Report from the Commission based on Article 6 of the Council Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime {SEC(2004)383}
Date: 2004-04-05
Institutions: European Commission
Subjects: confiscation of property, fight against crime, judicial cooperation in criminal matters in the EU, money laundering, organised crime, penalty

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 05.04.2004 
COM(2004)230 final 

REPORT FROM THE COMMISSION 

based on Article 6 of the Council Framework Decision of 26 June 2001 on money 
laundering, the identification, tracing, freezing, seizing and confiscation of 
instrumentalities and the proceeds of crime. 

{SEC(2004)383} 

EN 

   EN 

 
 
 
  
TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

INTRODUCTION ....................................................................................................... 3 

Background .................................................................................................................. 3 

Method and criteria for evaluation for this Framework-Decision ............................... 4 

1.2.1.  Framework-Decisions ex-Article 34, paragraph (2), point b) of the Treaty on 

European Union ........................................................................................................... 4 

1.2.2.  Evaluation criteria ........................................................................................................ 4 

1.2.3.  Context of evaluation ................................................................................................... 5 

1.3. 

1.4. 

2. 

General purpose of the Framework-Decision .............................................................. 6 

General purpose of the report....................................................................................... 6 

ANALYSIS OF NATIONAL MEASURES TAKEN TO COMPLY WITH THE 
FRAMEWORK DECISION ........................................................................................ 6 

2.1. 

Article 1: Reservations in respect of the 1990 Convention.......................................... 6 

2.1.1.  Article 1 Paragraph (a): Reservations under Article 2 of the 1990 Convention .......... 7 

2.1.2.  Article 1 Paragraph (b): Reservations under Article 6 of the 1990 Convention........ 10 

2.2. 

2.3. 

Article 2: Penalties ..................................................................................................... 13 

Article 3: Value confiscation ..................................................................................... 14 

2.3.1.  Domestic proceedings: ............................................................................................... 15 

2.3.2.  External requests: ....................................................................................................... 17 

2.4. 

2.5. 

3. 

Article 4: Processing of requests for mutual assistance ............................................. 19 

Article 7: Territorial application ................................................................................ 20 

CONCLUSIONS........................................................................................................ 20 

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1. 

INTRODUCTION 

1.1. 

Background 

Under Article 6 of the Council Framework Decision of 26 June 2001 on money laundering, 
the  identification,  tracing,  freezing,  seizing  and  confiscation  of  instrumentalities  and  the 
proceeds of crime1 (hereafter ‘the Framework Decision’), the Commission has to establish a 
written report on the measures taken by the Member States to comply with this Framework 
Decision. 

Paragraph  (1)  of  that  Article  obliges  the  Member  States  to  take  the  necessary  measures  to 
comply with the provisions of the Framework Decision by 31 December 2002. According to 
paragraph (2), by 1 March 2003 Member States should forward to the General Secretariat of 
the Council and to the Commission the text of the provisions transposing into their national 
law the obligations arising for them from this Framework Decision and, when appropriate, the 
notifications  made  pursuant  to  Article  40(2)  of  the  1990  Council  of  Europe  Convention  on 
Laundering,  Search,  Seizure  and  Confiscation  of  the  Proceeds  from  Crime  (hereafter  ‘the 
1990 Convention’). The Council should ascertain, by 31 December 2003, on the basis of this 
information  and  the  written  report  by  the  Commission,  to  what  extent  Member  States  have 
taken the necessary measures to comply with the Framework Decision. 

The  value  of  this  report  depends  therefore  largely  on  the  quality  and  punctuality  of  the 
national information received by the Commission. The Commission reminded Member States 
of  their  obligation  by  means  of  two  letters  sent  the  9  December  2002  and  the  21  February 
2003.  By  1  March  2003,  however,  only  six  Member  States  (France,  Finland,  Germany, 
Netherlands,  Sweden  and  United  Kingdom)  had  notified  the  Commission  of  the  measures 
taken  to  implement  the  Framework  Decision.  By  June  2003,  twelve  Member  States  (the 
aforementioned  plus  Belgium,  Denmark,  Greece,  Spain,  Ireland  and  Luxembourg)  had 
provided  the  Commission  with  information  on  implementation  and,  finally,  Italy  was  the 
thirteenth Member State to reply, the 31 October 2003. 

However, the information the Commission has received varies considerably especially as far 
as  the  aspect  of  completeness  is  concerned.  This  is  reflected  in  the  annexed  table 
{SEC(2004)383} that contains the information provided by Member States. Not all of them 
identified  and  transmitted  the  text  of  the  implementing  provisions  or  the  text  of  the 
notifications  to  the  1990  Convention,  as  required  by  the  Framework  Decision.  Some  just 
referred to new draft legislation. As far as possible, missing information has been completed 
with the useful aid provided by the contact persons designated by most Member States.  

It  should  be  also  noted  that  some  Member  States,  such  as  Denmark,  had  to  amend  certain 
internal provisions in order to comply with the Framework Decision. Others, like Spain, Italy 
and  Luxembourg,  are  preparing  legislation  that  has  not  yet  entered  into  force.  Greece 
announced  that  a  special  legislative  drafting  committee  was  currently  producing  national 
transposing  provisions,  although  no  text  was  provided.  Sweden  is  currently  examining 
whether  new  legislation  is  necessary  to  comply  with  the  Framework  Decision,  as  regards 
reservations  to  the  1990  Convention.  France  explicitly  mentioned  that  existing  legislation 
already complied with the Framework Decision. This could be implicitly applied to the rest of 
Member  States  that  have  not  drawn  our  attention  to  specific  implementing  provisions.  The 

1 

OJ L182, 05.07.2001,p. 1. 

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United Kingdom has introduced new legislation on the matter although they understand that 
previous legislation already complied with the Framework Decision. 

Finally, by 1 November 2003, the Commission had received no information from Austria and 
Portugal.  Therefore,  when  analysing  implementation  measures,  the  report  will  not  refer  to 
these  Member  States  with  the  exception  of  the  implementation  of  Article  1,  as  further 
explained. 

1.2.  Method and criteria for evaluation for this Framework-Decision 

1.2.1.  Framework-Decisions  ex-Article  34,  paragraph  (2),  point  b)  of  the  Treaty  on 

European Union 

This  Framework  Decision  is  based  on  the  Treaty  of  the  European  Union  (TEU),  and  in 
particular Article 31 (a), (c) and (e) and Article 34(2) (b) thereof. 

Framework  decisions  can  best  be  compared  with  the  legal  instrument  of  a  directive2.  Both 
instruments are binding upon Member States as to the result to be achieved but leave to the 
national authorities the choice of form and methods. However, framework decisions shall not 
entail direct effect. The Commission has no legal action before the Court of Justice – at least 
in the current state of development of European Law- to enforce transposition legislation for a 
Framework  Decision.  Nonetheless,  the  Court  of  Justice  can  rule  on  any  dispute  between 
Member States regarding the interpretation or the application (including the transposition) of 
the aforementioned instrument3. The possible exercise of this right requires solid factual bases 
that the Commission’s report, based on transmitted information, can help to build up. 

1.2.2.  Evaluation criteria 

To  be  able  to  evaluate  on  the  basis  of  objective  criteria  whether  a  framework  decision  has 
been fully implemented by a Member State, some general criteria are developed with respect 
to directives which should be applied mutatis mutandis to framework decisions, such as: 

1. 

2. 

3. 

form  and  methods  of  implementation  of  the  result  to  be  achieved  must  be 
chosen in a manner which ensures that the directive functions effectively with 
account being taken of its aims4; 

each  Member  State  is  obliged  to  implement  directives  in  a  manner  which 
satisfies the requirements of clarity and legal certainty and thus to transpose the 
provisions of the directive into national provisions having binding force5, 

transposition  need  not  necessarily  require  enactment  in  precisely  the  same 
words  in  an  express  legal  provision;  thus  a  general  legal  context  (such  as 
appropriate  already  existing  measures)  may  be  sufficient,  as  long  as  the  full 

2 
3 
4 
5 

Article 249 EC Treaty. 
Article 35, paragraph (7), TEU 
See relevant case law on the implementation of directives: Case 48/75 Royer [1976 ECR 497 at 518]. 
See relevant case law on the implementation of directives: Case 239/85 Commission v. Belgium [1986] 
ECR 3645 at 3659. See also Case 300/81 Commission v. Italy [1983] ECR 449 at 456. 

4 

 
 
  
 
                                                 
application  of  the  directive  is  assured  in  a  sufficiently  clear  and  precise 
manner6; 

4. 

directives must be implemented within the period prescribed therein7. 

Both instruments are binding ‘as to the results to be achieved’. That may be defined as a legal 
or factual situation, which does justice to the interest, which in accordance with the Treaty the 
instrument is to ensure8. 

