COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT REPORT Accompanying the document Proposal for a Directive of the European Parliament and of the Council on asset recovery and confiscation
Date: 2022-05-25
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU restrictive measure, European security, confiscation of property, criminal proceedings, cross-border cooperation, fight against crime, judicial cooperation in criminal matters in the EU, offence, organised crime, seizure of goods

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 25.5.2022  SWD(2022) 245 final  COMMISSION STAFF WORKING DOCUMENT  IMPACT ASSESSMENT REPORT  Accompanying the document Proposal for a Directive of the European Parliament and of the Council on asset recovery and confiscation {COM(2022) 245 final} - {SEC(2022) 245 final} - {SWD(2022) 246 final}  
 
 
Table of contents 

1. INTRODUCTION ........................................................................................................................ 5 

1.1 Political context ................................................................................................................. 5 
1.2 Legal context and description of the asset recovery process ............................................. 6 

2. PROBLEM DEFINITION ........................................................................................................... 7 

2.1 Problem overview .............................................................................................................. 7 
2.2.   Specific  problem  1:  Competent  authorities  have  limited  capabilities  to 

swiftly identify, trace and freeze assets ...................................................................... 10 
2.2.1 
Driver: limited EU level provisions and in particular of the ARO Council Decision 
and insufficient human, financial and technical resources allocated to asset tracing ............ 14 

2.3 

Inefficient  management  procedures  discourage 

Specific  problem  2: 
authorities from launching asset recovery procedures ................................................ 16 
2.3.1 
Driver: generic requirements of the Confiscation Directive, lack of specialisation 
of  authorities  managing  assets  and  insufficient  use  of  the  most  effective  management 
methods  18 

2.4 

Specific  problem  3:  Existing  confiscation  tools  do  not  cover  all  high 
revenue-generating criminal markets and do not address criminals’ complex 
modi operandi ............................................................................................................. 20 
2.4.1 Driver: narrow scope of the Confiscation Directive ..................................................... 23 

Cross-cutting driver: absence of a strategic approach and of commitment to asset 
2.5 
recovery by all relevant actors. .............................................................................................. 27 

3. WHY SHOULD THE EU ACT? ............................................................................................... 29 

3.1   Legal basis .................................................................................................................. 29 
Subsidiarity ................................................................................................................. 29 
3.2 

4. OBJECTIVES: WHAT IS TO BE ACHIEVED? ...................................................................... 30 

4.1  General objectives ...................................................................................................... 30 
4.2 
Specific objectives ...................................................................................................... 31 
4.3  How do the objectives relate to the sustainable development goals? ......................... 31 

5. WHAT ARE THE AVAILABLE POLICY OPTIONS? ........................................................... 32 

5.1   Baseline scenario: how will the problem evolve? ....................................................... 32 
5.2  Description of the policy options ................................................................................ 34 
5.2.1 Option 1 ........................................................................................................................ 35 

5.2.2 Option 2 ........................................................................................................................ 36 

5.2.3 Option 3 ........................................................................................................................ 37 

5.2.4 Option 4 ........................................................................................................................ 40 

5. 3 Options discarded at an early stage ................................................................................ 42 

6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? ............................................. 43 

6.1 
Social impacts ............................................................................................................. 43 
6.2  Economic impacts ....................................................................................................... 44 
6.3  Environmental impact ................................................................................................. 46 
Fundamental rights impacts ........................................................................................ 46 
6.4 

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6.5 Sustainable development goals impacts .......................................................................... 50 

7.  HOW DO THE OPTIONS COMPARE? .............................................................................. 50 

7.1  Effectiveness ............................................................................................................... 51 
Strengthen asset tracing capabilities ...................................................................... 51 
7.1.1 

7.1.2 

7.1.3 

7.1.4 

Ensure efficient asset management ....................................................................... 51 

Strengthen confiscation capabilities ...................................................................... 52 

Improve the overall efficiency of the asset recovery system ................................. 53 

7.2  Efficiency .................................................................................................................... 54 
7.3  Coherence ................................................................................................................... 58 
Proportionality (including impacts) ............................................................................ 60 
7.4 

8. 

PREFERRED OPTION ......................................................................................................... 62 

8.1 Policy Option 3 ................................................................................................................ 62 
8.2 REFIT (simplification and improved efficiency) ............................................................ 65 
8.3 Application of the “one in, one out” approach ................................................................ 65 

9.  HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? ....................... 65 

ANNEX 1: PROCEDURAL INFORMATION ............................................................................. 68 

ANNEX 2: STAKEHOLDER CONSULTATION (SYNOPSIS REPORT) ................................. 70 

ANNEX 3: WHO IS AFFECTED AND HOW? ............................................................................ 81 

ANNEX 4: ANALYTICAL METHODS ....................................................................................... 87 

ANNEX 5: CATEGORIES AND SCOPE OF CONFISCATION MEASURES .......................... 98 

ANNEX 6: CONFISCATION AND FUNDAMENTAL RIGHTS ............................................. 107 

ANNEX  7:  EVALUATION  OF  THE  EXISTING  POLICY  AND  LEGISLATIVE 

FRAMEWORK ................................................................................................................... 115 

1. 

INTRODUCTION ............................................................................................................... 115 

1.1 Purpose and scope ......................................................................................................... 115 
1.2 Sources and methodology .............................................................................................. 116 

2. WHAT WAS THE EXPECTED OUTCOME OF THE INTERVENTION ............................ 117 

2.1 Description of the intervention and its objectives ......................................................... 117 
2.2 Points of comparison ..................................................................................................... 120 

3.  HOW HAS THE SITUATION EVOLVED OVER THE EVALUATION PERIOD? ........... 123 

3.1 ARO Council Decision .................................................................................................. 123 
3.2 Confiscation Directive ................................................................................................... 125 

4.  EVALUATION FINDINGS................................................................................................ 134 

4.1 To what extent was the intervention successful and why? ............................................ 134 
4.2 How did the EU intervention make a difference? ......................................................... 150 
4.3 Is the intervention still relevant?.................................................................................... 152 

5.  WHAT ARE THE CONCLUSIONS AND LESSONS LEARNED? ................................. 155 

ANNEX 8. EVALUATION MATRIX ........................................................................................ 159 

3 

 
Glossary 

Term or acronym 

Meaning or definition 

AROs 

Asset Recovery Offices  

Asset Recovery Offices Platform 

Camden Asset Recovery Inter-agency 
Network (CARIN) 

The  Asset  Recovery  Offices  Platform  is  an  informal  group  set  up  by  the 
European  Commission  gathering  EU  AROs,  the  Commission  and  Europol 
to further enhance EU cooperation and coordinate exchanges of information 
and best practice. 

The  Camden  Asset  Recovery  Inter-Agency  Network  (CARIN)  is  an 
informal network funded by the European Commission of law enforcement 
and judicial practitioners in the  field of asset tracing, freezing, seizure and 
confiscation. https://www.carin.network/ 

Confiscation 

Final deprivation of property ordered by a court in relation to a criminal 
offence. 

FATF 

Financial Action Task Force  

Financial investigations 

Investigative technique usually conducted by law enforcement authorities 
which entail the tracing and analysis of criminal money and other assets 
trails related to suspected crimes. 

FIU 

Freezing 

Instrumentalities 

MONEYVAL 

Proceeds 

Financial Intelligence Unit 

Temporary prohibition of the transfer, destruction, conversion, disposal or 
movement of property or temporarily assuming custody or control of 
property. 

Any property used or intended to be used to commit a criminal offence or 
criminal offences. 

Committee of Experts on the Evaluation of Anti-Money Laundering 
Measures and the Financing of Terrorism, a permanent monitoring body of 
the Council of Europe which assesses compliance with the FATF standards 
of its members (for the EU, Bulgaria, Croatia, Cyprus, the Czech Republic, 
Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, the Slovak 
Republic and Slovenia). 

Any economic advantage derived from a criminal offence; it may consist of 
any form of property and includes any subsequent reinvestment or 
transformation of direct proceeds and any valuable benefits. 

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1. INTRODUCTION 

1.1 Political context 

As  acknowledged  in  Europol’s  2021  Serious  and  Organised  Crime  Threat  Assessment, 
organised crime is one of the greatest threats to the security of the European Union1. The 
EncroChat,  Sky  ECC  and  AN0M2  cases  have  shown  the  extent  of  organised  crime’s 
transnational  reach,  its  complex  modi  operandi  and  unprecedented  degree  of  economic 
infiltration. With EUR 139 billion of annual profits at their disposal, criminals groups are 
able  to  take  over  vulnerable  businesses  to  expand  and  cover  up  illegal  activities3. 
Criminal  infiltration,  alongside  organised  crime’s  widespread  use  of  corruption,  is  a 
threat to the Rule of Law and to the integrity of the economy. Moreover, the presence of 
organised  crime  in  society  threatens  the  Sustainable  Development  goals  of  (16),  peace, 
justice,  and  strong  institutions  and,  through  its  infiltration  into  the  legal  economy,  (8) 
decent work and economic growth. In view of the economic recovery from the Covid-19 
crisis,  it  is  more  important  than  ever  to  tackle  the  profit-based  motivation  behind 
organised crime, taking away money from the hands of criminals.  

Following the announcement of the EU Security Union Strategy of July 20204, the need 
to  eliminate  the  profits  generated  by  organised  crime  was  further  stressed  in  the  EU 
Strategy to tackle Organised Crime (2021-2025) of April 20215. The latter announced a 
revision  of  Directive  2014/42/EU6  (hereafter  the  “Confiscation  Directive”)  and  of 
Council  Decision  2007/845/JHA7  (hereafter  the  “ARO  Council  Decision”).  This 
revision is in line with the expectations from the co-legislators. In June 2020 the Council 
called  on  the  Commission  to  consider  strengthening  the  legal  framework  on  the 
management  of  property  frozen  and  granting  Asset  Recovery  Offices  with  additional 
powers, for instance to urgently freeze assets, and with access to a set of public registers8. 

1 Europol, European Union Serious and Organised Crime Threat Assessment “A Corrupting Influence: The 
infiltration and undermining of Europe’s economy and society by organised crimes” (2021). 
2 Europol, “Dismantling of an encrypted network sends shockwaves through organised crime groups across 
Europe”,  2  July  2020;  “New  major  interventions  to  block  encrypted  communications  of  criminal 
networks”,  10  March  2021;  “800  criminal  arrested  in  biggest  ever  law  enforcement  operation  against 
encrypted communication”, 8 June 2021. 
3 European Commission, Directorate-General for Migration and Home Affairs, Mapping the risk of serious 
and organised crime infiltrating legitimate businesses: final report, Disley, E.(editor), Blondes, E.(editor), 
Hulme, S.(editor), Publications Office, 2021, p. 10 
4  European  Commission,  Commission  Communication  on  the  EU  Security  Union  Strategy,  COM(2020) 
605 final, 24 July 2020.  
5  European  Commission,  Commission  Communication  on  the  EU  Strategy  to  tackle  Organised  Crime 
(2021-2025), COM/2021/170 final, 14 April 2021.  
6 Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and 
confiscation of instrumentalities and proceeds of crime in the European Union, OJ L 127, 29.4.2014, p. 39.  
7 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, 18.12.2007, p. 103. 
8 Council Conclusions on enhancing financial investigations to fight serious and organised crime Council 
document 8927/20, 17 June 2020. 

5 

 
 
 
                                                           
The  European  Parliament  has  recently  called  for  enhanced  asset  recovery  rules9.  These 
calls complement the previous request by both co-legislators to analyse the feasibility of 
introducing further common rules on the confiscation of property deriving from criminal 
activities, also in the absence of a conviction10. 

These  calls  are  in  line  with  increased  international  efforts  to  improve  asset  tracing  and 
confiscation capabilities globally. The United Nations Conventions on Organized Crime 
(UNTOC)11 and against Corruption (UNCAC)12, as well as the recommendations of the 
Financial Action Task Force (FATF) whereby countries are to adopt measures to enable 
their  competent  authorities  to  freeze  and  confiscate  proceeds  and  instrumentalities  of 
crime. As recently as June 2021, the FATF adopted a report for government authorities 
that  analyses  the  key  obstacles  to  asset  recovery  and  how  to  overcome  them.  At  the 
summit  in  Rome  on  October  2021,  the  G-20  endorsed  the  adoption  of  “measures  to 
prevent corrupt actors and organized criminal groups from enjoying the proceeds of their 
crimes”13.  

1.2 Legal context and description of the asset recovery process 

Asset  recovery  is  a  powerful  tool  of  the  criminal  justice  system  and  the  anti-money 
laundering  regime,  since  it  enables  Member  States  to  identify,  temporarily  freeze  and 
ultimately  confiscate  and  redistribute  profits  originating  from  criminal  activities.  By 
depriving organised crime groups of their illicitly obtained profits, asset recovery is key 
to  limit  their  capacity  to  operate,  to  compensate  victims  and  to  restore  the  damage 
inflicted by returning profits to affected communities. As criminals take advantage of the 
integrated nature of the EU’s financial system to launder their proceeds, the recovery of 
criminal assets requires strong cross-border cooperation and adequate confication tools in 
all Member States.  

The EU legislative framework on asset recovery is composed of three main instruments. 
The ARO Council Decision requires Member States to set up Asset Recovery Offices to 
facilitate  the  tracing  of  proceeds  of  crime,  and  establishes  minimum  requirements  to 
facilitate  their  cooperation  across  borders.  The  Confiscation  Directive,  partially 
replacing instruments dating back to the late 90s and 2000s14, sets minimum rules for the 

9 European Parliament resolution of 15 December 2021 on the impact of organised crime on own resources 
of the EU and on the misuse of EU funds with a particular focus on shared management from an auditing 
and control perspective, P9_TA(2021)0501, (2020/2221(INI).   
10  Statement  by  the  European  Parliament  and  the  Council  on  an  analysis  to  be  carried  out  by  the 
Commission, Council doc. 7329/1/14/REV 1 ADD 1. 
11 United Nations Convention against Transnational Organized Crime, General Assembly resolution 55/25 
of 15 November 2000. 
12 United Nations Convention against Corruption, General Assembly resolution 58/43 of 1 October 2003  
13 G-20 High-Level Principles on Corruption related to Organized Crime. 
14 Directive 2014/42/EU builds upon a framework of legislative instruments: Joint Action 98/699/JHA and 
the  Council  Framework Decisions 2001/500/JHA,  2005/212/JHA and 2006/783/JHA. Only  Articles 1(4), 
2,  3(4)  and  4-7  of  Framework  Decision  2005/212/JHA  are  still  applicable  today  for  all  Member  States, 
requiring  them  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. 

6 

 
 
 
                                                           
freezing,  management  and  confiscation  of  criminal  assets.  The  most  recent  legal 
instrument  in  force  is  Regulation  (EU)  2018/180515,  which  facilitates  the  mutual 
recognition of freezing and confiscation orders across the EU. 

Where  they  fall  within  the  legal  framework  of  the  Union,  freezing  and  confiscation 
powers must be exercised in full compliance with the fundamental rights enshrined in the 
Charter  of  Fundamental  Rights.  The  Confiscation  Directive  provides  for  a  number  of 
safeguards in this respect, as clarified by a growing body of jurisprudence by the Court of 
Justice of the European Union, such as the right to an effective remedy before a court. 

Asset recovery is a process composed of five phases:  

Figure 1: Asset recovery phases 

2. PROBLEM DEFINITION 

2.1 Problem overview 

Organised crime has  never posed such a high threat  to  the EU  and its  citizens. 70% of 
criminal  groups  operating  in  the  EU  are  active  in  more  than  three  Member  States  and 
65%  of  them  are  composed  of  members  of  multiple  nationalities16.  Transport  routes  of 
drugs, firearms or counterfeit products span across all continents through a global supply 
chain.  Criminal  groups  engaged  in  property  crime,  migrant  smuggling  or  trafficking  in 
human beings carry out their crimes across multiple jurisdictions. VAT fraudsters set up 

15 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, OJ L 303 of 28.11.2018, p.1. It applies since 
19 December 2020. 
16  Europol,  European  Union  Serious  and  Organised  Crime  Threat  Assessment  “A  Corrupting  Influence: 
The infiltration and undermining of Europe’s economy and society by organised crimes”, (2021), p. 19 

7 

 
 
 
 
 
 
                                                           
complex schemes across several Member States in order to deceive revenue authorities. 
Moreover, criminals carry out crimes online from anywhere on the globe, from the illegal 
distribution of child sexual abuse material to online fraud and cyberattacks.  

While  criminal  groups  have  become  increasingly  sophisticated  in  their  use  of 
technologies such as encryption, their structures and modus operandi have also become 
more  complex,  hindering  the  capacity  of  law  enforcement  to  tackle  them.  Organised 
crime groups cooperate with each other through ad hoc-partnerships and with providers 
of  criminal  services.  At  the  same  time,  they  are  organised  in  hierarchical  or  complex 
structures  where  the  managerial  levels  distance  themselves  from  the  “foot  soldiers” 
executing  the  crimes  on  the  ground  while  reaping  most  of  the  economic  benefits. 
Therefore,  “those  at  the  upper  echelons  of  the  criminal  enterprise  remain  insulated 
against criminal liability, with their property beyond the reach of law enforcement”17.  

Moreover,  criminals  use  increasingly  elaborated  methods  to  conceal  their  immense 
profits. Organised crime is profit-driven, generating at least EUR 139 billion per year, 
or 1% of the EU’s GDP, with the largest revenues deriving from fraud and illicit drugs18. 
The magnitude of criminal revenues is however likely to be significantly larger, given the 
intrinsically  opaque  nature  of  criminal  activities  and  of  the  fact  that  criminals  are 
involved in a wider range of markets than those analysed in existing studies. 

Table 1 Summary of revenue estimates in the main markets (EUR million, 2019)19 
Card 
Illicit 
payment 
drugs 
fraud 

Trafficking 
in human 
beings 

Environmental 
crime 

Migrant 
smuggling 

Illicit 
firearms 

Illicit 
tobacco 

Fraud 

Property 
crimes 

30,688.4 

7,185.9 

289.4 

77,425.0 

9,524.67 

408.1 

8,309.2 

1,816.4 

3,369.9 

Criminal 
markets 

Annual 
revenue 

Criminals do not only hide illicit assets in the name of relatives or associates, but employ 
a complex web of bank accounts and front companies across jurisdictions to disguise the 
audit  trail,  mixing  illicit  assets  with  legitimate  property  and  hiding  the  source  and 
ownership of funds. They do so by employing professional money launderers who have 
established a parallel underground financial system to ensure assets cannot be traced20. 

Against  these  challenges,  and  as  highlighted  in  the  Evaluation  of  the  ARO  Council 
Decision and of the Confiscation Directive (hereafter “the Evaluation,” see Annex 7), the 
EU  asset  recovery  system  is  not  well  equipped  to  effectively  address  the  complex 
modus  operandi  criminal  organisations  and  to  deprive  them  of  their  profits.  Even 

17 Council of Europe study “The Use of Non-Conviction Based Seizure and Confiscation”, October 2020, p. 
16, referencing Jennifer Hendry & Colin King (2015) How far is too far? Theorising non-conviction-based 
asset forfeiture, International Journal of Law in Context 11, 4, pages 398-411, p. 8 
18  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Mapping  the  risk  of 
serious  and  organised  crime  infiltrating  legitimate  businesses:  final  report,  Disley,  E.(editor),  Blondes, 
E.(editor), Hulme, S.(editor), Publications Office, 2021, p. 10 
19 Ibid. 
20  Europol,  European  Union  Serious  and  Organised  Crime  Threat  Assessment  “A  Corrupting  Influence: 
The infiltration and undermining of Europe’s economy and society by organised crimes”, (2021), p. 98 

8 

 
 
 
 
                                                           
though  the  EU  has  developed  a  legal  framework  promoting  the  establishment  of  asset 
recovery regimes and cross-border cooperation for the recovery of criminal assets, only 
around 2% of criminal assets are frozen and 1% confiscated21. Against this, several 
Member  States  have  gone  beyond  the  minimum  standards  provided  in  the  EU  rules, 
creating an uneven level of fight against criminal finances across the Union22.  

The  ineffectiveness  of  the  EU  asset  recovery  system  comes  from  three  specific 
problems:  (1)  Competent  authorities  have  limited  capabilities  to  swiftly  identify,  trace 
and  freeze  assets;  (2)  Inefficient  management  procedures  discourage  authorities  from 
launching asset recovery procedures and (3) Existing confiscation tools do not cover all 
high  revenue-generating  criminal  markets  and  do  not  address  criminals’  complex  modi 
operandi.  

Figure 2: problem tree  

2.2.   Specific  problem  1:  Competent  authorities  have  limited  capabilities  to 

swiftly identify, trace and freeze assets  

The existing tracing and freezing framework stems from the ARO Council Decision and 
the  Confiscation  Directive,  which  respectively  regulate,  inter  alia,  Asset  Recovery 

21   Europol,  Does  Crime  still  pay?  Criminal  Asset  Recovery  in  the  EU, Survey  of  Statistical  information 
2010-2014,  2016,  https://www.europol.europa.eu/publications-events/publications/does-crime-still-pay,  p. 
4 
22  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and 
confiscation: Ensuring that crime does not pay, SWD COM/2020/217 final. 

9 

 
 
 
 
 
                                                           
Offices23 and the freezing of property which might become the object of a confiscation 
order.24  The  ARO  Council  Decision  requires  Member  States  to  set  up  or  designate  at 
least  one  Asset  Recovery  Office  for  the  purposes  of  the  facilitation  of  the  tracing  and 
identification  of  proceeds  of  crime  which  may  become  the  object  of  a  freezing  or 
confiscation  order.  Whilst  Asset  Recovery  Offices  may  facilitate  the  tracing  and 
identification  of  proceeds  of  any  crime,  the  Confiscation  Directive  limits  the  scope  of 
freezing orders only to the crimes listed in Article 3, and does not include an obligation 
to  trace  and  identify  property  which  might  be  subject  to  freezing  and  confiscation 
orders.25  

The first step in the asset recovery process is the identification and tracing of suspected 
property  which  might  become  the  object  of  a  confiscation  order.  Without  early 
identification  of  criminal  property,  it  is  not  possible  to  subsequently  freeze,  confiscate 
and ultimately manage assets in an effective manner. Speed in tracing assets is essential, 
since criminals can rapidly move funds to avoid detection through the international and 
EU financial system. For example, one Member State, referring to the 140 requests sent 
to  other  Member  States  for  the  tracing  of  illegal  proceeds  in  order  to  freeze  them, 
indicated  that  “in  almost  all  cases,  the  property  (e.g.  money  in  bank  accounts)  was 
already  withdrawn  or  transferred  elsewhere”26.  The  key  actors  in  this  phase  are  law 
enforcement  authorities  and  Asset  Recovery  Offices,  established  in  accordance  to  the 
minimum  obligations  of  the  ARO  Council  Decision,  which  tasks  them  with  the 
facilitation  of  cross-border  tracing  and  identification  of  proceeds  of  crime  which  may 
become the object of a freezing or confiscation order.  

In  the  course  of  their  investigation,  law  enforcement  authorities  may  launch  parallel 
financial  investigations  to  trace  the  suspects’  assets,  from  bank  accounts  to  vehicles, 
high-value  goods,  real  estate  or  companies.  To  do  so,  they  are  empowered  to  check 
databases  available  to  police,  apply  investigative  techniques  such  as  observation  or 
undercover operations, or require financial information from private parties. 

Despite  the  acknowledgement  by  Member  States  of  the  need  for  using  financial 
investigations  when  dealing  with  organised  crime  from  the  very  start  of  a  criminal 
investigation27,  many  jurisdictions  do  not  undertake  pro-active  parallel  financial 
investigations in a routine and expedite manner: in the EU, only eleven Member States 

23  Article  1(1)  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, 18.12.2007, p. 103 
24 Article 7 Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the 
freezing  and  confiscation  of  instrumentalities  and  proceeds  of  crime  in  the  European  Union,  OJ  L  127, 
29.4.2014, p. 39. 
25 The scope of Directive 2014/42/EU is defined by reference to certain offences harmonised at EU level in 
relation to corruption, counterfeiting of the euro, credit card fraud, money laundering, terrorism, illicit drug 
trafficking, organised crime, trafficking in human beings, sexual exploitation of children, and cyberattacks. 
The Confiscation Directive further applies to fraud to the Union's financial interests. 
26 Provision of statistical data in accordance with article 11 of the Confiscation Directive 2019-2020. 
27 Council Conclusions on enhancing financial investigations to fight serious and organised crime Council 
document 8927/20, 17 June 2020. 

10 

 
 
 
                                                           
automatically  launch  parallel  financial  investigations  for  all  forms  of  crime.  Other 
eight Member States limit this automatism to certain crimes, while in  other eight the 
decision  to  launch  them  is  left  to  the  discretion  of  the  investigators  or  to  the  judicial 
authorities overseeing the investigation28. According to 72% of respondents to the public 
consultation,  which  gathered  responses  from  EU  citizens,  academics,  business 
associations,  non-governmental  organisations  and  public  authorities,  the  fact  that 
financial investigations are not systematically launched is one of the  main components 
explaining the low rate of identified assets, a view shared by Asset Recovery Offices29.  

Even when law enforcement authorities launch such investigations, investigators do not 
always pay sufficient attention to the economic dimension of crimes. Practitioners have 
underlined that competent authorities often concentrate on the collection of evidence 
on  the  criminal  act  rather  than  on  their  assets30.  This  does  not  only  create  risks  of 
criminals laundering their proceeds in those Member States where there is a lower risk of 
detection.  It  also  results  in  missed  opportunities  for  cross-border  cooperation,  since  a 
timely financial investigation is likely to uncover assets in other jurisdictions. 

As regards the role of Asset Recovery Offices, the Evaluation shows that their creation 
has  increased  the  effectiveness  in  the  cross-border  identification  of  criminal  assets. 
However, their capacity to identify and trace assets is still suboptimal. Whilst all EU 
Member  States  have  established  at  least  one  Asset  Recovery  Office,  with  19  Member 
States have designated one (AT, BE, HR, CY, CZ, DK, EE, FI, EL, HU, IE, IT, LV, LU, 
MT, PL, PT, RO, SK, Slovenia having designated just a contact point) and seven other 
Member  States  designated  two  (BG,  FR,  DE,  LT,  NL,  ES,  SE),31  the  Offices’  legal 
framework, which only requires Asset Recovery Offices to be a mechanism to ‘facilitate’ 
the  tracing  of  criminal  assets  (Article  1)  and  promote  close  cooperation  between  the 
authorities  involved  in  the  tracing  of  illicit  proceeds  and  the  “direct  communication 
between  those  authorities”  (recital  3),  leaves  a  considerable  degree  of  discretion  to 
Member States regarding their number, legal nature, and powers.  

Firstly,  Asset  Recovery  Offices  do  not  have  all  the  necessary  powers  to  efficiently 
facilitate asset recovery across borders. 27% of offices do not have autonomous tracing 
powers,  and  thus  have  to  request  and  rely  on  the  responsiveness  of  other  competent 
authorities to trace criminal assets in order to answer to cross-border requests. The lack 
of tracing powers is more acute when a judge orders confiscation but no sufficient assets 
have been identified beforehand or they have lost value: 68% of Asset Recovery Offices 

28  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs, Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p.  64 
29 Half of the Asset Recovery Offices consider the lack of financial investigations as one of the two main 
challenges for the identification of assets, according to information collected at the Asset Recovery Offices 
Platform meeting, 25th-26th June 2021. 
30 Stakeholders’ consultation: bilateral meetings with Member States.  
31  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing, 
2021, 
confiscation 
HOME/2018/ISFP/FW/EVAL/0081, pp. 45-46 

–  what  works,  what 

not  work, 

recovery 

asset 

does 

and 

11 

 
 
 
                                                           
are  not  legally  empowered  to  trace  assets  in  the  post-trial  phase  and  thus  not  able  to 
respond themselves to post-trial tracing requests from other offices32. 

This partly explains the fact that Asset Recovery Offices are not able to always meet the 
current  deadlines  for  cross-border  information  exchange  (eight  hours  for  urgent 
requests and one week for non-urgent ones), especially since the number of requests has 
increased  almost  five-fold  since  201333.  Less  than  half  of  offices  considered  that  the 
deadlines  are  met,  indicating  that  in  almost  half  of  the  cases  responses  take  up  to  two 
weeks  non-urgent  situations  and 12 hours or more in  urgent  ones. Additional  problems 
raised by Asset Recovery Offices are the provision of incomplete responses as well as 
the insufficient relevance of some of the requests for information. Moreover, the majority 
of offices usually provide information to other Asset Recovery Offices without granting 
its  use  for  evidence  purposes.34  Thus,  the  requesting  authorities  need  to  re-send  a 
request  via  judicial  channels  in  order  to  obtain  a  freezing  order,  leading  to  delays  and 
therefore increasing the risks of assets dissipating before they can be frozen. In addition, 
eight  Asset  Recovery  Offices  are  still  not  directly  connected  to  the  Europol’s  Secure 
Information  Exchange  Network  Application  (SIENA)  network35,  which  should  allow 
them  not  only  to  quickly  communicate  with  each  other,  but  also  to  benefit  from 
Europol’s  analysis  and  operational  support  and  cross-checking  of  data  with  other 
intelligence and investigations. 

Moreover, only one fourth  of the Asset  Recovery  Offices have powers to  freeze  assets 
themselves in urgent cross-border cases. In such situations, assets can dissipate before 
the freezing order is prepared by the requesting Member State, recognised and executed. 
Urgent freezing powers are particularly important in relation to moveable assets such as 
funds held in bank accounts or cryptocurrencies, since criminals (or their associates) can 
quickly transfer those assets the moment the suspect is arrested or aware of being under 
investigation.  In  the  absence  of  such  powers,  many  Asset  Recovery  Offices  resort  to 
other authorities to ensure assets are quickly frozen (e.g. the Financial Intelligence Units, 

32  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs, Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016. p. 30 
33 Europol data. 
34 The majority of Asset Recovery Offices do not provide the information for evidence purposes because 
the ARO Council Decision relies on Framework Decision 2006/960/JHA for the exchange of information 
between Asset Recovery Offices. The latter does not impose  any obligation to provide information to be 
used  as  evidence  before  a  judicial  authority  nor  does  it  give  any  right  to  use  such  information  for  that 
purpose. 
35  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs, Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p. 45. In the absence of any obligation in the ARO Council Decision, 
some Asset Recovery Offices have not been connected to SIENA, in particular due to technical obstacles, 
considerations of legal nature (in particular as regards judicial Asset Recovery Offices, since some Member 
States have considered preferably not to give them access to a law enforcement network), or organisational 
decisions (e.g. the Member States requiring the Asset Recovery Office to communication via the National 
Europol Unit). 

12 

 
 
 
                                                           
which  can  temporarily  suspend  or  withhold  consent  to  transactions).  However  not  all 
Offices have such legal possibility.  

Finally,  in  many  Member  States  Asset  Recovery  Offices  do  not  only  facilitate  cross-
border  cooperation  but  have  become  a  central  actor  in  the  national  asset  recovery 
system,  supporting  national  investigations  in  the  tracing  of  criminal  assets,  providing 
training  on  asset  recovery  to  law  enforcement  authorities,  judges  and  prosecutors,  or 
collecting  statistics.  However,  not  all  Member  States  have  incorporated  these  good 
practices into their national frameworks. One fourth of Asset Recovery Offices do not act 
as asset recovery focal points, 40% of them do not have training capacity and 60% do not 
collect  statistics.  Therefore,  the  role  of  Asset  Recovery  Offices  in  national  settings  is 
uneven  across  Member  States,  with  some  of  them  providing  a  clear  added  value  to 
national  asset  recovery  efforts  and  others  being  merely  a  letter  box  for  cross-border 
requests.  This  affects  the  effectiveness  of  the  respective  asset  recovery  systems,  as 
Member States with weaker asset recovery provisions will be less capable to address the 
cross-border problem of criminal finances. 

Figure 3: The competencies of Asset Recovery Offices36 

Asset Recovery Offices' state of play in the 
Member States

Member States with one ARO
Member States with two AROs
Asset tracing and identification (pre-trial)
Asset tracing and identification (post-trial)
Issuing urgent freezing orders
Access to SIENA
AROs with sufficient resources for tasks
Acting as national focal point
Acting as AMO

26%

24%

19%

42%

46%

33%

74%

73%

73%

0% 10% 20% 30% 40% 50% 60% 70% 80%

Overall,  the  insufficient  number  and  prioritisation  of  financial  investigations,  the 
challenges  to  the  exchange  of  information  among  Asset  Recovery  Offices  and 
insufficient  powers,  both  in  a  cross-border  and  national  context,  lead  to  a  limited 
capacity  of  Member  States  to  identify  and  trace  assets.  This  is  reflected  in  the  low 
percentage  of  criminal  assets  frozen,  barely  2%  of  the  estimated  criminal  revenues. 
Such limited capabilities hamper cross border cooperation and make it more difficult to 
confiscate assets linked to transnational crime.  

The  identified  tracing  and  freezing  problem  has  both  national  and  cross-border 
connotations,  since  all  cross-border  cases  require  action  to  be  taken  on  the  national 

36  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing, 
2021, 
confiscation 
HOME/2018/ISFP/FW/EVAL/0081, pp. 45-46, 51, 55, 62 

–  what  works,  what 

not  work, 

recovery 

asset 

does 

and 

13 

 
 
 
 
                                                           
territory  of  Member  States,  which  might  then  have  cross-border  implications.  For 
example,  information  exchange  and  cooperation  between  Member  States  is  directly 
affected by Asset Recovery Offices not responding sufficiently swiftly to requests from 
Offices in other Member States, which in turn is linked to their limited competences in 
tracing  assets,  limited  resources  and  their  limited  access  to  the  relevant  databases. 
Similarly, the absence of parallel financial investigations directly affects the capabilities 
within each Member State to identify as early as possible in the process potentially illicit 
asset,  having  however  negative  spill  over  effects  for  cross  border  cooperation  since  it 
means that assets that may be present or have been moved to other Member States are not 
detected. Finally, the inability of Asset Recovery Offices to ensure that identified assets 
are temporarily frozen pending a formal freezing orders at national level has cross-border 
effects,  as  Asset  Recovery Offices respond to  cross-border requests for the purposes  of 
tracing and identifying crimes of a cross-border nature. 

2.2.1  Driver:  limited  EU  level  provisions  and  in  particular  of  the  ARO  Council 
Decision  and  insufficient  human,  financial  and  technical  resources  allocated  to  asset 
tracing 

The lack of systematic launching of financial investigations is due to legal and practical 
reasons.  Not  being  regulated  at  EU  level,  the  rules  for  carrying  out  financial 
investigations vary among Member States. In  eight Member States, the legislation does 
not set any requirements for the automatic launching of financial investigations, leaving 
it to the discretion of competent authorities. In eight Member States, legal frameworks 
make the launching financial investigations subject to different conditions, such as the 
types  of  crime  or  the  amount  of  profits  generated37.  Moreover,  the  reluctance  of  some 
competent authorities to carry out or prioritise financial investigations is also due to their 
lack of resources and expertise. Around half of the authorities competent for carrying 
out  financial  investigations  do  not  have  sufficient  human  resources  to  cope  with  their 
current tasks and responsibilities38, in particular the specialised staff required to carry out 
complex financial enquiries.   

As  regards  the  obstacles  hampering  cooperation  among  Asset  Recovery  Offices  at 
EU level, the main reasons are the limited requirements of the ARO Council Decision, 
which have led to a disparity in national approaches. Moreover, Asset Recovery Offices 
do not have sufficient human, financial and technical resources: against a rising number 
of requests for cooperation and a workload that has increased between 15% and 50% for 
half of the offices,  and between 50 and 100% for the other half, human resources have 
not risen to match the increased demands and remain limited. There are also significant 
differences between Member States: on an average of 19 employees per office, the staff 

37  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs, Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p. 61 
38  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing, 
2021, 
confiscation 
HOME/2018/ISFP/FW/EVAL/0081, p. 35  

–  what  works,  what 

not  work, 

recovery 

asset 

does 

and 

14 

 
 
 
                                                           
ranges from one employee in one of the Member States, to 91 in another Member State 
(despite the latter being only double the population)39. This affects notably the capacity 
of Asset Recovery Offices to cooperate with each other. 

Furthermore,  as  underlined  in  the  Evaluation,  the  current  legal  framework  is  limited 
since  it  does  not  specify  their  role  (besides  “facilitating”  asset  recovery)  and  simply 
establishes  a  general  requirement  to  cooperate  and  exchange  information.  The  ARO 
Council  Decision  does  not  explicitly  require  Asset  Recovery  Offices  to  be  vested  with 
powers to  carry out  asset  tracing investigations  to  answer to  requests from  other Asset 
Recovery  Offices,  or  to  provide  information  to  other  Asset  Recovery  Offices  for 
evidentiary purposes. There are no information exchange rules as regards the channels 
to be used (i.e. SIENA), the types of crimes for which requests can be made, the type of 
information  that  should  be  provided  and,  most  importantly,  the  sources  of  information 
that  should  be  consulted  to  respond  to  asset  tracing  requests.  This  leads  to  the 
incompleteness  and  irrelevance  of  some  of  the  responses.  There  are  also  no  rules 
regarding  the  capacity  of  Asset  Recovery  Offices  to  take  expeditious  action  to  ensure 
freezing  in  urgent  cases.  While  according  to  the  Confiscation  Directive  Member  States 
need  to  provide  for  the  possibility  of  urgent  freezing  of  assets  where  necessary  to 
preserve  the  property  (see  Article  7(1)),  it  is  not  specified  whether  Asset  Recovery 
Offices could take action to ensure urgent freezing in cross-border cases.  

Only 15% of Asset  Recovery  Offices have  access  to all databases;  and only one third 
can check police databases or tax/income registers. These limitations are mainly of legal 
nature,  since  national  legislation  does  not  foresee  access  to  the  offices  for  certain 
databases.  The  most  relevant  databases  for  asset  tracing,  real  estate  registers  and 
company registers, can only be accessed by 64% and 45% of the Asset Recovery Offices 
respectively40. 66% of respondents to the public consultation considered that the limited 
access  to  databases  by  Asset  Recovery  Offices  hampers  the  identification  of  criminal 
assets to a high or very high extent. 

Figure 4: Asset Recovery Offices’ access to databases41 

39  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs, Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, pp. 61-63 
40  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs, Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p. 52 
41 Ibid. 

15 

 
 
 
                                                           
Asset Recovery Offices' access to databases

All kind of databases
Police database
Population register
Bank accounts
Land / Real estate register
Social security
Tax / Income register
Companies register
Vehicle database
Vessels/aricraft
Other

15%

21%

9%

9%

33%

36%

33%

33%

45%

42%

64%

0%

10%

20%

30%

40%

50%

60%

70%

Against  the  general  obligations  of  the  ARO  Council  Decision,  Member  States  have 
applied  different  interpretations  and  provided  Asset  Recovery  Offices  with  different 
roles,  powers  and  information  sources.  This  largely  affects  cross-border  situations,  but 
also applies to the role of Asset Recovery Offices in the national asset tracing activities, 
where the absence of rules at EU level have led to a considerable discrepancy of Member 
States  approaches  as  to  the  capacity  of  the  offices  to  provide  training  or  to  support 
investigators in identifying assets. 

2.3 

Specific  problem  2:  Inefficient  management  procedures  discourage 
authorities from launching asset recovery procedures  

Once property is frozen, it should be adequately managed in order to preserve its value 
until a judge decides to confiscate it or to return it to the defendant in case of acquittal. 
Once  confiscated,  assets  also  have  to  be  well  managed  before  they  are  returned  to  the 
state  budget  or  used  for  compensating  victims  or  for  social  reuse.  Given  the  length  of 
criminal proceedings, which in complex criminal cases usually take at least five years42, 
assets can easily depreciate over time or deteriorate if not adequately managed.  

While assets such as real estate or artworks are less likely to lose value, moveable assets 
such  as  vehicles,  which  represent  a  very  large  part  of  frozen  assets,  are  more  likely  to 
depreciate. Similarly, volatile financial instruments such as cryptocurrencies also require 
specialised management to ensure they do not lose value over time, an issue often raised 
at  the  Asset  Recovery  Offices  Platform  meetings.  Particularly  challenging  is  the 
management of confiscated companies controlled by organised crime, which have to be 
run  by  the  authorities  in  a  way  that  they  continue  generating  profits  and  the  jobs  are 
preserved. 

Inadequate  management  discourages  asset  recovery  as  a  whole.    When  the  cost  to 
manage assets is higher than the value of the assets that will ultimately be recovered, the 

42 European Commission of the Efficiency of Justice (CEPEJ), Length of court proceedings in the member 
states  of  the  Council  of  Europe  based  on  the  case  law  of  the  European  Court  of  Human  Rights, 
CEPEJ(2018)26, p. 5 

16 

 
 
 
 
                                                           
authorities that are charged with taking the decision of freezing or confiscating assets are 
less inclined, or even reluctant, to take such decisions.  According to a study prepared for 
the  United  Nations,  “the  financial  burden  on  the  State  of  the  cost  of  preserving  assets 
[…] has the potential to bankrupt a nascent asset recovery programme”43. The perception 
of  this  issue  was  shared  by  the  respondents  to  the  public  consultation,  58%  of  which 
indicated  that  the  inadequate  management  of  criminal  assets  negatively  affects  asset 
recovery to a high or a very high extent. The inefficient management of assets also leads 
to  fewer  returns  in  the  disposal  phase,  with  fewer  or  no  criminal  assets  reverted  to 
victims, communities or Member States. 

Inefficient asset management further undermines the capacity of Member States to 
cooperate  with  each  other,  reducing  cross-border  incentives  to  freeze  assets  on 
behalf  of  other  Member  States.  Given  that  criminals  often  hold  assets  in  other 
jurisdictions,  cross-border  cooperation  is  of  essence  for  their  effective  management. 
However,  given  the  high  management  costs,  a  Member  State  with  inefficient 
management methods will be reluctant to manage freeze assets upon request of another 
Member  State.  The  inefficiencies  in  management  in  one  Member  State  become  thus  a 
disincentive  for  the  forwarding  of  confiscation  orders.  The  problem  is  of  particular 
relevance  in  those  Member  States  who  have  not  established  at  least  one  Asset 
Management Office with specialized competences for the management of property (AT, 
CY, DK, EE, FI, DE, EL, HU, LV, LT, LU, PL, SK, SI, and SE). 

Furthermore, asset management offices have reported challenges in the identification of 
their  counterparts  in  other  Member  States  to  coordinate  the  sale  of  assets,  which  can 
last  up  to  three  or  four  months  in  some  occasions44.  The  delays  in  identifying  cross-
border counterparts increase the time assets are to be held for management, increasing in 
turn management and storage costs. 

2.3.1  Driver: generic requirements of the Confiscation Directive, lack of specialisation 
of  authorities  managing  assets  and  insufficient  use  of  the  most  effective  management 
methods  

The inefficient management of assets is driven by the absence of clear requirements and 
guidance on effective and efficient management methods, and by the fact that managing 
authorities  lack  adequate  specialisation,  capacities  and  expertise,  particularly  on  the 
application of the most effective management methods. 

The  current  legal  framework  requires  Member  States  to  take  measures  to  ensure  the 
“adequate  management”  of  property  frozen  with  a  view  to  possible  subsequent 

43 United Nations Open-ended Intergovernmental Working  Group on Asset Recovery, Study prepared by 
the  Secretariat  on  effective  management  and  disposal  of  seized  and  confiscated  assets, 
CAC/COSP/WG.2/2017/CRP.1, 23 August 2017, p. 11 
44  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p. 104; Information gathered via meeting with the Contact Committee 
on 1-2 June 2021. 

17 

 
 
 
                                                           
confiscation,  including  the  possibility  to  sell  or  transfer  property  where  necessary45. 
However,  this  provision  does  not  provide  a  definition  on  what  adequate  management 
entails, and does not set obligations to achieve concrete effective management objectives. 
Similarly, Regulation (EU) 2018/1805 on mutual recognition of freezing and confiscation 
orders, while encouraging Member States to  consider establishing an office responsible 
for  the  management  of  frozen  property,  relies  on  national  laws  for  the  management  of 
property frozen in cross-border situations.  

Member  States  have  therefore  entrusted  different  and  sometimes  multiple  bodies  with 
management tasks and have developed different  sets of asset management measures.  In 
most cases, Member States have attributed asset management responsibilities to a wide 
range  of  authorities  such  as  prosecution  services,  courts,  bailiffs,  law  enforcement 
authorities, tax and custom authorities or local administrations46. These structures do not 
always have the necessary expertise, human, financial and technical resources and 
competences  to  ensure  the  efficient  management  of  assets,  which  often  means  that 
they  do  not  have  enough  resources  to  efficiently  manage  the  property  they  have  been 
mandated  to.  As  the  Confiscation  Directive  does  not  oblige  Member  States  to  adopt  a 
management set-up over another, only 13 Member States (BE, BG, CZ, IE, EL, ES, FR, 
HR,  IT,  LU,  NL,  PT,  RO)  have  attributed  management  tasks  to  entities  specialised  in 
handling criminal assets, i.e. Asset Management Offices (AMOs)47, in some cases along 
with  other  actors  depending  on  the  type  of  asset  or  confiscation  procedure.  Whilst  this 
flexibility  has  allowed  Member  States  to  develop  systems  tailored  to  national  realities, 
some  management  systems  achieve  very  different  degrees  of  effectiveness  and 
efficiency. This perception is shared by the respondents to the public consultation,  76% 
of  which  considered  the  lack  of  harmonised  rules  on  the  management  of  frozen  and 
confiscated assets a significant obstacle impacting to a high or very high extent effective 
management. 

Figure 5: System used to register frozen and/or confiscated assets48 

and 

asset 

recovery 

45 Article 10 (1) and (2) of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 
2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, 
OJ L 127, 29.4.2014, p. 39.  
46  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing, 
confiscation 
2021, 
HOME/2018/ISFP/FW/EVAL/0081  Country  Chapters;  European  Commission,  Directorate-General  for 
Migration and Home Affairs, Compliance assessment of measures of Member States to transpose Directive 
2014/42/EU  (“Confiscation  Directive”)  and  legal  consultancy  on  this  Directive,  Overall  Report,  2019, 
HOME/2017/ISFP/FW/LECO/0084. 
47  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and 
confiscation: Ensuring that crime does not pay, SWD COM/2020/217 final, p. 12  
48  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing, 
2021, 
confiscation 
HOME/2018/ISFP/FW/EVAL/0081, p. 96 

–  what  works,  what 

–  what  works,  what 

not  work, 

not  work, 

recovery 

asset 

does 

does 

and 

18 

 
 
 
                                                           
System used to register frozen and/or confiscated assets 
in the Member States

9%

33%

29%

5%

24%

A centralised system

A decentralised system

Do not know

No system is in place

Other system

Moreover, mechanisms of proven effectiveness for managing assets such as  pre-seizure 
planning49 or interlocutory sales50 are not sufficiently used.  

Pre-seizure  planning  is  a  widely  recognised  tool  to  effectively  manage  assets,  as  it 
entails an assessment of what property is most suitable for confiscation, and of how and 
when it could be frozen or confiscated. Through pre-seizure planning, authorities taking 
control of assets limit the risks that these might be managed at a loss, since assets could 
easily depreciate or even become a financial liability due to their high maintenance costs. 
Despite  the  fact  that  the  Camden  Asset  Recovery  Inter-Agency  Network  (CARIN) 
the  principle  of  pre-seizure  planning51, 
encourages 
investigative  and  prosecution  authorities  in  most  Member  States  do  not  assess  whether 
the  management  of  seized  assets  is  feasible  and  cost-effective  before  seizing  them52. 
Without such planning, considerable resources are wasted on preserving assets that have 
little  or  limited  value,  leading  to  ineffective  management  of  confiscated  assets  and 
overall discouragement of the use of asset recovery.  

jurisdictions 

implement 

to 

While the Confiscation Directive also requires Member States to allow for the selling or                         
transfer  of  frozen  property  prior  to  confiscation,  there  are  no  provisions  requiring 
Member States to use them nor a clear definition of interlocutory sales and the conditions 
under  which  it  should  be  used,  for  example  in  cases  when  the  asset  is  perishable  or 
rapidly depreciating, or when the storage or maintenance costs are disproportionate to the 
asset’s value. Consequently, while interlocutory sales are available in all but two Member 
States,  this  mechanism  is  not  applied  as  a  rule  across  the  EU,  despite  the  promising 

49 The practice of pre-seizure planning entails the assessment, before the issuing of a non-urgent freezing 
order, of the property which might be the object of such order, with the aim of evaluating what property to 
seize in the context of costs optimisation in the management phase of asset recovery.  For a description of 
what  pre-seizure  planning  is/comprises,  see  for  instance  United  Nations  Open-ended  Intergovernmental 
Working  Group  on  Asset  Recovery,  Study  prepared  by  the  Secretariat  on  effective  management  and 
disposal of seized and confiscated assets, CAC/COSP/WG.2/2017/CRP.1, 23 August 2017, p. 31 
50 Interlocutory sales refer to the selling or transfer of frozen property prior to confiscation. 
51 CARIN, CARIN 2018 Annual General Meeting, Warsaw Recommendations. 
52  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p. 98 

19 

 
 
 
 
                                                           
results  achieved  where  it  is  used.  For  example,  the  Netherlands  was  able  to  reduce  the 
cost of management of movable assets from € 23 million to € 9 million through a strategy 
of selling off assets when costs exceed the value of the property53. Moreover, cooperation 
concerning management of frozen assets is hampered by Member States that do not use 
interlocutory  sale  or  do  not  have    sufficient  experience  with  it,  since  it  discourages 
Member  States  to  recover  assets  on  behalf  of  (and  for  the  benefit  of)  another  Member 
State, given the high costs the former would incur.  

In conclusion, the generic requirements of the Confiscation Directive lead to a patchwork 
of management structures in the Member States, which in turn lead to various degrees of 
effectiveness and efficiency of management techniques, which negatively affect the asset 
recovery system both overall and in cross-border cases through discouraging the use of 
asset recovery and cross-border requests. 

2.4 

Specific  problem  3:  Existing  confiscation  tools  do  not  cover  all  high 
revenue-generating  criminal  markets  and  do  not  address  criminals’ 
complex modi operandi  

When  ordering  a  conviction,  judges  may  take  a  decision  to  confiscate  the  assets  of  the 
offender, which are the direct  proceed or the instrumentality of the specific offence for 
which  the  person  is  convicted  (standard  confiscation).  However,  criminals  often 
convert  those  proceeds  into  other  property,  and  mix  it  with  property  acquired  from 
legitimate  sources,  or  put  it  under  the  name  of  relatives  or  their  associates.  To  address 
this,  judicial  authorities  can  resort  to  mechanisms  such  as  value-based  confiscation, 
which allows for the confiscation of any other property of the offender that is equivalent 
in value to the proceeds or instrumentalities of the offence, or third-party confiscation, 
to recover the assets transferred by the offender to another person.  

However,  these  instruments  only  allow  for  the  confiscation  of  assets  linked  to  the 
concrete offence for which the person is convicted, while usually individuals involved in 
organised  crime  have  perpetrated  other  criminal  activities  over  a  longer  period.  For 
example, a court might be able to convict a drug trafficker for one specific cargo, but not 
for the trafficking activities over preceding years from which they also profited. In these 
cases, the court can confiscate other property beyond the direct proceeds of the crime in 
question, if the court concludes that property is derived from criminal conduct (extended 
confiscation).  

