smooth operation of the information exchange system.
All criminal record data must be stored exclusively in databases managed by EU countries. The central EU country authority will not have direct access to the criminal record databases of other EU countries.
The European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice is responsible for maintaining and further developing the ECRIS reporting application.
A report published in 2016 by the European Commission describes the implementation of the Framework Decision in EU countries. In general, it highlights the great progress that has been made in the exchange of criminal record information between EU countries.
At the time of the report, 22 EU countries had informed the Commission of the measures they had taken to transpose the Framework Decision into national law. In the meantime, all EU countries have now notified the measures they have taken in this context.
Since when is the Framework Decision applicable?
The Framework Decision has been in force since 27 April 2009. EU countries had to transpose it into national law by 27 April 2012.
The changes introduced by Amending Directive (EU) 2019/884 will apply to all EU countries from 28 June 2022.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.