Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the freezing and confiscation of proceeds of crime in the European Union
Date: 2012-03-12
Institutions: European Commission
Subjects: associated action for damages, confiscation of property, fight against crime, injunction, judicial cooperation in criminal matters in the EU, money laundering, mutual recognition principle, organised crime, seizure of goods

EUROPEAN COMMISSION 

Brussels, 12.3.2012  
COM(2012) 85 final 

2012/0036 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the freezing and confiscation of proceeds of crime in the European Union  

{SWD(2012) 31 final} 
{SWD(2012) 32 final} 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

General context 

This  proposal  for  a  Directive  aims  to  make  it  easier  for  Member  States'  authorities  to 
confiscate  and  recover  the  profits  that  criminals  make  from  cross-border  serious  and 
organised crime. It seeks to attack the financial incentive which drives crime, to protect the 
licit  economy  against  criminal  infiltration  and  corruption,  and  to  return  criminal  profits  to 
public authorities providing services for citizens. It responds to the current economic context, 
where  a  financial  crisis  and  a  slowdown  in  economic  growth  creates  new  opportunities  for 
criminals, increased vulnerabilities in our economy and financial system, and new challenges 
for public authorities to finance growing needs for social services and assistance. 

Organised crime groups are illegal enterprises designed to generate profit. They engage in a 
multitude of cross-border  criminal activities - such as drug trafficking, trafficking in human 
beings, illicit arms trafficking, and corruption - generating very large earnings. 

At global level, according to United Nations estimates, the total amount of criminal proceeds 
in 2009 was approximately USD 2.1 trillion, or 3.6% of global GDP1. There are no reliable 
estimates of the size of criminal profits in the European Union2, but in Italy the proceeds of 
organised crime laundered in 2011 have been estimated by the Bank of Italy at € 150 billion. 
In the United Kingdom in 2006 organised criminal revenue was estimated at £15 billion. 

The  profits  derived  from  these  activities  are  laundered  and  reinvested  into  licit  activities. 
Organised crime groups increasingly hide and reinvest assets in Member States other than the 
one where the crime is committed3. This weakens our ability to fight cross-border serious and 
organised crime in the EU as a whole, and affects the functioning of the Internal Market by 
distorting  competition  with  legitimate  businesses  and  undermining  trust  in  the  financial 
system4.  Finally,  serious  and  organised  crime  deprives  national  governments  and  the  EU 
budget of tax revenues. 

All Member States should therefore have in place an efficient system to freeze, manage and 
confiscate  criminal  assets,  backed  by  the  necessary  institutional  setup,  financial  and  human 
resources.  However,  although  regulated  by  EU  and  national  laws,  confiscation  of  criminal 
assets remains underdeveloped and underutilised. The  overall amount recovered from crime 

1 

2 

3 

4 

United  Nations  Office  on  Drugs  and  Crime,  "Estimating  illicit  financial  flows  resulting  from  drug 
trafficking and other transnational organised crime", October 2011. 
More estimates exist on the value of criminal markets. The global drug trade generated USD 321 billion 
in  2005  according  to  the  United  Nations.  Trafficking  in  human  beings  is  globally  worth  USD  42.5 
billion  per  year  according  to  the  Council  of  Europe.  The  global  market  in  counterfeit  goods  was 
estimated at up to USD 250 billion per year by the OECD. Corruption in the EU has been estimated to 
cost as much as 1 % of EU GDP per year.  
See  Justice  and  Home  Affairs  Council  Conclusions  on  confiscation  and  asset  recovery  of  June  2010, 
Council document 7769/3/10. For similar statements, see the Executive Summary of the EU Organised 
Crime Threat Assessment 2011 and the Eurojust Annual Report 2010. 
See  also  Council  Conclusions  on  Economic  Crisis  Prevention  and  Support  for  Economic  Activity, 
23.4.2010 (Council document 7881/10), point 7d. 

EN 

2 

   EN 

 
                                                 
in the EU remains modest compared to the estimated revenues of organised criminal groups5. 
For example, in 2009 confiscated assets amounted to € 185 million in France, £ 154 million in 
the United Kingdom, € 50 million in the Ne therlands and € 281 million in Germany. 

As an effective tool in the fight against organised and serious crime, confiscation of criminal 
assets  has  been  given  strategic  priority  at  EU  level.  The  2009  Stockholm  Programme6  calls 
the  Member  States  and  the  Commission  to  make  the  confiscation  of  criminal  assets  more 
efficient and to strengthen the cooperation between Asset Recovery Offices. 

The  Justice  and  Home  Affairs  Council  Conclusions  on  confiscation  and  asset  recovery 
adopted  in  June  20107  call  for  a  more  coordinated  approach  between  Member  States  to 
achieve  a  more  effective  and  widespread  confiscation  of  criminal  assets.  They  call,  in 
particular,  on  the  Commission  to  consider  strengthening  the  legal  framework  in  order  to 
achieve more effective regimes for third party confiscation and extended confiscation. They 
stress  the  importance  of  all  phases  of  the  confiscation  and  asset  recovery  process  and 
recommend measures to preserve the value of assets during that process. 
The  Commission  Communication  "An  Internal  Security  Strategy  in  Action"8  states  that  the 
Commission will propose legislation to strengthen the EU legal framework on confiscation, in 
particular to allow more third-party confiscation9 and extended confiscation, and to facilitate 
mutual recognition of non-conviction-based10 confiscation orders between Member States. 

The  European  Parliament  adopted  in  October  2011  an  own  initiative  report  on  organised 
crime  which  calls  the  Commission  to  propose  new  legislation  on  confiscation  as  soon  as 
possible,  in  particular  rules  on  the  effective  use  of  extended  and  non-conviction  based 
confiscation, rules allowing for the confiscation of assets transferred to third parties and rules 
concerning  the  mitigation  of  the  burden  of  proof  after  the  conviction  of  an  offender  for  a 
serious offence concerning the origin of assets held by the offender11. 

In its Communication on the proceeds of crime adopted in 200812 the Commission identified 
ten  strategic  priorities  for  future  work  and  highlighted  shortcomings  in  the  EU  legal 
framework  (lack  of  implementation,  lack  of  clarity  of  some  provisions,  lack  of  coherence 
between existing provisions).  

In  this  context,  the  Commission  proposes  a  Directive  laying  down  minimum  rules  for 
Member  States  with  respect  to  freezing  and  confiscation  of  criminal  assets  through  direct 
confiscation, value confiscation, extended confiscation, non-conviction based confiscation (in 

5 

6 

7 
8 
9 

10 

11 

12 

For example, in the United Kingdom an official estimate in 2006 put organised criminal revenue at £15 
billion, while in the same year £125 million were recovered by the State, see Home Office (2006) cited 
in the 2010 Europol Organised Crime Threat Assessment.  
"An open and secure Europe serving and protecting the citizens", Council document 17024/09, adopted 
by the European Council on 10/11 December 2009. 
Council document 7769/3/10. 
COM(2010) 673 final of 22.11.2010. 
Third party confiscation involves the confiscation of assets that have been transferred by an investigated 
or convicted person to a third party. 
Non-conviction based procedures allow the freezing and confiscation of property irrespective of a prior 
conviction of its owner in a criminal court. 
European Parliament Report on organised crime in the European Union, adopted on 25 October 2011, 
Document A7-0333/2011 [provisional reference]. 
"Proceeds  of  organised  crime  -  Ensuring  that  'crime  does  not  pay'",  COM  (2008)  766  final  of 
20.11.2008. 

EN 

3 

   EN 

 
                                                 
limited  circumstances),  and  third-party  confiscation.  The  adoption  of  those  minimum  rules 
will  further  harmonise  the  Member  States'  freezing  and  confiscation  regimes,  and  thus 
facilitate mutual trust and effective cross-border cooperation.  

The Commission will moreover continue to explore and research possible ways to strengthen 
the  mutual  recognition  of  freezing  and  confiscation  orders,  while  taking  full  account  of 
fundamental rights. Over time, all confiscation and freezing orders issued by a Member State 
should  be  effectively  enforced  against  assets  located  in  another  Member  State.  To  this  end, 
the  Commission  will  continue  to  encourage  Member  States  to  implement  the  existing  EU 
mutual recognition legal instruments.  