Moreover,  confiscation  can  be  ordered  in  the  absence  of  a  conviction  (non-conviction 
based  confiscation  or  NCBC).  This  can  happen  in  situations  where  a  conviction  is 
impossible  due  to  objective  impediments,  such  as  the  accused  being  gravely  ill  or 
absconding.  

53 United Nations Open-ended Intergovernmental Working  Group on Asset Recovery, Study prepared by 
the  Secretariat  on  effective  management  and  disposal  of  seized  and  confiscated  assets, 
CAC/COSP/WG.2/2017/CRP.1, 23 August 2017, p. 21 
20 

 
 
 
                                                           
Categories of confiscation measures in the Confiscation Directive 

Standard confiscation 

Value confiscation 

Standard  confiscation  refers  to  a  judicial  order 
concerning  property  related  to  a  specific  crime 
for which the owner has been convicted.  

The targeted assets are the direct proceed or the 
instrumentality of a crime, following a criminal 
conviction for that crime.  

Value confiscation refers to a confiscation measure 
targeting  property  of  equivalent  value  to  the 
proceeds  or  instrumentality  of  a  crime.  It  is 
employed  most  often  in  cases  where  criminals 
convert  proceeds  of  crime  into  other  property  to 
hide its illicit origin and disguise the audit trail. 

Third-party confiscation  

Extended confiscation 

Third-party  confiscation  refers  to  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 or her by the offender.  

It is employed most often when criminals transfer 
property  to  a  knowing  third  party  in  order  to 
maintain  its  enjoyment  without  being  the  legal 
owner,  thus  attempting  to  avoid  the  confiscation 
of such property in case of conviction. 

Extended confiscation concerns confiscation orders 
which  go  beyond  the  direct  proceeds  of  a  crime. 
The  order  follows  a  criminal  conviction,  targeting 
property  “beyond  the  direct  proceeds  of  the  crime 
for  which  the  offender  was  convicted,  where  the 
property seized is derived from criminal conduct.”54 
A  direct  link  between  the  property  and  the 
offence, such as in the case of standard confiscation 
measures, is not necessary if the court assesses that 
the  offender’s  property  was  nevertheless  derived 
from other unlawful conduct.  

Non-conviction based confiscation (NCBC) 

Non-conviction based confiscation refers to a confiscation measure taken in the absence of a conviction 
against  assets  of  illicit  origin.  In  the  case  of  Directive  2014/42/EU,  it  covers  cases  where  a  criminal 
conviction  is  not  possible  because  the  suspect  has  become  ill  or  fled  the  jurisdiction,  but  the  court  is 
nevertheless convinced in a criminal procedure that the assets are of criminal origin, and  a conviction 
would have been reached had it not been for the illness of absconding of the defendant.  

Despite the wide range of mechanisms available to judicial authorities, only one third of 
assets traced and frozen are ultimately taken away from the hands of criminals. In 
2019 authorities froze EUR 3 billion of estimated criminal assets, but only about EUR 1 
billion were confiscated in that same year55. 

Moreover, the most employed confiscation mechanism is standard confiscation, which – 
despite  only  allowing  for  the  confiscation  of  the  proceeds  directly  resulting  from  the 
offence for which the defendant  is  on trial,  and therefore failing to  capture proceeds  of 
previous crimes which are inherent in the context of organised crime  – represents more 
than  half  of  confiscation  orders  in  the  large  majority  of  Member  States56.  This  is 

54  Final  report on  operational  challenges  associated  with  asset  recovery,  FATF/RTMG(2021)17/REV2,  4 
June 2021. 
55  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016; see Annex 4, table 7. 
56 Stakeholders were consulted through a written questionnaire, with 11 Member States providing written 
responses.  According  to  four  of  them,  between  50%  and  75%  of  assets  are  confiscated  via  this  type  of 
21 

 
 
 
 
                                                           
remarkable  considering  that  assets  confiscated  through  extended  confiscation  –  a  tool 
adapted  to  organised  crime  groups  usually  operating  over  long  time  periods  –  only 
represent  less  than  30%  of  total  confiscated  assets,  while  non-conviction  based 
confiscation is, with the exception of a few Member States, less than 15%57. 

A  low  use  of  confiscation  methods  such  as  extended  and  the  limited  scope  of  non-
conviction based confiscation is an issue because standard confiscation fails to tackle the 
complex methods that criminal groups, and in particular its managerial layers, employ to 
cover their tracks and hide their assets. Criminals at the top of organised crime groups are 
often insulated from  criminal  liability, as they benefit from  profits generated by crimes 
they themselves do not commit but that are carried out by others under their command, or 
when different organised crime groups provide services for one another without directly 
engaging with the predicate offence. Since existing forms of confiscation target only the 
proceeds  of  criminals  for  which  there  is  enough  evidence  to  obtain  a  conviction,  the 
current  confiscation  frameworks  fails  to  tackle  illicit  assets  of  criminals  able  to  avoid 
criminal investigation and prosecution.  

The fact that standard confiscation targets only the direct proceeds or instrumentalities of 
the specific offence for which the person is convicted, and extended confiscation – while 
allowing for the confiscation of other assets than those resulting from a specific crime – 
is  still  subject  to  a  prior  conviction  leads  to  a  situation  where  illicit  assets  of  criminals 
able 
investigation  and  prosecution  will  escape  confiscation. 
Accordingly, the existing approaches are not able to “target the property of persons at the 
very  top  of  the  chain  against  whom  enforcement  authorities  may  struggle  to  gather 
sufficient evidence to bring a criminal prosecution”58, thus failing to address a significant 
portion of criminal profits in the hands of the managerial levels of organised crime.  

to  avoid  criminal 

Furthermore,  one  of  the  main  issues  affecting  confiscation  in  organised  crime  cases  is 
proving the scope of assets that stem from criminal operations that went on for years. It is 
unlikely  for  such  an  operation  to  maintain  organised  records  or  bookkeeping  exposing 
the full sum of assets amassed over the years and that evidence can be provided for each 
and  every  individual  criminal  act.  Hence,  the  confiscation  mechanisms  available  to  the 
majority  of  Member  States  are  not  fit  to  effectively  disrupt  criminal  activities,  and 
even  less  so  tackle  the  complex  nature  of  organised  crime,  as  they  are  not  suited  to 
deprive  criminals  who  have  successfully  managed  to  hide  the  necessary  evidence  that 
would link them to the offence from their profits. 

confiscation.  According to the same number of stakeholders (four out of 11), the rate  is even higher and 
ranges between 75% and 100%. Two stakeholder referred to much lower rates, between 0% to 15 and two 
stakeholders  had  no  data.  Questionnaire  on  the  Contact  Committee’s  experience  with  asset  recovery  – 
circulated to all Contact Committee members in July 2021.  
57 Ibid. 
58 Council of Europe study “The Use of Non-Conviction Based Seizure and Confiscation”, October 2020, p. 
16 

22 

 
 
 
                                                                                                                                                                            
2.4.1 Driver: narrow scope of the Confiscation Directive  

The  limited  capacity  of  Member  States’  confiscation  mechanisms  derives  from  the 
narrow scope of the existing legal tools (both in terms of offences covered and types of 
confiscation available) and from a lack of sufficient awareness and willingness of judicial 
authorities to use others beyond standard confiscation.  

Limited scope in terms of offences covered 

The  scope  of  existing  confiscation  measures  varies  greatly  in  terms  of  the  number  of 
minimum offences that EU legislation requires them to cover. Standard confiscation is 
the  most  widely  used  confiscation  tool  because,  since  it  stems  from  a  legal  instrument 
preceding  the  Confiscation  Directive  –  Framework  Decision  2005/212/JHA59  –  it  is 
applicable  to  all  crimes  having  a  penalty  of  over  one  year.  The  majority  of  Member 
States  thus  follow  an  ‘all  crimes’  approach,  allowing  for  the  imposition  of  standard 
conviction-based  confiscation  to  a  larger  number  of  crime  areas  than  the  confiscation 
tools foreseen under the Confiscation Directive. 

The  same  scope  is  however  not  matched  in  confiscation  tools  covered  by  the 
Confiscation Directive, particularly  value based, third party confiscation  and NCBC, 
which  are  better  placed  to  address  modern  organised  crime,  where  flexible  yet 
hierarchical  groups  distance  themselves  from  proceeds  directly  stemming  from  crimes. 
These  post-Lisbon  confiscation  mechanisms  have  nonetheless  a  narrower  scope60  than 
standard  confiscation  as  foreseen  by  the  2005  Framework  Decision,  with  the 
Confiscation  Directive  based  on  Article  83  (1)  applying  to  specific  criminal  offences 
related  to  some,  but  not  all,  of  the  so-called  ‘eurocrimes’61.  The  minimum  scope  of 
extended confiscation is even further limited to a smaller set of offences: corruption, the 
participation  in  a  criminal  organisation,  child-pornography,  and  IT  crimes.  For  other 
crimes  in  scope  of  the  Confiscation  Directive  but  not  explicitly  listed  in  the  relevant 
article  on  extended  confiscation,  extended  confiscation  is  only  applicable  in  relation  to 
offences punishable by a custodial sentence of at least four years62. 

Table 2: crimes covered in the scope of Directive 2014/42/EU 

59  Council  Framework  Decision  2005/212/JHA  of  24  February  2005  on  Confiscation  of  Crime-Related 
Proceeds,  Instrumentalities  and  Property,  OJ  L  68,  15.3.2005.  This  Framework  Decision,  after  being 
partially replaced by the Confiscation Directive, only applies in respect of standard confiscation  with the 
exception  of  Denmark,  which  is  not  bound  by  the  Confiscation  Directive  and  for  which  the  other 
provisions of the 2005 Framework Decision apply (notably the provisions on extended confiscation). 
60 The scope of Directive 2014/42/EU is defined by reference to certain offences harmonised at EU level in 
relation to corruption, counterfeiting of the euro, credit card fraud, money laundering, terrorism, illicit drug 
trafficking, organised crime, trafficking in human beings, sexual exploitation of children, and cyberattacks. 
The Confiscation Directive further applies to fraud to the Union's financial interests. 
61  ‘Eurocrimes’  are  particularly  serious  crimes  with  a  cross-border  dimension:  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.  
62 For a visual overview of crimes covered by the current EU acquis on confiscation, see Annex 5. 

23 

 
 
 
                                                           
Provisions of 
Directive 
2014/42/EU 

Instruments Covered  

Convention drawn up on the basis of Article K.3(2)(c) of the Treaty 
on European Union on the fight against  
corruption involving officials of the European Communities or 
officials of the Member States of the European Union (1) 
(‘Convention on the fight against corruption involving officials’) 

Criminal Offences 
covered  

Corruption  

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

Counterfeiting  

Council Framework Decision 2001/413/JHA of 28 May 2001 on 
combating fraud and counterfeiting on non-cash means of payment 

Fraud  
Counterfeiting  

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

Money Laundering  

Council Framework Decision 2002/475/JHA of 13 June 2002 on 
combating terrorism 

Terrorism  

Article 3 
Directive 
2014/42/EU  

Council Framework Decision 2003/568/JHA of 22 July 2003 on 
combating corruption in the private sector 

Corruption  

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

Illicit drug trafficking  

Council Framework Decision 2008/841/JHA of 24 October 2008 on 
the fight against organised crime 

Participation in a 
criminal organisation  

Directive 2011/36/EU of the European Parliament and of the Council 
of 5 April 2011 on preventing and combating trafficking in human 
beings and protecting its victims, and replacing Council Framework 
Decision 2002/629/JHA (6 

Trafficking in human 
beings  

Directive 2011/93/EU of the European Parliament and of the Council 
of 13 December 2011 on combating the sexual abuse and sexual 
exploitation of children and child pornography, and replacing Council 
Framework Decision 2004/68/JHA 

Sexual abuse and 
exploitation of children  

Directive 2013/40/EU of the European Parliament and of the Council 
of 12 August 2013 on attacks against  
information systems and replacing Council Framework Decision 
2005/222/JHA 

Cyberattacks 

Article 5 
Directive 
2014/42/EU 

Council Framework Decision 2003/568/JHA of 22 July 2003 on 
combating corruption in the private sector 

Active and Passive 
Corruption in the private 
sector  

24 

 
 
 
Provisions of 
Directive 
2014/42/EU 

(extended 
confiscation) 

Instruments Covered  

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

Criminal Offences 
covered  

Corruption involving 
officials  

Council Framework Decision 2008/841/JHA of 24 October 2008 on 
the fight against organised crime 

Participation in a 
criminal organisation  

Directive 2011/93/EU of the European Parliament and of the Council 
of 13 December 2011 on combating the sexual abuse and sexual 
exploitation of children and child pornography, and replacing Council 
Framework Decision 2004/68/JHA 

Sexual abuse and 
exploitation of children  

Directive 2013/40/EU of the European Parliament and of the Council 
of 12 August 2013 on attacks against  
information systems and replacing Council Framework Decision 
2005/222/JHA 

Illegal system 
interference and illegal 
data interference  

Consequently, the confiscation tools foreseen by the Confiscation Directive do not cover 
all  revenue-generating  criminal  markets  where  organised  crime  is  active;  notably, 
they  do  not  cover  firearms  trafficking,  environmental  crime,  migrants  smuggling, 
contract  killing  (including  murder,  grievous  bodily  harm  and  kidnapping),  organ 
trafficking,  organised  armed  robbery, 
in  cultural  goods,  swindling, 
racketeering  and  extortion,  counterfeiting,  documents  forgery,  forgery  of  means  of 
payment,  trafficking  of  nuclear  materials  and  of  illicit  hormonal  substances,  illicit 
tobacco trade and trafficking of stolen vehicles. Even though the aggregate value of the 
revenues  generated  from  these  crimes  cannot  be  defined  with  precision,  cautious 
estimates would place this value in at least EUR 50 billion per annum outside the scope 
of  the  Confiscation  Directive63.  The  current  scope  of  the  Confiscation  Directive  thus 
fails  to  capture  a  wide  area  of  criminal  profits  generating  from  offences  organised 
crime is engaged with. 

trafficking 

Stakeholders  from  law  enforcement,  prosecution  and  public  authorities  have  identified 
the limited scope of application of the Confiscation Directive, in particular for extended 
confiscation and NCBC, as one of the underlying reasons behind the low rates of freezing 
and  confiscation64.  Stakeholders  from  Member  States  have  referred  in  particular  to  the 
necessity of being able to confiscated profits stemming from environmental crimes65 as 

63 See Annex 4 on analytical methods. 
64  Information  gathered  via  meeting  with  the  Contact  Committee  on  1-2  June  2021.  According  to  six 
representatives,  this  is  the  greatest  challenge  for  freezing  and  confiscation,  whereas  four  representatives 
marked it as the second, four as the third and two as the fourth greatest challenge for ensuring high rate of 
freezing and confiscation 
65 As proposed by the Commission in its proposal to revise the Environmental Crime Directive: Proposal 
for a Directive of the European Parliament and of the Council on the protection of the environment through 
criminal law and replacing Directive 2008/99/EC, COM(2021) 851 final, 15.12.2021. Information gathered 
at the Contact Committee Meeting held on 1-2 June 2021.  

25 

 
 
 
 
                                                           
well  as  for  instance  firearms  trafficking,  illicit  tobacco  trade,  organised  property  crime 
and  cyber  fraud.  As  modern  organised  crime  is  more  and  more  poly-criminal  and 
engages in a multitude of criminal areas66, it is important that confiscation measures can 
counter its reach. 

In  conclusion,  the  narrow  scope  of  the  Confiscation  Directive  does  not  match  with  the 
poly-criminal nature of organised crime groups by requiring confiscation of one a minor 
fraction of criminal activities organised crime groups are engaged with. The absence  of 
confiscation  rules  at  EU  level  that  would  cover  crimes  such  as  firearms  trafficking, 
migrant smuggling, illicit tobacco trade, or trafficking in counterfeit products, organised 
property crime or cyber fraud also affects the effectiveness of EU policies, including the 
effective implementation of harmonised rules in these areas67. Furthermore, the absence 
of  confiscation  measures  at  EU  level  for  certain  crimes  is  at  odds  with  international 
obligations.68  

Limited scope of existing confiscation mechanisms 

The  Confiscation  Directive  does  not  envisage  for  Member  States  to  put  in  place 
confiscation  mechanisms  enabling  authorities  to  confiscate  assets  where  top-level 
criminals  have successfully destroyed the evidence that would directly link them to the 
crime, or when they have hid the illicit origin of the property.  

To  address  these  challenges,  some  Member  States  have  introduced  alleviations  in  the 
burden of proof for confiscation, either shifting it to the defendant – requiring him or her 
to  justify  the  origin  of  the  property  –  or  applying  the  civil  standard  of  balance  of 
probabilities  in  confiscation  cases.  However,  to  the  extent  that  these  confiscation 
measures are grounded in civil proceedings, they entail lower safeguards than in criminal 
procedures  and  are  not  covered  by  the  EU  Regulation  on  mutual  recognition  of 
confiscation  orders69.  Other  Member  States  have  developed  confiscation  systems 
grounded  in  criminal  proceedings,  with  corresponding  safeguards,  that  enable 
authorities to confiscate assets of suspects or offenders for which the court is sufficiently 
convinced  that  the  suspect  belongs  to  organised  criminal  groups  or  is  involved  in 
particularly serious crimes and that  the  assets are the proceeds of crime, since no legal 
origin can be demonstrated. 

These systems have proven their effectiveness. In Italy, authorities are able to confiscate 
assets  in  90%  of  judicial  proceedings  through  these  mechanisms,  compared  to  50% 

66  Europol,  European  Union  Serious  and  Organised  Crime  Threat  Assessment  “A  Corrupting  Influence: 
The infiltration and undermining of Europe’s economy and society by organised crimes” (2021), p. 19 
67 See for instance the 2020 Action plan against Firearms trafficking, the 2021 Action Plan against Migrant 
Smuggling,  which stresses the importance of effective  asset freezing  measures, and the  EU Action Plans 
against Cigarette Smuggling.  
68  See  for  instance:  International  instruments  to  which  the  EU  is  a  party  require  the  availability  of 
confiscation measures e.g. for corruption offences as defined in Article 8 of UNTOC (which goes beyond 
the crime listed currently in article 3 of the Confiscation Directive). 
69  Regulation  2018/1805  “does  not  apply  to  freezing  orders  and  confiscation  orders  issued  within  the 
framework of proceedings in civil or administrative matters.” (Article 1(4) 4). 

26 

 
 
 
                                                           
through  the  traditional  confiscation  mechanisms70.  Since  Germany  established  such  a 
model in 2017, it has been put in practice for a considerable number of cases: 5,100 in 
2018  and  5,800  in  2019,  which  is  a  significant  figure  considering  the  novelty  of  the 
model71.  Latvia,  on  its  part,  is  able  to  confiscate  25  times  more  through  confiscation 
mechanisms not linked to a conviction than through standard forms of confiscation (EUR 
105.4 million vs. EUR 4.2 million in a period of five years)72.  

Cross-cutting driver: absence of a strategic approach and of commitment to asset 

2.5 
recovery by all relevant actors. 

In  addition  to  the  drivers  contributing  to  each  of  the  specific  problems,  an  overall 
challenge affecting the different phases and the effectiveness of the confiscation system 
as  a  whole  is  the  absence  of  a  strategic  approach  by  Member  States  towards  asset 
recovery. Even though 56% of respondents to the public consultation considered that the 
Confiscation  Directive  has  contributed  to  fostering  a  culture  of  asset  recovery, 
confiscation  is  not  always  pursued  as  a  key  priority,  according  to  the  in-depth 
assessments of Member States’ frameworks carried out by FATF and Moneyval73. 

While  all  the  20  EU  Member  States  that  have  been  subject  to  FATF/Moneyval  fourth 
round of mutual evaluations were considered as fully or largely compliant from a legal 
perspective  with  the  FATF  recommendations  (which  are  less  detailed  than  the 
Confiscation  Directive),  the  picture  is  less  encouraging  when  it  comes  to  the 
effectiveness of the asset recovery systems. Only four EU Member States (CZ, ES, IT, 
and  SE)  have  proven  to  count  on  asset  recovery  systems  with  a  substantial  level  of 
effectiveness.  The  vast  majority  (AT,  BE,  CY,  DK,  EL,  FI,  HR,  IE,  LU,  LV,  LT,  PT) 
have moderately effective systems and four others are ranked with low effectiveness.  

The  four  Member  States  with  a  substantial  level  of  effectiveness  are  generally 
characterised  by  a  strong  commitment  from  policy  makers  to  a  defined  set  of  goals 
reflected  in  strategic  documents.  Such  a  common  approach  to  asset  recovery  is  also 
reflected at operational level, with authorities and officers on the ground well equipped 
and aware of the importance of making crime unprofitable as the most effective tool to 
disrupt criminal organisations, usually on the basis of written guidelines and an adequate 
training offer. 

and 

asset 

recovery 

–  what  works,  what 

70  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing, 
confiscation 
2021, 
HOME/2018/ISFP/FW/EVAL/0081, p. 92 
71 Ibid., p. 71 
72  Moneyval,  Latvia’s  Mutual  Evaluation  Report,  2019.  This  figure  refers  to  confiscation  for  money 
laundering offences, 2013-2017. 
73 Compliance with FATF standards and assessment of effectiveness of anti-money laundering frameworks 
is  verified  by  the  Financial  Action  Task  Force  (FATF)  for  14  Member  States  and  by  Moneyval  for  13 
Member  States.  20  Member  States  have  been  assessed  in  the  current  round  of  mutual  evaluations.  The 
evaluations are available at:  
https://www.fatf-gafi.org/publications/mutualevaluations/?hf=10&b=0&s=desc(fatf_releasedate).  

not  work, 

does 

27 

 
 
 
                                                           
For  the  other  EU  Member  States,  in  many  cases  the  mutual  evaluations  show  that 
confiscation is not always considered as a key priority of the criminal justice system or 
have not set out specific objectives  at  a strategic level  underpinning their confiscation 
policies. In other cases, the policy commitments are not followed in practice, especially 
in relation to the systematic undertaking financial investigations by prosecutorial and law 
enforcement structures,  which do not  count  with  the skills,  knowledge and guidance or 
incentives  to  take  a  proactive  approach.  Asset  tracing  being  the  first  step  in  the  asset 
recovery chain, this affects the effectiveness of the overall system. 

The  absence  of  shared  strategic  objectives  and  operational  commitment  by  all 
parties  is  of  particular  concern  given  the  wide  array  of  actors  involved  in  the  asset 
recovery process. Responsibilities are spread among different bodies, many of which 
do  not  have  as  their  primary  responsibility  the  recovery  of  criminal  assets.  Against 
conflicting priorities, and given the complexity and hurdles of asset recovery processes, 
those authorities are not always inclined to prioritise the financial dimension of crimes. 
Moreover,  the  mutual  evaluations  provide  few  examples  of  inter-agency  cooperation 
structures  in  Member  States,  and  several  instances  where  different  authorities  are  not 
aware of the role or even the existence of actors such as the Asset Recovery Offices, an 
issue highlighted also in the study underpinning this Impact Assessment.  

A  lack  of  effective  coordination  at  national  level  can  lead  to  duplicating  efforts,  or 
conversely  to  situations  where  assets  are  falling  through  the  cracks  due  to  a  lack  of 
information  sharing.  The  lack  of  a  coherent  approach  by  all  actors  in  relation  to  asset 
recovery is also reflected in the  absence of comprehensive and comparable statistics 
on  the  number  and  value  of  assets  frozen  and  confiscated,  a  problem  that  arises  in  all 
Member States to varying degrees. The Confiscation Directive requires Member States to 
“make  reasonable  efforts”74  to  collect  a  minimum  set  of  statistics.  Despite  this,  asset 
recovery data are not systematically collected at a central level. In many Member States, 
individual agencies or authorities collect certain statistical data, but without guidance at 
national  level  on  the  methodological  aspects  of  data  collection,  it  results  in  diverging 
datasets and a scant level of completeness and quality of data. Without a clear picture 
of the results in each phase of the asset recovery process and of the overall system, it is 
difficult  to  identify  and  bring  political  attention  to  the  shortcomings  and  necessary 
actions to improve the effectiveness of the asset recovery system. 

74 Recital 37: Member States should endeavour to collect data for certain statistics at a central level, with a 
view  to  sending  them  to  the  Commission.  This  means  that  the  Member  States  should  make  reasonable 
efforts  to  collect  the  data  concerned.  It  does  not  mean,  however,  that  the  Member  States  are  under  an 
obligation  to  achieve  the  result  of  collecting  the  data  where  there  is  a  disproportionate  administrative 
burden or when there are high costs for the Member State concerned. 

28 

 
 
 
                                                           
3. WHY SHOULD THE EU ACT? 

3.1   Legal basis 

The ARO Council Decision is  based on Article 30(1)(a)  and  (b)  TEU (now Article 87 
TFEU) and Article 34(2)(c) TEU, whilst  the Confiscation Directive is  based on Article 
82(2)  and  83(1)  TFEU.  These  articles  under  the  TFEU  are  relevant  for  the  envisaged 
revision of these legal acts and the measures identified in the different options. 

In addition, measures aiming at the extension of the scope of the confiscation measures to 
crimes  ares  other  than  ‘eurocrimes’  (covered  by  Article  83(1))  would  need  to  comply 
with the relevant requirements of Article 83(2). 

The  combination  of  these  legal  bases  (Articles  82,  83  and  87  TFEU)  allows  for 
harmonising  measures  on  freezing,  confiscation  and  management  of  illicit  assets, 
measures that directly facilitate cross-border cooperation as well as other measures that 
govern  Member  States’  internal  procedures    to  the  extent  necessary  to  ensure  the 
effective  implementation  of  asset  recovery  and  confiscation  measures  while  also 
contributing to cross border cooperation.  

3.2 

Subsidiarity 

Under  Article  5(3)  TEU,  the  Union,  in  areas  which  do  not  fall  within  its  exclusive 
competence,  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. Organised  criminals  transfer 
and spread their illicit property  across multiple jurisdictions, hampering the capacity of 
competent  authorities  to  trace,  freeze  and  confiscate  these  assets.  Cross-border 
cooperation is therefore crucial for the effective recovery of criminal assets. This cross-
border  dimension  of  organised  crime  and  the  criminal  organisations’  activities  and 
investements in more than one country justify the need for European action.  

Individual  efforts of Member States  against organised crime’s activities are insufficient 
as criminals take advantage of the benefits of the EU’s internal market and of the speed 
of  the  financial  system,  as  well  as  of  organised  crime’s  underground  parallel  financial 
system. According to Europol, 80% of organised crime groups in the EU are highly poly-
criminal and active across borders, with 7 out of 10 active in more than 3 countries and 
65%  of  organised  crime  groups  being  composed  of  multiple  nationalities75.  As 
highlighted  in  the  Evaluation,  law  enforcement  authorities  and  representatives  of  the 
Confiscation  Directive  Contact  Committee  agree  that  this  highly  international  crime 
picture  is  best  tackled  at  EU  level.  97%  of  consulted  stakeholders  in  the  public 
consultation consider cross-border cooperation essential in the identification of criminal 

75  Europol,  European  Union  Serious  and  Organised  Crime  Threat  Assessment  “A  Corrupting  Influence: 
The infiltration and undermining of Europe’s economy and society by organised crimes” (2021), p. 19 

29 

 
 
 
                                                           
assets and 88% believe it would be harder to freeze and confiscate the proceeds of crime 
without EU intervention.  

The  penetration  of  organised  crime  into  the  economy  of  one  Member  State  affects  the 
functioning  of  the  whole  EU  Internal  Market,  with  criminals  reportedly  targeting 
Member  States  with  weaker  asset  recovery  systems76.  Organised  crime  groups  often 
resort to intimidation and corruption of public officials, thus altering competition and the 
smooth  functioning  of  the  Internal  Market.  The  resulting  loss  of  revenues  affects  both 
national and the EU’s financial interests, even when it takes place in only one Member 
State.  The  recovery  of  criminal  profits  needs  to  therefore  be  addressed  at  EU  level  in 
order to address the cross-border threat of organised crime. 

4. OBJECTIVES: WHAT IS TO BE ACHIEVED? 

4.1  General objectives 

The general objective is to deprive criminals and in particular organised crime groups of 
their illicit property in order to disrupt the capacity of organised crime groups to maintain 
and  further  expand  their  criminal  activities,  while  compensating  victims  and  repairing 
damage done to society more generally. 

4.2 

Specific objectives 

(1) Strengthen asset tracing capabilities  

Strengthening the capabilities of the competent  authorities to  identify  and trace assets 
aims at ensuring that competent authorities have the competences and resources, as well 
as  sufficient  access  to  the  necessary  information,  to  facilitate  asset  tracing  and 
information exchanges in an effective and swift manner, in particular in a cross border 
context.  

(2) Ensure efficient asset management  

Ensuring  efficient  asset  management  aims  at  ensuring  that  Member  States  have  the 
capacity  to  manage  frozen  and  confiscated  asset  so  that  management  costs  remain 
below  the  benefits  of  asset  recovery,  and  at  ensuring  that  the  value  of  assets  is 
safeguarded  for  further  use,  thereby  increasing  incentives  to  carry  out  asset  recovery 
investigations and adopt freezing/confiscation decisions. 

(3) Strengthen confiscation capabilities  

The  objective  to  strengthen  confiscation  capabilities  aims  at  enabling  authorities  to 
capture  all  relevant  criminal  activities,  in  particular  those  typically  carried  out  by 
organised crime groups, and to confiscate all relevant assets, in particular the property 

76 Meeting with Eurojust experts in June 2016, quoted from 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’, SWD(2016) 468 final. 

30 

 
 
 
                                                           
held  or  controlled  by  those  orchestrating  criminal  activities.  Achieving  this  objective 
would contribute to the overall aim of disrupting organised crime structures, groups and 
networks, going beyond the mere sanctioning of individual crimes. 

(4) Improve the overall efficiency of the asset recovery system 

This  objective  aims  at  increasing  the  cooperation  between  the  wide  range  of  actors 
involved in the asset recovery phases, promoting a more strategic approach in relation to 
asset recovery and improving data collection and monitoring of developments, trends and 
progress, so as to ensure that all actors prioritise asset recovery and work in a coordinated 
manner. 

4.3  How do the objectives relate to the sustainable development goals? 

The  objectives  of  this  policy  initiative  relate  to  a  number  of  sustainable  development 
goals. Countering organised crime’s profits primarily contributes to goals of (16), peace, 
justice,  and  strong  institutions  and  (8),  decent  work  and  economic  growth  through 
countering organised crime’s infiltration into the legal economy.  

5. WHAT ARE THE AVAILABLE POLICY OPTIONS? 

 5.1   Baseline scenario: how will the problem evolve? 

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. 

While  the  current  framework  would  remain  untouched  beyond  further  enforcement 
measures, there are a number of legislative and policy initiatives that would impact the 
work of Asset Recovery Offices and of authorities in charge of freezing and confiscation 
decisions. The application of Regulation (EU) 2018/1805 on the mutual recognition of 
freezing  and  confiscation  orders  will  lead  to  greater  execution  by  competent  national 
authorities of freezing and confiscation orders in cross-border cases. However, while the 
Regulation  sets  the means for increased recognition  of freezing and confiscation orders 
across  the  EU,  the  number  of  orders  to  be  recognised  is  dependent  on  the  capacity  of 
authorities to identify assets, the confiscation instruments available to judicial authorities 
in  every  Member  State,  and  their  willingness  to  apply  them.  All  these  are  areas  where 
this Impact Assessment has identified significant deficiencies.  

With  the  entry  into  force  of  Directive  (EU)  2019/115377  on  access  to  financial 
information on 1st August 2021, law enforcement authorities, including Asset Recovery 
Offices,  soon  should  have  access  to  bank  account  information  once  all  Member  States 

77 Directive (EU) 2019/1153 of the European Parliament and of the Council of 20 June 2019 laying down 
rules  facilitating the  use of financial and other information for the prevention, detection, investigation or 
prosecution  of  certain  criminal  offences,  and  repealing  Council  Decision  2000/642/JHA,  OJ  L  186, 
11.7.2019, p. 122.  

31 

 
 
 
                                                           
will  have  transposed  the  Directive.  Once  co-legislators  adopt  the  recent  Commission 
proposal  to  amend  Directive  (EU)  2019/115378,  access  could  include  bank  account 
information 
to  an 
interconnected bank account registries system across the EU. However this covers only 
one of the relevant databases. 

in  other  Member  States,  granting 

law  enforcement  access 

The Anti-Money Laundering package of July 202179, once adopted, would facilitate a 
more  effective  detection  of  suspicious  transactions  and  activities  and  increased 
dissemination of financial analysis by Financial Intelligence Units. This would increase 
the possibilities for law enforcement authorities to launch new investigations but, without 
prioritisation  as  well  as  the  necessary  resources  and  powers  on  the  part  of  competence 
authorities  responsible  for  tracing,  freezing  and  confiscating  assets,  it  is  likely  that 
authorities  will  not  able  to  follow  up  on  all  the  information  disseminated  by  Financial 
Intelligence Units in an effective manner. 

Despite  progress  in  these  areas,  under  the  current  framework,  the  problems  identified 
would remain to a large extent. Financial investigations would continue to  be carried 
out  in  a  non-systematic  way  in  most  Member  States  and  be  hampered  by  lack  of 
resources and prioritisation. Asset Recovery Offices would continue to gradually increase 
their  cooperation,  albeit  hindered  to  the  current  limitations,  including  the  lack  of 
resources and insufficient access to databases or to SIENA. The exchanges in the Asset 
Recovery  Offices  platform  meetings  could  lead  to  some  incorporation  of  best  practices 
by  some  Member  States.  As  regards  asset  management,  the  number  of  Asset 
Management  Offices  could  slightly  increase,  with  one  Member  State  already  having 
foreseen  its  creation,  as  so  would  the  use  of  instruments  such  as  interlocutory  sales, 
which another Member  State is  planning to  facilitate80. Moreover, it is foreseeable that 
some  Member  States,  following  a  2018  Resolution  of  the  Council  of  Europe 
Parliamentary  Assembly  inviting  Member  States  to  develop  confiscation  models  that 
facilitate  the  confiscation  of  illegal  assets81,  would  develop  new  confiscation  models 
adapted  to  the  complex  nature  of  organised  crime,  an  issue  which  is  already  being 
considered in one Member State where a process to review its asset recovery framework 
has been launched.  

These  improvements  that  may  be  expected  in  a  limited  number  of  Member  States, 
however, would not represent the significant change which is required to ensure an asset 
recovery system across the EU that is able to effectively tackle the growing complexity 
and  scale  of  criminal  finances,  especially  in  view  of  the  evolution  of  the  threat  from 

78  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Directive  (EU) 
2019/1153  of  the  European  Parliament  and  of  the  Council,  as  regards  access  of  competent  authorities  to 
centralised  bank  account  registries  through  the  single  access  point,  https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52021PC0429, Brussels, 20.7.2021.  
79  Available  at  https://ec.europa.eu/info/publications/210720-anti-money-laundering-countering-financing-
terrorism_en. 
80 Information gathered during the Asset Recovery Offices Platform meeting of 25th-26th June 2021. 
81 Council of Europe Parliamentary Assembly Resolution 2218 (2018), 26th April 2018. 

32 

 
 
 
                                                           
organised  crime  and  its  transnational  nature.  In  fact,  the  status  quo  option  would  not 
allow  authorities  to  catch  up  with  the  likely  increasing  volume  of  assets  owned  or 
controlled  by  criminal  organisations.  The  economic  downturn  produced  by  the 
pandemic  creates  new  business  opportunities  for  criminal  groups,  including  by 
fraudulently  benefitting  public  funds  aimed  at  supporting  economic  recovery,  and  for 
infiltrating  the  economy  and  the  institutions.  In  the  current  economic  context,  and 
organised  crime  is  expected  to  take  advantage  of  the  weak  financial  situation  in  many 
companies “to launder money through dormant  companies, buy out financially affected 
cash-intensive businesses, or invest in property in the construction sector”82. This would 
allow criminal groups to launder their proceeds while maximising their financial benefits, 
and to use the legal structures under their control to further their illicit activities.  

Against this bleak outlook, it is expected that the slow increase of the amounts frozen 
and  confiscated  that  could  be  achieved  through  the  application  of  existing  or  ongoing 
measures  would  not  match  the  foreseable  ever-greater  profits  of  criminal  groups. 
When  asked  about  how  the  criminal  finances  landscape  will  develop  in  the  EU  in  the 
next  5-10  years  without  further  EU  intervention,  66%  of  the  respondents  to  the  public 
consultation agreed it would worsen and that the current legal framework would not be 
sufficient  to  retrieve  criminal  assets.  Whilst  awareness  raising  and  recent  legislative 
instruments  will  have  a  mitigating  impact  on  the  rates  of  criminal  profits,  the  existing 
freezing and confiscation measures will not  allow to  bridge the  gap between  recovered 
assets  and  criminal  profits  in  the  foreseeable  future,  thus  failing  to  ensure  that  asset 
recovery is an effective deterrent of criminal activity. 

5.2 

Description of the policy options 

The following table summarises the different options for each of the specific objectives.  

Table 3: Options table 

Policy option 1 

Policy option 2 

Tracing:  increase  the  exchange  of  good  practice  and 
develop  EU  guidance  complemented  by  training  by 
Europol  and  CEPOL  on  asset 
financial 
investigations, and information exchange. 

tracing, 

Management:  increase  the  exchange  of  good  practice 
and develop  training  and  guidance on  asset  management 
methods. 

Confiscation:  exchange  of  good  practices,  and  develop 
EU  guidance complemented by  training  by  Eurojust  and 
European Judicial Training Network on confiscation. 

Tracing:  requiring  Member  States  to  develop  a  national 
plan  on  asset  recovery,  covering  tracing  and  financial 
investigations;  strengthening  Asset  Recovery  Offices 
powers  to  include  urgent  freezing,  investigative  powers, 
access to relevant databases, and SIENA. 

Management:  establishing  contact  points  to  facilitate 
cooperation  between  management  authorities  in  different 
Member  States,  setting  out  general  principles  for  asset 
management,  and  require  that  all  competent  authorities 
have the necessary resources to carry out their tasks.  

Strategic  approach:  increase  the  exchange  of  good 

Confiscation:  extension  of  the  general  scope  of  all 
confiscation  measures  to  include  all  ‘eurocrimes’,  and 

82  Europol,  European  Union  Serious  and  Organised  Crime  Threat  Assessment  “A  Corrupting  Influence: 
The infiltration and undermining of Europe’s economy and society by organised crimes” (2021), p. 95 

33 

 
 
 
                                                           
practice  and  develop  EU  guidance  on 
increasing 
cooperation  between  the  different  actors  responsible  for 
the different phases of the asset recovery process (tracing, 
freezing, management, confiscation, disposal) and on data 
collection methodology. 

making  non-conviction  based  confiscation  available  in 
cases of death of the defendant.  

Strategic  approach:  establishing  a  national  strategy  on 
asset recovery covering all its phases, and setting up more 
comprehensive  requirements  on  the  collection  of  statistics 
on asset recovery at central level. 

Policy option 3 

Policy Option 4  

Tracing: in addition to the measures foreseen in Option 2 
+ introducing the obligation for the systematic launch of 
financial  investigations  for  set  organised-crime  crimes, 
and  detailing  the  requirements  for  Asset  Recovery 
Offices information exchanges. 

Management:  in  addition  to  the  measures  foreseen  in 
Option  2  +  establishing  specialised  Asset  Management 
Offices  to  manage  assets  or  to  support  and  coordinate 
decentralised  management  authorities.  Ensuring 
that 
Member  States  conduct  pre-seizure  planning  and 
interlocutory sales. 

Confiscation:  extension  of  the  general  scope  of  all 
confiscation  measures,  to  include  the  crimes  covered  by 
Regulation  (EU)  2018/1805.  In  addition  to  the  existing 
cases of illness and absconding, allowing non-conviction 
based  confiscation  in  cases  of  death,  amnesty,  immunity 
of  the  defendant,  or  because  of  expiration  of  statute. 
Introduction  of  a  new  confiscation  model  (unexplained 
wealth linked to criminal activities). 

Strategic  approach:  in  addition  to  the  data  collection 
requirements  of  Option  2  +  obligation  to  establish 
cooperation  mechanisms  between  all  asset  recovery 
phases,  and  establishment  of  centralised  asset  registries 
accessible to Asset Recovery and Management Offices. 

to 

in  addition 

Tracing: 
the  requirements  on  Asset 
Recovery Offices information exchange foreseen in Option 
3 + introducing the obligation for the systematic launch of 
financial  investigations  for  all  crimes,  introducing  24/7 
Asset Recovery Offices contact points and ensuring that the 
information  they  exchange  can  be  used  for  evidentiary 
purposes 

Management:  in  addition  to  the  measures  foreseen  in 
Option  3  +  establishing  a  single,  centralised  Office  with 
both  asset  recovery  and  asset  management  tasks  and 
responsibilities. 

Confiscation:  in  addition  to  the  measures  foreseen  in 
Option  3  on  non-conviction  based  confiscation,  + 
extending  the  scope  of  all  confiscation  measures  to  all 
crimes (“all crimes approach”)  

Strategic  approach:  in  addition  to  the  establishment  of 
asset  registries  foreseen  in  Option  3  +  ensuring  the 
interconnection  between  centralised  asset  registries  in 
different  Member  States  accessible  to  Asset  Recovery 
Offices  and  Asset  Management  Offices  of  other  Member 
States. 

5.2.1 Option 1 

Under Option 1, the measures consist of making increased use of existing platforms and, 
where  necessary,  establish  new  expert  or  advisory  groups  to  exchange  experiences, 
know-how and good practice to  strengthen capabilities and understanding in  relation  to 
the  various  phases  of  asset  recovery.  These  exchanges  would  be  further  enhanced 
through  the  development  of  appropriate  EU  guidance  and,  where  appropriate,  trainings 
(by CEPOL, Europol, Eurojust, the European Public Prosecutor’s Office (EPPO), or the 
European Judicial Training network, EJTN).  

These non-legislative measures would help address identified shortcomings for all phases 
of  the  asset  recovery  process  to  some  extent.  Promoting  the  exchange  knowledge  and 
best practices, offering guidance and training can be expected to contribute to improved 

34 

 
 
 
 
 
capabilities  related  to  asset  tracing,  asset  management  andthe  use  of  confiscation 
possibilities  and  will  to  some  extent  improve  the  effectiveness  and  efficiency  of  the 
overall asset recovery system in Member States. 

According to consulted stakeholders, (Asset Recovery Offices, Contact Committee of the 
Confiscation Directive,  and Europol) measures under PO1 would address indirectly the 
policy  objective  to  increase  the  rate  of  frozen,  confiscated  and  recovered  assets,  and 
considered it unlikely that they would achieve the policy objective to a significant extent, 
given  their  soft  nature.  Training  and  guidelines  with  respect  to  victims’  compensation 
and social reuse of confiscated were however  considered by stakeholder  as being more 
appropriate  than  legislative  intervention  due  to  the  many  differences  between  Member 
States on these areas.83  

5.2.2 Option 2 

Option 2 would foresee minimum legislative measures composed of targeted amendment 
to existing legislation and national set ups. Under Option 2, the measures would consist 
primarily in specifying the scope of existing general requirements and making targeted 
amendments  to  the  ARO  Council  Decision  and  Confiscation  Directive  with  a  view  of 
reinforcing  their  effectiveness.  This  includes  obligations  on  Member  States  on  a  more 
strategic/structural level: 

 

 
 

to  adopt  an  overall  strategy/action  plan  setting  out  the  objectives  of  the  asset 
recovery  system.  Such  a  strategy  would  set  out  the  indicators,  identify  relevant 
actors,  their  responsibilities  and  cooperation  mechanisms,  identify  gaps  and  the 
necessary measures to address them, in terms of resources, training, guidance, etc. 
This  strategy  could  also  include  objectives,  indicators  and  measures,  where 
appropriate, to improve victim compensation;   
to ensure that the competent authorities have the necessary skills and capabilities; 
to require more comprehensive and meaningful statistical data at central level.  

Other measures would aim at improving cross border cooperation: 

  enabling  Asset  Recovery  Offices  to  respond  swiftly  to  information  requests 
within  the  required  short  deadlines  (by  providing  access  to  existing  databases 
which  are  of  greater  relevance  to  Asset  Recovery  Offices  and  making  use  of 
SIENA for secure communication); 

  ensuring that Asset Recovery Offices have the necessary powers to facilitate asset 

tracing upon request from Asset Recovery Offices in other Member State; 

  ensuring that assets do not dissipate (through temporary urgent freezing powers);  
  allowing  authorities  competent  for  asset  management 
their 
counterparts    in  other  Member  States  (through  the  establishment  of  contact 

identify 

to 

83  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, pp. 162-163 

35 

 
 
 
                                                           
points)  and  set  out  general  principles  of  adequate  asset  management84  that 
Member  States  can  rely  on  when  assets  linked  to  an  investigation  in  a  Member 
State are managed in another Member State. 

Existing requirements on confiscation would remain in place as they stand. Only minor 
adaptations  would  be  introduced,  in  order  to  cover  all  eurocrimes  envisaged  in  Article 
83(1)  TFEU  (i.e.  adding  firearms  trafficking  as  defined  in  EU  law)  and  extend  non-
conviction  based  confiscation  to  situations  comparable  to  illness  or  absconding  (i.e. 
where conviction is not possible because the offender has passed away). All confiscation 
measures would remain grounded in criminal law. 

The  measures  under  option  2  would  contribute  considerably  to  the  objective  of  a  more 
strategic  approach  to  asset  recovery  addressing  identified  shortcomings  in  terms  of 
prioritisation,  cooperation  among  competent  authorities  or  available  resources.  The 
measures under option 2 are expected to make a considerable contribution to better asset 
tracing  and  securing  identified  illicit  assets  through  the  facilitation  of  cross  border 
information exchange and cooperation as well as requirements to adopt temporary urgent 
freezing  measures.  The  measures  are  expected  to  improve  to  some  extent  asset 
management. Similarly, due to the only limited changes compared to the status quo, the 
measures  under  option  2  are  expected  to  only  marginally  improve  confiscation 
capabilities. 

According  to  consulted  stakeholders  (law  enforcement,  judicial  authorities,  Europol, 
Asset Recovery Offices and NGOs), harmonization on asset recovery is highly necessary 
at national level in order to ensure the effectiveness of the system at EU level. Option 2 
was therefore considered a minimum intervention to address the problems, with margin 
for improvement.85 

5.2.3 Option 3 

Option  3,  builds  on  measures  under  Option  2  and  incorporates  measures  facilitating 
asset tracing and management as well as requirements for a more strategic approach and 
more  detailed  data  collection  provisions  Option  3  would  foresee  more  detailed 
requirements for Member States for all phases of the recovery process  requiring more 
extensive  changes  to  the  current  EU  legal  framework.  The  asset  recovery  regime  in 
Member States would need to comply with more specific requirements, including: 

  Obligations  regarding  asset  tracing,  which  is  currently  not  covered  by  the 
Confiscation Directive or spelled out in the ARO Council Decision. This would 
include  in  particular  a  requirement  to  ensure  that  financial  investigations  are 
systematically  launched  in  certain  cases and under certain  conditions,  e.g. when 

84 See for instances general principles/framework for effective asset management by FATF 
85  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, pp. 174, 176-177 
36 

 
 
 
 
                                                           
the crime under investigation is linked to organised crime and is likely to generate 
profits above a certain amount. This requirement is necessary to complement and 
steer  eventual  measures  by  Member  States  to  provide  resources,  training  and 
guidance  for  carrying  out  financial  investigations  as  part  of  the  overall 
strategy/action plan on asset recovery envisaged in Option 2. 

  Additional specific requirements regarding asset management, notably: 

o  mandating  the  use  of  pre-seizure  planning86,  and  interlocutory  sales  in 

certain cases and under certain conditions87;  

o  requiring the establishment of specialised Asset Management Offices with 
the  necessary  powers  to  ensure  they  can  effectively  support  other 
authorities  in  charge  of  managing  assets  and,  where  necessary,  manage 
frozen and confiscated assets -especially complex ones- upon request from 
competent  authorities.  The  proposal  would  leave  to  Member  States  the 
freedom  to  choose  the  administrative  and  legal  set  up  of  the  Offices  to 
allow them to best respond to national needs. 

  Requirements  to  facilitate  a  more  complete  statistical  overview  of  the  asset 
recovery process, notably the establishment of an asset recovery registry in each 
Member  State,  accessible  to  competent  authorities,  including  Asset  Recovery 
Offices and Asset Management Offices. Competent authorities would be required 
to  encode  relevant  information  throughout  the  asset  recovery  process,  e.g. 
whether an asset is frozen, sold, confiscated, returned to its owner, to the State or 
the victim or used for social purposes.  

The confiscation tools and mechanisms would be expanded to allow for the confiscation 
of significantly more illicit assets, in particular by: 

  Expanding the scope of offences covered by the Confiscation Directive in order 
to cover additional crimes of particular serious nature, high profitability or linked 
to  organised  crime  (e.g.  firearms  trafficking,  migrant  smuggling,  trafficking  of 
counterfeit products);  

  Extending the scope of non-conviction based confiscation measures grounded in 
criminal proceedings to other cases in which a criminal conviction is not possible 
due  to  objective  circumstances  (such  as  immunity,  amnesty,  lapse  of  statute  of 
limitations,  because  of  out-of-court  settlement,  age-related  decision  not  to 
convict); 

86  The  2020  Council  Conclusions  on  financial  investigations  (document  8927/20)  called  on  the 
Commission  to  include  the  principle  of  pre-seizure  planning  when  assessing  the  review  of  the  asset 
recovery framework. 
87 E.g. when assets would otherwise deteriorate in value, when costs of management are disproportionate to 
the value of assets, while taking into account the legitimate interests of the owner (e.g. by limiting cases of 
interlocutory sales to cases  where the assets are easily replaceable or foreseeing other safeguards  for the 
owner to invoke his/her interests) as well as the interests of the victims. 

37 

 
 
 
 
                                                           
  Foreseeing a new confiscation mechanism ensuring the confiscation of assets not 
directly  linked  to  specific  crime  (for  which  the  owner  or  possessor  was 
convicted) but more broadly resulting from criminal activities.  

The  main  elements  of  such  new  confiscation  mode  would  be  inspired  by  models  in 
Member  States88  while  ensuring  full  respect  of  the  relevant  fundamental  rights  and  the 
relevant  jurisprudence  of  the  European  Court  of  Human  Rights  (“ECtHR”)  and  the 
European  Court  of  Justice.  The  new  model  aims  at  addressing  the  identified 
shortcomings with regard to the existing confiscation models, which do not allow for the 
recovery of all illicit assets  related to  criminal  activities in  the framework of organised 
crime and which go beyond the assets linked to a specific crime for which the person in 
question was convicted. Under this new confiscation model, it would therefore be for the 
prosecution to show that the assets in question are linked to criminal activities. Although 
a  conviction  of  the  defendant  for  a  specific  criminal  offence  is  not  required,  the 
prosecution would have to prove the link between the assets and the criminal activities, 
showing  that  those  assets  could  have  been  the  proceeds  of  such  conduct.  The 
establishment  of  these  facts  can  be  based  on  circumstantial  evidence,  including  in 
particular  indications  such  as  unexplained  wealth  (i.e.  property  without  evidence  of 
legitimate  origin,  when  there  is  a  significant  disproportion  between  the  value  of  assets 
and the stated income of the person) rebuttable by the defendant through a shifted burden 
of proof.89 

All confiscation measures would remain grounded in criminal law.  

