Initiative of the French Republic with a view to the adoption of a Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of authorised entry and residence
Date: 2000-09-04
Institutions: France
Subjects: France, criminal procedure, fight against crime, illegal migration, legal person, organised crime

C 253/6

EN

Official Journal of the European Communities

4.9.2000

Initiative of the French Republic with a view to the adoption of a Council Framework Decision
on the strengthening of the penal framework to prevent the facilitation of authorised entry and
residence

(2000/C 253/03)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in
particular Articles 29, 31(e) and 34(2)(b) thereof,

Having regard to Directive 2000/(cid:133)/EC of (cid:133) defining the
facilitation of unauthorised entry, movement and residence (1),

harmonising means of combating illegal immigration and
illegal employment and improving the relevant means
of control (2), that of 27 September 1996 on combating
the illegal employment of third-country nationals (3), as
well as Joint Action 97/154/JHA of 24 February 1997
to combat
trafficking in human beings and sexual
exploitation of children (4), without prejudice to measures
which have been, or will be, taken in the framework
of Title IV of
the Treaty establishing the European
Community.

Having regard to the initiative of the French Republic,

(6) This Framework Decision is a development of
Schengen acquis as defined in the Schengen Protocol,

the

Having regard to the opinion of the European Parliament,

Whereas:

HAS ADOPTED THIS DIRECTIVE:

(1) The Treaty on European Union lays down that one of the
objectives entrusted to the Union is to combat trafficking
in human beings by approximating, as far as necessary,
rules on criminal matters in the Member States. The
priority accorded to such action was stressed at
the
Tampere European Council.

(2)

In this framework, measures should be taken to combat
the aiding of illegal immigration, whether in connection
with unauthorised crossing of the border in the strict
sense or for the purpose of sustaining networks that
exploit human beings.

(3) To that end it is essential to approximate existing legal
frameworks, which means, on the one hand, the precise
and effective definition of the offence which is the subject
of Directive 2000/(cid:133)/EC and on the other hand,
harmonisation of the penalties laid down, of exemption
from liability and of aggravating circumstances, which is
the subject of this Framework Decision.

(4)

It is likewise essential not to confine possible actions to
natural persons only but to provide for measures relating
to the liability of legal persons.

(5) This

supplements
Decision
recommendations such as that of 22 December 1995 on

Framework

thus

(1) See page 1 of this Official Journal.

Article 1

Penalties

Each Member State shall take the measures necessary to ensure
that
the offences defined by Directive 2000/(cid:133)/EC are
punishable by effective, proportionate and dissuasive criminal
penalties
the
circumstances laid down in Article 2, custodial sentences
which may entail extradition and, where appropriate, other
penalties such as:

committed

including,

offences

for

in

(cid:151) confiscation of the means of transport used to commit the

offence,

(cid:151) a prohibition on practising directly or

through an
intermediary the occupational activity in the exercise of
which the offence was committed,

(cid:151) a deportation order

if

the convicted person is not a

national of a Member State of the European Union.

(2) OJ C 5, 10.1.1996, p. 1.
(3) OJ C 304, 14.10.1996, p. 1.
(4) OJ L 63, 4.3.1997, p. 2.

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Article 2

Aggravating circumstances

Each Member State shall take the measures necessary to ensure
that
the appropriate penalties laid down in Article 1 are
increased if one of the conditions listed below is fulfilled:

(cid:151) the offence was committed by a person belonging to a
criminal organisation within the meaning of 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 (1),

(cid:151) the purpose of the offence is trafficking in human beings
and sexual exploitation of children as defined by Joint
Action 97/154/JHA,

(cid:151) the purpose of the offence is to allow the alien to work in
contravention of the rules governing the employment of
aliens in the Member State in question.

Article 3

necessary to ensure that a legal person may be held liable
where the lack of supervision or control by a person referred
to in paragraph 1 has made possible the commission of an
offence defined by Directive 2000/(cid:133)/EC, possibly in the
circumstances
this Framework
for the benefit of that legal person by a person
Directive,
under its authority.

laid down in Article 2 of

Liability of a legal person under Directive 2000/(cid:133)/EC on
3.
account of offences committed, possibly in the circumstances
laid down in Article 2 of this Framework Directive, shall not
exclude criminal proceedings against natural persons who are
involved as perpetrators,
in the
offences referred to in this paragraph.

instigators or accessories

Article 4

Penalties for legal persons

1.
Each Member State shall take the measures necessary to
ensure that a legal person held liable pursuant to Article 3(1) is
punishable by effective, proportionate and dissuasive penalties,
which shall
include criminal or non-criminal fines and may
include other penalties such as:

Liability of legal persons

(a) exclusion from entitlement to public benefits or aid;

Each Member State shall take the measures necessary to
1.
ensure legal persons may be held liable for the offences
defined by Directive 2000/(cid:133)/EEC and committed, possibly in
the circumstances laid down in Article 2 of this Framework
Decision,
their benefit by any person, acting either
individually or as part of an organ of the legal person, who
has a leading position within the legal person, based on:

for

(cid:151) a power of representation of the legal person, or

(b) temporary or permanent disqualification from the practice

of commercial activities;

(c) placing under judicial supervision;

(d) a judicial winding-up order.

(cid:151) an authority to take decisions on behalf of

the legal

person, or

2.
Each Member State shall take the measures necessary to
ensure that a legal person held liable pursuant to Article 3(2) is
punishable by effective, proportionate and dissuasive penalties
or measures.

(cid:151) an authority to exercise control within the legal person,

as well as for involvement as accessories or instigators in the
commission or attempted commission of such offences.

Article 5

Jurisdiction

2. Without prejudice
paragraph 1, each Member State shall

cases provided for

in
take the measures

to the

(1) OJ L 351, 29.12.1998, p. 1.

1.
Each Member State shall take the measures necessary to
establish its jurisdiction with regard to the offence defined
by Directive 2000/(cid:133)/EC and committed, possibly in the

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4.9.2000

circumstances
Decision:

laid down in Article 2 of

this Framework

(a)

in whole or in part within its territory, or

(b) by one of its nationals.

Any Member State may limit

2.
its jurisdiction to the
offence referred to in paragraph 1(a). A Member State which
does not apply this limitation may nevertheless decide that the
offence referred to in paragraph 1(b) is within its jurisdiction
only under specific circumstances or conditions.

Each Member State shall inform the Secretary-General of
3.
the Council
to apply paragraph 2, where
appropriate with an indication of the specific circumstances or
conditions in which its decision applies.

it decides

if

States

Before 1 November 2001, Member

2.
shall
communicate to the General Secretariat of the Council and to
the Commission the texts of the provisions transposing into
their national
law the obligations imposed on them by this
Framework Decision. On the basis of that information and a
written report by the Commission, the Council shall, no later
than 30 May 2002, check the extent to which Member States
have taken the measures necessary to comply with this
Framework Decision.

Article 7

Effective date

This Framework Decision shall take effect on the day of its
publication in the Official Journal of the European Communities.

Article 6

Implementation

Done at (cid:133)

1. Member States shall adopt
the measures necessary to
comply with the provisions of this Framework Decision before
1 November 2001.

For the Council

The President

(cid:133)