REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL based on Article 10 of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime
Date: 2016-07-07
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU police cooperation, application of EU law, fight against crime, judicial cooperation in criminal matters in the EU, organised crime, penalty

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 7.7.2016  COM(2016) 448 final   REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL based on Article 10 of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime  
 
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

based on Article 10 of Council Framework Decision 2008/841/JHA of 24 October 2008 
on the fight against organised crime 

1. 

INTRODUCTION 

1.1. 

Background 

The  first  steps  towards  criminalisation  of  offences  linked  to  a  criminal  organisation  were 
taken in the European Union in 1998 with the adoption of Joint Action 98/733/JHA making it 
a  criminal  offence  to  participate  in  a  criminal  organisation  in  the  Member  States  of  the 
European Union.1 This instrument, adopted by the Council on the basis of Article K.3 of the 
Treaty on European Union, introduced a definition of organised crime in international law. 

This was followed by the United Nations Convention against Transnational Organised Crime 
(UNTOC),  adopted  by  General  Assembly  resolution  55/25  of  15  November  2000,  which 
became  the main  international  instrument  in  the  fight  against  transnational  organised  crime. 
The  European  Union  (previously  European  Community)  participated  in  the  negotiations  on 
the Convention, signed it and is a Party to the Convention.2 

On 19 January 2005 the Commission put forward a proposal for a framework decision on the 
fight against organised crime.3 It sought to build on the achievements of both the Joint Action 
98/733/JHA and  UNTOC by providing  for greater  consistency of approximation  in order to 
tackle organised crime more effectively at EU level. 

The  outcome  of  the  negotiations  was  less  ambitious  than  the  initial  proposal.  The 
Commission,  backed  by  France  and  Italy,  decided  to  issue  a  declaration4  questioning  the 
added  value  of  the  instrument  from  the  point  of  view  of  achieving  the  necessary  minimum 
degree of approximation. 

1.2.  Main elements and purpose of the Framework Decision 

Council  Framework  Decision  2008/841/JHA  of  24  October  2008  on  the  fight  against 
organised crime points out in its preamble that the European Union’s objective is to improve 
the common capability of the Union and the Member States for the purpose, among others, of 
combating cross-border organised crime. 

This  objective  under  the  EU  policies  of  judicial  cooperation  in  criminal  matters  and  police 
cooperation is to be pursued by, in particular, the approximation of legislation. The scope of 

1 
2 
3 
4 

OJ L 351 of 29/12/1998. 
Council Decision 2004/579/EC, OJ L 261, 6.8.2004, p. 69. 
2005/0003 (CNS) which lead to the adoption of the Council Framework Decision 2008/841/JHA. 
‘The Commission considers that the Framework Decision on the fight against organised crime fails to 
achieve the objective sought by the Commission in relation to Joint Action 98/733/JHA on making it a 
criminal offence to participate in a criminal organisation in the Member States of the European Union, 
and in relation to the United Nations Convention Against Transnational Organised Crime, adopted on 
15  November  2000,  to  which  the  Community  has  been  a  party  since  29  April  2004.  The  Framework 
Decision does not achieve the minimum degree of approximation of acts of directing or participating in 
a criminal organisation on the basis of a single concept of such an organisation, as proposed by the 
Commission  and  as  already  adopted  in  Framework  Decision  2002/475/JHA  on  the  fight  against 
terrorism. Furthermore, the Framework Decision enables Member States not to introduce the concept 
of criminal organisation but to continue to apply existing national criminal law by having recourse to 
general rules on participation in and preparation of specific offences. 
The  Commission  is  therefore  obliged  to  note  that  the  Framework  Decision  does  not  achieve  the 
objective  of  the  approximation  of  legislation  on  the  fight  against  transnational  organised  crime  as 
provided for in the Hague Programme.’. 

2 

 
                                                 
this  instrument  should  therefore  encompass  offences  which  are  typically  committed  by  a 
criminal organisation. It should also provide for penalties corresponding to the seriousness of 
those offences committed by natural and legal persons. 