This possibility would be subject at least to the safeguards stipulated in Article 8 of the 
Confiscation  Directive,  and  in  particular  the  right  of  defence,  providing  for  effective 
possibilities  for  the  defendant  to  rebut  allegations.  Further  safeguards  could  become 
necessary  (e.g.  in  relation  to  the  required  threshold  to  initiate  such  proceedings  or  as 
regards the review possibilities ensuring timely remedies) to ensure that any interference 
with  fundamental  rights  remains  proportionate.  Ensuring  overall  proportionality  would 
need to be ensured (e.g. by limiting this possibilities to certain particularly serious crimes 
or crimes committed within the context of organised crime activities). 

Cooperation between the relevant authorities both cross-border and within each Member 
State would be strengthened by establishing: 

  Cooperation obligations  between the different competent authorities within each 
Member  State,  including  Asset  Recovery  Offices  and  Asset  Management 

88  For  a  description  of  the  different  models,  see  COMMISSION  STAFF  WORKING  DOCUMENT 
Analysis  of  non-conviction  based  confiscation  measures  in  the  European  Union,  SWD(2019)1050,  12 
April 2019. 
89 According to existing jurisprudence, a lower standard of proof than for a criminal conviction, including 
with  a  reversal  of  the  burden  of  proof,  is  possible  as  long  as  a  link  between  the  assets  and  the  criminal 
conduct is established (see ECtHR in Case 50705/11 Todorov and others v. Bulgaria, §215 and §237); see 
also the case regarding the Italian system in ECtHR, Arcuri v. Italy, N°52024/99. 

38 

 
 
 
 
                                                           
Offices90 but also other authorities such as tax authorities; the functioning of the 
overall  recovery  process  including  cooperation  between  the  relevant  authorities 
would  be  subject  to  regular  monitoring  coupled  where  appropriate  with 
recommendations for further improvement; 

  More  detailed  requirements  facilitating  information  exchange  across  borders 

(including templates). 

The  measures  under  option  3  will  make  a  significant  contribution  to  the  objectives  of 
improving  asset  tracing  in  that  it  will  require  Member  States  to  carry  out  more 
systematically financial investigations which are of crucial importance in this regard. The 
measures  will  significantly  improve  the  efficiency  of  asset  management  in  that  it  will 
require pre-seizure planning and the use of interlocutory sales. Setting out more detailed 
requirements and conditions and requiring the establishment of asset management offices 
that can support other competent authorities in their work will help overcome identified 
shortcomings  that  limited  the  use  of  more  efficient  management  tools.  The  measures 
under  option  3  are  also  expected  to  make  a  significant  contribution  to  improving 
confiscation  possibilities  by  extending  possibilities  of  confiscation  where  a  criminal 
conviction is not possible for objective reasons  (while all the evidence is there to show 
criminal conduct) and where the assets are clearly linked to organised crime activities but 
cannot  be  linked  to  a  specific  crime;  but  also  be  significantly  extending  the  scope  of 
offences.  Measures  under  option  3  will  further  contribute  to  a  more  effective  asset 
recovery  framework  in  Member  States  in  that  it  provides  for  a  better  sharing  of 
information and improved cooperation among competent authorities. 

Stakeholders  consulted  over  the  course  of  the  Policy  Options  Workshops  (law 
enforcement, judicial authorities, Europol, Asset Recovery Offices and NGOs) identified 
Policy  Option  3  as  the  best  performing  in  order  to  ensure  that  the  provisions  of  the 
existing  instruments  are  properly  applied.  According  to  consulted  stakeholders,  the 
alignment of the scope of confiscation measures with the crimes covered by Regulation 
(EU) 2018/1805 harmonization on asset recovery is particularly necessary to ensure the 
effectiveness  of  the  system.  This  assessment  extended  to  measures  on  tracing, 
management, and confiscation.91 

5.2.4 Option 4 

Option 4 would foresee a maximum legislative intervention, building upon the measures 
under  Option 3 (which includes certain measures under Option 2).  

90  Such  cooperation  mechanisms  could  identify  for  instance  the  different  actors  and  their  respective 
responsibilities,  include  requirements  to  provide  information  and  feedback,  require  Member  States  to 
prepare  regular  reports  on  the  functioning  of  the  asset  recovery  system.  Such  reports  would  identify 
remaining obstacles and propose concrete measures to address the identified shortcomings. 
91  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, pp. 174, 176-177 
39 

 
 
 
 
                                                           
 Option  4  would  further  strengthen  the  requirements  established  under  Option  3 
concerning the different asset recovery processes and procedures by: 

  More extensive requirement on financial investigations, which should be carried 
out for all crimes, without limiting to organised crimes’ activities as in Option 3; 
  Setting out more concrete conditions regarding urgent freezing orders (as already 
foreseen  under  Option  2).  This  would  include  requirements  on  the  validity  of 
such  temporary  orders,  deadlines  within  which  such  temporary  freezing  orders 
must be issued and a requirement for establishing 24/7 contact points to  ensure 
urgent freezing in cross-border cases; 

  Requiring information  exchanged among  Asset  Recovery  Offices to be  without 
purpose limitation e.g. for intelligence purposes only (so that information can be 
used also for evidentiary purposes).  

At  the  same  time,  this  option  would  aim  at  overcoming  coordination  and  cooperation 
issues  by 
ensuring  greater 
interconnectivity: 

streamlining  of 

responsibilities 

further 

and 

 

 

requirements for having asset tracing and management support functions within 
one  single  entity  or  under  the  oversight  of  one  entity  (Asset  Recovery  and 
Management  Office,  a  model  available  in  seven  out  of  the  thirteen  Member 
States that have established Asset Management Offices); 
In  addition  to  the  establishment  of  asset  registries  as  foreseen  in  Option  3, 
ensuring that national asset recovery registries are interconnected and that access 
to  them  is  granted  to  all  Asset  Recovery  and  Management  Offices  of  every 
Member State. 

Finally,  the  scope  of  the  confiscation  measures  would  be  further  strengthened  by 
expanding the scope of the new confiscation framework to  all crimes, in order to  align 
the  scope  with  that  of  Framework  Decision  2005/212/JHA92  which  regulates  standard 
confiscation, the most used confiscation tool in the Member States, as opposed to the list 
of Regulation (EU) 2018/1805 as foreseen in Option 3. This possibility would be subject 
to safeguards stipulated in and going beyond Article 8 of the Confiscation Directive, and 
in  particular  the  right  of  defence.  All  confiscation  measures  would  remain  grounded  in 
criminal law. 

Compared  to  Option  3,  measures  under  option  4  would  only  marginally  improve  the 
achievement  of  the  relevant  objectives  in  terms  of  asset  tracing,  asset  management, 
confiscation and overall improved strategic framework for asset recovery. The benefits of 
further  extending  the  scope  and  providing  more  detailed  requirements  of  the  different 

92 See Article 3 of the Framework Decision 2005/212/JHA, which covers all criminal offences punishable 
by deprivation of liberty for more than one year. 

40 

 
 
 
 
 
                                                           
measures  already  foreseen  under  Option  3  would  come  along  with  more  substantive 
interferences with Member States’ prerogatives. 

According  to  consulted  stakeholders  (law  enforcement,  judicial  authorities,  Europol, 
Asset  Recovery  Offices),  the  policy  measures  under  PO4  reflect  the  level  of 
harmonization and cooperation Member State might reach in the long term, but go too far 
to address what are perceived as being the most urgent issues to address for an effective 
asset recovery system. Under the current circumstances, the minimal performance of the 
asset recovery system is strongly severed by issued such as lack of resources, insufficient 
access  to  information,  and  lack  of  minimal  legislative  harmonization.  Therefore,  PO4 
measures  were  perceived  as  too  demanding  on  Member  States  and  the  relevant  asset 
recovery  actors,  too  costly  to  implement,  and  with  benefits  visible  only  in  the  long-
term.93  

5. 3 Options discarded at an early stage 

The  Inception  Impact  Assessment  on  the  revision  of  the  asset  recovery  framework94 
informed of the intention of the Commission to assess any possible obstacles related to 
the use of recovered assets for social purposes and for victim compensation.  

Based  on  the  outcome  of  the  consultations,  it  has  been  considered  that  measures  to 
reinforce  the  current  voluntary  nature  of  the  provision  on  social  re-use  could  interfere 
with the Member States’ budgetary autonomy, and would therefore be disproportionate.  

In  relation  to  victim compensation, the Commission  services  have not  identified, based 
on  the  consultations,  specific  problems  requiring  an  inclusion  of  victim  compensation 
provisions in revised legislation on asset recovery. In addition to the requirement  in the 
Confiscation  Directive  for  Member  States  to  ensure  that  confiscation  measures  do  not 
prevent  victims’  compensation,  the  EU  legislation  in  this  field  comprises  the  Victims' 
Rights  Directive95,  which  provides  for  a  right  to  a  decision  on  compensation  from  the 
offender in criminal proceedings, and the Compensation Directive96.  The latter provides 
for access to compensation from the state for victims of violent and international crime, 
including  national  schemes  on  compensation  to  victims.  The  EU  Strategy  on  victims’ 
rights  indicated  that  the  Commission  will  monitor  and  assess  EU  legislation  on 
compensation,  and  if  necessary  propose  measures  to  complement  this  framework. 
Considering the existence of a specific framework focused on victim compensation, any 
possible  measure  in  this  regard  would  be  better  addressed  therein,  should  there  be  a 

93  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p. 190 
94  Available  at  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12725-Fighting-
organised-crime-freezing-and-confiscating-the-proceeds-of-crime_en, Ares(2021)1720625. 
95 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 2001/220/JHA, OJ L 315, 14.11.2012, p. 57–73. 
96  Council  Directive  2004/80/EC  of  29  April  2004 relating  to  compensation  to  crime  victims,  OJ  L  261, 
6.8.2004, p. 15–18. 

41 

 
 
 
                                                           
revision  of  these  instruments.  Moreover,  a  few  Member  States’  expressed  strong 
reservations  on  strengthening  existing  legal  provisions  on  social  reuse,  as  they  would 
infringe upon budgetary autonomy national competences.97 

6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS?  

6.1 

Social impacts 

Impact on security: criminal and in particular organised crime activities 

All  options  are  expected  to  contribute  in  different  degrees  to  improving  capabilities  of 
tracing, freezing, confiscation and management and, as a consequence, the capabilities to 
disrupt criminal activities and in particular the activities of organised crime groups. The 
different  options  will thus  – depending on the scope of the measures  and the degree of 
harmonisation throughout the EU – contribute in different degrees to enhancing security 
in the EU as a whole (with the least impact for PO1 and higher impacts for PO2-4). This 
contribution  will  be  even  higher  for  options  containing  measures  that  not  only  address 
cross-border aspects but also investigations at domestic level (e.g. measures under PO3), 
given that illicit gains resulting from criminal activities in a domestic context can and are 
used  for  criminal  activities  throughout  the  EU.  Increasing  capabilities  in  tracing  and 
freezing  assets  at  national  level  increase  the  chances  of  identifying  assets  linked  to 
criminal activities in other Member States. 

PO1  is  expected  to  improve  capabilities  necessary  for  effective  asset  recovery  to  a 
limited  extent  with  the  estimated  increase  in  the  number  of  freezing  and  confiscation 
orders  being  relatively  marginal.  Furthermore,  confiscation  measures  remain  limited  in 
scope  and  will  not  be  able  to  capture  all  relevant  assets  linked  to  organised  crime 
activities. As a consequence, the impact on security is limited. 

Measures under PO2 will make a positive contribution to increasing the capabilities of 
asset  tracing  and  management  and  strengthening  cross  border  cooperation.  Information 
exchange can be expected to be significantly improved and response times significantly 
reduced in particular by giving Asset Recovery Offices access to the relevant databases. 
It  is  expected  that  the  number  of  freezing  and  confiscation  orders  could  increase 
considerably. 

The highest impact is to be expected from measures under PO3 and PO4 since concrete 
measures are expected to significantly improve the operational capabilities at all stages of 
the  recovery  process  as  well  as  the  overall  effectiveness  and  efficiency  of  the  asset 
recovery system as a whole.  

The  impact  through  significantly  higher  rates  of  freezing  and  confiscation  orders  is 
further  increased  by  the  extension  of  the  scope  of  crimes  subject  to  confiscation.  As  a 
result of these measures it is expected that measures under PO3 and PO4 could increase 

97 Information gathered via meeting with the Contact Committee on 1-2 June 2021. 

42 

 
 
 
                                                           
the  rates  of  freezing  and  confiscation  in  a  substantial  manner,  so  as  to  effectively 
contribute to disrupting organised crime activities.  

Both PO3 and PO4 will make a more significant contribution to fighting crime across 
borders since they foresee measures that will improve cross border information exchange 
and cooperation: increased access to the relevant information will not only improve asset 
tracing  internally  but  also  improve  cross  border  cooperation  in  terms  of  better/more 
comprehensive information and shorter timeframes for replies.  

Impact on citizens’ perception of justice and reassurance that crime does not pay  

All options contribute in different degrees to the objective of making the asset recovery 
system  more  effective.  However  only  PO2-4  make  a  substantial  contribution  to 
increasing  rates  of  confiscation,  so  as  to  make  a  positive  impact  on  the  citizens’ 
perception  of  justice  and  the  reassurance  that  crime  does  not  pay.  By  increasing 
confiscation  rates,  all  of  these  options  would  in  different  degrees  ensure  that  funds  are 
available for victim compensation or other public interest and social uses.  

6.2 

Economic impacts 

Impact on businesses/competition  

In general terms, the different options disrupt criminal activities by depriving criminals 
of  illicit  gains,  thereby  limiting  their  capabilities  to  reinvest  such  gains  into  the  legal 
economy  and  distorting  competition,  re-establishing  a  level  playing  field  among 
companies  and  providing  increased  confidence  of  the  market  that  playing  by  the  rules 
pays  off  .  The  impact  on  businesses  would  be  higher  for  those  options  extending  the 
scope of offences covered (PO3 and PO4), insofar as they could cover crimes that have 
a direct effect on some sectors, such as counterfeiting, or that distort competition, such as 
VAT  fraud.  While  it  is  not  possible  to  provide an  estimate  of  economic  impact  for  the 
different options, available data indicate the scale of the problem: imports of counterfeit 
and pirated goods into the EU amounted to as much as EUR 119 billion in 201998, while 
VAT fraud account for a loss of between EUR 45 to 53 billion every  year99. The more 
effective  the  options  would  be  in  depriving  criminals  of  their  profits  and  therefore 
disrupting  criminal  activity,  the  less  these  illicit  activities  would  negatively  affect  EU 
businesses.        

Impact on public administrations  

98  OECD,  Global  Trade  in  Fakes  -  A  worrying  threat,  Organisation  for  Economic  Co-operation  and 
Development (OECD) and European Union Intellectual Property Office (EUIPO), June 2021. 
99  European  Commission,  Directorate-General  for  Taxation  and  Customs  Union,  Jaras,  T.,  Whittle,  E., 
Patel, K., et al., Final Report, Implementing the ‘destination principle’ to intra-EU B2B supplies of goods, 
Feasibility and Economic Evaluation Study, Publications Office 2015. 

43 

 
 
 
                                                           
To  the  extent  that  all  options  contribute  in  different  degrees  to  increasing  the  rates  of 
confiscation while improving asset management, there is a positive impact on the public 
administration where increased revenues are brought back to the state budget. 

These  positive  impacts  would  result  from  the  increases  in  assets  identified  (which 
eventually  would  lead  to  more  assets  being  frozen  and  confiscated),  the  measures 
facilitating  the  confiscation  of  assets  as  such,  the  measures  aimed  at  reducing  asset 
management costs and maximising the value of assets or avoiding their depreciation, or 
the  increased  number  of  confiscated  assets  that  would  derive  from  a  more  strategic 
approach to asset recovery. The increase of revenues and thus the impact on the public 
budget  will  depend  inter  alia  on  the  scope  of  crimes  for  which  confiscation  can  be 
ordered. By including a few additional crimes such as firearms trafficking (under PO2), 
the impact will be relatively low compared to the additional criminal proceeds under 
PO3 resulting from the inclusion of more crime areas with (estimated at least 50 billion 
p.a.)100. PO4 is expected to have the highest impact with the largest set of crimes and 
illicit proceeds/assets being covered. 

This  positive  impact  is  highest  for  PO3  and  even  more  so  for  PO4,  in  particular 
because  of  the  need  for  Member  States  to  adopt  measures  that  will  contribute  in  a 
substantial  manner  to  identifying  an  increased  number  of  assets,  as  well  as  measures 
against  dissipation  and  loss  in  value  of  such  assets.  These  requirements  coupled  with 
extended  possibilities  to  confiscate  assets  beyond  those  directly  related  to  a  specific 
crime are expected to increase revenues to the State budget.  

In  principle  the  large  majority  of  any  additional  revenues  would  accrue  to  the  state 
budget, unless they are used for victim compensation, which is often given priority over 
confiscation, usually upon claims by the victims via civil  proceedings. While estimates 
cannot  be  provided  since  the  figures  of  funds  returned  to  the  victims  on  the  basis  of  a 
civil  claim  are  not  always  reflected  in  the  statistics  on  confiscation,  some  examples 
indicating  the  order  of  magnitude  will  be  provided  (e.g.  in  one  Member  State  victim 
compensation  represents  8.3%  of  recovered  assets,  in  another  the  assets  returned  to 
victims amount to 5.6% of seized property). 

100  The  indicative  volume  of  revenues  generated  by  organised  crime  not  covered  by  the  Confiscation 
Directive amounts to approximately EUR at least 50 billion is an approximate estimation elaborated for the 
purposes of this Impact Assessment. It is based on desk research analysing different data sources such as 
international and EU studies (including the 2021 Study for the European Commission on ‘Mapping the risk 
of  serious  and  organized  crime  infiltrating  legitimate  businesses’),  government  information  or  Eurostat 
statistics, and applying informed assumptions such as the depreciation of counterfeited and stolen property. 
This figure relates to approximate estimated revenues for illicit firearms, migrant smuggling, some forms 
of organised property crime (cargo theft, ATM physical attacks, burglary, robberies and vehicle thefts), the 
illicit cigarette market, Missing Trader Intra-Community (MTIC) fraud causing a total damage of less than 
EUR  10  million  (above  this  figure  being  covered  by  the  PIF  Directive),  the  illicit  trafficking  of  cultural 
goods, counterfeiting and forged documents. The  figure  does not cover other  forms of  crime or criminal 
markets  where  organised  crime  is  active,  such  as  other  forms  of  fraud  other  than  MTIC  fraud,  contract 
killing  (including  murder,  grievous  bodily  harm  and  kidnapping),  swindling,  racketeering  and  extortion, 
trafficking of nuclear materials and of illicit hormonal substances, given the lack of reliable data sources on 
which to base any estimation. For more information, see Annex 4 on analytical methods.  

44 

 
 
 
                                                           
These benefits however can only be achieved through additional investment. There will 
be additional costs for public administrations under PO2 – 4 requiring Member States to 
provide Asset Recovery Offices and Asset Management Offices with sufficient resources 
to  fulfil  their  tasks.  These  costs  for  Member  States  to  implement  these  measures  are 
estimated to be of at least EUR 8.6 million for PO2, a figure which would considerably 
increase  in  PO3,  with  costs  estimated  in  a  range  of  EUR  31.6  and  38.4  million.  PO4 
would  account  for  a  slightly  higher  figure  ranging  from  EUR  41.3  to  45.7  million101. 
However  the  additional  costs  are  more  than  offset  by  measures  that  improve  the 
efficiency  of  asset  management  and  more  generally  the  efficiency  of  the  entire  asset 
recovery  process.  Such  measures  would  increase  the  amounts  of  criminal  assets 
recovered  in  diverging  degrees,  in  a  range  that  could  be  on  the  order  a  few  hundred 
million  for  PO2  or  even  double  the  current  volume  of  confiscated  assets  for  PO3  and 
PO4,  which  currently  stands  at  one  billion  every  year  across  the  EU102.  While  the 
amounts that Member States would be able to allocate to the State budget would depend 
on  their  prioritisation  of  other  aims  such  as  victim  compensation  and  social  re-use, 
overall the costs for public administrations are expected to be lower than the additional 
resources obtained through a reinforced asset recovery system. 

6.3 

Environmental impact 

Options PO2 – 4 can be expected to have a positive impact on the environment to the 
extent that these options will contribute in different degrees to recover illicit gains related 
to  environmental  crimes  and  therefore  to  deter  and  disrupt  illicit  activities  that  have  a 
harmful impact on the environment. This impact will be highest for PO3 and PO4 given 
that confiscation possibilities (and other measures to improve the overall efficiency of the 
asset recovery regime as a whole) are the most extensive. 

6.4 

Fundamental rights impacts  

All  proposed  Policy  Options  but  PO1  will  increase  the  scope  of  confiscation  measures 
and degree of potential interference with fundamental rights, particularly the right to 
property,  procedural  rights  and  data  protection.  Stronger  freezing  and  confiscation 
measures  under  each  of  the  legislative  options  will  cover  a  greater  number  of  offences 
and facilitate confiscation and therefore will affect a greater number of people and assets 

101 Information on the costs for the preferred option are found in Annex 3. Information on the costs for the 
other  options  are  based  on  the  Impact  Assessment  study,  with  the  costs  presented  herein  adapted  to  the 
measures as considered in this Impact Assessment.  
The  estimations of costs of the policy  measures envisaged in the different options considered are mainly 
based on the study underpinning this Impact Assessment (e.g. data on training, costs of meetings, the costs 
of establishing Asset Management Offices, the establishment of asset registries, etc.). For other measures,  
additional  estimations  were  elaborated  by  adjusting  the  data  provided  in  the  study  through  an  informed 
assumption of the additional resources needed to carry out certain tasks, using where available proxies such 
as number of investigations supported by Europol or information from previous Impact Assessments. 
102  The  approximate  figures  on  the  additional  volume  of  confiscated  assets  provided  are  indicative 
estimations elaborated on the basis of the current confiscation rates and through a qualitative assessment of 
the  benefits  of  the  measures  in  terms  of  improved  asset  tracing,  management,  confiscation  methods  and 
overall improvement in the efficiency of the asset recovery system. 

45 

 
 
 
                                                           
than the baseline, having therefore a greater impact on fundamental rights. The impact is 
lowest for PO2, which only extends the scope of confiscation measures to a very limited 
extent, and  highest for PO3  and PO4, which foresee  a significant  extension to  crimes 
not  currently  covered  by  the  Confiscation  Directive,  as  well  as  to  assets  not  directly 
linked  to  a  limited  number  of  specific  crimes.  However,  all  options  would  be 
accompanied  by  appropriate  safeguards  and  would  meet  the  legal  and  procedural 
requirements as enshrined in existing case law. 

Right to property 

Article 17 of the Charter of Fundamental Rights of the European Union ("the Charter") 
guarantees the right to property. Whilst it can be argued that property of illicit origin is 
not protected under the right to property, such right is not absolute but can be subject to 
interference.  According  to  the  established  case-law  of  the  ECtHR,  an  interference  with 
property rights must be prescribed by law (legality) and pursue one or more legitimate 
aims103. In addition, there must be a reasonable relationship of proportionality between 
the  means  and  the  aims.  A  balance  has  to  be  struck  between  the  demands  of  general 
interest and the interest of the individual concerned. 

Regarding the proportionality of proposed confiscation measures, case law requires that a 
“fair  balance  must  be  struck  between  the  demands  of  the  general  interest  of  the 
community and the requirement of the protection of the individual’s fundamental rights. 
The  requisite  balance  will  not  be  found  if  the  persons  concerned  have  had  to  bear  an 
excessive  burden”  (Todorov  and  others  v.  Bulgaria)104.  For  example,  in  Phillips  v. UK 
and Butler v. UK held that the use of confiscation measures can be proportionate to the 
aims of a policy objective when "the making of a confiscation order operates in the way 
of a deterrent” and as a mean to deprive a person of illicit profits, as well “to  remove 
the  value  of  the  proceedings  from  possible  future  use".105  In  cases  of  preventive 
confiscation, States are further allowed a wide margin of appreciation on the balance of 
the seriousness of the threat posed by particular offences such as, in the case of cited case 
law, drugs trafficking106. 

Under  this  wide  latitude,  PO2  and  PO3  would  fully  meet  the  legality,  public  objective 
and  proportionality  tests  since  they  all  aim  at  deterring  crime,  deprive  an  offender  of 
illicitly acquired property, prevent future use of proceeds of crime, and are to be paired 
with  adequate  safeguards.  Established  ECtHR  case-law  states  that  all  proposed 
confiscation measures are generally perceived to be a legitimate restriction to the right to 
property  as  long as  adequate  procedural  safeguards, such as the right  of  fair hearing 
and  right  to  a  remedy,  are  in  place:  this  applies  to  simple  conviction-based 

103 See, for example, ECtHR, Agosi v. UK, N°9118/80; Raimondo v. Italy, N°12954/87.  
104 ECtHR, Todorov and others v. Bulgaria, N°50705/11 at §187. 
105 ECtHR, Phillips v. UK, N°41087/98. 
106 ECtHR, Butler v. UK, N°41661/98. 

46 

 
 
 
 
 
                                                           
confiscation107,  extended  confiscation108,  and  non-conviction  based  confiscation 
measures109. To the extent that PO2 extends the scope of confiscation measures only in a 
marginal  manner,  both  in  terms  of  crimes  covered  and  additional  possibilities  to 
confiscate assets without conviction for a specific offence, the impact is limited. PO3 has 
a higher impact given that confiscation would be foreseen for a larger number of crimes 
(while  still  being  limited  to  those  of  a  serious  nature  or  linked  to  organised  crime 
activities).  In  addition,  confiscation  measures  would  also  extend  to  more  assets,  given 
that confiscation would be possible for assets that are related to criminal activities but not 
necessarily  to  a  specific  crime  for  which  the  person  in  question  was  convicted.  In 
addition,  the  requirement  to  make  use  of  interlocutory  sales  will  affect  the  right  to 
property. The limited conditions under which such sales would be possible as well as the 
availability of effective remedies (see below) ensure however overall proportionality of 
the  measure.  PO4  has  the  highest  impact  in  that  extended  confiscation  as  well  as 
confiscation  without  prior  conviction  for  a  specific  offence  would  be  possible  for  all 
crimes.  Whilst  it  would  meet  the  legality  test,  an  all  crimes  approach  for  far  reaching 
confiscation  measures  would  have  a  high  impact  on  citizens  and  increase  the  risk  of 
confiscation  not  meeting  the  public  objective  test  and  go  beyond  what  is  necessary  to 
fight organised crime. 

Procedural safeguards: right to a fair trial, presumption of innocence and right to an 
effective remedy 

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 Charter as well as in Articles 6 and 13 of the 
European Convention of Human Rights (“ECHR”). All these rights apply to confiscation 
measures which are considered to amount to a criminal charge110.  

All  options  foresee  the  possibility  to  challenge  decisions  of  confiscation,  as  currently 
foreseen in Article 8 of the Confiscation Directive. This includes the effective possibility 
to challenge the circumstances of the case, including specific facts and available evidence 
on the basis of which the property concerned is considered to be property that is derived 
from criminal conduct111. The impact is lowest for PO2 to the extent that possibilities for 
non-conviction based confiscation remain limited. The potential impact is highest where 
confiscation can be ordered in relation to assets that are linked to criminal activities but 
without a conviction in relation to a specific crime (as foreseen under PO3 and 4). The 
absence  of  a  criminal  conviction  raises  issues  related  to  the  right  to  fair  trial,  effective 
judicial  remedy,  the  presumption  of  innocence  as  well  as  the  right  to  property.  The 
extension  of  possibilities  to  confiscation  assets  without  prior  conviction  for  a  specific 

107 ECtHR, Van Offeren v. the Netherlands, N°19581/04. 
108 ECtHR, Phillips v. UK, N°41087/98. 
109 ECtHR, M. v. Italy, N°12386/86. 
110 See European Agency for Fundamental Rights, FRA Opinion 03/2012 on the Confiscation of proceeds 
of crime. 
111 Judgement of the Court of Justice of 21 October 2021 in Joined Cases C‑845/19 and C‑863/19, see in 
particular para 67. 

47 

 
 
 
 
                                                           
offence would therefore need to be paired with equally strong safeguards. The respect of 
rights of defense and the presumption of innocence will be ensured where the following 
safeguards  are  put  in  place:  confiscation  without  a  conviction  for  a  specific  crime  is 
subject  to  the  requirement  to  prove  that  the  assets  in  questions  are  linked  to  criminal 
activities and that the affected person has the effective possibility to rebut allegations112. 
In addition, it is recalled that confiscation does not necessarily have a punitive character: 
confiscation aims at taking away criminal profits, and thereby limiting the incentives for 
and  capacity  of  criminals  to  continue  their  activities.  It  also  has  the  restorative  goal  of 
ensuring  that  victims  of  crime  are  compensated  and  that  the  money  taken  away  from 
organised crime can be used for public interest and social purposes. 

When  looking  at  the  overall  proportionality  of  the  measures,  full  compliance  with  the 
European Union directives on procedural rights113, notably Directive 2012/13/EU on the 
right  to  information  in  criminal  proceedings114  and  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 criminal proceedings115 must be ensured. 

Data protection 

Access to SIENA and databases would increase the amount and rate of data exchanged 
between  relevant  authorities.  This  increase  will  require  the  adequate  data  protection 
provisions  to  be  in  place,  including  existing  safeguards  in  relation  to  protection  of 
personal  data  at  national  and  European  level,  which  would  apply.  The  human  rights 
impact should be offset with the alignment of the new legislative measure with Directive 
2016/68116 on data protection, since the revision of the ARO Council Decision will allow 
clarifying  that  the  processing  of  personal  data  is  subject  to  the  Law  enforcement  Data 
Protection Directive. Currently, Article 5 of this Council Decision refers explicitly only 
to the Council of Europe Convention of 28 January 1981 for the Protection of Individuals 
with regard to Automatic Processing of Personal Data, and the Additional Protocol of 8 
November 2001 to that Convention, regarding Supervisory Authorities and Transborder 
Data Flows.  This will allow to specify more precisely the categories of personal data that 
can  be  exchanged,  taking  due  account  of  the  operational  needs  of  the  authorities 

112 These are, inter alia, ECtHR in Case 50705/11 Todorov and others v. Bulgaria, §215, and §237. 
113 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. 
114 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. 1–10. 
115  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. 1–11. 
116  Directive  (EU)  2016/680  of  the  European  Parliament  and  of  the  Council  of  27  April  2016  on  the 
protection of natural persons with regard to the processing of personal data by competent authorities for the 
purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of 
criminal  penalties,  and  on  the  free  movement  of  such  data,  and  repealing  Council  Framework  Decision 
2008/977/JHA, OJ L 119, 4.5.2016, p. 89–131.  

48 

 
 
 
                                                           
concerned. Appropriate protocols should equally be in place when authorities are granted 
access to additional databases to ensure the safeguards are applicable to all. 

6.5 Sustainable development goals impacts 

All  policy  options  aim  at  improving  the  existing  asset  recovery  systems.  As  such,  all 
would  have  an  impact  on  the  sustainable  development  goal  of  (16),  peace,  justice,  and 
strong institutions through contributing to countering organised crime through its profits. 
Similarly, all options would impact the sustainable development goal of (8), decent work 
and  economic  growth  through  countering  organised  crime’s  infiltration  into  the  legal 
economy. PO1 and PO2 would have a more limited impact, proportionate to their softer 
nature,  whilst  PO3  and  PO  4  would  have  the  greater  impact  given  the  stronger 
obligations that a legislative intervention would bring.  

7.  HOW DO THE OPTIONS COMPARE? 

Summary  of  the  findings:  each  criterion  is  qualified  by  a  score  from  -3  to  +3  (-3 
indicating the most negative impact and +3 the most positive impact). The assessment is 
made in comparison to the baseline scenario as a benchmark. 

Table 4: comparison of policy options 

Assessment 
criteria  

Effectiveness  

Efficiency  

Proportionality 
(including impacts)  

Coherence  

Total  

Policy option 1 

Policy option 2 

Policy option 3 

Policy option 4 

0,5 

1 

1 

0 

2,5 

1 

2,5 

1 

1 

5,5 

2,5 

3 

1 

3 

9,5 

3 

2,5117 

-1 

3 

7,5 

7.1 

Effectiveness 

7.1.1  Strengthen asset tracing capabilities  

PO1  contributes  to  a  limited  extent  to  the  objective  of  strengthening  the  asset  tracing 
capabilities  in  Member  States  as  it  relies  primarily  on  the  voluntary  exchange  of  best 

117 The scoring for efficiency of PO4 is lower than for PO3 because, even if the overall expected benefits 
do outweigh additional costs, the relative increase  of benefits is lower than the relative  higher costs. See 
section 7.2 for further details. 

49 

 
 
 
 
 
                                                           
practices  and  the  development  of  further  guidance.  Such  measures  are  certainly  useful 
and necessary, but would not be sufficient to overcome in a comprehensive manner and 
for  all  Member  States  the  deficiencies  in  terms  of  lack  of  financial  investigations  and 
Asset Recovery Offices competences and access to and exchange of information. Given 
that  these  obstacles  derive  from  regulatory  shortcomings  and  lack  of  resources,  the 
integration of best practices and guidance would depend on the willingness from policy-
makers at national level  to address these issues.  Therefore, further voluntary exchanges 
are not expected to change this situation in a significant manner. 

PO 2-4 would overcome such regulatory shortcomings to different degrees. By ensuring 
that  Member  States  take  a  more  strategic  approach  to  asset  tracing  and  financial 
investigations  and  that  competent  authorities  have  the  necessary  resources,  additional 
powers  and  access  to  the  most  relevant  information,  PO2  would  strengthen  to  a 
considerable  extent  the  capabilities  of  law  enforcement  authorities  and  in  particular 
Asset  Recovery  Offices  to  identify  and  trace  criminal  assets.  The  large  majority  of 
stakeholders  confirmed  through  interviews,  workshops  and  the  public  consultation  that 
reinforcing  the  powers  and  resources  of  Asset  Recovery  Offices  will  improve  asset 
recovery  to  a  very  high  extent.  These  measures  will  also  facilitate  the  cross  border 
exchange  of  relevant  information  to  a  considerable  degree.  PO3  would  increase 
substantially  these  capabilities  in  particular  by  ensuring  that  asset  are  systematically 
traced for the most proceed-generating criminal activities. PO4 would further increase 
to  some  extent  these  capabilities  by  strengthening  the  effectiveness  of  temporary 
freezing  orders  and  information  exchange  as  well  as  by  extending  the  requirement  to 
trace  assets  through  financial  investigations  in  all  crimes  related  to  organised  crime 
activities. However, the latter obligation could stretch the capacity of law enforcement to 
investigate  the  financial  dimension  of  criminal  activities,  since  it  might  hamper  their 
capacity to focus efforts on cases where profits are higher. 

7.1.2  Ensure efficient asset management  

PO1  would  contribute  in  a  limited  manner  to  the  objective  of  ensuring  efficient  asset 
management.  While  improvements  can  be  expected  through  the  exchange  of  good 
practices and the development of possible guidance, such improvements are not expected 
to be significant in terms of ensuring that the value of confiscated assets outweighs the 
costs of asset recovery and maximises the revenues that can be used to repair the damage 
caused.  PO2  would  contribute  to  a  higher  (even  if  still  relatively  limited)  extent  to 
ensure  efficient  asset  management  by  setting  out  higher  minimum  management 
obligations  and 
facilitating  cross-border  coordination.  PO3  would  contribute 
significantly to the effectiveness of the management objective, in particular through the 
mandatory  use  of  pre-seizure  planning  and  interlocutory  sales.  These  tools  are  best 
practices  identified  by  stakeholders  having  a  large  potential  for  bringing  down 
management  costs  on  the  one  hand  and  maintaining  and  even  maximising  the  value  of 

50 

 
 
 
confiscated assets118. The creation under PO3 of a specialised body responsible for asset 
management or Asset Management Office would equally contribute to a high extent 
to improving management of criminal assets, since a specialised body pooling expertise 
and  capable  of  supporting  and  advising  decentralised  management  structures  (in  the 
Member  States  where  it  is  more  beneficial  for  structures  to  be  decentralised)  would 
increase the efficiency of asset management, which in turn would lead to costs reductions 
and the overall increase of the final value of confiscated property. This is confirmed by a 
large  majority  of  stakeholders  consulted  in  workshops  (Asset  Recovery  Offices, 
representatives from  Justice Ministries), interviews, and the public consultation119. This 
effective  instrument  would  be  maintained  in  PO4  while  merging  it  with  the  Asset 
Recovery Office, which could provide certain improvements in the managing of assets 
since it would ensure that good practices such as pre-seizure planning are systematically 
applied when Asset Recovery Offices are responsible for the tracing of assets. 

7.1.3  Strengthen confiscation capabilities   

PO1 would contribute only to a limited degree to strengthen to confiscation capabilities. 
The  exchange  of  good  practices  and  possible  guidance  or  training  are  expected  to 
improve  the  capabilities  of  individual  stakeholders,  within  the  legal  framework  as  it 
exists in the different Member States. However, to the extent that not all Member States 
have confiscation measures in place that would allow for a more comprehensive ability to 
capture the proceeds from organised crime activities, these improvements are expected to 
be limited. 

PO 2 – 4 are more effective in that they require Member States to put in place a number 
of legally binding measures that extend confiscation possibilities compared to the status 
quo.  These  options  would  foresee  in  different  degrees  an  extension  of  the  scope,  with 
PO4 being the most effective in that it would capture all crimes and PO2 being the least 
effective  in  that  the  scope  of  existing  confiscation  measures  would  only  be  marginally 
increased.  PO3  would  contribute  in  a  very  substantial  manner  to  the  objective  of 
disrupting  organised  crime.  It  would  allow  capturing  at  least  those  crimes  of  a  serious 
nature or crimes linked to organised crime activities and foresee the possibility for new 
confiscation measures that are able to recover illicit assets linked to criminal activities 
more broadly. This tool has proven its effectiveness and is a common feature in countries 
that were rated by the FATF as high performing.  

PO3 would therefore be instrumental in addressing the threat of powerful poly-crime 
groups  and  address  a  common  challenge  encountered  in  relation  to  organised  criminal 
activities carried out over a longer period of time.  

118  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, pp. 99, 109-110 
119 Ibid. 

51 

 
 
 
                                                           
7.1.4 

Improve the overall efficiency of the asset recovery system 

PO1 will contribute to the overall efficiency of the asset recovery system to a low extent 
since  it  promotes  the  exchange  of  best  practices  and  further  guidance  on  a  number  of 
relevant  aspects  such  as  financial  investigations  or  asset  management.  PO2  will 
contribute  to  the  efficiency  of  the  recovery  system  as  whole  in  a  more  substantial 
manner  in  that  it  obliges  Member  States  to  adopt  concrete  measures  to  promote  asset 
recovery  as  part  of  a  more  strategic  and  coordinated  approach,  thereby  giving  asset 
recovery  more  prominence  while  at  the  same  time  ensuring  that  progress  can  be  better 
monitored  through  more  specific  data  collection  requirements.  PO3  will  further 
increase  the  efficiency  by  requiring  Member  States  to  set  up  coordination  and 
cooperation  mechanisms  among  the  multitude  of  actors  and  more  stringent  rules  on 
monitoring the functioning of asset recovery measures, the identification of possible gaps 
and  measures  to  remedy  identified  shortcomings.  The  requirement  to  establish  asset 
registries  would allow the relevant  actors  and in  particular Asset  Recovery  Offices  and 
Asset  Management  Offices  to  have  real  time  information  about  the  relevant  assets  and 
measures  taken  to  ensure  adequate  feedback  and  coordination  between  relevant  actors 
responsible for the different asset recovery phases. PO4 would allow for better steer of 
asset  recovery  measures  taken  during  different  phases  and  by  different  actors  by 
establishing  one  single  body  responsible  for  the  general  oversight  as  well  as  data 
collection. Better information about identified assets and their status – provided through 
asset  registries  would  be  available  also  for  Asset  Recovery  Offices  and  Asset 
Management  Offices  in  other  Member  States  further  strengthening  asset  recovery  in  a 
cross border context. 

Conclusion 

All  policy  options  would  contribute  to  different  degree  to  the  effectiveness  criterion, 
being interlinked and mutually reinforcing. However, certain individual measures carry a 
greater weight in the assessment than others. On the tracing policy objective, measures 
which would ensure the systematic tracing of assets and financial investigations are to be 
considered particularly effective. On the management policy objective, measures which 
would include the effective implementation of efficient management rules would lead to 
a  higher  effectiveness  score.  On  confiscation,  a  broader  scope  would  be  the  most 
effective in order to ensure the capturing of a higher percentage of criminal proceeds. 

PO1 is therefore the least effective in that it relies exclusively on voluntary actions by 
the different  actors in  Member States  within the  current  legal  framework, and does not 
guarantee  the  effective  implementation  of  the  measures  which  would  meet  the  tracing, 
management,  and  confiscation  objectives.  While  some  of  the  shortcomings  in  the 
application  of  the  rules  can  be  expected  through  increased  awareness,  guidance  and 
improved skills this option will  not overcome regulatory shortcomings identified and 
as a consequence not solve the problems caused by large criminal activities conducted by 
organised crime groups in Europe.  

52 

 
 
 
PO2 is  moderately  effective:  it strengthens  asset tracing capabilities to some degree 
and  contributes  to  an  overall  improvement  of  asset  tracing  and  management  planning, 
thus  efficiently  achieving  to  a  moderate  degree  the  policy  objectives  of  tracing  and 
management.  The  effectiveness  is  however  limited  because  these  measures  do  not 
provide sufficiently strong safeguards against the dispersion or depreciation of identified 
assets  and  because  confiscation  measures  remain  limited  in  scope,  achievining  the 
confiscation policy objective only to a limited extent. 

PO3  is  very  effective:  it  significantly  strengthens  the  capabilities  and  powers  of  the 
competent  authorities  and  in  particular  Asset  Recovery  Offices  and  Asset  Management 
Offices as part of a more strategic and systematic use of financial investigations and on 
the  basis  of  clear  standards  and  requirements  regarding  asset  tracing  and  management. 
These measures  achieve  the tracing and management policy objectives  to a high  extent 
by equipping relevant authorities with the tools necessary to achieve the policy goal and 
establishing  stronger  obligations  on  Member  States.  Moreover,  the  main  aspect 
contributing to the effectiveness of PO3 is however the requirement for Member States to 
allow for confiscation of criminal assets which cannot be directly linked to a specific 
offence and this in relation to an extended list of criminal offences, which would broaden 
confiscation  possibilities  to  meet  the  confiscation  policy  objective  to  a  high  extent. 
Compared to  PO2, measures under PO3 are significantly more  effective  because of the 
particular  importance  and  impact  of  more  systematic  financial  investigations  and  the 
significantly broadened confiscation possibilities. 

While contributing to all specific policy objectives PO4 is only slightly more effective 
than  the  previous  option  insofar  as  it  sets  out  in  further  detail  certain  powers  and 
obligations  providing  the  competent  authorities  with  the  most  extensive  tools  and 
competences  and  ensuring  swifter  cooperation  between  the  different  actors  (also  cross 
border). 

7.2 

Efficiency  

All envisaged policy options would lead to positive results from a cost-benefit analysis120 
(i.e.  analysis  of  potential  benefits  as  compared  to  the  estimated  costs  of  the  different 
options), considering that the costs of the different measures are offset by the benefits for 
the State budget of a higher asset recovery rate, and by the benefit of society as a whole, 
which would benefit from increased safety and economic health derived from a reduced 
criminal  activity.  Even  though  the  measures  are  interlinked  and  mutually  reinforcing, 
certain individual measures carry a greater weight in the assessment than others, with the 

120 Information on the costs for the preferred option are found in Annex 3. Information on the costs for the 
other  options  are  based  on  the  Impact  Assessment  study,  with  the  costs  presented  herein  adapted  to  the 
measures as considered in this Impact Assessment. Estimations on the benefits of every option in terms of 
potential  increase  of  confiscated  assets  are  based  on  the  estimation  in  the  Impact  Assessment  study  of 
confiscated  assets  in  2019  (see  Annex  4,  table  7)  and  a  qualitative  assessment  of  the  benefits  of  the 
measures in terms of improved asset tracing, management, confiscation methods and overall improvement 
in the efficiency of the asset recovery system. 

53 

 
 
 
                                                           
overall  efficiency  score  depending  on  the  costs  and  benefits  of  certain  individual 
measures and their weight in achieving the policy objectives.  

the  management  policy  objective, 

On the tracing policy objective, the costs of implementation of existing measures are to 
be  balanced  with  the  benefits  which  would  arise  from  a  greater  number  of  identified 
assets.  On 
the  efficiency  criterion  would 
fundamentally depend on whether the proposed measures would lead to  a cost-efficient 
management system, with the costs of putting in place management structures and more 
stringent  management  provisions  to  be  compared  and  balanced  with  the  benefits 
stemming  from  overall  lower  management  costs  and  higher  returns  regarding  the  final 
value  of  confiscated  property.  On  the  confiscation  policy  objective,  the  costs  of 
establishing  further  confiscation  measures  are  to  be  compared  and  balanced  with  the 
benefits  stemming  from  confiscating  a  greater  number  of  assets,  both  in  terms  of 
revenues and in terms of impacts on organised crime. On the policy objective to increase 
the  overall  efficiency  of  the  asset  recovery  system,  the  costs  stemming  from 
developing  a  coherent  national  strategy  on  asset  recovery  and  setting  up  the  structures 
necessary  to  implement  it  are  to  be  compared  and  balanced  with  the  overall  benefits 
stemming from improving the asset recovery system as a whole. 

PO1  presents  the  lowest  costs  of  all  options  considered:  approximately  EUR  1.53 
million devoted annually to holding meetings for exchanging best practices, developing 
guidelines  and  delivering  training  activities  (with  costs    being  shared  between  Member 
States  and  the  Commission  or  EU  agencies).  Such  limited  costs  would  certainly  be 
compensated by the slightly higher rate of assets returned to the State resulting from 
the improvements in the capacity of authorities to detect, confiscate and manage criminal 
assets. However, such financial benefits would be relative low compared to other options 
and very much depend on the willingness of Member States to incorporate best practices 
in  their  national  frameworks.  The  benefits  in  terms  of  remedies  to  harm  inflicted  by 
organised  crime  (including  victim  compensation  or  reuse  for  public  interest  or  social 
purposes) would be relatively small, given the expected moderate increase in the rates 
of  asset  recovery.  Likewise,  the  impact  in  fighting  criminality  would  result  in  limited 
benefits for companies and for the society as a whole. 

The costs are considerably higher for PO2, estimated to be in the order of at least EUR 
8.6-million.  The  main  expenses  derive  from  the  investments  required  to  provide  Asset 
Recovery  Offices  with  access  to  databases,  to  ensure  that  the  competent  authorities 
including  in  particular  Asset  Recovery  Offices  have  the  necessary  resources  and  skills 
and to implement the requirements on data collection121. Most of these costs would span 
over  time,  with  the  majority  of  the  expenses  to  be  provided  in  the  first  years  of 
implementation.  

Such  costs  are  however  proportionate  to  the  benefits  resulting  from  in  particular 
reinforced capacities to identify and thereafter freeze criminal assets (including through 

121 See annex 3 for a more detailed break-out, insofar as these measures are also included in PO3. 

54 

 
 
 
                                                           
improved  access  to  information  and  strengthened  cooperation)  and  efficiency  gains 
related to both the identification and management of assets. Some additional benefits can 
be expected from the targeted improvements of the confiscation instruments. The number 
(and  value)  of  confiscation  orders  is  estimated  to  increase  to  a  considerable  extent. 
Should this increase range between 10% and 20% compared to the baseline –a plausible 
range  when  considering  the  measures  envisaged-,  it  would  represent  an  additional 
amount of recovered assets of approximately EUR 100-200 million per annum across the 
EU.  

In  addition  to  these  direct  economic  benefits,  which  outweigh  the  estimated  costs 
considerably,  the  latter  should  be  seen  against  the  overall  impact  that  such  a  higher 
confiscation rate and the corresponding reduction in criminal activities would have on the 
economy  and  the  society.  Illicit  activities  would  be  expected  to  decrease  to  a  certain 
extent,  and  therefore  citizens  would  benefit  from  higher  levels  of  safety  against  crimes 
and companies would be less affected by fraud and distortions to competition.  

For the above reasons and in particular the significant benefits that can be expected from 
measures under PO3, the efficiency rating for PO3 is significantly higher than for PO2. 

The  costs  for  PO3  are  significantly  higher  than  for  the  previous  options,  since  they 
comprise  one-off  costs  estimated  to  be  between  EUR  31.6  and  38.4  million,  with  an 
approximate range of EUR 12 to 19 million every year derived from recurrent expenses. 
Besides  costs  derived  from  the  measures  in  PO2  which  are  included  in  this  option  and 
those  related  to  the  establishment  of  a  specialised  Asset  Management  Offices  with 
additional tasks, new costs of significant importance relate to the additional resources to 
develop  expertise  needed  to  carry  out  interlocutory  sales  and  pre-seizure  planning,  the 
additional training required for law enforcement to systematically trace assets and on the 
new confiscation model  as well as the establishment of asset registries.  

However,  similar  to  PO2,  the  costs  of  PO3  would  be  largely  offset  by  the  higher 
confiscation  rates.  It  is  conceivable  that  the  measures  could  lead  to  an  increase  that 
could even double the current confiscation rate, which could mean one billion euros more 
in recovered assets every year. An increase of such an approximate magnitude is due to 
the  significant  extension  of  the  confiscation  possibilities  and  potential  criminal  assets 
covered,  but  also  due  to  better  identification  of  illicit  assets  and  more  efficient 
management  (ensuring  that  illicit  assets  maintain  or  even  increase  in  value).  While  the 
measures  in  PO3  imply  additional  costs,  they  are  also  expected  to  generate  efficiency 
gains,  e.g.  through  closer  cooperation  between  the  different  stakeholders  both  cross 
border and internally.  

More  importantly,  by  increasing  in  such  a  substantial  manner  the  amount  of funds 
taken away from the hands of criminals (deriving from the much-increased capacity to 
trace  assets  and  especially  to  confiscate  them  through  the  application  of  extended 
confiscation  and  the  new  confiscation  model  to  a  large  set  of  crimes),  the  measures 
would contribute significantly to disrupt criminal activity. This would in turn positively 
55 

 
 
 
impact  the  competitiveness  of  companies  and  the  economy  as  a  whole  and  increase 
significantly the safety of citizens, who would also benefit from greater opportunities for 
compensation (when falling victims to organised crime) and from social activities funded 
through confiscated assets.      

PO4 presents costs similar to the ones expected for PO3, in particular for one-off costs, 
which  would  be  in  the  range  of  EUR  41.3  to  45.7  million.  These  considerable  costs 
derive  from  the  costs  of  the  measures  in  PO3  and  the  additional  costs  resulting  from 
establishing  new  bodies  and  interconnecting  asset  registries.  Such  costs  would  only  be 
partially  offset  by  the  efficiencies  gained  from  joining  the  functions  of  asset 
management  and  asset  tracing  under  one  roof,  as  well  as  further  (marginal) 
improvements  when  it  comes  to  cross  border  cooperation  and  safeguarding  identified 
illicit assets.  

