Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime
Date: 2008-10-24
Institutions: Council of the European Union
Subjects: area of freedom, security and justice, criminal liability, fight against crime, organised crime, penalty

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III

(Acts adopted under the EU Treaty)

ACTS ADOPTED UNDER TITLE V OF THE EU TREATY

COUNCIL FRAMEWORK DECISION 2008/841/JHA

of 24 October 2008

on the fight against organised crime

THE COUNCIL OF THE EUROPEAN UNION,

criminal offence to participate in a criminal organisation
in the Member States of the European Union (2).

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

(3)

Having regard to the proposal of the Commission,

Having regard to the opinion of the European Parliament (1),

Whereas:

(1)

(2)

The objective of the Hague Programme is to improve the
common capability of the Union and the Member States
for the purpose, among others, of combating transna­
tional organised crime. This objective is to be pursued
by, in particular, the approximation of legislation. Closer
cooperation between the Member States of the European
Union is needed in order to counter the dangers and
proliferation of criminal organisations and to respond
effectively to citizens’ expectations and Member States’
the
own requirements.
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.

respect point 14 of

In this

the Commission considered that

In its Communication of 29 March 2004 on measures to
be taken to combat terrorism and other forms of serious
crime,
the facilities
available for combating organised crime in the EU
it would
needed to be strengthened and stated that
draw up a Framework Decision to replace Joint Action
98/733/JHA of 21 December 1998 on making it a

the Hague Programme states that

the
Point 3.3.2 of
approximation of substantive criminal
law serves the
purpose of facilitating mutual recognition of judgments
and judicial decisions and police and judicial cooperation
in criminal matters and concerns areas of particularly
serious crime with cross-border dimensions and that
priority should be given to areas of crime that are speci­
fically mentioned in the Treaties. The definition of
offences relating to participation in a criminal organi­
sation should
in the
Member States. Thus, this Framework Decision should
encompass crimes which are typically committed in a
criminal organisation. It should provide, moreover, for
the
to the
those offences, on natural and legal
seriousness of
persons who committed them or are responsible for
their commission.

imposition of penalties

corresponding

approximated

therefore

be

(4)

(5)

(6)

The obligations arising by virtue of Article 2(a) should be
without prejudice to Member States’ freedom to classify
other groups of persons as criminal organisations, for
example, groups whose purpose is not
financial or
other material gain.

The obligations arising by virtue of Article 2(a) should be
without prejudice to the Member States’
freedom to
the term ‘criminal activities’ as implying the
interpret
carrying out of material acts.

The European Union should build on the important
work done by international organisations,
in particular
the United Nations Convention Against Transnational
Organised Crime (the ‘Palermo Convention’), which was
concluded, on behalf of the European Community, by
Council Decision 2004/579/EC (3).

(1) Opinion delivered following non-compulsory consultation (not yet

published in the Official Journal).

(2) OJ L 351, 29.12.1998, p. 1.
(3) OJ L 261, 6.8.2004, p. 69.

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(7)

(8)

Since the objectives of this Framework Decision cannot
be sufficiently achieved by the Member States, and can
therefore, by reason of the scale of the action, 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 establishing European
Community, as applied by the second paragraph of
Article 2 of
In
accordance with the principle of proportionality this
is
Framework Decision does not go beyond what
necessary to achieve those objectives.

the Treaty on European Union.

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. Nothing in this Framework Decision is
intended to reduce or restrict national rules relating to
fundamental rights or freedoms such as due process, the
right to strike, freedom of assembly, of association, of the
press or of expression, including the right of everyone to
form and to join trade unions with others for
the
protection of his or her interests and the related right
to demonstrate.

(9)

Joint Action 98/733/JHA should therefore be repealed,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

For the purposes of this Framework Decision:

(a) conduct by any person who, with intent

intention to commit

and with
knowledge of either the aim and general activity of the
criminal organisation or
the
its
offences in question, actively takes part in the organisation’s
criminal activities, including the provision of information or
material means, the recruitment of new members and all
forms of financing of its activities, knowing that such parti­
cipation will contribute to the achievement of the organi­
sation’s criminal activities;

(b) conduct by any person consisting in an agreement with one
or more persons that an activity should be pursued, which if
carried out, would amount to the commission of offences
referred to in Article 1, even if that person does not take
part in the actual execution of the activity.

Article 3

Penalties

Each Member State shall take the necessary measures to

1.
ensure that:

(a)

the offence referred to in Article 2(a) is punishable by a
maximum term of imprisonment of at least between two
and five years; or

(b) the offence referred to in Article 2(b) is punishable by the
same maximum term of imprisonment as the offence at
which the agreement is aimed, or by a maximum term of
imprisonment of at least between two and five years.

