Proposal for a Council framework decision to strengthen the criminal law framework to combat intellectual property offences {SEC(2005)848}
Date: 2005-07-12
Institutions: European Commission
Subjects: criminal law, industrial counterfeiting, industrial property, intellectual property, penalty

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.7.2005 
COM(2005)276 final 

2005/0127(COD) 
2005/0128(CNS) 

Proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

on criminal measures aimed at ensuring the enforcement of intellectual property rights  

Proposal for a  

COUNCIL FRAMEWORK DECISION 

to strengthen the criminal law framework to combat intellectual property offences 

{SEC(2005)848} 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

JUSTIFICATION FOR THE PROPOSAL 

Counterfeiting  and  piracy,  and  infringements  of  intellectual  property  in  general,  are  a 
constantly growing phenomenon which nowadays have an international dimension, since they 
are  a  serious  threat  to  national  economies  and  governments.  The  disparities  between  the 
national  systems  of  penalties,  apart  from  hampering  the  proper  functioning  of  the  internal 
market,  make  it  difficult  to  combat  counterfeiting  and  piracy  effectively.  In  addition  to  the 
economic  and  social  consequences,  counterfeiting  and  piracy  also  pose  problems  for 
consumer  protection,  particularly  when  health  and  safety  are  at  stake.  Increasing  use  of  the 
Internet  enables  pirated  products  to  be  distributed  instantly  around  the  globe.  Finally,  this 
phenomenon  appears  to  be  increasingly  linked  to  organised  crime.  Combating  this 
phenomenon is therefore of vital importance for the Community. Counterfeiting and pirating 
have become lucrative activities in the same way as other large-scale criminal activities such 
as drug trafficking. There are high potential profits to be made without risk of serious legal 
penalties. Additional provisions to strengthen and improve the fight against counterfeiting and 
piracy are therefore necessary to supplement Directive 2004/48/EC of 29 April 2004 on the 
enforcement  of  intellectual  property  rights.  In  addition  to  the  civil  and  administrative 
measures, procedures and remedies provided for in Directive 2004/48/EC, criminal penalties 
also constitute, in appropriate cases, a means of enforcing intellectual property rights1. 

A start was made on harmonisation with the entry into force of the TRIPS agreement which 
lays  down  minimum  provisions  on  means  of  enforcing  trade-related  intellectual  property 
rights.  These  include  the  implementation  of  criminal  procedures  and  criminal  penalties,  but 
there are still major disparities in the legal situation in the Community which do not allow the 
holders  of  intellectual  property  rights  to  benefit  from  an  equivalent  level  of  protection 
throughout the Community. As regards criminal penalties, there are considerable differences, 
particularly as regards the level of punishment laid down by national legislation. 

As regards impact on fundamental rights, it should be emphasised that the direct objective of 
this initiative is to implement Article 17(2) of the Charter of Fundamental Rights which states 
that  “Intellectual  property  shall  be  protected”;  it  does  this  by  approximation  of  legislation 
while  respecting  the  different  legal  traditions  and  systems  of  the  Member  States  as  well  as 
other fundamental rights and principles recognised by the Charter. The level of sentences has 
been  chosen  pursuant  to  the  seriousness  of  the  different  forms  of  wrongful  conduct,  in 
accordance  with  Article  49(3)  of  the  Charter  to  the  effect  that  sentences  should  not  be 
disproportionate to the offence. 

Since  this  objective  may  be  better  achieved  at  Community  level,  the  Community  may  take 
measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 

A framework decision is required to supplement existing provisions as regards matters which 
fall under Title VI of the TEU.  

1 

Recital  28  to  Directive  2004/48/EC  of  29  April  2004  states  that  "in  addition  to  the  civil  and 
administrative measures, procedures and remedies provided for under this Directive, criminal sanctions 
also  constitute,  in  appropriate  cases,  a  means  of  ensuring  the  enforcement  of  intellectual  property 
rights." 

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CONTENT OF THE PROPOSAL 

Article 1 

This  Article  sets  out  the  subject-matter  and  scope  of  the  Directive,  which  concerns  the 
measures necessary to ensure the enforcement of intellectual property rights. As in Directive 
2004/48/EC  on  the  enforcement  of  intellectual  property  rights,  the  expression  “intellectual 
property  rights"  encompasses  all  intellectual  property  rights.  Just  like  Article 17(2)  of  the 
Charter  of  Fundamental  Rights  of  the  European  Union,  which  provides  that  “intellectual 
property shall be protected”, this is a horizontal measure. 