However, additional measures such as the extension of financial investigations and more 
efficient  cross-border  asset  management  would  only  bring  relative  gains  compared  to 
PO3.  As  a  result  of  these  measures,  the  asset  recovery  rate  would  increase  to  a  certain 
extent compared with PO3, although the growth would be minor in relation to PO3 and 
the indicative volume of additional assets confiscated would be on the range of EUR 50-
100 million. While such an increase would most certainly offset  the additional costs of 
this option, overall the qualitative leap observed in PO3 as regards deterring criminal 
activity would be maintained but only marginally increased in PO4, and so would the 
positive impacts on the economy and the society as a whole. 

Table 5: Summary of costs and benefits  

Options 

Costs 

Benefits 

PO1 

PO2 

Approximately 
EUR 1.53 million 

At  least  EUR  8.6-
million 

Moderate increase in the rates of asset recovery 

Reinforced capacities to identify and freeze criminal assets;  

Increased  efficiency  in  the  identification  and  management  of 
assets; 

Minor  additional  benefits  from  the  targeted  improvements  of 
the confiscation instruments; 

Approximate additional amount of recovered assets in a range 
of EUR 100-200 million every year. 

PO3 

Between  EUR  31.6 
and 38.4 million 

Better identification of illicit assets; 

More efficient management; 

Increased capacity to confiscate assets through the application 
of extended confiscation and the new confiscation model to a 
large set of crimes; 

56 

 
 
 
Approximate additional amount of recovered assets in an order 
of magnitude of EUR one billion more every year. 

PO4 

Between  EUR  41.3 
and 45.7 million 

Minor  efficiency  gains  as  compared  to  PO3  from  joining  the 
functions of asset management and asset tracing;  

Marginal  improvements  as  compared  to  PO3  to  cross  border 
cooperation; 

Approximate additional amount of recovered assets in an order 
of  magnitude  of  EUR  1.05-1.10  billion  more  every  year  as 
compared to the baseline. 

Overall,  PO3  is  considered  to  be  the  most  efficient  option  when  comparing  the 
additional  costs  with  the  increased  effectiveness  of  the  asset  recovery  system  and  the 
positive impacts on security and therefore on the economy and the society. 

7.3 

Coherence 

As indicated in the Evaluation, the main deficiencies as regards the coherence with other 
EU legal acts and policies relate to: 

-  The  scope  of  the  Confiscation  Directive  is  narrower  than  the  one  of  the  Asset 
Recovery  Offices  Council  Decision  but  also  of  other  recent  legislative 
instruments (the Regulation on Mutual Recognition of freezing and confiscation 
orders, the Directive on Countering Money Laundering by means of criminal law 
and the Anti-Money  Laundering Directive)122 that cover a much larger range of 
illicit activities generating huge profits. Moreover, the scope of the Confiscation 
Directive  is  narrower  than  the  EMPACT  priorities  for  the  cycle  2021-2025, 
agreed  by  the  Council  on  12th  May  2021  and  including  high-risk  criminal 
networks (looking at organised crime but also at their use of corruption), cyber-
in  human  beings,  child  sexual  exploitation,  migrant 
attacks, 
smuggling,  drugs  trafficking,  fraud,  economic  and  financial  crimes  (including 
online  fraud  schemes,  excise  fraud,  MTIC  fraud,  intellectual  property  crime, 
counterfeiting  of  goods  and  currencies  and  money  laundering),  organised 
property crime (including the trafficking of cultural goods), environmental crime 
and firearms trafficking.  

trafficking 

- 

the  confiscation  tools  which  are  narrower  to  some  extent  in  the  Confiscation 
Directive  than  in  the  Mutual  Recognition  Regulation.  The  latter  does  not  only 

122 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,  OJ  L  303,  28.11.2018;  Directive  (EU) 
2018/1673  of  the  European  Parliament  and  of  the  Council  of  23  October  2018  on  combating  money 
laundering  by  criminal  law,  OJ  L  284,  12.11.2018,  p.  22-30;  Directive  (EU)  2015/849  of  the  European 
Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the 
purposes of money laundering or terrorist financing, OJ L 141, 5.6.2015, p. 73–117. 

57 

 
 
 
 
                                                           
enable  the  recognition  of  orders  covered  by  the  Confiscation  Directive,  but  it 
covers  all  types  of  freezing  orders  and  confiscation  orders  issued  following 
proceedings in relation to a criminal offence. This includes other types of orders 
issued without a final conviction;     

- 

the level of EU intervention on the repressive and preventative dimension of 
anti-money  laundering  policies.  As  highlighted  in  the  Evaluation,  there  is  a 
stark  contrast  between  the  high  level  of  details  of  the  roles  and  powers  of 
different  actors  contained  in  the  asset  recovery  framework  and  the  Anti-Money 
Laundering  Directive,  which  results  in  a  more  strategic  approach  and  better 
cooperation in the preventative dimension of anti-money laundering policies. This 
is reflected in the higher effectiveness that Member States have achieved on the 
preventative side than on the repressive angle, as reflected in evaluations by the 
FATF or Moneyval.   

The scoring of the coherence criterion would therefore depend on the extent to which the 
policy  option  would  address  the  above-outline  policy  incoherence.  In  relation  to  the 
scope, all legislative options (PO2, PO3 and PO4) would increase the coherence of rules 
governing Asset Recovery Offices and confiscation instruments. PO2 would increase the 
coherence in scope only to a very limited degree. PO3 would increase such coherence 
to  a  greater  level,  by  adding  a  wider  range  of  offences  covered  by  the  Mutual 
Recognition  Regulation,  the  Directive  on  Countering  Money  Laundering  by  means  of 
criminal  law  and  the  Anti-Money  Laundering  Directive,  a  coherence  that  would  be 
achieved in its entirety under PO4. 

As regards the  confiscation tools covered,  PO3  (and PO4, insofar as the measures of 
PO3 also apply in PO4) would ensure a greater coherence with the Mutual Recognition 
Regulation.  PO3  would  enlarge  the  situations  where  non-conviction  based  confiscation 
would  apply  and  introduce  confiscation  models  that  enable  authorities  to  confiscate 
assets  of  suspects  or  offenders  for  which  the  court  is  sufficiently  convinced  that  the 
suspect belongs to organised criminal groups or is involved in particularly serious crimes 
and  that  the  assets  are  the  proceeds  of  crime.  By  doing  so,  PO3  would  ensure  that  the 
different confiscation tools for which mutual recognition is enabled would be available to 
all Member States. 

Finally,  the  various  options  would  ensure  that  Member  States  develop  a  strategic 
approach  to  asset  recovery  (PO2),  set  the  cases  where  assets  should  be  traced  through 
financial  investigations  (PO3)  and  regulate  to  increasing  degrees  the  powers  and 
information  available  to  Asset  Recovery  Offices  and  the  cooperation  among  them.  In 
doing  so,  the  different  legislative  options  would  increase  the  coherence  with  the 
preventative side of the Anti-Money Laundering regime, which requires Member States 
and private entities to adopt a risk-based approach and regulates the powers, accessible 
information and cooperation of relevant actors such as Financial Intelligence Units. PO2 
and to a larger extent PO3 would ensure a more structured approach to asset recovery 

58 

 
 
 
and to the roles of and cooperation among different actors, equating it to the preventative 
dimension.  Therefore,  while  coherence  with  EU  policies  would  be  achieved  to  some 
extent  by  PO2  and  to  a  large  extent  by  PO3  and  PO4,  the  non-legislative  intervention 
(PO1) would only improve coherence to a negligible extent.  

7.4 

Proportionality (including impacts) 

The  analysis  of  proportionality  focuses  on  the  extent  to  which  the  measures  are 
proportionate  to  the  administrative  burden  on  Member  States  and  the  interference  on 
their  discretion  to  organize  themselves  and  balancing  impacts  in  terms  of  in  particular 
effectiveness with interferences with fundamental rights.  

Measures  that  may  be  similar  in  terms  of  efficiency  or  effectiveness  may  nevertheless 
have a different proportionality score depending on the “costs” at which such otherwise 
efficient  and  effective  measures  come  in  terms  of  impact  on  fundamental  rights  or 
Member  States’  prerogatives.  Similarly,  impacts  in  terms  of  either  interference  with 
fundamental rights or Member States prerogatives can be different depending on the kind 
of  measures  that  contribute  to  the  efficiency  or  effectiveness  of  asset  tracing, 
management,  confiscation  as  well  as  overall  strategic  framework.  The  proportionality 
assessment  weighs 
the  overall 
proportionality rating. 

these  different  considerations  when  coming 

to 

All options, especially PO2-4, increase the administrative burden on Member States, 
especially in relation to measures that promote a more systematic asset tracing, access by 
Asset  Recovery  Offices  to  the  relevant  data,  or  urgent  freezing  powers.  Regarding 
confiscation and management, the administrative burden is higher in PO3 and PO4, in 
particular  in  relation  to  the  incorporation  of  additional  confiscation  instruments  and 
measures to  maintain the value of assets (e.g. through interlocutory sales) as well as in 
relation to the creation (and interconnection) of asset registries. However, in all cases the 
additional administrative burden is proportionate to the benefits.  

As  regards  the  interference  with  Member  States  organisational  discretion,  PO1  has 
no impact, while PO2 interferes in relation to aspects such as the development of a plan 
on  asset  recovery  or  the  establishment  of  asset  management  contact  points.  This 
interference  is  higher  in  PO3,  since  it  establishes  concrete  obligations  on  financial 
investigations –albeit limited to certain crimes and situations- or the establishment of an 
entity  specialised  in  managing  assets  that  would  support  existing  managing  authorities 
and have the possibility of managing assets. However, given the deficiencies identified in 
those areas and the need to achieve progress in relation to asset tracing and management, 
the level of interference is justified.  

This  is  not  necessarily  the  case  in  PO4.  The  limited  effectiveness  gains  of  measures 
such  as  the  automatic  launch  of  financial  investigations  for  all  crimes  or  the 
concentration of asset tracing and management tasks in one entity (Asset Recovery and 
Management  Offices)  could  be  considered  as  going  beyond  what  is  necessary  to 

59 

 
 
 
achieve  the  objective  of  improving  the  efficiency  of  the  asset  recovery  system.  Such 
measures would risk representing an excessive interference with the freedom of Member 
States to organise their national set-ups as they see best. This goal is achieved in a more 
proportionate  manner  through  requirements  for  an  action  plan  or  coordination 
mechanisms  (PO2  and  PO3).  Moreover,  the  extension  of  the  scope  as  foreseen  in  PO4 
would  mean  that  powerful  confiscation  tools  such  as  extended  confiscation  or  the  new 
confiscation model would be applicable to all crimes. However, such tools are designed 
to  counter  the  complex  nature  of  modern  organised  crime.  Therefore,  by  allowing  its 
application to all crimes -even those not necessarily linked to organised crime activities- 
PO4 could be considered as less proportionate.  

When  balancing  relevant  impacts  including  in  particular  fundamental  rights  impacts, 
proportionality  must  be  ensured  between  the  objective  justification  and  need  for  the 
measures  in  question  (e.g.  in  terms  of  combating  organised  crime)  and  the  potential 
interference with fundamental rights that asset recovery measures could have, in line with 
the  assessment  undertaken  section  6.4.  Where  the  impact  on  fundamental  rights 
(including in particular property right or fair trial)/rights of defence) is highest (as under 
PO3  and  PO4,  where  the  fundamental  rights  impact  is  the  highest  but  outweighed  by 
expected benefits) the resulting interference with fundamental rights is not only justified 
by the need to effectively deprive criminals and in particular organised crime from their 
illicit assets e.g. through extended confiscation possibilities (capturing more illicit gains 
from criminal activities going beyond the proceeds from a specific crime), or measures to 
prevent  asset  flight  (e.g.  through  urgent  freezing  powers).  The  higher  impact  on 
fundamental  rights  will  also  need  to  be  paired  with  stronger  safeguards,  including 
effective remedies available to the person affected. 

In  light  of  all  the  above,  PO1-3  would  be  entirely  proportionate,  while  PO4  would  be 
considered  partially  proportionate.  The  main  reason  for  the  different  proportionality 
rating of PO3 and PO4 is the interference with Member State prerogatives by regulating 
in more detail procedures at national level without such interference being compensated 
by additional efficiency or effectiveness gains. 

8.  PREFERRED OPTION 

8.1 Policy Option 3 

In  a  situation  where  only  1%  of  criminal  proceeds  are  confiscated,  criminals  are  not 
deprived of the entirety of their illegal gains and damage generated by criminal activities 
is not sufficiently remedied. Ambitious measures are needed to substantially increase the 
capabilities  of  the  relevant  authorities  to  swiftly  and  effectively  identify,  manage  and 
confiscate  illicit  assets.  However,  each  policy  option  also  includes  necessary  trade-offs 
between,  on  the  one  hand,  the  level  of  impact  on  organised  crime  and  the  ability  to 
disrupt such activities through the recovery of assets, and the potential interference with 
fundamental rights and Member States’ prerogatives and budgetary burdens on the other.  

60 

 
 
 
While  measures  under  PO1  can  indeed  make  a  valuable  contribution  to  improving  the 
situation  within  the  existing  legal  framework,  it  would  only  marginally  contribute  to 
overcome the scale and nature of the problem. As shown in the Evaluation, it is precisely 
the large margin of discretion of the current legal framework that is at the origin of many 
of  the  problems  identified.  Therefore,  it  is  difficult  to  address  them  through  non-
legislative  measures.  Issues  such  as  the  lack  of  prioritisation  of  asset  tracing  or  the 
inefficiency in asset management can only be overcome if there is a legal obligation. PO1 
would  have  little  interference  with  fundamental  rights  and  Member  States  prerogatives 
and budgetary burdens, but would as a trade-off have low effectiveness in addressing the 
problem.  Measures  under  PO1  could  and  should,  however,  be  taken  to  complement 
legislative changes. 

Similarly,  PO2  would  contribute  only  to  a  limited  extent  to  improving  the  current 
situation in that the measures taken would maintain a relatively large margin of discretion 
for Member States and add only few additional requirements compared to the status quo. 
PO2  would  have  limited  interference  with  fundamental  rights  and  Member  States 
prerogatives  and budgetary burdens, but  would as a trade-off have low effectiveness  in 
addressing the problem. 

PO4  can  be  expected  to  be  more  effective  in  some  respects  (e.g.  more  specific 
requirements on urgent freezing powers or information exchange, further extension of the 
scope  of  confiscation  measures  compared  to  PO3,  requirements  to  centralise  expertise 
and  competences)  but  not  necessarily  in  others  (e.g.  on  financial  investigations  for  all 
crimes).  However,  the  trade-off  of  PO4  is  that  expected  gains  in  effectiveness  are 
expected  to  be  limited  compared  to  the  extra  costs  and  potential  fundamental  rights 
impacts.  Moreover,  this  option  would  have  significant  drawbacks,  as  it  would  imply 
more  significant  and  to  some  extent  excessive  interference  with  Member  States’ 
freedom  to  organise  asset  recovery  according  to  their  choices  and  national  preferences 
without 
fully 
counterbalancing this interference. Furthermore, an all crimes approach for far reaching 
confiscation  measures  would  have  a  high  impact  on  citizens  and  increase  the  risk  of 
confiscation  not  meeting  the  public  objective  test  and  go  beyond  what  is  necessary  to 
fight organised crime. 

terms  of  effectiveness  and  efficiency 

the  additional  gains 

in 

As  regards  PO3,  the  measures  to  ensure  asset  tracing  in  the  more  proceed-generating 
cases, to reinforce Asset Recovery Offices’ powers and roles, to ensure the adoption of 
effective  asset  management  mechanisms  and  confiscation  models  would  raise  the 
effectiveness  of  the  asset  recovery  system  to  a  significant  extent.  Stakeholders  (law 
enforcement, judicial authorities, Europol, Asset Recovery Offices and NGOs) recognise 
the effectiveness of the measures under PO3. Despite the costs and potential fundamental 
rights impacts of confiscation measures, these measures are considered as efficient given 
the qualitative leap in the rate of assets taken away from criminals, and proportionate 
in  relation  to  the  administrative  burden  and  interference  with  Member  States 
organisational  set-ups.  In  terms  of  fundamental  rights,  the  impacts  of  PO3  and  in 

61 

 
 
 
particular  of  the  new  confiscation  model  are  balanced  against  safeguards  and  policy 
objective sought,  given the scale of the problem. The trade-offs of PO3  are therefore  a 
higher  effectiveness  and  efficiency  of  the  asset  recovery  system,  and  the  potential 
interference  with  fundamental  rights,  and  Member  States’  prerogatives  and  budgetary 
burdens on the other. 

The overall impact of PO3 will differ on Member States, given the heterogeneity of the 
asset  recovery  set-ups  between  jurisdictions.  While  all  the  20  EU  Member  States  that 
have  been  subject  to  FATF/Moneyval  fourth  round  of  mutual  evaluations  were 
considered  as  fully  or  largely  compliant  from  a  legal  perspective  with  the  FATF 
recommendations (which are less detailed than the Confiscation Directive), effectiveness 
of the asset recovery systems varied. Member States whose asset recovery system was 
evaluated  to  be  of  low  effectiveness  (HU,  MT,  PL,  SK)  are  therefore  likely  to  be 
impacted by the reform of PO3 to a high extent. The majority of Member States whose 
asset recovery system was evaluated to be moderately effective (AT, BE, CY, DK, EL, 
FI,  HR,  IE,  LU,  LV,  LT,  PT)  will  be  equally  moderately  affected  by  the  measures  of 
PO3.  On  the  other  hand,  the  countries  with  a  higher  effectiveness  ratings  (CZ,  ES,  IT, 
SE)  are  likely  to  be  less  affected  by  the  new  measures,  although  they  would  have  to 
introduce some changes to their national frameworks.  

At the same time, the resources that Member States would have to devote would not only 
depend on the regulatory changes foreseen in the preferred option, but also on the level 
of threat they face, since some Member States have higher levels of criminal activity than 
others or present certain characteristics (the size of the real estate market, the importance 
of the financial system) that make them more attractive to criminal investments. This will 
affect the impact of PO3 on different Member States. The extent to which Member States 
have  complied  or  gone  beyond  current  requirements  also  provides  a  picture  of  the 
countries  most  significantly  affected.  However,  all  Member  States  would  be  positively 
impacted by lowering the presence of organised crime in their territory which affects all 
layers of society in all the Member States. 

In conclusion, PO3 strikes the best balance between effectiveness, cost efficiency and 
impact on fundamental rights and is overall proportionate to the scale of the problem.  

The  effective  implementation  of  the  new  rules,  including  softer  options  such  as  the 
availability of necessary resources, will be ensured through monitoring Member States’ 
national strategies on asset recovery (which the preferred option would require Member 
States to undertake) which will ensure that the required measures, in all phases of asset 
recovery,  are  implemented  and  assessed  nationally  as  a  whole.  This  will  ensure  that 
Member States themselves assess their own situation on the ground, whilst viewing the 
main  asset  recovery  problem  in  all  its  phases  and  not  in  silos,  and  design  how  to  best 
implement  rules  of  softer  nature  in  a  manner  tailored  to  their  national  specificity. 
Moreover, the Commission will monitor the implementation of the new rules through a 
combination of monitoring transposition measures by Member States and dialogue with 

62 

 
 
 
stakeholders  at  European  and  international  level.  Data  such  as  availability  of  the 
necessary resources will be collected through consultation of the Asset Recovery Offices 
Platform  and the Contact  Committee of the Confiscation Directive, as well as agencies 
such as Europol and Eurojust.  

Figure 6: intervention logic PO3  

8.2 REFIT (simplification and improved efficiency) 

Per  the  Commission’s  Regulatory  Fitness  and  Performance  Programme  (REFIT),  all 
initiatives aimed at changing existing EU legislation should aim to simplify and deliver 
stated policy objectives more efficiently (i.e. by reducing unnecessary regulatory costs). 
The analysis of impacts suggests that the preferred option is anticipated to have a limited 
and at times positive impact in terms of burden on Member States. 

To  the  extent  that  the  measures  foresee  a  more  strategic  approach  to  asset  recovery 
(including  the  requirement  to  ensure  a  more  systematic  identification  of  assets  by  law 
enforcement  authorities),  and  provide  for  more  effective  tools  of  confiscating  assets 
(including  the  possibility  to  confiscate  illicit  asset  related  to  criminal  activities  without 
requiring the conviction for a specific crime) and foresee the establishment of “centres of 
expertise”  with  the  competent  authorities  having  the  necessary  resources,  skills  and 
powers,  the  asset  recovery  process  as  a  whole  as  well  as  cross  border  cooperation  will 
become  significantly more efficient. 

63 

 
 
 
 
Regulatory burden related to these measures will be – as shown in the sections above – 
more than offset by the benefits in terms of being able to identify freeze and  confiscate 
more illicit assets and maintain or even maximise their value. 

While ensuring that judicial authorities get acquainted with the new confiscation model 
would require important efforts in terms of training and guidance in the first place, in the 
long term  the availability  of such an effective tool  would reduce the current  burden on 
authorities to confiscate criminal assets.  

Requirements  to  facilitate  Asset  Recovery  Offices’  exchange  of  information,  such  as 
facilitating their access to relevant databases, would reduce the current burden in cross-
border  cooperation  among  Asset  Recovery  Offices.  Given  the  specialised  expertise  of 
Asset Recovery Offices, ensuring they can support investigators in tracing assets would 
increase the overall efficiency of asset tracing and reduce the burden on non-specialised 
law  enforcement  units.  Similarly,  requirements  for  the  establishment  of  an  Asset 
Management Office would reduce the overall burden  compared to the current situation, 
where  in  many  Member  States  asset  management  is  carried  out  by  a  wide  array  of 
authorities  without  the  sufficient  expertise  or  support,  in  particular  to  manage  complex 
assets such as companies. 

8.3 Application of the “one in, one out” approach  

This  initiative  would  not  entail  neither  administrative  costs  nor  savings  for  the  private 
sector, and, as to adjustment costs, it would mostly concern public authorities.  

9.  HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? 

To monitor the effective implementation of the revised legislation, the Commission will 
publish implementation reports. In addition, it is essential that the implementation of the 
preferred  policy  option  and  the  achievement  of  the  objectives  is  closely  monitored.  A 
robust  monitoring  and  evaluation  mechanism  is  crucial  to  ensure  that  the  envisaged 
beneficial  effects  of  the  improvements  to  the  asset  recovery  regime  materialise  in 
practice.  

The Commission  should also  evaluate the implementation of the  new legal framework, 
no sooner than four years after the date of transposition of the instrument to ensure that 
there is enough data  relating to  the functioning  of the instrument. The Evaluation  shall 
include  stakeholders’  consultation  to  collect  feedback  on  the  effects  of  the  legislative 
changes.  The Commission will present  a Report to  the European Parliament and to the 
Council on the functioning of the legislative instrument. The report shall also include an 
evaluation  of  how  fundamental  rights  and  principles  recognised  by  the  Charter  of 
Fundamental Rights of the European Union have been respected.  

To  ensure  the  effective  implementation  of  the  measures  foreseen  and  to  monitors  their 
results,  the  Commission  will  closely  work  with  relevant  stakeholders  from  national 
authorities in the Member States.  

64 

 
 
 
The proposed, not exhaustive list of indicators will be based on the operational objectives 
pursued by the measures identified under the preferred option: 

Table 6: Monitoring indicators based on the operational objectives  

Main objectives 
Strengthen 
tracing capabilities 

asset 

Monitoring indicators 
  Number of financial investigations launched 
  Number  of  SIENA  exchanges  among  Asset 

Data Sources 
  Member States 
  National  Strategies  on  Asset 

Ensure  efficient  asset 
management  

Strengthen 
confiscation 
capabilities  

Improve  the  overall 
efficiency  of  the  asset 
recovery system 

Recovery Offices 

  Speed  and  completeness  of  Asset  Recovery 
Offices’ answers in information exchanges 

  Value  of  assets  at  the  time  of  freezing  vs. 
(including 

value  of  assets  confiscated 
proceeds from interlocutory sales) 
  Value of assets when finally disposed of 
  Number  and  proceeds  from  interlocutory 

sales 

  Number  of  pre-seizure  planning  assessments 

undertaken 

  Management  costs  vs  value  of  assets 

disposed 

Recovery 

  Europol 
  FATF  Mutual 

Reports 

Evaluation 

  Stakeholders’ consultation 
  Monitoring of transposition 
  Member States  
  Statistics on interlocutory sales 
  National  Strategies  on  Asset 

Recovery 

  Stakeholders’ consultation 
  Monitoring of transposition 

  Number and value of assets confiscated 
  Number  and  value  of  standard  confiscation 

  Member States 
  National  Strategies  on  Asset 

orders 

  Number  and  value  of  value  confiscation 

orders 

  Number and value of third-party confiscation 

orders 

  Number  and  value  of  extended  confiscation 

orders 

  Number  and  value  of  non-conviction  based 

confiscation orders 

Recovery 
  Monitoring  of 

transposition 
(incl data including in the asset 
registry) 

  Stakeholders’ consultation 
  Eurojust 

  Number  and  value  of  unexplained  wealth 
to  criminal  activities  confiscation 

linked 
orders 
achievements  of  priorities  and  objectives 
under national strategies 

 

  Cooperation  between  different  national 

authorities 

  Training made available 
  Resources made available 
  Establishment and use of asset registries 

65 

  National  Strategies  on  Asset 
Recovery  including  data  on  its 
implementation 

  FATF  Mutual 

Evaluation 

Reports 

  Stakeholders’ consultation 
  Monitoring of transposition 

 
 
 
 
 
 
 
 
 
 
ANNEX 1: PROCEDURAL INFORMATION 

LEAD DG, DECIDE PLANNING/CWP REFERENCES 

The lead DG is the Directorate-General for Migration and Home Affairs (DG HOME) for 
the preparation of the initiative and the work on the Evaluation and Impact Assessment. 
The  agenda  planning  reference  are  PLAN/2020/8718  (freezing  and  confiscation  of 
proceeds of crime) and PLAN/2020/8719 (Asset Recovery Offices).  

ORGANISATION AND TIMING 

The  Inception  Impact  Assessment  was  published  on  9  March  2021.  Within  this 
framework, the Impact Assessment and the Evaluation were subsequently prepared. 

The  Inter-Service  Group  set  up  by  the  Secretariat-General  to  assist  with  the 
implementation  of  measures  related  to  the  Security  Union  was  consulted  within  the 
framework  of  the  preparation  of  this  policy  initiative.  The  Inter-Service  Group  was 
composed  of  the  following  Commission  Directorates-General  and  services:  Secretariat-
General  (SG);  Legal  Service  (LS);  Justice  and  Consumers  (JUST);  Financial  Stability, 
Financial  Services  and  Capital  Markets  Union  (FISMA);  European  Anti-Fraud  Office 
(OLAF);  Taxation  and  Customs  Union  (TAXUD);  Informatics  (DIGIT);  Education, 
Youth,  Sport  and  Culture  (EAC);  European  Civil  Protection  and  Humanitarian  Aid 
Operations  (ECHO);  European  External  Action  Service  (EEAS);  Employment,  Social 
Affairs  and  Inclusion  (EMPL);  Energy  (ENER);  Environment  (ENV);  Foreign  Policy 
Instruments  (FPI);  Internal  Market,  Industry,  Entrepreneurship  and  SMEs  (GROW); 
Human Resources and Security (HR DS), Joint Research Centre (JRC); Maritime Affairs 
and  Fisheries  (MARE);  Mobility  and  Transport  (MOVE),  Neighbourhood  and 
Enlargement Negotiations (NEAR); Regional and Urban Policy (REGIO); Research and 
Innovation  (RTD);  Health  and  Food  Safety  (SANTE);  TRADE;  Structural  Reform 
Support (REFORM); International Partnerships (INPTA); Eurostat (ESTAT).  

The  Inter-Service  Group  was  consulted  on  the  following:  (1)  the  Inception  Impact 
Assessment,  (2)  the  terms  of  reference  of  the  study  to  support  the  preparation  of  the 
Impact Assessment, (3) the consultation strategy, public consultation questionnaire, draft 
problem  tree,  (4)  the  Evaluation  intervention  logic  and  Evaluation  questions,  (5)  the 
Inception  Report  of  the  study  to  support  the  preparation  of  the  Impact  Assessment,  (6) 
the Interim Report and (7) Final Report for review of the same study, the (8) first and (9) 
second  draft  Impact  Assessment.  The  Inter-Service  Group  met  2  times,  during  (1)  the 
kick off meeting of the study to support the preparation of the Impact  Assessment, and 
(2) to discuss the draft Impact Assessment report. 

CONSULTATION OF THE RSB 

The  Directorate-General  for  Migration  and  Home  Affairs  submitted  the  present  Impact 
Assessment  report  to  the  Regulatory  Scrutiny  Board  (RSB)  on  2  February  2022.  The 
Regulatory  Scrutiny  Board  reviewed  the  draft  impact  assessment  at  its  meeting  of  2 
66 

 
 
 
March  2022  and  delivered  a  positive  opinion  without  reservations  on  4  March  2022, 
following  which  the  impact  assessment  was  revised  to  strengthen  the  presentation  and 
comparison of the policy options, including their costs, benefits, and impacts. The impact 
assessment  was  further  revised  to  better  reflect  the  views  of  different  stakeholder  and 
how the identified problems differ in the Member States. Finally, the revision outlines a 
first monitoring and evaluation programme of the envisaged proposal. 

EVIDENCE, SOURCES AND QUALITY 

The Impact Assessment is notably based on the ‘Study to support the preparation of an 
Impact Assessment on EU policy initiatives on asset recovery and confiscation’123 and on 
the  stakeholder  consultation  (see  Annex  2)  and  on  the  results  of  the  Evaluation  (see 
Annex  7).  The  Commission  applied  a  variety  of  methods  and  forms  of  consultation, 
ranging from consultation on the Inception Impact Assessment and a public consultation, 
which sought views from all interested parties, to targeted stakeholders’ consultation by 
way  of  questionnaires,  experts’  interviews  and  targeted  thematic  technical  workshops, 
which  focused  on  subject  matter  experts,  including  practitioners  at  national  level.  In 
particular,  the  Commission  organised  two  workshops  in  2021  on  asset  recovery:  the 
Asset  Recovery  Offices  Platform  Meeting124  of  25-26  May  2021  and  the  Contact 
Committee meeting of the Confiscation Directive125 of 1-2 June 2021, where additional 
data was collected among the participants also for the preparation of the Evaluation. 

In this context, the Commission also took into account the findings of the study on ‘Asset 
recovery  and  confiscation:  what  works  and  what  doesn’t  work’126  and  the  study  on  the 
transposition of Directive 2014/42/EU127, which were commissioned by DG HOME and 
developed  by  the  contractor  based  on  desk  research  and  the  following  stakeholder 
consultation  methods:  surveys,  interviews  with  subject  matter  experts,  questionnaires, 
and expert workshops. 

123  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016. 
124  The  Asset  Recovery  Offices  Platform  is  an  informal  group  set  up  by  the  European  Commission 
gathering  EU  AROs,  the  Commission  and  Europol  to  further  enhance  EU  cooperation  regarding  asset 
tracing and coordinate exchanges of information and best practices.  
125 The Contact Committee of the Confiscation Directive is an informal group of experts that support the 
Commission  in  the  implementation  of  the  Directive  2014/45/EU  and  in  the  exchange  of  best  practices 
among Member States.  
126  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing, 
confiscation 
2021, 
and 
HOME/2018/ISFP/FW/EVAL/0081. 
127 European Commission, Directorate-General for Migration and Home Affairs, Compliance assessment of 
measures  of  Member  States  to  transpose  Directive  2014/42/EU  (“Confiscation  Directive”)  and  legal 
consultancy on this Directive, Overall Report, 2019, HOME/2017/ISFP/FW/LECO/0084. 

–  what  works,  what 

not  work, 

recovery 

asset 

does 

67 

 
 
 
 
 
                                                           
ANNEX 2: STAKEHOLDER CONSULTATION (SYNOPSIS REPORT) 

This Annex provides a synopsis report of all stakeholder consultation activities 
undertaken in the context of this Impact Assessment.  

1.  Consultation Strategy  

To  ensure  that  the  general  public  interest  of  the  EU  in  relation  to  asset  recovery  and 
confiscation was properly considered in the Commission’s approach, a wide consultation 
of stakeholders was undertaken. The aim of the stakeholder consultation was:  

  To identify the problems in relation to asset recovery and confiscation  
  To  identify  the  effectiveness,  efficiency,  relevance,  coherence  and  EU  added 

value of the current instruments  

  To identify the roles of different actors in the actions to be taken and the level of 

action needed, in accordance with the principle of subsidiarity  

  To identify the possible options to tackle the problems identified and the impact 

of such options.  

Views  were  sought  from  a  range  of  stakeholders,  through  different  consultation  tools. 
These stakeholders related to Asset Recovery Offices, National Authorities (Judicial and 
Law  Enforcement),  EU  Agencies 
international 
organisations, the European Institutions, civil society organisations and from members of 
the  public.  During  the  consultation  process,  a  variety  of  methods  and  forms  of 
consultations were applied. They included:  

(Europol,  Eurojust,  CEPOL), 

  Consultation  on  the  Inception  Impact  Assessment,  which  sought  views  from  all 

interested parties  

  Targeted stakeholder consultations in the form of Workshops  
  Targeted stakeholder consultations in the form of written responses  
  Targeted stakeholder consultations in the form of semi-structured interviews  
  A public consultation 

In  this  context,  the  Commission  also  took  into  account  the  findings  of  the  Study  to 
support  the  preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset 
recovery  and  confiscation,128  which  was  commissioned  by 
the  Commission’s 
Directorate-General  for  Migration  and  Home Affairs in  March 2021  and prepared by  a 
contractor  based  on  desk  research  and  the  following  stakeholder  consultation  methods: 
written  questionnaires,  semi-structured  interviews  and  Policy  Option  Workshops.  The 

128 HOME/2020/ISFP/FW/EVA2/0016 

68 

 
 
 
 
 
                                                           
Commission also considered the findings of the Study on freezing, confiscation and asset 
recovery – what works, what does not work129’, commissioned in 2020.  

The  diversity  of  perspectives  proved  valuable  in  supporting  the  Commission  to  ensure 
that its proposal addressed the needs and took into account the concerns of a wide range 
of stakeholders, at  both  European, national  and international  level.  Taking into account 
the  COVID-19  pandemic,  the  consultation  activities  focused  on  virtual  interviews  and 
Workshops  through  video  conference.  This  has  no  impact  on  the  overall  quality  of  the 
consultations.  

2.  Consultation activities  

2.1. Feedback on the Inception Impact Assessment  

A call for feedback, seeking views from any interested stakeholders, on the basis of the 
Inception Impact Assessment130 was issued by the Commission. The consultation sought 
feedback from EU citizens, public authorities and non-governmental organisations. The 
call for feedback period was between 9 March 2021 and 6 April 2021. Participants of the 
consultation were able to provide online comments and submit short position papers, if 
they wished, to provide more background on their views.  

2.2. Stakeholder events  

Over the course of the consultation, the Commission organised two Workshops that were 
held  with  Asset  Recovery  Offices  representatives  (25-26  May  2021)  and  the  Contact 
Committee of the Confiscation Directive (1 – 2 June 2021). Background documents were 
shared to the participants to the Workshops presenting the initial problem tree, with key 
questions  steering  the  discussions  in  relation  to  the  stakeholders’  practical  experiences 
relating to the problems existing.  

Workshop with Asset Recovery Offices representatives and Contact Committee of the 
Confiscation Directive 

On  25  and  26  May  2021,  a  Workshop  was  held  with  Asset  Recovery  Offices 
representatives  at  an  Asset  Recovery  Offices  Platform  meeting.  The  objective  of  this 
Workshop  was  to  gain  Asset  Recovery  Offices’  views  in  relation  to  the  effectiveness, 
efficiency,  relevance,  coherence  and  EU  Added  Value  of  Directive  2014/42/EU  and 
Council  Decision  2007/845/JHA  concerning  cooperation  between  Asset  Recovery 
Offices.  The  Workshop  also  enabled  the  contractor  to  gain  viewpoints  regarding  the 
problem definition and potential Policy Options.  

129  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing, 
confiscation 
2021, 
and 
HOME/2018/ISFP/FW/EVAL/0081 
130Available  at  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12725-Fighting-
organised-crime-freezing-and-confiscating-the-proceeds-of-crime_en, Ares(2021)1720625. 

–  what  works,  what 

not  work, 

recovery 

asset 

does 

69 

 
 
 
                                                           
On 1 – 2 June 2021, a Workshop was held with members of the Contact Committee of 
the  Confiscation  Directive,  composed  of  Member  States’  representatives.  The  aims  of 
this  Workshop  were  the  same  as  those  for  the  Workshop  with  Asset  Recovery  Offices 
representatives.  

For both Workshops, the use of digital online tools such as Slido and Mentimeter were 
used  to  measure  stakeholders’  viewpoints  in  relation  to  the  different  elements  of  the 
Evaluation and the Impact Assessment.  

2.3. Targeted consultation by way of written responses  

Following  the  Workshops  held  in  May  and  June  2021,  stakeholders  were  invited  to 
provide  their  additional  comments  to  the  Commission  in  the  form  of  written 
questionnaires.  

2.4. Public consultation  

A public consultation131 was also launched for the purposes of this Impact Assessment to 
offer citizens and other stakeholders the opportunity to express their opinions on current 
problems and the future of EU asset recovery and confiscation, and on the Evaluation of 
the  asset  recovery  and  confiscation  framework  composed  of  Directive  2014/42/EU  and 
Council Decision 2007/845/JHA. The public consultation was launched on 21 June 2021, 
with the Consultation closing on 27 September 2021.  

2.5. Study  to  support  the  preparation  of  an  Impact  Assessment  on  EU  Policy 

Initiatives on Asset Recovery and Confiscation  

The Commission also contracted an external consultant to conduct a Study to support the 
preparation  of  an  Impact  Assessment  on  EU  Policy  Initiatives  on  Asset  Recovery  and 
Confiscation.  The  work  on  the  Study  took  place  between  March  2021  and  December 
2021  and  involved  desk  research,  stakeholder  consultations  by  way  of  written 
questionnaires, semi-structured interviews and Policy Option Workshops.  

2.5.1 Semi-structured interviews  

Almost 40 semi-structured interviews were undertaken over the course of the contracted 
Study.  The  consultation  included  targeted  interviews  with  stakeholder  groups  on  the 
basis  of  formalised  and  open-ended  questions  allowing  for  open  and  in-depth 
discussions.  These  interviews  were  conducted  from  April  to  July  2021  via  video 
conference. The stakeholder groups targeted for these interviews included:  

  European Commission  
  Europol  
  CEPOL 

131  Available  at:  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12856-Fighting-
organised-crime-strengthening-the-mandate-of-EU-Asset-Recovery-Offices/public-consultation_en  

70 

 
 
 
                                                           
  Eurojust  
  Member State National Prosecution Services  
  Member State Law Enforcement Authorities  
  Asset Recovery Offices  
  Asset Management Offices  
  NGOs (Libera/CHANCE, Transparency International, WWF Central and Eastern 

Europe ) 

  Council of Europe  

The  interviews  aimed  at  (i)  gathering  information  related  to  the  implementation  of  the 
current legislative framework at EU level including the problems existing (ii) deepening 
the  understanding  of  current  practice  in  relation  to  the  asset  recovery  phases  (iii) 
gathering points of view relating to potential measures for improvement. The results of 
these interviews were presented in the Final Report of the Study to support .  

2.5.2 Targeted consultation by way of a questionnaire  

A written questionnaire was submitted to both Asset Recovery Offices and members of 
the Contact Committee of the Confiscation Directive in July 2021 to fill missing gaps in 
relation  to  the  problem  definition  and  the  assessment,  as  well  as  to  gather  quantitative 
data relating to effectiveness and efficiency, necessary for the Commission’s Evaluation. 
Responses to the Asset Recovery Offices questionnaire were received from the following 
Member States: Austria, Bulgaria, Czech Republic, Denmark, Finland, Germany, Greece, 
Ireland,  Italy,  Latvia,  Netherlands,  Romania,  Spain  (Judicial  Asset  Recovery  Office), 
Spain  (Police  Asset  Recovery  Office),  Sweden.  Responses  to  the  Contact  Committee 
questionnaire  were  received  from  the  following  Member  States:  Bulgaria,  Cyprus, 
Estonia, Germany, Italy, Latvia, Lithuania, Netherlands, Portugal, Slovakia, Slovenia.  

2.5.3 Policy Option Workshops 

the  potential  policy  options.  The  aim  of 

Four  Policy  Option  Workshops  were  held  with  stakeholder  groups  in  September  2021 
with  a  view  to  presenting  the  problem  assessment  undertaken  by  the  contractor  and 
presenting 
these  Workshops,  via 
videoconference,  was  to  gather the views  of the stakeholders on the policy  options and 
identify the potential impacts of the Policy Options in relation to key impacts measured 
for the Study i.e. impact on confidence in justice in the EU, impact on law enforcement, 
impact  on  policy  objectives  and  impact  on  costs  associated  with  the  measures.  The 
Workshops  were  held  with  Europol,  Law  Enforcement  and  Prosecution  Authorities, 
Disposal  and  Management  Authorities  and  the  World  Bank  and  non-governmental 
organisations.  

3.  Stakeholder participation  

Stakeholders consulted included:  

  EU Institutions and Agencies  

71 

 
 
 
 
  Asset Recovery Offices  
  Law enforcement authorities in the Member States  
  Judicial authorities in the Member States  
  Non-governmental 
and 

organisations 

civil 

society 

(Libera/CHANCE, 

Transparency International, WWF Central and Eastern Europe) 
International organisations (World Bank, Council of Europe) 

 

The feedback on the Inception Impact Assessment and the public consultation included 
responses from members of the public, non-governmental organisation and associations 
with  an  interest  in  this  field.  This  diversity  in  responses  and  perspectives  has  been 
valuable in assisting the Commission in drawing up its proposal.  

4.  Methodology and tools  

The  processing  of  responses  was  undertaken  manually  due  to  the  written  responses 
received from a vast variety of stakeholders. The results from stakeholder interviews and 
written questionnaires for the Study was inputted into an Evidence Grid by the contractor 
in order to be in a position to triangulate the results of primary research with secondary 
research conducted through desk review.  

5.  Results  

5.1. Consultation on the Inception Impact Assessment  

This Inception Impact Assessment received 13 responses from a variety of stakeholders, 
ranging  from  members  of  the  public  and  public  authorities  to  EU  Agencies  and  the 
European Parliament.  

Figure 1 Overview of responses to Inception Impact Assessment  

72 

 
 
 
 
 
The Inception Impact Assessment was welcomed by responding stakeholders. A diversity 
existed regarding the Policy Options supported. NGOs and national authorities supported 
Policy Option 3 focussing on legislative measures. Some stakeholders (NGO) welcomed 
the  introduction  of  additional  measures  in  relation  to  extended  confiscation  and  non-
conviction-based  confiscation.  While  Policy  Option  3  was  supported  by  stakeholders, 
Policy Option  2 (the non-legislative option) was identified by one national  authority  as 
the best solution due to the time lapsing since the adoption of the Confiscation Directive. 
A  combination  of  both  legislative  and  non-legislative  intervention  was  supported  by  a 
public  authority  responding  to  the  Inception  Impact  Assessment,  with  suggestions  also 
made in relation to expanding the scope of Asset Recovery Offices in each Member State 
and introducing a legal framework for cooperation between judicial authorities to execute 
out of court confiscation decisions. The Inception Impact Assessment also provided the 
Commission  with  useful  feedback  from  citizens.  A  past  victim  of  crime  responded 
to  greater  victim  protection  and  victim 
welcoming 
compensation.  

the  provisions 

in  relation 

5.2 Stakeholder events  

The  workshops  held  by  the  Commission  were  attended  by  Asset  Recovery  Offices 
representing all Member States as well as contact points in EU Agencies. The workshop 
with  the  Contact  Committee  of  the  Confiscation  Directive  also  ensured  Member  State 
representativeness.  

During  the  Workshops  undertaken  with  both  Asset  Recovery  Offices  and  the  Contact 
Committee  of  the  Confiscation  Directive,  the  contribution  of  both  Council  Decision 
2007/845/JHA and of Directive 2014/42/EU towards their respective specific objectives 
was discussed. Regarding Council Decision 2007/845/JHA, these Workshops confirmed 
that the legislative instruments in place contributed to the specific objectives in relation 
to (i) improving cooperation and communication of information and data between Asset 
Recovery  Offices  (ii) reinforcing the  Offices’ asset  freezing and tracing  ability through 
the  enhancement  of  Asset  Recovery  Offices’  powers  (iii)  increasing  the  rate  of  frozen, 
confiscated and recovered assets (iv) improving the management and disposal of frozen 
and/or  confiscated  assets  (v)  improving  the  consistency  of  statistical  data  on  asset 
recovery.  

The workshops also confirmed the problem tree presented in relation to the key drivers 
impacting effective asset recovery and confiscation. Asset Recovery Offices were asked 
to  rate  the  drivers  that  cause  the  greatest  problem  in  identifying  assets.  The  first  rated 
driver  related  to  insufficient  operational  powers  of  the  Offices,  with  the  second  driver 
identified as the limited resources allocated to Asset Recovery Offices. Limited access to 
information at national level was identified as the third most important driver, the lack of 
automatic  launch  and  standardised  rules  on  financial  investigation  as  the  fourth  and 
finally, challenges for the exchange of information were identified as the last driver.  

73 

 
 
 
In  relation  to  management  and  disposal  of  assets,  this  was  also  discussed  with  the 
Contact  Committee.  Eighteen  respondents  out  of  25  representatives  marked  that  the 
limited  resources  allocated  to  management  causes  the  greatest  problem  in  the 
management and disposal of assets, whereas two representatives marked it as the second, 
four as the third, and one as the fourth greatest challenge. As to the necessity of exchange 
of  information  between  Asset  Management  Offices  in  cross-border  cases,  it  was 
suggested  that  communication  between  requesting  and  executing  state  about  the 
management of asset could be improved. 

included  non-legislative  measures  relating 

The discussions at the Workshop highlighted the position of stakeholders to ensure that 
to  greater  coordination, 
intervention 
cooperation  and  training.  Some  Member  State  representatives  at  both  Workshops 
highlighted  the  benefits  brought  at  national  level  by  such  non-legislative  measures. 
Moreover,  the  issue  of  limited  resources  was  highlighted  as  a  key  point  by  all 
stakeholders,  with  participants  indicating  that  legislative  measures  would  not  have  a 
considerable impact if resources did not accompany such new measures.  

Following  the  workshops  held  in  May  and  June  2021,  a  number  of  written  responses 
were  received  from  Member  States.  These  written  responses  followed  on  from  the 
Background  Documents  submitted  to  the  participants  prior  to  the  Workshop.  Written 
responses  were  received  from  national  authority  representatives  in  the  Netherlands, 
Czech Republic, Germany, Poland, France and Finland.  

The  responses  confirmed  the  overall  relevance  of  the  ARO  Council  Decision  and  the 
Confiscation Directive to respond to the needs existing in relation to asset recovery and 
confiscation.  In  relation  to  the  envisaged  revision  of  the  asset  recovery  framework, 
Member  States  stressed  the  need  to  ensure  effective  implementation  of  existing  acquis 
and the need for raising awareness and further increasing expertise and experience in the 
application  of  the  relevant  rules.  Member  States  also  highlighted  specific  aspects  of 
particular  importance  from  their  specific  point  of  view  including  the  need  for 
strengthened  cooperation,  more  systematic  asset  tracing,  and  increased  capabilities  and 
powers  for  asset  recovery  offices  as  well  as  measures  to  improve  asset  management. 
Extended confiscation possibilities implemented in several Member States have yielded 
good  results;  a  replication  at  EU  level  would  require  a  careful  assessment  of  the 
fundamental  rights  implications  and  necessary  safeguards.  Member  States  cautioned 
against legislative changes that would interfere with Member organisational prerogatives 
or budgetary autonomy or which would result in disproportionate administrative burden.  

The responses also highlighted the need for greater coherence between the instruments in 
place in relation to asset recovery and confiscation and other EU legislative instruments 
in place such as Regulation 2018/1805 on the mutual recognition of freezing orders and 
confiscation orders.  

5.4 Public consultation  

74 

 
 
 
50 responses to the public consultation were received in total (n=50). When interpreting 
the results of the consultation, responses received cannot be understood as representing 
the views of  any particular population  or  group  of stakeholders. The questionnaire was 
publicly available on the Internet, and no one was precluded from providing a response. 
Information  on the demographic profile of respondents  is  based on self-reported values 
and the survey design did not allow for any verification of received data. 

The  sample  include  30  responses  (60%)  submitted  on  behalf  of  EU  citizens.  Public 
authorities were the next  largest  group, accounting for eight  responses (16%), followed 
by companies/business organisations (n=4, 8%), non-governmental organisations (NGO) 
(n=3,  6%),  business  associations  (n=2,  4%),  ‘other’  (n=2,  4%)  and  academic/research 
institutions  (n=1,  2%).  The  overview  of  contribution  types  is  presented  in  the  Table 
below. 

Table 1 Overview of contribution types  

I am giving my contribution as a/an 

Count 

Per cent 

Academic/research institution 

Business association 

Company/business organization 

EU citizen 

Non-governmental organisation (NGO) 

Other 

Public authority 

Total 

1 

2 

4 

30 

3 

2 

8 

50 

2% 

4% 

8% 

60% 

6% 

4% 

16% 

100% 

Regarding the geographical  distribution of respondents  (see Figure), most contributions 
came  from  EU  Member  States.  By  far,  the  largest  group  of  contributions  (n=17,  37%) 
was submitted by  respondents  based in  Italy,  followed by  Bulgaria  (n=5,  10%), France 
(n=5, 10%), Spain (n=5, 10%) and Belgium (n=3, 6%). Respondents based in nine other 
Member  States  submitted  contributions  to  the  public  consultation,  with  no  responses 
received from 13 Member States. Responses were also submitted by respondents in third 
countries, respectively located in Brazil (n=1, 2%) and the United States (n=1, 2%).  

Table 2 Geographical distribution of contribution types  

Country of origin 

Count 

Per cent 

EU Member States 

Belgium 

6% 

3 

75 

 
 
 
Bulgaria 

Czech Republic 

Finland 

France 

Germany 

Italy 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Spain 

Sweden 

Third countries 

Brazil 

United States 

5 

1 

1 

5 

2 

17 

1 

2 

1 

2 

2 

5 

1 

1 

1 

10% 

2% 

2% 

10 % 

4 % 

34% 

2% 

4% 

2% 

4% 

4 % 

10% 

2% 

2% 

2% 

Total 

50 

100% 

Respondents  agreed that  law enforcement authorities cooperating at EU level  in the 
fight against serious and organised crime was ‘very important’ (n=49, 98%), though 
one  respondent  stated  that  this  was  ‘moderately  important’  (n=1,  2%).  Contributors 
unanimously  concurred  that  freezing  and  confiscating  criminal  profits  could  help  make 
serious and organised crime less attractive (n=50, 100%). Most respondents (n=49, 98%) 
also believed that the rates of asset freezing, and confiscation could increase compared to 
current  estimated  rates.  Nevertheless,  one  participant  stressed  the  importance  of 
considering fundamental rights throughout the asset recovery process (1 response).  

