Proposal for a Council framework Decision on the fight against organised crime
Date: 2005-01-19
Institutions: European Commission
Subjects: area of freedom, security and justice, criminal liability, fight against crime, organised crime, penalty

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 19.1.2005 
COM(2005) 6 final 

2005/0003 (CNS) 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

on the fight against organised crime 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

In  the  past  decade,  organised  crime  groups  have  built  up  large-scale  international  networks 
and  amassed  substantial  profits.  Fortunes  have  been  accumulated  from  illicit  trafficking  in 
drugs, trafficking in human beings, in particular women and children, trafficking in weapons 
and  ammunition,  counterfeit  products  and  piracy,  and  international  fraud  generally1. 
Enormous amounts of capital derived from these crimes are laundered and re-injected into the 
economy. Organised crime has therefore expanded considerably. 

The European Union has taken the lead in the fight against organised crime since the Treaty 
of Amsterdam and the Amsterdam European Council of 16 and 17 June 1997, which adopted 
the first action plan to combat organised crime. 

In  1998,  the  Council  adopted  a  Joint  Action  on  participation  in  a  criminal  organisation2. 
However,  it  is  now  necessary  to  provide  the  Union  with  a  more  powerful  and  ambitious 
instrument  to  approximate  more  closely  Member  States’  criminal  legislation  and  improve 
cooperation  in  order  to  combat  organised  crime  more  effectively,  inter  alia  by  harmonising 
the minimum thresholds of criminal penalties. 

The European Council, meeting in Vienna in December 1998, already called for the Union to 
strengthen EU action against organised crime in the light of the new possibilities opened up 
by the Amsterdam Treaty. 

Point  6  of  the  Tampere  European  Council  conclusions  of  15  and  16  October  1999  states: 
“People  have  the  right  to  expect  the  Union  to  address  the  threat  to  their  freedom  and  legal 
rights posed by serious crime. To counter these threats a common effort is needed to prevent 
and  fight  crime  and  criminal  organisations  throughout  the  Union.”  Point  40  adds:  “The 
European Council is deeply committed to reinforcing the fight against serious organised and 
transnational crime.” 

In addition, the European Union strategy for the prevention and control of organised crime for 
the  beginning  of  the  new  millennium  states  that  organised  criminal  activity  is  dynamic  by 
nature. It need not be confined to rigid structures. It has shown itself to have the capacity to be 
entrepreneurial, business-like and highly flexible in responding to changing market forces and 
situations.  Organised  criminal  groups  are  generally  not  confined  by  national  borders.  They 
often  form  partnerships  within  and  outside  the  territory  of  the  European  Union,  either  with 
individuals or with other networks for the commission of one-off or multiple offences. These 
groups appear to be increasingly involved now in the licit as well as the illicit market, using 
non-criminal  business  specialists  and  structures  to  assist  them  in  their  criminal  activities. 
Moreover,  they  are  taking  advantage  of  the  free  movement  of  capital,  goods,  persons  and 
services  across  the  European  Union.  As  a  result  of  the  increased  sophistication  of  many 
organised  criminal  groups,  they  are  able  to  utilise  legal  loopholes  and  differences  between 
Member  States,  exploiting  the  anomalies  in  the  various  systems.  Although  the  threat  from 

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It is difficult, however, to measure organised crime precisely as Member States do not systematically 
publish figures on the basis of common definitions. 
OJ L 351, 29.12.1998, p.1. A criminal organisation is defined as “a structured association, established 
over a period of time, of more than two persons, acting in concert with a view to committing offences 
which are punishable by deprivation of liberty or a detention order of a maximum of at least four years 
or  a  more  serious  penalty,  whether  such  offences  are  an  end  in  themselves  or  a  means  of  obtaining 
material benefits and, where appropriate, of improperly influencing the operation of public authorities”. 