The  main  focus  of  the  Framework  Decision  is  the  criminalisation  of  offences  relating  to 
participation  in  a  criminal  organisation  (Article 2  of  the  Framework  Decision)  based  on  the 
definitions set out in Article 1. 

Purpose of this report and method of assessment 

1.3. 
The European Agenda on Security,5 adopted by the European Commission on 28 April 2015, 
highlights  the  need  to  help  Member  States  develop  greater  mutual  trust,  make  full  use  of 
existing tools for sharing information and foster cross-border operational cooperation between 
competent authorities. This is to be achieved through better application and implementation of 
existing  EU  legal  instruments.  For  this  reason  the  Commission,  acting  as  guardian  of  the 
Treaties, monitors the transposition of the relevant EU instruments. 
On the basis of Article 10 of the Framework Decision6, the Member States had to adopt the 
necessary implementing measures and notify them to both the Council and the Commission 
by  11  May  2010.  The  Commission  was  to  draw  up  a  report  based  on this  information.  The 
Council should then have assessed, by 11 November 2012, whether Member States had taken 
the necessary measures to comply with the Framework Decision. 

By the time of the deadline for transposition, namely 11 May 2010, only four Member States 
(BE, CY, IE and NL) had provided the Commission with their notifications. Other Member 
States communicated their transposition measures after that date. 

The  Framework  Decision  is  not  applicable  to  the  UK  as  of  1  December  2014,  because  it 
exercised its right under Article 10(4) of Protocol 36 annexed to the Treaties to opt out of this 
legal instrument. Although the UK has in the past enacted national legislation implementing 
the  Framework  Decision  and  notified  it  to  the  Commission,  the  report  does  not  cover  this 
Member State. Denmark is bound by the Framework Decision under Article 2 of Protocol No. 
22 on the position of Denmark as the Framework Decision was adopted before the entry into 
force of the Treaty of Lisbon. 

The  description  and  analysis  in  this  report  are  primarily  based  on  the  information  that 
Member States have provided, supplemented by publicly available information and findings 
of  an  external  study7.  Following  the expiry  of  the  transitional  period  under  Article  10(3)  of 
Protocol  36  to  the  Treaties  on  1  December  2014,  the  Commission  requested  that  Member 
States  notify  national  transposition  measures  for  instruments  under  the  former  third  pillar 
acquis, including this Framework Decision, through the MNE database (‘Mesures Nationales 
d’Éxecution’). At the time of writing, all Member States have notified such measures. 

The report focuses on analysis of Articles 1 to 8. It does not discuss Articles 9 to 12, as these 
provisions  do  not  require  implementation.  The  assessment  criteria  adopted  by  the 
Commission  for  this  report  are  the  general  criteria  adopted  in  2001  relevant  to  assess  the 
implementation  of  framework  decisions  (practical  effectiveness,  clarity  and  legal  certainty, 
full  application  and  compliance  with  the  time  limit  for  transposition).8  Secondly,  criteria 
specific to this Framework Decision are also used, further details of which are provided in the 
following analysis of the individual provisions. 

5 
6 
7 

8 

COM(2015) 185 final. 
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1455280270499&uri=CELEX:32008F0841  
http://ec.europa.eu/dgs/home-affairs/e-
library/docs/20150312_1_amoc_report_020315_0_220_part_1_en.pdf  
COM(2001) 771, 13.12.2001, point 1.2.2. 

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For  consistency’s  sake,  national  provisions  in  relation  to  the  Framework  Decision  are 
assessed separately for the Member States that base their systems on a self-standing offence in 
relation to Article 2 and those that take different approaches. 

2. 

2.1. 

ASSESSMENT 

Assessment of the relevant national provisions of Member States that base their 
systems on a self-standing offence 

The overview provided below does not cover DK, SE and UK. Whenever the report mentions 
‘all Member States’, it therefore refers only to the remaining 25 Member States. 

2.1.1.  Definitions (Article 1) 

Article  1  sets  out  two  definitions  that  are  relevant  for  defining  the  scope  of  the  Framework 
Decision, namely the definition of a criminal organisation and of a structured association. 

