Note on the Regulation (EU) 2018/1805 on the mutual recognition of freezing orders and confiscation orders : a new legal framework for judicial cooperation in the field of asset recovery.
Date: 2020-12-29
Institutions: European Union Agency for Criminal Justice Cooperation
Subjects: claim, confiscation of property, cross-border cooperation, help for victims, judicial cooperation, mutual recognition principle, power of decision, regulation (EU)

Note on the Regulation (EU) 2018/1805 
on the mutual recognition of 
freezing orders and confiscation orders

A new legal framework for judicial cooperation
 in the field of asset recovery

Criminal justice across borders

Regulation (EU) 2018/1805 on the mutual recognition of freezing 
orders and confiscation orders

A new legal framework for judicial cooperation in the field of asset recovery

First Regulation on 
mutual recognition in 
criminal matters
directly and 
uniformly applicable

Start of application 
19 December 2020
Applies to all freezing and 
conﬁscation certiﬁcates 
transmitted on this day 
or after

Single instrument replacing 
Framework Decisions 
2003/577/JHA on freezing 
property and evidence
2006/783/JHA on 
conﬁscation orders

Duty to recognise and execute freezing orders and conﬁscation orders issued by
another Member State within the framework of the proceedings in criminal matters
Covers various types of conﬁscation
No type of criminal oﬀence excluded
Speciﬁc and new grounds for refusal

Improved protection for victims of cross-border crime

Victim’s right to compensation and restitution has priority over the executing and 
issuing States’ interest
Compensation and restitution of property to victims should have priority over the 
disposal of frozen or conﬁscated property
Property claims to be demanded in the issuing state
Frozen property to be restituted to the victim as soon as possible

Applies among EU 
Member States with 
the exception of 
Ireland and Denmark 

Time limits:

45 days for recognition of 
conﬁscation order
48 hours for recognition and 
further 48 hours for
execution of freezing order

Standard freezing and 
conﬁscation certiﬁcates 
in Annexes of the 
Regulation

Text of the Regulation in
Eur-lex

Confiscation and freezing on 
the Eurojust website

EJN Judicial Library

Note on the Regulation (EU) 2018/1805 on the mutual recognition of
 freezing orders and confiscation orders

1. 

Background and purpose 

The new Regulation on the Mutual Recognition of Freezing and Confiscation Orders1 (hereinafter the 
“Regulation”) shall apply as of 19 December 2020.

The Regulation introduces a completely new legal framework in the EU governing the area of judicial 
cooperation in the field of asset recovery, replacing the legal instruments applicable so far. The new 
regime  brings  both  significant  changes  and  novelties  that  might  affect  the  everyday  casework  of 
practitioners in the Member States.

The purpose of this Note is to (i) provide a brief introduction to the Regulation, (ii) raise awareness 
of the start of its application and (iii) bring key novelties of the new legal framework to the attention 
of the practitioners as well as issues that could be of interest during the first days of its application.

The Note does not aim at an analysis of the specific legal issues that may stem from the application 
of the Regulation nor does it provide an exhaustive list of possible challenging legal issues. Many of 
them would require substantial analysis that goes beyond the scope of this Note. 

2. 

Regulation on the Mutual Recognition of Freezing and Confiscation Orders

2.1.  Single instrument

The Regulation constitutes a single instrument covering freezing and confiscation orders. It is the first 
time a regulation governs an area of mutual recognition in criminal matters, meaning it is intended 
to resolve issues linked to implementation of the existing instruments, as it will be directly and 
uniformly applicable in the EU.

2.2.  Principle of Mutual Recognition

The Regulation is based on the general principle of mutual recognition, i.e., that all judicial decisions 
in  criminal  matters  taken  in  one  Member  State  will  normally  be  directly  recognised  and  enforced 
by another Member State. The Regulation only sets out a limited number of grounds for non-
recognition and non-execution (see below 2.7).

2.3.  Temporal application2

The new legal regime will be applicable as of 19 December 2020. The following instruments will be 
replaced:

•  The  provisions  of  Framework  Decision  2003/577/JHA  of  22  July  2003  on  the  execution  in  the 
European  Union  of  orders  freezing  property  or  evidence  as  regards  the  freezing  of  property 
between the Member States bound by it3. (Hereinafter FWD 2003).