This  proposal  will  imply  no  cost  for  the  EU  budget.  It  does  not  concern  the  budgetary 
allocation of the product of confiscation. 

1.2. 

Existing Community provisions in this area  

The  current  EU  legal  framework  on  the  freezing  and  confiscation  of  proceeds  of  crime 
consists of four Council Framework Decisions (FD) and one Council Decision:  

• 

• 

• 

• 

• 

13 
14 

15 
16 

17 
18 
19 

Framework  Decision  2001/500/JHA13,  which  obliges  Member  States  to  enable 
confiscation, to allow value confiscation14 where the direct proceeds of crime cannot 
be seized and to ensure that requests from other Member States are treated with the 
same priority as domestic proceedings;  

Framework  Decision  2005/212/JHA15,  which  harmonises  confiscation 
laws. 
Ordinary confiscation, including value confiscation, must be available for all crimes 
punishable  by  1  year  imprisonment.  Extended  confiscation16  must  be  available  for 
certain  serious  offences,  when  "committed  within  the  framework  of  a  criminal 
organisation"; 

Framework  Decision  2003/577/JHA17,  which  provides  for  mutual  recognition  of 
freezing orders;  

Framework Decision 2006/783/JHA18, which provides for the mutual recognition of 
confiscation orders; and 

Council  Decision  2007/845/JHA19  on  the  exchange  of  information  and  cooperation 
between  Asset  Recovery  Offices  obliges  Member  States  to  set  up  or  designate 
national  Asset  Recovery  Offices  as  national  central  contact  points  which  facilitate, 
through enhanced cooperation, the fastest possible EU-wide tracing of assets derived 
from crime.  

OJ L 182 of 05.07.2001. 
Value  confiscation  involves  the  confiscation  of  an  amount  of  money  equivalent  to  the  value  of  the 
proceeds of a crime. 
OJ L 68/49 of 15.3.2005. 
Extended  confiscation  involves  the  confiscation  of  assets  which  go  beyond  the  direct  proceeds  of  a 
crime so that there is no need to establish a connection between suspected criminal assets and a specific 
criminal conduct. 
OJ L 196/45 of 2.8.2003. 
OJ L 328/59 of 24.11.2006. 
OJ L 332/103 of 18.12.2007. 

EN 

4 

   EN 

 
                                                 
These instruments were developed essentially to fight serious and organised crime. However, 
apart  from  the  provisions  on  extended  confiscation,  the  current  EU  legal  framework  on 
substantive criminal law applies to the confiscation of the proceeds from any criminal offence 
punishable by deprivation of liberty for more than a year.  

1.3. 

Consistency with other policies 

The  Commission  Work  Programme  2011  includes  the  current  proposal  as  a  strategic 
initiative, as part of a broader political initiative aimed at protecting the licit economy from 
criminal infiltration. That initiative includes measures to address corruption in the EU20 and 
an  EU  anti-fraud  strategy21  adopted  in  June  2011.  By  protecting  the  licit  economy,  this 
proposal will contribute to growth and jobs in Europe and help facilitate sustainable growth in 
line with the Europe 2020 strategy 22.  

The  anti-corruption  package  adopted  by  the  Commission  in  June  2011  established  a 
reinforced  policy  approach  against  corruption  in  a  wide  range  of  internal  and  external  EU 
policies and set up a new reporting mechanism for evaluating Member States' efforts against 
corruption on a regular basis, starting with 2013. The Communication on Fighting Corruption 
in  the  EU  called  upon  the  Member  States  to  take  all  necessary  steps to ensure the effective 
detection,  prosecution,  and  a  stable  track-record  of  dissuasive  penalties  and  recovery  of 
criminally acquired assets in corruption cases. It also stressed the need for a revised EU legal 
framework on confiscation and asset recovery to ensure that courts in Member States are able 
to  effectively  confiscate  criminal  and  criminally  tainted  assets  and  to  fully  recover  the 
corresponding values, including in cases involving corruption.  

In the same context of protection of licit economy, the Commission launched in 2011 several 
initiatives aiming to provide better safeguards for taxpayers' money at EU level against fraud 
and corruption. These include a Commission proposal for amending the legal framework of 
OLAF23, the Communication on the protection of EU financial interests by criminal law and 
administrative  investigations24,  and  the  Communication  on  a  Commission  Anti-Fraud 
Strategy (CAFS). The implementation of CAFS is carried out in close coordination with the 
work  on  the  EU  Anti-Corruption  Report.  The  latter  will  focus  on  the  enforcement  of  anti-
corruption  policies  in  the  Member  States,  while  CAFS  focuses  on  measures  for  preventing 
and combating fraud and corruption, in particular against EU funds. 

This  proposal  is  consistent  with  the  EU  anti-money  laundering  legislation,  notably  the  EU 
Third Anti-Money Laundering Directive25 and the related initiatives that the Commission, the 
other EU institutions and the Member States are undertaking in this area.  

20 
21 
22 

23 
24 
25 

COM(2011) 307, 308 and 309 and C(2011) 3673 final of 6.6.2011. 
COM(2011) 376 final of 24.6.2011. 
COM(2010)2020 final of 3.3.2010. See also Council Conclusions on Economic Crisis Prevention and 
Support for Economic Activity, 23.4.2010 (Council document 7881/10), point 7d. 
(COM(2011) 135 final) of 17.3.2011. 
(COM(2011) 293 final) of 26.5.2011. 
Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the 
purpose of money laundering and terrorist financing, OJ L 309/15 of 25.11.2005. 

EN 

5 

   EN 

 
                                                 
2. 

RESULTS  OF  THE  CONSULTATIONS  WITH  THE  INTERESTED  PARTIES  AND  THE 
IMPACT ASSESSMENT 

2.1. 

Consultations with the interested parties 

The  proposal  has  been  prepared  in  accordance  with  the  Commission's  better  regulation 
principles.  Minimum  standards  for  consultation  of  interested  parties  have  been  met  in  the 
preparation of this proposal and the impact assessment. 

Wide  consultations  and  discussions  with  experts  were  carried  out  in  the  Camden  Asset 
Recovery Inter-Agency Network Plenary meeting26 (September 2010) and in eight meetings 
of the EU informal Asset Recovery Offices' Platform between 2009 and 2011.  

No  open  Internet  consultation  was  carried  out,  as  confiscation  is  a  specialised  topic  where 
limited  expertise  is  available.  Contacts  were  established  with  civil  society,  notably  with 
organisations  promoting legality, the fight against organised crime and the protection of  the 
victims of crime27.  

Issues  relating  to  confiscation  of  criminal  assets  are  also  widely  discussed  between  experts. 
International  practitioners'  meetings  and  strategic  seminars  on  confiscation  and  asset 
recovery28  are  increasingly  taking  place.  Practitioners  consider  most  of  the  provisions 
included in the proposal to reflect best practices as set out in the recommendations issued by 
the Camden Asset Recovery Inter-Agency Network between 2005 and 2010. The provisions 
are also in line with the recommendations on confiscation from the OECD Financial Action 
Task Force (FATF)29.  

The  Member  States  expressed  their  position  on  these  issues  in  2010  in  the  JHA  Council 
Conclusions  mentioned  above.  Although  there  was  broad  agreement  on  most  issues,  a  few 
Member  States  expressed  reservations  regarding  non-conviction  based  confiscation. 
Conversely, on other issues (e.g. third party confiscation, asset management) Member States 
agreed that a stronger EU response is necessary. 

Defence  lawyers  expressed  concerns  about  an  increase  in  extended  confiscation,  non-
conviction based confiscation and third party confiscation powers due to fundamental rights 
concerns  (possible  limitation  of  the  right  to  property  and  right  to  a  fair  trial).  As  explained 
below, those concerns are carefully addressed in the proposal. 