2.
Each Member State shall take the necessary measures to
ensure that the fact that offences referred to in Article 2, as
determined by this Member State, have been committed within
the framework of a criminal organisation, may be regarded as
an aggravating circumstance.

1.

‘criminal organisation’ means a structured association, estab­
lished 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,
to obtain, directly or indirectly, a
financial or other material benefit;

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 or that
the offender may be exempted from penalties if he, for example:

2.

‘structured association’ means an association that
is not
randomly formed for
the immediate commission of an
offence, nor does it need to have formally defined roles
for
its membership, or a
developed structure.

its members, continuity of

(a) renounces criminal activity; and

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

Article 2

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

Offences relating to participation in a criminal organisation

Each Member State shall take the necessary measures to ensure
that one or both of the following types of conduct related to a
criminal organisation are regarded as offences:

(ii) identify or bring to justice the other offenders;

(iii) find evidence;

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(iv) deprive the criminal organisation of illicit resources or

(c) placing under judicial supervision;

of the proceeds of its criminal activities; or

(v) prevent further offences referred to in Article 2 from

being committed.

(d) judicial winding-up;

Article 5

Liability of legal persons

1.
Each Member State shall take the necessary measures to
ensure that legal persons may be held liable for any of 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, and having 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;

or

(e)

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

2.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 5(2) is
punishable by penalties or measures which are effective, propor­
tionate and dissuasive.

Article 7

Jurisdiction and coordination of prosecution

1.
Each Member State shall ensure that its jurisdiction covers
at least the cases in which the offences referred to in Article 2
were committed:

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

(a)

in part within its territory, wherever

in whole or
criminal organisation is based or pursues
activities;

the
its criminal

2. Member States shall also take the necessary measures to
ensure that legal persons may be held liable where the lack of
supervision or control by a person referred to in paragraph 1
has made possible the commission, by a person under its
authority, of any of the offences referred to in Article 2 for
the benefit of that legal person.

3.
Liability of legal persons under paragraphs 1 and 2 shall
be without prejudice to criminal proceedings against natural
persons who are perpetrators of, or accessories to, any of the
offences referred to in Article 2.

For the purpose of this Framework Decision ‘legal person’
4.
the
shall mean any entity having legal personality under
applicable law, except
in the
exercise of State authority and for public international organi­
sations.

for States or public bodies

Article 6

Penalties for legal persons

1.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 5(1) is
punishable by effective, proportionate and dissuasive penalties,
which shall
fines and may
include other penalties, for example:

include criminal or non-criminal

(b) by one of its nationals; or

(c)

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

A Member State may decide that it will not apply, or that it will
apply only in specific cases or circumstances, the jurisdiction
rules set out in (b) and (c) where the offences referred to in
Article 2 are committed outside its territory.

2. 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, Member States may have
recourse to Eurojust or any other body or mechanism estab­
lished within the European Union in order to facilitate cooper­
ation between their judicial authorities and the coordination of
their action. Special account shall be taken of the following
factors:

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

(a)

the Member State in the territory of which the acts were
committed;

(b) temporary or permanent disqualification from the practice

(b) the Member State of which the perpetrator is a national or

of commercial activities;

resident;

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(c)

the Member State of the origin of the victims;

(d) the Member State in the territory of which the perpetrator

was found.

Article 10

Implementation and reports

1. Member States
comply with the provisions of
before 11 May 2010.

shall

take the necessary measures

to
this Framework Decision

surrender

A Member State which, under its law, does not as yet
3.
the
extradite or
jurisdiction over and,
to establish its
necessary measures
where appropriate,
to prosecute the offence referred to in
Article 2, when committed by one of its nationals outside its
territory.

its own nationals

shall

take

4.
This Article shall not exclude the exercise of jurisdiction in
criminal matters as laid down by a Member State in accordance
with its national legislation.

Article 8

Absence of requirement of a report or accusation by
victims

Member States shall ensure that investigations into, or prose­
cution of, offences referred to in Article 2 are not dependent on
a report or accusation made by a person subjected to the
offence, at least as regards acts committed in the territory of
the Member State.

Article 9

Repeal of existing provisions

Joint Action 98/733/JHA is hereby repealed.

References to participation in a criminal organisation within the
Joint Action 98/733/JHA in measures adopted
meaning of
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 organi­
sation within the meaning of this Framework Decision.

The Member States shall transmit to the General Secre­
2.
tariat of the Council and to the Commission, before 11 May
2010, the text of the provisions transposing into their national
law the obligations imposed on them under this Framework
Decision. On the basis of a report established using this infor­
mation and a written report transmitted by the Commission,
the Council shall, before 11 November 2012, assess the extent
to which Member States have complied with the provisions of
this Framework Decision.

Article 11

Territorial application

This Framework Decision shall apply to Gibraltar.

Article 12

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 Luxembourg, 24 October 2008.

For the Council
The President

M. ALLIOT-MARIE