Tag Archives: Organised crime

Defining the facilitation of illegal immigration

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Defining the facilitation of illegal immigration

Outline of the Community (European Union) legislation about Defining the facilitation of illegal immigration

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Defining the facilitation of illegal immigration

Document or Iniciative

Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence.

Summary

With a view to creating an area of freedom, security and justice, the European Union (EU) must take measures to combat the aiding of illegal immigration. To this end, EU countries’ legal provisions regarding such offences must be harmonised.

Consequently, this directive provides a common definition for the “facilitation of illegal immigration”, thus improving the application of the penal framework for preventing the facilitation of illegal immigration.

Infringements

The directive defines the following as infringements:

  • assisting intentionally a non-EU country national to enter or transit through the territory of an EU country, in breach of laws;
  • assisting intentionally, and for financial gain, a non-EU country national to reside in the territory of an EU country, in breach of laws;
  • instigating, assisting in or attempting to commit the above acts.

EU countries must adopt effective, proportionate and dissuasive sanctions for these infringements. However, for the first above infringement, where the aim is to provide humanitarian assistance EU countries are not obliged to impose sanctions.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2002/90/EC

5.12.2002

5.12.2004

OJ L 328 of 5.12.2002

Penal framework for preventing the facilitation of illegal immigration

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Penal framework for preventing the facilitation of illegal immigration

Outline of the Community (European Union) legislation about Penal framework for preventing the facilitation of illegal immigration

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Penal framework for preventing the facilitation of illegal immigration

Document or Iniciative

Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence.

Summary

Common action between European Union (EU) countries in the fields of police and judicial cooperation in criminal matters is necessary for the creation of an area of freedom, security and justice. In this context, EU countries should also take measures to prevent the aiding of illegal immigration. To this end, this framework decision establishes minimum rules for penalties, liability of legal persons and jurisdiction.

Penalties

The directive defining the facilitation of illegal immigration sets out the infringements for which EU countries must adopt effective, proportionate and dissuasive criminal penalties that may include extradition. These penalties may be supplemented by other measures, such as:

  • confiscation of the means of transport;
  • prohibition to practice the occupational activity in which the offence was committed;
  • deportation.

Certain infringements committed for financial gain must be punishable by custodial sentences with a maximum sentence of not less than eight years, if they were committed as part of activity of a criminal organisation or if the lives of the subjects of the offences were endangered.

Liability of legal persons

Legal persons must be held liable for infringements relating to the aiding of illegal immigration committed for their benefit by any person that has power of representation of or authority to take decisions on behalf or to exercise control within the legal person. If such a person neglects to exercise supervision or control over a person under the authority of the legal person who commits an infringement, the legal person must also be held liable.

EU countries must adopt sanctions for legal persons that are effective, proportionate and dissuasive. These must include criminal or non-criminal fines and may include other sanctions, such as:

  • exclusion from public benefits;
  • temporary or definitive ban on commercial activities;
  • a judicial supervision or dissolution measure.

Jurisdiction

EU countries must ensure that their jurisdiction applies to infringements committed in their territory. They may decide whether they apply their jurisdiction in cases where the offence is committed by one of their nationals or for the benefit of a legal person established in their territory. However, if an EU country does not extradite its own nationals, it must ensure that its jurisdiction applies to infringements committed by its nationals outside of its territory.

When an EU country becomes aware of infringements breaching another EU country’s law on the entry and residence of aliens, it must communicate this information to the country concerned. If an EU country requests another EU country to prosecute such infringements, it must provide the latter with an official report or certificate describing the provisions of its law that were breached.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2002/946/JHA

5.12.2002

5.12.2004

OJ L 328 of 5.12.2002

Related Acts

Report from the Commission of 6 December 2006 based on Article 9 of the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [COM(2006) 770 final – Not published in the Official Journal].

Decision establishing Eurojust

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Decision establishing Eurojust

Outline of the Community (European Union) legislation about Decision establishing Eurojust

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Justice freedom and security > Fight against terrorism

Decision establishing Eurojust

Document or Iniciative

Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [See amending act(s)].

Summary

In order to step up cooperation in the fight against crime, the Tampere European Council decided (in point 46 of its conclusions) to set up a unit called Eurojust, with the objective of coordinating the activities carried out by national authorities responsible for prosecution. Several documents were presented on this subject during the year 2000:

  • an initiative of the Federal Republic of Germany;
  • an initiative of the Portuguese Republic, the French Republic, the Kingdom of Sweden and the Kingdom of Belgium;
  • a communication by the Commission to clarify its position on the setting up of Eurojust.

Subsequently, at the Intergovernmental Conference held in Nice in December 2000, the Heads of State and Government decided to amend Article 31 of the Treaty on European Union (EU), introducing a reference to, and a description of, Eurojust’s tasks. At the Laeken European Council in December 2001, Member States decided (in point 57 of the Council conclusions) that, pending a decision on the location of the headquarters of certain agencies, Eurojust would have its provisional headquarters in The Hague. At the December 2003 European Council, Member States decided that Eurojust would be headquartered in The Hague definitively.