The general assessment provided for in Article 6, of the extent to which the Member States 
have  complied  with  the  Framework  Decision,  is  -where  possible-  based  on  the  criteria 
mentioned above. 

1.2.3.  Context of evaluation 

A first preliminary  observation  concerns the (legal) context and follow up of the evaluation 
report. As already mentioned, the Commission has within the first pillar the possibility to start 
against a Member State an infringement procedure. Since this possibility does not exist within 
the  TEU,  the  nature  and  purpose  of  this  report  differ,  of  course,  from  a  report  on  the 
implementation of a first pillar directive by Member States. Nevertheless, as the Commission 
fully  participates  in  third  pillar  matters9,  it  is  coherent  to  confer  on  it  a  task  of  a  factual 
evaluation of the implementation measures enabling the Council to assess the extent to which 
Member  States  have  taken  the  necessary  measures  in  order  to  comply  with  this  Framework 
Decision.  

A  second  preliminary  observation  concerns  the  specific  nature  of  the  field  being  regulated. 
The  Framework  Decision  aims  at  enhancing  the  fight  against  money  laundering  and 
introducing a minimum harmonisation of penalties. Though the majority of systems seem to 
be convergent, there  still  exist,  especially concerning  confiscation  of the proceeds of crime, 
divergences  among  Member  States.  The  evaluation  of  the  extent  to  which  Member  States 
have taken measures to comply with these issues shall take, as far as appropriate, account of 
the general criminal legal background of the Member States. 

Another  specific  feature  of  this  Framework  Decision,  that  must  be  kept  in  mind  when 
defining  the  scope  of  the  evaluation,  is  the  link  between  this  instrument  and  the  1990 
Convention,  to  which  Articles  1,2  and,  to  a  lesser  extent,  Article  3,  refer.  The  Commission 
limits  the  scope  of  this  report  to  the  withdrawal  of  reservations  without  entering  into  the 
substance  of  the  obligations  deriving  from  Articles  2  and  6  of  the  1990  Convention. 
Therefore,  specially  as  regards  Article  2,  the  report  will  not  try  to  assess  if  the  offences 
referred to in Article 6(1)(a) and (b) of the Convention are reflected in national legislation, but 
only if the national provisions that allegedly comply with such Articles set up the maximum 
minimum penalties that the Framework Decision requires. 

6 

7 

8 

9 

See  relevant  case  law  on  the  implementation  of  directives  for  instance  Case  29/84  Commission  v. 
Germany [1985] ECR 1661 at 1673. 
See substantial case law on the implementation of directives, for example : Case 52/75 Commission v. 
Italy  [1976]  ECR  277  at  284,  See,  generally,  the  Commission  annual  reports  on  monitoring  the 
application of Community law, for instance COM (2001) 309 final.  
See  PJG  Kapteyn  and  P.  Verloren  van  Themaat  ‘Introduction  to  the  Law  of  the  European 
Communities’, third edition, 1998, p. 328. 
Article 36 (2) Treaty on European Union. 

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Finally, it must be noted that, since the entry into force of the Framework Decision, further 
consideration has been given to the issue of confiscation of the proceeds of crime and to the 
enforcement  of  freezing  and  confiscation  orders,  from  the  new  view  point  of  mutual 
recognition. Some of the provisions of this Framework Decision, (especially Article 4 which 
refers to the processing of requests for mutual assistance), must therefore be considered in the 
light of the new and future instruments. 

1.3. 

General purpose of the Framework-Decision 

On  3  December  1998,  the  Council  adopted  a  Joint  Action  on  money  laundering,  the 
identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds 
from crime  10. The Tampere European Council, in October 1999, asked for further measures 
to  make  action  against  money  laundering  more  effective,  such  as  the  approximation  of 
definitions,  incriminations  and  sanctions  or  full  mutual  legal  assistance  in  the  investigation 
and prosecution of this type of crime. 

Thus,  the  general  purpose  of  this  framework  decision  was  to  respond  to  the  Conclusions  of 
the Tampere Council by: 

– 

– 

Using  this  instrument  to  give  a  more  binding  form  to  some  of  Member  States’ 
commitments under the Joint Action, (specially as regards reservations in respect of 
the  1990  Convention,  value  confiscation  and  processing  of  requests  for  mutual 
assistance); and 

Making further progress in some areas as compared with the 1998 Joint Action, (for 
example, by introducing a minimum harmonisation of penalties). 

1.4. 

General purpose of the report 

This report should enable the Council to assess the extent to which the Member States have 
taken the necessary measures to comply with the Framework Decision. 

2. 

ANALYSIS  OF  NATIONAL  MEASURES  TAKEN  TO  COMPLY  WITH  THE 
FRAMEWORK DECISION 

2.1. 

Article 1: Reservations in respect of the 1990 Convention 

Considering  the  commitment  of  Member  States  to  the  principles  of  the  1990  Convention, 
Article 1(1) of the 1998 Joint Action already invited Member States to ratify the Convention 
in  a  uniform  manner.  Article  1  of  the  Framework  Decision  replaced  this  Article  while 
introducing some drafting adjustments to make the wording appropriate for the new binding 
nature  of  the  provision.  Still,  the  aim  of  the  Article  is  to  limit  Member  State’s  reservations 
regarding  confiscation  of  the  instrumentalities  and  proceeds  of  crime  (Art.2  of  the  1990 
Convention) and the incrimination of laundering offences (Art.6 of the 1990 Convention). 

This  implies,  on  the  one  hand,  the  obligation  to  expand  the  applicability  of  confiscation 
measures to a wide scope of offences, with a limited possibility to exclude confiscation of the 
proceeds  of  tax  offences.  On  the  other  hand,  it  means  that  Member  States  have  committed 
themselves  to  make  all  serious  offences,  as  defined  in  the  Framework  Decision,  predicate 

10 

OJ L333, 9.12.1998, p.1. 

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offences for the purpose of the criminalisation of money laundering. This trend of widening 
the  definition  of  money  laundering  by  broadening  the  range  of  underlying  offences  is  also 
reflected  in  the  Directive  2001/97/EC  of  the  European  Parliament  and  of  the  Council  of  4 
December  2001  amending  Council  Directive  91/308/EEC  on  prevention  of  the  use  of  the 
financial  system  for  the  purpose  of  money  laundering11.  This  covers  the  laundering  of 
proceeds  from  a  wide  range  of  “serious  crimes”,  that  however  are  more  limited  than  those 
defined  in  the  Framework  Decision.  Alignment  on  the  Framework  Decision’s  definition  of 
“serious  crimes”  is  envisaged  in  the  Directive  by  15  December  2004,  on  the  basis  of  a 
Commission proposal12. 

Only some Member States (Denmark, Ireland, Spain, Netherlands and United Kingdom) have 
actually  provided  the  Commission  with  the  ratification  instruments  or  the  text  of  the 
reservations.  In  this  particular  case,  however,  it  has  been  possible  for  the  Commission  to 
gather such information from a public and reliable source as is the online Treaty Office of the 
Council of Europe13. Therefore, the analysis of national measures taken to comply with this 
Article, will also cover, as far as possible, those Member States from which the Commission 
has received no information. 

2.1.1.  Article 1 Paragraph (a): Reservations under Article 2 of the 1990 Convention 

According to this paragraph, Member States must take the necessary steps not to make or to 
uphold  reservations  to  Article  2  of  the  1990  Convention14,  “in  so  far  as  the  offence  is 
punishable  by  deprivation  of  liberty  or  a  detention  order  for  a  maximum  of  more  than  one 
year”. The same paragraph establishes an exception by allowing the retention of reservations 
on this Article “in respect of the confiscation of the proceeds from tax offences for the sole 
purpose  of  their  being  able  to  confiscate  such  proceeds,  both  nationally  and  through 
international  cooperation,  under  national,  Community  and  international  tax-debt  recovery 
legislation.” 

From the information provided to or gathered by the Commission, it results that nine Member 
States  (Belgium,  Denmark,  Germany,  Spain,  France,  Italy,  Austria,  Portugal,  and  Finland) 
have never made a reservation in respect of this Article. One, (United Kingdom), withdrew an 
existing  reservation  on  16  September  1999.  The  remaining  five  (Greece,  Ireland, 
Luxembourg,  Netherlands,  and  Sweden)  still  uphold  reservations,  so  whether  they  meet  the 
terms of the framework decision must be further examined. 

