REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL based on Article 22 of the Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders
Date: 2010-08-23
Institutions: European Commission
Subjects: EU Member State, confiscation of property, criminal procedure, impact study, judicial cooperation, mutual recognition principle, national implementing measure

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EUROPEAN COMMISSION 

Brussels, 23.8.2010 
COM(2010) 428 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

based on Article 22 of the Council Framework Decision 2006/783/JHA of 6 October 2006 
on the application of the principle of mutual recognition to confiscation orders 

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL  

based on Article 22 of the Council Framework Decision 2006/783/JHA of 6 October 2006 
on the application of the principle of mutual recognition to confiscation orders 

1. 

INTRODUCTION 

1.1. 

Background 

Framework  Decision  2006/783/JHA  applies  the  principle  of  mutual  recognition  to 
confiscation  orders  issued  by  a  court  competent  in  criminal  matters  for  the  purpose  of 
facilitating enforcement of such confiscation orders in a Member State other than the one in 
which the confiscation order was issued. The Framework Decision applies to all offences in 
relation to which confiscation orders can be issued. Dual criminality checks were abolished in 
relation to 32 categories of offences listed in the Framework Decision. 

1.2. 

Notifications sent by Member States 

By the end of February 2010, the Commission had received notifications on the national laws 
transposing the provisions of the Framework Decision from the following 13 Member States: 
AT,  CZ,  DE,  DK,  FI,  IE,  HU,  LV,  NL,  PL,  PT,  RO  and  SI.  IE  did  not  attach  the 
implementation law to its notification. HU and DE sent only an unofficial notification.  

Seven Member States (BE, CY, EL, ES, FR, IT and LT) informed the Commission of the 
process of preparing the relevant legislation at national level. However, none of these Member 
States adopted the legislation or notified the Commission before the end of February 2010. 

Most  Member  States  that  sent  a  notification  to  the  Commission  had  transposed  the 
Framework  Decision  correctly,  with  the  exception  of  Article  8  on  the  grounds  for  refusal. 
Most  Member  States  included  additional  grounds  for  refusal  not  provided  for  by  the 
Framework Decision. This significantly limits the scope of the application of the Framework 
Decision and is not in compliance with it. A few Member States only partially transposed the 
Framework Decision.  

No  notification  or  information  on  the  process  of  transposition  has  been  received  from  the 
following 7 Member States: BG, EE, LU, MT, SE, SK and UK. 

1.3.  Method and evaluation criteria 

Article 22 of the Framework Decision provides for the establishment of a Commission written 
report  on  the  measures  taken  by  Member  States  to  comply  with  this  instrument  by  24 
November 2008. The report was to be established by the Commission in time for the Council 
to assess, by 24 November 2009, the extent to which Member States had taken the necessary 
measures to comply with the Framework Decision. The delay in preparing this Report results 
from the low number of notifications (only two) received at the time of the original deadline 
set by the Framework Decision.  

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By their nature, framework decisions are binding upon Member States as to the result to be 
achieved,  but  leave  to  the  national  authorities  the  choice  of  the  form  and  method  of 
implementation.  Whatever  the  form  chosen,  the  principles  of  clarity,  legal  certainty  and 
effectiveness must be respected. Framework decisions do not entail direct effect. However the 
principle of conforming interpretation is binding in relation to framework decisions adopted 
under Title VI of the Treaty on European Union1. 

2. 

EVALUATION 

General aspects of implementation  

Each Member State chose a different method for transposing the Framework Decision into its 
national legislation.  

AT  transposed  the  Framework  Decision  into  the  Federal  Law  on  judicial  cooperation  in 
criminal  matters  with  the  Member  States  of  the  EU.  This  law  also  contains  transposition  of 
other Framework Decisions on cooperation in criminal matters. The transposition contains the 
most important elements of the Framework Decision, but there are some omissions.  

CZ  made  modifications  to  the  Code  of  Criminal  Procedure.  The  transposition  is  very 
thorough and includes all important provisions of the Framework Decision.  

DE implemented the Framework Decision by amending and supplementing the Federal Law 
on  International  Legal  Assistance  in  Criminal  Matters.  In  the  absence  of  a  consolidated 
version  of  amended  provisions,  it  is  sometimes  difficult  to  appreciate  the  completeness  and 
correctness  of  the  implementation.  Some  of  the  essential  principles  of  the  Framework 
Decision  (such  as  the  principle  of  direct  contact)  do  not  seem  to  have  been  properly 
transposed. 