Composition, competencies and tasks of Eurojust

This decision establishes Eurojust as a body of the Union with legal personality. Each Member State must appoint a national member to Eurojust headquarters: a prosecutor, judge or police officer (the latter must have competencies equivalent to the judge’s or the prosecutor’s). These national members are to be assisted by deputies and assistants. They are all subject to the national law of the Member State that appointed them. The length of the term of office of national members is a minimum of four years. The appointing Member State may renew the term. It also decides on the nature of the judicial powers conferred on its national representative. However, national members are to be granted at least certain ordinary powers, as well as other powers to be exercised in agreement with the competent national authority or in urgent cases, as defined in the decision.

Regarding investigations and prosecutions (concerning at least two Member States) in relation to serious crime, Eurojust has competence for:

  • promoting coordination between the competent authorities of the various Member States;
  • facilitating the execution of requests and decisions relating to judicial cooperation.

Eurojust’s competence covers, inter alia, the types of crime and offences for which Europol has competence at all times.

An On-Call Coordination (OCC) is to be established with one representative from each Member State and with a contact point at Eurojust. It is to act on a 24-hour/7-day basis, so that Eurojust may fulfil its tasks at all times.

Eurojust may fulfil its tasks through one or more of the national members or as a College. Eurojust may ask the authorities of the Member States concerned, inter alia, to:

  • undertake an investigation or prosecution;
  • set up a joint investigation team;
  • take special or other investigative measures.

The national authorities are to respond to these requests without delay.

The College issues non-binding opinions in cases where two or more national members are unable to resolve conflicts of jurisdiction as well as where competent authorities report recurrent refusals for, or other difficulties relating to, judicial cooperation.

The Commission, which is fully associated with the work of Eurojust, will jointly agree upon the necessary practical arrangements with Eurojust.

Each Member State is to appoint one or more national correspondents for Eurojust. Each Member State is also to set up a Eurojust national coordination system to coordinate the work of the Eurojust national correspondents, Eurojust national correspondent for terrorism matters, European Judicial Network national correspondent and contact points, as well as the national members or contact points of the Network for Joint Investigation Teams and representatives of Networks for War Crimes, Asset Recovery and Corruption.

Personal data

In order to realise its objectives, Eurojust must be able to exchange any relevant data with the competent authorities. To this end, the application of the principles of the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data must be guaranteed.

Eurojust may only process data on persons who are suspected of having committed, or have been convicted of, an offence for which Eurojust has competence, as well as on victims and witnesses. The types of data that can be used include the person’s identity (full name, date and place of birth, nationality, contact details, profession, social security numbers, identification documents, DNA profiles, photographs, fingerprints, etc.) and the nature of the alleged offences (criminal category, date and place of the offence, type of investigation, etc.). A case management system with temporary work files and an index for personal and non-personal data is to be set up by Eurojust. Personal data are accessible only to national members and their deputies and assistants, to persons participating in Eurojust national coordination systems who are connected to the case management system, as well as to authorised Eurojust staff. It should be noted that the obligation of confidentiality continues to apply after the termination of their activities with Eurojust.

Within Eurojust, one member of staff is specially appointed to be responsible for data protection. His/her tasks include ensuring that the processing is lawful and that a written record of the transmission and receipt of data is kept.

Generally speaking, any individual may consult data concerning him/her and ask the data to be corrected or deleted if they are incorrect or incomplete. Any person who considers that they have suffered damage because of incorrect processing of data has the right to lodge a complaint. Eurojust is liable in accordance with the national law of the Member State where its headquarters are situated, while Member States are liable in accordance with their national law. The decision sets limits on consultations in relation to Eurojust’s activities (for example, in order to avoid compromising an investigation).

The data are kept only as long as strictly necessary after the conclusion of Eurojust’s activities. In any case, there is provision for a periodic review every three years.

Eurojust and the Member States protect the data in particular from destruction, loss, disclosure, alteration and unauthorised access.

An independent body monitors all of Eurojust’s activities in order to ensure that the processing of personal data is carried out in accordance with the decision. The Joint Supervisory Body meets periodically and when it is convened by its chairman. The chairman is appointed from permanent members that are in their third year of mandate.

Relations with other bodies

In order to carry out its tasks, Eurojust maintains privileged relations with the European Judicial Network, the European Police Office (Europol), the European Anti-Fraud Office (OLAF), the European External Borders Agency (Frontex) and the Joint Situation Centre of the Council. After approval by the Council, Eurojust will also be able to conclude cooperation agreements on the exchange of information with non-Member States, international organisations or bodies and the International Criminal Police Organisation (Interpol). Furthermore, Eurojust may coordinate judicial cooperation with non-Member States as well as to post liaison magistrates to these states for the purpose of facilitating this cooperation.

Final provisions

This decision includes provisions on the organisation and operation of Eurojust (organisation of the secretariat, appointment and length of term of office of the Administrative Director, status of staff, language arrangements, etc.).

The Council and the European Parliament are periodically informed of Eurojust’s activities and the state of play in terms of crime in the EU. In the annual report to the Council, Eurojust may make proposals for the improvement of judicial cooperation in criminal matters.