On 22 June 1999, Greece introduced a reservation that limits the application of article 2 to a 
list  of  22  types  of  offences15.  Such  limitation  not  being  linked  to  the  exceptions  set  out  in 

11 
12 
13 
14 

15 

OJ L344, 28.12.2001, p.76 
See Directive 2001/97/EC Article 1(1)(E) 
http://conventions.coe.int 
Art.2 Confiscation measures (1) Each Party shall adopt such legislative and other measures as may be 
necessary  to  enable  it  to  confiscate  instrumentalities  and  proceeds  or  property  the  value  of  which 
corresponds  to  such  proceeds.  (2)  Each  Party  may,  at  the  time  of  signature  or  when  depositing  its 
instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary 
General  of  the  Council  of  Europe,  declare  that  paragraph  1  of  this  article  applies  only  to  offences  or 
categories of offences specified in such declaration. 
Greece: Reservation contained in a Note Verbale handed over to the Secretary General at the time of 
deposit of the instrument of ratification, on 22 June 1999 - Or. Fr.  
Article 2, paragraph 1, of the Convention shall apply only to the following offences: 
1. Crimes provided for in the law on fight against the spread of drugs: 

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1.a. Importing drugs into the country, exporting drugs out of the country or transiting drugs through the 
country. 
1.b) Selling, purchasing, offering, making available or distributing to third parties by any means, storing 
or keeping drugs, or acting as intermediary in the commission of any of these offences. 
1.c)  Introducing  drugs  or  contriving  to  facilitate  their  introduction  into  camps,  police  cells  for  all 
categories of under-age prisoners, collective workplaces or housing, hospitals or health centres. 
1.d)  Contriving  in  any  manner  to  mix  drugs  with  food  products,  drinks  or  other  items  intended  for 
human consumption or that are likely to be consumed. 
1.e) Preparing articles belonging to the category of controlled drugs or soporific substances, or illegally 
importing,  supplying,  producing,  preparing,  selling,  making  available,  transporting,  possessing  or 
distributing precursor substances or apparatus or equipment, where it is known that they are used or will 
be  used  for  the  purposes  of  illegal  production,  cultivation  or  preparation  of  drugs,  or,  generally,  for 
purposes other than that which originally justified the import, export, transport or processing of these 
precursors. 
1.f) Cultivating or harvesting any plant of the Indian hemp family, the opium poppy, any plant species 
of the Brazilwood family, or any other plant from which narcotic substances are derived. 
1.g)  Possessing  or  transporting  drugs  by  whatever  manner  or  means,  whether  within  the  country''s 
territory, by navigating along the territorial zone or crossing territorial waters, or by flying in Greek air 
space. 
1.h) Knowingly  sending or  receiving parcels,  samples  without  commercial  value  or  letters  containing 
any sort of drug, or authorising a third party to send or receive such items. 
1.i) Making available premises of any kind to a third party for the use of drugs, or communicating the 
address of a shop where drugs are systematically used, or being aware of such use as an employee of 
such a shop. 
1.j) Contributing by any means to the spread of drug use. 
1.k) Adulterating or selling adulterated articles from the list of controlled drugs. 
1.l)  Forging  a  medical  prescription,  falsifying  or  using  a  forged  or  falsified  prescription  in  order  to 
obtain narcotic substances for the purposes of trafficking in them. 
1.m)  Organising,  financing,  advising  or  supervising  the  commission  of  any  of  the  aforementioned 
offences in any manner or giving instructions or authorisation in respect of them. 
1.n)  Facilitating  or  concealing  the  commission  of  other  crimes  by  committing  the  above-mentioned 
offences. 
1.o) Commission of the above crimes by a person who deals with drugs in the course of his or her duties 
and, in particular, is responsible for their safekeeping or for prosecuting persons who have committed 
these crimes, or where the offence is linked to his or her functions. 
1.p)  Introducing  drugs  or  facilitating  their  introduction  or  trafficking  in  schools  at  any  level  and  in 
educational  establishments  or  other  educational  training  or  practical  instruction  units,  save  for  the 
purpose of a specific research or training programme. 
1.q)  Introducing  drugs  or  facilitating  their  introduction  or  trafficking  in  sports  premises,  camping 
grounds,  orphanages,  institutions  or  premises  intended  for  the  provision  of  social  services  or  for 
accommodation of the armed forces, or premises where pupils or students meet for educational, sports 
or social activities. 
1.r)  Selling,  making  available  or  distributing  drugs  to  third  parties  by  whatever  means,  in  premises 
directly adjoining the above-mentioned premises, or acting as an intermediary in the commission of any 
of these offences. 
1.s) The issuing of a prescription for the supply of drugs by a doctor who is aware that there is no real, 
precise medical indication, or supply by a physician of medicines containing narcotics in one form or 
another, in the knowledge that they will be used for the purpose of preparing drugs. 
1.t)  Supply  of  drugs  without  the  legally  required  medical  prescription  or  on  the  basis  of  an  invalid 
prescription or in amounts exceeding that prescribed, by a pharmacist or in general by a pharmaceutical 
trader, the manager or employee of a pharmacy or another person in the pharmacy. 
1.u) Supplying substances intended to act as substitutes for dependency-inducing drugs. 
1.v) Committing the above-mentioned crimes repeatedly or habitually or by way of an occupation, or 
acting  in  a  manner  intended  to  encourage  drug  use  by  under-age  persons,  or  using  weapons  in 
committing the above-mentioned crimes or for the purpose of enabling the perpetrator to escape. 
1.x)  Inciting  or  inviting  a  third  party  to  use  drugs  illegally,  advertising  them,  supplying  information 
concerning  their  manufacture  or  supply  for  the  purpose  of  spreading  their  use,  or  assisting  the 
commission of the aforementioned crimes. 

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Article  1(a),  the  Commission  must  conclude  that  the  reservation  does  not  comply  with  the 
Framework  Decision,  and  should  therefore  be  withdrawn  or  reformulated.  This  is  also  the 
case  of  Luxembourg16,  which  limits  the  application  of  Article  2  of  the  1990  Convention  to 
some specific offences. 

Sweden’s  reservation  to  Article  217  is  more  limited  in  scope,  as  confiscation  applies  to 
offences ruled by the Penal Code, the Narcotic Drugs Penal Act or the Act Prohibiting Certain 
Doping Substances. Swedish legislation on Smuggling was also replaced on 1 January 2001 
to  provide  for  the  forfeiture  of  related  proceeds.18  Nevertheless,  the  Swedish  authorities  are 
aware of the possible need to further restrict this declaration and subsequently introduce new 

2. Crimes covered by Article 15 (1) of Law No. 2168/93, on "weapons, munitions… etc": importing, 
possessing, producing, processing, assembling, dealing in, delivering, supplying or transporting military 
rifles, automatic machine guns, pistols or other articles of military hardware, for the purposes of making 
them  available  to  a  third  party  in  order  to  commit  a  crime,  or  for  the  purpose  of  illegally  supplying 
groups,  organisations,  associations or  unions  of  persons,  or  receiving,  concealing  or  accepting  in  any 
way the above objects for the same purposes. 
3. Banditry. 
4. Blackmail. 
5. Abduction. 
6. Stealing particularly valuable goods, or aggravated theft. 
7. Misappropriating a particularly valuable object, or misappropriation giving rise to an abuse of trust. 
8.  Fraud,  if  resulting  in  particularly  heavy  losses,  or  if  the  offender  carries  out  fraudulent  activities 
habitually or occupationally, or if the circumstances in which the offence was committed show that the 
perpetrator''s character is especially dangerous. 
9. Illegal trade in antique objects. 
10. Theft of a particularly valuable cargo. 
11.  Acting  as  an  intermediary  by  receiving  consideration  for  the  removal  of  tissues  or  organs,  or 
acquiring tissues or organs with the intention of reselling them. 
12.  Economic  crimes  and  offences  against  the  State  or  legal  entities  in  the  public  sector  in  the  broad 
sense. 
13. Aggravated smuggling. 
14. Violations of the laws on ionising radiation.  
15. Procuring. 
16. Breaches of the laws on games of chance or other games. 
17. Corruption. 
18. Usury. 
19. Illegal immigration. 
20. Smuggling of nuclear materials. 
21.  Corruption  of  a  public  official  from  another  country  (ratification  of  the  OECD  Convention  for 
combating the bribery of foreign public officials in international business transactions). 
22.a) Passive or active corruption of a public official. 
b) Fraudulent actions prejudicial to the financial interests of the European Communities. 
c)  Fabricating  and  delivering  false  declarations  or  documents  (ratification-  application  of  the 
Convention  on  the  protection  of  the  European  Communities''  financial  interests  and  appended 
Protocols). 
The Greek Government reserves the right to add other categories of criminal activities.  
In  accordance  with  Article  2,  paragraph  2,  and  Article  6,  paragraph  4,  of  the  Convention,  Article  2, 
paragraph 1, and Article 6, paragraph 1, of the Convention shall apply only to the offences mentioned in 
Article 8-1, item 1), of the Law of 19 February 1973 concerning the sale of medicinal substances and 
the fight against drug addiction, and in Article 506-1, item 1), of the Penal Code. 
In  accordance  with  Article  2,  paragraph  2,  Sweden  declares  that,  for  Sweden''s  part,  the  provision  in 
Article 2, paragraph 1, shall be applicable to such proceeds of crime and such instrumentalities which 
have been used in the commission of an offence as may be confiscated under the provisions of the Penal 
Code,  the  Narcotic  Drugs  Penal  Act  (1968:64)  or  the  Act  Prohibiting  Certain  Doping  Substances 
(1991:1969). Regarding other offences, Sweden reserves the right, where justified in view of the type of 
offence, to prescribe confiscation to a more limited extent. 
Law on Penalties for Smuggling(2000:1225) 

9 

16 

17 

18 

 
 
  
 
                                                                                                                                                         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
legislation. The Swedish Ministry of Justice is currently analysing the recommendations of a 
special Confiscation Committee that have not yet given rise to any legislation. 

The  Irish  reservation  limits  the  application  of  Article  219,  to  drug  trafficking  offences  and 
other  offences  triable  on  indictment.  In  the  information  provided,  Ireland  asserted  the  latter 
are offences punishable by deprivation of liberty or a detention order for a maximum of more 
than  one  year.  In  that  case  the  reservation  would  come  within  the  terms  of  the  exemption 
provided by Article 1 (a) of the Framework Decision. 

Similarly,  the  reservation  still  upheld  by  the  Netherlands20  is  covered  by  the  exemption 
provided by the Framework Decision in respect of the confiscation of the proceeds from tax 
offences.  The  Explanatory  Memorandum  of  the  Law  of  10  March  1993  authorising  the 
ratification  of  the  1990  Convention  gives  the  reasons  for  this  reservation,  which  are  also  in 
line with the purpose of the exemption, as described in the Framework Decision. 

In  conclusion,  a  large  majority  of  Member  States  (twelve)  comply  with  Article  1(a)  of  the 
Framework  Decision,  whereas  the  other  three  (Greece,  Luxembourg  and  probably  Sweden) 
will  have  to  withdraw  or  redraft  their  reservations  to  Article  2  of  the  1990  Convention,  in 
order to meet the obligation arising for them from Article 1(a) of the Framework Decision. 

2.1.2.  Article 1 Paragraph (b): Reservations under Article 6 of the 1990 Convention 

According to this paragraph, Member States must take the necessary steps not to make or to 
uphold reservations to Article 6 of the 1990 Convention21, “in so far as serious offences are 

19 

20 

21 

Each Party shall adopt such legislative and other measures as may be necessary to establish as 

In accordance with Article 2, paragraph 2, Ireland declares that Article 2, paragraph 1, shall apply only 
to  drug  trafficking  offences  as  defined  in  its  domestic  legislation  and  other  offences  triable  on 
indictment. 
In accordance with Article 2, paragraph 2, of the Convention, the Kingdom of the Netherlands declares 
that  it  reserves  the  right  not  to  apply  Article  2,  paragraph  1,  of  the  Convention  with  regard  to  the 
confiscation of the proceeds from offences punishable under legislation on taxation or on customs and 
excise. 
Article 6 – Laundering offences 
1 
offences under its domestic law, when committed intentionally: 
a 
the conversion or transfer of property, knowing that such property is proceeds, for the purpose 
of concealing or disguising the illicit origin of the property or of assisting any person who is involved in 
the commission of the predicate offence to evade the legal consequences of his actions 
b 
the concealment or disguise of the true nature, source, location, disposition, movement, rights 
with respect to, or ownership of, property, knowing that such property is proceeds; and, subject to its 
constitutional principles and the basic concepts of its legal system; 
c 
property was proceeds; 
participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, 
d 
facilitating and counselling the commission of any of the offences established in accordance with this 
article. 
2 
a 
Party; 
b 
committed the predicate offence; 
c 
may be inferred from objective, factual circumstances. 
3 
Each  Party  may  adopt  such  measures  as  it  considers  necessary  to  establish  also  as  offences 
under its domestic law all or some of the acts referred to in paragraph 1 of this article, in any or all of 
the following cases where the offender: 

For the purposes of implementing or applying paragraph 1 of this article: 
it shall not matter whether the predicate offence was subject to the criminal jurisdiction of the 

knowledge, intent or purpose required as an element of an offence set forth in that paragraph 

the  acquisition,  possession  or  use  of  property,  knowing,  at  the  time  of  receipt,  that  such 

it may be provided that the offences set forth in that paragraph do not apply to the persons who 

10 

 
 
  
 
                                                 
 
 
 
 
 
 
 
 
 
 
concerned.  Such  offences  shall  in  any  event  include  offences  which  are  punishable  by 
deprivation of liberty or a detention order for 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  for  a  minimum  of  more  than  six 
months”. 

From the information provided to or gathered by the Commission, it results that five Member 
States  (Belgium,  Spain,  France,  Ireland,  and  Finland)  have  never  made  a  reservation  in 
respect of this Article. Nevertheless, as pointed out in the information provided by Spain, the 
current  definition  of  money  laundering  in  the  Spanish  Criminal  Code  requires  the  predicate 
offence  to  be  a  “serious  offence”,  that  is,  according  to  Spanish  legislation,  an  offence 
punished  with  more  than  three  years’  imprisonment.  Spain  is  currently  in  the  process  of 
amending its Criminal Code in order to suppress this requirement and fully comply with the 
Framework Decision. 

Three  Member  States  have  withdrawn  existing  reservations.  Denmark  withdrew  its 
reservation with effect from the 6th July 2001. At the same time, a general provision that made 
“receiving”  punishable  in  respect  of  all  offences  was  introduced  in  the  Danish  Penal  Code. 
Sweden  withdrew  its  reservation  with  effect  from  the  1st  July  1999,  whilst  amending 
legislation on money laundering to extend the range of predicate offences and introducing a 
new  crime  of  “receiving  stolen  money”.  Finally,  with  effect  from  the  1st  September  1995, 
United  Kingdom  withdrew  the  reservation  that  limited  the  application  of  article  6(1)  of  the 
Convention to drug trafficking offences. 

The  remaining  seven  (Germany,  Greece,  Italy,  Luxembourg,  Netherlands,  Austria,  and 
Portugal) still uphold reservations, so whether they meet the terms of the Framework Decision 
must be further examined. 

However, out of these seven Member States, only two (Netherlands and Germany) provided 
the  Commission  with  specific  information  on  this  issue.  The  reservation  upheld  by  the 
Netherlands22  complies  with  the  Framework  Decision.  It  derives  from  the  reservation  that 
Article  6  of  the  Convention  applies  to  “crimes”,  which,  in  internal  legislation,  meet  the 
definition of “serious offences” set in the Framework Decision. The same can be said of the 
reservation  upheld  by  Germany23,  as  the  Convention  applies  to  “crimes”,  defined  in  Article 

22 

23 

ought to have assumed that the property was proceeds; 
a 
acted for the purpose of making profit; 
b 
acted for the purpose of promoting the carrying on of further criminal activity. 
c 
4 
Each  Party  may,  at  the  time  of  signature  or  when  depositing  its  instrument  of  ratification, 
acceptance, approval or accession, by declaration addressed to the Secretary General of the Council of 
Europe declare that paragraph 1 of this article applies only to predicate offences or categories of such 
offences specified in such declaration. 
In accordance with Article 6, paragraph 4, of the Convention, the Kingdom of the Netherlands declares 
that Article 6, paragraph 1, of the Convention will only be applied to predicate offences that qualify as 
“misdrijven” (crimes) under the domestic law of the Netherlands (the Kingdom in Europe). 
Article 6, paragraph 1, applies only to the following predicate offences or categories of such offences: 
crimes  (Article  12,  paragraph  1,  of  the  German  Criminal  Code  -  StGB),  ie  offences  punishable  with 
imprisonment of not less than one year; 
misdemeanours of receiving bribes (Article 332 paragraph 1, also in combination with paragraph 3 of 
the StGB) and bribery (Article 334 of the StGB); 
misdemeanours  under  Article  29,  paragraph  1,  sentence  1,  No.  1,  of 
the  Narcotics  Act 
(Betäubungsmittelgesetz)  or  under  Article  29,  paragraph  1,  No.  1,  of  the  Raw  Materials  Surveillance 
Act (Grundstoffüberwachungsgesetz); 

11 

 
 
  
 
                                                                                                                                                         
 
 
 
 
 
 
 
12(1)  of  the  German  Criminal  Code  as  offences  punishable  with  imprisonment  of  not  less 
than one year. 