DK – Danish implementation law entered into force on 1 January 2005, i.e. almost two years 
before  the  Framework  Decision  itself  was  adopted  by  the  Council.  Danish  law  provides  for 
the most important elements of the recognition of confiscation orders, but omits some other, 
less important, elements. 

FI  –Finland's  implementing  law  is  very  brief.  A  specificity  of  this  law  is  that  it  includes  a 
general provision in its Section 1, which stipulates that provisions of a legislative nature in the 
Framework  Decision  shall  be  observed  as  law,  unless  the  implementation  law  provides 
otherwise.  Such  a  provision  can  lead  to  a  lack  of  clarity  and  legal  certainty  among 
practitioners as they must be well acquainted with the Framework Decision itself and apply it 
directly.  The  FI  transposition  law  focuses  only  on  few  issues  such  as  appeal  against  the 
decision  on  the  recognition  of  the  confiscation  order.  As  regards  most  other  provisions,  the 
implementing legislation refers to the general provision. Therefore it is somewhat difficult to 
evaluate  the  degree  of  transposition.  Taking  into  account  the  general  provision,  FI 
transposition can be considered formally satisfactory. However, for the sake of clarity of this 
report, where the transposition law does not include specific provisions on certain elements, 
this report states that FI did not transpose those elements.  

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Judgment  of  the  European  Court  of  Justice,  16  June  2005,  Case  C-105/03,  Pupino  (),  OJ  L  292, 
15.11.2006, p. 2 

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IE  did  not  attach  the  transposing  legislation  to  the  notification.  Transposition  was  in  the 
Criminal Justice Mutual Assistance Act in 2008. In most parts the text of the transposition law 
does  not  correspond  to  the  Framework  Decision,  and  numerous  important  provisions  and 
basic principles of mutual recognition have been omitted. The law does not include e.g. the 
principles  of  direct  contact  and  recognition  without  further  formality,  abolition  of  dual 
criminality check for 32 offences, grounds for refusal, grounds for postponement or right to 
legal remedies. However, it includes other issues not established by the Framework Decision 
such as interest on sums unpaid or procedures for realisation of property or impossibility of 
default imprisonment.  

HU implemented the Framework Decision by an Act on cooperation in criminal matters with 
the Member States of the European Union. The implementation is satisfactory. 

LV made amendments to the Latvian Criminal Procedure Law. The LV transposition is only 
partial as it omits some elements of the Framework Decision. 

NL transposed the Framework Decision by amendments to the Act of mutual recognition and 
execution  of  criminal  sanctions.  The  transposition  contains  all  important  elements  of  the 
Framework Decision and is therefore satisfactory. 

PL amended the Code of Criminal Procedure by inserting a chapter on the mutual recognition 
of confiscation orders. The transposition contains the most important elements. 

PT adopted a special law implementing only this Framework Decision, and did not combine it 
with other Framework Decisions on mutual recognition. The law is very detailed, follows the 
structure of the Framework Decision and transposes all important elements of the Framework 
Decision. Transposition is therefore very satisfactory.  

RO  amended  the  Law  on  International  Judicial  Cooperation  in  Criminal  Matters.  The  RO 
transposition is very detailed; it contains all important provisions of the Framework Decision 
and is therefore satisfactory. 

SI  transposed  the  Framework  Decision  into  an  Act  on  cooperation  in  criminal  matters  with 
the  EU  Member  States.  The  legislation  transposes  all  mutual  recognition  instruments.  The 
general  section  includes  general  principles,  such  as  the  principle  of  mutual  recognition, 
followed  by  individual  chapters  dealing  with  mutual  recognition  of  different  forms  of 
decision.  The  section  on  mutual  recognition  of  confiscation  orders  transposes  all  important 
provisions of the Framework Decision and is therefore good.  

Article 1 – Objective  

Article 1(1) establishes the overall objective of the Framework Decision. It does not need to 
be  transposed  if  the  context  of  the  implementing  law  is  sufficiently  clear  on  the  aim  of  the 
legislation.  

AT,  FI,  NL,  CZ  and  PT  included  the  general  objective  in  their  national  transposition  law. 
Other MS (IE, LV, PL, RO, SI, DE, DK and HU) did not include this paragraph.  

Article 1(2) provides that the Framework Decision shall not have the effect of amending the 
obligation  to  respect  fundamental  rights  and  fundamental  legal  principles  as  enshrined  in 
Article 6 of the Treaty, and any obligations incumbent on judicial authorities in this respect 
shall remain unaffected.  

