98/699/JHA: Joint Action of 3 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds from crime
Date: 1998-12-03
Institutions: Council of the European Union
Subjects: EU police cooperation, cooperation in home affairs, fight against crime, judicial cooperation in criminal matters in the EU, money laundering, organised crime, seizure of goods

9. 12. 98

EN

Official Journal of the European Communities

L 333/1

(Acts adopted pursuant to Title VI of the Treaty on European Union)

JOINT ACTION

of 3 December 1998

adopted by the Council on the basis of Article K.3 of the Treaty on European
Union, on money laundering, the identification, tracing, freezing, seizing and
confiscation of instrumentalities and the proceeds from crime

(98/699/JHA)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union and, in
particular, Article K.3(2)(b) thereof,

Having regard to the initiative of the United Kingdom,

Having regard to the action plan of the High Level Group
on Organised Crime approved by the Amsterdam Euro-
pean Council on 16 and 17 June 1997, and in particular
recommendation 26(b) on strengthening the tracing and
seizure of the proceeds from crime,

Having examined the views of the European Parliament
following the consultation conducted by the Presidency
in accordance with Article K.6 of the Treaty on European
Union,

Having regard to the Joint Actions of 5 December 1997
establishing a mechanism for evaluating the application
and implementation at national
level for international
undertakings in the fight against organised crime (1), and
of 19 March 1998,
establishing a programme of
exchanges, training and cooperation for persons respon-
sible for action to combat organised crime (Falcone
Programme) (2),

Considering the commitment of Member States of the
principles of the Council of Europe Convention on Laun-
dering, Search, Seizure and Confiscation of the Proceeds
from Crime 1990,

Having regard to the proposed Joint Action on making it
a criminal offence to participate in a criminal organ-
isation in the Member States of the European Union, and
in particular to the offences covered by that Joint Action,

Considering the requirements of Council Directive 91/
308/EEC of 10 June 1991 on prevention of the use of the
financial system for the purpose of money laundering (3),
and the 40 recommendations to combat money laun-
dering of the Financial Action Task Force on Money

Laundering (FATF) as formulated in 1996, and in partic-
ular recommendation 4 thereof,

Having regard to the Joint Action of 17 December 1996
concerning the approximation of the laws and practices of
the Member States of the European Union to combat
drug addiction and to prevent and combat illegal drug
trafficking (4),

Mindful of the common objective of improving coordina-
tion between law enforcement authorities,

Recalling the Joint Action on the creation of a European
Judicial Network, adopted by the Council on 29 June
1998 (5),

Whereas the potential for disrupting criminal activity in
the field of organised crime, by more effective coopera-
tracing,
tion between Member States
freezing or seizing, and confiscating the assets deriving
from crime, is being improved;

in identifying,

are making
Whereas mutually compatible practices
cooperation at European level more efficient at identi-
fying, tracing, freezing or seizing, and confiscating illegal
assets;

Whereas recommendation No 16 of the abovementioned
action plan to combat organised crime emphasised the
need to accelerate procedures for judicial cooperation in
matters relating to organised crime, while considerably
reducing delay in transmission and responses to requests;

Considering the Member States’ adherence to the 1959
European Convention on Mutual Assistance in Criminal
Matters;

In the light of the United Nations Convention against
Illicit Traffic in Narcotic Drugs
and Psychotropic
Substances 1988 and the 1998 United Nations General
Assembly Special Session on Drugs;

(1) OJ L 344, 15. 12. 1997, p. 7.
(2) OJ L 99, 31. 3. 1998, p. 8.
(3) OJ L 166, 28. 6. 1991, p. 77.

(4) OJ L 342, 31. 12. 1996, p. 6.
(5) OJ L 191, 7. 7. 1998, p. 4.

L 333/2

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Official Journal of the European Communities

9. 12. 98

the 1996 Dublin
achievement of
Recognising the
Seminar on asset confiscation in identifying obstacles to
effective cooperation;

and to that end, Member States will endeavour to restrict
their use of the optional gorunds for refusal in respect of
other Member States under paragraphs 2 and 3 of Article
18 of the 1990 Convention.

On the understanding that the forms of cooperation laid
down in this Joint Action are without prejudice to other
forms of bilateral or multilateral cooperation,

HAS ADOPTED THIS JOINT ACTION:

Article 1

In order to enhance effective action against organ-
1.
ised crime, Member States shall ensure that no reserva-
tions are made or upheld in respect of the following
Articles of the 1990 Council of Europe Convention on
Laundering, Search, Seizure and Confiscation of
the
Proceeds from Crime (hereinafter ferred to as ‘the 1990
Convention'):

(a) Article 2: in so far as the offence is punishable by
liberty or a detention order of a

deprivation of
maximum of more than one year;

(b) Article 6: in so far as serious offences are concerned.
Such offences should in any event include offences
which are punishable by deprivation of liberty or a
detention order of a maximum of more than one year,
or, as regards those States which have a minimum
threshold for offences in their legal system, offences
punishable by deprivation of liberty or a detention
order of a minimum of more than six months.