26 

27 

28 

29 

This network (CARIN), supported by the Commission and by Europol, is an international network of 
asset recovery practitioners which includes experts (one law enforcement and one judicial contact point) 
from  over  50  countries  and  jurisdictions,  including  26  EU  Member  States.  Its  objectives  are  the 
exchange  of  best  practices  and  the  improvement  of  inter-agency  cooperation  in  cross-border  asset 
recovery matters. 
For  example  the  Commission  services  held  several  bilateral  meetings  with  representatives  of  the 
FLARE (Freedom, Legality and Rights in Europe) Network and their associated networks.  
For  example  the  Centres  of  Excellence  for  Asset  Recovery  Training  (CEART)  Seminar  and  the 
Eurojust Strategic Seminar held in 2010. 
Notably Recommendation 4 of the FATF Recommendations as revised in February 2012.  

EN 

6 

   EN 

 
                                                 
2.2. 

Impact assessment 

In line with its better regulation policy, the Commission conducted an impact assessment of 
policy alternatives based on an external study which was completed in March 201130. 

The  external  study  is  based  on  a  broad  consultation  of  practitioners  and  experts,  including 
interviews  with  some  national  contact  points  of  the  Camden  Asset  Recovery  Inter-Agency 
Network.  As  shown  by  their  position  in  negotiating  the  Council  Conclusions  mentioned 
above, Member States generally agree on the need for stronger EU rules on asset recovery. 

The impact assessment also draws on the conclusions and recommendations of another study, 
finalised in 200931. It analyses Member States' practices in confiscation, focusing in particular 
on what has proven effective at national level with a view to promoting and exchanging best 
practices. The study identified several obstacles to effective confiscation, such as conflicting 
legal  traditions,  resulting  in  the  lack  of  a  common  approach  to  confiscation  measures, 
difficulties in securing  and  maintaining assets, lack of resources and training, limited cross-
agency contacts and a lack of coherent and comparable statistics. 

Finally,  the  impact  assessment  is  based  on  the  implementation  reports  issued  by  the 
Commission  on  the  existing  EU  legal  acts.  The  reports  on  Framework  Decisions 
2005/212/JHA32,  2003/577/JHA33  and  2006/783/JHA34  show  that  Member  States  have  been 
slow in transposing them and that the relevant provision have been often implemented in an 
incomplete  or  incorrect  way.  Only  the  degree  of  implementation  of  Council  Decision 
2007/845/JHA in the Member States can be considered as moderately satisfactory35.  

The impact assessment analysed several policy options representing different degrees of EU-
level  intervention:  a  non-legislative  option,  a  minimal  legislative  option  (correcting 
deficiencies in the existing EU legal framework which inhibit it from functioning as intended) 
and a maximal legislative option (going beyond the aims of the existing EU legal framework). 
Within the latter, two maximal legislative sub-options are analysed, one with and one without 
EU  level  action  relating  to  mutual  recognition  of  freezing  and  confiscation  orders  between 
Member States.  

30 

31 

32 

33 

34 

35 

Framework  Service  Contract  No  JLS/2010/EVAL/FW/001/A1,  Study  for  an  Impact  Assessment  on  a 
proposal for a new legal framework on the confiscation and recovery of criminal assets. 
"Assessing the effectiveness of EU Member States' practices in the identification, tracing, freezing and 
confiscation of criminal assets", available at  
http://ec.europa.eu/home-affairs/policies/crime/crime_confiscation_en.htm  
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), 
COM(2007) 805 final of 17.12.2007.  
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, 
COM(2008) 885 final of 22.12.2008. 
Report from the Commission pursuant to 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, 
COM(2010) 428 final of 23.8.2010.  
Report from the Commission based on Article 8 of the Council Decision 2007/845/JHA of 6 December 
2007  concerning  cooperation  between  Asset  Recovery  Offices  of  the  Member  States  in  the  field  of 
tracing and identification of proceeds from, or other property related to, crime, COM(2011) 176 final of 
12.4.2011. 

EN 

7 

   EN 

 
                                                 
 
The preferred policy option is the maximal legislative option. This option would considerably 
enhance  the  harmonisation  of  national  rules  on  confiscation  and  enforcement,  inter  alia  by 
amending  existing  provisions  on  extended  confiscation,  and  introducing  new  provisions  on 
non-conviction based confiscation and third party confiscation and introducing more effective 
rules on the mutual recognition of freezing and confiscation orders.  

Among  other  fundamental  rights,  the  impact  assessment  analysed  the  impacts  on  the 
protection of personal data, which were not considered as substantial. 

full 

The 
affairs/policies/crime/crime_confiscation_en.htm  

assessment 

impact 

report 

is 

available 

at:  http://ec.europa.eu/home-

2.3. 

Legal basis 

This proposal is based on Articles 82(2) and 83(1) of the TFEU.  

The conferral of powers related to confiscation and asset recovery has changed following the 
entry into force of the Lisbon Treaty. As the main legal basis for this proposal is Article 83(1) 
TFEU, its scope is limited to the offences in the areas listed in that Article, namely terrorism, 
trafficking  in  human  beings  and  sexual  exploitation  of  women  and  children,  illicit  drug 
trafficking,  money  laundering,  corruption,  counterfeiting  of  means  of  payment,  computer 
crime and organised crime. Illicit arms trafficking is covered where that crime is committed in 
the context of organised crime. 

One of the listed areas of crime is “organised crime”. The proposal will therefore cover other 
criminal activities not specifically listed in Article 83(1) where those activities are committed 
by participating in a criminal organisation as defined in Framework Decision 2008/841/JHA 
on the fight against organised crime36. 

The  limitation  of  the  scope  of  this  proposal  to  the  areas  of  crime  listed  in  Article  83(1), 
including crimes committed by participating in a criminal organisation, implies that existing 
provisions of EU rules on confiscation should remain in place in order to maintain a degree of 
harmonisation with respect to criminal activities which fall outside the scope of this Directive. 
The  proposal  accordingly  maintains  in  force  Articles  2,  4  and  5  of  Framework  Decision 
2005/212/JHA. 

2.4. 

Subsidiarity, proportionality and respect for fundamental rights. 

Under Article 5(3) TEU, the Union shall only act if the proposed action cannot be sufficiently 
achieved  by  the  Member  States.  Article  67  TFEU  foresees  that  the  Union  shall  provide 
citizens  with  a  high  level  of  security  by  preventing  and  combating  crime.  Confiscating 
criminal  assets  is  increasingly  recognised  as  an  important  tool  to  combat  organised  crime, 
which is very often transnational in nature and thus needs to be tackled on a common basis. 
The  EU  is  therefore  better  placed  than  individual  Member  States  to  regulate  freezing  and 
confiscation of criminal assets. 

36 

Framework  Decision  2008/841/JHA  of  24  October  2008  on  the  fight  against  organised  crime,  OJ  L 
300/42 of 11.11.2008. 

EN 

8 

   EN 

 
                                                 
The  assets  of  organised  criminal  groups  are  increasingly  hidden  and  invested  outside  their 
home country (often in several countries)37. This double cross-border dimension (of organised 
crime  activities  and  their  investments)  further  justifies  EU  action  to  target  the  assets  of 
organised criminal groups. 

All provisions fully respect the principle of proportionality, and fundamental rights, including 
the right to property, the presumption of innocence and the right of defence, the right to a fair 
trial, the right to a fair and public hearing within a reasonable time, the right to an effective 
judicial remedy before a court and the right to be informed on how to exercise it, the right to 
respect for private and family life, the right to protection of personal data, the right not to be 
tried  or  punished  twice  in  criminal  proceedings  for  the  same  criminal  offence  and  the 
principles of legality and proportionality of criminal offences.  

