Report from the Commission based on Article 14 of the Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence
Date: 2008-12-22
Institutions: European Commission
Subjects: confiscation of property, judicial cooperation, penalty

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.12.2008 
COM(2008) 885 final 

REPORT FROM THE COMMISSION 

based on Article 14 of the Council Framework Decision 2003/577/JHA of 22 July 2003 
on the execution in the European Union of orders freezing property or evidence 

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REPORT FROM THE COMMISSION 

based on Article 14 of the Council Framework Decision 2003/577/JHA of 22 July 2003 
on the execution in the European Union of orders freezing property or evidence 

1. 

INTRODUCTION 

1.1. 

Background 

The  main  objective  of  the  Council  Framework  Decision  2003/577/JHA  on  the  execution  in 
the  European  Union  of  orders  freezing  property  or  evidence  is  to  establish  the  rules  under 
which a Member State shall recognise and execute in its territory an order freezing property or 
evidence  issued  by  a  judicial  authority  of  another  Member  State  in  the  context  of  criminal 
proceedings.  The  Framework  Decision  is  based  on  the  system  of  mutual  recognition  of 
judicial decisions in the pre-trial phase under which a freezing order is recognised without any 
formality,  grounds  for  its  refusal  are  strictly  limited  and  the  principle  of  dual  criminality  is 
partly abolished. 

1.2. 

Notifications sent by Member States 

Only  seven  Member  States  (AT,  DK,  FI,  FR,  NL,  PL,  SE)  implemented  the  Framework 
Decision before the deadline set (2 August 2005). In the course of 2006 eight more Member 
States  transposed  the  Framework  Decision  (BE,  CY,  CZ,  ES,  HU,  SI,  SK,  UK)  and 
transmitted  the  implementing  legislation  to  the  Commission.  BG  and  LT  transmitted  the 
implementing laws in 2007 (BG implemented the Framework Decision upon accession on 1 
January  2007).  EE  and  LV  have  transposed  the  provisions  of  the  Framework  Decision  and 
notified this to the Commission in 2008. 

By the end of October 2008, the Commission had not received the implementing legislation 
from eight Member States (DE, EL, IE, IT, LU, MT, PT, RO). As a result, when analysing the 
implementation measures, the Report will not refer to these Member States.  

1.3.  Method and evaluation criteria 

Article  14  of  the  Framework  Decision  provides  for  establishment  of  a  Commission  written 
report on the measures taken by Member States to comply with this instrument by 2 August 
2005. The delay in preparing this Report results from the low number of notifications received 
at the time of the original deadline set by the Framework Decision. 

By their nature, framework decisions are binding upon the Member States as to the result to 
be achieved, but it is a matter for the national authorities to choose the form and method of 
implementation (the criteria are: clarity, legal certainty, effectiveness). Framework decisions 
do  not  entail  direct  effect.  However  the  principle  of  conforming  interpretation  is  binding  in 
relation to framework decisions adopted in the context of Title VI of the Treaty on European 
Union1.  As  the  Commission  has  no  authority  to  initiate  infringement  procedures  against  a 
Member  State  alleged  of  not  having  taken  the  necessary  measures  to  comply  with  the 
provisions of a Council Framework Decision adopted under the third pillar, the nature and the 
purpose of this Report is limited to an evaluation of the transposition measures taken by the 
nineteen Member States.  

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Judgment of the European Court of Justice, Pupino, Case-105/03 (16 June 2005), OJ C 193, 6.08.2005, 
p. 3 

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2. 

EVALUATION 

Article 1 - Objective 

The  objective  of  the  Framework  Decision  is  to establish rules under  which a  Member State 
recognises  and  executes  in  its  territory  a  freezing  order  issued  by  a  judicial  authority  of 
another  Member  State  in  the  context  of  criminal  proceedings.  Eleven  Member  States  (BE, 
BG, CZ, DK, EE, ES, FI, LV, SE, SK and vaguely SI) have transposed the objective in their 
national  laws,  while  the  implementing  law  of  eight  Member  States  (AT,  CY,  FR,  HU,  LT, 
NL, PL, UK) did not contain this provision. Some of them explained that this provision is a 
general rule, therefore it does not need to be implemented. 