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organised crime groups outside the territory of the European Union appears to be increasing, 
it is the groups which originate in and operate throughout Europe, composed predominantly 
of  EU  nationals  and  residents,  that  appear  to  pose  the  significantly  greater  threat.  These 
groups  are  strengthening  their  international  criminal  contacts  and  targeting  the  social  and 
business  structure  of  European  society,  for  example  through  money  laundering,  drug 
trafficking and economic crime. They appear to be able to operate easily and effectively both 
within  the  European  area  and  elsewhere  in  the  world,  responding  to  illegal  demand  by 
acquiring  and  supplying  commodities  and  services  ranging  from  drugs  and  arms  to  stolen 
vehicles and money laundering. Their concerted efforts to influence and hamper the work of 
law  enforcement  and  the  judicial  system  illustrate  the  extent  and  professional  capability  of 
these criminal organisations. This situation requires an energetic and coordinated response by 
all the Member States. 

Lastly, in its Communication of 29 March 2004 on measures to be taken to combat terrorism 
and other forms of serious crime3, the Commission considered that the facilities available for 
combating crime in the EU should be reinforced. It stated that it would draw up a framework 
decision to replace Joint Action 98/733/JHA which should in particular: 

–  harmonise  effectively  the  definition  of  offences  and  penalties  as  regards  individuals  and 

legal persons; 

–  provide for a specific offence of “directing a criminal organisation"; 

–  where necessary, determine specific aggravating circumstances (commission of an offence 
in  association  with  a  criminal  organisation)  and  mitigating  circumstances  (reduced 
penalties available for those who assist the police with their inquiries); 

–  include  provisions  to  facilitate  cooperation  between  judicial  authorities  and  coordinate 

their activities. 

Reformatting  the  Joint  Action  on  membership  of  a  criminal  organisation  into  a  framework 
decision will make it possible to take a similar approach to criminal groups, whether they are 
terrorist organisations or organised crime. 

The new text also takes account of parameters that have changed since 1998: 

–  the Treaty of Amsterdam, which succeeded the Maastricht Treaty, introduced new types of 
legal instruments, more effective than the “joint action”; the framework decision is now the 
proper instrument for approximating criminal law in the Union in this area; 

–  the  United  Nations  Convention  against  Transnational  Organised  Crime,  known  as  the 
"Palermo  Convention"4,  now  provides  an  international  framework  which  details  the 
offences connected with participation in an organised criminal group; the Convention was 
approved by the European Community on 21 May 2004; 

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COM(2004) 221 final. 
United  Nations  Convention  Against  Transnational  Organised  Crime  adopted  by  Resolution 
A/RES/55/25  of  15  November  2000  at  the  55th  UN  General  Assembly.  The  40th  instrument  of 
ratification  was  deposited  with  the  Secretariat-General  of  the  United  Nations  on  1  July  2003;  it 
accordingly came into force on 29 September 2003. 

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–  Framework  Decision  2002/475/JHA  of  13  June  2002  on  combating  terrorism5  is  a 
reference point which must be taken into account; it defines a "terrorist group" on the basis 
of the definition of "criminal organisation" in Joint Action 1998/733/JHA, but it is a more 
comprehensive instrument6. 

Article 1 (Definitions) 

The  first  paragraph  of  Article  1  partly  takes  over  the  definition  of  "criminal  organisation" 
from the first paragraph of Article 1 of Joint Action 98/733/JHA.  

It means a structured association, established over a period of time, of more than two persons, 
acting in concert with a view to committing offences which are punishable by deprivation of 
liberty or a detention order of a maximum of at least four years or by a more serious penalty.  

As  specified  in  the  United  Nations  Convention  against  Organised  Transnational  Crime,  the 
objective of the organisation is to obtain financial or other material benefits. The idea that the 
offence of participating in an organised criminal group assumes that the aim is to commit a 
"serious  offence"  is  maintained.  The  criterion  selected,  as  in  the  Joint  Action,  is  that  of  an 
offence punishable by deprivation of liberty for a period of at least four years or by a more 
serious penalty. 