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The  provision  reflects  an  overarching  obligation  for  all  Member  States  and  as  such  its 
transposition  may  be  redundant.  It is clearly permissible for Member States to stipulate this 
obligation in their implementing law. 

According to most Member States this Article does not require transposition. Some MS (AT, 
FI) transposed this obligation as an additional ground for refusal. 

Article 2 – Definitions  

Article  2  defines  terms  such  as:  'issuing  State'  and  'executing  State',  'confiscation  order', 
'property',  'proceeds',  instrumentalities'  and  'cultural  objects'.  Implementation  of  Framework 
Decisions  entails  a  certain  margin  of  appreciation  whether  it  is  necessary  to  transpose  all 
definitions  into  national  law.  However  Member  States  must  make  sure  that  their  national 
transposition does not compromise the aims of the Framework Decision. A complete lack of 
certain definitions may lead to lack of certainty, e.g. the definition of 'confiscation order' must 
be implemented so as to ensure that the foreign decision can be recognised irrespective of the 
name of the instrument in the issuing Member State, as the relevant terminology varies greatly 
across Member States.  

AT indicated that it had transposed the definitions, but did not attach the relevant parts of the 
law.  The  relevant  section  of  the  AT  law  contains  only  a  partial  definition  of  'confiscation 
order' as it omits to mention that it is a final decision given by the court. PL indicated that it 
had  transposed  the  definitions,  but  the  reference  law  (which  was  not  attached  to  the 
notification) does not contain any definitions.  

AT, NL, PT and RO have covered all these terms. Some Member States (IE, SI, DK, CZ and 
HU)  have  only  transposed  some  definitions,  e.g.  definition  of  'confiscation  order'.  Other 
Member  States  (LV,  FI,  DE  and  PL)  did  not  transpose  any  definitions  into  domestic  law, 
which can lead to uncertainty as to the scope of application of the legislative instrument.  

Article 3 - Determination of the competent authorities  

This Article obliges Member States to notify the General Secretariat of the Council and the 
Commission  which  national  authorities  are  competent  for  the  purpose  of  the  Framework 
Decision. Each Member State may designate one or more central authorities responsible for 
the  administrative  transmission  and  reception  of  the  decisions  and  for  assistance  to  the 
competent authorities, if it is necessary because of the organisation of its internal system 

For  some  Member  States,  the  authorities  competent  for  issuing  or  executing  decisions  are 
national courts (AT, CZ, IE HU, LV, PL, PT, SI and RO) or the public prosecution service 
territorially competent. In other Member States, the central authority is designated as issuing 
or  executing  authority.  This  is  the  case  for  FI  (Legal  Register  Centre),  DK  (Minister  of 
Justice) and NL (Public Prosecutor in Leeuwarden).  

A central authority for the purpose of transmission of documents is designated in CZ, IE, LV, 
PL and SI (Ministry of Justice). RO designated the Ministry of Justice as the central authority 
in order to provide assistance and transmission of document in cases where direct contact is 
not  possible.  The  LV  transposition  law  designates  courts  as  competent  authorities,  but  also 
attributes a strong role to the Ministry of Justice, which determines whether any ground for 
refusal exists before it decides to send the request for execution of the confiscation order to 
the court. IE also attributes a strong role to the central authority, which decides whether it will 
transmit the request for confiscation received from another Member State to the High Court or 

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not.  Such  provision  is  not  in  compliance  with  the  principle  of  direct  contact  between 
competent  authorities  and  the  purely  administrative  role  laid  down  by  Article  3  for  central 
authorities.  

Article 4 – Transmission of confiscation orders  

According  to  this  Article,  the  decision  in  question  together  with  a  certificate  may  be 
transmitted  to  the  competent  authorities  of  a  Member  State  in  which  the  natural  or  legal 
person against whom the confiscation order concerning an amount of money has been issued 
has property or income. In case of a confiscation order concerning specific items of property, 
the  order  may  be  transmitted  to  the  competent  authority  of  a  Member  State  in  which  the 
property  is  located.  The  principle  of  direct  contact  between  the  competent  authorities  is 
enshrined in this Article. Where the authority has no jurisdiction to recognise the confiscation 
order, it shall, ex officio, transmit the order to the competent authority.  

CZ,  HU,  PL,  PT,  RO,  SI  and  NL  have  transposed  all  elements  of  Article  4  in  their 
implementing legislation. AT, DK, LV have implemented this provision only partially. FI did 
not transpose this Article as it transposed a general provision stipulating that the provision of 
a legislative nature in the Framework Decision shall be observed as law (see general aspects 
of transposition). IE and DE did not transpose this Article. 

