[Senate Treaty Document 109-13]
[From the U.S. Government Publishing Office]
109th Congress Treaty Doc.
2d Session SENATE
109-13
_______________________________________________________________________
MUTUAL LEGAL ASSISTANCE AGREEMENT WITH THE EUROPEAN UNION
----------
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
AGREEMENT ON MUTUAL LEGAL ASSISTANCE BETWEEN THE UNITED STATES OF
AMERICA AND THE EUROPEAN UNION (EU), SIGNED ON JUNE 25, 2003 AT
WASHINGTON, TOGETHER WITH TWENTY-FIVE BILATERAL INSTRUMENTS WHICH
SUBSEQUENTLY WERE SIGNED BETWEEN THE UNITED STATES AND EACH EUROPEAN
UNION MEMBER STATE IN ORDER TO IMPLEMENT THE AGREEMENT WITH THE EU,
WITH EXPLANATORY NOTE
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
September 28, 2006.--Agreement was read the first time, and together
with the accompanying papers, referred to the Committee on Foreign
Relations and ordered to be printed for the use of the Senate
(Star Print)
109th Congress Treaty Doc.
2d Session SENATE 109-13
_______________________________________________________________________
MUTUAL LEGAL ASSISTANCE AGREEMENT WITH THE EUROPEAN UNION
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
AGREEMENT ON MUTUAL LEGAL ASSISTANCE BETWEEN THE UNITED STATES OF
AMERICA AND THE EUROPEAN UNION (EU), SIGNED ON JUNE 25, 2003 AT
WASHINGTON, TOGETHER WITH TWENTY-FIVE BILATERAL INSTRUMENTS WHICH
SUBSEQUENTLY WERE SIGNED BETWEEN THE UNITED STATES AND EACH EUROPEAN
UNION MEMBER STATE IN ORDER TO IMPLEMENT THE AGREEMENT WITH THE EU,
WITH EXPLANATORY NOTE
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
September 28, 2006.--Agreement was read the first time, and together
with the accompanying papers, referred to the Committee on Foreign
Relations and ordered to be printed for the use of the Senate
-----
U.S. GOVERNMENT PRINTING OFFICE
49-118(STAR PRINT) WASHINGTON : 2008
LETTER OF TRANSMITTAL
----------
The White House, September 28, 2006.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Agreement on
Mutual Legal Assistance between the United States of America
and the European Union (EU), signed on June 25, 2003, at
Washington, together with 25 bilateral instruments that
subsequently were signed between the United States and each
European Union Member State in order to implement the Agreement
with the EU, and an explanatory note that is an integral part
of the Agreement. I also transmit, for the information of the
Senate, the report of the Department of State with respect to
the Agreement and bilateral instruments.
A parallel agreement with the European Union on
extradition, together with bilateral instruments, will be
transmitted to the Senate separately. These two agreements are
the first law enforcement agreements concluded between the
United States and the European Union. Together they serve to
modernize and expand in important respects the law enforcement
relationships between the United States and the 25 EU Member
States, as well as formalize and strengthen the institutional
framework for law enforcement relations between the United
States and the European Union itself.
The U.S.-EU Mutual Legal Assistance Agreement contains
several innovations that should prove of value to U.S.
prosecutors and investigators, including in counterterrorism
cases. The Agreement creates an improved mechanism for
obtaining bank information from an EU Member State, elaborates
legal frameworks for the use of new techniques such as joint
investigative teams, and establishes a comprehensive and
uniform framework for limitations on the use of personal and
other data. The Agreement includes a non-derogation provision
making clear that it is without prejudice to the ability of the
United States or an EU Member State to refuse assistance where
doing so would prejudice its sovereignty, security, public, or
other essential interests.
I recommend that the Senate give early and favorable
consideration to the Agreement and bilateral instruments.
George W. Bush.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, August 3, 2006.
The President,
The White House.
The President: I have the honor to submit to you, with a
view to its transmittal to the Senate for advice and consent to
ratification, the Agreement on Mutual Legal Assistance between
the United States and the European Union (EU), (``U.S.-EU
MLAT''), signed on June 25, 2003. Also being submitted together
with the U.S.-EU MLAT are twenty-five bilateral instruments
that were signed by the United States and all EU Member States
during 2004-2006, which implement the provisions of the U.S.-EU
MLAT. A detailed, article-by-article analysis of the U.S.-EU
MLAT is enclosed with this report. I am recommending that the
U.S.-EU MLAT, including an explanatory note, which is an
integral part of the Agreement, and the related bilateral
instruments be transmitted to the Senate for its advice and
consent to ratification. The Department joins me in this
recommendation.
Respectfully submitted.
Condoleezza Rice.
Enclosures: As stated.
EXECUTIVE SUMMARY
Mutual Legal Assistance Agreement Between the United States and the
European Union
On June 25, 2003, the United States signed with the
European Union a Mutual Legal Assistance Agreement (``U.S.-EU
Mutual Legal Assistance Agreement''). Also being transmitted
together with this Agreement are bilateral implementing
instruments with all 25 EU member states. A parallel agreement
with the EU on extradition, together with implementing
instruments, is being transmitted separately. These are the
first law enforcement agreements ever concluded by the United
States with the European Union. The principal effect of the
Mutual Legal Assistance Agreement would be to modernize
bilateral relationships with EU member states with which the
United States already has mutual legal assistance treaties
(MLATs), and to create such relationships with the remainder of
member states with which bilateral MLATs had not been concluded
previously. This is particularly important in light of the
counter-terrorism challenges we have faced since September 11,
2001. A second benefit would be formalizing and strengthening
the institutional framework for law enforcement relations with
the European Union.
The U.S.-EU Mutual Legal Assistance Agreement incorporates
several innovations which should prove of value to U.S.
prosecutors and investigators. The Agreement creates an
improved mechanism for obtaining bank information from an EU
member state, elaborates legal frameworks for the use of new
techniques such as joint investigative teams, and establishes a
comprehensive and uniform framework for limitations on the use
of personal and other data. The Agreement includes a non-
derogation provision making clear that it is without prejudice
to the ability of the U.S. or an EU member state to refuse
assistance where doing so would prejudice its sovereignty,
security, other public or other essential interests.
U.S.-EU Mutual Legal Assistance Agreement
overview
The U.S.-EU Mutual Legal Assistance Agreement selectively
amends and supplements existing United States bilateral mutual
legal assistance treaties with seventeen Member States of the
EU. In the case of the other eight EU Member States, the U.S.-
EU Mutual Legal Assistance Agreement creates for the first time
a treaty-based, albeit partial, mutual legal assistance
relationship with the United States. A counterpart Agreement on
Extradition between the United States and the European Union is
being submitted separately, together with implementing
instruments with EU Member States.
Both U.S.-EU Agreements have their origin in a period of
intensive consultation between the United States and officials
of the European Union, and its then-Belgian and Spanish
Presidencies, in the aftermath of the September 11, 2001,
terrorist attacks on ways of improving trans-Atlantic
cooperation against terrorism. These discussions led to the
conclusion that modernization of existing bilateral mutual
legal assistance treaties (``MLATs'') between the United States
and EU Member States would be a valuable step, as would
creation of new bilateral mutual legal assistance agreements
with Member States that did not already have such agreements
with the United States. By concluding agreements with the
European Union, the United States could achieve uniform
improvements and expansions in coverage across much of Europe.
In addition, the U.S.-EU Agreements will enable the
strengthening of an emerging institutional relationship on law
enforcement matters between the United States and the European
Union, during a period when the EU is actively harmonizing
national criminal law procedures and methods of international
cooperation.
Negotiation of the U.S.-EU Agreements was conducted during
2002 and 2003. The European Union's delegation was led by
officials from Denmark and Greece, which held the EU's rotating
Presidency at that time, and also included officials from the
Council and Commission. After the U.S.-EU Agreements were
signed on June 25, 2003, the United States pursued negotiation
with each Member State of implementing bilateral mutual legal
assistance instruments. Initial efforts focused on the fifteen
states that were members of the European Union at the time the
U.S.-EU Agreements were signed, and then expanded to the
additional ten states, which joined the EU in 2004. The last of
the bilateral instruments was signed on June 9, 2006.
The U.S.-EU Mutual Legal Assistance Agreement and bilateral
instruments are regarded as self-executing treaties under U.S.
law, and thus will not require implementing legislation for the
United States. With respect to implementation within the
European Union, there is greater complexity. The EU, as a
Contracting Party, is responsible for implementation of the
obligations contained in the U.S.-EU Mutual Legal Assistance
Agreement, even though practical application of those
obligations would occur at the Member State level. The EU
Council would monitor implementation and empower the Presidency
as necessary to ensure that Member States comply in all
respects. EU Member States, while formally not Contracting
Parties to the U.S.-EU Mutual Legal Assistance Agreement are
bound to its provisions under internal EU law. The Member
States also would have international obligations to the United
States under the bilateral instruments. Most Member States, in
order to comply with the requirements of their domestic
constitutional order, are like the United States, pursuing
domestic processes in order to ratify both the U.S.-EU Mutual
Legal Assistance Agreement and the bilateral instrument. A
number of Member States also secured domestic parliamentary
endorsement of the U.S.-EU Mutual Legal Assistance Agreement
prior to its signature.
The following is an article-by-article description of the
provisions of the U.S.-EU Mutual Legal Assistance Agreement.
The Preamble underscores that cooperation between the
United States and European Union Member States serves to
protect democratic society and our common values, including the
rights of individuals and the rule of law.
Article 1 (``Object and Purpose'') states that the United
States and the EU undertake to provide enhancements to
cooperation and mutual legal assistance, in the manner
specified in the U.S.-EU Mutual Legal Assistance Agreement. To
the extent that mutual legal assistance between the United
States and EU Member States is carried out pursuant to
bilateral treaties, this phrasing underscores the obligation to
supplement, and, where necessary, modify these existing
bilateral treaties to effectuate the terms of the U.S.-EU
Mutual Legal Assistance Agreement.
Article 2 (``Definitions'') defines three terms used
frequently in the U.S.-EU Mutual Legal Assistance Agreement:
``Contracting Parties,'' ``Member States,'' and ``Ministry of
Justice.''
Article 2(1) provides that the Contracting Parties to each
U.S.-EU Agreement are the United States and the European Union.
Under Articles 24 and 38 of the Treaty of European Union, the
European Union may enter into international agreements in the
area of criminal judicial cooperation. The Member State then
holding the rotating Presidency (Denmark, followed by Greece)
leg negotiations for the European Union. At the conclusion of
negotiations, Greece was authorized unanimously by the European
Council to sign the U.S.-EU Mutual Legal Assistance Agreement
on behalf of the European Union.
Article 3(1) (``Scope of application'') provides that the
Contracting Parties shall ensure that the provisions of the
U.S.-EU Mutual Legal Assistance Agreement are applied in
relation to existing bilateral mutual legal assistance treaties
between the United States and EU Member States. Thus the EU is
responsible, as the Party to the Agreement, for ensuring that
Member States make the necessary changes in their bilateral
mutual legal assistance relationships with the United States.