References

Act

Entry into force

 Deadline for transposition in the Member States Official Journal
Decision 2002/187/JHA

6.3.2002

6.9.2003

OJ L 63 of 6.3.2002
Amending act(s)
 		Entry into force Deadline for transposition in the Member States Official Journal
Decision 2003/659/JHA

1.10.2003

–

OJ L 245 of 29.9.2003
Decision 2009/426/JHA

4.6.2009

4.6.2011

OJ L 138 of 4.6.2009

Related Acts

Report from the Commission of 6 July 2004 on the legal transposition of the Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [COM(2004) 457 final – Not published in the Official Journal].
In this report, the Commission analyses the implementation of the Eurojust decision, which it deems to be disappointing: by the deadline set (September 2003), only one Member State (Portugal) had passed the complete legislation necessary to comply with the Eurojust decision. Despite the fact that by April 2004 three more Member States had adopted the relevant laws (Austria, France, Germany), six others still need to bring their national law into conformity with the decision (Belgium, Finland, Greece, Italy, Luxembourg, Spain). The remaining Member States concluded that they did not need to amend their national law. The Commission therefore wonders whether the existing rules in Member States will suffice to give full effect to the Eurojust decision and to make Eurojust an efficient and effective tool. Accordingly, it calls on all Member States to ensure a rapid and complete transposition of the Eurojust decision. In this connection, it recommends the drawing up of guidelines or circulars clarifying certain essential issues even where legislation is not indispensable; the promotion of a sufficiently rapid information flow; and the conferral on their Eurojust national members the judicial and/or investigative powers necessary.

Crime prevention in the EU

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Crime prevention in the EU

Outline of the Community (European Union) legislation about Crime prevention in the EU

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against organised crime

Crime prevention in the EU

Document or Iniciative

Communication from the Commission to the Council and the European Parliament – Crime prevention in the European Union.

Summary

Crimes such as domestic burglaries, thefts from vehicles, common assault and street robberies are among the primary concerns of European citizens. These crimes fall under the three broad priority areas identified by the Tampere European Council: juvenile, urban and drug-related crime.

This communication discusses how to prevent * these types of crime, which are referred to as volume (non-organised crime) crime * because they include all types of frequent crimes whose victims are easily identifiable. Volume crime generally targets property and is often accompanied by physical violence. The seriousness of this type of crime should not be underestimated: the financial cost to society is high, and it is often the first step down the road to more serious forms of crime, such as organised crime.

Trends in crime

The nature and volume of crime at European Union level can be measured by two main sources: (i) official crime statistics registered by the police and (ii) the International Crime Victims Survey (ICVS). As regards the first source, it is not possible to compare absolute and relative numbers between Member States because of the many differences between Member States as regards legislation and the different ways in which official crime statistics are produced. However, for trends in time, these data can be useful.

The trend in the crime level from 1950 to 1970 shows a steady increase. After 1970, however, crime levels rose more rapidly, peaking in the middle of the 1980s. Since 1990 the total amount of registered crime has remained fairly stable in the EU-15 Member States. The average annual percentage increase between 1991 and 2001 was around 1 %.

This communication examines two specific types of crimes: domestic burglaries * and violent crime *. In 2000, police forces recorded three domestic burglaries per minute in the 15 Member States; this reduction compared to previous figures was due to a number of factors including increased preventive behaviour among the population. The same year, however, also saw an increase in violent crime at European level.

Opinion polls show that individuals feel less and less secure, particularly women and the elderly.

Combating volume crime: practical examples

Prevention * must encompass not only crime in the strict sense of the term, but also “anti-social behaviour”. It has been proven that, if well designed and implemented, preventive measures can help reduce crime.

For example, leaving a light on when you are not at home, installing additional locks on doors and windows, increasing outside lighting and having an alarm system and/or a guard dog are preventive measures that reduce the risk of burglary. Simply increasing street lighting has reduced crime by approximately 20 %.

In North America, the Perry programme provides enrichment courses for 3-4 year olds from low-income families plus weekly home visits by programme staff. Long-term follow-ups revealed that programme participants have significantly lower juvenile and adult arrest rates, and also significantly higher rates of high school completion, tertiary education, employment and earnings.

Similarly, the European Union’s Youth programme, which began in the late 1980s and focuses on well-being, inclusion and increasing policymakers’ awareness of the concerns of young people, has had considerable preventive effect.

Finally, strong support has been given to the European Prison Education Association (EPEA) since providing training both in prison and following release is essential in helping former prisoners reintegrate into society.

Preventive action: priorities for action

This communication recommends approaching the issue on two levels: the local level and the European level.

Because volume crime occurs mainly at local level in cities, it is there that policies tailored to local and/or regional conditions must be implemented. In this respect the establishment of national crime prevention policies is a major prerequisite. A typical characteristic of preventive measures is therefore the necessary involvement of a variety of actors, both public (police, local governments, social workers) and private (business associations, insurance companies, citizens’ organisations).

These policies have to be accompanied by effective cooperation measures at EU level where advantage needs to be taken of the work undertaken by the European Crime Prevention Network (EUCPN) and the EU funding arrangements, namely the Hippocrates and AGIS programmes run by the European Commission.

For the purposes of this communication, the Commission considers the following to be the primary tasks and activities to be carried out at EU level:

  • exchange experience between policymakers and experts in prevention;
  • define and agree priorities for action;
  • agree on crime prevention policies/measures which have been proven to work (good practices);
  • find agreement on common methodologies to prepare, implement and evaluate prevention policies;
  • make European citizens aware of the usefulness of crime prevention;
  • undertake joint prevention projects;
  • monitor and evaluate national prevention policies and improve the comparability of national statistics so as to identify differences between the level of crimes.

