Tag Archives: Penalty

Sanctions against the employment of illegally staying non-EU nationals

Outline of the Community (European Union) legislation about Sanctions against the employment of illegally staying non-EU nationals

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

Internal market > Living and working in the internal market

Sanctions against the employment of illegally staying non-EU nationals

Document or Iniciative

Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.

Summary

The directive requires Member States to prohibit the employment of illegally staying non-EU nationals. It lays down common minimum standards on sanctions against employers who infringe the prohibition. Member States may decide not to apply the directive to illegally staying non-EU nationals whose removal has been suspended and who have been granted permission to work under national law.

Employers’ obligations

Employers are obliged to:

require non-EU nationals to produce a residence permit or another authorisation to stay before taking up employment;
keep copies of the permit or authorisation for the duration of the employment, in case of inspection by the national authorities;
notify the authorities within the period established by the Member State when they employ a non-EU national.

In cases where the employer is an individual who engages a non-EU national for private purposes, Member States may provide for a simplified procedure of notification. Member States may decide not to require notification when the non-EU national has been granted long-term residence status.

Sanctions

Member States must ensure that infringements are subject to effective, proportionate and dissuasive sanctions, including:

financial sanctions in relation to each illegally employed non-EU national;
payment of the costs for returning the illegally employed non-EU nationals.

The financial sanctions may be reduced for individuals employing illegally staying non-EU nationals for private purposes, provided that the working conditions were not exploitative.

Member States must ensure that employers are liable to make back payments, such as outstanding remuneration, including the cost of sending it to the employee’s country of origin, and social security contributions. To calculate the back payments, the employment relationship is presumed to have lasted for at least three months unless proved otherwise.

Member States must put in place the necessary mechanisms whereby illegally employed non-EU nationals may claim any outstanding remuneration from their employers. The non-EU nationals must be informed of their rights before their return is enforced.

Member States must ensure that employers are also, if appropriate, subject to other measures, such as:

exclusion from entitlement to some or all public benefits, including EU funding for up to five years;
exclusion from participation in a public contract for up to five years;
recovery of benefits granted up to 12 months prior the detection of the illegal employment;
temporary or permanent closure of the establishment.

Member States must also ensure that where an employer is a subcontractor, the contractor of which the employer is the direct subcontractor will be held liable in addition to or in place of the employer. However, contractors that have undertaken due diligence obligations defined by national law will not be liable. Member States may also provide for more stringent liability rules in relation to subcontracting.

An intentional infringement constitutes a criminal offence when the employer:

persists in his/her non-compliance;
employs a significant number of illegally staying non-EU nationals;
employs such persons in particularly exploitative working conditions;
employs victims of trafficking in human beings;
illegally employs minors.

Inciting, aiding and abetting this conduct must also constitute a punishable criminal offence.

Criminal sanctions may be accompanied by other measures, including publication of the judicial decision. Legal persons can also be held liable.

Complaints and inspections

Member States must ensure that illegally employed non-EU nationals can lodge complaints against their employers either directly or through designated third parties. Those working in particularly exploitative conditions may be issued residence permits for the duration of their proceedings on a case-by-case basis, under arrangements comparable to those provided for by Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings and who cooperate with the competent authorities.

Member States are required to carry out effective and adequate inspections based on regular risk assessments to control the employment of illegally staying non-EU nationals.

Background

The Commission suggested these measures in its communication of 19 July 2006 on policy priorities in the fight against illegal immigration. The European Council (15-16 December 2006) endorsed this suggestion, inviting the Commission to present proposals.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 2009/52/EC	20.7.2009	20.7.2011	OJ L 168 of 30.6.2009

Mutual recognition of supervision measures

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Mutual recognition of supervision measures

Outline of the Community (European Union) legislation about Mutual recognition of supervision measures

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 > Judicial cooperation in criminal matters

Mutual recognition of supervision measures

Document or Iniciative

Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention.