The principle of direct contact has been implemented by NL and DK, in which the central 
authority  is  at  the  same  time  the  issuing  and  executing  competent  authority,  which 
communicates  directly  with  another  State's  competent  authority.  This  principle  was 
implemented  as  well  by  AT,  CZ,  PL,  PT,  RO  and  SI.  AT  and  SI  provide  for  direct  contact 
between  competent  authorities,  but  the  issuing  court,  before  transmitting  the  request  to 
another  Member  State,  must  give  the  Public  Prosecutor's  Office  an  opportunity  to  give  its 
opinion and the persons concerned an opportunity to comment.  

LV did not implement the principle of direct contact as the Ministry of Justice is the authority 
that not only transmits and receives confiscation orders, but also decides whether confiscation 
orders will be forwarded to the competent authorities and decides whether there is any ground 
of refusal. IE did not implement the principle of direct contact as the competent court sends 
the  confiscation  order  to  the  Director  of  Public  Prosecutions,  who  decides  whether  the 
confiscation  order  will  be  forwarded  to  the  Central  Authority  for  transmission  to  another 
Member State. DE did not write this principle into its domestic legislation.  

Article 5 – Transmission of confiscation orders to one or more executing States 

As  a  rule,  a  confiscation  order  may  only  be  transmitted  to  one  executing  State  at  a  time. 
Articles  5(2)  and  (3)  establish  exceptions  to  this  rule  in  cases  where  different  items  of 
property  are  located  in  different  executing  States,  where  the  confiscation  involves  action  in 
more than one executing State or where a specific item of property is located in one of two or 
more  specified  executing  States.  As  regards  a  confiscation  order  concerning  an  amount  of 
money,  it  may  be  transmitted  to  more  than  one  executing  State  where  the  property  has  not 
been frozen or where the value of the property is not likely to be sufficient for the execution.  

AT, CZ, HU, NL, PL, PT, SI and RO transposed this Article entirely.  

LV and DE transposed this Article partially. DK indicated that this provision did not require 
implementation. FI and IE did not transpose this Article.  

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Article 6 - Offences 

This  Article  includes  a  list  of  offences  that  give  rise  to  recognition  and  enforcement  of 
decisions without verification of dual criminality if they are punishable in the issuing Member 
State  by  a  custodial  sentence  of  a  maximum  of  at  least  3  years.  All  other  offences  may  be 
subject to such verification by the executing Member State. The list includes 32 offences also 
listed in other Framework Decisions. The legal qualification of offences lies exclusively with 
the issuing Member State.  

CZ,  DK,  LV,  PT,  RO  and  SI  implemented  this  provision  in  full  compliance  with  the 
Framework  Decision.  These  Member  States  included  the  list  of  offences  directly  into  the 
transposition  law.  AT,  HU,  NL,  DE  and  PL  indicated  that  they  had  implemented  the  list  of 
offences,  but  did  not  attach  the  relevant  legislation  to  the  notification.  Therefore  it  is  not 
possible to evaluate transposition by these countries. FI did not implement this provision, but 
established  a  general  provision  on  "direct  application"  of  the  Framework  Decision  (see 
general  comment).  IE  did  not  implement  this  provision  and  according  to  the  current  law  it 
does not recognise any confiscation order for an offence which is not an offence in IE. This is 
not in compliance with Article 6 of the Framework Decision.  

Article 7 - Recognition and execution 

According to Article 7, a confiscation order shall be recognised without any further formality 
and all the necessary measures for its execution shall be taken forthwith. Implementing laws 
which provide for an obligation of the competent authority to convene a hearing in every case 
are  not  fully  in  compliance  with  Article  7,  as  a  hearing  usually  represents  a  significant 
formality.  

CZ, PL, RO, SI implemented this provision, but established an obligation to convene a public 
hearing in every case. Given the  general nature of a  formality in the executing State of this 
type, such a hearing is not fully in line with the Framework Decision. 

FI  implementation  provides  for  the  possibility  to  have  a  public  hearing  where  some  of  the 
grounds for refusal are likely to be invoked. Such a provision appears to be in line with the 
Framework Decision, since the decision to convene a hearing is to be taken on a case-by-case 
basis, if the executing authority considers that a ground of refusal may be applicable and this 
requires the parties to be heard.  

