Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision concerning the prevention and control of trafficking in human organs and tissues
Date: 2003-04-26
Institutions: Greece
Subjects: Greece, human rights, illicit trade, organ transplantation, trade in organs

26.4.2003

EN

Official Journal of the European Union

C 100/27

2. Member States shall transmit by the date referred to in
paragraph 1 at the latest 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 under this Framework Decision.

3.
On the basis of this information the Commission shall
submit before [. . .] a report to the European Parliament and
the Council on the application of this Framework Decision,
accompanied where necessary by legislative proposals.

The Council

4.
the measures
adopted by the Member States in order to comply with the
provisions of this Framework Decision.

shall assess before [. . .]

Article 9

Repeal

Articles 54 to 58 of the 1990 Schengen Convention shall be
repealed upon the entry into force of this Framework Decision.

Where a Member State transposes this Framework Decision
before that date, pursuant to Article 8(1), the provisions in
question shall cease to apply to the Member State concerned
from the date of transposition.

Article 10

Entry into force

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

Done at Brussels, . . .

For the Council

The President

. . .

Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision
concerning the prevention and control of trafficking in human organs and tissues

(2003/C 100/13)

THE COUNCIL OF THE EUROPEAN UNION,

in human beings, including common definitions, incrimi-
nations and sanctions.

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

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

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

Whereas:

(1) The Action Plan of the Council and the Commission on
how best to implement the provisions of the Treaty of
Amsterdam on an area of freedom, security and justice (3),
the Tampere European Council on 15 and 16 October
1999 and the Santa Maria da Feira European Council
on 19 and 20 June 2000, as listed in the scoreboard,
indicate or call for legislative action against trafficking

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

(2) Trafficking in human organs and tissues is a form of
trafficking in human beings, which comprises serious
violations of fundamental human rights and, in particular,
of human dignity and physical integrity. Such trafficking
is an area of activity of organised criminal groups who
often have recourse to inadmissible practices such as the
abuse of vulnerable persons and the use of violence and
threats. In addition, it gives rise to serious risks to public
health and infringes on the right of citizens to equal
access to health services. Finally, it undermines citizens'
confidence in the legitimate transplantation system.

relating

(3) Opposition to the sale of the human body and its parts
has been addressed repeatedly by many international
organisations and has been the subject of regulation by
international conventions. As early as 1978, the Council
of Europe in its Decision (78)29 on harmonisation of
legislation of Member
to removal,
States
grafting and transplantation of human substances, which
was adopted by the Committee of Ministers of the Council
of Europe on 11 May 1978, declared that no human
substance may be offered for profit. This declaration
the third Conference of European
was confirmed at
Health Ministers, which was held in Paris on 16 and 17
November 1987, the final statement of which stressed
that a human organ may not be offered for profit by
any organ exchange body, organ storage centre or any
other organisation or private individual.

C 100/28

EN

Official Journal of the European Union

26.4.2003

(4) An important step in the attempt to combat trafficking in
human organs and tissues and, more generally, as regards
opposition to the sale of the human body and its parts is
the Convention of the Council of Europe on human rights
and biomedicine which was signed in Oviedo on 4 April
1997 and came into force on 1 December 1999. Article
21 of this Convention contains a prohibition on drawing
financial gain from the human body and its parts. Article
25 requires the signatory States to make provision for
sanctions, not necessarily of a penal nature, against
anyone who infringes the provisions of the Convention.
To this Convention was annexed an Additional Protocol
concerning transplantation of organs and tissues of
human origin, which was drawn up on 24 January
2002, but has not entered into force to date. In Article
21 of
the
human body and its parts may not give rise to financial
gain or comparable advantage. It also prohibits any adver-
tising of the need for, or availability of, organs or tissues,
with a view to offering or seeking financial gain or
comparable advantage. Article 22 of
the Additional
Protocol lays down the obligation to prohibit organ and
tissue trafficking.