Summary

The framework decision lays down rules for the mutual recognition of supervision measures during criminal proceedings by European Union (EU) countries. These rules regulate the:

recognition of a decision on supervision measures;
monitoring of supervision measures;
surrendering of a person breaching supervision measures imposed on him/her.

Thus, the framework decision aims at:

making sure that the person concerned will be available to attend his/her trial;
promoting the use of non-custodial measures in criminal proceedings that take place in an EU country other than that where the person concerned is resident;
improving the protection of victims and the general public.

Types of supervision measures

EU countries must recognise and monitor supervision measures that impose an obligation on the person concerned to:

inform the authority monitoring the supervision measures of any change of residence;
not enter certain locations;
stay at a specified location;
comply with certain restrictions for leaving the territory of the monitoring country;
report at specified times to the designated authority;
refrain from contacting specific persons connected to the alleged crime.

The framework decision lists a number of additional supervision measures that each EU country may choose to monitor.

Forwarding supervision measures

An EU country may forward a decision on supervision measures to the competent authority of the EU country of residence of the person against whom the measures are imposed. However, the latter must have been informed of these measures and agreed to return to his/her country of residence. Following a request from the person concerned, a decision on supervision measures may also be forwarded to the competent authority of another EU country. In such cases, the authority in question must have agreed to receive the decision.

The competent authority of the EU country that issued the decision on supervision measures forwards this decision (or a certified copy of it) together with a certificate annexed to the framework decision directly to the competent authority of the EU country that will carry out the monitoring tasks. The competent authority of the issuing country must indicate the validity period of the decision on supervision measures and whether this decision may be renewed. In addition, it must specify the expected length of time needed for monitoring the supervision measures.

Recognising decisions on supervision measures

The country to which a decision on supervision measures is forwarded must recognise this decision and take the necessary measures for monitoring the supervision measures within 20 days from receipt. The framework decision lists certain offences for which decisions on supervision measures must in all cases be recognised, without verifying the double criminality of the acts. However, these offences must be punishable by a custodial sentence or a measure involving deprivation of liberty for a minimum of three years in the country that issued the decision on supervision measures.

For any other offences, the country that is to monitor the supervision measures may require the decision to relate to acts that are also an offence under its law in order to recognise the decision. Under certain circumstances, this country may refuse to recognise the decision on supervision measures altogether.

In case the supervision measures are not compatible with the law of the monitoring country, its competent authority may adapt these measures. However, the adapted measures must correspond as closely as possible to, and may in no case be more severe than, the original measures imposed.

Once the monitoring country has recognised the decision on supervision measures, it becomes competent for the monitoring of the supervision measures and its national law will govern the supervision.

Taking any subsequent decisions

The country having issued the decision on supervision measures has competence for any subsequent decisions concerning: the renewal, review and withdrawal of the original decision, the modification of the supervision measures and the issuing of an arrest warrant. Any decision on these will be governed by the law of the issuing country.

In case the competent authority of the issuing country modifies the supervision measures, the competent authority of the monitoring country may either:

adapt these measures, if they are not compatible with its national law, or
refuse to monitor these measures, if they fall outside the scope of this framework decision.

In case the competent authority of the issuing country issues an arrest warrant, the person concerned must be surrendered conforming to the procedures laid down in the framework decision on the European arrest warrant.

Background

The conclusions of the Tampere European Council of 15-16 October 1999 stressed the importance of applying the principle of mutual recognition to pre-trial orders. Consequently, the mutual recognition of supervision measures was taken up in the 2001 programme of measures to implement the principle of mutual recognition in criminal matters.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2009/829/JHA	1.12.2009	1.12.2012	OJ L 294 of 11.11.2009

Taking account of convictions in Member States in the course of new criminal proceedings

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Taking account of convictions in Member States in the course of new criminal proceedings

Outline of the Community (European Union) legislation about Taking account of convictions in Member States in the course of new criminal proceedings

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 > Judicial cooperation in criminal matters

Taking account of convictions in Member States in the course of new criminal proceedings

Document or Iniciative

Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings.

Summary

This Framework Decision establishes the criteria whereby previous convictions * delivered by any Member State are taken into account during criminal proceedings in another Member State against the same person, but for different facts.

The information regarding previous convictions can be obtained under applicable instruments on mutual assistance in criminal matters between Member States or on the exchange of information extracted from the criminal record. In the context of new criminal proceedings, Member States must ensure that previous convictions handed down in another Member State are duly taken into consideration under the same conditions as the previous national convictions.

The previous convictions are to be taken into account at the pre-trial and trial stage, as well as when the conviction is executed. They should be given due consideration especially in relation to the applicable rules of procedure concerning:

provisional detention;
definition of the offence;
type and level of the sentence;
execution of the decision.

When previous convictions are taken into consideration by the Member State conducting the new proceedings, this shall not have the effect of interfering with, revoking or reviewing the previous convictions.

In instances where the previous conviction was not handed down or fully executed by another Member State prior to the commission of the offence for which the new proceedings are conducted, it is not required to comply with national rules on imposing sentences, if the application of the national rules to previous foreign convictions limits the judge in imposing a sentence. Nevertheless, the previous convictions must be taken into consideration by other means.

This Framework Decision replaces Article 56 of the European Convention of 28 May 1970 on the International Validity of Criminal Judgements as between the Member States. The Article provides for the possibility to take into consideration criminal judgements handed down in other states that are parties to the Convention.

Background

The programme of measures to implement the principle of mutual recognition of decisions in criminal matters was adopted by the Council on 29 November 2000. This programme also provides for the establishment of the principle by which a Member State must take into account previous criminal judgements rendered by the courts in other Member States, in order to assess the offender’s criminal record, establish whether s/he has reoffended and decide on the type of sentence and its execution.

Key terms used in the act
Conviction: any final decision of a criminal court establishing guilt of a criminal offence.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Council Framework Decision 2008/675/JHA	24.7.2008	15.8.2010	OJ L 220 of 15.8.2008

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].

Terrorist offences

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Terrorist offences

Outline of the Community (European Union) legislation about Terrorist offences

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 terrorism

Terrorist offences

Document or Iniciative

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [See amending act(s)].

Summary

The framework decision harmonises the definition of terrorist offences in all EU countries by introducing a specific and common definition. Its concept of terrorism is a combination of two elements:

an objective element, as it refers to a list of instances of serious criminal conduct (murder, bodily injuries, hostage taking, extortion, fabrication of weapons, committing attacks, threatening to commit any of the above, etc.);
a subjective element, as these acts are deemed to be terrorist offences when committed with the aim of seriously intimidating a population, unduly compelling a government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

The framework decision defines a terrorist group as a structured organisation consisting of more than two persons, established over a period of time and acting in concert, and refers to directing a terrorist group and participating in its activities as offences relating to a terrorist group.

Furthermore, EU countries must ensure that certain intentional acts are punishable as offences linked to terrorist activities even if no terrorist offence is committed. These include:

public provocation to commit a terrorist offence;
recruitment and training for terrorism;
aggravated theft, extortion and falsification of administrative documents with the aim of committing a terrorist offence.

To punish terrorist offences, EU countries must make provision in their national legislation for effective, proportionate and dissuasive criminal penalties, which may entail extradition. In addition, EU countries must ensure that penalties are imposed on legal persons where it is shown that the natural person has the power to represent the legal person or authority to exercise control within the legal person that has committed a terrorist offence.

EU countries must take the necessary action to:

establish their jurisdiction with regard to terrorist offences;
establish their jurisdiction where they refuse to hand over or extradite a person suspected or convicted of such an offence to another EU country or to a non-EU country;
coordinate their activities and determine which of them is to prosecute the offenders with the aim of centralising proceedings in a single EU country, when several EU countries are involved.

They will also ensure appropriate assistance for victims and their families (in addition to the measures already provided for in Framework Decision 2001/220/JHA).

