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20.12.2023

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PROVISIONAL AGREEMENT RESULTING FROM INTERINSTITUTIONAL NEGOTIATIONS

Symbols for procedures

Subject: Proposal for a directive of the European Parliament and of the Council on the definition of criminal offences and penalties for the violation of Union restrictive measures

* Consultation procedure

(COM(2022)0684 – C90401/2022 – 2022/0398(COD))

*** Consent procedure

The interinstitutional negotiations on the aforementioned proposal for a directive have led to a compromise. In accordance with Rule 74(4) of the Rules of Procedure, the provisional agreement, reproduced below, is submitted as a whole to the Committee on Civil Liberties, Justice and Home Affairs for decision by way of a single vote.

***I Ordinary legislative procedure (first reading)

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

***II Ordinary legislative procedure (second reading)

on the definition of criminal offences and penalties for the violation of Union restrictive measures

***III Ordinary legislative procedure (third reading)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

(The type of procedure depends on the legal basis proposed by the draft act.)

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

Amendments to a draft act

Having regard to Council Decision (EU) 2022/2332 of 28 November 2022 on identifying the violation of Union restrictive measures as an area of crime that meets the criteria specified in Article 83(1) of the Treaty on the Functioning of the European Union, and in particular Article 1 thereof,

Amendments by Parliament set out in two columns

Having regard to the proposal from the European Commission,

Deletions are indicated in bold italics in the left-hand column. Replacements are indicated in bold italics in both columns. New text is indicated in bold italics in the right-hand column.

After transmission of the draft legislative act to the national parliaments,

The first and second lines of the header of each amendment identify the relevant part of the draft act under consideration. If an amendment pertains to an existing act that the draft act is seeking to amend, the amendment heading includes a third line identifying the existing act and a fourth line identifying the provision in that act that Parliament wishes to amend.

Acting in accordance with the ordinary legislative procedure,

Amendments by Parliament in the form of a consolidated text

Whereas:

New text is highlighted in bold italics. Deletions are indicated using either the ▌symbol or strikeout. Replacements are indicated by highlighting the new text in bold italics and by deleting or striking out the text that has been replaced.

By way of exception, purely technical changes made by the drafting departments in preparing the final text are not highlighted.

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on the definition of criminal offences and penalties for the violation of Union restrictive measures

(COM(0022)0684 – C90401/2022 – 2022/0398(COD))

(Ordinary legislative procedure: first reading)

– having regard to the Commission proposal to Parliament and the Council (COM(0022)0684),

– having regard to Article 294(2) and Article 83(1) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90401/2022),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the European Economic and Social Committee of 23 March 2023,

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the opinion of the Committee Budgets,

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A9-0235/2023),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment 1

Proposal for a directive

Recital 1

Text proposed by the Commission

Amendment

(1) In order to ensure the effective application of Union restrictive measures, the integrity of the internal market within the Union, and to achieve a high level of security within the Area of Freedom, Security and Justice, it is necessary to establish minimum rules concerning the definition of criminal offences and penalties with regard to the violation of those Union restrictive measures.

(2) Union restrictive measures, such as measures concerning the freezing of funds and economic resources, the prohibitions on making funds and economic resources available and the prohibitions on entry into or transit through the territory of a Member State, as well as sectoral economic and financial measures and arms embargoes, are an essential tool for the promotion of the objectives of the Common Foreign and Security Policy (‘CFSP’), as set out in Article 21 of the Treaty on European Union (‘TEU’). Those objectives include safeguarding the Union’s values, security, independence and integrity, consolidating and supporting democracy, the rule of law, human rights and the principles of international law and preserving international peace, preventing conflicts and strengthening international security in accordance with the aims and principles of the United Nations Charter.

(1) In order to ensure the effective application of Union restrictive measures, the integrity of the internal market within the Union, and to achieve a high level of security within the Area of Freedom, Security and Justice, it is necessary to establish common minimum rules concerning the definition of criminal offences and penalties with regard to the violation of those Union restrictive measures.

(3) To ensure the effective application of Union restrictive measures, it is necessary that Member States have effective, proportionate and dissuasive penalties and sanctions in place for the violation of those Union restrictive measures, including obligations, such as reporting, established therein. It is also necessary that those penalties and sanctions address the circumvention of Union restrictive measures.

Amendment 2

(4) The effective application of Union restrictive measures calls for common minimum rules concerning the definitions of criminal conduct violating prohibitions and obligations included in Union restrictive measures. Member States should ensure that this conduct constitutes a criminal offence when committed with intent and in breach of a prohibition or an obligation set out in a Union restrictive measure or set out in a national provision implementing a Union restrictive measure, where national implementation of these measures is required. The commission of certain crimes with serious negligence should also be criminalised. With regard to the criminal offences provided for in this Directive, the notion of at least serious negligence should be interpreted in accordance with national law, taking into account relevant case law of the Court of Justice of the European Union. Member States may decide not to criminalise violations involving funds, economic resources, goods, services, transactions or activities of a value of less than EUR 10 000. The exclusion of certain violations from the scope of this Directive does not affect any obligations set out in Union restrictive measures to ensure that violations are punishable by effective, proportionate and dissuasive criminal or other sanctions.

Proposal for a directive

(4a) Union restrictive measures may provide for exceptions in the form of exemptions or derogations from the prohibitions laid down therein. A conduct either covered by an exemption provided for in a Union restrictive measure or authorised by the competent authorities of the Member States by means of a derogation in accordance with a Union restrictive measure should not be regarded as a violation of a Union restrictive measure.

Recital 3

(4b) In particular, the effective application of Union restrictive measures calls for common minimum rules for the violations of asset freeze measures as laid down in the relevant Council Regulations. These measures include the prohibition to make funds or economic resources available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies subject to asset freeze measures, as well as the obligation to freeze all funds and economic resources belonging to, owned, held or controlled by the same persons, entities or bodies.

Text proposed by the Commission

(4c) Union restrictive measures also lay down restrictions on admission (travel bans) which should be covered by this Directive. Such measures, usually laid down in a Council Decision adopted on the basis of Article 29 TEU and implemented by means of national law, require Member States to take the necessary measures to prevent the designated persons from entering into, or transiting through, all zones of the territory of a Member State.

Amendment

(4ca) Member States are encouraged to pay particular attention to the mechanisms for granting nationality and residence, in order to prevent individuals subject to Union restrictive measures from using them for violating such measures.

(3) To ensure the effective application of Union restrictive measures, it is necessary that Member States have effective, proportionate and dissuasive penalties in place for the violation of those Union restrictive measures, including obligations, such as reporting, established therein. It is also necessary that those penalties address the circumvention of Union restrictive measures.

(4d) Entering into or continuing any form of transactions, including but not limited to financial transactions as well as the award or continued execution of any public or concession contract falling within the scope of the public procurements Directives, with a third State, bodies of a third State, entities and bodies directly or indirectly owned or controlled by a third State or bodies of a third State, should also constitute a criminal offence, to the extent it is prohibited by a Union restrictive measure.

(3) To ensure the effective application of Union restrictive measures, it is necessary that Member States have effective, proportionate and dissuasive penalties in place for natural or legal persons who violate or breach those Union restrictive measures, including obligations, such as transparency and information reporting, established therein. It is also necessary that those penalties address the circumvention of Union restrictive measures.

(4e) In addition, rules on the prohibition of trading, importing, exporting, selling, purchasing, transferring, transiting or transporting goods or services are called for. The violation of such prohibitions, including the cases of importing or exporting goods from or to a third country in order to have them transferred to a destination to which their import, export, sale, purchase, transfer, transit or transport is prohibited by a Union restrictive measure, should constitute a criminal offence. The provision, directly or indirectly, of technical assistance, brokering services, insurance, and any other service related to these goods or services, should also constitute a criminal offence. For this purpose, the notion of goods includes items, such as military technology and equipment, goods, software and technology, which are included in the Common Military List of the European Union or are listed in Annexes I and IV to Regulation (EU) 2021/821.

Amendment 3

(4f) In addition, other rules on sectoral economic and financial measures adopted under the CFSP are called for. These refer to rules on the provision of financial services or the performance of financial activities which are prohibited or restricted by Union restrictive measures. Such financial services and activities include but are not limited to financing and financial assistance, providing investment and investment services, issuing transferrable securities and money market instruments, accepting deposits, providing specialised financial messaging services, dealing in banknotes, providing credit rating services, and providing crypto assets and wallets.

Proposal for a directive

(4g) These measures also refer to rules on the provision of other services which are prohibited or restricted by Union restrictive measures. Such services include but are not limited to the provision of legal advisory services, trust services, public relations services, accounting, auditing, bookkeeping and tax consulting services, business and management consulting, IT consulting, broadcasting, architectural and engineering services.

Recital 4

(4ga) None of the provisions of this Directive should be understood as imposing any obligations on natural persons that would prejudice the right not to incriminate oneself and to remain silent, as enshrined in Article 7 of Directive (EU) 2016/343, for the Member States bound by it, and Article 48 of the Charter of Fundamental Rights of the European Union.

Text proposed by the Commission

(5) The effective application of Union restrictive measures also calls for common minimum rules concerning the criminal definitions of conduct circumventing a Union restrictive measure.

Amendment

(6) An example of circumvention that is increasingly widespread is the practice by designated persons, entities and bodies of using, transferring to a third party or otherwise disposing of funds or economic resources directly or indirectly owned, held or controlled by them in order to conceal those funds or economic resources. Furthermore, the practice of providing false or misleading information, including relevant incomplete information, in order to conceal that a designated person, entity or body is the ultimate owner or beneficiary of funds or economic resources subject to Union restrictive measures also amounts to a circumvention of Union restrictive measures. Therefore, these conducts are covered by the circumvention offence approximated by this Directive.

(4) The effective application of Union restrictive measures calls for common criminal definitions of conduct infringing Union restrictive measures. Member States should ensure that this conduct constitutes a criminal offence when committed with intent as well as with serious negligence, in case the natural or legal person knew or should have known, that their conduct would infringe Union restrictive measures.

(6a) Failure to comply with the reporting obligations should also be covered by the circumvention offence, to the extent that a corresponding obligation to report to the competent administrative authorities is laid down by a Union restrictive measure.

(4) The effective application of Union restrictive measures calls for common criminal definitions of conduct violating Union restrictive measures. Member States should ensure that that conduct constitutes a criminal offence when committed with intent or with negligence, where the natural or legal person knew or should have known, that their conduct would violate Union restrictive measures.

(6c) The effective application of Union restrictive measures furthermore calls for common minimum rules concerning the criminal law definition of conduct breaching or failing to fulfil the specific conditions under authorisations granted by the competent authorities to conduct certain activities, which in the absence of such an authorization are prohibited or restricted under a Union restrictive measure. Any activity conducted in the absence of an authorisation would instead constitute a violation of such measures and, as appropriate, could be considered as a breach of asset freeze measures, travel bans, arm embargoes or other sectoral economic and financial measures.

Amendment 4

(7) Legal professionals, as defined by the Member States, should be subject to this Directive, including the obligation to report the violation of Union restrictive measures, when providing services in the context of professional activities, such as legal, financial and trade services. There is a clear risk of the services of those legal professionals being misused for the purpose of violating Union restrictive measures. There should, however, be exemptions from any obligation to report information that they receive from, or is obtained from, one of their clients, in the course of ascertaining their legal position or performing the task of defending or representing that client in, or concerning, judicial proceedings, including providing advice on instituting or avoiding such proceedings. Therefore, such legal advice should remain subject to the obligation of professional secrecy, except where the legal professional is intentionally taking part in the violation of Union restrictive measures, the legal advice is provided for the purposes of violating Union restrictive measures, or the legal professional knows that the client is seeking legal advice for the purposes of violating Union restrictive measures.

Proposal for a directive

(8) Union restrictive measures should not result in the discrimination against clients of credit and financial institutions or their unduly exclusion from access to financial services.

Recital 6

(9) This Directive does not intend to criminalise humanitarian assistance for persons in need or activities in support of basic human needs provided in accordance with the principles of impartiality, humanity, neutrality and independence, and where applicable, with international humanitarian law.

Text proposed by the Commission

(10) Penalties for the offences should be effective, dissuasive and proportionate. To this end, minimum levels for the maximum term of imprisonment should be set for natural persons. Additional penalties or measures should also be available in criminal proceedings.

Amendment

(10a) Inciting, aiding and abetting, to commit the offences under the Directive should be criminalised. Attempt to commit some of the offences under the Directive should also be criminalised.

(6) Persons, entities and bodies, which are designated individually in Union restrictive measures and subject to those Union restrictive measures, may often be involved as instigators and accomplices. For instance, the practice by designated persons and entities of transferring funds, property or economic resources to a third party with a view to circumvent Union restrictive measures is increasingly widespread. Therefore, this conduct is covered by the circumvention offence approximated by this Directive.

(11) Given that legal persons are also subject to Union restrictive measures, legal persons should also be held liable for offences related to the violation of Union restrictive measures as defined in this Directive. Legal persons are thereby understood as any legal entity having such status under the applicable law, except for States or public bodies exercising State authority and for public international organisations. Member States whose national law provides for the criminal liability of legal persons should ensure that their national laws provide for effective, dissuasive and proportionate criminal sanction types and levels as laid down in this Directive in order to achieve its objectives. Member States whose national law does not provide for the criminal liability of legal persons should ensure that their national laws provide for effective, dissuasive and proportionate non-criminal penalty types and levels, as laid down in this Directive in order to achieve its objectives. The maximum levels of fines provided for in this Directive for the offences referred to therein should apply at least to the most serious forms of such offences. The seriousness of the conduct, as well as the individual, financial and other circumstances of the legal persons, should be taken into account to ensure the effectiveness, dissuasiveness and proportionality of the sanction imposed. With regard to maximum levels of fines in national law, Member States may either use a percentage of the total worldwide turnover of the legal person concerned, or they may determine the maximum level of fines in absolute amounts. Member States should decide which alternative they choose when transposing this Directive.

