Activities of Leopoldo LÓPEZ GIL 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 (48)
Amendment 41 #
Proposal for a directive
Recital 1
Recital 1
(1) In order to ensure the effective application of Union restrictive measures, the integrity of the internal market within the Union, and to achieve a high level of security within the Area of Freedom, Security and Justice, it is necessary to establish common minimum rules concerning the definition of criminal offences and penalties with regard to the violation of those Union restrictive measures.
Amendment 44 #
Proposal for a directive
Recital 3
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 the violation ofnatural 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.
Amendment 47 #
Proposal for a directive
Recital 4
Recital 4
(4) The effective application of Union restrictive measures calls for common criminal definitions of conduct violating and infringing Union restrictive measures. Member States should ensure that this conduct constitutes a criminal offence when committed with intent as well as with serious negligencepremeditation, intent, malice, negligence or serious recklessness, in case the natural or legal person knew or should have known, that their conduct would infringe Uunion restrictive measures.
Amendment 54 #
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, instrumental collaborators and/or accomplices. 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 58 #
Proposal for a directive
Recital 7
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, orthe legal professional has sufficient grounds to believe that the provided legal advice may be being wilfully used to circumvent Union restrictive measures, or where 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.
Amendment 71 #
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. Other accompanying measures could include the disqualification of those who violate or circumvent Union restrictive measures from practising the profession concerned.
Amendment 73 #
Proposal for a directive
Recital 12
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 factsconditions 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 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.
Amendment 75 #
Proposal for a directive
Recital 16
Recital 16
(16) Given, in particular, the global and organised activities of the perpetrators of illegal conduct covered by this Directive, together with the cross-bordertransnational 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.
Amendment 76 #
Proposal for a directive
Recital 17
Recital 17
(17) Member States should lay down rules concerning limitation periods necessary to enable them to countermbat offences related to the violation of Union restrictive measures effectively, without prejudice to national rules that do not set limitation periods for investigation, prosecution and enforcement.
Amendment 78 #
Proposal for a directive
Recital 18
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.
Amendment 81 #
Proposal for a directive
Recital 19 a (new)
Recital 19 a (new)
(19a) In order to optimise criminal prosecution and the effective application of sanctions for any violation or circumvention of Union restrictive measures, it is necessary to extend the European Public Prosecutor’s Office's current competences, including the criminal offences covered by this Directive. Furthermore, all EU Member States should participate in this institution to make it more efficient.
Amendment 82 #
Proposal for a directive
Recital 20
Recital 20
(20) Whistleblowers can provide 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 facts concerning violations of Union restrictive measures, their circumstances and, 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. Furthermore, the provisions of the previous Directive on false reports will be taken into account. _________________ 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. 17–56).
Amendment 91 #
Proposal for a directive
Article 1 – paragraph 1
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.
Amendment 92 #
Proposal for a directive
Article 2 – paragraph 1 – point -a (new)
Article 2 – paragraph 1 – point -a (new)
(-a) Individual measures
Amendment 96 #
Proposal for a directive
Article 2 – paragraph 1 – point c a (new)
Article 2 – paragraph 1 – point c a (new)
(ca) Sectorial measures
Amendment 98 #
Proposal for a directive
Article 2 – paragraph 2 – point c – point viii
Article 2 – paragraph 2 – point c – point viii
(viii) crypto assets, such as cryptocurrencies or tokens (fungible or non-fungible);
Amendment 104 #
Proposal for a directive
Article 3 – title
Article 3 – title
Violation and circumvention of Union restrictive measures
Amendment 107 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
(1) Member States shall take the necessary measures to ensure that the violation of a Union restrictive measure constitutes a criminal offence when committed intentionally or in a premeditated or malicious manner and provided it falls in one of the categories defined in paragraph 2.
Amendment 108 #
Proposal for a directive
Article 3 – paragraph 2 – point -a (new)
Article 3 – paragraph 2 – point -a (new)
(-a) At the individual level
Amendment 111 #
Proposal for a directive
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) making funds or economic resources directly or indirectly available to, or for the benefit of, a designated person, entity or body in violation of a prohibition by a Union restrictive measure;
Amendment 114 #
Proposal for a directive
Article 3 – paragraph 2 – point b
Article 3 – paragraph 2 – point b
(b) failing to freeze without undue delay 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;Does not affect the English version.)