the Additional Protocol

is specified that

it

(5) Trafficking in human organs and tissues has also been
condemned repeatedly by the World Health Organisation
(WHO). It was first condemned in Resolution WHA 40.13
of May 1987. Furthermore, Resolution WHA 42.5 of May
1989 condemned the purchase and sale of human organs
and, pointing to the lack of success in preventing the
phenomenon,
to
called on the national
intensify their efforts. Resolution WHA 44.25 of May
1991 declared that no organ should be removed from
the bodies of minors save in exceptional cases, considered
the advertising of human organs against payment to be
prohibited and introduced the principle of equality as
regards organ donations.

legislators

(9) It is necessary that the serious criminal offence of traf-
ficking in human organs and tissues be addressed not only
through individual action by each Member State but by a
comprehensive approach, of which the definition of the
the Member
the offence, common to all
elements of
States,
dissuasive
proportionate
effective,
and
penalties should form an integral part.

and

(10) Since the above objectives of the Framework Decision
cannot be sufficiently achieved by the Member States
and can therefore be better achieved at Union level, the
Union may adopt measures,
in accordance with the
In accordance with the
principle
this Framework Decision
principle of proportionality,
does not go beyond what
to
is necessary in order
achieve those objectives.

subsidiarity.

of

(11) It

for

already

adopted

the
such as Council

is necessary to introduce penalties on perpetrators
sufficiently severe to allow for
trafficking in human
organs and tissues to be included within the scope of
of
instruments
Joint
combating organised crime,
Action 98/699/JHA of 3 December 1998 on money laun-
dering,
freezing, seizing and
confiscation of instrumentalities and the proceeds from
crime (2) and Council
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 (3),

the identification,

purpose

tracing,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

For the purposes of this Framework Decision:

(6) The Protocol to prevent, suppress and punish trafficking
in persons, especially women and children, supplementing
the United Nations Convention against Transnational
Organised Crime, includes the removal of human organs
in the definition of exploitation, which characterises traf-
ficking in persons. This Protocol represents a decisive step
towards international cooperation to combat trafficking in
human organs.

1. the term ‘transplantation’ covers the complete process of
removal of an organ or tissue from one person and implan-
tation of that organ or tissue into another person, including
procedures for preparation, preservation and storage;

2. the term ‘tissues’ also covers cells, including haematopoietic

stem cells;

(7) Nevertheless,

the recent Council Framework Decision
2002/629/EC of 19 July 2002 on combating trafficking
in human beings (1) did not include trafficking in human
organs.

(8) The important work performed by international organi-
sations, especially the UN, the World Health Organisation
and the Council of Europe, should be complemented by
that of the European Union.

(1) OJ L 203, 1.8.2002, p. 1.

3. the term ‘human organs and tissues’ does not cover:

(a) reproductive organs and tissues;

(b) embryonic organs and tissues;

(c) blood and blood derivatives;

(2) OJ L 333, 9.12.1998, p. 1.

Joint Action as last amended by

Framework Decision.

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

26.4.2003

EN

Official Journal of the European Union

C 100/29

4. The term ‘minor’ shall mean anyone of less than 18 years of

Article 3

age.

Article 2

Offences concerning trafficking in human organs

Each Member State shall take the necessary measures to ensure
that the following acts are punishable:

1. the recruitment,

transfer, harbouring or
reception of a person, including any exchange or transfer
of control over that person, where

transportation,

(a) use is made of force or threats, including abduction; or

(b) use is made of fraudulent means; or

(c) there is an abuse of authority or of a position of vul-
nerability which is such that the person concerned has
no real or reasonable possibility of avoiding such abuse;
or

(d) payments, or benefits are given or received in order to
obtain the consent of a person having control over
another person with the aim of removal of an organ
or tissues from the latter;

2.

