Initiative by the Governments of the French Republic, the Kingdom of Sweden and the Kingdom of Belgium for the adoption by the Council of a Framework Decision on the execution in the European Union of orders freezing assets or evidence
Date: 2001-03-07
Institutions: Belgium, France, Sweden
Subjects: EU Member State, confiscation of property, criminal procedure, power of initiative, proof

7.3.2001

EN

Official Journal of the European Communities

C 75/3

Initiative by the Governments of the French Republic, the Kingdom of Sweden and the Kingdom
of Belgium for the adoption by the Council of a Framework Decision on the execution in the
European Union of orders freezing assets or evidence

(2001/C 75/02)

THE COUNCIL OF THE EUROPEAN UNION,

HAS ADOPTED THIS FRAMEWORK DECISION:

Having regard to the Treaty on European Union, and in
particular Articles 31(a) and 34(2)(b) thereof,

Having regard to the initiative by the Republic of France, the
Kingdom of Sweden and the Kingdom of Belgium (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

The European Council, meeting in Tampere on 15 and
16 October 1999, endorsed the principle of mutual
recognition, which should become the cornerstone of
judicial cooperation in both civil and criminal matters
within the Union.

The principle of mutual recognition should also apply
to pre-trial orders, in particular to those which would
enable competent authorities quickly to secure evidence
and to seize assets which are easily movable.

(3) On 29 November 2000 the Council, in accordance with
the Tampere conclusions, adopted a programme of
measures to implement the principle of mutual recog-
nition in criminal matters, giving first priority (measures
6 and 7) to the adoption of an instrument applying the
principle of mutual recognition to the freezing of
evidence and assets.

(4)

Such an instrument should, initially, apply to a limited
number of offences which have already been the subject
of a common action in the European Union.

TITLE I

SCOPE

Article 1

Definitions

For the purposes of this Framework Decision,

(a)

(b)

(c)

‘issuing State’ shall mean the Member State in which a
judicial authority within the meaning of this Framework
Decision has taken a freezing order in the framework of
criminal proceedings;

‘executing State’ shall mean the Member State in whose
territory the property (asset or evidence) is located;

‘freezing order’ shall mean any measure taken by a
competent judicial authority in the issuing State in order
provisionally to prevent the destruction, transformation,
moving, transfer or disposal of property that could:

— be subject to confiscation by the issuing State,

— constitute evidence;

(d)

‘asset’ shall mean movable property, corporeal or incor-
poreal, or immovable property, and legal documents and
instruments evidencing title to, or interest
in, such
property, which the authority issuing the request for the
property to be frozen considers:

— is the proceeds of an offence referred to in Article 2
or an asset equivalent to either the full value or part
of the value of such proceeds,

(5)

Rights granted to the parties or bona fide interested third
parties should be preserved,

and

(1) OJ C ...
(2) OJ C ...

— may be destroyed, transformed, moved, transferred

or disposed of;

(e)

‘evidence’ shall mean objects and documents which could
be produced as evidence.

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Article 2

Offences

This Framework Decision applies to all freezing orders relating
to facts which, under the law of the issuing State, constitute
one of the following offences:

(a)

illicit trafficking in narcotic drugs;

(b)

financial
fraud affecting the European Communities’
interests within the meaning of the Convention of 26 July
1995 on the protection of the European Communities’
financial interests (1) and the Protocols thereto of 29 Nov-
and
ember
19 June 1997 (4);

September

1996 (2),

1996 (3)

27

(c)

laundering of the proceeds of crime;

(d)

counterfeiting of the euro;

(e)

corruption;

(f)

trafficking in human beings.

TITLE II

PROCEDURE FOR EXECUTING FREEZING ORDERS

Article 3

Notification of freezing orders

A freezing order within the meaning of this Framework
Decision, together with the certificate provided for in Article
7, shall be notified by the judicial authority which issued it
directly to the competent judicial authority for execution. If
the latter authority is unknown, the judicial authority in the
issuing State shall make all necessary inquiries, including via
the contact points of the European judicial network, in order
to obtain the information from the executing State.

Article 4

Direct execution

1.
A freezing order, notified in accordance with Article 3,
shall be recognised by the competent authority in the executing
State without any further formality being required and shall be
executed forthwith in the same way as a national freezing

(1) OJ C 316, 27.11.1995, p. 48.
(2) OJ C 151, 20.5.1997, p. 2.
(3) OJ C 313, 23.10.1996, p. 2.
(4) OJ C 221, 19.7.1997, p. 12.

order unless that authority decides to invoke one of the
grounds for non-execution provided for in Article 6.

A report on the execution of the freezing order shall be made
forthwith to the competent authority in the issuing State by
any method which leaves a written record.

Any additional coercive measures shall be taken in

2.
accordance with the procedure of the executing State.

Article 5

Duration of the freezing order

The property shall remain frozen in the executing State
1.
until that State has replied to any request made under Article
8(1) (a) or (b).

If the request or order referred to in Article 8(1) (a) or (b)
2.
is not made within the deadline specified in that Article, the
measure shall be terminated.

3.
After consulting the issuing State, the executing State
may lay down appropriate conditions in the light of the
circumstances in order to limit the period for which the asset
it
will be frozen. If,
envisages lifting the measure, it shall inform the issuing State,
which shall be given the opportunity to submit its comments.

in accordance with those conditions,

The judicial authorities of the issuing State shall forthwith
4.
notify the judicial authorities of the executing State that the
freezing order has been lifted.

Article 6

Grounds for non-execution

The judicial authorities of the executing State may oppose the
execution of the freezing order if the certificate provided for in
Article 7 is not produced or the particulars on that certificate
are incomplete.

