COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a regulation of the European Parliament and of the Council on the mutual recognition of freezing and confiscation orders
Date: 2016-12-21
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: confiscation of property, criminal proceedings, fight against crime, judicial cooperation in criminal matters in the EU, mutual recognition principle, offence, organised crime, seizure of goods

EUROPEAN 
COMMISSION 

Brussels, 21.12.2016  
SWD(2016) 468 final 

COMMISSION STAFF WORKING DOCUMENT 

IMPACT ASSESSMENT 

Accompanying the document 

Proposal for a regulation of the European Parliament and of the Council 

on the mutual recognition of freezing and confiscation orders 

{COM(2016) 819 final} 
{SWD(2016) 469 final} 

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Table of Contents 

1. 

2. 

2.1. 

2.2. 

2.3. 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

3.5. 

3.6. 

4. 

4.1. 

4.2. 

Introduction .................................................................................................................. 4 

Policy context ............................................................................................................... 4 

Policy context and current challenges .......................................................................... 4 

Statistical data .............................................................................................................. 6 

Stakeholder consultation .............................................................................................. 7 

The current legal framework ........................................................................................ 7 

The asset recovery process ........................................................................................... 7 

Different types of asset recovery .................................................................................. 9 

The EU legal framework ............................................................................................ 10 

The international legal framework ............................................................................. 12 

Confiscation in EU Member States ............................................................................ 12 

Recent trends in the area of freezing and confiscation .............................................. 14 

Problem definition ...................................................................................................... 15 

The general problems: ................................................................................................ 15 

General problem 1: Too few criminal assets are frozen and confiscated in the 
European Union in cross-border cases ....................................................................... 16 

4.3. 

Specific problems ....................................................................................................... 17 

4.3.1.  Specific problem 1: Too limited scope of the current mutual recognition legal 

framework .................................................................................................................. 17 

4.3.2.  Specific problem 2: The current procedures and certificates are too complex and 

inefficient ................................................................................................................... 19 

4.3.3.  Specific problem 3: Inconsistent implementation of existing mutual recognition 

instruments into national law ..................................................................................... 20 

4.4. 

General problem 2: The current mutual recognition instruments do not contain 
provisions on victims' compensation and restitution ................................................. 22 

4.5. 

The scale of the problem ............................................................................................ 23 

4.5.1.  The scale of criminal activity ..................................................................................... 23 

4.5.2.  The scale of freezing and confiscation in the European Union ................................. 25 

4.5.3.  Cross-border confiscation and freezing ..................................................................... 27 

4.5.4.  Cross-border confiscation and victims compensation................................................ 28 

4.6. 

Baseline scenario: how would the problem evolve in the future if no EU action takes 
place?.......................................................................................................................... 28 

4.7. 

Does the EU have power to act? ................................................................................ 32 

4.7.1.  Legal basis .................................................................................................................. 32 

4.7.2.  Subsidiarity: Why is the EU better placed to take action than Member States? ........ 32 

4.8. 

Fundamental Rights ................................................................................................... 33 

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5. 

6. 

6.1. 

6.2. 

Objectives ................................................................................................................... 33 

Policy options ............................................................................................................. 34 

Discarded Options ...................................................................................................... 34 

Description of the policy options ............................................................................... 35 

6.2.1.  Option 1: Maintaining the status quo .................................................................... 35 

6.2.2.  Option 2: Non-regulatory option ............................................................................ 35 

6.2.3.  Option 3 – Minimal regulatory option ................................................................... 36 

6.2.4.  Option 4 –Medium and Maximal regulatory option .............................................. 37 

7. 

7.1. 

7.2. 

7.3. 

7.4. 

7.5. 

8. 

9. 

Analysis of the impacts of the policy options ............................................................ 42 

Option 1: Maintaining the status quo ......................................................................... 42 

Option 2: Non-regulatory option ................................................................................ 42 

Option 3: Minimal regulatory option ......................................................................... 43 

Option 4: Medium and Maximal regulatory option ................................................... 44 

Overall comparison of costs and income of different options ................................... 48 

Comparison of the options ......................................................................................... 49 

The preferred option ................................................................................................... 55 

10. 

Monitoring and evaluation ......................................................................................... 56 

Annex 1 Procedural Information .............................................................................................. 57 

Annex 2 Stakeholders Consultation .......................................................................................... 60 

Annex 3 Who is affected by the initiative and how? ................................................................ 63 

Annex 4 The International legal framework ............................................................................. 64 

Annex 5 Non-conviction based confiscation systems in the EU .............................................. 65 

Annex 6 Confiscation and fundamental rights ......................................................................... 69 

Annex 7 Cost calculations ........................................................................................................ 77 

Annex 8 List of abbreviations ................................................................................................... 79 

Annex 9 Bulgarian example ..................................................................................................... 81 

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1. 

INTRODUCTION 

This  impact  assessment  concerns  a  set  of  measures  to  strengthen  the  mutual  recognition  of 
freezing and confiscation orders to be executed on a cross-border basis within the European 
Union. Such measures aim at facilitating and enhancing cooperation between Member States 
as  regards  the  mutual  recognition  and  execution  of  orders  to  freeze  and  to  confiscate 
property. This will increase Member States’ abilities to seize and confiscate criminal assets in 
other  Member  States  and  thereby  reduce  the  ability  of  organised  crime  groups  to  operate 
effectively. 

One  of  the  main  motives  for  criminal  activity  is  financial  gain.  Taking  away  the  profit  of 
criminal  activity  and  making  sure  that  "crime  does  not  pay"  is  therefore  a  very  effective 
mechanism  to  combat  crime.  Seizing  assets  generated  by  criminal  activities  aims  at 
preventing  and  combatting  crime,  including  organised  crime,  compensating  victims  and 
provides  additional  funds  to  invest  back  into  law  enforcement  activities  or  other  crime 
prevention initiatives. Freezing and confiscation of assets is also an important tool to combat 
terrorist financing and the recent terrorist attacks in the EU and notably in France, Belgium 
and Germany have shown the urgent need to act. 
Recent  research1  estimates  that  illicit  markets  in  the  European  Union  generate  about  110 
billion EUR, i.e. approximately 1% of the EU's GDP in 2010. However, and although existing 
statistics are limited, the amount of money currently being recovered from proceeds of crime 
within  the  EU  is  only  a  small  proportion:  98.9%  of  estimated  criminal  profits  are  not 
confiscated and remain at the disposal of criminals. A functioning asset recovery regime is a 
precondition  if  more  criminal  assets  are  to  be  seized.  This  includes  an  efficient  mutual 
recognition  framework  for  freezing  and  confiscation  orders.  Although  legislation  on  mutual 
recognition of freezing and confiscation orders does exist at EU level, it is patchy, out of date, 
and leaves significant lacunae which are exploited by criminals. 

2. 

POLICY CONTEXT 

2.1. 

Policy context and current challenges 

The  importance  of  confiscation  of  criminal  assets  has  been  recognised  by  the  European 
Union.  After  the  adoption  in  1999  of  the  Tampere  European  Council  conclusions,  four 
legislative  instruments  on  freezing  and  confiscation,  including  two  mutual  recognition 
instruments, were adoped between 2001 and 2006, which are all (at least in parts) still in force 
today.2  

After the entry into force of the Lisbon Treaty, confiscation has been given strategic priority 
at EU level as an effective instrument to fight organised crime. Another instrument, Directive 
2014/42/EU, was adopted, which establishes common minimum rules and thereby harmonises 
the  freezing  and  confiscation  of  instrumentalities  and  proceeds  of  crime  in  the  European 
Union. 

1 Europol, Criminal asset recovery in the EU, Survey of Statistical Information 2010-2014, Key findings, p.4.See 
also  Report  of  organised  Crime  Portfolio,  2015,  From  Illegal  Markets  to  legitimate  businesses:  the 
portfolio of organised crime in Europe, http://www.ocportfolio.eu/. 

2 Cf. Section 3.3.on the EU legal framework. 

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When  adopting  Directive  2014/42/EU,  the  European  Parliament  and  the  Council,  in  a  joint 
statement, called on the Commission "to present a legislative proposal on mutual recognition 
of  freezing  and  confiscation  orders  at  the  earliest  possible  opportunity  (…)  considering  the 
need of putting in place a comprehensive system for freezing and confiscation of proceeds and 
instrumentalities of crime in the EU"3. This call has been repeated at various occasions since 
in bilateral contacts and expert meetings. 

In  this  joint  statement  the  European  Parliament  and  the  Council  also  called  on  the 
Commission  to  analyse  the  feasibility,  opportunity  and  possible  benefits  of  introducing 
common  rules  on  non-conviction  based  confiscation  taking  into  account  the  differences 
between the legal traditions and the systems of the Member States. In view of delivering this 
analysis the Commission has organised expert meetings in September and November 2016. It 
envisages to issue the feasibility analysis in 2017. 

The terrorist attacks in 2015 and 2016 in the European Union and beyond underlined the acute 
need  to  prevent  and  fight  terrorism,  including  depriving  criminals  from  proceeds  of  these 
crimes.  
The Commission recognised in its European Agenda on Security of 28 April 20154 the urgent 
need  for  measures  to  address  terrorist  financing  in  a  more  effective  and  comprehensive 
manner and committed in its Communication of 2 February 2016 to the European Parliament 
and the Council on an "Action Plan for strengthening the fight against terrorist financing"5, to 
strengthening  the  mutual  recognition  of  criminal  assets'  freezing  and  confiscation  orders  by 
the  end  of  2016.  It  was  underlined  that  the  "mutual  recognition  of  judgments  and  judicial 
decisions is a key element in the security framework".  

In October 2016, the European Parliament, in the context of a report presented by MEP Laura 
Ferrara  on  the  fight  against  corruption,  has  called  again  on  the  Commission  to  submit  a 
proposal on the strengthening of mutual recognition of freezing and confiscation orders6. 

The current initiative is a response to identified deficiencies of the existing mutual recognition 
instruments7  and  to  these  policy  calls.  It  builds  on  existing  EU  legislation  on  mutual 
recognition of freezing and confiscation orders and adresses the fact that Member States have 
developed  new  forms  of  freezing  and  confiscating  of  criminal  assets,  going  beyond  the 
traditional forms of conviction based confiscation. . It also takes into account developments at 
EU  level,  including  the  minimum  standards  for  freezing  and  confiscation  orders  set  out  in 
Directive  2014/42/EU.  The  adoption  of  this  Directive,  combined  with  other  factors8, 
contributed to a shift of positions in Member States to use confiscation more frequently as a 
means  to  fight  crime  more  effectively.  Whereas  the  Directive  improves  the  domestic 
possibilities  to  freeze  and  confiscate  assets,  the  current  proposal  aims  to  improve  the  cross-

3 Council doc. 7329/1/14 REV 1 ADD 1. In its final report of 11 June 2013, the Special Committee on Organised 
Crime of the European Parliament also called for European legislation providing for the full application 
of the  existing mutual recognition instruments and the immediate enforceability of confiscation orders, 
cf.http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2013-
0245+0+DOC+XML+V0//EN 

4 COM (2015)185 final. See also the Communication on Delivering on the European Agenda on Security to fight  
against terrorism and pave the way towards an effective and genuine Security Union (COM(2016) 230 final, 
 p.13). 
5 COM (2016)50 final, Chapter 1.3 
6 Ferrara Report adopted by LIBE on 7 October 2016 
7 Cf. Section 4 of this Impact Assessment. 
8 Cf. Section 3.6 of this Impact Assessment 

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border  enforcement  or  freezing  and  confiscation  orders.  Together,  both  instruments  should 
contribute to effective asset recovery in the European Union. 

This  initiative  also  concurs  with  recent  activities  taken  beyond  the  EU  as  the  Council's  of 
Europe  Action  Plan  of  2  March  2016,  the  on  combating  Transnational  Organised  Crime 
(2016-2020).9 Pointing to the recovery of assets, where the Council of Europe also identified 
shortcomings  both  in  terms  of  implementation  of  the  existing  conventions  and  of  scope  of 
these instruments. The Action Plan proposes different actions to improve recovery of criminal 
assets,  including  facilitating  exchange  of  best  practices,  training,  guidelines,  but  also 
reviewing if a new convention would be necessary e.g. to cover new forms of confiscation or 
to enhance the situation of victims in asset recovery procedures. 

2.2. 

Statistical data  

It has proved difficult to collect statistical data covering the number of cross-border freezing 
and confiscations orders, the amounts involved and/or recovered. The analysis in this Impact 
Assessment has constrains in data availability because:  

•  The enforcement of freezing and confiscation orders is not centralised in the Member 
States, meaning that a large number of judges and prosecutors is involved, and there is 
no obligation to inform a centralised organisation on when a request comes in; 

• 

In  many  Member  States  statistics  on  freezing  and  confiscation  orders  are  not 
compiled; 

•  There  are  different  types  of  enforcement  orders  and  they  are  not  organised  by 

categories; 

•  For cross-border cases there is no obligation to collect data neither on the number of 
requests  to  be  executed  in  another  Member  State  nor  on  the  value  or  the  estimated 
value recovered following the execution in another Member State. 

The need for statistics has been highlighted many times over the last years. A study carried 
out  in  200910  stated  "The  majority  of  EU  Member  States  do  not  automatically  evaluate 
innovations  like  criminal  asset  recovery.  The  operating  statistics  necessary  to  measure 
implementation and assess effects are therefore not available. This makes it very difficult to 
diagnose  and  remedy  system  defects".  The  lack  of  statistical  data  was  also  raised  in  the 
Commission's Impact Assessment accompanying the Proposal for a Directive on the freezing 
and  confiscation  of  proceeds  of  crime  in  the  EU11.  In  order  to  remedy  this  issue,  Directive 
2014/42/EU provides in Article 11 the obligation on Member States "to regularly collect and 
maintain  comprehensive  statistics  from  the  relevant  authorities  in  order  to  review  the 
effectiveness of their confiscation systems". Concerning cross-border cases, the Directive also 
requires Member States to provide statistics on the number of freezing and confiscation orders 
to be executed in another Member State, and the value of the property recovers, if they are 
available  at  central  level.  This  is  an  important  step  forward  to  improve  data  collection. 
However, the data gathering obligation is fully binding only from 4 October 2016 onwards. 
Moreover,  regarding  cross-border  cases,  the  Directive  creates  an  obligation  to  ,  to  provide 

9 Cf 

http://www.coe.int/t/DGHL/STANDARDSETTING/CDPC/CDPC%20documents/CDPC%20(2015)%2
017%20Fin.pdf 

10 Study for an Impact Assessment on a proposal for a new legal framework on the confiscation and recovery of 

criminal assets, Framework Service Contract N°JLS/2010/EVAL/FW/001/A1 

11 SWD(2012) 31 final of 12.3.2012 

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statistics to the Commission only if they are already available at central level in the Member 
State concerned. It also requests Member States to endeavour to collect data at central level.  

Stakeholder consultation 

2.3. 
This  report  is  based  on  a  targeted  consultation  of  relevant  stakeholders12.  Confiscation  is  a 
specialised  and  technical  topic  which  is  dealt  with  by  a  rather  limited  number  of  experts 
working in this area (namely prosecutors, judges, lawyers, bar associations, officials working 
in national Ministries of Justice or Interior or Asset Recovery Agencies, academia). Bilateral 
contacts, expert meetings and conferences were organised by the Commission to complement 
existing  sources  of  information  and  provide  additional  data  and  facts.  The  most  important 
ones  were  a  large  conference  organised  jointly  by  the  Commission  together  with  the  NL 
Presidency  on  20  June  2016,  where  about  100  experts  from  all  Member  States  exchanged 
their views, a meeting of the Criminal Law Experts Group on 29 September 2016 and most 
recently an expert meeting on 17 November 2016 with experts from the national Ministries of 
Justice or Interior. A summary of this consultation process is provided for in Annex 2. 

3. 

3.1. 

THE CURRENT LEGAL FRAMEWORK 
The asset recovery process13 

Asset recovery applies in principle to all crimes (or at least to most criminal activities in some 
Member States). However, in practice it is more frequently applied to serious cases. Typical 
examples  are  crimes  generating  huge  income  and  liquidity,  such  as  drug  trafficking.  The 
proceeds of crime are then converted into assets ranging from cash held in bank accounts to 
real  estate,  luxury  vehicles  such  as  sportcars,  yachts,  livestock,  artworks,  company  shares, 
businesses, collector's items etc14.  
Table 1: Examples of asset confiscation in cross-border cases15  

Member State 

Assets subject to confiscation with Eurojust's assistance 

Belgium 

Bulgaria 

Germany 

Ireland 

Spain 

Two boats to be confiscated in Spain 

€  37000  in  cash  and  real  estate  property  confiscated  in  the 
United Kingdom 

€ 100 000 000 confiscated in a  large tax fraud case involving 
coordinated searches in 15 countries 

Substantial  amounts  of  property  confiscated  in  Spain  and 
Ireland 

Five cases involving confiscation of € 112 000 000, € 17 000 
000, € 1 000 000, € 23 000 and € 9 000 000.

12 An exemption from the obligation to carry out a public consultation and an ex-post evaluation was granted by 

CAB VP Timmermans on 18 November 2016. 

13 See SWD(2012) 31 final of 12.3.2012, Chapter 3 
14 See Report of organised Crime Portfolio, 2015, From Illegal Markets to legitimate businesses: the portfolio of 

organised crime in Europe, p.154-155 

15 SWD(2012) 31 final of 12.3.2012 

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Italy 

France 

Sweden 

UK 

Provisional  confiscation  in  the  Netherlands  of  €  400  000. 
Freezing  of  800kg  of  counterfeit  products  in  10  countries. 
Freezing of a luxury watch in Germany. Freezing of 300kg of 
cocaine  in  Belgium,  Spain,  Italy  and  Czech  Republic. 
Freezing  of  documents  related  to  the  registration  of  100 
vehicles in Germany. Freezing of 700 kg of hashish, one pc, 
mobile  telephones  and  documents  in  France,  Spain  and  the 
United Kingdom. Freezing of one server in Austria. 

Property  and  vehicles  confiscated  in  Italy,  one  ship  and  the 
freezing of 1400 kg of cocaine. 

€  1  685  800  confiscated  in  Sweden  and  a  ship  in  another 
country. 

All  property  and  money  of  a  main  suspect  (incl.  a  house,  a 
speedboat and money with a total value in excess of € 1 200 
000). Several luxury vehicles in Spain. 

The  recovery  of  criminal  assets  is  a  legal  process  whereby  criminal  assets  are  recovered  in 
favour  of  victims,  deprived  communities  or  the  State.  At  the  heart  of  this  process  lies  the 
determination by a court that particular assets derive from criminal activity and are, thereby, 
liable to confiscation. This typically takes the form of a confiscation order.  
The process is illustrated in table 2 below16. 

Table 2: The steps in the asset recovery process in Europe 

1.  Identification/tracing:  Regardless  of  the  nature  of  the  confiscation  order,  criminal  assets 
can only be confiscated once they have been identified. 

2. Freezing: during the investigation process, criminal assets subject to confiscation must be 
secured to avoid dissipation, movement or destruction. The typical mechanism is freezing. 

3.  Confiscation:  The  confiscation  is  the  final  deprivation  of  property  of  criminal  assets 
ordered by a court. 

4.  Enforcement:  When  a  court  has  ordered  the  confiscation,  the  order  makes  it  legally 
possible to recover criminal assets. The confiscation order is enforced against particular assets. 
The  person  subjected  to  the  measure  loses  all  rights  to  the  confiscated  asset,  steps  must  be 
taken to enforce the order 

5. Return of Assets: Recovered assets may be returned to victims or deprived communities or
they may revert to the State. 

The  first  stage  in  the  asset  recovery  process  is  the  tracing  and  identification  of  assets.  This 
phase involves law enforcement investigations (usually under the coordination of a prosecutor) 
and  requires  substantial  financial  investigation  skills.  As  assets  are  often  hidden  abroad,  it 

16 See Asset Recovery Handbook, a guide for practitioners, Jean-Pierre Brun, Larissa Gray, Clive Scott, Kevin 
M. Stephenson, 2011, Chapter 1: Overview of the Asset Recovery process; The Portfolio of organised 
crime in Europe, Report 2015, p.225 

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requires cross-border cooperation. National Asset Recovery Offices (AROs) play a key role in 
expediently providing information to other AROs on the assets located in their territory.17  

After criminal  assets are located in one or more countries, judicial procedures are  needed to 
first freeze them and subsequently to confiscate them. Following their freezing, assets should 
be properly managed between the time when they are seized and the time when a confiscation 
order is issued, so that their value is maintained. In principle assets become the property of the 
executing State, which may sell them or re-use them as appropriate.   

The  impact  assessment  focuses  on  steps  2  and  3,  being  the  main  aspects  for  judicial 
cooperation in cross-border cases, and also covers steps 4 and 5.  

3.2. 

Different types of asset recovery 

Criminals attempt to conceal their illicit gains from justice, taking all measures they can to put 
assets beyond the scope of confiscation laws or enforcement measures.  

In recent years, as a response to this phenomenon, many Member States have instituted new 
forms  of  confiscation  orders  in  order  to  deprive  criminals  of  their  illegally  obtained  assets 
more efficiently. One can distinguish:  

-  ordinary  confiscation  (conviction  based  confiscation)  is  a  confiscation  measure  directed 
against  an  asset  which  is  the  direct  proceed  or  the  instrumentality  of  a  crime,  following  a 
criminal conviction for that crime; 

- extended confiscation is a confiscation  measure following a criminal conviction that goes 
beyond the direct proceeds of the crime for which a person was convicted, where the property 
seized is derived from criminal conduct. A direct link between the property and the offence is 
not  necessary  if  the  court  concludes  that  part  of  the  person's  property  was  obtained  through 
other unlawful conduct. 

- third-party confiscation is a confiscation measure made to deprive someone other than the 
offender  –  the  third  party  -  of  criminal  property,  where  that  third  party  is  in  possession  of 
property transferred to him by the offender; 

-  value-based  confiscation  is  a  confiscation  measure  by  which  a  court  imposes  an  order 
corresponding  to  the  value  of  proceeds  or  instrumentalities  of  a  crime,  which  is  realizable 
against any property of the individual; 

-  non-conviction  based  confiscation  (hereafter  ‘NCBC’)  is  a  confiscation  measure  taken  in 
the  absence  of  a  conviction  and  directed  against  an  asset  from  illicit  origin.  It  covers  cases 
where  a  criminal  conviction  is  not  possible  because  the  suspect  has  become  ill  or  fled  the 
jurisdiction, has died, lacks legal capacity (e.g. is a minor or of unsound mind), has immunity 
from  prosecution  or  amnesty  or  where  the  statute  of  limitations  has  passed,  or  where  a 
conviction  is  not  possible  for  other  reasons  like  lack  of  proof,  but  the  court  is  nevertheless 
convinced in a criminal procedure that the assets are of criminal origin. It also covers the cases 
of  action  against  the  asset  itself  (so-called  "proceedings  in  rem",  generally  in  civil 
proceedings)18, regardless of the person in possession of the property, for example when the 
proceeds of crime have been identified but cannot be linked to any individual; or the suspect is 

17  Cf.  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, OJ L 332 of 18.12.2007, p. 103. 

18 "Proceedings in rem" means that proceedings are initiated against the property (not against a specific person). 

See below, section 3.5 

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outside the jurisdiction of the Member State considering confiscation and there is no prospect 
of his being brought within that Member State to face trial.    

In  addition  several  Member  States  provide  for  the  right  of  the  victim  for  restitution  or 
compensation of damages from the confiscated property.   

3.3. 

The EU legal framework 

The  current  EU  legal  framework  consists  of  five  main  instruments.  Apart  from  Council 
Decision  2007/845/JHA  on  asset  tracing,  two  of  them  are  mutual  recognition  instruments 
while two others are harmonisation measures. Both types of instruments are necessary in order 
to have a functioning regime of recovery of criminal assets and they complement each other. 

Mutual recognition 
Mutual  recognition  means  that  a  decision  usually  taken  by  a  judicial  authority  in  one  EU 
Member State is recognised, and where necessary, enforced by other EU Member States as if 
it  was  a  decision  taken  by  the  judicial  authorities  of  the  latter  Member  States.  Mutual 
recognition is based on mutual trust between Member States' authorities. 
Harmonisation 
Harmonisation in the area of EU criminal law means creating common minimum standards. It 
does not involve full scale unification.  

The mutual recognition principle implies that a judicial decision taken by a competent judicial 
authority  of  a  Member  State  has  to  be  executed  in  another  Member  State  without  prior 
verification  according  to  the  national  law  of  the  executing  State.  The  grounds  on  which 
recognition  and  execution  can  be  refused  are  enumerated  exhaustively  in  the  instrument.  A 
certificate  to  be  used  contains  all  necessary  information  for  the  executing  State  to  take  its 
decision.  

There are a number of EU instruments in the area of judicial cooperation in criminal matters 
based  on  the  principle  of  mutual  recognition.  The  most  successful  one  is  probably  the 
European Arrest Warrant19. It is difficult to deduct key success factors from an instrument like 
the  EAW  and  apply  them  to  a  very  different  context  like  the  freezing  and  confiscation  of 
criminal  assets,  but  the  EAW  example  shows  that  mutual  recognition  can  make  judicial 
cooperation between Member States very efficient.  

Mutual recognition instruments: 

Council  Framework  Decision  2003/577/JHA  of  22  July  2003  on  the  execution  in  the 
European Union of orders freezing property or evidence20 and Council Framework Decision 
2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to 
confiscation orders are aimed at facilitating the recovery of assets in cross-border cases21.  

Both  Framework  Decisions  are  based  on  the  principle  of  mutual  recognition  and  work  in  a 
similar  way.  Both  instruments  require  freezing  or  confiscation  orders  issued  in  one  Member 
State  to  be  recognised  and  executed  in  another  Member  State.  The  orders  are  transmitted 
alongside a certificate to the competent authorities in the executing State which must recognise 
them without further formalities and take the measures necessary for their execution.  

19  Council  Framework  Decision  2002/584/JHA  on  the  European  arrest  warrant  and  the  surrender  procedures 

between Member States (EAW), OJ L 190 of 18.7.2002, p. 1. 

20 OJ L 196/45 of 2.8.2003. As regards freezing for the purpose of safeguarding evidence, Framework Decision 
2003/577/JHA will be replaced by Directive 2014/41/EU on the European Investigation Order. 

21 OJ L 328/59 of 24.11.2006 

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Mutual  recognition  is  mandatory  for  a  list  of  offences  punishable  by  at  least  three  years  of 
imprisonment in the issuing State. In other cases, dual criminality is necessary, which means 
that recognition can be refused if the crime to which the freezing or confiscation order relates 
is  not  a  criminal  offence  under  the  laws  of  the  executing  Member  State.  The  Framework 
Decisions allow for further grounds for refusal in certain situations. 

Harmonisation measures: 

Council  Framework  Decision  2001/500/JHA  on  money  laundering,  the  identification, 
tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, the 
first  instrument  in  this  area,  was  soon  considered  not  to  sufficiently  achieve  effective  cross-
border  cooperation22  and  was  replaced  in  2005  by  the  Framework  Decision  2005/212/JHA.  
Council Framework Decision 2005/212/JHA of 24 February 2005 on confiscation of crime-
related  proceeds,  instrumentalities  and  property23  requires  all  Member  States  to  put  in  place 
effective  measures  to  enable  the  ordinary  confiscation  of  criminal  instrumentalities  and 
proceeds  for  all  criminal  offences  punishable  by  detention  of  at  least  one  year.  It  also 
introduced  provisions  on  extended  confiscation.  However,  the  level  of  harmonisation 
introduced by this instrument is very low, and it has not removed the diversity of national legal 
confiscation regimes.  