Article 2

the functioning of

the
1. Within the framework of
European Judicial Network, each Member State shall
prepare a user-friendly guide,
including information
about where to obtain advice, setting out the assistance it
can provide in identifying, tracing, freezing or seizing and
confiscating instrumentalities and the proceeds
from
crime. The guide shall also include any important restric-
tions on such assistance and the information which
requesting States should supply.

2.
The General Secretariat of the Council of the Euro-
pean Union shall be sent the guides referred to in para-
graph 1 and shall
translate them into the official
languages of the institutions of the European Community.
The General Secretariat shall distribute the guides to
Member States,
the European Judicial Network and
Europol.

Each Member State shall ensure that

3.
the guide
referred to in paragraph 1 is kept up to date and that any
changes are sent to the General Secretariat of the Council
for translation and distribution in accordance with para-
graph 2.

Article 3

Point (a) shall not affect reservations made with regard to
the confiscation of proceeds from offences punishable
under legislation on taxation.

Member States shall give the same priority to all requests
from other Member States which relate to asset identifica-
tion, tracing, freezing or seizing, and confiscation as is
given to such measures in domestic proceedings.

2.
Each Member State shall ensure that its legislation
and procedures on the confiscation of the proceeds from
crime shall also allow for the confiscation of property the
value of which corresponds to such proceeds, both in
purely domestic proceedings and in proceedings insti-
tuted at the request of another Member State, including
requests for
foreign confiscation
orders. However, Member States may exclude the confis-
cation of property the value of which corresponds to the
proceeds from crime in minor cases. The words ‘property',
‘proceeds', and ‘confiscation' shall have the same meaning
as in Article 1 of the 1990 Convention.

the enforcement of

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
to suspect that a criminal offence has been committed.
Such legislation and procedures shall enable assistance to
be given at the earliest possible stages in an investigation,

Article 4

shall

States

encourage direct

cooperation arrangements,

1. Member
contact
between investigators, investigating magistrates and pro-
secutors of Member States making appropriate use of
that
available
requests for assistance through formal channels are not
made unnecessarily. When a formal request is necessary,
the requesting State shall ensure that
is properly
prepared and meets all the requirements of the requested
State.

to ensure

it

2. Where it is not possible to execute a request for
assistance in the manner expected by the requesting State,
the requested State shall endeavour to satisfy the request
in some alternative way, after appropriate consultation
with the requesting State, while fully respecting national
legislation and international obligations.

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L 333/3

3. Member States shall submit requests for assistance as
soon as the precise nature of the assistance required is
identified and, where a request is marked ‘urgent' or a
deadline is indicated, explain the reasons for the urgency
or deadline.

Article 5

1. Member States shall, where it is not contrary to their
law, take all necessary steps to minimise the risk of assets
being dissipated. Those steps shall include such measures
as may be necessary to ensure that assets which are the
subjet of a request from another Member State may be
frozen or seized expeditiously so that a later confiscation
request is not frustrated.

2. Where, in the course of fulfilling a request for legal
assistance in one area of a Member State the need arises to
pursue further enquiries in another area of that Member
State, the Member State shall, where it is not contrary to
its law, take all possible steps to enable the necessary
assistance to be rendered without the need for preparation
of a further letter of request.

3. Where the execution of a request leads to the need
to pursue further enquiries on a related issue, and the
requesting State issues a supplementary letter of request,
the requested State shall, where it is not contrary to its
law, take all possible steps to expedite the execution of
such a supplementary request.

in
The Presidency and interested Member States,
3.
cooperation as appropriate with the European Judicial
Network and Europol, shall as necessary arrange seminars
for officials from Member States and other practitioners
involved to promote and develop best practice and to
encourage compatibility of procedures.

Article 7

The Council shall, before the end of 2000, review this
Joint Action in the light of the results of the operation of
the Joint Action of 5 December 1997 establishing a
mechanism for evaluating the application and imple-
mentation at national level of international undertakings
in the fight against organised crime.

Article 8

Subject to paragraph 2, Member States shall take all
1.
appropriate steps to implement this Joint Ation as soon
as it enters into force, and shall ensure that its contents
are brought to the attention of their relevant national and
local authorities.

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

Article 6

Article 9

1. Member States shall ensure that arrangements are in
place to acquaint their judiciary with best practice in
international cooperation in the identification, tracing,
freezing or seizing, and confiscation of instrumentalities
and the proceeds from crime.

2. Member States shall ensure that appropriate training,
reflecting best practice, is provided to all investigators,
investigating magistrates, prosecutors and other officials
concerned with international cooperation in asset identi-
fication,
freezing or seizing and confiscation
matters.

tracing,

This Joint Action shall be published in the Official
Journal and shall enter into force on the day of its pub-
lication.

Done at Brussels, 3 December 1998.

For the Council

The President

K. SCHL(cid:153)GL