Respondents considered that cross-border cooperation was negatively affected by the 
i) low rates of identification of criminal assets, ii) failure to freeze and/or confiscate all 
identified  assets,  iii)  inadequate  management  and  disposal  of  frozen  and  confiscated 
assets;  and  iv)  relatively  poor  quality  of  data  collected  above  frozen  and  confiscated 
assets. The misalignment of the Asset Recovery Data Offices data protection framework 
with  the  Data  Protection  Policy  Directive  (Directive  2016/680)  was  not  identified  as  a 
considerable  obstacle  to  cross-border  cooperation,  though  many  respondents  (n=20, 
40%) stated that they did not know whether this had a negative effect. 

76 

 
 
 
 
When  asked  about  the  challenges  hampering  the  identification  of  criminal  assets, 
most respondents agreed that these practices are significantly limited by Asset Recovery 
Offices’  i)  lack  of  operational  powers  to  trace  and  identify  assets,  ii)  limited  human, 
financial and technical resources, and ii) limited access to databases at the national level 
and  inability  to  share  information.  Respondents  also  considered 
that  financial 
investigations not automatically being launched in all cases and the lack of standardised 
rules  on  how  to  conduct  financial  investigations  could  hamper  the  identification  of 
criminal assets to a ‘high’ or ‘very high extent’.  

In  terms  of  elements  hindering  the  freezing  and  confiscation  of  assets,  most 
respondents  considered  that  i)  Asset  Recovery  Offices’  lack  of  involvement  in  the 
confiscation  process,  ii)  the  limited  scope  of  the  Confiscation  Directive,  iii)  Member 
States’ distinct approaches to asset recovery, as they developed additional rules on top of 
identifying  cross-border  EU 
iv)  challenges 
the  Confiscation  Directive,  and 
counterparts  and  exchanging  information  considerably  affected  the  asset  freezing  and 
confiscation process. 

in 

Finally,  when  assessing  the  challenges  hampering  the  management  and  disposal  of 
criminal  assets,  most  respondents  agreed  that  i)  the  lack  of  human  financial  and 
technical resources allocated to the management of frozen and confiscated assets, ii) the 
lack  of  harmonised  rules  on  the  management  and  disposal  of  frozen  and  confiscated 
assets, iii) the limited involvement of Asset Recovery Offices and judicial authorities in 
post-conviction  tracing  and  freezing  cases,  iv)  the  lack  of  harmonised  rules  on  victim 
compensation, v) the lack of clarify on cost-sharing rules between Member States and vi) 
the  communication  breakdowns  between  counterparts  involved  in  previous  asset 
recovery  phases,  contributed  to  a  ‘high’  or  ‘very  high’  extent  to  hampering  the 
management and disposal of criminal assets.  

Overall, respondents agreed that increasing the levels of freezing and confiscation of 
criminal profits could help prevent future serious and organised crime (n=44, 88%). 
The  vast  majority  of  respondents  called  for  EU  intervention  to  improve  the  fight  and 
prevention of serious and organised crime and to increase EU asset recovery rates (n=48, 
96%).  

Most respondents considered that a future EU intervention should focus on revising 
and updating existing legislative measures (n=23, 46%), though some considered that 
both  legislative  and  non-legislative  measures  should  be  revised  and  updated  (n=16, 
32%).  Those  who  favoured  only  the  revision  and  update  of  non-legislative  measures 
represented  a  minority  (n=9,  18%).  Other  respondents  did  not  know  (n=2,  4%). 
According  to  most  stakeholders,  an  EU  intervention  would  add  significant  value  in  i) 
fighting serious and organised crime (n=42, 84%) and ii) increasing asset recovery assets 
(n=38,  66%)  compared  to  what  Member  States  can  achieve  under  the  existing  EU 
Framework.  When  asked  to  explain  why,  some  respondents  suggested  that  an  EU 

77 

 
 
 
intervention  would  add  value  in  further  harmonising  Member  States’  practices  and 
promote cooperation on asset recovery (7 responses).  

Respondents were asked to assess the extent to which given options could contribute to 
improving EU asset recovery and confiscation. The option that seemed most valued by 
respondents was granting Asset Recovery Offices direct access to a minimum set of data 
and  databases  (e.g.,  land  registries,  vehicle  registries,  company  registries,  criminal 
records, maritime and aviation registries). Other options that were significantly valued by 
participants  include  i)  systematically  launching  financial  investigations  and  ensuring 
powers to conduct post-conviction financial investigations, ii) equipping Asset Recovery 
Offices  with  urgent  freezing  power,  iii)  reinforcing  Asset  Recovery  Offices’  status  and 
powers,  iv)  expanding  the  scope  of  non-conviction  based  and  extended  confiscation 
provisions,  v)  expanding  the  set  of  minimum  information  to  be  included  in  cases  of 
cross-border information sharing between Asset  Recovery Offices,  vi) mandating Asset 
Recovery  Offices  to  exchange  information  through  the  Europol  Secure  Information 
Exchange Network Application (SIENA), vii) gathering statistical data of higher quality 
and in an harmonised manner, and viii) establishing Asset Management Offices in all EU 
Member  States.  Respondents  also  considered  that  broadening  the  scope  of  the 
Confiscation  Directive  to  cover  additional  criminal  offences  and  aligning  the  Asset 
Recovery  Offices  data  protection  framework  with  the  Data  Protection  Police  Directive 
(Directive 2016/680) could help enhance EU asset recovery and confiscation, though to a 
lesser extent than the aforementioned options. 

6.  How the results have been taken into account  

The  results  of  the  consultation  activities  have  been  incorporated  throughout  the  Impact 
Assessment  in  each  of  the  sections  for  which  feedback  was  received.  The  consultation 
activities were designed to follow the same logical sequence as the Impact Assessment, 
starting  with  the  problem  definition  and  then  moving  on  to  possible  options  and  their 
impacts.  

78 

 
 
 
 
  
 
 
ANNEX 3: WHO IS AFFECTED AND HOW? 

3.1 Practical implications of the initiative 

The  key  obligations  that  will  have  to  be  fulfilled  by  Member  States  and  the  European 
Commission are summarised below: 

National authorities: 

  Elaborate  a  strategy/action  plan  on  asset  recovery,  establish  cooperation 
mechanisms among relevant asset recovery authorities and regularly report on the 
results of the asset recovery system.  

  Establish rules and measures for ensuring the identification of assets through the 
launching  of  financial  investigations  for  certain  organised  crime  certain  crimes 
committed  in  the  context  of  organised  crime  activities  and  under  certain 
conditions, including training of staff from law enforcement authorities. 

  Equip  competent  authorities  with  sufficient  technical  and  human  resources, 
including  for  Asset  Recovery  Offices  to  carry  out  tracing  of  criminal  assets 
whenever this is not possible yet. 

  Provide Asset Recovery Offices with access to a set of databases and ensure their 

access to SIENA (for those for which it is not available yet). 

  Establish  mechanisms  allowing  Asset  Recovery  Offices  to  ensure  the  swift 

freezing of assets in urgent cases. 

  Establish  Asset  Management  Offices  (wherever  these  do  not  exist  yet),  which 
would be set out as contact points  for cooperation with other Member States and 
support  national  authorities  in  the  managing  of  assets  (and  ensure  their 
management whenever necessary). 

  Establish  measures  to  ensure  the  systematic  use  of  pre-seizure  planning  by  law 
enforcement  and  judicial  authorities,  including  the  development  of  guidelines, 
provision of support by the Asset Management Office, etc. 

  Develop  measures  to  enable  the  application  of  interlocutory  sales  for  frozen 

assets. 

  Adopt  measures  to  ensure  the  application  of  the  confiscation  mechanisms, 
including the new confiscation model, to the new scope of criminal offences. This 
would include the provision, as necessary, of guidance, training, etc. 
Improve the collection of statistics at central level 

 
  Establishment of asset registries   

European Commission 

  Elaborate, where necessary, implementing acts on the collection of statistical data 
  Set  out  a  programme  for  the  monitoring  of  outputs  and  results  of  the  new 

legislative framework. 

79 

 
 
 
 
  Organise meeting among Asset Recovery Offices and other relevant authorities to 
facilitate the application of the new regulatory provisions, including through the 
exchange of best practices.  

Europol 

  Assist, where necessary, in the connection of additional Asset Recovery  Offices 

to SIENA  

3.2 Summary of costs and benefits 

The table below presents the overview of benefits for the preferred option.  

Table 1. Overview of benefits for the preferred option  

Overview of Benefits (total for all provisions) – Preferred Option 

Description 

Amount 

Comments 

Asset  tracing:  The  requirement  for  law  enforcement 
authorities,  to  trace  assets  in  a  wider  range  of  criminal 
activities,  including  with  the  support  of  Asset  Recovery 
Offices,  will  lead  to  a  greater  identification  of  assets, 
including  in  other  Member  States  since  it  will  allow  to 
identify  cases  where  criminals  have  transferred  or 
acquired  assets  in  other  jurisdictions.  Similarly,  the 
reinforced  powers  and  access  to  information  of  Asset 
Recovery  Offices  will  facilitate  asset  tracing  across  the 
Union, leading to a considerable increase in cross-border 
identification of assets. 

Asset  Management:  The  establishment  of  Asset 
Management  Offices  and  the  generalised  application  of 
efficient  asset  management  techniques  such  as  pre-
seizure  planning  or  interlocutory  sales  would  ensure  a 
more efficient asset management , including assets frozen 
and  confiscated  on  behalf  of  other  Member  States,  and 
the 
overall 
management of assets. 

cross-border 

cooperation 

support 

in 

Confiscation  measures:  The  broader 
scope  of 
confiscation  mechanisms,  which  would  be  available  to 
judicial  authorities  in  respect of  a  broader  set of  crimes, 
and  especially  the  establishment  of  a  new  confiscation 

the 

Direct benefits 
Besides 
reinforced  capacities  of  competent 
authorities,  including  Asset  Recovery  Offices,  to  trace 
assets,  such  reinforcement  is  expected  to  lead  to  an 
increase in frozen and ultimately confiscated assets. 
While  the  increase  directly  stemming  from  these 
measures  cannot  be  quantified,  some  figures  are 
indicative  of  the  improvements  the  preferred  option 
would  bring.  In  at  least  eight  Member  States  financial 
investigations  would  be  carried  out 
in  a  more 
systematic  manner.  Asset  Recovery  Offices  would 
obtain a more adequate access to information (currently 
only 15% of them have access to all relevant databases) 
and  more  adequate  resources  that  would  address  the 
considerable  divergence  between  them,  e.g.  one  Asset 
Recovery  Office  counting  with  only  one  employee 
compared to 91 in another one (despite the latter being 
in  a  Member  State  only  double  the  population  of  the 
first one). 
The 
frozen  and 
confiscated  assets  would  increase  the  value  of  such 
assets  considerably. While such an increase cannot be 
quantified,  examples  such  as  those  the  Netherlands 
(which  reduced  the  cost  of  management  of  movable 
assets from EUR 23 million to EUR 9 million  through 
interlocutory  sales)  demonstrate  the  ample  room  for 
improvement. The establishment of Asset Management 
Offices  will  also  lead  to  improved  management  of 
assets in the 14 Member States which do not have them 
yet. 
More generally, by removing some of the disincentives 
to  asset  recovery,  an  efficient  management  of  assets 
would  incentivise  competent  authorities  to  trace  more 
assets of taking freezing and confiscation decisions. 
The greater gains of these measures in terms of volume 
of  confiscated  assets  would  derive  in  particular  from 
the 
extended 
confiscation in a larger set of crimes, and in particular 

improved  capacity 

to  manage 

possibilities 

enlarged 

apply 

to 

80 

 
 
 
 
 
 
Overview of Benefits (total for all provisions) – Preferred Option 

Amount 

Comments 

Description 
model  designed  to  tackle  the  complex  nature  of  modern 
organised  crime  will 
the 
capabilities of judicial authorities to confiscate assets. 

significantly 

reinforce 

some 

although 

examples 

from 
the  availability  of  a  very  effective  new 
confiscation  model.  Overall  these  measures  would 
enable  to  recover  additional  criminal  assets  in  a 
significant manner.  
It  is  not  possible  to  estimate  exact  figures  on  the 
increased  confiscation  rates  directly  resulting  from 
these  measures, 
are 
representative of their potential. In Italy, authorities are 
able to confiscate assets in 90% of judicial proceedings 
through  a  confiscation  mechanism  similar  to  the  new 
confiscation  model  envisaged  in  the  preferred  option, 
compared  to  50%  through  the  traditional  confiscation 
mechanisms, while Latvia is able to confiscate 25 times 
more  through  such  mechanisms  than  through  standard 
forms of confiscation (EUR 105,4 million vs. EUR 4,2 
million  between  2013  and  2017).  The  last  Member 
State  putting  in  place  such  model,  Germany  in  2017, 
has  applied  it  successfully  in  a  considerably  high 
number of cases: 5,100 in 2018 and 5,800 in 2019. 
Concrete  figures  that  would  give  an  indication  of  the 
quantitative  benefits  of  this  set  of  measures  cannot  be 
provided, given the systemic and strategic nature of the 
measures. 

This  indirect  impact  on  disrupting  criminal  activities 
and possibilities to infiltrate the legal economy and the 
consequences for competition is not measurable.  

No data available. 
For  asset  management 
the  cost  savings  can  be 
significant, with one Member State being able to reduce 
the  costs by  more  than half  by  selling  off  assets  when 
costs exceed the value of property. 

Strategic  approach  to  asset  recovery:  In  addition  to 
measures  specific  to  each  phase  of  the  asset  recovery 
process,  other  provisions  requiring  the  establishment  of 
an asset recovery plan and coordination measures as well 
as  requirements  to  improve  statistical  data  collection 
(including the asset registry) would considerably improve 
the overall efficiency of the asset recovery regime. 
Indirect benefits 
The  improved  possibilities  to  confiscate  illicit  assets 
contribute to a reduction of the attractiveness of criminal 
activities,  the  reduction  of  assets  available  for  further 
criminal  activities  and  possibilities  to  infiltrate  the  legal 
economy  thereby  contributing  to  a  level  playing  field  in 
the EU market  
Administrative cost savings related to the ‘one in, one out’ approach 
By  creating  more  detailed  requirements  for  information 
exchange between Asset Recovery Offices, including the 
creation  of  templates  and  the  introduction  of  asset 
registries, the current costs associated with informal lines 
of  communication  would  be  reduced.  In  addition,  the 
creation  of  Asset  Management  Offices  in  all  Member 
States  and  the  application of  efficient  asset  management 
practices would reduce overall management costs. 

The costs associated with the preferred option are presented in the Table below.  

No costs are identified for citizens/consumers and businesses since the costs associated 
with the policy measures are directly impacting administrations at national level.  

Table 2. Costs for the preferred option 

II. Overview of costs – Preferred option 

81 

 
 
 
 
 
 
 
 
Citizens/Consum
ers 

Business 

Administrations 

One-off  Recur

rent 

One-
off 

Recurr
ent 

One-off 

Recurrent 

Direct costs 

NA 

NA 

NA 

NA 

EUR 600,000€ 

Indirect costs  

NA 

NA 

NA 

NA 

EUR 100,000€ 

Direct costs  

NA 

NA 

NA 

NA 

NA 

EUR 4.39 million 

Indirect costs 

NA 

NA 

NA 

NA 

NA  

NA 

Direct costs  

NA 

NA 

NA 

NA 

EUR 2.43 million  NA 

Indirect costs 

NA 

NA 

NA 

NA 

NA 

NA 

Direct costs  

NA 

NA 

NA 

NA 

EUR 585,000 – 
EUR 1.75 
million132 

EUR 2.8 million  - 
EUR 5.54 million 

Indirect costs 

NA 

NA 

NA 

NA 

Direct costs  

NA 

NA 

NA 

NA 

NA 

NA 

NA 

EUR 2.8 million – 
EUR 7 million   

Indirect costs 

NA 

NA 

NA 

NA 

NA 

NA 

Direct costs  

NA 

NA 

NA 

NA 

EUR 585,000 

Indirect costs 

NA 

NA 

NA 

NA 

NA 

Direct costs  

NA 

NA 

NA 

NA 

EUR 1.17 million 

Indirect costs 

NA 

NA 

NA 

NA 

NA 

Direct costs 

NA 

NA 

NA 

NA 

1.05 million 

Indirect costs  

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

Adoption of a 
national plan 
on asset 
recovery  

Additional 
resources for 
Asset Recovery 
Offices 

Asset Recovery 
Offices’ access 
to relevant 
databases 

Requirements 
on asset tracing 
- financial 
investigations 

Establishment 
of a specialised 
Asset 
Management 
Office  

Implementatio
n of pre-seizure 
planning and 
interlocutory 
sales  

Implementatio
n of new 
confiscation 
measures 

Implementatio
n of 
requirements 
on the 
collection of 

132 Related to the development of guidelines and provision of training 

82 

 
 
 
 
 
 
 
 
                                                           
II. Overview of costs – Preferred option 

Citizens/Consum
ers 

Business 

Administrations 

One-off  Recur

rent 

One-
off 

Recurr
ent 

One-off 

Recurrent 

statistics  

Establishment 
of asset 
registries  

Direct  costs  

NA 

NA 

NA 

NA 

EUR 13.5 million  EUR 2.16 million 

Indirect costs 

NA 

NA 

NA 

NA 

NA 

Total Costs 

Direct  costs  

Indirect costs 

Direct + 
indirect 

EUR 19.32 
million 

EUR 12.15 million – 
EUR 19.09 million 

EUR 100,000 

EUR 31.57 million – 38.42 million 

Costs related to the ‘one in, one out’ approach 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

Total   

Direct 
adjustment 
costs  

Indirect 
adjustment 
costs 

Administrative 
costs (for 
offsetting) 

3.3 Relevant sustainable development goals 

III. Overview of relevant Sustainable Development Goals – Preferred Option(s) 

Relevant SDG 

Expected progress towards the Goal 

Comments 

SDG no. 16, peace, justice, 
and strong institutions 

Contribute to fight serious and organised crime, 
strengthening public institutions and 
safeguarding the rule of law 

SDG no. 8, decent work and 
economic growth 

Countering organised crime’s infiltration into the 
legal economy, contributing to the efforts 
towards for fair work free of exploitation and 
intimidation, fair competition, and a healthier 
economy. 

83 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 4: ANALYTICAL METHODS 

The  Impact  Assessment  report  and  the  Evaluation  draw  from  a  multitude  of  sources, 
which  were  triangulated  with  objective  evidence  (e.g.  databases  accessible  to  Asset 
Recovery  Offices),  a  targeted  consultation  (meetings  of  the  Asset  Recovery  Offices 
Platform  and  the  Confiscation  Committee)  as  well  as  the  public  consultation.  These 
sources  of  information  and  opinions  have  been  triangulated  with  an  own  analysis  of 
reports  from  international  organisations  (notably  the  mutual  evaluation  reports  of  the 
Financial  Action  Task  Force)  as  well  as  academics,  which  overall  point  to  similar 
conclusions.  The  European  Commission  relied  in  particular  on  three  studies  and  two 
reports:  the  Commission  report  “Asset  Recovery  and  confiscation,  ensuring  that  crime 
does  not  pay,”133    the  staff  working  document  “Analysis  of  non-conviction  based 
confiscation measures in the European Union,”134 and the studies on the transposition of 
Directive  2014/42/EU135,  on  “Asset  recovery  and  confiscation:  what  works  and  what 
doesn’t work”136 and the “Study to support the preparation of an Impact Assessment on 
EU policy initiatives on asset recovery and confiscation”137.  

1.  Analysis of Member State Data – Freezing and Confiscation  

The  Impact  Assessment  drew  upon  the  freezing  and  confiscation  data  submitted  by 
Member States’ to the European Commission in accordance with Article 11 of Directive 
2014/42/EU. The level of completeness of this data varied between Member States, with 
some Member States not providing data for the years 2017, 2018, 2019 and 2020.  

Table 1 Data provided by Member States per annum (2017 – 2020)  
2017 
Austria 
Croatia 
Cyprus 
Czech Republic  
Estonia 
Finland 
France 
Germany 
Greece 
Ireland 
Latvia 
Lithuania 
Luxembourg 

2019 
Austria 
Croatia 
Cyprus 
Czech Republic  
Estonia 
Finland 
France 
Germany 
Greece 
Ireland 
Latvia 
Lithuania 
Luxembourg 

2018 
Austria 
Bulgaria 
Croatia 
Cyprus 
Denmark 
Estonia 
Finland 
France 
Germany 
Greece 
Hungary 
Ireland 
Italy 

2020 
Austria 
Croatia 
Estonia 
Finland 
Greece 
Ireland 
Latvia 
Lithuania 
Luxembourg 
Netherlands 
Romania 
Spain 
Sweden 

133  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and 
confiscation: Ensuring that crime does not pay, SWD COM/2020/217 final 
134 SWD (2019), 1050 final. 
135 HOME/2017/ISFP/FW/LECO/0084 
136 HOME/2018/ISFP/FW/EVAL/0081, https://data.europa.eu/doi/10.2837/649661 
137 HOME/2020/ISFP/FW/EVA2/0016 

84 

 
 
 
 
 
                                                           
Netherlands 
Portugal 
Romania 
Spain 
Sweden 

Total:  18  Member 
States  

Lithuania 
Luxembourg 
Malta 
Netherlands 
Portugal 
Romania 
Slovakia 
Slovenia 
Spain 
Sweden 
Total:  23  Member 
States 

Netherlands 
Portugal 
Romania 
Spain 
Sweden 

Total:  18  Member 
States  

Total:  13  Member 
States  

Based on the number of Member States providing data, the reference  years 2017, 2018 
and 2019 were selected for analysis. 2020 was not selected due to the low level of data 
provided  by  Member  States,  with  only  13  Member  States  providing  data  in  September 
2021.  
Where  possible  and  reasonable  in  relation  to  the  level  of  data  provided  by  Member 
States,138 data was extrapolated for those Member States where no data was provided in 
order to provide an estimation of data for all EU-27 Member States in relation to:  

  The number of freezing orders executed  
  The number of confiscation orders executed  
  The estimated value of property frozen  
  The estimated value of property recovered at the time of confiscation.  

Data  was  estimated,  in  some  cases,  for  Member  States139  where  no  data  was  provided 
based  on  reference  data  received  from  other  Member  States.  This  extrapolation  was 

138 No extrapolation was undertaken where Member States provided data for other indicators falling under 
Article 11 which were inconclusive regarding the scale  
139 Note: For 2017: No data for Belgium – Application of Czech Republic data based on population size; 
No data for Denmark – application of FI data; No data for Greece – application of 2018 data received; No 
data for Italy – application of 2018 data received; No data for Malta  – application of 2018 data received; 
No data for Romania - application of 2018 data received; No data for Latvia – application of 2019 data. For 
2018: No data for Belgium – Application of CZ data 2018; No data for Denmark – Application of FI data 
2018; No data for Latvia – application of LV data 2019; no data for Poland – application of 2017 data. For 
2019: No data for Belgium - Application of CZ data; No data for Bulgaria - application of BG data 2018; 
No data for Denmark - application of FI data 2019; No data for Hungary - application of HU data 2018; No 
data for Italy - application of IT data 2018; No data for Malta - application of MT data 2018; No data for 
Poland - application of PL data 2017; No data for Slovak Republic - application of SK data 2018; No data 
for Slovenia - application of SI data 2018; No data provided for Ireland due to data provided by Ireland on 
other  indicators  in  reference  periods;  No  data  provided  for  Luxembourg  due  to  data  provided  by 
Luxembourg on other indicators in reference periods; No data provided for Portugal due to data provided 
by Portugal on other indicators in reference periods  

85 

 
 
 
 
 
 
                                                           
 
based  on  2  criterion:  (i)  the  population  size  and  (ii)  trends  of  the  Member  State  in 
question. This allowed for an estimation of data for the EU-27.  

Table 2 Extrapolation of data for number of freezing orders executed 2017 – 2019  

2017 

2018 

2019 

Member State  Number of freezing orders executed 

573 

3601 
573 
41 
319 
5 

Austria 
Belgium 
Bulgaria 
Croatia 
Cyprus 
Czech 
Republic 
204 
Denmark 
193 
Estonia 
204 
Finland 
19 
France 
9596 
Germany 
223 
Greece 
50 
Hungary 
N/A 
Ireland 
3857 
Italy 
312 
Latvia 
2409 
Lithuania 
Luxembourg  N/A 
Malta 
Netherlands 
Poland 
Portugal 
Romania 
Slovakia 
Slovenia 
Spain 
Sweden 
TOTAL 
Methodological note140 

88 
6 
46226 
N/A 
45931 
82 
102 
14 
8804 
123 432 

3704 
31 
272 
323 
4 

31 

160 
171 
160 
20142 
9281 
223 
18 

3857 
312 
2803 
119 
88 
13 
46226 
124 
45931 
61 
292 
13 
42581 
176 940 

3 063 
47 
272 
489 
15 

47 

243 
165 
243 
46 607 
11 764 
194 
18 

3857 
312 
2 757 
89 
88 
28 
46226 
94 
49 838 
61 
292 
40 
10 
166 859 

140 For 2017: No data for Belgium – Application of Czech Republic data based on population size; No data 
for Denmark – application of FI data; No data for Greece – application of 2018 data received; No data for 
Italy – application of 2018 data received; No data for Malta  – application of 2018 data received; No data 
for Romania - application of 2018 data received; No data for Latvia – application of 2019 data. For 2018: 
No data for Belgium – Application of CZ data 2018; No data for Denmark – Application of FI data 2018; 
No data for Latvia – application of LV data 2019; no data for Poland – application of 2017 data. For 2019: 
86 

 
 
 
 
 
 
 
                                                           
The same approach was applied in relation to the estimated value of property frozen.  

Table 3 Extrapolation of data for estimated value of property frozen 2017 and 2019 

Member State 

Austria 

Belgium 
Bulgaria 
Croatia 
Cyprus 
Czech Republic 
Denmark 
Estonia 
Finland 
France 
Germany 
Greece 
Hungary 
Ireland 
Italy 
Latvia 
Lithuania 
Luxembourg 
Malta 
Netherlands 
Poland 
Portugal 
Romania 
Slovakia 
Slovenia 
Spain 
Sweden 
TOTAL 

2017 
Estimated 
property frozen* 

value 

of 

2019 
Estimated 
property frozen* 

value 

of 

25 903 378 € 

43 416 949 € 
140 552 814 € 
5 229 120 € 
3 224 569 € 
43 416 949 € 
15 700 000 € 
9 013 824 € 
15 700 000 € 
5 016 007 € 
646 809 000 € 
433 703 008 € 
3 272 928 € 
NA 
NA 
358 482 727 € 
2 260 000 € 
NA 
593 464 € 
NA 
312 242 072 € 
20 804 000 € 
498 394 208 € 
20 602 185 € 
5 381 505 € 
NA 
11 757 530 € 
2 621 476 237 € 

186 057 740 € 

NA 
149 388 683 € 
6 377 572 € 
1 039 280 € 
NA 
44 900 000 € 
12 193 762 € 
44 900 000 € 
709 738 872 € 
347 539 000 € 
87 983 240 € 
12 570 316 € 
NA 
NA 
358 482 727 € 
28 201 434 € 
231 148 557 € 
593 464 € 
2 846 864 € 
312 242 072 € 
26 695 055 € 
273 590 738 € 
83 902 979 € 
23 313 391 € 
NA 
14 133 058,00 € 
2 957 838 804 € 

No data for Belgium - Application of CZ data; No data for Bulgaria - application of BG data 2018; No data 
for Denmark - application of FI data 2019; No data for Hungary - application of HU data 2018; No data for 
Italy - application of IT data 2018; No data for Malta - application of MT data 2018; No data for Poland - 
application  of  PL  data  2017;  No  data  for  Slovak  Republic  -  application  of  SK  data  2018;  No  data  for 
Slovenia  -  application  of  SI  data  2018;  No  data  provided for  Ireland  due  to  data  provided  by  Ireland  on 
other  indicators  in  reference  periods;  No  data  provided  for  Luxembourg  due  to  data  provided  by 
Luxembourg on other indicators in reference periods; No data provided for Portugal due to data provided 
by Portugal on other indicators in reference periods. 

87 

 
 
 
 
 
 
                                                                                                                                                                            
Methodological note141  

In relation to the number of confiscation orders executed, the same approach was taken, 
with the following estimates provided for 2017 – 2019.  

Table  4  Extrapolation  of  data  for  number  of  confiscation  orders  executed  2017  – 
2019  

2017 

2018 

2019 

Member State 

Austria 
Belgium 
Bulgaria 
Croatia 
Cyprus 
Czech Republic 
Denmark 
Estonia 
Finland 
France 
Germany 
Greece 
Hungary 
Ireland 
Latvia 
Lithuania 

of 

Number 
confiscation 
orders executed 

of 

Number 
confiscation 
orders executed 

Number 
confiscation 
orders executed 

of 

10443 
4509 
41 
31 
8 
4509 
1509 
180 
1509 
1 
19484 
0 
4924 
41 
234 
2085 

8239 
4459 
2109 
223 
1 
4459 
1882 
174 
1882 
5517 
49910 
0 
5798 
65 
234 
3463 

4 563 
2109 
233 
9 
4 563 
3 613 
334 
3 613 
5 736 
61 681 
3 
5798 
50 
234 
688 

141 In relation to the estimated value of property frozen, the reference periods 2017 and 2019 were taken 
due  to  considerable  divergences  in  data  for  2018.  This  enables  for  the  provision  of  estimates  within  the 
Study regarding the increase over 2 years. The data for some Member States was not provided due to data 
being provided by that Member State for other indicators. For 2017: No data for Belgium – Application of 
Czech Republic data based on population size; No data for Denmark – application of FI data; No data for 
Greece – application of 2018 data received; No data for Italy – application of 2018 data received; No data 
for Malta – application of 2018 data received; No data for Romania - application of 2018 data received; No 
data for Latvia – application of 2019 data. For 2018: No data for Belgium – Application of CZ data 2018; 
No data for Denmark – Application of FI data 2018; No data for Latvia – application of LV data 2019; no 
data for Poland – application of 2017 data. For 2019: No data for Belgium  - Application of CZ data; No 
data for Bulgaria - application of BG data 2018; No data for Denmark  - application of FI data 2019; No 
data for Hungary - application of HU data 2018; No data for Italy - application of IT data 2018; No data for 
Malta - application of MT data 2018; No data for Poland - application of PL data 2017; No data for Slovak 
Republic  -  application  of  SK  data  2018;  No  data  for  Slovenia  -  application  of  SI  data  2018;  No  data 
provided  for  Ireland  due  to  data  provided  by  Ireland  on  other  indicators  in  reference  periods;  No  data 
provided for Luxembourg due to data  provided by Luxembourg on  other indicators in reference periods; 
No data provided for Portugal due to data provided by Portugal on other indicators in reference periods 

88 

 
 
 
 
 
 
 
                                                           
Luxembourg 
Malta 
Netherlands 
Poland 
Portugal 
Romania 
Slovenia 
Spain 
Sweden 
TOTAL 

47 
13 
22 

8440 
55 

24 
58109 

674 
13 
15 
N/A 
117 
8440 

5 
36 
97715 

624 
13 
11 
N/A 

13 294 

7 
60 
107236 

Note: For Member States where data was provided for other indicators, no extrapolation 
was undertaken since unclear whether this represented an absence of confiscation orders.  
The  table  below  presents  the  estimated  value  of  confiscation  orders  for  the  years  2017 
and 2019.  

Table  5  Extrapolation  of  data  for  estimated  value  of  assets  confiscated  2017  and 
2019 

2017 

2019 

Member State 

Austria 
Bulgaria 
Croatia 
Cyprus 
Denmark 
Estonia 
Finland 
France 
Germany 
Ireland 
Latvia 
Luxembourg 
Malta 
Netherlands 
Poland 
Portugal 
Romania 
Slovakia 

value 

Estimated 
of 
property  recovered  at  the 
time of confiscation* 

value 

Estimated 
of 
property  recovered  at  the 
time of confiscation* 

3 225 488,09 € 
7 307 493,60 € 
5 173 646,73 € 
1 262 627,73 € 
3 990 098 € 
3 507 388 € 
3 990 098 € 
453 005 € 
198 646 000 € 
988 297 € 
49 348 178 € 
N/A 
283 470 € 
126 666 € 
N/A 
N/A 
2 443 926 € 
123 342 € 

89 

12 529 219 € 
1 746 910 € 
530 974 € 
11 368 414 € 
3 962 163 € 
11 368 414 € 
65 766 827 € 
796 255 000 € 
2 814 890 € 
49 348 178 € 
20 637 € 
283 470 € 
513 435 € 
N/A 

40 476 319 € 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Slovenia 
Spain 
Sweden 
TOTAL 

N/A 
N/A 
1 107 492 € 
281 977 216 € 

5 667 976 € 
1 002 652 826 € 

Note: For Member States where data was provided for other indicators, no extrapolation 
was undertaken. 

Estimation of value of property recovered 
In relation to the estimated value of property frozen and the estimated value of property 
recovered, an average value per order was identified. This was estimated based only on 
those Member States providing data. The data extrapolated for other Member States was 
not  applied  in  this  regard  due  to  the  inaccuracies  associated  with  this  approach.  This 
enabled for the identification of an average value of assets frozen or recovered per order 
in the Member States.  

Cross-border freezing and recovery  
While  data  provided  by  the  Member  States  was  scarce  in  relation  to  the  following 
indicators (i) number of requests for freezing orders to be executed in  another Member 
State, (ii) number of requests for confiscation orders to be executed in another Member 
States, (iii) value or estimated value of property recovered following execution in another 
Member  State,  data  could  be  extrapolated  for  those  Member  States  where  no  data  was 
provided with a view to providing a global figure for the EU-27. This exercise was  only 
undertake for the reference  years 2017, 2018 and 2019. Based on those Member States 
where  data  was  provided  on  the  value  or  estimated  value  of  property  recovered,  an 
estimation of the average value per request was provided. This allowed for the estimation 
of increases foreseen on the basis on the Policy Options.  

2.  Estimation of revenues generated by organised crime  

It is estimated that the indicative volume of revenues generated by organised crime which 
are not covered by the Confiscation Directive amounts to approximately EUR at least 50 
billion.  This approximate estimation is based on desk research analyzing different data 
sources  such  as  international  and  EU  studies,  government  information  or  Eurostat 
statistics,142 and applying informed assumptions such as the depreciation of counterfeited 
and stolen property. 

The first data source is the 2021 Study for the European Commission on ‘Mapping the 
risk of serious and organized crime infiltrating legitimate businesses’,143 which estimates 

142 Available at Eurostat statistics explained 
143  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs, Mapping  the  risk  of 
serious  and  organised  crime  infiltrating  legitimate  businesses  :  final  report,  Disley,  E.(editor),  Blondes, 
E.(editor), Hulme, S.(editor), Publications Office, 2021, https://data.europa.eu/doi/10.2837/64101. 

90 

 
 
 
 
 
 
 
 
 
 
  
 
                                                           
that  in  2019  criminal  proceeds  from  serious  and  organized  crime  in  nine  of  the  most 
important criminal markets ranged from €92,000 to €188,000 million, with a mid-point 
estimation of €139,000.  

These  estimates  cover  both  offences  included  in  the  scope  of  Articles  3  and  5  of 
Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds 
of crime in the European Union144 as well as offences that currently fall outside the scope 
of  this  Directive.  The  latter  concern  notably  revenues  for  illicit  firearms,  migrant 
smuggling,  some  forms  of  organised  property  crime  (cargo  theft  and  ATM  physical 
attacks) as well as the illicit cigarette market. The mid-point estimations for these crime 
markets provided in the above-mentioned study have been used to develop an indicative 
approximate estimate of the criminal revenues not covered by the Confiscation Directive. 
Similarly, the study provided a mid-point estimate of the revenues generated by Missing 
Trader Intra-Community (MTIC) fraud, the most common form of VAT fraud. This is a 
highly complex form of fraud which is typically carried out by organised crime groups. 
MTIC  fraud  is  partially  covered  by  the  Confiscation  Directive  insofar  as  the  PIF 
Directive  (which  refers  to  the  Confiscation  Directive)  covers  offences  against  the 
common  VAT  system  causing  a  total  damage  of  at  least  EUR  10  million.  Based  on  a 
sample  of  investigations  of  MTIC  fraud  schemes  supported  by  Europol,  an  indicative 
proportion  of  the  figure  provided  in  the  study  for  MTIC  fraud  was  considered  to  be 
outside the scope of the Confiscation Directive. 

Additional  approximate  estimations  have  been  elaborated  for  other  crime  areas  where 
organised crime is active, taking into account different information sources and adjusting 
the data available taking  into account  different  parameters. Such estimations  have been 
carried  out  for  other  forms  of  organised  crime  such  as  burglary,  robberies  and  vehicle 
thefts  (based  on  EU  figures  of  reported  crimes  published  by  Eurostat,  factoring  in 
international figures on the average value stolen in these crimes adjusted to the GDP per 
capita  in  the  EU145),  the  illicit  trafficking  of  cultural  goods  (adjusting  global  estimates 
from an international study to the EU’s GDP), counterfeiting (adjusting available data of 
direct  lost sales for EU  companies of counterfeiting  according to  assumptions of lower 
prices  for  counterfeited  products),  or  forged  documents  (based  on  an  evaluation  of 
average  prices  in  the  market  of  fake  documents  carried  out  by  law  enforcement 
authorities  in  Member  States  and  an  estimation  of  the  number  of  forged  documents 
elaborated on the basis of forged documents detected in the EU’s external borders).   

144 Directive 2014/42/EU of the European Parliament and of the  Council of 3 April 2014 on the freezing 
and confiscation of instrumentalities and proceeds of crime in the European Union, OJ L 127, 29.4.2014, 
Article 3 refers to criminal offences related to corruption involving officials, counterfeiting in connection 
with  the  introduction  of  the  euro,  combating  fraud  and  counterfeiting  on  non-cash  means  of  payment, 
money laundering, combating terrorism, corruption in the private sector, illicit drug trafficking, organised 
crme, trafficking in human beings, abuse and sexual exploitation of children and child pornography, attacks 
against information systems. Article 5 refers to criminal offences including active and passive corruption in 
the  private  sector  as  well  as  corruption  involving  officials  of  institutions  of  the  EU  or  Member  States, 
participation in a criminal organisation, child pornography, illegal system and data interferences.  
145 Available at Eurostat statistics explained 

91 

 
 
 
 
 
                                                           
The  figure  does  not  cover  other  forms  of  crime  or  criminal  markets  where  organised 
crime  is  active,  such  as  other  forms  of  fraud  other  than  MTIC  fraud,  contract  killing 
(including  murder,  grievous  bodily  harm  and  kidnapping),  swindling,  racketeering  and 
extortion,  trafficking  of  nuclear  materials  and  of  illicit  hormonal  substances,  given  the 
lack of reliable data sources on which to base any estimation. Another crime area where 
organised crime is active, organ trafficking, is also not included insofar as the Directive 
2011/36/EU on combating trafficking in human beings and protecting its victims covers 
trafficking in human beings for the purpose of organ removal. 

3.  Costs of policy measures 

The  estimations  of  costs  of  the  policy  measures  envisaged  in  the  different  options 
considered  are  mainly  based  on  the  study  underpinning  this  Impact  Assessment.  The 
study  applied  different  methodological  techniques  to  develop  these  estimates  and  used 
different data sources, such as the costs of training based on data provided in the CEPOL 
Annual Report 2020146, the costs related to the organization of previous meetings of the 
Asset Recovery Offices Platform, the costs of establishing Asset Management Offices in 
a number of Member States where these bodies already exist, or the average costs of Full 
Time Equivalents within public administration in the Member States. For the latter, the 
study  applied  the  quantitative  estimates  in  the  Commission  Impact  Assessment  for  a 
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  combating 
fraud  and  counterfeiting  of  non-cash  means  of  payment  and  replacing  Council 
Framework  Decision  2001/413/JHA147  was  applied.  Where  no  data  was  available, 
estimates were made by the contractor based on market experience (i.e. in the preparation 
of digital registries etc.).  

These  figures  were  included  as  such  for  certain  cost  categories  (e.g.  on  the  costs  of 
establishing  Asset  Management  Offices  or  asset  registries)  or  were  used  the  basis  for 
further  estimations  elaborated  by  the  Commission  services  in  order  to  reflect  the 
difference in the measures considered in this Impact Assessment as compared to the ones 
envisaged in the study. The additional estimations were elaborated by adjusting the data 
provided  in  the  study  through  an  informed  guess  of  the  additional  resources  needed  to 
carry  out  certain  tasks,  using  where  available  proxies  such  as  number  of  investigations 
supported by Europol, information from previous Impact Assessments, etc.  

4.  Estimation of benefits 

Section 7.1 of this  Impact Assessment related to the efficiency of the different includes 
approximate figures of the indicative volume of additional assets confiscated as a result 
of  the  measures  contained  in  the  legislative  options.  These  figures  indicate  a  plausible 
range  of  additional  amount  of  recovered  assets  of  approximately  EUR  100-200  million 

146 Available at Publications - Annual Report | CEPOL (europa.eu)  
147 
298 
content/EN/TXT/PDF/?uri=CELEX:52017SC0298&from=EN  

SWD(2017) 

available 

final, 

at 

92 

https://eur-lex.europa.eu/legal-

 
 
 
 
 
 
                                                           
per annum across the EU for PO2, EUR 1 billion for PO3 and an additional EUR 50-100 
million for PO4. 

These figures are aimed at providing an approximate order of magnitude and are based 
on  the  estimations  in  the  Impact  Assessment  study,  a    qualitative  assessment  of  the 
measures in each option and its expected impact in terms of additional asset recovered, 
based on an informed appraisal as to the impact of these measures in the asset recovery 
rates  and  the  experiences  of  Member  States  on  the  effectiveness  of  different  measures, 
considering  for  example  the  importance  of  financial  investigations,  the  data  from 
Member  States  with  more  ambitious  confiscation  models  or  the  contribution  of  Asset 
Recovery  Offices  and  Asset  Management  Offices  in  promoting  and  facilitating  the 
recovery of assets. 

The  indicative  nature  of  such  approximations  is  due  to  the  lack  of  comprehensive 
statistical  data  in  current  asset  recovery  systems,  a  problem  highlighted  in  this  Impact 
Assessment,  as  well  as  external  factors  outside  the  scope  of  this  Impact  Assessment 
which  would  have  an  impact  on  the  asset  recovery  rates,  such  as  the  level  of  criminal 
activities,  the  sophistication  of  organised  crime  groups  in  applying  new  methods  and 
technologies  to  avoid  detection,  or  the  number  of  criminal  investigations  launched  in 
relation to organised crime activities. 

METHODOLOGY APPLIED FOR THE EVALUATION 

For  the  Evaluation  the  Commission  relied  on  findings  gathered  in  the  reports  “Asset 
Recovery  and  confiscation, ensuring that  crime  does not  pay,”148  and the staff working 
document  “Analysis  of  non-conviction  based  confiscation  measures  in  the  European 
Union.”149 These reports are complemented by the evidence gathered of three studies,150 
which  were  paired  with  a  public  consultation  and  evaluation-specific  stakeholders 
consultation. The Commission organised, in particular, the 20th Meeting of the EU Asset 
Recovery Offices’ Platform to test previous findings and to develop the Evaluation and 
Impact  Assessment  that  underpin  the  revision  of  the  ARO  Council  Decision  and  the 
Confiscation  Directive.  In  addition,  the  Fifth  meeting  of  the  Contact  Committee  of  the 
Confiscation Directive was organised in the context of the preparation of the Evaluation 
as well.  

148  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and 
confiscation: Ensuring that crime does not pay, SWD COM/2020/217 final 
149 SWD (2019), 1050 final. 
150  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing, 
2021, 
and 
confiscation 
HOME/2018/ISFP/FW/EVAL/0081;  
European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Compliance  assessment  of 
measures  of  Member  States  to  transpose  Directive  2014/42/EU  (“Confiscation  Directive”)  and  legal 
consultancy on this Directive, Overall Report, 2019HOME/2017/ISFP/FW/LECO/0084; Study to support 
the  preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation, 
HOME/2020/ISFP/FW/EVA2/0016 

–  what  works,  what 

not  work, 

recovery 

asset 

does 

93 

 
 
 
                                                           
Evaluation-specific  stakeholders’  consultation  sought  to  complement  and  add  upon  the 
data gathered in previous studies and reports, which relate to the asset recovery system 
but  were  not  tailored  towards  an  evaluation.  The  consultation  aimed  at  addressing  the 
tailored needs of an evaluation, without gathering further factual data which had already 
been gathered in the transposition study of Directive 2014/42/EU151 and the study ‘Asset 
recovery and confiscation: what works and what doesn’t work’152. The ‘Study to support 
the preparation of an Impact Assessment on EU policy initiatives on asset recovery and 
confiscation’153  further  gathered  evaluation-specific  data,  which  informs  the  Evaluation 
report. 

151 HOME/2017/ISFP/FW/LECO/0084 
152 HOME/2018/ISFP/FW/EVAL/0081 
153 HOME/2020/ISFP/FW/EVA2/0016 

94 

 
 
 
  
                                                           
ANNEX 5: CATEGORIES AND SCOPE OF CONFISCATION MEASURES 

Different legal traditions of EU Member States have over the years given rise to a wide range of 
existing confiscation measures. EU legislation, such as Framework Decision 2005/212/JHA and 
Directive 2014/42/EU, have laid down minimum rules on the following confiscation measures: 

  Standard confiscation 
  Value confiscation 
  Third party confiscation 
  Extended confiscation 
  Non-conviction based confiscation 

Standard confiscation 

Standard confiscation refers to a judicial order concerning property related to a specific crime for 
which  the  owner  has  been  convicted.  The  targeted  assets  are  the  direct  proceed  or  the 
instrumentality of a crime, following a criminal conviction for that crime.  

Standard  confiscation  is  regulated  by  Article  2(1)  of  Framework  Decision  2005/212/JHA.  It 
applies to all offences punishable by deprivation of liberty for more than one year.155  

Value confiscation 

Value confiscation refers to a type of confiscation measure targeting property of equivalent value 
to  the  proceeds  or  instrumentality  of  a  crime.  The  confiscation  order  is  realizable  against  any 
property of the individual charged.  It is employed most often in  cases where criminals convert 
proceeds of crime into other property to hide its illicit origin and disguise the audit trail. 

Value  confiscation  is  regulated  by  Article  2(1)  of  Framework  Decision  20015/212/JHA  and 
Article 4(1) of  Directive 2014/42/EU.156  It  applies  to  all offences punishable by deprivation of 
liberty for more than one year157 and to the crimes listed and cross-referenced in article 3 of the 
Directive,  covering  certain  offences  in  relation  to  corruption,158  counterfeiting  of  the  euro,159 

155  Article  2(1)  Directive  2014/42/EU:  “Each  Member  State  shall  take  the  necessary  measures  to  enable  it  to 
confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation 
of liberty for more than one year, or property the value of which corresponds to such proceeds.” 
156  Article  4  Directive  2014/42/EU:  “Member  States  shall  take  the  necessary  measures  to  enable  the  confiscation, 
either  in  whole  or  in  part,  of  instrumentalities  and  proceeds  or  property  the  value  of  which  corresponds  to  such 
instrumentalities  or  proceeds,  subject  to  a  final  conviction  for  a  criminal  offence,  which  may  also  result  from 
proceedings in absentia.” 
157  Article  2(1)  Directive  2014/42/EU:  “Each  Member  State  shall  take  the  necessary  measures  to  enable  it  to 
confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation 
of liberty for more than one year, or property the value of which corresponds to such proceeds.” 
158Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector, OJ L 
192, 31.7.2003, p. 54. Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on 
95 

 
 
 
 
                                                           
credit  card  fraud,160  money  laundering,161  terrorism,162  illicit  drug  trafficking,163  organised 
crime,164 trafficking in  human beings,165  sexual  exploitation of children,166 cyberattacks,167 and 
fraud to the Union's financial interests168.  

Third-party confiscation  

Third-party confiscation refers to 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  or  her  by  the  offender.  It  is  regulated  by  Article  6  of  Directive 
2014/42/EU169. It applies to the same list of offences to which value confiscation is applicable to, 
listed in Article 3 of the Directive. 

Extended confiscation 

Extended  confiscation  concerns  confiscation  orders  which  go  beyond  the  direct  proceeds  of  a 
crime. The order follows a criminal conviction, targeting property “beyond the direct proceeds of 
the  crime  for  which  the  offender  was  convicted,  where  the  property  seized  is  derived  from 

the fight against corruption involving officials of the European Communities or officials of the Member States of the 
European Union, OJ C 195, 25.6.1997, p. 1. (‘Convention on the fight against corruption involving officials’); 
159 Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and 
other sanctions against counterfeiting in connection with the introduction of the euro, OJ L 140, 14.6.2000, p. 1. 
160 Council Framework Decision 2001/413/JHA of 28 May 2001 on combating fraud and counterfeiting on non-cash 
means of payment, OJ L 149, 2.6.2001, p. 1. 
161 Council Framework Decision 2001/500/JHA of 26 June  2001 on  money laundering, the identification, tracing, 
freezing, seizing and confiscation of instrumentalities and the proceeds of crime, OJ L 182, 5.7.2001, p. 1. 
162 Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, OJ L 164, 22.6.2002, p. 3. 
163  Council  Framework  Decision  2004/757/JHA  of  25  October  2004  laying  down  minimum  provisions  on  the 
constituent elements of criminal acts and penalties in the field of illicit drug trafficking, OJ L 335, 11.11.2004, p. 8 
164 Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime, OJ L 300, 
11.11.2008, p. 42. 
165  Directive  2011/36/EU  of  the  European  Parliament  and  of  the  Council  of  5  April  2011  on  preventing  and 
combating  trafficking  in  human  beings  and  protecting  its  victims,  and  replacing  Council  Framework  Decision 
2002/629/JHA 
166 Directive 2011/93/EU of the European Parliament and of  the  Council of 13 December  2011 on combating the 
sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 
2004/68/JHA, OJ L 335, 17.12.2011, p. 1. 
167  Directive  2013/40/EU  of  the  European  Parliament  and  of  the  Council  of  12  August  2013  on  attacks  against 
information systems and replacing Council Framework Decision 2005/222/JHA, OJ L 218, 14.8.2013, p. 8. 
168  Directive  (EU)  2017/1371  of  the  European  Parliament  and  of  the  Council  of  5  July  2017  on  the  fight  against 
fraud to the Union's financial interests by means of criminal law, OJ L 198, 28.7.2017, p. 29–41. The PIF Directive 
makes a reference to the Confiscation Directive so that the provisions of the latter apply to the offences harmonised 
by the PIF Directive. 
169 Article 6 Directive 2014/42/EU: “Member States shall take the necessary measures to enable the confiscation of 
proceeds,  or  other  property  the  value  of  which  corresponds  to  proceeds,  which,  directly  or  indirectly,  were 
transferred  by  a  suspected  or  accused  person  to  third  parties,  or  which  were  acquired  by  third  parties  from  a 
suspected  or  accused  person,  at  least  if  those  third  parties  knew  or  ought  to  have  known  that  the  purpose  of  the 
transfer or acquisition was to avoid confiscation, on the basis of concrete facts and circumstances, including that the 
transfer  or  acquisition  was  carried  out  free  of  charge  or  in  exchange  for  an  amount  significantly  lower  than  the 
market value. 2. Paragraph 1 shall not prejudice the rights of bona fide third parties.” 

96 

 
 
 
                                                                                                                                                                                           
criminal conduct.”170 A direct link between the property and the offence, such as in the case of 
standard confiscation measures, is not necessary if the court assesses that the offender’s property 
was nevertheless derived for other unlawful conduct.  