(6) Persons, entities and bodies, which are designated individually in Union restrictive measures and subject to those Union restrictive measures, may often be involved as instigators, or accomplices of violations or circumventions of such measures. For instance, the practice by designated persons and entities of transferring funds, property or economic resources to a third party with a view to circumvent Union restrictive measures is increasingly widespread and needs to be addressed since it undermines the effectiveness of Union restrictive measures. Therefore, this conduct is covered by the circumvention offence approximated by this Directive.

(11a) Where, with regards to the determination of fines to be imposed on legal persons, Member States opt to implement the criterion of the total worldwide turnover of a legal person, they should decide whether to calculate the total worldwide turnover based on either the business year preceding the one in which the offence was committed, or the business year preceding the fining decision, when transposing this Directive. They should also consider providing for rules for cases where it is not possible to determine the amount of a fine on the basis of the total worldwide turnover of the legal person in the business year preceding the one in which the offence was committed, or in the business year preceding the fining decision. In such cases, it should be possible to take into account other criteria, such as the total worldwide turnover in one of the other preceding business years. Where those rules include the setting of amounts of fines in absolute numbers, then the maximum levels of these should not have to reach the levels established in this Directive as the minimum requirement for the maximum level of fines determined in absolute amounts.

Amendment 5

(11b) Where Member States opt for maximum level of fines determined in absolute amounts, such levels should be laid down in national law. The highest levels of such fines should apply to the most serious forms of offences provided for in this Directive, which are committed by financially strong legal persons. Member States may decide on the method of calculation of those levels of fines including specific conditions for the highest levels of those fines. Member States should be invited to regularly review the levels of fines determined in absolute amounts with regard to rates of inflation and other fluctuations in monetary value, in line with procedures set out in their national law. Member States that do not have the euro as their currency should provide for maximum levels of fines in their currency corresponding to the levels determined in this Directive in euro on the date of adoption of this Directive. Those Member States are invited to regularly review the levels also with regard to the development of the exchange rate.

Proposal for a directive

(11c) The definition of the maximum level of fines is without prejudice to the discretion of judges or courts in criminal proceedings to impose appropriate sanctions in the individual cases. As this Directive does not set out any minimum levels of fines, the judges or courts should, in any case, impose appropriate sanctions taking into account the individual, financial and other circumstances of the legal person concerned and the seriousness of the conduct.

Recital 6 a (new)

(12) A further approximation and effectiveness of level of penalties imposed in practice should be fostered through common aggravating circumstances that, in accordance with relevant provisions of national law, reflect the severity of the crime committed. The notion of aggravating circumstances should be understood either as facts allowing the national judge or court to pronounce a higher sentence for the same offence than the one incurred without these facts, or as the possibility of retaining several offences cumulatively in order to increase the level of the penalty. Such aggravating circumstances may be situations in which the offence was committed in the framework of a criminal organization within the meaning of Framework Decision 2008/841/JHA, situations in which the offence involved false or forged documents, situations in which the offence was committed by a professional service provider in violation of the professional obligations of such professional service provider. Other aggravating circumstances may be situations in which the offence was committed by a public official when performing his or her duties, which can be any relevant official, whether holding a formal office in the Union, in the Member States or in third countries, or another person performing a public function, situations in which the offence generated or was expected to generate substantial financial benefits, or avoided substantial expenses, directly or indirectly, situations in which the offender destroys evidence, or intimidates or influences witnesses or complainants, or situations in which the natural or legal person has previously been definitively convicted. Member States should provide for the possibility of at least one of these aggravating circumstances in accordance with applicable rules established by their legal system on aggravating circumstances. In any case, it should remain within the discretion of the judge or the court to determine whether to increase the sentence, taking into account all the circumstances of the individual case.

Text proposed by the Commission

(13) Member States should also ensure, in accordance with relevant provisions of national law, that at least one of the following situations may be regarded as a mitigating circumstance: where the offender provides the competent authorities with information they would not otherwise have been able to obtain, helping them either to identify or bring to justice other offenders or to find evidence. In the assessment of mitigating circumstances, it should remain within the discretion of the judge or the court to determine whether to decrease the sentence, taking into account all the circumstances of the individual case. The latter could notably include the nature, timing and extent of the information provided and the level of cooperation provided by the offender.

Amendment

(14) The freezing of funds and of economic resources imposed by Union restrictive measures is of an administrative nature. As such it should be distinguished from freezing measures of a criminal nature, as referred to in Directive 2014/42/EU. Member States should enable the freezing and confiscation of instrumentalities and proceeds from the offences referred to in this Directive. Member States bound by Directive 2014/42/EU should do so in accordance with that Directive.

(6a) The circumvention of sectoral economic and financial measures should also be addressed. Therefore, conduct under the cover of a formal appearance which enables the avoidance of the constituent elements of a violation, but has the same effects, should be covered by the circumvention offence approximated by this Directive, when committed intentionally. Such conduct may in particular occur by the concealment of goods, transactions, services or activities subject to a Union restrictive measure, or information about them, for instance in situations where a natural or legal person exports goods to a third country with the knowledge that such goods will be transferred to a final destination to which their export is prohibited by a Union restrictive measure.

(15) In addition, specifically in situations in which the designated person, or the representative of a designated entity or body, commits or participates in certain offences concerning the circumvention of a Union restrictive measure, there is a need to enable the freezing and confiscation of funds and economic resources subject to Union restrictive measures, even where they may not constitute instrumentalities or proceeds under Directive 2014/42/EU. In those circumstances as a consequence of the conduct of concealing, the designated person, entity or body may continue to access and make full use or dispose of the funds or economic resources subject to Union restrictive measures which have been concealed. Such funds or economic resources should therefore be subject to freezing and confiscation, in accordance with Directive 2014/42/EU. The rights of bona fide third parties should not be prejudiced.

Amendment 6

Proposal for a directive

Recital 6 b (new)

Text proposed by the Commission

Amendment

(6b) The violation of Union restrictive measures is often linked to other criminal activities and most notably motivated by considerations of financial gain. While generating profits, the circumvention of restrictive measures enables the continued use of assets. It undermines the objectives and effectiveness of those restrictive measures and hence needs to be addressed. Proceeds resulting from the violation of Union restrictive measures or instruments used to pursue the violation of restrictive measures should become the object of confiscation. Where the assets are confiscated in connection with the Russian war of aggression on Ukraine or associated crimes, without prejudice to restitution to and compensation of the victims or the public concerned by the criminal offence, the confiscated assets or the net proceeds resulting from the liquidation of such assets should be assigned to contributions towards the reconstruction efforts of Ukraine.

Amendment 7

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7) Legal professionals, as defined by the Member States, should be subject to this Directive, including the obligation to report the violation of Union restrictive measures, when providing services in the context of professional activities, such as legal, financial and trade services. Experience shows that there is a clear risk of the services of those legal professionals being misused for the purpose of violating Union restrictive measures. There should, however, be exemptions from any obligation to report information which is obtained in strict connection with judicial, administrative or arbitral proceedings, whether before, during or after judicial proceedings, or in the course of ascertaining the legal position of a client. Therefore, legal advice in those circumstances should remain subject to the obligation of professional secrecy, except where the legal professional is taking part in the violation of Union restrictive measures, the legal advice is provided for the purposes of violating Union restrictive measures, or the legal professional knows that the client is seeking legal advice for the purposes of violating Union restrictive measures. Knowledge can be inferred from objective factual circumstances.

(7) Legal professionals, as defined by the Member States, as well as providers of other professional services, such as accountants, tax advisors, financial and trade advisers, real estate agents and migration consultancies advising on residence by investment and citizenship by investment, amongst others, should be subject to this Directive, including the obligation to report the violation of Union restrictive measures, when providing services in the context of professional activities. Experience shows that there is a clear risk of the services of those legal professionals being misused for the purpose of violating Union restrictive measures. For legal professionals, there should, however, be exemptions from any obligation to report information which is obtained in strict connection with judicial, administrative or arbitral proceedings, whether before, during or after judicial proceedings. Information which is obtained by legal professionals or in the course of ascertaining the legal position of a client should be covered by legal privilege. Therefore, legal advice in those circumstances should remain subject to the obligation of professional secrecy, except where the legal professional is taking part in the violation of Union restrictive measures, the legal advice is provided for the purposes of violating Union restrictive measures, or the legal professional knows or has a well-grounded suspicion on the basis of factual circumstances that the client is seeking legal advice for the purposes of violating Union restrictive measures. Knowledge can be inferred from objective factual circumstances.

Amendment 8

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8) The effective application of Union restrictive measures furthermore calls for a common criminal law definition of conduct breaching conditions under authorisations granted by competent authorities to conduct certain activities, which in the absence of such an authorization are prohibited or restricted under a Union restrictive measure.

(8) The effective application of Union restrictive measures furthermore calls for a common criminal law definition of intentionally breaching conditions under authorisations granted by competent authorities to conduct certain activities, which in the absence of such an authorization are prohibited or restricted under a Union restrictive measure.

Amendment 9

Proposal for a directive

Recital 8 a (new)

Text proposed by the Commission

Amendment

(8a) Member States should make easily accessible and detailed guidelines on compliance with Union restrictive measures, including detailed information on, inter alia, matters of compliance and enforcement standards.

Amendment 10

Proposal for a directive

Recital 8 b (new)

Text proposed by the Commission

Amendment

(8b) When applying measures aimed at preventing the violation or circumvention of Union restrictive measures, credit and financial institutions should ensure that clients are not discriminated against or unduly excluded from access to financial services.

Amendment 11

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9) It is appropriate to exclude from the criminalisation activities which concern the provision of goods and services of daily use for the personal use of designated natural persons, such as food and healthcare products and services, or of petty cash, where it is clearly limited to fulfilling the basic human needs of such persons and their dependent family members. The failure to report such activities should also be excluded from criminalisation. In addition, it is appropriate to exclude from criminalisation the delivery of humanitarian aid to persons in need. Such humanitarian aid must be provided strictly in accordance with international humanitarian law and can notably consist of food and nutrition, shelter, health care, water and sanitation. Furthermore, in implementing this Directive, Member States should take into account that International Humanitarian Law, the law of armed conflict, requires that restrictive measures should not prevent the delivery of humanitarian aid in line with principles of impartiality, humanity, neutrality and independence.

(9) It is appropriate to exclude from the criminalisation activities which concern the provision of goods and services of daily use for the personal use of designated natural persons, such as food and healthcare products and services, or of petty cash, where it is clearly limited to fulfilling the basic human needs of such persons and their dependent family members. The failure to report such activities should also be excluded from criminalisation. In addition, and in line with international humanitarian law, it is appropriate to exclude from criminalisation the delivery of humanitarian assistance or activities that support basic human needs by providers of humanitarian services, such as the United Nations, humanitarian organisations having observer status with the United Nations General Assembly and members of those humanitarian organisations, bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plans, Refugee Response Plans, other United Nations appeals or humanitarian clusters coordinated by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), public bodies or legal persons, entities or bodies which receive public funding from the Union or from Member States to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs for the civilian population, organisations and agencies to which the Union has granted the Humanitarian Partnership Certificate or which are certified or recognised by a Member State in accordance with national procedures, Member States’ specialised agencies, and their employees, grantees, subsidiaries, or implementing partners and organisations specified in relevant EU sanctions decisions. Such humanitarian assistance must be provided strictly in accordance with international humanitarian law. Furthermore, in implementing this Directive, Member States should take into account that International Humanitarian Law, the law of armed conflict, requires that restrictive measures should not prevent the delivery of humanitarian assistance in line with principles of impartiality, humanity, neutrality and independence.

Amendment 12

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10) Penalties for the offences should be effective, dissuasive and proportionate. To this end, minimum levels for the maximum term of imprisonment should be set for natural persons. Additional penalties or measures should also be available in criminal proceedings. They should include fines, taking into account that the violation of Union restrictive measures is mostly motivated by economic considerations.

(10) Penalties for the offences should be effective, dissuasive and proportionate. To this end, minimum levels for the maximum term of imprisonment should be set for natural persons. Additional penalties or measures should also be available in criminal proceedings. They should include fines, taking into account that the violation of Union restrictive measures is mostly motivated by economic considerations. Fines should be proportionate to the gravity of the offence as well as to the financial benefits accrued by committing the offence. Additional penalties should also include withdrawal of permits and authorizations to pursue activities which have resulted in committing the offence, disqualification from exercising a leading position within a legal person of the type used for committing the offence, temporary bans on running for elected or public office, national or Union-wide publication of the judicial decision relating to the conviction or any sanctions or measures applied.

Amendment 13

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11) Given that legal persons are also subject to Union restrictive measures, legal persons should also be held criminally liable for offences related to the violation of Union restrictive measures according to this Directive. Member States whose national law does not provide for the criminal liability of legal persons should ensure that their administrative sanctioning systems provide for effective, dissuasive and proportionate penalty types and levels.

(11) Given that legal persons are also subject to Union restrictive measures, legal persons should also be held criminally liable for offences related to the violation of Union restrictive measures according to this Directive. Member States whose national law does not provide for the criminal liability of legal persons should ensure that their administrative sanctioning systems provide for effective, dissuasive and proportionate sanction types and levels.

Amendment 14

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12) A further approximation and effectiveness of level of penalties imposed in practice should be fostered through common aggravating circumstances that reflect the severity of the crime committed. The notion of aggravating circumstances should be understood either as facts allowing the national judge or court to pronounce a higher sentence for the same offence than the one incurred without these facts, or as the possibility of retaining several offences cumulatively in order to increase the level of the penalty. Member States should provide for the possibility of at least one of these aggravating circumstances in accordance with applicable rules established by their legal system on aggravating circumstances. In any case, it should remain within the discretion of the judge or the court to determine whether to increase the sentence, taking into account all the circumstances of the individual case.

(12) A further approximation and effectiveness of level of penalties imposed in practice should be fostered through common aggravating circumstances that increase the criminal responsibility of the individual and reflect the severity of the crime committed. The notion of aggravating circumstances should be understood either as circumstances surrounding the commission of an offence and allowing the national judge or court to pronounce a higher sentence for the same offence than the one incurred without these facts, or as the possibility of retaining several offences cumulatively in order to increase the level of the penalty. Member States should provide for the possibility of these aggravating circumstances in accordance with applicable rules established by their legal system on aggravating circumstances. In any case, it should remain within the discretion of the judge or the court to determine whether to increase the sentence, taking into account all the circumstances of the individual case.

