Report from the Commission pursuant to Article 6 of the Council Framework Decision of 24 February 2005 on confiscation of crime related proceeds, instrumentalities and property (2005/212/JHA)
Date: 2007-12-17
Institutions: European Commission
Subjects: confiscation of property, fight against crime, national implementing measure, organised crime, report

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 17.12.2007 
COM(2007) 805 final 

REPORT FROM THE COMMISSION 

pursuant to Article 6 of the Council Framework Decision of 24 February 2005 on 
confiscation of crime-related proceeds, instrumentalities and property (2005/212/JHA) 

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1. 

INTRODUCTION 

Article 6 of Council Framework Decision 2005/212/JHA of 24 February 2005 on confiscation 
of  crime-related  proceeds,  instrumentalities  and  property1  (hereinafter  referred  to  as  “the 
Framework Decision”) requires the Commission to produce a written report on the measures 
taken by the Member States to comply with the Framework Decision. 

Adopted on the initiative of the Kingdom of Denmark, the Framework Decision is intended 
“to ensure that all Member States have effective rules governing the confiscation of proceeds 
from crime, inter alia, in relation to the onus of proof regarding the source of assets held by a 
person  convicted  of  an  offence  related  to  organised  crime”.  Essentially,  it  requires  Member 
States to take measures to enable them to perform two types of confiscation: 

–  confiscation,  either  wholly  or  in  part,  of  instrumentalities  and  proceeds  from  criminal 
offences  punishable  by  deprivation  of  liberty  for  more  than  one  year,  or  of  property  the 
value of which corresponds to such proceeds; and 

–  confiscation,  in  whole  or  in  part,  of  property  belonging  directly  or  indirectly  to  persons 
convicted of certain serious offences, in particular where the property in question has been 
obtained as a result of criminal activities. 

The  Commission  considers  it  vital  to  tackle  the  confiscation  of  criminal  instrumentalities, 
proceeds  and  property  as  an  effective  means  of  combating  organised  crime,  by  depriving 
criminals of their financial resources and thereby both restricting their scope for causing harm 
and  preventing  them  from  enjoying  the  property  with  which  they  surround  themselves  for 
their own comfort. 

1.1. 

Background to the Framework Decision 

Confiscating  the  proceeds  of  crime  has  long  been  regarded  as  an  effective  means  of 
combating organised crime. The European Council action plans designed to combat organised 
crime  invariably  stress  the  need  to  deprive  those  involved  in  organised  crime  of  their  main 
motivation, namely financial gain.  
The  European  Union  strategy  for  the  beginning  of  the  new  millennium2  specifies  that  “the 
European Council is determined to ensure that concrete steps are taken to trace, freeze, seize 
and confiscate the proceeds of crime”.  

A  coherent  package  of  measures  has  already  been  put  in  place  by  the  European  Union.  On 
26 June 2001 the Council adopted Framework Decision 2001/500/JHA3 on money laundering, 
the  identification,  tracing,  freezing,  seizing  and  confiscation  of  instrumentalities  and  the 
proceeds of crime. This Framework Decision allowed some progress to be made by providing 
for the approximation of national legislation on confiscating assets originating from organised 
crime. Council Framework Decision 2003/577/JHA of 22 July 20034 allows the execution in 
the  European  Union  of  orders  freezing  property  or  evidence.  The  Council  also  adopted 
Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of 
mutual recognition to confiscation orders5. 

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OJ L, 15.3.2005. 
The  Prevention  and  control  of  organised  crime:  A  European  Union  strategy  for  the  beginning  of  the 
new Millennium (OJ C 124, 3.5.2000, p. 1). 
OJ L 182, 5.7.2001. 
OJ L 196, 2.8.2003. 
OJ L 328, 24.11.2006, p. 59. 

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2. 

PURPOSE OF THIS REPORT AND ASSESSMENT METHOD 

Council  Framework  Decisions  are  binding  upon  the  Member  States  as  to  the  result  to  be 
achieved  but  leave  to  the  national  authorities  the  choice  of  form  and  methods.  They  do  not 
have  direct  effect.  As  the  Commission  has  no  powers  under  the  third  pillar  to  launch 
infringement  proceedings  against  a  Member  State,  the  nature  and  purpose  of  this  report  are 
merely to provide a factual assessment of the transposition measures adopted. 

The  report  focuses  on  an  assessment  of  Articles  2  and  3,  which  form  the  core  part  of  the 
Framework Decision, and the main obligations in the light of the Decision’s aims.  

The assessment criteria used by the Commission for the purposes of this report are the general 
criteria  adopted  in  20016  to  evaluate  implementation  of  Framework  Decisions.  Criteria 
specific to this Framework Decision were also used.  

