Sittings · Document
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
Committee on Civil Liberties, Justice and Home Affairs · Rapporteur: Sophia in 't Veld
PR_COD_1amCom
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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 (A90000/2023),
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 4
Text proposed by the Commission
Amendment
(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.
(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 negligence, in case the natural or legal person knew or should have known, that their conduct would infringe Union restrictive measures.
Or. en
Amendment 2
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, 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 or has reasons to believe that the client is seeking legal advice for the purposes of violating Union restrictive measures. Knowledge can be inferred from objective factual circumstances.
Or. en
Amendment 3
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.
Or. en
Amendment 4
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 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 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.
Or. en
Amendment 5
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). These competent authorities should also share information among each other and with the Commission on practical issues. For the purposes of this Directive and notwithstanding a possible extension of the competence of the EPPO, 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 organisation or criminal offences inextricably linked to offences referred to in Article 22(2) and (3) of Regulation (EU) 2017/1939.
Or. en
Amendment 6
Proposal for a directive
Article 2 – title
Text proposed by the Commission
Amendment
Scope and definitions
Scope
Or. en
Justification
Separate articles for scope and definitions
Amendment 7
Proposal for a directive
Article 2 a (new)
Text proposed by the Commission
Amendment
Article 2a
Definitions
Or. en
Justification
Separate articles for scope and definitions
Amendment 8
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 owned, held, or controlled by a designated person, entity or body, which should be frozen in accordance with a Union restrictive measure, in a way that results in a change in the volume, amount, location, ownership, possession, character or destination of those funds or economic resources or any other change that would enable those funds and resources to be used, including by a third party or through portfolio management;
Or. en
Amendment 9
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.
Or. en
Amendment 10
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 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 or has reasons to believethat the client is seeking legal advice for the purposes of violating Union restrictive measures.
Or. en
Amendment 11
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 and 4 are punishable by a maximum penalty of at least five 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 Articles 3(2) when committed by the same offender.
Or. en
Amendment 12
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.
deleted
Or. en
Amendment 13
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. Those additional penalties shall include maximum fines of an amount of at least EUR 10 000 000 where those offences involve funds or economic resources of a value of at least EUR 100 000.
Or. en
Amendment 14
Proposal for a directive
Article 7 – title
Text proposed by the Commission
Amendment
Penalties for legal persons
Sanctions for legal persons
Or. en
Amendment 15
Proposal for a directive
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:
Or. en
Amendment 16
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 6 the criminal offences referred to in Article 3(2) are punishable by fines, the maximum limit of which should be not less than 15 percent of the total worldwide turnover of the legal person in the business year preceding the fining decision.
Or. en
Amendment 17
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.
deleted
Or. en
Amendment 18
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Text proposed by the Commission
Amendment
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:
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 the following circumstances may be regarded as aggravating circumstances:
Or. en
Amendment 19
Proposal for a directive
Article 8 – paragraph 1 – point a a (new)
Text proposed by the Commission
Amendment
(aa) the offence involved the use of false or forged documents;
Or. en
Amendment 20
Proposal for a directive
Article 8 – paragraph 1 – point b
Text proposed by the Commission
Amendment
(b) the offence was committed by a professional service provider in violation of his professional obligations;
(b) the offence was committed by a professional service provider in violation of that provider’s professional obligations;
Or. en
Amendment 21
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;
Or. en
Amendment 22
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;
Or. en
Amendment 23
Proposal for a directive
Article 8 – paragraph 1 – point d b (new)
Text proposed by the Commission
Amendment
(db) the offender does not provide assistance to inspection and other enforcement authorities when legally required;
Or. en
Amendment 24
Proposal for a directive
Article 8 – paragraph 1 – point d d (new)
Text proposed by the Commission
Amendment
(dd) in the case of legal entities, the offence was committed by senior management, or the senior management level should reasonably have been aware of the offence committed.
Or. en
Amendment 25
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,
Or. en
Amendment 26
Proposal for a directive
Article 13 – paragraph 1
Text proposed by the Commission
Amendment
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 for the purpose of coordination and cooperation at strategic and operational levels among all competent administrative, law enforcement and judicial authorities within a Member State.
Or. en
Amendment 27
Proposal for a directive
Article 13 – paragraph 2 – introductory part
Text proposed by the Commission
Amendment
Such mechanisms shall be aimed at least at:
2. The dedicated units referred to in paragraph 1 shall have the following tasks:
Or. en
Amendment 28
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;
Or. en
Amendment 29
Proposal for a directive
Article 13 – paragraph 2 – point b
Text proposed by the Commission
Amendment
(b) exchange of information for strategic and operational purposes;
(b) to exchange information for strategic and operational purposes;
Or. en
Amendment 30
Proposal for a directive
Article 13 – paragraph 2 – point c
Text proposed by the Commission
Amendment
(c) consultation in individual investigations;
(c) to be consulted in individual investigations;
Or. en
Amendment 31
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;
Or. en
Amendment 32
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 networks of practitioners working on matters relevant to investigating and prosecuting offences related to the violation of Union restrictive measures.
Or. en
Amendment 33
Proposal for a directive
Article 13 – paragraph 2 a (new)
Text proposed by the Commission
Amendment
2a. 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.
Or. en
Amendment 34
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, the Member States’ national dedicated units set up in [Article 13], Europol, Eurojust, the European Public Prosecutor's 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. 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.
Or. en
Amendment 35
Proposal for a directive
Article 16 – paragraph 1 a (new)
Text proposed by the Commission
Amendment
(1a) 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 shall without undue delay report to the EPPO any criminal conduct in respect of which it could exercise its competence in accordance with Article 22, Article 25(2) and (3) of Regulation (EU) 2017/1939.
Or. en
Amendment 36
Proposal for a directive
Article 18 a (new)
Text proposed by the Commission
Amendment
Article 18a
Statistics
1. Member States shall collect and maintain comprehensive statistics at central level on the measures taken under this Directive.
2. Without prejudice to the reporting obligations laid down in other Union legal acts, the Member States shall, on an annual basis, by September of the following year, 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;
(b) the number of criminal proceedings dismissed;
(c) the number of criminal proceedings resulting in an acquittal;
(d) the number of criminal proceedings resulting in a conviction;
(e) the number of ongoing criminal proceedings;
(f) the average length of criminal proceedings;
(g) the value of the funds and economic resources frozen
(h) the value of the funds and economic resources seized.
The statistics to be submitted shall also include the types and levels of penalties and sanctions imposed for violation of Union restrictive measures.
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.
4. The Commission shall make these statistics publicly available on an annual basis.
Or. en
Amendment 37
Proposal for a directive
Article 18 b (new)
Text proposed by the Commission
Amendment
Article 18b
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
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].
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.
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.
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.
Or. en
Amendment 38
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.
Or. en
Justification
Covered in separate article about statistics
Amendment 39
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
Or. en
Amendment 40
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 [OP-please insert the date-five years after the transposition period is over], the Commission shall carry out an evaluation of the impact 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.
Or. en