Background

The legal basis for crime prevention activities at EU level is Article 29 of the Amsterdam Treaty, which cites the prevention of “organised or other” crime as one means of meeting the objective of providing citizens with a high level of protection in an area of freedom, security and justice.

Until the entry into force of the Treaty of Amsterdam in May 1999, crime prevention policies at EU level had been limited mostly to the prevention of organised crime. The European Council of Tampere in 1999 confirmed the importance of effective crime prevention policies in the EU.

On 29 November 2000 the Commission submitted a communication to the Council and the European Parliament on “The prevention of crime in the European Union: Reflection on common guidelines and proposals for Community financial support”. Following this communication, important developments have taken place, such as the creation of the European Forum for the Prevention of Organised Crime, the establishment of the European Crime Prevention Network and the adoption of a Council Decision creating the Hippocrates programme to co-fund cooperation projects between Member States.

Key terms used in the act
  • Domestic burglary: gaining access to a dwelling by the use of force to steal goods.
  • Violent crime: violence against persons, robbery and sexual offences.
  • Volume crime: any non-organised crime, including frequently committed crimes, whose victims are easily identifiable (domestic burglaries, thefts from vehicles, common assault, street robberies).
  • Crime prevention: according to the definition in the Council Decision of May 2001 setting up a European crime prevention network, “Crime prevention covers all measures that are intended to reduce or otherwise contribute to reducing crime and citizens’ feeling of insecurity, both quantitatively and qualitatively, either through directly deterring criminal activities or through policies and interventions designed to reduce the potential for crime and the causes of crime. It includes work by government, competent authorities, criminal justice agencies, local authorities, specialist associations, the private and voluntary sectors, researchers and the public, supported by the media”.

References

Act Entry into force – Date of expiry Deadline for transposition in the Member States Official Journal
COM(2004) 165 final 12.03.2004 – OJ C 92, 16.04.2004

Related Acts

Communication from the Commission to the Council and the European Parliament: The prevention of crime in the European Union. Reflection on common guidelines and proposals for Community financial support [COM(2000) 786 final – Not published in the Official Journal].

Council resolution of 21 December 1998 on the prevention of organised crime with reference to the establishment of a comprehensive strategy for combating it [Official Journal C 408 of 29 December 1998].

Protocol against the Smuggling of Migrants by Land, Air and Sea

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Protocol against the Smuggling of Migrants by Land, Air and Sea

Outline of the Community (European Union) legislation about Protocol against the Smuggling of Migrants by Land, Air and Sea

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against trafficking in human beings

Protocol against the Smuggling of Migrants by Land, Air and Sea

Document or Iniciative

Council Decisions 2006/616/EC and 2006/617/EC of 24 July 2006 on the conclusion of the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organised Crime.

Summary

The purpose of this Protocol to the United Nations Convention against organised crime is to prevent and combat the smuggling of migrants, and to promote cooperation between States in this area.

The signatory States must establish the following acts as criminal offences when committed with the aim of obtaining a financial or material benefit:

  • the smuggling of migrants, that is, procuring the illegal entry of a person into a State of which he is not a national or a permanent resident;
  • producing fraudulent travel or identity documents;
  • the use of a document by a person other than the rightful holder;
  • procuring, providing or possessing fraudulent documents;
  • enabling a person to remain in a country without complying with the necessary requirements.

Endangering the lives or safety of migrants, and inflicting inhuman or degrading treatment must be considered as aggravating circumstances. In addition, victims of the smuggling of migrants shall not be liable to criminal prosecution.

The Protocol shall apply to the prevention, investigation and prosecution of these offences where they are transnational in nature and where an organised criminal group is involved, as well as to the protection of the rights of the victims of these offences.

Measures against the smuggling of migrants by sea

If a State suspects that a ship without nationality is smuggling migrants, it can board and search the vessel.

If a State suspects that a ship with a foreign registration is smuggling migrants, it notifies the flag State and requests confirmation of registry and authorisation to take appropriate measures. The flag State must respond promptly to such a request. If the suspicions prove to be justified, the requesting State can board and search the vessel, and then take appropriate measures with respect to the vessel and the persons and cargo on board. They must also check the safety and the humane treatment of the persons on board. If no imminent danger is found, no additional measures can be taken without the express authorisation of the flag State.

Only ships clearly marked as being on government service are authorised to board and search vessels.

International cooperation

The States Parties will work towards strengthening their borders and are entitled to deny entry to persons implicated in the smuggling of migrants.

Countries with common borders or lying on routes used by criminal groups are required to exchange certain information such as that relating to the embarkation and destination points used by the traffickers, the routes and modes of transportation used and the methods of concealment of migrants, etc.

Immigration officials and other competent agents shall be trained in preventing the smuggling of migrants, in the humane treatment of such persons and in protecting their rights. To this end, the States shall cooperate with each other and with international organisations, non-governmental organisations and other competent organisations, as well as with other elements of civil society to ensure that there is adequate personnel training.

Furthermore, States with relevant expertise and appropriate technical resources should help States that are frequently countries of origin or transit for migrants.