Article 6(2) of the Framework Decision stipulates that, using a report established on the basis 
of  information  provided  by  the  Member  States  by  15 March 2007  and  a  report  from  the 
Commission,  the  Council  must  assess,  by  15 June 2007, the extent to which Member States 
have taken the necessary measures. 

At the time of writing, 16 Member States (BE,  BG,  CZ,  DE,  DK,  EE,  FI,  FR,  HU,  IE,  LT, 
MT, NL, PL, RO, SE) had submitted their legislation. Ten of them (BE, CZ, DE, DK, EE, FI, 
FR,  HU,  NL,  PL)  had  transposed  the  Framework  Decision  almost  wholesale,  with  the 
exception in many cases of Article 1 and in some cases of certain provisions that are minor 
compared with the general thrust of the Framework Decision, while six (BG, IE, LT, MT, RO, 
SE) had transposed it in part. Five Member States (EL, IT, LV, LU, PT) stated that they were 
in the process of preparing the relevant legislation. Six Member States (AT, CY, ES, SK, SI, 
UK) have not yet sent their national measures to the Commission.  

Some Member States sent a memo together with a correlation table explaining the general and 
specific  approach  adopted  in  their  national  law  and  indicating  the  relevant  legislative 
provisions. As far as the requirement to provide the text of their implementing legislation is 
concerned,  some  did  not  provide  the  text  to  support  what  were  nonetheless  very  detailed 
comments, while others made partial omissions. 

This  report  assesses  the  full  or  partial  transposition  measures  and  any  accompanying 
comments  submitted  by  16  Member  States  and  by  two  Member  States  (IT,  LU)  which 
provided information on their draft legislation. 

3. 

ASSESSMENT OF THE MEASURES TAKEN 

Article 1 – Definitions 

the  Framework  Decision  defines 

Article  1  of 
terms  “proceeds”,  “property”, 
“instrumentalities”,  “confiscation”  and  “legal  person”.  These  terms  are  essential  as  their 
appearance in the implementing legislation indicates that concepts of the same type and with 
the same meaning are being used. 

the 

Some Member States (BG, CZ, FR, HU, LT, MT, SE) provided information, partial in some 
cases,  on  their  transposition  of  this  Article.  Others  (DE,  DK,  EE,  FI,  NL,  PL)  provided  no 
information. Some Member States (FR, HU, IE, MT) stated that it was not necessary to take 
certain  definitions  into  account  as,  while  not  defined  in  their  legislation,  they  were  familiar 
and  did  not  give  rise  to  any  ambiguity.  In  the  Commission’s  view,  it  is  important  for  these 

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See COM(2001)771, 13.12.2001, section 1.2.2. 

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definitions  to  be  included  in  the  national  legislation  as  this  clarifies  how  the  concepts  are 
taken  into  account  in  national  law.  In  the  absence  of  such  information,  it  is  sometimes 
difficult,  or  even  impossible,  for  the  Commission  to  be  sure  that  the  provisions  of  the 
Framework Decision have been correctly transposed.  

Article 2 – Basic confiscation 

Article 2 contains the basic rule. The first paragraph requires Member States to take measures 
enabling  them  to  confiscate,  either  wholly  or  in  part,  instrumentalities  and  proceeds  from 
criminal offences punishable by deprivation of liberty for more than one year, or property the 
value  of  which  corresponds  to  such  proceeds.  The  threshold  is  the  same  as  in  Council 
Framework  Decision  2001/500/JHA,  referred  to  above.  However,  the  possibility  of 
maintaining reservations in respect of the confiscation of the proceeds from tax offences has 
been dropped.  

Article 2(1)  was  the  provision  implemented  with  the  least  difficulty  by  the  Member  States. 
Some  Member  States  require  only  partial  confiscation  depending  on  the  circumstances. 
Thirteen  Member  States  (BE,  BG,  CZ,  DE,  DK,  EE,  FI,  LU,  LT,  MT,  NL,  PL,  SE)  have 
transposed this provision in full. 

IE is preparing measures to bring it fully into line with Article 2(1). LT refers to the procedure 
for freezing assets as regards the application of Article 2. FR pointed out that, in accordance 
with recital 11 (respect for a Member State’s fundamental principles), press offences cannot 
give rise to confiscation in France. 

As regards the length of deprivation of liberty which determines the threshold for obligatory 
confiscation, some Member States (at least BE, CZ, DE, DK, EE, LT, MT) do not stipulate a 
threshold because they apply confiscation to all offences. 