LV implemented this provision by establishing a written procedure for the recognition of the 
confiscation order.  

AT  provides  for  the  possibility  for  the  person  concerned  to  comment  on  the  conditions  of 
execution insofar as he can be summoned within the Austrian territory.  

DK, HU, NL and PT implemented this provision without mentioning any specific procedure 
leading to the recognition (i.e. whether having a public hearing is possible or compulsory or is 
not provided).  

DE requires the competent authority (the public prosecution service territorially competent) to 
give  the  convicted  person,  as  well  as  any  other  concerned  party,  an  opportunity  to  make 
representations. The law also provides for the intervention of a court upon application of the 
competent authority, which is therefore not able to take itself all the measures necessary for 
the execution of the confiscation order, as prescribed by Article 7.  

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IE has partially transposed this provision, but the implementation law does not stipulate that 
recognition and execution of a confiscation order must take place without further formality.  

Generally Member States have not indicated a time limit for execution.  

The following Member States made a declaration according to Article 7(5) of the Framework 
Decision:  AT,  LU,  PL,  SI  will  not  recognise  and  execute  confiscation  orders  under 
circumstances  where  confiscation  was  ordered  under  the  extended  powers  of  confiscation 
under the law of the issuing State (Article 2 (d)(iv). PL included this restriction directly in the 
text of the transposition law.  

Article 8 – Reasons for non-recognition and non-execution  

Article 8 provides for a number of grounds that can constitute a basis for refusing recognition 
or execution. All grounds set out in this Article are optional for the Member States, who may 
choose to implement them or otherwise, and may also make their application subject to more 
stringent  conditions  than  those  laid  down  in  this  provision2.  If  implemented,  grounds  of 
refusal  should  be  written  into  domestic  law  as  optional  for  the  competent  authority  ("The 
competent  authority  of  the  executing  Member  State  may  refuse…").  Since  they  constitute  a 
derogation from the general principle of mutual recognition, the list of grounds is exhaustive, 
so the Member States cannot include any additional grounds for refusal in their implementing 
legislation.  

Member States implemented the following grounds for refusal: 

•  the  certificate  is  not  produced,  is  incomplete  or  manifestly  does  not  correspond  to  the 
decision (transposed as optional by: DE, PL, PT and RO; transposed as obligatory by: AT, 
CZ, DK, LV, NL; transposed as partially obligatory, partially optional by HU); 

•  ne bis in idem (transposed as optional by: PL, PT and RO; transposed as obligatory by: AT, 
CZ, DE, HU, LV, NL, SI; transposed as partially optional and partially obligatory by DK); 

•  principle of dual criminality (transposed as optional by: PL, DK; transposed as obligatory 

by: AT, CZ, DE, HU, NL, RO, LV and SI); 

•  immunity  (transposed  as  optional  by:  PT  and  RO;  transposed  as  obligatory  by:  AT,  CZ, 

DK, HU, LV, NL and SI); 

•  rights  of  any  interested  party  in  the  case  (transposed  as  optional  by:  PL,  PT  and  RO; 

transposed as obligatory by: AT, CZ, DK, NL and SI; not transposed by HU, LV); 

•  proceedings in absentia without representation by a legal counsel (transposed as optional 
by: PL, PT and RO; transposed as obligatory by: AT, CZ, DE, DK, HU, LV, NL and SI); 

•  principle  of  territoriality  (transposed  as  optional  by:  CZ,  HU,  NL,  PL,  PT  and  RO; 
transposed  as  obligatory  by:  AT,  SI;  transposed  partially  as  optional  and  partially  as 
obligatory by DE and DK, not transposed by LV); 

2 

Judgment of the European Court of Justice, 6 October 2009, case C-123/08, Wolzenburg, OJ C 116 of 
09.05.2008, p.18 

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•  confiscation  under  the  extended  powers  of  confiscation  (transposed  as  optional  by:  DK, 

NL, transposed as obligatory by: AT, CZ, PL, not transposed by HU, RO, SI, LV); 

•  the  execution  is  statute-barred  (transposed  as  optional  by:  DE,  DK,  PL,  PT  and  RO; 

transposed as obligatory by: AT, LV, NL and SI); 

•  FI  did  not  transpose  any  grounds  for  refusal  stipulated  by  the  Framework  Decision,  but 
established that the provisions of a legislative nature in the Framework Decision shall be 
observed as law. 

•  IE did not transpose any grounds for refusal stipulated by the Framework Decision. 