In particular, the introduction of harmonised non-conviction based confiscation provisions is 
foreseen only for very limited circumstances,  i.e. where the defendant cannot be prosecuted 
due to death, illness or flight. Extended confiscation is allowed only to the extent that a court 
finds, based on specific facts, that a person convicted of an offence is in possession of assets 
which are substantially more probable to be derived from other similar criminal activities than 
from other activities. The convicted person is given an effective possibility of rebutting such 
specific facts. Moreover, the extended powers of confiscation cannot be applied to the alleged 
proceeds of criminal activities for which the affected person has been acquitted in a previous 
trial, or in other cases where the ne bis in idem principle applies. Third party confiscation is 
allowed  only  under  specific  conditions,  i.e.  where  the  acquiring  third  party  paid  an  amount 
lower than market value and should have suspected that the assets are proceeds of crime, and 
after  an  assesment  showing  that  confiscation  of  assets  directly  from  the  person  who 
transferred them is unlikely to succeed. Finally, specific safeguards and judicial remedies are 
included  in  the  proposal  in  order  to  ensure  an  equal  level  of  protection  and  respect  for 
fundamental rights. These include the right to be informed about the proceedings, the right to 
be represented by a lawyer, the obligation to communicate any decision affecting property as 
soon  as  possible  and  to  have  an  effective  possibility  to  appeal  against  such  decision.  These 
specific  remedies  are  foreseen  not  only  for  accused  or  suspected  person  but  also  for  other 
persons in the context of third party confiscation. 

Although  it  has  avoided  ruling  on  the  principled  question  of  the  compatibility  of  non-
conviction based and extended confiscation regimes with the European Convention on Human 
Rights,  the  European  Court  on  Human  Rights  (ECtHR)  has  rendered  several  decisions, 
upholding  their  application  in  particular  cases.  National  non-conviction  based  procedures 
involving reversals of the burden of proof on the issue of the legitimacy of assets (which are 
more  far-reaching  than  the  provisions  in  this  Directive)  have  been  upheld  by  the  ECtHR  in 
specific  cases,  so  long  as  they  were  applied  fairly  in  the  particular  case  and  with  adequate 
safeguards  in  place  for  the  affected  person.  For  example  an  application  of  the  Italian 
legislation was held to be a proportionate restriction on fundamental rights in as much as it 
constitutes  a  “necessary  weapon”  in  the  fight  against  the  Mafia38.  In  another  case  an 
application  of  the  United  Kingdom  civil  confiscation  regime  was  found  not  to  violate  the 
ECHR39.  

37 
38 
39 

See references in footnote 2. 
Judgment Raimondo vs Italy of 22 February 1994. 
Judgment Walsh v. Director of the Asset Recovery Agency (United Kingdom) (2005).  

EN 

9 

   EN 

 
                                                 
2.5. 

Choice of instruments 

In  order  to  amend  the  EU  provisions  on  harmonisation,  a  Directive  replacing  Joint  Action 
98/699/JHA and, in part, Framework Decisions 2001/500/JHA and 2005/212/JHA is the only 
viable instrument.  

2.6. 

Specific provisions  

- Objective (Article 1) 

This provision clarifies that the Directive provides only minimum rules (national legislation 
can be more far-reaching) and that it concerns confiscation of proceeds and instrumentalities 
in criminal matters. 

- Definitions (Article 2)  

Most  definitions  are  taken  from  previous  EU  Framework  Decisions  or  from  international 
conventions. The definition of “proceeds” has been extended as compared to the definition set 
out in Framework Decision 2005/212/JHA in order to include the possibility of confiscating 
all valuable benefits resulting from the proceeds of crime, including indirect proceeds. 

The  definition  of  "criminal  offence"  cross-refers  to  precise  definitions  in  the  areas  of  crime 
listed in Article 83(1) TFEU as set out in existing EU legislation.  

- Confiscation (Article 3) 

This  provision  incorporates  (part  of)  Article  2  of  Framework  Decision  2005/212/JHA  and 
(part of) Article 3 of Framework Decision 2001/500/JHA. It requires Member States to enable 
the confiscation of instrumentalities and proceeds of crime following a final conviction and to 
enable the confiscation of property of equivalent value to the proceeds of crime.  

- Extended powers of confiscation (Article 4) 

Extended  confiscation  signifies  the  ability  to  confiscate  assets  which  go  beyond  the  direct 
proceeds  of  a  crime.  A  criminal  conviction  may  be followed by the  (extended)  confiscation 
not only of assets associated with the specific crime, but of additional assets which the court 
determines are the proceeds of other similar crimes.  

Extended  confiscation  powers  are  already  provided  for  in  the  EU  legislation.  Framework 
Decision 2005/212/JHA obliges Member States to allow the confiscation of assets belonging 
directly or indirectly to persons convicted of certain serious crimes (related to organised crime 
and terrorism activities). However, this Framework Decision establishes alternative minimum 
set  of  rules  for  extended  confiscation,  leaving  Member  States  free  to  apply  one,  two  or  all 
three  options.  The  Commission  implementation  report  showed  that  these  provisions  are 
unclear  and  led  to  piecemeal  transposition.  Moreover,  the  alternative  options  for  extended 
confiscation  have  restricted  the  scope  for  mutual  recognition  of  confiscation  orders.  The 
authorities in one Member State will execute confiscation orders issued by another Member 
State only if these are based on the same alternative options applied in that Member State. As 
a result, the mutual recognition of orders based on extended confiscation is problematic. 

This proposal introduces extended confiscation for the crimes listed in Article 83(1) TFEU as 
set  out  in  existing  Union  legislation.  It  also  streamlines  the  existing  regime  of  alternative 

EN 

10 

   EN 

 
options  for  extended  confiscation,  by  providing  for  a  single  minimum  standard.  Extended 
confiscation  can  take  place  where  a  court  finds,  based  on  specific  facts,  that  a  person 
convicted  of  an  offence  covered  by  this  Directive  is  in  possession  of  assets  which  are 
substantially  more  probable  to  be  derived  from  other  criminal  activities  of  similar  nature  or 
gravity  than  from  any  other  activities.  Extended  confiscation  is  excluded  where  the  similar 
criminal activities could not be the subject of criminal proceedings due to prescription under 
national criminal law. The proposal also excludes from confiscation the proceeds of alleged 
criminal activities for which the affected person has been finally acquitted in a previous trial 
(thereby upholding the presumption of innocence protected under Article 48 of the Charter of 
Fundamental Rights) or other situations where where the ne bis in idem principle applies.  

- Non-conviction based confiscation (Article 5) 

This  provision  introduces  provisions  on  non-conviction  based  confiscation  in  limited 
circumstances,  with  a  view  to  addressing  cases  where  criminal  prosecution  cannot  be 
exercised. It accordingly concerns confiscation in relation to a criminal offence, but it allows 
Member  States  to  choose  whether  confiscation  should  be  imposed  by  criminal  and/or 
civil/administrative courts. Non-conviction based procedures allow to freeze and confiscate an 
asset without a prior conviction of its owner in a criminal court.  

In  order  to  meet  the  requirement  of  proportionality,  the  proposal  would  not  introduce  non-
conviction based confiscation in all cases, but makes it possible only in circumstances where a 
criminal  conviction  cannot  be  obtained  because  the  suspect  has  died,  is  permanently  ill  or 
when  his  flight  or  illness  prevents  effective  prosecution  within  a  reasonable  time  and  poses 
the risk that it could be barred by statutory limitations.  

This provision mirrors the provisions of the United Nations Convention against Corruption. In 
order  to  facilitate  international  cooperation  in  confiscation,  the  Convention  encourages  the 
States parties to consider taking the necessary measures to allow confiscation of the proceeds 
of  corruption  without  a  criminal  conviction  in  cases  in  which  the  offender  cannot  be 
prosecuted  by  reason  of  death,  flight  or  absence  or  in  other  appropriate  cases  (Art.  54, 
paragraph  1,  letter  c).  It  also  draws  on  the  work  of  the  OECD  Financial  Action  Task  Force 
(FATF), which encourages its member countries to consider adopting measures allowing the 
proceeds  of  crime  or  instrumentalities  to  be  confiscated  without  requiring  a  criminal 
conviction, or requiring an offender to demonstrate the lawful origin of the property alleged to 
be liable to confiscation (Recommendation no. 3). This provision further draws on the views 
expressed  by  the  G8  Lyon-Roma  Group  in  a  report  emphasizing  that,  while  in  principle 
conviction  based  confiscation  should  be  pursued,  there  are  instances  where  criminal 
prosecution  is  not  possible  due  to  the  defendant  being  dead  or  having  fled,  to  a  lack  of 
sufficient evidence  necessary to start  a  criminal  prosecution, or to other technical reasons40. 
The  introduction  of  provisions  on  confiscation  without  a  criminal  conviction  has  been 
supported  also  by  practitioners  gathered  in  the  Camden  Asset  Recovery  Inter-Agency 
Network and the Asset Recovery Offices' Platform.  