In accordance with Article 2(2), some Member States (BE, BG, LT) use procedures other than 
criminal  procedures  to  deprive  perpetrators  of  tax  offences  of  the  proceeds  of  the  offence. 
From  the  texts  submitted  it  appears  that  some  Member  States  have  not  adopted  provisions 
along these lines on the basis of the Framework Decision. However, this does not mean that 
other types of procedure do not exist in the national law of the Member States concerned. 

Article 3 – Extended confiscation 

Article 3, while not going as far as the initial proposal, represents the real added value of the 
Framework Decision. It is intended to ensure that all Member States have confiscation-related 
rules  regarding  the  source  of  assets  owned  by  a  person  convicted  of  an  offence  related  to 
organised crime. It requires Member States to take measures to enable them to confiscate, on 
the  basis  of  one  of  the  three  situations  described  in  paragraph 2,  either  wholly  or  in  part, 
property belonging directly or indirectly to persons convicted of certain offences.  

Scope – Article 3(1) 

In order to ensure that the penalty is proportional to the seriousness of the offences concerned, 
the  Framework  Decision  restricts  the  obligation  to  provide  for  extended  confiscation  as 
follows: 

–  first, it applies only to a restrictive list of commonly defined offences drawn up pursuant to 
six Framework Decisions (on euro counterfeiting, money laundering, trafficking in human 
beings, unauthorised immigration,  sexual exploitation  of children  and child pornography, 
and drug trafficking, plus terrorism), for which the Member States are required to lay down 
penalties of a maximum of at least between five and ten years of imprisonment, and at least 
four years of imprisonment in the case of money laundering; 

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–  second,  except  as  regards  terrorism,  the  obligation  to  provide  for  extended  powers  of 
confiscation  applies  only  to  offences  committed  within  the  framework  of  a  criminal 
organisation. 

It should also be noted that the obligation to provide for extended confiscation applies only 
insofar as the offence is such as to generate financial gain. 

Generally  speaking,  the  Member  States  have  adopted  specific  provisions  on  extended 
confiscation at least in the fields covered by the six Framework Decisions referred to above 
and  the  Framework  Decision  on  combating  terrorism.  Offences  covered  by  the  Framework 
Decisions  concerned  are  generally  regarded  as  sufficiently  serious  to  justify  specific 
measures.  As  regards  the  length  of  penalty  which  determines  the  threshold  for  obligatory 
confiscation,  where  the  Framework  Decision  distinguishes  between  money  laundering  and 
other offences, most Member States do not make a distinction. Many Member States have not 
included  the  requirement  for  the  Framework  Decision  to  apply  as  a  minimum  where  the 
offence is such as to generate financial gain, which gives them more flexibility in applying the 
Framework Decision. 

Some  Member  States  (BG,  DE,  EE,  FI,  FR)  apply  extended  confiscation  without  a 
requirement for the offences necessarily to be committed within the framework of a criminal 
organisation. This also seems to be the case for PL. The Member States which state that they 
have transposed the relevant scope of the Framework Decision in full are BE, BG, CZ, DK, 
FR. The document provided by LT does not appear to indicate any measures that correspond 
to one of the situations referred to in the Framework Decision. DE has not yet transposed the 
Framework  Decision  in  respect  of  certain  offences  related  to  child  pornography.  Some 
Member States (EE, FI) have transposed only part of the scope of the Framework Decision. 

Necessary measures – Article 3(2) 

Article 3(2)  appears  to  have  posed  the  most  problems  with  respect  to  its  implementation. 
These problems relate primarily to legal traditions and fundamental principles, in particular as 
regards  the  administration  of  the  burden  of  proof,  the  link  usually  required  between  the 
offence for which an individual has been convicted and the property confiscated, the right to a 
fair trial and the need for the penalty to be proportional to the facts of the case. At the same 
time, some Member States have gone further by allowing the courts to impose confiscation of 
all  or  part  of  the  property  of  a  convicted  person  without  having  to  show  that  such  property 
was derived from criminal activities. 

The  Member  States  should  adopt  extended  confiscation  measures  corresponding  to  at  least 
one  of  the  three  situations  referred  to  respectively  in  subparagraphs  (a),  (b)  and  (c)  of 
Article 3(2).  In  each  of  these  cases,  property  derived  from  criminal  activities  not  directly 
related to the offence of which the person has been convicted may be confiscated, i.e. there is 
no link between the offence of which the person has been convicted and the property which is 
confiscated, either as regards the nature of the property or its value. This is the principle of 
extended  confiscation  of  the  property  of  a  convicted  offender.  Subparagraph  (a)  covers 
property  derived  from  criminal  activities  during  a  period  prior  to  conviction,  while 
subparagraph (b) covers property derived from  “similar”  activities.  Subparagraph (c)  covers 
situations  where  the  value  of  the  property  is  disproportionate  to  the  lawful  income  of  the 
convicted person. 