Additional grounds laid down by the Member States: 

•  AT  added  the  following  obligatory  grounds  for  refusal:  the  person  has  been  granted  an 
amnesty or pardon; the decision was given in breach of fundamental rights as enshrined in 
Article 6 of the TEU; the legal classification of a criminal offence is clearly erroneous or 
the person concerned attests that the confiscation order has already been executed. 

•  CZ  included  several  additional  obligatory  grounds:  the  property  is  not  liable  to 
confiscation under other laws; the property has already been confiscated, has disappeared 
or cannot be found; the sentence has already been executed in another State; the person has 
been  granted  an  amnesty  or  pardon,  the  execution  would  contravene  CZ  essential 
constitutional principles. 

•  DE added two optional grounds of refusal, respectively when the same assets are subject to 
a German confiscation or forfeiture order and when the same assets are subject to a third 
Member State's confiscation or forfeiture measure, in both cases subject to the proviso that 
it is in the public interest that the other measure should take precedence (only the former 
situation  is  foreseen  by  the  Framework  Decision,  whose  Article  10  stipulates  that  the 
competent  authority  may  in  such  cases  postpone  –  but  not  refuse  -  the  execution  of  the 
confiscation measure). 

•  DK  included  the  following  obligatory  grounds:  the  person  concerned  has  been  pardoned 
for  the  act  in  DK;  ground  to  believe  that  the  order  was  issued  for  the  purpose  of 
prosecuting  or  punishing  a  person  on  account  of  his  sex,  race,  religion,  ethnic  origin, 
nationality, language, political opinion or sexual orientation.  

•  FI  has  added  one  obligatory  ground:  if  there  is  a  justified  reason  to  suspect  that  the 
procedure violated the guarantee of a fair trial and the execution would be unreasonable. 

•  HU mentioned the following additional obligatory grounds: the criminal offence on which 
the decision is based falls under HU jurisdiction (Articles 3 and 4 of the Criminal Code); 
and the criminal offence is covered by an amnesty under HU law.  

•  LV  has  added  as  obligatory  grounds  the  four  following  situations:  it  is  not  possible  to 
execute the order in LV; the person has not reached the minimum age of criminal majority; 
there are reasons to believe that the penalty has been imposed on grounds related to race, 
religious  affiliation,  ethnicity,  gender  or  political  opinions  and  the  fact  that  the  decision 
would contravene fundamental principles of the LV legal system. 

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•  Additional  optional  grounds  established  by  PL  cover:  the  offender  is  not  subject  to  PL 

jurisdiction; the crime is pardoned by amnesty.  

•  RO  included  one  additional  optional  ground:  execution  of  the  confiscation  order  would 

infringe upon constitutional principles. 

•  SI added the following obligatory grounds: the objects form part of the cultural heritage of 
SI;  the  person  has  been  subject  to  amnesty  or  pardon;  the  confiscation  is  ordered  by  a 
decision  which  under  the  SI  law  could  not  be  ordered  in  criminal  proceedings;  there  are 
objective reasons to believe that the decision has been issued for the purpose of punishing 
a person on the grounds related to race, sex, political or religious views;  

•  PT  and  IE  are  the  only  Member  States  that  did  not  include  any  additional  grounds  for 

refusal.  

Numerous additional grounds for refusal established by the Member States clearly show that 
the implementation of Article 8 is highly unsatisfactory. Member States must comply with the 
Framework  Decision  by  establishing  only  those  grounds  for  refusal  provided  for  in  the 
Framework  Decision.  All  additional  grounds  significantly  limit  the  scope  of  practical 
application of the principle of mutual recognition and thus do not comply with the purpose, 
spirit and letter of the Framework Decision.  

Article 9 – Legal remedies in the executing State against recognition and execution  

This Article provides for an obligation of the executing State to ensure that interested parties 
have  effective  legal  remedies  against  the  decision  on  recognition  and  execution  of  a 
confiscation order. The conditions for bringing an action may not be less advantageous than 
those applying to similar actions of purely domestic nature. Article 9(2) limits the possibility 
to  review  the  decision  in  the  executing  State  as  the  substantive  reasons  for  the  confiscation 
order may only be challenged in the issuing State.  

Most Member States (AT, CZ, DK, FI, HU, LV, NL, PL, PT and SI) correctly transposed the 
first part of this Article. However, some (AT, DK, LV, NL and PL) did not include Article 
9(2) in their legislation. Only CZ, FI, HU, PT, SI transposed this provision in full compliance 
with the Framework Decision. RO transposed the right to legal remedy of any interested party 
as a "right to compensation" and did not transpose Article 9(2). DE and IE did not implement 
Article 9. 