The Directive is to apply to any infringement of intellectual property rights as provided for by 
Community  law  and/or  by  the  national  law  of  the  Member  States,  in  the  same  way  as 
Directive  2004/48/EC.  Commission 
statement  2005/295/EC  on  Article  2  of 
Directive 2004/48/EC lists these rights2. The Directive is to apply without prejudice to more 
stringent provisions in the Member States. 

Article 2 

This Article defines the concept of a legal person for the purposes of the Directive. 

Article 3 

This Article obliges Member States to consider all intentional infringements of an intellectual 
property right on a commercial scale as a criminal offence. It also covers attempting, aiding or 
abetting  and  inciting  such  offences.  The  “commercial  scale”  criterion  is  borrowed  from 
Article 61 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS 
Agreement), concluded on 15 April 1994 and signed by all the members of the World Trade 
Organisation. Article 61 obliges Members to “provide for criminal procedures and penalties to 
be  applied  at  least  in  cases  of  wilful  trademark  counterfeiting  or  copyright  piracy  on  a 
commercial  scale.  Remedies  available  shall  include  imprisonment  and/or  monetary  fines 
sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a 
corresponding  gravity.  In  appropriate  cases,  remedies  available  shall  also  include  the  seizure, 
forfeiture  and  destruction  of  the  infringing  goods  and  of  any  materials  and  implements  the 
predominant use of which has been in the commission of the offence. Members may provide for 
criminal  procedures  and  penalties  to  be  applied  in  other  cases  of  infringement  of  intellectual 
property rights, in particular where they are committed wilfully and on a commercial scale.” 

The infringement must be intentional, that is to say that the act must be deliberate, whether it 
is an actual infringement, an attempt at infringement, or aiding and abetting or inciting such 
an  offence.  This  does  not  affect  specific  liability  systems  such  as  the  system  laid  down  for 
Internet  service  providers  in  Articles  12  to  15  of  Directive  2000/31/EC  on  electronic 
commerce3. 

Article 4 

This article concerns penalties: besides imprisonment for natural persons, the Directive lays 
down a range of penalties to be imposed on both natural and legal persons, such as fines and 
the  seizure  of  goods  belonging  to  the  offender,  including  the  infringing  goods  and  the 
materials, implements or media used predominantly for the manufacture or distribution of the 
goods  in  question.  Other  penalties  are  provided  for  specific  cases:  destruction  of  infringing 

2 
3 

OJ L 94, 13.4.2005, p. 37. 
OJ L 178, 17.7.2000, p. 1. 

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goods and goods principally used in the manufacture of the goods in question, total or partial 
closure,  on  either  a  permanent  or  a  temporary  basis,  of  the  establishment  or  shop  primarily 
used to commit the infringement. Provision is also made for a permanent or temporary ban on 
engaging  in  commercial  activities,  placement  under  judicial  supervision  or  judicial 
winding-up, and a ban on access to public assistance or subsidies. Finally, the publication of 
judicial decisions is provided for. This can serve as a means of dissuasion and as a channel of 
information both for right holders and for the public at large.  

Article 5 

This Article concerns the measures for transposing the Directive into the internal law of the 
Member  States.  The  deadline  of  eighteen  months  is  modelled  on  the  provisions  of  other 
Directives.  

Article 6 

This Article lays down that the Directive enters into force on the twentieth day following its 
publication  in  the  Official  Journal,  pursuant  to  the  provisions  of  Article  254(1)  of  the  EC 
Treaty. 

Article 7 

This Article lays down that this Directive is addressed to the Member States. 

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2005/0127(COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on criminal measures aimed at ensuring the enforcement of intellectual property rights 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
95 thereof, 

Having regard to the proposal from the Commission4, 

Having regard to the opinion of the European Economic and Social Committee5, 

Having regard to the opinion of the Committee of the Regions6, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty7, 

(1) 

At international level, all Member States, as well as the Community itself, as regards 
matters within its competence, are bound by the Agreement on Trade-Related Aspects 
of Intellectual Property (the "TRIPS Agreement"), concluded in the framework of the 
World Trade Organisation and approved by Council Decision 94/800/EC8. The TRIPS 
Agreement contains, in particular, provisions on criminal matters which are common 
standards applicable at international level, but the disparities between Member States 
are still too great, and they do not permit effective combating of intellectual property 
offences,  particularly  the  most  serious  ones.  This  causes  a  loss  of  confidence  in  the 
Internal  Market  in  business  circles,  with  a  consequent  reduction  in  investment  in 
innovation and creation. 