This  method  is  judged  preferable  to  drawing  up  a  list  of  specific  offences.  The  four-year 
threshold  also  corresponds  to  the  one  used  by  the  United  Nations  Convention  against 
Organised Transnational Crime. Likewise, the objective of the organisation, which is to obtain 
financial or other material benefits, corresponds to the criteria of the UN Convention.  

Under  Article  2(b)  of  that  Convention,  “serious  offence”  means  “conduct  constituting  an 
offence  punishable  by  a  maximum  deprivation  of  liberty  of  at  least  four  years  or  a  more 
serious penalty”. 

For  the  rest,  it  has  not  been  felt  useful  to  take  over  in  this  Framework  Decision  the  second 
paragraph of Article 1 of the Joint Action relating to offences for which Europol is competent, 

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OJ L 164, 22.6.2002, p. 3. 
The  Framework  Decision  2002/475/JHA  makes  punishable  the  direction  of  a  terrorist  group  and 
different  forms  of  participation  in  the  activities  of  a  terrorist  group  (by  supplying  information  or 
material  resources,  or  by  funding  its  activities  in  any  way,  with  knowledge  of  the  fact  that  such 
participation will contribute to the criminal activities of the terrorist group); it also provides for inciting, 
aiding  or  abetting,  and  in  most  cases  attempting  these  offences.  Regarding  penalties,  it  introduces  a 
principle  of  "aggravating  circumstance"  by  providing  that  "terrorist  offences"  and  certain  offences 
linked  to  terrorism  must  be  punishable  by  custodial  sentences  heavier  than  those  imposable  under 
national  law  for  such  offences  in  the  absence  of  a  terrorist  intent;  it  sets  the  minimum  level  of  the 
maximum penalty at 15 years for directing a terrorist group and 8 years for participation in a terrorist 
group;  it  enumerates  a  series  of  penalties  that  can  be  imposed  on  bodies  corporate  (in  particular 
exclusion from entitlement to public benefits or aid, temporary or permanent disqualification from the 
practice  of  commercial  activities,  placing  under  judicial  supervision,  judicial  winding-up  order  and 
closure of establishments); it provides for a system of "repentis" by providing for specific circumstances 
in which Member States may reduce prison sentences where the terrorist renounces terrorist activity and 
provides  the  administrative  or  judicial  authorities  with  information.  And  it  establishes  rules  of 
jurisdiction  and  provides  for  measures  to  facilitate  coordination  between  Member  States  and  the 
centralisation of prosecutions. 

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since  the  prison  sentence  threshold  also  applies  to  these  offences.  It  seems  necessary  to 
maintain this threshold. Abandoning this condition and retaining all the offences referred to in 
the  Europol  Convention  would  considerably  enlarge  the  concept  of  criminal  organisation  at 
the risk of reducing its scope. The concept of criminal organisation must remain connected to 
the concept of serious offence. This is in perfect accordance with the UN Convention against 
Transnational Organised Crime. 

On the other hand, the text takes over the definition of structured association from Article 2 of 
Framework  Decision  2002/475/JHA.  A  “structured  association”  is  an  association  that  is  not 
formed on an ad hoc basis for the immediate commission of an offence. 

Article 2 (Offences relating to participation in a criminal organisation) 

Article  2  imposes  on  the  Member  States  an  obligation  to  define  offences  consisting  of  the 
various forms of participation in a criminal organisation.  

It creates offences of certain forms of participation not expressly provided for by Joint Action 
98/733/JHA nearly all of which appear, in an identical or similar formulation, in the United 
Nations Convention against Transnational Organised Crime.  

Each  Member  State  will  have  to  take  the  necessary  measures  to  ensure  that  directing  a 
criminal organisation is made a punishable offence. Each Member State must also define as 
an  offence  conduct  by  any  person  who,  with  intent,  actively  takes  part  in  the  organisation's 
criminal  activities  or  in  other  activities  of  the  organisation,  including  the  provision  of 
information or material means, the recruitment of new members and all forms of financing of 
its  activities,  knowing  that  such  participation  will  contribute  to  the  achievement  of  the 
organisation's criminal activities. 

