The disqualification triad. Approximating legislation Executing requests Ensuring equivalence. IRCP research series Volume 45

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1 The disqualification triad Approximating legislation Executing requests Ensuring equivalence IRCP research series Volume 45 Gert Vermeulen Wendy De Bondt Charlotte Ryckman Nina Peršak Principal European Commission DG Justice (JUST/2010/JPEN/PR/0010/E4) Maklu Antwerpen Apeldoorn Portland

2 An overview of all publications in the IRCP research series is listed at the end of this book. G. Vermeulen, W. De Bondt, C. Ryckman and N. Peršak The disqualification triad. Approximating legislation. Executing requests. Ensuring equivalence. Antwerpen Apeldoorn Portland Maklu pag x 16 cm ISBN D2012/1997/30 NUR European Commission All results or rights on the present study, including copyright and other intellectual or industrial property rights, are owned solely by the European Commission. Any distribution or publication of information relating to the study requires prior written authorisation from the European Commission. The opinions expressed by the project team do not represent the European Commission's official position Maklu-Publishers Somersstraat 13/15, 2018 Antwerpen, Belgium, info@maklu.be Koninginnelaan 96, 7315 EB Apeldoorn, The Netherlands, info@maklu.nl USA & Canada International Specialized Book Services 920 NE 58th Ave., Suite 300, Portland, OR , orders@isbs.com, UK & Ireland R. Bayliss, 81 Milehouse Road, Plymouth, Devon PL3 4AE

3 Table of contents Abbreviations and Acronyms... 9 Executive summary Introduction Background to the study Purpose of the study Detailed methodology and approach Work Package 1 Clarification of the scope Work Package 2 EU Level analysis Work Package 3 MS level analysis Nomination of the single points of contact Building the questionnaire Data analysis and validation Work Package 4 Elaborating policy options Work Package 5 Preparation for impact assessment Affirming the need for EU intervention Gaps & inconsistencies in the existing disqualification acquis Disqualifications in the approximation acquis & ECRIS Disqualifications in the cooperation acquis Probation measures and supervision European Protection Order Interrelation and effect on scope of this Study No binding definition at EU level Member state perspective on EU intervention Conclusion Member state conceptual diversity Ratione poenae Typology of the disqualifications Applicability: offence related vs access related Offence related: preliminary measure vs. conviction stage Ratione personae Private legal persons Public legal persons Legal persons and disqualifications beyond borders Ratione auctoritatis

4 TABLE OF CONTENTS 5 Future policy options, feasibility & impact Towards a disqualification triad Approximated disqualifications for approximated offences Executing mutual recognition requests Equivalent effect to foreign convictions/disqualifications Place of refusal grounds in the future disqualifications framework Impact on criminal records Inclusion of information Inclusion of information in the national records Inclusion of foreign information Impact on/of the policy options Access to information Access for national authorities & legal persons Access for foreign authorities & legal persons Impact on/of policy options Level of detail of information Current situation & future prospects Impact on/of policy options Case-studies Rethinking public procurement exclusions in the EU Introduction Approximated exclusion grounds for approximated offences Framework Decisions & Directives Delineation of the approximated offences Access to detailed information Attaching an equivalent disqualifying effect to foreign convictions Transferability concerns Different national approaches Equal treatment limits to exclusion grounds Availability of information Acceptability of exceptions to the equal treatment limitations Interpreting the national approaches Mutual recognition of exclusion from participating in a procurement procedure National exclusion foreseen National exclusion not foreseen Summary of recommendations in the area of public procurement

5 TABLE OF CONTENTS 6.2 Working with children Increased international attention for the fight against sexual exploitation of children Status questionis in the member states Relevant provisions of the new Directive combating sexual abuse and exploitation of children Directive combating sexual abuse and exploitation of children tested in light of the proposed future disqualifications regime Approximated disqualifications for approximated offences Traditional mutual recognition with transitivity Attaching equivalent effects Information exchange in the field of working with children Remark relating to entirety of Art.10 Directive Road Traffic Introduction: disqualifications in the area of road traffic Status questionis in the member states Legal bases for cross-border enforcement of driving disqualifications Access to, and exchange of, information on driving disqualifications National criminal records and ECRIS EUCARIS RESPER Microchip Future policy recommendations for driving disqualifications Approximated disqualifications for approximated offences Traditional mutual recognition with transitivity Attaching equivalent effects Summary of the recommendations in the area of road traffic disqualifications Bibliography Annexes Overview of the disqualification acquis Preparation for Impact Assessment Objective and approach Status Quo Automatic disqualifying effect through approximation Identifying offences and sectors

6 TABLE OF CONTENTS Ensuring adequate availability of information Mutual recognition of disqualifications Equivalent effect for prior disqualifications Existing equivalence mechanism Application of the equivalence to disqualifications Ensuring adequate information exchange Member state questionnaire Published in the IRCP research series