This  confiscation  measure  is  particularly  applicable  in  cases  where  the  court  assesses  that  the 
offender will have perpetrated a greater number of offences than those they are directly on trial 
for,  such  as  in  the  case  of  organised  crime  members.  For  example,  a  court  might  be  able  to 
convict  a  drug  trafficker  for  one  specific  cargo,  but  not  for  the  trafficking  activities  over 
preceding  years  from  which  they  also  profited.  In  these  cases,  the  court  can  confiscate  other 
property beyond the direct proceeds of the crime in question, if the court concludes that property 
is derived from criminal conduct. 

Extended  confiscation  is  regulated  by  Article  5  of  Directive  2014/42/EU.171  It  applies  to 
corruption,172  the  participation  in  a  criminal  organisation,173  child-pornography,174  and  IT 
crimes.175  For  other  crimes  in  scope  of  the  Directive  but  not  explicitly  listed  in  the  relevant 
article  on  extended  confiscation,  extended  confiscation  is  applicable  in  relation  to  offences 
punishable by a custodial sentence of at least four years.176  

Non-conviction based confiscation (NCBC) 

170  Final  report  on  operational  challenges  associated  with  asset  recovery,  FATF/RTMG(2021)17/REV2,  4  June 
2021. 
171  Article  5(1)  Directive  2014/42/EU:  “Member  States  shall  adopt  the  necessary  measures  to  enable  the 
confiscation, either in whole or in part, of property belonging to a person convicted of a criminal offence which is 
liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the 
case, including the specific facts and available evidence, such as that the value of the property is disproportionate to 
the  lawful  income  of  the  convicted  person,  is  satisfied  that  the  property  in  question  is  derived  from  criminal 
conduct.” 
172  Article  5(2)(a)  Directive  2014/42/EU:  “active  and  passive  corruption  in  the  private  sector,  as  provided  for  in 
Article  2  of  Framework  Decision  2003/568/JHA,  as  well  as  active  and  passive  corruption  involving  officials  of 
institutions of the Union or of the Member States, as provided for in Articles 2 and 3 respectively of the Convention 
on the fight against corruption involving officials” 
173 Article 5(2)(b) Directive 2014/42/EU: “offences relating to participation in a criminal organisation, as provided 
for  in  Article  2  of  Framework  Decision  2008/841/JHA,  at  least  in  cases  where  the  offence  has  led  to  economic 
benefit” 
174 Article 5(2)(c) Directive 2014/42/EU: “causing or recruiting a child to participate in pornographic performances, 
or profiting from or otherwise exploiting a child for such purposes if the child is over the age of sexual consent, as 
provided  for  in  Article  4(2)  of  Directive  2011/93/EU;  distribution,  dissemination  or  transmission  of  child 
pornography,  as  provided  for  in  Article  5(4)  of  that  Directive;  offering,  supplying  or  making  available  child 
pornography, as provided for in Article 5(5) of that Directive; production of child pornography, as provided for in 
Article 5(6) of that Directive” 
175 Article 5(2)(d) Directive 2014/42/EU: “illegal system interference and illegal data interference, as provided for in 
Articles 4 and 5 respectively of Directive 2013/40/EU, where a significant number of information systems have been 
affected through the use of a tool, as provided for in Article 7 of that Directive, designed or adapted primarily for 
that  purpose;  the  intentional  production,  sale,  procurement  for  use,  import,  distribution  or  otherwise  making 
available of tools used for committing offences, at least for cases which are not minor, as provided for in Article 7 of 
that Directive” 
176  Article  5(2)(e)  Directive  2014/42/EU:  “a  criminal  offence  that  is  punishable,  in  accordance  with  the  relevant 
instrument  in  Article  3  or,  in  the  event  that  the  instrument  in  question  does  not  contain  a  penalty  threshold,  in 
accordance with the relevant national law, by a custodial sentence of a maximum of at least four years.” 

97 

 
 
 
                                                           
Non-conviction  based  confiscation  refers  to  a  confiscation  measure  taken  in  the  absence  of  a 
conviction and directed against an asset from illicit origin. In the case of Directive 2014/42/EU, 
it covers cases where a criminal conviction is not possible because the suspect has become ill or 
fled  the  jurisdiction.  In  more  expansive  non-conviction  based  regimes,  NCBC  can  also  be 
available in cases where the suspect 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.  

As  highlighted  by  FATF,  like  all  other  types  of  confiscation  measures  NCBC  is  a  legal 
consequence of criminal conduct, with however the evidentiary focus being on the property and 
its nexus to  a criminal  activity, rather than the prosecution of  a particular individual.  It  can be 
based  in  civil  or  criminal  proceedings.  Whilst  Directive  2014/42/EU  convers  only  cases  of 
criminal  non-conviction  based  confiscation,  the  concept  of  non-conviction  based  confiscation 
also covers the cases of action against the asset itself (so-called "proceedings in rem", generally 
in  civil  proceedings),  regardless  of  the  person  in  possession  of  the  property.  It  is  applicable  to 
cases, for example, when the proceeds of crime have been identified but cannot be linked to any 
individual; or the suspect is 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.  

Criminal  non-conviction  based  confiscation  is  regulated  by  Article  4(2)  of  Directive 
2014/42/EU.177 It applies to the same list of offences to which value confiscation is applicable to, 
listed  in  Article  3  of  the  Directive,  but  only  in  cases  of  impossibility  to  reach  a  confiscation 
verdict because the defendant fled or was ill. 

The table below compares the scopes of these confiscation measures. 

Table 1. Comparison of scope of confiscation measures 

177  Article  4(2)  Directive  2014/42/EU:  “Where  confiscation  on  the  basis  of  paragraph  1  is  not  possible,  at  least 
where  such impossibility is the result of illness or absconding of the suspected or accused person, Member States 
shall  take  the  necessary  measures  to  enable  the  confiscation  of  instrumentalities  and  proceeds  in  cases  where 
criminal  proceedings  have  been  initiated  regarding  a  criminal  offence  which  is  liable  to  give  rise,  directly  or 
indirectly,  to  economic  benefit,  and  such  proceedings  could  have  led  to  a  criminal  conviction  if  the  suspected  or 
accused person had been able to stand trial.” 

98 

 
 
 
 
                                                           
Scope of confiscation measures under Framework Decision 2005/212/JHA and Directive 2014/42/EU 

Scope 

 Confiscation measures covered by EU acquis 

Standard 
confiscation 

Value 
confiscation 

Third party 
confiscation 

Extended confiscation 

NCBC 

All offences 
punishable by more 
than 1 year 

All offences 
punishable by more 
than 4 years 

Corruption 
(public officials) 

Corruption  
(private sector) 

✔ 

✔ 

✔ 

(if above 1 year) 

✔ 

(if above 1 year) 

Counterfeiting of the 
euro 

✔ 

(if above 1 year) 

Credit card fraud 

✔ 

(if above 1 year) 

✔ 

X 

✔ 

✔ 

✔ 

X 

✔ 

✔ 

X 

X 

✔ 

(only applicable to article 2 and 3 of 
the Convention on the fight against 
corruption involving officials) 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

✔ 

✔ 

(only applicable to Article 2 of 
Framework Decision 2003/568/JHA) 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

X 

✔ 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

✔ 

(only in cases where a criminal conviction 
could have been obtained had not been for 

X 

X 

✔ 

✔ 

✔ 

99 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Money Laundering 

✔ 

(if above 1 year) 

Terrorism 

✔ 

✔ 

✔ 

✔ 

✔ 

(if above 1 year) 

✔ 

✔ 

Illicit drugs 
trafficking 

✔ 

(if above 1 year) 

✔ 

✔ 

X 

X 

X 

X 

Participation in a 
criminal 
organisation 

✔ 

(if above 1 year) 

✔ 

✔ 

✔ 
(Only applicable to Article 2 of 
Framework Decision 2008/841/JHA, 
and in cases  leading to an economic 
benefit) 

Trafficking in 
human beings 

✔ 

(if above 1 year) 

✔ 

✔ 

 X 

illness and absconding of the defendant) 

✔ 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

✔ 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

✔ 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

✔ 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

✔ 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

Sexual abuse and 
exploitation of 
children 

✔ 

(if above 1 year) 

✔ 

✔ 

(only applicable to Articles 4(2), 
5(4), 5(5) and 5(6) of Directive 

(only in cases where a criminal conviction 
could have been obtained had not been for 

✔ 

✔ 

100 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Cyberattacks 

✔ 

✔ 

✔ 

2011/93/EU) 

illness and absconding of the defendant) 

(if above 1 year) 

✔ 

✔ 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

(only in specific cases outlined in 
article 4 and 5 of Directive 
2011/93/EU, where a “significant 
number” of information systems are 
affected by tools outlined in Article 
7, and in other instances178 outlined 
in Article 7 of the Directive, only if 
not minor) 

Fraud against the 
Union’s financial 
interests 

✔ 

(if above 1 year) 

✔ 

✔ 

X 

✔ 

(only in cases where a criminal conviction 
could have been obtained had not been for 
illness and absconding of the defendant) 

178  “the  intentional  production,  sale,  procurement  for  use,  import,  distribution  or  otherwise  making  available  of  tools  used  for  committing  offences”  Article 
5(2)(d) Directive 2014/42/EU 

101 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Moreover,  the  confiscation  tools  foreseen  by  Directive  2014/42/EU  do  not  cover  all 
revenue-generating  criminal  markets  where  organised  crime  is  active.  The  table  below 
highlights  the  scopes  of  offences  covered  by  confiscation  measures  regulated  by 
Directive 2014/42/EU. 

 Table 2. Crimes covered by Directive 2014/42/EU  

Provisions 
of  Directive 
2014/42/EU 

3 

Article 
Directive 
2014/42/EU  

Instruments Covered  

Category of crimes covered  

Convention  drawn  up  on  the  basis  of  Article  K.3(2)(c)  of  the 
Treaty  on  European  Union  on 
against  
corruption involving officials of the European Communities or 
the  European  
the  Member  States  of 
officials  of 
Union  (1)  (‘Convention  on  the  fight  against  corruption 
involving officials’) 

fight 

the 

increasing  protection  by 

Council  Framework  Decision  2000/383/JHA  of  29  May  2000 
on 
and  
other  sanctions  against  counterfeiting  in  connection  with  the 
introduction of the euro 

criminal  penalties 

Corruption  

Counterfeiting  

Council  Framework  Decision  2001/413/JHA  of  28  May  2001 
on  combating 
fraud  and  counterfeiting  on  non-cash  
means of payment 

Fraud  
Counterfeiting  

Council  Framework  Decision  2001/500/JHA  of  26  June  2001 
on  money 
tracing,  
freezing,  seizing  and  confiscation  of  instrumentalities  and  the 
proceeds of crime  

identification, 

laundering, 

the 

Money Laundering  

Council  Framework  Decision  2002/475/JHA  of  13  June  2002 
on combating terrorism 

Terrorism  

Council  Framework  Decision  2003/568/JHA  of  22  July  2003 
on combating corruption in the private sector 

Corruption  

laying 

Council  Framework  Decision  2004/757/JHA  of  25  October 
2004 
the  
constituent elements of criminal acts and penalties in the field 
of illicit drug trafficking 

down  minimum 

provisions 

on 

Illicit drug trafficking  

Council  Framework  Decision  2008/841/JHA  of  24  October 
2008 on the fight against organised crime 

Participation 
organisation  

in  a  criminal 

Directive  2011/36/EU  of  the  European  Parliament  and  of  the 
Council  of  5  April  2011  on  preventing  and  combating  
trafficking  in  human  beings  and  protecting  its  victims,  and 
replacing Council Framework Decision 2002/629/JHA (6 

Trafficking in human beings  

102 

 
 
 
Instruments Covered  

Category of crimes covered  

Provisions 
of  Directive 
2014/42/EU 

Directive  2011/93/EU  of  the  European  Parliament  and  of  the 
Council of 13 December 2011 on combating  the  sexual abuse 
and sexual exploitation of children and child pornography, and 
replacing Council Framework Decision 2004/68/JHA 

Sexual  abuse  and  exploitation 
of children  

Directive  2013/40/EU  of  the  European  Parliament  and  of  the 
against  
Council 
information  systems  and 
replacing  Council  Framework 
Decision 2005/222/JHA 

12  August 

attacks 

2013 

on 

of 

Cyberattacks 

Council  Framework  Decision  2003/568/JHA  of  22  July  2003 
on combating corruption in the private sector 

Active  and  Passive  Corruption 
in the private sector  

Convention  drawn  up  on  the  basis  of  Article  K.3(2)(c)  of  the 
against  
Treaty  on  European  Union  on 
corruption involving officials of the European Communities or 
officials  of 
the  European  
the  Member  States  of 
Union (1) (‘Convention on the fight a 

fight 

the 

Corruption involving officials  

5 

Article 
Directive 
2014/42/EU 

Council  Framework  Decision  2008/841/JHA  of  24  October 
2008 on the fight against organised crime 

Participation 
organisation  

in  a  criminal 

Directive  2011/93/EU  of  the  European  Parliament  and  of  the 
Council of 13 December  2011 on combating  the  sexual abuse 
and sexual exploitation of children and child pornography, and 
replacing Council Framework Decision 2004/68/JHA 

Sexual  abuse  and  exploitation 
of children  

Directive  2013/40/EU  of  the  European  Parliament  and  of  the 
Council 
against  
replacing  Council  Framework 
information  systems  and 
Decision 2005/222/JHA 

12  August 

attacks 

2013 

on 

of 

Illegal  system  interference  and 
illegal data interference  

Consequently,  Directive  2014/42/EU  fails  to  address  a  multitude  of  crime  where 
organised crime is active: firearms trafficking, environmental crime, migrants smuggling, 
contract  killing  (including  murder,  grievous  bodily  harm  and  kidnapping),  organ 
trafficking,  organised  armed  robbery, 
in  cultural  goods,  swindling, 
racketeering  and  extortion,  counterfeiting,  documents  forgery,  forgery  of  means  of 
payment,  trafficking  of  nuclear  materials  and  of  illicit  hormonal  substances,  illicit 
tobacco  trade  and  of  stolen  vehicles.  Even  though  the  aggregate  value  of  the  revenues 
generated from these crimes cannot be defined with precision, cautious estimates would 
place  this  value  at  EUR  50  billion  at  least  per  annum  outside  the  scope  of  the 
Confiscation Directive. 

trafficking 

103 

 
 
 
 
ANNEX 6: CONFISCATION AND FUNDAMENTAL RIGHTS 

The fundamental rights enshrined in the Charter of Fundamental Rights of the European 
Union  ("the  Charter")  and  the  Treates  provide  important  limits  for  Union  legilsative 
action, notably in the field of confiscation179. In particular, Article 49 of the Charter sets 
out the principles of legality and proportionality of criminal offences and penalties, and 
Artice  52  Paragraph  1  deals  with  the  arrangements  for  the  limitation  of  some  rights 
(relative or rectius rights, as opoposed to absolute rights) inlcuding the right to property.  

At stake in confiscation cases are also procedural rights, including in particular the right 
to a fair trial, the right to an effective remedy, and the presumption of innocence; 

1. Right to property and the principle of proportionality  

Article 17 of the Charter guarantees the right to property180. The corresponding provision 
is  Article  1  of  the  first  Protocol  to  the  European  Convention  of  Human  Rights 
("ECHR")181. 

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, as it is subject to interference. According to 
the  established  case-law  of  the  European  Court  of  Human  Rights  ("ECtHR")182,  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.  UK183,  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, 

179 Communication from the Commission to the European Parliament, the Council, the European Economic 
and Social Committee and the Committee of the Regions “Towards an EU Criminal Policy: Ensuring the 
effective implementation of EU policies through criminal law”, Brussels, 20.9.2011, COM(2011) 573 final. 
180  "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." 
181 "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". 
182 See, for example, ECtHR, Agosi v. UK, N°9118/80; Raimondo v. Italy, N°12954/87.  
183 ECtHR, Phillips v. UK, N°41087/98. 

104 

 
                                                           
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 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.  UK184,  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 nature185. 

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 Charter186 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  rights187  and  notably  Directive  2012/13/EU  on  the  right  to  information  in 

184 ECtHR, Butler v. UK, N°41661/98. 
185 See European Agency for Fundamental Rights, FRA Opinion 03/2012 on the Confiscation of proceeds 
of crime, p.7. 
186  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." 

105 

 
 
                                                           
criminal  proceedings188  and  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 
criminal  proceedings189.  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, the Confiscation Directive 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 Netherlands190 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  Netherlands191  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) 

187 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. 
188 OJ L 142/1 of 1.6.2012. 
189 OJ L 65/1 of 11.3.2016. 
190 ECtHR, Van Offeren v. the Netherlands, N°19581/04. 
191 ECtHR, Geerings v. the Netherlands, N°30810/03. 

106 

 
                                                                                                                                                                            
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 
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. UK192, 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 

192 ECtHR, Phillips v. UK, N°41087/98. 

107 

 
 
 
                                                           
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.  UK193,  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 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 

193 ECtHR, Grayson & Barnham v. UK, N°19955/05 and 15085/06. 

108 

 
                                                           
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."194 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.  Italy195,  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. Italy196 the ECtHR found a violation of 
Article 6(1) ECHR as the applicants should have had at least the opportunity to ask for a 
public hearing and in the case Bongiorno a.o. v. Italy197 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.  UK198  and  Webb  v.  UK199,  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 

194 ECtHR, M. v. Italy, N°12386/86. 
195 ECtHR, Arcuri v. Italy, N°52024/99. 
196 ECtHR, Bocellari and Rizza v. Italy, N°399/02. 
197 ECtHR, Bongiorno a.o. v. Italy, N°4514/07. 
198 ECtHR, Butler v. UK, N°41661/98. 
199 ECtHR, Webb v. UK, N°56054/00. 

109 

 
 
                                                           
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 parties200. 

In  the  case  Arcuri  v.  Italy201  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.  Lithuania202  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 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. 

200  See  Article  6(2)  of  Directive  2014/42/EU  of  the  European  Parliament  and  of  the  Council  of  3  April 
2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, 
OJ L 127, 29.4.2014, p. 39. 
201 ECtHR, Arcuri v. Italy, N°52024/99. 
202 ECtHR, Silickiene v. Lithuania, N°20496/02. 

110 

 
                                                           
In the case Veits v. Estonia203 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. Russia204 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. 

203 ECtHR, Veits v. Estonia, N°12951/11. 
204 ECtHR, Denisova and Moiseyeva v. Russia, N°16903/03. 

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ANNEX 7: EVALUATION OF THE EXISTING POLICY AND 

LEGISLATIVE FRAMEWORK 

1.  INTRODUCTION 

1.1 Purpose and scope 

Financial  gain  is  the  primary  motivation  behind  organised  crime.  Criminal  revenues  in 
the  nine  main  criminal  markets  in  the  European  Union  amounted  to  €139  billion  in 
2019,205  corresponding  to  1%  of  the  Union’s  Gross  Domestic  Product.206  Their  large 
illegal profits allow organised crime groups to maintain and expand their activities and to 
infiltrate the licit economy and public institutions, including via corruption, eroding the 
rule of law and fundamental rights, and undermining people’s right to safety as well as 
their trust in public authorities. The EncroChat207, Sky ECC208 and AN0M209 cases have 
further  shown  the  extent  of  organised  crime’s  transnational  reach,  their  complex  modi 
operandi and unprecedented degree of economic infiltration. 

The objective of this Evaluation is to assess whether the European Union’s asset recovery 
framework  has  achieved  the  declared  objectives  and  is  still  “fit  for  purpose”.  The  EU 
asset recovery framework subject to review is composed of two main legal instruments: 

(i) 

(ii) 

Council  Decision  2007/845/JHA   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 (hereinafter 
referred to as the “ARO Council Decision”)210; 

Directive  2014/42/EU  of  the  European  Parliament  and  of  the  Council  of 
3 April  2014  on  the  freezing  and  confiscation  of  instrumentalities  and 
proceeds  of  crime  in  the  European  Union  (hereinafter  referred  to  as  the 
“Confiscation Directive”)211. 

205  Illicit  drugs,  trafficking  in  human  beings,  smuggling  of  migrants,  fraud  (MTIC  fraud,  IPR 
infringements,  food  fraud),  environmental  crime  (illicit  waste  and  illicit  wildlife),  illicit  firearms,  illicit 
tobacco, cybercrime activities, organised property crime – European Commission, Directorate-General for 
Migration  and  Home  Affairs, Mapping  the  risk  of  serious  and  organised  crime  infiltrating  legitimate 
businesses:  final  report,  Disley,  E.(editor),  Blondes,  E.(editor),  Hulme,  S.(editor),  Publications  Office, 
2021, p. 10 
206 Europol,  From suspicion to action – Converting  financial intelligence into greater operational impact, 
2017 
207Europol,  “Dismantling  of  an  encrypted  network  sends  shockwaves  through  organised  crime  groups 
across Europe”, 2 July 2020,  
208  Europol,  “New  major  interventions  to  block  encrypted  communications  of  criminal  networks”,  10 
March 2021 
209  Europol,  “800  criminal  arrested  in  biggest  ever  law  enforcement  operation  against  encrypted 
communication”, 8 June 2021 
210 [2007] OJ L332/103. 
211 [2014] OJ L127/39. 

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These  instruments  are  complemented  by  the  Regulation  2018/1805  on  the  mutual 
recognition of freezing orders and confiscation orders212, which is out of the scope of this 
Evaluation.  

The aim of this Evaluation is to assess the functioning of the ARO Council Decision and 
the  Confiscation  Directive,  the  level  of  implementation  and  application  in  EU  Member 
States since the end of their transposition period in 2008 and in 2015 respectively, and to 
assist  in  determining  the  level  of  additional  EU  intervention  necessary  for  the  efficient 
and  effective  recovery  of  illicit  assets  when  fighting  serious  and  organised  crime.  The 
findings  of  this  Evaluation  serve  as  one  relevant  input  to  the  Impact  Assessment.  The 
Evaluation  covers  all  legal  provisions  of  the  ARO  Council  Decision  and  of  the 
Confiscation  Directive.  The  Evaluation  covers  all  EU  Member  States,213  with  the 
exception of Denmark with regards to the Confiscation Directive214. The Evaluation will 
follow  the  five  evaluation  criteria  set  out  in  the  Commission’s  Better  Regulation 
Guidelines:215 relevance, effectiveness, efficiency, coherence and EU added value.  

1.2 Sources and methodology 

The  implementation  of  the  EU  asset  recovery  framework  has  been  analysed  in  various 
reports over the past years. The European Commission relied on findings of three studies 
and  two  reports  for  this  Evaluation:  the  Commission  report  “Asset  Recovery  and 
confiscation, ensuring that crime does not pay,”216  the staff working document “Analysis 
of  non-conviction  based  confiscation  measures  in  the  European  Union,”217  and  the 
studies  on  the  transposition  of  Directive  2014/42/EU218,  on  “Asset  recovery  and 
confiscation:  what  works  and  what  doesn’t  work”219  and  the  “Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and 
confiscation”220.  

The study on “Asset recovery and confiscation: what works and what doesn’t work” is, in 
particular, a backward-looking assessment of what works and what does not work in the 
different phases of the asset recovery process in the Member States. The study provides 
for the main source of backward-looking information of Council Decision 2007/845/JHA 
on Asset Recovery Offices and Directive 2014/42/EU. The data gathered from this study 
allowed the drawing of preliminary conclusions which were then tested with evaluation-
specific consultations in the “Study to support the preparation of an Impact Assessment 

212 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, OJ L 303, 28.11.2018, pp.1-38. 
213  The  United  Kingdom  left  the  European  Union  as  of  1  February  2020  and  chose  to  opt  out  from  the 
Confiscation Directive. However, since  the reference period for this evaluation is 2011-2020, and studies 
upon which it relies upon include the United Kingdom in their scope, this evaluation includes information 
on the United Kingdom. 
214 In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark annexed to the TEU 
and to the TFEU, Denmark chose not to take part in the adoption of the Directive. 
215 Better Regulation Guidelines, November 2021, SWD(2021) 305 final 
216  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and 
confiscation: Ensuring that crime does not pay, SWD COM/2020/217 final 
217 SWD (2019), 1050 final. 
218 HOME/2017/ISFP/FW/LECO/0084 
219 HOME/2018/ISFP/FW/EVAL/0081, https://data.europa.eu/doi/10.2837/649661 
220 HOME/2020/ISFP/FW/EVA2/0016 

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on  EU  policy  initiatives  on  asset  recovery  and  confiscation”,  the  public  consultation221 
and the 20th Meeting of the EU Asset Recovery Offices’ Platform together with the Fifth 
meeting of the Contact  Committee on Directive  2014/42/EU.  The  evidence  gathered in 
these  studies,  reports,  and  consultation  activities informed  in  aggregate  the  conclusions 
and lessons learned, as these studies gave an overview of what was achieved through the 
evaluated  instruments,  together  to  an  overview  of  tools  available  to  Member  States, 
existing gaps, and best practices. 

2. WHAT WAS THE EXPECTED OUTCOME OF THE INTERVENTION? 

2.1 Description of the intervention and its objectives 

In line with the “evaluate first” principle, the Evaluation seeks to assess the value of the 
Confiscation  Directive  and  of  the  ARO  Council  Decision.  Both  legislative  instruments 
were  enacted  with  the  same  general  objectives  of  fighting  serious  and  organised  crime 
through targeting its profits.222  In the specific, both interventions aimed at reducing the 
attractiveness of organised crime by making sure that those profits could be taken away, 
showing  that  “crime  does  not  pay”  and  preventing  their  reinvestment  into  further 
criminal  activities.  In  order  to  do  so,  both  instruments  aimed  at  equipping  competent 
authorities  with  tools  to  retrieve  criminal  profits,  and  to  facilitate  mutual  trust  and 
effective  cross-border  cooperation,  ultimately  resulting  in  an  increased  security  trust  in 
public institutions and the rule of law. 

The  objectives  of  the  instruments  subject  to  this  Evaluation  relate  to  a  number  of 
sustainable development goals. By countering organised crime’s infiltration into the legal 
economy,  the  fight  against  organised  crime’s  profits  primarily  contributes  to  goals  of 
(16), peace, justice, and strong institutions and (8), decent work and economic growth. 

The two initiatives differ in terms of specific objectives, inputs and results. 

The  Confiscation  Directive  aimed  at  approximating  Member  States’  legislation  on 
freezing  and  confiscation,  particularly  clarifying  common  definitions  and  existing 
concepts. It also aimed at increasing the rates of freezing and confiscation of the proceeds 
and  instrumentalities  of  crime,  improve  the  management  and  disposal  of  frozen  and 
confiscated  assets  until  the  end  of  judicial  proceedings,  and  at  improving  the  statistical 
data picture on asset recovery.  

In  order  to  achieve  these  specific  objectives,  the  Confiscation  Directive  lays  down 
minimum  rules on the freezing and  confiscation  of criminal  assets across the European 
Union. Building upon Framework Decision 2005/212/JHA223, which allows for standard 
confiscation  measures  to  all  crimes  punishable  by  deprivation  of  liberty  for  more  than 

221 The feedbacks received can be consulted here.  
222  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  to  support  the 
preparation  of  an  Impact  Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p.12-14 
223  Council  Framework  Decision  2005/212/JHA  of  24  February  2005  on  Confiscation  of  Crime-Related 
Proceeds,  Instrumentalities  and  Property,  OJ  L  68,  15.3.2005.  This  Framework  Decision,  after  being 
partially replaced by the Confiscation Directive, only applies in respect of standard confiscation  with the 
exception  of  Denmark,  which  is  not  bound  by  the  Confiscation  Directive  and  for  which  the  other 
provisions of the 2005 Framework Decision apply (notably the provisions on extended confiscation). 

114 

 
                                                           
one year224, the Confiscation Directive requires Member States to enable the confiscation 
of property of equivalent value to the proceeds of a crime (value confiscation), held by a 
third party (third-party confiscation), or property derived from criminal conducts but that 
goes  beyond  the  direct  proceeds  of  the  crime  for  which  the  offender  was  convicted 
(extended confiscation). It also requires Member States to enable confiscation of property 
in cases where a criminal conviction is not possible because the suspect has become ill or 
fled the jurisdiction (non-conviction based confiscation). Such confiscation mechanisms 
are  applicable  to  a  defined  set  of  “eurocrimes”.  It  also  lays  down  rules  on  freezing 
measures, asset management, a set of safeguards, and minimum rules on statistical data 
collection. 

The expected results of the intervention were clarity regarding common definitions, and 
increased  rates  of  freezing  and  confiscation  orders.  The  intervention  also  aimed  at 
improving  practices  on  management  and  disposal,  including  social  reuse,  and  an 
improved statistical picture on asset recovery in the Member States. 

The ARO Council Decision aimed at enabling cross-border cooperation on tracing and 
identification  of  suspected  criminal  assets  and  proceeds  of  crime  through  information 
exchanges between Asset Recovery Offices.  

In order to  achieve these specific objectives, the ARO Council Decision sets  minimum 
rules requiring Member States to set up or designate national Asset Recovery Offices to 
facilitate the identification of proceeds of crime or other crime-related property that may 
become the object of a freezing or confiscation order. It enables Asset Recovery Offices 
to  exchange  information  upon  request  and  spontaneously  (subject  to  data  protection 
provisions)  and  to  share  best  practices.  The  main  conditions  and  time  limits  for  the 
exchange  of  information  between  Asset  Recovery  Offices  are  those  set  in  Framework 
Decision  2006/960/JHA  on  the  exchange  of  information  and  cooperation  between  law 
enforcement authorities (“the Swedish Initiative”).225  

The  expected  results  of  the  intervention  were  increased  coordination  between  Asset 
Recovery Offices and increased cross-border identification of suspected criminal assets.  

224 Article 2(1) Council Framework Decision 2005/212/JHA. 
225  Council  Framework  Decision  2006/960/JHA  of  18  December  2006  on  simplifying  the  exchange  of 
information and intelligence  between law enforcement authorities of the Member  States of  the European 
Union, OJ L 386, 29.12.2006. 

115 

 
                                                           
Figure 1. Joint intervention logic Directive 2014/42/EU and Council Decision 2007/845/JHA, developed in the course of the Evaluation  

116 

 
 
 
2.2 Points of comparison   

To  reconstruct  the  baseline  scenario  and  the  point  of  comparison,  this  Evaluation  relies  on  the 
Impact  Assessment  accompanying  the  proposal  for  the  Confiscation  Directive226.  For  Council 
Decision 2007/845/JHA this Evaluation relies on various other documents as mentioned below, 
as a formal Impact Assessment was not carried out.  

The ARO Council Decision and the Confiscation Directive were adopted to tackle the financial 
dimension of organised crime, which, although having experienced some remarkable evolutions 
since,  already  presented  some  key  characteristics  of  modern  organised  crime  at  the  time  of 
adoption.  The  2007  Europol’s  Organised  Crime  Threat  Assessment227  already  alerted  that 
organised crime groups “displace their criminal activities across regions and countries” and that 
they were characterised by a “business-like behaviour and organisation”.228 The use of legitimate 
business  structures  by  organised  crime  to  facilitate  criminal  activities,  launder  money  and 
reinvest it in the legal economy, was already identified in 2007. While the 2007 EU Organised 
Crime  &  Threat  Assessment  (OCTA)  indicated  that  organised  crime  groups  “tend  to  build  in-
house  money  laundering  capabilities”,  it  also  identified  their  recourse  to  professionals,  for 
instance lawyers, financial advisors or accountants, to launder their profits.229 This trend is likely 
to  have  increased  since  then,  given  the  emergence  of  a  parallel  underground  financial  system, 
according  to  the  2021  European  Union  Serious  and  Organised  Crime  Threat  Assessment 
(SOCTA)230. 

The  intelligence  picture  on  the  modus  operandi  applied  by  criminals  to  hide  their  assets  was 
further  reinforced  in  the  2011  OCTA,  which  alerted  that  besides  established  methods  such  as 
cash  couriers  and  shell  companies,  modern  technology  was  offering  many  new  laundering 
possibilities and new ways to further their criminal interests. Such methods range from smurfing 
–  the  breaking  down  of  large  sums  into  less  detectable  transactions  –  to  the  control  of  cash-
intensive businesses and of companies in the real estate and construction sectors, or investment 
in artworks. The 2011 OCTA already identified emerging trends such as the use of crypto-asset 
service providers (a nascent market at the time) and of banks located in third countries (such as 
the United Arab Emirates and the Dutch Antilles) for money laundering purposes.231  

The  adoption  of  the  EU  legal  framework  also  has  to  be  seen  against  the  background  of 
international instruments. At United Nations level, asset recovery system is regulated by the UN 
Convention  against  Illicit  Traffic  in  Narcotic  Drugs  and  Psychotropic  Substances  of  20 
December  1988,  the  UN  Convention  against  Transitional  Organised  Crime  of  12  December 

226 SWD(2012) 31 final 
227 Europol, OCTA 2007: EU Organised Crime & Threat Assessment.    
228 Ibid., p. 28 
229 Ibid., p. 11 
230  Europol,  European  Union  Serious  and  Organised  Crime  Threat  Assessment  “A  Corrupting  Influence:  The 
infiltration and undermining of Europe’s economy and society by organised crimes” (2021), p. 98 
231 Europol, OCTA 2011: EU Organised Crime Threat Assessment, p. 44 

117 

 
 
                                                           
2000,  and  the  UN  Convention  against  Corruption  of  31  October  2003.  At  European  level,  the 
Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds 
from  Crime  of  8  November  1990  and  the  Convention  on  Laundering,  Search,  Seizure  and 
Confiscation of the Proceeds from Crime and on the Financing of terrorism of 16 May 2005 are 
the  main  references  for  the  EU  legal  framework  on  asset  recovery  and  confiscation.  Besides 
these  instruments,  until  the  2000s  the  international  community  had  not  developed  specific 
initiatives aimed at improving in practice the tracing and confiscation of criminal proceeds. The 
first initiative of this kind was the launch in 2004 of the Camden Asset Recovery Inter-agency 
Network  (CARIN)  network,  gathering  practitioners  with  the  aim  of  facilitating  cooperation  in 
asset recovery across borders. In September 2007, the World Bank and the United Nations Office 
of  Drugs  and  Crime  (UNODC)  launched  the  Stolen  Asset  Recovery  (StAR)  initiative,  a 
partnership aimed at supporting international asset recovery efforts, in particular the recovery of 
assets derived from corruption.  

ARO Council Decision  

The EU and its Member States were not well equipped to effectively address this complex threat 
transcending  national  borders.  The  lack  of  dedicated  tools  was  particularly  acute  in  the  initial 
phase  of  the  asset  recovery  process:  the  identification  of  assets.  Responsibilities  for  tracing 
assets,  in  national  or  cross-border  cases,  would  fall  on  various  agencies  depending  on  the 
Member  State,  including  police,  Financial  Intelligence  Units,  audit  authorities,  anti-corruption 
agencies and tax authorities. An “assessment of the asset recovery regime in the European Union 
highlighted the shortage of skilled financial investigators as one of the principal constraints” for 
identifying  and  ultimately  recovering  criminal  assets.232  At  the  time  of  adoption  of  the  ARO 
Council Decision, only eight Member States (AT, BE, EE, FR, DE, IE, NL and UK) had fully-
fledged  Asset  Recovery  Offices  at  their  disposal.  Such  Offices  differed  widely  in  structure, 
powers and practices. 

Cooperation  between  national  authorities  in  this  field  took  place  mostly  through  CARIN, 
launched in  2014 to  gather asset recovery practitioners with  the aim of facilitating cooperation 
across borders. At the time, CARIN was comprised of Asset  Recovery  Offices but  also  of  law 
enforcement and judicial experts on asset recovery from 40 countries, including 26 EU Member 
States. The objectives of this network, which is base at Europol and it is still operating, are the 
exchange  of  best  practices  and  the  improvement  of  inter-agency  cooperation  and  exchange  of 
information in cross-border matters.  

Confiscation Directive   

Statistical  data  provisions  on  criminal  revenues  and  on  retrieved  criminal  assets  were  far  and 
apart in 2012, with data available on the baseline covering only a few Member States. However, 

232  The  World  Bank  and  UNODC,  Towards  a  Global  Architecture  for  Asset  Recovery,  Stolen  Asset  Recovery 
Initiative, August 2010, p. 27 

118 

 
 
                                                           
existing  data  already  showed  a  gap  between  identified  and  recovered  criminal  assets:  whilst 
profits laundered in Italy alone were estimated at €150 billion in 2011, and at £15 billion in 2006 
in  the  U.K.,  only  €189  million  were  recovered  in  the  U.K.  in  2009,  and  €60m  in  the 
Netherlands233. 

The  Confiscation  Directive  attempted  to  address  this  gap  and  several  obstacles  to  effective 
confiscation, such as  conflicting legal traditions resulting in the lack of a common approach to 
confiscation measures, difficulties in  securing  and maintaining assets,  and a lack of a  coherent 
and  comparable  statistical  system.  It  attempted  to  address  the  following  problems  in  the  EU 
legislative  framework:  (i)  its  incomplete  or  late  transposition,  caused  by  lack  of  clarity  of  EU 
provisions on confiscation, (ii) the existence of diverging national provisions, leading to issues of 
mutual recognition, and (iii) the low utilisation of confiscation in practice, caused by challenges 
in  cross-border  cooperation,  and  lack  of  enforcement  culture  of  financial  investigations  and 
confiscation orders. 

At  the  time  of  adoption,  Member  States’  legislation  on  freezing  and  confiscation  of  criminal 
assets had developed organically and independently thorough the years, leading to a multitude of 
conflicting  terminology  and  confiscation  tools.  This  was  due  to  the  existence  of  several 
legislative instruments,234 which were only partially transposed by the Member States in 2012235. 
This  situation  was  caused  by  the  complexity  of  the  legislative  instruments  to  be  transposed  – 
which  in  turn  led  to  a  complex  legislative  patchwork  of  confiscation  measures  –  and  the 
discretion  provided  to  Member  States  in  their  implementation:  one  example  was  the  notion  of 
extended confiscation of Framework Decision 2005/212/JHA, which required Member States to 
choose between three alternative criteria for extended confiscation, or to adopt two or all three of 
them  cumulatively.  This  overlapping  national  and  EU  legal  framework  led  to  practitioners’ 
confusion regarding asset recovery terminology and definitions, leading in turn to issues of cross 
border cooperation in the recovery of criminal assets in cases involving all existing confiscation 
measures.  

233 Commission Staff Working Paper, Proposal for a Directive of the European Parliament and the Council on the 
freezing and confiscation of proceeds of crime in the European Union, SWD(2012)31 final, annex 2, p. 13 
234  Framework  Decision  2006/783/JHA,  Framework  Decision  2005/212/JHA,  Council  Framework  Decision 
2003/577/JHA, Joint Action 98/699/JHA and Council Framework Decision 2001/500/JHA. 
235 The reports on Framework Decisions 2005/212/JHA, 2003/577/JHA and 2006/783/JHA show that Member States 
have  been  slow  in  transposing  these  legislative  instruments,  and  that  the  relevant  provision  have  been  often 
implemented in an incomplete or incorrect way. In 2012, only Council Decision 2007/845/JHA was implemented in 
a  moderately  satisfactory  way.  Report  from  the  Commission  pursuant  to  Article  6  of  the  Council  Framework 
Decision  of  24  February  2005  on  Confiscation  of  Crime-related  Proceeds,  Instrumentalities  and  Property 
(2005/212/JHA),  COM(2007)  805;  Report  from  the  Commission  based  on  Article  14  of  the  Council  Framework 
Decision  2003/577/JHA  of  22  July  2003  on  the  execution  in  the  European  Union  of  orders  freezing  property  or 
evidence,  COM(2008)  885  final;  Report  from  the  Commission  pursuant  to  Article  22  of  the  Council  Framework 
Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation 
orders, COM(2010) 428; Report from the Commission based on Article 8 of the Council Decision 2007/845/JHA of 
6  December  2007  concerning  cooperation  between  Asset  Recovery  Offices  of  the  Member  States  in  the  field  of 
tracing and identification of proceeds from, or other property related to, crime, COM(2011) 176 of 12 April 2011. 

119 

 
 
                                                           
Furthermore, no provisions existed in 2012 regarding the preservation and management of frozen 
assets,  which  were  fragmentally  addressed  exclusively  by  national  provisions  and  presented 
structural  criticalities  in  terms  of  competence  and  management  expertise.236  As  already 
underlined in the 2012 Impact Assessment, as a result of this shortcoming the difference in value 
between the asset frozen or seized at the beginning of the procedure was substantially different 
compared to the value of the assets recovered at the end of the confiscation procedure.237  

Moreover,  existing  confiscation  powers  were  underutilised,  and  cross-border  requests  were 
hampered  by  indirect  barriers  to  practitioners,  such  as  freezing  requests  being  made  alongside 
multiple  other  cross-border  requests  requiring  practitioners  to  be  familiar  with  many  different 
instruments. Finally, no provisions existed in 2012 regarding the disposal of confiscated assets, 
leading to instances of organised crime groups being able to  recover confiscated property after 
the conclusion of judicial proceedings through intimidation. 

3.  HOW HAS THE SITUATION EVOLVED OVER THE EVALUATION PERIOD? 

This  section  of  the  Evaluation  presents  the  current  state  of  play  of  the  ARO  Council  Decision 
and the Confiscation Directive, particularly how the interventions have been implemented  

3.1 ARO Council Decision 

Institutional set-up 

As  a  result  of  the  adoption  of  the  Council  Decision  2007/845/JHA,  all  Member  States  have 
established at least one Asset Recovery Office. At the same time, the Offices’ legal framework 
leaves a considerable degree of discretion to Member States when it comes to the exact number 
of  Asset  Recovery  Offices  to  establish  in  their  territory  as  well  as  their  legal  nature  and  their 
powers. In this context, 19 Member States have designated one Asset Recovery Office (AT, BE, 
HR,  CY,  CZ,  DK,  EE,  FI,  EL,  HU,  IE,  IT,  LV,  LU,  MT,  PL,  PT,  RO,  SK,  and  SI  having 
designated just a contact point), while seven other Member States designated two (BG, FR, DE, 
LT, NL, ES, SE)238.  

When it comes the status and nature of the Asset Recovery Offices, Member States had different 
approaches  in  implementing  the  Council  Decision.  13  Member  States  decided  to  establish  the 
Offices  within  a  law  enforcement  structure,  while  two  Member  states  established  the  Asset 
Recovery  Offices  as  a  judicial  authority.  In  three  Member  States,  the  Offices  have  a  mixed 
nature and in two Member States they are established as administrative authorities. Furthermore, 
the  8  Member  states  where  two  Asset  Recovery  Offices  exist,  one  is  established  as  a  judicial 

236 Commission Staff Working Paper, Proposal for a Directive of the European Parliament and the Council on the 
freezing and confiscation of proceeds of crime in the European Union, SWD(2012)31 final, p. 6 
237 Ibid., p. 13 
238 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081, pp. 45-46 

120 

 
 
                                                           
authority while the other one is law enforcement. This institutional set up has proven to work in 
the Member States where it was adopted239.   

With regards to the purpose and competences assigned to Asset Recovery Offices, the Council 
Decision  envisages  the  Offices  as  a  mechanism  to  ‘facilitate’  the  tracing  of  criminal  assets 
(Article  1).  While  its  recital  1  indicated  that  “law  enforcement  services  should  have  the 
necessary skills to investigate and analyse financial trails of criminal activity”, the main focus of 
the  ARO  Council  Decision  is  promoting  the  “close  cooperation”  between  the  authorities 
involved  in  the  tracing  of  illicit  proceeds  and  the  “direct  communication  between  those 
authorities” (recital 3).  

Cross border cooperation and information exchange 

The  Council  Decision  sets  minimum  provisions  to  ensure  that  Asset  Recovery  Offices  can 
cooperate  cross-border  with  other  Asset  Recovery  Offices  in  tracing  and  identifying  criminal 
assets  by  sharing  best  practices  and  by  exchanging  information  on  a  request  from  another 
Member  State  or  spontaneously.  Such  exchanges  were  to  be  made  on  the  basis  of  the  Council 
Framework  Decision  2006/960/JHA  on  the  exchange  of  information  and  intelligence  between 
law  enforcement  authorities  (the  so-called  Swedish  Initiative)240,  to  which  the  ARO  Council 
Decision  makes  a  cross-reference.  The  Swedish  Initiative  establishes  templates  for  requesting 
and  providing  information  and  sets  deadlines  for  such  exchange,  of  eight  hours  for  urgent 
requests  and  one  week  for  non-urgent  ones,  when  the  requested  information  or  intelligence  is 
held in a database directly accessible by a law enforcement authority. 

The  exchange  of  best  practices  has  taken  place  not  only  through  the  CARIN  network  (which 
enables  the  exchange  of  good  practices  with  practitioners  of  its  participating  jurisdictions, 
including third countries) but mainly through the informal Asset Recovery Offices Platform, set 
up by the European Commission, which has enabled the sharing of experiences on topics such as 
virtual  currencies,  investigative  tools  or  access  to  information.  The  Platform  has  also  been  the 
forum for carrying out light peer reviews of Asset Recovery Offices aimed at assessing the key 
features of the Offices in order to establish good practices. 98% of stakeholders agreed that the 
exchange of good practices carried out in line with the Council Decision was beneficial for their 
cooperation.241  At  the  same  time,  the  majority  of  Asset  Recovery  Offices  have  expressed  their 
interest in establishing a more regular exchange of good practices.242 

239 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081 p. 47. 
240 Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information 
and  intelligence  between  law  enforcement  authorities  of  the  Member  States  of  the  European  Union,  OJ  L  386, 
29.12.2006, p. 89. 
241 Information gathered in the ARO Platform meeting held in June 2021 
242 Ibid. 

121 

 
 
                                                           
In relation to cooperation, all Member States have granted the minimum powers required by the 
Council  Decision  for  Asset  Recovery  Offices  to  exchange  information  with  each  other.  All 
Offices  are  empowered  to  exchange  information  across  borders,  which  takes  place  to  a  large 
extent through Europol’s Secure Information Exchange Network Application (SIENA) network 
and via CARIN for exchanges with third countries, to which all but eight Asset Recovery Offices 
are directly connected. At the same time, there are differences in the powers and information that 
have been made available to Asset Recovery Offices to cooperate with each other, since these are 
not regulated by the Council Decision. More than two thirds of Asset Recovery Offices (73%) 
have  autonomous  tracing  powers  enabling  them  to  respond  to  requests  from  other  Offices,  the 
rest  (27%)  rely  on  other  authorities  for  the  identification  of  criminal  assets  upon  request  from 
another Member State. In the case of asset tracing in the post-trial phase, these proportions are 
reversed,  with  32%  of  the  Asset  Recovery  Office  empowered  with  post-trial  tracing  capacity, 
while a majority (68%) does not have such powers. Access to information to respond to cross-
border  requests  also  differs  among  Asset  Recovery  Offices:  15%  of  Offices  have  access  to  all 
databases; one third can check police databases or tax/income registers, while 64% and 45% of 
Asset Recovery Offices can access real estate registers and company registers, respectively.243 In 
relation  to  the  deadlines  set  out  in  the  Swedish  Initiative,  less  than  50%  of  Offices  considered 
that  the  deadlines  are  met,  indicating  that  in  almost  half  of  the  cases  responses  take  up  to  two 
weeks non-urgent situations and 12 hours or more in urgent ones.244 

3.2 Confiscation Directive 

Asset  Recovery  and  confiscation  are  the  tools  necessary  to  deprive  criminals  from  their  illicit 
gains. In order to provide with an effective response to the threat posed by serious and organised 
crime, the Confiscation Directive introduced a set of minimum rules to strengthen the legislative 
framework and increase the effectives of the freezing, management and confiscation of criminal 
assets. 

With respect to the previous legal framework, the Confiscation Directive introduced several new 
elements at EU level. Non-conviction based confiscation was introduced in case the accused or 
suspected  person  absconds  or  is  ill,  together  with  extended  confiscation  and  third  party-
confiscation measures. The issue of freezing of properties with a view to subsequent confiscation 
(including cases of urgent freezing) was clarified, alongside key definitions. In this context, the 
safeguards for suspected and accused person were reinforced, and rules on the tracing of assets 
after a final conviction were introduced. The Confiscation Directive further established minimum 
management  obligations  of  frozen  and  confiscated  assets,  together  with  the  obligation  to 
maintain statistical data on freezing and confiscation. 

243 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 
244 Ibid 

122 

 
 
                                                           
As highlighted in the Report “Asset Recovery and  Confiscation, Ensuring that Crime Does not 
Pay”, the Confiscation Directive has been implemented in all Member States with the exception 
of Denmark and the U.K., who opted out from the Directive. 

Definitions 

The Confiscation Directive aimed at clarifying common definitions on freezing and confiscation, 
particularly  regarding  the  concept  of  ‘proceeds  of  crime’  to  include  the  direct  proceeds  from 
criminal activity and all indirect benefits, including subsequent reinvestment or transformation of 
direct  proceeds.  Proceeds  can  thus  include  any  property,  including  that  which  has  been 
transformed  or  converted,  fully  or  in  part,  into  other  property,  and  that  which  has  been 
intermingled  with  property  acquired  from  legitimate  sources,  up  to  assessed  value  of  the 
intermingled  proceeds.  It  can  also  include  income  or  other  benefits  derived  from  proceeds  of 
crime,  or  from  property  into  which  such  proceeds  have  been  transformed,  converted,  or 
intermingled.245 

the  Confiscation  Directive  defines 

Article  2  of 
‘property’, 
‘instrumentalities’, ‘confiscation’, ‘freezing’ and ‘criminal offence’. Even though the definitions 
have  not  been  explicitly  transposed  in  a  number  of  Member  States,  the  concepts  have  been 
embedded in the national legislation of freezing and confiscation of all.246 

‘proceeds’, 

terms 

the 

Scope 

The scope of the Confiscation Directive is defined in Article 3 which lists the offences for which 
the  freezing  and  confiscation  orders  should  be  available.  The  scope  also  extends  to  other 
legislative  instruments  that  foresee  the  availability  of  freezing  and  confiscation  orders  for  the 
offences they regulate with a cross reference to the Confiscation Directive247. While the scope of 
the  Directive  is  limited  to  most  of  the  so-called  ‘eurocrimes’  (with  the  exception  of  firearms 
trafficking),  several  Member  States  have  decided  to  go  beyond  the  minimum  rules  set  by  the 
Confiscation  Directive.  Some  Member  states  have  decided  to  set  minimum  imprisonment 
threshold or  foresee  a specific list  of crimes for  which confiscation measures are available: 18 
Member States have enabled freezing and confiscation orders for all crimes, 2 Member States for 
all crimes sanctioned by an imprisonment of at least 1 year, 4 Member States for all international 
crimes, one Member State applies freezing and confiscation orders for all offences especially in 
cases of life imprisonment or unconditional imprisonment for a serious crime, and one Member 

245 Recital 11 Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing 
and confiscation of instrumentalities and proceeds of crime in the European Union, OJ L 127, 29.4.2014, p. 39. 
246  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and  confiscation: 
Ensuring that crime does not pay, SWD COM/2020/217 final, p. 6  
247 For example, Article 10 of Directive (EU) 2017/1371 on the fight against fraud to the Union's financial interests 
by means of criminal law specifically states that the freezing and confiscation of instrumentalities and proceeds of 
crime should be enabled for the offences criminalised by it.  

