2002/946/JHA: Council framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence
Date: 2002-11-28
Institutions: Council of the European Union
Subjects: exchange of information, extradition, fight against crime, illegal migration, legal person, liability, organised crime, penalty, refugee

5.12.2002

EN

Official Journal of the European Communities

L 328/1

(Acts adopted pursuant to Title VI of the Treaty on European Union)

COUNCIL FRAMEWORK DECISION

of 28 November 2002

on the strengthening of the penal framework to prevent the facilitation of unauthorised entry,
transit and residence

(2002/946/JHA)

THE COUNCIL OF THE EUROPEAN UNION,

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

(5)

This framework Decision supplements other instruments
adopted in order to combat illegal immigration, illegal
employment, trafficking in human beings and the sexual
exploitation of children.

Having regard to the initiative of the French Republic (1),

(6)

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

(3)

the objectives of

One of
the European Union is to
provide citizens with a high level of safety within an
freedom, security and justice by developing
area of
common action among the Member States in the fields
of police and judicial cooperation in criminal matters.

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

To that end it is essential to approximate existing legal
provisions, in particular, on the one hand, the precise
definition of the infringement in question and the cases
of exemption, which is the subject of Council Directive
2002/90/EC of 28 November 2002 defining the facilita-
tion of unauthorised entry, transit and residence (3) and,
on the other hand, minimum rules for penalties, liability
of legal persons and jurisdiction, 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.

As regards Iceland and Norway, this framework Decision
constitutes a development of provisions of the Schengen
acquis within the meaning of the Agreement concluded
by the Council of the European Union and the Republic
of Iceland and the Kingdom of Norway concerning the
association of those two States with the implementation,
application and development of the Schengen acquis (4),
which fall within the area referred to in Article 1(E) of
Council Decision 1999/437/EC of 17 May 1999 on
certain arrangements for the application of that Agree-
ment (5).

(7)

(8)

The United Kingdom is taking part in this framework
Decision in accordance with Article 5 of the Protocol
integrating the Schengen acquis into the framework of
the European Union annexed to the Treaty on European
Union and to the Treaty establishing the European
Community, and Article 8(2) of Council Decision 2000/
365/EC of 29 May 2000 concerning the request of the
United Kingdom of Great Britain and Northern Ireland
to take part in some of the provisions of the Schengen
acquis (6).

Ireland is taking part
in this framework Decision in
accordance with Article 5 of the Protocol integrating the
Schengen acquis into the framework of the European
Union annexed to the Treaty on European Union and to
the Treaty establishing the European Community, and
Article 6(2) of Council Decision 2002/192/EC of 28
February 2002 concerning Ireland's request to take part
in some of the provisions of the Schengen acquis (7),

(1) OJ C 253, 4.9.2000, p. 6.
(2) OJ C 276, 1.10.2001, p. 244.
(3) See page 17 of this Official Journal.

(4) OJ L 176, 10.7.1999, p. 36.
(5) OJ L 176, 10.7.1999, p. 31.
(6) OJ L 131, 1.6.2000, p. 43.
(7) OJ L 64, 7.3.2002, p. 20.

L 328/2

EN

Official Journal of the European Communities

5.12.2002

HAS ADOPTED THIS FRAMEWORK DECISION:

— an authority to exercise control within the legal person.

Article 1

Penalties

1.
Each Member State shall take the measures necessary to
ensure that the infringements defined in Articles 1 and 2 of
Directive 2002/90/EC are punishable by effective, propor-
tionate and dissuasive criminal penalties which may entail
extradition.

2. Where appropriate,
paragraph 1 may be accompanied by the following measures:

the criminal penalties covered in

2.
Apart from the cases already provided for in paragraph 1,
each Member State shall take the necessary measures to ensure
that a legal person can be held liable where the lack of supervi-
sion or control by a person referred to in paragraph 1 has
made possible the commission of the infringements referred to
in Article 1(1) for the benefit of that legal person by a person
under its authority.

3.
Liability of a legal person under paragraphs 1 and 2 shall
not exclude criminal proceedings against natural persons who
are perpetrators or instigators of or accessories in the offences
referred to in paragraph 1.

— confiscation of the means of transport used to commit the

Article 3

offence,

— a prohibition on practising directly or through an inter-
mediary the occupational activity in the exercise of which
the offence was committed,

— deportation.