 ¹ Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing 
orders and confiscation orders.
²
 Articles 39 and 40 of the Regulation.
3 Please note that provisions of Framework Decision 2003/577/JHA as regards freezing of evidence were replaced by Directive 2014/41/EU

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Note on the Regulation (EU) 2018/1805 on the mutual recognition of

 freezing orders and confiscation orders

•  The Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of 

mutual recognition to confiscation orders. (Hereinafter FWD 2006).

References to these two instruments shall be construed as references to the Regulation. 

19 December 2020 will be the first day of application of the Regulation. This effectively means that 
it will become applicable to freezing and confiscation certificates transmitted on this day or after. 
Freezing  certificates  and  confiscation  certificates  transmitted  prior  to  this  day  will  follow  the  legal 
regimes of the FWD 2003 on freezing orders and FWD 2006 on confiscation orders until the final 
execution of the freezing order or confiscation order.

2.4.  Material and territorial application 

2.4.1. Subject matter 

The Regulation lays down rules under which a Member State recognises and executes in its territory 
freezing orders and confiscation orders issued by another Member State within the framework of the 
proceedings in criminal matters. It is worth noting that the term ‘proceedings in criminal matters’ dif-
fers from term ‘criminal proceedings’ used in FWD 2003 on freezing orders and might cover broader 
area of application. There is a duty to recognize and execute even though there is no comparable 
domestic measure⁴ .

The Regulation covers a wide scope of types of confiscation, such as value based confiscation, non-
conviction-based  confiscation,  extended  confiscation,  third  party  as  far  as  the  criminal  law 
guarantees are provided, including certain types of preventive confiscation provided there is a 
link to a criminal offence. The Regulation does not apply to any freezing and confiscation orders 
issued in the frame of proceedings in civil and administrative matters. 

2.4.2. Criminal offences 

The Regulation does not pose a threshold on applicable criminal offences. The criminal offences 
covered  by  the  Regulation  should  not  be  limited  to  particularly  serious  crimes  that  have  a 
cross border dimension. No type of criminal offence is excluded⁵. 

2.4.3. Territorial scope

The Regulation will be applicable among the EU Member States with the exception of Ireland and 
Denmark that are not bound by it and are not subject to its application⁶ .

⁴
Recital 13 of the Regulation. “Proceedings in criminal matters” is an autonomous concept of Union law interpreted by the Court of Jus-
tice of the EU. It covers all types of freezing orders and confiscation orders issued following proceedings in relation to a criminal offence, 
not only orders covered by Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime. It also 
covers other types of orders issued without a final conviction. While such orders might not exist in the legal system of a Member State, 
the Member State concerned should be able to recognise and execute such an order issued by another member state. Proceedings in 
criminal matters could also encompass criminal investigations by the police and other law enforcement authorities. 
⁵ Recital 14 of the Regulation
⁶

Recitals 56 and 57 of the Regulation

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Note on the Regulation (EU) 2018/1805 on the mutual recognition of

 freezing orders and confiscation orders

2.5.  Transmission – standard certificates and procedures

Freezing  and  confiscation  orders  shall  be  transmitted  by  means  of  standard  freezing  and 
confiscation certificates, set out, respectively, in Annexes I and II. The transmission of the freezing 
or  confiscation  certificate  shall  suffice,  unless  Member  States  make  a  declaration  to  the 
effect that the original freezing or confiscation order or a certified copy thereof must accompany 
them⁷. 

2.6.  Time limits for recognition and execution

The Regulation establishes time limits for recognition and execution of freezing and confiscation 
orders. It establishes a deadline of 45 days for the recognition of a confiscation order and in an 
urgent case a deadline of 48 hours for the recognition and a further 48 hours for the execution of 
freezing  orders.  These  time  limits  can  be  postponed  under  strict  conditions  detailed  in  the 
Regulation⁸ .

2.7.  Grounds for refusal

The Regulation introduces grounds for refusal that differ from the current regime. The Regulation, 
similarly to other mutual recognition instruments, introduces listed offences in relation to which dual 
criminality is not required⁹ .  Another novelty worth highlighting is the referral to fundamental rights 
as an (exceptional) ground for refusal¹⁰.  

