Activities of Saskia BRICMONT related to 2022/0398(COD)
Shadow reports (1)
REPORT 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
Amendments (49)
Amendment 50 #
Proposal for a directive
Recital 4
Recital 4
(4) The effective application of Union restrictive measures calls for common criminal definitions of conduct infringing Union restrictive measures. Member States should ensure that thisese conducts constitutes a criminal offence when committed with intent as well asor with serious negligence, in case the natural or legal person knew or should have known, that their conduct would infringe Union restrictive measures.
Amendment 53 #
Proposal for a directive
Recital 6
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 and accomplices of violations or circumentions 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. Therefore, this conduct is covered by the circumvention offence approximated by this Directive.
Amendment 57 #
Proposal for a directive
Recital 7
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 advisors, 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. TFor 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, or. Information which is obtained by legal professionals in the course of ascertaining the legal position of a client should also be covered by legal privilege, but only to the strict extent that such activities aim at establishing the rights and obligations of clients, in contrast to non-legal advice. 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 have a well-grounded suspicion on the basis factual circumstances that the client is seeking legal advice for the purposes of violating Union restrictive measures. Knowledge can be inferred from objective factual circumstances.
Amendment 61 #
Proposal for a directive
Recital 8
Recital 8
(8) The effective application of Union restrictive measures furthermore calls for a common criminal law definition of conductintentionally breaching conditions under authorisations granted by competent authorities to conduct certain activities, which in the absence of such an authorization are prohibited or restricted under a Union restrictive measure.
Amendment 66 #
Proposal for a directive
Recital 9
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 aid to persons in needssistance or activities that support basic human needs to persons in need by providers of humanitarian services and their employees, grantees, subsidiaries, or implementing partners. Such humanitarian aid must be provided strictly in accordance with international humanitarian law and can notably consist of food and nutrition, shelter, health care, water and sanitation. Furthermore, in implementing this Directive, Member States should take into account that International Humanitarian Law, the law of armed conflict, requires that restrictive measures should not prevent the delivery of humanitarian aidctivities in line with principles of impartiality, humanity, neutrality and independence.
Amendment 68 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9a) It is also appropriate to exclude from criminalisation support provided to independent civil society organizations working for the promotion of human rights, democracy, and the rule of law. Practice shows that due to de-risking of the financial sector, civil society organisations have disproportionately suffered from the restrictive measures.
Amendment 69 #
Proposal for a directive
Recital 9 b (new)
Recital 9 b (new)
(9b) Member States should ensure that compliance with this Directive measures does not result in unduly denying legitimate customers access to financial services, in particular with regard to specific categories of individual customers, such as refugees and asylum seekers, as well as human rights defenders and non-governmental organisations and their representatives and associates. To that end, credit and financial institutions should ensure that their internal policies, controls and procedures are commensurate to the identified risks of violations or circumvention of Union restrictive measures and do not unduly undermine financial inclusion. Access to basic financial products and services allows refugees and people seeking temporary or international protection to participate in the economic and social life of the Union, in line with the right to protection enshrined in Article 18 of the Charter of Fundamental Rights. This Directive provides sufficient flexibility to Member States in defining the measures that financial institutions should undertake to perform the identification and verification of prospective clients who are refugees or seek protection, as well as human rights defenders, non-governmental organisations and their representatives and associates, and to adopt, in line with a risk-based approach, proportionate and effective measures to manage and mitigate risks linked to these clients.
Amendment 70 #
Proposal for a directive
Recital 10
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 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 authorisations to pursue activities which have resulted in committing the offence, disqualification from exercising a leading position within a legal person of the type used for committing the offence, temporary bans on running for elected or public office, national or Union-wide publication of the judicial decision relating to the conviction or any sanctions or measures applied.
Amendment 77 #
Proposal for a directive
Recital 18
Recital 18
(18) To ensure an effective, integrated and coherent enforcement system, Member States should organise internal cooperation and communication between all actors along the administrative and criminal enforcement chains, in full compliance with Member States’ national rules on criminal proceedings, as well as with the Charter of Fundamental Rights of the European Union and with the Member State’s obligations under Article 6 TEU.
Amendment 79 #
Proposal for a directive
Recital 19
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 Commission should establish a permanet 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 and Eurojust, the European Public Prosecutor's Office, and the European Anti-Fraud Office.
Amendment 85 #
Proposal for a directive
Recital 21
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 take into accountcomply with the principles of necessity and proportionality, and the nature and seriousness of the offences under investigation as well as respecting the right to the protection of personal data.
Amendment 100 #
Proposal for a directive
Article 2 – paragraph 2 – point e
Article 2 – paragraph 2 – point e
(e) ‘freezing of funds’ means preventing any move, transfer, alteration, use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or any other change that would enable the funds to be used, including, but not limited to, portfolio management;
Amendment 102 #
Proposal for a directive
Article 2 – paragraph 2 – point f a (new)
Article 2 – paragraph 2 – point f a (new)
(fa) ‘public official’ means: (i) a Union official or a national official of a Member State or of a third country; (ii) any other person assigned and exercising a public service function in Member States or third countries, for an international organisation or for an international court.
