Proposal for a COUNCIL DECISION on adding the violation of Union restrictive measures to the areas of crime laid down in Article 83(1) of the Treaty on the Functioning of the European Union
Date: 2022-05-25
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU restrictive measure, crime, economic sanctions, international sanctions, judicial cooperation in criminal matters in the EU, legal person, natural person, third country

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   EUROPEAN COMMISSION  Brussels, 25.5.2022  COM(2022) 247 final 2022/0176 (NLE)  Proposal for a COUNCIL DECISION on adding the violation of Union restrictive measures to the areas of crime laid down in Article 83(1) of the Treaty on the Functioning of the European Union  
 
EXPLANATORY MEMORANDUM 

(1)  CONTEXT OF THE PROPOSAL 

• 

Reasons for and objectives of the proposal 

(1) 

Introduction 

Restrictive measures are an essential tool for the promotion of the objective of the Common 
Foreign  and  Security  Policy  (‘CFSP’),  as  set  out  in  Article  21  of  the  Treaty  on  European 
Union  (‘TEU’).  These  objectives  include  safeguarding  the  Union’s  values,  maintaining 
international peace and security as well as consolidating and supporting democracy, the rule 
of law and human rights.  

For  the  sake  of  preserving  these  values,  the  Union  may  impose  restrictive  measures  against 
third countries, entities or individuals. These measures include targeted individual measures, 
i.e., targeted financial sanctions (asset freezes) and restrictions on admissions (travel bans), as 
well  as  sectoral  measures,  i.e.  arms  embargoes  or  economic  and  financial  measures  (e.g. 
import  and  export  restrictions,  restrictions  on  the  provision  of  certain  services,  such  as 
banking services)1. Preserving international peace and security, is of particular pertinence in 
the  current  context  of  Russia’s  invasion  of  Ukraine.  The  Union  has  put  in  place  a  series  of 
restrictive  measures  against  Russian  and  Belarusian  individuals  and  companies,  some  of 
which date back to 2014. In this context, in order to enhance Union-level coordination in the 
enforcement of these restrictive measures, the Commission set up a ‘Freeze and Seize’ Task 
Force2.  Besides  ensuring  coordination  among  Member  States  and  Union  Agencies  such  as 
Europol  and  Eurojust,  it  seeks  to  explore  the  interplay  between  restrictive  measures  and 
criminal law measures.   

Currently,  the  Union  has  over forty  regimes of restrictive measures in  place. Some of these 
implement  restrictive  measures  by  the  United  Nations;  others  are  adopted  autonomously  by 
the Union.  In addition  to regimes addressing country-specific situations, the Union has  also 
adopted horizontal regimes targeting proliferation and use of chemical weapons, cyberattacks, 
human  rights  violations  and  terrorism3.  Restrictive  measures  are  binding  on  Union  Member 
States  and  on  any  person  or  entity  under  the  jurisdiction  of  the  Member  States  (EU 
operators)4.  Inconsistent  enforcement  of  restrictive  measures  undermines  their  efficacy  and 

The Council adopts restrictive measures. The Council first adopts a CFSP Decision under Article 29 TEU. The  

1 
measures envisaged in the Council Decision are implemented either at Union or at national level. It has been the practice so  
far that measures such as arms embargoes or restrictions on admission are implemented directly by the Member States, which  
are legally bound to act in conformity with CFSP Council Decisions. Other measures interrupting or reducing, in part or  
completely, economic relations with a third country as well as individual measures freezing funds and economic resources,  
prohibiting the making available of funds and economic resources, are implemented by means of a Regulation adopted by the  
Council, acting by qualified majority, on a joint proposal from the High Representative of the Union for Foreign Affairs and  
Security Policy and the Commission, under Article 215 TFUE. Anti-circumvention provisions can be found in both types of  
acts. 
2 
steps up work with international partners, Press release European Commission, 17.03.2022, available at 
https://ec.europa.eu/commission/presscorner/detail/en/IP_22_1828;  ‘Freeze and Seize Task Force': Almost €30  
billion of assets of Russian and Belarusian oligarchs and entities frozen by the EU so far, Press release European  
Commission, 08.04.2022, available at https://ec.europa.eu/commission/presscorner/detail/en/IP_22_2373. 
3 
For an overview, see the EU sanctions Map, available at https://www.sanctionsmap.eu/#/main.  
4 
EU restrictive measures apply  within the jurisdiction (territory) of the Union: to EU nationals in any location: to 
companies and organisations incorporated under the law of a Member State- including branches of EU companies in third 

Enforcing sanctions against listed Russian and Belarusian oligarchs: Commission's “Freeze and Seize” Task Force  

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the Union’s ability to speak with one voice5. The implementation and enforcement of Union 
restrictive  measures  is  primarily  the  responsibility  of  Member  States.  The  competent 
authorities  in  the  Member  States  have  to  assess  whether  there  has  been  a  breach  of  the 
relevant Council Regulation adopted under Article 215 of the Treaty on the Functioning of the 
European Union (‘TFEU’) and to take adequate measures.  

In this regard, Union Regulations systematically include a provision requiring Member States 
to  adopt  national  rules  providing  for  effective,  proportionate  and  dissuasive  penalties  for 
infringements of the provisions of those Regulations6. 
These Regulations generally include: 

 

 

 

the restrictive measures; 

the anti-circumvention clause, which prohibits knowing and intentional participation 
in activities that seek to circumvent the restrictive measures in point7; and 

other  obligations,  in  particular  to  report  on  steps  taken  to  implement  the  restrictive 
measures (e.g. reporting to authorities the amount of assets that have been frozen). 

Article 215 TFEU provides a legal basis for the Council to adopt the ‘necessary measures’ in 
the  case  of  an  adoption  of  Union  restrictive  measures.  However,  the  legal  basis  for  the 
adoption  of  restrictive  measures  does  not  allow  for  the  approximation  of  criminal  law 
definitions and the types and levels of criminal penalties8.  

As  will  be  discussed  in  more  detail  in  the  sections  below,  in  the  absence  of  Union-level 
harmonisation, national systems differ significantly as far as criminalisation of the violation of 
Council Regulations on Union restrictive measures (‘violation of Union restrictive measures’) 
is concerned. Equally, criminal penalty systems differ substantially.  