Given the variety of measures taken by the Member States, designed in accordance with their 
legal  systems  and  characterised  by  differing  legal  concepts  that  do  not  always  overlap,  it  is 
often  difficult  to  determine  which  one  (at  least)  of  these  provisions  each  Member  State  has 
complied with unless they have spelled it out. In summary: 

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–  BG,  DE,  FI  and  PL  cover,  directly  or  indirectly,  the  measures  specified  in  subparagraph 

(a). 

–  EE covers, directly or indirectly, the measures specified in subparagraph (c). 

–  CZ, FR, DK and NL cover, directly or indirectly, the measures specified in subparagraphs 

(a), (b) and (c). 

–  BE and BG cover, directly or indirectly, the measures specified in subparagraphs (a) and 

(b). 

LU, IE and IT are preparing a reform designed to introduce extended powers of confiscation. 
At least three Member States (BG, CZ, FR) provide, as a penalty, for the confiscation of all or 
part of the property of a convicted person, irrespective of whether such property is proven to 
derive  from  criminal  activities,  in  respect  of  all  or  some  of  the  offences  covered  by  the 
Framework Decision.  

Scope extended to third parties – Article 3(3) 

As  regards  the  optional  measure  set  out  in  Article 3(3),  some  Member  States  allow 
confiscation  of  property  that  may  “belong”  to  the  convicted  person  but  is  legally  owned  by 
one of his associates or by a legal person over which he has a controlling influence. They are 
at least, in respect of some or all of the provisions, the following: BE, BG, CZ, DK, EE, FI.  

Option  to  deprive  offenders  of  property  by  procedures  other  than  criminal  procedures  – 
Article 3(4) 

Article 3(4) provides that Member States may use procedures other than criminal procedures 
to deprive the perpetrator of the property in question. This is the case of SE. 

The  texts  submitted  indicate  that  CZ,  DE,  BE,  FR,  EE,  FI,  BG,  NL  have  not  adopted  a 
provision of this type. This does not mean that other types of procedure do not exist in their 
national law. 

Articles 4 and 5 – Legal remedies and safeguards 

Effective legal remedies must ensure that the rights of persons affected by Articles 2 and 3 are 
protected in the Member States. The Framework Decision cannot have the effect of altering 
the obligation to respect fundamental rights and principles.  

Most  Member  States  did  not  provide  precise  information  on  the  transposition  of  the 
obligations arising from Articles 4 and 5. The Commission is therefore unable to assess the 
extent to which the national legislation complies with the Framework Decision in this respect. 
Given the importance of legal remedies in ensuring that fundamental rights and principles are 
respected,  the  Commission  will  continue  to  pay  close  attention  to  the  transposition  of  these 
provisions into national law. 

4. 

CONCLUSIONS 

To date, only 16 Member States have sent the text of provisions transposing the Framework 
Decision  into  national  law.  The  Commission  is  concerned  that  so  little  progress  has  been 
made  on  transposing  the  Framework  Decision  in  the  Member  States.  It  would  remind  the 
Member States of the importance that they attached to combating organised crime by means 
of depriving it of its financial resources and gain. The Commission would also point out that 
this  importance  is  reflected  in  the  Council  of  Europe  Conventions  of  1990  and  2005  on 
laundering,  search,  seizure  and  confiscation  of  the  proceeds  from  crime,  and  in  the  United 
Nations  Convention  of  2000  against  Transnational  Organized  Crime.  To  combat  organised 

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crime  effectively  within  the  European  Union,  it  is  vital  that  solid  and  complete  national 
provisions are adopted. 

The Commission invites the Member States to consider this report and to use this opportunity 
to send it and the General Secretariat of the Council any further relevant information in order 
to comply with their obligations under Article 6 of the Framework Decision. The Commission 
would encourage those Member States which stated that they were in the process of preparing 
the necessary legislation to adopt it as quickly as possible and to send the text adopted to the 
General  Secretariat  of  the  Council  and  to  the  Commission.  Lastly,  the  Commission  regrets 
that six  Member  States  have still  not  provided any information and invites them to send all 
information  regarding  transposition  of  the  Framework  Decision  into  their  national  law  as 
quickly as possible. 

The  Commission  intends  to  adopt  a  Communication  on  the  proceeds  of  crime  at  the  end  of 
2008, in which it will analyse measures for the confiscation and recovery of property obtained 
through criminal activity and will examine how to strengthen cooperation between police and 
judicial authorities so as to deprive criminals of their illicit gain. 

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