As  regards  the  definition  of  structured  association  ('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 members, continuity of its membership, or a developed structure'), three Member 
States (BG, HR, IE) have followed the Framework Decision’s wording while four others (CZ, 
EE, LT, ES) mention some further elements, mostly the division of tasks or functions in the 
criminal  organisation.  A  group  of  seven  Member  States  (BE,  CY,  FI,  EL,  LU,  RO,  SK) 
indicate that the association is to be structured and eleven Member States (AT, DE, FR, HU, 
IT,  LV,  MT,  NL,  PL,  PT,  SI)  do  not  make  any  reference  to  the  definition  of  structured 
association. 

Eleven Member States (AT, BE, BG, FI, EL, HU, LU, PT, RO, SK, ES) refer to the criterion 
of continuity ('established over a period of time'). In EE and LT national provisions refer to a 
permanent organisation, which potentially restricts the scope of application of this provision 
by excluding non-permanent criminal organisations. The remaining Member States (HR, CY, 
CZ, DE, FR, IE, IT, LV, MT, NL, PL, SI) do not mention this element at all in their national 
legislation. 

Regarding  membership  ('more  than  two  persons  acting  in  concert'),  the  majority  of  the 
Member  States  (AT,  BE,  BG,  HR,  CY,  EE,  FI,  EL,  HU,  IE,  IT,  LT, LU,  PT,  RO,  SK,  ES) 
refer directly to the minimum of three persons. LV restricts the scope of application to groups 
formed  by  at  least  five  persons.  The  legislation  of  CZ  refers  to  a  minimum  of  two  persons 
acting in concert while six Member States (DE, FR, MT, NL, PL and SI) do not refer to this 
criterion in their national laws. 

Only three Member States (BE, LU, SK) refer to the criterion of benefit (‘to obtain, directly 
or indirectly, a financial or other material benefit’) in their national legislation. This means 
that for all other Member States the definition is broader, opening the scope of application of 
this provision also to criminal organisations that are not necessarily profit-driven. 

With regard to predicate offences (‘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’),  the 
lowest upper thresholds of imprisonment according to national law are the following: 

  at least 3 years in three Member States (BE, CY, EE) 
  more than 3 years in five Member States (AT, BG, HR, LT, SI); 
  at least 4 years in four Member States (FI, IE, LU, MT); FI additionally extended the 
scope  of  application  to  two  further  offences  for  which  the  maximum  penalty  is  less 
than 4 years; 

  at least 5 years in two Member States (FR and HU); 
  more than 5 years in one Member State (SK); 

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  no indication of the level of predicate offences in eight Member States (CZ, DE, IT, 
NL,  PL,  PT,  RO,  ES),  which  means  that  the  scope  of  application  is  extended  to  all 
criminal  offences;  DE  restricts  the  scope  by  excluding  some  specific  offences 
committed against the democratic rule of law; 

  a list of serious offences is regarded as predicate in EL and LV; this list does not cover 
all offences with the upper threshold of at least 4 years’ imprisonment in LV and it is 
not clear whether or not it does so in EL. 

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

The  Framework  Decision  deals  mainly  with  the  criminalisation  of  conduct  relating  to 
participation in a criminal organisation. Article 2 obliges Member States to ensure that at least 
one of the following types of conduct is criminalised under national legislation: 

(a) conduct by any person who, with intent and with knowledge of either the aim and general 
activity  of  the  criminal  organisation  or  its  intention  to  commit  the  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  participation  will  contribute  to  the  achievement  of  the 
organisation’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. 

The extent of transposition of Article 2 is as follows: 

  Four Member States (BG, HR, EL, MT) envisage both offences (Article 2(a) and 

(b)). 

  Twenty one Member States (AT, BE, CY, CZ, DE, EE, FI, FR, HU, IE, IT, LV, 
LT,  LU,  NL,  PL,  PT,  RO,  SK,  SI,  ES)  cover  only  Article  2(a),  thus  making  it  a 
criminal  offence  to  participate  in  a  criminal  organisation.  The  national  legislation  of 
BE restricts the application of the offence of participation in a criminal organisation to 
circumstances  involving  use  of  intimidation,  threat,  violence,  fraud,  corruption  or 
commercial structures. 