Article 3 (Penalties) 

Article 3 concerns penalties. It aims to create an effective approximation of penal legislation 
within the Union.  

Unlike  the  Joint  Action,  which  only  required  the  Member  States  to  provide  for  effective, 
proportional  and  dissuasive  criminal  penalties,  it  is  now  necessary  to  go  further  and  set 
minimum thresholds for prison sentences, to reflect the degree of participation in the criminal 
organisation. 

Paragraph 1 sets the minimum penalty incurred for offences connected with participation in a 
criminal organisation in accordance with the “minimum maximum” method used hitherto in 
framework  decisions.  For  directing  a  criminal  organisation,  the  maximum  term  of 
imprisonment  may  not  be  less  than  ten  years.  For  other  offences,  the  maximum  term  of 
imprisonment may not be less than five years.  

Paragraph  2  provides  for  more  severe  penalties  for  certain  offences  committed  within  an 
organised criminalstructure. 

It  is  designed  to  cover  acts  actually  consisting  of  the  commission  of  offences  rather  than 
various  other  acts  such  as  creating  or  directing  the  organisation,  recruitment,  material  or 
financial  assistance.  The  aim  is  to  provide  for  more  severe  penalties  for  serious  offences 

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where  they  are  committed  in  the  context  of  a  structured  association  acting  in  concert.  It 
highlights the particularly dangerous nature of offences committed in such circumstances. 

Hence provision is made for Member States to take the necessary measures to ensure that the 
offences referred to in Article 1, where they involve participation in a criminal organisation, 
incur longer terms of imprisonment than are provided for by national law  for such  offences 
when committed outside the framework of a criminal organisation, except where the penalties 
are already the maximum terms provided for by national law (paragraph 1). 

This is a type of aggravating circumstance which consists of taking into account in sentencing 
for a serious offence the specific risk of individuals acting in a mafia-type or other criminal 
organisation.  

Such  an  approach  is  also  present  in  Framework  Decision  2002/475/JHA  on  combating 
terrorism  but,  in  the  case  of  terrorism,  the  penalty  is  increased  for  a  given  list  of  offences 
whereas, in the present case, the aggravating circumstance applies to all offences where the 
term of imprisonment incurred is at least four years. 

Article 4 (Special circumstances) 

Article  4,  which  takes  into  account  the  Council  Resolution  of  20  December  1996  on 
individuals who cooperate with the judicial process in the fight against organised crime, refers 
to mitigating circumstances when the perpetrator of an offence gives up his criminal activities 
and provides the administrative or judicial authorities with useful information.  

The  text  takes  over  Article  6  of  Framework  Decision  2002/475/JHA,  which  introduces 
measures  to  strengthen  cooperation  with  the  law  enforcement  authorities  as  provided  by 
Article 26 of the United Nations Convention against Transnational Organised Crime. 

In addition, Recommendation 25 of the European Union strategy for the beginning of the new 
millennium for the prevention and the control of organised crime (2000/C124/01) calls for the 
preparation of an instrument relating to persons who participate or who have participated in 
criminal  organisations,  and  who  are  prepared  to  cooperate  with  the  judicial  process  by 
supplying  information  useful  for  investigative  and  evidentiary  purposes  or  by  providing 
information  that  may  contribute  to  depriving  criminal  organisations  of  their  resources  or  of 
the proceeds of crime. The proposal should consider the possibility, in appropriate cases, of 
mitigating  punishment  of  an  accused  person  who  provides  substantial  cooperation  in  such 
cases. 

