Policy analysis

• Author: Directorate-General for Internal Policies of the Union (European Parliament)
• Pages: 17-36

Organised Property Crime in the EU

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2.1. Legal and policy framework regarding Organised Crime

2.1.1. The legal framework definition of criminal organisation

A structured association, established over a period of time, of more than two persons acting in concert with

a view to committing offences which are punishable by deprivation of liberty or a detention order of a

maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other

material benefit (Council of the European Union, 2008, p. 2).

It also gave to MS the option to criminalise participation in criminal organisations or conspiracy to

The Commission, before the approval of the Framework Decision, made a statement declaring that

(European Commission, 2016a, p. 2):

The Framework Decision failed to achieve the goals set by the Joint Action 98/733/JHA and by the United

Nations Convention A

minimum degree of approximation of acts of directing or participating in a criminal organisation on the

basis of a single concept of such an organisation, as proposed by the Commission and as already adopted

in Framework Decision 2002/475/JHA on the fight against terrorism. Furthermore, the Framework Decision

enables Member States not to introduce the concept of criminal organisation but to continue to apply

existing national criminal law by having recourse to general rules on participation in and preparation of

specific offences

The European Parliament, in its Resolution on organised crime in the European Union (European

Parliament, 2011, p. 8):

 Stated that the framework decision 2008/841/JHA has had an extremely limited impact on the

legislative systems of the Ms, not making any significant improvement to national laws or to

operational cooperation to counter organised crime.

 Required the Commission to draft a study on the abolition of the current dual approach,

criminalizing both membership and conspiracy, and on the identification of typical offences

inside Ms systems that could be deemed to constitute such a criminal offence

2.1.2. The Council framework decision in MS

With reference to the adoption of the Council framework by MS the following issues can be highlighted

(European Commission, 2015, p. V):

 All MS (with the exclusion of Denmark and Sweden) have transposed the key elements of the

Framework Decision and introduced a self-standing offence of participation in a criminal

organisation and/or conspiracy to commit offences. However, the majority of MS only have the

the offence of

 The Framework Decision shows deep differences compared to the original proposal by the

Commission. The most important provisions are not mandatory. During the implementation

of the Framework Decision, MS made the most important obligations optional (e.g. offences

IPOL | Affairs

18 PE 656.042

in relation to participation in a criminal organisation Article 2) or vague (e.g. definitions

Article 1).

 Motivations for creating organised crime legislation do not derive from the desire to be

compliant with the European law but are mainly driven by national needs.

 Before the implementation of the Framework Decision, most MS were already compliant with

the minimum standards it required. In some cases, MS national law exceeds the minimum

standards set out in the Framework Decision.

 The Framework Decision should not be seen as an isolated tool but should be implemented

inside a coherent national framework composed of many other measures against Organised

Crime.

 The transposition of the Framework Decision may have been too broad in some cases, leading

to an effect of overcriminalisation. Legislation aimed at serious Organised Crime could be

turned to target activities that were not sufficiently serious or not of a cross-border nature.

 National legislation relating to participation in a criminal organisation may not be used in

practice. This may be due to both legal and non-legal issues. Legal issues include difficulties

to comply with the standard of proof and to prove all the necessary elements of the offence.

Non-legal issues include the fact that practitioners prefer conspiracy over participation and

would rather use participation in a criminal organisation as an aggravating factor on which to

build a case.

 More than legislation, practical solutions such as the exchange of information and the

establishment of coordinating agencies, would facilitate the cross-border tackling of Organised

Crime.

2.1.3. The European action against Organised Crime The policy framework

a. The European security strategy

In 2010, the Internal Security Strategy for the European Union (Council of the European Union, 2010b,

p. 12):

1. Established the common threats and challenges for the security of the EU.

2. Defined a European security model, highlighting the following priorities:

 A mutually reinforced relationship between security, freedom, privacy.

 Cooperation and solidarity between MS.



 Focus on the roots, and not just the effects, of social insecurity.

 Need for enhancing prevention and anticipation.

 Awareness of the interdependence between internal and external security.

The European agenda on security adopted in 2016 (Council of the European Union, 2015, pp. 3-5)

reinforced all these principles recalling in particular the following priorities:

1. Full compliance with fundamental rights.

2. The need for: