Proposal for a Council Common Position on the negotiations in the Council of Europe relating to the 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime
Date: 2004-06-30
Institutions: European Commission
Subjects: confiscation of property, fight against crime, judicial cooperation in criminal matters in the EU, money laundering, organised crime, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.06.2004 
COM(2004) 444 final 

. 

Proposal for a 

COUNCIL COMMON POSITION 

on the negotiations in the Council of Europe relating to the 1990 Convention on 
Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 

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(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

This  proposal  for  a  Common  Position  concerns  the  prevention  of  and  fight  against  crime, 
organised or otherwise, in particular terrorism, to which explicit reference is made in Article 
29 of the Treaty on European Union. In these areas the Council may, without prejudice to the 
competencies  of  the  European  Community  and  acting  unanimously  on  the  initiative  of  any 
Member State or of the Commission, adopt a common position defining the approach of the 
Union to a particular matter as set out in Article 34(2) (a) of the Treaty on European Union. 

Without prejudice to the increasing competencies of the European Community in this field, in 
the last years, the EU has developed a comprehensive policy to prevent and combat organised 
crime  and  terrorism.  This  policy  is  based  on  a  multi-disciplinary  approach  combining 
elements  of  prevention,  identification  and  verification  of  the  identity  of  persons  concerned 
and suspicious transactions, substantive criminal law, and police and judicial co-operation.  

The  Joint  Action  of  3rd  December  1998  on  money  laundering,  the  identification,  tracing, 
freezing,  seizing  and  confiscation  of  instrumentalities  and  the  proceeds  from  crime1 
complements the Money Laundering Directives by addressing the need for more effective co-
operation  between  Member  States  in  this  area.  The  Framework  Decision2  on  money 
laundering,  dealing  with  the  identification,  tracing,  freezing,  seizing  and  confiscation  of  the 
proceeds  of  crime  partially  replaces  the  above  Joint  Action.  It  is  intended  to  ensure  that 
Member  States  take  the  necessary  steps  not  to  make  or  uphold  reservations  in  respect  of  a 
number  of  specific  articles  of  the  1990  Strasbourg  Convention3  obliging  Member  States  to 
provide for confiscation measures and to criminalise the laundering of the proceeds of serious 
offences. The Framework Decision also commits Member States to ensure that their domestic 
legislation  allows  for  the  confiscation  of  property  the  value  of  which  corresponds  to  the 
proceeds of crime. 

A  Council  Act  of  30th  November  20004  extends  the  competence  of  Europol  to  money 
laundering  in  general  regardless  of  the  type  of  offence  from  which  the  laundered  proceeds 
originate.  

The  Protocol  to  the  Convention  on  Mutual  Assistance  in  Criminal  Matters  established  by 
Council Act of 16th October 20015 provides for Member State authorities, to provide details of 
bank accounts, and banking operations of identified persons. Member States may not rely on 
rules of banking secrecy as a ground for refusing to co-operate in this context.  

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Joint Action 98/699 JHA of 9.12.1998. 
2001/500/JHA OJ L 182 of 5.7.2001 The Commission will produce an implementation report on this 
Framework  Decision  before  end  2003  to  enable  the  Council  to  assess  to  what  extent  the  measures 
necessary to comply with the Framework Decision have been taken. 
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Council of 
Europe, November 1990  
Council Act of 30th November 2000, OJ C 358 of 13.12.2000, p. 1. 
OJ C 326 of 21.11.2001, p. 1. 