(2) 

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 
on  the  enforcement  of  intellectual  property  rights9  lays  down  measures,  procedures 
and  civil  and  administrative  remedies.  A  sufficiently  dissuasive  set  of  penalties 
applicable throughout the Community is needed to make the provisions laid down in 
this Directive complete. 

4 
5 
6 
7 
8 
9 

OJ C […], […] , p.[…]. 
OJ C […], […] , p.[…]. 
OJ C […], […] , p.[…]. 
OJ C […], […] , p.[…]. 
OJ L 336, 23.12.1994, p. 1. 
OJ L 195, 2.6.2004, p. 16. 

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(3) 

(4) 

(5) 

This  Directive  does  not  affect  specific  liability  systems  such  as  that  laid  down  for 
Internet service providers in Articles 12 to 15 of Directive 2000/31/EC on electronic 
commerce10. 

As the objective of this Directive cannot be achieved adequately by the Member States 
acting  alone  and  could  better  be  achieved  by  action  at  Community  level,  the 
Community  may  take  measures  in  accordance  with  the  principle  of  subsidiarity  as 
declared  by  Article  5  of  the  Treaty  establishing  the  European  Community.  In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Directive does not go beyond what is necessary in order to achieve that objective. 

This Directive respects fundamental rights and observes the principles recognised by 
the Charter of Fundamental Rights of the European Union. In particular, this Directive 
seeks to ensure full respect for intellectual property, in accordance with Article 17(2) 
of the Charter, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Objective and scope 

This  Directive  lays  down  the  criminal  measures  necessary  to  ensure  the  enforcement  of 
intellectual property rights. 

These  measures  shall  apply  to  intellectual  property  rights  provided  for  in  Community 
legislation and/or national legislation in the Member States. 

Article 2 
Definition 

For the purposes of this Directive, “legal person” means any legal entity having such status 
under  the  applicable  national  law,  except  for States  or any other public bodies acting in the 
exercise of their prerogative of public power, as well as public international organisations. 

Article 3 
Offences 

Member States shall ensure that all intentional infringements of an intellectual property right 
on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are 
treated as criminal offences. 

10 

OJ L 178, 17.07.2000, p. 1. 

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Article 4 
Penalties 

1. 

For  the  offences  referred  to  in  Article  3,  the  Member  States  shall  provide  for  the 
following penalties: 

a) for natural persons: custodial sentences; 

b) for natural and legal persons: 

i) 

fines;  

ii) 

confiscation of the object, instruments and products stemming from 
infringements  or  of  goods  whose  value  corresponds  to  those 
products.   

2. 

For  the  offences  referred  to  in  Article  3,  the  Member  States  shall  provide  that  the 
following penalties are also available in appropriate cases: 

(a) 

destruction of the goods infringing an intellectual property right; 

(b) 

total  or  partial  closure,  on  a  permanent  or  temporary  basis,  of  the 
establishment used primarily to commit the offence; 

(c) 

a permanent or temporary ban on engaging in commercial activities; 

(d)  placing under judicial supervision; 

(e) 

judicial winding-up; 

(f) 

a ban on access to public assistance or subsidies; 

(g)  publication of judicial decisions. 

Article 5 
Transposal 

1. 

Member  States  shall  bring  into  force  the  provisions  necessary  to  comply  with  this 
Directive by ……. at the latest [eighteen months after the date of its adoption]. They 
shall  forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
this  Directive. 
correlation 

provisions 

between 

those 

table 

and 

When  Member  States  adopt  these  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  shall  be  accompanied  by  such  reference  at  the  time  of  their  official 
publication. The procedure for such reference shall be adopted by Member States. 

2. 

Member States shall communicate to the Commission the provisions of national law 
which they adopt in the field covered by this Directive. 

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Article 6 
Entry into force 

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

This Directive is addressed to the Member States. 

