TITLE III
INTERCEPTION OF TELECOMMUNICATIONS
ARTICLE 17
Authorities competent to order interception of
telecommunications
For the purpose of the application of the provisions
of Articles 18, 19 and 20, "competent authority" shall
mean a judicial authority, or, where judicial authorities have
no competence in the area covered by those provisions, an equivalent
competent authority, specified pursuant to Article 24(1)(e) and
acting for the purpose of a criminal investigation.
ARTICLE 18
Requests for interception of telecommunications
1. For the purpose of a criminal investigation,
a competent authority in the requesting Member State may, in accordance
with the requirements of its national law, make a request to a
competent authority in the requested Member State for:
(a) the interception and immediate transmission
to the requesting Member State of telecommunications; or
(b) the interception, recording and subsequent
transmission to the requesting Member State of the recording of
telecommunications.
2. Requests under paragraph 1 may be made
in relation to the use of means of telecommunications by the subject
of the interception, if this subject is present in:
(a) the requesting Member State and the requesting
Member State needs the technical assistance of the requested Member
State to intercept his or her communications;
(b) the requested Member State and his or
her communications can be intercepted in that Member State;
(c) a third Member State which has been informed
pursuant to Article 20(2)(a) and the requesting Member State needs
the technical assistance of the requested Member State to intercept
his or her communications.
3. By way of derogation from Article 14
of the European Mutual Assistance Convention and Article 37 of
the Benelux Treaty, requests under this Article shall include
the following:
(a) an indication of the authority making
the request;
(b) confirmation that a lawful interception
order or warrant has been issued in connection with a criminal
investigation;
(c) information for the purpose of identifying
the subject of this interception;
(d) an indication of the criminal conduct
under investigation;
(e) the desired duration of the interception;
and
(f) if possible, the provision of sufficient
technical data, in particular the relevant network connection
number, to ensure that the request can be met.
4. In the case of a request pursuant to
paragraph 2(b), a request shall also include a summary of the
facts. The requested Member State may require any further information
to enable it to decide whether the requested measure would be
taken by it in a similar national case.
5. The requested Member State shall undertake
to comply with requests under paragraph 1(a):
(a) in the case of a request pursuant to
paragraph 2(a) and 2(c), on being provided with the information
in paragraph 3. The requested Member State may allow the interception
to proceed without further formality;
(b) in the case of a request pursuant to
paragraph 2(b), on being provided with the information in paragraphs
3 and 4 and where the requested measure would be taken by it in
a similar national case. The requested Member State may make its
consent subject to any conditions which would have to be observed
in a similar national case.
6. Where immediate transmission is not possible,
the requested Member State shall undertake to comply with requests
under paragraph 1(b) on being provided with the information in
paragraphs 3 and 4 and where the requested measure would be taken
by it in a similar national case. The requested Member State may
make its consent subject to any condition which would have to
be observed in a similar national case.
7. When giving the notification provided
for in Article 27(2), any Member State may declare that it is
bound by paragraph 6 only when it is unable to provide immediate
transmission. In this case the other Member State may apply the
principle of reciprocity.
8. When making a request under paragraph
1(b), the requesting Member State may, where it has a particular
reason to do so, also request a transcription of the recording.
The requested Member State shall consider such requests in accordance
with its national law and procedures.
9. The Member State receiving the information
provided under paragraphs 3 and 4 shall keep that information
confidential in accordance with its national law.
ARTICLE 19
Interceptions of telecommunications on national
territory by the use of service providers
1. Member States shall ensure that systems of
telecommunications services operated via a gateway on their territory,
which for the lawful interception of the communications of a subject
present in another Member State are not directly accessible on
the territory of the latter, may be made directly accessible for
the lawful interception by that Member State through the intermediary
of a designated service provider present on its territory.
2. In the case referred to in paragraph
1, the competent authorities of a Member State shall be entitled,
for the purposes of a criminal investigation and in accordance
with applicable national law and provided that the subject of
the interception is present in that Member State, to carry out
the interception through the intermediary of a designated service
provider present on its territory without involving the Member
State on whose territory the gateway is located.
3. Paragraph 2 shall also apply where the
interception is carried out upon a request made pursuant to Article
18(2)(b).
4. Nothing in this Article shall prevent
a Member State from making a request to the Member State on whose
territory the gateway is located for the lawful interception of
telecommunications in accordance with Article 18, in particular
where there is no intermediary in the requesting Member State.