123 

 
 
                                                           
State has a specific list of offences for which freezing and confiscation orders may be applied248. 
The majority of Member States have therefore gone beyond the minimum scope requirements of 
the  Confiscation  Directive,  although  in  a  non-uniform  manner,  and  with  a  majority  having 
adopted the all crime approach for standard confiscation measures. 

Freezing 

Article  7(1)  requires  Member  States  to  take  the  necessary  measures  to  enable  the  freezing  of 
property  with  a  view  to  its  subsequent  confiscation.  It  also  provides  for  the  urgent  action  to 
preserve  the  property.  Article  7(2)  requires  the  Member  States  to  enable  the  freezing  of  the 
property of a third party with a view to subsequent confiscation. This is possible in all Member 
States. Furthermore, the freezing of property with a view to its subsequent confiscation has been 
enabled in all Member States, with 12 Member States having granted their prosecution and law 
enforcement  authorities  the  powers  to  take  urgent  action  and  freeze  property  before  judicial 
authorisation.249  

Table 1: Institutional framework in place for ordering freezing and urgent freezing250 

Member 
State 

Type of freezing 

Institutional Framework  

AT 

BE 

BG 

CY 

CZ 

DE 

EE 

EL 

ES 

FI 

Urgent freezing  

  Prosecution service; Police 

Urgent freezing  

  Prosecution service; Investigating judge 

Urgent freezing  

  Court 

Urgent freezing  

  Unit for Combating Money Laundering – MOKAS 

Urgent freezing  

  Police; Financial Analytical Office 

Urgent freezing  

Urgent freezing  

Urgent freezing  

Urgent freezing  

  Police; Prosecution service;  
 
  Prosecution service 

In case of money laundering: Financial Intelligence Unit 

Investigating judge; Investigating officer 
In case of money laundering: Chairman of the authority 

 
 
  Court 

Urgent freezing  

  Officials  with  the  formal  power  of  arrest  (representatives  of  Police;  Prosecution 

service; Customs; Military) 

248  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and  confiscation: 
Ensuring that crime does not pay, SWD COM/2020/217 final, p. 6; European Commission, Directorate-General for 
Migration and Home Affairs, Study on freezing, confiscation and asset recovery – what works, what does not work, 
2021, HOME/2018/ISFP/FW/EVAL/0081, p. 105 
249 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an 
confiscation,  2021, 
initiatives  on 
HOME/2020/ISFP/FW/EVA2/0016, p. 32 
250  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Compliance  assessment  of 
measures of Member States to transpose Directive 2014/42/EU (“Confiscation Directive”) and legal consultancy on 
this Directive, Overall Report Annex III, 2019, HOME/2017/ISFP/FW/LECO/0084. 

Impact  Assessment  on  EU  policy 

recovery 

asset 

and 

124 

 
 
                                                           
Member 
State 

Type of freezing 

Institutional Framework  

FR 

HR 

HU 

IE 

IT 

LT 

LU 

LV 

Urgent freezing  

 

Judicial police officer; Prosecution service  

Urgent freezing  

  Police, Court 

Urgent freezing  

 

Investigating  authority  (i.e.  Police,  Customs  Authority,  Prosecution  service); 
Prosecution service 

Urgent freezing  

  Garda Síochána; Officers of customs and excise; Prosecution service 

Urgent freezing  

  Court; Police 

Urgent freezing  

  Court;  Prosecution  service;  Financial  Crime  Investigation  Service;  Criminal 

Intelligence Unit 

Urgent freezing  

  Officer  of  the  judicial  police,  Investigative  judge;  Investigating  magistrate; 

Prosecution service; Financial Intelligence Unit 

Urgent freezing  

  Person  directing  the  proceedings;  Financial  Intelligence  Union  (in  case  of  money 

MT 

Urgent freezing  

  Court 

laundering)  

NL 

PL 

PT 

RO 

SE 

SI 

SK 

Urgent freezing  

  Police, Prosecution service 

Urgent freezing  

  Prosecution service, Court, Police, other authorised body 

Urgent freezing  

  Police, Court 

Urgent freezing  

  Prosecution service, Court 

Urgent freezing  

  Prosecution service; Police 

Urgent freezing  

Urgent freezing  

  Court 
 
  Police, Prosecution service 

In case of money laundering: Office for Money Laundering Prevention 

Confiscation 

Building  upon  Framework  Decision  2005/212/JHA,  which  set  up  minimum  rules  on  standard 
and value confiscation,251 the Confiscation Directive laid down minimum rules on the following 
confiscation measures: 

  Value confiscation 
  Third party confiscation 
  Extended confiscation 
  Non-conviction based confiscation 

Value confiscation 

251  Standard  confiscation  is  regulated  by  Article  2(1)  of  Framework  Decision  2005/212/JHA.  It  applies  to  all 
offences punishable by deprivation of liberty for more than one year. 

125 

 
 
 
 
                                                           
Value confiscation refers to a type of confiscation measure targeting property of equivalent value 
to the proceeds or instrumentality of a crime.252 The confiscation order is realizable against any 
property of the individual charged.  It is employed most often in  cases where criminals convert 
proceeds of crime into other property to hide its illicit origin and disguise the audit trail. 

Value  confiscation  is  regulated  by  Article  2(1)  of  Framework  Decision  2005/212/JHA  and 
Article 4(1) of  Directive 2014/42/EU.253  It  applies  to  all offences punishable  by deprivation of 
liberty  for  more  than  one  year254  and  to  the  crimes  listed  and  cross-referenced  in  article  3  of 
Directive 2014/42/EU255.  

The rules on value confiscation are in place in  all Member States. Most have gone beyond the 
minimum  rules set  by the  Confiscation Directive, and all enable confiscation  subject  to  a final 
conviction, the confiscation of instrumentalities and proceeds of crime or property the value of 
which corresponds to such instrumentalities and proceeds.256 

Third party confiscation 

Third-party confiscation refers to 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  or  her  by  the  offender.  It  is  regulated  by  Article  6  of  Directive 
2014/42/EU. It applies to the same list of offences to which value confiscation is applicable to, 
listed in Article 3 of Directive 2014/42/EU. 

All Member States have enabled third party confiscation measures. Four Member States rely on 
general  rules  of  confiscation,  targeting  the  illicit  origin  of  the  property  and  enabling  its 
confiscation  irrespective  of  whether  it  belongs  to  the  suspect  or  accused  person  or  to  a  third 
party,  whilst  all  other  Member  States  have  put  in  place  specific  provisions  on  third  party 
confiscation.257 

Extended confiscation 

252 K. Ligeti & M. Simonato, Chasing Criminal Money: Challenges and Perspectives on Asset Recovery in the EU, 
p. 5 
253  Article  4  Directive  2014/42/EU:  “Member  States  shall  take  the  necessary  measures  to  enable  the  confiscation, 
either  in  whole  or  in  part,  of  instrumentalities  and  proceeds  or  property  the  value  of  which  corresponds  to  such 
instrumentalities  or  proceeds,  subject  to  a  final  conviction  for  a  criminal  offence,  which  may  also  result  from 
proceedings in absentia.” 
254  Article  2(1)  Directive  2014/42/EU:  “Each  Member  State  shall  take  the  necessary  measures  to  enable  it  to 
confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation 
of liberty for more than one year, or property the value of which corresponds to such proceeds.” 
255  Directive  (EU)  2017/1371  of  the  European  Parliament  and  of  the  Council  of  5  July  2017  on  the  fight  against 
fraud to the Union's financial interests by means of criminal law, OJ L 198, 28.7.2017, p. 29–41. The PIF Directive 
makes a reference to the Confiscation Directive so that the provisions of the latter apply to the offences harmonised 
by the PIF Directive. 
256  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and  confiscation: 
Ensuring that crime does not pay, SWD COM/2020/217 final, pp. 7-10 
257 Ibid., p. 9 

126 

 
 
 
                                                           
Extended  confiscation  concerns  confiscation  orders  which  go  beyond  the  direct  proceeds  of  a 
crime. The order follows a criminal conviction, targeting property beyond the direct proceeds of 
the  crime  for  which  the  offender  was  convicted,  where  the  property  seized  is  derived  from 
criminal  conduct.  A  direct  link  between  the  property  and  the  offence,  such  as  in  the  case  of 
standard confiscation measures, is not necessary if the court assesses that the offender’s property 
was nevertheless derived for other unlawful conduct.  

Extended confiscation is regulated by Article 5(1). It  requires the Member States to enable the 
confiscation of property belonging to a convicted person when: (i) the crime is liable to give rise 
to economic benefit; and (ii) the circumstances of the case indicate that the property is derived 
from  criminal  conduct.  Member  States  have  implemented  this  provision,  with  some  going 
beyond the minimum rules set by the Confiscation Directive. In this context, discrepancies have 
been identified for what concern the list of crimes and the minimum imprisonment threshold for 
which extended confiscation is allowed in Member States. Whilst extended confiscation has been 
enabled  for  the  list  of  crimes  covered  by  Article  5(1)  of  Directive  2014/42/EU,  14  Member 
States have drawn up specific lists of offences for which extended confiscation is enabled going 
beyond  those  of  the  Confiscation  Directive,  whilst  seven  Member  States  enable  extended 
confiscation for all criminal offences punishable by a prison sentence of between at least three or 
five years. However, the transposing legislation in seven Member States that have gone beyond 
the scope of the Confiscation Directive have included the requirement that the criminal offence 
must be such as to generate a financial gain.  

Non Conviction Based Confiscation 

Non-conviction  based  confiscation  refers  to  a  confiscation  measure  taken  in  the  absence  of  a 
conviction and directed against an asset from illicit origin. The Confiscation covers only cases of 
criminal  non-conviction  based  confiscation,  regulated  by  Article  4(2).258  It  applies  to  the 
offences  listed  in  Article  3  of  Directive  2014/42/EU,  but  only  in  cases  where  a  criminal 
conviction is not possible because the suspect has become ill or fled the jurisdiction.  

The  analysis  carried  out  by  the  Commission  on  non-conviction  based  confiscation  shows  that 
most  Member  States  have  gone  beyond  the  minimum  rules  set  by  the  Confiscation  Directive, 
introducing  wider  reaching  grounds  for  non-conviction  based  confiscation  measures  beyond 
cases  of  illness  and  absconding259.  Whilst  in  nine  Member  States  confiscation  without  a  prior 
conviction  is  enabled  only  in  those  cases,  17  Member  States  have  gone  beyond  the  situations 

258  Article  4(2)  Directive  2014/42/EU:  “Where  confiscation  on  the  basis  of  paragraph  1  is  not  possible,  at  least 
where  such impossibility is the result of illness or absconding of the suspected or accused person, Member States 
shall  take  the  necessary  measures  to  enable  the  confiscation  of  instrumentalities  and  proceeds  in  cases  where 
criminal  proceedings  have  been  initiated  regarding  a  criminal  offence  which  is  liable  to  give  rise,  directly  or 
indirectly,  to  economic  benefit,  and  such  proceedings  could  have  led  to  a  criminal  conviction  if  the  suspected  or 
accused person had been able to stand trial”. 
259 Commission Staff Working Document Analysis of non-conviction based confiscation measures in the European 
Union, SWD(2019)1050, 12 April 2019, p. 6 

127 

 
 
                                                           
foreseen therein. In 10 Member States NCBC is available in cases of the death of the offender, in 
nine Member States in cases where the statute limitations have passed, in five Member States in 
cases of amnesty, and in four Member States where the defendant lacks legal capacity (e.g. is a 
minor or of unsound mind). Other cases where NCBC is available in the Member States include 
where  a  conviction  is  not  possible  for  objective  reasons  such  as  where  the  identity  of  the 
perpetrator of a crime cannot be ascertained (three Member States), in cases of immunity from 
prosecution (two Member States), when the conviction  was waived by the court (two Member 
States),  in  cases  involving  victims’  settlements  (two  Member  States),  where  the  offender  is 
outside the court’s jurisdiction (two Member States), where the property belongs to an individual 
already  convicted  of  an  offence  from  which  the  property  originated,  or  in  cases  where  the 
property is of intrinsic illicit nature (such as bribes, or drugs, covered by two Member States).260 

Management of frozen and confiscated property  

Article  10  of  Directive  2014/42/EU  requires  that  all  Member  States  ensure  the  “adequate 
management”  of  property  that  is  frozen  with  a  view  to  subsequent  confiscation.  Whilst  all 
Member  States  have  adopted  provisions  to  ensure  the  management  of  frozen  and  confiscated 
property, the Confiscation Directive leaves a wide degree of discretion to the Member States in 
the setup of management structures. In assessing the meaning of “adequate management”  from 
the  point  of  view  of  practitioners  of  asset  recovery,  consultation  held  during  the  Contact 
Committee  Meeting  held  on  1-2  June  2021  and  in  the  course  of  the  study  on  freezing, 
confiscation and  asset recovery  –  what  works,  what  does not  work,261 gathered  information  on 
the  factors  necessary  for  effective  management,  which  could  define  its  “adequate”  standard. 
Stakeholders from Asset Recovery Offices, law enforcement, prosecution and public authorities 
indicated  that  adequate  management  of  assets  consists  of  having  a  centralised  office  which  is 
specialised in asset management (Asset Management Offices) and is allocated with appropriate 
(human,  financial  and  technical)  resources.  These  Offices  should  be  able  to  exchange 
information in cross-border cases and help with the estimation of the value of an asset and with 
interlocutory  sales.  In  the  absence  of  Asset  Management  Offices,  contact  points  should  be  in 
place to provide information about the management of assets in the Member State in question. 

Even  though  the  establishment  of  Asset  Management  Offices  is  considered  by  stakeholders  as 
key to ensure the “adequate management” of property, the Confiscation Directive does not oblige 
Member States  to  set  up national  centralised offices for  asset management.  Pursuant  to  Article 
10(1) of Directive 2014/42/EU, Member States ‘shall take the necessary measures, for example 
by  establishing  centralised  offices,  a  set  of  specialised  offices  or  equivalent  mechanisms,  to 
ensure  the  adequate  management  of  property  frozen  with  a  view  to  possible  subsequent 

Impact  Assessment  on  EU  policy 

260 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
confiscation,  2021, 
initiatives  on 
an 
HOME/2020/ISFP/FW/EVA2/0016, pp. 81-86 
261 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081.  

recovery 

asset 

and 

128 

 
 
                                                           
confiscation’262. Nevertheless, 16 Member States have set up, or are in the process of setting up, 
Asset  Management  Offices  to  ensure  the  specialised  management  of  frozen  and  confiscated 
property  in  order  to  preserve  its  economic  value.263  Other  Member  States  have  adopted  a 
decentralised  system  of  management,  entailing  a  multitude  of  often  non-specialised  authorities 
and actors (such as prosecution services, enforcement authorities, state agencies etc.) involved in 
the management process. As Article 10 leaves a wide scope for discretion in its implementation, 
the function and  competences of the Offices also greatly vary among the Member States. This 
leads  to  a  fragmented  management  picture:  even  where  Asset  Management  Offices  have  been 
established, their competencies are not aligned, with some empowered to manage frozen assets 
only,  whereas  others  are  also  competent  with  the  management  of  confiscated  assets  and 
responsible for the effective disposal of confiscated property.264 Moreover, half of the established 
Management Offices in the Member states (seven) are also identified as Asset Recovery Offices. 
The  management  picture  in  the  Member  States  is  therefore  fragmented,  with  a  multitude  of 
actors with greatly varying degrees of competence and specialised expertise responsible for the 
management phase of asset recovery.  

transposing 

this  very  generally 

Article 10(2) obliges the Member States to ensure the sale or transfer of frozen or seized property 
where  necessary,  the  so-called  ‘interlocutory  sales’.  Whilst  nearly  all  Member  States  have 
adopted  measures 
formulated  obligation,  substantial 
discrepancies remain when it comes to the conditions for authorizing the sale of a frozen asset. 
The main pre-requisite for authorizing an interlocutory sale in the Member States is whether the 
asset  if  perishable  or  it  could  rapidly  depreciate,  if  the  storage  or  maintenance  costs  are 
disproportionate, or if the asset is easily replaceable. In some Member States, there are additional 
conditions for proceeding with an interlocutory sale such as the value of the asset or if the asset 
is no longer useful for the investigation. Furthermore, in some Member States the suspect may 
also  provide  a  financial  guarantee  to  avoid  the  asset  to  be  sold.265  In  this  context,  several 
shortcomings have been identified in the application of interlocutory sales by Member States, as 
this measure does not seem to be used in practice. The differences in the implementation and use 
of this measures have also a direct impact on cross border cooperation when the asset is located 
in a different Member state that the one where the investigation is primarily carried. This regards 
for  example  the  cost  of  storage  o  maintenance  that  may  be  higher  in  the  Member  State  who 
should actually take care of the management thus making him more reluctant to cooperate.  

Impact  Assessment  on  EU  policy 

262  Recital  32  of  Directive  2014/42/EU  of  the  European  Parliament  and  of  the  Council  of  3  April  2014  on  the 
freezing and confiscation of instrumentalities and proceeds of crime in the European Union, OJ L 127, 29.4.2014, p. 
39. See also Art. 10(1) of the Directive. 
263 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an 
confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p. 100. 
 264  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Study  on  freezing,  confiscation 
and asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081, pp. 89-95. 
265  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and  confiscation: 
Ensuring that crime does not pay, SWD COM/2020/217 final, p/ 12 

initiatives  on  asset 

recovery  and 

129 

 
 
                                                           
Social reuse 

Article  10(3)  of  the  Confiscation  Directive  requires  Member  States  to  consider  reusing 
confiscated property for the public interest or social purposes. Despite the non-binding nature of 
Article 10(3), specific legislation on the use of confiscated property for public interest or social 
purposes exists in 19 Member States.266  

Statistics 

The  Confiscation  Directive  foresees  in  Article  11  a  specific  obligation  on  Member  States  to 
compile and send to the Commission statistical data on the number of freezing and confiscation 
orders executed, as well as the estimated value of property frozen and of property recovered at 
the time of confiscation. In addition to these minimum requirements, Member States shall send 
to the Commission cross-border statistical data on the number or requests for freezing orders to 
be  executed  in  another  Member  State,  the  number  of  requests  for  confiscation  orders  to  be 
executed  in  another  Member  State,  and  the  value  or  estimated  value  of  the  property  recovered 
following execution in another Member State, only if available at a central level in the Member 
State concerned.  

Whilst  internal  statistics  on  freezing  and  confiscation  orders  and  on  the  value  of  recovered 
property are always to be provided, the Confiscation Directive does not impose an obligation to 
collect  cross-border  data,  but  only  to  share  it  with  the  Commission  if  it  is  available.  Data 
collection  in  several  Member  State  is  however  not  centralised,  with  statistical  data  being 
collected by multiple, often decentralised, organisations. These organisations do not for the great 
majority follow a harmonised approach to data collection with the same indicators, resulting in 
non-comparable  data  both  in  the  same  and  between  Member  States.267  Statistical  data  on  asset 
recovery is therefore considerably fragmented. 

4.  EVALUATION FINDINGS 

4.1 To what extent was the intervention successful and why? 

For  the  purposes  of  this  Evaluation,  this  section  will  assess  the  extent  the  intervention  was 
successful, and why, through the analysis of the effectiveness, efficiency and coherence criteria 
for both the ARO Council Decision and the Confiscation Directive.  

Effectiveness 

Council Decision 2007/845/JHA  

Evaluation question: What have been the (quantitative and qualitative) results of Council 

266 Libera, The Social Re-use of Confiscated Assets in Europe, a First Mapping, November 2021, p. 6 
267 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081, p. 14. 

130 

 
 
 
                                                           
Decision 2007/845/JHA? 

The  specific  objectives  of  the  ARO  Council  Decision  relate  to  increasing  cross-border  tracing 
and  cooperation  in  the  identification  of  suspected  criminal  assets.  The  Council  Decision  thus 
established Asset Recovery Offices to achieve this objective, entrusting them with exchange of 
information  and  best  practices.  Between  2013  and  2021,  data  gathered  though  Europol  shows 
that exchanges between the Offices have increased from 1894 in 2013 to 9246 in 2021.268 This 
represents a five-fold increase, reflecting the Council Decision has been effective in increasing 
cooperation  among  Asset  Recovery  Offices  and  therefore  a  rising  effectiveness  in  information 
exchange  and  cooperation.  These  figures  reflect  the  increasing  cooperation  among  Asset 
Recovery Offices evidence how, whilst the Council Decision has been effective in increasing the 
volume of information exchanges through the creation and set up of Asset Recovery Offices,  it 
has not been equally effective in ensuring the exchange of good quality information that would 
be able to lead to an equivalent increase in tracing and subsequent new cases. 

When Asset Recovery Offices were consulted on the effectiveness of the ARO Council Decision, 
stakeholders agreed that the establishment of Asset Recovery Offices contributed to foster cross-
border tracing and identification of assets (51% ‘to a great extent,’ 49% ‘to a reasonable extent’). 
Half  of  consulted  Asset  Recovery  Offices  agreed  ‘to  a  great  extent’  that the  obligations  of  the 
ARO  Council  Decision  contributed  to  fostering  communication  between  Asset  Recovery 
Offices,  whilst  47%  believed  they  only  contributed  ‘to  a  reasonable  extent’  and  3%  ‘neither 
contributed nor impeded.’269 The greater factor that contributed to achieving these objectives was 
access to the SIENA channel and direct cross-border exchanges through the platform, as well as 
regular  meetings  and  personal  contacts  and  the  standardized  exchanges  of  information  and 
intelligence  enabled  by  the  use  of  the  common  form  for  information  exchange  provided  by 
Framework Decision 2006/960 form).270 56% of stakeholders agreed ‘to a reasonable extent’ that 
the  obligations  of  Council  Decision  2007/845/JHA  contributed  to  facilitating  the  exchange  of 
good practices between Asset Recovery Offices, whilst 18% believed they only contributed ‘to 
little extent’.271 

However,  as  reflected  in  the  number  of  cases  opened  following  information  exchanges,  while 
Asset  Recovery Offices  have been established in  all Member States, they have  reported of not 
always  having  the  resources  to  effectively  carry  out  their  tasks.272  Only  one  in  ten  Offices  are 

Impact  Assessment  on  EU  policy 

268 Europol, information gathered through a bilateral interview on 25 January 2022. 
269 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 
270 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an 
confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p. 45 
271 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021.  
272 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081, pp. 54-59 

initiatives  on  asset 

recovery  and 

131 

 
 
 
                                                           
fully satisfied with the human resources available, with 42% of Asset Recovery Offices clearly 
indicating a lack of staff to fulfil their duties273.  

Table 2: Number of staff per Asset Recovery Office274 

Member State  Number of staff 

Member State 

Number of staff 

AT 

BE 

BG 

HR 

CY 

CZ 

DK 

EE 

FI 

 

 

 

 

 

 

 

 

 

 

Criminal Intelligence Service Austria: 
7 

Central  Office 
Confiscation: 37 

for  Seizure  and 

Commission  for  Anti-Corruption  and 
Illegal Assets Forfeiture: 482275 

cassation 

Supreme 
prosecutor`s 
office,  International  legal  assistance 
department: 
information 
no 
available 

Criminal police directorate - National 
police  for  suppression  of  corruption 
and  organised  crime  -  Economic 
crime and corruption department: 4 

Unit 
Laundering: 6 

for 

Combating  Money 

National  Organised  Crime  Agency:  
no information available 

Prosecutor 

State 
Serious 
Economic  and  International  Crime: 
no information available 

for 

Asset  Recovery  Bureau  of  the  Police 
and Border Guard Board: 16 

National  Bureau  of 
within the National Police: 5 

Investigation 

IT 

LV 

LT 

LU 

MT 

NL 

PL 

PT 

RO 

 

 

 

 

 

Asset  Recovery  Office  within  the 
Central Criminal Police Directorate at 
the Ministry of Interior: 2 

2nd  Unit  (ARO  and  Information 
Analysis  Unit),  Criminal  Intelligence 
Department,  Central  Criminal  Police 
Department,  State  Police  of  Latvia: 
12 

Lithuanian Criminal Police Bureau: 4 

Prosecutor  General's  Office  of  the 
Republic  of  Lithuania  -  Department 
of Criminal Prosecution: 1 

Office  of 
District Court Luxembourg: 1 

the  State  Prosecutor  - 

 

Asset Recovery Bureau: 9 

 

 

 

 

 

Functional Prosecution Office: 6 

International  Legal  Help  Centre  of 
the  National  Police, 
the  Hague 
Regional Unit: 3 

Asset  Recovery  Department  of  the 
National  Police  Headquarters:  no 
information available 

Asset  Recovery  Office,  Criminal 
Police: no information available 

National Agency for the Management 
of Seized Assets: 35 

initiatives  on  asset 

Impact  Assessment  on  EU  policy 

273 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
confiscation,  2021, 
an 
HOME/2020/ISFP/FW/EVA2/0016, p. 33  
274 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset  recovery  –  what  works,  what  does  not  work,  2021,  HOME/2018/ISFP/FW/EVAL/0081  Country  Chapters. 
Data contained in this table might not represent the latest datasets. The data were supplied by the respective AROs, 
representing the latest datasets on record.  
275  This  refers  to  the  total  capacity  of  the  Commission,  which  holds  responsibilities  beyond  those  of  an  Asset 
Recovery Office.  

recovery  and 

132 

 
 
                                                           
Member State  Number of staff 

Member State 

Number of staff 

FR 

DE 

EL 

HU 

IE 

 

 

 

 

 

 

Platform  for 
Criminal Assets: 30 

the  Identification  of 

the  Management  and 
Agency  for 
Recovery  of  Seized  and  Confiscated 
Assets: 37 

Federal Criminal Police: 25 

Federal Office of Justice: 1 

Financial  and  Economic  Crime  Unit 
within the Ministry of Finance: 5 

Asset  Recovery  Office,  within  the 
National  Investigation  Office  of  the 
National Police: 72 

SK 

SI 

ES 

SE 

 

Criminal Assets Bureau: 91 

 

 

 

 

 

 

Presidium  of 
the  Police  Force, 
National  Crime  Agency,  National 
Unit  of  Financial  Police,  Property 
Check-Up Department: 10 

Expert Information Centre within the 
the  Supreme  State 
Office 
Prosecutor’s  Office  General  of  the 
Republic of Slovenia: 1 

of 

Office  of  Asset  Recovery  and 
Management: 26 

Intelligence Centre against  Terrorism 
and Organised Crime: 5 

Financial  Investigation  Unit  of  the 
National  Operations  Department 
within the Swedish Police: 8 

Swedish  Economic  Crime  Authority: 
2 

Moreover,  whilst  the  ARO  Council  Decision  aimed  at  increasing  the  rates  of  cross  border 
identification  of  suspected  criminal  assets,  it  does  not  specify  the  powers  available  to  Asset 
Recovery Offices to do so: lack of basic powers such as the capacity to trace assets for almost 
one  third  of  Offices  (almost  two  thirds  in  the  post-trial  phase)  or  to  ensure  rapid  freezing  in 
urgent  cases  (only  one  fourth  of  the  Offices  have  the  competence  to  issue  urgent  freezing 
orders276)  clearly  affects  their  capacity  to  swiftly  trace  assets  in  a  cross-border  context.  This  is 
also the case in relation to access to information. The fact that 85% of Asset Recovery Offices do 
not have access to all relevant databases significantly impacts their capacity to swiftly respond to 
cross-border requests, with delays of one week in almost half of the cases and of four hours or 
more  in  urgent  situations  (i.e.  a  100%  and  50%  time-delay  in  relation  to  the  1  week/8  hours 
deadlines).277 While these aspects are not regulated in the ARO Council Decision, it is clear that 
the absence of provisions in  these areas negatively affects  the effectiveness  of Asset  Recovery 
Offices and, more broadly, cross-border cooperation in asset tracing. 

This  is  also  the  case  for  areas  relating  to  the  organisation  of  tasks  at  national  level  but  which 
ultimately have an effect on the identification of criminal assets across the EU. The absence of 
EU-wide  rules  on  the  launch  of  financial  investigations  result  in  an  uneven  picture  across 

Impact  Assessment  on  EU  policy 

276 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
confiscation,  2021, 
an 
HOME/2020/ISFP/FW/EVA2/0016, p. 25 
277 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081 , pp. 58-59 

initiatives  on  asset 

recovery  and 

133 

 
 
 
 
 
                                                           
Member States, with eight Member States where there is no requirement to automatically carry 
out parallel financial investigations, and another eight where this automatism is limited to certain 
crimes.278  72%  of  respondents  to  the  public  consultation  and  the  majority  of  Asset  Recovery 
Offices  confirmed  the  results  of  previous  studies  that  the  failure  to  systematically  launch 
financial investigations is one of the main reasons behind the low rates of identified assets.279 If 
financial  investigations  are  not  carried  out  in  a  systematic  manner,  the  chances  that  assets  in 
other  Member  States  remain  untraced  are  significantly  higher,  and  the  opportunities  for  cross-
border cooperation are considerably reduced. 

Similarly,  the  absence  of  rules  at  EU  level  on  the  role  of  Asset  Recovery  Offices  in  national 
settings have led to significant differences in Member States, with one fourth of Asset Recovery 
Offices not acting as asset recovery focal points, 40% of them not being able to provide training 
to  other  authorities  and  60%  not  collecting  statistics.280  This  considerable  discrepancy  in 
Member States approaches results in a diverging level of effectiveness of Member States’ asset 
recovery  systems.  This  in  turn  creates  gaps  across  the  EU,  with  the  risk  that  criminals  target 
those  Member  States  where  the  assets  are  less  likely  to  be  identified,  and  results  in  missed 
opportunities for cross-border cooperation.    

Public consultation: Most respondents agreed that it was ‘very important’ for i) Member States 
to  be able to trace illicit proceeds and other property which may become liable to  confiscation 
(82%) and ii) Asset Recovery Offices to communicate, exchange information and cooperate with 
each  other  (80%).  Overall,  respondents  considered  that  Asset  Recovery  Offices  within  their 
Member  States  were  effective  in  i)  tracing  criminal  proceeds  and  other  property  which  may 
become liable to confiscation (20% considering it to be ‘highly effective’ and 30% considering it 
‘effective’),  and  ii)  communicating,  exchanging  and  cooperating  with  each  other  (with  32% 
respondents considering this to be ‘effective’ and 26% either ‘highly effective’ or ‘very highly 
effective’). 

In  conclusion,  the  ARO  Council  Decision  was  effective  in  increasing  the  rates  of  cross-border 
information  exchanges  and tracing of suspected  criminal  assets. Nevertheless, it did  so leaving 
many  shortcomings,  including  in  particular  in  terms  of  resources  available  to  Asset  Recovery 
Offices, lack of powers to trace assets and in ensuring rapid freezing in urgent cases as well as 
the  absence  of  a  systematic  launch  of  financial  investigations.  These  shortcoming  led  to  the 

Impact  Assessment  on  EU  policy 

278 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an 
confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016;  Report  from  the  Commission  to  the  European  Parliament  and  the  Council, 
Asset recovery and confiscation: Ensuring that crime does not pay, SWD COM/2020/217 final 
279 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021  
280 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081, p. 30  

initiatives  on  asset 

recovery  and 

134 

 
 
 
                                                           
increase of information exchanges failing to match to an equivalent increase in tracing cases. On 
effectiveness, the intervention was relatively successful, with potential for improvement. 

Directive 2014/42/EU 

Evaluation question: What have been the (quantitative and qualitative) effects of Directive 
2014/42/EU? 

On the Confiscation Directive’s goal to approximate legislation on freezing and confiscation 
and  clarifying  existing  concepts,  79%  of  stakeholders  (Asset  Recovery  Offices,  law 
enforcement, prosecution, and public authorities) agreed that the Confiscation Directive has been 
greatly  or  reasonably  effective  in  approximating  legislation  on  freezing  and  confiscation,  and 
clarifying  common  definitions  and  existing  concepts,  with  minority  views  considering  the 
Confiscation Directive neither effective nor ineffective in these areas.281 Although the definitions 
provided  by  Article  2  of  the  Confiscation  Directive,  defining  the  terms  ‘proceeds’,  ‘property’, 
‘instrumentalities’,  ‘confiscation’,  ‘freezing’  and  ‘criminal  offence’  have  not  been  explicitly 
transposed  in  a  number  of  Member  States,  the  concepts  have  been  embedded  in  the  national 
legislation  of  freezing  and  confiscation  of  all.  The  concepts  appears  therefore  to  have  been 
sufficiently clarified, addressing this specific challenge regarding conflicting definitions and lack 
of clarity on the meaning of terms arising from different national systems which was identified in 
2012282. 

On  freezing  and  confiscation,  63%  of  stakeholders  (Asset  Recovery  Offices,  law  enforcement, 
prosecution and public authorities) believed the Confiscation Directive to have been effective ‘to 
a  reasonable  extent’  in  increasing  the  freezing  and  confiscation  rates  of  the  proceeds  and 
instrumentalities  of  crime,  with  minority  views  considering  the  Confiscation  Directive  to  have 
contributed  only  to  little  extent  in  this  area283.  When  assessing  the  effectiveness  of  the 
Confiscation Directive in increasing the rates of freezing and confiscation of criminal assets, the 
lack of widespread and reliable statistical data on asset recovery in 2012 presents a challenge in 
establishing the effectiveness of the new system, as no EU-wide data existed at the time on the 
number  of  freezing  and  confiscation  orders,  or  the  value  of  retrieved  property284.  Trends  can 
however  be  observed  on  the  basis  of  the  statistics  collected  on  the  basis  of  the  obligations  of 
Article 11 of the Confiscation Directive: between 2017 and 2019, the number of freezing orders 
executed  within  EU  Member  States  was  estimated  to  be  123 432  in  2017,  with  the  number 
increasing to 166 859 orders in 2019, whilst confiscation orders are estimated to have increased 

281 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 
282  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and  confiscation: 
Ensuring that crime does not pay, SWD COM/2020/217 final, p. 6  
283 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 
284 Commission Staff Working Paper, Proposal for a Directive of the European Parliament and the Council on the 
freezing and confiscation of proceeds of crime in the European Union, SWD(2012)31 final, p. 6 

135 

 
 
 
 
                                                           
from 58 109 in 2017 to 107 236 in 2019. The value of frozen property is similarly estimated to 
have increased from EUR 2.6 billion to EUR 2.9 billion between 2017 and 2019.285 

Figure  2-3.  Estimated  total  number  of  freezing  orders  executed  –  EU-27,  2017  –  2019, 
national and cross-border requests286. 

Figure 4-5. Estimated total number of confiscation orders executed in EU- 27 (2017-2019), 
national and cross-border requests287.  

Whilst  a  positive  trend  showing  a  steady  growth  in  freezing  and  confiscation  orders  from  one 
year to  the next can be identified, current  data should  be assessed in  the context  of the overall 
objective to tackle organised crime’s profits. Out of EUR 139 billion estimated yearly criminal 
profits,  288 only EUR 2,4 billion are being frozen annually, whereas only about EUR 1,2 billion 

285 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an 
confiscation,  2021, 
Impact  Assessment  on  EU  policy 
HOME/2020/ISFP/FW/EVA2/0016, pp. 67-69 
286 Ibid. 
287 Ibid. 
288  European  Commission,  Directorate-General  for  Migration  and  Home  Affairs,  Mapping  the  risk  of  serious  and 
organised  crime  infiltrating  legitimate  businesses:  final  report,  Disley,  E.(editor),  Blondes,  E.(editor),  Hulme, 
S.(editor), Publications Office, 2021, p. 10 

initiatives  on  asset 

recovery  and 

136 

 
 
 
 
 
                                                           
are finally confiscated each year at EU level.289 This data evidences that, despite the increase in 
freezing and confiscation rates, the percentage of criminal profits addressed by the intervention 
remains  minimal,  with  only  2%  of  identified  criminal  profits,  which  already  amount  to  a 
conservative estimate, being frozen and 1% confiscated.  

When  consulted  as  to  what  elements  of  the  Confiscation  Directive  contributed  to  increasing 
freezing  and  confiscation  rates,  the  majority  of  stakeholders  who  provided  input  agreed  that 
extended confiscation and third-party confiscation had the biggest effect; interlocutory sales and 
non-conviction-based confiscation were also mentioned,290 even though they are not sufficiently 
widespread in the Member States.291 When consulted on whether the obligations on freezing and 
confiscation of the Confiscation Directive are sufficient to achieve good results, and to specify 
what  did  not  work,  stakeholders  (Asset  Recovery  Offices,  law  enforcement,  prosecution  and 
public authorities) reported on the persistent challenges regarding the lack of Asset Management 
Offices  in  all  Member  States;  difficult  cross-border  communication  –  particularly  during  the 
management asset recovery phase; non-conviction based confiscation measures not covering the 
death of the accused, recognition of convictions from proceedings in absentia; lack of ambition 
of  the  Confiscation  Directive  in  not  going  beyond  the  minimum  requirements  of  existing 
international conventions; lack of consistent training; issues related to the effective exchange of 
cross-border information in the tracing, freezing and execution phases of confiscation orders.292 

The  Confiscation  Directive  was  thus  moderately  effective  in  achieving  its  objective  increasing 
the rates of freezing and confiscation of proceeds and instrumentalities of crime: whilst a positive 
trend  can  be  detected,  particularly  thanks  to  the  positive  impacts  of  urgent  freezing  measures, 
and of new and stronger confiscation measures introduced by the Confiscation Directive such as 
third party, extended, and non-conviction  based  confiscation, the overall  percentages of profits 
that  remain  in  the  hands  of  criminal  organisations  (99%)  are  still  too  high  to  assess  the  full 
effectiveness of the Confiscation Directive. 

On  the  Confiscation  Directive’s  objective  of  improving  management  and  disposal  of  frozen 
and  confiscated  assets,  the  lack  of  widespread  and  reliable  statistical  data  on  asset  recovery  in 
2012  also  presents  a  challenge  in  assessing  the  effectiveness  of  the  new  system.  Nevertheless, 
52%  of  stakeholders  (Asset  Recovery  Offices,  law  enforcement,  prosecution  and  public 
authorities)  consulted  believe  the  Confiscation  Directive  contributed  in  different  degrees  to 
improving  the  management  practices  of  frozen  and  confiscated  property,  with  the  other  half 
considering that it had not contributed to improvements in the management of assets, or had done 
so in a limited way. On social reuse, only 38% of stakeholders believed ‘to a reasonable extent’ 

289  Europol,  “Does  Crime  still  pay?  Criminal  Asset  Recovery  in  the  EU,  Survey  of  Statistical  information  2010-
2014.” Europol Criminal Assets Bureau, (2016). p.4. 
290 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 
291 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081, p. 106  
292 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 

137 

 
 
                                                           
that  the  Confiscation  Directive  has  been  effective  in  fostering  the  social  reuse  of  recovered 
property, with 29% believing it had been ‘neither effective nor ineffective’, and 29% believing it 
had  little  to  no  impact  to  it.293  These  opposite  views  are  likely  to  be  a  reflection  of  the  great 
degree of discretion that the Confiscation Directive left to Member States on how to achieve the 
obligation  of  ensuring  ‘adequate  management’,  and  on  which  disposal  methods  they  chose  to 
adopt.  Answers  to  the  assessment  of  the  effectiveness  of  the  Confiscation  Directive’s 
managements and disposal objectives thus vary depending to the national set up and experience 
of the consulted stakeholders, reflecting the fragmented picture on management and social reuse 
in the Member States.  

As  outlined  in  the  state  of  play  section,  when  consulted  on  what  contributed  to  adequate 
management,  the  majority  of  stockholders  who  provided  input  (seven)  agreed  that  the 
establishment of an Asset Management Office with appropriate (human, financial and technical) 
resources had the biggest impact towards good management, which is effective only when it is 
cost efficient and it ensures that property in under the responsibility of management authorities 
does  dot  depreciate  whilst  awaiting  the  end  of  judicial  proceedings.294  As  management 
responsibilities  are  allocated  to  decentralised  authorities  in  half  of  the  Member  States,  this 
fragmentation is a shortcoming hampering the effectiveness  of the system.295 This  finding was 
confirmed  through  experts’  consultation,  who  raised  also  issues  relative  to  low  use  of 
interlocutory  sales,  issues  related  to  the  legal  personality  of  Asset  Management  Offices,  or  to 
raising  policy  makers’  attention  to  the  need  to  take  advanced  management  measures,  and  the 
need  for  more  specific  and  more  detailed  management  provisions  among  the  elements 
its 
challenging 
shortcomings.296  When  identifying  which  elements  of  the  Confiscation  Directive  did  not 
contribute to its effectiveness regarding management and disposal, stakeholders (Asset Recovery 
Offices,  law  enforcement,  prosecution  and  public  authorities)  equally  confirmed  the  results  of 
existing  studies,  mentioning  the  lack  of  provisions  of  the  existing  instruments,  which  does  not 
cover  elements  such  as  resources  to  ensure  adequate  management,  challenges  in  exchange  of 
information between existing Asset Management Offices, the lack of a clear Asset Management 
Office  point  of  contact  for  questions  about  management  of  frozen  assets,  and  the  lack  of 
obligation towards the establishment of an Asset Management Office.297 

the  current  management  system,  highlighting 

the  effectiveness  of 

293 Ibid.  
294 Ibid. 
295 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081, pp. 90-91 
296 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an 
confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, p. 78. 
297 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081; Information gathered 
in the ARO Platform and Confiscation Directive meetings held in June/July 2021 

Impact  Assessment  on  EU  policy 

initiatives  on  asset 

recovery  and 

138 

 
 
                                                           
The  Confiscation  Directive  was  therefore  slightly  effective  in  improving  management  and 
disposal of frozen and confiscated assets. Whilst on one side it introduced minimum obligations 
in  absence  of  previous  regulations,  thus  leading  to  improvements  in  the  management  and 
disposal  phases, the resulting fragmented picture on management and disposal  standards in  the 
Member States does not achieve the overall goal of effective asset recovery in all Member States.  

The Confiscation Directive was finally moderately effective in improving the statistical picture 
on asset recovery. Whilst on one side the obligations of Article 11 did support the development 
of  a  more  complete  statistical  picture  on  asset  recovery  than  the  one  available  on  2012,  the 
previously  quoted  data  and  the  lack  of  common  indicators  and  comparability  of  data  show 
moderate as opposed to full effectiveness regarding this objective. 

Public  consultation:  respondents  were  asked  to  assess  the  effectiveness  of  the  Confiscation 
Directive in achieving specific outcomes. Their responses suggest that the Confiscation Directive 
was relatively effective in i) fighting serious and organised crime, with 48% believing it between 
highly and effective; ii) making serious and organised crime less attractive, with 58% believing it 
between  highly  and  slightly  effective;  iii)  fostering  a  culture  of  asset  recovery,  with  56% 
believing  it  between  highly  and  effective;  iv)  leading  to  increased  rates  of  freezing  and 
confiscation  of  criminal  proceeds  and  instrumentalities,  with  46%  believing  it  between  highly 
and  effective;  and  v)  leading  to  effective  management  practices  of  frozen  and  confiscated 
property,  with  34%  believing  it  between  highly  and  effective.  The  results  also  show  that 
contributors felt the Confiscation Directive was relatively less effective in i) providing adequate 
safeguards to affected parties, with 40% believing it between highly and effective; ii) fostering 
the social reuse of recovered property, with 28% believing it between highly and effective; and 
iii) gathering sufficient and adequate statistics on freezing, confiscation, value of property frozen 
and recovered, with 36% believing it between highly and effective. 

In  conclusion,  the  Confiscation  Directive  has  been  moderately  successful  regarding  the 
effectiveness  criterion. Whilst on one side it has  led to  some approximation of the concepts  of 
freezing and confiscation and to an increase in freezing and confiscation rates from the baseline, 
the  overall  results  remain  too  low  to  significantly  impact  organised  crime’s  profits,  with  no 
statistical  evidence  showing  that  criminal  proceeds  are  recovered  to  an  extent  that  would 
undermine  the  activities  of  organised  crime  groups.  This  shortcoming  can  be  linked  to  a  large 
extent to the limited scope of confiscation measures under the Confiscation Directive, as shown 
by the fact that Member States’ legislation shows significant differences in terms of scope of the 
different  instruments  affecting  the  development  of  a  more  uniform  understanding  and 
implementation  throughout  the  EU,  going  beyond  the  minimum  obligations  set  out  in  the 
Confiscation Directive. Asset management has been improved but the results are not satisfactory. 
Inefficiencies in asset management due to the lack of agreed management principles and tools, 
insufficient expertise or cooperation between the relevant actors undermine the effectiveness of 

139 

 
 
 
 
asset recovery measures as a whole and need to be addressed. Finally, the existing obligations in 
terms of data collection do not allow for a complete and meaningful picture of the results of asset 
recovery efforts in Member States. 

Efficiency 

Council Decision 2007/845/JHA  

Evaluation question: “To what extent were the effects of Council Decision 2007/845/JHA 
achieved at a reasonable cost?” 

Although the implementation of the ARO Council Decision has incurred some fixed costs for the 
Member  States  (between  EUR  2.8  and  7  million  EUR  for  each  Member  States)  in  order  to 
establish  Asset  Recovery  Offices,  and  some  continuous  ones  for  the  European  Commission  in 
hosting  information  and  best  practices  exchanges  fora  such  as  the  Asset  Recovery  Offices 
Platform  meetings  (estimates  yearly  costs  of  150  000  EUR),  the  incurred  costs  have  been 
reasonable when comparing with the benefits stemming from the rates of frozen assets. As the 
value of frozen property is estimated to have increased from EUR 2.6 billion to EUR 2.9 billion 
between  2017  and  2019  alone,  the  costs  towards  the  establishment  and  maintenance  of  Asset 
Recovery  Offices  have  been  proportionate  in  relation  to  the  benefits  provided,  reaching  cost-
efficiency in recent years.298 

At  the  same  time,  the  potential  efficiency  gains  of  the  ARO  Council  Decision  are  not  fully 
reaped due to various obstacles such as the insufficient human resources. 84% of Asset Recovery 
Offices believe they do not have enough resources to achieve the results expected by the Council 
Decision or that their resources should improve. Lack of human resources was identified as the 
greatest barrier regarding the effective exchange of information, with 21 Asset Recovery Offices 
confirming  the  need  for  adequate  human  resources  as  a  major  issue.299  The  other  two  main 
barriers  to  a  swift  information  exchange  are  the  insufficient  powers  and  access  to  databases300, 
which means that Asset Recovery Offices do not have the necessary tools and information that 
would allow them to carry out their tasks in an efficient way.   

According  to  the  stakeholder  consultation  (Asset  Recovery  Offices,  law  enforcement, 
prosecution  and  public  authorities.,  Europol),  another  issue  affecting  the  efficiency  of 
information exchange and cross-border cooperation between Asset Recovery Offices is the fact 

Impact  Assessment  on  EU  policy 

298 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an 
confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016. 
299 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081  
300 Information gathered in the Asset Recovery Offices platform meeting of 25th-26th June 2021.  

initiatives  on  asset 

recovery  and 

140 

 
 
 
 
 
                                                           
that a small number of Offices still do not have access (or have an indirect access) to SIENA301. 
While  SIENA  allows  Asset  Recovery  Offices  to  quickly  communicate  with  each  other  and  to 
benefit from Europol’s analysis and operational support (i.e. identification of new leads and links 
between investigations), the Council Decision 2007/845/EU does not regulate the channel to be 
used for communication between Asset Recovery Offices.  

Public  consultation:  respondents  were  also  asked  about  the  efficiency  of  the  ARO  Council 
Decision. While most respondents considered that the effects of Council Decision were achieved 
at a reasonable cost (44%), a large share did not know (40%) and some respondents thought the 
effects were not achieved at a reasonable cost (16%).  

In conclusion, the intervention has been successful regarding the efficiency criterion, being cost-
effective to the extent that it achieved its objectives. Through the creation of central channels for 
the exchange of information on asset tracing, the establishment of Asset Recovery Offices in all 
Member  States  has  improved  the  efficiency  of  the  identification  of  assets  across  borders.  The 
establishment  of  minimum  rules  for  the  exchange  of  information  and  best  practices  has 
facilitated  in  an  efficient  way  cooperation  among  Asset  Recovery  Offices.  Nevertheless,  the 
benefits  achieved  have  been  reduced  by  identified  challenges  such  as  insufficient  human 
resources  available  and  the  shortcomings  identified  in  Asset  Recovery  Offices’  powers. 
Challenges related to access to information have reduced the Offices’ efficiency in tracing illicit 
assets  and  responding  to  requests  from  Asset  Recovery  Offices  from  other  Member  States. 
Additionally, a small  number of Asset  Recovery Offices still do not  have access  to  SIENA, or 
only have indirect access, hampering the efficiency of cross border information exchange. 

Directive 2014/42/EU 

Evaluation question: “To what extent were the effects of Directive 2014/42/EU achieved at 
a reasonable cost?” 

The  establishing  and  strengthening  of  common  rules  on  the  freezing  and  confiscation  of  the 
proceeds  and  instrumentalities  of  crime,  as  well  as  of  minimum  management  and  disposal 
obligations, has improved the efficiency of the recovery of criminal assets across borders. Even 
though the statistical picture on freezing and confiscation presents significant gaps, given that the 
obligations of Article 11 on statistical data collection only require Member States to record and 
transmit data on the estimated value of property frozen and of property recovered at the time of 
confiscation,  with  no  point  of  reference  regarding  the  value  of  the  property  at  the  time  of 
freezing for comparison, allowing the assessment of the effectiveness of management measures, 

301 One access is pending due to technical issues while in other three cases is due to the judicial nature of the Asset 
Recovery Office that do not require a access to SIENA.  

141 

 
 
 
 
 
                                                           
data  has  been  extrapolated  in  the  course  of  the  ‘Study  to  support  the  preparation  of  an  Impact 
Assessment  on  EU  policy  initiatives  on  asset  recovery  and  confiscation’302  and  through 
stakeholders  consultations  (Asset  Recovery  Offices,  law  enforcement,  prosecution  and  public 
authorities). 

The Confiscation Directive has presented no costs to citizens and businesses, and only costs to 
the public administration. The legislative intervention has led to a higher number of freezing and 
confiscation orders, and thus of property and recovered, than in 2012, with the value of frozen 
property  being  estimated  to  have  increased  from  EUR  2.6  billion  to  EUR  2.9  billion  between 
2017 and 2019 alone.303 Stronger management measures, when paired with the establishment of 
Asset  Management Offices in  the Member states, has improved the  capacity to manage frozen 
and confiscated asset, and led to an estimated increase of the value of managed assets by Asset 
Management  Offices  of  15%.  Moreover,  by  removing  some  of  the  disincentives  to  asset 
recovery, efficient management incentivises competent authorities to trace more assets an annual 
increase  of  recovered  assets  totalling  approximately  EUR  240  million  per  Asset  Management 
Office.304 This figure is however applicable only to those Member States that established strong 
the  cost-effectiveness  of  good  management  when 
management  provisions,  showing 
implemented. 

The  great  majority  of  stakeholders  (94%)  therefore  confirmed  the  results  of  previous  studies, 
considering that the costs associated with the implementation of the Confiscation Directive have 
been justified in light of the benefits produced.305 Besides the benefits of economic returns to the 
public budget, recovered criminal property further leads to indirect benefits that are not directly 
quantifiable, such as increased social cohesion and the long-term impacts of restorative justice on 
victims  and  communities  benefitting  from  returns  from  social  reuse  and  from  lower  rates  of 
crime.  Moreover,  property  taken  away  from  criminal  organisations  is  property  that  cannot  be 
reinvested  to  undertake  further  crimes,  and  that  contributes  to  reducing  criminal  infiltration, 
which  benefits  both  the  Rule  of  Law  and  the  economic  integrity  of  the  Union,  protecting 
businesses and industries and increasing competition in the EU market.  

