Objectives of a common strategy
To combat crime efficiently, the criminal justice authorities of EU countries need to work together. Ultimately, in a common European area of justice national law enforcers and judiciaries will be able to trust and rely on each other.
This will increase people's confidence in the fairness of proceedings, knowing that their rights are protected when they have to appear in court in another country, or if they fall victim to a crime.
Added value of EU rules
Action at EU level in this field is crucial for a number of reasons
- Serious organised crime is often committed across borders. To prevent 'safe havens' for criminals, EU countries' laws should be more aligned
- If people can trust that their rights are respected, in all EU countries, if they are suspected or accused of a crime, they are more likely to use their right to live, work or study in another EU country
- Common rules strengthen mutual trust between the judiciaries of different EU countries. This makes cooperation and mutual recognition of decisions easier across the EU
- EU criminal law helps to prevent and punish serious offences, for example environmental crime
In accordance with the Treaties the Area of Freedom, Security and Justice is an area of shared competence between the EU and the Member States.
In particular, in the area of substantive criminal law, EU competence has been limited to establishing “minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension,” (EU crime).
These EU-crimes have been specifically listed in Article 83(1) of the Treaty on the Functioning of the European Union, Additional EU-crimes can only be identified by unanimous decision of the Council and with the prior consent of the European Parliament. Furthermore, a criminal “annex competence” to ensure the effective implementation of Union policies in areas that have been subject to harmonisation measures has been explicitly codified in Art. 83(2)
Since the start of the war in Ukraine, the EU has adopted sanctions against Russian and Belarussian individuals. However, oligarchs trying to avoid the freezing of their property sometimes try to hide it or siphon it off. For example, by transferring ownership of sanctioned property to a non-sanctioned third party. They are helped by the existing legal loopholes, as the criminal law provisions on breaches of EU sanctions vary across Member States.
The Commission has followed a two-step approach to pass legislation that would help end impunity for those violating EU sanctions. As a first step, on 25 May the Commission put forward a proposal for a Council Decision identifying the violation of EU sanctions as an EU crime in accordance with Article 83(1).
On 28 November 2022, the proposal for a Council Decision identifying the violation of EU sanctions as an area of serious crime that meets the criteria set out in Article 83(1) of the TFEU was adopted with unanimity. This is the first time that an EU crime has been added to the list of Article 83(1) of the TFEU.
This enabled the Commission to put forward a proposal for a Directive on the violation of Union restrictive measures on 2 December.
The offences to be approximated by the Directive will include precise definitions of the criminal offences related to violations of EU sanctions, notably:
- making funds or economic resources available to a natural or legal person subject to restrictive measures;
- failing to freeze without undue delay funds or economic resources belonging to a natural or legal person subject to restrictive measures;
- engaging in financial activities, which are prohibited or restricted; and
- engaging in prohibited or restricted trade.
The offences will also cover the circumvention of EU sanctions, for instance by the concealment of the fact that a person subject to sanctions is the owner or beneficiary of certain funds, from the competent national authorities.
The future Directive will also provide for penalties for natural persons. These penalties will be applicable to all offences mentioned above, and equally require Member States to apply effective, proportionate, and dissuasive penalties. For the most serious offences, the future Directive will also set a five-year minimum of the maximum term of imprisonment that judges in Member States should be able to impose on natural persons.
In addition, the future Directive will establish common basic standards for penalties for legal persons across the Member States, including: criminal or non-criminal fines of up to 5% of the annual worldwide turnover; exclusion from access to public funding; disqualification from the practice of business activities; withdrawal of permits and authorisations to pursue activities which have resulted in committing the offence; placing under judicial supervision; judicial winding-up; closure of establishments used for committing the offence.