The remainder of Article 3(1) specifies the manner in which
existing mutual legal assistance treaties between the United
States and EU Member States are affected by the U.S.-EU Mutual
Legal Assistance Agreement, or, alternatively, the manner in
which the U.S.-EU Mutual Legal Assistance Agreement is to apply
where there is no mutual legal assistance treaty in force
between a Member State and the United States. Generally,
Article 4 (creating a mechanism for identifying bank accounts
and transactions), 5 (providing a mechanism for forming joint
investigative teams), 6 (establishing a mechanism for using
video conferencing technology in criminal investigations and
proceedings), 7 (providing for the use of expedited means of
communications) and 8 (authorizing the providing of mutual
legal assistance to certain administrative authorities), which
either create new cooperation mechanisms or deal with them in
great detail than in existing treaties, supplement the terms of
existing bilateral mutual legal assistance treaties, and also
apply in the absence of a treaty. Article 9 (facilitating broad
law enforcement use of information and evidence received
pursuant to mutual legal assistance requests), replaces use
limitation provisions in existing bilateral mutual legal
assistance treaties, and is applicable where the bilateral
mutual legal assistance treaty either contains no use
limitation provisions (i.e. the U.S.-Belgium MLAT) or where
there is no mutual legal assistance treaty in force. Article 10
(providing a procedure for the requesting State to seek the
confidentiality of its request) is applied bilaterally except
if the applicable bilateral mutual legal assistance treaty
already has such a provision.
The extent to which current mutual legal assistance
treaties with EU Member States are modified or supplemented by
application of these substantive provisions is described later
in this analysis, on a country-by-country basis.
Article 3(2) elaborates on the EU's obligation to ensure
the application of the provisions of the U.S.-EU Mutual Legal
Assistance Agreement by its Member States having existing
bilateral MLATs with the United States. Specifically, the EU
shall ensure that each Member State acknowledges the
consequential changes to its existing bilateral mutual legal
assistance treaty by entering into a written ``instrument''
with the United States, that is, a free-standing international
agreement binding under international law. The EU also must
ensure that countries acceding to the European Union after the
entry into force of the U.S.-EU Mutual Legal Assistance
Agreement and having mutual legal assistance treaties with the
United States conclude bilateral instruments with the United
States after accession or preferably prior thereto.
Article 3(3) provides that both the United States and the
European Union are obliged to ensure the application of the
U.S.-EU Mutual Legal Assistance Agreement by Member States
lacking an existing bilateral MLAT with the United States. Such
a Member State also must enter into a written ``instrument''
with the United States. Countries acceding to the European
Union after the entry into force of the U.S.-EU Mutual Legal
Assistance Agreement and not having mutual legal assistance
treaties with the United States likewise are obliged to
conclude bilateral instruments with the United States after
accession, and are encouraged to do so prior to their
accession.
Article 3(4) states that the U.S.-EU Mutual Legal
Assistance Agreement shall apply in mutual legal assistance
relations between the United States and a new Member State from
the date of notification that internal procedures for the
bilateral instrument have been completed.
There are both legal and practical reasons for the
requirement of a bilateral instrument between the United States
and each EU Member State. As a matter of international law, the
conclusion of a bilateral instrument conveys to the United
States the sovereign consent of the Member State to the changes
required in treaties concluded and applied at the bilateral
level, rather than relying entirely on the effect of EU
internal law to ensure application of changes in bilateral
treaties to which the European Union itself is not party.
In addition, as a practical matter, since mutual legal
assistance treaties are litigated and interpreted extensively
in national courts, it was seen as important to delineate in
instruments concluded at the bilateral level the changes made
by the U.S.-EU Mutual Legal Assistance Agreement in these
bilateral treaties. The consequential changes are set out
either in a revised integrated text of the particular treaty
(included as an Annex to the instrument) or in provisions
placed in the instrument itself specifically delineating the
new operative language. Conclusion of bilateral instruments
thus serves to ease application of the revised treaties for
practitioners and the judiciary.
Finally, Article 3(5), like other U.S. mutual legal
assistance treaties, states that the provisions of the U.S.-EU
Mutual Legal Assistance Agreement are intended solely for
mutual legal assistance between the United States and EU Member
States and shall not give rise to a right on the part of any
private person to obtain, suppress, or exclude evidence, impede
the execution of a request, or expand or limit rights otherwise
available under domestic law.
Article 4 (``Identification of bank information'') is one
of the provisions included in order to provide a form of
assistance not specifically set forth in existing mutual legal
assistance treaties. Its terms supplement the provisions of all
existing treaties with EU Member States, and apply in the
absence of a treaty.
Mutual legal assistance treaties generally address the
production of records located in the requested State. For such
provisions to function properly with respect to bank and other
business records, a requesting State must provide sufficient
information regarding the bank branch or account involved to
enable the records to be located and produced. In the Protocol
to the European Union Mutual Legal Assistance Treaty, which
applies among EU Member States, Article 1 went a step further
by establishing a procedure by which a requested State is
obligated to search on a centralized basis for bank accounts
located within its territory that may be important to a
criminal investigation in the requesting State. Section 314(a)
of the USA Patriot Act established a comparable centralized
mechanism by which the Treasury Department's Financial Crime
Information Center (``FinCen'') can query domestic banking
institutions in order to locate transactions or accounts that
may be involved in money laundering or terrorism violations.
The availability of these existing comparable mechanisms
provided a basis for Article 4 of the U.S.-EU Mutual Legal
Assistance Agreement.
Article 4(1)(a) requires the requested State, upon
receiving a request in accordance with the terms of the
article, to promptly ascertain if banks located in its
territory possess information on whether a natural or legal
person suspected of or charged with a criminal offense as
designated pursuant to paragraph 4, holds a bank account or
accounts. Paragraph 1(b) permits, but does not obligate, the
requested State to ascertain whether bank information exists
pertaining to convicted persons, or whether there is
information in the possession of non-bank financial
institutions, or financial transactions other than those
related to accounts.
Article 4(2) requires a request for this form of
cooperation to include, first, the identity of the natural or
legal person relevant to locating such accounts or
transactions; second, sufficient information to enable the
competent authority of the requested State to reasonably
suspect that such person engaged in a criminal offense and that
banks or non-bank financial institutions in the requested State
may have the information requested and to conclude that the
information sought relates to the criminal investigation or
proceeding for which assistance is sought; and, third, as much
information as possible concerning which banks or other
institutions may have the information, in order to reduce the
breadth of the inquiry.
Article 4(3) provides that request and information may be
transmitted through, for the United States, designated law
enforcement components and, for the European Union, designated
law enforcement authorities of the Member States, or their
Central Authorities under bilateral mutual legal assistance
treaties. In each of the bilateral instruments with the 25 EU
Member States implementing the U.S.-EU Mutual Legal Assistance
Agreement, the United States designated its legal attache to
the Member State concerned representing the Federal Bureau of
Investigation, Drug Enforcement Administration or Immigration
and Customs Enforcement (depending on the nature of the
investigation or proceeding giving rise to the request), as the
channel of communication under this article, since this was
viewed as the most rapid channel for the exchange of
information which may be time-sensitive. Paragraph 3 also
allows the United States and the EU to modify these
designations by exchange of diplomatic notes after the entry
into force of this agreement.
Under Article 4 paragraph 4(a), a State may limit its
obligation to provide assistance under this Article to certain
forms of criminality, specifically: (i) offenses punishable
under the laws of the requesting and requested States (i.e.,
conduct as to which there is dual criminality standard); (ii)
offenses punishable by a maximum penalty of at least two years
in the requested State and four years in the requesting State
(i.e., a modified application of the dual criminality
standard); or (iii) designated offenses punishable under the
laws of the requesting and requested States. A State may also
make application of Article 4 unlimited in scope (i.e., no dual
criminality requirement).
Under paragraph 4(b), should a State choose to limit the
scope of its obligation to provide assistance under the options
set forth in paragraphs 4(a)(ii) or (iii), it must at a minimum
provide assistance with respect to terrorist activity and
laundering of proceeds generated from a comprehensive range of
serious criminal activities punishable under the laws of both
the requesting and requested States. In the bilateral
instruments between the United States and EU Member States
implementing the U.S.-EU Mutual Legal Assistance Agreement, the
United States, consistent with the scope of Section 314(a) of
the USA Patriot Act, chose to limit application of this measure
to terrorist and money laundering activity punishable in both
the requesting and requested States, and to such criminal
activity as may subsequently be agreed between the Parties (so
that the scope of assistance could be expanded in the future in
a manner corresponding to any future expansion of U.S. domestic
legislation). Most EU Member States, in turn, chose also to
provide assistance to the same extent, but, as will be
described in the country-by-country analysis of bilateral
instruments that follows, a number agreed to provide assistance
under this Article more broadly. Those EU Member States that
chose to provide assistance to the same extent as the United
States assured the United States that assistance would be
available with respect to a wide range of conduct associated
with terrorism (which includes the conduct criminalized in
international counter-terrorism conventions to which they are
party), and money laundering with respect to an extremely broad
range of predicate offenses. The U.S. negotiators in turn
provided the same assurance.
Article 4(5) prohibits the invocation of bank secrecy in
order to refuse assistance under this Article. Strictly
speaking, this specification does not alter the applicable
standard where there is a mutual legal assistance treaty in
force between an EU Member State and the United States, since
no U.S. MLAT permits the assertion of bank secrecy as a ground
for refusal of assistance. However, with respect to EU Member
States with which the United States does not have a mutual
legal assistance treaty, this paragraph prohibits the EU Member
State from seeking to deny assistance on this basis.
Article 4(6) provides that once information has been
provided under this Article identifying accounts or
transactions, the actual production of records pertaining to
such accounts or transactions is governed by the already
existing MLAT provision governing the production of records,
or, in the absence of an MLAT, by the applicable domestic law
of the requested State. The same would of course be true with
respect to the freezing or forfeiture of funds identified
through application of this Article.
Under Article 4(7), the United States and EU are under an
obligation to ensure that application of this Article does not
impose extraordinary burdens on requested States. In the event
that the volume of requests became overly burdensome to banks
or the points of contact designated under paragraph 3, a
consultation mechanism has been established for purposes of
facilitating a more effective application of the Article,
including such measures as may be required to reduce pending
and future burdens.
Article 5 (``Joint investigative teams'') also provides a
form of cooperation not explicitly provided for in existing
United States bilateral mutual legal assistance treaties, and
its terms supplement the provisions of existing treaties and
apply in the absence of a treaty. Paragraph 1 requires the
Parties to provide for the necessary legal authority to
establish and operate joint investigative teams in the
respective territories of the United States and the EU Member
States, where the States concerned agree to do so. For the
United States, the legal authority to engage in such
cooperation with foreign authorities already exists under the
statutory and regulatory frameworks for U.S. law enforcement
agencies. For some EU Member States, however, an obligation to
assist set forth in a binding legal instrument was deemed
necessary to permit operation of joint teams in a broad variety
of circumstances, such as a joint team similar in complexity to
a U.S. domestic law enforcement task force, in which both
police and prosecutorial components (or the investigative
magistrate that in some EU countries performs this function)
participate simultaneously.
Under Article 5(2), the manner of the team's operation
shall be agreed between the competent authorities determined by
the respective States concerned.
Article 5(3) describes channels of communication. The
competent authorities determined by the respective States
concerned shall communicate directly for purposes of
establishment and operation of such team, except where the
complexity, scope, or other circumstances involved are deemed
to require more central coordination, in which case the States
concerned may agree upon other channels of communication. This
approach facilitates speed, efficiency, and clarity by
providing for direct communications in most cases among the
affected law enforcement components, rather than through a
mutual legal assistance request transmitted through the Central
Authority, as would otherwise take place pursuant to a
bilateral MLAT.