3.
Each Member State shall take the measures necessary to
ensure that, when committed for financial gain, the infringe-
ments defined in Article 1(1)(a) and, to the extent relevant,
Article 2(a) of Directive 2002/90/EC are punishable by custo-
dial sentences with a maximum sentence of not less than eight
years where they are committed in any of
the following
circumstances:

Sanctions for legal persons

1.
Each Member State shall take the measures necessary to
ensure that a legal person held liable pursuant to Article 2(1) is
punishable by effective, proportionate and dissuasive sanctions,
which shall
include criminal or non-criminal fines and may
include other sanctions such as:

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

(b) temporary or permanent disqualification from the practice

of commercial activities;

(c) placing under judicial supervision;

— the offence was committed as an activity of a criminal orga-

nisation as defined in Joint Action 98/733/JHA (1),

(d) a judicial winding-up order.

— the offence was committed while endangering the lives of

the persons who are the subject of the offence.

4.
If imperative to preserve the coherence of the national
penalty system, the actions defined in paragraph 3 shall be
punishable by custodial sentences with a maximum sentence of
not less than six years, provided that it is among the most
severe maximum sentences available for crimes of comparable
gravity.

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

Article 4

Jurisdiction

Article 2

Liability of legal persons

1.
Each Member State shall take the measures necessary to
ensure that legal persons can be held liable for the infringe-
ments referred to in Article 1(1) and which are committed for
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:

— a power of representation of the legal person,

— an authority to take decisions on behalf of the legal person,

or

(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 infringements
referred to in Article 1(1) and committed

(a) in whole or in part within its territory;

(b) by one of its nationals, or

(c) for the benefit of a legal person established in the territory

of that Member State.

Subject to the provisions of Article 5, any Member State
2.
may decide that it will not apply, or that it will apply only in
specific cases or circumstances, the jurisdiction rule set out in:

— paragraph 1(b),

— paragraph 1(c).

5.12.2002

EN

Official Journal of the European Communities

L 328/3

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

Article 5

Extradition and prosecution

1.

(a) Any Member State which, under its law, does not extra-
dite its own nationals shall take the necessary measures
to establish its
the infringements
jurisdiction over
referred to in Article 1(1) when such infringements are
committed by its own nationals outside its territory.

(b) Each Member State shall, when one of its nationals is
alleged to have committed in another Member State the
infringements referred to in Article 1(1) and it does not
extradite that person to that other Member State solely
on the ground of his nationality, submit the case to its
competent authorities for the purpose of prosecution, if
appropriate.
In order to enable prosecution to take
place, the files, information and exhibits relating to the
offence shall be transmitted in accordance with the
procedures laid down in Article 6(2) of the European
Convention on Extradition of 13 December 1957. The
requesting Member State shall be informed of the prose-
cution initiated and of its outcome.

2.
For the purpose of this Article, a ‘national’ of a Member
State shall be construed in accordance with any declaration
made by that State under Article 6(1)(b) and (c) of
the
European Convention on Extradition, where appropriate as
amended by any declarations made with respect to the Conven-
tion relating to extradition between the Member States of the
European Union (1).

Article 6

International law on refugees

This framework Decision shall apply without prejudice to the
protection afforded refugees and asylum seekers in accordance
with international law on refugees or other international instru-
ments relating to human rights, in particular Member States'
to
compliance with their international obligations pursuant
Articles 31 and 33 of the 1951 Convention relating to the
status of refugees, as amended by the Protocol of New York of
1967.

Article 7

Communication of

information between the Member

States

If a Member State is informed of infringements referred
1.
to in Article 1(1) which are in breach of the law on the entry
and residence of aliens of another Member State, it shall inform
the latter accordingly.

Any Member State which requests another Member State
2.
to prosecute, on the grounds of a breach of its own laws on
the entry and residence of aliens, infringements referred to in
Article 1(1) must specify, by means of an official report or a
certificate from the competent authorities, the provisions of its
law which have been breached.

Article 8

Territorial application

This framework Decision shall apply to Gibraltar.

Article 9

Implementation

1. Member States shall adopt
the measures necessary to
comply with the provisions of this framework Decision before
5 December 2004.

2.
By the same date, Member States shall transmit to the
General Secretariat of the Council and to the Commission the
text of the provisions transposing into their national law the
obligations imposed on them by this framework Decision. On
the basis of a report established using this information by the
Commission, the Council shall, before 5 June 2005, assess the
extent to which Member States have complied with the provi-
sions of this framework Decision.

Article 10

Repeal

The provisions of Article 27(2) and (3) of the 1990 Schengen
Convention shall be repealed as from 5 December 2004.
Where a Member State implements this framework Decision
pursuant to Article 9(1) in advance of that date, the said provi-
sions shall cease to apply to that Member State from the date
of implementation.

Article 11

Entry into force

This framework Decision shall enter into force on the day of its
publication in the Official Journal.

Done at Brussels, 28 November 2002.

For the Council

The President

B. HAARDER

(1) OJ C 313, 23.10.1996, p. 12.