Against this background, the Commission proposes to  add the violation of Union restrictive 
measures to the areas of crime laid down in Article 83(1) of the Treaty on the Functioning of 
the  European  Union  (‘TFEU’).  Once  the  Council  reaches  agreement  and  the  European 
Parliament grants its consent to add the violation of Union restrictive measures to the areas of 
crime  laid  down  in  Article  83(1)  of  the  TFEU,  the  Commission  will  be  in  a  position  to 
propose  a  Directive  under  the  ordinary  legislative  procedure,  which  could  approximate  the 
definition of criminal offences and sanctions.  

countries; on board aircraft or vessels under Member States’ jurisdiction; European Commission, Frequently asked questions: 
Restrictive measures(sanctions), available at https://ec.europa.eu/commission/presscorner/detail/en/qanda_22_1401. 
5 
Communication from the Commission, The European economic and financial system: fostering openness, strength 
and  resilience,  COM(2021)  32  final  of  19.01.2021,  section  5  (strengthening  the  implementation  and  enforcement  of  EU 
sanctions),  p.  16,  available  at  https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021DC0032&from=EN; 
In the same Communication the Commission notes that the  implementation [of EU restrictive  measures] is not as uniform 
across the EU as it ought to be. This creates distortions in the Single Market as EU companies, including EU subsidiaries of 
foreign  companies,  can  circumvent  prohibitions.  This  also  creates  uncertainty  among  operators.  As  cited,  inconsistent 
enforcement  undermines  the  efficacy  of  [restrictive  measures]  and  the  EU’s  ability  to  speak  with  one  voice.  Among  other 
initiatives,  the  strategy  calls  for  further  coordination  work  between  the  Commission  and  Member  States  to  ensure  that 
national penalties for breaching EU restrictive measures are effective, proportionate and dissuasive. 
6 
For  an  example,  see  Article  8  of  Council  Regulation  (EU)  No  833/2014  of  31  July  2014  concerning  restrictive 
measures  in  view  of  Russia's  actions  destabilising  the  situation  in  Ukraine,  consolidated  text  available  at  EUR-Lex  - 
02014R0833-20220413 - EN - EUR-Lex (europa.eu). 
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participate in schemes created to that end. 
8 
Article 29 TEU, Article 215 TFEU. 

The  approximation  of  criminal  definitions  and  sanctions  cannot  take  place  on  the  non-legislative  legal  basis  of 

It is noted that that this clause is also applicable if the restrictive measures have not been breached; it is enough to  

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In view of the urgent need to hold listed individuals and entities involved in the violation of 
Union  restrictive  measures  accountable,  today  the  Commission  is  also  adopting  a 
Communication, which has an annex that sets out the main elements that a future Directive on 
criminal sanctions for the violation of Union rules on restrictive measures could contain.9 

The sections below examine the problems the current proposal seeks to tackle, together with 
their  underlying  causes  and  the  negative  consequences  caused  by  the  current  state  of  play. 
This will be followed by a presentation of the objectives of the proposal, and its added value, 
including the reasons why it complies with the criteria for adding an area of crime to Article 
83(1) TFEU. 

Problems the proposal addresses 

(2) 
As the adoption of Union restrictive measures has intensified over the last decades10, so too 
have the schemes to evade them, including by those on a restrictive measures list that are well 
resourced  and  able  to  avail  themselves  of  “facilitators”  (lawyers,  notaries  etc.)  and  “tools” 
(complex  legal  structures  to  hide  beneficial  ownership  of  the  assets  for  instance)  to  escape 
their application.  

In this regard, a 2021 report by the European Network of contact points in respect of persons 
responsible for genocide, crimes against humanity and war crimes (‘Genocide Network’)11 is 
of  particular  relevance.  Based  on  a  comparative  assessment  of  the  situation  in  the  Member 
States, the Genocide Network report points out that in practice, very few individuals or legal 
persons  responsible  for  the  violation  of  Union  restrictive  measures  are  effectively  held 
accountable12.  However,  it  also  notes  that  ‘a  positive  trend  can  be  observed  recently  in  the 
number of enforcement actions launched and the rise in penalties imposed by certain national 
authorities’13.  

Despite the positive trends in some Member States, there seem to be only be a few in which 
there are ongoing judicial proceedings related to the violation of Union restrictive measures14. 
This  can  serve  as  an  indication  that  insufficient  priority  is  given  to  investigating  and 
prosecuting the violation of Union restrictive measures in many Member States. In addition, 
law enforcement authorities face significant hurdles due to the specific category of offenders, 
victims and the complex nature of the (combination of) offences concerned.  

Violations  of  Union  restrictive  measures  often  have  a  cross-border  nature.  For  example,  a 
company  may  buy  equipment  via  a  foreign  intermediary,  knowing  that  the  true  vendors  are 

Communication from the Commission to the European Parliament and the Council, Towards a  

See the EU Sanctions Map, supra note 1. 
Council Decision of 13 June 2002 setting up a European network of contact points in respect of persons responsible 
(2002/494/JHA)  Eurojust,  Genocide  Network,  see 

9  
Directive on criminal penalties for the violation of Union restrictive measures, COM (2022) 249 of 25.05.2022. 
10 
11 
for  genocide,  crimes  against  humanity  and  war  crimes 
https://www.eurojust.europa.eu/judicial-cooperation/practitioner-networks/genocide-
network?msclkid=de6a1668cf6011eca5681e93e0033be2.   
12 
Genocide  Network,  Prosecution  of  sanctions  (restrictive  measures)  violations  in  national  jurisdictions:  a 
comparative analysis, 2021, p. 4. An overview of the relevant legislation from Member States and Network Observer States 
see  
is 
https://www.eurojust.europa.eu/sites/default/files/assets/genocide_network_report_on_prosecution_of_sanctions_restrictive_
measures_violations_23_11_2021.pdf  ;  In  view  of  a  presentation  in  the  Council  Working Party  on  Judicial  Cooperation  in 
Criminal Matters (COPEN) the report was also published in Council doc. 7274 of 16 March 2022. 
13 
comparative analysis, 2021, p. 13.  
14 
national jurisdictions: a comparative analysis, 2021, p. 14. 

For  a  selection  of  cases  see  Genocide  Network,  Prosecution  of  sanctions  (restrictive  measures)  violations  in 

Genocide  Network,  Prosecution  of  sanctions  (restrictive  measures)  violations  in  national  jurisdictions:  a 

provided 

report, 

expert 

annex 

the 

the 

to 

in 

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countries,  entities  and  individuals  subject  to  restrictive  measures15.  In  the  realm  of  asset 
freezes,  for  instance,  an  international  bank  may  facilitate  the  transfer  of  a  “frozen”  yacht 
owned by a listed individual. Such a prohibited transfer could involve a law firm, which aids 
in the commission of the crime by drafting the papers for the sale of the yacht and, in some 
cases,  a  corrupt  government  official  who  allows  for  its  change  in  ownership.  Money 
laundering and/or shell companies might also be accessory means to conceal the origins of the 
payment for the yacht.  

As there are often no direct victims of the violation of restrictive measures, their investigation 
and prosecution depend on detection by national competent authorities. Furthermore, reports 
by  whistleblowers16  or  complaints  by  civil  society  organisations17  play  an  important  role  in 
reporting violations of restrictive measures.  