Article 2 - Definitions 

The  Framework  Decision  defines  the  following  terms:  "issuing  State",  "executing  State", 
"freezing order", "property" and "evidence". The implementing laws of Member States more 
or less cover the definitions in the Framework Decision, but some of them contain only part of 
the  required  elements.  The  majority  of  Member  States  did  not  find  it  necessary  to  define 
"issuing"  and  "executing  State".  The  definition  of  freezing  order  was  provided  by  most 
Member  States  except  LV  and  PL.  BE  and  FR  invoked  national  legislation  concerning  the 
term "seizure" but provisions have not been enclosed. 

Article 3 - Offences 

This provision sets up a list of offences for which dual criminality checks are abolished. 

A high number of Member States (BG, DK, HU, ES, FI, PL, SK, NL, UK) have implemented 
the  list  in  Article  3(2)  in  conformity  with  the  Framework  Decision  (AT,  EE,  LT  and  LV 
legislation  has  not  been  attached).  However,  BE  legislation  provides  that  abortion  and 
euthanasia  are  not  covered  by  "murder  or  grievous  bodily  harm".  This  is  contrary  to  the 
Framework Decision since it is the law of the issuing State and not the executing State that 
determines  whether  an  offence  is  within  the  list.  For  CY,  CZ,  SE  and  SI  no  implementing 
provision was found.  

Article 4 - Transmission of freezing orders 

Article 4(1) provides that the freezing order together with the certificate should be transmitted 
by  the  judicial  authority  which  issued  it  directly  to  the  competent  authority  for  execution. 
According to the legislation of eight Member States (BG, CY, EE, HU, LT, LV, SI and UK), 
the documents have to be sent through a central authority, which is usually either the Ministry 
of Justice or the Prosecutor General's Office. Other Member States either provided for a clear 
reference  to  "direct"  contact  between  the  judicial  authorities  (FR,  SK,  ES,  NL,  SE)  or  the 
direct contact results from the list of competent authorities not a central authority (PL). For 
CZ  the  decision  is  sent  directly  to  the  competent  judicial  authority  but  can  also  be  sent 
through  the  Ministry  of  Justice  or  Attorney  General's  Office.  BE  provided  that  decisions 
concerning  freezing  must  be  transmitted  through  the  Royal  Prosecutors  who  cannot  be 
regarded as a "central authority" as they only have a formal role in transmitting notifications.  

Article 5 - Recognition and immediate execution 

In general, almost all implementing laws provide for the swift execution of freezing requests.  

•  "Immediate" execution (Article 5 (1)) 

Member  States  provide  various  time  limits  such  as  execution  "without  delay"  (PL,  FI)  or 
"ruling sent within 24h from taking the decision for execution" (BG), "without unnecessary 
delay" (DK), "forthwith" (CZ, HU), "forthwith and if possible within 24h" (SE). AT, ES and 

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FR  quoted  the  Framework  Decision  providing  for  "immediate"  execution.  BE  invoked 
national  provisions  in  this  regard  (provisions  not  enclosed).  Some  Member  States  have  not 
laid  down  any  time  limits.  EE  did  not  implement  the  provision  pointing  out  instead  many 
formal  obstacles  for  execution.  Those  obstacles  concern  i.  a.  the  fact  that  the  "judgment" 
which  is  the  basis  for  the  freezing  has  not  entered  into  force,  impartiality  of  the  court,  the 
special  status  of  Estonian  citizens.  UK  provided  for  a  vague  general  provision  concerning 
sending the order for execution. 