Amendment 15

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16) Given, in particular, the global activities of the perpetrators of illegal conduct covered by this Directive, together with the cross-border nature of the offences and the possibility of cross-border investigations, Member States should establish jurisdiction in order to counter such conduct effectively.

(17) Member States should lay down rules concerning limitation periods necessary to enable them to counter offences related to the violation of Union restrictive measures effectively, without prejudice to national rules that do not set limitation periods for investigation, prosecution and enforcement. Where Member States are permitted to derogate from the limitation periods, provided that the period may be interrupted or suspended in the event of specified acts, such acts may be defined in accordance with the legal system of each Member State.

(16) Given, in particular, the global activities of the perpetrators of illegal conduct covered by this Directive, together with the cross-border nature of the offences and the possibility of cross-border investigations, Member States should establish jurisdiction in order to counter such conduct quickly, consistently and effectively.

Amendment 16

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18) To ensure an effective, integrated and coherent enforcement system, Member States should organise internal cooperation and communication between all actors along the administrative and criminal enforcement chains.

(19) To ensure the effective investigation and prosecution of violations of Union restrictive measures, Member States’ competent authorities should cooperate through and with Europol, Eurojust and the European Public Prosecutor’s Office (EPPO), within their respective competences and in accordance with the applicable legal framework. These competent authorities should also share information among each other and with the Commission on practical issues. The Commission, where needed, could establish a network of experts and practitioners to share best practices and provide assistance to the competent authorities of Member States in order to facilitate the investigation of offences related to the violation of Union restrictive measures. Such assistance should not entail the participation of the Commission in the investigation and prosecution of individual criminal cases conducted by the national authorities and should not be understood as including financial support or any other budgetary commitment by the Commission.

(18) To ensure an effective, transparent, integrated and coherent enforcement system, Member States should organise internal cooperation and communication between all actors along the administrative and criminal enforcement chains, in full compliance with Member States’ national rules on criminal proceedings, as well as with the Charter of Fundamental Rights of the European Union (the Charter) and with the Member State’s obligations under Article 6 TEU.

(20) Persons referred to in Article 4 of Directive (EU) 2019/1937 of the European Parliament and of the Council1 reporting information to competent authorities concerning past, ongoing or planned violations of Union restrictive measures, including attempts to circumvent them, which they have acquired in the context of their work-related activities, risk suffering retaliation in that context. Such whistleblowers’ reports can strengthen enforcement by providing information related, for example, to facts concerning violations of Union restrictive measures, their circumstances and the individuals, companies and third countries involved. Therefore, it should be ensured that adequate arrangements are in place to enable such whistleblowers to use confidential channels, to alert the competent authorities and to protect them from retaliation. For that purpose, it should be provided that Directive (EU) 2019/1937 is applicable to the reporting of violations of Union restrictive measures and to the protection of persons reporting such violations, under the conditions established therein.

Amendment 17

(21) To ensure the effective investigation and prosecution of violations of Union restrictive measures, Member States should make available effective investigative tools such as those which exist in their national law for combating organised crime or other serious crimes, if and to the extent that the use of those tools is appropriate and proportionate to the nature as defined in national law and gravity of the offences as defined in national law. Tools such as the interception of communications, covert surveillance including electronic surveillance, controlled deliveries, the monitoring of bank accounts and other financial investigation tools could be included. These tools should be applied in line with the principle of proportionality and in full respect of the Charter of Fundamental Rights of the European Union. The right to the protection of personal data must be respected.

Proposal for a directive

(22) An amendment to Directive (EU) 2018/1673 on combatting money laundering by criminal law2 should ensure that the violation of Union restrictive measures will be considered a predicate offence for money laundering according to that Directive.

Recital 19

(23) The objectives of this Directive, namely to ensure common minimum rules concerning the definitions of offences related to the violation of Union restrictive measures and the availability of effective, dissuasive and proportionate criminal penalties for serious offences related to the violation of Union restrictive measures cannot be sufficiently achieved by Member States but can rather, by reason of the scale and effects of this Directive, be better achieved at Union level, taking into account the inherent cross-border nature of the violation of Union restrictive measures and their potential to undermine the achievement of the Union objectives to safeguard international peace and security as well as to uphold Union common values. Therefore the Union may adopt measures, in accordance with the principle of subsidiarity as set out in accordance with Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

Text proposed by the Commission

Amendment

(19) To ensure the effective investigation and prosecution of violations of Union restrictive measures, Member States’ competent authorities should cooperate through and with Europol, Eurojust and the European Public Prosecutor’s Office (EPPO). These competent authorities should also share information among each other and with the Commission on practical issues.

(19) To ensure the effective investigation and prosecution of violations of Union restrictive measures, Member States’ competent authorities should cooperate through and with Europol, Eurojust and the European Public Prosecutor’s Office (EPPO). The Commission should establish a permanent network of experts and practitioners to share best practices and provide technical and operational support in order to facilitate the coordination of investigations and prosecutions by Member States competent authorities’, Europol, Eurojust, the EPPO, and the European Anti-Fraud Office.

Amendment 18

Proposal for a directive

Recital 19 a (new)

Text proposed by the Commission

Amendment

(19a) For the purposes of this Directive, the institutions, bodies, offices and agencies of the Union and the authorities of the Member States which participate in enhanced cooperation on the establishment of the EPPO, should closely cooperate with the central and decentralised levels of the EPPO. They should in particular fulfil the reporting obligations under Regulation (EU) 2017/1939, including where the EPPO is competent in respect of criminal offences for the violation of Union restrictive measures because they constitute offences regarding participation in a criminal organization or criminal offences inextricably linked to offences referred to in Article 22(2) and (3) of Regulation (EU) 2017/1939. In order to optimize criminal prosecution and the effective application of sanctions for any violation or circumvention of Union restrictive measures, it is necessary to extend the EPPO's current competences, including the criminal offences covered by this Directive. Furthermore, all Member States should participate in the EPPO to make it more efficient.

Amendment 19

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

(20) Whistleblowers can provide valuable information to competent authorities concerning past, ongoing or planned violations of Union restrictive measures, including attempts to circumvent them. This information can relate, for example, to facts concerning violations of Union restrictive measures, their circumstances and the individuals, companies and third countries involved. Therefore, it should be ensured that adequate arrangements are in place to enable such whistleblowers to alert the competent authorities and to protect them from retaliation. For that purpose, it should be provided that Directive (EU) 2019/1937 of the European Parliament and of the Council49 is applicable to the reporting of violations of Union restrictive measures and to the protection of persons reporting such violations.

(20) Whistleblowers can be crucial in providing valuable information to competent authorities concerning past, ongoing or planned violations of Union restrictive measures, including attempts to circumvent them. This information can relate, for example, to vital facts concerning violations of Union restrictive measures, their circumstances, the individuals, companies and third countries involved. Therefore, it should be ensured that adequate arrangements are in place to enable such whistleblowers to alert the competent authorities and to protect them from retaliation. For that purpose, it should be provided that Directive (EU) 2019/1937 of the European Parliament and of the Council49 is applicable to the reporting of violations of Union restrictive measures and to the protection of persons reporting such violations.

_________________

_________________

49 Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, OJ L 305, 26.11.2019, p. 17–56.

49 Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, (OJ L 305, 26.11.2019, p. 17).

Amendment 20

Proposal for a directive

Recital 21

Text proposed by the Commission

Amendment

(21) To ensure the effective investigation and prosecution of violations of Union restrictive measures, those responsible for investigating or prosecuting these measures should have the possibility of using investigative tools such as those which are used in combating organised crime or other serious crimes. The use of such tools, in accordance with national law, should be targeted and take into account the principle of proportionality and the nature and seriousness of the offences under investigation as well as respecting the right to the protection of personal data.

(21) To ensure the effective investigation and prosecution of violations of Union restrictive measures, those responsible for investigating or prosecuting these measures should have the possibility of using investigative tools such as those which are used in combating organised crime or other serious crimes. The use of such tools, in accordance with national law, should be targeted and comply with the principles of necessity and proportionality and the nature and seriousness of the offences under investigation as well as respecting the right to the protection of personal data.

Amendment 21

Proposal for a directive

Recital 23

Text proposed by the Commission

Amendment

(23) The objectives of this Directive, namely to ensure common definitions of offences related to the violation of Union restrictive measures and the availability of effective, dissuasive and proportionate criminal penalties for serious offences related to the violation of Union restrictive measures cannot be sufficiently achieved by Member States but can rather, by reason of the scale and effects of this Directive, be better achieved at Union level, taking into account the inherent cross-border nature of the violation of Union restrictive measures and their potential to undermine the achievement of the Union objectives to safeguard international peace and security as well as to uphold Union common values. Therefore the Union may adopt measures, in accordance with the principle of subsidiarity as set out in accordance with Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

(23) Since the objectives of this Directive, namely to ensure common definitions of offences related to the violation of Union restrictive measures and the availability of effective, dissuasive and proportionate criminal penalties for serious offences related to the violation of Union restrictive measures cannot be sufficiently achieved by the Member States taking into account the inherent cross-border nature of the violation of Union restrictive measures and its potential to undermine the achievement of the Union objectives to safeguard international peace and security as well as to uphold Union common values, but can rather, by reason of the scale and effects of this Directive, be better achieved at Union level, the Union may adopt measures, in accordance 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 Directive does not go beyond what is necessary to achieve those objectives.

Amendment 22

Proposal for a directive

Recital 24

Text proposed by the Commission

Amendment

(24) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including the rights to liberty and security, the protection of personal data, the freedom to conduct a business, the right to property, the right to an effective remedy and to a fair trial, the presumption of innocence and the right of defence including the right not to incriminate oneself and to remain silent, the principles of legality, including the principle of non-retroactivity of criminal penalties and proportionality of criminal offences and penalties, as well as the principle of ne bis in idem. This Directive seeks to ensure full respect for those rights and principles and should be implemented accordingly.

(25) In implementing this Directive, Member States should ensure that the procedural rights of suspected or accused persons in criminal proceedings are observed. In this regard, the obligations under this Directive should not affect Member States obligations under Union law on procedural rights in criminal proceedings, in particular Directives 2010/64/EU3, 2012/13/EU4, 2013/48/EU5, (EU) 2016/3436, (EU) 2016/8007 and (EU) 2016/19198 of the European Parliament and of the Council.

(24) This Directive respects fundamental rights and observes the principles recognised in particular by the Charter, including the right to liberty and security, the protection of personal data as further specified by Regulation (EU) 2016/679, Regulation (EU) 2918/1725 and Directive (EU) 2016/680, the freedom to conduct a business, the right to property, the right to an effective remedy and to a fair trial, the presumption of innocence and the right of defence including the right not to incriminate oneself and to remain silent, the principles of legality, including the principle of non-retroactivity of criminal penalties and proportionality of criminal offences and penalties, as well as the principle of ne bis in idem. It is essential that Member States provide for an effective appeal against judgments issued pursuant to this Directive, before a higher court, in accordance with procedures provided for in national law. Where a decision to prosecute has been taken by a competent authority other than a judicial authority, national law should provide for a judicial review of such decision to prosecute, within a reasonable time, before the prosecution is initiated. This Directive seeks to ensure full respect for the aforementioned rights and principles and should be implemented accordingly.

(26) In view of the urgent need to hold individuals and legal persons involved in the violation of Union restrictive measures accountable, Member States should bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within 12 months after the entry into force of this Directive.

Amendment 23

(26a) To effectively tackle the criminal offences referred to in this Directive, it is necessary that competent authorities in the Member States collect accurate, consistent and comparable statistical data on the violation of Union restrictive measures. Member States should therefore be obliged to ensure that an adequate system is in place for the recording, production and transmission of existing statistical data on the offences referred to in this Directive. Those statistics should be used to serve the operational and strategic planning of enforcement activities, to analyse the scale of and trends in offences related to the violation of Union restrictive measures, as well as for providing information to citizens. Member States should transmit to the Commission relevant statistical data on proceedings related to the violation of Union restrictive measures collected from such data that already exist at a centralised level or a decentralised level throughout the whole Member State. The Commission should regularly assess and publish the results based on the data transmitted by the Member States.

Proposal for a directive

(27) 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 Directive and is not bound by it or subject to its application.

Article 1 – paragraph 1

(28) 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 3 March 2023, its wish to take part in the adoption and application of this Directive,

Text proposed by the Commission

HAVE ADOPTED THIS DIRECTIVE:

Amendment

Article 1

Subject matter

This Directive establishes minimum rules concerning the definition of criminal offences and penalties with regard to the violation of Union restrictive measures.

Article 2

This Directive establishes common minimum rules concerning the definition of criminal offences and penalties with regard to the violation of Union restrictive measures.

Amendment 24

Proposal for a directive

Article 2 – title

Text proposed by the Commission

Amendment

Scope and definitions

Scope

This Directive applies to violations of Union restrictive measures.

Amendment 25

Article 2a

Proposal for a directive

Definitions

Article 2 – paragraph 2

Text proposed by the Commission

Amendment

(2) For the purposes of this Directive, the following definitions apply:

(a) ‘Union restrictive measures’ means restrictive measures adopted by the Union on the basis of Article 29 TEU or Article 215 TFEU;

deleted

(b) ‘designated person, entity or body’ means a natural or legal person, entity or body subject to Union restrictive measures;

(a) ‘Union restrictive measures’ are restrictive measures adopted by the Union on the basis of Article 29 TEU or Article 215 TFEU;

(c) ‘funds’ means financial assets and benefits of every kind, including, but not limited to:

(b) ‘designated person, entity or body’, means those natural or legal persons, entities or bodies subject to Union restrictive measures consisting in the freezing of funds and economic resources and the prohibition to make funds and economic resources available;

(c) ‘funds’ means:

(i) cash, cheques, claims on money, drafts, money orders and other payment instruments;

(ii) deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;

(iii) publicly-tradedpublicly- and privately-traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts;

(iv) interest, dividends or other income on or value accruing from or generated by assets;

(vii) documents showing evidence of an interest in funds or financial resources;

(viii) crypto-assets as defined in Article 3(5) of Regulation (EU) 2023/1114 of the European Parliament and of the Council9;

(viii) crypto assets;

(d) ‘economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds but may be used to obtain funds, goods or services;

(f) ‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them.