Directive  2014/42/EU  of  3  April  2014  on  the  freezing  and  confiscation  of  instrumentalities 
and  proceeds  of  crime  in  the  EU24  had  to  be  implemented  by  Member  States  until  October 
2016. It replaces certain provisions of Council Framework Decision 2005/212/JHA. Whereas 
Framework Decision 2005/212/JHA applies to all criminal offences punishable by detention of 
at least one year, the Directive could only cover the so-called Eurocrimes25.  

Directive  2014/42/EU  sets  minimum  rules  for  national  freezing  and  confiscation  regimes:  it 
requires  ordinary  and  value  confiscation  for  Eurocrimes,  including  where  the  conviction 
results  from  proceedings  in  absentia.  It  provides  rules  for  extended  confiscation  subject  to 
certain conditions. It also enables confiscation where a conviction is not possible because the 
suspect or accused person is ill or has absconded. The Directive also enables for the first time 
the confiscation of assets in the possession of third parties. Finally, the Directive introduces a 
number  of  procedural  safeguards26,  such  as  the  right  to  be  informed  of  the  execution  of  the 
freezing order including, at least briefly, on the reason or reasons; the effective possibility to 
challenge  the  freezing  order  before  a  court;  the  right  of  access  to  a  lawyer  throughout  the 
confiscation proceedings; the effective possibility to claim title of ownership or other property 
rights;  the  right  to  be  informed  of  the  reasons  for  a  confiscation  order  and  to  challenge  it 
before a court.  

3.4. 

The international legal framework 

Since  the  1990's  the  confiscation  of  illicit  money  has  become  a  political  priority  at 
international  level  (UN,  OECD,  Council  of  Europe,  Financial  Action  Task  Force  -  FATF). 

22 Cf. Framework Decision 2005/212/JHA, Recital 9. 
23 OJ L 68/49 of 15.3.2005 
24 OJ L 127/39 of 29.4.2014 
25  According  to  Art.  83  TFEU,  Eurocrimes  are  particularly  serious  crimes  with  a  cross-border  dimension 
resulting  from  the  nature  or  impact  of  such  offenses  or  from  a  special  need  to  combat  them  on  a 
common basis. They are the following: terrorism, trafficking in human beings and sexual exploitation 
of  women  and  children,  illicit  drug  trafficking,  illicit  arms  trafficking,  money  laundering,  corruption, 
counterfeiting of means of payment, computer crime and organised crime. Because of the legal base of 
Article 83(1) TFEU, the scope of Directive 2014/42/EU is limited to Eurocrimes, and does not cover 
other criminal offences which generate proceeds. 

26 Cf. Article 8 

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The  international  acquis  is  set  out  in  detail  in  Annex  4.  The  international  conventions  are 
important tools in the fight against organised crime and the efforts to enhance asset recovery. 
They provide alternative, more traditional means of judicial cooperation compared to mutual 
recognition, based on mutual legal assistance (MLA).  

Mutual legal assistance 
Mutual legal assistance consists of cooperation between different countries for the purpose of 
gathering  and  exchanging  information,  requesting  and  providing  assistance  in  obtaining 
evidence located in one country to assist in criminal investigations or proceedings in another 
or in freezing and confiscating assets of criminal origin.  

Mutual  legal  assistance  is  widely  used  in  cross-border  cooperation  in  criminal  matters.  It  is 
based on reciprocity and involves more actors than mutual recognition: requests are generally 
sent by a judge to a central authority in the requesting State, then to a central authority in the 
requested  State,  then  to  a  judicial  authority  for  execution.  It  allows  to  combine  several 
requests (e.g. assistanc to locate an asset and then assitance to freeze the asset), which is an 
advantage  compared  to  mutual  recognition.  However,  in  comparison  to  mutual  recognition 
there  are  obvious  drawbacks  of  the  system  of  mutual  legal  assistance:  the  execution  is  not 
mandatory  but  depends  on  the  domestic  legal  system  of  the  executing  State.  Moreover,  a 
mutual legal assistance procedure may be very lengthy as there are no deadlines foreseen and 
more  actors  involved  (in  average,  mutual  legal  assistance  requests  habe  been  found  to  last 
about a year in average). 

In addition, not all of the international acquis is binding or applicable between all EU Member 
States. For example, the so-called "Warsaw-Convention" adopted by the Council of Europe in 
2005 has been ratified only by 17 EU Member States. The Recommendations adopted by the 
Financial Action Task Force (FATF) have no binding character.  

3.5. 

Confiscation in EU Member States 

The  national  confiscation  systems  in  the  EU  differ  substantially.  Each  Member  State’s 
confiscation  laws  have  evolved  in  response  to  domestic  imperatives,  the  respective  legal 
traditions27 and cultural differences28. By the time the EU began to act in 2001 some Member 
States already had potent asset confiscation regimes in place, whilst others did not29. 

For efficiency reasons, some Member States have introduced confiscation systems to provide 
for the confiscation of property without a prior criminal conviction.  
In Europe, Italy was the first country to introduce a preventative confiscation system in 196530 
in order to tighten the fight against mafia organisations31. In 1996, inspired by the USA which 

27 For example, civil law and common law approach 
28  Some  judges  consider  confiscation  as  an  additional  punishment  of  an  already  convicted  person  and  are 

reluctant to apply it systematically. Meeting of Criminal Law Expert Group, 29.9.2016 

29  For  example,  substantial  differences  exist  between  the  national  regimes  for  third  party  confiscation  and 
extended confiscation. Non-conviction based confiscation is heavily used in Ireland, Bulgaria and other 
countries, but is not so widely used in Romania (property is presumed to be of licit origin and a reversal 
of  the  burden  of  proof  would  be  perceived  as  problematic).  France  introduced  a  new  crime  for 
"possession of unjustified assets" (in case of evident links with organised crime activities) which does 
not exist in other Member States. 

30 Act N°575 in 1965 
31 See evaluation of Italian system: 
https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2014-September-11-

12/Combined_CacCosp-Wg2-2014-CRP3.pdf 

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had introduced civil confiscation in 1970, comprehensive legislation on NCBC was developed 
in Ireland32. The Irish non-conviction based model acts in rem on property that constitutes the 
proceeds  of  crime.  It  applies  civil  law,  no  link  to  criminal  proceedings  is  required.  Several 
years  later,  similar  legislation  came  into  force  in  the  United  Kingdom33.  More  recently, 
Bulgaria34,  Slovakia  and  Slovenia35  have  also  introduced  forms  of  civil  NCBC  in  which  the 
confiscation proceedings are initiated against the property36 (see Overview of NCBC systems, 
Annex 5).  

These  systems  are  generally  referred  to  as  civil  because  they  allow  for  the  recovery  in  civil 
proceedings, where evidence of a specific crime generally follows civil law standards. Assets 
are  taken  from  persons  suspected  of  involvement  in  crime  or  illegal  activity  without 
necessarily  charging  the  owner  of  the  assets  with  an  offence.  Civil  confiscation  is  directed 
against property, not a person. 

Conviction-based  confiscation  in  criminal 
proceedings 

Non-conviction  based  confiscation  in  civil 
proceedings 

Proceedings  are  brought  by  the  State  against 
an  individual  and  form  part  of  an  action 
(in 
brought  against  a 
personam). 

specific  person 

Proceedings  are  initiated  by  the  State  against 
the property (in rem). 

The  confiscation  usually  forms  part  of  the 
sentencing of the individual once found guilty 
(criminal conviction) in criminal proceedings.

Confiscation  is  imposed  before,  during  or 
after  criminal  conviction,  or  even  when  no 
action is brought against a specific person. 

A criminal conviction in criminal proceedings 
is  required  with  clear  evidence  of  a  crime 
"beyond reasonable doubt." 

is  not 

required. 
A  criminal  conviction 
Evidence  of  unlawful  conduct  must  be 
provided  and  the  illegality  of  the  assets  must 
be  decided  based  on 
the  "balance  of 
probabilities",  often  with  a  shifting  of  the 
burden of proof from the Member State to the 
individual/owner of the asset. 

Object-based and value-based 

Object-based 

Criminal courts 

Criminal or civil courts 

Source: EUROJUST, Report on non-conviction based confiscation, 2012, p.7 

In  addition,  differences  between  Member  States  also  exist  with  regard  to  extended 
confiscation. Framework Decision 2005/212/JHA left a choice to Member States regarding the 
criteria  for  extended  confiscation.  Directive  2014/42/EU  lays  down  common  minimum 

32 Proceeds of Crime Act, 1996; for more details see Council of Europe, Impact Study on Civil Forfeiture, March 

2013 

33 Proceeds of Crime Act, 2002 
34 Law on forfeiture in favour of the State of illegally acquired property, in force since 19.11.2012 
35 Confiscation of Assets of Illicit Origin Act 
36 See evaluation of confiscation practices in Bulgaria, Italy and Romania: 
http://www.confiscation.eu/site/wp-content/uploads/2015/03/Final_Report_EN_web.pdf 

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standards for extended confiscation in all Member States. In addition to the systems described 
above, Greece, Latvia, Lithuania, the Netherlands, Romania and Spain have introduced NCBC 
in the form of "unexplained wealth" in some limited cases. This means that the actual property 
of a person is compared to the income declared in order to identify any disparity between the 
two.  Establishing  a  link  to  an  offence  is  not  necessary37.  Also,  some  of  the  Member  States 
apply  different  administrative  proceedings  to  confiscate  property  obtained  through  unlawful 
conduct. For example, in Hungary any property obtained through unlawful conduct could be 
confiscated in tax proceedings38.  

3.6. 

Recent trends in the area of freezing and confiscation 

Several years of efforts at international and EU level have led to an enhanced perception of the 
importance  of  confiscation  and  freezing  and  a  more  dynamic  development  in  this  area 
recently.  This  is  not  only  due  to  the  legal  work  (e.g.  Directive  2014/42/EU)  but  also  to  an 
enhanced  exchange  of  expertise  between  Member  States.  For  example,  regular  meetings  at 
expert  level  to  exchange  best  practices  and  to  enhance  cooperation.  For  example,  regular 
expert meetings of Member States' authorities have been organised by the Commission under 
the  EU  ARO  Platform,  several  meetings  with  Europol  and  Eurojust  have  taken  place  to 
support and strengthen Member States' activities at operational level. 

All these efforts have contributed to an increased awareness of the importance of confiscation 
and freezing in the fight against organised crime and terrorism. They have also shown that the 
traditional forms of criminal conviction based confiscation are rather complicated and heavy 
and therefore not very efficient. 

It  is  against  this  background  that  Member  States  are  currently  revising  their  freezing  and 
confiscation  legislation  to  implement  Directive  2014/42/EU39.  Several  Member  States  are 
using this opportunity to modernise their asset recovery regimes beyond the obligations of the 
Directive.40  On  25  April  2015,  21  April  2016  and  17  November  2016  the  Commission  held 
experts meetings where the Member States provided detailed information on their respective 
systems and legislative reforms to implement the Directive 2014/42/EU.  
Largely, three groups of Member States can be distinguished41:  

(1) Approximately 12 Member States which have the classical conviction based approach and 
which  aligned  (or  are  currently  aligning)  their  asset  recovery  regimes  along  the  lines  of  the 
Directive  2014/42/EU  (including  extended  confiscation  and  criminal  non-conviction  based 
confiscation in cases of illness or absconding only). 

(2)  Approximately  8  Member  States  which  go  beyond  the  requirements  of  the  Directive 
2014/42/EU and include other forms of criminal non-conviction based confiscation (in case of 
death of a person or where a criminal court can confiscate an asset in the absence of conviction 
when the court is convinced that such asset is the proceeds of crime). 

(3) Approximately 7 Member States which have an asset recovery regime (or where a reform 
is ongoing) which includes also civil or administrative non-conviction based confiscation. 

37 See Carin, Non-conviction Based confiscation Typologies, p.2; Eurojust, Report on non-conviction based 
 confiscation, 2013 
38 Eurojust, Report on non-conviction based confiscation, 2013, p.11 
39  Transposition  deadline:  4  October  2016;9  Member  States  have  notified  complete  transposition,  4  Member 

40  See 

States have partially transposed. In several other Member States reforms are still ongoing. 

for  example 

in  Germany 

"Entwurf  eines  Gesetzes  zur  Reform  der  Strafrechtlichen 

Vermögensabschöpfung" of June 2016 
41 Due to on-going reforms Member States are not named. 

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It  became  also  clear  that  even  though  the  Directive  will  result  in  greater  harmonisation  on 
many  aspects  of  the  different  confiscation  regimes  in  the  EU  Member  States,  important 
differences  are  expected  to  persist  in  areas  outside  the  scope  of  the  Directive,  in  particular 
regarding NCBC and the civil or administrative procedures that some Member States use . 

4. 

PROBLEM DEFINITION 

The problem definition builds on: 
-  the  implementation  reports  on  Framework  Decision  2003/577/JHA42  and  Framework 
Decision 2006/783/JHA43; 
-  the  2012  Impact  Assessment  accompanying  the  Commission  proposal  for  Directive 
2014/42/EU  which  already  concluded  on  the  need  for  a  legal  instrument  to  improve  mutual 
recognition in this area; 
-  a  comparative  law  study  on  the  implementation  of  mutual  recognition  of  freezing  and 
confiscation orders in the EU of 201344; 
- several expert meetings (including an in-depth expert meeting on 17 November 2016 with 
focus on non-conviction based confiscation) and conferences dedicated to the issue of mutual 
recognition of freezing and confiscation orders. 
In view of the existing data, a separate ex post evaluation of the existing mutual recognition 
instruments was not carried out. The 2013 study evaluated the performance of the existing EU 
measures  (effectiveness,  efficiency).  The  2012  Impact  Assessment  accompanying  the 
proposal  for  Directive  2014/42/EU45  also  included  an  evaluation  of  the  same  measures,  and 
reached an identical conclusion, namely that there was a fundamental problem with the scope 
of the existing measures and that a new mutual recognition instrument was justified. The 2012 
Impact Assessment was approved by the Impact Assessment Board.  
Moreover, no public consultation was carried out because of the nature of the topic and the 
political urgency, cf. Annex 2. For both the ex post evaluation and the public consultation, an 
exemption was granted. 

4.1. 

The general problems:  

Two  general  problems  have  been  identified  in  the  context  of  the  mutual  recognition  of 
freezing and confiscation orders within the EU: (1) the insufficient recovery of criminal assets 
in  cross-border  cases;  (2)  the  insufficient  protection  of  victims'  rights  to  restitution  and 
compensation in cross-border cases. Although both problems are not directly inter-linked, the 
second  problem  depends  to  a  certain  extent  on  the  first  problem  (if  there  is  insufficient 
freezing  and  confiscation  in  cross-border  cases,  the  restitution  and  compensation  of  victims 
will be insufficient as well). 

42  Report  from  the  Commission  to  the  European  Parliament  and  the  Council  of  22.12.2008  [COM(2008)  885 

final - Not published in the Official Journal]. 

43 Report from the Commission to the European Parliament and the Council of 23.8.2010 [COM(2010) 428 final 

– Not published in the Official Journal]. 

44  Study  carried  out  by  DBB  in  November  2013  "Comparative  Law  Study  of  the  implementation  of  mutual 

recognition of orders to freeze and confiscate criminal assets in the EU", 

45  Commission  Staff  Working  paper  accompanying  document  to  the  Proposal  for  a  Directive  of  the  European 
Parliament  and  the  Council  of  the  freezing  and  confiscation  of  proceeds  of  crime  in  the  European 
Union,  SWD(2012) 31 final. 

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4.2. 

General  problem  1:  Too  few  criminal  assets  are  frozen  and  confiscated  in  the 
European Union in cross-border cases 

The 2015 report of organised Crime Portfolio46 concludes that organised crime activities are 
often  transnational  in  nature  and  the  assets  of  criminal  groups  are  increasingly  invested  in 
other Member States. Illicit markets in Europe are changing rapidly in size, products, actors, 
routes and  flows, but they remain  key  source of proceeds for organised crime in Europe. A 
significant discrepancy exists between what criminals invest and what is actually confiscated. 

To tackle this phenomenon, efficient judicial cooperation is necessary. Nevertheless, Member 
States  today  make  little  use  of  judicial  cooperation  tools  to  freeze  and  confiscate  criminal 
assets  located  in  other  Member  States.  Only  very  few  freezing  and  confiscation  orders  are 
issued  and  executed  in  other  Member  States,  in  relation  to  the  amount  of  criminal  assets 
moved  abroad  by  the  offenders.  According  to  reports  by  practitioners  and  Member  States' 
governments, compared to some other mutual recognition instruments (such as the European 
Arrest Warrant (EAW)), the ones on freezing and confiscation are used very little47.  

Members  of  Eurojust,  Europol,  judges  and  prosecutors  have  repeatedly  pointed  out  during 
expert meetings or bilateral contacts48 that confiscation is a very efficient tool, in particular in 
the fight against organised crime such as drug trafficking. Many have noted that confiscation 
procedures at cross-border level are underused and that there is an increased need for effective 
cross-border cooperation on asset recovery.  

For  some  Member  States,  classic  tools  and  instruments  of  international  co-operation,  i.e. 
requests for mutual legal assistance, have remained the most suitable route for asset recovery 
cases.  But  even  if  one  takes  mutual  legal  assistance  into  account,  cross-border  confiscation 
procedures remain underused49.  

It results clearly from various studies carried out recently in this area that the main reason for 
this  is  the  differences  in  national  freezing  and  confiscation  schemes  described  above50, 
combined with a lack of obligation to recognise many of those orders. The executing Member 
State may not know in its legal system the type of confiscation that is to be implemented. The 
proceedings  may  be  of  a  different  nature,  the  standard  of  proof  may  be  different  and 
procedural  rights  may  vary.  A  significant  number  of  Member  States  does  therefore  not 
recognise some types of freezing or confiscation orders issued in another Member State, be it 
under  mutual  recognition  or  mutual  legal  assistance.  Moreover,  the  current  Framework 
Decisions  on  mutual  recognition  have  several  deficiencies,  described  below.  There  are  also 
cultural differences between Member States regarding how much confiscation is used, but this 
is  not  specifically  linked  to  the  issue  of  lack  of  cross-border  confiscation  and  is  outside  the 
scope of this exercise. 

This  provides  a  fertile  environment  for  criminals,  including  terrorists  and  terrorist 
organisations; they are able to keep the proceeds of their criminal activities and even re-use 
them  for  commiting  further  crimes.  The  recent  terrorist  attacks  in  2015  and  2016  have 

46  "From  illegal  markets  to  legitimate  businesses:  The  Portfolio  of  Organised  crime  in  Europe",  2015,  see 

executive summary, p.8 

47 Cf. Section 4.5.2.The scale of freezing and confiscation in the European Union. 
48 See also specific meeting with Eurojsut members on 29 June 2016, set out in Annex 2. 
49  Hague  Conference  2014;  most  recently,  at  the  ERA  Seminar  on  Freezing,  Confiscation  and  Recovery  of 

Assets, May 2016; Meeting with Eurojust experts in June 2016. 

50 From illegal markets to legitimate businesses: The Portfolio of Organised crime in Europe", 2015, see  
executive  summary,  p.15;  Comparative  Law  Study  of  the  Implementation  of  mutual  recognition  of  orders  to 

freeze and confiscate criminal assets in the European Union, 2013 

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underlined the urgency and the need for the Commission to act and to disrupt the ability of 
criminals and  terrorists to keep the proceeds of crime  for  financing  terrorism  or other  illicit 
conduct51. 

Criminals are reported to target those Member States which have weak asset recovery regimes 
or practices as places to invest or move assets to52. Efforts made by individual Member States 
to strengthen their national asset recovery regimes are in vain, if criminals are able to move 
their assets to other Member States, making use of the facilities of the internal market, and the 
freezing and confiscation orders cannot follow the assets across borders.  

The  penetration  of  organised  crime  into  the  licit  economy,  even  if  it  takes  place  in  a  single 
Member  State,  affects  the  functioning  of  the  whole  EU  Internal  Market,  not  only  of  that 
country.  Even  when  managing  licit  businesses,  organised  crime  groups,  often  support  these 
activities with the recourse to intimidation and corruptions, thus altering competition and the 
smooth functioning of the Internal Market. The resulting loss of revenues affects both national 
and EU financial interests, even when it takes place in only one Member State. 

The aims of asset recovery are realised not only when criminals are deprived of their illegal 
gains  but  when  these  are  redistributed  effectively.  In  particular,  the  impact  of  asset 
confiscation  upon  public  trust  in  the  criminal  justice  system  may  be  enhanced  through 
redistribution and restorative justice (for more details, see Annex 3). 

4.3. 

Specific problems 

4.3.1. 

Specific  problem  1:  Too  limited  scope  of  the  current  mutual  recognition  legal 
framework  

The  main  specific  problem  which  has  been  identified  is  that  the  existing  EU  legislation  on 
mutual  recognition  of  freezing  and  confiscation  orders  has  not  kept  up  with  recent 
developments in national legislation in some Member States and with recent EU legislation on 
minimum  rules,  notably  the  Directive  2014/42/EU  on  the  freezing  and  confiscation  of 
instrumentalities and proceeds of crime in the EU.  

In particular, the current mutual recognition instruments do not cover all the types of freezing 
and confiscation orders that can be adopted at national level (notably with regard to NCBC). 
As  a  result,  mutual  recognition  is  generally  limited  to  traditional  conviction  based 
confiscation orders. Member States that have established new forms of confiscation not based 
on  a  criminal  conviction,  in  particular  criminal,  civil  and  administrative  forms  of  non-
conviction  based  confiscation,  to  fight  crime  more  efficiently,53  are  not  able  to  ensure  that 
those  orders  are  recognised  and  executed  in  other  Member  States  that  don't  have  the  same 
regimes, and even in Member States that have similar regimes. Mutual legal assistance has to 
be  used  when  the  Framework  Decisions  do  not  apply,  meaning  that  the  benefits  of  mutual 
recognition are lost for those procedures: the execution depends on the domestic legal system 
of the executing Member State, is not subject to deadlines and is not mandatory. Even if some 
Member  States  that  only  have  criminal  confiscation  regimes  might  be  able  to  execute  such 
orders, other Member States will systematically refuse.  

51 Cf. Section 2.1 Policy context and current challenges 
52 Meeting with Eurojust experts in June 2016. 
53 Cf. Annex 5 Non-conviction based confiscation systems in the EU. 

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Examples 
While France is able to execute Italian NCBC orders under mutual legal assistance54, Spain 
would  systematically  deny  the  execution  of  a  civil  NCBC  order  taken  using  in  rem 
proceedings55.  For  example,  Ireland  may  issue  a  civil  NCBC  for  criminal  assets  located  in 
Spain when a criminal conviction is not possible. However, as Spain does not recognize such 
Irish  order,  the  property  order  could  not  be  confiscated  and  would  remain  at  the  offender's 
disposal. 

Another  example  is  a  case  where  both  jurisdictions  have  NCBC,  namely  Ireland  and  the 
United  Kingdom.  In  this  case,  a  freezing  order  was  obtained  by  Ireland.  The  target  brought 
the assets across the  border to Northern  Ireland in an attempt to evade the order. The order 
could  not  be  enforced  in  the  United  Kingdom  as  there  exists  no  such  mechanism  even 
between NCBC jurisdictions. 

Another example, an ongoing Bulgarian case, can be found in Annex 9. 

- Non-alignment of current mutual recognition instruments with Directive 2014/42/EU 

While  Article  5  of  Directive  2014/42/EU  requires  all  Member  States  to  enable  extended 
confiscation, the current mutual recognition Framework Decisions leave broad possibilities to 
refuse execution of orders based on extended confiscation, limiting the obligation to recognise 
such orders. Thus, the receiving Member State may choose whether or not to enforce freezing 
or confiscation orders issued with a view to confiscate proceeds that are not connected to the 
specific crime for which the person is being prosecuted. 

Similar  issues  arise  with  the  cases  of    illness  or  absconding  of  the  suspected  or  accused 
persons  which  have  been  introduced  by  Article  4  of  Directive  2014/42/EU.  None  of  these 
cases require execution by the two Framework Decisions. 

One  of  the  benefits  of  harmonisation  is  that  it  increases  mutual  trust  and  facilitates  mutual 
recognition; this benefit is lost when the mutual recognition instrument is not at least aligned 
with the harmonisation instrument, and the gaps in the mutual recognition rules would have a 
considerable negative impact and hamper the functioning of the whole system. As underlined 
by experts in recent meetings, now that the Directive 2014/42/EU entered into force56, there is 
an obvious need for reinforcing the mutual recognition system in the EU and to complement 
the harmonisation measures already adopted57. 

-  No  coverage  of  more  modern  forms  of  NCBC,  including  notably  civil  and  administrative 
NCBC 

Although a number of Member States confiscate assets outside of criminal proceedings (see 
above, Section 3.5), existing EU legislation does not require that confiscation orders issued in 
relation to these proceedings should be recognised. Although some international instruments, 

54 In the "Crisafulli case", Italy requested that France, on the basis of the Strasbourg Convention, execute a non-
convcition  based  confiscation  order  ("preventive  confiscation")  to  a  villa  belonging  to  Mr.  Crisafulli. 
Mr. Crisafulli had been convicted in Italy of criminal association aimed at drug trafficking (Tribunale di 
Milano,  1999).  Mr.  Crisafulli  owned  a  villa  in  France.  The  villa  itself  was  not  directly  related  to  the 
drug  trafficking  of  Mr.  Crisafulli  bu  it  had  been  demonstrated  by  the  Italian  Court  that  the  villa  had 
been bought on the basis of income from drug trafficking. The French "Cour de Cassation" accepted to 
execute  the  Italian  order  despite  not  having  non-conviction  based  confiscation  in  its  national  law 
(2003). The villa was seized and confiscated. 

55 ERA Presentation made by Rosa Ana Moran Martinez, Spanish Chief Prosecutor, 19.5.2016. 
56 4 October 2016 
57 Expert meeting of 17 November 2016 on non-conviction based confiscation 

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such  as  the  Warsaw  Convention,  provide  a  legal  base  for  mutual  legal  assistance  in  the 
execution of such orders, these conventions are not applicable in all Member States, nor can 
they  reach  a  similar  efficiency  as  a  mutual  recognition  instrument  can.58  In  practice  such 
orders  are  not  routinely  recognised  by  other  countries  and  there  is  no  legal  instrument  that 
would require recognition.  

- Conclusion 

The limited scope of the current legal framework affects the overall quality of justice within 
the  EU  and  consequently  undermines  mutual  trust  between  judicial  authorities.  This  means 
that Member States are missing opportunities to seize and confiscate criminal assets, recover 
proceeds of crime and deprive criminals of their means to operate. 

4.3.2. 

Specific  problem  2:  The  current  procedures  and  certificates  are  too  complex  and 
inefficient 

Practitioners  including  judges,  prosecutors,  representatives  from  Member  States,  reported 
repeatedly  that  the  mutual  recognition  certificates  provided  for  in  the  Framework  Decisions 
2003/577/JHA  on  the  execution  of  freezing  orders  and  2006/783/JHA  on  the  mutual 
recognition  of  confiscation  orders  are  complicated  and  lengthy,  thereby  increasing  the 
administrative burden on the authorities and the length of the procedure59.  

This  problem  has  already  been  underlined  in  2008  in  the  Commission  Communication 
"Proceeds  of  organised  crime".60  In  particular  the  Communication  mentioned  that  the 
certificate to request the execution of freezing orders was rather difficult to complete and it 
did not contain the necessary fields. This has also been confirmed by the results of the 2013 
Comparative Law Study and the interviews conducted with Member States' authorities61. 

