Council Framework Decision 2004/757/JHA of 25 october 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking
Date: 2004-10-25
Institutions: Council of the European Union
Subjects: EU law - national law, criminal procedure, drug traffic, penal code, penalty

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

COUNCIL FRAMEWORK DECISION 2004/757/JHA

of 25 october 2004

laying down minimum provisions on the constituent elements of criminal acts and penalties in the
field of illicit drug trafficking

THE COUNCIL OF THE EUROPEAN UNION,

(4)

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

Having regard to the proposal from the Commission (1),

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

Whereas:

(1)

(2)

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
Member States.

stability and security of

The need for legislative action to tackle illicit drug traf-
ficking has been recognised in particular in the Action
Plan of the Council and the Commission on how best to
implement the provisions of the Amsterdam Treaty on
an area of freedom, security and justice (3), adopted by
in Vienna on 3
the Justice and Home Affairs Council
the Tampere
December 1998,
European Council of 15 and 16 October 1999,
in
particular point 48 thereof,
the European Union's
Drugs Strategy (2000-2004) endorsed by 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.

conclusions of

the

(3)

It is necessary to adopt minimum rules relating to the
constituent elements of the offences of illicit trafficking
in drugs and precursors which will allow a common
approach at European Union level to the fight against
such trafficking.

(1) OJ C 304 E, 30.10.2001, p. 172.
(2) Opinion of 9 March 2004 (not yet published in the Official Journal).
(3) OJ C 19, 23.1.1999, p. 1.

By virtue of the principle of subsidiarity, European Union
action should focus on the most serious types of drug
offence. The exclusion of certain types of behaviour as
regards personal consumption from the scope of this
Framework Decision does not constitute a Council
guideline on how Member States
should deal with
these other cases in their national legislation.

(5)

(6)

(7)

(8)

(9)

and dissuasive,

Penalties provided for by the Member States should be
effective, proportionate
and include
custodial sentences. To determine the level of penalties,
factual elements such as the quantities and the type of
drugs trafficked, and whether the offence was committed
within the framework of a criminal organisation, should
be taken into account.

Member States should be allowed to make provision for
reducing the penalties when the offender has supplied the
competent authorities with valuable information.

It is necessary to take measures to enable the confiscation
the offences referred to in this
the proceeds of
of
Framework Decision.

Measures should be taken to ensure that legal persons
can be held liable for the criminal offences referred to by
this Framework Decision which are committed for their
benefit.

The effectiveness of the efforts made to tackle illicit drug
trafficking depends essentially on the harmonisation of
the national measures
implementing this Framework
Decision,

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HAS DECIDED AS FOLLOWS:

Article 1

Definitions

For the purposes of this Framework Decision:

1.

‘drugs’: shall mean any of the substances covered by the
following United Nations Conventions:

(a)

the 1961 Single Convention on Narcotic Drugs (as
amended by the 1972 Protocol);

(b) the

1971

Vienna

Convention

Psychotropic
Substances. It shall also include the substances subject
to controls under Joint Action 97/396/JHA of 16 June
risk
1997 concerning
assessment and the control of new synthetic drugs (1);

information

exchange

the

on

2.

‘precursors’: shall mean any substance scheduled in the
Community legislation giving effect
to the obligations
deriving from Article 12 of the United Nations Convention
against
Illicit Traffic in Narcotic Drugs and Psychotropic
Substances of 20 December 1988;

(d) the manufacture,
knowing that
production or manufacture of drugs.

transport or distribution of precursors,
they are to be used in or for the illicit

2.
The conduct described in paragraph 1 shall not be
included in the scope of this Framework Decision when it is
committed by its perpetrators exclusively for their own personal
consumption as defined by national law.

Article 3

Incitement, aiding and abetting and attempt

1.
Each Member State shall take the necessary measures to
make incitement to commit, aiding and abetting or attempting
one of the offences referred to in Article 2 a criminal offence.

2.
A Member State may exempt from criminal liability the
attempt to offer or prepare drugs referred to in Article 2(1)(a)
and the attempt to possess drugs referred to in Article 2(1)(c).

Article 4

Penalties

3.

‘legal person’: shall mean any legal entity having such status
under the applicable national law, except for States or other
public bodies acting in the exercise of their sovereign rights
and for public international organisations.

Each Member State shall take the measures necessary to
1.
ensure that
the offences defined in Articles 2 and 3 are
punishable by effective, proportionate and dissuasive criminal
penalties.

Article 2

Crimes linked to trafficking in drugs and precursors

1.
Each Member State shall take the necessary measures to
ensure that the following intentional conduct when committed
without right is punishable:

Each Member State shall take the necessary measures to ensure
that the offences referred to in Article 2 are punishable by
criminal penalties of a maximum of at least between one and
three years of imprisonment.