Concerning the transposition of Article 2(a): 

  Six  Member  States  (BG,  FR,  LT,  LV,  PL,  SI)  refer  generally  to  participation/ 
involvement without elaborating on what kind of activities are meant (commission of 
criminal offences or other activities not necessarily of a criminal nature). 

  Eight  Member  States  (BE,  CY,  CZ,  IE,  IT,  LU,  RO,  SK)  refer  explicitly  in  the 
definition  to  the  inclusion  of  ‘other  activities’  in  the  scope  of  conduct  constituting 
participation or have made it punishable to take part in as well as to support a criminal 
organisation. 

  A  further  eight  Member  States  (AT,  DE,  EE,  EL,  ES,  MT,  NL,  PT)  mention  one  or 
more specific cases of ‘other activities’ included in the Framework Decision (such as 
provision  of  information  or  material  means,  recruitment  of  new  members,  and 
financing the activities of the criminal organisation). 

  Three  Member  States  (HU,  HR,  FI)  restrict  explicitly  the  scope  of  application, 
excluding  the  actual  commission  of  any  predicate  offences  (HR)  or  those  equally 
severe  or  more  severe  than  the  self-standing  offence  (FI),  or  restricting  it  only  to 
preparatory conduct (HU). 

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  All  but  four Member States (CY, FR, HU, IE) criminalise some of the more serious 
forms  of  participation  in  a  criminal  organisation,  such  as  establishing,  directing, 
organising, promoting, etc. 

  Nine  Member  States  (AT,  BE,  HR,  CY,  EL,  FI,  IE,  LU,  SK)  include  explicit 
references  to  the  intent  and/or  knowledge  of  the  offender  regarding  the  aim  and 
general  activity  of  the  criminal  organisation  and/or  the  commission  of  predicate 
offences. 

In relation to the offence under Article 2(b): 

  Two  Member  States  (EL,  MT)  criminalise  conspiracy  with  regard  to  any  criminal 
offence  (except  those  liable  to  punishment  differing  from  imprisonment,  as  well  as 
those under the Press Act in the case of MT). EL excludes predicate offences falling 
within  the  offence  of  participation  in  a  criminal  organisation  but  does  include 
misdemeanours if the offenders’ purpose is to achieve financial or other material gain 
or  to  attack  a  person’s  life,  physical  integrity  or  reproductive  freedom  unless 
punishable with less than one year of imprisonment. 
In  the  case  of  two  Member  States  (BG,  HR),  the  scope  of  predicate  offences  is 
restricted  to  those  punishable  with  more  than  3  years  of  imprisonment.  One  further 
restriction with  regard to  BG concerns the purpose of material gain  or gaining illicit 
influence over bodies of state or local government. 

 

2.1.3.  Liability of legal persons (Article 5) 

This  provision  is  a  standard  clause  present  in  several  EU  instruments.  All  Member  States 
(with the exception of CY) make statutory provision for criminal or non-criminal liability 
of  legal  persons  involved  in  offences  relating  to  participation  in  a  criminal  organisation 
(Article 2). CY ratified the UNTOC Convention but did not transpose the relevant provisions 
into its national legal order. 

The first paragraph covers liability for offences under Article 2 committed for the benefit of 
a legal person by any person representing it, taking decisions on its behalf or exercising 
control within the legal person. All Member States have relevant provisions in this regard 
but  only  fifteen  of  them  (AT,  CZ,  DE,  FI,  EL,  HU,  IE,  IT,  LV,  LT,  PL,  PT,  SK,  SI,  ES) 
expressly  refer  to  liability  for  lack  of  supervision  or  control  by  a  person  referred  to  in 
paragraph 1 that has made possible the commission of the offence in question (Article 5(2)). 
In  some  Member  States,  such  a  possibility  may  derive  from  flexible  reading  of  the  basic 
provisions  covering  conduct  of  legal  persons  consisting  not  only  in  action  but  also  in 
omission, e.g. in NL and BE the Supreme Court has confirmed such an interpretation. 