Where no certificate is produced or where the information on
the certificate is incomplete, the executing authority may:

— specify a deadline for its presentation or for the missing

information to be provided, or

— accept an equivalent document, or

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— exempt the issuing authority from the requirement if it
considers that the information provided is sufficient.

2.

A request:

Any decision to refuse execution must be taken and notified
forthwith to the judicial authorities of the issuing State by any
means which leaves a written record.

Article 7

Certificate

1.
The certificate, the standard form for which is given in
Annex I, must be signed, and its contents certified as accurate,
by the competent authority in the issuing State that ordered
the measure.

2.
The certificate must be translated into the official
language or one of the official languages of the executing State.

Any Member State may, either when this Framework
3.
Decision is adopted or at a later date, state in a declaration
deposited with the General Secretariat of the Council that it
will accept a translation in one or more other official languages
of the Institutions of the European Communities.

(a)

(b)

for transfer as referred to in paragraph 1(a) shall be
processed by the executing State in accordance with the
rules applicable to mutual assistance in criminal matters;

for confiscation as referred to in paragraph 1(b) shall be
processed by the executing State in accordance with the
rules applicable to the enforcement of foreign criminal
sentences.

Article 9

Appeals

1.
An appeal without suspensive effect may be lodged
against a freezing order executed pursuant to Article 4 by the
defendant, the victim or any natural or legal person claiming
to be a bona fide third party; the action shall be brought before
the competent authority in the issuing State or in the executing
State in accordance with the national law of each.

The freezing order may not be appealed as to its

2.
substance in the executing State.

Article 8

Subsequent treatment of the frozen asset

3.
The judicial authorities of the issuing State shall be
informed that an appeal has been lodged and of grounds
pleaded, so that it can submit the arguments that it deems
necessary. They shall be informed of the outcome of the
appeal.

The notification referred to in Article 3 must also set

1.
out, or be followed within no more than four days by:

(a)

a request for the property to be transferred to the issuing
State

Article 10

Liability of the issuing State

— for use as evidence;

— for purposes of confiscation;

— for restitution to the victim of an offence referred to

in Article 2,

The issuing State shall be liable, under the conditions laid
down in the law of the executing State, for cases where the
information on the certificate was inaccurate at the time of its
transmission, and this resulted in the execution of a freezing
order which has caused injury to one of the persons referred
to in Article 9.

in the last two cases, on condition that such transfer is
possible between the Member States concerned;

The executing State shall make good the injury under the
conditions laid down in its national law, provided that the
injured party has sued it for damages.

or

(b)

an order that the asset remain in the executing State
pending a request from the issuing State for execution of
a confiscation order in the executing State, provided that
such an order has already been issued in the issuing State
or is due to be issued at a future date.

The issuing State shall reimburse to the executing State in full
any sums paid in damages to the injured parties.

The executing State shall refrain from seeking compensation
from the issuing State for any injury it has itself sustained.

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TITLE III

FINAL PROVISIONS

Article 11

Implementation

1. Member States shall take the necessary measures to
comply with the provisions of this Framework Decision by
31 December 2002.

2.
By the same date Member States shall transmit to the
General Secretariat of the Council and to the Commission the
text of the provisions transposing into their national law the
obligations imposed on them under this Framework Decision.
On the basis of a report established on the basis of this
information and a written report by the Commission, the

Council shall, by 30 June 2003, assess the extent to which
Member States have taken the necessary measures in order to
comply with this Framework Decision.

The General Secretariat of

3.
the Council shall notify
Member States of the declarations made pursuant to Article
7(3).

Article 12

Entry into force

This Framework Decision shall enter into force on the day of
its publication in the Official Journal.

Done at ...

For the Council

The President

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ANNEX

CERTIFICATE PROVIDED FOR BY ARTICLE 7

1.

Issuing State (1)

2.

Court or judicial authority issuing the freezing order and certificate

2.1. Name

2.2. Address

2.3. Telephone/fax/e-mail (2)

2.4. Language(s) in which it is possible to communicate with the issuing authority (3)

2.4.1.

German

2.4.2.

English

2.4.3.

etc.

3.

Offence(s) being prosecuted:

3.1.

illicit trafficking in narcotic drugs

3.2.

fraud affecting the European Communities’ financial interests

3.3.

laundering of the proceeds of crime

3.4.

counterfeiting the euro

3.5.

corruption

3.6.

trafficking in human beings

4.

Freezing order

4.1. Date

4.2. Purpose of the order

4.2.1.

subsequent confiscation

4.2.2.

evidence

4.2.3.

restitution of property to a victim of crime

4.3. Asset or evidence covered by the freezing order

4.3.1.

precise description of the property

4.3.2.

exact location of the property

4.3.3.

known owner of the property

(1) Each heading of the certificate appears in all the official languages of the European Union: if necessary, headings will be translated on the reverse

side of the page and refer to a number on the front side.

(2) Telephone and fax numbers should be given in full (i.e. number for callers from abroad); wherever possible, give numbers of direct lines.
(3) Optional information, not covered by Article 7.

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5.

Action to be taken by the executing State after executing the freezing order

5.1.

5.2.

transfer the property to the issuing State

keep the property in the executing State pending a confiscation order

5.2.1.

order already issued

5.2.2.

order due to be issued

6.

7.

Additional information (1)

Text of the freezing order attached to this certificate

Done at . . . . . . . . . . . . . . . . . date . . . . . . . . . . . . . . . . . .

Signature and/or stamp

(1) Optional information, not covered by Article 7.