- Third party confiscation (Article 6) 

40 

Final  report  of  the  Italian  project  on  "Confiscation:  Legal  issues  and  international  cooperation" 
developed within the Criminal Legal Affairs SubGroup (CLASG) of the G8 Roma-Lyon Group.  

EN 

11 

   EN 

 
                                                 
Criminals  often  transfer  their  assets  to  knowing  third  parties  as  soon  as  they  come  under 
investigation,  in  order  to  avoid  confiscation.  Third  party  confiscation  involves  the 
confiscation  of  assets  that  have  been  transferred  by  an  investigated  or  convicted  person  to 
third  parties.  The  Member  States'  national  provisions  on  third  party  confiscation  are 
diverging. This hampers the mutual recognition of freezing and confiscation orders on assets 
transferred to a third party.  

In order to meet the requirements of proportionality and protect the position of a third party 
acquiring  property  in  good  faith,  the  proposal  does  not  introduce  minimum  harmonisation 
provisions  on  third  party  confiscation  in  all  cases.  This  provision  requires  third  party 
confiscation  to  be  available  for  the  proceeds  of  crime  or  other  property  of  the  defendant 
received for a price lower than market value and that a reasonable person in the position of the 
third party would suspect to be derived from crime or to be transferred in order to circumvent 
the  application  of  confiscation  measures.  It  clarifies  that  the  reasonable-person-test  must  be 
based  on  concrete  facts  and  circumstances  to  prevent  arbitrary  decisions.  Moreover,  third 
party confiscation should be possible only following an assessment, based on specific facts, 
that the confiscation of property of the convicted, suspected or accused person is unlikely to 
succeed, or in situations where unique objects must be restored to their rightful owner. 

- Freezing (Article 7) 

The  first  paragraph  of  this  provision  requires  Member  States  to  enable  the  freezing  of 
property  or  instrumentalities  in  danger  of  being  dissipated,  hidden  or  transferred  out  of  the 
jurisdiction  in  view  of  possible  later  confiscation.  It  clarifies  that  such  measures  should  be 
ordered by a court.  

The introduction of the possibility to use freezing powers in urgent cases in order to prevent 
asset dissipation in situations where waiting for an order issued by a court would jeopardize 
the  possibilities  of  freezing  is  a  longstanding  priority  concern  of  prosecutors  and  law 
enforcement agencies. The second paragraph of this Article requires Member States to have in 
place measures to ensure that assets in danger of being dissipated, hidden or transferred out of 
their jurisdiction can be frozen immediately by the competent authorities, prior to seeking a 
court order or pending its request.  

- Safeguards (Article 8) 

According  to  the  jurisprudence  of  the  European  Court  of  Human  Rights  and  the  Charter  of 
Fundamental Rights of the European Union, fundamental rights such as the right to property 
are  not  absolute.  They  can  legitimately  be  subject  to  restrictions  provided  these  restrictions 
are provided for by law and - subject to the principle of proportionality - are necessary and 
genuinely meet objectives of general interest or the need to protect the rights and freedoms of 
others, as in the prevention of organised crime.  

Article  47  of  the EU  Charter  of  Fundamental  Rights  guarantees  the  right  to  an  effective 
remedy and the right to a fair trial. Inasmuch as freezing or confiscation orders interfere with 
the  right  to  property  or  other  fundamental  rights,  they  must  be  capable  of  challenge  by 
affected parties under the conditions set by this Article.  

The existing  EU legislation (e.g. Article 4  of Framework Decision 2005/212/JHA) provides 
that Member States should ensure that adequate legal remedies for the affected persons exist 
in national legislation.  

EN 

12 

   EN 

 
With a view to fully comply with the Charter of Fundamental Rights, this Article introduces 
minimum safeguards at EU level. These aim at guaranteeing the respect of the presumption of 
innocence,  the  right  to  a  fair  trial  (including  the  ne  bis  in  idem  principle),  the  existence  of 
effective judicial remedies before a court and the right to be informed on how to exercise such 
remedies.  

- Determination of the extent of the confiscation and effective execution (Article 9) 

Persons suspected to belong to criminal organisations have proven to be successful in hiding 
their assets, often with the benefit of advice from skilled professionals. The investigations on 
assets in view of possible later confiscation are generally lengthy and need to be carried out 
within the timeframe of the corresponding criminal procedures.  

In case a confiscation order was issued, no property or insufficient property was discovered 
and the confiscation order could not be executed, this Article requires Member States to allow 
financial  investigations  on  the  person's  assets  to  be  pursued  to  the  extent  necessary  to  fully 
execute  such  order.  This  provision  addresses  the  problem  of  the  foreclosure  of  confiscation 
activities  at  the  end  of  the  criminal  procedure  and  allows  unexecuted  or  partially  executed 
confiscation orders to apply against previously hidden assets which have "resurfaced" in the 
meantime, also at a date when criminal proceedings are finalised.  

- Management of frozen property (Article 10) 

This  provision  intends  to  facilitate  the  management  of  property  frozen  in  view  of  possible 
later  confiscation.  It  requires  Member  States  to  introduce  measures  aimed  at  ensuring  an 
adequate management of such property, notably by granting powers to realise frozen property, 
at least where it is liable to decline in value or become uneconomical to maintain. 

- Effectiveness and reporting obligations (Article 11) 

This  provision  introduces  reporting  obligations  for  Member  States,  which  would  help 
generate statistics to be used for evaluation purposes. 

2012/0036 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the freezing and confiscation of proceeds of crime in the European Union  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 82(2) and Article 83(1) thereof,  

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

EN 

13 

   EN 

 
Having regard to the opinion of the European Economic and Social Committee41,  

Having regard to the opinion of the Committee of the Regions42,  

Acting in accordance with the ordinary legislative procedure, 

Whereas:  

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

41 
42 
43 

44 
45 
46 
47 

The  main  motive  for  cross-border  organised  crime  is  financial  gain.  In  order  to  be 
effective, law enforcement and judicial authorities should be given the means to trace, 
freeze, manage and confiscate the proceeds of crime. 

Organised criminal groups operate without borders and increasingly acquire assets in 
other Member States and in third countries. There is an increasing need for effective 
international  law  enforcement  cooperation  on  asset  recovery  and  mutual  legal 
assistance. 

Although existing statistics are limited, the amounts recovered from criminal assets in 
the  Union  seem  insufficient  compared  to  the  estimated  proceeds  of  crime.  Studies 
have shown that, although regulated by EU legislation and national laws, confiscation 
procedures remain underutilised.  

The Stockholm Programme43 and the Justice and Home Affairs Council Conclusions 
on confiscation and asset recovery adopted in June 2010 emphasise the importance of 
a more effective identification, confiscation and re-use of criminal assets.  

the 

identification, 

The  current  Union  legal  framework  on  freezing,  seizure  and  confiscation  of  assets 
consists  of  Council  Framework  Decision  2001/500/JHA  of  26  June  2001  on  money 
laundering, 
tracing,  freezing,  seizing  and  confiscation  of 
the  proceeds  of  crime44;  Council  Framework  Decision 
instrumentalities  and 
2003/577/JHA  of  22  July  2003  on  the  execution  in  the  European  Union  of  orders 
freezing  property  or  evidence45;  Council  Framework  Decision  2005/212/JHA  of  24 
February  2005  on  confiscation  of  crime-related  proceeds,  instrumentalities  and 
property46;  Council  Framework  Decision  2006/783/JHA  of  6  October  2006  on  the 
application of the principle of mutual recognition to confiscation orders47. 