•  Notification within 24 hours (Article 5 (3)) 

In most cases issuing a freezing decision is carried down "immediately". AT and DK provided 
the  time  limit  laid  down  in  the  Framework  Decision  ("as  soon  as  possible  and  if  possible 
within 24h"). Some Member States have provided a different time limit, like BE ("24h, 5 days 
the latest"), BG ("forthwith"), CZ ("within 24h, otherwise without undue delay"), ES and NL 
("immediately,  within  24h"),  FR  and  LV  ("without  delay  and  if  possible  within  24h"),  HU 
("forthwith"), EE and LT ("within 24h"), PL ("immediately and, if possible, within one day of 
receiving  the  order"),  or  SK  ("within  24h  and  if  not  possible  -  as  soon  as  possible").  Some 
have not laid down any time limits concerning the issuing of a decision (FI, SE). SI has not 
implemented  this  provision  at  all.  Some  Member  States  have  also  drawn  up  a  provision 
obliging the competent judicial authority to state reasons in writing why the decision has not 
been taken within the time limit. 

As  to  the  notification  of  the  fact  that  the  decision  has  been  issued  (Article  5(3)),  generally 
Member States have not laid down time limits nor even the notification itself. Some Member 
States  though  have  established  time  limits,  such  as  BE  ("immediately"  to  the  Royal 
Prosecutor,  who  notifies  "without  delay"  the  issuing  Member  State),  CZ  ("forthwith"),  ES 
("without  delay,  within  24h"),  FI  ("without  delay  and  if  possible  within  24h"),  LT 
("immediately"), SK ("without delay"). 

Article 6 - Duration of the freezing  

Article  6  (1)  states  that  "The  property  shall  remain  frozen  in  the  executing  State  until  that 
State  has  responded  definitively  to  any  request  made  under  Article  10(1)(a)  or  (b)".  In 
accordance with paragraph 2 most Member States also provided for the possibility of limiting 
that period. Paragraph 3 states that a decision lifting the freezing order taken by the judicial 
authority of the issuing Member State should be executed as soon as possible.  

Overall,  this  Article  has  been  well  transposed.  Some  Member  States  have  not  implemented 
paragraph 3 (AT, EE, SI, UK), some have not laid down a time limit and some have provided 
a  different  time  limit  (BE:  "without  delay",  BG:  "immediate";  DK:  "without  unnecessary 
delay";  ES:  "without  delay",  HU  and  SE:  "forthwith").  CY  only  stated  that  a  foreign  order 
may be amended or revised only by a court or any other competent authority of the foreign 
country which issued the order. 

AT implementing law contains a general statement in this regard and its procedure set forth in 
Article  58  of  the  law  on  extradition  and  mutual  assistance  (ARHG)  is  not  in  line  with  the 
provisions of the Framework Decision. Furthermore, AT has not implemented Article 6(3). SI 
has only implemented provisions concerning national procedures and has not mentioned the 
issuing  State's  decision  nor  notification  in  this  regard.  SE  transposed  only  paragraph  3.  BG 
has  not  provided  any  time  limits  in  that  regard.  UK  vaguely  transposed  the  first  paragraph 
only. 

Article 7 – Grounds for non-recognition or non-execution 

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Article  7  of  the  Framework  Decision  includes  four  optional  grounds  for  non-recognition  or 
non-execution  of  the  freezing  order.  Generally  most  of  these  grounds  for  refusal  were 
implemented, but often Member States transposed them as obligatory grounds. A number of 
Member States did not provide implementing provisions, but in relation to some of them the 
Council of Europe Convention2 will apply (e.g. for CY). 