As  regards  the  interaction  of  the  Member  States’  approach  towards  the  criminalisation  of 
violations of Union restrictive measures with confiscation measures, it should be pointed out 
that in most Member States, confiscation is only possible based on a criminal conviction, or at 
least established links with criminal activities. Nevertheless, even if in several Member States 
the violation of restrictive measures has been criminalised, differences among Member States 
can lead to a fragmented approach in cross-border cases. 

(3) 

Underlying causes of the problems 

Those involved in illicit practices concerning Union restrictive measures may profit from the 
fact  that  Member  States  have  very  different  definitions  and  penalties  for  the  violation  of 
Union  restrictive  measures  under  their  administrative  and/or  criminal  law18.  Some  Member 
States  use  broad  definitions,  such  as  ‘breach  of  UN  and  EU  sanctions’  or  ‘breach  of  EU 
regulations’19.  Other  Member  States  have  more  detailed  provisions  in  place,  for  instance 
providing a list of prohibited conduct20.  

Based  on  the  replies  received  to  a  questionnaire  circulated  by  the  Genocide  Network,  its 
further consultations21 and additional research carried out by the Commission in view of this 
proposal,  it  can  be  concluded  that  in  13  Member  States  the  violation  of  Union  restrictive 
measures can amount to either an administrative or criminal offence. The criteria according to 

7 

English 

(France), 

September 

15 
Idem, p. 19-20.  
16 
EU Sanctions Whistle-blower Tool, available at: https://eusanctions.integrityline.com/frontpage. 
17 
An example is the Lafarge case based on a criminal complaint by two civil society organisations, together with 11 
former  Syrian  employees  of  Lafarge  discussed  in  Genocide  Network,  Prosecution  of  sanctions  (restrictive  measures) 
violations  in  national  jurisdictions:  a  comparative  analysis,  2021,  section  4.2.,  p.  17;  case  number  19-87.367  -  Cour  de 
Cassation 
at 
translation 
2021, 
https://www.eurojust.europa.eu/sites/default/files/assets/21.09.07._cour_de_cassation_decision.pdf.  
18  
Idem, section 5, p. 22. 
19 
For instance, Article 459 of the French Customs Code (Code des douanes) provides that ‘any person who infringes 
or attempts to infringe upon economic and financial restriction measures decided (i) at EU level on the basis of Article 215 of 
the TFEU or (ii) on the basis of international agreements ratified by France  faces up to five  years of imprisonment. Legal 
persons may also be prosecuted for such offences.’, see Genocide Network,  Prosecution of sanctions (restrictive measures) 
violations in national jurisdictions: a comparative analysis, 2021, annex; For the original version in French see 
https://www.legifrance.gouv.fr/codes/id/LEGITEXT000006071570/?msclkid=ad92a692cece11ec9180daeb34a1af50; 
Belgium, Cyprus, the Czech Republic and Lithuania have similar provisions in place, see Genocide Network, Prosecution of 
sanctions (restrictive measures) violations in national jurisdictions: a comparative analysis, 2021, annex. 
20 
For example Article 18(2) and 19(5) of the German Foreign Trade and Payments Act (Außenwirtschaftsgesetz), see 
https://www.gesetze-im-internet.de/awg_2013/?msclkid=77c4bc27ced011ecad0f49edf9add31e. Other Member States where  
national law goes beyond simply providing for the criminalisation of violations of Union restrictive measures are,  
for  instance,  Hungary  and  Slovenia,  see  Genocide  Network,  Prosecution  of  sanctions  (restrictive  measures)  violations  in 

available 

national jurisdictions: a comparative analysis, 2021, section 5, annex. 
Genocide  Network,  Prosecution  of  sanctions  (restrictive  measures)  violations  in  national  jurisdictions:  a 

21 
comparative analysis, 2021, annex. 

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which the conduct falls within one or the other regime are different in each Member State, but 
they are usually related to their gravity (serious nature), or determined in qualitative (intent, 
serious  negligence)  or  quantitative  (damage)  terms22.  In  12  Member  States,  the  violation  of 
Union  restrictive  measures  is  a  criminal  offence  only.  However,  in  two  Member  States,  the 
specific  offence  of  violation  of  Union  restrictive  measures  can  only  result  in  administrative 
penalties 23. 

Table: Categorisation of the violation of Union restrictive measures 

Categorisation  of  the  violation  of  Union 
restrictive measures 

Member States 

The  violation  of  restrictive  measures  is  either 
criminal or administrative offence 

BE, BG, CZ, DE, EE, IE, EL, IT, LT, 
AT, PL, RO, SI 

The  violation  of  restrictive  measures  is  a 
criminal offence 

DK, FR, HR, CY, LV, LU, HU, MT, 
NL, PT, FI, SE 

The  violation  of  restrictive  measures  is  an 
administrative offence 

ES, SK 

As  regards  prison  sentences,  in  14  Member  States  the  maximum  length  of  imprisonment  is 
between 2 and 5 years  whereas in eight Member States, maximum sentences between 8 and 
12  years  are  possible24.  The  maximum  fine  that  can  be  imposed  for  the  violation  of  Union 
restrictive  measures  –  either  as  a  criminal  or  as  an  administrative  offence  –  varies  greatly 
across Member States, ranging from EUR 1200 to EUR 500,00025. Fourteen Member States 
provide for liability of legal persons for the violation of Union restrictive measures26. Twelve 
Member States provide for administrative penalties, notably fines, which may be imposed on 
legal  persons when their employees (or at  least  management) violate sanctions27. Maximum 
fines for legal persons range from EUR 133,000 to 37, 5 million28. 

Finally, the violation of Union restrictive measures is punished by means of criminal law in a 
number  of  third  countries  as  well,  such  as  Canada29  and  the  United  States  (‘US’).  The  US 
Department of Justice has criminal jurisdiction over wilful violation of restrictive measures in 
accordance  with  the  International  Emergency  Economic  Powers  Act  (‘IEEPA’)30  and  the 
Trading with the Enemy Act.31 Pursuant to Section 206 of the IEEPA, criminal penalties for 
wilful violation of restrictive measures include a maximum 20-year term of imprisonment and 

Genocide  Network,  Prosecution  of  sanctions  (restrictive  measures)  violations  in  national  jurisdictions:  a 

22 
comparative analysis, 2021, section 5.1., p. 22. 
23 Idem. 
24  
25  
26 
27  
28  
29 
comparative analysis, 2021, p. 13. 
30 
Powers Act: Origins, Evolution and Use, March 2022, available at https://crsreports.congress.gov/product/pdf/R/R45618/8.  
31 

Idem, section 5.2., p.23.   
Idem, section 5.1., p.24.   
Idem, based on the report of the Genocide Network and further investigation by the Commission. 
Idem, section 5.3., p.24.   
Idem, section 5.1., p.24.   
Genocide  Network,  Prosecution  of  sanctions  (restrictive  measures)  violations  in  national  jurisdictions:  a 

50  U.S.C.,  paragraphs  1701-06(2011);  Congressional  Research  Service,  The  International  Emergency  Economic 

50 U.S.C., paragraphs 4301-41 (2009). 

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a maximum USD 1 million fine32. US authorities have imposed heavy criminal fines for the 
violation of restrictive measures. 