All Member States have definitions of a legal person and they acknowledge that liability of 
legal  persons  under  paragraphs  1  and  2  is  without  prejudice  to  criminal  proceedings 
against  natural  persons  who  are  perpetrators  of,  or  accessories  to,  any  of  the  offences 
referred to in Article 2. 

2.1.4.  Penalties (Articles 3, 4 and 6) 

2.1.4.1.  Penalties for natural persons (Article 3) 

According  to  Article  3(1),  Member  States  should  ensure  that  the  offences  referred  to  in 
Article  2  are  punishable  by  a  maximum  term  of  imprisonment  of  at  least  2  years  or,  in  the 
case  of  agreement  to  conspire  in  organised  crime,  by  the  same  maximum  term  of 
imprisonment as the offence at which the agreement is aimed. 

In  relation  to  the  offence  of  participation  in  a  criminal  organisation  (Article  2(a)),  the 
thresholds  of  imprisonment  for  the  basic  offence  according  to  national  legislation  are  as 
follows: 

6 

 
  Up to 2 years in FI 
  Up to 3 years in AT and HR 
  From 1 to 3 years in BE, LU and ES 
  Up to 5 years in DE and FR 
  From 1 to 5 years in HU, IT, PT and RO 
  From 3 months to 5 years in PL and SI 
  Up to 6 years in NL 
  From 1 to 6 years in BG 
  From 2 to 7 years in MT 
  Up to 10 years in CY and EL 
  From 2 to 10 years in CZ   
  From 5 to 10 years in SK 
  From 3 to 12 years in EE 
  Up to 15 years in IE 
  From 3 to 15 years in LT 
  From 8 to 17 years in LV. 

Only four Member States (BG, HR, EL, MT) envisage additionally the offence of conspiracy 
in  organised  crime  in  relation  to  Article  2(b).  According  to  MT  national  legislation,  the 
penalty  depends  on  the  offence  at  which  the  agreement  is  aimed.  BG  sets  the  maximum 
penalty threshold at 6 years, HR up to 3 years. In EL the offence of conspiracy in organised 
crime  is  punishable  by  a  minimum  of  6  months’  imprisonment  (minimum  3  months  if  the 
offence is a misdemeanour punishable by a minimum of 1 year’s imprisonment). 

It  needs  to  be  underlined  that  the  majority  of  Member  States  go  beyond  their  basic 
obligations  and  provide  higher  penalties  for  aggravated  conduct  not  regulated  by  the 
Framework Decision in relation to the main offence of Article 2: 

  depending  on  the  role  of  the  person  in  an  organised  criminal  group,  e.g.  founders, 
decision-makers or leaders of the criminal organisation (BE, BG, DE, HR, EE, EL, IT, 
LT, LU, LV, MT, NL, PL, PT, SI, ES); 

  due to the seriousness of the predicate offence (CZ, DE, FR, IT, PL, RO, ES); 
  due to specific features such as use of specific tools or dangerous materials (EL,  IT, 

LT, PL); 

  due to a high number of persons participating in a criminal organisation (IT, MT). 

2.1.4.2.  Aggravating circumstances (Article 3(2)) 

According  to  Article  3(2),  Member  States  should  ensure  that  commission  of  a  predicate 
offence in the framework of organised crime may be regarded as an aggravating circumstance 
within their national systems. 

In  general,  all  Member  States’  national  systems  are  characterised  by  the  principle  of 
individualised  penalties,  meaning  that  each  criminal  penalty  may  potentially  be 
aggravated or mitigated according to individual circumstances decided on a case-to-case 
basis. This covers also the specific case of commission of an offence in the framework of a 
criminal organisation. 