Article 7(2) concerns the possibility of specifying a deadline for the presentation, completion 
and  correction  of  the  certificate  or  acceptance  of  an  equivalent  document,  or  exempting  the 
issuing  judicial  authority  from  this  requirement  if  the  information  provided  is  considered 
sufficient. It has been implemented by most of the Member States (except BE, CY, DK, EE, 
SI and UK). Article 7(3) concerning the refusal to recognise or execute a freezing order has 
not been implemented by CY, EE, SI and UK (the Council of Europe Convention3 applies). 
Article 7(4) concerning the notification of the practical impossibility to execute the freezing 
order has been implemented partly by FI (only when the property cannot be located) and BG 
did not set any time limits nor means of notification.  

In  addition  to  the  grounds  for  non-recognition  or  non-execution  listed  in  the  Framework 
Decision, fourteen Member States (BE, BG, CY, CZ, DK, ES, FI, FR, HU, LT, NL, SE, SK, 
UK) introduced additional grounds for refusal in their national legislation. This is clearly not 
in compliance with the Framework Decision. The additional grounds concern mainly human 
rights issues (BE, DK, FR), conflict with general principles of Member States (CY, CZ), or 
situations where a measure is prohibited by national law or execution is impossible according 
to national law (ES, HU, NL, UK). There were also grounds related to language regime and to 
national  public  order,  security  and  justice  interests.  Unfortunately  Member  States  referred 
quite often to national provisions without enclosing them. 

Article 8 – Grounds for postponement of execution 

Article  8  (a)  concerning  the  possibility  of  damaging  an  ongoing  criminal  investigation  has 
been transposed by most Member States (except CY, EE, SI). In the case of CY the Council 
of Europe Convention applies. 

Many  Member  States  have  transposed  the  ground  for  postponement  where  the  property  or 
evidence concerned was subject to a freezing order in criminal proceedings, and that until the 
freezing order is lifted (except: CY, DK, FI, SI). However, only a few Member States (AT, 
BG, ES, FR, NL) have implemented the ground set forth in subparagraph 'c' (property already 
otherwise frozen). FR  and UK have  added  additional grounds (respectively: declassification 
of  the  document  or  device  and  impossibility  to  remove  the  evidence  from  the  UK).  The 
overall transposition of Article 8 (2)(3)(4) is rather good (only CY, SE, SI and UK have not 
implemented them).  

Article 9 - Certificate 

Article 9(2) states that the certificate transmitted must be translated into the official language 
or  one  of  the  official  languages  of  the  executing  State.  At  the  same  time  or  at  a  later  date 
every Member State may declare that it accepts a translation into one or more other official 
languages of the European Union (Article 9(3)). 

Most Member States (AT, BG, DK, ES, FR, HU, PL, UK) accept only their mother tongue as 
a  language  in  which  the  certificate  can  be  produced.  Some  of  them  have  not  given  any 
information  concerning  the  language  regime.  That  implies  that  for  the  moment  only 

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The Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 1990 
idem 

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certificates translated into the national language of that Member State will be recognised (CY 
and SI). Some of the Member States accept English, in addition to their mother tongue (EE, 
LT, LV, NL). Some Member States would also accept languages other than their own on the 
basis of reciprocity (CZ, SK). 

BE  will  accept  certificates  in  French,  Dutch,  German  and  English,  SE  in  Swedish,  Danish, 
Norwegian  and  English  and  FI  in  Finnish,  Swedish  and  English  (and  also  in  others  if  the 
competent prosecutor approves and if there are no obstacles to its being approved). 

Article 10 - Subsequent treatment of the frozen property 

This  Article  deals  with  issues  following  the  freezing  decision,  namely  transmission  of 
requests for transfer of evidence or confiscation. 

AT, BE, BG, DK, FR, HU, LT, NL, PL and SK have implemented this Article. CZ, EE, ES, 
FI,  LV,  SE,  SI,  UK  have  only  partly  implemented  it.  In  paragraph  3  SK  addresses  only 
evidence, not property. CY has not implemented this Article. 