(a)

production, manufacture,

preparation,
the
offering, offering for sale, distribution, sale, delivery on
any terms whatsoever, brokerage, dispatch, dispatch in
transit, transport, importation or exportation of drugs;

extraction,

2.
Each Member State shall take the necessary measures to
ensure that the offences referred to in Article 2(1)(a), (b) and (c)
are punishable by criminal penalties of a maximum of at least
between 5 and 10 years of
the
following circumstances:

imprisonment

in each of

(b) the cultivation of opium poppy, coca bush or cannabis

plant;

(a)

the offence involves large quantities of drugs;

(c)

the possession or purchase of drugs with a view to
conducting one of the activities listed in (a);

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

(b) the offence either involves those drugs which cause the
resulted in significant

most harm to health, or has
damage to the health of a number of persons.

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the offences

Each Member State shall take the necessary measures to
3.
ensure that
referred to in paragraph 2 are
punishable by criminal penalties of a maximum of at least 10
years of deprivation of
the offence was
committed within the framework of a criminal organisation
as defined in 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).

liberty, where

Each Member State shall take the necessary measures to
4.
ensure that
the offences referred to in Article 2(1)(d) are
punishable by criminal penalties of a maximum of at least
between 5 and 10 years of deprivation of liberty, where the
offence was committed within the framework of a criminal
organisation as defined in Joint Action 98/733/JHA and the
precursors are intended to be used in or for the production
or manufacture of drugs under the circumstances referred to
in paragraphs 2(a) or (b).

5. Without prejudice to the rights of victims and of other
take the
bona fide third parties, each Member State shall
necessary measures to enable the confiscation of substances
which are the object of offences referred to in Articles 2 and
3,
instrumentalities used or intended to be used for these
offences and proceeds from these offences or the confiscation
of property the value of which corresponds to that of such
proceeds, substances or instrumentalities.

terms

‘confiscation’,

The
and
‘property’ shall have the same meaning as in Article 1 of the
1990 Council of Europe Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime.

‘instrumentalities’,

‘proceeds’

(iii) find evidence, or

(iv) prevent further offences referred to in Articles 2 and 3.

Article 6

Liability of legal persons

1.
Each Member State shall take the necessary measures to
ensure that legal persons can be held liable for any of the
criminal offences referred to in Articles 2 and 3 committed
for their benefit by any person, acting either individually or
as a member of an organ of the legal person in question,
who has a leading position within the legal person, based on
one of the following:

(a) a power of representation of the legal person;

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

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

2.
Apart from the cases provided for in paragraph 1, 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 paragraph 1 has made
possible the commission of any of the offences referred to in
Articles 2 and 3 for the benefit of that legal person by a person
under its authority.

Article 5

Particular circumstances

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

Notwithstanding Article 4, each Member State may take the
necessary measures to ensure that the penalties referred to in
Article 4 may be reduced if the offender:

(a) renounces criminal activity relating to trafficking in drugs

and precursors, and

(b) provides the administrative or judicial authorities with infor-
mation which they would not otherwise have been able to
obtain, helping them to:

(i) prevent or mitigate the effects of the offence,

(ii)

identify or bring to justice the other offenders,

Article 7

Sanctions for legal persons

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

to Article 6(1)

effective,

and

by

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

public aid;

(b) temporary or permanent disqualification from the pursuit of

commercial activities;

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

(c) placing under judicial supervision;

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(d) a judicial winding-up order;

the
paragraph 2, where appropriate with an indication of
specific cases or circumstances in which the decision applies.

(e)

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

(f)

the

in accordance with Article 4(5),
confiscation of
substances which are the object of offences referred to in
Articles 2 and 3, instrumentalities used or intended to be
used for these offences and proceeds from these offences or
the confiscation of property the value of which corresponds
to that of such proceeds, substances or instrumentalities.

2.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 6(2) is
punishable by effective, proportionate and dissuasive sanctions
or measures.

Article 8

Jurisdiction and prosecution

1.
Each Member State shall take the necessary measures to
establish its jurisdiction over the offences referred to in Articles
2 and 3 where:

(a)

the offence is committed in whole or in part within its
territory;

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

(c)

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

2.
A Member State may decide that it will not apply, or that
it will apply only in specific cases or circumstances, the juris-
diction rules set out in paragraphs 1(b) and 1(c) where the
offence is committed outside its territory.

3.
A Member State which, under its laws, does not extradite
its own nationals shall take the necessary measures to establish
its jurisdiction over and to prosecute, where appropriate, an
offence referred to in Articles 2 and 3 when it is committed
by one of its own nationals outside its territory.

4. Member States shall inform the General Secretariat of the
Council and the Commission when they decide to apply

Article 9

Implementation and reports

1. Member States
to
comply with the provisions of this Framework Decision by
12 May 2006.

take the necessary measures

shall

2.
By the deadline referred to in paragraph 1, 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. The Commission shall, by 12 May
2009, submit a report to the European Parliament and to the
Council on the functioning of
the
including its effects on judicial coop-
Framework Decision,
illicit drug trafficking. Following this
eration in the field of
report,
the latest within six
months after
the report, whether Member
States have taken the necessary measures to comply with this
Framework Decision.

the implementation of

shall assess, at

submission of

the Council

Article 10

Territorial application

This Framework Decision shall apply to Gibraltar.

Article 11

Entry into force

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

Done at Luxembourg, 25 October 2004.

For the Council
The President

R. VERDONK