In terms of the legal provisions specific to aggravation, the following approaches have been 
identified: 

  The national legislation in IE makes the commission of an offence in the framework of 
a  criminal  organisation,  as  an  aggravation,  applicable  only  to  offences  above  the 
threshold of the maximum term of 4 years, namely the exact minimum scope required 
by Article 3(2). 

7 

 
 
 

In SI, aggravation applies to offences above the threshold of 3 years’ imprisonment. 
In  the  national  legislation  of  six  Member  States  (HR,  CZ,  FI,  HU,  LT,  PL),  the 
commission  of  an  offence  in  the  framework  of  a  criminal  organisation  is  a  general 
aggravating circumstance for any criminal offence (not only serious offences). 

  Eleven  Member  States  (AT,  BE,  BG,  CY,  DE,  IT,  LV,  MT,  PT,  SK,  ES)  provide  a 
specific reference in their national legislation to aggravation in respect of a list of the 
most  serious  predicate  offences  due  to  the  fact  that  they  were  committed  in  the 
framework  of a criminal  organisation. It is  not  clear if the list  in  question covers all 
offences punishable by deprivation of liberty of at least 4 years. 

  The  national  legislation  of  six  Member  States  (EE,  EL,  FR,  LU,  NL,  RO)  does  not 
mention  expressly  the  commission  of  an  offence  in  the  framework  of  a  criminal 
organisation as an aggravating circumstance. 

2.1.4.3.  Possibility for reduction of the penalty or exemption of the offender from the penalty 

(Article 4) 

Despite  the optional  nature  of  Article  4  (‘Each Member  State  may …’),  all  Member  States 
provide  for  circumstances  in  relation  to  exemption  from  criminal  responsibility  or 
penalty or reduction of penalty in mitigating circumstances applicable to offences under 
Article 2. 

2.1.4.4.  Penalties for legal persons (Article 6(1) and (2)) 

In accordance with Article 6(1), the conduct of a legal person pursuant to Article 5(1) (cases 
of leading position based on power of representation, authority to take decisions or exercise 
control) should entail criminal or non-criminal fines and may include other penalties such as 
those listed in that provision. In relation to Article 5(2), namely cases of lack of supervision or 
control, Article 6(2) indicates only the obligation to provide for penalties or measures which 
are effective, proportionate and dissuasive. 

All Member States (with the exception of CY, which does not indicate any specific fines 
in  relation  to  legal  persons)  provide  for  criminal  or  non-criminal  fines  in  relation  to 
conduct of legal persons as regards offences under Article 2. 

In relation to the optional ‘other penalties’, including the non-exhaustive list set out in Article 
6(1),  all but  five  Member  States  (AT,  DE,  EE, FI, IE) also  provide for measures other 
than fines: 

(a) 

(b) 

exclusion from entitlement to public benefits or aid was transposed by fourteen 
Member States (HR, CZ, FR, EL, HU, IT, LU, LV, MT, PL, PT, RO, SI, ES); 

temporary  or  permanent  disqualification  from  the  practice  of  commercial 
activities was transposed by fifteen Member States (BE, HR, CZ, FR, EL, HU, 
IT, LT, LV, MT, PL, PT, RO, SI, ES); 

(c)  placing under judicial supervision was transposed by six Member States: (FR, 

IT, MT, PT, RO, ES); 

(d) 

(e) 

judicial  winding-up  was  transposed  by  thirteen  Member  States  (BE,  HR,  CZ, 
FR, HU, LT, LU, LV, MT, PT, RO, SI, ES); 

temporary  or  permanent  closure  of  establishments  which  have  been  used  for 
committing the offence was transposed by seven Member States (BE, FR, LT, 
MT, PT, RO, ES). 

Additionally, sixteen Member States (BE, BG, HR, CZ, FR,  HU, IT, LT, LV, LU, NL, PL, 
PT,  RO,  SK,  SI)  provide  for  measures  not  listed  in  Article  6(1),  relating  mainly  to 
confiscation and the publication of the judgment. 

8 

 
2.1.5. 

Jurisdiction and coordination of prosecution (Article 7) 

Article 7 imposes on Member States an obligation to ensure that their jurisdictions cover at 
least the specified cases in relation to the offences referred to in Article 2. 