Prevention, protection, assistance and return

The States will provide public awareness-raising campaigns and promote development programmes and cooperation on the regional, national and international level to combat the root socio-economic causes of this traffic, notably poverty and underdevelopment.

Furthermore, the States must take measures to protect the rights of migrants who are victims of smuggling, taking into account the special needs of women and children. They must provide appropriate protection against violence that may be inflicted upon them and appropriate assistance to migrants whose lives or safety are endangered by the fact that they have been the object of smuggling.

Lastly, and without prejudice to any right afforded to persons who have been the object of smuggling by any domestic law of the receiving State, the States party to the Protocol agree to facilitate the return of their citizens and persons who have the right of permanent residence in its territory and who have been the object of smuggling. The States shall take all appropriate measures to carry out the return in an orderly manner and with due regard for the safety and dignity of the person.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Decisions 2006/616/EC and 2006/617/EC

24.7.2006

–

OJ L 262 of 22.9.2006

Related Acts

Council Decisions 2006/618/EC and 2006/619/EC of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime [Official Journal L 262 of 22.9.2006].

This Protocol aims at preventing and combating trafficking in persons, especially women and children, and at protecting and helping the victims. It promotes international cooperation in order to achieve these aims.


Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [Official Journal L 261 of 6.8.2004].


Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence [Official Journal L 328 of 05.12.02].


Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [Official Journal L 328 of 05.12.02].

Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

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Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

Outline of the Community (European Union) legislation about Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against organised crime

Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network

Document or Iniciative

Communication from the Commission to the Council and the European Parliament of 23 October 2007 on the role of Eurojust and the European Judicial Network in the fight against organised crime and terrorism in the European Union [COM(2007) 644 final – Not published in the Official Journal].

Summary

Eurojust has strengthened law enforcement cooperation between Member States and achieved significant operational success. The transposition of Decision 2002/187/JHA is on balance a qualified success. To develop Eurojust more effectively, the powers of its members (known as national members) and those of the College, formed by the assembly of national members, need to be clarified and reinforced.

The Commission calls for an amendment to the Decision establishing Eurojust in order to enable the agency to develop its potential for cooperation and to establish itself as a vital player in the fight against organised crime and terrorism in Europe.

Granting wider powers to the national members

The statute and competences of each national member are defined by the Member State which appoints them. This situation leads to a lack of consistency between the powers of the different national members and makes it difficult at present to achieve fully effective cooperation. Furthermore, Member States do not confer real authority on them. Therefore, only a few national members may negotiate setting up joint investigation teams and use their law enforcement powers in their home country.

For greater stability and effectiveness, the Member States should take measures to spell out the powers of the national members and the college and define a shared base of minimum powers.

To increase Eurojust’s operational capacity, Member States are called upon to send their information to Eurojust more quickly, and also to reinforce their national offices. They will also make use of the services of national experts.

Possible amendments to increase the powers of the national members

The Commission suggests the Decision by proposing that the national members can:

  • accept and forward requests from national authorities and ensure that they are properly followed up;
  • receive judgments from national authorities in cases of money laundering, organised crime, terrorism and human trafficking;
  • forward this information to the national member of a Member State which is not informed but which is involved;
  • be informed of the setting up of a Joint Investigation Team and suggest investigative measures;
  • request further follow-up measures and additional investigations from the authority concerned;
  • be informed about the organisation of a controlled delivery, an infiltration or an undercover investigation and have responsibility for monitoring it;
  • be appointed for a term of at least three years;
  • have deputies to ensure regular representation.

In the longer term, the Commission will examine how to reinforce the powers of the national members in the initiation of criminal cases prejudicial to the financial interests of the European Union (EU).

Granting wider powers to the college

The College has the same powers as the national members. Although the College rules on conflicts of jurisdiction and on competing arrest warrants, its decisions are not binding on the Member States. Its powers should be widened and its role as mediator in resolving conflicts between Member States strengthened. The latter in fact refer to the College only to obtain information on the steps to be taken where disagreements arise.

The Commission undertakes to consider the conditions on which the College will be able to:

  • settle conflicts between Member States;
  • launch inquiries in a Member State and propose prosecution;
  • play a role in specific investigation measures;
  • initiate criminal inquiries at European level.

Relations between Eurojust, the European Judicial Network and the liaison magistrates

The European Judicial Network (EJN) facilitates judicial cooperation between Member States, in particular through its Internet site on the systems of justice in Europe. However, cooperation between the network and Eurojust must be improved. The Commission hopes that each Eurojust member will become attached to a national correspondent who will be one of the European Judicial Network contact points. This correspondent would be part of the Eurojust member’s team. S/he would be a relay for Eurojust’s communication policy in their Member State and would forward the cases to be examined promptly to the national member.

In the future, Eurojust could themselves designate the liaison magistrates in countries outside the EU so as to facilitate judicial cooperation between the Member States and the countries concerned.

Stepping up cooperation with Europol

The links between Eurojust and Europol have constantly improved. The secure communications network has facilitated the exchange of information between them and access to Europol’s analytical work files. Finally, the expert meetings on Joint Investigation Team have achieved high quality work.

However, cooperation between Eurojust and the Europol national liaison offices is still uneven. The links should be strengthened and exchanges of data with these offices should be improved.

