Changes between two versions
What changed between the draft committee report and the plenary report
From · draft committee report· 3 May 2023
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
To · plenary report· 7 Jul 2023
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
Changes to the text itself, in document order. Cover page, citations and punctuation-only edits are left out; they are under “Every difference”.
The changes · 23
Change 1
Changed:Recital 4:1: (4)(1) TheIn order to ensure the effective application of Union restrictive measuresmeasures, callsthe forintegrity commonof criminalthe definitionsinternal ofmarket conductwithin infringingthe UnionUnion, restrictiveand measures.to Memberachieve Statesa shouldhigh ensurelevel thatof thissecurity conductwithin constitutesthe aArea criminalof offenceFreedom, whenSecurity committedand withJustice, intentit asis wellnecessary asto withestablish negligence,common inminimum caserules theconcerning naturalthe ordefinition legalof personcriminal knewoffences orand shouldpenalties havewith known,regard thatto theirthe conductviolation wouldof infringethose Union restrictive measures.
Change 2
Removed:Recital 7: (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.
Added:Recital 3: (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.
Added:Recital 4: (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.
Added:Recital 6: (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.
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Added:Recital 6 a (new): (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.
Added:Recital 6 b (new): (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.
Added:Recital 7: (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 fo…
Added:Recital 8: (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.
Added:Recital 8 a (new): (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.
Added:Recital 8 b (new): (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.
Added:Recital 9: (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 Humanitaria…
Added:Recital 10: (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.
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Changed:Recital 12: (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 factscircumstances 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.
Change 4
Removed:Recital 19: (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.
Added:Recital 16: (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.
Added:Recital 18: (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.
Added:Recital 19: (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.
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Added:Recital 19 a (new): (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.
Added:Recital 20: (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).
Added:Recital 21: (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.
Added:Recital 23: (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.
Added:Recital 24: (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.
Added:Article 1 – paragraph 1: This Directive establishes common minimum rules concerning the definition of criminal offences and penalties with regard to the violation of Union restrictive measures.
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Removed:Separate articles for scope and definitions
Added:Article 2 – paragraph 2: deleted / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted)
Removed:Article 2 a (new): Article 2a / Definitions
Added:Article 2 a (new): 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 fun…
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Removed:Separate articles for scope and definitions
Added:(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.)
Removed:Article 3 – paragraph 2 – point h – point i: (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;
Added:Article 3 – title: Violation and circumvention of Union restrictive measures
Added:Article 3 – paragraph 1: (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.
Added:Article 3 – paragraph 2 – point a: (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;
Added:Article 3 – paragraph 2 – point c: (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;
Added:Article 3 – paragraph 2 – point c a (new): (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;
Added:Article 3 – paragraph 2 – point d: (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;
Added:Article 3 – paragraph 2 – point e: (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;
Added:Article 3 – paragraph 2 – point h – point i: (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;
Added:Article 3 – paragraph 2 – point h – point ii: (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;
Added:Article 3 – paragraph 2 – point h – point v a (new): (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;
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Changed:Article 3 – paragraph 5: (5) Nothing in paragraph 2 shall be understood as imposing an obligation on legal professionals to report information which is obtained in strictthe connectionperformance withof 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 reasonsa towell-grounded believethatsuspicion on the basis of factual circumstances that the client is seeking legal advice for the purposes of violating or circumventing Union restrictive measures.
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Removed:Article 5 – paragraph 3: (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.
Added:Article 3 – paragraph 6 – indent 2: deleted
Removed:Article 5 – paragraph 4: deleted
Added:Article 3 – paragraph 6 – indent 3: – 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;
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Removed:Article 5 – paragraph 5: (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.
Added:Article 3 – paragraph 6 – indent 3 a (new): - the failure to report the activities referred in this paragraph.
Added:Article 4 – paragraph 2: (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.
Added:Article 5 – paragraph 3: (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.
Added:Article 5 – paragraph 4: (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.
Added:Article 5 – paragraph 5: (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) national or Union-wide publication of the judicial decision relating to the conviction or any sanctions or measures applied.
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Removed:Article 7 – paragraph 2: (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.
Added:Article 7 – paragraph 1 – point a: (a) temporary or permanent disqualification from the practice of business activities;
Removed:Article 7 – paragraph 3: deleted
Added:Article 7 – paragraph 1 – point e a (new): (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.