Background

The terrorist attacks of September 2001 have led the EU to step up action in this field. This framework decision is thus designed to make the fight against terrorism at EU level more effective. This problem was already discussed at the European Council meetings in Tampere in October 1999 and in Santa Maria da Feira in June 2000.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2002/475/JHA	22.6.2002	31.12.2002	OJ L 164 of 22.6.2006

Amending act(s)	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2008/919/JHA	9.12.2008	9.12.2010	OJ L 330 of 9.12.2008

Related Acts

Report from the Commission of 6 November 2007 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2007) 681 final – Official Journal C 9 of 15.1.2008].
This second report notes that most EU countries evaluated for the first time have satisfactorily achieved implementation of the main provisions contained in the framework decision. Nevertheless, some major issues stand out. Concerning the EU countries evaluated for the second time, the additional information they have sent has allowed the Commission to generally conclude that there is a higher level of compliance. However, most of the main deficiencies identified in the first evaluation report remain unchanged.
The main concerns of the Commission are the deficient implementation, by some EU countries, of the provisions that establish a common definition of terrorism and the harmonisation of penalties for offences related to a terrorist group and of criminal liability of legal persons for terrorist offences.

Report from the Commission of 8 June 2004 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2004) 409 final – Official Journal C 321 of 28.12.2004].
This report reviews the measures taken by EU countries to comply with the framework decision on combating terrorism. According to it, most EU countries have taken the necessary measures to comply with the main provisions of this legal instrument. However, certain deficiencies were pointed out.

Ship-source pollution and criminal penalties

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Ship-source pollution and criminal penalties

Outline of the Community (European Union) legislation about Ship-source pollution and criminal penalties

Topics

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

Transport > Waterborne transport

Ship-source pollution and criminal penalties

Acts

Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, particularly criminal penalties, for infringements.

Summary

The current legislation states that ship-source polluting discharges constitute in principle a criminal offence and according to the Directive this relates to discharges of oil or other noxious substances from vessels. Minor discharges shall not automatically be considered as offences, except where their repetition leads to a deterioration in the quality of the water, including in the case of repeated discharges.

The persons responsible for discharging polluting substances may be subject to criminal penalties, if they have acted with intent, recklessly * or with serious negligence. The act of inciting, aiding and abetting a person to discharge a polluting substance may also lead to criminal penalties.

The Directive applies to all types of vessels, irrespective of their flag. Polluting discharges are forbidden in:

the internal waters, including ports, of a European Union (EU) country;
the territorial waters of an EU country;
straits used for international navigation subject to the regime of transit passage, as laid down in the 1982 United Nations Convention on the Law of the Sea;
the exclusive economic zone (EEZ) of an EU country;
the high seas.

Exceptions

This regime does not apply to discharges from warships or other ships owned or operated by a State and used only on government non-commercial service.

Exceptions to the ban on discharges of polluting substances may be applied where human safety or that of the ship is in danger.

Legal persons

Legal persons under private law * may be subject to criminal penalties if a natural person has committed a criminal offence for their benefit. This natural person may have acted either individually or as part of an organ of the legal person. They must have a leading position within the structure of the legal person.

The legal person is also responsible for offences committed by a natural person through oversight, specifically through a lack of supervision or control.

The liability of a legal person shall not exclude criminal proceedings against the natural persons involved.

Applying penalties

The national authorities shall ensure that effective, proportionate and dissuasive penalties are applied, including for minor offences. They shall cooperate when a vessel is found guilty of illegal discharging in their area of responsibility before the vessels calls at the port of another EU country.

Background

The sinking of the Prestige in November 2002 and of the Erika in December 1999 highlighted the need to tighten the net in relation to ship-source pollution. However, accidents are not the main source of pollution: most of it is the result of deliberate discharges (tank-cleaning operations and waste oil disposal).

These rules incorporate into Community law the 1973 International Convention on the Prevention of Pollution from Ships and its 1978 Protocol (Marpol Convention 73/78). This will make it possible to harmonise application of the provisions of this convention.