Cooperation with the European Anti-Fraud Office (OLAF), Frontex and non-EU countries

The fields of responsibility of Eurojust and OLAF are complementary. The Commission therefore proposes to establish a regular exchange of information between the two agencies in order to strengthen cooperation. It also emphasises the need to continue to appoint contact points and establish regular meetings between Eurojust and OLAF.

The protection of the EU’s external borders is important in connection with illegal immigration and organised crime. The Commission encourages the signing of a cooperation agreement between Frontex and Eurojust.

Eurojust has signed agreements with third countries aimed at developing an exchange of personal data and information between judicial authorities. These agreements have led to sending of liaison officers to Eurojust. The agency now wishes to develop a veritable network of contact points.

Crime does not pay

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Crime does not pay

Outline of the Community (European Union) legislation about Crime does not pay

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against organised crime

“Crime does not pay”

Document or Iniciative

Communication from the Commission to the European Parliament and the Council of 20 November 2008 – Proceeds of organised crime: ensuring that “crime does not pay” [COM(2008) 766 final – Not published in the Official Journal].

Summary

The confiscation and recovery of criminal assets, as well as international cooperation in this field, are essential to fight organised crime in the European Union (EU). However, the results achieved in this area are modest if compared to the estimated revenues of organised crime, and the legal procedures in Member States have not yet been fully harmonised.

The existing EU legal framework consists of Framework Decisions:

  • 2001/500/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime;
  • 2003/577/JHA on the execution of orders freezing property or evidence;
  • 2005/212/JHA on confiscation of crime-related proceeds, instrumentalities and property;
  • 2006/783/JHA on the mutual recognition of confiscation orders.

These aim to ensure that a common approach prevails for confiscating and recovering the proceeds of crime. Nevertheless, implementation at national level remains incomplete with regard to Framework Decisions 2003/577/JHA and 2005/212/JHA. It is still too early to assess the implementation of Framework Decision 2006/783/JHA. The flawed implementation may be the result of a lack of clarity and coherence in the texts. Consequently, the Commission proposes that the existing EU legal framework be recast.

At the same time, the Commission proposes to proceed with discussions on the basis of Member States’ experience, in order to extend certain legal concepts and introduce new rules for confiscation. The focus would be on:

  • non-conviction based (civil) confiscation, which could be allowed when assets are suspected to be proceeds of crime and the suspect is not available to be prosecuted (dead or a fugitive);
  • “unjustified” assets, owning of which should be made a criminal offence when they are not proportionate to the income declared by a person who has regular contacts with known criminals;
  • ensuring mutual recognition of freezing and confiscation orders in the EU, irrespective of their nature (criminal or civil);
  • extending the scope of mandatory confiscation to cases where a conviction was issued for certain serious criminal offences;
  • the obligatory provision of information on the bank accounts and banking operations of identified persons, thereby putting into effect the provisions of the 2001 Protocol to the EU Convention on Mutual Legal Assistance in Criminal Matters, which remains to be ratified by a number of countries.

Cooperation between Member States needs to be further improved, in order to enable national authorities to exchange information more swiftly and thus enhance the identification of criminal assets. To this end, the Commission is encouraging Member States to proceed with the transposition of Council Decision 2007/845/JHA, whereby national Asset Recovery Offices (AROs) are to be established. For the moment, not all Member States have designated such offices, where they have, the structures, powers and practices vary greatly. The Commission recommends that AROs are established as national contact points for all confiscation-related activities with:

  • a multidisciplinary structure and expertise from a variety of related fields;
  • a standardised secure channel of communication for easier and faster exchanges of information;
  • the necessary powers to identify, trace and provisionally freeze assets;
  • Europol coordinating their operational activities to ensure the rapid exchange of information;
  • Eurojust facilitating their cooperation with judicial authorities as well as the mutual recognition of freezing and confiscation orders.

It is also essential to enhance cooperation with third countries on confiscation issues. Consequently, the Commission will continue to promote the ratification and implementation by the EU and Member States of the international conventions that contain provisions on the confiscation of criminal proceeds, such as the:

  • UN Convention against Transnational Organised Crime (UNTOC);
  • UN Convention against Corruption (UNCAC);
  • Council of Europe Conventions on Money Laundering and Confiscation (“Strasbourg Conventions”).

These conventions aim at promoting international cooperation in the identification, tracing, freezing and confiscation of criminal assets. Nevertheless, cooperation with third countries needs to be developed further, in particular through the promotion of asset-sharing agreements as well as the sharing of best practices.

The Commission also encourages the take-up of non-legislative measures, such as:

  • enhanced tools relating to the identification and tracing of assets, including centralised national registers to which the AROs should have access, and a list on outstanding freezing and confiscation orders in the EU;
  • a common EU training programme for financial investigations and criminal analysis, development of which is currently underway;
  • a methodology through which comparable statistics on frozen and confiscated assets may be made available, which is being developed in the context of the EU Action Plan 2006-10 on crime statistics.

More cooperation between Member States in recovering assets

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More cooperation between Member States in recovering assets

Outline of the Community (European Union) legislation about More cooperation between Member States in recovering assets

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against organised crime

More cooperation between Member States in recovering assets

Document or Iniciative

Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to, crime.

Summary

Rapid information exchanges help to combat cross-border organised crime. There is a need for close cooperation and direct communication between the relevant authorities of Member States involved in the tracing and confiscation of illicit proceeds.

