Initiative of the Kingdom of Denmark with a view to the adoption of a Council Framework Decision on Confiscation of Crime-related Proceeds, Instrumentalities and Property
Date: 2002-08-02
Institutions: Denmark
Subjects: EC Decision, confiscation of property, fight against crime, organised crime

2.8.2002

EN

Official Journal of the European Communities

C 184/3

II

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

Initiative of the Kingdom of Denmark with a view to the adoption of a Council Framework
Decision on Confiscation of Crime-related Proceeds, Instrumentalities and Property

(2002/C 184/03)

THE COUNCIL OF THE EUROPEAN UNION,

criminal
tracing, freezing and confiscating funds).

law and procedures on money laundering (e.g.

Having regard to the Treaty on European Union, and in
particular Articles 29, 31(c) and 34(2)(b),

Having regard to the initiative of the Kingdom of Denmark,

Having regard to the opinion of the European Parliament,

Whereas:

(1) The main motive for cross-border organised crime is
financial gain.
therefore, any
In order to be effective,
attempt to prevent and combat such crime must focus
and confiscating
on tracing,
the
seizing
this is made difficult
proceeds from crime. However,
inter alia as a result of differences between Member
States' legislation in this area.

freezing,

(2) In the conclusions of the Vienna European Council of
the European Council called for a
December 1998,
strengthening of EU efforts
international
to combat
organised crime in accordance with the Council's and
to
the Commission's
implement the provisions of the Treaty of Amsterdam
on an area of freedom, security and justice (1).

on how best

action

plan

(3) Pursuant to point 50(b) of the Vienna Action Plan, within
five years of
the Treaty of
the entry into force of
Amsterdam, national provisions governing seizures and
from crime must be
confiscation of
the proceeds
taking
improved and approximated where necessary,
account of the rights of third parties in bona fide.

(4) Point 51 of the conclusions of the Tampere European
Council of 15 and 16 October 1999 stresses
that
money laundering is at
the very heart of organised
crime, and should be rooted out wherever it occurs and
that the European Council is determined to ensure that
seize and
freeze,
concrete steps are taken to trace,
confiscate
from crime. The European
the proceeds
Council also calls in point 55 for the approximation of

(5) Pursuant to Recommendation 19 in the 2000 action plan
entitled ‘The prevention and control of organised crime: a
European Union strategy for the beginning of the new
millennium’, which was approved by the Council on 27
March 2000 (2), an examination should be made of the
possible need for an instrument which,
taking into
account best practice in the Member States and with
due respect for fundamental
introduces
the possibility of mitigating, under criminal, civil or
fiscal
law, as appropriate, the onus of proof regarding
the source of assets held by a person convicted of an
offence related to organised crime.

legal principles,

(6) Pursuant to Article 12 on confiscation and seizure of the
United Nations' Convention of 12 December 2000 against
Parties may
Transnational Organised Crime,
consider the possibility of requiring that an offender
demonstrate the lawful origin of alleged proceeds of
crime or other property liable to confiscation,
to the
extent
is consistent with the
principles of their domestic law and with the nature of
judicial proceedings.

that such a requirement

States

(7) All Member States have ratified the Council of Europe
Convention of 8 November 1990 on Laundering,
Search, Seizure and Confiscation of the Proceeds from
Crime. Some Member States have submitted declarations
with regard to Article 2 of the Convention concerning
confiscation so as to be obliged to confiscate proceeds
only from a number of specified offences.

tracing,

the identification,

(8) The Council Framework Decision No 2001/500/JHA of
26 June 2001 (3) lays down provisions on money laun-
dering,
freezing, seizing and
confiscation of instrumentalities and the proceeds from
crime. Under that Framework Decision, Member States
are also obliged not to make or uphold reservations in
the Council of Europe
respect of
Convention concerning
the
insofar
as
liberty or a
offence is punishable by deprivation of
detention order for a maximum of more than one year.

the provisions of

confiscation,

(1) OJ C 19, 23.1.1999, p. 1.

(2) OJ C 124, 3.5.2000, p. 1.
(3) OJ L 182, 5.7.2001, p. 1.

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Official Journal of the European Communities

2.8.2002

(9) The existing instruments in this area have not

to a
sufficient extent achieved effective cross-border coop-
eration with regard to confiscation as there are still a
number of Member States which are unable to confiscate
the proceeds from all offences punishable by deprivation
of liberty for more than one year.

(10) The aim of this Framework Decision is to ensure that all
Member States have effective rules governing the confis-
cation of proceeds from crime, inter alia in relation to the
onus of proof regarding the source of assets held by a
person convicted of an offence related to organised crime.
This Framework Decision is linked to the Framework
Decision on the mutual recognition within the European
Union of decisions
confiscation of
concerning the
proceeds from crime and asset-sharing,

HAS ADOPTED THE FOLLOWING FRAMEWORK DECISION:

Article 1

Definitions

For the purposes of this Framework Decision:

— ‘proceeds’ means any economic advantage from criminal

offences. It may consist of any form of property,

— ‘property’

includes property of any description, whether
immovable, and
instruments evidencing title to or

incorporeal, movable or

corporeal or
legal documents or
interest in such property,

— ‘instrumentalities’ means any property used or intended to
be used, in any manner, wholly or in part, to commit a
criminal offence or criminal offences,

— ‘confiscation’ means a penalty or measure, ordered by a
court
in relation to a criminal
offence or criminal offences, resulting in the final depri-
vation of property.

following proceedings

Article 2

Confiscation

Article 3

Extended powers of confiscation

1. Member States shall adopt
the necessary measures to
enable them to confiscate, either wholly or in part, property
belonging to a person convicted of a criminal act, including
property not resulting from the criminal act of which the
person in question is convicted, if:

(a) the act is of such a nature that it can generate substantial

proceeds, and

(b) the act is punishable by at least a maximum sentence of up

to six years in prison.