Article 5 (Liability of legal persons) 

In  accordance  with  the  approach  followed  by  a  number  of  legal  instruments  adopted  by  the 
EU  to  combat  various  forms  of  crime,  situations  where  legal  persons  are  involved  in 
organised  crime  should  also  be  covered.  To  this  end,  Recommendation  9  of  the  European 
Union strategy for the beginning of the new millennium for the prevention and the control of 
organised crime states that the Commission is invited to prepare a proposal for an instrument 
on  the  criminal,  civil  or  administrative  liability  of  legal  persons  where  the  legal  person  has 
been involved in organised crime. 

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Article 5 accordingly contains provisions making it possible for legal persons to be held liable 
for the offences or conduct referred to in Article 2, where the offences are committed or the 
conduct effected on their behalf by any person, acting either individually, or as a member of 
an organ of the legal person, who exercises de facto or de jure managerial authority. The term 
liability should be construed so as to include either criminal or civil liability. 

In addition, according to standard practice, paragraph 2 provides that a legal person can also 
be  held  liable  when  the  lack  of  supervision  or  control  by  a  person  in  a  position  to  exercise 
control,  has  rendered  possible  the  commission  of  the  offences  for  its  benefit.  Paragraph  3 
indicates  that  legal  proceedings  against  a  legal  person  do  not  preclude  parallel  legal 
proceedings against a natural person. 

This Article takes over Article 7 of Framework Decision 2002/475/JHA and not Article 3 of 
Joint  Action  98/733/JHA  in  order  to  base  the  rules  for  the  liability  of  legal  persons  on  the 
most recent instrument and to align with the text relating to the fight against terrorism. 

Article 6 (Penalties for legal persons) 

Penalties  must  be  provided  where  legal  persons  are  held  liable  for  the  offences  or  conduct 
referred to in Article 2. It requires effective, proportionate and dissuasive penalties, where the 
minimum obligation is to impose criminal or non-criminal fines.  

Other penalties that typically could apply to legal persons are also indicated. 

This  Article  is  taken  over  from  Article  8  of  Framework  Decision  2002/475/JHA  and  not 
Article 3 of Joint Action 98/733/JHA, for the same reasons as the previous Article. 

Article 7 (Jurisdiction and coordination of prosecutions) 

This is a new Article in relation to Joint Action 98/733/JHA. It takes over certain principles 
from Framework Decision 2002/475/JHA. 

Without regulating all aspects of jurisdiction, the text nevertheless envisages a minimum rule 
whereby  each  Member  State  would  ensure  that  its  jurisdiction  covers  at  least  the  cases  in 
which  any  of  the  offences  referred  to  in  Article  2  was  committed  in  whole  or  in  part  in  its 
territory,  irrespective  of  where  the  criminal  organisation  is  based  or  pursues  its  criminal 
activities. 

If  several  Member  States  have  jurisdiction,  they  must  cooperate  and  consult  each  other  to 
coordinate their action and decide which Member State will prosecute the alleged offenders. 
To this end, they shall, if necessary, have recourse to the services of Eurojust.  

Sequential account shall be taken of the following factors: 

–  the Member State in whose territory the acts were committed; 

–  the Member State of which the offender is a national or resident; 

–  the Member State of origin of the victims; 

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–  the Member State in whose territory the offender was found. 

Article 8 (Protection of and assistance to victims) 

The  European  Union  attaches  particular  importance  to  protecting  and  assisting  victims.  A 
Framework  Decision  was  adopted  by  the  Council  on  15  March  2001  on  the  standing  of 
victims  in  criminal  proceedings.  In  addition,  the  Commission  has  prepared  a  Green  Paper 
concerning compensation to victims of crime. 

In cases involving organised crime, and in particular trafficking in human  beings, provision 
must  be  made  to  ensure  that  a  complaint  or  statement  by  the  victim  is  not  necessary  for 
initiating  prosecution.  There  are  many  cases  where  victims  are  afraid  of  reprisals  by  mafia-
type organisations against themselves or their families.  