Article 5(4) states that where the joint investigative team
needs investigative measures to be taken in one of the States
involved in the team, a member of the team of that State may
request its own competent authorities to take those measures
without the other State having to submit a mutual legal
assistance request. The legal standard for obtaining the
measure is the applicable domestic standard. In other words,
where an investigative measure is to be carried out in the
United States, for example, a U.S. team member would do so by
invoking existing domestic investigative authority, and would
share resulting information or evidence seized pursuant to
existing authority to share with foreign authorities. An MLAT
request would not be required. Of course, in a case in which
there is no domestic U.S. jurisdiction and consequently a
compulsory measure cannot be carried out based on domestic
authority, the other provisions of the bilateral MLAT in force
(or, absent an MLAT, the provisions of 28 U.S.C. Section 1782
or other provisions) may furnish a separate legal basis for
carrying out such measure.
Article 6 (``Video-conferencing'') also supplements the
terms of existing bilateral mutual legal assistance treaties
and applies in the absence of a treaty. Paragraph 1 requires
the Parties to provide for the necessary legal authority to use
video transmission technology between the United States and the
EU Member States for the purpose of taking witness testimony
sought by the requesting State. The procedures to be applied in
taking such testimony are as otherwise set forth in the
applicable mutual legal assistance treaty in force (e.g.,
provisions governing execution of requests, or procedures for
taking of testimony in the requested State), or--either in the
absence of a treaty or where the terms of the treaty so
provide--under the law of the requested State. Here too,
general provisions of bilateral MLATs already in force and 28
U.S.C. Section 1782 already enable the United States to provide
this form of cooperation on behalf of a foreign State, but a
separate provision was deemed useful to enable a number of EU
Member States to provide the same cooperation to the United
States.
Article 6(2) deals with costs. Unless otherwise agreed, the
requesting State shall bear the cost associated with
establishing and servicing the transmission. Other costs are
treated in accordance with the costs provision of the
applicable MLAT in force, or, absent an MLAT, as agreed between
the requesting and requested States.
Article 6(3) provides for a consultation mechanism in order
to facilitate legal, technical or logistical issues that may
arise in a particular State.
Article 6(4) provides that the making of intentionally
false statements or other witness or expert misconduct shall be
punishable in the same manner as if such conduct had been
committed in the course of a domestic proceeding. This is
already the case where the United States has been requested to
facilitate the taking of video testimony from a witness or
expert located in the United States on behalf of a foreign
State, since the proceeding to execute the request is a U.S.
proceeding and therefore penalties under U.S. law for perjury,
obstruction of justice or contempt of court are applicable.
Article 6(5) specifies that the availability of video
transmission technology for purposes of facilitating the taking
of testimony does not mean that other means of obtaining
testimony are no longer applicable.
Article 6(6) makes clear that the requested State may also
permit the use of video conferencing technology for purposes
other than providing testimony, including for purposes of
identification of persons or objects, and taking of
investigative statements (to the extent these are not
considered to be testimony under the law of the requesting
State).
Article 7 (``Expedited transmission of requests'')
supplements the terms of existing mutual legal assistance
treaties in force and applies in the absence of a treaty. It
provides that requests for mutual legal assistance, and
communications related thereto, may be made by expedited means
of communications, including fax or email, with formal
confirmation to follow where required by the requested State.
The requested State may respond to the request by any such
expedited means of communication. Use of these means of
transmitting or responding to requests is at the option of the
State concerned, and generally will facilitate the rapid
execution of requests.
Article 8 (``Mutual legal assistance to administrative
authorities'') also supplements the terms of existing treaties,
and applies in the absence thereof. Paragraph 1 provides an
express legal basis for providing assistance to an
administrative authority investigating conduct with a view to
criminal prosecution of the conduct or referral of the conduct
to criminal investigation or prosecution authorities, pursuant
to its specific administrative or regulatory authority to
undertake such investigation. If the administrative authority
anticipates that no prosecution or referral will take place,
assistance is not available under this agreement.
This provision benefits U.S. regulatory authorities
including, but not limited to, the Securities and Exchange
Commission, the Commodities Futures Trading Commission, and the
Federal Trade Commission, which have statutory authority to
conduct investigations with a view to subsequent referral to
the Department of Justice for criminal prosecution. By the
terms of Article 8(1), there is an obligation to afford
assistance to these ``national'' (i.e., federal) authorities.
With respect to assistance to ``other'' administrative
authorities (i.e., at the state or local level), the requested
State may provide assistance at its discretion. These
obligations are described in more detail in the explanatory
note to the U.S.-EU Mutual Legal Assistance Agreement, which
also clarifies that there is an obligation to assist
irrespective of the fact that the administrative or regulatory
authority is also pursuing sanctions other than possible
referral for criminal prosecution, and irrespective of whether
or not the authority ultimately decides to pursue criminal
prosecution referral.
Pursuant to Article 8(2)(a), requests are to be transmitted
between the Central Authorities pursuant to the applicable
mutual legal assistance treaty in force, or between such other
authorities as may be agreed among the Central Authorities. In
the absence of a mutual legal assistance treaty, paragraph 2(b)
specifies that such requests are to be transmitted between the
U.S. Department of Justice and the Ministry of Justice of the
EU Member State (or its comparable ministry where designated
pursuant to Article 15(1)), or between such other authorities
as may be agreed between the Department of Justice and such
Ministry. Pursuant to paragraph 3, the United States and EU are
under an obligation to ensure that application of this Article
does not impose extraordinary burdens on requested States.
Should this occur, a consultation mechanism has been
established for purposes of facilitating more effective
application of the Article, including such measures as may be
required to reduce pending and future burdens.
Article 9 (``Limitations on use to protect personal and
other date'') replaces the use limitation provision of existing
bilateral mutual legal assistance treaties (subject to
paragraphs 4 and 5, described further below). It also applies
where the existing treaty has no use limitation article (i.e.
the U.S.-Belgium treaty), as well as where there is no treaty
in force.
Article 9(1) permits the requesting State to use evidence
or information it has obtained from the requested State for its
criminal investigations and proceedings, for preventing an
immediate and serious threat to its public security, for non-
criminal judicial or administrative proceedings directly
related to its criminal investigations, for non-criminal
judicial or administrative proceedings for which assistance was
provided under Article 8, and for any other purpose if the
information or evidence was made public within the framework of
the proceedings for which it was transmitted or pursuant to the
above permissible uses. Other uses of the evidence or
information require the prior consent of the requested State.
This paragraph represents a broader formulation than in pre-
existing MLATs that require the consent from the requested
State if the evidence or information is to be used for an
investigation or proceeding different from that set forth in
the request. The new formulation authorizes the use of the
evidence and information received for a particular case in
other criminal cases and for preventive purposes.
Article 9(2)(a) specifies that the article does not
preclude the requested State from imposing additional
conditions where the particular request for assistance could
not be granted in the absence of such conditions. Where such
additional conditions are imposed, the requested State may
require the requesting State to give information on the use
made of the evidence or information.
Article 9(2)(b) provides that generic restrictions with
respect to the legal standards in the requesting State for
processing personal data may not be imposed by the requested
State as a condition under paragraph 2(a) to providing evidence
or information. This is further elaborated upon in the
explanatory note to the U.S.-EU Mutual Legal Assistance
Agreement, which specifies that the fact that the requesting
and requested States have different systems of protecting the
privacy of data does not give rise to a ground for refusal of
assistance, and may not as such give rise to additional
conditions under paragraph 2(a). Such refusal of assistance
could only arise in exceptional cases in which, upon balancing
the important interests involved in the particular case,
furnishing the specific data sought by the requesting State
would raise difficulties so fundamental as to be considered by
the requested State to fall within the essential interests
grounds for refusal.
Article 9(3) provides that where, following disclosure to
the requesting State, the requested State becomes aware of
circumstances that may cause it to seek additional conditions
in a particular case, it may consult with the requesting State
to determine the extent to which the evidence or information
can be protected.
Article 9(4) provides that the requested State instead may
apply the use limitation provision of the existing mutual legal
assistance treaty where to do so will result in less
restriction on the use of evidence of information than provided
for in this Article. This paragraph applies to those mutual
legal assistance treaties between the United States and EU
Member States in which there is no use limitation unless
specifically invoked by the requested State. In such cases, the
requested State remains free to impose no limitation, and the
use limitation article in the relevant bilateral instruments
between the United States and such EU Member States has been
drafted accordingly.
Article 9(5) provides that, where the bilateral mutual
legal assistance treaty in force between the United States and
an EU Member State on the date of signature of the U.S.-EU
Mutual Legal Assistance Agreement limits the obligation to
provide assistance with respect to certain tax offenses, the
Member State concerned may indicate in its written instrument
with the United States that, with respect to such offenses, it
will continue to apply the pre-existing bilateral provision.
Only Luxembourg has made use of this provision, so that with
respect to tax offenses as to which the obligation to provide
assistance is limited by the U.S.-Luxembourg MLAT, the prior
use limitation provision applies.
Article 10 (``Requesting State's request for
confidentiality''), like similar provisions in many modern U.S.
MLATs, requires the requested State, if asked, to use its best
efforts to keep confidential a request and its contents, and to
inform the requesting State if the request cannot be executed
without breaching confidentiality. The article applies where
the existing mutual legal assistance treaty does not already
contain such a provision, or in the absence of a treaty.
Under Article 11 (``Consultations''), the United States and
European Union shall consult for purposes of enabling the most
effective use of the U.S.-EU Mutual Legal Assistance Agreement.
Article 12 (``Temporal application'') provides that the
U.S.-EU Mutual Legal Assistance Agreement applies to offenses
committed before as well as after it enters into force.
Articles 6 (``Video-conferencing'') and 7 (``Expedited
transmission of requests'') apply to requests pending in a
requested State at the time of the U.S.-EU Mutual Legal
Assistance Agreement's entry into force; otherwise the
Agreement applies to requests for mutual legal assistance made
after its entry into force.
Article 13 (``Non-derogation'') makes clear that the U.S.-
EU Mutual Legal Assistance Agreement's provisions do not
preclude the assertion of a ground for refusal set forth in the
applicable mutual legal assistance treaty, or, in the absence
of a treaty, applicable legal principles (sovereignty,
security, ordre public or other essential interests) except
where such ground for refusal is precluded by Articles 4(5)
(bank secrecy) and 9(2)(b) (generic restrictions relating to
personal data) of the U.S.-EU Mutual Legal Assistance
Agreement.
Article 14 (``Future bilateral mutual legal assistance
treaties with Member States'') provides that the United States
and EU Member States may conclude future mutual legal
assistance agreements consistent with the U.S.-EU Mutual legal
Assistance Agreement. In the Explanatory Note, it is clarified
that should measures set forth in the U.S.-EU Mutual Legal
Assistance Agreement create operational difficulties for the
United States or a Member State, and consultations alone cannot
remedy the difficulty, a future bilateral agreement with the
Member State could contain an operationally feasible
alternative mechanism that satisfies the objectives of the
provision in question.
Article 15 (``Designation and notification'') provides that
the EU shall notify the United States of designations pursuant
to Articles 4(3) (points of contact for identification of bank
information), 4(4) (designation of scope of bank information
article) and 8(2) (competent authority other than Ministry of
Justice designated as point of contact for cooperation with
administrative authorities), prior to the completion of
bilateral written instruments between the U.S. and Member
States under Articles 3(2) or 3(3). This notification
requirement was intended to ensure that the identity of these
authorities would be set forth in the bilateral instruments.
