A4-0222/98

Draft Joint Action adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning arrangements for cooperation between Member States in respect of the identification, tracing, freezing or seizing and confiscation of instrumentalities and the proceeds from crime (6490/98 - C4-0184/98 - 98/0909(CNS))

The draft was approved with the following amendments:

(Amendment 1)

Citation 2a (new)

>Original text>

>Text following EP vote>

HAVING REGARD to the Joint Actions of 5 December 1997 establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organized crime, and of 19 March 1998, establishing a programme of exchanges training and cooperation for persons responsible for action to combat organized crime (Falcone Programme);

(Amendment 2)

Recital 1

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CONSIDERING the potential for disrupting criminal activity by confiscation of the proceeds from crime;

>Text following EP vote>

WHEREAS the potential for disrupting criminal activity in the field of organized crime, by more effective cooperation between Member States in identifying, tracing, freezing or seizing, and confiscating the assets deriving from crime, is being substantially improved;

(Amendment 3)

Recital 2

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CONSIDERING that mutually compatible practices would enhance European cooperation in asset confiscation;

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WHEREAS mutually compatible practices are making cooperation at European level more efficient at identifying, tracing, freezing or seizing, and confiscating illegal assets;

(Amendment 4)

Recital 3

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CONSIDERING the commitment of Member States to the early ratification of, if they have not already done so, the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 1990 and the requirements of the EC Money Laundering Directive, 91/308;

>Text following EP vote>

WHEREAS the Member States are committed to early ratification, if they have not already done so, of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, 1990, the requirements of the EC Money Laundering Directive, 91/308, and the 40 recommendations to combat money laundering of the Financial Action Task Force on Money Laundering (FATF) as formulated in 1996;

(Amendment 5)

Recital 3a (new)

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WHEREAS Recommendation No 16 of the European Council's action plan to combat organized crime emphasized the need to accelerate procedures for judicial cooperation in matters relating to organized crime, whilst considerably reducing delay in transmission and responses to requests;

(Amendment 18)

Article -1(1) (new)

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Article -1

-1. 1. In order to enhance effective action against organized crime, Member States shall ensure that no reservations in respect of fraud offences subject to a maximum penalty of more than three years are made to Articles 2 and 6 of the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.

(Amendment 19)

Article -1(2) (new)

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-1.2. Each Member State shall ensure that its legislation and procedures allow for the confiscation of instrumentalities and the proceeds from crime, and also property the value of which corresponds to such proceeds, both in purely domestic proceedings and in proceedings instituted at the request of another Member State, including requests for the enforcement of foreign confiscation orders. The words 'instrumentalities¨, 'property¨, 'proceeds¨ and 'confiscation¨ shall have the same meaning as in Article 1 of the 1990 Convention.

(Amendment 20)

Article -1(3) (new)

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-1.3. Each Member State shall ensure that its legislation and procedures enable it to permit the identification and tracing of suspected proceeds from crime at the request of another Member State where there are reasonable grounds for suspecting that a criminal offence has been committed. Such legislation and procedures shall enable assistance to be given at the earliest stages in an investigation. Member States will endeavour to restrict their use of the optional grounds for refusal in respect of other Member States under Article 18(2) and (3) of the 1990 Convention.

(Amendment 6)

Article 1a(1) (new)

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Article 1a

1a. 1 In identifying and tracing illegally obtained assets, the appropriate criminal prosecution authorities of any Member State shall have free and direct access to any information that is publicly accessible in another Member State. In order to obtain any other information, an appropriate exchange of information shall take place between the contact points and Europol.

(Amendment 7)

Article 1a(2) (new)

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1a.2 Where the authorities intend to infringe the protected rights of persons or institutions in order to identify and trace illegal assets, court decisions shall be required in the requesting and the receiving Member State under the procedure for requests for legal assistance.

(Amendment 8)

Article 2

>Original text>

Member States shall give the same priority to all requests from other Member States which relate to asset identification, tracing, freezing or seizing, and confiscation as is appropriate in domestic proceedings.

>Text following EP vote>

Member States shall give the same priority to all requests from other Member States which relate to

illegal asset identification, tracing, freezing or seizing, and confiscation as is given to such measures in domestic proceedings.

(Amendment 9)

Article 3(1)

>Original text>

3. 1. Where it is not contrary to the law of the Member States, they shall make appropriate use of existing cooperation arrangements, and shall encourage direct contact between investigators, investigating Magistrates and prosecutors to ensure that requests for legal assistance are made only where necessary and, when that is the case, shall ensure that such requests are properly prepared and meet all the requirements of the receiving Member State.

>Text following EP vote>

3. 1.

The Member States shall encourage direct contact between investigators, investigating Magistrates and prosecutors to improve the way in which direct cooperation in the field of legal assistance operates, and to ensure that requests for legal assistance are properly prepared and meet all the requirements of the receiving Member State. This shall have the further purpose of ensuring that requests for legal assistance are made only where necessary.