(4) 

Negative consequences of the status quo  

In  the  absence  of  law  enforcement,  and  judicial  authorities  having  the  right  tools  and 
resources  available  to  prevent,  detect,  investigate  and  prosecute  the  violation  of  Union 
restrictive  measures,  designated  individuals  and  legal  persons  whose  assets  are  frozen 
continue to be able to access their assets in practice and support regimes that are targeted by 
Union restrictive measures.  

Moreover, the fact that Member States have very different definitions of, and heterogeneous 
penalties  for,  the  violation  of  Union  restrictive  measures  under  their  administrative  and/or 
criminal law indicates that the same infringement might be punished with different penalties 
and  different  enforcement  levels.  Politically,  this  weakens  the  enforcement  of  Union 
restrictive measures and undermines the credibility of the Union’s objectives. 

Finally, the proceeds  generated by the exploitation  of  goods and  natural  resources traded in 
violation of Union restrictive measures may also allow the entities or individuals targeted by 
those  restrictive  measures  to  purchase  arms  and  weapons  with  which  they  could  perpetrate 
their crimes33. The violation of import restrictions could furthermore contribute to the illegal 
exploitation  of  goods  and  natural  resources  in  the  country  targeted  by  those  restrictive 
measures34, with subsequent environmental and social harm.  

(5) 

Objectives of the proposal 

Against  this  background,  and  in  view  of  the  urgent  need  to  end  impunity  for  violations  of 
restrictive  measures  following  Russia’s  invasion  of  Ukraine,  this  proposal  aims  at  initiating 
the  procedure  set  out  in  Article  83(1),  third  subparagraph  TFEU.  In  accordance  with  this 
procedure,  based  on  developments  in  crime,  the  Council  may  adopt  a  decision  identifying 
other areas of crime that meet the criteria specified in Article 83(1) TFEU. These should be 
areas of ‘particularly serious crime with a cross-border dimension resulting from the nature or 
impact  of such offences  or from a special need to combat them  on  a  common basis’35. The 
Council acts unanimously after obtaining the consent of the European Parliament.  

Article 83(1) TFEU currently does not allow for establishing minimum rules concerning the 
definition  and  penalties  for  any  violation,  including  circumvention,  of  Union  restrictive 
measures since the violation of Union restrictive measures as such is not yet covered by the 
areas  of  crimes  listed  in  that  Article.  The  areas  of  crime  currently  listed  are  terrorism, 
trafficking in human beings, sexual exploitation of children, drug trafficking, arms trafficking, 

32 
IEEPA, section 206: § 510.701 Penalties: ‘(a) Section 206 of the International Emergency Economic Powers Act 
(50 U.S.C. 1705) (IEEPA) is applicable to violations of the provisions of any license, ruling, regulation, order, directive,  or 
instruction  issued  by  or  pursuant  to  the direction or  authorization  of  the  Secretary  of  the  Treasury  pursuant  to this part  or 
otherwise under IEEPA (…) (3) A person who wilfully commits, wilfully attempts to commit, wilfully conspires to commit, 
or aids or abets in the commission of a violation of any license, order, regulation, or prohibition  may, upon conviction, be 
fined not more than $1,000,000, or if a natural person, be imprisoned for not more than 20 years, or both.’ 
33 
comparative analysis, 2021, p. 14.  
34 Idem, p. 5.  
35 

Genocide  Network,  Prosecution  of  sanctions  (restrictive  measures)  violations  in  national  jurisdictions:  a 

Article 83(1) TFEU. 

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corruption,  money  laundering,  counterfeiting  of  means  of  payment,  computer  crime  and 
organised  crime.  The  violation  of  Union  restrictive  measures  may  however  be  related  to 
criminal offences covered by some of the listed areas of crime, such as terrorism and money 
laundering. 

The  criteria  referred  to  in  Article  83(1)  TFEU  relating  to  the  cross-border  dimension  of  an 
area  of  a  crime,  namely  the  nature,  or  impact  of  criminal  offences  and  the  special  need  to 
combat on a common basis are inter-linked and should not be assessed in isolation. In the case 
of the violation of Union restrictive measures, these criteria are met because: 

 

 

 

 

First,  the  violation  of  Union  restrictive  measures  should  be  qualified  as  an  area  of 
crime  in  order  to  ensure  the  effective  implementation  of  the  Union’s  policy  on 
restrictive measures. The violation of restrictive measures is already categorised as a 
criminal  offence  by  a  majority  of  Member  States.  Among  those  Member  States 
which  categorise  the  violation  of  restrictive  measures  as  a  criminal  offence,  some 
have broad definitions in place, such as ‘breach of UN and EU sanctions’ or ‘breach 
of  EU  regulations’,  whereas  others  have  more  detailed  provisions,  for  instance 
providing  a  list  of  prohibited  conduct.  The  criteria  according  to  which  the  conduct 
falls  within  the  scope  of  criminal  law  vary  among  Member  States,  but  they  are 
usually  related  to  their  gravity  (serious  nature),  either  determined  in  qualitative 
(intent, serious negligence) or quantitative (damage) terms. 

to 

threats 

international  peace  and  security,  undermine 

Second,  this  is  a  particularly  serious  area  of  crime,  which  presents,  in  gravity,  a 
similar seriousness to the areas of crime already listed in Article 83(1) TFEU, since it 
the 
may  perpetuate 
consolidation and support for democracy, the rule of law and human rights and result 
in  significant  economic,  social/  societal  and  environmental  damage.  Designated 
individuals and legal persons whose assets are frozen, continue to be able to access 
their assets in practice and support regimes that are targeted by restrictive measures. 
Similarly,  the  money  generated  by  the  exploitation  of  natural  resources  traded 
through  the  violation  of  Union  restrictive  measures  may  also  allow  the  regimes 
targeted by those restrictive measures to purchase arms and weapons with which they 
execute their crimes. The violation of Union restrictive measures could furthermore 
contribute  to  the  illegal  exploitation  of  goods  and  natural  resources  in  the  regime 
targeted by those restrictive measures.  

Third,  violations  of  Union  restrictive  measures  have  a  clear  and  at  times  even 
inherent  cross-border  dimension.  Not  only  are  they  usually  committed  by  natural 
persons  and  legal  entities  operating  on  a  global  scale  but  in  some  cases  Union 
restrictive  measures,  such  as  import  and  export  restrictions  and  restrictions  on 
banking  services  even  forbid  cross-border  operations.  Hence,  by  definition,  their 
violation  is  conduct  on  a  cross-border  scale  requiring  a  common  cross-border 
response at Union level.  

Fourth, the fact that Member States have very different definitions and penalties for 
the violation of Union restrictive measures under their administrative and/or criminal 
law suggests that the same infringement  might  be punished with  different  penalties 
and  different  enforcement  levels.  This  undermines  Union  objectives  to  safeguard 
international peace and security and uphold Union common values. Therefore, there 
is a special need for common action at Union level to address the violation of Union 
restrictive measures by means of criminal law.  

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 

Fifth,  the  different  definitions  of,  and  heterogeneous  sanctions  for,  the  violation  of 
Union restrictive measures under Member States’ administrative and/or criminal law 
represent an obstacle to the consistent application of the Union policy on restrictive 
measures. They may even lead to forum shopping by offenders and  ultimately their 
impunity because they could choose to conduct their activities in the Member States 
that provide for less severe responses to the violation of Union restrictive measures. 
Harmonisation would also increase the deterrent effect of sanctions for the violation 
of Union restrictive measures. 

Beyond  complying  with  the  criteria  referred  to  in  Article  83(1)  TFEU,  common  action  at 
Union  level  would  not  only  contribute  towards  a  level  playing  field  among  Member  States, 
but  also  contribute  towards  a  global  level  playing  field  and  law  enforcement  and  judicial 
cooperation in countering the violation of restrictive measures. 

As  will  be  further  discussed  below,  the  proposal  to  add  the  violation  of  Union  restrictive 
measures  to  the  areas  of  crime  laid  down  in  Article  83(1)  TFEU  complements  the 
Commission proposal36 that aims to  revise the Directive on the freezing and confiscation of 
instrumentalities and proceeds of crime in the European Union and the Council Decision on 
Asset  Recovery  Offices37.  The  proposed  new  Directive  on  asset  recovery  and  confiscation 
would  apply  to  the  violation  of  Union  restrictive  measures  insofar  as  this  offence  would  be 
harmonised under Union law.   

Once the Council, after obtaining the consent of the European Parliament, agrees to add the 
violation  of  Union  restrictive  measures  as  an  area  of  crime  under  Article  83(1)  TFEU,  the 
Commission will be able to propose a Directive on the violation of Union restrictive measures 
under  the  ordinary  legislative  procedure.  As  mentioned,  today  the  Commission  is  also 
adopting a Communication, which has an annex that sets out the main elements that a future 
Directive on criminal sanctions for the violation of Union rules on restrictive measures could 
contain38.  

• 

Consistency with existing policy provisions in the policy area 

Article 2 of the Treaty on European Union (‘TEU’) lays down the Union’s common values of 
human dignity, freedom, democracy, equality, the rule of law and respect  for human rights. 
The  effective  enforcement  of  restrictive  measures,  including  through  criminal  law  measures 
aimed  at  addressing  the  violation  of  restrictive  measures,  supports  the  upholding  of  such 
common values within and outside the Union.  

Furthermore, the Union  constitutes an area of freedom,  security and justice with  respect  for 
fundamental rights and different legal systems and traditions of the Member States. It aims to 
ensure a high level of security through measures including preventing and combatting crime, 
racism and xenophobia. Under Article 83(1) TFEU, the European Parliament and the Council 
may establish minimum rules concerning the definition of criminal offences and penalties in 

36  

European Commission, Proposal for a Directive of the European Parliament and of the Council on asset 
recovery and confiscation, COM (2002) 245 of 25.05.2022. 
37 
Directive  2014/42/EU  of  the  European  Parliament  and  of  the  Council  of  3  April  2014  on  the  freezing  and 
confiscation  of  instrumentalities  and  proceeds  of  crime  in  the  European  Union,  OJ  L  127,  29.4.2014,  p.  39–50;  Council 
Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States 
in the field of tracing and identification of proceeds from, or other property related to, crime, OJ L 332, 18.12.2007, p. 103–
105.  
38 Communication from the Commission to the European Parliament and the Council, Towards a Directive on  
criminal penalties for the violation of Union restrictive measures, COM (2022) 249 of 25.05.2022. 

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the  areas  of  particularly  serious  crime  with  a  cross-border  dimension,  resulting  from  the 
nature or impact of such offences or from a special need to combat them on a common basis.  

As previously mentioned, enabling the approximation of criminal definitions and penalties for 
the violation  of Union  restrictive measures will  complement the Commission proposal  for a 
Directive on asset recovery and confiscation, implementing the Security Union Strategy39 and 
the EU strategy to tackle organised crime40.  

This  proposal  aims  at  strengthening  the  capabilities  of  national  authorities  to  trace  and 
identify,  freeze  and  manage  property  which  is  the  proceeds  or  instrumentalities  of  crime. 
Furthermore, it provides for a reinforced legal framework on confiscation including specific 
cases where a conviction for a specific crime is not possible.   

In  addition,  the  new  proposal  contributes  to  the  effective  implementation  of  restrictive 
measures  by  requiring  Member  States  to  enable  the  tracing  and  identification  of  property 
linked  to  violations  of  Union  restrictive  measures  as  defined  under  national  law  and  by 
making the revised rules on asset recovery and confiscation applicable to the criminal offence 
of the violation of Union restrictive measures.  

Following the adoption of a Directive approximating the definitions and sanctions related to 
the violation of Union restrictive measures, potential elements of which are discussed further 
in  the  aforementioned  Communication  also  adopted  today,  the  rules  on  tracing  and 
identification, freezing, management, and confiscation measures would become applicable to 
property  related  to  the  violation  of  Union  restrictive  measures.  In  the  end,  proceeds  of  the 
violation  of  Union  restrictive  measures,  for  example  in  instances  where  individuals  and 
companies  would  make  available  funds  to  those  subject  to  targeted  financial  sanctions  (i.e. 
asset  freezes),  could  become  the  object  of  confiscation  measures.  At  the  same  time, 
instrumentalities used to pursue the violation of restrictive measures could become the object 
of confiscation as well. 