As  a  result,  there  is  a  reluctance  of  practitioners  to  use  the  mutual  recognition  instruments. 
They  often  prefer  to  have  resort  to  mutual  legal  assistance62  they  are  more  familiar  with, 
which continue to apply alongside the Framework Decisions on mutual recognition, provided 
that the Member States concerned are both parties to the relevant Conventions. Practitioners 
may  also  prefer  MLA  because  the  forms  are  less  prescriptive  compared  to  the  mutual 
recognition instruments. 

Moreover,  although  the  possibility  for  the  executing  Member  State  to  refuse  recognition  or 
execution  is  an  important  element  in  the  operation  of  the  principle  of  mutual  recognition, 
some of the grounds for refusal leave considerable discretion to domestic judicial authorities 
and/or lack justification. For example, the possibility to refuse execution based on the mere 
fact  that  the  underlying  offence  was  committed  in  the  executing  State's  territory  lacks 
appropriate justification63. 

58 Cf. Section 4.6 for a description of the disadvantages of mutual legal assistance. 
59 See also Eurojust, Report on Eurojust's experience in the field of asset recovery, including freezing and  
confiscation, Council document 10179/15, p.5 
60 COM/2008/0766 final 
61 DBB, Comparative Law Study of the Implementation of mutual recognition of orders to freeze and confiscate 
 criminal assets in the European Union, p.72 
62 Council of Europe 1990 and 2005 Conventions, see Annex 4. 
63 See Art.8(2)(f) of FD 2006/783/JHA. Cf. Art 11(1)(e) in Directive 2014/41/EU on the European Investigation 

Order, requiring additionally that the conduct is not an offence in the executing State. 

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In  addition,  even  if  they  contain  provisions  such  as  the  obligation  to  execute  an  order 
"forthwith" or to inform, "whenever practicable", within 24 hours64 the Framework Decisions 
do not prescribe strictly defined time limits for the executing authorities.  

The  Implementation  Report  from  the  Commission  concerning  Framework  Decision 
2003/577/JHA on the execution of freezing orders65 highlighted the various inconsistencies in 
the implementation of Art.5(3) of Framework-Decision 2003/577/JHA in the Member States: 
some Member States have provided different time limits, some Member States have not laid 
down any concrete time limits, some Member States have not at all implemented this specific 
provision and other Member States have not implemented the Framework Decision at all.  

These  inconsistencies  as  regards  delays,  which  are  particularly  problematic  for  freezing 
orders, have been repeatedly criticized by practitioners and identified as one of the problems 
which needs to be resolved.66 

4.3.3. 

Specific  problem  3:  Inconsistent  implementation  of  existing  mutual  recognition 
instruments into national law 

Another barrier to the effectiveness of the EU legal framework on mutual recognition arises 
from the inconsistent transposition of the existing relevant rules into national law. The legal 
instruments adopted in this field are not directly applicable in Member States and have to be 
transposed into national law before they can take effect at national level67. 

The  Commission  issued  implementation  reports  on  Framework  Decisions  2003/577/JHA  on 
the  mutual  recognition  of  freezing  orders68  and  2006/783/JHA  on  the  mutual  recognition  of 
confiscation  orders69.  These  reports  show  that  (i)  a  number  of  Member  States  had  not 
transposed  these  instruments  by  the  deadline70,  and  (ii)  the  transposition  by  many  Member 
States  has  not  complied  with  all  of  the  requirements  of  the  EU  instruments71.  This  further 
hampers the possibilities of judicial cooperation and reduces mutual trust. 

Before  the  entry  into  force  of  the  Lisbon  Treaty  on  1  December  2009,  no  infringement 
proceedings  could  be  initiated  against  Member  States  by  the  Commission  for  failure  to 
transpose  the  Framework-Decisions  into  national  law.  The  situation  has  improved  since  1 

64 Cf. Article 5 Framework Decision 2003/577/JHA: "The competent judicial authorities of the executing State 
shall decide and communicate the decision on a freezing order as soon as possible and, whenever practicable, 
within 24 hours of receipt of the freezing order." 
65 COM(2008) 885 final, p.4 
66 See Comparative Law Study of the Implementation of mutual recognition of orders to freeze and confiscate 

criminal assets in the European Union, p.77 

67  See  "the  Effectiveness  of  EU  Law:  Insights  from  the  EU  Legal  Framework  on  Asset  Confiscation",  Mihaly 
Fazekas,  Eva  Nanopoulos,  published  in  the  European  Journal  of  Crime,  Criminal  Law  and  Criminal 
Justice  

(2016), 39-64 
68 COM(2008) 885 final of 22.12.2008 
69 COM(2010) 428 final of 23.8.2010 
70 Some Member States transposed those even years after the deadline. Even now, the two Framework Decisions 

have not been transposed by Hungary and Poland. 

71 In some cases, Member States did not implement the definition of the terms "freezing" or "confiscation" in the 
Framework Decisions, maintaining instead their own national definitions. In other cases, important rules of the 
Framework Decisions were not transposed or additional conditions were introduced in the relevant national laws. 
For  example,  some  Member  States  did  not  include  the  requirement  that  freezing  orders  should  be  recognised 
within 24 hours or added additional grounds for refusal/non-recognition to the list, even though it is meant to be 
exhaustive. 

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December  2014  with  the  Court  of  Justice  of  the  European  Union  having  full  jurisdiction  in 
matters pertaining to the former third pillar.  

However, it should be underlined that the inconsistent implementation of existing instruments 
is only a secondary problem and that a complete and correct implementation of the existing 
legal  framework  would  not  be  sufficient  to  address  the  problems  explained  above  under 
section  4.3.1  and  4.3.2  (too  limited  scope  of  the  obligation  to  recognise  under  the  existing 
instruments and too complex and lengthy procedures and certificates); inconsistencies which 
exist in the current Framework Decisions72 would remain.  

Overview Table: General problem 1 – Insufficient recovery of criminal assets in cross-border 
cases  

Elements related to the current legal 
framework 

Elements related to the implementation of 
the current legal framework 

1. Lack of transposition of the Framework-
Decisions by their deadlines or only partial 
transposition by Member States. 

2. Compliance issues: requirements of the 
Framework-Decisions are not always 
complied with (e.g. additional grounds for 
refusal) 

1. Limited scope of the current Framework-
Decisions in terms of types of confiscation 
covered: 
- cases of illness or absconding not covered, 
- NCBC including civil and administrative 
not covered, 
- extended confiscation covered but subject to 
large possibilities to refuse execution. 

2. Inefficient procedures: e.g. time limits for 
freezing are not mandatory, no time limits for 
confiscation 

3.Complicated certificates for practitioners 

4. Nature of the instrument: Framework-
Decisions leave large discretion to Member 
States and are not directly applicable  

72  Some  EU  legal  provisions  are  not  consistent.  For  example  Framework  Decision  2005/212/JHA  establishes 
alternative  criteria  for  extended  confiscation  as  follows:  i)  A  court  is  convinced  that  the  property  is 
derived  from  criminal  activities  of  the  convinced  person  prior  to  conviction;  ii)  A  court  is  convinced 
that the property is derived from similar criminal activities of the convicted person prior to conviction; 
iii) The value of the property is disproportionate to the lawful income of the convicted person and the 
court  is  convinced  that  the  property  derives  from  criminal  activity.  The  Framework  Decision  leaves 
Member  States  with  the  option  to  transpose  one,  two  or  all  three  criteria.  This  provision  is  not 
coordinated with the provisions on the grounds for refusal of mutual recognition of confiscation orders 
laid  down  in  Framework  Decision  2006/783/JHA.  As  a  result,  the  scope  for  mutual  recognition  of 
confiscation  orders  is  restricted.  The  authorities  in  one  Member  State  are  obliged  to  execute 
confiscation  orders  issued  by  another  Member  State  only  if  these  orders  are  based  on  the  same 
alternative criteria applied in the Member State receiving the order.  

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4.4. 

General problem 2: The current mutual recognition instruments do not contain 
provisions on victims' compensation and restitution 

The second general problem which should be addressed with the current initiative is related to 
the  compensation  and  restitution  of  victims.  The  current  European  legal  framework  for  the 
protection of the rights of victims in the context of freezing and confiscation proceedings is 
insufficient in this respect. 

Without  effective  cross-border  recovery  of  criminal  assets,  victims  are  denied  the  means  to 
get restitution or compensation for their losses in cross-border cases in Member States where 
confiscation is used by the State for that purpose.  

Often  the  victim's  only  possibility  to  get  back  the  losses  suffered  is  to  obtain  restitution  or 
compensation directly from the confiscated property. This is because the perpetrators often do 
not have enough lawfully acquired assets from  which the restitution or compensation to the 
victim could be made. It is therefore necessary to facilitate victims' access to restitution and 
compensation from the confiscated property also in cross-border cases. The compensation of 
victims  of  crime  for  losses  suffered  is  not  further  harmonised  across  the  European  Union, 
except for general and limited in scope obligations in the Victims' Rights Directive (Directive 
2012/29/EU establishing minimum standards on the rights, support and protection of victims 
of  crime)73  and  in  the  Compensation  Directive  (Directive  2004/80/EC  relating  to 
compensation  to  crime  victims)74.  The  Victims'  Rights  Directive  provides  that  victims  of 
crime are entitled to obtain a decision on compensation by the offender within a reasonable 
time, and leaves to the Member States the organization of practicalities. Regarding restitution, 
the  Victims'  Rights  Directive  establishes  an  obligation  for  Member  States  to  ensure  that, 
following  a  decision  by  a  competent  authority,  recoverable  property  which  is  seized  in  the 
course  of  criminal  proceedings  is  returned  to  victims  without  delay.  The  Compensation 
Directive  does  not  deal  with  compensation  of  victims  from  offenders  but  regulates 
compensation from the State. It requires that fair and appropriate compensation schemes are 
in place in all Member States to compensate victims of violent intentional crimes committed 
in  their  territories.  Members  States  are  required  to  cooperate  in  order  to  facilitate  access  to 
compensation for their residents who have fallen victims to crime in another Member State. 
However,  organization  and  functioning  of  the  national  compensation  schemes  (in  terms  of 
differences  in  definitions,  eligibility  criteria,  financial  capacity,  interdependences  with  civil 
claims against the offender and existence of advance payment to victims which later can be 
reclaimed/seized  from  the  offender)  are  entirely  governed  by  the  national  rules  on 
compensation and fall outside the scope of the Compensation Directive. 

On  the  other  hand,  none  of  the  Framework  Decisions  contains  any  provision  on  victims. 
Framework  Decision  2003/577/JHA  provides  only  for  a  possibility  to  freeze  property  for 
purposes  of  confiscation,  but  not  with  a  view  to  safeguard  the  victim's  right  to  restitution. 
Framework  Decision  2006/783/JHA  on  mutual  recognition  of  confiscation  orders  does  not 
address the rights of the victim either.  

73  Directive  2012/29/EU  of  the  European  Parliament  and  of  the  Council  of  25  October  2012  establishing 
minimum  standards  on  the  rights,  support  and  protection  of  victims  of  crime,  and  replacing  Council 
Framework Decision 200/220/JHA, OJ L 315 of 14.11.2012, p.57. 

74  Council  Directive  2004/80/EC  of  29  April  2004  relating  to  compensation  to  crime  victims,  OJ  L  261, 

6.8.2004, p.15-18. 

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In  some  Member  States,  the  relevant  authorities  can  or  must  take  action  for  the  purpose  of 
restitution  or  compensation  of  victims.  This  may  include  the  duty  to  freeze  and  confiscate 
property on behalf of the victim or granting the victim priority on the confiscated property75.  

In  these  latter  cases,  the  Member  States  concerned  have  experienced  difficulties  in  cross-
border  cases.  The  general  rule  established  by  Framework  Decision  2006//783/JHA  is  that 
where money is obtained from the execution of the confiscation order, the amount obtained 
shall  be  shared  50%-50%  between  the  issuing  and  the  executing  State.  For  amounts  of  less 
than  EUR  10.000,  the  money  accrues  entirely  to  the  executing  State.  Where  property  other 
than money has been obtained, it is up to the executing State to decide what to do with the 
property,  e.g.  to  sell  it.  In  all  cases,  there  is  a  possibility  for  issuing  and  executing  State  to 
agree  otherwise,  and  this  has  been  used  in  the  past  to  compensate  victims  or  to  restitute 
property, but as this depends on the States' agreement on a case-by-case basis, victims have 
no corresponding right to enforce another repartition or solution.  

In  practice,  this  means  that  e.g.  the  authorities  of  Member  State  A  are  able  to  freeze  and 
confiscate assets in this Member State and give them back to the victim, but if the perpetrator 
has hidden those assets in Member State B, the authorities of Member State A do not have the 
legal  tools  to  ensure  that  the  assets  are  returned  to  the  victim.  Thus  the  victim  may  be 
significantly worse off. 

Example 

9 000 euros were stolen from the victim in Finland and the offender has moved the money 
to Germany. The judge in Finland issues a national confiscation order for the money and 
orders the full amount to be restituted to the victim. The confiscation order is enforced in 
Germany.  However,  as  the  amount  is  under  10  000  euros,  under  the  current  Framework 
Decision 2006/783/JHA there is no duty for Germany to return the money to Finland and 
the victim may not receive the restitution76.  

If,  in  the  example  above,  the  stolen  amount  were  higher,  e.g.  30  000  euros,  under  the 
current  Framework  Decision  Germany  could  keep  50  %  of  it  (15  000  euros)  instead  of 
returning the full amount to be restituted to the victim77, unless it agrees otherwise78.    

4.5. 

The scale of the problem 

4.5.1.  The scale of criminal activity 

Even  if  it  is  difficult  to  have  precise  and  reliable  data,  one  can  safely  assume  that  criminal 
activity  generates  large  income,  be  it  worldwide  or  in  the  European  Union.  According  to 
estimates  by  the  United  Nations  office  on  Durgs  and  Crime  (UNDOC),  criminal  proceeds 
reached USD 2,1 trillion corresponding to 3.6%  of global gross domestic  product  (GDP) in 
200979. The French body in charge of recovering and managing recovered criminal proceeds, 

75 Currently at least Finland, France. Germany is contemplating introducing this possibility. 
76 Article 16(1)(a) 
77 Article 16(1)(b) 
78 Article 16(4) 
79 United Nations Office on Drugs and Crime, 'Estimating illicit financial flows resulting from drug trafficking 

and other transnational organised crime', October 2011, p. 7. 

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AGRASC80,  estimates  that  €1,2  trillion  of  criminal   money  circulates  throughout  the  world 
economy each year.81   

Recent  research  from  a  consortium  around  the  Transcrime  Institute  (Savona  &  Riccardi, 
2015)  estimates  that  the  main  illicit  markets82  in  the  European  Union  generate  about  €  110 
billion  per  year,  which  corresponds  to  approximately  1%  of  the  EU  GDP  in  2010.83 
Comparatively,  in  the  United  States,  it  is  estimated  that  the  criminal  income  amounted  in 
2010 to USD 300 billion, which represents 2% of the United States GDP84. 

Table 3- Estimate of criminal revenues in EU 28 Member States  

EU Member State 

Estimate* (million euro) 

% of GDP (2010) 

Austria 

Belgium 

Bulgaria 

Croatia 

Cyprus 

Czech Republic 

Denmark 

Estonia 

Finland 

France 

Germany 

Greece 

Hungary 

Ireland 

Italy 

3.246 

2.516 

565 

134 

324 

1.317 

1.555 

180 

1.084 

16.010 

17.645 

3.583 

1.102 

1.708 

15.994 

1,1% 

0,7% 

1,6% 

0,3% 

1,9% 

0,9% 

0,7% 

1,2% 

0,6% 

0,8% 

0,7% 

1,6% 

1,1% 

1,1% 

1,0% 

80 Agence de gestion et de recouvrement des avoirs saisis et confisqués. 
81 AGRASC publication to be found at this web address:  

http://www.justice.gouv.fr/art_pix/1_plaquette_agrasc_fr2.pdf 

82 This includes trafficking in heroin, cocaine, cannabis, amphetamines, ecstasy, illicit trade in tobacco products, 

counterfeiting, illicit trafficking in firearms, MTIC frauds and cargo theft. 

83 Transcrime and others, "From illegal markets to legitimate business: the portfolio of organised crime in 

Europe", Final Report of Project Organised Crime Portfolio, 2015, 
http://www.ocportfolio.eu/_File%20originali/OCP%20Full%20Report.pdf 

84 United Nations Office on Drugs and Crime, 'Estimating illicit financial flows resulting from drug trafficking 

and other transnational organised crime', October 2011, p. 20. 

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Latvia 

Lithuania 

Luxembourg 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

United Kingdom 

EU 28 

614 

455 

161 

93 

3.427 

2.584 

1.072 

2.308 

882 

379 

10,835 

2.133 

15.141 

109.521 

2,8% 

1,6% 

0,4% 

1,4% 

0,8% 

0,7% 

0,6% 

1,9% 

1,3% 

1,1% 

1,0% 

0,6% 

0,9% 

0,9% 

Source: Transcrime, From illegal markets to legitimate business: the portfolio of organised 
crime in Europe", Table 6 
http://www.ocportfolio.eu/_File%20originali/OCP%20Full%20Report.pdf (2015) 

A 2015 study of project OCP examines infiltration by organised crime in seven European 
countries (Finland, France, Ireland, Italy, the Netherlands, Spain and UK)85. With data of only 
these seven Member States covered by the study, almost 5000 instances of criminal 
infiltrations were detected, many of them involving investments in other countries. 

4.5.2.  The scale of freezing and confiscation in the European Union 

There  are  very  few  data  sets  available  which  attempt  to  estimate  assets  confiscated  as  a 
percentage of criminal proceeds, and they vary significantly. The UK's National Audit Office 
estimated the amount confiscated for every 100 GBP of criminal proceeds to be 26 pence – 
i.e. according to this calculation the amount confiscated is just over one quarter of one percent 
(0,26%).86 The NAO’s head concluded from these figures that the "use of confiscation orders 
to deny criminals the proceeds of their crimes is not proving to be value for money."87  

85  "From  illegal  markets  to  legitimate  businesses:  The  portfolio  of  organised  crime  in  Europe",  final  report  of 

project OCP (Organised crime portfolio), 2015 

86 Cf. http://www.nao.org.uk/report/confiscation-orders-2/ 
This estimation is not based on an estimation of turnover for all criminal activity in England and Wales, but only 
on fraud. Taking into account that all criminal activity must generate more turnover than fraud alone, 
the real figure should be considerably lower than 0,26%. 

87 https://www.nao.org.uk/report/confiscation-orders-2/ 

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The  results  of  a  survey  carried  out  by  Europol  on  criminal  asset  recovery  in  the  EU  and 
published  on  1  July  201688  conclude  that  98,9%  of  estimated  criminal  profits  are  not 
confiscated and remain at the disposal of criminals. In the period analysed by Europol, 2,2% 
of the estimated proceeds of crime were provisionally seized or frozen, however, only 1,1% of 
the criminal profits were finally confiscated at EU level. That means that around 50% of all 
provisionally  frozen  assets  are  ultimately  confiscated.  The  Europol  study  estimates  that  the 
annual value of provisionally frozen assets in the EU is around € 2,4  billion, with about € 1,2 
billion finally confiscated each year at EU level. 

Another study by Dataninja estimates that in 2014, goods worth € 4 billion were taken away 
from  criminal  groups  in  the  EU  (or  €  2  bi llion  only  for  France,  Italy,  Germany,  Spain, 
England and Wales)89. If compared to the estimated € 110  billion of main illicit markets in the 
EU (see above), this corresponds to 3,6%. 

Table 4– value of confiscated goods 2014 

EU Member State 

Value  of  confiscated 
goods (million euro) 

Estimated 
revenues 
euro, 
above) 

see 

criminal 
(million 
table  3 

%  of  criminal 
revenue 
confiscated 

France 

Italy 

Germany 

United Kingdom  

Spain 

EU 28 

382 

776 

251 

412 

46 

16.010 

15.994 

17.645 

15.141 

10.835 

4.000 

109.521 

2,4% 

4,85% 

1,4% 

2,72% 

0,42% 

3,65% 

Sources: Confiscated Goods – The Dark Billions: A whole investigation on criminal investments seized by EU 
Countries,  Dataninja.it,  16  December  2015,  http://eu.confiscatibene.it/;  Transcrime,  From  illegal  markets  to 
legitimate 
6 
portfolio 
http://www.ocportfolio.eu/_File%20originali/OCP%20Full%20Report.pdf (2015) 

organised 

business: 

Europe", 

Table 

crime 

the 

of 

in 

This  data  shows  that  Italy  and  UK,  which  have  introduced  non-conviction  based  forms  of 
confiscation,  are  more  successful  in  confiscating  criminal  assets  than  Member  States  with 
traditional forms, even though the percentages still remain woefully low in all cases. 

Despite  the  lack  of  availability  of  robust  and  comparable  data  sets,  there  are  encouraging 
statistics  which  show  that  in  many  Member  States,  the  number  and/or  value  of  assets 
confiscated is increasing. This is supported by the 2015 study of project OCP with a focus on 
7 European countries (Finland, France, Ireland, Italy, the Netherlands, Spain and UK)90.   

88 "Does crime still pay?", Criminal Asset Recovery in the EU, Survey of statistical information 2010-2014 
89  Confiscated  Goods  –  The  Dark  Billions:  A  whole  investigation  on  criminal  investments  seized  by  EU 

Countries, Dataninja.it, 16 December 2015, http://eu.confiscatibene.it/ 

90  "From  illegal  markets  to  legitimate  businesses:  The  portfolio  of  organised  crime  in  Europe",  final  report  of 

project OCP (Organised crime portfolio), 2015 

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In  the  United  Kingdom  in  2006  £125  million  were  recovered  by  the  State;  in  2009, 
confiscated assets amounted to £154 million91. Between 2010 and 2013/2014, more than £746 
million of criminal assets have been seized, and over £2,5 billion worth of assets have been 
frozen. £93 million have been returned to victims92.  

4.5.3.  Cross-border confiscation and freezing 

Data  is  even  less  systematically  collected  in  relation  to  freezing  and  confiscation  orders 
requested  and  implemented  across  EU  borders,  and  the  few  figures  available  have  to  be 
interpreted  with  caution.  A  EU  study  of  November  201393  suggested  that  the  number  of 
freezing and confiscation orders currently sent and implemented across Member State borders 
has increased in recent years, but this is against a very low starting point94.  

Another indication that cross-border cooperation is increasing is that Asset Recovery Office 
(ARO)  to  ARO  asset  tracing  requests  using  the  secure  Europol  SIENA  communication 
channel  are  increasing.  From  2012-2015,  the  messages  exchanged  per  year  increased  from 
452  to  3703.  46%  of  these  exchanges  result  in  the  actual  identification  of  assets95.  This 
increase will result in time in more cross-border freezing and confiscation, but according to 
Europol sources, is not yet adequately reflected by an increase of cross-border asset recovery 
cases.  
According to a presentation made by an Adviser to the UK Crown Prosecution Service,96 the 
trend is continuing, at least in the UK in its relations with third countries (which include EU 
Member  States):  in  2013,  £3  million  were  returned  by  UK  to  third  countries  following 
confiscation.  In  2014-2015,  the  amount  had  already  increased  to  £16  million.  In  2015-2016 
(2nd  quarter),  the  amount  was  £29  million.  This  increase  reflects  the  particular  efforts 
deployed by the UK to make its asset recovery system more effective97, not only in its legal 
provisions. Similar efforts are lacking in most other Member States. 

The  increase  of  cross-border  freezing  and  confiscation  orders  shown  by  these  figures  is  a 
positive trend; the increase in cross-border confiscation seems to be faster than the increase in 
cross-border  criminality.  However,  despite  this  increasing  tendency,  requests  to  freeze  and 
confiscate  assets  are  still  very  low  in  comparison  with  other  requests  for  co-operation,  and 

there  is  still  significant  scope  for  improvement.  In  2013,  for  example,  the  Irish  Central 

Authority  dealt  with  584  requests  for  assistance  and  transmitted  200  requests.  Of  the  784 
requests,  only  5  involved  requests  for  freezing  and  confiscation  (all  incoming).98  The  UK, 
where  both  Framework  Decisions  only  came  into  force  in  2015,  received  5  confiscation 
requests under the Framework Decision 2006/783/JHA since. This compares to a total of 37 
"old style" MLA freezing requests received in 2014, which is also quite low. 

91 http://link.springer.com/article/10.1007/s10610-014-9252-8 
92 Cf. http://www.nao.org.uk/report/confiscation-orders-2/ 
93  Comparative  Law  Study  of  the  Implementation  of  Mutual  Recognition  of  Orders  to  Freeze  and  Confiscate 

Criminal Assets in the European Union, 2013 

94 Under 100 orders to freeze criminal assets were transmitted to other Member States in 2007, two years after 
the date when Member States had to apply the framework decision on mutual recognition of freezing 
orders. 

95 ERA Presentation made by Frédéric Pierson, Europol, 19.5.2016. 
96 ERA Presentation by Jonathan Spicer, UK Crown Prosecution Service, 19.5.2016 
97 Cf. https://www.nao.org.uk/report/confirmed-impacts-improving-confiscation-orders/ 
98 Source Dave Fennell Mutual Assistance and Extradition Division, Department of Justice & Equality, Ireland 

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27 

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Feedback from stakeholders consulted confirms that only very few freezing and confiscation 
orders  are  executed  in  other  Member  States,  compared  to  some  other  mutual  recognition 
instruments.99  

Examples 

1.  Statistics  on  mutual  recognition  instruments  collected  by  the  Polish  Ministry  of  Justice 
show  that  in  2014  there  were  only  2  requests  for  confiscation  issued  and  no  requests  for 
freezing. In comparison, that same year Poland issued 3838 requests to EU MS to surrender a 
person on basis of the EAW (of which 3723 cases were settled).100  

2. A similar tendency results from figures provided for by the NL. In 2014 they received 12 
requests  for  execution  of  a  confiscation  order  from  another  Member  State  whereas  832 
surrender  proceedings  under  the  EAW  were  initiated.  In  the  same  year,  the  NL  issued  13 
requests for confiscation and 544 requests under the EAW.101 

Based on this information, it is estimated that currently, there are between 168 and 280 cross-
border  mutual  recognition  requests  for  confiscation  orders,  and  between  448  and  560  MLA 
requests  in  the  European  Union  (cf.  Table  6  in  section  7.5  and  Annex  7).  Member  State 
authorities are unlikely to send confiscation orders to another Member State if they know that 
they will not be executed, but this is difficult to quantify, as no Member State keeps statistics 
on the number of orders that they would have sent, had a different outcome been anticipated.  

4.5.4.  Cross-border confiscation and victims compensation 

The  scale  of  the  second  general  problem  is  more  limited  than  the  scale  of  the  first  general 
problem. It is more relevant for those Member States where the victim's right for restitution or 
compensation is secured by the authorities competent in the criminal procedure or where the 
victim  is  granted  priority  on  the  confiscated  property.  Given  the  lack  of  data,  there  are, 
however, no concrete figures available.  

4.6. 

Baseline scenario: how would the problem evolve in the future if no EU action 
takes place? 

The baseline scenario or status quo indicates  how the identified problem is likely to  evolve 
without  additional  public  intervention,  taking  into  account  existing  and  forthcoming 
interventions and following the entry into force of the Lisbon Treaty. 

The status quo option would likely result in an increase in the assets owned or controlled by 
criminal organisations, as well as an increase in their acquisitions of assets in other Member 
States. Evidence of a progressive increase in cross-border criminality and in the cross-border 
acquisition of assets can be derived from recent studies and investigative sources102. 
The threat assessments issued by Europol103 show an increasing trend in cross-border criminal 
activities  and  in  the  links  between  criminal  organisations  located  in  different  regions.  The 

99  Hague  Conference  2014;  most  recently,  at  the  ERA  Seminar  on  Freezing,  Confiscation  and  Recovery  of 

Assets, May 2016. 