Amendment 103 #
Proposal for a directive
Article 2 – paragraph 2 – point f b (new)
Article 2 – paragraph 2 – point f b (new)
(fb) 'Union official’ means a person who is: (i) a member of an institution, body, office or agency of the Union and the staff of such bodies shall be assimilated to Union official; (ii) an official or other servant engaged under contract by the Union within the meaning of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 (the ‘Staff Regulations’); (iii) seconded to the Union by a Member State or by any public or private body, who carries out functions equivalent to those performed by Union officials or other servants.
Amendment 115 #
Proposal for a directive
Article 3 – paragraph 2 – point b
Article 3 – paragraph 2 – point b
(b) failing to freeze without undue delayin an adequate timing funds or economic resources belonging to or owned, held or controlled by a designated person, entity or body in violation of an obligation to do so imposed by a Union restrictive measure;
Amendment 119 #
Proposal for a directive
Article 3 – paragraph 2 – point c a (new)
Article 3 – paragraph 2 – point c a (new)
(ca) enabling the stay in the territory of a Member State of a designated natural persons, including by granting citizenship by investments or residence by investments schemes, in violation of a prohibition by a Union restrictive measure;
Amendment 121 #
Proposal for a directive
Article 3 – paragraph 2 – point d
Article 3 – paragraph 2 – point d
(d) entering into transactionsfinancial 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;
Amendment 128 #
Proposal for a directive
Article 3 – paragraph 2 – point h – point i
Article 3 – paragraph 2 – point h – point i
(i) concealing 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, by the transfer of those funds, or economic resources to a third party;
Amendment 136 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
(3) The conduct referred to in paragraph 2, points (a) to (g) shall constitute a criminal offence also if committed with serious negligence. The conduct referred to in paragraph 2, points (i) shall not constitute a criminal offence if committed with negligence.
Amendment 141 #
Proposal for a directive
Article 3 – paragraph 5
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 strict connection withwhen performing the task of defending or representing a client in, or concerning judicial, administrative or arbitral proceedings, whether before, during or after judicial proceedings, or in the course of ascertaining the legal position of a client. Legal advice in those circumstances shall be protected by professional secrecy, except where the legal professional is taking part in the violation of Union restrictive measures, the legal advice is provided for the purposes of violating Union restrictive measures, or the legal professional knows or has a well- grounded suspicion on the basis of factual circumstances that the client is seeking legal advice for the purposes of violating Union restrictive measures.
Amendment 146 #
Proposal for a directive
Article 3 – paragraph 6 – indent 3
Article 3 – paragraph 6 – indent 3
– to humanitarian aidssistance and activities that support basic human needs provided for persons in need. ;
Amendment 149 #
Proposal for a directive
Article 3 – paragraph 6 – indent 3 a (new)
Article 3 – paragraph 6 – indent 3 a (new)
- the failure to report such activities;
Amendment 150 #
Proposal for a directive
Article 3 – paragraph 6 – indent 3 b (new)
Article 3 – paragraph 6 – indent 3 b (new)
- the provision of grants and subsidies to civil society organizations defending human rights, democracy, and the rule of law;
Amendment 151 #
Proposal for a directive
Article 3 – paragraph 6 – indent 3 c (new)
Article 3 – paragraph 6 – indent 3 c (new)
- the failure to report such activities.
Amendment 170 #
Proposal for a directive
Article 5 – paragraph 5
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 fines, withdrawal of permits and authorisations to pursue activities which have resulted in committing the offence, disqualification from exercising a leading position within a legal person of the type used for committing the offence, temporary bans on running for elected or public office, national or Union-wide publication of the judicial decision relating to the conviction or any sanctions or measures applied.
Amendment 177 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
(3) Liability of legal persons under paragraphs 1 and 2 of this Article shall not exclude the liability of the persons referred to in paragraph 1 where the offence is attributable to the lack of supervision or control by such persons, nor it shall exclude the possibility of criminal proceedings against natural persons who are perpetrators, inciters or accessories in the offences referred to in Articles 3 and 4.
Amendment 182 #
Proposal for a directive
Article 7 – paragraph 1 – point a
Article 7 – paragraph 1 – point a
(a) temporaty or permanent disqualification from the practice of business activities;
Amendment 184 #
Proposal for a directive
Article 7 – paragraph 1 – point e a (new)
Article 7 – paragraph 1 – point e a (new)
Amendment 185 #
Proposal for a directive
Article 7 – paragraph 1 – point e b (new)
Article 7 – paragraph 1 – point e b (new)
(eb) national or Union-wide publication of the judicial decision relating to the conviction or any sanctions or measures applied, including by referring them to relevant Union institutions.
Amendment 189 #
(-a) the offence was committed in violation of a restrictive measure imposed in relation to crimes falling under the jurisdiction of the International Criminal Court;
Amendment 190 #
Proposal for a directive
Article 8 – paragraph 1 – point -a a (new)
Article 8 – paragraph 1 – point -a a (new)
(-aa) the offence was committed in violation of a restrictive measure imposed in relation to violations of human rights;
Amendment 191 #
Proposal for a directive
Article 8 – paragraph 1 – point -a b (new)
Article 8 – paragraph 1 – point -a b (new)
(-ab) the offence was committed in violation of a restrictive measure imposed in relation to serious acts of corruption;
Amendment 199 #
Proposal for a directive
Article 8 – paragraph 1 – point d a (new)
Article 8 – paragraph 1 – point d a (new)
(da) in case of legal entities, the offence was committed by a person having a leading position within the legal person.