2. Member States shall also adopt the necessary measures to
enable them to confiscate, either wholly or in part, property
acquired by the spouse or cohabitee of the person concerned
under the conditions set out in paragraph 1. Member States
may disregard cases where the property was acquired more
than three years prior to the commission of
the offence
which forms the basis for confiscation pursuant to paragraph
1, or cases where the marriage or cohabitation did not exist at
the time of acquisition.

3. Member States shall also adopt the necessary measures to
enable them,
in accordance with the conditions set out in
paragraph 1, to confiscate, either wholly or in part, property
transferred to a legal person in respect of which the person
concerned, acting either alone or in conjunction with his
closest relations, has a controlling influence. The same shall
apply if the person concerned receives a significant part of
the legal person's income. Member States may disregard cases
where the property was transferred to the legal person more
than three years prior to the commission of the offence which
forms the basis for confiscation pursuant to paragraph 1.

Confiscation pursuant to paragraphs 1 to 3 may not be
4.
effected if the person concerned renders it probable that the
legitimate manner or by
property was
therefore
legitimately acquired means. Member States shall
the person
ensure that during the criminal prosecution,
concerned has
information
to present
concerning the acquisition of property.

the opportunity

acquired in a

Member States shall adopt the necessary measures to enable
them to confiscate, either wholly or in part, instrumentalities
and proceeds from criminal offences punishable by deprivation
of liberty for more than one year, or property the value of
which corresponds to such proceeds.

5.
Finally, Member States shall adopt the necessary measures
to enable them to confiscate, in place of property as specified
in paragraphs 1, 2 and 3, an amount equivalent to the value of
the property or a part thereof.

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Article 4

Implementation

Council shall assess, by [. . .] (**) at the latest, the extent to
which Member States have taken the necessary measures in
order to comply with this Framework Decision.

1. Member States shall adopt
comply with this Framework Decision by [. . .] (*).

the necessary measures to

2. Member States shall transmit to the General Secretariat of
the Council of the European Union and to the Commission of
the European Communities, at the latest by the same date, the
text of the provisions transposing into their national law the
obligations imposed on them under this Framework Decision.
In accordance with a report established on the basis of this
information and a written report from the Commission, the

Article 5

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

. . .

(*) Two years after the date on which the Framework Decision is

adopted.

(**) Three months after the date on which the Framework Decision is

implemented.

Initiative of the Kingdom of Denmark with a view to the adoption of Council Framework
Decision on combating corruption in the private sector

(2002/C 184/04)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in
particular Articles 29, 31(e) and 34(2)(b) thereof,

Having regard to the initiative of the Kingdom of Denmark,

Having regard to the opinion of the European Parliament,

Whereas:

(1) Along with globalisation, recent years have brought an
increase in cross-border trade in goods and services. Any
corruption in the private sector within a Member State is
thus not just a domestic problem but also a transnational
problem, most effectively tackled by means of EU joint
action.

(2) On 26 May 1997 the Council approved a Convention on
the fight against corruption involving officials of
the
European Communities or officials of Member States of
the European Union (1). However, a number of Member
States have not yet ratified that Convention.

(3) On 22 December 1998, the Council also adopted Joint
Action 98/742/JHA on corruption in the private sector (2).

(1) OJ C 195, 25.6.1997, p. 2.
(2) OJ L 358, 31.12.1998, p. 2.

In connection with the adoption of that Joint Action, the
Council issued a statement to the effect that it agreed that
the Joint Action represents the first step at EU level
towards combating such corruption, and that additional
measures will be implemented at a later stage in the light
of the outcome of the assessment which is to take place
pursuant to Article 7(2) of the Joint Action. A report on
Joint Action into
transposition of
Member States'
national law is not yet available.

that

(4) Under Article 29 of the Treaty on European Union, it is the
Union's objective to provide citizens with a high level of
safety within an area of freedom, security and justice, an
objective to be achieved by preventing and combating
crime, organised or otherwise, including corruption.

(5) According to point 48 of the conclusions of the European
Council meeting in Tampere on 15 and 16 October 1999,
corruption is an area of particular relevance in establishing
minimum rules on what constitutes a criminal offence in
Member States and the penalties applicable.

(6) An OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions was
approved at a negotiating conference on 21 November
1997, and the Council of Europe has also approved a
Criminal Law Convention on Corruption, which opened
for signature on 27 January 1999. That Convention is
accompanied by an Agreement establishing the Group of
States against Corruption (GRECO). Negotiations have also
been opened for
a UN Convention on combating
corruption.