The European Council published on November, 11th, 2008, Framework Decision 2008/841/JHA, adopted on October, 24th, 2008, on the fight against organised crime. This Decision follows Commission's Communication of March, 2004 about the measures to be taken on the fight against terrorism and other forms of serious crimes.

In this Communication the Commission considered that the facilities available for combating organised crime in the EU needed to be strengthened and stated that it would draw up a Framework Decision to replace Joint Action 98/733/JHA of December, 21st, 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union.

Closer cooperation between the Member States of the European Union is needed in order to counter the dangers and proliferation of criminal organisations and to respond effectively to citizens’ expectations and Member States’ own requirements. Following this general idea, and taking into account the objectives pursued by the Hague Programme, the approximation of substantive criminal law serves the purpose of facilitating mutual recognition of judgements and judicial decisions as well as police and judicial cooperation in criminal matters. This closer cooperation also concerns areas of particularly serious crime with cross-border dimensions, therefore prioritizing areas of crime that are specifically mentioned in the Treaties.

Thus, this Framework Decision encompasses crimes which are typically committed in a criminal organisation and provides, moreover, for the imposition of penalties corresponding to the seriousness of those offences, on natural and legal persons who committed them or are responsible for their commission.

According to the Decision provisions, each Member State shall take the necessary measures to ensure that one or both of the following types of conduct related to a criminal organisation are regarded as offences:

• Conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organisation or its intention to commit the offences in question, actively takes part in the organisation’s criminal activities, including the provision of information or material means, the recruitment of new members and all forms of financing of its activities, knowing that such participation will contribute to the achievement of the organisation’s criminal activities.
• Conduct by any person consisting in an agreement with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences described in the Decision, even if that person does not take part in the actual execution of the activity.

In relation to the penalties, each Member State will take the necessary measures to ensure those participating actively in the organisation of criminal activities are punished by a maximum term of imprisonment of at least between two and five years, and in the case of those agreeing with other persons for the commitment of such conducts will be punished by the same maximum term of imprisonment as the offence at which the agreement is aimed, or by a maximum term of imprisonment of at least between two and five years.

Each Member State is entitled to take the necessary measures to ensure that the penalties may be reduced or that the offender may be exempted from penalties in certain specific cases.

Furthermore, Member States will have to ensure that investigations into, or prosecution of, such offences are not dependent on a report or accusation made by a person subjected to the offence, at least as regards acts committed in the territory of the Member State.

Member States will have to ensure the compliance with this Decision provisions by May, 11th, 2010, given that the Decision entered into force the same day of its publication, i.e. November, 11th, 2008.