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Added:Article 7 – paragraph 2: (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.
Added:Article 7 – paragraph 3: (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.
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Removed:Article 8 – paragraph 1 – point a a (new): (aa) the offence involved the use of false or forged documents;
Added:Article 8 – paragraph 1 – point -a (new): (-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;
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Changed:Article 8 – paragraph 1 – point b:a (b)a (new): (aa) the offence wasinvolves committedthe byexport aof professionalmilitary servicetechnology provideror inequipment violationas ofdefined thatin provider’sCouncil professionalCommon obligations;Position 2008/944/CFSP;
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Added:Article 8 – paragraph 1 – point a b (new): (ab) the offence involved serious acts of corruption or the use of false or forged documents;
Added:Article 8 – paragraph 1 – point c: (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;
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Changed:Article 8 – paragraph 1 – point d bc (new): (db)(dc) the offender does not provide assistance to inspection and other enforcement authorities when legally required;
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Changed:Article 8 – paragraph 1 – point d d (new): (dd) in the case of legal entities,persons, the offence was committed by senior management, or the senior management levela shouldperson reasonablyhaving havea beenleading awareposition ofwithin the offencelegal committed.person concerned;
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Added:Article 8 – paragraph 1 – point d e (new): (de) the natural or legal person has previously committed offences covered by Articles 3 and 4.
Added:Article 9 – paragraph 1 – introductory part: 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:
Added:Article 9 – paragraph 1 – point b a (new): (ba) the offender reports the offence to the competent authorities, before the offence is detected by the competent authorities.
Added:Article 9 – paragraph 1 a (new): 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.
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Added:Article 10 – paragraph 1: 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].
Added:Article 10 – paragraph 1 a (new): 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).
Added:Article 10 – paragraph 1 b (new): 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].
Added:Article 11 – paragraph 1 – point a: (a) the criminal offence was committed in whole or in part within its territory, including its airspace and territorial sea;
Added:Article 11 – paragraph 1 – point e: (e) the offence is committed for the benefit of a natural or legal person which is established on its territory;
Added:Article 11 – paragraph 1 – point f: (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.
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Changed:Article 13 – paragraph 1: 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:
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Changed:Article 13 – paragraph 2 – introductory part: 2. The dedicated unitsbody referred to in paragraphthe 1first subparagraph shall have the following tasks:
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Changed:Article 13 – paragraph 2 – point b: (b) to exchange of information for strategic and operational purposes;
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Changed:Article 13 – paragraph 2 – point c: (c) to be consultedconsult in individual investigations;
Change 19
Changed:Article 13 – paragraph 2 – point e: (e) to assist to networks of practitioners working on matters relevant to investigating and prosecuting offences related to the violation of Union restrictive measures.
Change 20
Changed:Article 13 – paragraph 21 a (new): 2a.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.measures, and that specialised training is provided to the competent administrative, law enforcement and judicial authorities involved in such tasks.
Change 21
Removed:Article 16 – paragraph 1: (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.
Added:Article 15 – paragraph 1: 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.
Removed:Article 16 – paragraph 1 a (new): (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.
Added:Article 16 – title: Cooperation between Member States’ authorities, the Commission, Europol, Eurojust, the European Public Prosecutor's Office and the European Anti-Fraud Office
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Removed:Article 18 a (new): 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…
Added:Article 16 – paragraph 1: (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.
Removed:Article 18 b (new): 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…
Added:Article 16 – paragraph 2: (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.
Added:Article 16 a (new): 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.
Added:Article 17 – title: Amendments to Directive (EU) 2018/ 1673 on combating money laundering by criminal law
Added:Article 18 a (new): Article18a / 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, 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; / (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 number of criminal proceedings referred to the EPPO; / (g) the average length of criminal proceedings; / (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) the value of the funds and economic resources frozen; / (j) the value of the funds and economic resources confiscated. / The statistics to be submitted shall also include the types and levels of penalties and sanctions imposed for violation of Union restrictive measures. / 3. T…
Added:Article 18 b (new): Article18b / 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 Europ…
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Removed:Covered in separate article about statistics
Added:Article 19 – paragraph 2 a (new): (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.
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Changed:Article 19 – paragraph 4: (4) By [OP-please... insert[66 months from the date-fivedate yearsof afterentry theinto transpositionforce periodof isthis over],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.