• 

Consistency with other Union policies 

Council Regulations on Union restrictive measures 

The establishment of minimum rules concerning the criminal law definition of and penalties 
for  the  violation  of  restrictive  measures  based  on  Article  83(1)  TFEU  would  strengthen  the 
enforcement of restrictive measures in the Member States, thereby complementing measures 
taken  in  accordance  with  Article  29  TEU  and  Article  215  TFEU.  The  Commission  and  the 
High Representative for Foreign Affairs and Security Policy have proposed to strengthen the 
provision  on penalties in  Regulations  833/2014  and 269/2014  in  the framework of the sixth 
package  of  restrictive  measures  in  response  to  the  Russian  aggression  against  Ukraine.  The 
amended provisions would oblige Member States to lay down the rules on penalties, including 
as appropriate criminal penalties, applicable to infringements of these regulations and to take 
all measures necessary to ensure that they are implemented. The penalties must be effective, 
proportionate  and  dissuasive.  Member  States  must  also  provide  for  appropriate  measures  of 

39 
Communication  from  the  Commission  to  the  European  Parliament,  the  European  Council,  the  Council,  the 
European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions  on  the  EU  Security  Union  Strategy,  COM 
(2020) 605 final of 24.07.2020. 
40 
European Economic and Social Committee and the Committee of the Regions on the EU strategy to tackle  
organised crime, COM (2021) 70 final of 14.04.2021. 

Communication from the Commission to the European Parliament, the European Council, the Council, the  

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confiscation  of  the  proceeds  of  such  infringements.  However,  as  previously  mentioned, 
Article 29 TEU and Article 215 TFEU are not a legal basis for the approximation of criminal 
definitions and the types and levels of criminal penalties. 

2021 Commission Communication on the European economic and financial system 

Furthermore,  in  its  2021  Communication  entitled  ‘The  European  economic  and  financial 
system:  fostering  openness,  strength  and  resilience’41,  the  Commission  notes  that  the 
implementation [of Union restrictive measures] is not as uniform across the Union as it ought 
to  be.  This  creates  distortions  in  the  Single  Market,  as  Union  companies,  including  EU 
subsidiaries of foreign companies, can find means to circumvent the restrictive measures. This 
also creates uncertainty among operators. As cited, inconsistent enforcement undermines the 
efficacy  of  [Union  restrictive  measures]  and  the  Union’s  ability  to  speak  with  one  voice. 
Among  other  initiatives,  the  strategy  calls  for  further  coordination  work  between  the 
Commission and Member States to ensure that national penalties for breaching EU restrictive 
measures are effective, proportionate and dissuasive. 

(2)  LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

• 

Legal basis 

Under Article 83(1) TFEU, the European Parliament and the Council may establish minimum 
rules concerning the definition of criminal offences and sanctions in the areas of particularly 
serious  crime  with  a  cross-border  dimension  resulting  from  the  nature  or  impact  of  such 
offences  or  from  a  special  need  to  combat  them  on  a  common  basis.  Those  areas  of  crime, 
which are listed in this article, are the following: terrorism, trafficking in human beings and 
sexual  exploitation  of  women  and  children,  illicit  drug  trafficking,  illicit  arms  trafficking, 
money  laundering,  corruption,  counterfeiting  of  means  of  payment,  computer  crime  and 
organised crime. As it currently stands, this list does not allow for establishing minimum rules 
concerning the definition of and sanctions for the violation of restrictive measures. 

The  present  proposal  aims  at  initiating  the  procedure  set  out  in  Article  83(1),  third 
subparagraph TFEU. In accordance with this procedure, based on developments in crime, the 
Council may adopt a decision identifying other areas of crime that meet the criteria specified 
in Article 83(1) TFEU, in this case the violation of Union restrictive measures. The Council 
acts unanimously after obtaining the consent of the European Parliament. The justification for 
how the criteria specified under Article 83(1) TFEU are met in this case have been discussed 
in section 1.5 above. 

• 

Subsidiarity (for non-exclusive competence)  

The objective of this Decision, namely adding the violation of Union restrictive measures to 
the  areas  of  crime  laid  down  in  Article  83(1)  TFEU,  has  to  be  achieved  at  Union  level.  It 
therefore  complies  with  the  principle  of  subsidiarity  as  set  out  in  Article  5  TEU.  In  this 

41 

COM(2021) 32 final of 19.01.2021 

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particular case, the need for action at Union level was further demonstrated when discussing 
why the criteria specified under Article 83(1) TFEU are met (section 1.5 above). 

• 

Proportionality 

In accordance with the principle of proportionality, any measure proposed by the Commission 
should not exceed what is necessary to achieve its purpose. The decision to add the violation 
of  Union  restrictive  measures  to  the  list  of  EU  crimes  in  Article  83(1)  TFEU  would  be 
proportionate in view of the fact that the criteria specified under Article 83(1) TFEU are met. 
Moreover, this decision would be without prejudice to the actions that could be undertaken in 
a  second  step.  In  particular,  it  does  not  determine  or  pre-empt  the  scope  and  content  of  the 
secondary legislation that could be subsequently proposed.  

• 

Choice of the instrument 

The  present  proposal  aims  at  initiating  the  procedure  set  out  in  Article  83(1),  third 
subparagraph.  In  accordance  with  this  procedure,  based  on  developments  in  crime,  the 
Council may adopt a decision identifying other areas of crime that meet the criteria specified 
in  Article  83(1)  TFEU,  in  this  case  the  violation  of  restrictive  measures.  It  shall  act 
unanimously after obtaining the consent of the European Parliament.   

(3)  RESULTS 

EX-POST 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EVALUATIONS, 

OF 

STAKEHOLDER 

• 

Collection and use of expertise 

Following Russia’s invasion of Ukraine, the Commission set up the ‘Freeze and Seize’ Task 
Force at the beginning of March 2022. Its aim is to ensure coordination among Member States 
in  the  enforcement  of  the  Union  restrictive  measures  concerning  Russian  and  Belarussian 
listed  individuals  and  companies,  and  to  explore  the  interplay  between  Union  restrictive 
measures  and  criminal  law  measures.  These  exchanges  of  views  included  meetings  with 
national competent authorities for the implementation of sanctions, Eurojust and the Genocide 
Network42, the Secretariat of which is hosted by Eurojust.  

A specific subgroup of the ‘Freeze and Seize’ Task Force is dedicated to the enhancement of 
the implementation of Union restrictive measures. In particular, it tackles questions raised by 
national authorities and explore possible ways to identify assets proactively. Representatives 
and national competent authorities of the Member States participate in this subgroup. During 
the exchanges of views taking place in the context of this subgroup, the difficulties in holding 
individuals  and  legal  persons  involved  in  the  violation  of  Union  restrictive  measures 
accountable  emerged  on  several  occasions.  Participants  in  such  exchange  also  argued  in 
favour of a common criminal law approach to the violation of Union restrictive measures.  

Evidence  of  the  need  for  such  a  common  approach  is  specifically  provided  for  in  a  report 
prepared by the Genocide Network43 and published in December 2021. This report highlights 

Eurojust, 

Genocide 

42 
networks/genocide-network?msclkid=de6a1668cf6011eca5681e93e0033be2.   
43 
jurisdictions: a comparative analysis, 2021.  