To this end, each Member State is to designate at least one national Asset Recovery Office. These offices aim to facilitate the tracing and identification of proceeds of crime and other crime-related property. The freezing, seizure or confiscation of the proceeds is decided in judicial proceedings.

Cooperation between Asset Recovery Offices

Member States are to ensure that their Asset Recovery Offices cooperate with each other, exchanging information rapidly either of their own accord or upon request. These exchanges of information are to follow the procedures established under Framework Decision 2006/960/JHA on simplifying the exchanges of information and intelligence between law enforcement authorities of Member States.

Member States are to ensure that this cooperation is not hampered by the internal status of the Asset Recovery Offices, regardless of whether they form part of an administrative, law enforcement or a judicial authority.

The Asset Recovery Offices are also to exchange best practices, with a view to improving Member States’ effectiveness in the tracing and identifying of crime-related proceeds and other property.

Data protection

Information must be exchanged in conformity with data protection rules. The use of the information exchanged is subject to national data protection provisions of the receiving Member State.

Background

Facilitating the exchange of information implements a commitment made in the Hague Programme.

This decision follows from and completes the CARIN network (Camden Assets Recovery Inter-Agency Network), which is an informal network of asset recovery authorities.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2007/845/JHA

18.12.2007

18.12.2008

OJ L 332 of 18.12.2007

The prevention of and fight against organised crime in the financial sector

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The prevention of and fight against organised crime in the financial sector

Outline of the Community (European Union) legislation about The prevention of and fight against organised crime in the financial sector

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Single market for capital

The prevention of and fight against organised crime in the financial sector

Proposal

Communication from the Commission to the Council and the European Parliament on the prevention of and fight against organised crime in the financial sector [COM(2004) 262 final – Not published in the Official Journal].

Summary

The European Commission intends to develop and enhance a series of measures to prevent and fight either organised financial crime or general organised crime which influences organised financial crime.

Money laundering

The fight against money laundering has been a top political priority of the European Union (EU) for a number of years. The need to protect the financial system from misuse and the fear that the application of radically different measures in this area could prejudice the proper functioning of the Internal Market provided the European Commission with the legal basis under the Treaty for proposing Community legislation. Current legislation is basically composed of two Community Directives adopted in 1991 and 2001.

The Commission has announced its intention of tabling a proposal for a third Directive determining the changes to be made to the 1991 and 2001 Directives needed to take account of the revised 40 FATF Recommendations.

The Commission has already presented a proposal for a Regulation on the prevention of money laundering by means of customs cooperation. The proposal aims to set up a uniform approach to cash control based on a declaration system for amounts greater than EUR 15 000. It supplements the money-laundering Directives which govern, inter alia, the control of financial resources moving via financial institutions. There is indeed a risk that this control mechanism could be undermined by large-scale movements of cash which are not uniformly subject to control in the Community.

The Commission also proposes:

  • case tracking: Member States are encouraged to develop systems capable of tracking data provided by entities subject to reporting requirements;
  • the establishment of asset recovery bodies at national level: the Commission supports Europol’s efforts to set up an “Asset Seizure Knowledge Centre” to facilitate the identification of criminal assets in the course of major criminal investigations conducted by Member States;
  • criminalising gross negligence resulting in a failure to comply with reporting obligations;
  • a study on the feasibility of Member States’ establishing a database of currency exchange transactions which could be accessed by police and judicial authorities in money-laundering investigations;
  • giving consideration to an appropriate mechanism to facilitate an EU-wide response where financial havens are considered to represent a significant money laundering threat;
  • promoting rapid information exchange between law enforcement, FIUs and other organisations concerned with a view to detecting underground bank transactions, which generally leave no paper trail;
  • reinforcing Europol’s anti-money-laundering efforts by implementing the computerised evaluation of the Suspicious Transaction Reports sent to their analysis system (SUSTRANS);
  • pursuing the FIU-NET project, which aims to link up financial intelligence units.

Fraud

Non-cash means of payment represent an important source of illicit revenue for organised crime groups through fraud and counterfeiting.

The Commission will:

  • publish in 2004 a report on progress achieved under the three-year Action Plan to prevent fraud. This plan was adopted in 2001 and aims to foster a more coherent approach to prevention in this field;
  • propose further initiatives. In particular, it will explore the possibility of drafting clear guidelines as to how public and private agencies may work together to combat fraud more effectively.

In addition to what has recently been achieved in this field, there is a need to explore the establishment of a common and comprehensive EC concept of fiscal fraud and the harmonisation of penal sanctions. The Commission intends to launch a comparative study of the respective definitions of fiscal fraud and their penal consequences.

Fraud affecting the financial interests of the Community also represents an important source of illicit revenue. The Community’s own resources suffer huge losses as a result. To combat this problem, the Commission recommends:

  • enhanced cooperation between Member States, the Commission (OLAF), Eurojust and possibly Europol;
  • the creation of an independent European Public Prosecutor responsible for detecting and prosecuting offences directed against the Community’s financial interests.

Transparency of certain legal entities

There is a general need to enhance transparency and integrity standards in public administrations and private entities to prevent and discourage financial crime in general and thus contribute to the more effective tracing of organised financial crime.