The  Commission  implementation  reports  on  Framework  Decisions  2005/212/JHA, 
2003/577/JHA  and  2006/783/JHA  show 
that  existing  regimes  for  extended 
confiscation and for the mutual recognition of freezing and confiscation orders are not 
fully  effective.  Confiscation  is  hindered  as  a  result  of  differences  between  Member 
States' legislation. 

OJ C , , p. . 
OJ C , , p. . 
"An open and secure Europe serving and protecting the citizens", Council document 17024/09, adopted 
by the European Council on 10/11 December 2009. 
OJ L 182, 5.7.2001, p. 1. 
OJ L 196, 2.8.2003, p. 45. 
OJ L 68, 15.3.2005, p. 49. 
OJ L 328, 24.11.2006, p. 59. 

EN 

14 

   EN 

 
                                                 
(7) 

(8) 

(9) 

This  Directive  aims  to  amend  and  expand  the  provisions  of  Framework  Decisions 
2001/500/JHA  and  2005/212/JHA.  Those  Framework  Decisions  should  be  partially 
replaced in relation to Member States participating in the adoption of this Directive. 

There  is  a  need  to  broaden  the  existing  concept  of  proceeds  to  include  the  direct 
proceeds  from  criminal  activity  and  all  indirect  benefits,  including  subsequent 
reinvestment or transformation of direct proceeds, the value of any liabilities avoided 
and any valuable benefits.  

Confiscation  of  instrumentalities  and  proceeds  following  a  final  decision  of  a  court 
and  of  property  of  equivalent  value  to  those  proceeds  should  therefore  refer  to  this 
broadened  concept  for  the  criminal  offences  covered  by  this  Directive.  Framework 
Decision  2001/500/JHA  required  Member  States  to  enable  the  confiscation  of 
instrumentalities and proceeds of crime following a final conviction and to enable the 
confiscation of property of equivalent value to the proceeds of crime. Such obligations 
should be maintained for the criminal offences not covered by this Directive. 

(10)  Criminal groups engage in a wide range of criminal activities. In order to effectively 
tackle organised criminal activities there may be situations where it is appropriate that 
a criminal conviction is followed by the confiscation not only of property associated 
with a specific crime, but also of additional property which the court determines are 
the  proceeds  of  other  crimes.  This  approach  is  referred  to  as  extended  confiscation. 
Framework  Decision  2005/212/JHA  provided  for  three  different  sets  of  minimum 
requirements  that  Member  States  could  choose  in  order  to  apply  extended 
confiscation. As a result, in the process of transposition, Member States have chosen 
different  options  which  resulted  in  divergent  concepts  of  extended  confiscation  in 
national jurisdictions. That divergence hampers cross-border cooperation relevant for 
confiscation  cases.  It  is  therefore  necessary  to  further  harmonise  the  provisions  on 
extended  confiscation  by  setting  a  single  minimum  standard.  Extended  confiscation 
should apply when a national court, based on specific facts such as those related to the 
nature of the criminal offence, the legal income of a convicted person, the difference 
between the financial situation and the standard of living of that person or other facts, 
finds  it  substantially  more  probable  that  the  property  in  question  has  been  derived 
from  other  criminal offences, of similar  nature or gravity as the criminal offence for 
which the person is convicted, than from other activities. 

(11) 

In  accordance  with  the  principle  of  ne  bis  in  idem  it  is  appropriate  to  exclude  from 
extended confiscation the proceeds of alleged criminal activities for which the affected 
person has been finally acquitted in a previous trial or in other cases where the ne bis 
in  idem  principle  applies.  Extended  confiscation  should  also  be  excluded  where  the 
similar  criminal  activities  could  not  be  the  subject  of  criminal  proceedings  due  to 
prescription under national criminal law.  

(12)  The issuance of confiscation orders generally requires a criminal conviction. In some 
cases, even where a criminal conviction cannot be achieved, it should still be possible 
to  confiscate  assets  in  order  to  disrupt  criminal  activities  and  ensure  that  profits 
resulting  from  criminal  activities  are  not  reinvested  into  the  licit  economy.  Some 
Member States allow confiscation where there is insufficient evidence for a criminal 
prosecution, if a court considers on the balance of probabilities that the property is of 
illicit  origin,  and  also  in  situations  where  a  suspect  or  accused  person  becomes  a 
fugitive to avoid prosecution, is unable to stand trial for other reasons or died before 

EN 

15 

   EN 

 
the  end  of  criminal  proceedings.  This  is  referred  to  as  non-conviction  based 
confiscation. Provision should be made to enable non-conviction based confiscation in 
at  least  the  latter,  limited,  circumstances  in  all  Member  States.  This  is  in  line  with 
Article 54.1.c) of the United Nations Convention against Corruption, which provides 
that each State Party is to consider taking the necessary measures to allow confiscation 
of illicitly acquired property without a criminal conviction, including in cases in which 
the offender cannot be prosecuted by reason of death, flight or absence. 

(13)  The practice by a  suspected  or accused person of transferring property to a knowing 
third  party  with  a  view  to  avoiding  confiscation  is  common  and  increasingly 
widespread. The current Union legal framework does not contain binding rules on the 
confiscation  of  property  transferred  to  third  parties.  Therefore  it  is  becoming 
increasingly necessary to allow for confiscation of property transferred to third parties, 
which should normally take place when an accused person does not have property that 
can  be  confiscated.  It  is  appropriate  to  provide  for  third  party  confiscation,  under 
certain  conditions,  following  an  assessment,  based  on  specific  facts,  that  the 
confiscation  of  property  of  the  convicted,  suspected  or  accused  person  is  unlikely  to 
succeed, or in situations where unique objects must be restored to their rightful owner. 
Furthermore,  to  protect  the  interests  of  bona  fide  third  parties,  such  confiscation 
should  only  be  possible  if  the  third  party  knew  or  should  have  known  that  property 
was the  proceeds  of crime  or was transferred in order to avoid confiscation and was 
given for free or transferred in exchange for an amount lower than its market value. 

(14)  Provisional measures should be provided for in order to ensure that property remains 
available with a view to possible later confiscation. Such freezing measures should be 
ordered  by  a  court.  In  order  to  prevent  the  dissipation  of  property  before  a  freezing 
order can be issued by a court, the competent authorities in the Member States should 
be  empowered  to  immediately  prohibit  the  transfer,  conversion,  disposition  or 
movement of property in danger of being hidden or transferred out of the jurisdiction, 
on a request for a freezing order with a view of possible later confiscation, pending the 
determination by a court.  

(15)  Suspected  or  accused  persons  often  hide  property  throughout  the  entire  duration  of 
criminal proceedings. As a result confiscation orders cannot be executed, leaving those 
subject  to  confiscations  orders  to  benefit  from  their  property  once  they  have  served 
their  sentence.  It  is  accordingly  necessary  to  enable  the  determination  of  the  precise 
extent  of  the  property  to  be  confiscated  even  after  a  final  conviction  for  a  criminal 
offence, in order to permit the full execution of confiscation orders when no property 
or  insufficient  property  was  initially  discovered  and  the  confiscation  order  remains 
unexecuted.  Given  the  limitation  of  the  right  to  property  by  freezing  orders,  such 
provisional measures should not be maintained longer than necessary to preserve the 
availability  of  the  property  with  a  view  of  possible  future  confiscation.  This  may 
require a regular review by the court in order to ensure that their purpose of preventing 
the dissipation of property remains valid.  

(16)  Property  frozen  with  a  view  to  later  confiscation  should  be  managed  adequately  in 
order  not  to  lose  its  economic  value.  Member  States  should  take  the  necessary 
measures including sale or transfer of the property to minimise such losses. Member 
States should take relevant measures, such as the establishment of national centralised 
Asset  Management  Offices  or  equivalent  mechanisms  (for  example  where  such 

EN 

16 

   EN 

 
functions  are  decentralised),  in  order  to  properly  manage  the  assets  frozen  before 
confiscation and preserve their value, pending judicial determination.  

(17)  Reliable  data  sources  on  the  freezing  and  confiscation  of  the  proceeds  of  crime  are 
scarce. In order to allow for the evaluation of this Directive, it is necessary to collect a 
comparable  minimum  set  of  appropriate  statistical  data  on  asset  tracing,  judicial  and 
asset disposal activities.  