The  first  criterion  is  obligatory  and  refers  to  acts  committed  in  whole  or  in  part  within  a 
Member State’s territory, wherever the criminal organisation is based or pursues its criminal 
activities. All Member States comply with this provision embodying the  basic principle 
of territoriality, which is extended in most cases to ships and vessels. 

The second criterion, namely jurisdiction over acts committed by their nationals abroad, 
is  also  embodied  by  all  Member States.  This  fact  satisfies  simultaneously  for  all  Member 
States  the  requirement  of  Article  7(3)  that  imposes  an  obligation  to  either  establish 
jurisdiction over nationals for offences committed abroad or to extradite them. 

The  third  criterion  makes  reference  to  acts  committed  for  the  benefit  of  a  legal  person 
established  in  the  territory  of  the  Member  State.  A  clear  reference  to  this  provision  is 
present in the national legislation of four Member States (CZ, IE, IT, NL). 

With regard to restricting the jurisdiction of the latter two situations (Article 7(1)(b) and (c)) 
to specific circumstances applying when the offences are committed outside their territory, no 
Member State has taken such an approach. 

Article 7(2) refers to the obligation of cooperation between the Member States in cross-border 
cases (conflicts of jurisdiction). All Member States have national legislative instruments in 
relation  to  coordination  in  the  fight  against  serious  cross-border  crime  with  the 
possibility to use the support of Eurojust to strengthen the coordination and cooperation 
between  national  authorities.  The  task  of  Eurojust  to  support  the  Member  States  in  this 
respect is also part of the currently negotiated proposal for a Eurojust Regulation on the EU 
Agency for Criminal Justice Cooperation9.  

2.1.6.  Absence of requirement of a report or accusation by victims (Article 8) 

Article 8 of the Framework Decision obliges the Member States to ensure that investigations 
into,  or  prosecution  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. 

The ex officio proceedings in cases of prosecution of the offences referred to in Article 2 
are  the  principle  in  all  Member  States.  This  either  stems  directly  from  the  national 
legislation or is deduced from the fact that in certain Member States there are no conditions 
rendering prosecution dependent on such a report or accusation.   

2.2. 

Assessment  of  the  relevant  national  provisions  of  Member  States  that  do  not 
base their systems on a self-standing offence 

2.2.1.  Denmark’s transposition of the Framework Decision 

DK national legislation does not contain a self-standing offence in relation to Article 2 or the 
related definitions of Article 1. 

It  criminalises  generally  any  attempt  to  commit  criminal  offences  and  different  forms  of 
participation  in  those  offences,  while  penalties  depend  on  specific  conduct.  The  general 
aggravating  circumstance  based  on  the  commission  of  an  offence  by  more  than  one  person 
acting  in  association  is  applicable  to  all  criminal  offences.  DK  applies  wide-ranging 
mitigating circumstances to all criminal offences and has a criminal law system based on the 
horizontal liability of legal persons for all offences, with the relevant fines. Also, the general 

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COM (2013)535 final 

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rules  on  jurisdiction  cover  the  principle  of  territoriality  and  jurisdiction  over  nationals  for 
offences committed abroad. Ex officio proceedings without any report or accusation of victims 
are a general rule of criminal proceedings in DK. 

2.2.2. 

Sweden’s transposition of the Framework Decision 

SE national legislation does not contain a self-standing offence in relation to Article 2. 

It  criminalises  preparatory  acts  and,  in  most  cases,  attempts  in  relation  to  a  list  of  offences 
considered to be typically committed in the framework of a criminal organisation and which 
are at the same time committed for gain and punishable by imprisonment of a maximum of at 
least 4 years. The penalty for preparatory acts should be less than the highest and may be less 
than  the  lowest  limit  applicable  to  the  completed  offence,  which  cannot  exceed  2  years’ 
imprisonment  (unless  imprisonment  of  at  least  8  years  is  envisaged  for  the  completed 
offence).  The  national  provisions  render  the  aggravating  circumstance  based  on  the 
commission of an offence in a criminal organisation applicable to any criminal offence. The 
definition  of  organised  crime  is  applicable  for  this  specific  purpose.  The  SE  criminal  law 
system is based on the horizontal liability of legal persons for all offences with the relevant 
fines  and  additional  penalties.  Also,  the  general  rules  on  jurisdiction  cover  the  principle  of 
territoriality  and  jurisdiction  over  nationals  for  offences  committed  abroad.  Most  of  the 
criminal offences are prosecuted ex officio without any report or accusation of victims. 

