A new EU legal framework on confiscation
The new Commission
proposal for a Directive
on confiscation
Sebastiano Tiné
European Commission
DG Home Affairs
6th ARO Platform meeting Brussels, 23 April 2012
4/13/2015
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Introduction – key features of EU
legislation on confiscation
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The existing EU legal framework only applies to
criminal proceedings and the issuance of
confiscation orders generally requires a criminal
conviction.
Some Member States and third countries apply
also non-conviction based (NCB) procedures,
which have proven to be very effective in
targeting criminal assets. There are no binding
rules on NCB confiscation at EU level.
There are no binding provisions at EU level on
confiscating assets transferred to third parties.
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The EU legislative framework
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Five EU instruments aim at ensuring a
common approach to confiscation:
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Framework Decision 2001/500/JHA on money
laundering, asset freezing and confiscation;
Framework Decision 2003/577/JHA on the mutual
recognition of freezing orders
Framework Decision 2005/212/JHA on extended
confiscation
Framework Decision 2006/783/JHA on the mutual
recognition of confiscation orders
Council Decision 2007/845/JHA on Asset Recovery
Offices
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Framework Decision on Extended
Confiscation (2005)
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Obligation to enable confiscation for offences providing
deprivation of liberty for more than 1 year
Aims at providing extended confiscation powers
Minimum rules allowing confiscation for serious crimes
(organised crime and terrorism) if offence generated
financial gain
Provides alternative criteria for extended confiscation
(property derived from criminal activities; from similar
criminal activities; value of property disproportionate
to lawful income)
Optional provisions on third party confiscation and
non-conviction based confiscation
Commission issued implementation report December
2007 highlighting shortcomings in implementation
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Context of the proposal
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Organised crime is profit-driven and creates
enormous illegal wealth every year.
Estimates on the size of criminal profits in
some Member States are very high (eg € 150
billion in Italy in 2011).
Criminal groups operate across the borders
and increasingly acquire and hide assets in
other Member States.
Compared to the estimated profits made from
organised crime, the amounts confiscated in
EU Member States remain modest.
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Rationale for the proposal
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Extensive impact assessment study
conducted in 2010-2011
Conclusion: Today's tools for freezing,
managing and confiscating criminal assets are
not effective enough.
The current EU legal framework on
confiscation and asset recovery is inadequate
and still incompletely implemented.
It has a narrower scope than the legislation in
force in several Member States. More
harmonisation is needed.
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Policy context of the proposal
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Based on the Commission Communication on
the proceeds of organised crime (2008)
In line with the Stockholm Programme (2009)
Responds to JHA Council Conclusions (June
2010) calling on the Commission to consider
strengthening the EU legal framework.
Announced in Commission Communication on a
EU Internal Security Strategy (November 2010)
Responds to the European Parliament Report
on organised crime (2011), urging the
Commission to propose new legislation.
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Objectives of the Commission proposal
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Facilitate the confiscation of the proceeds of crime
In particular the Directive aims at:
 attacking the financial incentive which drives
most organised crime
 protecting the EU licit economy against
infiltration by criminal groups
 returning criminal assets to governments and
citizens.
It draws on international Conventions and best
practice recommendations.
It aims at simplifying existing rules and filling gaps
which have benefited criminals until now.
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Scope (Art.2)
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Under the Lisbon Treaty substantive criminal
law provisions at EU level can be adopted
only for specific offences («the Eurocrimes»)
No longer possible to have EU provisions on
confiscation which apply to all crimes
The new Directive applies to specific serious
offences already harmonised at EU level (eg
drug trafficking, trafficking of human beings,
sexual exploitation of children, money
laundering, corruption, organised crime,
cybercrime)
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Extended confiscation (Art. 4)
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Clearer and more efficient rules to confiscate assets
not directly linked to a specific crime
Scope is now widened to all Eurocrimes harmonised at
EU level
Only one minimum criterion for extended confiscation
(“similar criminal activities by the convicted person”)
instead of the previous three alternative/cumulative
criteria
Less stringent burden of proof (from «court fully
convinced» to «substantially more probable»)
Cases of exclusion of extended confiscation (previous
acquittal, « ne bis in idem », prescription)
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Non-conviction based confiscation (Art. 5)
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Possible in limited cases where a
criminal conviction is not possible
because the suspect is dead,
permanently ill or is a fugitive
Requires evidence that the person could
have been convicted
Directive leaves to Member States
whether NCB procedures should be held
in a criminal, administrative or civil court
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Third party confiscation (Art. 6)
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Will mitigate the effects of the practice of
transferring property to friends or relatives
with a view to avoiding confiscation.
Allows confiscation of assets transferred for
less than market value by the suspect to a
third party who should have realised that it is
a result of crime.
Also applies to licit assets transferred in order
to avoid value confiscation
Requires assessment that confiscation of the
assets of the suspect is unlikely to succeed
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Freezing (Art. 7)
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Introduces harmonised EU provisions
enabling freezing in urgent cases
Provides for precautionary freezing
powers in urgent cases, for assets that
risk disappearing if no action is taken
Precautionary freezing powers can be
exercised prior to seeking a court order
or pending its request and are subject
to confirmation by a court.
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Effective execution of confiscation orders
(Art. 9)
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Will allow the police and prosecutors to
continue investigations on the assets of a
convicted person when confiscation was
ordered, but insufficient assets were
confiscated.
Measures can be taken to confiscate assets
for the full amount of the unexecuted
confiscation order
This provision should prevent assets
successfully hidden by criminals from
“resurfacing” years later. and will stop
criminals from ultimately enjoying their gains.
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Safeguards (Art. 8)
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The proposal introduces safeguards at EU
level in line with the EU Charter on
Fundamental Rights (instead of making
reference to national safeguards).
Rationale: balancing far reaching confiscation
measures with the respect of the right to
property and other fundamental rights
Safeguards aim at ensuring the respect of the
presumption of innocence, the right to a fair
trial, the existence of effective judicial
remedies and the right to be informed on how
to exercise them.
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Asset Management (Art. 10)
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Objective: decreases in the value of assets
frozen before confiscation should be avoided
Requires Member States to have in place
centralised (Asset Management Offices) or
equivalent structures in order to properly
manage frozen assets
Requires Member States to grant to their
national agencies the powers to realise frozen
assets which are liable to decline in value
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Other provisions
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Requires Member States to regularly collect
statistics on freezing and confiscation and
send them to the Commission annually
The proposal does not fully replace former
Framework Decisions (2001/500 JHA and
2005/212/JHA) in order to maintain the
obligation for Member States to enable
confiscation for any criminal offence
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Next steps
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First reading of the proposal in Council
expected under Danish Presidency of the
Union
Future Cypriot Presidency indicated this
proposal as one of their priorities
European Parliament is taking initial steps to
prepare their report
Sebastiano.Tine@ec.europa.eu
4/13/2015
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