These two Conventions establish a two-tier liability system built upon:

(limited) strict liability for the ship owner;
a collectively financed fund which provides supplementary compensation to victims of oil pollution damage who have not obtained full compensation.

Key terms
Reckless action: action taken with the knowledge that it is likely to result in damage. Legal persons under private law: all legal entities, such as undertakings, with the exception of States, public bodies and international public organisations.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 2005/35/EC	30.9.2005	1.3.2007	OJ L 255 of 30.9.2005
Directive 2009/123/EC	16.11.2009	16.11.2010	OJ L 280 of 27.10.2009

Successive amendments and corrections to Directive 2005/35/CE have been incorporated in the basic text. This consolidated versionis for reference purpose only.

Related Acts

Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency.

Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues [OJ L 332, 28.12.2000].

Fight against organised crime: participation in a criminal organisation

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Fight against organised crime: participation in a criminal organisation

Outline of the Community (European Union) legislation about Fight against organised crime: participation in a criminal organisation

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: participation in a criminal organisation

Acts

Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime.

Summary

The aim of this Framework Decision is to harmonise Member States’ definitions of crimes related to a criminal organisation * and to lay down corresponding penalties for these offences. There are two types of conduct of which Member States must recognise at least one as an offence:

active participation in an organisation’s criminal activities, with the knowledge of its aim or of its intention to commit crimes;
an agreement on the perpetration of crimes without necessarily taking part in committing them.

The Member States must take steps to penalise the above offences in that the first results in a maximum term of imprisonment of a minimum of two to five years, and the second in a maximum term of imprisonment equivalent to that of the planned activities or in a maximum term of a minimum of two to five years. The Member States may reduce, or allow for an exemption from, these penalties if the offender relinquishes criminal activity and assists the authorities by providing them with otherwise unobtainable information on the offence and the other offenders.

The Member States must also hold any legal person * accountable for the above offences that have been committed on its behalf by a person who has a central role in the legal person in question, even if that person has acted in an individual capacity. An offence committed, as a result of lack of supervision, by a person under the authority of the former may also be held against the legal person.

The legal persons held accountable for offences must be punished by effective, proportionate and dissuasive penalties. These should include both criminal and non-criminal fines. The penalties may also include the following:

ending the right to public aid;
temporarily or permanently prohibiting commercial activities;
placing under judicial supervision;
judicial winding-up;
temporarily or permanently closing the establishments used for the offences.

A Member State’s jurisdiction must cover the offences if they are committed on its territory, in whole or in part, by its national or on behalf of a legal person set up on its territory. If the offence is committed outside a Member State’s territory, it may choose whether or not to apply the last two rules. If the offence falls within the jurisdiction of several Member States, they must collaborate, for example via Eurojust, in order to decide on the prosecuting country and thus to centralise the proceedings. However, in doing so, the Member States must give due consideration to where the offence was carried out, the nationality or place of residence of the offender, the country of origin of the victim and the territory where the offender was found.

If a Member State does not extradite or surrender its nationals, it must revamp its jurisdiction and take steps to prosecute its nationals when they commit an offence outside its territory. Simultaneously, the Member State may continue to apply its jurisdiction to criminal matters as stipulated in its national law.

For offences that have been committed on the territory of a Member State, the investigations and prosecutions by that Member State must be carried out without requiring a report or an accusation from a victim.

Background

The need to improve the measures used to combat organised crime was acknowledged in the Commission Communication of 29 March 2004 on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information. Hence, the Commission simultaneously informed of its intention to draw up a Framework Decision that would replace Joint Action 98/733/JHA of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union. This Framework Decision 2008/841/JHA therefore repeals the Join Action 98/773/JHA.

Key terms used in the act

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Criminal organisation: a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences that are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a serious penalty, to obtain, directly or indirectly, a financial or other material benefit.
Structured association: an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure.
Legal person: any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2008/841/JHA	11.11.2008	11.5.2010	OJ L 300 of 11.11.2008

Criminal acts and the applicable penalties

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Criminal acts and the applicable penalties

Outline of the Community (European Union) legislation about Criminal acts and the applicable penalties

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 > Combating drugs

Criminal acts and the applicable penalties

Document or Iniciative

Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.