Article 3

Amendment 26

Proposal for a directive

Article 2 a (new)

Text proposed by the Commission

Amendment

Article2a

Definitions

For the purposes of this Directive, the following definitions apply:

(a) ‘Union restrictive measures’ means restrictive measures adopted by the Union on the basis of Article 29 TEU or Article 215 TFEU;

(b) ‘designated person, entity or body’, means those natural or legal persons, entities or bodies subject to Union restrictive measures consisting in the freezing of funds and economic resources and the prohibition to make funds and economic resources available;

(c) ‘funds’ means:

(i) cash, cheques, claims on money, drafts, money orders and other payment instruments;

(ii) deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;

(iii) publicly- and privately-traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts;

(iv) interest, dividends or other income on or value accruing from or generated by assets;

(v) credit, right of set-off, guarantees, performance bonds or other financial commitments;

(vi) letters of credit, bills of lading, bills of sale;

(vii) documents showing evidence of an interest in funds or financial resources; (viii) crypto-assets as defined in Article 3(5) of Regulation (EU) 2023/1114 of the European Parliament and of the Council1a;

(d) ‘economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds but may be used to obtain funds, goods or services;

(e) ‘freezing of funds’ means preventing any move, transfer, alteration, use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or any other change that would enable the funds to be used, including, but not limited to, portfolio management;

(f) ‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them;

(g) ‘public official’ means:

(i) a Union official or a national official of a Member State or of a third country;

(ii) any other person assigned and exercising a public service function in a Member State or a third country, for an international organisation or for an international court;

(h) 'Union official’ means a person who is:

(i) a member of an institution, body, office or agency of the Union or the staff of such bodies;

(ii) an official or other servant engaged under contract by the Union within the meaning of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 (the ‘Staff Regulations’);

(iii) seconded to the Union by a Member State or by any public or private body, who carries out functions equivalent to those performed by Union officials or other servants.

_________________

1a Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets, and amending Regulations (EU) No 1093/2010 and (EU) No 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937 (Text with EEA relevance) (OJ L 150, 9.6.2023, p. 40).

(What was paragraph 2 of Article 2 in the Commission text has become Article 2a in Parliament’s amendment. Points (a.), (viii) and (e) have further modifications and new points (g) to (h) have been inserted.)

Amendment 27

Proposal for a directive

Article 3 – title

Text proposed by the Commission

Amendment

Violation of Union restrictive measures

(1) Member States shall take the necessary measures to ensure that, where it is intentional and in violation of a prohibition or an obligation set out in a Union restrictive measure or in a national provision implementing a Union restrictive measure, where national implementation is required, the following conduct constitutes a criminal offence.

Violation and circumvention of Union restrictive measures

(a) making funds or economic resources available directly or indirectly to, or for the benefit of, a designated person, entity or body in violation of a prohibition imposed by a Union restrictive measure;

Amendment 28

(b) failing to freeze funds or economic resources belonging to or owned, held or controlled by a designated person, entity or body in violation of an obligation set out in a Union restrictive measure;

Proposal for a directive

(c) enabling the entry of designated natural persons into, or their transit through, the territory of a Member State in violation of a prohibition imposed by a Union restrictive measure;

Article 3 – paragraph 1

(d) entering into or continuing transactions with a third State, bodies of a third State, entities or bodies directly or indirectly owned or controlled by a third State or bodies of a third State, which are prohibited or restricted by Union restrictive measures, including the award or continued execution of public or concession contracts;

Text proposed by the Commission

(e) trading, importing, exporting, selling, purchasing, transferring, transiting or transporting goods as well as providing brokering services, technical assistance or other services relating to those goods , in violation of a prohibition imposed by a Union restrictive measure;

Amendment

(f) providing financial services or performing financial activities which are prohibited or restricted by Union restrictive measures;

(1) Member States shall take the necessary measures to ensure that the violation of a Union restrictive measure constitutes a criminal offence when committed intentionally and provided it falls in one of the categories defined in paragraph 2.

(g) providing other services which are prohibited or restricted by Union restrictive measures;

(1) Member States shall take the necessary measures to ensure that the violation of a Union restrictive measure by any natural, legal person, entity or body constitutes a criminal offence when committed intentionally and provided it falls in one of the categories defined in paragraph 2.

(h) circumventing a Union restrictive measure by:

Amendment 29

(i) using, transferring to a third party or otherwise disposing of funds or economic resources directly or indirectly owned, held, or controlled by a designated person, entity or body, which are to be frozen in accordance with a Union restrictive measure, in order to conceal those funds or economic resources;

Proposal for a directive

(ii) providing false or misleading information, to conceal the fact that a designated person, entity or body is the ultimate owner or beneficiary of funds or economic resources which are to be frozen in accordance with a Union restrictive measure;

Article 3 – paragraph 2 – point a

(iii) failing by a designated natural person, or by a representative of a designated entity or body, to comply with an obligation imposed by Union restrictive measures to report funds or economic resources within the jurisdiction of a Member State, belonging to, owned, held, or controlled by them;

Text proposed by the Commission

(iv) failing to comply with an obligation imposed by Union restrictive measures to provide information obtained in the performance of professional duty on frozen funds or economic resources or information held about funds or economic resources within the territory of the Member States, belonging to, owned, held or controlled by designated persons, entities or bodies and which have not been frozen, to the competent administrative authorities;

Amendment

(i) breaching or failing to fulfil conditions under authorizations granted by competent authorities to conduct activities, which in the absence of such an authorization are prohibited or restricted under a Union restrictive measure.

(a) making funds or economic resources available to, or for the benefit of, a designated person, entity or body in violation of a prohibition by a Union restrictive measure;

(2a) Member States may provide that the violations referred to in paragraph 1, points (a), (b) and (h) of this Article do not constitute a criminal offence where they involve funds or economic resources of a value of less than EUR 10 000.

(a) making funds or economic resources available directly or indirectly to, or for the benefit of, a designated person, entity or body in violation of a prohibition by a Union restrictive measure;

(2b) Member States may provide that the violations referred to in paragraph 1, points (d) to (g) and (i) of this Article do not constitute a criminal offence where they involve goods, services, transactions or activities of a value of less than EUR 10 000.

Amendment 30

(2c) Member States shall take the necessary measures to ensure that the threshold of EUR 10 000 or more may also be met through a series of linked violations of the same kind referred to in paragraph 1, points (a), (b), (d) to (i) of this Article, when committed by the same offender.

Proposal for a directive

(3) The conduct referred to in paragraph 2, point e, at least when it relates to items included in the Common Military List of the European Union or dual use items listed in Annex I and IV to Regulation (EU) 2021/821, shall constitute a criminal offence also if committed with serious negligence.

Article 3 – paragraph 2 – point c

[…]

Text proposed by the Commission

(5) Nothing in paragraph 1 shall be understood as imposing an obligation on legal professionals to report information that they receive from, or obtain on, one of their clients, in the course of ascertaining the legal position of their client, or performing the task of defending or representing that client in, or concerning, judicial proceedings, including providing advice on instituting or avoiding such proceedings.

Amendment

(6) Nothing in paragraphs 1, 2 and 3 shall be understood as criminalising humanitarian assistance for persons in need or activities in support of basic human needs provided in accordance with the principles of impartiality, humanity, neutrality and independence and, where applicable, with international humanitarian law.

(c) enabling the entry of designated natural persons into the territory of a Member State or their transit through the territory of a Member State in violation of a prohibition by a Union restrictive measure;

Article 4

(c) enabling the entry of designated natural persons into the territory of a Member State, including its territorial seas and airspace, or their transit through the territory of a Member State in violation of a prohibition by a Union restrictive measure including through international zones situated in the territory of the Member State;

Inciting, aiding and abetting, and attempt

Amendment 31

(1) Member States shall take the necessary measures to ensure that inciting, aiding and abetting the offences referred to in Article 3 is punishable as a criminal offence.

Proposal for a directive

(2) Member States shall take the necessary measures to ensure that the attempt to commit any of the offences referred to in Article 3 (1), points (a), (c) to (g) and (h)(i) and (ii), is punishable as a criminal offence.

Article 3 – paragraph 2 – point c a (new)

Article 5

Text proposed by the Commission

Criminal penalties for natural persons

Amendment

(1) Member States shall ensure that the criminal offences referred to in Articles 3 and 4 are punishable by effective, proportionate and dissuasive criminal penalties.

(ca) enabling the stay in the territory of a Member State of a designated natural person, including by granting citizenship by investments or residence by investments schemes, in violation of a Union restrictive measure;

(2) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3 are punishable by a maximum penalty which provides for imprisonment.

Amendment 32

(3) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(1), points (h)(iii) and (iv), are punishable by a maximum penalty of at least one year of imprisonment when they involve funds or economic resources of a value of at least EUR 100 000 on the date when the offence was committed.

Proposal for a directive

(4) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(1), points (a), (b) and (h)(i) and (ii), are punishable by a maximum penalty of at least five years of imprisonment when they involve funds or economic resources of a value of at least EUR 100 000 on the date when the offence was committed.

Article 3 – paragraph 2 – point d

(4aa) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(1), point (c) is punishable by a maximum penalty of at least three years of imprisonment.

Text proposed by the Commission

(4a) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(1), points (d) to (g) and (i), are punishable by a maximum penalty of at least five years of imprisonment when they involve goods, services, transactions or activities of a value of at least EUR 100 000 on the date when the offence was committed. Where the criminal offence referred to in Article 3(1), point (e) involves items included in the Common Military List of the European Union or dual-use items listed in Annexes I and IV to Regulation (EU) 2021/821, Member States shall take the necessary measures to ensure that it is punishable by a maximum penalty of at least five years of imprisonment irrespective of the value of the items involved.

Amendment

(4b) Member States shall take the necessary measures to ensure that the threshold of EUR 100 000 or more may also be met through a series of linked offences of the same kind referred to in Article 3(1), when committed by the same offender.

(d) entering into transactions with a third State, bodies of a third State, entities and bodies owned or controlled by a third State or bodies of a third State, which are prohibited or restricted by Union restrictive measures;

(5) Member States shall take the necessary measures to ensure that natural persons who have committed the offences referred to in Articles 3 and 4 may be subject to additional criminal or non-criminal sanctions or measures which may include:

(d) entering into financial or corporate transactions or public procurement with a third State, bodies of a third State, entities and bodies directly or indirectly owned or controlled by a third State or bodies of a third State, which are prohibited or restricted by Union restrictive measures;

(-a) fines, which shall be proportionate to the seriousness of the conduct and to the individual, financial and other circumstances of the natural person concerned.

Amendment 33

Proposal for a directive

Article 3 – paragraph 2 – point e

Text proposed by the Commission

Amendment

(e) trading in goods or services whose import, export, sale, purchase, transfer, transit or transport is prohibited or restricted by Union restrictive measures, as well as providing brokering services or other services relating to those goods and services;

(e) trading in goods, services or technology whose import, export, sale, purchase, transfer, transit or transport is prohibited or restricted by Union restrictive measures, as well as acting as an intermediary or providing brokering services or other services relating to those goods and services;

Amendment 34

Proposal for a directive

Article 3 – paragraph 2 – point h – point i

Text proposed by the Commission

Amendment

(i) concealing funds or economic resources owned, held, or controlled by a designated person, entity or body, which should be frozen in accordance with a Union restrictive measure, by the transfer of those funds, or economic resources to a third party;

(i) moving, transferring, altering, using, accessing, dealing with, selling, hiring or mortgaging funds or economic resources directly or indirectly owned, held, or controlled by a designated person, entity or body, which should be frozen in accordance with a Union restrictive measure, to a third party to conceal those funds or economic resources enabling the designated persons to continue to use them;

Amendment 35

Proposal for a directive

Article 3 – paragraph 2 – point h – point ii

Text proposed by the Commission

Amendment

(ii) concealing the fact that a person, entity or body subject to restrictive measures is the ultimate owner or beneficiary of funds or economic resources, through the provision of false or incomplete information;

(ii) concealing the fact that a person, entity or body subject to Union restrictive measures is the ultimate owner or beneficiary of funds or economic resources, through the provision of false or incomplete information;

Amendment 36

Proposal for a directive

Article 3 – paragraph 2 – point h – point v a (new)

Text proposed by the Commission

Amendment

(va) conduct that has the same effect as one of the offences referred to in points (d) to (g) of this paragraph, in particular the concealment of goods, transactions, services or activities subject to a Union restrictive measure, or information about their nature, origin, destination or the identity of parties involved;

Amendment 37

Proposal for a directive

Article 3 – paragraph 3

Text proposed by the Commission

Amendment

(3) The conduct referred to in paragraph 2, points (a) to (g) shall constitute a criminal offence also if committed with serious negligence.

(3) The conduct referred to in paragraph 2, points (a) to (g) shall constitute a criminal offence also if committed with negligence.

Amendment 38

Proposal for a directive

Article 3 – paragraph 5

Text proposed by the Commission

Amendment

(5) Nothing in paragraph 2 shall be understood as imposing an obligation on legal professionals to report information which is obtained in strict connection with judicial, administrative or arbitral proceedings, whether before, during or after judicial proceedings, or in the course of ascertaining the legal position of a client. Legal advice in those circumstances shall be protected by professional secrecy, except where the legal professional is taking part in the violation of Union restrictive measures, the legal advice is provided for the purposes of violating Union restrictive measures, or the legal professional knows that the client is seeking legal advice for the purposes of violating Union restrictive measures.