Network, 

see 

Genocide  Network,  Expert  Report  on  Prosecution  of  sanctions  (restrictive  measures)  violations  in  national 

https://www.eurojust.europa.eu/judicial-cooperation/practitioner-

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the  need  for  the  penalisation  of  the  violation  of  Union  restrictive  measures  to  ensure  that 
individuals or legal persons responsible for such violations are effectively held accountable.44 
It furthermore concludes that ‘prosecuting sanctions violations can offer a safety net to avoid 
impunity’, especially regarding the link with core international crimes45.   

Furthermore,  discussions  within  the  subgroup  of  the  Task  Force  on  investigations  and 
confiscation  demonstrated  the  importance  of  a  proactive  approach  and  coordination  among 
authorities  competent  for  the  implementation  of  Union  restrictive  measures.  Financial 
Intelligence  Units,  law  enforcement  authorities  and  customs  authorities,  along  with 
international  partners,  civil  society  and  investigative  journalists,  should  cooperate  and 
exchange information in order to obtain the leads that will enable law enforcement to start an 
investigation. 

The Commission also consulted its Expert Group on EU Criminal Policy on 13 May 202246, 
which welcomed the idea of harmonising definitions and sanctions at Union level. 

• 

Impact assessment 

Given  the  exceptional  urgency,  no  impact  assessment  could  be  conducted,  and  the  relevant 
obligation was lifted. The proposal to add the violation of restrictive measures to the areas of 
crime  laid  down  in  Article  83(1)  TFEU  does  not  have,  in  itself,  any  impact  on  national 
governments, regional or local authorities, economic operators or citizens.  

• 

Fundamental rights 

This  proposal  does  not  determine  or  pre-empt  the  scope  and  content  of  the  secondary 
legislation  to  be  subsequently  proposed  by  the  Commission  once  the  Council  decides,  after 
obtaining  the  consent  of  the  European  Parliament,  to  add  the  violation  of  Union  restrictive 
measures to the list of EU crimes under Article 83(1) TFEU. The approximation of criminal 
definitions and sanctions will have to take into account the differences between the criminal 
justice  systems  of  the  Member  States,  including  as  regards  penalties.  Moreover,  the 
subsequent  Directive  would  need  to  comply  with  the  fundamental  rights  and  observing  the 
principles  laid  down  in  the  Charter  of  Fundamental  Rights  of  the  European  Union  (‘the 
Charter’) 47. 

(4)  BUDGETARY IMPLICATIONS 

This  proposal  to  add  the  violation  of  Union  restrictive  measures  to  the  areas  of  crime  laid 
down in Article 83(1) TFEU does not create, in itself, any financial or administrative burden 
for  the  EU,  national  governments,  regional  or  local  authorities,  economic  operators  or 
citizens. 

Idem, p. 4. 
Idem, p. 26. 
European  Commission,  Expert  Group  on  EU  Criminal  Policy,  https://ec.europa.eu/transparency/expert-groups-

44 
45 
46 
register/screen/expert-
groups/consult?do=groupDetail.groupDetail&groupID=2760&msclkid=56005123cfaf11ec8de3edb643537b59. 
47 
Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391–407. 

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(5)  OTHER ELEMENTS 

• 

Detailed explanation of the specific provisions of the proposal 

Article 1 

In accordance with Article 1, the violation of Union restrictive measures will be added as an 
area of crime within the meaning of Article 83(1) TFEU. 

Article 2 

Article 2 concerns the entry into force of the Council Decision. In view of the urgent need for 
action this shall be on the first day following that of its publication in the Official Journal of 
the European Union. 

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2022/0176 (NLE) 

Proposal for a 

COUNCIL DECISION 

on adding the violation of Union restrictive measures to the areas of crime laid down in 
Article 83(1) of the Treaty on the Functioning of the European Union 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 83(1), third subparagraph thereof, 

Having regard to the proposal from the European Commission, 
Having regard to the consent of the European Parliament48, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The purpose of this Decision is to add the violation of Union restrictive measures to 
the areas of crime laid down in Article 83(1) of the Treaty on the Functioning of the 
European Union (‘TFEU’).  

Article  29  of  the  Treaty  on  European  Union  (‘TEU’)  provides  that  the  Council  can 
adopt  decisions  defining  the  approach  of  the  Union  to  a  particular  matter  of  a 
geographic or thematic nature, including restrictive measures. 

Article 215 TFEU enables the Council to adopt restrictive measures against natural or 
legal persons and groups, or non-State entities, or to adopt measures providing for the 
interruption  or  reduction,  in  part  or  completely,  of  economic  and  financial  relations 
with  one  or  more  third  countries,  on  the  basis  of  a  decision  pursuant  to  Article  29 
TEU. Member States should have effective, proportionate and dissuasive penalties in 
place for violations of Council Regulations on Union restrictive measures. 

For  the  purposes  of  this  decision,  Union  restrictive  measures  are  measures  falling 
within  the  scope  of  Article  29  TEU  and  Article  215  TFEU,  such  as  for  example 
measures of freezing of funds and economic resources, prohibitions to make funds and 
economic resources available and prohibitions of entry into the territory of a Member 
State  of  the  European  Union,  as  well  as  sectoral  economic  measures  and  arms 
embargoes. 

(5)  Member States should have effective, proportionate and dissuasive penalties in place 
for  the  violation  of  all  Union  restrictive  measures,  including  obligations,  such  as 
reporting, established therein.  Those penalties should  also  address  the circumvention 
of Union restrictive measures. 

(6) 

The Commission ensured coordination among Member States and EU agencies in the 
enforcement of the restrictive measures adopted in the context of Russia’s aggression 
against Ukraine and explored the interplay between restrictive measures and criminal 
law measures. 

48 OJ C , , p. . 

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(7) 

(8) 

(9) 

Article  83(1)  TFEU  currently  does  not  allow  for  establishing  minimum  rules 
concerning the definition and penalties for the violation of Union restrictive measures, 
since  their  violation  as  such  is  not  yet  covered  by  the  areas  of  crimes  listed  in  that 
Article. The areas of crime currently listed are terrorism, trafficking in human beings, 
sexual  exploitation  of  children,  drug  trafficking,  arms  trafficking,  corruption,  money 
laundering, counterfeiting of means of payment, computer crime and organised crime. 
The  violation  of  Union  restrictive  measures  may  however  be  related  to  criminal 
offences  covered  by  some  of  the  listed  areas  of  crime,  such  as  terrorism  and  money 
laundering. 

The criteria referred to in Article 83(1) TFEU relating to the cross-border dimension of 
an area of a crime, namely the nature, or impact of criminal offences and the special 
need  to  combat  on  a  common  basis  are  inter-linked  and  should  not  be  assessed  in 
isolation. 