Under Article 16(1) (``Territorial application''), the
U.S.-EU Mutual Legal Assistance Agreement applies to the United
States of America, to EU Member States, to territories for
whose external relations a Member State is is responsible, and
to countries for whom the member has other duties pertaining to
their external relations, where agreed upon by exchange of
diplomatic note between the EU and United States, duly
confirmed by the relevant Member State. Several EU Member
States have such responsibilities; hence, this enables the
United States and EU to agree to include such territories or
countries within the ambit of the U.S.-EU Mutual Legal
Assistance Agreement. Under paragraph 2, application of the
U.S.-EU Mutual Legal Assistance Agreement to such territories
or countries may be terminated upon six month's written notice
through the diplomatic channel, again where confirmed between
the United States and the Member State concerned.
Article 17 (``Review'') provides that the United States and
the EU will carry out a common review of the U.S.-EU Mutual
Legal Assistance Agreement no later than five years after its
entry into force, in particular for purposes of addressing its
practical implementation and the consequences of the further
development of the European Union in relation to the subject
matter of the U.S.-EU Mutual Legal Assistance Agreement.
Article 18(1) (``Entry into force and termination''),
provides that the U.S.-EU Mutual Legal Assistance Agreement
shall enter into force on the first day following the third
month after the date on which the United States and the EU have
indicated that they have completed their internal procedures
for this purpose. The exchange of instruments of ratification
between the United States and the European Union shall also
indicate that the bilateral instruments between the United
States and all EU Member States have been completed. Article
18(2) provides that either the United States or EU may
terminate the U.S.-EU Mutual Legal Assistance Agreement by
giving written notice to the other, with such termination
effective six months after the date of such notice.
Bilateral Instruments between the United States and the EU Member
States implementing the U.S.-EU Mutual Legal Assistance
Agreement
As noted above, Article 3(2) of the U.S.-EU Mutual Legal
Assistance Agreement requires the conclusion of a written
instrument between the United States and each Member State,
indicating the application of Agreement's provisions in the
bilateral mutual legal assistance relationship. The following
discussion delineates the content and character of each of
these instruments, and any particular understandings reached
between the United States and individual Member States during
the course of negotiations.
The title chosen for the ``written instrument'' required by
Article 3(2) of the U.S.-EU Mutual Legal Assistance Agreement
varies among the Member States. Most Member States preferred to
retain the term ``Instrument'' as used in the U.S.-EU
Agreement, but others preferred more specific descriptions
utilized under their national law that also are consistent with
the binding character of the instrument under international
law. Thus, instruments with several Member States (e.g. Germany
and the Czech Republic) are termed supplementary treaties, to
indicate their precise function and legal character in relation
to existing treaties, while other Member States (e.g. Austria
and Greece) preferred the similar term ``protocol.'' Still
others chose the more general ``Agreement;'' (e.g. Netherlands
and Poland).
Each instrument first expresses the agreement of the
Parties to apply the provisions of the U.S.-EU Mutual Legal
Assistance Agreement under the terms laid out in Article 3. The
new textual provisions to be applied are either specified
verbatim in the instrument, or set out in an annex containing a
revised consolidated text. The United States regarded the annex
form as preferable from the perspective of U.S. courts and
practitioners called upon to interpret a particular mutual
assistance treaty with a Member State. A majority of Member
States agreed.
Other Member States, however, opted for non-integrated
texts, in which only the newly-operative supplemental or
replacement language is set forth, and in the instrument itself
rather than in a separate annex. These Member States regarded
inclusion of a consolidated text as not permitted by their
domestic law. The consequence of the non-integrated approach is
only that reference to both the instrument and the pre-existing
treaty is necessary in order to apply the entire set of
obligations between the United States and the Member State.
Each instrument, for reasons of clarity, also recites the
provision on temporal application from the U.S.-EU Mutual Legal
Assistance Agreement, stating that the instrument applies to
offenses committed before as well as after it enters into
force, but, in general, does not apply to requests made prior
to its entry into force.
Instruments with several Member States required
specification as to their geographic scope. These states--
Denmark, the Netherlands, and the United Kingdom--exercise
foreign relations responsibilities for territories or
independent countries, including applying the European state's
law enforcement treaties on their behalf. However, since the
geographic scope of the European Union for purposes of criminal
justice cooperation does not necessarily extend to all these
territories and countries, the provisions of the U.S.-EU Mutual
Legal Assistance Agreement would not apply to them unless
specifically stipulated. Consequently, the relevant bilateral
instruments spell out whether mutual legal assistance relations
with the United States in respect of these territories and
countries would continue to be governed by the pre-existing
treaties in unmodified form.
Each bilateral instrument also contains a provision on
entry into force and termination. Entry into force of each
instrument occurs on the date of entry into force of the U.S.-
EU Mutual Legal Assistance Agreement, after exchange of
notifications. Eighteen Member States will ratify both the
U.S.-EU Mutual Legal Assistance Agreement and the bilateral
instrument, since they serve to amend bilateral treaties which
previously also were ratified. Four Member States regard formal
ratification of the U.S.-EU Mutual Legal Assistance Agreement
as unnecessary under their domestic constitutional order,
however, as authority in this respect has been deemed to have
been granted to the EU, but will ratify the implementing
bilateral instruments. Three Member States viewed it as
unnecessary to ratify even the bilateral instrument.
Finally, in the event of termination of the U.S.-EU Mutual
Legal Assistance Agreement--a step that would take place
between the Parties to this Agreement--the bilateral
instruments also shall terminate. Thereupon application of the
pre-existing bilateral treaties, which are regarded as
suspended while the bilateral instruments are in force, would
resume. The United States and the Member States could, however,
agree bilaterally to continue to apply some or all of the
provisions in the bilateral instrument derived from the U.S.-EU
Mutual Legal Assistance Agreement.
Austria
The bilateral mutual legal assistance instrument with
Austria was signed on July 20, 2005, and is entitled a protocol
to the 1995 U.S.-Austria Mutual Legal Assistance Treaty.
Articles 1-7 of the bilateral protocol incorporate the U.S.-EU
Mutual Legal Assistance Agreement provisions into the 1995 MLAT
as follows: Articles 4(1)-(5) (identification of bank
information), 5 (joint investigative teams), and 6(1), (3)-(6)
(video) conferencing) of the U.S.-EU Mutual Legal Assistance
Agreement are added as Articles 18-20, with the existing
Articles 18-20 being renumbered accordingly; Article 6(2) of
the U.S.-EU Mutual Legal Assistance Agreement (cost of video-
conference) is added as the final sentence of Article 6 of the
bilateral treaty (costs); Article 7 of the U.S.-EU Mutual Legal
Assistance Agreement (expedited transmission of requests) is
incorporated through a new formulation that replaces Article
4(1); Article 8(2) of the U.S.-EU Mutual Legal Assistance
Agreement (channel for transmission of requests by
administrative or regulatory authorities) is added as the final
sentence of Article 2(2), which already provided for the power
to make such requests required by U.S.-EU Mutual Legal
Assistance Agreement in Article 8(1); and Article 9(1)-(3) of
the U.S.-EU Mutual Legal Assistance Agreement (use limitations)
replaces the majority of Article 7. The final two articles of
the bilateral protocol reflect the provisions of Articles 12
(temporal application) and 18 (entry into force and
termination) of the U.S.-EU Mutual Legal Assistance Agreement.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 4 of the
bilateral protocol (identification of bank information)
specifies that Austria's point of contact for the exchange of
bank information under this Article is the Ministry of Justice,
and that, like the United States, Austria will provide
assistance under this Article with respect to money laundering
and terrorist activity punishable under the laws of both States
and with respect to such other criminal activity as Austria may
notify the United States.
Belgium
The bilateral mutual legal assistance instrument with
Belgium was signed on December 16, 2004. Paragraph 1 of the
bilateral instrument specifies the articles of the U.S.-EU
Mutual Legal Assistance Agreement applicable between the United
States and Belgium as well as certain clarifications and
designations concerning the Annex to the instrument. Paragraph
2 provides that the Annex reflects the integrated text that
shall apply between the United States and Belgium. Paragraphs
3-5 contain rules on temporal application, entry into force and
termination, based on those set forth in Articles 12 and 18 of
the U.S.-EU Mutual Legal Assistance Agreement.
The Annex integrates the U.S.-EU Mutual Legal Assistance
Agreement into the 1988 U.S.-Belgium Mutual Legal Assistance
Treaty as follows: Article 4 of the U.S.-EU Mutual Legal
Assistance Agreement (identification of bank information) is
added as Article 12 bis; Article 5 of the U.S.-EU Mutual Legal
Assistance Agreement (joint investigative teams) is added as
Article 12 ter; Article 6 of the U.S.-EU Mutual Legal
Assistance Agreement (video-conferencing) is added as Articles
18(2 bis) and 12 quarter; Article 7 of the U.S.-EU Mutual Legal
Assistance Agreement (expedited transmission of requests) is
set forth in Article 17(3); Article 8 of the U.S.-EU Mutual
Legal Assistance Agreement (assistance to administrative or
regulatory authorities) is added as Article 1(1 bis); and
Article 9 of the U.S.-EU Mutual Legal Assistance Agreement (use
limitations) is added as Article 13 bis.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, paragraph
1(a)(ii) of the bilateral instrument and Article 12 bis of the
Annex (identification of bank information) specify that
Belgium's point of contact for the exchange of bank information
under this Article is the Minister of Justice, and that, like
the United States, Belgium will provide assistance under this
Article with respect to money laundering and terrorist activity
punishable under the laws of both States and with respect to
such other criminal activity as the States may notify each
other.
Cyprus
The bilateral mutual legal assistance instrument with
Cyprus was signed on January 20, 2006. Paragraph 1 of the
bilateral instrument specifies the articles of the U.S.-EU
Mutual Legal Assistance Agreement applicable between the United
States and Cyprus. Paragraph 2 provides that the Annex to the
instrument reflects the integrated text that shall apply
between the United States and Cyprus. Paragraphs 3-5 contain
rules on territorial application, entry into force and
termination, based on those set forth in Articles 12 and 18 of
the U.S.-EU Mutual Legal Assistance Agreement.
The Annex integrates the U.S.-EU Mutual Legal Assistance
Agreement into the 1999 U.S.-Cyprus Mutual Legal Assistance
Treaty as follows: Article 4 of the U.S.-EU Mutual Legal
Assistance Agreement (identification of bank information) is
added as Article 17 bis; Article 5 of the U.S.-EU Mutual Legal
Assistance Agreement (joint investigative teams) is added as
Article 17 ter; Article 6 of the U.S.-EU Mutual Legal
Assistance Agreement (video-conferencing) is added to Article 6
and as Article 17 quater; Article 7 of the U.S.-EU Mutual Legal
Assistance Agreement (expedited transmission of requests) is
set forth in a new formulation that replaces Article 4(1);
Article 8 of the U.S.-EU Mutual Legal Assistance Agreement
(assistance to administrative or regulatory authorities) is
added as Article 1 (1 bis); and Article 9 of the U.S.-EU Mutual
Legal Assistance Agreement (use limitations) replaces Article
7(1)-(3).