This  Article  reflects  Article  25  of  the  United  Nations  Convention  against  Transnational 
Organised Crime, relating to assistance to and protection of victims, and Articles 6 to 8 of the 
Protocol  to  Prevent,  Suppress  and  Punish  Trafficking  in  Persons,  especially  Women  and 
Children. 

This Article is taken over from Article 10 of Framework Decision 2002/475/JHA. 

Article 9 (Repeal of existing provisions) 

This Article repeals Joint Action 98/733/JHA, which is replaced by this Framework Decision, 
and makes consequential changes to the reference to that Joint Action in measures based on 
the Union and EC Treaties. Participation in a criminal organisation within the meaning of this 
Framework  Decision  replaces  references  in  measures  adopted  pursuant  to  Title  VI  of  the 
Treaty on European Union to participation in a criminal organisation within the meaning of 
the Joint Action. 

Article 10 (Implementation and reports) 

Article 10 concerns the implementation and follow-up of this Framework Decision. Paragraph 
1 sets the date by which the Member States must take the measures necessary to comply with 
it. 

Paragraph 2 requires the Member States to transmit by that date to the General Secretariat of 
the  Council  and  to  the  Commission  the  text  of  the  provisions  transposing  the  obligations 
imposed  on  them  under  this  Framework  Decision  into  national  law.  On  this  basis,  the 
Commission  is  then  to  report  to  Parliament  and  the  Council  on  the  implementation  of  the 
Framework Decision. Lastly, the Council must assess whether Member States have taken the 
measures necessary to comply with it. 

Article 11 (entry into force) 

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2005/0003 (CNS) 

Proposal for 

COUNCIL FRAMEWORK DECISION 

on the fight against organised crime 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard  to  the Treaty on European Union, and in particular Articles 29,  31(1)(e) and 
34(2)(b) thereof, 

Having regard to the proposal of the Commission7, 

Having regard to the Opinion of the European Parliament8, 

Whereas: 

(1) 

(2) 

The objective of the The Hague Programme is to improve the shared capacities of the 
Union  and  the  Member  States  for  the  purpose,  among  others,  of  combating 
transnational  organised  crime.  This  objective  is  to  be  pursued  by,  in  particular  the 
approximation  of  legislation9.  There  needs  to  be  closer  cooperation  between  the 
Member States of the European Union in order to counter the dangers and spread of 
criminal  organisations  and  to  respond  effectively  to  citizens'  expectations  and  their 
own requirements. In this respect point 14 of the conclusions of the Brussels European 
Council  of  4  and  5  November  2004  states  that  the  citizens  of  Europe  expect  the 
European Union, while guaranteeing respect for fundamental freedoms and rights, to 
take a more effective, combined approach to cross-border problems such as organised 
crime. 

In its Communication of 29 March 2004 on measures to be taken to combat terrorism 
and  other  forms  of  serious  crime10,  the  Commission  considered  that  the  facilities 
available  for  combating  organised  crime  in  the  EU  needed  to  be  strengthened  and 
stated  that  it  would  draw  up  a  Framework  Decision  to  replace  Joint  Action 
1998/733/JHA on making it a criminal offence to participate in a criminal organisation 
in the Member States of the European Union11. 

(3) 

Point 3.3.2 of the The Hague Programme states that the approximation of substantive 
criminal law serves the same purposes and concerns areas of particular serious crime 
with cross border dimensions and that priority should be given to areas of crime that 

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OJ C [], [], p. []. 
OJ C [], [], p. []. 
Annex 1 to the Conclusions of the Brussels European Council, 4 and 5 November 2004 (Introduction, 
paragraph 6)  
COM(2004) 221 final. 
OJ L 351, 29.12.1998, p.1. 

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are  specifically  mentioned  in  the  treaties.  The  definition  of  offences  relating  to 
participation  in  a  criminal  organisation  should  therefore  be  approximated  in  all  the 
Member States. Moreover, penalties corresponding to the seriousness of these offences 
should  be  envisaged  against  natural  and  legal  persons  who  committed  them  or  are 
responsible for their commission. 