The violation of restrictive measures should be qualified as an area of crime in order to 
ensure  the  effective  implementation  of  the  Union’s  policy  on  restrictive  measures.  
The violation of restrictive measures is already categorised as a criminal offence by a 
majority  of  Member  States.  Some  Member  States  which  categorise  violation  of 
restrictive  measures  as  a  criminal  offence,  have  broad  definitions  in  place,  such  as 
‘breach of UN and EU sanctions’ or ‘breach of EU regulations’, whereas others have 
more  detailed  provisions,  for  instance  providing  a  list  of  prohibited  conduct.  The 
criteria  according  to  which  the  conduct  falls  within  the  scope  of  criminal  law  vary 
among  Member  States,  but  they  are  usually  related  to  their  gravity  (serious  nature), 
either  determined  in  qualitative  (intent,  serious  negligence)  or  quantitative  (damage) 
terms. 

(10)  The  violation  of  Union  restrictive  measures  is  a  particularly  serious  area  of  crime, 
which presents in gravity, a similar seriousness to the areas of crime already listed in 
Article 83(1) TFEU, since it may perpetuate threats to international peace and security, 
undermine  the  consolidation  and  support  for  democracy,  the  rule  of  law  and  human 
rights  and result in  significant  economic, social/  societal  and  environmental damage. 
Because of such violations, individuals and entities whose assets are frozen or whose 
activities are restricted continue to be able to access their assets and support regimes 
that  are  targeted  by  restrictive  measures  or  continue  to  access  State  funds  that  were 
allegedly  misappropriated.  Similarly,  the  money  generated  by  the  exploitation  of 
goods and natural resources traded in violation of Union restrictive measures may also 
allow  the  regimes  targeted  by  those  restrictive  measures  to  purchase  arms  and 
weapons,  with  which  they  execute  their  crimes.  The  violation  of  Union  restrictive 
measures  relating  to  trade  could  furthermore  contribute  to  the  illegal  exploitation  of 
natural resources in the jurisdiction targeted by those restrictive measures; 

(11) 

In  its  Resolution  1196  (1998)  of  16  September  1998,  the  United  Nations  Security 
Council  highlighted  the  importance  of  strengthening  the  effectiveness  of  arms 
embargoes as a means to diminish the availability of arms with which to pursue armed 
conflicts.  It  also  encouraged  States  to  consider,  as  a  means  of  implementing  their 
obligations  to  carry  out  decisions  of  the  Security  Council  on  arms  embargoes,  the 
adoption  of  legislation  or  other  legal  measures  making  the  violation  of  arms 
embargoes established by the Security Council a criminal offence. 

(12)  The  fact  that  Member  States  have  very  different  definitions  and  penalties  for  the 
violation of Union restrictive measures under their administrative and/or criminal law 
suggests  that  the  same  infringement  might  be  punished  with  different  penalties  and 

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different  enforcement  levels.  This  undermines  the  Union  objectives  to  safeguard 
international peace and security and uphold Union common values. Therefore, there is 
a  special  need  for  common  action  at  Union  level  to  address  the  violation  of  Union 
restrictive measures by means of criminal law.  

(13)  Violations of Union restrictive measures have a clear and at times even inherent cross-
border dimension. Not  only  are they  usually  committed by natural persons  and legal 
entities operating on a global scale but in some cases Union restrictive measures, such 
as  restrictions  on  banking  services  even  forbid  cross-border  operations.  Hence,  by 
definition, their violation is conduct on a cross-border scale requiring a common cross-
border response at Union level.  

(14)  The  different  definitions  of,  and  heterogeneous  sanctions  for,  the  violation  of  Union 
restrictive  measures  under  Member  States’  administrative  and/or  criminal  law 
represent  an  obstacle  to  the  consistent  application  of  the  Union  policy  on  restrictive 
measures.  They  may  even  lead  to  forum  shopping  by  offenders  and  their  impunity 
because  they  could  choose  to  conduct  their  activities  in  the  Member  States  that 
provide  for  less  severe  responses  to  the  violation  of  Union  restrictive  measures. 
Harmonisation would also increase the deterrent effect of sanctions for the violation of 
Union restrictive measures. 

(15)  The  violation  of  Union  restrictive  measures  should  therefore  constitute  an  “area  of 

crime” as it meets the criteria set out in Article 83(1) TFEU. 

(16)  Common action at Union level would not only contribute towards a level playing field 
among  Member  States,  and  enhance  law  enforcement  and  judicial  cooperation  in 
addressing  the  violation  of  Union  restrictive  measures;  it  would  also  contribute 
towards  a  global  level  playing  field  in  terms  of  law  enforcement  and  judicial 
cooperation with third countries on the violation of Union restrictive measures. 

(17)  The  objective  of  this  Decision,  namely  adding  the  violation  of  Union  restrictive 
measures to the areas of crime laid down in Article 83(1) TFEU has to be achieved at 
Union  level.  It  therefore  complies  with  the  principle  of  subsidiarity  as  set  out  in 
Article  5  TEU.  In  accordance  with  the  principle  of  proportionality  as  set  out  in  that 
Article,  this  Decision  does  not  go  beyond  what  is  necessary  in  order  to  achieve  this 
objective. 

(18)  Therefore, extending the list of the areas of crime in Article 83(1)TFEU  to cover the 
violation  of  Union  restrictive  measures  is  necessary,  as  a  first  step,  to  enable,  as  a 
second step, the adoption of substantive secondary legislation, inter alia establishing 
minimum  rules  on the definitions and  penalties for the violation of  Union  restrictive 
measures. 

(19)  This Decision should not affect the actions that may be undertaken in a second step. In 
particular, it should not determine or pre-empt the scope and content of the secondary 
legislation to be subsequently proposed. 

(20) 

(21) 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark 
annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of 
this Decision and is not bound by it or subject to its application. 

[non-participation:]  In  accordance  with  Articles  1  and  2  of  Protocol  No  21  on  the 
position of the United Kingdom and Ireland in respect of the area of freedom, security 
and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 
of that protocol,  Ireland is not taking part in the adoption of this Decision and is not 
bound by it or subject to its application. 

EN 

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OR [participation:] In accordance with Article 3 of Protocol No 21 on the position of 
the United Kingdom and Ireland in respect of the area of freedom, security and justice, 
annexed to the TEU and to the TFEU, Ireland has notified [, by letter of…,], its wish 
to take part in the adoption and application of this Decision. 

(22)  This Decision should enter into force as a matter of urgency on the day following that 
of its publication in  the  Official Journal of  the European Union  in order  to  urgently 
enable  the  adoption  of  secondary  legislation  establishing  minimum  rules  on  the 
definitions and penalties for the violation of Union restrictive measures, 

HAS ADOPTED THIS DECISION: 

Article 1 

The violation of Union restrictive measures shall be an area of crime within the meaning of 
Article 83(1) TFEU. 

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

Article 2 

Done at Brussels, 

For the Council 
The President 

EN 

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