100 When comparing these figures, one should take into account that the legality principle applies in Poland to 

issuing EAW. 

101 The comparison with EAW is interesting as this is considered to be the most successful mutual recognition 
instrument. It is also the only mutual recognition instrument for which regular statistics are collected by 
Member States. 

102 Few and Far, the Hard facts on stolen Asset Recovery, Report by the World Bank, 2014; From illegal markets 
to  legitimate  businesses:  The  portfolio  of  organised  crime  in  Europe",  final  report  of  project  OCP 
(Organised  crime portfolio), 2015 

103https://www.europol.europa.eu/activities-services/main-reports/serious-and-organised-crime-threat-assessment 

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28 

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effects of globalisation in society and business have facilitated the emergence of significant 
new  variations  in  criminal  activity  and  criminal  networks  exploit  legislative  loopholes, 
notably in cross-border situations, to generate illicit profits. 

The expected increase in the cross-border acquisition of criminal assets would be mitigated to 
some extent by the increase of the amounts frozen or seized, of the amounts confiscated, of 
the amounts recovered and of the cases where mutual recognition of orders issued in another 
Member State is successful.  

However, even if data suggest that cross-border cooperation is increasing, it is not very likely 
that  the  number  of  confiscation  orders  issued  and  recognised  on  a  cross-border  basis  would 
increase sufficiently to become a true deterrent for crime. Whereas recent figures show that 
the money flows from criminal activities have considerably increased over the last 10 years, 
the freezing and confiscation of assets notably in cross-border cases remains very low, and the 
existing increase is certainly not exploiting the full potential of asset recovery.  

Calculations  of  the  turnover  of  transnational  crime  of  20  OECD  countries  using  the 
MIMIC estimations (1995-2014) 

Year  

1995 

2000 

EN 

Volume  of  money 
laundering 
(billion 
20  OECD 
USD, 
countries) 

Volume  of  money 
laundering 
in  % 
GDP 

20 OECD countries 

273 

384 

1.33% 

1.47% 

29 

Australia,  Austria, 
Canada, 
Belgium, 
Denmark,  Germany, 

   EN 

 
 
France, 
finland, 
Great 
Greece, 
Britain, Ireland, Italy, 
Japan,  Netherlands, 
Zealand, 
New 
Portugal 
Norway, 
Switzerland, 
Spain 
and USA 

2001 

2002 

2003 

2004 

2005 

2006 

2007 

2008 

2009 

2010 

2011 

2012 

2013 

2014 

412 

436 

475 

512 

561 

603 

646 

702 

680 

708 

741 

804 

859 

907 

1.52% 

1.56% 

1.63% 

1.66% 

1.72% 

1.74% 

1.77% 

1.82% 

1.60% 

1.78% 

1.96% 

2.07% 

2.15% 

2.20% 

Source:  Own  calculations,  calibrated  figures  from  the  MIMIC  estimations,  Linz,  November 
2015, Professor Dr. Friedrich Schneider 

It  is  expected  that  the  implementation  of  Directive  2014/42/EU  across  Member  States  will 
result in larger amounts of criminal assets being confiscated than at present. This effect may 
be  even  stronger  if  Member  States  go  beyond  the  Directive  when  reforming  their  asset 
recovery  regimes.  It  may  also  have  a  positive  impact  on  cross-border  cooperation  for  those 
forms of confiscation in respect of which the Directive sets common minimum standards (for 
example,  extended  powers  of  confiscation,  third-party  confiscation  and  the  cases  of  illness 
and absconding of the suspect or accused person), but as the mutual recognition instruments 
are  not  aligned  with  the  scope  of  the  Directive  in  terms  of  types  of  confiscation  orders 
covered, there is no obligation for Member States to recognise all confiscation orders which 
are now made possible by the Directive. This means an increased number of extended or other 
orders  will  be  issued  after  transposition  of  the  Directive,  but  they  may  remain  unexecuted 
when assets are located in other Member States.  

Moreover, the launch of infringement proceedings against those Member States that have not 
yet  or  not  correctly  transposed  the  two  Framework  Decisions  (legally  possible  since  1 
December  2014)104,  would  not  address  the  identified  problems.  The  scope  of  the  two 
Framework  Decisions  does  not  cover  more  recent  types  of  confiscation  orders  and  certain 
provisions  are  vague,  giving  rise  to  different  interpretations.  Ensuring  compliance  with  the 

104  Since  the  entry  into  force  of  the  Lisbon  Treaty,  the  Commission  has  the  competence  to  ensure  the 

transposition of ex-third pillar measures, such as framework decisions, with infringement proceedings. 

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30 

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current  legal  framework  through  infringement  proceedings  would  not  allow  addressing  the 
main  problems  which  affect  the  proper  functioning  of  mutual  recognition  of  freezing  and 
confiscation orders in the European Union. 

As a consequence, the strengthening of the legal framework on mutual recognition of national 
freezing and confiscation orders becomes even more important and relevant. 

Besides  the  mutual  recognition  instruments,  as  mentioned  above,  Member  States  also  still 
make use of instruments of intergovernmental cooperation: mutual legal assistance requests, 
including cooperation under international conventions.105 These may be very flexible, but they 
bring the disadvantages of intergovernmental cooperation: it is slow and depends entirely on 
the  goodwill  of  the  requested  party.  There  is  no  obligation  upon  the  requested  authority  to 
execute a request for mutual legal assistance. Moreover, in the area of asset recovery it is vital 
for States to have the ability to respond very quickly: criminals are able to move assets across 
borders  extremely  quickly,  sometimes  with  a  few  clicks  on  a  computer  or  a  phone.  By 
contrast,  methods  of  obtaining  Mutual  Legal  Assistance  ('MLA')  are  much  slower  –  on 
average, the duration for execution of a MLA request in the EU is one year -, often creating 
administrative  burden  and  coupled  with  uncertainty  because  of  the  wide  discretion  States 
enjoy to execute a request or not. 

The  work  of  international  organisations,  for  example  the  Council  of  Europe  ('CoE')  with 
regard  to  the  Convention  on  Laundering,  Search,  Seizure  and  Confiscation  of  the  Proceeds 
from  Crime  and  on  the  Financing  of  Terrorism  ('Warsaw  Convention'),  might  slightly 
improve  cross-border  cooperation  based  on  MLA.106  This  Convention  obliges  signatories  to 
put  in  place  domestic  measures  to  criminalise  certain  conduct,  and  to  adopt  measures  to 
enable the seizure of criminal assets. It also requires parties to provide judicial cooperation "to 
the widest extent possible (…) for the execution of measures equivalent to confiscation (…) 
which are not criminal sanction (…)" (e.g. civil or administrative forms of NCBC). However, 
because  the  Convention  sets  minimum  standards,  because  not  all  Member  States  are 
signatories to this instrument107, and because there is a wide discretion to refuse requests (with 
the attendant reduction of legal certainty), the coverage offered by the Warsaw Convention is 
and  will  remain  limited.  Moreover,  a  drawback  of  international  conventions  such  as  the 
Warsaw Convention is the lack of mandatory deadlines. As stated above, in its Action Plan on 
combatting  Transnational  Organised  Crime  of  2  March  2016108,  the  Council  of  Europe 
proposes  actions  to  improve  implementation  of  this  Convention,  e.g.  by  launching  training 
programmes  covering  some  of  the  most  recent  forms  of  confiscation.  Such  actions  would 
contribute  to  improvements  in  practice,  but  the  above-mentioned  limitations  of  the 
Convention would nevertheless persist.  

Moreover, the parallel use of two  different  systems,  the  mutual recognition instruments  and 
the international conventions, with different rules, forms and procedures, depending on which 
type of confiscation order and which executing Member State is concerned, creates additional 

105 As of May 2017, the Directive 2014/41/EU regarding the European Investigation Order will replace the 2000 
Convention  on  Mutual  Assistance  in  Criminal  Matters  between  the  Member  States  of  the  European 
Union  and  will  no  longer  cover  cooperation  on  freezing  and  confiscation  orders,  meaning  that 
international conventions will be the only means available for Member States to cooperate outside of 
the mutual recognition instruments. 

106 On the use of civil cooperation convention and EU instruments for civil NCBC, cf. Annex 9. 
107Currently, 
States 

cf. 
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/198/signatures?p_auth=OJliP3Cx 

the  Warsaw 

17  Member 

Convention, 

ratified 

have 

only 

108 Cf. 

EN 

http://www.coe.int/t/DGHL/STANDARDSETTING/CDPC/CDPC%20documents/CDPC%20(2015)%2
017%20Fin.pdf 

31 

   EN 

                                                 
complexity that does not help practitioners109. They have to get familiar with two sets of rules, 
procedures and forms and may continue to prefer the traditional MLA route.  

As  a  result,  chances  to  seize  more  assets  from  criminals  and  to  make  asset  recovery  a  true 
deterrent for crime will continue to be missed. At least no significant changes to the current 
situation where "crime does pay" could be achieved by sticking to the status quo. 

The main advantage of the baseline scenario is that there would be no additional burden on 
national  administrations.  Practitioners  would  not  need  to  become  familiar  with  new  process 
and laws. 

There would be no change concerning the fundamental rights of persons concerned by asset 
recovery measures.  

However,  looking  at  it  from  a  broader  perspective,  this  option  would  negatively  affect  the 
fundamental  rights  of  persons  who  are  or  may  become  victims  of  crime.  Member  States 
would increasingly be left behind by criminals.  

Under this option, there would be no impact on domestic justice systems. 

4.7. 

Does the EU have power to act? 

4.7.1.  Legal basis 

The power to act and, where necessary, propose EU legislation in the area of criminal law is 
conferred, inter alia, by Articles 82 and 83 of the Treaty on the Functioning of the European 
Union (TFEU) .  

More  specifically,  the  legal  basis  to  support  action  in  the  field  of  mutual  recognition  of 
criminal assets' freezing and confiscation orders is Article 82(1) TFEU, which specifies inter 
alia that judicial co-operation in criminal matters in the Union shall be based on the principle 
of mutual recognition of judgments and judicial decisions.  

Measures may be adopted in accordance with the ordinary legislative procedure to lay down 
rules and procedures for ensuring recognition throughout the Union of all forms of judgments 
and judicial decisions, and to facilitate cooperation between judicial or equivalent authorities 
of  the  Member  States  in  relation  to  proceedings  in  criminal  matters  and  the  enforcement  of 
decisions. 

4.7.2. 

 Subsidiarity: Why is the EU better placed to take action than Member States? 

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  provides  that  the  Union  shall  provide 
citizens  with  a  high  level  of  security  by  preventing  and  combating  crime.  The  assets  of 
organised  criminal  groups  are  frequently  invested  in  several  countries.  This  double  cross-
border dimension (of organised crime activities and their multi-country investments) justifies 
European action. 

While  cross-border  criminal  and  asset  investigations  may  occur  in  several  countries, 
prosecution and the judicial activities leading to confiscation normally take place in only one 
Member  State  and  thus  confiscation  procedures  remain  essentially  national.  However,  their 
cross-border dimension is evident in the enforcement of orders in other Member States. Thus, 
asset recovery requires effective cooperation among Member States. The most effective way 
of  ensuring  cross-border  co-operation  is  on  the  basis  of  mutual  recognition.  Mutual 
recognition is in accordance with the principle of subsidiarity since it aims at recognising each 

109 Justice Issues in Europe, Volume 2, p.55 

EN 

32 

   EN 

                                                 
other's  decisions  without  full  harmonisation  of  national  rules,  and  cannot  be  achieved  by 
Member States acting alone. 

Moreover, the penetration of organised crime into the economy of one Member State affects 
the  functioning  of  the  whole  EU  Internal  Market.  Even  when  managing  licit  businesses, 
organised  crime  groups  often  support  these  activities  with  the  recourse  to  intimidation  and 
corruption, thus altering competition and the smooth functioning of the Internal Market. The 
resulting loss of revenues affects both national and EU financial interests, even when it takes 
place  in  only  one  Member  State.  More  broadly,  the  free  movement  of  persons  and  capitals 
within  the  Union  entails  a  need  for  action  at  supra-national  level  in  enforcing  judicial 
decisions, including those on asset freezing and confiscation. 

4.8. 

Fundamental Rights  

Confiscation  measures  may  have  a  considerable  impact  on  the  fundamental  rights  of  the 
person(s)  concerned,  such  as  the  right  to  property  or  the  right  to  family  and  private  life. 
Particular attention needs to be given to ensure that any interference is based on the principle 
of  legality  and  proportionality  and  that  other  fundamental  rights,  such  as  procedural 
safeguards and the right to an effective judicial remedy, are respected (see Annex 6).  
Depending  on  how  confiscation  is  used110  and  in  which  setting  it  operates111,  different 
fundamental  rights  may  be  relevant.  Moreover,  the  applicable  fundamental  rights  may  also 
vary with regard to freezing of assets. For example, the freezing of assets is not a deprivation 
of  property  within  the  meaning  of  the  first  paragraph  of  Article  1  Protocol  1  of  the  ECHR, 
however,  confiscation  is.  The  complexity  is  further  increased  when  confiscation  extends  to 
third party assets. 

A balancing of rights is needed to avoid that fundamental rights, such as defence rights, are 
put at risk when applying confiscation measures. It is essential that any new legal instrument 
enhancing the mutual recognition of freezing and confiscation orders is fully in line with the 
ECHR,  the  case-law  of  the  ECtHR  and  the  Charter  of  Fundamental  Rights  of  the  European 
Union.  

A detailed analysis of the impact of the various options on fundamental rights is carried out in 
the assessment of the options and their comparison (see below sections 7 and 8), the relevant 
case-law is set out in Annex 6. This analysis was carried out taking into account the Opinion 
of  the  European  Union  Agency  for  Fundamental  rights  on  the  Confiscation  of  proceeds  of 
crime112 as well as opinions and presentations made by specialists during expert meetings113. 

5. 

OBJECTIVES  

Based  on  the  problem  analysis  and  the  EU's  current  legal  framework  in  the  field  of  asset 
recovery and in line with relevant policy strategies (notably the European Agenda for Security 
of  28  April,  2015  and  the  Commission's  Action  Plan  for  strengthening  the  fight  against 
terrorist financing114), the following general and specific objectives have been identified: 

110 Confiscation can be used as a means to recover illegally obtained assets or as a penalty. 
111 Criminal, civil or administrative  
112 FRA Opinion 03/2012;  
http://fra.europa.eu/sites/default/files/fra-opinion-3-2012_confiscation-of-proceeds-of-crime.pdf 
113  Conference  of  20  June  2016  on  strengthening  the  mutual  recognition  of  freezing  and  confiscation  orders,  
Presentation by Prof. Vettori (Catholic University of Milan, Italy) on ECHR Jurisprudence on "in rem", 
extended and third party confiscation 

114 See above, Section 2.1 on Policy context 

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33 

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Objectives: 

General 
objective: 

(cid:131)  To freeze and confiscate more assets deriving from criminal activities in cross-
border  cases  in  order  to  prevent  and  combat  crime,  including  terrorism  and 
organised crime  

(cid:131)  To enhance the protection of victims' rights in cross-border cases. 

Specific 
objectives: 

(cid:131) To improve the mutual recognition of freezing and confiscation orders in cross-

border cases by extending the scope of mutual recognition instruments; 

(cid:131)  To provide simpler and faster procedures and certificates. 

(cid:131)  To increase the number of victims receiving cross-border compensation. 

6. 

POLICY OPTIONS 

The  policy  options  for  addressing  the  problems  as  defined  in  part  4  of  this  Impact 
Assessment, in line with the objectives as established in part 5, are set out below.  

6.1. 

Discarded Options 

The following policy options have not been retained for further in-depth assessment: 

a)  Codification  of  the  existing  Framework Decisions  2003/577/JHA  on  the  execution  of 
freezing  orders  and  2006/783/JHA  on  confiscation  orders  into  one  legal  instrument: 
Although this option would lead to a consolidation and certain simplification of the existing 
rules it would be too limited in its scope and not take into account recent developments at EU 
level and at national level (see above section 3.5 and 4.2.1). 

b)  Limitation  of  the  scope  to  specific  offences  (e.g.  "eurocrimes"):  As  the  current  legal 
mutual  recognition  framework  already  covers  cooperation  in  respect  of  all  criminal 
offences115, it would not be coherent to limit the scope of a new legal instrument to the so-
called "eurocrimes".116 This would lead to different regimes (one for eurocrimes and one for 
other offences) for mutual recognition, which would go against the objective of simplification 
of the current framework. On the contrary, it would add complexity to the system and hamper 
its  practical  effectivity.  Even  if  the  Directive  2014/42  can  only  cover  Eurocrimes,  an 
alignment  with  the  Directive  in  terms  of  offenses  would  not  bring  any  added  value  for  the 
mutual recognition legal framework. Furthermore, this would result in an exclusion of many 
criminal offences which are relevant for confiscation as they can generate considerable gains. 
. It should also be recalled that the legal basis for mutual recognition (Art. 82 TFEU) is not 
limited  to  eurocrimes,  contrary  to  the  legal  basis  for  harmonisation  measures  (Art.  83 
TFEU)117. 

115 See Art.3 of FD 2003/577/JHA and Art. 6 of Framework Decision 2006/783/JHA 
116 According to Art.83 TFEU eurocrimes are particularly serious crimes with a cross-border dimension resulting 
from the nature or impact of such offences, or from a special need to combat them on a common basis. 
For more details see above, Section 3.3 

117 See therefore Art.3 of Directive 2014/42/EU which is limited to eurocrimes. 

EN 

34 

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c)  Empowering  all  Asset  Recovery  Offices  to  also  manage  frozen  assets      could  increase 
efficiency  and  promote  best  practices.  However,  this  option  is  not  directly  linked  to  the 
strengthening of mutual recognition of freezing and confiscation orders and was discarded.  

6.2. 

Description of the policy options 

6.2.1.  Option 1: Maintaining the status quo 

See above, Section 4.6 – The size of the problem/Baseline scenario 

6.2.2.  Option 2: Non-regulatory option 

A non-regulatory option could consist of two main elements:  

a) Periodic evaluation of judicial cooperation in the area of confiscation 

There is no obligation in the current framework decisions to conduct periodic evaluations of 
the  instruments.  Under  option  2  the  Commission  would  collect  in  a  systematic  manner 
information on judicial cooperation and mutual recognition of confiscation orders. Directive 
2014/42/EU provides for an obligation upon Member States to regularly collect and maintain 
comprehensive  statistics  on  freezing  and  confiscation  orders118.  The  information  collected 
would be used to prepare periodic national and EU level evaluation reports which would go 
beyond the reporting obligations foreseen by Directive 2014/42/EU (which foresees in Article 
13 a report on the impact of the existing national law on confiscation and asset recovery)119. 
These  reports  could  also  contain  "general  lessons  learned".  This  could  be  done  through  a 
specific  network  of  experts  that  would  collect  relevant  material  in  each  Member  State,  or 
through studies in this area. Such reports would be disseminated to stakeholders involved at 
policy and implementation level and would also be published on the Commission's website. 

b) Support the training of law enforcement and judicial authorities 

The  Commission  would  enhance  and  intensify  training  measures  for  law  enforcement  and 
judicial authorities to promote and improve the application of relevant legislation, e.g. via the 
European  Judicial  Training  Network.  Regular  workshops  to  exchange  best  practices  and 
seminars  would  be  organised  and  coordinated  and  peer  review  meetings  with  Ministries  of 
Justice would be held. Those activities should involve key players such as Eurojust and the 
European  Judicial  Network.  The  information  collected  would  be  widely  disseminated  on  a 
dedicated  website  of  the  Commission  and  through  existing  networks  and  EU  dedicated 
agencies.  

- Stakeholder views 
In  the  recent  expert  meeting  of  17  November  2016  Member  States120  have  generally 
acknowledged  the  need  to  improve  mutual  recognition  of  freezing  and  confiscation  orders 
with a new legislative instrument121. They expressed the view that neither the Status quo nor 
option 2 would adequately address the problems identified.  

The  European  Parliament  has  also  repeatedly  asked  for  a  new  legal  instrument  and  would 
therefore not be in favour of option 2.  

118 Article 11. 
119 To be presented before 4 October 2018. 
120 Only one Member State has expressed certain doubts about the need for the Commission to act. 
121  This  confirms  the  opinions  expressed  by  Member  States  also  at  other  precedent  expert  meetings  and  the 
Conference of 20 June on confiscation which had been organised jointly by the Commission and the NL 
Presidency. 

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There was also a large consensus on the side of practitioners (including judges, prosecutors, 
representatives  from  Europol  and  Eurojust)  that  a  soft  law  option  would  be  insufficient  to 
increase cross-border freezing and confiscation.  

Thus, this option would go against the expectations of stakeholders expressed in the different 
meetings. 

6.2.3.  Option 3 – Minimal regulatory option 

Option  3  goes  further  than  option  2  and  consists  of  codifying  the  existing  two  Framework 
decisions  2003/577/JHA  on  the  execution  of  freezing  orders  and  2006/783/JHA  on 
confiscation orders into one legal instrument, while at the same time aligning its scope with 
that of Directive 2014/42/EU in terms of types of freezing and confiscation measures covered 
(including extended confiscation122 and some limited forms of criminal non-conviction based 
confiscation123). Option 3 could also be combined with elements b) and c) of Option 2. 

Unlike  Directive  2014/42/EU,  the  new  instrument  under  option  3  would  cover  all  criminal 
offenses  and  not  be  limited  to  the  Eurocrimes124  as  the  legal  basis  of  the  new  instrument 
would be Article 82 TFEU which does not require limiting the scope of mutual recognition to 
such  crimes.  Furthermore,  such  a  limitation  would  create  additional  complexity  for 
practitioners.  

Option 3 would also include the introduction of simplified mutual recognition certificates and, 
for  freezing  orders  only,  possibly  a  "European  Asset  Freezing  Order".125  Such  a  European 
Asset  Freezing  Order  would  be  issued  specifically  for  the  purpose  of  mutual  recognition  in 
another Member State without the need for issuing a national freezing order first. It would be 
justified by the urgent nature of freezing and the need to simplify procedures. 

Option  3  would  also  define  short  mandatory  deadlines  for  the  recognition  and  execution  of 
freezing orders, and introduce harmonised grounds for refusal based on fundamental rights.  

Finally, option 3 could foresee specific rules on the restitution and compensation of victims.  
Member  States  would  be  required  to  duly  take  into  account  victims'  rights  (notably  the 
executing State). In the case of a decision taken by the issuing Member States to restitute the 
property to the victim, the executing authority should ensure that the property is restituted or, 
where not possible, the value of the property should be returned to the victim. If a decision is 
taken to compensate the victim, the corresponding sum should accrue to the issuing Member 
State  for  the  purpose  of  compensation  of  the  victim  (whereas  under  the  current  legal 
framework  there  is  a  50%  division  between  the  executing  and  issuing  State  of  the  amount 
obtained from the execution of a confiscation order if the amount is over € 10000).  

- Stakeholder views 
In  the  recent  expert  meeting  of  17  November  2016  Member  States126  have  generally 
acknowledged  the  need  to  improve  mutual  recognition  of  freezing  and  confiscation  orders 
with  a  new  legislative  instrument127.  Option  3  could  be  supported  by  nearly  all  Member 

122 Article 5 of Directive 2014/42/EU 
123 In the case of illness and absconding, see Article 4(2) of Directive 2014/42/EU 
124 Cf. section 3.3. 
125 Comparable to the "European Investigation Order" introduced by Directive 2014/41/EU of 3 April 2014 
126 Only one Member State has expressed certain doubts about the need for the Commission to act. 
127  This  confirms  the  opinions  expressed  by  Member  States  also  at  other  precedent  expert  meetings  and  the 
Conference of 20 June on confiscation which had been organised jointly by the Commission and the NL 
Presidency. 

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States128  and  was  considered  as  the  "absolute  minimum"  option  to  be  proposed  by  the 
Commission.  It  would  not  raise  any  particular  concerns  from  Member  States.  However,  it 
became  also  clear  during  the  expert  meeting  that  a  more  ambitious  approach  than  option  3 
was generally considered as more appropriate. In particular those Member States which have 
more extensive forms of NCBC129 would like to have their domestic freezing and confiscation 
orders recognised and executed throughout the EU.  

The  European  Parliament  is  generally  in  favour  of  a  legislative  proposal  to  strengthen  the 
mutual recognition of confiscation and freezing orders. This was clearly expressed already in 
2014 when the Directive 2014/42/EU was adopted130 and reiterated more recently in the so-
called Ferrara Report of October 2016131. However, the European Parliament has never taken 
position on specific options. 

Opinions of legal practitioners (judges, prosecutors) have diverged on what kind of measures 
a  new  EU  instrument  should  cover.  Several  experts  expressed  that  unless  there  is  more 
harmonisation  in  this  area,  a  mutual  recognition  instrument  should  be  limited  in  scope 
(corresponding to options 3 or 4a as a maximum).  

Defence  lawyers  were  generally  rather  critical  as  regards  a  possibly  wider  scope  of  a  new 
mutual recognition instrument. They spoke in favour of a more limited option which provides 
for appropriate procedural safeguards. 

6.2.4.  Option 4 –Medium and Maximal regulatory option 

Policy  option  4  would  consist  in  the  adoption  of  a  new  mutual  recognition  instrument  that 
would address most or all deficiencies identified for the existing instruments. It would notably 
include  within  its  ambit  all  freezing  orders  and  all  confiscation  measures  (conviction  based 
and  non-conviction  based)  which  meet  certain  stringent  minimum  standards,  particularly 
including strong fundamental rights standards.  

As under the minimal regulatory policy option, the new instrument would cover all criminal 
offenses.  

Moreover, this option would also provide for simplified mutual recognition certificates and, 
for freezing orders only, possibly a "European Asset Freezing Order" as set out under option 
3. Option 4 would also define short mandatory deadlines for the recognition and execution of 
freezing orders and introduce harmonised grounds for refusal based on fundamental rights..  

Option 4 would also allow victims to benefit from asset recovery in cross-border cases. In this 
respect Option 4 would be identical to option 3. 

Two sub-options can be distinguished: 

Sub-Option 4(a) Medium option 

Under  this  option,  the  types  of  freezing  and  confiscation  orders  which  can  be  recognised 
would  be  all  those  which  are  issued  in  the  context  of  criminal  proceedings.  This  would  go 
beyond an alignment with Directive 2014/42/EU and cover all types of criminal confiscation, 

128 With the exception of Poland which expressed certain doubts on the need of new legislation. 
129 Or where reforms are currently on-going  
130 As expressed in joint statement by the European Parliament and the Council, given when adopting Directive 
2014/42/EU,  calling  on  the  Commission  "to  present  a  legislative  proposal  on  mutual  recognition  of 
freezing and confiscation orders at the earliest possible opportunity (…) considering the need of putting 
in  place  a  comprehensive  system  for  freezing  and  confiscation  of  proceeds  and  instrumentalities  of 
crime in the EU", Council doc. 7329/1/14 REV 1 ADD 1. 

131 Adopted by LIBE on 7 October 2016 

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including criminal non-conviction based confiscation (such as in the case of death of a person, 
immunity,  prescription,  cases  where  the  perpetrator  of  an  offence  cannot  be  identified  or 
where a criminal court can confiscate an asset in the absence of conviction when the court is 
convinced that such asset is the proceeds of crime).  

Example 

The  draft  German  law  transposing  Directive  2014/42/EU  contains  provisions  for  so-called 
"autonomous confiscation". It allows a criminal court to confiscate an object in the absence of 
a conviction, if, based on all circumstances of the case, the court is convinced that an object is 
the proceeds of a crime, even if the person affected by the confiscation cannot be prosecuted 
or convicted for this crime.  