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 17 bis
of the Annex (identification of bank information) specifies
that Cyprus' point of contact for the exchange of bank
information under this Article is its central authority under
Article 2 of the 1999 Treaty (i.e., the Minister of Justice and
Public Order or his designee), and that it will provide
assistance under this Article with respect to offenses
punishable by a penalty involving deprivation of liberty or a
detention order of a maximum period of at least four years in
the requesting State and at least two years in the requested
State.
Czech Republic
The bilateral mutual legal assistance instrument with the
Czech Republic was signed on May 16, 2006, and is entitled a
supplementary treaty to the 1998 U.S.-Czech Mutual Legal
Assistance Treaty. Articles 1 through 6 of the supplementary
treaty incorporate the U.S.-EU Mutual Legal Assistance
Agreement provisions into the 1998 MLAT, as follows: Articles 4
(identification of bank information), 5 (joint investigative
teams), and 6 (video-conferencing) of the U.S.-EU Mutual Legal
Assistance Agreement, reflected in Articles 3, 6-8 of the
supplementary treaty, are added as new Articles 6(1)(d), 20a,
20b and 20c of the 1998 MLAT. Article 7 of the U.S.-EU Mutual
Legal Assistance Agreement (expedited transmission of
requests), reflected in Article 2 of the supplementary treaty,
replaces Article 4(1) of the 1998 MLAT. Article 8 of the U.S.-
EU Mutual Legal Assistance Agreement (assistance to
administrative or regulatory authorities), reflected in Article
1 of the supplementary treaty, replaces Article 2(1) and (2) of
the 1998 MLAT. Article 9 of the U.S.-EU Mutual Legal Assistance
Agreement (use limitations), reflected in Article 4 of the
supplementary treaty, replaces Article 7 of the 1998 MLAT.
Article 10 of the U.S.-EU Mutual Legal Assistance Agreement
(requesting State's request for confidentiality), reflected in
Article 5 of the supplementary treaty, replaces Article 8 of
the 1998 MLAT.
Articles 9 and 11 of the supplementary treaty reflect the
provisions of Articles 12 (temporal application) and 18 (entry
into force and termination) of the U.S.-EU Mutual Legal
Assistance Agreement. Article 10 confirms that the
supplementary treaty shall be interpreted consistent with the
U.S.-EU Mutual Legal Assistance Agreement.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 6 of the
supplementary treaty (identification of bank information)
specifies that the Czech Republic's point of contact for the
exchange of bank information under this Article is its central
authority (i.e., the Office of the Prosecutor General and the
Ministry of Justice); and that, like the United States, the
Czech Republic will provide assistance under this Article with
respect to money laundering and terrorist activities punishable
under the laws of both States, and other criminal activity as
the States may notify each other.
Denmark
The bilateral mutual legal assistance instrument with
Denmark was signed on June 23, 2005, and is entitled an
agreement. The bilateral agreement, in paragraph 1, specifies
the articles of the U.S.-EU Mutual Legal Assistance Agreement
applicable between the United States and Denmark. Paragraph 2
provides that the Annex to the agreement reflects the
provisions that shall apply between the United States and
Denmark. Paragraph 3, in accordance with Article 16 of the
U.S.-EU Mutual Legal Assistance Agreement, provides that the
instrument shall not apply to Greenland or the Faroe Islands
unless the United States and the EU, by exchange of diplomatic
notes duly confirmed by Denmark, subsequently agree otherwise.
Paragraphs 4 and 5 contain rules of temporal application, based
on those set forth in Article 12 of the U.S.-EU Mutual Legal
Assistance Agreement. Paragraph 6 contains the provisions on
entry into force and termination, based on those set forth in
Article 18 of the U.S.-EU Mutual Legal Assistance Agreement.
Since the United States and Denmark do not have a bilateral
mutual legal assistance treaty in force between them, the
bilateral agreement is a partial one governing only those
issues regulated by the U.S.-EU Mutual Legal Assistance
Agreement, specifically: Article 4 (identification of bank
information), 5 (joint investigative teams), 6 (video
conferencing), 7 (expedited transmission of requests), 8
(assistance to administrative or regulatory authorities), 9
(use limitations), 10 (requesting State's request for
confidentiality), and 13 (grounds for refusal).
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 1 of the
Annex (identification of bank information) specifies that
Denmark's point of contact for the exchange of bank information
under this Article is the Ministry of Justice, and that Denmark
will provide assistance under this Article with respect to
offenses punishable under the laws of the requesting State by a
penalty of four years and under the laws of the requested State
by a penalty of two years. Article 5 of the Annex provides that
requests for assistance to administrative or regulatory
authorities shall be transmitted between the U.S. Department of
Justice and the Danish Ministry of Justice.
Estonia
The bilateral mutual legal assistance instrument with
Estonia was signed on February 8, 2006. The bilateral
instrument, in paragraph 1, specifies the articles of the U.S.-
EU Mutual Legal Assistance Agreement applicable between the
United States and Estonia. Paragraph 2 provides that the Annex
to the instrument reflects the integrated text that shall apply
between the United States and Estonia. Paragraphs 3-5 contains
rules of temporal application, entry into force and
termination, based on those set forth in Articles 12 and 18 of
the U.S.-EU Mutual Legal Assistance Agreement.
The Annex integrates the U.S.-EU Mutual Legal Assistance
Agreement into the 1998 U.S.-Estonia Mutual Legal Assistance
Treaty, as follows: Article 4 of the U.S.-EU Mutual Legal
Assistance Agreement (identification of bank information) is
added as Article 17 bis; Article 5 of the U.S.-EU Mutual Legal
Assistance Agreement (joint investigative teams) is added as
Article 17 ter; Article 6 of the U.S.-EU Mutual Legal
Assistance Agreement (video conferencing) is added in Articles
6 and 17 quater; Article 7 of the U.S.-EU Mutual Legal
Assistance Agreement (expedited transmission of requests) is
incorporated through a new formulation that replaces Article
4(1); Article 8 of the U.S.-EU Mutual Legal Assistance
Agreement (assistance to administrative or regulatory
authorities) is added as Article 1 (1 bis); and Article 9 of
the U.S.-EU Mutual Legal Assistance Agreement (use limitations)
replaces the majority of Article 7.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 17 bis
of the Annex (identification of bank information) specifies
that Estonia's point of contact for the exchange of bank
information under this Article is the Ministry of Justice, and
that Estonia will provide assistance under this Article with
respect to offenses punishable under the laws of the requesting
and requested States.
Finland
The bilateral mutual legal assistance instrument with
Finland was signed on December 16, 2004, and is entitled a
treaty. Paragraph 1 of the bilateral treaty specifies the
articles of the U.S.-EU Mutual Legal Assistance Agreement that
are to be applied. Paragraph 2 provides that the Annex to the
treaty reflects the provisions that shall apply between the
United States and Finland. Paragraphs 3-5 contain rules on
temporal application, entry into force and termination, based
on those set forth in Articles 12 and 18 of the U.S.-EU Mutual
Legal Assistance Agreement.
Since the United States and Finland do not have a bilateral
mutual legal assistance treaty in force between them, the
bilateral treaty is a partial one governing only those issues
regulated by the U.S.-EU Mutual Legal Assistance Agreement,
specifically: Articles 4 (identification of bank information),
5 (joint investigative teams), 6 (video-conferencing), 7
(expedited transmission of requests), 8 (assistance to
administrative or regulatory authorities), 9 (use limitations),
10 (requesting State's request for confidentiality); and 13
(grounds for refusal).
With respect to the designations required by Articles 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 1 of the
Annex (identification of bank information) specifies that
Finland's point of contact of the exchange of bank information
under this Article is its Military of Justice, and that, like
the United States, Finland will provide assistance under this
Article with respect to money laundering and terrorist activity
punishable under the laws of both States and with respect to
such other criminal activity as the States may notify each
other. Article 5 of the Annex provides that requests for
assistance to administrative or regulatory authorities shall be
transmitted between the U.S. Department of Justice and the
Finnish Ministry of Justice.
France
The bilateral mutual legal assistance instrument with
France was signed on September 30, 2004. Paragraph A of
Articles I-VI sets forth the text of the articles of the U.S.-
EU Mutual Legal Assistance Agreement applicable between the
United States and France. Paragraph B of Articles I-VI
specifies the extent to which these provisions supplement or
replace provisions of the 1998 U.S.-France Mutual Legal
Assistance Treaty, and provides other necessary explanations
regarding the manner in which the U.S.-EU Mutual Legal
Assistance Agreement text is to operate in a bilateral setting.
Articles VII-VIII contain rules of temporal application, entry
into force and termination based on those set forth in Articles
12 and 18 of the U.S.-EU Mutual Legal Assistance Agreement.
Six provisions of the U.S.-EU Mutual Legal Assistance
Agreement are incorporated into the 1998 MLAT, as follows:
Articles 4 (identification of bank information), 5 (joint
investigative teams), 6 (video conferencing), 7 (expedited
transmission of requests), and 8 (requests by administrative or
regulatory authorities) of the U.S.-EU Mutual Legal Assistance
Agreement supplement the provisions of the 1998 MLAT. Article
9(1)-(4) of the U.S.-EU Mutual Legal Assistance Agreement (use
limitations) applies in place of Article 14(3)-(5) of the 1998
MLAT; although, pursuant to U.S.-EU Article 9(4), Article 14 of
the 1998 Treaty may be applied if to do so would result in less
limitation on use.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article I
(identification of bank information) specifies that France's
point of contact for the exchange of bank information under
this Article is its central authority under Article 2(1) of the
1998 Treaty (i.e., the Ministry of Justice), and that France
will provide assistance under this Article even in the absence
of dual criminality.
Germany
The bilateral mutual legal assistance instrument with
Germany was signed on April 18, 2006, and is entitled a
supplementary treaty to the 2003 U.S.-Germany Mutual Legal
Assistance Treaty. The instrument foresees the entry into force
of the 2003 bilateral treaty prior to, or contemporaneous with,
the entry into force of this bilateral supplementary treaty.
Articles 1-7 of the bilateral supplementary treaty
incorporates the U.S.-EU Mutual Legal Assistance Agreement
provisions into the 2003 MLAT as follow: Article 4 of the U.S.-
EU Mutual Legal Assistance Agreement (identification of bank
information) is added as Article 9 bis: Article 5 of the U.S.-
EU Mutual Legal Assistance Agreement (joint investigative
teams) is added as Article 12 bis; Article 6 of the U.S.-EU
Mutual Legal Assistance Agreement (video conferencing) is added
as Article 10 bis, and the costs provision thereof is
incorporated in Article 21(1); Article 7 of the U.S.-EU Mutual
Legal Assistance Agreement (expedited transmission of requests)
is incorporated through a new formulation that replaces Article
17(3); Article 8 of the U.S.-EU Mutual Legal Assistance
Agreement (requests by administrative or regulatory
authorities) is set forth in a new formulation replacing
Article 1(1) of, and adding a new Article 2(5) to, the 2003
MLAT; and Article 9 of the U.S.-EU Mutual Legal Assistance
Agreement (use limitations) is incorporated through new
formulations that replace Articles 15 and 16. The final two
articles of the supplementary treaty reflect the provisions of
Articles 12 (temporal application) and 18 (entry into force and
termination) of the U.S.-EU Mutual Legal Assistance Agreement.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 3 of the
supplementary treaty (identification of bank information)
specifies that Germany's point of contact for the exchange of
bank information under this Article is the Federal Ministry of
Justice, and that, like the United States, Germany will provide
assistance under this Article with respect to money laundering
and terrorist activity punishable under the laws of both States
and with respect to such other criminal activity as the States
may notify each other.