As regards the rest of the aforementioned Member States, Austria made a reservation24 that 
limits  the  application  of  Article  6  of  the  1990  Convention  to  predicate  offences  considered 
“crimes” under internal legislation, that is, to offences punishable with life imprisonment or 
with  more  than  three  years’  imprisonment25.  Therefore,  it  does  not  meet  the  terms  of  the 
Framework  Decision,  which  sets  a  lower  limit  of  one  years’  imprisonment  to  consider  an 
offence  as  “serious”.  Greece  also  entered  a  reservation  by  which  Article  6  (1)  of  the  1990 
Convention  shall  only  apply  to  a  list  of  offences,  identical  to  those  listed  in  the  previous 
reservation to Article 226. The limited number of the listed offences and the lack of a generic 
clause to ensure that the reservation is not maintained in respect of “serious offences”, imply 
that this reservation does not meet the required terms. This is also applicable to Luxembourg27 
and  Portugal28,  which  limit  the  scope  of  predicate  offences.  Finally,  Italy  introduced  a 
reservation by which Article 6 applies to all “delitti” excluding those that are not deliberate29, 
which seems to comply with the Framework Decision, although Italy did not provide specific 
information on this issue. 

In  conclusion,  eight  Member  States  (Belgium,  Denmark,  Spain,  France,  Ireland,  Finland, 
Sweden  and  United  Kingdom)  have  not  made  or  upheld  reservations  to  Article  6  of  the 

misdemeanours of organised smuggling committed by a gang with the use of violence (Article 373 of 
the German Tax Code - Abgabenordnung) or with the handling for gain of property obtained through 
tax  fraud  (Article  374  of  the  Tax  Code),  each  in  combination  with  Article  12,  paragraph  1  of  the 
Common  Market  Organisations  Implementation  Act  (Gesetz  zur  Durchführung  der  Gemeinsamen 
Marktorganisationen); 
misdemeanours  committed  for  gain  or  by  a  member  of  a  gang  formed  for  the  purpose  of  repeatedly 
carrying out one of the following acts constituting the elements of one of the following offences: traffic 
in human beings (Article 180b of the StGB), procuring (Article 181a of the StGB), theft (Article 242 of 
the StGB), embezzlement (Article 246 of the StGB), extortion (Article 253 of the StGB), handling of 
stolen goods (Article 259 of the StGB), fraud (Article 263 of the StGB), computer fraud (Article 263a 
of the StGB), fraudulently obtaining subsidies (Article 264 of the StGB), breach of trust (Article 266 of 
the StGB), falsification of documents (Article 267 of the StGB), falsification of evidence (Article 269 
of the StGB), illegal organisation of gambling (Article 284 of the StGB), illegal handling of dangerous 
waste (Article 326, paragraphs 1, 2 and 4, of the StGB), illegal handling of radioactive substances or 
other dangerous substances and goods (Article 328, paragraphs 1, 2 and 4, of the StGB), incitement to 
make  an  improper  application  for  asylum  (Section  84  of  the  Asylum  Procedure  Act  -  AsylVfG), 
smuggling of aliens (Section 92a of the Aliens Act - AuslG); 
misdemeanours committed by a member of a criminal organisation (Article 129 of the StGB). 
(Misdemeanours - Vergehen - are offences for which the minimum penalty is imprisonment of less than 
one year or a fine - cf Article 12, paragraph 2, of the StGB). 
The Republic of Austria declares in accordance with Article 6, paragraph 4, that Article 6, paragraph 1, 
will apply only to predicate offences which are crimes (“Verbrechen”) under Austrian penal legislation 
(paragraph 17 of the Austrian Penal Code). 
Cf paragraph 17 (1) of the Penal Code 
Cf note 14 
Cf note 15 and Article 506-1 of the Penal Code. 
For the purposes of Article 6 of the Convention, punishment of laundering shall be limited to cases of 
drug-trafficking as well as an illegal activity relating to terrorism, arms trafficking, extortion, abduction, 
incitement to prostitution (Lenocínio), corruption, embezzlement (Peculato) and financial participation 
in  a  business,  harmful  administration  of  a  public  sector  business  unit,  fraudulent  procurement  or 
conversion  of  a  subsidy,  grant  or  loan,  economic  and  financial  offences  committed  in  an  organised 
manner  using  information  technology,  and  economic  and  financial  offences  committed  on  an 
international scale and involving any kind of co-participation, as defined in domestic legislation; 
Under  the  terms  of  Article  6,  paragraph  4,  of  the  Convention,  the  Italian  Republic  declares  that 
paragraph 1 of this article applies only to predicate offences which constitute "delitti" under Italian law, 
excluding "delitti" which are not deliberate. 

12 

24 

25 
26 
27 
28 

29 

 
 
  
 
                                                                                                                                                         
 
 
 
 
Convention.  One  of  them,  Spain,  is  however  still  in  the  process  of  amending  its  national 
provisions  to  fully  comply  in  substance  with  the  Framework  Decision.  As  regards  the 
Member  States  that  still  uphold  reservations,  the  reservations  made  by  Netherlands  and 
Germany  comply  with  the  Framework  Decision.  Finally,  it  seems  the  reservation  made  by 
Italy  might  also  comply  with  the  Framework  Decision,  whereas  those  made  by  Austria, 
Greece,  Luxembourg  and  Portugal  do  not  seem  to  meet  the  required  terms.  The  lack  of 
information from these Member States prevents the Commission from being more conclusive 
at this point. 

2.2. 

Article 2: Penalties 

Article  2  of  the  Framework  Decision30,  for  which  there  was  no  precedent  in  the  1998  Joint 
Action,  aims  at  ensuring  a  minimum  harmonisation  of  penalties  for  some  of  the  money 
laundering  offences  established  in  the  1990  Convention.  It  is  not  the  aim  of  this  report  to 
assess  the  way  Member  States  have  implemented  the  Convention,  but  to  check  if  the 
minimum-maximum  sanction  established  in  the  Framework  Decision  has  been  respected. 
Nonetheless, it must be kept in mind that Article 2 covers the offences referred to in Article 
6(1)(a) and (b) of the 1990 Convention “as they result from the Article 1(b) of this framework 
Decision”. Therefore, what was said in the previous section must also be taken into account. 

In  a  broad  sense  it  can  be  said  that  most  Member  States  have  succeeded  in  meeting  the 
obligation  imposed  by  Article  2:  money  laundering  offences  to  be  punishable  by  terms  of 
imprisonment, the maximum being not less than 4 years. However, the implementation itself 
is quite heterogeneous, and in this sense, two basic systems can be distinguished: those that 
fully comply with this requirement, and those that comply with the required penalty only in 
cases of aggravated or serious money laundering. 

The  issue  of  approximation  of  penalties  is  indeed  a  difficult  one,  and  Article  2  gives  some 
discretion to Member States by explicitly referring to consistency to their system of penalties 
and  by  defining  the  required  penalty  as  a  minimum-maximum.  However  it  seems  clear  that 
the last system allows for a wider margin of judicial discretion, to assess the seriousness of 
the  offence  or  to  decide  whether  to  impose  deprivation.  The  practice  of  sentencing  by  the 
judiciary  in  these  Member  States  will  have  an  important  impact  in  the  practical 
implementation of the minimum-maximum penalty required in Article 2. 

As regards Member States that fully comply with this provision, in Belgium, Article 505 of 
the  Criminal  Code  punishes  money  laundering  with  a  maximum  of  5  years’  imprisonment 
(the minimum being 15 days) together with a fine, or just one of the two sanctions. In France, 
the  basic  conduct  of  money  laundering  is  punished  with  5  years’  imprisonment  and  a  fine. 
Both penalties can be raised in case of aggravated money laundering. Germany provides for a 
penalty  of  imprisonment  from  3  months  to  5  years.  The  maximum  rises  to  10  years  in 
especially serious cases, amongst which is included as a general rule that the perpetrator acts 
professionally  or  as  a  member  of  an  organisation  formed  for  the  continued  commission  of 
money laundering. The Spanish Criminal Code punishes money laundering with deprivation 
of liberty for from 6 months to 6 years and a fine (proportional to the value of the proceeds). 
As previously mentioned, legislation to extend the scope of predicate offences as required by 
the Framework Decision is still in process of national adoption. In Ireland, a person guilty of 

30 

Article  2  Penalties:  “Each  Member  State  shall  take  the  necessary  steps  consistent  with  its  system  of 
penalties  to  ensure  that  the  offences,  referred  to  in Article  6(1)(a)  and  (b) of  the  1990  convention,  as 
they result from the Article 1(b) of this framework Decision, are punishable by deprivation of liberty for 
a maximum of not less than 4 years”. 