Summary

This framework decision lays down minimum provisions on criminal acts and the penalties applicable to drug trafficking.

Offences

The framework decision requires each European Union (EU) country to take the necessary measures to sanction all intentional behaviour relating to the trafficking in drugs and precursors.

“Drugs” are defined as any substances covered by the 1961 United Nations (UN) Convention on Narcotic Drugs or the 1971 UN Convention on Psychotropic Substances or as any substances subject to controls under Joint Action 97/396/JHA. Precursors are substances used to produce legal products such as medicines, but that can also be used to produce illicit drugs. They are classified in EU law on the basis of Article 12 of the 1988 UN Convention.

Acts linked to drug trafficking include production, manufacture, extraction, sale, transport, importation and exportation. Possession and purchase with a view to engaging in activities linked with drug trafficking are also taken into account, as are the manufacture, transport and distribution of precursors. Incitement to drug trafficking, aiding and abetting such activity, and attempting to traffic in drugs are regarded as offences.

However, this framework decision does not cover activities relating to the trafficking in drugs for personal consumption.

Liability of legal persons

The framework decision requires EU countries to take measures to ensure that legal persons can be held to account for offences linked with trafficking in drugs and precursors, as well as for aiding and abetting, inciting or attempting such activity. The concept of legal persons as used here does not include states and public bodies in the exercise of their powers or public international organisations.

An organisation is liable if the offence is committed by an individual who has a leading position within that organisation. It is also held responsible for shortcomings in supervision or control. However, the liability of legal persons does not exclude criminal proceedings against natural persons.

Sanctions

The framework decision requires EU countries to take the necessary measures to ensure that offences are subject to effective, proportionate and dissuasive penalties.

If an offence is committed in whole or in part within an EU country’s territory, that country must take measures, provided that the offender is one of its nationals or that the offence was committed for the benefit of a legal person established within its territory.

The maximum penalties for minor offences must be at least between one and three years’ imprisonment. EU countries must also take the necessary measures to confiscate substances used to commit offences.

Maximum penalties must be at least between five and ten years of deprivation of liberty in cases where the offence:

involves large quantities of drugs;
involves those drugs that are most harmful to health;
is committed within the framework of a criminal organisation.

However, penalties may be reduced if the offender renounces his illegal activities and provides information to the administrative or legal authorities that will help identify other offenders.

Sanctions for legal persons must include fines for criminal or non-criminal offences. Other sanctions may also be imposed, including placing the establishment under judicial supervision or closing it temporarily or permanently.

Background

This framework decision follows up the conclusions of the 1999 Tampere European Council, which called on EU countries to adopt additional legal provisions to combat trafficking in narcotic drugs and psychotropic substances. The EU action plan to combat drugs (2000-04) also called for measures to introduce minimum provisions on the constituent elements of criminal acts and penalties on drug trafficking.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2004/757/JHA	12.11.2004	12.5.2006	OJ L 335 of 11.11.2004

Related Acts

Report from the Commission of 10 December 2009 on the implementation of Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking [COM(2009) 669 final – Not published in the Official Journal].
In line with the requirements of Framework Decision 2004/757/JHA, this report evaluates its application by EU countries. However, six EU countries had failed to report on their transposition measures by the deadline.
Compliance with the provisions of the framework decision is problematic, in particular as regards:

crimes linked to trafficking in drugs;
passive liability of and sanctions for legal persons;
jurisdiction in cases where the offence is committed outside an EU country for the benefit of a legal person established in the territory of that country.

While national legislations can be considered to be in line with the requirements of the framework decision regarding penalties, these differ greatly from one EU country to another and are, in general, much higher than those established by the framework decision.
On the whole, the framework decision has resulted in little changes to the national legislations of EU countries. Consequently, the Commission is calling on those EU countries that provided no information or incomplete information to report back on their transposition measures.