Proposal for a Council framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking
Date: 2001-05-23
Institutions: European Commission
Subjects: drug traffic, judicial cooperation, offence, penalty

C 304 E/172

EN

Official Journal of the European Communities

30.10.2001

Proposal for a Council framework decision laying down minimum provisions on the constituent
elements of criminal acts and penalties in the field of illicit drug trafficking

(2001/C 304 E/03)

COM(2001) 259 final (cid:151) 2001/0114(CNS)

(Submitted by the Commission on 27 June 2001)

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas:

(1) Illicit drug trafficking poses a threat to health, safety and
the quality of life of citizens of the European Union, and
to the legal economy, the stability and the security of the
Member States.

(2) The need for legislative action to tackle illicit drug traf-
ficking has been recognised in particular in the Action
the Council and the Commission, adopted by
Plan of
in Vienna on
the Justice and Home Affairs Council
3 December 1998, on how best
the
provisions of the Treaty of Amsterdam on an area of
freedom, security and justice (1); the conclusions of the
Tampere European Council of 15 and 16 October 1999,
the European Union’s
in particular point 48 thereof,
Drugs Strategy (2000-2004) adopted at
the Helsinki
European Council from 10 to 12 December 1999 and
the European Union’s Action Plan on Drugs (2000-2004)
endorsed by the European Council in Santa Maria da Feira
on 19 and 20 June 2000.

to implement

(3) It is necessary to adopt a common definition of illicit drug
trafficking, which will allow a common approach at the
Union level
to the fight against such trafficking and
specifically against trans-national trafficking and activities
carried out for the purpose of transferring for profit. The
key elements of the definitions contained in the national
provisions and international instruments should therefore
be taken up.

and

dissuasive,

proportionate

(5) Penalties provided for by the Member States should be
effective,
including
custodial sentences. To assess the degree of seriousness,
factual elements such as the scale of the trafficking, its
frequency, the type of narcotic drugs involved and the
amount of money made from the trafficking should be
taken into account. For offences considered as serious on
the basis of national legal systems involving for example
transnational trafficking, the maximum custodial sentence
should not be lower than five years. This will ensure that
a sufficiently severe sentence is available to the court in
the case of serious offences.

(6) It is necessary, on the one hand, to provide for more
severe penalties when certain circumstances accompany
the illicit drug trafficking and make it an even greater
threat to society, for example when trafficking is carried
out by a criminal organisation. On the other hand,
provision should be made for
reducing the penalties
when the offender has supplied the competent authorities
with valuable information,
in particular by helping to
identify drug-dealing networks.

(7) It is necessary to take mesures to enable the confiscation
referred to in this

the offences

of
the proceeds of
framework decision.

(8) Measures should be taken to enable legal persons to be
held liable for the criminal offences referred to by this act
which are committed for their benefit.

(9) Measures should also be foreseen for the purposes of
cooperation between Member States with a view to
ensuring effective action against illicit drug trafficking.

this

(10) As regards the Republic of Iceland and the Kingdom of
Norway,
framework decision represents a devel-
opment of the Schengen acquis within the meaning of
the Agreement concluded on 17 May 1999 by the
Council of the European Union and those two States (2).

(4) It is also necessary to adopt a common approach to the
constituent elements of criminal offences by providing for
a common offence of illicit drug trafficking.

(11) The effectiveness of the efforts made to tackle illicit drug
trafficking depends essentially on the harmonisation of the
national measures implementing this framework decision.

(1) OJ C 19, 23.1.1999, p. 1.

(2) OJ L 176, 10.7.1999, p. 36.

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(12) This framework decision respects the fundamental rights
and observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union
and specifically Chapter VI (cid:151) Justice thereof,

HAS DECIDED AS FOLLOWS:

Article 1

Definitions

For the purposes of this framework decision:

1.

2.

(cid:145)illicit drug trafficking(cid:146) means the act, without authorisation,
of selling and marketing as well as, for profit, of cultivating,
producing,
exporting,
distributing, offering, transporting or sending or, for the
purpose of transferring for profit, of receiving, acquiring
and possessing drugs;

manufacturing,

importing,

(cid:145)drugs(cid:146) means any of
the substances covered by the
following United Nations Conventions: (a) the 1961 Single
Convention on Narcotic Drugs of 1961 (as amended by the
1972 protocol); (b) the 1971 Vienna Convention on Psycho-
tropic Substances; (c) the 1988 Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances. It
also includes
to controls under
Joint Action 97/396/JHA of 16 June 1997 adopted on the
basis of Article K.3 of
the Treaty on European Union
concerning the information exchange, risk assessment and
the control of new synthetic drugs (1) or within the
framework of national measures;

the substances

subject

Article 4

Penalties

1. Member States shall
take the necessary measures to
ensure that the offences referred to in Articles 2 and 3 are
punishable by effective, proportionate and dissuasive penalties,
including custodial
sentences with a maximum term of
imprisonment of no less than five years in serious cases.

2. Member States shall provide for the measures necessary
to ensure the confiscation of the substances that have been
trafficked, the instrumentalities and property used in trafficking
and the proceeds and advantages directly or indirectly derived
from that trafficking.

the possibility of
shall provide for
3. Member States
imposing fines in addition to or as an alternative to custodial
sentences.

Article 5

Aggravating circumstances

1. Without prejudice to any other aggravating circumstances
shall
defined in their national
provide
in
respect of the offences referred to in Articles 2 and 3:

following aggravating circumstances

legislation, Member States

the

for

(a) the offender has an important role in the organisation of
the drug trafficking, or the offence was committed by a
criminal organisation;

(b) the offence involves violence or the use of weapons;

3.