13 

 
 
  
 
                                                 
money laundering shall be liable, on conviction on indictment, to a fine or to imprisonment 
for a term not exceeding 14 years or to both. Luxembourg punishes money laundering with 
imprisonment between 1 to 5 years and a fine or just one of those penalties. The maximum 
can  be  doubled  in  case  of  recidivism  and  is  raised  to  20  years  if  the  conduct  implies 
participating  in  a  criminal  organisation.  The  Netherlands  punishes  basic  money  laundering 
with  a  maximum  of  4  years’  imprisonment  or,  alternatively,  with  a  fine.  In  the  United 
Kingdom,  a  person  guilty  of  a  “money  laundering”  offence  is  liable  on  conviction  on 
indictment to imprisonment for a term not exceeding 14 years, or to a fine, or both. 

Denmark, Finland and Sweden also meet the terms of Article 2 by punishing “serious” money 
laundering  with  deprivation  of  liberty  for  a  maximum  of  not  less  than  4  years.  In  Denmark 
(where there is no “nomen iuris” for money laundering, which is punished as receiving) only 
if  the  act  of  receiving  is  of  a  particularly  serious  nature  or  when  receiving  has  been  for 
commercial gain is the penalty a fine or imprisonment for up to 6 years. The basic offence is 
punished  with  a  fine  or  with  imprisonment  for  no  more  than  18  months.  By  means  of  the 
Money  Laundering  Offences  Reform  Act  N°61/2003,  which  entered  into  force  on  31  April 
2003,  Finland  has  introduced  a  new  specific  offence  of  money  laundering  (which  was 
previously punishable as an offence of concealment). It has also raised the maximum penalty 
from  4  to  6  years’  imprisonment  for  cases  of  “aggravated”  money  laundering.  The  basic 
offence,  however,  is  punished  with  a  fine  or  with  imprisonment  for  at  most  2  years.  In  the 
Swedish Criminal Code, money-laundering acts are punishable as offences of “receiving” or 
“receiving  stolen  money”.  In  both  cases  the  maximum  penalty  is  of  2  years’  imprisonment, 
but if the offence is considered as “gross” or “serious” the penalty is imprisonment for at least 
6 months and at most 6 years. However, no indication was given to explain why a four years 
level as a minimum for the maximum penalty would be inconsistent with the Danish, Finnish 
and Swedish system of penalties if provided for all cases. 

As  a  conclusion,  the  eleven  Member  States  that  have  provided  the  Commission  with 
information  on  the  implementation  of  this  Article  (Belgium,  Denmark,  Germany,  Spain, 
France, Ireland, Luxembourg, Netherlands, Finland, Sweden and the United Kingdom) meet 
the  terms  of  the  Framework-decision.  Greece  and  Italy  did  not  notify  the  provisions 
concerning this Article. 

2.3. 

Article 3: Value confiscation 

A  preliminary  observation  can  be  made  as  to  the  two  basic  systems  of  confiscation  of 
proceeds:  property  confiscation,  that  is,  the  confiscation  of  specific  items  of  property  that 
constitute  the  proceeds  of  an  offence;  and  value  confiscation,  which  consists  on  the 
requirement to pay a sum of money based on the assessment of the value of the proceeds. 

The aim of Article 3 of the Framework Decision31, based on previous Article 1(2) of the Joint 
Action,  is  to  introduce  value  confiscation,  at  least  as  an  alternative  measure,  also  in  those 

31 

Article 3 Value confiscation: 
Each  Member State  shall  take  the  necessary  steps  to  ensure  that  its  legislation  and procedures on  the 
confiscation  of  the  proceeds  of  crime  also  allow,  at  least  in  cases  where  these  proceeds  can  not  be 
seized, for the confiscation of 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. However, Member States may exclude the 
confiscation of property the value of which corresponds to the proceeds of crime in cases in which that 
value would be less than EUR 4 000. 
The words ‘property’, ‘proceeds’ and ‘confiscation’ shall have the same meaning as in Article 1 of the 
1990 Convention. 

14 

 
 
  
 
                                                 
 
 
Member States with a property-based confiscation system. Member States that follow a value-
based system would a fortiori meet this requirement. This possibility must also be provided in 
proceedings instituted at the request of another Member State. 

None  of  the  Member  States  referred  explicitly  to  the  provisions  that  might  have  transposed 
the possibility to exclude value confiscation when the assessed value of the proceeds is less 
than  4000  Euro,  as  allowed  by  the  Framework  Decision.  Therefore  it  cannot  be  ascertained 
whether  this  exemption  might  be  applied,  or  whether  the  implicit  limitations  that  seem  to 
appear in some of the provided legal texts32 exceed or not what is allowed in this framework 
Decision. 

2.3.1.  Domestic proceedings: 

From the information provided it derives that value confiscation of the proceeds of crime is 
possible, to different extents, in the domestic proceedings of nine Member States (Belgium, 
Denmark,  Germany,  France,  Ireland,  Netherlands,  Finland,  Sweden  and  United  Kingdom). 
Greece  did  not  forward  any  transposing  provision.  Spain  will  introduce  this  possibility  by 
means of a draft bill that has not yet entered into force. In Luxembourg value confiscation is 
currently  limited  to  the  proceeds  of  certain  offences  and  will  be  extended  through  new 
legislation,  not  yet  adopted.  This  also  appears  to  be  the  case  of  Italy,  that  has  forwarded 
existing and draft provisions, which provide for value confiscation in relation to certain types 
of offences. 

Belgium  provides  for  value  confiscation  when  criminal  proceeds  can  not  be  found  in  the 
sentenced person’s estate. In this case the judge shall proceed with their monetary evaluation 
and the confiscation will concern an equivalent sum of money. 

In  Denmark  the  proceeds  of  crime  or  an  amount  of  money  equal  to  their  value  can  be 
confiscated in part or full. If the information necessary in order to establish the size of the sum 
is  lacking,  an  amount  deemed  to  correspond  to  the  proceeds  gained  can  be  confiscated. 
Moreover full or partial confiscation of assets belonging to a person who is found guilty of a 
crime can be made when the offence is of such nature that it can yield considerable proceeds 
and  is  punished  with  6  years’  imprisonment  or  more.  In  this  case,  there  is  a  reversal  of  the 
burden of proof as regards the licit origin of the assets, and value confiscation is also allowed. 

In  Germany,  the  proceeds  from  crime  are  obligatorily  forfeited.  Value  confiscation  applies 
when the forfeiture of a particular object, acquired as a result of an offence, is impossible, in 
which case the court shall order the forfeiture of a sum of money that corresponds to the value 
of that which was acquired. 

Spain  follows  a  property-based  confiscation  system  that  does  not  provide  for  value 
confiscation. However, Spain is currently in the process of adopting new legislation in order 
to  transpose  this  Article.  It  has  provided  the  text  of  a  new  provision  that  will  enable  to 
confiscate  any  other  property  belonging  to  the  convicted  person,  the  value  of  which 
corresponds to the proceeds, if for any circumstance confiscation of the proceeds of crime is 
not possible. 

32 

For example, cf. Section 10 chapter 10 Finnish Criminal Code (“Forfeiture need not be ordered if: (1) 
the  proceeds  of  crime  are,  or  the  value  of  the  object  or  property  is,  insignificant.”)  or  Article  10  of 
French  Law  96-392  that  allows  to  reject  an  external  request  “if  the  importance  of  the  case  does  not 
justify that the requested measure should be taken”) 

15 

 
 
  
 
                                                 
French  legislation  provides,  as  a  general  rule,  for  the  confiscation  of  the  proceeds  of  crime 
and for value confiscation. Under the Criminal Code when the goods to be confiscated cannot 
be seized or are no longer available, value confiscation shall be ordered. In particular, French 
legislation also provides for the confiscation of the proceeds of money laundering offences of 
which  either  natural  or  legal  persons  have  been  found  guilty.  In  the  first  case,  apart  from 
confiscation  of  the  proceeds  of  the  offence,  total  or  partial  confiscation  of  the  offender’s 
property can be imposed as a complementary penalty. 

Ireland allows for the confiscation of both the proceeds of drug trafficking and the proceeds 
of  other  offences.  In  the  first  case  the  amount  to  be  recovered  under  the  confiscation  order 
shall be equal to the amount assessed by the court to be the value of the defendants proceeds 
of drug trafficking. In the case of other offences the confiscation order will require the person 
concerned  to  pay  such  a  sum  as  the  court  thinks  fit.  To  make  a  confiscation  order  it  is 
necessary that the person has been convicted and has benefited from the offence. 

Italy  provides  for  obligatory  confiscation  of  the  proceeds  of  certain  crimes,  primarily 
corruption, committed by public officials against the Administration. Draft legislation not yet 
in force will amend the Criminal Code so as to introduce other special cases of compulsory 
forfeiture  and  value  confiscation.  However,  the  Commission  has  not  received  enough 
information to ascertain whether value confiscation is possible as a general rule, although this 
seems to be the case when it comes to cases of liability of legal persons.33 

In  Luxembourg  current  legislation  provides  for  value  confiscation  of  the  proceeds  of  drug 
trafficking  and  money  laundering  offences.  However, Luxembourg has provided a draft bill 
on  confiscation  that  will  generalise  the  possibility  of  value  confiscation.  Under  the  new 
provision  that  has  not  yet  entered  into  force,  when  goods  or  property  that  constitute  the 
proceeds of crime cannot be found confiscation shall apply to other goods of equivalent value 
pertaining to the sentenced person.  