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The  draft  Framework  Decision  on  Confiscation  of  Crime-related  Proceeds  Instrumentalities 
and  Property6,  received  political  agreement  at  the  Justice  and  Home  Affairs  Council  of  19 
December  2002.  The  proposal  aims  to  ensure  effective  rules  governing  the  confiscation  of 
proceeds of crime including in relation to the onus of proof regarding the source of assets held 
by a person convicted of an offence related to organised crime. The Framework Decision on 
the execution of orders freezing property or evidence7 establishes the rules for recognition and 
execution  of  freezing  orders  issued  by  the  judicial  authorities  of  a  Member  State  in  the 
framework  of  criminal  proceedings.  A  draft  framework  decision  which  received  political 
agreement at the 29th April Justice and Home Affairs Council, establishes a similar approach 
in  connection  with  the  execution  in  the  EU  of  confiscation  orders.8  .  The  Convention  on 
Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (“the Convention”) 
was  approved  by  the  Committee  of  Ministers  in  September  1990  and  was  opened  for 
signature  in  November  of  that  year.  It  entered  into  force  in  September  1993  and  all  EU 
Member  States  are  now  party  to  the  Convention.  The  Convention  seeks  to  provide  a  set  of 
rules  covering  law  enforcement  investigations  leading  to  imposition  and  enforcement  of 
confiscation sentences and to provide an effective mechanism of international co-operation to 
deprive  criminals  of  the  instruments  and  proceeds  of  their  activity.  The  Convention  has 
achieved recognition as one of the main international instruments in this area. However, due 
to  significant  developments  which  have  emerged  since  1990  in  terms  of  understanding  and 
addressing  the  money  laundering  threat,  discussions  began  in  1998  about  possible 
modifications to the Convention.  

The Bureau of the European Committee on crime problems (CDPC) of the Council of Europe 
decided in November 2000 to set up a Reflection Group on the advisability of drawing up an 
Additional  Protocol  to  the  Convention.  The  Reflection  Group  was  requested,  among  other 
things,  to  explore  issues  arising  out  of  developments  in  the  fight  against  money  laundering 
since the Convention’s approval.  

The Final Activity Report of the Reflection Group was submitted to the CDPC at its plenary 
meeting of June 2002. The Reflection Group concluded there were strong arguments in favour 
of  comprehensively  updating  the  Convention  which  could  be  modified  by  means  of  an 
“Additional Protocol to the Convention” (“the Additional Protocol”).  

The  Reflection  Group’s  Final  Activity  Report  recommended  that  a  modernised  Convention 
should include a broad range of measures such as the identification, seizing and confiscation 
of criminal assets and international co-operation in criminal matters between law enforcement 
authorities. 

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OJ C 184 of 2.8.2002, p. 3.  
2003/577/JHA of 22 July 2003, OJ L 196 of 2.8.2003, p. 45. 
2002/C 184/05, OJ C 184 of 2.8.2002, p. 8. 

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Against the background of, on the one hand, the Draft Protocol and, on the other hand, EU 
legislation  developed  over  the  last  years,  EU  Member  States  should  follow  a  coherent  and 
consistent  strategy  in  the  negotiations.  Frictions,  inconsistencies  and  contradictions  between 
the  intended  Protocol  and  different  political  and  legal  instruments  at  EU  level  should  be 
prevented. As far as an EU acquis has already been established in the area of fight against the 
financial aspects of organised crime and terrorism, it should not only be implemented in EU 
Member  States  but  also  considered  as  a  guiding  principle  for  negotiations  at  international 
level, in particular in a wider European context. 

The  proposal  for  a  Common  Position  defining  the  approach  of  the  Union  to  the  particular 
matter is necessary. 

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Proposal for a 

COUNCIL COMMON POSITION 

on the negotiations in the Council of Europe relating to the 1990 Convention on 
Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 

THE COUNCIL OF THE EUROPEAN UNION: 

Having regard to the Treaty on European Union, Title VI, and in particular Article 34 (2) (a) 
thereof, 

Having regard to the proposal of the Commission9, 

Whereas: 

(1) 

(2) 

(3) 

The European Union regards the prevention of and fight against money laundering and 
terrorist  financing  as  matters  of  fundamental  importance  to  the  establishment  of  an 
area of freedom, security and justice; 