The United States and Germany agreed that the penultimate
sentence of the new text of Article 16 of the supplementary
treaty entitles U.S. authorities competent in treating
antitrust offenses (including the U.S. Central Authority for
mutual legal assistance) to disclose to other authorities
evidence or information received from Germany that may aid in
the investigation or prosecution of other offenses.
Greece
The bilateral mutual legal assistance instrument with
Greece was signed on January 18, 2006, and is entitled a
protocol to the 1999 U.S.-Greece Mutual Legal Assistance
Treaty. Articles 1 through 6 of the bilateral protocol
incorporate the U.S.-EU Mutual Legal Assistance Agreement
provisions into the 1999 MLAT, as follow: Article 4
(identification of bank information), 5 (joint investigative
teams), 6 (video-conferencing), and 8 (assistance to
administrative or regulatory authorities), of the U.S.-EU
Mutual Legal Assistance Agreement, set forth in Articles 1, 2,
3 and 5 of the bilateral protocol, generally supplement the
provisions of the 1999 MLAT. Article 7 of the U.S.-EU Mutual
Legal Assistance Agreement (expedited transmission of
requests), set forth in Article 4 of the bilateral protocol,
supplements Article 4(1). Article 9 of the U.S.-EU Mutual Legal
Assistance Agreement (use limitations), set forth in Article 6
of the bilateral protocol, replaces Article 7, paragraphs 1, 3,
and 4.
The final provisions of the bilateral protocol are as
follows: Article 7 thereof confirms that other provisions of
the 1999 MLAT remain in force, and that the protocol shall be
interpreted consistent with the U.S.-EU Mutual Legal Assistance
Agreement. Article 8 and 9 reflect the provisions of Article 12
(temporal application) and 18 (entry into force and
termination) of the U.S.-EU Mutual Legal Assistance Agreement.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 1 of the
protocol (identification of bank information) specifies that
Greece's point of contact for the exchange of bank information
under this Article is the Ministry of Justice; and that, like
the United States, Greece will provide assistance under this
Article with respect to money laundering and terrorist
activities punishable under the laws of both States and with
respect to such other criminal activity as the States may
notify each other.
Hungary
The bilateral mutual legal assistance instrument with
Hungary was signed on November 15, 2005, and is entitled a
protocol to the 1994 U.S.-Hungary Mutual Legal Assistance
Treaty. Articles 1 through 8 of the bilateral protocol
incorporate the U.S.-EU Mutual Legal Assistance Agreement
provisions into the 1994 MILAT, as follow: Article 4 of the
U.S.-EU Mutual Legal Assistance Agreement (identification of
bank information) is added as Article 17A; Article 5 of the
U.S.-EU Mutual Legal Assistance Agreement (joint investigation
teams) is added as Article 17B; Article 6 of the U.S.-EU Mutual
Legal Assistance Agreement (video-conferencing) is added as
Article 6(2) and 17C; Article 7 of the U.S.-EU Mutual Legal
Assistance Agreement (expedited transmission of requests) is
incorporated through a new formulation that replaces Article
4(1); Article 8 of the U.S.-EU Mutual Legal Assistance
Agreement (assistance to administrative or regulatory
authorities) is added as Article 1 (1A); Article 9 of the U.S.-
EU Mutual Legal Assistance Agreement (use limitations) is
incorporated through a new formulation that replaces Article 7;
and Article 10 of the U.S.-EU Mutual Legal Assistance Agreement
(requesting State's request for confidentiality) is added as
Article 7A.
The final provisions of the bilateral protocol are as
follows: Articles 9 and 10 of the bilateral protocol reflect
the provisions of Article 12 (temporal application) and 18
(entry into force and termination) of the U.S-EU Mutual Legal
Assistance Agreement.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 6 of the
protocol (identification of bank information) specifies that
Hungary's point of contact for the exchange of bank information
under this Article is the Prosecutor General, provided however
that a request from Hungary concerning a matter in which trial
has commenced shall be transmitted by the Ministry of Justice.
With respect to the scope of Article 4, Hungary will provide
assistance under this Article with respect to criminal activity
punishable under the laws of both States.
Ireland
The bilateral mutual legal assistance instrument with
Ireland was signed on July 14, 2005. The 2001 U.S.-Ireland
Mutual Legal Assistance Treaty is not yet in force, having been
ratified by the United States but not by Ireland. Ireland
intends to ratify the 2001 Treaty and this instrument
contemporaneously.
Article 1 of the bilateral instrument specifies the
articles of the U.S.-EU Mutual Legal Assistance Agreement
applicable between the United States and Ireland. Article 2
provides that the Annex to the instrument reflects the
integrated text that shall apply between the United States and
Ireland. Articles 3-5 contain rules on temporal application,
entry into force and termination, based on those set forth in
Articles 12 and 18 of the U.S.-EU Mutual Legal Assistance
Agreement.
The Annex integrates the U.S.-EU Mutual Legal Assistance
Agreement into the 2001 MLAT as follows: Article 4 of the U.S.-
EU Mutual Legal Assistance Agreement (identification of bank
information) is added as Article 16 bis; Article 5 of the U.S.-
EU Mutual Legal Assistance Agreement (joint investigative
teams) is added as Article 16 ter; Article 6 of the U.S.-EU
Mutual Legal Assistance Agreement (video-conferencing) amends
Article 6 and is added as Article 16 quater; Article 7 of the
U.S.-EU Mutual Legal Assistance Agreement (expedited
transmission of requests) is set forth in a new formulation and
replaces Article 4(1); Article 8 of the U.S.-EU Mutual Legal
Assistance Agreement (assistance to administrative or
regulatory authorities) is added as Article 1 (1 bis); and
Article 9 of the U.S.-EU Mutual Legal Assistance Agreement (use
limitations) replaces Article 7.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 16 bis
of the Annex (identification of bank information) specifies
that Ireland's point of contact for the exchange of bank
information under this Article is its central authority under
Article 2 of the 2001 MLAT (i.e., the Minister of Justice,
Equality and Law Reform, or designee), and that it will provide
assistance under this Article with respect to money laundering
and terrorist activity punishable under the laws of both
States, and with respect to other criminal activity punishable
by a maximum sentence of at least five years' imprisonment or
more serious penalty under Irish law and also punishable under
United States law.
Finally, although not required by the U.S.-EU Agreement,
the United States and Ireland revised the forms to be used in
conjunction with application of the bilateral instrument. The
result is that Forms A, B, C, D, and E of the 2001 MLAT have
been renumbered as Forms A1, B1, C1, D1, and E1 are to be used
when Ireland is the requesting Party. When the United States is
the requesting Party, new forms A2, B2, C2, D2, and E2 have
been provided, which are identical in many respects but which
contain minor modifications sought by Ireland in order to
better conform to its law and practice.
Italy
The bilateral mutual legal assistance instrument with Italy
was signed on May 3, 2006. The instrument, in paragraph 1,
specifies the articles of the U.S.-EU Mutual Legal Assistance
Agreement applicable between the United States and Italy.
Paragraph 2 provides that the Annex to the instrument reflects
the integrated text that shall apply between the United States
and Italy. Paragraphs 3 and 4 contain rules of temporal
application, based on those set forth in Article 12 of the
U.S.-EU Mutual Legal Assistance Agreement. Paragraph 5 provides
for a change to Article 18 (seizure, immobilization, and
forfeiture of assets) of the 1982 U.S.-Italy Mutual Legal
Assistance Treaty. Paragraph 6 contains the provisions on entry
into force and termination, based on those set forth in Article
18 of the U.S.-EU Mutual Legal Assistance Agreement.
The Annex integrates Articles 4-11 of the U.S.-EU Mutual
Legal Assistance Agreement into the 1982 MLAT, as follows:
Article 4 of the U.S.-EU Mutual Legal Assistance Agreement
(identification of bank information) is added as Article 18
bis; Article 5 of the U.S.-EU Mutual Legal Assistance Agreement
(joint investigative teams) is added as Article 18 ter; Article
6 of the U.S.-EU Mutual Legal Assistance Agreement (video
conferencing) is added as Article 18 quater and through a
change to Article 7 (costs); Article 7 of the U.S.-EU Mutual
Legal Assistance Agreement (expedited transmission of requests)
is incorporated through a new formulation that replaces Article
2(3); Article 8 of the U.S.-EU Mutual Legal Assistance
Agreement (assistance to administrative or regulatory
authorities) is added as Article 1(1 bis); and Article 9 of the
U.S.-EU Mutual Legal Assistance Agreement (use limitations)
replaces the majority of Article 8.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 18 bis
of the Annex (identification of bank information) specifies
that Italy's point of contact for the exchange of bank
information under this Article is the Minister of Justice.
Article 18 bis also specifies that Italy will provide
assistance under this Article with respect to terrorist and
money laundering activity punishable under the law of both
States. Since Italian law does not punish the person committing
the predicate offense for the separate offense of money
laundering, it further states that Italy shall provide
cooperation with respect to activities punishable as the
offense of money laundering in the United States but as a
predicate offense to money laundering under Italian law.
Finally, Italy also will provide assistance with respect to
such other criminal activity as it may subsequently designate.
In addition, as mentioned above, although not required by
the U.S.-EU Mutual Legal Assistance Agreement, the United
States and Italy modified Article 18 of the 1982 MLAT (seizure,
immobilization, and forfeiture of assets), in order to replace
the original formulation, which had not been implemented in
accordance with an exchange of diplomatic notes between the
United States and Italy dated November 13, 1985. The Parties
also agreed that the formulation in Article 2(3) does not
change the current, non-treaty-based practice, whereby requests
are made by the Central Authorities, although in executing
requests the relevant executing authorities may communicate
with authorities of the other country.
Latvia
The bilateral mutual legal assistance instrument with
Latvia was signed on December 7, 2005, and is entitled a
protocol to the 1997 U.S.-EU Mutual Legal Assistance Treaty.
Articles 1-7 of the bilateral protocol incorporate the U.S.-EU
Mutual Legal Assistance Agreement provisions into the 1997 MLAT
as follows: Articles 4(1)-(5) (identification of bank
information), 5 (joint investigative teams), and 6(1), (3)-(6)
(video conferencing) of the U.S.-EU Mutual Legal Assistance
Agreement are added as Articles 17a-17c; Article 6(2) of the
U.S.-EU Mutual Legal Assistance Agreement (cost of video
conference) is added as Article 6(d)(costs); Article 7 of the
U.S.-EU Mutual Legal Assistance Agreement (expedited
transmission of requests) is incorporated through a new
formulation that replaces Article 4(1); Article 8 of the U.S.-
EU Mutual Legal Assistance Agreement (request by administrative
or regulatory authorities) is added as Article 1(1)(b) and (c);
and Article 9(1)-(3) of the U.S.-EU Mutual Legal Assistance
Agreement (use limitations) replaces the majority of Article 7.
The final two articles of the bilateral protocol reflect the
provisions of Articles 12 (temporal application) and 18 (entry
into force and termination) of the U.S.-EU Mutual Legal
Assistance Agreement.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 5 of the
bilateral protocol (identification of bank information)
specifies that Latvia's point of contact for the exchange of
bank information under this Article is the Office of the
Prosecutor General during the pre-trial investigation, and the
Ministry of Justice during trial. Latvia will provide
assistance under this Article with respect to any criminal
activity.