(Amendment 10)

Article 4(1)

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4. 1. Member States shall take all necessary steps to minimize the risk of assets being dissipated.

>Text following EP vote>

4. 1.

Member States shall take all necessary steps to minimize the risk of illegal assets being dissipated. To this end, they shall jointly draw up a catalogue of the data which legal requests for confiscating instrumentalities and freezing the proceeds from crime must contain in order to facilitate an immediate decision in the receiving Member State.

(Amendment 11)

Article 4(1a) (new)

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4.1a An appeal against the decision by the receiving Member State to comply with the request shall not have suspensory effect. However, if appropriate securities are provided, the seized or frozen assets shall be ordered to be released. Claims for compensation by the persons concerned shall remain unaffected. The complainant may submit a claim for compensation only in the Member State where the damage occurred and shall apply to the court which is competent under national law. In the context of its liability, a Member State may not claim, vis-à-vis the complainant, that another Member State is responsible for the damage suffered. The State or institution responsible for the damage shall, on request, reimburse to the State paying out the compensation with the amount of compensation paid.

(Amendment 12)

Article 4(1b) (new)

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4.1b. Seizure of instrumentalities and the freezing of proceeds from crime must be justified within an appropriate period, not exceeding one year, by a decision of the requesting Member State ordering the confiscation of the seized or frozen assets. If the requesting Member State does not take such a decision within that period, the seizing or freezing shall be revoked.

(Amendment 13)

Article 4(1c) (new)

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4.1c. The Member States shall recognize the Court of Justice of the European Communities as competent to:

(a) issue preliminary rulings on matters relating to this article;

(b) interpret this Joint Action and settle any disputes concerning its implementation.

(Amendment 14)

Article 4(2)

>Original text>

4. 2. Where an initial investigation in one judicial region of a Member State leads to the need to pursue further enquiries in another judicial region of that Member State, the Member State shall, where it is not contrary to the law of the Member State, take all possible steps to enable the necessary assistance to be rendered without the need for preparation of a further letter of request.

>Text following EP vote>

4. 2.

Where, in the course of fulfilling a request for legal assistance in one judicial region of a Member State, the need arises to pursue further enquiries in another judicial region of that Member State, the Member State shall take all possible steps to enable the necessary assistance to be rendered without the need for preparation of a further letter of request.

(Amendment 15)

Article 4a (new)

>Original text>

>Text following EP vote>

Article 4a

Member States shall take any measures required to enforce court decisions of another Member State on the confiscation of seized or frozen assets.

(Amendment 16)

Article 4b (new)

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Article 4b

Member States shall take any measures required to ensure that requests from other Member States concerning the identification, tracing, freezing or seizing, and confiscation of illegal assets may also be fulfilled when the offender has died or absconded.

(Amendment 17)

Article 6

>Original text>

The Council shall review this Joint Action in the light of the results of the operation of the mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organized crime adopted on 5 December 1997.

>Text following EP vote>

The Council shall,

before the end of 1999, review and assess the way in which the Member States are complying with this Joint Action, and, in so doing, shall also take account of the results of the operation of the mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organized crime adopted on 5 December 1997.

(Amendment 21)

Article 6a (new)

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Article 6a

6a. 1. Subject to paragraph 2, Member States shall take all appropriate steps to implement this Joint Action as soon as it enters into force, and shall ensure that its contents are brought to the attention of the relevant parts of their respective judicial systems.

>Original text>

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6a.2. Appropriate proposals for the implementation of Article -1 shall be submitted by Member States within two years of the entry into force of this Joint Action for consideration by the competent authorities with a view to their adoption.

(Amendment 22)

Article 7

>Original text>

This Joint Action shall be published in the Official Journal and shall enter into force on the date of its publication. The governments of the Member States undertake to take all appropriate steps to implement the Joint Action as soon as it enters into force, ensuring in particular that its contents are brought to the attention of the relevant parts of their respective judicial systems.

>Text following EP vote>

This Joint Action shall be published in the Official Journal and shall enter into force on the date of its publication.

Legislative resolution embodying Parliament's opinion on the draft Joint Action adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning arrangements for cooperation between Member States in respect of the identification, tracing, freezing or seizing and confiscation of instrumentalities and the proceeds from crime (6490/98 - C4-0184/98 - 98/0909(CNS))(Consultation procedure)

The European Parliament,

- having regard to the Council draft, 6490/98 - 98/0909(CNS),

- having been consulted by the Council pursuant to Article K.6, second paragraph of the Treaty on European Union (C4-0184/98),

- having regard to Rule 58 of its Rules of Procedure,

- having regard to the report of the Committee on Civil Liberties and Internal Affairs (A4-0222/98),

1. Approves the Council draft, subject to Parliament¨s amendments;

2. Calls on the Council to notify Parliament should it intend to depart from the text approved by Parliament;

3. Instructs its President to forward this opinion to the Council and Commission.