Article 11- Legal remedies 

Article  11  provides  that  Member  States  should  ensure  that  any  interested  party  (including 
bona  fide  third  parties)  have  effective  legal  remedies  without  suspensive  effect  in  order  to 
preserve  their  legitimate  interests  in  the  issuing  or  executing  State.  At  the  same  time,  the 
substantive reasons can be challenged only in the issuing State. If the action is brought in the 
executing State the issuing State should be informed as to the content and the outcome of such 
an action.  

Appeal  against  the  execution  of  a  freezing  order  is  possible  for  interested  parties  in  all 
Member  States.  Some  Member  States  apply  national  legislation  in  whole  or  in  part  in  this 
regard and that is why some of them have only partly implemented this Article (CY, DK, HU, 
LT, SI). Some Member States have fixed time limits for filing an appeal. 

Member States usually provide for measures without suspensive effect (the exception is BE 
and  CZ  in  some  cases).  Not  all  Member  States  implemented  paragraph  4  concerning  the 
taking  of  measures  necessary  to  facilitate  the  exercise  of  the  right  of  appeal,  especially 
providing information to interested parties. The provision on the possibility of challenging the 
substantive reasons for a freezing order only in the issuing State has only been implemented 
by BE, BG, CZ, ES, FI, LV, NL and SK.  

Article 12 – Reimbursement 

Article  12  provides  for  a  reimbursement  of  costs  paid  by  the  issuing  State  to  the  executing 
Member State for costs paid as compensation for damage for injury caused by executing the 
freezing  order.  An  exception  is  made  for  situations  in  which  the  injury  is  exclusively  the 
result  of  conduct  of  the  executing  State.  This  provision  is  without  prejudice  to  national 
legislation on claims by natural or legal persons for compensation for damage. 

Some  Member  States  have  not  transposed  this  provision  at  all  (LV,  SE,  SI,  UK),  some 
considered that there was no need to implement it as in such cases the State in question would 
have to agree bilaterally (FR, LT) or it does not have to be transposed because the provision is 
an  obligation  addressed  to  the  government  (BE).  For  other  Member  States  general  national 
provisions in that regard will apply. 

BG,  DK,  EE,  ES,  FI,  PL  and  SK  have  transposed  this  Article  in  whole  or  in  part.  Some 
Member  States  (CZ,  ES,  SK)  have  different  sets  of  provisions  concerning  reimbursement 
depending if they are an issuing or executing State. 

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3. 

CONCLUSIONS 

Implementation  of  the  Council  Framework  Decision  2003/577/JHA  of  22  July  2003  on  the 
execution  in  the  European  Union  of  orders  freezing  property  or  evidence  in  the  national 
legislation of the Member States of the European Union is not satisfactory. This conclusion is 
mainly drawn from the low number of notifications, of which some implementing laws do not 
even refer to the Framework Decision (provisions were adopted in view of implementation of 
some  other  international  law  instruments).  CY  and  UK  have  covered  the  provisions  of  the 
Framework Decision only partly (CY covered only freezing of property and the UK covered 
only  provisions  in  relation  to  evidence).  The  legislation  sent  by  SI  also  shows  that  this 
Member State is still using the traditional rules on mutual legal assistance as regards requests 
for freezing and therefore it has not implemented the principle of mutual recognition in that 
regard.  

The nineteen national legislations received by the Commission indicate numerous omissions 
and  misinterpretations.  There  is  still  room  for  improvement,  especially  concerning  direct 
contact between judicial authorities, grounds for refusal to recognise or execute the freezing 
order  and  also  reimbursement.  However,  the  swift  execution  of  freezing  orders  seems 
ensured. 

The Commission invites Member States to consider this Report and to take the opportunity to 
provide all further relevant information to the Commission and to the Council Secretariat, in 
order to fulfil their obligations under Article 14 of the Framework Decision. In addition, the 
Commission  encourages  those  Member  State  that  have  signalled  that  they  are  preparing 
relevant legislation, to enact and notify these national measures as soon as possible. 

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