On  statistics,  81%  of  stakeholders  similarly  consider  that  the  collection  of  statistical  data  has 
improved ‘to a reasonable or to a great extent’ the overall efficiency of freezing, confiscation and 
asset recovery. Of the five stakeholders who provided further input, three considered the costs of 

initiatives  on  asset 

Impact  Assessment  on  EU  policy 

302 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an 
confiscation,  2021, 
HOME/2020/ISFP/FW/EVA2/0016. 
303 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an 
confiscation,  2021, 
Impact  Assessment  on  EU  policy 
HOME/2020/ISFP/FW/EVA2/0016, pp. 67-69 
304 European Commission, Directorate-General for Migration and Home Affairs, Study to support the preparation of 
an  Impact  Assessment  on  EU  policy 
initiatives  on  asset  recovery  and  confiscation,  Annexes,  2021, 
HOME/2020/ISFP/FW/EVA2/0016, pp. 46, 48 
305 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 

initiatives  on  asset 

recovery  and 

recovery  and 

142 

 
 
                                                           
statistical data collection justified to the benefits it provided, and that associated costs would not 
be  a  justifiable  argument  for  not  collecting  data  leading  to  the  benefits  of  a  better  statistical 
picture on the results achieved, whilst two disagreed and did not consider the collection of data 
worth its costs.306 

Public consultation: respondents were asked to comment on the efficiency of the Confiscation 
Directive.  While  most  respondents  claimed  the  effects  of  the  Directive  2014/42/EU  were 
achieved  at  a  reasonable  cost  (40%),  about  a  quarter  of  respondents  expressed  the  contrary 
(24%), and others did not know (36%). 

In conclusion, the intervention has been successful regarding the efficiency criterion, being cost-
effective  to  the  extent  that  it  achieved  its  objectives.  However,  to  the  extent  that  freezing  and 
confiscation rates as well as the value of frozen and confiscated assets are not as high as would 
be expected from a fully effective asset recovery system, the efficiency of the measures in place 
is also affected: where confiscation measures remain too limited in scope, the resources needed 
to carry out investigations may be disproportionate to the benefits in terms of recovered assets. 
Similarly, where management costs remain too high while the risk of a depreciation of assets is 
not properly remedied, the asset recovery process is inefficient to a point that it may affect the 
initiation of asset recovery procedures.  

Coherence 

Evaluation question: “Are the provisions laid down in Council Decision 2007/845/JHA and 
Directive 2014/42/EU coherent with other relevant EU policies?” 

This  section examines  how the ARO Council Decision and the Confiscation Directive work in 
relation to other relevant EU instruments. The analysis of coherence is of particular importance 
in relation to the range of illicit activities in scope of other pieces of EU legislation relevant for 
asset  recovery  and  to  the  confiscation  tools  covered  by  the  asset  recovery  instruments.  This 
analysis also  considers the  level  of EU intervention  on the repressive aspects of anti-money 
laundering as compared to the preventative dimension. 

Regarding  the  scope  of  illicit  activities,  the  ARO  Council  Decision  and  the  Confiscation 
Directive  are  not  consistent:  the  first  one  refers  generally  to  the  proceeds  of  crime  (and  is 
therefore  applicable  to  any  crime  area),  the  second  is  limited  to  a  narrow  set  of  offences307 

306 Ibid. 
307 Directive 2014/42/EU covers certain offences harmonised at EU level in relation to corruption, counterfeiting of 
the  euro,  credit  card  fraud,  money  laundering,  terrorism,  illicit  drug  trafficking,  organised  crime,  trafficking  in 
human beings, sexual exploitation of children, and cyberattacks. The Confiscation Directive further applies to fraud 
to the  Union's financial interests.  For example, the Mutual  Regulation covers  ‘corruption’,  while the Confiscation 

143 

 
 
 
 
 
                                                           
through cross-references to existing EU instruments. The Confiscation Directive is narrower than 
the  Mutual  Recognition  Regulation.  This  instrument  covers  a  wider  range  of  crimes  in  a  more 
general  way  (i.e.  a  list  of  criminal  offences  punishable  by  maximum  prison  sentences  of  three 
years or more), an approach potentially broader than the one of the Confiscation Directive.  

The  scope  of  the  Confiscation  Directive  is  also  narrower  than  the  one  of  Council  Framework 
Decision 2005/212/JHA. The latter covers standard confiscation and value-based confiscation for 
all  offences  punishable  by  deprivation  of  liberty  for  more  than  one  year.  The  Framework 
Decision  still  applies  for  all  Member  States  as  regards  crimes  out  of  the  scope  of  the 
Confiscation Directive, and it is still applicable for Denmark in relation not only to standard and 
value-based  confiscation,  but  also  as  regards  the  extended  confiscation  provisions  contained 
therein.  

Similarly, other instruments of the EU’s anti-money laundering framework are broader in scope 
than the Confiscation Directive: the Anti-Money Laundering Directive (AMLD) defines criminal 
activity by referring to a set of offences but also to offences punishable by deprivation of liberty 
for more than one year. The Directive on the criminalisation of Money Laundering (CMLD)308, 
in addition to the offences above the one-year threshold, lists in a general manner a long list of 
criminal activities to which the money laundering offence should be applicable. 

In  conclusion,  in  terms  of  scope  there  are  significant  discrepancies  between  the  Confiscation 
Directive  and  the  ARO  Council  Decision  as  well  as  with  other  relevant  instruments.  This  is 
caused by the timing of  adoption of different  instruments,  with  some being adopted before the 
coming  into  force  of  the  Lisbon  Treaty,  whilst  others  were  adopted  after  2008  and  under  a 
different legal basis limiting their scope.  

As regards the  confiscation tools covered by the different  asset recovery  instruments,  there is 
also  a  significant  level  of  inconsistency  between  the  Confiscation  Directive  and    the  Mutual 
Recognition  Regulation,  which  “covers  all  types  of  freezing  orders  and  confiscation  orders 
issued  following  proceedings  in  relation  to  a  criminal  offence,  not  only  orders  covered  by  the 
Confiscation  Directive.  This  includes  other  types  of  orders  issued  without  a  final  conviction” 
(recital  13).  Therefore,  the  Regulation  would  also  apply  to  orders  issued  through  confiscation 
models  that  enable  confiscation  in  the  absence  of  a  conviction  but  the  court  is  nevertheless 
convinced  in  a  criminal  procedure  that  the  assets  are  of  criminal  origin,  a  model  which  has 
achieved significant results in tackling organised crime finances, but which is only available in 
three  Member  States.  This  means  that  the  Regulation  enables  the  recognition  of  confiscation 
decisions  based  on  models  which  are  however  not  available  to  the  large  majority  of  Member 
States, despite their proven effectiveness. The lack of coherence, albeit not being a problem per 

Directive  only  applies  to  criminal  offences  covered  by  the  Convention  on  the  fight  against  corruption  involving 
officials. 
308  Directive  (EU)  2018/1673  of  the  European  Parliament  and  of  the  Council  of  23  October  2018  on  combating 
money laundering by criminal law. 

144 

 
 
                                                                                                                                                                                           
se  for  the  application  of  the  Regulation,  means  that  the  benefits  of  this  instrument  cannot  be 
reaped to their full extent.    

Moreover, it is important to assess the coherence of the asset recovery regime within the broader 
anti-money  laundering  framework.  Together  with  instruments  such  as  the  Directive  on  the 
criminalisation  of  Money  Laundering,  asset  recovery  and  financial  investigations  are  the  main 
building block of the repressive dimension of anti-money laundering policies. This repressive 
angle  complements  and  follows  on  the  outcomes  of  the  preventative  side  of  the  anti-money 
laundering framework, the main instrument therein being the AMLD. Both dimensions need to 
perform  in  a  coherent  manner  in  order  for  the  overall  anti-money  laundering  policy  to  be 
effective, and therefore it is relevant to compare the level of EU intervention in both areas.  

On the one hand, the Anti-Money Laundering Directive has established detailed rules to ensure a 
smooth  flow  of  information  and  cooperation  among  the  different  actors  (private  entities, 
Financial  Intelligence  Units,  supervisors).  On  the  basis  of  a  strategic  approach  based  on  a 
thorough  assessment  of  risks,  the  various  actors  have  clearly  defined  roles  and  prioritise  the 
identification  of  suspicious  financial  activities  as  part  of  their  work.  Rules  are  also  set  to 
determine the cases where private entities and Financial Intelligence Units should act to identify 
suspicious money flows. 

This  comprehensive  and  structured  system  contrasts  with  the  situation  in  the  repressive  angle, 
where  a  lack  of  strategic  approach  on  asset  recovery,  insufficient  cooperation  among  different 
actors and a lack of prioritisation and resources to address the scale of the threat are present in 
the majority of Member States. 

An example of the divergences between the two ‘legs’ of the AML system is the level of cross-
border cooperation: the number of exchanges between Financial Intelligence Units amounted to 
25,641  in  2014,  a  figure  nine  times  higher  than  the  2,763  exchanges  between  Asset  Recovery 
Offices in the same year. This is not only due to the nature of the activities performed, but also 
due to the more detailed rules on the information to be exchanged, the deadlines for replying to 
requests and the databases to be accessed. 

The  lack  of  coherence  among  both  dimensions  does  not  allow  to  exploit  to  its  full  extent  the 
financial  intelligence  provided  by  the  private  sector  and  Financial  Intelligence  Units,  thereby 
hindering the overall effectiveness of the Anti-Money Laundering regime.  

Public consultation: respondents were asked to comment on the coherence of the ARO Council 
Decision  and  of  the  Confiscation  Directive.  Whilst  most  respondents  considered  that  the 
provisions laid down in Council Decision 2007/845/JHA were coherent with other relevant EU 
policies (56%), many respondents did not know (30%) and some did not consider the provisions 
to  be  coherent  (14%).  Similarly,  whilst  most  respondents  felt  the  provisions  laid  down  in 
Directive 2014/42/EU  were  coherent  with  other  relevant  EU policies (64%), some respondents 

145 

 
 
considered that the provisions lacked coherence (22%), and others did not know (14%). 

In conclusion, both interventions were  relatively successful as regards the coherence criterion. 
Whilst the ARO Council Decision and the Confiscation Directive are part of a wider legislative 
framework  aiming  at  countering  proceeds  of  crime,  discrepancies  persist  in  particular  between 
the  Confiscation  Directive  and  with  other  relevant  EU  legislation.  The  scope  of  criminal 
activities  and  the  scope  of  confiscation  tools  covered  by  the  Confiscation  Directive  are  more 
limited than in  other EU legislation.  In addition,  compared to  the tools  available and approach 
provided for in relation to the prevention of money laundering, the asset recovery legislation is 
less  developed  in  terms  of  available  tools  and  competences  as  well  as  the  overall  strategic 
approach. These discrepancies imply that the full benefits of the various instruments and of the 
EU policy in depriving criminals of their illicit assets cannot be fully reaped.  

4.2 How did the EU intervention make a difference? 

This  sections  aims  at  establishing  the  EU  added  value  of  the  ARO  Council  Decision  and  the 
Confiscation Directive as regards the recovery of criminal assets. 

Council Decision 2007/845/JHA 

Evaluation question: “Without the adoption of Council Decision 2007/845/JHA, would it 
have been easier or harder for EU Member States to tackle serious and organised crime 
individually?” 

At  the  time  of  the  introduction  of  the  ARO  Council  Decision,  only  eight  Member  States  had 
established Asset Recovery Offices.309 Considering this baseline situation, the creation of these 
entities  in  the  remaining  Member  States  and  the  positive  effects  in  terms  of  cross-border 
cooperation reflect that the ARO Council Decision has a considerable added value in facilitating 
the  identification  of  criminal  assets,  which  is  a  challenge  of  transnational  character.  The  fight 
against organised crime is cross border in nature, where criminals transfer and spread their illicit 
property across multiple jurisdictions Asset tracing across jurisdictions is therefore the first key 
step to  follow the money  trail, where the  freedom  of movement  in  the single market  allow for 
easier flow of people and capital. This cross-border dimension of organised crime activities and 
their multi-country investments makes an EU intervention fundamental to level the playing field 
in the fight against organised crime.  

The  great  majority  of  stakeholders  consulted,  mainly  composed  of  Asset  Recovery  Offices, 
believed that the ARO Council Decision contributed to increasing cross-border identification of 

309 European Commission, Directorate-General for Migration and Home Affairs, Study on freezing, confiscation and 
asset recovery – what works, what does not work, 2021, HOME/2018/ISFP/FW/EVAL/0081.   

146 

 
 
 
 
 
                                                           
assets  and  proceeds  of  crime  (35%  ‘to  a  great  extent’,  60%  ‘to  a  reasonable  extent’).  Whilst 
highlighting  the  challenges  presented  in  the  previous  sections  of  this  Evaluation,  the  great 
majority of Asset Recovery Offices also agreed that the EU intervention had a positive effect to 
increase coordination between themselves (46% ‘to a great extent’, 46% ‘to a reasonable extent’) 
and  97%  believed  cross-border  identification  of  assets  and  coordination  between  the  Offices 
would have been more difficult without EU intervention.310 

Public  consultation:  97%  of  consulted  stakeholders  in  the  public  consultation  consider  cross-
border cooperation essential in the identification of criminal assets and 88% believe it would be 
harder to freeze and confiscate the proceeds of crime without EU intervention. Moreover, 68% of 
respondents to the public consultation considered that it would have been harder for EU Member 
States to tackle organised crime individually without the adoption of the Confiscation Directive, 
and 46% without the introduction of Asset Recovery Offices in the Member States.  

Directive 2014/42/EU 

Evaluation question: “Without the adoption of Directive 2014/42/EU, would it have been 
easier or harder for EU Member States to tackle serious and organised crime individually?” 

Similarly  as  for  the  ARO  Council  Decision,  the  challenges  stemming  from  the  fight  against 
organised  crime’s  profits  can  only  adequately  be  addressed  at  EU  level  in  light  of  the 
international nature of organised criminal groups. According to Europol, 80% of organised crime 
groups in the EU are highly poly-criminal and active across borders, with 7 out of 10 active in 
more  than  3  countries  and  65%  of  organised  crime  groups  being  composed  of  multiple 
nationalities.311  Individual  efforts  of  Member  States  against  organised  crime’s  activities  are 
insufficient  as  criminals  take  advantage  of  the  benefits  of  the  EU’s  internal  market  and  of  the 
speed  of  the  financial  system,  as  well  as  of  the  underground  parallel  financial  system  built  by 
organised  crime.  The  EU  added  value  is  therefore  clear  in  this  area,  although  Member  States 
have sought to go beyond the EU intervention on asset recovery. 

Overall,  it  can  be  considered  that  the  Confiscation  Directive  has  contributed  to  stepping  up 
confiscation efforts across all Member States. The overwhelming majority of stakeholders from 
law  enforcement,  judicial  and  public  authorities  (88%)  believed  it  would  have  been  harder  to 
freeze  and  confiscate  the  proceeds  of  crime  without  EU  intervention.  At  the  same  time,  85% 
believe  that  the  rates  of  freezing  and  confiscation  of  proceeds  and  instrumentalities  of  crime 

310 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 
311  Europol,  European  Union  Serious  and  Organised  Crime  Threat  Assessment  “A  Corrupting  Influence:  The 
infiltration and undermining of Europe’s economy and society by organised crimes” (2021), p. 19 

147 

 
 
 
 
 
                                                           
would have been lower without EU intervention.312At the same time, most Member States have 
gone beyond the Confiscation Directive in several key areas such as the scope of crimes covered 
by the confiscation regimes (including those covered by extended confiscation) or the objective 
circumstances  to  which  non-conviction  based  confiscation  can  be  applied,  and  there  remain 
important  divergences  in  areas  such  as  management  of  assets.  The  developments  at  national 
level, often in diverging ways, are thus proof that the EU added value has not been achieved to 
its full potential.  

Public consultation: respondents were asked to comment on the relevance of the Confiscation 
Directive. Most respondents considered that it would have been relatively harder for EU Member 
States  to  tackle  serious and  organised  crime  individually  without  the  adoption  of  the  Directive 
2014/42/EU (42% considered it would have been harder, and 26% claimed it would have been 
‘to  a  small  extent  harder’).  However,  this  view  was  not  shared  by  all  stakeholders  as  some 
considered that it would have been ‘neither harder or easier’ (24%), one claimed it would have 
been easier (2%) and three did not know (6%).  

The ARO Council Decision and the Confiscation Directive made a difference through providing 
added value to the Member States in increasing their coordination and freezing, confiscation and 
management powers in cross-border cases against a threat that is cross-border in nature. Without 
EU  intervention  it  would  have  been  harder  for  Member  States  to  combat  organised  crime’s 
profits without the benefits provided by Asset Recovery Offices’ tracing and coordination role. 
At the same time, despite these benefits, the shortcomings identified in the previous sections of 
the Evaluation do not allow for the exploitation of the full the potential of the EU added value of 
Asset Recovery Offices. 

4.3 Is the intervention still relevant? 

Council Decision 2007/845/JHA 

Evaluation question: “To what extent is the Council Decision 2007/845/JHA still relevant 
in the fight against the proceeds of serious and organised crime?” 

The work of the Asset Recovery Offices has proven to be relevant for the overall objective of 
the  ARO  Council  Decision  of  facilitating  the  identification  of  criminal  assets  through  the 
establishment of the Asset Recovery Offices in all Member States and the streamlining of cross 
border  cooperation  in  asset  tracing.  This  objective  remains  relevant  in  turn  in  the  fight  against 
proceed of serious and organised crime in the EU, both in light of the overwhelming number of 

312 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 

148 

 
 
 
 
 
                                                           
criminal profits that remain in the hands of criminal, requiring therefore a continued intervention 
and  in  light  of  the  added  value  provided  by  Asset  Recovery  Offices  in  the  fight  against  these 
proceeds – as established in the previous sections.  

A large majority of stakeholders from law enforcement, judicial and public authorities consulted 
considered  that  the  ARO  Council  Decision  has  contributed  to  (i)  taking  away  organised  crime 
profits,  (ii)  equipping  law  enforcement  with  the  means  and  tools  to  fight  organised  Crime  and 
confiscate  its  proceeds,  and  (iii)  facilitating  mutual  trust  and  cross  border  cooperation,  in 
percentages  ranging  from  63%  to  95%.  However,  the  overwhelming  majority  of  stakeholders 
also agreed that there is still a need to increase security, fight organised crime, illicit money and 
increase asset recovery and confiscation cooperation in the EU.313 

However, whilst the intervention remains relevant and necessary, the limited requirements of the 
ARO  Council  Decision  as  presented  in  the  Effectiveness  and  Efficiency  sections  reduce  its 
relevance insofar as Asset Recovery Offices are impaired in the achievement of the policy goals 
of the ARO Council Decision. Issue relate to the lack of minimum standards in relation to issues 
essential  for  the  work  of  Asset  Recovery  Offices,  such  as  their  powers  and  information 
sources:314  evidence  of  the  insufficient  reach  of  the  Council  Decision  is  the  fact  that  in  these 
areas  Member  States  have  gone  beyond  the  provisions  therein,  often  in  diverging  ways,  as 
outlined  in  the  state  of  play  section  and  in  the  Commission  report  “Asset  Recovery  and 
Confiscation,  Ensuring  that  Crime  does  not  Pay”.315  The  Decision  also  does  not  tackle  key 
aspects  of  asset  tracing,  such  as  financial  investigations  by  law  enforcement  authorities  or  the 
role of Asset Recovery Offices in support of these investigations, issues which are only regulated 
at national level, with approaches varying from one Member State to another. Its limitations are 
particularly acute given the increasing complexity of organised crime groups and their financial 
activities. At the same time, insufficient powers and limited access to information hamper cross-
border cooperation among Asset Recovery Offices.  This results in a limitation of their potential 
in  depriving  criminals  of  their  finances,  especially  in  a  cross  border  context,  thereby  affecting 
their relevance in this area. 

Public consultation: most respondents agreed that it was ‘very important’ for i) Member States 
to  be able to trace illicit proceeds and other property which may become liable to  confiscation 
(82%) and ii) Asset Recovery Offices to communicate, exchange information and cooperate with 
each other (80%). 

Directive 2014/42/EU 

313 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 
314 Ibid. 
315  Report  from  the  Commission  to  the  European  Parliament  and  the  Council,  Asset  recovery  and  confiscation: 
Ensuring that crime does not pay, SWD COM/2020/217 final. 

149 

 
 
 
 
                                                           
Evaluation  question:  “To  what  extent  is  freezing  and  confiscating  the  proceeds  and 
instrumentalities of crime relevant to fight serious and organised crime?” 

The  identification  and  seizure  of  criminal  assets  have  been  identified  as  a  priority  of  the 
European  Union  since  the  2009  Stockholm  programme.316  The  objectives  of  the  Confiscation 
Directive  of  depriving  criminals  from  the  profits  of  their  illicit  activities  are  thus  still  relevant 
today: With EUR 139 billion of annual profits at their disposal, criminals groups are able to take 
over  vulnerable  businesses  to  expand  and  cover  up  illegal  activities.317  Criminal  infiltration, 
alongside organised crime’s widespread use of corruption, is a threat to the Rule of Law and to 
the integrity of the economy. Furthermore, in view of the economic recovery from the Covid-19 
crisis,  it  is  more  important  than  ever  to  tackle  the  profit-based  motivation  behind  organised 
crime, taking away money from the hands of criminals.  

The  majority  of  respondents  agreed  the  identified  general  objectives  set  out  are  still  highly 
relevant to the needs to increase security, fight organised crime, illicit money and increase asset 
recovery and confiscation cooperation in the EU. The positive response rates that (i) taking away 
organised  crime  profits,  (ii)  equipping  law  enforcement  with  the  means  and  tools  to  fight 
organised  crime  and  confiscate  its  proceeds,  and  (iii)  facilitating  mutual  trust  and  cross  border 
cooperation  to  address  these  needs  ranged  from  52%  to  90%.318  During  the  consultation, 
stakeholders  (Asset  Recovery  Offices,  law  enforcement,  prosecution  and  public  authorities) 
further  expressed  that  the  needs  to  increase  cooperation  and  exchange  of  information  in  the 
execution  phase  of  confiscation,  the  need  to  capture  proceeds  from  all  criminal  activities,  the 
need  to  increase  cooperation  outside  the  EU,  and  the  need  to  strengthen  operational  freezing 
powers  of  law  enforcement  authorities,  are  not  sufficiently  addressed  by  the  Confiscation 
Directive  and  of  relevance  today.  Furthermore,  an  extension  of  the  scope  of  confiscation  to 
environmental  crime  and  the  possibility  to  issue  specific  seizure  measures  such  as  for  virtual 
assets  or  value-based  confiscation,  civil  forfeiture,  and  increase  cooperation  in  out-of-court 
settlements  for  confiscation  need  to  be  further  improved.  Equally,  few  stakeholders  did  not 
consider that further needs not addressed by the Confiscation Directive arose from the time of its 
adoption.319 

Public consultation: nearly  all  respondents agreed that  freezing  and  confiscating the proceeds 

316 The Stockholm Programme — An open and secure Europe serving and protecting citizens, OJ C 115, 4.5.2010, 
p. 1–38. 
317 Savona Ernesto U. & Riccardi Michele (Eds.). 2015. From illegal markets to legitimate businesses: the portfolio 
of organised crime in Europe. Final Report of project OCP – Organised Crime Portfolio. 
318 Information gathered in the ARO Platform and Confiscation Directive meetings held in June/July 2021. 
319 Ibid. 

150 

 
 
 
 
 
                                                           
and instrumentalities of crime was relevant to fight serious and organised crime (98%).  

The challenges arising from the fight against criminal proceeds are still in place at the end of the 
evaluation period, highlighting the continuous relevance of the ARO Council Decision and of the 
Confiscation  Directive.  As  highlighted  in  previous  sections,  Asset  Recovery  Offices  have 
achieved substantial results and reached mixed levels of success: lack of powers and capabilities 
hinder their ability to achieve the policy objectives they were set to achieve by the ARO Council 
Decision. Nevertheless, the work of the  Asset  Recovery Offices  has  proven to be relevant in 
the  fight  against  proceed  of  serious  and  organised  crime  in  the  EU,  both  in  light  of  the 
overwhelming number of criminal profits that remain in the hands of criminal, and of the added 
value provided by Asset Recovery Offices in the fight against these proceeds.  

Similarly  to  the  ARO  Council  Decision,  the  Confiscation  Directive  achieved  mixed  levels  of 
success,  with  Member  States  going  beyond  its  minimum  obligations  to  capture  proceeds  of 
crime.  Nevertheless,  the  freezing,  confiscation,  management  and  disposal  provisions  of  the 
Confiscation Directive  have proven to be relevant in  the fight  against proceed of serious and 
organised crime in the EU, both in light of the rise of freezing and confiscation orders since the 
beginning of the evaluation period, and the persisting threat of criminal infiltration of organised 
crime into the legal economy. 

5.  WHAT ARE THE CONCLUSIONS AND LESSONS LEARNED? 

 The  objective  of  this  Evaluation  is  to  draw  conclusions  and  lessons  learned  from  the 
implementation of the current asset recovery rule and to check whether the EU Asset Recovery 
system is still fit for purpose and what are the shortcomings that could hamper the fight against 
organised  crime.  Against  this  background,  Directive  2014/42/EU  and  Council  Decision 
2007/845/JHA have been evaluated against the five evaluation criteria: effectiveness, efficiency, 
relevance, coherence and EU added value. In line with the “evaluate first” principle and in view 
of the adoption of a new legal proposal to strengthen the confiscation and asset recovery system, 
this Evaluation has assessed whether the expected results were achieved and identified few areas 
where a further improvement or update of existing legal instrument is needed. 

As  highlighted  in  the  most  recent  SOCTA,  the  threat  posed  by  organised  crime  is  higher  than 
ever  and  the  increased  level  of  organised  crime  complexity  poses  additional  challenges  to  law 
enforcement authorities fighting organised criminal groups. In this context, depriving organised 
criminal groups of their profits is recognised as one of the most effective way. 

In  this  context,  the  two  evaluated  legal  instruments  have  certainly  introduced  several 
improvements  with  respect  to  the  previous  legal  framework.  However,  this  Evaluation  shows 
that the current EU confiscation and asset recovery system has only to some extent achieved the 
objectives and expected results and envisaged impacts. While approximation has led to a further 

151 

 
 
 
clarification of the different concepts related to asset recovery and confiscation measures and has 
improved cross border cooperation and trust among in particular Asset Recovery Offices, overall 
confiscation stays behind expectations which is explained by the fact that the existing rules are 
not sufficient to provide an effective response to the increased threat posed by organised crime, 
to reduce the attractiveness and presence of organised crime.  

More specifically, the Evaluation concluded that:  

  Despite  the  fact  that  the  ARO  Council  Decision  has  resulted  in  increased  information 
exchange and overall cooperation between Asset Recovery Offices, challenges remain in 
the  identification  of  assets  phase.  The  effectiveness  of  the  ARO  Council  Decision  has 
been hampered due to  a number of identified shortcomings.  Asset  Recovery Offices do 
not  have  all  the  necessary  powers,  information  and  resources  to  identify  and  trace  all 
assets  related  to  criminal  activities:  one  third  lacks  tracing  powers,  the  great  majority 
lacks  the  power  to  urgently  freeze  assets  and  only  15%  has  access  to  all  databases 
necessary for their tasks. Consequentially, Asset Recovery Offices are not always used to 
their  full  potential  in  supporting  asset  tracing,  with  some  acting  as  mere  cross-border 
contact  points  while  others  are  empowered  to  support  national  investigations,  provide 
training, or collect statistics. The above circumstances diminish the effectiveness of asset 
recovery measures and the ability to respond to cross-border requests.  

  Similarly, the Confiscation Directive has been moderately effective. Whilst on one side 
it has led to some approximation of the concepts of freezing and confiscation and to an 
increase  in  freezing  and  confiscation  rates  from  the  baseline,  the  overall  results  remain 
too  low  to  significantly  impact  organised  crime’s  profits,  with  no  statistical  evidence 
showing  that  criminal  proceeds  are  recovered  to  an  extent  that  would  undermine  the 
activities of organised crime groups. This shortcoming can be linked to a large extent to 
the limited scope of confiscation measures under the Confiscation Directive, as shown by 
the fact that Member States’ legislation shows significant differences in terms of scope of 
the different instruments affecting the development of a more uniform understanding and 
implementation throughout the EU, going beyond the minimum obligations set out in the 
Confiscation Directive. Whilst asset management has been improved, the results are not 
satisfactory.  Even  though  management  requires  specialized  expertise,  the  majority  of 
Member States has left management responsibilities to a fragmented range of authorities 
(prosecution  services,  courts,  bailiffs,  law  enforcement  authorities,  etc.)  that  often  lack 
the  expertise,  human,  financial  and  technical  resources  for  efficient  management. 
Furthermore,  good  methods  such  as  pre-seizure  planning,  which  entails  authorities 
assessing the suitability of property before confiscating it, and interlocutory sales, which 
entail  selling  frozen  property  before  it  is  confiscated,  are  not  widely  used.  Finally,  the 
existing  obligations  in  terms  of  data  collection  do  not  allow  for  a  complete  and 
meaningful picture of the results of asset recovery efforts in Member States. 

152 

 
 
 
  The establishment of Asset Recovery Offices in all Member States as the central point for 
cross-border  cooperation  on  asset  tracing  has  increased  the  efficiency  in  tracing  assets 
within  the  EU,  with  the  costs  of  the  ARO  Council  Decision  being  proportionate  and 
overall  cost-effective  when  compared  to  the  benefits.  On  the  other  hand,  the  benefits 
achieved  have  been  reduced  by  identified  challenges  such  as  insufficient  human 
resources  available  and the shortcomings identified in  Asset  Recovery Offices’ powers. 
Challenges  related  to  access  to  information  have  reduced  the  Offices’  efficiency  in 
tracing illicit assets and responding to requests from Asset Recovery Offices from other 
Member States. Additionally, a small number of Asset Recovery Offices still do not have 
access to SIENA, or only have indirect access, hampering the efficiency of cross border 
information exchange. 

  This  Evaluation  shows  that  stakeholders  agree  that  the  adoption  of  the  Confiscation 
Directive  has  increased  the  system’s  overall  efficiency.  To  the  extent  that  freezing  and 
confiscation rates as well as the value of frozen and confiscated assets are not as high as 
would  be  expected  from  a  fully  effective  asset  recovery  system,  the  efficiency  of  the 
measures  in  place  is  also  affected:  where  confiscation  measures  remain  too  limited  in 
scope,  the  resources  needed  to  carry  out  investigations  may  be  disproportionate  to  the 
benefits in terms of recovered assets. Similarly, where management costs remain too high 
while  the  risk  of  a  depreciation  of  assets  is  not  properly  remedied,  the  asset  recovery 
process  is  inefficient  to  a  point  that  it  may  affect  the  initiation  of  asset  recovery 
procedures.  Finally,  as  also  highlighted  by  some  stakeholders  ,  the  collection  of  more 
comprehensive and comparable statistics on frozen and confiscated assets could improve 
the overall efficiency of the system, since it would allow to better evaluate the results and 
monitor progress and the associated cost would be justified compared to the benefit they 
would provide.  

  On  relevance,  Asset  Recovery  Offices  have  proven  to  be  able  to  achieve  the  main 
objectives of the Council Decision: facilitating cooperation and streamlining cross-border 
information exchange, with these objectives remaining relevant. However, the problems 
which led to the establishment of Asset Recovery Offices  are still present today, and the 
limited  role  and  competences  of  Asset  Recovery  Offices,  as  laid  down  in  the  Council 
Decision,  do  not  match  the  need  for  enhanced  asset  tracing  capabilities,  thereby 
diminishing  the  potential  for  Asset  Recovery  Offices  to  become  even  more  relevant 
actors in the asset recovery process. As the first step in the asset recovery process, tracing 
remains fundamental towards the recovery of criminal assets, and Asset Recovery Offices 
alongside it. 

  Similarly,  the  objectives  set  out  in  the  Confiscation  Directive  are  still  relevant  today, 
particularly in the context of the COVID-19 pandemic. In this context, the need to protect 

153 

 
 
 
 
 
 
the  legal  economy  and  to  guarantee  that  illicit  profits  are  recovered  remains  of  the 
outmost  importance.  The  need  for  a  more  uniform  understanding  of  asset  freezing  and 
confiscation measures remains therefore valid today. This objective gains in importance 
given the need to be able to better capture illicit proceeds from organised crime activities 
together  with  the  objective  to  increase  freezing  and  confiscation  rates  in  relation  to 
criminal activities. Improved and efficient management remains relevant and increasingly 
so  given  the  importance  of  an  efficient  management  of  assets  for  ensuring  full 
effectiveness of the entire asset recovery process. 

  As for coherence, this Evaluation shows that discrepancies persist in particular between 
the  Confiscation  Directive  and  with  other  relevant  EU  legislation.  Compared  to  other 
relevant EU legislation the scope of criminal activities and the scope of confiscation tools 
covered are more limited than in the Confiscation Directive. In addition, compared to the 
tools  available  and  approach  provided  for  in  relation  to  the  prevention  of  money 
laundering, the asset recovery legislation is less developed in terms of available tools and 
competences as well as the overall strategic approach. These discrepancies imply that the 
full  benefits  of  the  various  instruments  and  of  the  EU  policy  in  depriving  criminals  of 
their illicit assets cannot be fully reaped.  

  Finally,  the  EU  added  value  was  proven  by  the  achievements  attained  so  far. 
Stakeholders agree that the adoption at EU level of the Confiscation Directive and of the 
ARO Council Decision has improved the Member States capacity to trace and confiscate 
illicit  assets.  At  the  same  time,  the  nature  of  the  identified  shortcomings  equally 
highlights the added value of interventions at EU Level ensuring that Member States can 
count on similarly effective asset tracing and confiscation capabilities throughout the EU. 

In conclusion, this Evaluation shows that despite the improvement of various aspects of the asset 
recovery  system  after  the  adoption  of  the  ARO  Council  Decision  and  of  the  Confiscation 
Directive, the problems identified prior to the adoption of the relevant acts (and in particular the 
Confiscation  Directive)  still  persist  to  a  large  extent  and  there  are  a  number  of  shortcomings 
affecting the Member State’s capacity to trace, freeze, confiscate and manage illicit assets in an 
effective and efficient manner.  

154 

 
 
 
 
 
 
ANNEX 8. EVALUATION MATRIX 

Table 1. Evaluation matrix Directive 2014/42/EU 

Question 

Judgment criteria 

Indicator 

Primary  and  Secondary  Data 
Sources 

of 

provisions 

The 
the 
Confiscation Directive address 
the  needs  existing  in  relation 
to  reducing  organised  crimes’ 
attractiveness 
through 
confiscation of profits  

of 

provisions 

The 
the 
Confiscation  Directive  have 
addressed 
competent 
the 
authorities’ needs for the fight 
against  organised  crime    and 
facilitation of mutual trust and 
cooperation 

1.  To  what  extent 
freezing  and 
is 
confiscating 
the 
proceeds 
and 
instrumentalities 
of  crime  relevant 
fight  serious 
to 
organised 
and 
crime?  

of 

provisions 

The 
the 
Confiscation  Directive  have 
competent 
the 
addressed 
authorities’ 
for 
facilitation of mutual trust and 
cooperation  

needs 

For  replying  the  evaluation  questions  a 
number  of  qualitative  and  quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main  one  used  was  the  needs  and 
perceptions  provided  by  the  public  and 
mostly of the relevant stakeholders in the 
consultations  that  took  place  during  the 
Evaluation.  

Concerning  the  quantitative  indicators 
the  main  ones  used  was  statistical  data 
from various sources and studies.  

  Public consultation 
  Stakeholders’ consultation  
  2012 

Impact 

Assessment 

Confiscation Directive 
  Europol SOCTA Reports 

  Public consultation 
  Stakeholders’ consultation  
 

Impact  Assessment  Confiscation 
Directive 

  Europol SOCTA Reports 

  Public consultation 
  Stakeholders’ consultation  
  2012 

Impact 

Assessment 

Confiscation Directive  
  Europol SOCTA Reports 

2.  What  have 
been 
the 
(quantitative  and 
qualitative) effects 
of 
Directive 
2014/42/EU? 

The  Confiscation  Directive 
has  contributed 
to  fighting 
serious and organised crime in 
the EU  

For  replying  the  evaluation  questions  a 
number  of  qualitative  and  quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main  one  used  was  the  needs  and 

  Europol SOCTA Reports 
  Commission report “Asset 
Recovery and confiscation, 
ensuring that crime does not pay”  

  Study “Asset recovery and 

confiscation: what works and what 

155 

 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
Question 

Judgment criteria 

Indicator 

perceptions  provided  by  the  public  and 
mostly of the relevant stakeholders in the 
consultations  that  took  place  during  the 
Evaluation.  

Concerning  the  quantitative  indicators 
the  main  ones  used  was  statistical  data 
from various sources and studies.  

The  Confiscation    Directive 
has contributed to the reduced 
attractiveness  of  organised 
crime in the European Union  

The  Confiscation  Directive 
has  increased  cooperation  on 
asset  recovery  at  EU  and 
international level 

156 

Primary  and  Secondary  Data 
Sources 

 

doesn’t work”.   
“Study to support the preparation of 
an  Impact  Assessment  on  EU 
policy  initiatives  on  asset  recovery 
and confiscation’” 
  Public consultation 
  Stakeholders’ consultation 
  Europol SOCTA Reports 
  Commission report “Asset 
Recovery and confiscation, 
ensuring that crime does not pay”  

  Study “Asset recovery and 

 

confiscation: what works and what 
doesn’t work”.   
“Study to support the preparation of 
an  Impact  Assessment  on  EU 
policy  initiatives  on  asset  recovery 
and confiscation’” 

  From  illegal  markets  to  legitimate 

businesses (2015) 

  Mapping the risk of SOC in Europe 

(2018) 

  Mapping the risk of SOC in Europe 

(2021) 

  Public consultation 
  Stakeholders’ consultation 

  Public consultation 
  Stakeholders’ consultation  
  Commission 
Recovery 
and 
ensuring that crime does not pay”  

“Asset 
confiscation, 

report 

 
 
 
 
 
 
 
 
 
 
 
 
Question 

Judgment criteria 

Indicator 

similar 

enabled 

The  Confiscation  Directive 
has 
or 
common provisions at national 
level  in  relation  to  freezing 
and  confiscation  and  clarified 
common 
and 
existing concepts 

definitions 

The  Confiscation  Directive 
has increased the freezing and 
the 
confiscation 
proceeds  and  instrumentalities 
of crime 

rates  of 

The  Confiscation  Directive 
has improved the management 
and  disposal  of  frozen  and 
confiscated assets 

157 

“Asset 

Primary  and  Secondary  Data 
Sources 
  Study 

recovery 

and 
confiscation:  what  works  and  what 
doesn’t work”.   
“Study to support the preparation of 
an  Impact  Assessment  on  EU 
policy  initiatives  on  asset  recovery 
and confiscation’” 

 

  Study  on 

the 

transposition  of 

Directive 2014/42/EU 

  Commission 
Recovery 
and 
ensuring that crime does not pay”  

“Asset 
confiscation, 

report 

  Study 

“Asset 

and 
confiscation:  what  works  and  what 
doesn’t work”.   

recovery 

  Stakeholders’ consultation 

  Study 

“Asset 

and 
confiscation:  what  works  and  what 
doesn’t work”.   

recovery 

  Statistics  provided  by  Member 
States  in  accordance  with  Article 
11 of Directive 2014/42/EU  
“Study to support the preparation of 
an  Impact  Assessment  on  EU 
policy  initiatives  on  asset  recovery 
and confiscation’” 

 

  Stakeholders’ consultation 
  Public consultation 
  Study 

recovery 

and 
confiscation:  what  works  and  what 
doesn’t work”.   
  Europol’s casework 

“Asset 

 
 
 
 
Question 

Judgment criteria 

Indicator 

ensured 

The  Confiscation  Directive 
has 
minimum 
statistics  are  gathered  on 
freezing,  confiscation,  value 
or 
of 
recovered  

property 

frozen 

3.  To  what  extent 
were the effects of 
Directive 
2014/42/EU 
achieved 
reasonable cost? 

at 

a 

costs 

related 

The 
to 
establishing  and  strengthening 
common rules on freezing and 
confiscation  were  justified  in 
light  of  the  benefits  produced 
by the Confiscation Directive 

For replying the evaluation questions a 
number of qualitative and quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main  one  used  was  the  needs  and 
perceptions  provided  by  the  public  and 
mostly of the relevant stakeholders in the 
consultations  that  took  place  during  the 
Evaluation.  

158 

Primary  and  Secondary  Data 
Sources 

  Number of SIENA exchanges  
 

 “Study  to  support  the  preparation 
of  an  Impact  Assessment  on  EU 
policy  initiatives  on  asset  recovery 
and confiscation’” 

  Stakeholders’ consultation 
  Public consultation 

  Study on the transposition of 

Directive 2014/42/EU 

  Statistics provided by Member 

States in accordance with Article 
11 of Directive 2014/42/EU  

  Commission report “Asset 
Recovery and confiscation, 
ensuring that crime does not pay”  

  Study “Asset recovery and 

confiscation: what works and what 
doesn’t work”.   

  Stakeholders’ consultation 

  Study “Asset recovery and 

 

confiscation: what works and what 
doesn’t work”.   
“Study to support the preparation of 
an  Impact  Assessment  on  EU 
policy  initiatives  on  asset  recovery 
and confiscation’” 

  Stakeholders’ consultation 
  Public consultation 

 
 
 
 
 
 
 
 
Question 

Judgment criteria 

Indicator 

costs 

related 

to 
The 
establishing  and  strengthening 
common rules on management 
of assets were justified in light 
of  the  benefits  produced  by 
the Confiscation Directive 

Concerning  the  quantitative  indicators 
the  main  ones  used  was  statistical  data 
from various sources and studies. 

The  costs  related  to  gathering 
statistics  are  proportionate  to 
the benefits in terms of having 
a  better  picture  of  the  results 
of asset recovery  

4.  To  what  extent 
were 
the 
provisions 
laid 
down  in  Directive 
2014/42/EU 
coherent 
with 
other relevant EU 
policies?  

the 
The 
of 
provisions 
Confiscation  Directive 
are 
aligned  with  other  relevant 
legislation adopted at EU level   

For  replying  the  evaluation  questions  a 
number  of  qualitative  and  quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main  one  used  was  the  needs  and 
perceptions  provided  by  the  public  and 
mostly of the relevant stakeholders in the 
consultations  that  took  place  during  the 
Evaluation.  

159 

Primary  and  Secondary  Data 
Sources 

 

 

 Study “Asset recovery and 
confiscation: what works and what 
doesn’t work”.   
“Study to support the preparation of 
an Impact Assessment on EU 
policy initiatives on asset recovery 
and confiscation’” 

  Stakeholders’ consultation 
  Public consultation 

  Study “Asset recovery and 

confiscation: what works and what 
doesn’t work”.   

  Statistics  provided  by  Member 
States  in  accordance  with  Article 
11 of Directive 2014/42/EU 
 “Study to support the preparation 
of an Impact Assessment on EU 
policy initiatives on asset recovery 
and confiscation’” 

 

  Stakeholders’ consultation 
  Public consultation 

  Study “Asset recovery and 

 

confiscation: what works and what 
doesn’t work”.   
 “Study to support the preparation 
of an Impact Assessment on EU 
policy initiatives on asset recovery 
and confiscation’”  

  Stakeholders’ consultation 
  Public consultation 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Question 

Judgment criteria 

Indicator 

Primary  and  Secondary  Data 
Sources 

added  value 

The  Confiscation  Directive 
provided 
to 
Member  States  in  the  fight 
against  serious  and  organised 
crime 

the 
of 

5.  Without 
adoption 
Directive 
2014/42/EU, 
it  have 
would 
easier  or 
been 
for  EU 
harder 
Member  States  to 
tackle serious and 
organised 
crime 
individually? 

Concerning  the  quantitative  indicators 
the  main  ones  used  was  statistical  data 
from various sources and studies.  

For  replying  the  evaluation  questions  a 
number  of  qualitative  and  quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main  one  used  was  the  needs  and 
perceptions  provided  by  the  public  and 
mostly of the relevant stakeholders in the 
consultations  that  took  place  during  the 
Evaluation.  

Concerning  the  quantitative  indicators 
the  main  ones  used  was  statistical  data 
from various sources and studies.  

  Study “Asset recovery and 

 

confiscation: what works and what 
doesn’t work”.   
“Study to support the preparation of 
an Impact Assessment on EU 
policy initiatives on asset recovery 
and confiscation’”  

  Stakeholders’ consultation 
  Public consultation 

160 

 
 
 
 
 
 
 
 
 
 
Table 2. Evaluation matrix Council Decision 2007/845/JHA 

Question 

Judgment criteria 

Indicators 

The provisions of the ARO Council 
Decision address the needs existing 
in  relation  to  reducing  organised 
crimes’ 
through 
attractiveness 
confiscation of profits 

1.  To  what  extent  is 
the  Council  Decision 
2007/845/JHA 
still 
relevant  in  the  fight 
against  the  proceeds 
of 
and 
serious 
organised crime? 

The  pro  provisions  of  the  ARO 
Council  Decision  visions  address 
equip 
existing 
the  needs 
competent  authorities  with  tools  to 
identify 
illicit  assets  and  fight 
organised crime   

to 

For  replying  the  evaluation  questions  a 
number  of  qualitative  and  quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main  one  used  was  the  needs  and 
perceptions  provided  by  the  public  and 
mostly of the relevant stakeholders in the 
consultations  that  took  place  during  the 
Evaluation.  

Concerning  the  quantitative  indicators 
the  main  ones  used  was  statistical  data 
from various sources and studies.  

The provisions of the ARO Council 
Decision address the needs existing 
in  relation  to  the  facilitation  of 
of 
mutual 
information 
cross-border 
cooperation  

exchange 

trust, 

and 

2.  What  have  been 
the (quantitative and 
qualitative) effects of 
Council 
Decision 
2007/845/JHA? 

The  creation  of  Asset  Recovery 
Offices 
in  all  Member  States 
through the ARO Council Decision 
has increased the number of cross-
border cases traced and identified  

For  replying  the  evaluation  questions  a 
number  of  qualitative  and  quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main  one  used  was  the  needs  and 
perceptions  provided  by  the  public  and 

161 

Primary  and  Secondary 
Data Sources 

  Public consultation 
  Stakeholders’ 

consultation 

  Europol’s  number  of 
info 

cross-border 
exchanges  

  Europol SOCTA reports 

  Public consultation 
  Stakeholders’ 

consultation 

  Europol’s  number  of 
info 

cross-border 
exchanges 

  Europol SOCTA reports 

  Public consultation 
  Stakeholders’ 

consultation 

  Europol’s  number  of 
info 

cross-border 
exchanges 

  Europol SOCTA reports 
  Study “Asset recovery 
and confiscation: what 
works and what doesn’t 
work”.   
  Number 

SIENA 

exchanges 

  Europol’s  data  on  Asset 

 
 
 
 
 
  
 
 
 
 
Question 

Judgment criteria 

Indicators 

The  creation  of  Asset  Recovery 
Offices 
in  all  Member  States 
through the ARO Council Decision 
has 
communication 
between  Asset  Recovery  Offices 
through 
of 
information and best practices  

facilitated 

exchange 

the 

3.  To  what  extent 
were  the  effects  of 
Council 
Decision 
2007/845/JHA 
achieved 
at 
reasonable cost? 

a 

The  costs  associated  with  setting 
up  Asset  Recovery  Offices  and 
their  cooperation  and 
ensuring 
are 
information 
of 
exchange 
proportionate 
results 
the 
to 
achieved in terms of asset tracing 

mostly of the relevant stakeholders in the 
consultations  that  took  place  during  the 
Evaluation.  

Concerning  the  quantitative  indicators 
the  main  ones  used  was  statistical  data 
from various sources and studies.  

For  replying  the  evaluation  questions  a 
number  of  qualitative  and  quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main  one  used  was  the  needs  and 
perceptions  provided  by  the  public  and 
mostly of the relevant stakeholders in the 
consultations  that  took  place  during  the 
Evaluation.  

Concerning  the  quantitative  indicators 
the  main  ones  used  was  statistical  data 
from various sources and studies. 

162 

Primary  and  Secondary 
Data Sources 

Recovery Offices  
  Public consultation 
  Stakeholders’ 

consultation 

  Study “Asset recovery 
and confiscation: what 
works and what doesn’t 
work”.   
  Number 

SIENA 

exchanges 

  Europol’s  data  on  Asset 
Recovery Offices  
  Public consultation 
  Stakeholders’ 

consultation 

  Study “Asset recovery 
and confiscation: what 
works and what doesn’t 
work”.   
  Number 

SIENA 

exchanges 

 

  Europol’s  data  on  Asset 
Recovery Offices  
 “Study  to  support  the 
preparation of an Impact 
Assessment 
on  EU 
initiatives  on 
policy 
asset 
and 
recovery 
confiscation’”  
  Stakeholders’ 

consultation 

  Public consultation 

 
 
 
 
  
Question 

Judgment criteria 

Indicators 

Additional resources were required 
to  put  in  place  Asset  Recovery 
Offices 

Primary  and  Secondary 
Data Sources 

  Study “Asset recovery 
and confiscation: what 
works and what doesn’t 
work”.   
  Stakeholders’ 

consultation 

  Public consultation 

4. 
the 
Were 
provisions  laid  down 
in  Council  Decision 
2007/845/JHA 
coherent  with  other 
relevant EU policies?  

The provisions of the ARO Council 
Decision 
aligned  with 
legislation adopted at EU level   

are 

5.  Without 
the 
adoption  of  Council 
Decision 
2007/845/JHA, 
would  it  have  been 
easier  or  harder  for 
EU  Member  States 
to  tackle  serious  and 
organised 
crime 
individually? 

The  ARO  Council  Decision 
provided  added  value  to  Member 
States  in  the  fight  against  serious 
and organised crime 

For replying the evaluation questions a 
number of qualitative and quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main  one  used  was  the  needs  and 
perceptions  provided  by  the  public  and 
mostly of the relevant stakeholders in the 
consultations  that  took  place  during  the 
Evaluation.  

Concerning  the  quantitative  indicators 
the  main  ones  used  was  statistical  data 
from various sources and studies. 
For replying the evaluation questions a 
number of qualitative and quantitative 
indicators was used.  

Concerning the qualitative indicators, the 
main one used was the needs and 
perceptions provided by the public and 
mostly of the relevant stakeholders in the 
consultations that took place during the 
Evaluation.  

Concerning the quantitative indicators 

163 

• 

•  Study “Asset recovery and 
confiscation: what works 
and what doesn’t work”.   
the 
 “Study 
preparation  of  an  Impact 
Assessment  on  EU  policy 
initiatives  on  asset  recovery 
and confiscation’”  

support 

to 

•  Stakeholders’ consultation 
•  Public consultation 

  Study “Asset recovery 
and confiscation: what 
works and what doesn’t 
work”.   
  Stakeholders’ 

consultation 

  Public consultation 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Question 

Judgment criteria 

Indicators 

Primary  and  Secondary 
Data Sources 

the main ones used was statistical data 
from various sources and studies. 

164