(a) the removal of an organ from a living donor effected

using force, threats or fraud;

(b) the removal of an organ from a donor who has
consented thereto further to the payment or promise
of financial consideration;

(c) the

or

offer

payment,

financial
consideration, directly or via third parties, to a donor
in order to obtain his consent to the removal of an
organ;

promise

of

a

(d) the receipt of or demand for financial consideration by a
donor or a third party so that the donor will agree to
the removal of an organ;

(e) action as an intermediary in carrying out any of the acts

set out in points (a), (b), (c) and (d);

(f) the demand for, receipt, payment, offer or promise of
financial consideration with the aim of offering or
acquiring or, more generally,
trafficking in human
organs and tissues;

3.

(a) the purchase, possession, storage,

import,
transfer of possession of human organs
in

the acts set out

transport,

export or
removed by means of one of
paragraphs 1 and 2;

(b) participation by medical or nursing staff in the trans-
plantation of an organ in the knowledge that it has been
the object of one of the abovementioned acts.

Instigation, aiding and abetting or attempt

Each State shall take the necessary measures to ensure that the
instigation of, aiding and abetting or attempt to commit an
offence referred to in Article 2 is punishable.

Article 4

Penalties

Each Member State shall take the necessary measures to ensure
that an offence referred to in Articles 2 and 3 is punishable by
effective, proportionate and dissuasive criminal penalties, which
may entail extradition.

Each Member State shall take the necessary measures to ensure
that an offence referred to in Article 2 is punishable by terms
of imprisonment with a maximum penalty that is not less than
ten years where it has been committed in any of the following
circumstances:

(a) the offence has deliberately or by gross negligence

endangered the life of the victim;

(b) the offence has been committed against a minor;

(c)

the offence has caused further serious physical harm to the
victim;

(d) the offence has been committed within the framework of a
Joint Action
as
referred to

defined
from the penalty level

organisation

in

criminal
98/733/JHA, apart
therein.

Article 5

Liability of legal persons

1.
Each Member State shall take the necessary measures to
ensure that legal persons can be held liable for an offence
referred to in Articles 2 and 3, 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) a power of representation of the legal person; or

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

or

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

2.
Apart from the cases provided for in paragraph 1 of this
Article, each Member State shall take the necessary measures to
ensure that legal persons can be held liable where the lack of
supervision or control by a person referred to in the said
paragraph 1 have rendered possible the commission of an
offence referred to in Articles 2 and 3 for the benefit of that
legal person by a person under its authority.

C 100/30

EN

Official Journal of the European Union

26.4.2003

Liability of legal persons under paragraphs 1 and 2 of
3.
this Article shall not exclude the punishment of persons who
are perpetrators,
in an offence
instigators or accessories
referred to in Articles 2 and 3.

4.
For the purposes of this Framework Decision, the term
‘legal person’ shall mean any entity having such status under
the applicable law, except for States or other public bodies in
the exercise of State authority and for public international
organisations.

Article 6

Penalties against legal persons

Each Member State shall take the necessary measures to ensure
that a legal person held liable pursuant
to Article 5 is
punishable by effective, proportionate and dissuasive penalties,
which shall include criminal or non-criminal fines, and may
include other penalties such as:

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

(b) temporary or permanent disqualification from the practice

of commercial activities; or

(c) placing under judicial supervision;

(d) a judicial winding-up order; or

(a) the offence is committed in whole or in part within its

territory;

(b) the perpetrator is one of its nationals; or

(c)

the offence is committed for the benefit of a legal person
established in its territory.

Article 8

Implementation

1. Member States shall
comply with the provisions of
before [. . .].

take the necessary measures to
this Framework Decision

2.
Before the date referred to in paragraph 1, the 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 under
this Framework Decision.

Before [. . .], on the basis of a report established on the
from the
to which
this

3.
basis of
Commission,
Member States have complied with the provisions of
Framework Decision.

this information and a written report
the Council shall assess the extent

Article 9

Entry into force

(e) temporary or permanent closure of establishments which

have been used for committing the offence.

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

Article 7

Jurisdiction and prosecution

Done at Brussels, . . .

Each Member State shall
establish its
Articles 2 and 3 where:

jurisdiction over

take the necessary measures to
referred to in

the offences

For the Council

The President

. . .