Amendment 203 #
Proposal for a directive
Article 9 – paragraph 1 – point b a (new)
Article 9 – paragraph 1 – point b a (new)
(ba) the offender reports self-disclosure of an offence, before this is detented by the competent authorities.
Amendment 205 #
Proposal for a directive
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
Member States shall take the necessary measures to ensure that, in the assessment of the mitigating circumstance, competent authorities take into account the nature, timing, and extent of the information provided by the offender and the level of cooperation provided by the person in question.
Amendment 209 #
Proposal for a directive
Article 10 – paragraph 1 a (new)
Article 10 – paragraph 1 a (new)
Amendment 220 #
Proposal for a directive
Article 12 – paragraph 4 – point b
Article 12 – paragraph 4 – point b
(b) a penalty of imprisonment in the case of a criminal offence which is punishable by a maximum penalty of at least fourive years of imprisonment,
Amendment 223 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
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. The establishment of coordination and cooperation mechanisms at strategic and operational levels shall be without prejudice to Member States’ national rules on criminal proceedings, as well as with the Charter of Fundamental Rights of the European Union and with the Member State’s obligations under Article 6 TEU.
Amendment 227 #
Proposal for a directive
Article 13 – paragraph 2 – point a a (new)
Article 13 – paragraph 2 – point a a (new)
(aa) establishing a governance framework to achieve the strategic objectives and priorities, including the identification of clear cooperation mechanisms between authorities reponsible for the enforcement of Union restrictive measures, law enforcement and judicial authorities, asset recovery offices and asset management offices, and financial intelligence units (FIUs);
Amendment 231 #
Proposal for a directive
Article 13 – paragraph 2 a (new)
Article 13 – paragraph 2 a (new)
Amendment 232 #
Proposal for a directive
Article 15 – paragraph 1
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, in compliance with national procedural rules on criminal proceedings, as well as with the Charter of Fundamental Rights of the European Union and with the Member State’s obligations under Article 6 TEU.
Amendment 234 #
Proposal for a directive
Article 16 – title
Article 16 – title
Cooperation between Member States’ authorities, the Commission, Europol, Eurojust and, the European Public Prosecutor's Office and the European Anti-Fraud Office
Amendment 235 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
(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, the European Anti-Fraud 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 shall establish a permanent network of experts and practitioners to share best practices and provide technical and operational assistancesupport in order to facilitate the coordination of investigations and prosecutions by the competent authorities, Europol and Eurojust, the European Public Prosecutor's Office, and the European Anti-Fraud Office, in compliance with Union law. The network shall also provide a publicly available and regularly updated mapping of risks of violations or circumvention of Union restrictive measures in specific geographic areas, and with respect to specific sectors and activities.
Amendment 238 #
Proposal for a directive
Article 16 – paragraph 1 a (new)
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.
Amendment 243 #
Proposal for a directive
Article 16 a (new)
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 European Public Prosecutor's Office, and the Commission shall, within their respective competences and in the limits of their respective remit, cooperate with competent authorities of third countries in the fight against the criminal offences referred to in Articles 3 and 4, in full respect of fundamental rights and international law.
Amendment 246 #
Proposal for a directive
Article 17 a (new)
Article 17 a (new)
Amendment 247 #
Proposal for a directive
Article 17 b (new)
Article 17 b (new)
Article17b Legal remedies 1. Member States shall ensure that the persons affected by the measures provided for under this Directive have the right to defence, to an effective remedy, and to a fair trial in order to uphold their rights. 2. Member States shall provide for the effective possibility for the person affected to challenge charges brought against pursuant to this Directive before a court, in accordance with procedures provided for in national law. Where the decision to prosecute has been taken by a competent authority other than a judicial authority, national law shall provide that such an order is first to be submitted for validation or review, in a reasonable delay, to a judicial authority before it can be challenged before a court. 3. Where the suspected or accused person has absconded, Member States shall take all reasonable steps to ensure an effective possibility to exercise the right to legal remedies and shall require that the person concerned be summoned to the proceedings or that reasonable efforts be made to make the person aware of such proceedings.
Amendment 255 #
Proposal for a directive
Article 19 – paragraph 2 – point b a (new)
Article 19 – paragraph 2 – point b a (new)
(ba) 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.
Amendment 257 #
Proposal for a directive
Article 19 – paragraph 3 a (new)
Article 19 – paragraph 3 a (new)
(3a) Within 12 months of the entry into force of the Directive the Commission shall draw up a report on measures for further strengthening cooperation between the Member States and the Commission and other Union institutions, bodies, offices and agencies. This shall include an assessment of the possibility and modalities of the extension of competences of the EPPO to include the criminal offences listed under Article 3, paragraph 2, points (a) to (g).