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

EN

Official Journal of the European Union

L 300/42

The objective of the Hague Programme is to improve the common capability of the Union and the Member States for the purpose, among others, of combating transnational organised crime. This objective is to be pursued by, in particular, the approximation of legislation. Closer cooperation between the Member States of the European Union is needed in order to counter the dangers and proliferation of criminal organisations and to respond effectively to citizens’ expectations and Member States’ own requirements. In this respect point 14 of the conclusions of the Brussels European Council of 4 and 5 November 2004 states that the citizens of Europe expect the European Union, while guaranteeing respect for fundamental freedoms and rights, to take a more effective, combined approach to cross-border problems such as organised crime.

In its Communication of 29 March 2004 on measures to be taken to combat terrorism and other forms of serious crime, the Commission considered that the facilities available for combating organised crime in the EU needed to be strengthened and stated that it would draw up a Framework Decision to 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 (2).

Point 3.3.2 of the Hague Programme states that the approximation of substantive criminal law serves the purpose of facilitating mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters and concerns areas of particularly serious crime with cross-border dimensions and that priority should be given to areas of crime that are specifically mentioned in the Treaties. The definition of offences relating to participation in a criminal organisation should therefore be approximated in the Member States. Thus, this Framework Decision should encompass crimes which are typically committed in a criminal organisation. It should provide, moreover, for the imposition of penalties corresponding to the seriousness of those offences, on natural and legal persons who committed them or are responsible for their commission.

The obligations arising by virtue of Article 2(a) should be without prejudice to Member States’ freedom to classify other groups of persons as criminal organisations, for example, groups whose purpose is not financial or other material gain.

The obligations arising by virtue of Article 2(a) should be without prejudice to the Member States’ freedom to interpret the term ‘criminal activities’ as implying the carrying out of material acts.

The European Union should build on the important work done by international organisations, in particular the United Nations Convention Against Transnational Organised Crime (the ‘Palermo Convention’), which was concluded, on behalf of the European Community, by Council Decision 2004/579/EC (3).

Since the objectives of this Framework Decision cannot be sufficiently achieved by the Member States, and can therefore, by reason of the scale of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty establishing European Community, as applied by the second paragraph of Article 2 of the Treaty on European Union. In accordance with the principle of proportionality this Framework Decision does not go beyond what is necessary to achieve those objectives.

This Framework Decision respects the fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union, and in particular Articles 6 and 49 thereof. Nothing in this Framework Decision is intended to reduce or restrict national rules relating to fundamental rights or freedoms such as due process, the right to strike, freedom of assembly, of association, of the press or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate.

Joint Action 98/733/JHA should therefore be repealed,

‘criminal organisation’ means a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit;

‘structured association’ means 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.

conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organisation or its intention to commit the offences in question, actively takes part in the organisation’s criminal activities, including the provision of information or material means, the recruitment of new members and all forms of financing of its activities, knowing that such participation will contribute to the achievement of the organisation’s criminal activities;

conduct by any person consisting in an agreement with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences referred to in Article 1, even if that person does not take part in the actual execution of the activity.

the offence referred to in Article 2(a) is punishable by a maximum term of imprisonment of at least between two and five years; or

the offence referred to in Article 2(b) is punishable by the same maximum term of imprisonment as the offence at which the agreement is aimed, or by a maximum term of imprisonment of at least between two and five years.

renounces criminal activity; and

provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to:

a power of representation of the legal person;

an authority to take decisions on behalf of the legal person; or

an authority to exercise control within the legal person.

exclusion from entitlement to public benefits or aid;

temporary or permanent disqualification from the practice of commercial activities;

placing under judicial supervision;

judicial winding-up;

temporary or permanent closure of establishments which have been used for committing the offence.

in whole or in part within its territory, wherever the criminal organisation is based or pursues its criminal activities;

by one of its nationals; or

for the benefit of a legal person established in the territory of that Member State.

the Member State in the territory of which the acts were committed;

the Member State of which the perpetrator is a national or resident;

the Member State of the origin of the victims;

the Member State in the territory of which the perpetrator was found.