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Fight against organised crime: participation in a criminal organisation

This Framework Decision establishes the definitions of offences for participating in a criminal organisation. Moreover, it provides for corresponding penalties to be imposed on the offenders, be they natural or legal persons committing or being responsible for the commission of the acts.

ACTS

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

SUMMARY

The aim of this Framework Decision is to harmonise Member States’ definitions of crimes related to a criminal organisation * and to lay down corresponding penalties for these offences. There are two types of conduct of which Member States must recognise at least one as an offence:

  • active participation in an organisation's criminal activities, with the knowledge of its aim or of its intention to commit crimes;
  • an agreement on the perpetration of crimes without necessarily taking part in committing them.

The Member States must take steps to penalise the above offences in that the first results in a maximum term of imprisonment of a minimum of two to five years, and the second in a maximum term of imprisonment equivalent to that of the planned activities or in a maximum term of a minimum of two to five years. The Member States may reduce, or allow for an exemption from, these penalties if the offender relinquishes criminal activity and assists the authorities by providing them with otherwise unobtainable information on the offence and the other offenders.

The Member States must also hold any legal person * accountable for the above offences that have been committed on its behalf by a person who has a central role in the legal person in question, even if that person has acted in an individual capacity. An offence committed, as a result of lack of supervision, by a person under the authority of the former may also be held against the legal person.

The legal persons held accountable for offences must be punished by effective, proportionate and dissuasive penalties. These should include both criminal and non-criminal fines. The penalties may also include the following:

  • ending the right to public aid;
  • temporarily or permanently prohibiting commercial activities;
  • placing under judicial supervision;
  • judicial winding-up;
  • temporarily or permanently closing the establishments used for the offences.

A Member State’s jurisdiction must cover the offences if they are committed on its territory, in whole or in part, by its national or on behalf of a legal person set up on its territory. If the offence is committed outside a Member State’s territory, it may choose whether or not to apply the last two rules. If the offence falls within the jurisdiction of several Member States, they must collaborate, for example via Eurojust, in order to decide on the prosecuting country and thus to centralise the proceedings. However, in doing so, the Member States must give due consideration to where the offence was carried out, the nationality or place of residence of the offender, the country of origin of the victim and the territory where the offender was found.

If a Member State does not extradite or surrender its nationals, it must revamp its jurisdiction and take steps to prosecute its nationals when they commit an offence outside its territory. Simultaneously, the Member State may continue to apply its jurisdiction to criminal matters as stipulated in its national law.

For offences that have been committed on the territory of a Member State, the investigations and prosecutions by that Member State must be carried out without requiring a report or an accusation from a victim.

Background

The need to improve the measures used to combat organised crime was acknowledged in the Commission Communication of 29 March 2004 on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information. Hence, the Commission simultaneously informed of its intention to draw up a Framework Decision that would replace Joint Action 98/733/JHA of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union. This Framework Decision 2008/841/JHA therefore repeals the Join Action 98/773/JHA.

Key terms used in the act

  • Criminal organisation: a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences that are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a serious penalty, to obtain, directly or indirectly, a financial or other material benefit.
  • 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.
  • Legal person: any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations.

REFERENCES

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Framework Decision 2008/841/JHA

11.11.2008

11.5.2010

OJ L 300 of 11.11.2008

Last updated: 21.11.2008
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