However, this option would not cover civil or administrative forms of confiscation.  

Sub-Option 4(b) Maximal option 

The second sub-option would extend the obligation to recognise confiscation orders beyond 
those covered by option 4(a) to those made in civil or administrative proceedings where it is 
shown that the property is the proceeds of criminal conduct.  

Example 

As a response to Mafia, Italy has introduced so-called preventative freezing and confiscation, 
which  allows  freezing  and  confiscation  of  assets  without  a  conviction  provided  that  the 
following conditions can be established: 1) previous or current dangerousness of a person; 2) 
availability  of  property  without  evidence  of  legitimate  origin,  when  there  is  (a)  a 
disproportion  between  the  value  of  property  and  the  stated  income  of  the  person  or  (b) 
sufficient evidence that the property is the proceeds of crime. The preventative confiscation is 
provided for in the anti-mafia code and is considered as an administrative measure, outside of 
the criminal code. 

In  order  to  ensure  that  even  in  these  civil  and  administrative  proceedings,  the  procedural 
rights  of  the  persons  concerned  are  sufficiently  protected,  the  recognition  obligation  should 
depend on the respect of certain fundamental rights safeguards.  

Such  fundamental  rights  would  include  rules  on  the  burden  of  proof,  the  right  to  a  fair  and 
public  hearing,  the  potential  to  challenge  evidence,  the  right  of  appeal  and  the  right  to  an 
effective legal remedy.  

This sub-option would cover most of the existing confiscation regimes in the EU and would in 
particular  allow  those  Member  States  that  have  civil  non-conviction  based  confiscation  in 
place to have those orders recognised in all other Member States. If option 4(b) is retained, it 
would have to be ensured that the scope of the new instrument is in line with the legal basis of 
Article 82(1) TFEU, which covers judicial cooperation in criminal matters. 

Option 4 could also be combined with elements b) and c) of Option 2. 

- Stakeholder views 

Option 4a appeared to be the most preferred option for those Member States which took the 
floor  at  the  expert  meeting  of  17  November.  Many  Member  States  have  the  necessary 
legislation  adopted  or  have  draft  laws  pending.  No  particular  concerns  were  raised.  Some 

EN 

38 

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Member  States  clearly  indicated  that  this  would  be  their  preferred  option  and  also  the 
maximum they could envisage.132 

As  regards  the  widest  option  4b,  which  would  include  civil  and  administrative  NCBC,  the 
picture  which  emerged  at  the  expert  meeting  was  more  diverse.  Option  4b  is  likely  to  be 
supported by at least those Member States which have already such systems in their domestic 
legal order: IE, UK, BG, SK, SI and IT. Furthermore, FR, and NL have expressed that they 
are already now able to recognise civil NCBC orders.  

However, some Member States have clearly expressed that some far-reaching forms of NCBC 
would  be  more  problematic,  if  they  contravene  fundamental  principles  of  domestic  law.  ES 
has expressed constitutional issues with civil NCBC and reversal of burden of proof. EE has 
considered that jurisprudence by its Supreme Court sets limits to civil NCBC, however it may 
not  oppose  it  in  the  context  of  mutual  recognition.  FI  has  expressed  that  only  confiscation 
orders issued in criminal proceedings should be covered as criminal proceedings entail clear 
procedural safeguards.  

The  European  Parliament  is  generally  in  favour  of  a  legislative  proposal.  However,  the 
European Parliament has never taken position on specific options or on the possible scope of a 
new instrument. 

Members of Eurojust, Europol, judges and prosecutors have repeatedly pointed out during the 
above mentioned meetings or contacts133 that confiscation is a very efficient tool, in particular 
in  the  fight  against  organised  crime  such  as  drug  trafficking.  Many  have  noted  that 
confiscation  procedures  are  underused  and  that  there  is  an  increased  need  for  effective 
international cooperation and mutual legal assistance on asset recovery.  

Opinions have diverged on what kind of measures a new EU instrument should cover. Several 
experts have underlined that national confiscation systems differ widely between EU Member 
States. Some have considered that if certain Member States do not have civil confiscation for 
constitutional  reasons  or  fundamental  rights  reasons,  it  will  be  difficult  for  a  judge  to 
recognise  a  civil  confiscation  order  and  to  execute  it.  Some  expressed  that  unless  we  have 
more harmonisation in this area, a mutual recognition instrument needs to be limited. Others 
considered that mutual recognition is a good alternative to further harmonisation. 

Defence  lawyers  were  generally  rather  critical  as  regards  a  possibly  wider  scope  of  a  new 
mutual  recognition  instrument  (notably  as  regards  a  possible  extension  to  civil  and 
administrative  NCBC  -  corresponding  to  sub-option  4b)  and  underlined  the  need  to  ensure 
appropriate procedural safeguards and to take into account fundamental rights concerns.  

Some  legal  practitioners  and  academia  from  former  communist  countries  have  referred  to 
experience  from  recent  history  where  the  state  confiscated  people's  property  unjustly  and 
without ensuring fair proceedings and underlined the need for appropriate safeguards.  

Regulation or Directive 

The  new  legal  instrument  could  be  adopted  in  the  form  of  a  directive  or  regulation.  Article 
82(1)  TFEU  gives  the  EU  legislator  the  choice:  it  does  not  limit  the  possible  measures  to 
directives but also allows for the adoption of regulations.  

Whereas  a  directive  would  give  Member  States  some  margin  for  transposition,  national 
legislation  might  vary  between  Member  States.  As  the  proposal  concerns  cross-border 
procedures, there seems to be little need to leave this margin to Member States to adapt it to 

132 CY, DE, FI, RO, CZ, EE, SE 
133 See also specific meeting with Eurojsut members on 29 June 2016, set out in Annex 2. 

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their national situation. A regulation would be directly applicable, would provide greater legal 
certainty  and  would  avoid  the  transposition  problems  that  the  Framework  Decisions  were 
subject to.  

Table  5:  Overview  on  how  the  regulatory  options  would  meet  the  objectives  of  this 
initiative 

Specific objective 1: To improve the mutual 
recognition of freezing and confiscation orders by 
extension of scope of the mutual recognition 
instrument 

Confiscation after criminal conviction 

Extended confiscation 

Confiscation from a third party 

absconding 

illness 

Criminal NCBC 

death 

forms  of  criminal 

other 
NCBC 

Civil and administrative NCBC (necessary link to 
a criminal conduct) 

Specific  objective  2: 
procedures and certificates 

faster  and 

simpler 

Specific  objective  3:  increase  the  number  of 
victims receiving cross-border compensation 

Option 3  Option 4 a)  Option 4 b)

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

(cid:57) 

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Consequences 
- Criminals can invest proceeds of crime in other MS, terrorists can access funds 
- Injustice for victims 
- Lack of mutual trust between MS 
- Lack of confidence in EU and internal market 
Consequences 
i
- Criminals can invest proceeds of crime in other MS, terrorists can access funds
victims
- 
MS
- 
- 
market

Injustice 
of 
confidence 

between 
internal 

mutual 
in 

for 
trust 

Lack 

and 

EU 

of 

EN 

Lack 
i

Benefits 
- Hostile environment for organised crime + terrorism 
- Restoration for victims 
- Improve mutual trust between MS 
- Restore confidence in EU and internal market 

Hostile 

Benefits 
- 
- 
- 
- Restore confidence in EU and internal market 

environment 

Restoration 

Improve 

mutual 

for 

organised 

for 

trust 

crime 

+ 

between 

terrorism 
victims 
MS 

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7. 

ANALYSIS OF THE IMPACTS OF THE POLICY OPTIONS  

The five policy options are discussed and measured against the following criteria: 

•  Effectiveness: the extent to which the measure fulfils the objectives of the proposal; 

•  Compliance Costs; 

• 

• 

Impact on fundamental rights; 

Impact on legal systems/proportionality. 

7.1. 

Option 1: Maintaining the status quo 

See Section 4 – problem definition 

7.2. 

Option 2: Non-regulatory option  

•  Effectiveness 

The non-regulatory option might marginally improve the situation with regard to the base-line 
scenario.  However,  the  general  objective  and  specific  objectives  would  not  be  adequately 
achieved.  

The  above  identified  problems  arising  from  the  too  limited  scope  of  the  current  legal 
framework,  the  difficulties  arising  from  the  certificates  and  the  lack  of  rules  for  victims' 
compensation would not be solved (see above, Section 4).  

•  Compliance Costs 

The financial and administrative burden of this option depends on the extent Member States 
have  already  implemented  the  Framework  Decisions  into  national  law  but  would  be  overall 
very  limited.  Certain  limited  costs  could  result  from  the  training  of  law  enforcement  and 
judicial  authorities  to  promote  and  improve  their  knowledge  of  the  legal  framework  –  this 
could be done by prioritising this topic within the EJTN and their annual operating grant and 
would not necessarily lead to an increase in costs - and from the organisation of workshops or 
meeting with the Ministries of Justice. The costs of such workshops depend on the scale on 
which they are organised and their usefulness would likely be proportional to their scale.  

Given the current underutilisation of the existing legal framework workshops and training will 
have some positive impact upon the utilisation of freezing and confiscation orders. This may 
lead  to  a  certain  increase  of  frozen  and  confiscated  assets  and  slightly  more  income  for  the 
States. 

•  Impact on fundamental rights 

There would be no  or only very limited impact on fundamental rights. Some improvements 
could  be  achieved  by  the  training  of  legal  professionals  as  regards  their  knowledge  on 
fundamental rights, the relevant case-law of the ECtHR and their application in practice. 

•  Impact on domestic justice systems 

Regular monitoring, evaluation and training activities should improve the use of the existing 
instruments which could lead to a slight increase in the number of freezing and confiscation 
orders executed on a cross-border basis. Better enforcement of cross-border procedures would 
likely result in a slightly increased confidence in the area of justice, freedom and security. No 
concrete impact on the domestic justice system is to be expected. 

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7.3. 

Option 3: Minimal regulatory option  

•  Effectiveness 

Improving  the  mutual  recognition  instruments  by  codifying  and  consolidating  the  two 
Framework  Decisions  2003/577/JHA  and  2006/783/JHA  into  one  legal  instrument,  aligning 
its  scope  with  the  Directive  2014/42/EU  and  introducing  simplified  certificates  would 
increase to a certain extent the number of cross-border enforcement procedures and thereby 
also lead to an increase of the value of assets recovered. 

This  option  would  have  the  effect  of  ensuring  that  confiscation  in  the  case  of  illness  or 
absconding  as  foreseen  by  Article  4(2)  of  Directive  2014/42/EU,  extended  confiscation  as 
foreseen by Article 5 of Directive 2014/42/EU and third-party confiscation foreseen in Article 
6 of the Directive would be recognised in all Member States. Because all Member States have 
to transpose the Directive 2014/42/EU, this would benefit all Member States. 

One consolidated legal instrument providing for clear rules which could possibly be directly 
applicable  would  resolve  the  patchy  and  inadequate  implementation  and  the  existing 
inconsistencies between the current legal instruments. 

The certificates would be streamlined and simplified which would enhance the use of mutual 
recognition instead of mutual legal assistance by practitioners. This would also imply faster 
procedures and enhanced efficiency. Possible synergies with the European Investigation order 
or the introduction of a European Asset Freezing Order would be further explored134. Faster 
cross-border execution would increase the chances of successful recovery by limiting the risks 
for asset dissipation. 

Option  3  would  also  result  in  a  considerable  improvement  in  the  ability  of  victims  to  get 
compensation in cross-border cases for those Member States that foresee such procedures (cf. 
Section  4.4)  as  Member  States  would  be  required  to  duly  take  into  account  victims'  rights 
(notably the executing State). 

However, Directive 2014/42/EU provides only for minimum harmonisation and a significant 
number  of  Member  States  go  beyond  the  requirements  of  the  Directive  (e.g.  for  example, 
many Member States allow for non-conviction based confiscation in the case of the death of 
the  perpetrator.;  in  addition  in  some  Member  States  important  reforms  are  on-going  in  the 
context  of  the  transposition  of  the  Directive).  Forms  of  NCBC  of  criminal,  civil  or 
administrative nature would not be covered. As a result, such newly introduced EU legislation 
which would (only) require the mutual recognition of the types of freezing and confiscation 
orders which are harmonised by Directive 2014/42/EU would leave again significant gaps and 
thereby hamper the effectiveness of such legislation.  

This  has  also  been  underlined  by  many  Member  States  during  the  expert  meeting  on  17 
November 2016 which considered this option as a "minimum approach" for new legislation 
but largely expressed the view that a more ambitious approach would be more appropriate. 

As a result, option 3 would be effective with regard to the specific objectives of consolidation 
of  existing  instruments,  simplification  and  procedures  and  certificates  and  compensation  of 
victims. However, option 3 could only partially achieve the objective of the extension of the 
scope. Its effectiveness to achieve all specific objectives and the general objective is therefore 
limited.  

•  Compliance costs 

134 See above, Section 6.2.3 

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Option  3  would  increase  the  number  of  cross-border  enforcement  procedures  and,  to  some 
extent,  the  value  of  assets  recovered.  However,  it  is  difficult  to  assess  the  economic  added 
value of such an increase in the utilisation of mutual recognition instruments.  

An  increased  utilisation  of  mutual  recognition  instruments  would  shift  administrative  costs 
from central authorities (in charge of mutual legal assistance) to (local) judicial authorities. As 
mutual recognition is less convoluted that mutual legal assistance, the administrative cost of 
handling requests from another Member State should in principle decrease. The extent of this 
slight decrease in direct costs would depend of the relative efficiency of the different parts of 
Member  States'  administration.  The  envisaged  consolidation  of  mutual  recognition 
instruments  and  forms  and  the  alignment  with  Directive  2014/42/EU  may  require  some 
training for the practitioners. These overall costs would be likely offset by the benefits in the 
form  of  increased  value  of  assets  recovered  (resulting  from  an  increased  number  of  cross-
border  enforcement  procedures).  Concrete  figures  are  not  available.  A  comparison  of  costs 
based on estimates is set out below in section 7.5. 

•  Impact on fundamental rights 

Option 3 would have a limited impact on fundamental rights, which would go beyond option 
2  but  would  be  less  intrusive  than  option  4.  The  inclusion  of  some  forms  of  criminal  non-
conviction  based  confiscation  and  extended  confiscation  should  not  raise  particular 
fundamental  rights  concerns  for  the  following  reasons:  in  its  case-law  the  ECtHR135  has 
considered  extended  confiscation  to  be  consistent  with  Article  6  ECHR  and  Article  1  of 
Protocol 1, if effective procedural safeguards are respected. Directive 2014/42/EU contains in 
its Article 8 a number of safeguards to ensure the rights to a fair trial and an effective judicial 
remedy. 

•  Impact on domestic justice systems 

A directly applicable instrument would have the advantage that foreign orders would have to 
be  executed  like  domestic  ones,  without  the  need  to  modify  their  internal  legal  system  and 
their way of working. As all Member States have to transpose Directive 2014/42/EU into their 
national law (this option foresees an alignment with this directive), no specific impact on the 
domestic justice system is therefore to be expected. 

7.4. 

Option 4: Medium and Maximal regulatory option  

•  Effectiveness 

Options  4a  and  4b  would  improve  the  effectiveness  of  a  mutual  recognition  instrument 
compared  to  option  3  taking  into  account  that  they  would  cover  also  criminal  NCBC  (sub-
option  4a)  or  criminal,  civil  and  administrative  NCBC  (sub-option  4b).  As  sub-option  4b 
would have the widest scope, it would be the most effective to reach the general and specific 
objectives. A single instrument including all types of freezing and confiscation orders which 
currently  exist  in  the  Member  States,  including  the  different  forms  of  NCBC,  would 
considerably increase the number of cross-border enforcement procedures in the EU.  

The  fact  that  all  types  of  orders  (sub-option  4b)  or  a  large  part  of  orders  (Sub-option  4a) 
would be covered by the same instrument would enhance its use, as courts and judges in the 
Member  States  will  not  need  to  make  use  of  the  traditional  mutual  legal  assistance 
instruments.  Hence  the  current  double  legal  regime  for  recognition  and  enforcement  of 

135 See ECtHR, Phillips v. UK, N°41087/98. 

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freezing and confiscation orders would disappear and judicial authorities would apply the new 
instrument. 

Moreover,  one  legal  instrument  providing  for  clear  rules  which  could  possibly  be  directly 
applicable  would  resolve  the  patchy  and  inadequate  implementation  and  the  existing 
inconsistencies between the current legal instruments. 

Clear rules and simplified certificates (foreseen in both sub-options) would make the use of 
mutual recognition more convenient for practitioners. Option 4 (both sub-options) would also 
allow  victims  to  benefit  from  asset  recovery  and  thereby  achieve  the  objective  of 
improvement of victims' compensation in cross-border cases. 

Overall,  both  sub-options  would  mean  that  considerably  more  criminal  proceeds  could  be 
frozen  and  confiscated  in  a  cross-border  context  within  the  EU.  This  will  allow  assets  of 
criminals,  crime  organisations  and  terrorist  groups  being  confiscated  not  only  in  purely 
domestic  cases  but  also  when  they  invest  their  illicit  money  in  other  Member  States.  The 
enhanced  deprivation  of  criminals,  criminal  organisations  and  terrorist  groups  of  their 
criminal  assets  will  reduce  the  financing  of  criminal  and/or  terrorist  activities.  Thus,  the 
benefits for society would be highest under option 4b, and a little bit less, but still significant, 
for  option  4a.  The  reutilisation  of  confiscated  assets  for  social  purposes136  may  also  have 
some  economic  benefits  allowing  for  example  NGO's  to  start  business  activities  using 
confiscated assets which normally become profitable over time. 

•  Compliance costs  

Option  4  would  imply  certain  administrative  and  implementation  costs  resulting  from  the 
enhanced  use  of  freezing  and  confiscation  orders  in  cross-border  cases,  sub-option  4b  to  a 
larger extent than sub-option 4a. However, these costs would be largely offset by the expected 
increase in the assets recovered.  

Because of the lack of data in relation to amounts frozen, confiscated and recovered, and in 
relation to the costs of carrying out confiscation related activities, it is not possible to provide 
a quantification of the overall cost of this option. In order to address the lack of data described 
earlier, the cost analysis is based on estimates which uses figures from the UK as only for the 
UK  income  and  costs  for  all  elements  of  the  asset  confiscation  system  can  be  estimated.  A 
comparison of costs is set out below in section 7.5. 

•  Impact on fundamental rights  

Option  4  and  notably  sub-option  4b)  will  have  the  most  significant  impact  on  fundamental 
rights.  

NCBC may interfere with the right to property in the meaning of Article 17 of the Charter and 
Article 1 of the first Protocol to the ECHR without a previous criminal conviction. Since these 
measures are not taken in the procedural framework of a criminal conviction, they may affect 
the  presumption  of  innocence  guaranteed  by  Article  48(1)  of  the  Charter  and  Article  6(2) 
ECHR137. 

136 In Italy, for example, schools, kindergartens, day care centres for disabled people, cultural centres, meeting 
places, youth centres, restaurants, tourist centres and service desks, and social housing have been placed 
in confiscated properties. 

137 In a number of conviction-based cases, the ECtHR has treeated conviction based confiscation as part of the 
sentencing process and therefore determined that Article6 (2) of the ECHR – presumption of innocence 
– did not apply. 

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A  NCBC  system  is  generally  based  on  lower  requirements  of  the  standard  of  proof  for  the 
nexus  between  crime  and  confiscated  property138  and  in  certain  circumstances  a  shift  of  the 
burden of proof is possible when the State has already proved that the property constitutes the 
proceeds of a criminal activity139.  

Shifts  of  the  burden  of  proof  concerning  the  legitimacy  of  assets  have  not  been  found  a 
violation of fundamental rights by the ECtHR, as long as they were applied in the particular 
case  with  adequate  safeguards  in  place  to  allow  the  affected  person  to  challenge  these 
presumptions, which should always be rebuttable (for more details, see Annex 6). 

The right to be presumed innocent until proven guilty under Article 48 of the Charter applies 
when a person has been charged under criminal law and not where the proceedings are civil in 
nature. In some cases before the ECtHR defendants in NCBC proceedings have argued that 
these are criminal and violate the presumption of innocence, but these arguments have so far 
not  been  accepted  by  the  ECtHR.  Indeed,  the  rules  on  the  burden  of  proof,  which  are  an 
important  aspect  of  the  presumption  of  innocence,  apply  only  when  the  purpose  of  the 
proceedings is to establish the guilt of persons. 

Although  the  ECtHR  has  not  ruled  on  the  principle  question  of  their  compatibility  with  the 
ECHR, the Court has repeatedly considered NCBC and extended confiscation to be consistent 
with  Article  6  ECHR  and  Article  1  of  Protocol  1,  if  effective  procedural  safeguards  are 
respected. 

The  question  of  proportionality  and  relevant  safeguards  plays  also  an  important  role  in  the 
context  of  third  party  confiscation.  Where,  in  the  case-law  of  the  ECtHR  there  is  an 
interference with the property rights of such parties, a link between the proceeds of crime and 
the  assets  in  the  possession  of  a  third  party  has  to  be  established.  Moreover,  the  limitation 
must be proportionate to the objectives being pursued and the right to a fair hearing must be 
respected. It is essential that a third party has an effective possibility to claim the ownership of 
a seized asset and to protect her/his interests. 
Confiscation  from  third  parties  should  not  prejudice  the  rights  of  bona  fide  third  parties140. 
"bona fide" third parties are persons who have legitimate rights to the assets to be confiscated 
and who are not connected to the criminal activities. It is therefore necessary to provide for 
specific  safeguards  and  judicial  remedies  (notably  the  right  to  be  heard  and  the  right  to  an 
effective judicial remedy) not only in domestic cases but also in cross-border context. 

It results from the above analysis, that if applied with proportionality and complemented with 
effective  procedural  safeguards  (the  fair  trial  rights  and  the  right  to  an  effective  judicial 
remedy), the measures in this policy option would seem to be compatible with fundamental 
rights requirements.  

The  respective  impact  of  sub-options  4a  and  4b  should  therefore  be  analysed  in  terms  of 
fundamental rights safeguards that would be applicable. 

As  sub-option  4a  would  cover  all  freezing  and  confiscation  orders  issued  within  the 
framework of criminal proceedings, criminal law safeguards would be applicable. This would 
include in particular the right to a fair trial enshrined in Article 6 ECHR, not only in its civil 
aspect (article 6, para. 1 ECHR) but also in its criminal part which protects the rights of the 

138 Generally, the civil standard of proof is called "balance of probabilities", instead of the criminal standard,  
which is "beyond reasonable doubt". 
139 E.g. Irish system. See Annex 5. 
140 See Article 6(2) of Directive 2014/42/EU 

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defence  in  criminal  proceedings  (article  6,  para.  3  ECHR).  Furthermore,  the  relevant 
legislation  at  EU  level  would  have  to  be  taken  into  account:  Directives  2010/64/EU141, 
2012/13/EU142,  2013/48/EU143,  2016/343144,  2016/800145  and  2016/1919146,  which  concern 
procedural rights in criminal proceedings.  

Concerning sub-option 4b, safeguards which correspond to the case-law of the ECtHR would 
also have to be defined. As this sub-option includes NCBC forms of confiscation which are 
outside  the  framework  of  criminal  proceedings,  they  would  offer  less  guarantees  for  the 
persons  affected.  As  criminal  law  safeguards  would  not  apply,  the  impact  on  fundamental 
rights  should  be  higher.  The  applicable  safeguards  for  sub-option  4b  would  also  be  more 
difficult  to  define,  as  the  EU  Directives  on  procedural  rights  and  Article  8  of  Directive 
2014/42/EU would not apply. 

•  Impact on domestic justice systems 

Sub-option 4a would have no specific impact or only very little impact on the domestic justice 
systems of Member States. When transposing Directive 2014/42/EU, Member States have to 
introduce  certain  forms  of  criminal  NCBC  (in  cases  of  illness  or  absconding)  into  their 
national  systems.  Several  Member  States  have  gone  beyond  and  introduced  (or  reforms  are 
still pending, see above section 3.6) other forms of criminal NCBC (e.g. death). This means 
that the different forms of criminal NCBC are largely known in all Member States. 

In  addition,  a  directly  applicable  instrument  would  have  the  advantage  that  foreign  orders 
would have to be executed like domestic ones, without the need to modify their internal legal 
system and their way of working. 

The impact of sub-option 4b considerably varies depending on the respective national systems 
in  place.  In  this  context,  and  following  the  expert  meeting  with  Member  States  on  17 
November 2016, three groups of Member States need to be distinguished: 

(1) Those Member States which do not foresee civil or administrative forms of NCBC in their 
national legal orders (AT, BE, CZ, CY, DE, EE, EL, ES, FI, HR, HU, LV, MT, PL, PT, RO, 
SE) would be considerably higher impacted by sub-option 4b  than sub-option 4a as it would 
require  them    to  enforce  such  orders  on  their  territory.  This  means  that  judges  and  law 
enforcement authorities would need to execute freezing and confiscation orders they are not 
necessarily familiar with and they could not adopt or execute in their own legal system. This 
could  be  mitigated,  to  a  certain  extent,  by  a  strong  set  of  procedural  rights  and  adequate 

141  Directive  2010/64/EU  of  the  European  Parliament  and  of  the  Council  of  20  October  2010  on  the  right  to 

interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, p. 1). 

142  Directive  2012/13/EU  of  the  European  Parliament  and  of  the  Council  of  22  May  2012  on  the  right  to 

information in criminal proceedings (OJ L 142, 1.6.2012, p. 1). 

143  Directive  2013/48/EU  of  the  European  Parliament  and  of  the  Council  of  22  October  2013  on  the  right  of 
access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right 
to have a third party informed upon deprivation of liberty and to communicate with third persons and 
with consular authorities while deprived of liberty (OJ L 294, 6.11.2013, p. 1). 

144  Directive  (EU)  2016/343  of  the  European  Parliament  and  of  the  Council  of  9  March  2016  on  the 
strengthening of  certain  aspects  of  the presumption  of  innocence  and of  the right  to  be  present  at  the 
trial in criminal proceedings (OJ L 65, 11.3.2016, p. 1). 

145  Directive  (EU)  2016/800  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  procedural 
safeguards  for  children  who  are  suspects  or  accused  persons  in  criminal  proceedings  (OJ  L  132, 
21.5.2016, p. 1). 

146 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for 
suspects  and  accused  persons  in  criminal  proceedings  and  for  requested  persons  in  European  arrest 
warrant proceedings (OJ L 297, 4.11.2016, p.1). 

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safeguards147.. However, it became clear during the expert meeting with Member States that 
sub-option 4b may lead to legal and practical problems in the context of the application of a 
new  instrument  and  judges  or  law  enforcement  authorities  might  be  hesitant  to  apply  this 
instrument in all cases. 

(2)  Member  States  which  do  not  foresee  civil  or  administrative  forms  of  NCBC  in  their 
national legal orders but are able to recognise and execute such types of confiscation orders 
already now (FR, LU, NL) would not be impacted by sub-option 4b or the impact would be 
very limited. 

(3) Member States which have a civil or administrative NCBC system in place (mainly BG, 
IT,  LT,  SI,  SK,  UK)  should  be  able  to  recognise  and  execute  these  types  of  orders  in  their 
national  systems  without  any  specific  difficulties148.  The  impact  on  their  national  systems 
would therefore be very low. 

7.5. 

Overall comparison of costs and income of different options 

Where Member States are successful in confiscating assets, the amount gained is likely to be 
higher  than  the  amount  expended  in  the  process  of  confiscating  the  assets.  Therefore  if  an 
instrument is enacted and enforced, it should result in a net monetary gain for Member States. 