In  the  Netherlands,  in  addition  to  confiscation  of  objects,  forfeiture  may  be  imposed  as  a 
separate penalty. The Criminal Code allows an obligation to pay a sum of money to the State 
to be imposed by a separate judicial decision on the convicted person in order to deprive that 
person  of  the  illegally  obtained  gains.  In  this  case  the  judge  shall  assess  the  amount  to  be 
confiscated. 

In  Finland,  as  a  general  rule,  the  proceeds  of  crime  shall  be  ordered  forfeit  to  the  State.  If 
there is no evidence to the amount of the proceeds of crime, or such evidence is difficult to 
present,  the  proceeds  shall  be  estimated  taking  into  account  the  nature  of  the  offence,  the 
extent of the criminal activity and the other circumstances. Instruments of crime  and, under 
some circumstances, objects or property produced, manufactured or brought about by way of 
an  offence,  or  to  which  an  offence  has  been  directed  may  also  be  forfeited.  In  this  case, 
alternative value confiscation is possible if the object or property cannot be ordered forfeit or 
have been hidden or are otherwise inaccessible. 

In Sweden, the proceeds of a crime, as defined in the Penal Code, shall be declared forfeited 
unless this is manifestly unreasonable. The same applies to anything a person has received as 
payment for costs incurred in conjunction with a crime, provided that such receipt constitutes 
an  offence  under  the  Criminal  Code.  The  value  of  the  article  received  may  be  declared 

33 

cf.Art.19 Legislative decree (Decreto Legislativo) n.231, 8 June 2001. 

16 

 
 
  
 
                                                 
forfeited  instead  of  the  article  itself.  Valued  confiscation  is  also  provided  in  relation  to 
offences covered by special penal laws on narcotics, smuggling and doping agents. 

In  United  Kingdom  the  applicable  provisions  are  those  contained  in  the  Proceeds  of  Crime 
Act  2002,  which  abolishes  the  previous  distinction  between  drug  trafficking  offences  and 
other  crimes.  The  new  confiscation  regime  is  based  on  the  concept  of  “criminal  lifestyle”, 
which  the  defendant  will  be  deemed  to  have  if  convicted  of  one  of  the  offences  listed  in 
Schedule  2  to  the  Act.  These  are  acquisitive  offences  such  as  drug  trafficking,  money 
laundering or counterfeiting. The defendant is also deemed to have a criminal lifestyle if he 
has been convicted of any other offence that forms part of a course of criminal activity, or that 
was committed over a period of at least 6 months, and has obtained relevant benefit of not less 
than  £5000.The  court  must  decide  whether  the  defendant  has  a  criminal  lifestyle  and  has 
benefited from his general criminal conduct or whether he does not have a criminal lifestyle 
but  has  benefited  from  his  particular  criminal  conduct.  In  both  cases  if  it  decides  that  the 
defendant has benefited from the conduct referred to it must decide the recoverable amount 
and make a confiscation order requiring him to pay that amount. The recoverable amount is 
defined as an amount equal to the defendant’s benefit from the conduct concerned unless the 
defendant  shows  that  the  available  amount  is  less  than  the  benefit.  But  if  the  defendant  is 
deemed  to  have  a  criminal  lifestyle,  then  all  his  property  (and  the  property  acquired  in  the 
previous six years) is assumed to represent his benefit from crime, and is liable to confiscation 
unless the defendant can show he acquired it legitimately. 

2.3.2.  External requests: 

All Member States have ratified the 1990 Convention, which obliges State Parties to adopt the 
necessary measures to enable them to comply with foreign requests for confiscation of sums 
of money corresponding to the value of proceeds. Responses provided to the Commission in 
relation to the implementation of Article 3, as regards external requests, have been in general 
quite  vague.  Most  Member  States  just  referred  in  general  to  internal  legislation  on 
international  co-operation  without  identifying  specific  provisions.  Greece  and  Spain  did  not 
forward specific information. However it appears that at least nine Member States (Belgium, 
Denmark,  France,  Ireland,  Italy,  Netherlands,  Finland,  Sweden  and  United  Kingdom)  are 
able,  to  different  extents,  to  comply  with  foreign  requests  for  value  confiscation.  Germany 
claimed it also complies with this requirement but provided scarce legal basis. Luxembourg 
provided the Commission with a draft bill that has not yet entered into force. 

Belgium forwarded the Law of May 20th 1997. This provides for the confiscation of a sum of 
money  corresponding  to  the  value  of  proceeds,  when  it  is  requested  by  a  foreign  State. 
However  it  is  necessary  that  the  requested  sum  does  not  exceed  the  assessed  value  of  the 
proceeds  and  that  the  requesting  State  declares  that  such  proceeds,  or  other  goods  through 
which it could recover its credit, do not exist in its territory. 

In  Denmark,  decisions  on  confiscation  covered  by  UN  convention  against  Illicit  Traffic  in 
Narcotic  Drugs  and  Psychotropic  Substances  and  the  European  Convention  on  Laundering, 
search,  seizure  and  Confiscation  of  the  Proceeds  of  Crime,  can  be  executed  according  to 
Chapter  3  of  the  1986  Act  on  International  Enforcement  of  Criminal  Law  when  the 
Convention’s conditions are fulfilled.  

Germany asserted that the same provisions apply to foreign and domestic requests and that the 
concept of confiscation applied in the provisions governing  international  judicial assistance, 
such  as  Section  48  of  the  Act  on  International  Judicial  Assistance  in  Criminal  Matters,  is 
interpreted  in  a  broad  sense  to  include  the  concept  of  replacement  of  value.  The 

17 

 
 
  
 
aforementioned section reads “Judicial assistance may be ordered for proceedings in criminal 
matters by way of enforcement of a penalty lawfully imposed abroad”. 

French  legislation,  specifically  enacted  to  comply  with  the  1990  Convention,  provides  for 
value  confiscation.  The  foreign  confiscation  order  to  be  enforced  can  refer  to  an  item  of 
property (determined or not) that exists in French territory, or can consist of the obligation of 
paying  a  sum  of  money  that  corresponds  to  the  value  of  such  property.  If  the  foreign  order 
provides for value confiscation, once its execution is authorised, the French State is debtor of 
the  obligation  to  pay  the  correspondent  sum,  and  is  able  to  recover  its  debt  over  whatever 
property available to this end. 

Ireland  just  referred  to  the  Criminal  Justice  Act  as  containing  the  system  of  mutual  legal 
assistance.  This  seems  to  provide,  under  certain  conditions,  for  the  enforcement  of  external 
orders, whether they were issued for the confiscation of specific property or for the recovery 
of a sum of money.  

The Italian Code of Criminal Procedure provides that the rules on the execution of financial 
penalties shall apply when enforcing a foreign confiscation order consisting of the obligation 
to pay a sum of money that corresponds to the value of the proceeds of a crime. 

In  the  draft  bill  provided  by  Luxembourg  there  is  a  specific  provision  according  to  which 
when  the  foreign  request  refers  to  goods  pertaining  to  the  sentenced  person  whose  value 
corresponds to the proceeds of crime, it will only be enforced if the requesting State declares 
it is not possible to enforce confiscation over goods located in its own territory. 

In  the  Netherlands  the  Act  on  the  Enforcement  of  Criminal  Judgements  generally  provides 
that once the Court authorises the execution of a foreign decision, it will, with due respect to 
the  relevant  provisions  of  the  applicable  Convention,  impose  the  sanction  or  measure  that 
would  be  imposed  for  the  corresponding  act  according  to  Dutch  law.  It  also  allows  the 
enforcement of a foreign decision containing an obligation to pay a sum of money to the State 
to deprive a person of illegally obtained gains. 

Finland  generally  asserted  that  it  is  possible  to  enforce  external  confiscation  orders  in 
accordance with the provisions of the Act on International Co-operation or, as appropriate, in 
accordance with the Act on Nordic co-operation in criminal matters. The first Act stipulates 
that  the  court  shall  convert  a  confiscation  order  made  in  a  foreign  State  into  a  confiscation 
order provided for by Finnish law. It refers both to property and value confiscation, provided 
that the latter could also be possible under Finnish law and that the foreign State has requested 
or  agreed  to  such  an  order.  The  Act  on  Nordic  co-operation  allows  the  enforcement  of  a 
decision  by  a  court  of  Iceland,  Norway,  Sweden  or  Denmark  by  which  a  person  has  been 
sentenced to the forfeiture of a certain object, other property or amount of money. 