Lithuania
The bilateral mutual legal assistance instrument with
Lithuania was signed on June 15, 2005, and is entitled a
protocol to the 1998 U.S.-Lithuania Mutual Legal Assistance
Treaty. The bilateral protocol, in paragraph 1, specifies the
articles of the U.S.-EU Mutual Legal Assistance Agreement
applicable between the United States and Lithuania. Paragraph 2
provides that the Annex to the protocol reflects the integrated
text that shall apply between the United States and Lithuania.
Paragraphs 3-5 contains rules of temporal application, entry
into force and termination, based on those set forth in
Articles 12 and 18 of the U.S.-EU Mutual Legal Assistance
Agreement.
The Annex integrates the U.S.-EU Mutual Legal Assistance
Agreement into, the 1998 MLAT as follows: Article 4 of the
U.S.-EU Mutual Legal Assistance Agreement (identification of
bank information) is added as Article 16 bis; Article 5 of the
U.S.-EU Mutual Legal Assistance Agreement (joint investigative
teams) is added as Article 16 ter; Article 6 of the U.S.-EU
Mutual Legal Assistance Agreement (video conferencing) is added
in Articles 6 and 16 quater; Article 7 of the U.S.-Mutual Legal
Assistance Agreement (expedited transmission of requests) is
incorporated through a new formulation that replaces Article
4(1); Article 8(2) of the U.S.-EU Mutual Legal Assistance
Agreement (channel for transmission of requests by
administrative or regulatory authorities) is added as Article
2(2)(b) (subparagraph (a) of which had already provided for the
authority required by the U.S.-EU Mutual Legal Assistance
Agreement in Article 8(1) to make such requests); and Article 9
of the U.S.-EU Mutual Legal Assistance Agreement (use
limitations) replaces the majority of Article 7.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 16 bis
of the Annex (identification of bank information) specifies
that Lithuania's point of contact for the exchange of bank
information under this Article is the Office of the Prosecutor
General, and that, like the United States, Lithuania will
provide assistance under this Article with respect to money
laundering and terrorist activity punishable under the laws of
both States and with respect to such other criminal activity as
the States may notify each other.
Luxembourg
The bilateral mutual legal assistance instrument with
luxembourg was signed on February 1, 2005. Paragraph A of
Articles I-VI sets forth the text of the articles of the U.S.-
EU Mutual Legal Assistance Agreement applicable between the
United States and Luxembourg. Paragraph B of Articles I-VI
specifies the extent to which these provisions supplement or
replace provisions of the 1997 U.S.-Luxembourg Mutual Legal
Assistance Treaty, and provides other necessary explanations
regarding the manner in which the U.S.-EU Mutual Legal
Assistance Agreement text is to operate in a bilateral setting.
Articles VII-VIII contain rules of temporal application, entry
into force and termination based on those set forth in Articles
12 and 18 of the U.S.-EU Mutual Legal Assistance Agreement.
Six provisions of the U.S.-EU Mutual Legal Assistance
Agreement are incorporated into the 1997 MLAT provisions as
follows: Articles 4 (identification of bank information), 5
(joint investigative teams), 6 (video conferencing), 7
(expedited transmission of requests), and 8(2) (channel for
transmission of requests by administrative or regulatory
authorities) of the U.S.-EU Mutual Legal Assistance Agreement
supplement the provisions of the 1997 MLAT. Article 9 of the
U.S.-EU Mutual Legal Assistance Agreement (use limitations)
applies in place of Article 7 of the 1997 MLAT; although,
pursuant to U.S.-EU Mutual Legal Assistance Agreement Article
9(4), Article 7 may be applied if to do so would result in less
limitation on use; and, pursuant to U.S.-EU Mutual Legal
Assistance Agreement Article 9(5), Luxembourg shall continue to
apply Article 7 of the 1997 MLAT with respect to the tax
offenses described in that treaty.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article I
(identification of bank information) specifies that
Luxembourg's point of contact for the exchange of bank
information under this Article is its Central Authority under
Article 2 of the 1997 MLAT (the Parquet General), and that,
like the United States, Luxembourg will provide assistance
under this Article with respect to money laundering and
terrorist activity punishable under the laws of both States and
with respect to such other criminal activity as the States may
notify each other.
Malta
The bilateral mutual legal assistance instrument with Malta
was signed on May 18, 2006. Paragraph 1 specifies the articles
of the U.S.-EU Mutual Legal Assistance Agreement that are to be
applied. Paragraph 2 provides that the Annex to the instrument
reflects the provisions that shall apply between the United
States and Malta. Paragraphs 3-5 contain rules on temporal
application, entry into force and termination, based on those
set forth in Articles 12 and 18 of the U.S.-EU Mutual Legal
Assistance Agreement.
Since the United States and Malta do not have a bilateral
mutual legal assistance treaty in force between them, the
instrument is a partial treaty governing only those issues
regulated by the U.S.-EU Mutual Legal Assistance Agreement,
specifically: Articles 4 (identification of bank information),
5 (joint investigative teams), 6 (video-conferencing), 7
(expedited transmission of requests), 8 (assistance to
administrative or regulatory authorities), 9 (use limitations),
10 (requesting State's request for confidentiality); and 13
(grounds for refusal).
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 1 of the
Annex (identification of bank information) specifies that
Malta's point of contact for the exchange of bank information
under this Article is the Office of the Attorney General, and
that, like the United States, Malta will provide assistance
under this Article with respect to money laundering and
terrorist activity punishable under the laws of both States and
with respect to such other criminal activity as the States may
notify each other. Article 5 of the Annex provides that
requests for assistance to administrative or regulatory
authorities shall be transmitted between the U.S. Department of
Justice and the Office of the Attorney General of Malta.
The Netherlands
The bilateral mutual legal assistance instrument with the
Netherlands was signed on September 29, 2004, and is entitled
an agreement. Article 1 of the bilateral agreement specifies
the articles of the U.S.-EU Mutual Legal Assistance Agreement
applicable between the United States and the Netherlands.
Article 2 provides that the Annex to the agreement reflects the
integrated text that shall apply between the United States and
the Netherlands. Article 3 provides that the bilateral
agreement shall not apply to the Netherlands Antilles or Aruba
unless the United States and the EU, by exchange of diplomatic
notes, subsequently agree to extend its application to them.
Articles 4-6 contain rules on temporal application, entry into
force and termination, based on those set forth in Articles 12
and 18 of the U.S.-EU Mutual Legal Assistance Agreement.
The Annex integrates the U.S.-EU Mutual Legal Assistance
Agreement into the 1981 U.S.-Netherlands Mutual Legal
Assistance Treaty as follows: Article 4 of the U.S.-EU Mutual
Legal Assistance Agreement (identification of bank information)
is added as Article 9 bis of the 1981 MLAT; Article 5 of the
U.S.-EU Mutual Legal Assistance Agreement (joint investigative
teams) is added as Article 9 ter; Article 6 of the U.S.-EU
Mutual Legal Assistance Agreement (video-conferencing) is added
as Article 17(1) and Article 9 quater; Article 7 of the U.S.-EU
Mutual Legal Assistance Agreement (expedited transmission of
requests) is added as Article 14(2); Article 8 of the U.S.-EU
Mutual Legal Assistance Agreement (assistance to administrative
or regulatory authorities) is added as Article 1 (1 bis);
Article 9 of the U.S.-EU Mutual Legal Assistance Agreement (use
limitations) is incorporated through a new Article 11 bis which
replaces Article 11(2); and Article 10 of the U.S.-EU Mutual
Legal Assistance Agreement (requesting State's request for
confidentiality) is added as Article 11(2).
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 9 bis of
the Annex (identification of bank information) specifies that
the Netherlands' point of contact for the exchange of bank
information under this Article is its competent authority under
Article 14 of the 1981 MLAT (i.e., the Minister of Justice),
and that the Netherlands will provide assistance under this
Article with respect to activity punishable under the laws of
both States and which is a ``misdrijf'' (crime) under Dutch
law, a term which includes but is not limited to money
laundering and terrorist activity.
In addition, the Schedule to the Annex (availability of
search and seizure for certain offenses) has been modified to
provide the texts of Dutch legislation currently in force, and
to enable an exchange of notes to set forth the applicable
provisions of law should the agreement be applied in future to
the Netherlands Antilles and Aruba. Finally, by exchange of
diplomatic notes contemporaneous with signature of the
bilateral agreement, the United States and the Netherlands
agreed that prior diplomatic notes exchanged on June 12, 1981,
with respect to the application of the 1981 MLAT shall continue
to apply to the corresponding provisions of the Annex, except
for the second paragraph pertaining to Article 11 of the 1981
MLAT, which was deemed incompatible with Article 9 of the U.S.-
EU Mutual Legal Assistance Agreement. The exchange of
diplomatic notes in conjunction with signing the bilateral
agreement also confirms that the prior exchange of notes of
December 31, 1985, applying the 1981 MLAT to the Netherlands
Antilles and Aruba, remains unaffected by the U.S.-EU Mutual
Legal Assistance Agreement, and that the explanatory note to
the U.S.-EU Mutual Legal Assistance Agreement applies to the
corresponding provisions of the Annex.
Poland
The bilateral mutual legal assistance instrument with
Poland was signed on June 9, 2006, and is entitled an
agreement. The bilateral agreement, in Article 1, specifies the
articles of the U.S.-EU Mutual Legal Assistance Agreement
applicable between the United States and Poland. Article 2
provides that the Annex to the agreement reflects the
integrated text that shall apply between the United States and
Poland. Articles 3 and 4 contain rules of temporal application,
based on those set forth in Article 12 of the U.S.-EU Mutual
Legal Assistance Agreement. Article 5 contains the provisions
on entry into force and termination, based on those set forth
in Article 18 of the U.S.-EU Mutual Legal Assistance Agreement.
The Annex integrates the U.S.-EU Mutual Legal Assistance
Agreement into the 1996 Mutual Legal Assistance Treaty, as
follows: Article 4 of the U.S.-EU Mutual Legal Assistance
Agreement (identification of bank information) is added as
Article 3 bis; Article 5 of the U.S.-EU Mutual Legal Assistance
Agreement (joint investigative teams) is added as Article 9
bis; Article 6 of the U.S.-EU Mutual Assistance Agreement
(video conferencing) is added as Articles 8 bis and through a
change to Article 6 (costs); Article 7 of the U.S.-EU Mutual
Legal Assistance Agreement (expedited transmission of requests)
is incorporated through a new formulation that replaces Article
4(a); Article 8 of the U.S.-EU Mutual Legal Assistance
Agreement (assistance to administrative or regulatory
authorities) is added as Article 1 bis; and Article 9 of the
U.S.-EU Mutual Legal Assistance Agreement (use limitations)
replaces the majority of Article 7.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 3 bis of
the Annex (identification of bank information) specifies that
Poland's point of contact for the exchange of bank information
under this Article is its central authority under Article 2 of
the 1996 MLAT (i.e., the Minister of Justice-Attorney General,
or designee), and that Poland will provide assistance under
this Article with respect to money laundering and terrorist
activity punishable under the laws of both States, and with
respect to such other criminal acclivity as the States may
notify each other.
Portugal
The bilateral mutual legal assistance instrument with
Portugal was signed on July 14, 2005. Paragraph 1 specifies of
the U.S.-EU Mutual Legal Assistance Agreement that are to be
applied and the designations and notifications required by
Article 15 of the U.S.-EU Mutual Legal Assistance Agreement.