(cid:145)legal person(cid:146) means any entity having this status by virtue
of the applicable national law, with the exception of States
or other public bodies exercising their public service
mandate and international public organisations.

(c)

the offence involves minors or persons who are unable to
exercise their free will;

Article 2

Criminalisation of illicit drug trafficking

Member States shall take the necessary measures to make illicit
drug trafficking a criminal offence.

(d) the offence was committed in or near schools, youth clubs
and leisure centres, or institutions for the treatment and
rehabilitation of drug addicts;

(e)

the offender is a doctor, pharmacist, court official, police
officer, customs officer, prison officer, probation officer,
teacher,
in an educational estab-
lishment and abused this position to commit the offence;

instructor or works

Article 3

Incitement, aiding and abetting and attempt

take the necessary measures to make
Member States shall
incitement to commit, aiding and abetting or attempting to
commit the offence referred to in Article 2 a criminal offence.

(1) OJ L 167, 25.6.1997, p. 1.

(f)

the offender has been convicted of one or more similar
offences by a final
judgment in a Member State of the
Union.

2.
If one of the conditions listed in paragraph 1 is fulfilled,
the maximum term of imprisonment may not be less than
seven years.

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30.10.2001

Article 6

(d) a judicial winding-up order;

Mitigating circumstances

Without prejudice to any other mitigating circumstances
defined in their national legislation, Member States shall take
the necessary measures to ensure that the penalties referred to
in Article 4 can be reduced if the offender has supplied the
competent authorities with valuable information for
the
enquiry or the collection of evidence about the identity of
other offenders, or has helped to identify drug-dealing
networks.

Article 7

Liability of legal persons

1. Member States shall
take the necessary measures to
ensure that legal persons can be held liable for the criminal
offences referred to in Articles 2 and 3 where those offences
are committed for their benefit by any person acting indi-
vidually or as a member of an organ of the legal person in
question who has:

(e)

temporary or permanent closure of establishments used for
committing the offence;

(f)

the confiscation of property that was the object of the
offence and the proceeds and advantages derived directly
or indirectly from the offence.

Article 9

Jurisdiction and prosecution

1. Member States shall
take the necessary measures to
establish their jurisdiction as regards the offences referred to
in Articles 2 and 3 where:

(a) the offence was committed entirely or partly within their

territory;

(a) a power of representation of the legal person, or

(b) the offender is one of their nationals;

(b) an authority to take decisions on behalf of the legal person,

or

(c)

the offence was committed for the benefit of a legal person
established in their territory.

(c) an authority to exercise control within the legal person.

2. Member States shall
take the necessary measures to
ensure that a legal person can be held liable where the lack
of supervision or control by that legal person made possible
the commission of an offence referred to in Article 2 or 3 by
an employee or subordinate for the benefit of that legal person.

The liability of the legal person pursuant to paragraphs 1
3.
and 2 shall not exclude the criminal
liability of the natural
persons who committed, or incited or aided and abetted the
commission of, the offences referred to in Articles 2 and 3.

Article 8

Penalties for legal persons

Member States shall take the necessary measures to ensure that
any legal person found to be liable pursuant to Article 7(1) and
(2) are subject
to effective, proportionate and dissuasive
sanctions, including fines and other penalties, such as:

(a) exclusion from entitlement to tax relief or other benefits or

public aid;

(b) temporary or permanent disqualification from the pursuit

of commercial activities;

(c) placement under judicial supervision;

2. Member States may decide not to apply or to apply only
in specific cases or circumstances the rules on jurisdiction set
out in paragraph 1(b) and (c), if the offence in question was
committed outside their territory.

The Member States shall inform the General Secretariat of the
Council and the Commission of their decision to apply the first
subparagraph, where necessary indicating the specific cases or
circumstances in which the decision will apply.

3. Member States which, by virtue of their legislation, do
not extradite their nationals, shall take the necessary measures
to enable them to establish their jurisdiction in respect of the
offences referred to in Articles 2 and 3, where these are
committed by one of their nationals outside their territory.

Article 10

Cooperation between Member States

In accordance with the conventions, bilateral and multi-
1.
lateral agreements and other arrangements
the
Member States shall lend each other every possible assistance
in the procedures relating to the offences referred to in Articles
2 and 3.

in force,

2.
If several Member States have jurisdiction over an offence
referred to in Article 2 or 3, they shall consult one another
with a view to coordinating their action and, where appro-
priate, to bringing a prosecution. They shall make full use of
judicial cooperation and other mechanisms.

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Article 11

Implementation and reports

1. Member States shall
take the necessary measures to
comply with this framework decision by 30 June 2003 at
the latest.

They shall immediately send the Commission and the General
Secretariat of the Council the text of the provisions transposing
the obligations
framework
decision.

imposed upon them by this

shall

2. Member States
Commission on the
decision for the first
latest, and every five years thereafter.

submit a brief

report

implementation of
time by 31 December 2006 at

this

to the
framework
the

On the basis of the information referred to in paragraphs
3.
1 and 2, the Commission shall draw up a report evaluating the
application of the provisions of this framework decision by the
Member States for the first time by 30 June 2007 at the latest,
and every five years thereafter. This report shall be sent to the
European Parliament and to the Council, where necessary
accompanied by proposals
this
for
framework decision.

amendment of

the

Article 12

Entry into force

This framework decision shall enter into force on the twentieth
day following that of its publication in the Official Journal of the
European Communities.