Article 7 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President

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EXPLANATORY MEMORANDUM 

GROUNDS FOR THE PROPOSAL 

Intellectual  property  offences  have  become  a  very  worrying  phenomenon,  linked  in  some 
cases  to  organised  crime.  We  now  have  a  substantial  cross-border  trade  in  goods  which 
infringe  intellectual  property  rights,  involving:  illegal  production  of  counterfeit  goods, 
organised  networks  for  the  transport  of  goods  from  the  place  of  production  to  the  place  of 
consumption, sale of illegal goods and laundering of the profits. 

intellectual  property  offences  effectively,  Directive 

To  combat 
..../../EC  must  be 
supplemented  by  means  of  measures  for  the  approximation  of  criminal  legislation  and 
cooperation under Title VI of the Treaty on European Union. 

This  proposal  for  a  Framework  Decision  therefore  aims  to  strengthen  the  criminal-law 
measures to approximate the provisions laid down by law or regulation in the Member States 
concerning  intellectual  property  rights  offences  and  to  facilitate  and  encourage  cooperation 
between the Member States to repress these offences. 

As regards impact on fundamental rights, it should be emphasised that the direct objective of 
this initiative is to implement Article 17(2) of the Charter of Fundamental Rights which states 
that  “Intellectual  property  shall  be  protected”;  it  does  this  by  approximation  of  legislation 
while  respecting  the  different  legal  traditions  and  systems  of  the  Member  States  as  well  as 
other fundamental rights and principles recognised by the Charter. The level of sentences has 
been  chosen  pursuant  to  the  seriousness  of  the  different  forms  of  wrongful  conduct,  in 
accordance  with  Article  49(3)  of  the  Charter  to  the  effect  that  sentences  should  not  be 
disproportionate to the offence. 

CONTENT OF THE PROPOSAL 

Article 1 - Subject  

Article  1  specifies  that  the  purpose  of  the  Directive  is  to  supplement  Directive  200/...  /EC 
with additional provisions. 

Article 2 – Level of penalties 

This article concerns the level of criminal penalties: offences must incur a maximum term of 
at  least  four  years'  imprisonment  when  they  are  committed  under  the  aegis  of  a  criminal 
organisation. The same applies where the offences carry a health or safety risk. The threshold 
of four years' imprisonment was chosen because it broadly corresponds to the criterion used to 
identify a serious offence. It is the threshold selected in Joint Action 98/733/JHA and in the 
proposal  for  a  Council  Framework  Decision  on  the  fight  against  organised  crime 
[COM(2005)6 final] and in the United Nations Convention against Organised Transnational 
Crime.  For  natural  persons  or  legal  entities  who  commit  the  offences  listed  in  Article  3  of 
Directive ..../…/EC, the penalties include criminal and non-criminal fines to a maximum of at 
least EUR 100 000 for cases other than the most serious cases and to a maximum of at least 
EUR EUR 300000 for those which carry a health or safety risk.  

A  risk  to  personal  health  or  safety  shall  exist  where  the  counterfeit  product  placed  on  the 
market directly exposes people to a risk of illness or accident. In the case of risk which may 

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have  serious  consequences  such  as  death  or  infirmity,  it  must  be  possible  to  impose 
aggravated penalties. 

Article 3 – Extended powers of confiscation 

This  article  provides  for  the  full  or  partial  confiscation  of  goods  belonging  to  persons 
convicted  of  offences  committed  in  the  circumstances  set  out  in  Article  2.  It  refers  to  the 
provisions of Article 3 of Council Framework Decision 2005/212/JHA of 24 February 2005 
on Confiscation of Crime-Related Proceeds, Instrumentalities and Property11. 

Article 4 - Joint investigation teams 
The  Framework  Decision  of  13  June  200212  provides  the  structure  needed  to  set  up  joint 
investigation  teams.  To  facilitate  criminal  investigations  into  intellectual  property  offences, 
the Member States must allow the holders of intellectual property rights concerned, or their 
representatives, and experts to assist the investigations carried out by these teams. It is very 
difficult  to  carry  out  investigations  in  this  area  and  it  is  often  essential  to  have  the  active 
participation of the victims, of representatives of the holder of the intellectual property rights 
or of experts  in order to reach conclusions, and in particular  to establish that products  have 
been counterfeited. Member States have a good deal of latitude in this regard.  