Provision should be made for a specific offence of “directing a criminal organisation”, 
with  provisions  to  facilitate  cooperation  between  the  judicial  authorities  and 
coordination of their action via Eurojust. 

On  15  March  2001  the  Council  adopted  Framework  Decision  2001/221/JHA  on  the 
standing of victims in criminal proceedings12. Since the victims of offences committed 
by  criminal  organisations  are  particularly  vulnerable,  specific  measures  must  be 
adopted in their regard. 

The  Union  must  build  on  the  important  work  done  by  international  organisations,  in 
particular  the  United  Nations  Convention  known  as  the  “Palermo  Convention”13, 
which  was  approved  by  Council  Decision  2004/579/EC  of  29  April  2004  on  the 
conclusion, on behalf of the European Community, of the United Nations Convention 
Against Transnational Organised Crime14. 

Since  the  objectives  of  the  action  to  be  taken  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 principle of subsidiarity as set out in Article 5 
of  the  Treaty.  In  accordance  with  the  principle  of  proportionality,  as  set  out  in  that 
Article,  this  Framework  Decision  does  not  go  beyond  what  is  necessary  to  achieve 
those objectives. 

(4) 

(5) 

(6) 

(7) 

(8) 

This  Framework  Decision  respects  the  fundamental  rights  and  principles  recognised 
by  the  Charter  of  Fundamental  Rights  of  the  European  Union,  and  in  particular 
Articles 6 and 49 thereof, 

HAS ADOPTED THIS FRAMEWORK DECISION: 

Article 1 

Definitions 

For  the  purposes  of  this  Framework  Decision,  “criminal  organisation”  means  a  structured 
association,  established  over  a  period  of  time,  of  more  than  two  persons,  acting  in  concert 
with  a  view  to  committing  offences  which  are  punishable  by  deprivation  of  liberty  or  a 
detention  order  of  a  maximum  of  at  least  four  years  or  a  more  serious  penalty  in  order  to 
obtain, directly or indirectly, a financial or other material benefit.  

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OJ L 82, 22.3.2001, p.1. 
The  United  Nations  Convention  against  Organised  Transnational  Crime  was  adopted  by  Resolution 
A/RES/55/25 of 15 November 2000 at the 55th United Nations General Assembly. The 40th instrument 
of  ratification  was  deposited  with  the  Secretariat-General  of  the  United  Nations  on  1  July  2003;  it 
accordingly came into force on 29 September 2003. 
OJ L 261, 6.8.2004, p. 69. 

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“Structured association” means an association that is not randomly formed for the immediate 
commission  of  an  offence  and  that  does  not  need  to  have  formally  defined  roles  for  its 
members, continuity of its membership or a developed structure. 

Article 2 

Offences relating to participation in a criminal organisation 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  following  are 
regarded as offences: 

(a) 

the fact of directing a criminal organisation; 

(b) 

the  offences 

conduct by any person who, with intent and with knowledge of either 
the  aim  and  general  activity  of  the  organisation  or  its  intention  to 
the 
commit 
takes  part 
organisation's  criminal  activities, 
the  provision  of 
information  or  material  means,  the  recruitment  of  new  members  and 
all forms of financing of its activities, knowing that such participation 
will  contribute  to  the  achievement  of  the  organisation's  criminal 
activities. 

in  question,  actively 
including 

in 

Article 3 

Penalties 

1. 

2. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  offence 
referred to in Article 2(a) incurs a maximum term of imprisonment which is no lower 
than ten years and that the offences referred to in Article 2(b) incur a maximum term 
of imprisonment which is no lower than five years. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  offences 
referred  to  in  Article  1,  where  committed  within  the  framework  of  a  criminal 
organisation,  incur  longer  terms  of  imprisonment  than  are  provided  for  by  national 
law for such offences, except where the penalties provided for are already the longest 
terms of imprisonment provided for by national law. 