Amendment 117 #
Proposal for a directive
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) enabling the entry of designated natural persons into the territory of a Member State - including maritime, air and/or land territory- or their transit through the territory of a Member State in violation of a prohibition by a Union restrictive measure, this paragraph covers international areas situated in the territory of a Member State, for example ports or airports, among others;
Amendment 120 #
Proposal for a directive
Article 3 – paragraph 2 – point c a (new)
Article 3 – paragraph 2 – point c a (new)
(ca) At the sectorial level
Amendment 123 #
Proposal for a directive
Article 3 – paragraph 2 – point e
Article 3 – paragraph 2 – point e
(e) trading in goods, technology or services whose import, export, sale, purchase, transfer, transit or transport is prohibited or restricted by Union restrictive measures, as well as providing brokering services or other services relating to those goods and services;
Amendment 125 #
Proposal for a directive
Article 3 – paragraph 2 – point h – introductory part
Article 3 – paragraph 2 – point h – introductory part
(h) For the purposes of this Directive, the following shall be regarded as circumventing a Union restrictive measure by:
Amendment 127 #
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 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 or change of ownership of those funds, or economic resources to a third party, enabling the addressees of the Union restrictive measures to continue making use of them;
Amendment 137 #
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 recklessness or negligence.
Amendment 140 #
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 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, orthe legal professional has sufficient grounds to believe that the provided legal advice may be being wilfully used to circumvent Union restrictive measures or where the legal professional knows that the client is seeking legal advice for the purposes of violating Union restrictive measures.
Amendment 158 #
Proposal for a directive
Article 4 – title
Article 4 – title
Inciting, cooperating, aiding and abetting, and attempt
Amendment 159 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
(1) Member States shall take the necessary measures to ensure that inciting, instrumentally cooperating in and aiding and abetting the offences referred to in Article 3 is punishable as a criminal offence.
Amendment 165 #
Proposal for a directive
Article 5 – paragraph 3
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) and (v), are punishable by a maximum penalty of at least onthree 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 (h)(iii), (iv) and (v), when committed by the same offender.
Amendment 171 #
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 that shall be imposed to the discretion of each Member State, depending on the different types set out in its legislation, and the temporary or permanent disqualification from practising the activity or profession that enabled the criminal offence to occur.
Amendment 181 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
(1) Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 76 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:
Amendment 186 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
(2) Member States shall take the necessary measures to ensure that for legal persons held liable pursuant to Article 76 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.
Amendment 188 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
(3) Member States shall take the necessary measures to ensure that for legal persons held liable pursuant to Article 76 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.
Amendment 197 #
Proposal for a directive
Article 8 – paragraph 1 – point d a (new)
Article 8 – paragraph 1 – point d a (new)
(da) the offence was committed by a member of the government administration of a Member State, i.e. the Prime Minister, President, Ministers, senior public officials or any person directly or indirectly in their chain of command.
Amendment 200 #
Proposal for a directive
Article 8 – paragraph 1 – point d b (new)
Article 8 – paragraph 1 – point d b (new)
(db) the offence was committed for personal gain by a professional of the categories mentioned in paragraphs b, c, d and e;
Amendment 201 #
Proposal for a directive
Article 8 – paragraph 1 – point d c (new)
Article 8 – paragraph 1 – point d c (new)
(dc) the natural or legal person has previously committed offences under Articles 3 and 4, i.e. the person is a repeat offender.
Amendment 211 #
Proposal for a directive
Article 11 – title
Article 11 – title
Jurisdiction and competence rules
Amendment 212 #
Proposal for a directive
Article 11 – paragraph 1 – point a
Article 11 – paragraph 1 – point a
(a) the criminal offence was committed in whole or in part within its territory, including its air and maritime space;
Amendment 214 #
Proposal for a directive
Article 11 – paragraph 1 – point e
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;
Amendment 215 #
Proposal for a directive
Article 11 – paragraph 1 – point f
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.
Amendment 217 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
(2) Member States shall take the necessary measures to enable the investigation, prosecution, trial and judicial decision of criminal offences referred to in Articles 3 and 4 which are punishable by a maximum penalty of at least five years of imprisonment, or the offender's disqualification, for a period of at least five years from the time when the offence was committed.
Amendment 221 #
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 241 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
(2) Member States’ competent authorities shall also frequently and regularly share information on practical issues, in particular, patterns of circumvention, e.g. structures to conceal the beneficial ownership and control of assets, with the Commission and other competent authorities.
Amendment 244 #
Proposal for a directive
Article 17 – title
Article 17 – title
Amendments to Directive (EU) 2018/ 1673 on countering money laundering by criminal law
Amendment 254 #
Proposal for a directive
Article 19 – paragraph 2 – introductory part
Article 19 – paragraph 2 – introductory part
(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 Commissiono the Commission and make public in accordance with the transparency principle, the following statistics on the criminal offences referred to in Articles 3 and 4, and they shall also ensure that any interested EU citizens can access this information easily:
Amendment 256 #
Proposal for a directive
Article 19 – paragraph 2 – point b a (new)
Article 19 – paragraph 2 – point b a (new)
(ba) the value of funds and economic resources that have been frozen and the value of funds and economic resources that have been seized.