The Commission proposes:

  • speeding up work on the role of independent non-executive or supervisory directors;
  • carrying out cost benefit analyses in connection with the enhancement of transparency measures to help combat organised financial crime;
  • exploring new ways of preventing and combating financial malpractice, with a particular focus, inter alia, on companies’ use of complex and opaque structures, subsidiaries and other special-purpose vehicles to commit and to conceal malpractices in the financial and taxation fields. One of the objectives could be to recommend a comprehensive and consistent EU approach for tackling such malpractices.

The Commission also intends to promote:

  • the development of cooperation between the private and public sectors, not only via the EU Forum for the Prevention of Organised Crime but also by encouraging greater research work in this area. It will also explore the scope for coordination between law enforcement/government officials and representatives of the financial and other business communities affected by organised financial crime.
  • the elaboration of a common policy on the development and implementation of financial investigations as an investigative technique. Standard rules for financial investigation bodies throughout the EU should also be considered, notably in connection with funding, training requirements and cooperation mechanisms of such bodies;
  • the setting of minimum standards for national criminal intelligence systems, in order to facilitate effective strategic and tactical analysis, forward planning and operations. To this end, the Commission proposes setting up a working group of representatives of the European Commission (including OLAF), Europol and Eurojust;
  • relevant data collection and statistical mechanisms with particular regard to organised financial crime;
  • further work on a mechanism to facilitate identification of legislative proposals which may inadvertently create opportunities for crime. At a subsequent stage, the Commission may if need be extend this form of crime risk assessment to areas beyond the legislative process. This could include procedures and processes surrounding such areas as insurance claim forms or credit card applications with a view to reducing opportunities for fraud;
  • a full evaluation of the effectiveness and impact of policy and measures in the fight against organised financial crime in the EU in 2005. The purpose of these evaluation missions will be to identify best practice and areas where additional measures in the fight against organised financial crime could be taken;
  • continued seminars, workshops and studies under its AGIS funding programme;
  • enhancing external action in the fight against organised financial crime, via technical assistance programmes for third countries and by entering into agreements with them (such as the agreement on mutual legal assistance in criminal justice concluded with the United States on 25 June 2003).

Background

This Communication addresses the problem of organised crime in the financial sector. The focus is therefore on non-violent crime generally involving abuse of financial and/or payment systems and resulting in illicit financial gain.

The European Commission sees the fight against organised financial crime as a core priority over the coming years, as financial crime is often wrongly perceived as a “victimless” crime. While organised financial crime may not always impact directly on individuals, the reality is that its broader social impact is considerable in terms of lost revenues, loss of reputation and the fall in public standards.

Identification and confiscation of instrumentalities and proceeds from crime

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Identification and confiscation of instrumentalities and proceeds from crime

Outline of the Community (European Union) legislation about Identification and confiscation of instrumentalities and proceeds from crime

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against organised crime

Identification and confiscation of instrumentalities and proceeds from crime

Document or Iniciative

Joint Action 98/699/JHA of 3 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds from crime [See amending act(s)].

Summary

To improve cooperation between European Union (EU) countries in the fight against organised crime, this joint action provides for the preparation, within the scope of operations of the European Judicial Network, of user-friendly guides on identifying, tracing, freezing or seizing and confiscating of instrumentalities and proceeds from crime. Each EU country must ensure that its guide is up-to-date and includes information on:

  • where to obtain assistance;
  • the assistance it is prepared to provide and the restrictions thereto;
  • the information a country requesting assistance must supply.

These guides are sent to the General Secretariat of the Council, which translates them and distributes them to the EU countries, the European Judicial Network and Europol.

EU countries must promote direct contacts through the existing cooperation arrangements between their investigators, investigating magistrates and prosecutors, with a view to ensuring that no unnecessary requests for assistance are made through formal channels.

To make a formal request for assistance, the requesting EU country must first identify the precise nature of the assistance it needs. The request for assistance must be properly prepared and meet the requirements that the requested EU country has set down for such requests. In case the request is labelled as “urgent”, the requesting country must provide the reasons thereof. If the requested country cannot execute the request for assistance in a way expected by the requesting country, it must consult the requesting country and attempt to execute the request in an alternative way.

EU countries must ensure that their judiciary is acquainted with best practice in international cooperation on the identification, tracing, freezing or seizing and confiscation of instrumentalities and proceeds from crime, as well as that all officials concerned with international cooperation in this area are provided with appropriate training.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Joint Action 98/699/JHA

9.12.1998

–

OJ L 333, 9.12.1998
Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2001/500/JHA

5.7.2001

31.12.2002

OJ L 182, 5.7.2001

Successive amendments and corrections to Joint Action 98/699/JHA have been incorporated in the basic text. This consolidated versionis for reference purposes only.

Related Acts

Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property [Official Journal L 68 of 15.3.2005].
This framework decision supplements the arrangements provided for by Framework Decision 2001/500/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime. It requires each EU country to take the necessary measures to enable it to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences that are punishable by deprivation of liberty for more than one year, or property of a value corresponding to such proceeds.
In relation to tax offences, EU countries may use procedures other than criminal procedures to deprive the perpetrator of the proceeds of the offence. The aim of the framework decision is to ensure that all EU countries have effective rules governing the confiscation of proceeds from crime, especially in relation to the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime.

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.