Article 4 

Special circumstances 

Each Member State may take the necessary measures to ensure that the penalties referred to in 
Article 3 may be reduced if the offender: 

(a) 

renounces criminal activity, and 

(b) 

provides the administrative or judicial authorities with information which they 
would not otherwise have been able to obtain, helping them to: 

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– 

– 

– 

– 

– 

prevent or mitigate the effects of the offence; 

identify or bring to justice the other offenders; 

find evidence; 

deprive  the  criminal  organisation  of  illicit  resources  or  of  the 
proceeds of its criminal activities; or 

prevent  further  offences  referred  to  in  Article  2  being 
committed. 

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 anyof the offences referred to in Article 2 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 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) 

(3) 

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 the first paragraph has made possible 
the commission of any of the offences referred to in Article 2 for the benefit of that 
legal person by a person under its authority. 

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

Article 6 

Penalties for 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; 

(b) 

temporary  or  permanent  disqualification  from  the  practice  of  commercial 
activities; 

(c) 

placing under judicial supervision; 

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(d) 

a judicial winding-up order; 

(e) 

temporary  or  permanent  closure  of  establishments  which  have  been  used  for 
committing the offence. 

Article 7 

Jurisdiction and coordination of prosecutions 

Each Member State shall ensure that its jurisdiction covers at least the cases in which any of 
the  offences  referred  to  in  Article  2  was  committed  in  whole  or  in  part  in  its  territory, 
wherever the criminal organisation is based or pursues its criminal activities. 

When  an  offence  referred  to  in  Article  2  falls  within  the  jurisdiction  of  more  than  one 
Member State and when any one of the States concerned can validly prosecute on the basis of 
the same facts, the Member States concerned shall cooperate in order to decide which of them 
will prosecute the offenders with the aim, if possible, of centralising proceedings in a single 
Member  State.  To  this  end,  the  Member  States  shall,  if  necessary,  have  recourse  to  the 
services of Eurojust. 

Sequential account shall be taken of the following factors: 

(a) 

the Member State in whose territory the acts were committed; 

(b) 

the Member State of which the offender is a national or resident; 

(c) 

the Member State of origin of the victims; 

(d) 

the Member State in whose territory the offender was found. 

Article 8 

Protection of, and assistance to, victims 

(1)  Member  States  shall  ensure  that  investigations  into,  or  prosecution  of,  offences 
covered by this Framework Decision are not dependent on a report or accusation made 
by a person subjected to the offence, at least if the acts were committed in the territory 
of the Member State. 

(2) 

In addition to the measures laid down in Council Framework Decision 2001/220/JHA 
of 15 March 2001 on the standing of victims in criminal proceedings15, each Member 
State shall, if necessary, take all measures possible to ensure appropriate assistance for 
victims' families. 

15 

OJ L 82, 22.3.2001, p. 1. 

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Article 9 

Repeal of existing provisions 

Joint  Action  98/733/JHA  is  repealed.  References  to  participation  in  a  criminal  organisation 
within the meaning of Joint Action 98/733/JHA in measures adopted pursuant to Title VI of 
the Treaty on European Union and the Treaty establishing the European Community shall be 
construed as references to participation in a criminal organisation within the meaning of this 
Framework Decision. 

Article 10 

Implementation and reports 

(1)  Member  States  shall  take  the  necessary  measures  to  comply  with  this  Framework 

Decision by [ ... ] at the latest. 

(2) 

The Member States shall transmit to the General Secretariat of the Council and to the 
Commission, by [ ... ] at the latest, the provisions transposing into their national law 
the obligations imposed on them by this Framework Decision. The Council, acting on 
the basis of a report established on the basis of this information and a written report 
transmitted by the Commission, shall, by [ ... ] at the latest, assess the extent to which 
Member  States  have  taken  the  necessary  measures  to  comply  with  this  Framework 
Decision. 

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, […] 

For the Council 
The President 

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