Article 5 - Jurisdiction and coordination of proceedings 

Paragraph  1  provides  that  the  Member  States  should  use  their  powers  to  prosecute  and 
sentence offenders for offences committed wholly or partially on their territory. 

The purpose of paragraph 2 is to facilitate the settlement of conflicts of jurisdiction between 
Member  States.  It  requires  Member  States  to  cooperate  in  deciding  which  of  them  will 
prosecute  the  alleged  offender,  when  an  offence  is  within  the  jurisdiction  of  more  than  one 
Member State and any of these States can validly commence proceedings on the basis of the 
same facts, the aim being to centralise proceedings in a single Member State where possible. 
If  need  be,  the  Member  States  can  call  on  Eurojust,  which  was  set  up  by  Decision  of  28 
February 200213. 

Paragraph 3 lays down a list of criteria for use in implementing paragraph 2. 

Article 6 – Initiation of criminal proceedings 

The  purpose  of  this  article  is  to  ensure  that  investigations  into,  or  prosecution  of, 
counterfeiting  and  piracy  offences  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. 

Article 7 - Implementation 

Article 7 concerns the implementation and monitoring of this Framework Decision.  

11 
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OJ L 68, 15.3.2005, p. 49. 
OJ L 162, 20.6.2002, p. 1. 
Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against 
serious crime (OJ L 63, 6.3.2002, p. 1). 

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Article 8 - Entry into force 

Article  8  provides  that  the  Framework  Decision  is  to  enter  into  force  on  the  day  of  its 
publication in the Official Journal of the European Communities.  

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2005/0128(CNS) 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

to strengthen the criminal-law framework to combat intellectual property offences 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission14, 

Having regard to the Opinion of the European Parliament15, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  Green  Paper  on  the  fight  against  counterfeiting  and  piracy  in  the  Single  Market 
presented by the Commission on 15 October 1998 noted that counterfeiting and piracy 
had  grown  into  an  international  phenomenon  with  major  repercussions  at  economic 
and  social  level  and  in  terms  of  consumer  protection,  especially  as  regards  public 
health and safety. An action plan was drawn up as part of the follow-up to the Green 
Paper and was included in a communication on the same subject from the Commission 
to the Council, the European Parliament and the Economic and Social Committee on 
30 November 200016. 

In its conclusions, the Brussels European Council of 20 and 21 March 2003 invited the 
Commission  and  the  Member  States  to  improve  exploitation  of  intellectual  property 
rights by taking forward measures against counterfeiting and piracy. 

The  Council  adopted  Framework  Decision  2005/212/JHA  of  24  February  2005  on 
Confiscation  of  Crime-Related  Proceeds,  Instrumentalities  and  Property17  and 
Framework Decision … of … on the fight against organised crime18. 

Directive  ..../…./EC  of  the  European  Parliament  and  the  Council  on  measures  and 
procedures  to  ensure  the  enforcement  of  intellectual  property  rights  is  aimed  at 
harmonising national legislation on the definition of offences and the type of penalties 
which can be imposed. 

14 
15 
16 
17 
18 

OJ C [... ], [... ], p. [... ]. 
OJ C [... ], [... ], p. [... ]. 
COM (2000) 789 final 
OJ L 68, 15.03.2005, p. 49. 
OJ L 

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(5) 

(6) 

(7) 

(8) 

(9) 

To  supplement  the  provisions  of  Directive  ..../…./EC,  the  level  of  sentencing  for 
natural and legal persons who have committed such offences must be harmonised. In 
particular, the rules on prison sentences, fines and confiscation must be harmonised. 

Provisions must be laid down to facilitate criminal investigations. The Member States 
must  ensure  that  the  holders  of  intellectual  property  rights  concerned,  or  their 
representatives, and experts are allowed to assist the investigations carried out by joint 
investigation teams.  

Rules on jurisdiction and coordination of proceedings must be laid down to ensure that 
the  offences  to  which  Directive  ..../...  /EC  applies  can  be  effectively  prosecuted, 
particularly where more than one Member State has jurisdiction and when any one of 
the States concerned can validly prosecute on the basis of the same facts. 

To  facilitate  investigations  or  criminal  proceedings  concerning  offences  covered  by 
Directive ..../…/EC, these may not be dependent on a report or accusation made by a 
person subjected to the offence. 