Article 10 – Postponement of execution 

As exceptions to the principle of immediate execution, the grounds of postponement should 
not be extended beyond the cases provided for in the Framework Decision. 

Most Member States (AT, CZ, DE, DK, LV, NL, PL, PT, RO and SI) correctly transposed all 
or some of the grounds of postponement and did not include any additional ones. FI and IE 
did not transpose any grounds for postponement.  

HU included the following additional grounds for postponement: the certificate is absent, the 
property  forms  a  protected  part  of  cultural  heritage,  the  person  can  prove  that  the  order  has 
already been implemented. Such transposition is not in full compliance with the Framework 
Decision. 

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Article 11 – Multiple confiscation orders 

This Article establishes criteria to which the competent authority  executing the confiscation 
order will give due consideration when deciding on two or more confiscation orders received 
concurrently.  

AT, CZ, HU, LV, NL, PT, RO, SI have implemented this Article. DE, DK, FI, IE, PL did not 
transpose this article. 

Article 12 - Law governing enforcement  

According to Article 12 the execution of the confiscation order shall be governed by the law 
of the executing State. In cases when the confiscation has already been executed fully or in 
part,  such  amount  shall  be  deducted  in  full  from  the  amount  confiscated  in  the  executing 
State.  

According to Article 12(3) a confiscation order issued against a legal person shall be executed 
even  if  the  executing  State  does  not  recognise  the  principle  of  criminal  liability  of  legal 
persons. 

Article  12(4)  establishes  that  no  alternative  measures  to  the  confiscation  order  may  be 
imposed unless the issuing State has given its consent.  

AT and NL have implemented this Article entirely, while other Member States (CZ, DE, DK, 
FI, HU, IE, LV, PL, PT, RO and SI) have done so only partially. The partial implementation 
of  this  Article  was  mainly  the  result  of  non-transposition  of  paragraph  3  concerning  legal 
persons. Some Member States invoked national legislation in this regard (AT, NL, PL), some 
did not transpose this provision or did not attach the relevant legislation (DK, IE, FI, PT, RO, 
SI). CZ national legislation does not recognise the criminal liability of legal persons and thus 
is not fully in line with this Article. However, it is partially possible to recognise and execute 
confiscation  orders  against  a  legal  person  under  CZ  law.  CZ  advised  that  it  is  currently 
preparing  new  legislation  that  will  introduce  the  concept  of  administrative  liability  of  legal 
persons for certain conduct into CZ law.  

Article 13 – Amnesty, pardon, review of confiscation order 

According  to  this  Article  both  amnesty  and  pardon  may  be  granted  by  the  issuing  State  as 
well as the executing State, but only the issuing State may determine applications for review 
of the confiscation order. 

Member  States  chose  various  methods  to  implement  this  Article.  PT  and  RO  followed  the 
wording  of  the  Framework  Decision.  Some  Member  States  referred  only  to  the  situation  in 
which  pardon  or  amnesty  is  granted  according  to  their  national  law  (DK,  NL,  HU,  SI).  LV 
referred to the situation in which an amnesty and pardon decided in the issuing Member State 
is  binding  on  it.  AT,  CZ,  DK,  HU  and  SI  transposed  the  provision  relating  to  amnesty  and 
pardon as an obligatory ground for refusal and PL as optional ground for refusal. As to the 
review, AT, CZ, NL, PT declared that this provision does not need transposition. 

DE, FI and IE have not transposed this Article. 

Article 14 – Consequences of transmission of confiscation orders 

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This Article stipulates that the transmission of a confiscation order does not restrict the right 
of the issuing State to execute the confiscation order itself. However, this must be reconciled 
with the duty to avoid the risk of exceeding the amount indicated in the confiscation order.  

AT,  CZ,  LV,  NL,  RO,  SI  implemented  this  Article  entirely;  HU,  PL  and  PT  did  so  only 
partially.  

DK stated this provision did not require transposition into its national law. DE, FI and IE did 
not implement this provision.  

Article 15 – Termination of enforcement  

This  Article  provides  for  an  obligation  to  inform  the  competent  authority  in  the  executing 
State  forthwith  of  any  decision  or  measure  as  a  result  of  which  the  order  ceases  to  be 
enforceable or is withdrawn from the executing State for any other reason. As a result of such 
information, the executing State is obliged to terminate enforcement of the order. 