(5) Nothing in paragraph 2 shall be understood as imposing an obligation on legal professionals to report information which is obtained in the performance of the task of defending or representing a client in, or concerning judicial, administrative or arbitral proceedings, whether before, during or after judicial proceedings, or in the course of ascertaining the legal position of a client. Legal advice in those circumstances shall be protected by professional secrecy, except where the legal professional is taking part in the violation of Union restrictive measures, the legal advice is provided for the purposes of violating Union restrictive measures, or the legal professional knows or has a well-grounded suspicion on the basis of factual circumstances that the client is seeking legal advice for the purposes of violating or circumventing Union restrictive measures.

Amendment 39

Proposal for a directive

Article 3 – paragraph 6 – indent 2

Text proposed by the Commission

Amendment

– to the failure to report such activities;

deleted

Amendment 40

Proposal for a directive

Article 3 – paragraph 6 – indent 3

Text proposed by the Commission

Amendment

– to humanitarian aid provided for persons in need.

– the provision of humanitarian assistance or activities in support of basic human needs and/or human rights, as defined in the relevant EU sanctions regimes;

Amendment 41

Proposal for a directive

Article 3 – paragraph 6 – indent 3 a (new)

Text proposed by the Commission

Amendment

- the failure to report the activities referred in this paragraph.

Amendment 42

Proposal for a directive

Article 4 – paragraph 2

Text proposed by the Commission

Amendment

(2) Member States shall take the necessary measures to ensure that the attempt to commit any of the offences referred to in Article 3 (2), points (a) to (g), (h (i), (ii) and point (i), is punishable as a criminal offence.

(2) Member States shall take the necessary measures to ensure that the attempt to commit any of the offences referred to in Article 3(2), points (a) to (g), points (h)(i), (ii) and (va) and point (i), is punishable as a criminal offence.

Amendment 43

Proposal for a directive

Article 5 – paragraph 3

Text proposed by the Commission

Amendment

(3) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(2), points (h)(iii), (iv) and (v), are punishable by a maximum penalty of at least one year of imprisonment when they involve funds or economic resources of a value of at least EUR 100 000. Member States shall ensure that the threshold of EUR 100 000 or more may also be met through a series of linked offences referred to in Article 3(2), points (h)(iii), (iv) and (v), when committed by the same offender.

(3) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(2), points (h)(iii), (iv), (v) and (va), are punishable by a maximum penalty of at least one year of imprisonment when they involve funds or economic resources of a value of at least EUR 50 000. Member States shall ensure that the threshold of EUR 50 000 or more may also be met through a series of linked offences referred to in Article 3(2), points (h)(iii), (iv), (v) and (va), when committed by the same offender.

Amendment 44

Proposal for a directive

Article 5 – paragraph 4

Text proposed by the Commission

Amendment

(4) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(2), points (a) to (g), (h)(i) and (ii), and point (i), are punishable by a maximum penalty of at least five years of imprisonment when they involve funds or economic resources of a value of at least EUR 100 000. Member States shall ensure that the threshold of EUR 100 000 or more may also be met through a series of linked offences referred to in Article 3(2), points (a) to (g), (h)(i) and (ii), and point (i), by the same offender.

(4) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(2), points (a) to (g), points (h)(i) and (ii), and point (i), are punishable by a maximum penalty of at least five years of imprisonment when they involve funds or economic resources of a value of at least EUR 100 000. Member States shall ensure that the threshold of EUR 100 000 or more may also be met through a series of linked offences referred to in Article 3(2), points (a) to (g), points (h)(i) and (ii), and point (i), by the same offender.

Amendment 45

Proposal for a directive

Article 5 – paragraph 5

Text proposed by the Commission

Amendment

(5) Member States shall take the necessary measures to ensure that natural persons who have committed the offences referred to in Articles 3 and 4 may be subject to additional penalties. Those additional penalties shall include fines.

(5) Member States shall take the necessary measures to ensure that natural persons who have committed the offences referred to in Articles 3 and 4 may be subject to additional penalties, which shall include fines. Such fines shall be proportionate to the amount of funds or economic resources involved in the offence and the maximum limit of such fines shall be not less than EUR 10 000 000 where those offences involve funds or economic resources of a value of at least EUR 100 000. Those additional penalties shall also include:

(a) withdrawal of permits and authorisations to pursue activities which have resulted in committing the offence;

(b) disqualification from exercising a leading position within a legal person of the type used for committing the offence;

(c) temporary bans on running for elected or public office;

(d) where there is a public interest, publication of all or part of the judicial decision that relates to the criminal offence committed and the sanctions or measures imposed following a case-by-case assessment. The personal data of convicted persons may be published only in duly justified exceptional cases.

(d) national or Union-wide publication of the judicial decision relating to the conviction or any sanctions or measures applied.

Article 6

Amendment 46

Liability of legal persons

Proposal for a directive

(1) Member States shall ensure that legal persons can be held liable for offences referred to in Articles 3 and 4 where such offences have been committed for their benefit by any person who has a leading position within the legal person, acting either individually or as part of an organ of the legal person, based on:

Article 7 – title

(a) a power of representation of the legal person;

Text proposed by the Commission

(b) an authority to take decisions on behalf of the legal person;

Amendment

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

Penalties for legal persons

(2) Member States shall also ensure that legal persons can be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission of an offence referred to in Articles 3 and 4 for the benefit of the legal person by a person under its authority.

(3) Liability of legal persons under paragraphs 1 and 2 of this Article shall not exclude criminal proceedings against natural persons who are perpetrators, inciters or accessories in the offences referred to in Articles 3 and 4.

Article 7

Sanctions for legal persons

(1) Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 6 is punishable by effective, proportionate and dissuasive criminal or non-criminal sanctions or measures, which shall include criminal or non-criminal fines and may include other criminal or non-criminal sanctions or measures, such as:

Amendment 47

(a-1) exclusion from entitlement to public benefits or aid;

Proposal for a directive

(a-2) exclusion from access to public funding, including tender procedures, grants and concessions;

Article 7 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

(1) Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 7 is subject to effective, proportionate and dissuasive penalties, which shall include criminal or non-criminal fines, exclusion from entitlement to public benefits or aid, exclusion from access to public funding, including tender procedures, grants and concessions and may include other penalties, such as:

(1) Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 6 is subject to effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines, exclusion from entitlement to public benefits or aid, exclusion from access to public funding, including tender procedures, grants and concessions and may include other sanctions, such as:

Amendment 48

Proposal for a directive

Article 7 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) disqualification from the practice of business activities;

(b) withdrawal of permits and authorisations to pursue activities which have resulted in committing the offence;

(a) temporary or permanent disqualification from the practice of business activities;

(c) placing under judicial supervision;

Amendment 49

(d) judicial winding-up;

Proposal for a directive

(e) closure of establishments, which have been used for committing the criminal offence;

Article 7 – paragraph 1 – point e a (new)

(ea) where there is a public interest, publication of all or part of the judicial decision that relates to the criminal offence committed and the sanctions or measures imposed, without prejudice to rules on privacy and the protection of personal data.

Text proposed by the Commission

(2) Member States shall take the necessary measures to ensure that, for legal persons held liable pursuant to Article 6, offences referred to in Article 3(1) are punishable by criminal or non-criminal fines, the amount of which shall be proportionate to the seriousness of the conduct and to the individual, financial and other circumstances of the legal person concerned. Member States shall take the necessary measures to ensure that the maximum level of the fines is not less than:

Amendment

(a) 1 percent of the total worldwide turnover of the legal person, either in the business year preceding the one in which the offence was committed, or in the business year preceding the fining decision., for offences referred to in Article 3(1), points (h) (iii) to (iv), and 5 percent of the total worldwide turnover of the legal person, either in the business year preceding the one in which the offence was committed, or in the business year preceding the fining decision, for offences referred to in Article 3(1) points (a) to (g), (h)(i) and (ii), and point (i);

(ea) national or Union-wide publication of the judicial decision relating to the conviction or any sanctions or measures applied, including by referring such judicial decision, sanctions or measures to relevant Union institutions.

or, alternatively

Amendment 50

(b) an amount corresponding to EUR 8 million for offences referred to in Article 3(1), points (h) (iii) to (iv) and EUR 40 million for offences referred to in Article 3(1) points (a) to (g), (h)(i) and (ii), and point (i).

Proposal for a directive

When providing for fines pursuant to Article 7(2) point (a), Member States may provide for rules for cases where it is not possible to determine the amount of the fine on the basis of the total worldwide turnover of the legal person in the business year preceding the one in which the offence was committed, or in the business year preceding the fining decision.

Article 7 – paragraph 2

Article 8

Text proposed by the Commission

Aggravating circumstances

Amendment

In(2) soMember farStates asshall take the followingnecessary circumstancesmeasures doto notensure alreadythat formfor partlegal ofpersons theheld constituentliable elementspursuant ofto Article 7 the criminal offences referred to in ArticlesArticle 33(2), andpoints 4,(h) Member(iii) Statesto shall(v), takeare punishable by fines, the necessarymaximum measureslimit toof ensurewhich thatshould onebe ornot severalless ofthan the1 followingpercent circumstancesof may,the intotal accordanceworldwide withturnover of the relevantlegal provisionsperson ofin nationalthe law,business beyear regardedpreceding asthe aggravatingfining circumstances:decision.

(a) the offence was committed in the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA10;

(2) Member States shall take the necessary measures to ensure that for legal persons held liable pursuant to Article 6 the criminal offences referred to in Article 3(2), points (h) (iii) to (va), are punishable by fines, the maximum limit of which should be not less than five percent of the consolidated worldwide turnover of the legal person in the business year preceding the fining decision.

(ab) the offence involved the use by the offender of false or forged documents;

Amendment 51

(b) the offence was committed by a professional service provider in violation of the professional obligations of such professional service provider;

Proposal for a directive

(c) the offence was committed by a public official when performing his or her duties or another person performing a public function.

Article 7 – paragraph 3

(da) the offence generated or was expected to generate substantial financial benefits, or avoided substantial expenses, directly or indirectly, to the extent that they can be determined.

Text proposed by the Commission

(db) the offender destroys evidence, or intimidates witnesses or complainants.

Amendment

(dc) the natural or legal person has previously been definitively convicted for offences covered by Articles 3 and 4.

(3) Member States shall take the necessary measures to ensure that for legal persons held liable pursuant to Article 7 the criminal offences referred to in Article 3(2), points (a) to (f), (h)(i) and (ii), and point (i), are punishable by fines, the maximum limit of which should be not less than 5 percent of the total worldwide turnover of the legal person in the business year preceding the fining decision.

Article 9

(3) Member States shall take the necessary measures to ensure that for legal persons held liable pursuant to Article 6 the criminal offences referred to in Article 3(2), points (a) to (f), points (h)(i) and (ii), and point (i), are punishable by fines, the maximum limit of which should be not less than 15 percent of the consolidated worldwide turnover of the legal person in the business year preceding the fining decision.

Mitigating circumstances

Amendment 52

Member States shall take the necessary measures to ensure that, in relation to the relevant offences referred to in Articles 3 and 4, one or several of the following circumstances may, in accordance with the relevant provisions of national law, be regarded as mitigating circumstances:

Proposal for a directive

(a) the offender provides the competent authorities with information they would not otherwise have been able to obtain, helping them to identify or bring to justice the other offenders; or

Article 8 – paragraph 1 – introductory part

(b) the offender provides the competent authorities with information they would not otherwise have been able to obtain, helping them to find evidence.

Text proposed by the Commission

Article 10

Amendment

Freezing and confiscation

In so far as the following circumstances do not already form part of the constituent elements of the criminal offences referred to in Articles 3 and 4, Member States shall take the necessary measures to ensure that one or several of the following circumstances may be regarded as aggravating circumstances:

(1) MemberIn Statesso shallfar takeas the necessary measuresfollowing tocircumstances enabledo thenot freezingalready andform confiscationpart of instrumentalitiesthe andconstituent proceedselements fromof the criminal offences referred to in Articles 3 and 4.4, Member States bound by Directive 2014/42/EUshall oftake the Europeannecessary Parliamentmeasures andto ofensure thethat Councilthe shallfollowing docircumstances somay inbe accordanceregarded withas thataggravating Directive.circumstances:

(2) Member States shall also take the necessary measures to enable the freezing and confiscation of funds or economic resources subject to Union restrictive measures in respect of which the designated natural person, or the representative of a designated entity or body, commits or participates in an offence referred to in Article 3(1), points (h)(i) or (ii). Member States shall do so in accordance with Directive 2014/42/EU

Amendment 53

Article 11

Proposal for a directive

Jurisdiction rules

Article 8 – paragraph 1 – point -a (new)

(1) Member States shall take the necessary measures to establish their jurisdiction over the criminal offences referred to in Articles 3 and 4 where:

Text proposed by the Commission

(a) the criminal offence was committed in whole or in part within its territory;

Amendment

(b) the criminal offence was committed on board of a ship or an aircraft registered in it or flying its flag;

(-a) the offence was committed in violation of a Union restrictive measure imposed in relation to crimes within the jurisdiction of the International Criminal Court including the crime of genocide, crimes against humanity, war crimes and the crime of aggression or of a Union restrictive measure imposed in relation to serious human rights violations and abuses;

(c) the offender is one of its nationals;

Amendment 54

(1a) A Member State shall inform the Commission where it decides to extend its jurisdiction to one or more offences referred to in Articles 3 and 4 which have been committed outside its territory, where:

Proposal for a directive

(a) the offender is one of its habitual residents;

Article 8 – paragraph 1 – point a a (new)

(b) the offender is one of its officials who acts in his or her official duty;

Text proposed by the Commission

(c) the offence is committed for the benefit of a legal person which is established on its territory;

Amendment

(d) the offence is committed for the benefit of a legal person in respect of any business done in whole or in part on its territory.

(aa) the offence involves the export of military technology or equipment as defined in Council Common Position 2008/944/CFSP;

(2) Where an offence referred to in Articles 3 and 4 falls within the jurisdiction of more than one Member State, these Member States shall cooperate to determine which Member State is to conduct criminal proceedings. The matter shall, where appropriate, be referred to Eurojust in accordance with Article 12 of Council Framework Decision 2009/948/JHA11.