Based on an estimated annual cost of administering confiscation orders in England and Wales 
in  2012-2013  of  £102  million  (of  which  36%  relates  to  investigations,  33%  to  enforcement 
and 31% to court hearings and appeals), and an annual number of around 6.392 confiscation 
orders  imposed  each  year,  149  it  can  be  estimated  that  the  average  amount  of  issuing  and 
enforcing  a  confiscation  order  amounts  to  about  GBP  16.000  or  EUR  18.000.  In  the  same 
time, GBP 133 million were collected by enforcement agencies, which means that for every 
confiscation  order,  costs  of  GBP  16.000  or  EUR  18.000  are  offset  by  an  average  income 
collected of GBP 20.807 or EUR 23.330 (which is however lower than the average value of 
confiscation orders imposed, as not every confiscation order is realised). 

The number of cross-border confiscation orders is not known. The following figures can serve 
as proxy of costs of issuing confiscation orders in the EU under the different option and the 
income to be generated:

147 Ground for refusal based on violation of fundamental rights in the issuing Member State. 
148 This applies however with certain restrictions as it appears that not all civil orders are recognised between UK 
 and IE. 
149 Source: UK, National Audit Office (NAO) Report on Confiscation Orders 2013. The estimations provided 
 stem from several data sources which may not always cover the same time or be collected in the same manner,  
and the NAO had to made several assumptions. However, it is the best proxy that we have to estimate cost and 
 income resulting from confiscation activities. 

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Table 6: comparison of costs and income under the different options 

Option  

Estimated 
number  of  intra-
EU  cross-border 
confiscation 
orders  

of  which 
MLA 
requests 

of  which 
Mutual 
recognition 
requests 

Costs 28 MS in 
million EUR 

Income 28 MS 
in 
million 
EUR  

Status Quo 

616-840 

448-560 

168-280 

11,1-15,1 

14,4-19,6 

Option 2 

646-882 

470-588 

176-294 

11,6-15,9 

15,1-20,1 

Option 3 

650-952 

314-392 

336-560 

11,7-17,1 

15,2-22,2 

Option 4a 

689-1036 

269-336 

420-700 

12,4-18,6 

16,1-24,2 

Option 4b 

730-1109 

260-325 

470-784 

13,1-20,0 

17,0-25,9 

Annex 7 sets out the different assumptions made for this table. 

8. 

COMPARISON OF THE OPTIONS 

In  the  following  table  the  results  of  the  assessment  as  described  above  under  Section  7  are 
compared with option 1 representing the status quo set at "0". 

Impacts (applied vis-à-vis the "no change" baseline) are rated + or – for slight impacts, ++ or -
- for moderate impacts, and +++ or --- for significant impacts. 

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Objectives/Impacts 

Option 1 

Option 2 

Option 3 

Option 4a 

Option 4b 

Comments 

Status quo 

Non-
regulatory 
Option 

Minimal 
regulatory 
Option 

Maximum 
Regulatory 
Option  

Maximum 
Regulatory 
Option 

0 

0 

+ 

++ 

+++ 

0 

0 

+ 

++ 

+++ 

To 
the 
improve 
mutual  recognition  of 
and 
freezing 
confiscation  orders  in 
cross-border  cases  by 
extending the scope of 
recognition 
mutual 
instruments 
(specific 
objective 1) 

To  provide  simpler 
and  faster  procedures 
certificates 
and 
(specific objective 2) 

The baseline scenario and the non-regulatory option 2 would not lead 
to  any  extension  of  scope  of  mutual  recognition  and would  therefore 
not contribute to this objective.  

The regulatory Option 3 would ensure that confiscation in the case of 
illness  or  absconding,  as  foreseen  by  Article  4(2)  of  Directive 
2014/42/EU,  extended  confiscation  as  foreseen  by  Article  5  of  the 
directive, and third-party confiscation, as foreseen by Article 6 of the 
directive would be recognised in all Member States. It would however 
not cover other existing forms of confiscation, notably of NCBC. 

The regulatory Option 4 contributes to reaching this objective with the 
highest  efficiency,  sub-option  4a  however  more  limited  than  sub-
option 4b which ensures the widest scope.  

An estimation of the number of cases of mutual recognition under the 
different options is provided in Section 7.5 above. 

Option  3  and  option  4  would  be  equally  efficient  as  regards  the 
achievement  of  simpler  and  faster  procedures  and  certificates  for  the 
cases  they  cover,  as  they  would  include  similar  provisions.  They 
would  both  ensure  slightly  faster  procedures  for  freezing  and 
confiscation orders compared to the current instruments by introducing 
more  binding  requirements  concerning  timing.  Compared  to  MLA 
requests,  they  would  bring  a  significant  time  gain,  as  there  are  no 
binding requirements regarding timing for MLA procedures and they 
usually take very long. 

Efficiency  gains  are  greater  where  they  apply  to  a  bigger  number  of 
cases Because the three regulatory options have a different impact on 
the numbers of mutual recognition cases (cf. assessment of the specific 

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50 

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0 

0 

+ 

++ 

++ 

0 

0/+ 

+ 

++ 

+++ 

the 
enhance 
To 
protection  of  victims' 
rights  in  cross-border 
cases 
(specific 
objective 3) 

in 

and 
freeze 
To 
confiscate  more  assets 
deriving from criminal 
activities 
cross-
border  cases  in  order 
to prevent and combat 
including 
crime, 
and 
terrorism 
crime 
organised 
(general objective) 

objective  regarding  the  scope),  option  3  would  globally  be  less 
efficient than option 4, and sub-option 4b would be the most efficient 
option. 

Option  3  and  option  4  would  be  equally  efficient  as  regards  the 
achievement  of  enhanced  protection  of  victims  in  cross-border  cases 
for the cases they cover, as they would include similar provisions. 

Only few Member States currently provide for freezing or confiscation 
by  the  State  in  the  interest  of  the  victim,  as  described  in  section  4.4 
above,  and  they  are  countries  without  NCBC  currently.  As  a  result, 
there  will  only  be  a difference  between  the  options 3  and 4  resulting 
from  different  number  of  cases,  but  no  difference  between  option  4a 
and option 4b. However, it can be argued that as far as funds deriving 
from confiscation go back to victims funds, there could be an indirect 
effect which would be biggest for option 4b. 

Under the baseline scenario, no significant improvement compared to 
the current situation can be expected.  

Option  2  might  marginally  improve  the  situation  with  regard  to  the 
baseline  scenario.  However,  the  general  objective  would  not  be 
adequately achieved, specific problems would not be solved.  

Option 3 would increase to a certain extent the number of cross-border 
enforcement  procedures  and  thereby  also  lead  to  an  increase  of  the 
value of assets recovered. 

Option  4  and  notably  sub-option  4b)  would  be  the  most  efficient  to 
reach the general objective. A single instrument including all types of 
freezing and confiscation orders which currently exist in the Member 
States,  including  the  different  forms  of  NCBC,  would  considerably 
increase  the  number  of  cross-border  enforcement  procedures  in  the 
EU. This option would mean that considerably more criminal proceeds 
could  be  frozen  and  confiscated  in  a  cross-border  context  within  the 
EU.  This  will  allow  assets  of  criminals,  crime  organisations  and 
terrorist  groups  being  confiscated  not  only  in  purely  domestic  cases 

EN 

51 

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Administrative costs  

0 

- 

- 

-- 

--- 

Benefits 

0 

0 

+ 

++ 

+++ 

but also when they invest their illicit money in other Member States.  

The  fact  that  all  types  of  orders  would  be  covered  by  the  same 
instrument  would  also  enhance  its  use,  as  courts  and  judges  in  the 
Member  States  will  not  need  to  make  use  of  the  traditional  mutual 
legal assistance instruments. Hence the current double legal regime for 
recognition  and  enforcement  of  freezing  and  confiscation  orders 
within  the  European  Union  would  disappear  and  judicial  authorities 
would apply the new instrument. 

The  Baseline  scenario  and  the  non-regulatory  option  2  would  not 
entail  any  (or  only  limited)  administrative  costs  for  issuing  and 
executing authorities as the status quo would remain unchanged. The 
costs  of  non-regulatory  activities  such  as  training  and  evaluations 
would however have to be taken into account for Option 2. 

As  regards  options  3  and  4,  there  would  be  an  increase  of 
administrative  costs  for  both  issuing  authorities  and  executing 
authorities, stemming from an increase of cross-border procedures and 
enforcement of freezing and confiscation orders. The increase of such 
administrative costs would be higher for option 4 than for option 3 and 
highest for option 4b because it would result in the highest number of 
mutual recognition cases. 

These  administrative  costs  described  above  would  however  be  (more 
than)  offset  by  the  expected  increase  in  the  recovery  of  cross-border 
assets  as  shown  by  the  assumptions  developed  under  section  7.5. 
Concrete estimates are not available. Moreover, considerable benefits 
would  also  result  from  the  prevention  of  criminal  activities  and 
terrorist attacks given that criminals would be deprived from funds.  

The  recovery  of  cross-border  assets  and  potential  benefits  from  the 
prevention  of  criminal  and  terrorist  activities  would  be  considerably 
higher in option 4 than in option 3. 

Impact 

on  0 

0 

0 

- 

-- 

The  baseline  scenario  and  the  non-regulatory  option  2  would  not  (or 

EN 

52 

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fundamental rights

Impact  on  domestic 
justice systems 

0 

0 

0 

0 

- 

only marginally) impact fundamental rights. 

Option  3  would  be  the  least  intrusive  of  the  regulatory  options.  The 
alignment with directive 2014/42/EU which foresees already a number 
of safeguards should not raise particular issues.  

As regards sub-option 4a the impact on fundamental rights should be 
limited as overall the safeguards of criminal proceedings would apply. 
Moreover,  as  in  option  3,  the  alignment  with  directive  2014/42/EU 
should  not  raise  particular  issues  in  this  respect,  as  the  directive 
foresees in Article 8 explicitly a number of procedural safeguards. 

Sub-option  4b  would  have  a  very  significant  impact  on  fundamental 
rights. It would need to be accompanied by a strong set of procedural 
safeguards and an effective judicial review. How far these procedural 
safeguards  should  go  (include  also  criminal  law  safeguards150)  is 
subject to discussion.  

On  the  other  hand,  any  option  that  would  lead  to  a  prevention  or 
reduction  of  criminal  and  terrorist  activities  would  also  contribute  to 
protecting  fundamental  rights  of  potential  victims  of  such  criminal 
activities. 

The  baseline  scenario  and  the  non-regulatory  option  2  would  not  (or 
only marginally) have an impact on domestic legal systems.  

For  the  regulatory  options  3  and  4a)  directly  applicable  instrument 
would  only  need  to  be  applied  by  practitioners,  with  the  result  that 
foreign orders would have to be executed like domestic ones, without 
the  need  to  modify  their  internal  legal  system  and  their  way  of 
working.  

However, as regards sub-option 4b) the judicial authorities would need 
to enforce forms of confiscation that are not known in their domestic 

150 In the expert meeting of 17 November 2016 some Member States considered that all procedural safeguards applicable in criminal proceedings should apply also under sub-

option 4b). 

EN 

53 

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systems.  This  might  create  legal  issues  regarding  the  recognition  of 
such  orders  and  a  certain  hesitation  amongst  practitioners  to  execute 
such  confiscation  orders.  Moreover,  in  a  few  Member  States 
constitutional issues might come up151. 

151 EE, CZ 

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9. 

THE PREFERRED OPTION  

The above comparative assessment of the options and the conclusions of the expert meeting of 
17 November 2016 have led to the selection of Sub-option 4a as preferred option. 

Sub-option  4a  foresees  a  new  legal  instrument  with  an  extended  scope  covering  all  types  of 
freezing  and  confiscation  orders  issued  in  the  context  of  criminal  proceedings.  Thus,  it  will 
cover  criminal  conviction  based  confiscation,  extended  confiscation  and  criminal  non-
conviction based confiscation, thus going beyond the scope of Directive 2014/42/EU. 

Article 82(1) provides for a clear legal basis for instruments for mutual recognition in criminal 
matters. The new legal instrument could be adopted in the form of a regulation. Article 82(1) 
TFEU gives the EU legislator the choice: it does not limit the possible measures to directives 
but  also  allows  for  the  adoption  of  regulations.  A  regulation  would  be  directly  applicable, 
would  provide  greater  legal  certainty  and  would  avoid  the  transposition  problems  that  the 
Framework Decisions were subject to.  

This  option  would  sufficiently  ensure  fundamental  rights  of  the  persons  concerned  as  the 
procedural rights standards (notably the Procedural rights directives which have been adopted 
between  2010  and  2016  by  the  EU152)  are  to  be  ensured  within  the  framework  of  criminal 
proceedings.  

It will also create specific rules for the protection of victims' rights and ensure the restitution 
and compensation of victims in cross-border cases. 

Politically, it would be the option the most easily accepted by Member States as most of the 
Member  States  have  already  provisions  including  criminal  NCBC  in  place  or  are  currently 
reforming their respective national systems in that sense. Thus, the extension of the existing 
mutual  recognition  framework  in  a  cross-border  context  to  these  forms  of  freezing  and 
confiscation orders would be coherent and fit well with the national systems. The impact on 
the national systems would be limited, in particular taking into account that a Regulation could 
be directly applied by legal practitioners, with the result that foreign orders would have to be 
executed like domestic ones, without the need to modify their internal legal system and their 
way of working. During the expert meeting of 17 November 2016 representatives of Member 
States largely supported this option.  

This  option  would  complement  the  harmonisation  measures  put  into  place  by  Directive 
2014/42/EU by the creation of an efficient and adequate mutual recognition system. 

Moreover,  this  option  would  be  fully  consistent  and  compatible  with  highly  important  EU 
policy  strategies,  such  as  the  European  Agenda  for  Security  of  28  April  2015  and  the 
Commission's  Action  Plan  on  for  strengthening  the  fight  against  terrorism.  The  preferred 
option  would  considerably  strengthen  the  mutual  recognition  of  freezing  and  confiscation 
orders  and  as  a  result  contribute  to  deprive  criminal  and  terrorist  organisations  from  illegal 
gains and thereby cut off such organisations from financing.  

The  preferred  option  has  a  clear  EU  added  value.  Once  the  new  legal  instrument  will  be 
applied,  it  will  lead  to  an  enhanced  and  facilitated  exchange  and  execution  of  freezing  and 
confiscation  orders  in  cross-border  cases  within  the  European  Union.  It  will  contribute  to 

152 Directive 2010/64/EU on the right to interpretation and translation, Directive 2012/13/EU on the right to 
 information, Directive 2013/48/EU on the right of access to a lawyer, Directive (EU) 2016/343 on the 
 presumption of innocence, Directive (EU) 2016/800 on procedural safeguards for children and Directive (EU)  
2016/1919 on legal aid. All these directives apply to suspects and accused persons in criminal proceedings. 

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cross-border cooperation, have a positive impact on mutual trust between judicial authorities 
and strengthen the functioning of mutual recognition instruments in the EU. 

10. 

MONITORING AND EVALUATION 

Five years after the adoption of the legislative instrument to strengthen the mutual recognition 
of  freezing  and  confiscation  orders  the  Commission  will  conduct  an  evaluation  of  the 
effectiveness of the measures that Member States have taken to achieve the objectives set out 
in section 5 above. On the basis of this evaluation, the Commission will decide the appropriate 
follow-up. 

Expert  meetings  will  also  take  place  to  discuss  problems  arising  in  the  context  of  the 
recognition  and  execution  of  freezing  and  confiscation  orders  in  cross-border  cases.  The 
exchange of best practices in all the phases of the confiscation process will continue to take 
place within the EU Asset Recovery Offices Platform. 

This  impact  assessment  has  repeatedly  highlighted  the  lack  of  statistical  data  on  asset 
confiscation and the poor quality of available data. As a result of these data gaps, it is currently 
not  possible  to  carry  out  a  proper  evidence-based  assessment  of  the  impact  of  new 
policies/legislation at EU level or at Member State level in most countries.  

For  this  reason,  the  options  set  out  above  should  include  the  introduction  of  reporting 
obligations on the Member States in relation to cross-border asset confiscation work. Data will 
be collected by judicial authorities (courts, prosecution offices) asset management offices and 
other authorites in charge of asset disposal, at least on an annual basis153. The data so collected 
will feed into monitoring and evaluation activities and will allow the Commission to assess to 
what extent the proposed legislation achieves its objectives.  

In  order  evaluate  the  effectiveness  of  the  legislative  instrument  to  strengthen  the  mutual 
recognition of freezing and confiscation orders, the following indicators should be used: 

•  The number of freezing and confiscation orders issued in one Member State and sent to 

another Member State for recognition and execution; 

•  The number of freezing and confiscation orders received from another Member State; 
•  The type of freezing and confiscation orders issued in one Member State and sent to 
another  Member  State  for  recognition  and  execution  (e.g.  Conviction  based,  Non-
conviction based, extended confiscation); 

•  The number of freezing and confiscation orders received from another Member State 

which were refused; 

•  The number of confiscation cases where victims were compensated; 
•  Value of the assets frozen and confiscated in cross-border cases; 
•  The average duration of the execution of a freezing and confiscation orders in cross-

border cases. 

A  new  legal  instrument  on  the  strengthening  of  mutual  recognition  of  freezing  and 
confiscation orders is part of the EU Action Plan for strengthening the fight against terrorist 
financing  (see  above  section  2.1). The  data  collected  in  the  context  of  this  initiative  and  the 
evaluation of this legislative instrument will also be essential to evaluate the efficiency of the 
Action plan as a whole. 

153 It is not yet clear whether an authority (such as the Ministry of Justice) will act as centralised national contact  
point for the data collection, nor whether the reporting requirement will also include a requirement to make the 
 data publicly available. 

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Annex 1  Procedural Information 

Lead DG: Directorate General Justice and Consumers 

Agenda Planning 

Reference AP N° 

2016/JUST/024 

Short title 

Foreseen Adoption 

recognition 

Mutual 
of 
freezing  and  confiscation 
orders 

21/12/2016 

The European Agenda for Security of 28 April 2015 attaches strategic importance to the need 
for improving the mutual recognition of freezing and confiscation orders154. 

In its Communication of 2 February 2016 to the European Parliament and the Council on an 
"Action  Plan  for  strengthening  the  fight  against  terrorist  financing"155,  the  Commission 
committed  to  strengthening  the  mutual  recognition  of  criminal  assets'  freezing  and 
confiscation orders by the end of 2016.  

Organisation and timing 

An Inter-Service Steering Group (ISSG) was set up in May 2016. The ISSG is chaired by the 
Directorate  General  Justice  and  Consumers  (JUST)  and  the  following  Services  and 
Directorates General have been invited to participate: Secretariat-General (SG), Legal Service 
(LS),  Migration  and  Home  Affairs  (HOME),  Economic  and  Financial  Affairs  (ECFIN), 
Financial Stability, Financial Services and Capital markets Union (FISMA), Internal Market, 
Industry,  Entrepreneurship  and  SME's  (GROW),  Taxation  and  Customs  Union  (TAXUD), 
European External Action Service (EEAS), European Anti-Fraud Office (OLAF). 

The  Inception  Impact  Assessment  was  validated  by  the  First  Vice  Presidents  Cabinet  on  6 
October 2016 and published on 7 November 2016156. 

The ISSG met three times before the submission of the Impact Assessment to the Regulatory 
Scrutiny Board in October 2016: 24 May, 29 July and 24 October 2016. The ISSG approved 
the Impact Assessment in principle on 24 October 2016. The ISSG did not meet separately to 
discuss the final version based on comments expressed from the different services during the 
meeting and the annexes of this Impact Assessment which were still added afterwards. Due to 
time constraints, ISSG members were instead consulted in a written procedure. 

Consultation of the Regulatory Scrutiny Board 

This  Impact  Assessment  Report  was  examined  by  the  Regulatory  Scrutiny  Board  on  23 
November 2016. The Board gave an overall positive opinion provided the impact assessment 
report is adjusted with regard to the following key aspects: 

154 COM (2015)185 final, Chapter 3.2. See also the Communication on Delivering on the European Agenda on  
Security to fight against terrorism and pave the way towards an effective and genuine Security Union  
(COM(2016) 230 final, p. 13). 
155 COM (2016)50 final, Chapter 1.3 
156 http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_just_024_mutual_recognition_en.pdf 

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The Board's Recommendations 

It  should 

1.  The  report  should  include  additional 
elements on the context of this initiative, the 
problems  that  it  aims  to  address  and  their 
urgency. 
in  particular  better 
describe  the  shift  in  opinion  since  2014  and 
the  political  imperative to  act  now.  It  should 
also  develop  the  relative  importance  of  the 
different elements of the problem and clarify 
whether  they  are  due  to  shortcomings  of  the 
current  legal  framework  or  to  a  lack  of 
application. 

Implementation  of  the  recommendations 
into the revised IA Report 

1.  The  report  was  amended  to  better  explain 
the  political  context  of  this  initiative  and  the 
to  act  now.  More 
political 
systematic  references 
to  relevant  policy 
strategies were introduced (sections 2.1, 3.6., 
5). 

imperative 

The  structure  of  the  problem  section  4  was 
revised  in  order  to  clarify  the  importance  of 
the different problems set out and to illustrate 
better  that  the  shortcomings  of  the  current 
legal  framework  are  mostly  due 
its 
limitations. A table listing the specific issues 
under  the  general  problem  1  was  added  in 
order  to  illustrate  where  each  individual 
problem 
of 
problems,  objectives  and  options  were 
adapted accordingly.  

resides.  The 

comparison 

to 

2.  The  issue  of  victims'  compensation  needs 
the  overall 
integrated 
to  be  better 
intervention logic. 

in 

2.  The  problem  section,  objectives  and 
to  ensure  more 
options  were  clarified 
coherence in the intervention logic. The issue 
of  victims''  compensation  was  reconsidered 
and  presented  as  a  separate  general  problem 
(section  4.4)  and  its  interplay  with  other 
problems was better explained.  

3. The presentation of options needs to depict a 
more realistic baseline scenario fully reflecting 
the upwards trend in the use of confiscation and 
freezing  orders,  including  cross-border  cases. 
The  report  should  also  provide  additional 
clarifications  on  the  content  of  the  other 
options. 

3.  The  report  explains  more  clearly  the 
reflects  more 
baseline 
realistically  the  current  trends  in  the  use  of 
confiscation and freezing orders (section 4.6). 

scenario 

and 

The  report  clarifies  how  the  various  options 
differ  from  each  other  (e.g.  scope)  or 
overlap/include  each  other  (e.g.  streamlining 
of 
of 
certificates).  Possible  strengthen  victims' 
rights  have  been  set  out  in  more  detail. 
Discarded options were added and explained. 

simplification 

procedures 

and 

4.  The  description  of  impacts  should  better 
specify  the  expected  practical  implications, 
burdens  and  benefits  for  Member  States  of 
implementing 
initiative,  and 
the  proposed 
should  consider  the  technical  and  political 
feasibility of the different options. 

The  report  has  been  amended  to  specify 
better  the  impacts  of  the  various  options  on 
Member  States.  In  particular  option  4  has 
been  extended  and  sub-options  4a  and  4b 
have  been  better  distinguished.  The  political 
feasibility  and  the  impact  on  the  domestic 
legal  systems  of  Member  States  has  been 
revised taking into account the discussions of 
the  expert  meeting  of  17  November  2016.  A 
differentiation  between  groups  of  Member 

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5.  The  outcomes  of  the  meeting  with  Member 
States experts on 17 November 2016 as well as 
the  different  stakeholders'  views  should  be 
integrated  throughout  the  report  in  order  to 
enrich the problem definition, the calibration of 
the different options and their likely impacts. 

States,  based  mainly  on  their  legal  systems, 
was  introduced.  Cost  calculations  have  been 
updated.  

throughout 

5.  The  discussions  and  conclusions  of  the 
expert  meeting  of  17  November  2016  were 
systematically 
the 
integrated 
report,  notably  in  the  sections  related  to  the 
recent trends (3.6), problem definition (4.3.1), 
Stakeholders views (6.3), Analysis of impacts 
of the policy options (7.4). Stakeholder views 
in  general  were  integrated  throughout  the 
report. 

6.  In  the  absence  of  an  evaluation,  the  report 
should  clarify 
the 
the  extent 
the  17  November  experts 
conclusions  of 
meeting and the wider political feasibility of the 
various  options  determine  the  eventual  choice 
of a preferred option. 

to  which 

6.  The  report  was  amended  and  a  preferred 
option  was  added  (section  9)  which  is  based 
on the comparative assessment of the options, 
their  impacts,  the  conclusions  of  the  expert 
meeting  of  17  November  2016  and  the 
political feasibility of the various options.  

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Annex 2  Stakeholders Consultation 

Brief Summary of the consultation strategy/process 

Due  to  the  political  urgencies  and  against  the  background  that  confiscation  is  a  specialised 
and technical topic which is dealt with by a rather limited number of experts working in this 
area, (namely prosecutors, judges, lawyers, officials working in national Ministries of Justice 
or  Interior  or  Asset  Recovery  Agencies),  it  was  considered  that  there  was  no  need  to 
undertake an open public consultation. The proposed initiative is presented in respose to the 
requests from the European Parliament and the Council from 2014 to strengthen the mutual 
recognition  of  freezing  and  confiscation  orders,  the  European  Agenda  for  Security  of  2015 
and the Ferrara Report of october 2016.  

Due  to  time  constraints  the  consultation  strategy  was  based  on  a  targeted  consultation 
(bilateral  contacts,  stakeholder-  and  experts  meetings  and  written  consultations),  to 
complement the existing sources of information and provide additional data and facts and to 
provide the Commission with knowledgeable and representative options.  

It should be noted that already in the context of the Impact Assessment for a proposal for a 
directive on the freezing and confiscation of proceeds of crime in the EU, prepared in 2012157, 
wide consultations and discussions with experts had taken place.  

Since then, under the Italian Presidency in September 2014, the Commission jointly organised 
a  “Conference  on  mutual  recognition  of  judicial  decisions  and  confiscation”  in  Syracuse, 
during which it engaged with Member States. The first session assessed the status of Mutual 
Recognition  of  Judicial  Decisions  in  Criminal  Matters.  Over  100  practitioners  from  28 
Member States attended.  

In December 2014, also under the Italian Presidency, a meeting of the Consultative Forum of 
Prosecutors  General  and  Directors  of  Public  Prosecutions  took  place  in  The  Hague  at 
Eurojust.  Senior  lawyers  from  14  Member  States  provided  their  assessments  of  how  the 
existing  instruments  (EU  and  Council  of  Europe)  were  functioning,  the  likely  impact  of 
Directive 2014/42 on confiscation and whether further legislative or non-legislative measures 
were necessary.  

In  addition,  in  the  context  of  the  current  impact  assessment  process,  the  Commission  has 
sought a wide and balanced range of views on this issue by giving the opportunity to a large 
range  of  relevant  parties  (Ministries  of  Justice  and  Interior  of  Member  States,  national  law 
enforcement authorities, procecutors, judges and other criminal justice practitioners involved 
in  the  making  and  execution  of  freezing  and  confiscation  orders,  defence  lawyers  and  bar 
associations, criminal law experts, national Asset Recovery Agencies and CARIN and ARO 
networks,  EU  institutions  and  bodies  –  Eurojust,  EJN  criminal,  Europol,  civil  society  and 
academia). 

The  consultation  aimed  at  gathering  targeted  information  with  regard  to  the  problem 
definition, possible options to tackle the problems and the impact of different policy options. 