(18)  This Directive respects the fundamental rights and observes the principles recognised 
by the Charter of Fundamental Rights of the European Union, and notably the right to 
property,  the  right  to  respect  for  private  and  family  life,  the  right  to  protection  of 
personal data, the right to an effective remedy and to a fair trial, the presumption of 
innocence  and  the  right  of  defence,  the  right  not  to  be  tried  or  punished  twice  in 
criminal proceedings for the same criminal offence and the principles of legality and 
proportionality  of  criminal  offences.  This  Directive  has  to  be  implemented  in 
accordance with these rights and principles.  

(19)  The measures provided for in this Directive affect substantially the rights of persons, 
not  only  of  suspected  or  accused  persons  but  also  of  third  parties  who  are  not  being 
prosecuted.  It  is  therefore  necessary  to  provide  for  specific  safeguards  and  judicial 
remedies  in  order  to  guarantee  the  preservation  of  their  fundamental  rights  in  the 
implementation of the provisions of this Directive.  

(20)  Since  the  objective  of  this  Directive,  namely  facilitating  confiscation  of  property  in 
criminal  matters,  cannot  be  sufficiently  achieved  by  the  Member  States  and  can  be 
better achieved at Union level, the Union may adopt measures, in accordance with the 
principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Directive does not go beyond what is necessary in order to achieve that objective.  

(21) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  the  United 
Kingdom and Ireland in respect of the area of freedom, security and justice, annexed 
to the Treaty on European Union and to the Treaty on the Functioning of the European 
Union,  [the  United  Kingdom  and  Ireland  has  notified  its  wish  to  take  part  in  the 
adoption  and  application  of  this  Directive]  or  [and  without  prejudice  to  Article  4  of 
that Protocol, the United Kingdom and Ireland is not taking part in the adoption of this 
Directive and is not bound by it or subject to its application.] 

(22) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European  Union,  Denmark  is  not  taking  part in  the  adoption  of  this  Directive  and  is 
not bound by it or subject to its application. 

HAVE ADOPTED THIS DIRECTIVE: 

TITLE I 

OBJECTIVE AND SCOPE 

EN 

17 

   EN 

 
 
Article 1 

Subject matter  

This Directive establishes minimum rules on the freezing of property with a view to possible 
later confiscation and on the confiscation of property in criminal matters.  

Article 2 

Definitions  

For the purpose of this Directive, the following definitions shall apply:  

(1) 

(2) 

(3) 

(4) 

(5) 

‘proceeds’ means any economic advantage derived from a criminal offence; it  may 
consist  of  any  form  of  property  and  includes  any  subsequent  reinvestment  or 
transformation of direct proceeds by a suspected or accused person and any valuable 
benefits;  

‘property’  means  property  of  any  description,  whether  corporeal  or  incorporeal, 
movable  or  immovable,  and  legal  documents  or  instruments  evidencing  title  or 
interest in such property;  

‘instrumentalities’ means any property used or intended to be used, in any manner, 
wholly or in part, to commit a criminal offence or criminal offences;  

‘confiscation’  means  a  penalty  or  a  measure,  ordered  by  a  court  following 
proceedings  in  relation  to  a  criminal  offence  resulting  in  the  final  deprivation  of 
property; 

‘freezing’  means  the  temporary  prohibition  of  the  transfer,  destruction,  conversion, 
disposition or movement of property or temporarily assuming custody or control of 
property; 

(6) 

'criminal offence' means a criminal offence covered by:  

(a) 

the Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty of the 
European  Union  on  the  fight  against  corruption  involving  officials  of  the 
European  Communities  or  officials  of  the  Member  States  of  the  European 
Union48, 

(b)  Council  Framework  Decision  2000/383/JHA  of  29  May  2000  on  increasing 
protection  by  criminal  penalties  and  other  sanctions  against  counterfeiting  in 
connection with the introduction of the euro49,  

(c)  Council  Framework  Decision  2001/413/JHA  of  28  May  2001  on  combating 

fraud and counterfeiting on non-cash means of payment50,  

48 
49 
50 

OJ C 195, 25.6.1997, p.2. 
OJ L 140, 14.6.2000, p.1. 
OJ L 149, 2.6.2001, p.1. 

EN 

18 

   EN 

 
                                                 
(d)  Council  Framework  Decision  2002/475/JHA  of  13  June  2002  on  combating 
terrorism51,  as  amended  by  Council  Framework  Decision  2008/919/JHA  of  9 
December 200852, 

(e)  Council  Framework  Decision  2001/500/JHA  of  26  June  2001  on  money 
laundering,  the  identification,  tracing,  freezing,  seizing  and  confiscation  of 
instrumentalities and the proceeds of crime53,  

(f)  Council  Framework  Decision  2003/568/JHA  on  combating  corruption  in  the 

private sector54, 

(g)  Council Framework Decision 2004/757/JHA of 25 October 2004 laying down 
minimum provisions on the constituent elements of criminal acts and penalties 
in the field of illicit drug trafficking55,  

(h)  Council  Framework  Decision  2005/222/JHA  of  24  February  2005  on  attacks 

against information systems56, 

(i)  Council Framework Decision 2008/841/JHA of  24 October 2008 on the fight 

against organised crime57,  

(j)  Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking 
in human beings and protecting its victims, and replacing Council Framework 
Decision 2002/629/JHA58,  

(k)  Directive  2011/92/EU  of  13  December  2011  on  combating  the  sexual  abuse 
and  sexual  exploitation  of  children  and  child  pornography  and  replacing 
Council Framework Decision 2004/68/JHA59.  

TITLE II 

FREEZING AND CONFISCATION  

Article 3 

Conviction based confiscation 

Each  Member  State  shall  take  the  necessary  measures  to  enable  it  to  confiscate, 
either wholly or in part, instrumentalities and proceeds following a final conviction 
for a criminal offence. 

OJ L 164, 22.6.2002, p.3. 
OJ L 330, 9.12.2008, p.21.  
OJ L 182 of 5.7.2001, p.1. 
OJ L 192, 31.7.2003, p.54. 
OJ L 335, 11.11.2004, p.8. 
OJ L 69, 16.3.2005, p.67. 
OJ L 300, 11.11.2008, p.42. 
OJ L 101, 15.4.2011, p.1. 
OJ L 335, 17.12.2001, p. 1. 

1. 

51 
52 
53 
54 
55 
56 
57 
58 
59 

EN 

19 

   EN 

 
                                                 
2. 

1. 

2. 

Each  Member  State  shall  take  the  necessary  measures  to  enable  it  to  confiscate 
property the value of which corresponds to the proceeds following a final conviction 
for a criminal offence.  

Article 4  

Extended powers of confiscation 

Each  Member  State  shall  adopt  the  necessary  measures  to  enable  it  to  confiscate, 
either  wholly  or  in  part,  property  belonging  to  a  person  convicted  of  a  criminal 
offence  where,  based  on  specific  facts,  a  court  finds  it  substantially  more  probable 
that the property in question has been derived by the convicted person from similar 
criminal activities than from other activities.  

Confiscation  shall  be  excluded  where  the  similar  criminal  activities  referred  to  in 
paragraph 1  

(a) 

could  not  be  the  subject  of  criminal  proceedings  due  to  prescription  under 
national criminal law; or  

(b)  have  already  been  subject  to  criminal  proceedings  which  resulted  in  the  final 
acquittal  of  the  person  or  in  other  cases  where  the  ne  bis  in  idem  principle 
applies.  

Article 5 

Non-conviction based confiscation  

Each Member State shall take the necessary measures to enable it to confiscate proceeds and 
instrumentalities  without  a  criminal  conviction,  following  proceedings  which  could,  if  the 
suspected  or  accused  person  had  been  able  to  stand  trial,  have  led  to  a  criminal  conviction, 
where:  

(a) 

(b) 

the death or permanent illness of the suspected or accused person prevents any 
further prosecution; or 

the illness or flight from prosecution or sentencing of the suspected or accused 
person prevents effective prosecution within  a reasonable  time,  and poses the 
serious risk that it could be barred by statutory limitations. 