The principles and rules in European Union legislation on inter alia prevention of and 
fight against money laundering, the freezing of assets and the fight against terrorism as 
well  as  the  Financial  Action  Task  Force  40  Recommendations  and  8  Special 
Recommendations  relating  to  the  financing  of  terrorism  and  other  international  legal 
instruments  such  as  the  United  Nations  Convention  against  Transnational  Organised 
Crime and the United Nations Convention against Corruption, serve as a basis for the 
current  negotiations  on  an  Additional  Protocol  revising  the  1990  Convention  on 
Laundering,  Search,  Seizure  and  Confiscation  of  the  Proceeds  from  Crime  ("the 
Convention") within the framework of the Council of Europe; 

These  negotiations  will  consider  modifications  of  existing  provisions  of  the 
Convention.  In  addition,  consideration  will  be  given  to  including  measures  on 
prevention of money laundering and financing of terrorism pursuant to the Committee 
of  Experts  revised  Terms  of  Reference  following  the  53rd  Plenary  Session  of  the 
European Committee on Crime Problems; 

(4) 

The Convention is considered to be an acquis of the Union; 

(5) 

There is a need to co-ordinate the position of the Union in the ongoing negotiations, 
with  a  view  to  achieving  an  optimum  result  in  the  negotiation  of  an  Additional 
Protocol to the Convention; 

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OJ C […] […], p. […] 

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(6) 

(7) 

The Union, in pursuing its objectives, must at the same time ensure consistency with 
specific commitments entered into as regards the international community and overall 
external policy as well as internal decisions; 

The  Union  desires  to  protect  its  interests  and  to  avoid  unnecessary  incompatibility 
between European and international instruments drawn up in the Council of Europe or 
elsewhere,  

HAS ADOPTED THIS COMMON POSITION: 

Article 1 

In  the  negotiations  at  the  Council  of  Europe  on  the  Additional  Protocol  to  the  1990 
Convention, the Council decides to uphold the following positions: 

1. 

2. 

3. 

The Union supports the drafting of an Additional Protocol to revise the Convention, 
currently undertaken within the framework of the Council of Europe, and advocates 
the rapid completion of the Additional Protocol, in time for the Summit of Heads of 
State and Government of the Council of Europe in May 2005. 

As  regards  terrorist  financing,  the  Additional  Protocol  should  ensure  that  the 
Convention’s provisions on identification, seizing and confiscation of criminal assets 
and  international  co-operation  in  criminal  matters  between  law  enforcement 
authorities, apply equally to the fight against terrorist financing.  

The  Additional  Protocol  should  address  the  need  to  enhance  international  co-
operation  in  criminal  matters  regarding  the  provision  of  information  on  bank 
accounts  held  by  any  person  who  is  the  subject  of  a  criminal  investigation.  This 
should  extend  to  the  provision  of  information  on  the  particulars  of  specified  bank 
accounts and of banking operations, including the monitoring of banking operations, 
relevant for the purpose of investigation into one or more offences. 

The provisions drawn up in the framework of the Council of Europe shall be compatible with 
instruments drawn up on the basis of Title VI of the EU Treaty. 

Article 2 

Article 3 

The acting Presidency of the Council, assisted by the Commission, shall, in the negotiations in 
the  Council  of  Europe,  co-ordinate  positions  of  the  Member  States  and  seeks  to  arrive  at 
common standpoints on all issues which fall under Title VI of the EU Treaty.  

The  Member  States  shall  also  co-ordinate  their  positions  with  work  in  progress  in  other 
international fora, and in particular the FATF. 

Article 4 

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The Presidency of the Council shall request the associated countries Romania, Bulgaria and 
Turkey and the EFTA countries to align themselves with this Common Position. 

Article 5 

Article 6 

This  Common  Position  is  without  prejudice  to  the  authorisation  of  the  Commission  to 
negotiate,  on  behalf  of  the  European  Community,  those  parts  of  the  Convention,  which  are 
covered by Community law. 

Article 7 

This Common Position shall take effect from the date of its adoption. 

Done at Brussels, […] 

For the Council 
The President 

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