Amendment 55

(3) In cases referred to in paragraph 1, point (c), Member States shall take the necessary measures to ensure that the exercise of their jurisdiction is not subject to the condition that a prosecution can be initiated only following a denunciation from the State of the place where the criminal offence was committed.

Proposal for a directive

Article 12

Article 8 – paragraph 1 – point a b (new)

Limitation periods

Text proposed by the Commission

(1) Member States shall take the necessary measures to provide for a limitation period that enables the investigation, prosecution, trial and judicial decision of criminal offences referred to in Articles 3 and 4 for a sufficient period of time after the commission of those criminal offences, so that those criminal offences can be tackled effectively.

Amendment

(2) Member States shall take the necessary measures to enable the investigation, prosecution, trial and judicial decision of criminal offences referred to in Articles 3 and 4 which are punishable by a maximum penalty of at least five years of imprisonment, for a period of at least five years from the time when the offence was committed.

(ab) the offence involved serious acts of corruption or the use of false or forged documents;

(3) Member States shall take the necessary measures to enable the enforcement of:

Amendment 56

(a) a penalty of more than one year of imprisonment; or alternatively

Proposal for a directive

Article 8 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c) the offence was committed by a public official when performing his or her duties;

(c) the offence was committed by a public official, whether a member of the civil service or the government including at the highest level, when performing his or her duties;

Amendment 57

Proposal for a directive

Article 8 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

(da) the offence generated or was expected to generate substantial financial benefits, or avoided substantial expenses, directly or indirectly;

Amendment 58

Proposal for a directive

Article 8 – paragraph 1 – point d b (new)

Text proposed by the Commission

Amendment

(db) the offender actively obstructs the inspection, custom controls or investigation activities, destroys evidence, or intimidates or interferes with witnesses or complainants;

Amendment 59

Proposal for a directive

Article 8 – paragraph 1 – point d c (new)

Text proposed by the Commission

Amendment

(dc) the offender does not provide assistance to inspection and other enforcement authorities when legally required;

Amendment 60

Proposal for a directive

Article 8 – paragraph 1 – point d d (new)

Text proposed by the Commission

Amendment

(dd) in the case of legal persons, the offence was committed by a person having a leading position within the legal person concerned;

Amendment 61

Proposal for a directive

Article 8 – paragraph 1 – point d e (new)

Text proposed by the Commission

Amendment

(de) the natural or legal person has previously committed offences covered by Articles 3 and 4.

Amendment 62

Proposal for a directive

Article 9 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

Provided this is not already an obligation under Union restrictive measures, Member States shall take the necessary measures to ensure that, in relation to the offences referred to in Articles 3 and 4, the following may be regarded as a mitigating circumstance:

1. Provided this is not already an obligation under Union restrictive measures, Member States shall take the necessary measures to ensure that, in relation to the offences referred to in Articles 3 and 4, the following circumstances may be regarded as a mitigating circumstance:

Amendment 63

Proposal for a directive

Article 9 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

(ba) the offender reports the offence to the competent authorities, before the offence is detected by the competent authorities.

Amendment 64

Proposal for a directive

Article 9 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. Member States shall take the necessary measures to ensure that, in the assessment of mitigating circumstances, competent authorities take into account the nature, timing, and extent of the information provided by the offender and the level of cooperation provided by the person in question.

Amendment 65

Proposal for a directive

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

Member States shall take the necessary measures to ensure that funds or economic resources subject to Union restrictive measures in respect of which the designated person, entity or body commits or participates in an offence referred to in Article 3(2), points (h)(i) or (ii), are considered as ‘proceeds’ of crime for the purposes of Directive (EU) […/…] [Directive on asset recovery and confiscation].

1. Member States shall take the necessary measures to ensure that funds or economic resources subject to Union restrictive measures in respect of which the designated person, entity or body commits or participates in an offence referred to in Article 3(2), points (h)(i) or (ii), are considered as ‘proceeds’ of crime for the purposes of Directive (EU) […/…] of the European Parliament and the of the Council [Directive on asset recovery and confiscation].

Amendment 66

Proposal for a directive

Article 10 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. Member States shall ensure that funds or economic resources subject to Union restrictive measures in respect of which the designated person, entity or body, listed in Council Regulation (EU) No 269/2014 1a and in Council Regulation (EU) No 833/20141b, commits or participates in an offence referred to in Article 3(2) of this Directive shall be frozen and confiscated in accordance with Articles 11 to 18a of Directive [on asset recovery and confiscation].

_________________

1a Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ L 78, 17.3.2014, p. 6).

1b Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (OJ L 229, 31.7.2014, p. 1).

Amendment 67

Proposal for a directive

Article 10 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

1b. The Commission shall issue guidelines on the use of the confiscated instrumentalities, proceeds and property for compensation, restitution and reparations towards States, especially in the circumstances of war of aggression insofar as the interests at stake are directly or indirectly affected by the criminal activities covered by this Directive and by the Directive [on asset recovery and confiscation].

Amendment 68

Proposal for a directive

Article 11 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) the criminal offence was committed in whole or in part within its territory, including its airspace;

(a) the criminal offence was committed in whole or in part within its territory, including its airspace and territorial sea;

Amendment 69

Proposal for a directive

Article 11 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e) the offence is committed for the benefit of a legal person which is established on its territory;

(e) the offence is committed for the benefit of a natural or legal person which is established on its territory;

Amendment 70

Proposal for a directive

Article 11 – paragraph 1 – point f

Text proposed by the Commission

Amendment

(f) the offence is committed for the benefit of a legal person in respect of any business done in whole or in part on its territory.

(f) the offence is committed for the benefit of a natural or legal person in respect of any business done in whole or in part on its territory.

Amendment 71

Proposal for a directive

Article 12 – paragraph 4 – point b

Text proposed by the Commission

Amendment

(b) a penalty of imprisonment in the case of a criminal offence which is punishable by a maximum penalty of at least four years of imprisonment,

(b) a penalty of imprisonment in the case of a criminal offence which is punishable by a maximum penalty of at least five years of imprisonment,

imposed following a final conviction for a criminal offence referred to in Articles 3 and 4, for at least five years from the date of the final conviction.

Amendment 72

(4) By way of derogation from paragraphs 2 and 3, Member States may establish a limitation period that is shorter than five years, but not shorter than three years, provided that the period may be interrupted or suspended in the event of specified acts.

Proposal for a directive

Article 13 – paragraph 1

Coordination and cooperation between competent authorities within a Member State

Text proposed by the Commission

Member States shall designate, from among their competent authorities and without prejudice to judicial independence, a unit or body for ensuring coordination and cooperation between law enforcement authorities and authorities in charge of implementing Union restrictive measures, in relation to the criminal activities covered by this Directive.

Amendment

The unit or body referred to in the first subparagraph shall have the following tasks:

Member States shall take the necessary measures to establish appropriate mechanisms for coordination and cooperation at strategic and operational levels among all their competent administrative, law enforcement and judicial authorities.

1. Each Member State shall set up or designate a dedicated unit body for the purpose of coordination and cooperation at strategic and operational levels among all their competent administrative, law enforcement and judicial authorities within a Member State. The dedicated body referred to in the first subparagraph shall have the following tasks:

Amendment 73

Proposal for a directive

Article 13 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

Such mechanisms shall be aimed at least at:

The dedicated body referred to in the first subparagraph shall have the following tasks:

Amendment 74

Proposal for a directive

Article 13 – paragraph 2 – point a

Text proposed by the Commission

Amendment

(a) ensuring common priorities and understanding of the relationship between criminal and administrative enforcement;

(a) to ensure common priorities and understanding of the relationship between criminal and administrative enforcement;

(b) to exchange information for strategic purposes, within the limits set out in applicable rules;

Amendment 75

(c) consultation in individual investigations, within the limits set out in applicable rules;

Proposal for a directive

Article 14

Article 13 – paragraph 2 – point b

Reporting of violations of Union restrictive measures and protection of persons who report such violations

Text proposed by the Commission

Member States shall take the necessary measures to ensure that Directive (EU) 2019/193712 is applicable to the reporting of violations of Union restrictive measures referred to in Articles 3 and 4 of this Directive and to the protection of persons reporting such violations, under the conditions established therein.

Amendment

Article 15

(b) exchange of information for strategic and operational purposes;

Investigative tools

(b) to exchange of information for strategic and operational purposes;

Member States shall take the necessary measures to ensure that effective and proportionate investigative tools are available for investigating or prosecuting offences referred to in Articles 3 and 4.Where appropriate, these tools shall include special investigative tools, such as those which are used in countering organised crime or other serious crime cases.

Amendment 76

Article 16

Proposal for a directive

Article 13 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c) consultation in individual investigations;

(c) to consult in individual investigations;

Amendment 77

Proposal for a directive

Article 13 – paragraph 2 – point d

Text proposed by the Commission

Amendment

(d) the exchange of best practices;

(d) to exchange best practices;

Amendment 78

Proposal for a directive

Article 13 – paragraph 2 – point e

Text proposed by the Commission

Amendment

(e) assistance to networks of practitioners working on matters relevant to investigating and prosecuting offences related to the violation of Union restrictive measures.

(e) to assist to networks of practitioners working on matters relevant to investigating and prosecuting offences related to the violation of Union restrictive measures.

Amendment 79

Proposal for a directive

Article 13 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. Member States shall ensure that the competent national authorities are provided with the human, technical and financial resources, premises and infrastructure necessary for the effective investigation and prosecution of violation of Union restrictive measures, and that specialised training is provided to the competent administrative, law enforcement and judicial authorities involved in such tasks.

Amendment 80

Proposal for a directive

Article 15 – paragraph 1

Text proposed by the Commission

Amendment

Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in investigating organised crime or other serious crime cases, are also available for investigating or prosecuting offences referred to in Articles 3 and 4.

Member States shall take the necessary and appropriate measures to ensure that effective investigative tools, such as those which are used in investigating organised crime or other serious crime cases, are also available for investigating or prosecuting offences referred to in Articles 3 and 4.

Amendment 81

Proposal for a directive

Article 16 – title

Text proposed by the Commission

Amendment

Cooperation between Member States’ authorities, the Commission, Europol, Eurojust and the European Public Prosecutor's Office

(1) Where the criminal offences referred to in Articles 3 and 4 are suspected to be of a cross-border nature, the competent authorities of the Member States shall consider referring the information related to these cases to appropriate competent bodies. Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters, the Member StatesEuropol, Eurojust, the European Public Prosecutor's Office, and the Commission shall, within their respective competences, cooperate with each other in the fight against the criminal offences referred to in Articles 3 and 4. To that end, Europol and Eurojust shall, where appropriate provide technical and operational assistance as the competent national authorities need to facilitate the coordination of their investigations.

Cooperation between Member States’ authorities, the Commission, Europol, Eurojust, the European Public Prosecutor's Office and the European Anti-Fraud Office

(1a) The Commission, where needed, may establish a network of experts and practitioners to share best practices and, if appropriate, provide assistance to the competent authorities of Member States in order to facilitate the investigation of offences related to the violation of Union restrictive measures. That network, where appropriate, may also provide a publicly available and regularly updated mapping of the risks of violations or circumvention of Union restrictive measures in specific geographic areas, and with respect to specific sectors and activities.

Amendment 82

(1b) When the cooperation referred to in paragraph 1 involves cooperation with competent authorities of third countries, this should take place with full respect of fundamental rights and international law.

Proposal for a directive

(2) Member States’ competent authorities shall also on a frequent and regular basis share information on practical issues, in particular, on patterns of circumvention, such as structures to conceal the beneficial ownership and control of assets, with the Commission and other competent authorities.

Article 16 – paragraph 1

Article 17

Text proposed by the Commission

Amendment

(1) Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters, Member States’ authorities, Europol, Eurojust, the European Public Prosecutor's Office, and the Commission shall, within their respective competences, cooperate with each other in the fight against the criminal offences referred to in Articles 3 and 4. To that end, the Commission, and where appropriate, Europol and Eurojust, shall provide technical and operational assistance in order to facilitate the coordination of investigations and prosecutions by the competent authorities.

(1) Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters, Member States’ national dedicated bodies set up or designated in accordance with [Article 13] of this Directive, Europol, Eurojust, the EPPO, the European Anti-Fraud Office and the Commission shall, within their respective competences, meet regularly in a structured format in order to coordinate and cooperate with each other in the fight against the criminal offences referred to in Articles 3 and 4 of this Directive. To that end, the Commission shall establish a permanent network of experts and practitioners to share best practices and provide technical and operational assistance in order to facilitate the coordination of investigations and prosecutions by the competent authorities, Europol and Eurojust, the EPPO, and the European Anti-Fraud Office, in compliance with Union law. That permanent network of experts and practitioners shall also provide a publicly available and regularly updated mapping of the risks of violations or circumvention of Union restrictive measures in specific geographic areas, and with respect to specific sectors and activities.

Amendment 83

Proposal for a directive

Article 16 – paragraph 2

Text proposed by the Commission

Amendment

(2) Member States’ competent authorities shall also regularly share information on practical issues, in particular, patterns of circumvention, e.g. structures to conceal the beneficial ownership and control of assets, with the Commission and other competent authorities.

(2) Member States’ competent authorities shall also on a frequent and regular basis share information on practical issues, in particular, on patterns of circumvention, for example structures to conceal the beneficial ownership and control of assets, with the Commission and other competent authorities.

Amendment 84

Proposal for a directive

Article 16 a (new)

Text proposed by the Commission

Amendment

Article16a

International Cooperation

Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters, Member State’s competent authorities, Europol, Eurojust, the EPPO and the Commission shall, within their respective competences and in the limits of their respective remit, cooperate with competent authorities of third countries in the fight against the criminal offences referred to in Articles 3 and 4, in full respect of fundamental rights and international law.

Amendment 85

Proposal for a directive

Article 17 – title

Text proposed by the Commission

Amendment

Amendments to Directive (EU) 2018/ 1673

Amendments to Directive (EU) 2018/ 1673 on combating money laundering by criminal law

In Article 2(1) of Directive (EU) 2018/1673, the following point is added:

Amendment 86

‘(w) violation of Union restrictive measures’.’