Sweden  provided  the  text  of  the  Act  on  International  Co-operation  in  the  enforcement  of 
Criminal  Judgements,  according  to  which  it  is  possible  to  enforce  forfeiture  imposed  by  a 
foreign  country  whether  it  refers  to  an  object,  a  certain  amount  of  money,  or  the  value  of 
certain property. Property or its value so forfeited shall fall to the State, and can be in full or 
in part transferred to the foreign State if so requested. 

The  United  Kingdom  asserted  it  is  possible  to  enforce  foreign  confiscation  orders  whether 
value or property-based, and is currently in the process of making the required orders to give 
effect  to  foreign  decisions  under  the  Section  444  of  the  new  Proceeds  of  Crime  Act.  In  the 
meantime previous legislation still applies. 

18 

 
 
  
 
Finally,  it  should  be  noted  as  a  general  comment  that  some  of  the  aforementioned  laws, 
include  conditions  for  enforcement  of  external  orders,  such  as  subsidiarity  or  procedures  to 
“convert”  or  “authorise”  the  execution  of  a  foreign  decision,  that  might  be  challenged  by 
future instruments on confiscation based on the principle of mutual recognition. 

2.4. 

Article 4: Processing of requests for mutual assistance 

According  to  this  Article,  requests  for  mutual  assistance  from  other  Member  States  which 
relate to asset identification, tracing, freezing or seizing and confiscation of the proceeds must 
be processed with the same priority as is given to such measures in domestic proceedings. It 
therefore  imposes  an  obligation  to  assimilate  internal  and  external  measures  as  far  as  the 
priority to deal with them is concerned. 

In general, Member States have not notified specific provisions transposing this article. Most 
of  them,  as  the  table  shows,  referred  in  general  to  internal  legislation  dealing  with 
international co-operation or mutual assistance in the matter and supplied a copy of the legal 
texts.  Greece,  Italy  and  Netherlands  did  not  provide  any  information  on  this  point. 
Luxembourg  provided  a  draft  bill  that  contains  provisions  on  the  “exequatur”  of  foreign 
confiscation decisions. Some included additional explanations. 

In  this  sense,  Denmark  explained  that  it  is  “accepted  legal  practice”  to  conduct  requested 
investigative measures “irrespective of whether the proposal or treatment of the other aspects 
of  the  request  are  covered  by  an  agreement  between  Denmark  and  the  requesting  State”. 
Finland stated that decisions issued in other Member States are acted on in accordance with 
Finnish law without being treated any better or any worse. Ireland acknowledged there were 
certain  procedural  differences  for  foreign  confiscation  orders  under  the  mutual  assistance 
process regulated in the provided Criminal Justice Act as compared with domestic orders, but 
understood they were not disadvantaged by such procedural differences. The United Kingdom 
confirmed  that  their  authorities  treat  all  requests  for  the  restraint  and  confiscation  of  assets 
with the same priority, regardless of whether they relate to domestic cases or to requests from 
overseas.  France  asserted  that  this  provision  did  not  imply  internal  transposition  and  that 
requests  from  other  Member  States  were  executed  with  all  due  diligence.  And  Spain 
explained  it  had  decided  to  postpone  the  transposition  of  this  provision  until  the  entry  into 
force of the new European Union instruments on the matter. 

Only  two  countries  pointed  out  specific  provisions.  After  stating  that  requests  for  judicial 
assistance are always treated as urgent, priority cases, Germany mentioned that this principle 
was  laid  out  in  sections  19(1)  and  22(1)  of  the  Directives  for  International  Co-operation  in 
criminal  matters.  These  provide  that  requests  for  judicial  assistance  received  directly  by  an 
enforcing  authority  shall  be  transmitted  forthwith  to  the  authority  empowered  to  approve  it 
and, once approved, shall be executed by the enforcing authority in accordance with the same 
provisions  that  would  have  applied  if  the  request  had  been  made  by  a  German  authority, 
unless otherwise provided by statute or agreement. However, these Directives do not have the 
force of law. Regarding investigative measures, Sweden referred to Section 10 of the Law on 
International judicial co-operation in criminal matters, according to which requests for legal 
assistance shall be executed promptly and, unless otherwise prescribed by this Act, the same 
procedure shall be applied as is applied when a corresponding measure is taken in connection 
with a Swedish preliminary investigation or trial. 

In most cases external requests for mutual assistance are subject to previous examination and 
approval  when  none  of  the  internal  grounds  for  refusal  are  applicable.  In  some  cases  this 
examination or the  execution  of  the  request corresponds to a different body than in internal 

19 

 
 
  
 
cases. However, it is not possible to assess assimilation as regards priority of the request itself 
unless there is a specific rule on the matter, in similar terms as the Framework Decision. In 
this  sense  the  provisions  pointed  out  by  Germany  do  not  have  the  force  of  law  and  the 
provision  pointed  out  by  Sweden  only  partially  covers  the  scope  of  Article  4.  The 
Commission therefore has not received enough information to consider that this provision has 
been specifically transposed. In any case, the issue has lost part of its relevance in the light of 
the  new  European  instruments  in  the  field  of  freezing  and  confiscation,  recently  adopted  or 
currently  under  discussion34  which,  going  beyond  mutual  assistance,  are  based  on  the 
principle of mutual recognition. 

2.5. 

Article 7: Territorial application 

This provision stipulates that the Framework Decision shall apply to Gibraltar as soon as the 
application of the 1990 Convention is extended to it. The United Kingdom has not provided 
information making it possible to conclude that this provision was transposed. 

3. 

CONCLUSIONS 

In conclusion, not all Member States have timely transmitted to the Commission all relevant 
texts  of  their  implementing  provisions.  The  factual  assessment  and  subsequently  drawn 
conclusions  are  therefore  sometimes  based  on  incomplete  information.  The  Commission 
received  no  information  from  Austria  and  Portugal.  This  being  said,  the  situation  regarding 
transposal of the specific provisions in the Member States is as follows:  

Article  1:  A  large  majority  of  Member  States  (twelve)  seem  to  comply  with  Article  1(a), 
whereas  Greece,  Luxembourg  and  probably  Sweden  will  have  to  uphold  or  redraft  their 
reservations to Article 2 of the 1990 Convention. Similarly, a majority of Member States (ten) 
seem to comply with Article 1(b), whereas Austria, Greece, Luxembourg and Portugal do not 
seem to meet the required terms and Spain is in process of amending its national legislation to 
fully comply in substance with the Framework Decision. 

Article  2:  Eleven  Member  States  (Belgium,  Denmark,  Germany,  Spain,  France,  Ireland, 
Luxembourg,  Netherlands,  Finland,  Sweden  and  the  United  Kingdom)  provided  the 
Commission  with  information  demonstrating  that  they  comply  in  a  broad  sense  with  this 
Article. However, in some cases the minimum-maximum penalty is only provided if the crime 
is considered serious. 

Article  3:  Value  confiscation  seems  to  be  possible  to  different  extents,  but  at  least  as  an 
alternative measure (even if sometimes limited to specific cases or to certain types of offences 
or  property),  in  the  domestic  proceedings  of  eleven  Member  States  (Belgium,  Denmark, 
Germany,  France,  Ireland,  Italy,  Luxembourg,  Netherlands,  Finland,  Sweden  and  United 
Kingdom)  and  in  at  least  nine  Member  States  (Belgium,  Denmark,  France,  Ireland,  Italy, 
Netherlands,  Finland,  Sweden  and  United  Kingdom,  plus  probably  Germany)  as  regards 
foreign requests. Spain and Luxembourg have prepared legislation to further comply with this 

34 

Council  Framework  Decision  of  22  July  2003  on  the  execution  in  the  European  Union  of  orders 
freezing  property  or  evidence,  (OJ  L196,  2.8.2003,  p  45),  and  the  two  Danish  initiatives  for  a  draft 
Framework Decision on the execution in the European Union of confiscation orders and on confiscation 
of crime-related proceeds, instrumentalities and property (OJ C184, 2.8.2002, p 3 and 8). The latter was 
politically agreed the 19 December 2002. 

20 

 
 
  
 
                                                 
Article. Some of the conditions applied to the enforcement of external orders are likely to be 
challenged by future instruments on confiscation. 

Article  4:  The  Commission  has  not  received  enough  information  to  consider  that  this 
provision has been specifically transposed. 

Article 7: The Commission has no evidence to conclude that this provision was transposed by 
the Member State concerned. 

In  view  of  the  foregoing,  the  Commission  invites  the  Member  States  to  ensure  a  rapid  and 
complete transposal of the Framework Decision and to inform it of this immediately, and no 
later than the 1st of September 2004, providing a description of the measures taken with the 
text of the statutory or administration provisions in force in support. 

21