ARTICLE 20
Interception of telecommunications without the
technical assistance of another Member State
1. Without prejudice to the general principle
of international law as well as to the provisions of Article 18(2)(c),
the obligations under this Article shall apply to interception
orders made or authorised by the competent authority of one Member
State in the course of criminal investigations which present the
characteristics of being an investigation following the commission
of a specific criminal offence, including attempts in so far as
they are criminalised under national law, in order to identify
and arrest, charge, prosecute or deliver judgment on those responsible.
2. Where for the purpose of a criminal investigation,
the interception of telecommunications is authorised by the competent
authority of one Member State (the "intercepting Member State"),
and the telecommunication address of the subject specified in
the interception order is being used on the territory of another
Member State (the "notified Member State") from which
no technical assistance is needed to carry out the interception,
the intercepting Member State shall inform the notified Member
State of the interception:
(a) prior to the interception in cases where
it knows when ordering the interception that the subject is on
the territory of the notified Member State;
(b) in other cases, immediately after it
becomes aware that the subject of the interception is on the territory
of the notified Member State.
3. The information to be notified by the
intercepting Member State shall include:
(a) an indication of the authority ordering
the interception;
(b) confirmation that a lawful interception
order has been issued in connection with a criminal investigation;
(c) information for the purpose of identifying
the subject of the interception;
(d) an indication of the criminal conduct
under investigation; and
(e) the expected duration of the interception.
4. The following shall apply where a Member
State is notified pursuant to paragraphs 2 and 3:
(a) upon receipt of the information provided
under paragraph 3 the competent authority of the notified Member
State shall, without delay, and at the latest within 96 hours,
reply to the intercepting Member State, with a view to:
(i) allowing the interception to be carried
out or to be continued. The notified Member State may make its
consent subject to any conditions which would have to be observed
in a similar national case;
(ii) requiring the interception not to be carried
out or to be terminated where the interception would not be permissible
pursuant to the national law of the notified Member State or for
the reasons specified in Article 2 of the European Mutual Assistance
Convention. Where the notified Member State imposes such a requirement,
it shall give reasons for its decision in writing;
(iii) in cases referred to in point (ii), requiring
that any material already intercepted while the subject was on
its territory may not be used, or may only be used under conditions
which it shall specify. The notified Member State shall inform
the intercepting Member State of the reasons justifying the said
conditions;
(iv) requiring a short extension, of up to a
maximum period of eight days, to the original 96 hour deadline,
to be agreed with the intercepting Member State, in order to carry
out internal procedures under its national law. The notified Member
State shall communicate, in writing, to the intercepting Member
State, the conditions which, pursuant to its national law, justify
the requested extension of the deadline;
(b) until a decision has been taken by the
notified Member State pursuant to points (i) or (ii) of subparagraph
(a), the intercepting Member State:
(i) may continue the interception; and
(ii) may not use the material already intercepted,
except:
— if otherwise agreed between the Member
States concerned; or
— for taking urgent measures to prevent
an immediate and serious threat to public security. The notified
Member State shall be informed of any such use and the reasons
justifying it;
(c) The notified Member State may request
a summary of the facts of the case and any further information
necessary to enable it to decide whether interception would be
authorised in a similar national case. Such a request does not
affect the application of subparagraph (b), unless otherwise agreed
between the notified Member State and the intercepting Member
State.
(d) the Member States shall take the necessary
measures to ensure that a reply can be given within the 96 hour
period. To this end they shall designate contact points, on duty
24 hours a day, and include them in their statements under Article
24(1)(e).
5. The notified Member State shall keep
the information provided under paragraph 3 confidential in accordance
with its national law.
6. Where the intercepting Member State is
of the opinion that the information to be provided under paragraph
3 is of a particularly sensitive nature, it may be transmitted
to the competent authority through a specific authority where
that has been agreed on a bilateral basis between the Member States
concerned.
7. When giving its notification under Article
27(2), or at any time thereafter, any Member State may declare
that it will not be necessary to provide it with information on
interceptions as envisaged in this Article.
ARTICLE 21
Responsibility for charges made by telecommunications
operators
Costs which are incurred by telecommunications operators
or service providers in executing requests pursuant to Article
18 shall be borne by the requesting Member State.
ARTICLE 22
Bilateral arrangements
Nothing in this Title shall preclude any bilateral
or multilateral arrangements between Member States for the purpose
of facilitating the exploitation of present and future technical
possibilities regarding the lawful interception of telecommunications.
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