Proposal for a directive

Article 18 a (new)

Transposition

Text proposed by the Commission

(1) Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [OP- please insert the data- within 12 months after entry into force of the Directive]. They shall immediately inform the Commission thereof. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by the Directive.

Amendment

(2) When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The method of making such a reference shall be laid down by Member States.

Article18a

Article 19

Statistics

Data collection and statistics

1. Member States shall collect and maintain comprehensive statistics at central level on the measures taken under this Directive.

1. Member States shall ensure that a system is in place for the recording, production and provision of anonymised statistical data measuring the reporting, investigative and judicial phases concerning the offences referred to in Articles 3 and 4 in order to monitor the effectiveness of their systems to combat the violation of Union restrictive measures.

2. Without prejudice to the reporting obligations laid down in other Union legal acts, Member States shall, three times per year for the first two years after ... [six months after the date of entry into force of this Directive], and on an annual basis thereafter, make publicly available and submit to the Commission the following statistics on the criminal offences referred to in Articles 3 and 4, specified per type of Union restrictive measure: (a) the number of criminal proceedings initiated;

2. Without prejudice to reporting obligations laid down in other Union legal acts, Member States shall, on an annual basis, submit to the Commission the following statistical data on the criminal offences referred to in Articles 3 and 4, which shall, as a minimum, include existing data on:

(b) the number of criminal proceedings dismissed;

(a) the number of offences registered and adjudicated by the Member States;

(c) the number of criminal proceedings resulting in an acquittal;

(aa) the number of dismissed court cases, including due to the expiry of the limitation period;

(d) the number of criminal proceedings resulting in a conviction;

(b)(e) the number of natural personsongoing thatcriminal areproceedings;

(i) prosecuted,

(f) the number of criminal proceedings referred to the EPPO;

(ii) convicted;

(g) the average length of criminal proceedings;

(c) the number of legal persons that are

(h) the number of criminal proceedings that involved cross-border cooperation among Member States competent authorities, relevant Union bodies and agencies, and competent authorities from third countries;

(i) prosecuted,

(i) the value of the funds and economic resources frozen;

(ii) convicted or fined;

(j) the value of the funds and economic resources confiscated.

(d)The statistics to be submitted shall also include the types and levels of penalties and sanctions imposed onfor naturalviolation andof legalUnion persons;restrictive measures.

3. Member States shall ensure that a consolidated review of their statistics is published at least every three years.

3. The Commission is empowered to adopt delegated acts in accordance with [Article 18b] concerning the establishment of detailed rules on the information to be collected and on the methodology for the collection of the statistics referred to in paragraph 2 of this Article and the arrangements for their transmission to the Commission.

Article 19a

4. Within two weeks after receipt of the statistics referred to in paragraph 2, the Commission shall make them publicly available on its website, maintaining the breakdown by Member State.

Evaluation, reporting and review

Amendment 87

(1) By two years after the transposition period is over], the Commission shall submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive. Member States shall provide the Commission with the necessary information for the preparation of that report.

Proposal for a directive

(2) By five years after the expiration of the transposition period, the Commission shall carry out an evaluation of the impact and effectiveness of this Directive, taking into account the annual statistical data provided by the Member States, addressing the need to update the list of the criminal offences related to the violation of Union restrictive measures, and submit a report to the European Parliament and to the Council. Member States shall provide the Commission with necessary information for the preparation of that report. The report shall be accompanied by a legislative proposal, if necessary.

Article 18 b (new)

Article 20

Text proposed by the Commission

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

Amendment

Article 21

Article18b

This Directive is addressed to the Member States in accordance with the Treaties.

Exercise of the delegation

Done at Brussels,

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

For the European Parliament

2. The power to adopt delegated acts referred to in [Article 18a] shall be conferred on the Commission for an indeterminate period of time from ... [date of entry into force of this Directive].

For the Council

3. The delegation of power referred to in [Article 18a] may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

The President

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

The President

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

___________________________

6. A delegated act adopted pursuant to [Article 18a] shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of [two months] of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by [two months] at the initiative of the European Parliament or of the Council.

Amendment 88

Proposal for a directive

Article 19 – paragraph 2

Text proposed by the Commission

Amendment

(2) Without prejudice to reporting obligations laid down in other Union legal acts, Member States shall, on an annual basis, submit the following statistics on the criminal offences referred to in Articles 3 and 4 to the Commission:

deleted

(a) the number of criminal proceedings initiated, dismissed, resulting in an acquittal, resulting in a conviction and ongoing;

(b) the types and levels of penalties imposed for violation of Union restrictive measures.

Amendment 89

Proposal for a directive

Article 19 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

(2a) By ... [18 months from the date of entry into force of this Directive] the Commission shall assess the cooperation between the Member States and the Commission and other Union institutions, bodies, offices and agencies. That assessment shall include an assessment of the need for and modalities of the extension of the competences of the EPPO to include the criminal offence of violating and circumventing Union restrictive measures.

Amendment 90

Proposal for a directive

Article 19 – paragraph 3

Text proposed by the Commission

Amendment

(3) Member States shall submit the statistical data referred to in paragraph 2 to the Commission using the dedicated reporting tools set up by the Commission for reporting in the field of restrictive measures.

deleted

Amendment 91

Proposal for a directive

Article 19 – paragraph 4

Text proposed by the Commission

Amendment

(4) By [OP-please insert the data-five years after the transposition period is over], the Commission shall carry out an evaluation of the impact of this Directive and submit a report to the European Parliament and to the Council. Member States shall provide the Commission with necessary information for the preparation of that report.

(4) By ... [66 months from the date of entry into force of this Directive], and every three years thereafter, the Commission shall carry out an evaluation of the impact and effectiveness of this Directive, taking into account the annual statistics provided by the Member States, and submit a report to the European Parliament and to the Council, which shall be made public. Member States shall provide the Commission with necessary information for the preparation of that report. On the basis of that evaluation, the Commission shall decide on the appropriate follow-up actions, including, if necessary, a legislative proposal.

MINORITY POSITION

pursuant to Rule 55(4) of the Rules of Procedure

Clare Daly on behalf of The Left

A lack of proper scrutiny and deliberation has plagued the proposal to list the violation of Union Restrictive Measures as an EU crime, and the attendant Directive elaborating severe criminal penalties therefor. Notably, no impact assessment has been produced, and civil society input has been extremely limited.

The EU-wide criminalisation of the violation of restrictive measures has been justified on grounds that inconsistent enforcement by Member States undermines the efficiency of same. However, we do not have any evidence that a failure to criminalise sanctions violations in some Member States, or the existence of dual administrative and criminal regimes in others, is the reason for low levels of detection, prosecution and conviction for the offence. The significant broadening of the scope of criminal behaviour in the EU in the current case is therefore at odds with the ultima ratio principle, which requires the legislature to only invoke the criminal law if alternative measures have proven insufficient to achieve the objectives aimed at.

Proposals for criminalisation at an EU-level should always be subject to intensive scrutiny by the legislature and civil society. This has not happened in this case. Rather geopolitics has suppressed proper democratic deliberation and scrutiny, and set a dangerous precedent in the process.

12.6.2023

OPINION OF THE COMMITTEE ON BUDGETS

for the Committee on Civil Liberties, Justice and Home Affairs

on the proposal for a directive of the European Parliament and of the Council on the Definition of criminal offences and penalties for the violation of Union restrictive measures

(COM(2022)0684 – C90401/2022 – 2022/0398(COD))

Rapporteur for opinion: Vlad Gheorghe

SHORT JUSTIFICATION

Since the starts of the Russian unjustified and unprovoked aggressive military aggression against Ukraine on 24 February 2022, EU has adopted an unprecedented package of restrictive measures against individuals and legal entities directly involved or facilitating the war. Such measures have both political and economic objectives aiming at reducing the capacity of Russia to continue military attacks on Ukraine. Considering a broad sector of entities covered by sanctions it is essential to increase the effort for their effective implementation on the EU level.

The addition of the crime of sanction circumvention to the list of the EU crimes requires specific efforts to be made on the national and on the EU level to fight such phenomenon. It is essential to strengthen the effectiveness of the existing sanctions, so as to achieve their economic effect on the targeted persons and entities. This report aims to stress the paramount role the EPPO plays in the investigation of sanction circumvention as the EU body best positioned to fight the crimes involving the EU financial interests. Moreover, since the illicit acquisition of gains through sanction circumvention is connected to the EU financial interests, the EPPO should have the same level of access to information, as national competent authorities do, also in view of a potential extension of the EPPO competence to the fight against sanction evasion.

Moreover, the report follows-up on the call to use the assets confiscated as a result of sanction circumvention of the EU restrictive measures against Russia for the purpose of compensation to the victim population in Ukraine. The monetary value of such assets should serve the goal of building and rebuilding of the infrastructure in Ukraine, as well as the compensation for the victim population.

The report underlines among others, the need to apply proportionate fines in cases of sanction circumvention and strengthen the cooperation among the national authorities, including through the establishment of a joint sanction enforcement structure, with a view to supporting Member States in the implementation of Union restrictive.

AMENDMENTS

The Committee on Budgets calls on the Committee on Civil Liberties, Justice and Home Affairs, as the committee responsible, to take the following into account:

Amendment 1

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6) Persons, entities and bodies, which are designated individually in Union restrictive measures and subject to those Union restrictive measures, may often be involved as instigators and accomplices. For instance, the practice by designated persons and entities of transferring funds, property or economic resources to a third party with a view to circumvent Union restrictive measures is increasingly widespread. Therefore, this conduct is covered by the circumvention offence approximated by this Directive.

(6) Persons, entities and bodies, which are designated individually in Union restrictive measures and subject to those Union restrictive measures may often be involved as instigators and accomplices. For instance, the practice by designated persons and entities of transferring funds, property or economic resources to a party closely related, including dependants, with a view to circumvent Union restrictive measures is increasingly widespread and needs to be addressed since it undermines the effectiveness of Union restrictive measures. Therefore, this conduct is covered by the circumvention offence approximated by this Directive.

Amendment 2

Proposal for a directive

Recital 6 a (new)

Text proposed by the Commission

Amendment

(6a) Violation of the Union restrictive measures is often linked to other criminal activities and most notably motivated by considerations of financial gain. While generating profits, the circumvention of restrictive measures enables the continued use of assets. It undermines the objectives and effectiveness of those restrictive measures and hence needs to be addressed. Proceeds resulting from the violation of Union restrictive measures or instruments used to pursue the violation of restrictive measures should become the object of confiscation. Where the confiscated assets stem from the violation of the Union restrictive measures imposed on Russia following the war of aggression against Ukraine, the net revenues resulting from the liquidation of such assets should serve the goal of building and rebuilding of the infrastructure in Ukraine including through the use of financial instruments, as well as the compensation for the victim population.

Amendment 3

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19) To ensure the effective investigation and prosecution of violations of Union restrictive measures, Member States’ competent authorities should cooperate through and with Europol, Eurojust and the European Public Prosecutor’s Office (EPPO). These competent authorities should also share information among each other and with the Commission on practical issues.

(19) To ensure the effective investigation and prosecution of violations of Union restrictive measures, Member States’ competent authorities should cooperate through and with Europol, Eurojust and the European Public Prosecutor’s Office (EPPO) in accordance with their respective mandates. These competent authorities should also share information among each other and with the Commission on practical issues.

Amendment 4

Proposal for a directive

Recital 19 a (new)

Text proposed by the Commission

Amendment

(19a) For the purpose of this directive, asset recovery offices should closely cooperate with the central and decentralised levels of the European Public Prosecutor's Office (EPPO) with regard to the Member States that participate in the enhanced cooperation on the establishment of the EPPO if applicable under Regulation (EU) 2017/19391a(‘the EPPO Regulation’). Asset recovery offices should therefore incur the reporting obligations under the EPPO Regulation, reporting to the EPPO in the same way as they do to national competent authorities and Financial Intelligence Units.

__________________

1a Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, p. 1).

Amendment 5

Proposal for a directive

Recital 19 b (new)

Text proposed by the Commission

Amendment

(19b) Offences consisting in violation of the Union restrictive measures which involve designated persons, their dependants, entity or body, listed in the legal acts of the Union on restrictive measures, such as Council Regulation (EU) No 269/20141a and Council Regulation (EU) No 833/20141b, need to be considered in the light of the crimes against the financial interests of the Union.

___________________

1a Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ L 78, 17.3.2014, p. 6)

1b Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (OJ L 229, 31.7.2014, p. 1.

Amendment 6

Proposal for a directive

Recital 23

Text proposed by the Commission

Amendment

(23) The objectives of this Directive, namely to ensure common definitions of offences related to the violation of Union restrictive measures and the availability of effective, dissuasive and proportionate criminal penalties for serious offences related to the violation of Union restrictive measures cannot be sufficiently achieved by Member States but can rather, by reason of the scale and effects of this Directive, be better achieved at Union level, taking into account the inherent cross-border nature of the violation of Union restrictive measures and their potential to undermine the achievement of the Union objectives to safeguard international peace and security as well as to uphold Union common values. Therefore the Union may adopt measures, in accordance with the principle of subsidiarity as set out in accordance with Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

(23) The objectives of this Directive, namely to ensure common definitions of offences related to the violation of Union restrictive measures and the availability of effective, dissuasive and proportionate criminal penalties for serious offences related to the violation of Union restrictive measures cannot be sufficiently achieved by Member States but can rather, by reason of the scale and effects of this Directive, be better achieved at Union level, including through the active involvement of EPPO within the scope of its mandate, taking into account the inherent cross-border nature of the violation of Union restrictive measures and their potential to undermine the achievement of the Union objectives to safeguard international peace and security as well as to uphold Union common values and defend the Union financial interests. EPPO, as the Union body specialised in the investigation of the crimes against the financial interests of the Union, should play a crucial role in the investigation of crimes of circumvention of the Union restrictive measures when they are deemed to undermine those financial interests. Therefore the Union may adopt measures, in accordance with the principle of subsidiarity as set out in accordance with Article 5 TEU. Among others, increased efforts for preventing the evasion of Union restrictive measures should be explored with a view to supporting Member States in the implementation of Union restrictive measures. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

Amendment 7

Proposal for a directive

Article 2 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b) ‘designated person, entity or body’, means those natural or legal persons, entities or bodies subject to Union restrictive measures consisting in the freezing of funds and economic resources and the prohibition to make funds and economic resources available;

(b) ‘designated person, entity or body’, means those natural or legal persons, entities or bodies subject to Union restrictive measures consisting in the freezing of funds and economic resources and the prohibition to make funds and economic resources available, including Union travel restrictions;

Amendment 8

Proposal for a directive

Article 5 – paragraph 3

Text proposed by the Commission

Amendment

(3) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(2), points (h)(iii), (iv) and (v), are punishable by a maximum penalty of at least one year of imprisonment when they involve funds or economic resources of a value of at least EUR 100 000. Member States shall ensure that the threshold of EUR 100 000 or more may also be met through a series of linked offences referred to in Article 3(2), points (h)(iii), (iv) and (v), when committed by the same offender.