The  Commission  organised  the  following  consultations  throughout  the  impact  assessment 
process: 

1. Member States and national authorities 

157  SWD (2012)31 final, see Chapter 2.1.3. 

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a) On 20 June 2016 the NL Presidency organised together with the Commission a conference 
in  Brussels  on  the  "Strengthening  of  Mutual  Recognition  of  confiscation  and  freezing 
orders".158 About 100 experts and stakeholders from all Member States (including  Ministries, 
judges,  prosecutors  and  law  law  enforcement  authorities,  lawyers  and  bar  associations, 
academia etc) participated and exchanged their views on possibilities to enhance the mutual 
recognition  of  freezing  and  confiscation,  notably  including  extended  and  non-conviction 
based confiscation, while ensuring appropriate procedural safeguards.  

A  discussion  paper  with  targeted  questions  had  been  prepared  for  the  purpose  of  this 
conference,  and  participants  (as  well  as,  potentially  other  stakeholders)  were  given  the 
opportunity to submit written comments.  

It  emerged  clearly  from  the  discussions  that  a  new  instrument  to  strengthen  mutual 
recognition of freezing and confiscation orders was needed. All modern forms of confiscation 
(notably  non-conviction  based  confiscation)  should  be  covered,  otherwise  some  Member 
States would continue to face difficulties when trying to have their orders executed in cross-
border cases. Effective remedies for third parties should be foreseen and the compensation of 
victims' was considered as an important aspect to be tackled. 

b) Expert meeting with Member States representatives: 

-Expert meeting on non-conviction based confiscation organised by DG HOME on 16 
September 2016; 

-  Meeting  of  the  ARO  Platform  Subgroup  on  asset  management  organised  by  DG 
HOME on 22 September 2016; 

- Joint expert meeting organised by DG JUST and DG HOME on 17 November 2016. 

The  expert  meeting  of  17  November  2016  was  dedicated  to  discuss  NCBC  in  the  EU. 
Whereas the morning session focused on the feasibility analysis for further harmonisation of 
NCBC,  the  afternoon  session  focused  on  mutual  recognition  of  freezing  and  confiscation 
orders  between  Member  States.  Firstly,  Member  States  reported  about  their  experience  in 
cross-border  cases.  It  was  generally  underlined  that  the  existing  framework  decisions  were 
rarely  used  in  practice  and  that  the  lack  of  an  appropriate  legal  framework  for  mutual 
recognition caused considerable problems to cross-border cooperation.  

Secondly, Member States expressed their views on possible options to strengthen the mutual 
recognition in this area.  

- All  Member  States which took  the floor could  support  option  3  (alignment  with  Directive 
2014/42/EU) but a more ambitious approach was generally considered as more appropriate. 

-  Sub-option  4a  seemed  to  be  the  most  feasible  option  for  all  Member  States  that  took  the 
floor.  

-  As  regards  sub-option  4b)  the  picture  was  more  scattered:  whereas  some  Member  States 
(having  already  civil  and  administrative  proceedings)  were  clearly  in  favour  of  this  option, 
other Member States clearly opposed this option as too far-reaching. Several Member States 
expressed the option that they could possibly support this option but only under the condition 
of strong procedural safeguards to be applied. 

2. Targeted Stakeholder Consultation 

158 Cf. http://ec.europa.eu/justice/newsroom/criminal/events/160620_en.htm 

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On  29  June  2016  a  meeting  with  Senior  Eurojust  members  and  experts  took  place  in  the 
Hague. The meeting focussed on current difficulties encountered in cross-border cases dealing 
with  asset  recovery  and  possible  ways  forward  to  enhance  the  mutual  recognition  of  more 
modern forms of asset recovery, notably extended and non-conviction based confiscation.  

In  addition,  three  meetings  of  individual  experts  (a  representative  from  the  French 
AGRASC159,  a  Judge  from  a  UK  Crown  Court,  a  German  Public  Prosecutor  and  an  Italian 
representative  from  the  University  of  Catania)  have  taken  place  in  Brussels  on  7  January 
2015, 30 March 2015 and 14 March 2016 to discuss specific issues related to asset recovery 
among EU Member States.  

Members of the Commission Expert Group on EU Criminal Policy (composed of academics 
and  practitioners  such  as  prosecutors,  judges  and  defence  lawyers)  were  also  consulted  on 
selected  issues.  All  experts  underlined  the  effectiveness  of  confiscation  in  the  fight  against 
organised  crime.  However,  national  systems  differ  widely  and  certain  forms  of  confiscation 
which  do  not  exist  in  other  Member  States  (such  as  non  conviction  based  confiscation)  are 
more  difficult  to  execute  in  cross-border  cases,  notably  because  of  fundamental  rights 
concerns.  

The views by the different stakeholders which were consulted are reflected under Sections 6 
Policy options – Stakeholders views on the problem and the options.  

159  Agence de gestion et de recouvrement des avoirs saisis et confisqués, FR. 

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Annex 3  Who is affected by the initiative and how? 

The  initiative  will  improve  the  functioning  of  a  common  area  of  security  and  justice  by 
improving  the  mutual  recognition  of  freezing  and  confiscation  orders  within  the  European 
Union. 

- Practical Implications of the initiative for businesses 

The initiative does not contain regulatory obligations for businesses and thus, does not create 
additional costs related thereto.  

However, seizing of criminal assets makes it more difficult for criminal businesses to operate. 
Thus, on a long term basis, this initiative should help legitimate business which is adversely 
affected by competition of illegal actors (e.g. loan-sharing, racketeering). 

- Practical Implications of the initiative for public administrations, courts and citizens 

With  this  initiative  Member  States  will  be  able  to  bypass  the  traditional  Mutual  Legal 
Assistance  route,  which  can  be  slow  and  cumbersome,  and  which  comes  with  considerable 
legal uncertainty. The initiative is likely to reduce the administrative burdens for judges and 
prosecutors  through  the  simplification  of  the  certificates  they  have  to  fill  in  for  the  mutual 
recognition  request.  The  initiative  will  take  advantage  of  the  modern  tools  available  in  the 
context  of  the  e-Justice  Portal  and  limit  as  far  as  possible  the  need  for  non-automatic 
translation.  This  will  save  both  money  and  time.  Being  able  to  generate  a  request  for  the 
mutual  recognition  of  an  order  within  a  very  short  time  also  means  that  assets  can  be 
dissipated less easily, with the income-generating potential of the measure being examined. 

Recovering more criminal assets in favour of the State will have very positive implications as 
it  will  provide  more  funding  for  public  authorities  which  can  be  used  for  the  provision  of 
public services (e.g. police, military services etc). 

At the same time, if organised criminals, criminal organisations or terrorist organisations are 
deprived  of  assets  which  would  otherwise  go  towards  funding  or  facilitating  criminal  and 
terrorist activities, the benefits for public safety and security are significant.  

Additionally, it is intended that the initiative will include provision for the mutual recognition 
of confiscation orders made for the benefit of victims. This would have an immediate impact 
on the restitution of property or provision of compensation to individual victims of crime. The 
initiative  will  also  have  a  positive  impact  on  the  financial  and  psychological  situation  of 
victims  of  crime  on  a  broader  level  because  –  in  some  Member  States  at  least  –  victims' 
organisations will receive parts of the recovered criminal assets.  
Finally,  in  some  Member  States160  recovered  assets  are  used  for  social  purposes.  Schools, 
kindergartens,  day  care  centres  for  disabled  people,  cultural  centres,  meeting  places,  youth 
centres, restaurants, tourist centres and service desks, and social housing have been placed in 
confiscated  properties  which  were  once  centres  of  wickedness  and  symbols  of  their 
supposedly unbreakable criminal power161.  

- Practical Implications of the initiative for consumers 

The initiative will not create any obligations for consumers. 

160 For example Italy 
161 

https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2014-September-11-

12/Combined_CacCosp-Wg2-2014-CRP3.pdf 

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Annex 4  The International legal framework 

Since  the  1990's  the  confiscation  of  illicit  money  has  become  a  political  priority  at 
international  level.  The  international  acquis  has  been  growing  steadily.  The  most  important 
international conventions and agreements are the following: 

(a) 

(b) 

(c) 

(d) 

(e) 

The  1990  Council  of  Europe  Convention  on  laundering,  search, 
seizure and confiscation of the proceeds of crime162; 
The 2000 UN Convention against Transnational organised Crime163; 

The  2003  UN  Convention  against  Corruption  (Articles  52-59)  which 
has been ratified by the EU164; 

The  2005  Council  of  Europe  Convention  on  laundering,  search, 
seizure and confiscation of the proceeds of crime and on the financing 
of  terrorism,  so-called  "Warsaw  Convention"  (to  date  ratified  by  17 
EU Member States and the EU)165; 

The Financial Action Task Force (FATF) Recommendations/standards 
on  combating  money  laundering  and  the  financing  of  terrorism  and 
proliferation  (including  confiscation  and  asset  recovery)  adopted  on 
16 Feburary 2012, and complemented in February 2013, October 2015 
and June 2016166.  

The international conventions are important tools in the fight against organised crime and the 
efforts to enhance asset recovery. They provide alternative, more traditional means of judicial 
cooperation  compared  to  mutual  recognition.  However,  not  all  of  them  are  binding  and 
several have not been ratified by a considerable number of EU Member States. The most used 
in the EU are the 1990 and 2005 Council of Europe Conventions. 

162 http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/141 
163 http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf 
164 https://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf 
165 http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/198 
166 http://www.fatf-gafi.org/publications/fatfrecommendations/documents/fatf-recommendations.html 

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Annex 5  Non-conviction based confiscation systems in the EU 

BULGARIA 

The Confiscation in Favour of the State of Illegally Acquired Assets Act (2012) governs asset 
confiscation that does not require a final verdict of guilt against a criminal defendant and is 
based only on civil court judgment167.  

The Commission for Illegal Asset Forfeiture (CIAF) is the permanent independent specialised 
public authority in charge of the administrative proceedings to trace and identify illegal assets.  

For a court to order the confiscation of assets, it is necessary that a probe by the Commission's 
inspectors ascertains a significant disparity between suspects' identified assets and her or his 
lawfully  acquired  net  income.  In  value  terms,  the  mismatch  needs  to  exceed  BGN  250,000 
(EUR  125,000)  over  the entire period being probed.  There is no requirement that  the  assets 
should be proceeds or instruments of crime. The lack of evidence that the assets derive from 
legal source would suffice. The procedure to confiscate assets does not depend on a criminal 
conviction.  For  this  civil  confiscation  procedure  to  be  initiated,  it  suffices  that  criminal 
proceedings  are  launched  against  a  person  who  is  accused  of  having  committed  any  of  the 
crimes set out exhaustively in the Forfeiture Act.   

Civil confiscation targets any illicit proceeds and other ill-gotten property, regardless of where 
they are physically located (i.e. including assets located abroad) or in whose possession they 
may  be,  and  also  regardless  of  whether  they  have  been  transferred  to  or  inherited  by  other 
persons, including legal persons.  

With respect to time, are subject to confiscation any illegal assets acquired or transferred over 
the  time  period  of  10  years  immediately  preceding  the  date  when  the  probe  by  the  CIAF 
commenced. 

In keeping with the general rules of procedure provided for in the Code of Civil Procedure, 
confiscation proceedings are public and adversarial. Any party aggrieved may appeal from the 
judgment to an appellate court and subsequently to the Supreme Court of Cassation. 

IRELAND 

In  1996,  the  Proceeds  of  Crime  Act  (POCA)  introduced  a  civil  measure  targeting  illegal 
proceeds  of  crime.  It  was  created  as  a  non-conviction  based  system  for  confiscation  to  be 
operated outside the conventional criminal justice system and acting in rem168. The POCA can 
be  applied  to  proceeds  of  crime  committed  both  by  an  entity  and  an  individual  and  targets 
both direct or indirect assets that have been identified as proceeds of criminal activities. The 
standard  of  proof  applied  for  confiscation  is  the  civil  one  (the  “balance  of  probabilities” 
standard)  and  it  is  up  to  the  State  to  prove  that  the  property  constitutes  the  proceeds  of  a 
criminal activity. The act can target money and all other properties (movable or not), inside or 
outside the State, that have a value not less than EURO 13,000. The Criminal Assets Bureau 
(CAB), established in 1996, is the independent agency in charge of targeting and confiscating 
the assets obtained from the commission of criminal activities.  

ITALY 

167  Comparative  Report  of  Transparency  International,  Legislation  Meets  Practice:  National  and  European 

Perspectives in Confiscation and Forfeiture of Assets, 2015, pp.13-19. 

168  Report  of  Organised  Crime  Portfolio,  From  Illegal  Markets  to  legitimate  businesses:  the  portfolio  of 

organised crime in Europe, 2015, pp. 233-234. 

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Non-conviction based confiscation in Italy, known as preventative confiscation, is regulated 
since  2011  by  the  Legislative  Decree  159  ("Anti-Mafia  Code",  AMC)169,  as  wholly 
independent  from  a  criminal  conviction.  It  formally  remains  outside  of  the  criminal  justice 
system  and  belongs  to  administrative  (punitive)  law  where  substantial  and  procedural  rules 
are looser170.  

Preventative confiscation may only be imposed against the possible targets identified by the 
law  (an  extensive  list  of  individuals  is  included  in  the  AMC,  for  example:  suspects  of 
belonging to mafia associations, suspects of terrorism, etc.) only when certain conditions are 
met:  1)  property  whose  provenance  cannot  be  justified  and  2)  it  must  be  a)  either 
disproportionate with regard to the declared income or the activity carried out or b) of illicit 
origin or the result of reinvestment of the proceeds of crime.  

It is possible to impose a confiscation of property formally owned by a person different (third 
party) from the targeted individual. Third parties are invited to participate in the hearing with 
a lawyer of their own choice. They are required to prove that they legitimately acquired the 
property  without  being  aware  of  its  illicit  origin.  In  addition,  if  the  targeted  individual 
conceals or sells the asset, the tribunal can seize and confiscate other properties of the person 
for an equivalent value.  

AMC  foresees  the  possibility  of  instituting  or  continuing  proceedings  for  the  imposition  of 
confiscation when the individual is absent or lives abroad, but only with regard to the property 
for  which  there  is  reason  to  believe  that  it  is  the  proceeds  of  illicit  activities  or  their 
reinvestment.  As  regards  deceased  persons,  once  the  requests  for  seizure/confiscation  have 
been filed, the prevention proceedings carry on, even in the case of the death of the target. In 
such  a  case  the  proceedings  continue  against  the  heirs  and  successors  in  title.  It  is  also 
possible  to  request  and  impose  a  measure  against  a  deceased  person  (against  universal  or 
particular  heirs)  but  only  within  five  years  after  the  deceased  person's  death.  The  five  year 
time limit is grounded in the need to assure some degree of certainty for economic operators. 

UNITED KINGDOM (England and Wales)  

The Proceeds of Crime Act (POCA) 2002 introduced "civil recovery" (confiscation in rem), 
with retrospective effect171. Given its civil nature (Supreme Court Gal v. Serious Organised 
Crime Agency, 2011) the Prosecutor does not have to show that anyone has been convicted of 
any  criminal  offence  (not  even  that  the  person  from  whom  the  asset  is  being  taken  is  the 
perpetrator  of  an  offence).  The  prosecution  does  not  have  to  identify  a  specific  offence  by 
which the money or asset was obtained; it suffices if it specifies the kind or kinds of unlawful 
conduct involved. The burden of proof remains with the State which must satisfy the court of 
its  case  on  the  balance  of  probabilities  (civil  standard  of  proof).  Proceedings  are  brought 
before the High Court (a civil court) against the person who is thought to hold the property in 
question.  The  fact  that  a  respondent  could  be  charged  with  a  criminal  offence  or  has 
previously  been  acquitted  of  a  criminal  offence  is  not  generally  a  bar  to  civil  recovery 
proceedings in relation to the same subject matter. Indeed, civil recovery is not intended as a 
substitute for post-conviction confiscation; rather it is designed to enable the State to remove 

169 The Anti-Mafia Code entered into force to replace all the previous statutory instruments. It did not bring  
about major innovations, but rather reorganized previous existing provisions to ensure consistency. 
170 Panzavolta, M., Flor, R. (2015), A Necessary Evil? The Italian "Non-Criminal System" of Assets Forfeiture. 
 In J. Peeter Rui, U. Sieber (eds.), Non-Conviction Based Confiscation in Europe, pp. 111-150, Berlin, Max 
-Planck-Institut   
171 Smith, I. (2015), Civil Asset Recovery – The English Experience. In J. Peeter Rui, U. Sieber (eds.), Non- 
Conviction Based Confiscation in Europe, pp. 31-68, Berlin, Max-Planck-Institut. 

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from  circulation  the  proceeds  of  crime.  The  practice  is  that  such  recovery  is  not  pursued 
below a threshold of £10,000.   

Civil  recovery  targets  "recoverable  property",  described  as  property  obtained  through 
unlawful conduct (including unlawful conduct abroad) or property representing the proceeds 
of crime (direct proceeds converted to another asset). "Recoverable property" which is made 
the  subject  of  a  "civil  recovery"  order  becomes  the  property  of  the  State  rather  than  of  any 
victim. However, a person who has been deprived of property belonging to him by means of 
unlawful  conduct  may  apply  to  the  court.  Property  will  also  cease  to  be  recoverable  if  it  is 
disposed  of  and  the  person  who  obtains  the  property  does  so  in  good  faith,  for  value,  and 
without noticing that it was recoverable  property.  It is notable that  the protection offered to 
innocent owners is dependent upon their ownership of the asset in question. There is no right 
for  victims  who  have  'in  personam'  claims  to  recover  any  part  of  the  property  made  the 
subject of a recovery order. 

Several Agencies are involved, amongst others the National Crime Agency, the Serious Fraud 
Office, the Crown Prosecution Service. 

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Annex 6  Confiscation and fundamental rights 

"In  all  jurisdictions  there  is  a  potential  conflict  between  asset  confiscation  processes  and 
human rights which makes all such cases challenging to adjudicate"172. 

The main fundamental rights and principles which are at stake are the following: 

- Right to property; 

-  Procedural  rights,  including  in  particular  the  right  to  a  fair  trial,  the  right  to  an  effective 
remedy, and the presumption of innocence; 

- Access to justice, notably for victims. 

1. Right to property and the principle of proportionality  

Article  17  of  the  Charter  of  Fundamental  Rights  of  the  European  Union  ("the  Charter") 
guarantees  the  right  to  property173.  The  corresponding  provision  is  Article  1  of  the  first 
Protocol to the European Convention of Human Rights ("ECHR")174. 

The right to property is relevant in the context of freezing and  confiscation orders as in  the 
former the control over the property is altered and in the latter the ownership of the property is 
transferred.  

The  right  to  property  is  not  an  absolute  right,  it  is  subject  to  interference.  According  to  the 
established  case-law  of  the  European  Court  of  Human  Rights  ("ECtHR")175,  an  interference 
with property rights must be prescribed by law (legality) and pursue one or more legitimate 
aims.  In  addition,  there  must  be  a  reasonable  relationship  of  proportionality  between  the 
means employed and the aims sought to be realised. A balance has to be struck between the 
demands of general interest and the interest of the individual concerned. 

In  the  case  Phillips  v.  UK176,  the  ECtHR  held  that  the  confiscation  action  was  not 
disproportionate  given  the  importance  of  the  aim  to  be  pursued,  which  was  in  this  case  the 
fight  against  drug  trafficking.  The  Court  took  good  note  of  the  fact  that  "the  making  of  a 
confiscation order operates in the way of a deterrent to those considering engaging in drug 
trafficking,  and  also  to  deprive  a  person  of  profits  received  from  drug  trafficking,  and  to 
remove the value of the proceedings from possible future use in the drugs trade". In addition, 
and  although  it  acknowledged  that  the  sum  payable  under  the  confiscation  order  was 

172  Matrix  Insight,  Assessing  the  effectiveness  of  EU  Member  States’  practices  in  the  identification,  tracing, 

freezing and confiscation of criminal assets, Final Report June 2009, p. 13.  

173 "1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No 
one may be deprived of his or her possessions, except in the public interest and in the cases and under 
the conditions provided for by law, subject to fair compensation being paid in good time for their loss. 
The use of property may be regulated by law in so far as is necessary for the general interest." 
174  "1.  Every  natural  or  legal  person  is  entitled  to  the  peaceful  enjoyment  of  his  possessions.  No  one  shall  be 
deprived of his possessions except in the public interest and subject to the conditions provided for by 
law and by the general principles of international law. 

2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it 
deems necessary to control the use of property in accordance with the general interest or to secure the 
payment of taxes or other contributions or penalties". 

175 See, for example, ECtHR, Agosi v. UK, N°9118/80; Raimondo v. Italy, N°12954/87.  
176 ECtHR, Phillips v. UK, N°41087/98. 

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considerable,  namely  GBP  91,400,  the  Court  considered  that  it  corresponded  to  the  amount 
which  the  Crown  Court  judge  found  the  applicant  to  have  benefited  from  through  drug 
trafficking  over  the  preceding  six  years  and  that  it  was  a  sum  which  he  was  able  to  realise 
from  the  assets  in  his  possession.  The  Court    also  found  that  the  procedure  followed  in  the 
making of the order was fair and respected the rights of the defence. 
In the case Butler v. UK177, the ECtHR allowed the State even greater latitude when ordering 
a  preventive  confiscation.  The  ECtHR  considered  that  the  problems  faced  by  States 
combating the problem of drug trafficking justified the wide margin of appreciation accorded 
to them in this area and was satisfied that the applicant had been given a fair hearing in his 
appeal challenging the confiscation order. The ECtHR concluded that as drug trafficking is of 
serious  concern  in  Member  States,  its  policy  must  be  capable  of  balancing  the  rights  of  the 
individual  with  the  general  interest  of  the  community.  The  actions  were  subject  to  judicial 
scrutiny and the courts weighed  the evidence before ordering seizure. The interference with 
his property rights was not, therefore, disproportionate. 

2.  Procedural  rights,  including  in  particular  the  right  to  a  fair  trial,  the  right  to  an 
effective remedy and the presumption of innocence  

The  nature  of  confiscation  measures  is  a  central  aspect  when  assessing  their  impact  on 
procedural rights, such as the right to a fair trial, the right to an effective judicial remedy, and 
the  principle  of  presumption  of  innocence.  All  these  rights  apply  to  confiscation  measures 
which are of criminal nature178. 

The right to a fair trial, the right to an effective remedy and the presumption of innocence are 
enshrined in Articles 47 and 48 of the Charter179 as well as in Articles 6 and 13 of the ECHR. 

Inasmuch as confiscation orders interfere with the right to property, affected parties must be 
able to challenge such orders under the conditions set by these articles. 

In  this  context  due  account  has  also  to  be  taken  of  the  European  Union  directives  on 
procedural rights180 and notably Directive 2012/13/EU on the right to information in criminal 
proceedings181  and  the  recently  adopted  Directive  (EU)  2016/343  on  the  strengthening  of 
certain aspects of the presumption of innocence and of the right to be present  at the trial in 

177 ECtHR, Butler v. UK, N°41661/98. 
178 See European Agency for Fundamental Rights, FRA Opinion 03/2012, Confiscation of proceeds of crime,  
p.7. 
179 Article 47 - Right to an effective remedy and to a fair trial : "Everyone whose rights and freedoms guaranteed  
by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the  
conditions laid down in this Article. 
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial  
tribunal previously established by law. Everyone shall have the possibility of being advised, defended and  
represented. 
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to  
ensure effective access to justice." 
Article 48 - Presumption of innocence and right of defence: "1.   Everyone who has been charged shall be  
presumed innocent until proved guilty according to law.   
2.   Respect for the rights of the defence of anyone who has been charged shall be guaranteed." 
180 Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, Directive  
2012/13/EU on the right to information in criminal proceedings, Directive 2013/48/EU on the right of access to a 
 lawyer in criminal proceedings, Directive (EU) 2016/343 on the presumption of innocence, Directive (EU)  
2016/800 on procedural safeguards for children in criminal proceedings, Directive (EU) 2016/1919 on legal aid  
in criminal proceedings. 
181 OJ L 142/1 of 1.6.2012. 

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criminal  proceedings182.  These  directives  provide  for  common  minimum  standards  of 
procedural rights which are necessary to enhance mutual trust between Member States and to 
facilitate the principle of mutual recognition.  

Moreover,  Directive  2014/42/EU  on  the  freezing  and  confiscation  of  instrumentalities  and 
proceeds of crime in the European Union introduced in its Article 8 procedural safeguards in 
line  with  the  fundamental  rights  enshrined  in  the  Charter.  This  will  lead  to  a  minimal 
harmonisation in this area throughout the EU. 

Ordinary conviction-based confiscation 

It  appears  from  the  established  case-law  of  the  ECtHR  that  the  ordinary  conviction-based 
confiscation  is  generally  perceived  to  be  a  legitimate  restriction  to  the  right  to  property 
guaranteed  by  Article  1,  Protocol  1  of  the  ECHR,  if  the  principles  of  legality  and 
proportionality  are  respected,  and  if  procedural  safeguards  such  as  the  right  of  the  person 
concerned to a fair trial and to an effective remedy provided for in Articles 6 and 13 of the 
ECHR  are  sufficiently  ensured.  The  principle  of  presumption  of  innocence  has  also  to  be 
respected. 

In the case Van Offeren v. the Netherlands183 the applicant was convicted of having held and 
transported  cocaine  and  of  having  held  a  cocaine-diluting  substance  in  preparation  of  drug 
offences, but was acquitted of the remaining charges, including trafficking cocaine. An order 
for confiscation of illegally obtained advantage was imposed on the applicant in the amount 
of NLG 357,059 to be replaced, in case of lack of payment or impossibility of recovery, by 
thirty  months  detention.  The  applicant  claimed  that  the  confiscation  order  imposed  on  him 
infringed his right to be presumed innocent under Article 6(2) ECHR. The Court, however, 
held  that  subsequent  confiscation  proceedings  did  not  amount  to  being  charged  with  a 
criminal offence but that these were rather analogous to a penalty determining stage. Indeed, 
the  purpose  of  the  confiscation  proceedings  was  not  the  conviction  or  acquittal  of  the 
applicant for any other offence, but to assess whether assets demonstrably held by him were 
obtained  by  or  through  drug-related  offences  and,  if  so,  to  assess  the  amount  at  which  the 
confiscation order should properly be fixed. Insofar as there was no "new charge", the Court 
concluded, that Article 6(2) ECHR related to presumption of innocence did not apply. 
On  the  other  hand,  the  case  Geerings  v.  the  Netherlands184  illustrates  a  case  where  the 
principle of presumption of innocence enshrined in Article 6(2) ECHR was not respected. It 
concerned the imposition of a confiscation order based on a judicial finding that the applicant 
had derived advantage from offences (thefts of lorries containing merchandise) for which he 
had  been  acquitted  in  the  criminal  proceedings  brought  against  him.  In  finding  a  breach  of 
Article 6(2) the ECtHR took into consideration that the confiscation order related to the very 
crimes for which the applicant had been acquitted, and also acknowledged that it could not be 
established that any advantage, illegal or otherwise, was actually obtained.  

Extended confiscation 

Extended  confiscation  (in  which  a  criminal  conviction  is  followed  by  the  confiscation  not 
only  of  assets  associated  with  the  specific  crime,  but  of  additional  assets  which  the  court 

182 OJ L 65/1 of 11.3.2016. 
183 ECtHR, Van Offeren v. the Netherlands, N°19581/04. 
184 ECtHR, Geerings v. the Netherlands, N°30810/03. 