Article 6 

Confiscation from a third party 

1. 

Each Member State shall take the necessary measures to enable it to confiscate:  

(a)  proceeds which were transferred to third parties by a convicted person or on his 
behalf, or by suspected or accused persons under the circumstances of Article 
5, or  

EN 

20 

   EN 

 
(b)  other property of the convicted person, which was transferred to third parties in 
order to avoid confiscation of property the value of which corresponds to the 
proceeds. 

2. 

The confiscation of proceeds or property referred to in paragraph 1 shall be possible 
where the property is subject to restitution or where 

(a) 

an  assessment,  based  on  specific  facts  relating  to  the  convicted,  suspected  or 
accused  person,  indicates  that  the  confiscation  of  property  of  the  convicted 
person,  or  of  the  suspected  or  accused  person  under  the  circumstances  of 
Article 5, is unlikely to succeed, and  

(b) 

the proceeds or property were transferred for free or in exchange for an amount 
lower than their market value when the third party:  

(i)  in  the  case  of  proceeds,  knew  about  their  illicit  origin,  or,  in  the 
absence  of  such  knowledge,  a  reasonable  person  in  its  position  would 
have  suspected  that  their  origin  was  illicit,  based  on  concrete  facts  and 
circumstances;  

(ii) in the case of other property, knew that it was transferred in order to 
avoid  confiscation  of  property  the  value  of  which  corresponds  to  the 
proceeds or, in the absence of such knowledge, a reasonable person in its 
position  would  have  suspected  that  it  was  transferred  to  avoid  such 
confiscation, based on concrete facts and circumstances. 

Article 7 

Freezing  

1. 

2. 

1. 

2. 

Each Member State shall take the necessary measures to enable it to freeze property 
in danger of being dissipated, hidden or transferred out of the jurisdiction with a view 
to possible later confiscation. Such measures shall be ordered by a court.  

Each  Member  State  shall  take  the  necessary  measures  to  enable  its  competent 
authorities  to  immediately  freeze  property  when  there  is  a  high  risk  of  dissipation, 
hiding or transfer of that property before a court's decision. Such measures shall be 
confirmed by a court as soon as possible.  

Article 8 

Safeguards  

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  persons 
affected  by  the  measures  provided  for  under  this  Directive  have  the  right  to  an 
effective remedy and that suspects have the right to a fair trial, in order to preserve 
their rights.  

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  reasons  are 
given  for  any  decision  to  freeze  property,  that  the  decision  is  communicated  to  the 

EN 

21 

   EN 

 
person  affected  as  soon  as  possible  after  its  execution  and  that  it  remains  in  force 
only  for  as  long  as  it  is  necessary  to  preserve  the  property  with  a  view  to  future 
confiscation. Each Member State shall provide for the effective possibility to appeal 
against  the  decision  to  freeze  by  the  persons  whose  property  is  affected  before  a 
court at any time before a decision on confiscation is taken. Frozen property which is 
not subsequently confiscated shall be returned immediately to its legitimate owner.  

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  reasons  are 
given  for  any  decision  to  confiscate  and  that  the  decision  is  communicated  to  the 
person  affected.  Each  Member  State  shall  provide  for  the  effective  possibility  to 
appeal  against  the  decision  to  confiscate  before  a  court  by  the  persons  whose 
property is affected.  

In proceedings referred to in Article 4, the suspected or accused person shall have an 
effective  possibility  to  contest  the  probability  on  the  basis  of  which  the  property 
concerned is considered to be proceeds.  

In  the  cases  referred  to  in  Article  5,  the  person  whose  property  is  affected  by  the 
decision to confiscate shall be represented by a lawyer throughout the proceedings in 
order to pursue the rights of the defence of the person relating to the establishment of 
the criminal offence and to the determination of the proceeds and instrumentalities. 

Where  the  person  whose  property  is  affected  is  a  third  party,  the  person  or  the 
person’s  lawyer shall be  informed  of  the proceedings that can lead to a decision to 
confiscate  that  property  and  shall  be  allowed  to  participate  in  those  proceedings  to 
the extent necessary to effectively preserve the person's rights. That person shall have 
at  least  the  right  to  be  heard,  the  right  to  ask  questions  and  the  right  to  provide 
evidence before a final decision on confiscation is taken.  

3. 

4. 

5. 

6. 

Article 9 

Determination of the extent of the confiscation and effective execution 

Each  Member  State  shall  take  the  necessary  measures  to  make  it  possible  to  determine  the 
precise  extent  of  the  property  to  be  confiscated  following  a  final  conviction  for  a  criminal 
offence  or  following  proceedings  as  foreseen  in  Article  5,  that  has  resulted  in  a  decision  to 
confiscate,  and  to  allow  further  measures  to  be  taken  to  the  extent  necessary  to  effectively 
execute that decision to confiscate.  

Article 10 

Management of frozen property  

1. 

2. 

Each Member State shall take the necessary measures, such as the establishment of 
national  centralised  offices  or  equivalent  mechanisms,  to  ensure  the  adequate 
management of property frozen with a view of possible later confiscation.  

Each Member State shall ensure that the measures referred to in paragraph 1 optimise 
the economic value of such property, and shall include the sale or transfer of property 
which is liable to decline in value.  

EN 

22 

   EN 

 
TITLE III 

FINAL PROVISIONS 

Article 11 

Statistics 

Member States shall regularly collect and maintain comprehensive statistics from the relevant 
authorities  in  order  to  review  the  effectiveness  of  their  confiscation  systems.  The  statistics 
collected  shall  be  sent  to  the  Commission  each  year  and  shall  include  for  all  criminal 
offences:  

(a) 

the number of freezing orders executed, 

(b) 

the number of confiscation orders executed, 

(c) 

the value of property frozen, 

(d) 

the value of property recovered, 

(e) 

(f) 

(g) 

(h) 

(i) 

(j) 

the number of requests for freezing orders to be executed in another Member 
State, 

the  number  of  requests  for  confiscation  orders  to  be  executed  in  another 
Member State, 

the  value  of  the  property  recovered  following  execution  in  another  Member 
State, 

the value of the property destined to be reused for law enforcement, prevention 
or social purposes, 

the  number  of  cases  where  confiscation  is  ordered  in  correlation  with  the 
number of convictions for the criminal offences covered by this Directive, 

the  number  of  requests  for  freezing  and  confiscation  orders  refused  by  the 
courts, 

(k) 

the  number  of  requests  for  freezing  and  confiscation  orders  not  upheld 
following legal challenges. 

Article 12 

Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by … [two years from the date of 
adoption].  They  shall  forthwith  transmit  to  the  Commission  the  text  of  those 
provisions. 

EN 

23 

   EN 

 
When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made.  

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 13 

Reporting 

The  Commission  shall,  by  [three  years  after  transposition  deadline]  submit  a  report  to  the 
European  Parliament  and  the  Council,  assessing  the  impact  of  existing  national  law  on 
confiscation and asset recovery, accompanied, if necessary, by adequate proposals. 

Article 14 

Replacement of Joint Action 98/699/JHA and of Framework Decisions 2001/500/JHA 
and 2005/212/JHA  

1. 

2. 

Joint Action 98/699/JHA, point (a) of Article 1 and Articles 3 and 4 of Framework 
Decision  2001/500/JHA,  and  Articles  1  and  3  of  Framework  Decision 
2005/212/JHA, are hereby replaced in relation to Member States participating in the 
adoption of this Directive, without prejudice to the obligations of the Member States 
relating to the time limit for transposition of the Framework Decisions into national 
law. 

In  relation  to  Member  States  participating  in  the  adoption  of  this  Directive, 
references  to  the  Joint  Action  and  to  the  provisions  of  the  Framework  Decisions 
referred to in paragraph 1 shall be construed as references to this Directive.  

Article 15 

Entry into force  

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

EN 

24 

   EN 

 
 
Article 16 

Addressees 

This Directive is addressed to the Member States in accordance with the Treaties. 

Done at Brussels,  

For the European Parliament 

For the Council 

The President 

The President 

EN 

25 

   EN