3. 

CONCLUSIONS AND NEXT STEPS 

An  overview  of  the  Framework  Decision’s  transposition  in  the  Member  States  points  to  a 
number of divergences, which can to a large extent be attributed to differences in the Member 
States’ legal traditions. The Commission is of the opinion that the Framework Decision does 
not  achieve  the  necessary  minimum  degree  of  approximation  as  regards  directing  or 
participating  in  a  criminal  organisation  on  the  basis  of  a  single  concept  of  such  an 
organisation.  As  such,  the  Commission  considers  that  the  Framework  Decision  enables  the 
Member States not to introduce the concept of criminal organisation but to continue to apply 
existing  national  criminal  law  by  having  recourse  to  general  rules  on  participation  in  and 
preparation of specific offences. This may have the effect of creating additional divergences 
in the Framework Decision’s practical implementation. 

While  most  Member  States  have  adopted  self-standing  offences  in  relation  to 
participation  in  a  criminal  organisation  in  accordance  with  Article  2,  two  Member 
States  have  not  done  so.  All  Member  States  that  provide  for  a  self-standing  offence  cover 
participation in a criminal organisation (Article 2(a)), while a few of them cover additionally 
the offence of conspiracy in organised crime (Article 2(b)). No Member State has opted for 
criminalisation of only the offence of conspiracy in organised crime (Article 2(b)). 

Many Member States have gone beyond the minimum requirements. Some of them make 
the national provisions broader by not referring to all elements of the definition of organised 
crime, e.g. they do not mention the criterion of benefit or scope of predicate offences. As a 
result  the  national  legal  regime  applies  to  a  wider  range  of  offences,  e.g.  also  to  offences 
which are not necessarily committed for benefit (or where at least the benefit does not need to 
be proven) or cases where the scope is extended beyond the serious offences. In addition to 
the offences under Article 2, many Member States provide for measures that are not covered 
at all by the Framework Decision, e.g. parallel offences tackling specific types of organised 
groups  defined  through  their  objective  or  modus  operandi.  Another  example  of  national 
standards going beyond the Framework Decision is seen in basic penalty levels that are higher 
than envisaged by the Framework Decision  and, in some cases, are further increased due to 
e.g.  specific  conduct  or  role  in  the  organisation.  It  should  also  be  noted  that  the  optional 

10 

 
provisions, such as mitigating circumstances or penalties for legal persons, have been largely 
transposed. 

There are a number of issues that may require additional clarification in relation to the 
correct  implementation  of  the  Framework  Decision.  Those  issues  relate  mostly  to  the 
potentially  restricted  scope  of  application  of  the  definition  of  a  criminal  organisation  and 
issues concerning the correct transposition of Article 5 on the liability of legal persons. 

In  line  with  the  European  Agenda  on  Security,  which  calls  for  ensuring  the  better 
application  and  implementation  of  existing  EU  legal  instruments,  the  Commission  will 
provide support to Member States to ensure a satisfactory level of implementation of the 
Framework Decision. The Commission will also continue to monitor the compliance of 
the  national  measures  with  the  EU  instrument.  The  assessment  will  take  into  account 
also  whether  the  issues  identified  impact  on  the  proper  implementation  of  the 
Framework Decision.  

The  Commission  will  engage  in  bilateral  contacts  with  the  Member  States  concerned, 
and, where necessary, will make use of its enforcement powers under the Treaties.  

This work will also contribute to the assessment of the necessity and the opportunity to 
review the Framework Decision. 

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