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determines  as  deriving  from  criminal  conduct)  may  raise  concerns  with  regard  to  the 
presumption of innocence, as confiscation is enabled without an established link between the 
asset and a particular criminal conviction. It may also raise issues with regard to the principle 
of  legality,  including  the  non-retroactivity  of  criminal  law  and  the  prohibition  of  the 
imposition of heavier penalties laid down by Article 49 of the Charter and Article 7 ECHR. 
However,  the  ECtHR  has  on  many  occasions  concluded  that  extended  confiscation  is 
compatible with the ECHR, provided that certain safeguards, notably under Article 6(1), are 
complied with.  
In the case Phillips v. UK185, Mr Phillips was sentenced to nine years imprisonment for the 
importation of cannabis resin. On the basis of the 1994 Drug Trafficking Act, an inquiry was 
conducted into the applicant's means that same year. The investigating officer argued that the 
applicant  had  benefited  from  drug  trafficking  and  invited  the  Crown  Court  to  apply 
assumptions foreseen by section 4(2) and 4(3) of the Drug Trafficking Act, namely that any 
property  appearing  to  have  been  held  by  the  defendant  at  any  time  since  his  conviction  or 
during  the  period  of  six  years  before  the  date  on  which  the  criminal  proceedings  were 
commenced was received as a payment or reward in connection with drug trafficking, and that 
any expenditure incurred by him during the same period was paid for out of the proceeds of 
drug  trafficking.  Shortly  after,  the  Crown  Court  imposed  an  extended  confiscation  order  on 
the applicant, having assessed the illicit profits at GBP 91,400). Mr Phillips complained that 
the statutory assumption under the UK Drug Trafficking Act 1994 violated the presumption 
of  innocence  enshrined  in  Article  6(2)  ECHR  as  well  as  his  right  to  property  contained  in 
Article 1, Protocol 1 ECHR.  

With  regard  to  the  alleged  breach  of  the  presumption  of  innocence,  the  ECtHR  examined 
first  whether  the  prosecutor’s  application  for  a  confiscation  order  following  the  applicant’s 
conviction  amounted  to  the  bringing  of  a  "new  charge"  within  the  meaning  of  Article  6(2) 
ECHR. In order to address this issue, the Court applied three criteria: the classification of the 
confiscation proceedings under national law, their essential nature and the type and severity of 
the penalty at stake. The Court first looked at the first criterion and held that the application 
for a confiscation order did not involve any new charge or offence in terms of criminal law. 
The Court then examined the other two criteria. It underlined that - although the Crown Court 
assumed that the applicant had benefited from drug trafficking in the past - the purpose of the 
confiscation procedure was not the conviction or acquittal of the applicant for any other drug-
related offence. The confiscation procedure was instead aimed at enabling the national court 
to assess the amount at which the confiscation order should properly be fixed. In this sense, 
the person was thus not "charged with a criminal offence" and Article 6 (2) was not applicable 
to the confiscation proceedings.  

Furthermore,  the  Court  found  no  violation  of  Article  6(1)  ECHR  as  "the  system  was  not 
without safeguards", in the sense that the assessment was carried out by a court following a 
judicial procedure including a public hearing, advance disclosure of the prosecution case and 
the opportunity for the applicant to adduce documentary and oral evidence, the most relevant 
safeguard  being  the  opportunity  for  the  applicant  to  rebut  the  assumption  foreseen  in  the 
national legislation. 
In the case Grayson & Barnham v. UK186, Mr Grayson was convicted with intent to supply 
over 28 kilograms of pure heroin and Mr Barnham was convicted of two conspiracy charges 
involving plans to import large consignments of cannabis. Extended confiscation proceedings 

185 ECtHR, Phillips v. UK, N°41087/98. 
186 ECtHR, Grayson & Barnham v. UK, N°19955/05 and 15085/06. 

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were  initiated  against  each  of  them.  They  both  alleged  that  the  burden  to  prove  that  their 
realisable  property  was  less  than  the  amount  to  which  they  had  been  assessed  to  have 
benefited from drug trafficking violated their right to a fair hearing under Article 6 (1) of 
the  Convention.  The  ECtHR,  when  assessing  whether  the  way  in  which  the  statutory 
assumptions  of  the  1994  Drug  Trafficking  Act  were  applied  in  the  particular  proceedings 
offended  the  basic  principles  of  a  fair  procedure  inherent  in  Article  6(1),  took  well  into 
account that the rights of the defence were protected during the confiscation proceedings by 
"the safeguards built in the system. Thus, in each case the assessment was carried out by a 
court  with  a  judicial  procedure  including  a  public  hearing,  advance  disclosure  of  the 
prosecution  case  and  the  opportunity  for  the  applicant  to  adduce  documentary  and  oral 
evidence. Each applicant was represented by counsel of his choice".  

As regards the burden of proof, it "was on the prosecution to establish that the applicant had 
held the assets in question during the relevant period. Although the court was required by law 
to  assume  that  the  assets  derived  from  drug  trafficking,  this  assumption  could  have  been 
rebutted  if  the  applicant  had  shown  that  he  had  acquired  the  property  through  legitimate 
means. Furthermore, the judge had a discretion not to apply the assumption if he considered 
that  applying  it  would  give  rise  to  a  serious  risk  of  injustice".  The  Court  concluded  that  "it 
was not incompatible with the notion of a fair hearing in criminal proceedings to place the 
onus  on  each  applicant  to  give  a  credible  account  of  his  current  financial  situation"  after 
having  been  proved  to  have  been  involved  in  extensive  and  lucrative  drug  dealing  over  a 
period of years". 

Non-conviction based confiscation 

NCBC enables interferences with the right to property without the property being linked to a 
specific criminal conviction. Since these measures do not relate to assets for which a criminal 
conviction has been obtained, they may raise issues with regard to the right to a fair trial, the 
right to an effective remedy and the presumption of innocence.  

Although the ECtHR has not ruled on the principled question of their compatibility with the 
ECHR, the Court has repeatedly considered NCBC to be consistent with Article 6 ECHR and 
Article 1, Protocol 1, as long as effective procedural safeguards are respected. 

In  Italy,  preventative  confiscation  can  be  ordered  for  alleged  proceeds  of  crime  of  the 
presumed offender who is deemed a member of a mafia-like organisation. According to the 
ECtHR, such confiscation measures "sought to prevent the unlawful use, in a way dangerous 
to  society,  of  possessions  whose  lawful  origin  has  not  been  established."187  It  therefore 
considers that the aim of the resulting interference serves the general interest." In relation to 
the  use  of  presumptions,  the  ECtHR  confirmed  that  "the  Convention  obviously  does  not 
prohibit such presumptions in principle. However, the applicant's right to peaceful enjoyment 
of  their  possessions  implies  the  existence  of  an  effective  judicial  guarantee".  It  should  be 
underlined  that  under  the  ECtHR  case-law  considerable  importance  is  given  to  the  fact  that 
effective procedural safeguards are in place. In the case Arcuri v. Italy188, the Court found 
that the proceedings were conducted in the presence of both parties and with respect for the 
rights  of  defence  before  three  successive  courts.  Those  courts  gave  full  reasons  on  all  the 
points  at  issue,  thus  avoiding  any  risk  of  arbitrariness.  In  the  case  Bocellari  and  Rizza  v. 
Italy189 the ECtHR found a violation of Article 6(1) ECHR as the applicants should have had 

187 ECtHR, M. v. Italy, N°12386/86. 
188 ECtHR, Arcuri v. Italy, N°52024/99. 
189 ECtHR, Bocellari and Rizza v. Italy, N°399/02. 

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at least the opportunity to ask for a public hearing and in the case Bongiorno a.o. v. Italy190 
the applicants' rights to a public hearing were also violated. 

The ECtHR also had the opportunity to rule on the compatibility with the Convention of civil 
"in  rem"  confiscation,  a  system  existing  in  the  United  Kingdom's  legislation.  In  the  cases 
Butler  v.  UK191  and  Webb  v.  UK192,  the  ECtHR  held  that  cash  confiscation  (forfeiture) 
proceedings were not criminal in nature. Cash confiscation was a "preventive measure" which 
could not be compared to a criminal sanction, since it was designed to take out of circulation 
money which was presumed to be bound up with the international trade in illicit drugs. The 
Court  also  considered  that  the  proceedings  did  not  involve  the  determination  of  a  criminal 
charge  and  hence  did  not  attract  the  full  guarantees  of  Article  6  of  the  ECHR  under  its 
criminal head, such as the presumption of innocence.  

Third party confiscation 

The  question  of  proportionality  and  relevant  safeguards  plays  also  an  important  role  in  the 
context  of  third  party  confiscation.  Where,  in  the  case-law  of  the  ECtHR,  there  is  an 
interference with the property rights of such parties, a link between the proceeds of crime and 
the assets in the possession of a third party has to be established. Moreover, the confiscation 
must  be  proportionate  to  the  objectives  being  pursued  and  the  right  to  a  fair  trial  must  be 
respected. In any event, confiscation from third parties should not prejudice the rights of bona 
fide third parties193. 

In the case Arcuri v. Italy194 confiscation orders were issued against the property of a number 
of  family  members  on  the  basis  of  the  "lifestyle  discrepancy"  of  the  first  applicant.  There 
were no criminal proceedings directly related to the confiscation order. The presumption that 
the family's fortune had been created by the proceeds of criminal offences committed by the 
first applicant was supported by the first applicant's long criminal history and his involvement 
in organised crime. The ECtHR held that the function of the confiscation order was to prevent 
the unlawful use, in a way dangerous to society, of possessions whose lawful origin has not 
been established. As a crime prevention policy, the Court accorded the State a wide margin of 
appreciation.  In  assessing  the  proportionality  of  the  confiscation,  the  Court  considered  the 
rationale for the measure was sound, taking into account the serious nature of organised crime 
and the threat it posed to the rule of law in the state. Further, the applicants' right to peaceful 
enjoyment of their possession had not been infringed as the Italian courts had provided them 
with a reasonable opportunity of putting their case to the responsible authorities.  
In  the  case  Silickiene  v.  Lithuania195  confiscation  measures  (related  to  shares  in  a 
telecommunication  company  and  an  apartment)  were  applied  to  the  applicant,  widow  of  a 
high  ranking  tax  police  officer  who  was  charged  with  forming  and  leading  a  criminal 
organisation for smuggling. Proceedings against the husband were discontinued after he had 
committed  suicide.  At  the  same  time,  three  co-accused  persons  were  convicted.  The  Court 
upheld  the  confiscation  of  the  applicant's  assets  because  they  stemmed  from  proceeds  of 
criminal activities of the entire criminal organisation. The Court found no violation of Article 
6(1) ECHR accepting that "the Lithuanian authorities had de facto afforded the applicant a 

190 ECtHR, Bongiorno a.o. v. Italy, N°4514/07. 
191 ECtHR, Butler v. UK, N°41661/98. 
192 ECtHR, Webb v. UK, N°56054/00. 
193 See Article 6(2) of Directive 2014/42/EU. 
194 ECtHR, Arcuri v. Italy, N°52024/99. 
195 ECtHR, Silickiene v. Lithuania, N°20496/02. 

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reasonable  and  sufficient  opportunity  to  adequately  protect  her  interests".  Moreover,  the 
Court found no violation of Article 1, Protocol 1 either. The confiscation order was prescribed 
by law and it pursued a legitimate aim, namely to ensure that the use of the property issue did 
not procure the applicant a pecuniary advantage to the detriment of the community. The Court 
noted that the applicant had direct knowledge that the confiscated property could only have 
been  purchased  with  the  proceeds  of  the  criminal  organisation's  unlawful  enterprise  and  in 
separate  criminal  proceedings  had  confessed  to  having  committed  crimes  with  a  view  to 
helping  her  husband  escape  criminal  liability  while  he  was  detained.  As  to  the  way  the 
confiscation proceedings were held, the Court noted that the judicial review was conducted by 
three  successive  courts  and  concerned  the  legality  and  the  justification  for  the  confiscation. 
Lastly, given the scale, systematic nature and organisational level of the criminal activity at 
issue, the Court considered that the confiscation measure complained of may have appeared 
essential in the fight against organised crime. 
In  the  case  Veits  v.  Estonia196  the  applicant's  mother  and  grandmother  were  convicted  for 
fraud  and  murder  related  to  real  estate  transactions.  The  confiscation  of  one  apartment 
belonging  to  the  applicant  was  ordered  (as  property  obtained  through  crime).  The  ECtHR 
found neither a violation of Article 6 nor of Article 1, Protocol 1. The Court held that even 
though  the  applicant  was  not  invited  to  take  part  in  the  proceedings,  her  interests  were  de 
facto protected by her mother and grandmother and did not remain unrepresented. Moreover, 
domestic  courts  dealt  with,  and  rejected  with  sufficient  reasoning,  the  arguments  by  the 
applicant's mother and grandmother to the effect that the apartment in question had not been 
obtained through crime. 

For the ECtHR, it is also essential that a third party has an effective opportunity possibility to 
claim the ownership of a seized asset and to protect her/his interests.  

In the case Denisova and  Moiseyev  v.  Russia197  the  ECtHR  concluded  on  a  violation  of  the 
rights  of  property  of  the  applicants  for  the  following  reasons:  the  applicants  were  wife  and 
daughter of Mr Moiseyev who had been confiscated a large amount of money, a pc and other 
assets. The spouse claimed her right to a portion of the money and the daughter asserted her 
ownership of the pc. The issue at stake was that the domestic courts had not provided them 
with  an  effective  opportunity  to  claim  ownership.  Domestic  case-law  indicated  that 
confiscation  could  not  extend  to  third  parties,  these  could  be  subjected  to  it  only  if  it  was 
found in subsequent civil proceedings that they acted as straw men. The applicants were not 
party to the criminal proceedings and had not standing to make any submissions. In the civil 
proceedings the civil courts refused to take cognisance of the merits of the vindication claims 
or make any independent findings of fact, and they merely referred back to the judgment in 
the criminal case. 

3. Access to justice, in particular for victims 

In  its  case-law  the  ECtHR  has  recognised  the  applicability  of  the  guarantees  foreseen  in 
Article  6  ECHR  to  proceedings  in  the  context  of  which  individuals  claim  reparation  for 
damage caused by the offence of which they were allegedly the victims198. 

Hence, the right to participate in proceedings in accordance with Article 47 of the Charter is 
not  restricted  to  criminal  proceedings  against  a  suspected  or  accused  person.  It  also  covers 

196 ECtHR, Veits v. Estonia, N°12951/11. 
197 ECtHR, Denisova and Moiseyeva v. Russia, N°16903/03. 
198 ECtHR, Perez v. France, N°47287/99. 

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proceedings  conducted  for  the  sole  purpose  of  the  confiscation  of  proceeds  of  crimes  and 
proceedings  concerned  with  crimes  that  have  violated  rights  of  individual  victims.  The 
Directive  on  the  rights  of  victims199,  which  purpose  is  to  ensure  that  victims  are  able  to 
participate in criminal proceedings, has also to be taken into account.  

It  is  therefore  important  to  effectively  safeguard  fair  trial  rights  of  victims  of  crimes  in  the 
context of confiscation proceedings. 

199  Directive  2012/29/EU  of  25  October  2012  establishing  minimum  standards  on  the  rights,  support  and 

protection of victims of crime, OJ L 315/57. 

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Annex 7  Cost calculations 

The  estimations  for  the  number  of  intra-EU  cross-border  confiscation  orders  under  the 
different options and the resulting costs and incomes in the 28 Member States are based on 
the following assumptions: 

For all options: 

An average cost per procedure has been calculated from the UK NAO figures, and used as an 
estimate for the cost of a procedure in the EU. To calculate the costs of the different options, 
this cost has been multiplied by the estimated number of cross-border cases in the EU. As UK 
is seizing more criminal assets than other Member States (cf. Table 4 in Section 4.3.2.), this 
approach seems more realistic than to multiply the global UK figure by 28. 

The average costs of a single procedure have been calculated without distinguishing by type 
of  procedure  (criminal  or  civil,  purely  domestic  procedure  or  procedure  with  international 
dimension,  mutual  recognition  or  mutual  legal  assistance  for  cross-border  cases).  It  is 
assumed  that  the  complexity  of  the  case,  the  number  of  persons  and  assets  involved,  the 
degree to which these assets are "hidden" are much more important cost factors. However, the 
increasing replacement of MLA procedures by mutual recognition procedures should lead to 
faster,  more  efficient  procedures  and  therefore  not  only  cost  savings,  but  also  increased 
success in seizing assets, as time is of paramount importance for freezing assets.  

Costs for training on a new instrument and other measures such as exchanges of best practices 
are not taken into account in the calculations, but should be of a comparable magnitude for all 
options  concerned,  except  for  the  baseline  scenario.  Compared  to  the  cost  of  confiscation 
procedure, they are however marginal. 

Moreover, the calculation of benefits does not take into account the benefits realised by the 
deterrent effect of functioning mutual recognition instruments, as this is difficult to factor.  

The number of confiscation orders is estimated to amount to 50% of all freezing orders, based 
on Europol data described in Section 4.3.2. 

Projections  are  made  for  a  moment  in  time  when  the  new  instrument  has  developed  its  full 
effects,  in  about  5-6  years.  These  projections  assume  that  the  number  of  cases  will  remain 
stable under the baseline scenario (i.e. no natural increase is factored in).  

Regarding the baseline scenario: 

From  Europol  data,  we  know  that  about  1.703  (46%  of  3703)  ARO  to  ARO  asset  tracing 
requests resulted in a hit in 2015, meaning that assets were found in another Member State. 
The  number  of  cross-border  freezing  orders  issued  must  be  lower  than  that,  as  not  every 
discovery of assets in another Member State after an asset tracing request is followed by an 
order, but on the other hand, an asset tracing request is necessary in a big majority of cases 
before issuing a cross-border order, so this figure gives a good indication of the potential for 
cross-border cases. The number of confiscation  orders is estimated to amount to 50% of all 
freezing orders, based again on Europol data described in Section 4.3.2., so the total number 
of cross-border confiscation orders must be lower than 851. 

From  figures  in  UK,  PL  and  NL  quoted  in  section  4.3.3.,  we  estimate  that  the  average  of 
confiscation  orders  sent  or  received  per  Member  State  under  mutual  recognition  per  year  is 
about  6-10,  meaning  between  168-280  for  the  EU.  If  one  includes  mutual  legal  assistance 
request, the figure must be higher. In 2014, the UK received 37 freezing orders under MLA; 
since this is the figure for received orders, this does not reflect the priority given by UK to 

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issuing  freezing  and  confiscation  orders,  and  one  can  use  this  as  a  proxy  for  other  Member 
States too. One can estimate the number of confiscation orders is half of this figure, i.e. about 
16-20  confiscation  orders  under  MLA.  If  one  adds  the  confiscation  orders  under  mutual 
recognition, this gives a total range of 22-30 orders per year per Member State or 616-840 in 
total for the EU. 

Regarding Option 2: 

The effect of non-regulatory measures targeting both the mutual recognition and the mutual 
legal assistance instruments will lead to a slight increase. The increase is estimated to amount 
to 5%. 

Regarding Option 3: 

The  effect  of  option  3  would  be  much  more  important  than  for  option  2.  Compared  to  the 
status quo, it is assumed the number of mutual recognition cases will double under this option 
(100%).  On  the  other  hand,  the  number  of  mutual  legal  assistance  cases  should  decrease  as 
some of the MLA procedures will be replaced by mutual recognition procedures, but not too 
the  same  extent,  as  not  all  types  of  confiscation  orders  are  covered  by  this  option  (-30%). 
Overall, the number of cross-border cases should increase slightly. 

Regarding Option 4a: 

Option 4a would lead to a bigger increase of mutual recognition cases compared to option 3. 
It  is  assumed  that  this  increase  amounts  to  150%  compared  to  the  baseline  scenario.  The 
decrease of MLA procedures, increasingly replaced by mutual recognition procedures, can be 
estimated to amount to 40%, slightly higher than for Option 3.  

Regarding Option 4b: 

In  the  United  Kingdom,  civil  confiscation  orders  amounted  to  GBP  17,8  million  or  7%, 
compared  to  GBP  247,3  million  for  criminal  confiscation  orders  in  2014-2015200.  For  Italy, 
we have no comparable report, but during a presentation at ERA, it was claimed that in 2014, 
preventive confiscation orders were issued for a total amount of EUR 1,5 billion. This does 
not match the figures of Dataninja, which estimates that in 2014, the total value of confiscated 
goods  amounted  to  EUR  776  million  in  Italy.  However,  one  can  nevertheless  conclude  that 
the  portion  of  NCBC  in  Italy  is  much  higher  that  the  one  in  the  United  Kingdom.  Because 
countries  with  NCBC  use  asset  recovery  to  a  stronger  extent  than  other  Member  States  (cf. 
table 4 in Section 4.3.2), the percentage of civil or administrative procedures compared to the 
total number of procedures is proportionally higher. It shall be assumed that Option 4b would 
result  in  an  increase  by  280%  compared  to  the  baseline  scenario.  The  decrease  of  MLA 
procedures should be more limited, because many Member States currently don't accept civil 
or administrative confiscation orders under MLA procedures neither (-42%).  

200 Cf. UK, National Audit Office (NAO) Report on Confiscation Orders 2013, p. 16, figure 3. 

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Annex 8  List of abbreviations  

AGRASC 

Agence de Gestion et de recouvrements des avoirs saisis et confisqués, France 

ARO 

Asset Recovery Offices   

CARIN 

Camden Asset Recovery Inter-Agency Network 

EAW 

ECJ 

European Arrest Warrant 

Court of Justice of the European Union 

ECFIN 

European Union Directorate General for Economic and Financial Affairs   

ECHR 

European Convention on Human Rights 

ECtHR 

European Court of Human Rights 

EEAS 

European External Action Service 

EIO 

EJN 

EU 

EUR 

European Investigation Order 

European Judicial Network 

European Union 

Euro 

EUROJUST  European Union Judicial Cooperation Unit 

EUROPOL 

European Police Office 

GBP 

GDP 

ISSG 

JUST 

MEP 

MLA 

MS 

Pound Sterling 

Gross Domestic Product 

Inter-Service Steering Group   

European Commission Directorate General for Justice and Consumers 

Member of Parliament 

Mutual Legal Assistance 

Member States 

NCBC 

Non-Conviction Based Confiscation 

NGO 

Non-Governmental Organization 

OECD 

Organisation for Economic Cooperation and Development 

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OJL 

OJC 

Official Journal of the European Union (Legislation) 

Official Journal of the European Union (Information and Notices) 

OLAF 

European Anti-Fraud Office 

TEU 

Treaty on European Union 

TFEU 

Treaty on the Functioning of the European Union 

UN 

United Nations   

UNDOC 

United Nations Office on Drugs and Crime 

USA 

USD 

United States of America   

United States of America Dollar 

UK NAO 

United Kingdom National Audit Office 

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Annex 9  Bulgarian example 

Source: CIAF 

In Bulgaria the designated state asset recovery authority is the Commission for illegal assets 
forfeiture (CIAF), which is an independent administrative body. Bulgaria has a system of civil 
NCBC in place since 2012.  

On 29.02.2016 the CIAF has submitted before the Sofia City Court a claim for illegal assets 
forfeiture  in  the  amount  of  BGN  2  203  445  038,  equal  to  EUR  1  126  603  558  against  a 
Bulgarian  citizen,  the  members  of  his  family  and  the  legal  entities  under  his  control.  The 
defendants  against  the  filed  civil  claim  are  twenty  seven  natural  persons  and  legal  entities, 
related to the majority shareholder of the capital of a bankrupted company. Some of the legal 
entities,  which  appear  as  defendants  against  the  claim,  are  registered  in  different  European 
countries and offshore zones. Subject of the forfeiture claim are assets located in the Republic 
of Bulgaria, the Swiss Confederation, the Grand Duchy of Luxembourg and the Republic of 
Greece. 

Having  identified  assets  in  foreign  jurisdictions  the  CIAF  tried  to  impose  provisional 
measures on them. This process was troubled by the fact that the existing EU legal framework 
only  applies  to  criminal  proceedings  and  executing  confiscation  orders  requires  a  prior 
criminal  conviction.  With  no  possibility  of  using  the  existing  legal  instruments  aimed  at 
ensuring  judicial  cooperation  in  criminal  matters,  the  CIAF  had  to  venture  into  other  legal 
opportunities.  

The used legal instruments in this case are the Lugano Convention of 2007 on jurisdiction and 
the  recognition  and  enforcement  of  judgments  in  civil  and  commercial  matters  (regarding 
jurisdictions outside of the EU, like the Confederation of Switzerland) and Regulation (EU) 
No  1215/2012  of  the  European  Parliament  and  of  the  Council  of  12  December  2012  on 
jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and  commercial 
matters.  

The current experience of the CIAF is that the execution of freezing orders is easier outside of 
the EU, using the Lugano convention of 2007, rather than within the EU, applying Regulation 
EU 1215/2012.  

The  first  attempt  for  execution  of  a  freezing  order  was  made  in  the  Confederation  of 
Switzerland,  where  a  freezing  order,  issued  by  the  Sofia  City  Court,  was  successfully 
executed,  which  led  to  the  freezing  of  several  bank  accounts  and  a  real  estate  (its  value  is 
estimated at approx. EUR 25 million). 

On  the  other  hand  CIAF  has  tried  to  execute  freezing  orders  in  the  Grand  Duchy  of 
Luxembourg and in Greece, but with no success so far (procedures have also been initiated in 
other foreign jurisdictions, which are currently pending, but due to confidentiality concerns no 
details can be disclosed). 

Once  they  had  obtained  the  documents  necessary  under  Regulation  (EU)  1215/2012,  the 
CIAF sent a request to the Luxembourgish competent authorities for execution and imposition 
of  freezing  measures,  regarding  shares  in  companies,  registered  in  the  Grand  Duchy.    The 
Luxemburg authorities refused on the formal ground that the CIAF was not represented by a 
locally based lawyer or a representative ad litem. According to the procedural rules this is a 
mandatory prerequisite before the court proceeding could start. 

According to the CIAF, this obstacle is very hard to overcome, because of the high risk which 
accompanies  the  disclosure  of  highly  confidential  information  to  private  parties  in  a  civil 

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proceeding,  which  the  lawyers  prove  to  be.  In  this  case  the  CIAF  almost  risked  disclosing 
information to lawyers, connected to the investigated person, because of their lack of capacity 
to  trace  connections  between  different  parties  outside  of  the  territory  of  the  Republic  of 
Bulgaria.  

Another  part  of  the  problem  is  strictly  financial  –  CIAF  tried  to  impose  freezing  orders  on 
company  shares,  which  eventually  turned  out  to  be  worth  less  than  the  fee  asked  by  the 
Luxembourgish 
financially 
disadvantageous.  

firms  contacted.  This  makes 

the  whole  process 

law 

For  the  execution  of  another  freezing  order  in  Greece,  CIAF  again  needed  a  local  lawyer, 
which  in  this  case  proved  to  be  easier  to  overcome,  having  in  mind  that  Greece  is  a 
neighbouring country. A trustworthy Greek lawyer was identified, but the procedure stumbled 
when the execution orders had to be inscribed in the local trade and company registers. The 
Bailiff  failed  to  inscribe  the  freezing  orders  due  to  a  change  in  the  local  legislation,  which 
prevented him to fairly assess the value of the assets, therefore the process couldn’t continue. 
Nevertheless  CIAF  is  in  a  process  of  clarifying  the  next  steps  in  order  to  overcome  the 
obstacles, while respecting the local legal procedures.  

In conclusion, this example shows that judicial cooperation on asset recovery for a Member 
State with NCBC is difficult, and despite the creation of a European area of Justice, Freedom 
and  Security,  Bulgaria  found  it  easier  to  cooperate  with  a  third  country  (Switzerland)  than 
with EU Member States. The use of civil cooperation tools by Bulgaria may be explained by 
the fact that neither Luxembourg nor Greece have ratified the Warsaw Convention. It did not 
prove  to  be  successful  so  far,  and  requirements  of  civil  procedure  like  the  obligation  to 
designate  a  local  lawyer  don't  seem  adapted  to  asset  recovery  procedures.  Only  Option  4b 
would be able to improve this situation. 

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