Since  the  objectives  of  this  Directive  cannot  be  achieved  adequately  by  the  Member 
States  acting  alone  and  could  better  be  achieved  by  action  at  Union  level,  the 
Community  may  take  measures  in  accordance  with  the  principle  of  subsidiarity  as 
declared by Article 5 of the Treaty. In accordance with the principle of proportionality, 
as set out in that Article, this Directive does not go beyond what is necessary in order 
to achieve those objectives. 

(10)  This  Framework  Decision  fully  respects  the  fundamental  rights  recognised  by  the 

Charter of Fundamental Rights of the European Union, in particular Article 17(2),  

HAS ADOPTED THIS FRAMEWORK DECISION: 

Article 1 
Subject 

This  Framework  Decision  supplements  the  provisions  of  Directive  ..../…/EC,  laying  down 
detailed rules on penalties and judicial cooperation measures. 

Article 2 
Level of penalties 

1. 

2. 

Each  Member  State  shall  take  the  measures  necessary  to  ensure  that,  when 
committed by natural persons, the offences referred to in Article 3 of Directive ..../... 
/EC  are  punishable  by  a  maximum  sentence  of  at  least  four  years'  imprisonment 
when  committed  under  the  aegis  of  a  criminal  organisation  within  the  meaning  of 
Framework Decision …. on the fight against organised crime, or where they carry a 
health or safety risk. 

Member States shall take the measures necessary to ensure that, when committed by 
natural  persons  or  legal  entities,  the  offences  referred  to  in  Article  3  of  Directive 
..../…/EC are punishable by effective, proportionate and dissuasive penalties. These 
penalties shall include criminal and non-criminal fines: 

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(a) 

to a maximum of at least EUR 100 000 for cases other than the most serious 
cases;  

(b) 

to a maximum of at least EUR 300 000 for cases referred to in paragraph 1. 

3. Paragraphs 1 and 2 shall be without prejudice to the application of more serious 

sentences, including in the case of risk of death or infirmity.  

Article 3 
Extended powers of confiscation 

The Member States shall take the measures needed to allow the total or partial confiscation of 
goods  belonging  to  convicted  natural  or  legal  persons  in  accordance  with  Article  3  of 
Framework  Decision 2005/212/JHA of  24  February 2005 on Confiscation of  Crime-Related 
Proceeds,  Instrumentalities  and  Property19,  at  least  where  the  offences  are  committed  under 
the  aegis  of  a  criminal  organisation,  within  the  meaning  of  Framework  Decision  ….  on  the 
fight against organised crime, or where they carry a health or safety risk.  

Article 4 
Joint investigation teams 

The Member States must ensure that the holders of intellectual property rights concerned, or 
their representatives, and experts, are allowed to assist the investigations carried out by joint 
investigation teams into the offences referred to in Article 3 of Directive ..../…/EC. 

Article 5 
Jurisdiction and coordination of proceedings 

1. 

2. 

Each Member State shall ensure that its jurisdiction covers at least the cases in which 
an offence referred to in Article 3 of Directive ..../…/EC has been committed, wholly 
or partially, on its territory. 

When  an  offence  referred  to  in  Article  3  of  Directive  ..../…/EC  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. 

3. 

For the purposes of paragraph 2, 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 in whose territory the legal person on whose behalf 
the offence was committed has its registered office; 

19 

OJ L 68, 15.3.2005, p. 69. 

EN 

14 

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(d) 

the Member State in which the victim is resident or has his registered 
office; 

(e) 

the Member State in whose territory the offender was found. 

Article 6  
Initiation of criminal proceedings 

Member States shall ensure that the possibility of initiating investigations into, or prosecution 
of,  offences  covered  by  Article  3  of  Directive  ..../…/EC  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. 

Article 7 
Implementation 

1. 

2. 

3. 

Member  States  shall  take  the  necessary  measures  to  comply  with  this  Framework 
Decision by [ ... ] at the latest. 

By the same date, Member States shall communicate to the General Secretariat of the 
Council  and  to  the  Commission  the  texts  of  the  provisions  transposing  into  their 
national law the obligations imposed on them by this Framework Decision.  

On the basis of that information and a written report by the Commission, the Council 
shall, no later than 31 December …, check the extent to which Member States have 
taken the measures necessary to comply with this Framework Decision. 

Article 8 
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 

EN 

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