Fight against organised crime: offences linked to participation in a criminal organisation

WHAT IS THE AIM OF THE FRAMEWORK DECISION?

• It criminalises offences linked to participation in a criminal organisation.
• It aims to harmonise the laws of the European Union (EU) and the EU Member States on the criminalisation of these offences and lays down penalties for them.

Offences

Member States must recognise at least one of these two types of conduct as an offence:

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

Penalties

• Member States must lay down penalties corresponding to the offences mentioned above:
  • for the first option, the requirement is at least 2 years’ imprisonment for the maximum level of penalty;
  • for the second option, the requirement is at least 2 years’ imprisonment for the maximum level of penalty or a maximum term of imprisonment equivalent to that of the planned activities.
• Penalties may be reduced in specific circumstances, such as the offender renouncing the criminal activity or cooperating by identifying and bringing to justice other offenders.
• On the basis of the framework decision, Member States must introduce rules that aim to hold legal persons (such as companies) liable for the offences when they are committed on their behalf by a person with a leading role in the legal person.
• The penalties for legal persons must be effective, proportionate and dissuasive. They should include fines, but may also include the following:
  • ending the right to public aid;
  • temporarily or permanently prohibiting commercial activities and the premises used for the offences;
  • placing under judicial supervision;
  • judicial winding up or liquidation of a business.

Jurisdiction and coordination of prosecution

• A Member State’s jurisdiction must extend to the offences when they are committed, in whole or in part, by one of its nationals or on behalf of a legal person that is set up in their territory.
• If the offence falls within the jurisdiction of several Member States, they must collaborate, for example through the European Union Agency for Criminal Justice Cooperation, to decide on the prosecuting Member State and to centralise the proceedings.
• Special account must be taken of:
  • 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.

Offences affecting the EU’s financial interests

• Directive (EU) 2017/1371 sets out rules concerning criminal offences and penalties on combatting fraud and other illegal activities detrimental to the EU’s financial interests (see summary).
• Article 22(1) of Regulation (EU) 2017/1939 establishing the European Public Prosecutor’s Office (EPPO) (see summary) gives the EPPO power in respect of the criminal offences affecting the EU’s financial interests that are set out in Directive (EU) 2017/1371. In accordance with Article 22(2) of the same regulation, the EPPO also has power in respect of offences regarding participation in a criminal organisation, as defined in Framework Decision 2008/841/JHA, if the focus of the criminal activity of such a criminal organisation is to commit crimes affecting the EU’s financial interests.