S.I. No. 38/2022 - European Union (Criminal Justice (Mutual Assistance) Act 2008) (Amendment) Regulations 2022

1. Each State shall ensure that persons affected by measures under Articles 663 to 666 have effective legal remedies in order to preserve their rights.

2. The substantive reasons for requested measures under Articles 663 to 666 shall not be challenged before a court in the requested State.”

GIVEN under my Official Seal,

27 January, 2022.

HELEN MCENTEE,

Minister for Justice.

1 OJ No. L 444, 31.12.2020, p. 14

1 OJ No. L 444, 31.12.2020, p. 14

3. Subject to the provisions of its domestic law, a State which has received spontaneous information under Article 662 shall comply with any requirement of confidentiality as required by the State which supplies the information. If the receiving State cannot comply with such a requirement, it shall promptly inform the transmitting State.

Article 687

Costs

The ordinary costs of complying with a request shall be borne by the requested State. Where costs of a substantial or extraordinary nature are necessary to comply with a request, the requesting and requested States shall consult in order to agree the conditions on which the request is to be executed and how the costs will be borne.

Article 688

Damages

4. This Article shall also apply to personal data not communicated but obtained otherwise under this Title.

5. This Article does not apply to personal data obtained by the United Kingdom or a Member State under this Title and originating from that State.

Article 686

Confidentiality

6. The Specialised Committee on Law Enforcement and Judicial Cooperation may amend the forms referred to in paragraphs 4 and 5 as may be necessary.

7. The United Kingdom and the Union, acting on behalf of any of its Member States may each notify the Specialised Committee on Law Enforcement and Judicial Cooperation that it requires the translation of any supporting documents into one of the official languages of the requested State or any other language indicated in accordance with paragraph 3 of this Article. In the case of requests pursuant to Article 663(4), such translation of supporting documents may be provided to the requested State within 48 hours after transmitting the request, without prejudice to the time limits provided for in Article 663(4).

Article 679

Legalisation

Documents transmitted in application of this Title shall be exempt from all legalisation formalities.

Article 680

Content of request

8. The States shall not invoke bank secrecy as a ground to refuse any cooperation under this Title. Where its domestic law so requires, a requested State may require that a request for cooperation which would involve the lifting of bank secrecy be authorised by a judicial authority acting in relation to criminal offences.

9. The requested State shall not invoke the fact that

(a) the person under investigation or subject to a confiscation order by the authorities of the requesting State is a legal person as an obstacle to affording any cooperation under this Title;

(b) the natural person against whom an order of confiscation of proceeds has been issued has died or a legal person against whom an order of confiscation of proceeds has been issued has subsequently been dissolved as an obstacle to affording assistance in accordance with point (a) of Article 665(1); or

(c) the person under investigation or subject to a confiscation order by the authorities of the requesting State is mentioned in the request both as the author of the underlying criminal offence and of the offence of money laundering as an obstacle to affording any cooperation under this Title.

Article 671

Consultation and information

Where there are substantial grounds for believing that the execution of a freezing or confiscation order would entail a real risk for the protection of fundamental rights, the requested State shall, before it decides on the execution of the freezing or confiscation order, consult the requesting State and may require any necessary information to be provided.

Article 672

Postponement

The requested State may postpone action on a request if such action would prejudice investigations or proceedings by its authorities.

Article 673

Partial or conditional granting of a request

Before refusing or postponing cooperation under this Title, the requested State shall, where appropriate after having consulted the requesting State, consider whether the request may be granted partially or subject to such conditions as it deems necessary.

Article 674

Notification of documents

10. Section 52 of the Act of 2008 is amended -

(

a

) in subsection (5), by the substitution of “with a confiscation co-operation order in respect of an external confiscation order transmitted by or on behalf of a court in a designated state other than the United Kingdom” for “with a confiscation co-operation order”, and

(

b

) by the insertion of the following subsection after subsection (5)

“(5A) A defendant shall not be imprisoned for non-compliance with a confiscation co-operation order in respect of an external confiscation order transmitted by or on behalf of a court in the United Kingdom unless the competent authority in United Kingdom consents to such imprisonment.”.

11. Section 53(8) of the Act of 2008 is amended by the substitution of “that is a member state or the United Kingdom” for “that is a member state”.

12. The Act of 2008 is amended by the insertion after Schedule 7C of Schedule 7D as set out in the Schedule to these Regulations.

Schedule

“SCHEDULE 7D

Text of Titles VIII and XI of Part Three of the Trade and Cooperation Agreement

TITLE VIII

MUTUAL ASSISTANCE

Article 633

Objective

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

1

st February,

2022.

I, HELEN MCENTEE, Minister for Justice, in exercise of the powers conferred on me by

section 3

of the

European Communities Act 1972

(No. 27 of 1972) and for the purpose of giving full effect to Titles VIII and XI of Part Three of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, done at Brussels and London on 30 December 2020

1

, hereby make the following regulations