AT, CZ, DK, HU, LV, NL, PL, PT, SI and RO have transposed this provision entirely. DE, FI 
and IE have not implemented this Article. 

Article 16 – Disposal of confiscated property  

This  Article  establishes  rules  on  disposal  of  money  and  other  property  obtained  from  the 
execution  of  the  confiscation  order.  These  rules  apply  unless  otherwise  agreed  between  the 
issuing and the executing State.  

This  Article  has  been  implemented  by  AT,  CZ,  DK,  HU,  NL,  PL,  PT,  RO  and  SI,  and 
partially by DE.  

LV  established  the  possibility  for  the  Ministry  of  Justice  to  decide  on  a  request  from  the 
issuing State on distribution of money in line with the Framework Decision. However, the LV 
Ministry of Justice does not have an obligation to do so. FI and IE have not implemented this 
provision. 

Article 17 - Information on the result of the execution  

According  to  this  Article  the  competent  authority  of  the  executing  State  shall  inform  the 
competent  authority  of  the  issuing  State  without  delay  of  decisions  made  in  relation  to 
recognition or execution. 

AT, CZ, DK, HU, LV, NL, PL, PT, RO and SI have implemented this Article.  

DE, FI and IE have not implemented this provision. 

Article 18 – Reimbursement 

This  provision  establishes  rules  under  which  an  executing  State  will  be  reimbursed  by  the 
issuing  State  for  the  sums  paid  in  damages  to  the  interested  parties  for  the  execution  of  a 
confiscation  order.  CZ,  DK,  PL,  PT  and  RO  implemented  this  provision.  FI  refers  in  its 
national legislation to the relevant article of the Framework Decision. AT, DE, IE, HU, LV, 
NL and SI did not implement this provision. 

Article 19 – Languages 

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Article 19 states that the certificate must be translated into the official language or one of the 
official  languages  of  the  executing  State.  However,  any  Member  State  may  at  any  time 
declare that it will accept a translation in one or more other official languages.  

The majority of Member States require a translation in their own official language (AT, CZ, 
DK, IE, HU, LV, PL, PT and RO). Other Member States will accept English in addition (NL, 
SI). FI will accept certificates in Finnish, Swedish or English and in other languages if there 
are no impediments to the approval of the certificate. 

Article 20 – Costs 

This  Article  states  that  Member  States  shall  not  claim  a  refund  of  costs  resulting  from 
application of this instrument from each other. AT, CZ, NL, PL, PT and SI have implemented 
this Article. DE, IE, HU, LV and RO have not done so. FI refers in its national legislation to 
the relevant Article of the Framework Decision. DK stated that this provision does not require 
transposition.  

3. 

CONCLUSIONS 

The degree of implementation of Council Framework  Decision  2006/783/JHA  of  8  October 
2006  in  the  national  legislation  of  the  Member  States  of  the  European  Union  is  clearly  not 
satisfactory.  Only  13  MS  implemented  the  FD  and  notified  the  Commission  (at  least 
informally)  by  the  end  of  February  2010,  fifteen  months  after  the  deadline  set  by  the 
Framework Decision. 

The national implementing provisions received from the thirteen Member States are generally 
satisfactory  and  can  be  considered  to  be  in  line  with  the  Framework  Decision,  especially 
regarding the most important issues such as the abolition of dual criminality checks and the 
recognition of decisions without further formality. Unfortunately, the analysis of grounds for 
refusal  of  recognition  shows  that  almost  all  Member  States  included  in  their  national 
legislation  several  additional  grounds.  This  practice  is  not  in  line  with  the  Framework 
Decision. 

The Commission invites all 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 22 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.  

The  partial  and  incomplete  transposition  of  this  instrument  by  Member  States  hampers 
substantively  the  full  and  effective  application  of  the  principle  of  mutual  recognition  in  the 
European  Union.  It  limits  the  role  of  judicial  authorities  in  combating  financial  crime  by 
depriving  criminals  of  the  financial  benefit  they  obtain  from  criminal  conduct.  The 
Commission urges all those Member States which have not done so yet to take swift measures 
to  implement  this  Framework  Decision  to  the  fullest  extent.  Furthermore,  it  invites  those 
which have transposed it incorrectly, e.g. by including additional grounds for refusal, to review 
and  align  their  national  implementation  legislation  with  the  provisions  of  the  Framework 
Decision. On the basis of the reactions to this report, the Commission will reflect on the need 
to revise this Framework Decision under the rules of the Treaty of Lisbon. 

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