2.8.  Victims’ rights 

One of the major changes and novelties of the new Regulation is the aim at improving the protection 
of victims of crime in cross-border cases. The Regulation introduces a new regime and the very first 
time that the EU level the rights to restitution and compensation of victims are considered, including 
priority over interests of issuing and executing States.

None of the FWDs (2003 or 2006) contains any provision on victims. FWD 2003 on freezing orders 
provides only for a possibility to freeze property for purposes of confiscation, but not with a view to 
safeguarding the victim’s right to restitution. FWD 2006 on confiscation orders does not address the 
rights of the victim either. 

The Regulation addresses victims’ needs to get compensation for damages or to get stolen assets 
restituted from the State where the property was confiscated. A possibility to receive a decision on 
compensation or restitution during criminal proceedings exists in several Member States but until 
the  Regulation,  there  was  no  specific  provision  which  took  into  account  such  a  decision  in  cross 
border confiscation cases. The Regulation addresses this issue. In cases where the victim has been 

Articles 8 and 14 of the Regulation

Articles 9 and 20 of the Regulation

Article 3(2) of the Regulation

⁷
⁸
⁹
¹⁰

Article 8(10)(f) of the Regulation

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Note on the Regulation (EU) 2018/1805 on the mutual recognition of 

freezing orders and confiscation orders

granted a decision on compensation or restitution and the assets have been confiscated in another 
State following the mutual recognition procedure, the victim’s right to compensation or restitution 
will have priority over the issuing and executing State’s interests. This means that the provisions 
on the disposal of the confiscated property or of the money obtained as a result of the confiscation as 
well as its division between the issuing and the executing State have a residual application obtained 
as a result of the confiscation as well as its division between the issuing and the executing State have 
a residual application ¹¹ .

The Regulation pays special attention to the restitution of frozen property to victims. Accordingly, 
the compensation and restitution of property to victims should have priority over the disposal of 
frozen or confiscated property¹² . The notion of “victim” is to be interpreted in accordance with the 
law of the issuing State, which should also be able to provide that a legal person could be a victim for 
the purpose of the Regulation.

Under the Regulation, property claims must be demanded in the issuing State¹³. If there is a decision 
to restitute frozen property to the victim, the issuing authority must inform the executing authority. 
The executing authority must then take the necessary measures to ensure that the frozen property 
is  restituted  to  the  victim  as  soon  as  possible,  in  accordance  with  the  procedural  rules  of  that 
State. However, this obligation is subject to three conditions: (1) the victim’s title to the property is 
not contested; (2) the property is not required as evidence in criminal proceedings in the executing 
State; and (3) the rights of affected persons are not prejudiced¹⁴  .

2.9.     Affected persons 

The Regulation establishes a higher level of protection of affected persons and a definition of 
“affected person”¹⁵ . Cooperation between Member States presupposes that the rights of persons 
who are affected by a freezing order or confiscation order should be preserved. 

Such  affected  persons,  who  can  be  natural  persons  or  legal  persons,  should  include  the  person 
against whom a freezing order or confiscation order was issued or the person who owns the property 
that is covered by that order, as well as any third parties whose rights in relation to that property 
are directly prejudiced by that order, including bona fide third parties under the law of the executing 
State. Whether such third parties are directly prejudiced by a freezing order or confiscation order 
should be decided in accordance with the law of the executing State¹⁶ .

3. 

Conclusions

The Regulation will bring significant novelties to the current legal regime. In this perspective, Eurojust’s 
goal is to follow its practical application, in order to identify the specific legal and practical issues that 
may stem from it.

***********

Article 30(7) of the Regulation

Article 29(1) of the Regulation

¹¹
¹² Recital 45 of the Regulation
¹³
¹⁴
¹⁵
¹⁶

Recital 17 Regulation

Article 29(2) of the Regulation

Article 2(10) of the Regulation

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Catalogue number: QP-04-20-719-EN-N        •  ISBN: 978-92-9490-515-4          •  DOI: 10.2812/273355