Paragraph 2 provides that the Annex to the instrument reflects
the provisions that shall apply between the United States and
Portugal. Paragraphs 3-5 contain rules on temporal application,
entry into force and termination, based on those set forth in
Articles 12 and 18 of the U.S.-EU Mutual Legal Assistance
Agreement.
Since the United States and Portugal do not have a
bilateral mutual legal assistance treaty in force between them,
the bilateral instrument is a partial treaty governing only
those issues regulated by the U.S.-Mutual Legal Assistance
Agreement, specifically: Articles 4 (identification of bank
information), 5 (joint investigative teams), 6 (video-
conferencing), 7 (expedited transmission of request), 8
(assistance to administrative or regulatory authorities), 9
(use limitations), 10 (requesting State's request for
confidentiality); and 13 (grounds for refusal).
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, paragraph 1(a)
of the bilateral instrument and Article 1 of the Annex
(identification of bank information) specify that Portugal's
point of contact for the exchange of bank information under
this Article is the Prosecutor General's Office (Procuradoria
Geral da Republica), and that Portugal will provide assistance
under this Article with respect to organized crime, money
laundering, drug trafficking, and terrorist activity punishable
under the laws of both States and with respect to such other
criminal activity as Portugal may notify the United States.
Paragraph 1(e) of the bilateral instrument and Article 5 of the
Annex provide that requests for assistance to administrative or
regulatory authorities shall be transmitted between the U.S.
Department of Justice and the Portuguese Prosecutor General's
Office (Procuradoria Geral da Republica).
Slovak Republic
The bilateral mutual legal assistance instrument with the
Slovak Republic was signed on February 6, 2006. Paragraph 1
provides that the U.S.-EU Mutual Legal Assistance Agreement
shall be applied between them in the manner set forth in the
instrument and its Annex. Paragraph 2 provides that the Annex
reflects the provisions that shall apply between the United
States and the Slovak Republic. Paragraphs 3-5 contain rules on
temporal application, entry into force and termination, based
on those set forth in Articles 12 and 18 of the U.S.-EU Mutual
Legal Assistance Agreement.
Since the United States and the Slovak Republic do not have
a bilateral mutual legal assistance treaty in force between
them, the bilateral instrument is a partial treaty governing
only those issues regulated by the U.S.-EU Mutual Legal
Assistance Agreement, specifically: Articles 4 (identification
of bank information), 5 (joint investigative teams), 6 (video-
conferencing), 7 (expedited transmission of requests), 8
(assistance to administrative or regulatory authorities), 9
(use limitations), 10 (requesting State's request for
confidentiality); and 13 (grounds for refusal).
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 1 of the
Annex (identification of bank information) specifies that the
Slovak Republic's point of contact for the exchange of bank
information under this Article is the Ministry of Justice, and
that, like the United States, the Slovak Republic will provide
assistance under this Article with respect to money laundering
and terrorist activity punishable under the laws of both States
and with respect to such other criminal activity as the States
may notify each other. Article 5 of the Annex provides that
requests for assistance to administrative or regulatory
authorities shall be transmitted between the U.S. Department of
Justice and the Ministry of Justice of the Slovak Republic.
Slovenia
The bilateral mutual legal assistance instrument with
Slovenia was signed on October 17, 2005, and is entitled an
agreement. The bilateral agreement, in paragraph 1, specifies
the articles of the U.S.-EU Mutual Legal Assistance Agreement
applicable between the United States and Slovenia. Paragraph 2
provides that the Annex to the agreement reflects the
provisions that shall apply between the United States and
Slovenia. Paragraphs 3-5 contain rules of temporal application,
entry into force and termination, based on those set forth in
Articles 12 and 18 of the U.S.-EU Mutual Legal Assistance
Agreement.
Because the United States and Slovenia do not have a
bilateral mutual legal assistance treaty in force between them,
the bilateral agreement is a partial treaty governing only
those issues regulated by the U.S.-EU Mutual Legal Assistance
Agreement, specifically: Article 4 (identification of bank
information), 5 (joint investigative teams), 6 (video
conferencing), 7 (expedited transmission of requests), 8
(assistance to administrative or regulatory authorities), 9
(use limitations), 10 (requesting State's request for
confidentiality), and 13 (grounds for refusal).
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 1 of the
Annex (identification of bank information) specifies that
Slovenia point of contact for the exchange of bank information
under this Article is its Ministry of Justice, and that, like
the United States, Slovenia will provide assistance under this
Article with respect to money laundering and terrorist activity
punishable under the laws of both the requesting and requested
States, and with respect to such other criminal activity as the
States may notify each other. Article 5 of the Annex provides
that requests for assistance to administrative or regulatory
authorities shall be transmitted between the U.S. Department of
Justice and the Ministry of Justice of the Republic of
Slovenia.
Spain
The bilateral mutual legal assistance instrument with Spain
was signed on December 17, 2004. The bilateral instrument, in
paragraph 1, specifies the articles of the U.S.-EU Mutual Legal
Assistance Agreement applicable between the United States and
Spain. Paragraph 2 provides that the Annex to the instrument
reflects the provisions that shall apply between the United
States and Spain. Paragraphs 3-5 contain rules of temporal
application, entry into force and termination, based on those
set forth in Articles 12 and 18 of the U.S.-EU Mutual Legal
Assistance Agreement.
The Annex integrates the U.S.-EU Extradition Agreement into
the 1990 U.S.-Spain Mutual Legal Assistance Treaty, as follow:
Article 4 of the U.S.-EU Mutual Legal Assistance Agreement
(identification of bank information) is added as Article 16
bis; Article 5 of the U.S.-EU Mutual Legal Assistance Agreement
(joint investigative teams) is added as Article 16 ter; Article
6 of the U.S.-EU Mutual Assistance Agreement (video
conferencing) is added in Articles 6 and 16 quater; Article 7
of the U.S.-EU Mutual Legal Assistance Agreement (expedited
transmission of requests) is incorporated through a new
formulation that replaces Article 4(1); Article 8 of the U.S.-
EU Mutual Legal Assistance Agreement (assistance to
administrative or regulatory authorities) is added as Article
1(1 bis); and Article 9 of the U.S.-EU Mutual Legal Assistance
Agreement (use limitations) replaces the majority of Article 7.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 16 bis
of the Annex (identification of bank information) specifies
that Spain's point of contact for the exchange of bank
information under this Article is the Ministry of Justice, and
that, like the United States, Spain will provide assistance
under this Article with respect to money laundering and
terrorist activity punishable under the laws of both States and
with respect to such other criminal activity as the States may
notify each other.
Sweden
The bilateral mutual legal assistance instrument with
Sweden was signed on December 16, 2004. The instrument foresees
the entry into force of the 2001 U.S.-Sweden Mutual Legal
Assistance Treaty prior to, or contemporaneous with, the entry
into force of this bilateral instrument.
Paragraph 1 of the bilateral instrument specifies the
articles of the U.S.-EU Mutual Legal Assistance Agreement
applicable between the United States and Sweden. Paragraph 2
provides that the Annex to the instrument reflects the
provisions that shall apply between the United States and
Sweden. Paragraphs 3 and 4 contain rules temporal application
based on those set forth in Article 12 of the U.S.-EU Mutual
Legal Assistance Agreement. Paragraph 5 governs entry into
force termination, based on Article 18 of the U.S.-EU Mutual
Legal Assistance Agreement.
The Annex integrates the U.S.-EU Mutual Legal Assistance
Agreement into the 2001 MLAT as follows: Article 4 of the U.S.-
EU Mutual Legal Assistance Agreement (identification of bank
information) is added as Article 18 bis; Article 5 of the U.S.-
EU Mutual Legal Assistance Agreement (joint investigative
teams) is added as Article 18 ter; Article 6 of the U.S.-EU
Mutual Legal Assistance Agreement (video-conferencing) is added
as Articles 6(d) and 18 quater; Article 7 of the U.S.-EU Mutual
Legal Assistance Agreement (expedited transmission of requests)
is integrated as a new formulation of Article 4(a); Article
8(2) of the U.S.-EU Mutual Legal Assistance Agreement
(transmission of requests for assistance to administrative or
regulatory authorities) is added as Article 2(3)(b); and
Article 9 of the U.S.-EU Mutual Legal Assistance Agreement (use
limitations) replaces Article 7.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 18 bis
of the Annex (identification of bank information) specifies
that Sweden's point of contact for the exchange of bank
information under this Article is the Ministry of Justice, and
that Sweden will provide assistance under this Article with
respect to offenses punishable under the laws of both States.
United Kingdom
The bilateral mutual legal assistance instrument with the
United Kingdom was signed on December 16, 2004. The bilateral
instrument, in paragraph 1, specifies the articles of the U.S.-
EU Mutual Legal Assistance Agreement applicable between the
United States and the UK Paragraph 2 provides that the Annex to
the instrument reflects the integrated text that shall apply
between the United States and UK Paragraph 3, in accordance
with Article 16 of the U.S.-EU Mutual Legal Assistance
Agreement, provides that the instrument applies to Great
Britain and Northern Ireland, but not to the Channel Islands,
the Isle of Man or other territories to which the 1994 U.S.-UK
Mutual Legal Assistance Treaty applies. Paragraphs 4-5 contain
rules of temporal application, based on those set forth in
Article 12 of the U.S.-EU Mutual Legal Assistance Agreement.
Paragraph 6 contains the provisions on entry into force and
termination, based on those set forth in Article 18 of the
U.S.-EU Mutual Legal Assistance Agreement.
The Annex integrates the U.S.-EU Mutual Legal Assistance
Agreement into the 1994 MLAT, as follows: Article 4 of the
U.S.-EU Mutual Legal Assistance Agreement (identification of
bank information) is added as Article 16 bis; Article 5 of the
U.S.-EU Mutual Legal Assistance Agreement (joint investigative
teams) is added as Article 16 ter; Article 6 of the U.S.-EU
Mutual Legal Assistance Agreement (video conferencing) is added
as Article 16 quater and through a change to Article 6 (costs);
Article 7 of the U.S.-EU Mutual Legal Assistance Agreement
(expedited Transmission of requests) is incorporated through a
new formulation that replaces Article 4(1); Article 8 of the
U.S.-EU Mutual Legal Assistance Agreement (assistance to
administrative or regulatory authorities) is added as Article 1
(1 bis); and Article 9 of the U.S.-EU Mutual Legal Assistance
Agreement (use limitations) replaces the majority of Article 7.
With respect to the designations required by Article 15 of
the U.S.-EU Mutual Legal Assistance Agreement, Article 16 bis
of the Annex (identification of bank information) specifies
that the United Kingdom's point of contact for the exchange of
bank information under this Article is the Lord Advocate, where
the request relates only to Scotland, the Secretary of State
for Northern Ireland, where the request relates only to
Northern Ireland, and the Secretary of State for the Home
Department in all other cases, and that the UK will provide
assistance under this Article with respect to money laundering
and terrorist activity punishable under the laws of both States
and with respect to such other criminal activity as the States
may notify each other.
In addition, upon signature, the United States and UK
exchanged diplomatic notes stating that previous notes with
respect to the 1994 MLAT, exchanged on January 6, 1994,
(providing clarifications with respect to Articles 3(1)(a),
3(1)(b), 7(2) and 18 of the Treaty), and on April 30 and May 1,
2001, (revoking paragraph (d) of the 1994 exchange), shall
remain applicable.
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