(3) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(2), points (h)(iii), (iv) and (v), are punishable by a maximum penalty of at least one year of imprisonment when they involve funds or economic resources of a value of at least EUR 50 000. Member States shall ensure that the threshold of EUR 50 000 or more can also be met through a series of linked offences referred to in Article 3(2), points (h)(iii), (iv) and (v), when committed by the same offender.

Amendment 9

Proposal for a directive

Article 5 – paragraph 4

Text proposed by the Commission

Amendment

(4) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(2), points (a) to (g), (h)(i) and (ii), and point (i), are punishable by a maximum penalty of at least five years of imprisonment when they involve funds or economic resources of a value of at least EUR 100 000. Member States shall ensure that the threshold of EUR 100 000 or more may also be met through a series of linked offences referred to in Article 3(2), points (a) to (g), (h)(i) and (ii), and point (i), by the same offender.

(4) Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3(2), points (a) to (g), (h)(i) and (ii), and point (i), are punishable by a maximum penalty of at least five years of imprisonment when they involve funds or economic resources of a value of at least EUR 100 000. Member States shall ensure that the threshold of EUR 100 000 or more can also be met through a series of linked offences referred to in Article 3(2), points (a) to (g), (h)(i) and (ii), and point (i), by the same offender.

Amendment 10

Proposal for a directive

Article 5 – paragraph 5

Text proposed by the Commission

Amendment

(5) Member States shall take the necessary measures to ensure that natural persons who have committed the offences referred to in Articles 3 and 4 may be subject to additional penalties. Those additional penalties shall include fines.

(5) Member States shall take the necessary measures to ensure that natural persons who have committed the offences referred to in Articles 3 and 4 may be subject to additional penalties which shall include fines. Such fines shall be proportionate to the amount of funds or economic resources involved in the offence with a maximum of at least EUR 10 000 000 when those offences involve funds or economic resources of a value of at least EUR 100 000.

Amendment 11

Proposal for a directive

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

(2) Member States shall take the necessary measures to ensure that for legal persons held liable pursuant to Article 7 the criminal offences referred to in Article 3(2), points (h) (iii) to (v), are punishable by fines, the maximum limit of which should be not less than 1 percent of the total worldwide turnover of the legal person in the business year preceding the fining decision.

(2) Member States shall take the necessary measures to ensure that for legal persons held liable pursuant to Article 7 the criminal offences referred to in Article 3(2), points (h) (iii) to (v), are punishable by fines, the maximum limit of which should be not less than 5 percent of the consolidated worldwide turnover of the legal person in the business year preceding the fining decision.

Amendment 12

Proposal for a directive

Article 7 – paragraph 3

Text proposed by the Commission

Amendment

(3) Member States shall take the necessary measures to ensure that for legal persons held liable pursuant to Article 7 the criminal offences referred to in Article 3(2), points (a) to (f), (h)(i) and (ii), and point (i), are punishable by fines, the maximum limit of which should be not less than 5 percent of the total worldwide turnover of the legal person in the business year preceding the fining decision.

(3) Member States shall take the necessary measures to ensure that for legal persons held liable pursuant to Article 7 the criminal offences referred to in Article 3(2), points (a) to (f), (h)(i) and (ii), and point (i), are punishable by fines, the maximum limit of which should be not less than 10 percent of the consolidated worldwide turnover of the legal person in the business year preceding the fining decision.

Amendment 13

Proposal for a directive

Article 10 – paragraph -1 (new)

Text proposed by the Commission

Amendment

Member States shall ensure that funds or economic resources subject to Union restrictive measures in respect of which the designated person, entity or body, listed in Council Regulation (EU) No 269/2014 and Council Regulation (EU) No 833/2014, commits or participates in an offence referred to in Article 3(2) shall be frozen and confiscated as per Articles 11 to 18 of Directive (EU) [.../.../] of the European Parliament and the of the Council [on asset recovery and confiscation]1a. In addition, Member States shall ensure that regarding the party closely related to suspected, accused or convicted person as defined in Directive (EU) [.../...][on asset recovery and confiscation], Article 13 of the same Directive is fully implemented and without undue delay.

__________

1a COM(2022) 245.

Amendment 14

Proposal for a directive

Article 10 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

The proceeds shall be used for public interest or social purposes, with a particular focus on the victims wherever possible. Member States shall decide for which areas of public interest and social purposes the proceeds or the net revenues resulting from the liquidation of the proceeds may be used except for the latter when they are established as an own resource in accordance with Article 311(3) TFEU and when they are related to the Russian aggression against Ukraine, in which case they shall constitute external assigned revenue in accordance with Article 21(5) of the Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council1a (‘the Financial Regulation’) until the establishment of the relevant own resource in accordance with Article 311(3) TFEU and without prejudice to restitution, compensation, to the victims and public concerned and Member States’ capacity to implement the Directive. Those external assigned revenues shall be mainly assigned to the Neighbourhood, Development and International Cooperation Instrument – Global Europe on the Eastern Neighbourhood line (14 02 01 11) and, where appropriate, to the NDICI - Global Europe - provisioning of the common provisioning fund line (14 02 01 70) under Heading 6 and the successor budget lines in the next multiannual financial framework.

_________________

1a Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

Amendment 15

Proposal for a directive

Article 10 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

Where the fines referred to in Article 5(5) and Article 7(2) and (3) are related to the offences referred to in Articles 3 and 4 and are linked to the violation of Union restrictive measures in the context of the Russian war of aggression against Ukraine, they should serve the goal of rebuilding the infrastructure and compensating the victim population.

Amendment 16

Proposal for a directive

Article 13 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

For the purposes of this Directive, when the notion of competent authorities refers to investigating and prosecuting authorities, it shall be interpreted as including the central and decentralised levels of the EPPO with regard to the Member States that participate in the enhanced cooperation on the establishment of the EPPO. Asset recovery offices shall therefore incur the obligations under the EPPO Regulation, including the obligation to report to the EPPO under Article 24 of the EPPO Regulation, undertaking of measures if instructed as a competent authority under Article 28(1) of the EPPO Regulation and access to information under Article 43(1) of the EPPO Regulation.

Amendment 17

Proposal for a directive

Article 15 – paragraph 1

Text proposed by the Commission

Amendment

Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in investigating organised crime or other serious crime cases, are also available for investigating or prosecuting offences referred to in Articles 3 and 4.

Member States shall take the necessary measures to ensure that effective investigative tools and mechanisms, such as those which are used in investigating organised crime or other serious crime cases, are also available for investigating or prosecuting offences referred to in Articles 3 and 4.

Amendment 18

Proposal for a directive

Article 15 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

Offences referred to in Articles 3 and 4 which involve designated persons, entity or body, listed in the legal acts of the Union on restrictive measures, such as Council Regulation (EU) No 269/2014 and Council Regulation (EU) No 833/2014 and fall within the mandate of the EPPO, shall be referred to the EPPO for investigating, prosecuting and bringing to judgment.

Justification

Since the confiscated resources resulting from the violation of sanctions against individuals and entities involved in Russian aggression against Ukraine shall become part of the EU budget, such resources belong to the financial interests of the EU. Therefore the prosecution of such offences should be carried out by the EPPO, which is the best equipped EU body to deal with the cross-border character of sanction circumvention.

Amendment 19

Proposal for a directive

Article 16 – paragraph 1

Text proposed by the Commission

Amendment

(1) Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters, Member States’ authorities, Europol, Eurojust, the European Public Prosecutor's Office, and the Commission shall, within their respective competences, cooperate with each other in the fight against the criminal offences referred to in Articles 3 and 4. To that end, the Commission, and where appropriate, Europol and Eurojust, shall provide technical and operational assistance in order to facilitate the coordination of investigations and prosecutions by the competent authorities.

(1) Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters, Member States’ authorities, Europol, Eurojust, the European Public Prosecutor's Office, when Member States participating in the enhanced cooperation on the establishment of the EPPO are involved and the Commission shall, within their respective competences, cooperate with each other in the fight against the criminal offences referred to in Articles 3 and 4. To that end, the Commission, and where appropriate, Europol and Eurojust and EPPO in regards to Member States participating in the enhanced cooperation on the establishment of the EPPO are involved, shall provide technical and operational assistance in order to facilitate the coordination of investigations and prosecutions by the competent authorities.

Amendment 20

Proposal for a directive

Article 16 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

(1a) Commission, Europol, Eurojust as well as authorities of the Member States, in particular Asset Recovery Offices and Asset Management Offices, in accordance with Directive (EU) […/…] [Directive on asset recovery and confiscation], shall cooperate with the EPPO on offences referred to in Articles 3 and 4 which involve designated person, entity or body, listed in Council Regulation (EU) No 269/2014 and which are referred to the EPPO for investigating, prosecuting and bringing to judgment.

Amendment 21

Proposal for a directive

Article 16 – paragraph 2

Text proposed by the Commission

Amendment

(2) Member States’ competent authorities shall also regularly share information on practical issues, in particular, patterns of circumvention, e.g. structures to conceal the beneficial ownership and control of assets, with the Commission and other competent authorities.

(2) Member States’ competent authorities shall also regularly share information on practical issues, in particular, patterns of circumvention, e.g. structures to conceal the beneficial ownership and control of assets, with the Commission, EPPO and other competent authorities, within the exercise of their respective competences.

Amendment 22

Proposal for a directive

Article 19 – paragraph 2 – point a a (new)

Text proposed by the Commission

Amendment

(aa) the number of criminal proceedings referred to the EPPO.

Amendment 23

Proposal for a directive

Article 19 – paragraph 2 – point b a (new)

Text proposed by the Commission

Amendment

(ba) the monetary value of funds and economic resources frozen and confiscated in each case of violation of Union restrictive measures;

Amendment 24

Proposal for a directive

Article 19 – paragraph 2 – point b b (new)

Text proposed by the Commission

Amendment

(bb) the types of national authorities involved in investigations and criminal proceedings.

Justification

The scope is to identify which of the national authorities are most solicited and as a consequence might require additional financial and technical resources.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Definition of criminal offences and penalties for the violation of Union restrictive measures

References

COM(2022)0684 – C9-0401/2022 – 2022/0398(COD)

Committee responsible

Date announced in plenary

LIBE

12.12.2022

Opinion by

Date announced in plenary

BUDG

16.3.2023

Rapporteur for the opinion

Date appointed

Vlad Gheorghe

28.3.2023

Discussed in committee

26.4.2023

Date adopted

8.6.2023

Result of final vote

+:

–:

0:

21

1

2

Members present for the final vote

Olivier Chastel, Andor Deli, Pascal Durand, José Manuel Fernandes, Vlad Gheorghe, Valérie Hayer, Eero Heinäluoma, Niclas Herbst, Adam Jarubas, Moritz Körner, Zbigniew Kuźmiuk, Camilla Laureti, Siegfried Mureşan, Dimitrios Papadimoulis, Bogdan Rzońca, Eleni Stavrou, Nils Ušakovs

Substitutes present for the final vote

Jonás Fernández, Jens Geier, Fabienne Keller, Petri Sarvamaa

Substitutes under Rule 209(7) present for the final vote

Asim Ademov, Markus Ferber, Massimiliano Smeriglio

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

Key to symbols:

PROCEDURE – COMMITTEE RESPONSIBLE

Title

Definition of criminal offences and penalties for the violation of Union restrictive measures

References

COM(2022)0684 – C9-0401/2022 – 2022/0398(COD)

Date submitted to Parliament

2.12.2022

Committee responsible

Date announced in plenary

LIBE

12.12.2022

Committees asked for opinions

Date announced in plenary

BUDG

16.3.2023

ECON

12.12.2022

JURI

12.12.2022

Not delivering opinions

Date of decision

ECON

25.1.2023

JURI

31.1.2023

Rapporteurs

Date appointed

Sophia in ‘t Veld

28.3.2023

Discussed in committee

31.1.2023

22.5.2023

Date adopted

6.7.2023

Result of final vote

+:

–:

0:

36

2

2

Members present for the final vote

Abir Al-Sahlani, Malik Azmani, Katarina Barley, Pietro Bartolo, Theresa Bielowski, Vasile Blaga, Patrick Breyer, Saskia Bricmont, Damien Carême, Patricia Chagnon, Clare Daly, Lucia Ďuriš Nicholsonová, Sylvie Guillaume, Sophia in ‘t Veld, Łukasz Kohut, Moritz Körner, Alice Kuhnke, Lukas Mandl, Erik Marquardt, Nadine Morano, Javier Moreno Sánchez, Maite Pagazaurtundúa, Karlo Ressler, Diana Riba i Giner, Birgit Sippel, Tineke Strik, Ramona Strugariu, Yana Toom

Substitutes present for the final vote

Nathalie Colin-Oesterlé, Beata Kempa, Leopoldo López Gil, Kostas Papadakis, Thijs Reuten, Domènec Ruiz Devesa, Isabel Wiseler-Lima

Substitutes under Rule 209(7) present for the final vote

François-Xavier Bellamy, Isabel Benjumea Benjumea, Hildegard Bentele, Marie Dauchy, Vlad Gheorghe

Date tabled

7.7.2023

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

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