CELEX: 52012PC0085
Language: en
Date: 2012-03-12
Title: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the freezing and confiscation of proceeds of crime in the European Union

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		52012PC0085
		
			Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the freezing and confiscation of proceeds of crime in the European Union /* COM/2012/085 final - 2012/0036 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM

1.                      
CONTEXT OF THE PROPOSAL
1.1.                
General context

This proposal
for a Directive aims to make it easier for Member States' authorities to
confiscate and recover the profits that criminals make from cross-border
serious and organised crime. It seeks to attack the financial incentive which
drives crime, to protect the licit economy against criminal infiltration
and corruption, and to return criminal profits to public authorities providing
services for citizens. It responds to the current economic context, where a
financial crisis and a slowdown in economic growth creates new opportunities
for criminals, increased vulnerabilities in our economy and financial system,
and new challenges for public authorities to finance growing needs for social
services and assistance.
Organised crime
groups are illegal enterprises designed to generate profit. They engage in a multitude of cross-border criminal
activities - such as drug trafficking, trafficking in human beings, illicit
arms trafficking, and corruption - generating very large earnings.
At global
level, according to United Nations estimates, the total amount of criminal proceeds in 2009 was approximately USD 2.1 trillion, or 3.6%
of global GDP[1]. There are no reliable estimates of the
size of criminal profits in the European Union[2],
but in Italy the proceeds of organised crime laundered in 2011 have been
estimated by the Bank of Italy at € 150 billion. In the United Kingdom in 2006
organised criminal revenue was estimated at £15 billion.
The profits derived from these activities are laundered
and reinvested into licit activities. Organised crime
groups increasingly hide and reinvest assets in Member States other than the
one where the crime is committed[3]. This weakens our ability
to fight cross-border serious and
organised crime in the EU as a whole, and affects the
functioning of the Internal Market by distorting competition with legitimate
businesses and undermining trust in the financial system[4].
Finally, serious and organised crime deprives national governments and the EU
budget of tax revenues.
All Member States should
therefore have in place an efficient system to freeze, manage and confiscate
criminal assets, backed by the necessary institutional setup, financial and
human resources. However, although regulated by EU and
national laws, confiscation of criminal assets remains underdeveloped and
underutilised. The overall
amount recovered from crime in the EU remains modest compared to the estimated
revenues of organised criminal groups[5]. For example, in 2009
confiscated assets amounted to € 185 million in France, £ 154 million in the
United Kingdom, € 50 million in the Netherlands and € 281 million in Germany.
As an effective
tool in the fight against organised and serious crime, confiscation of criminal
assets has been given strategic priority at EU level. The
2009 Stockholm Programme[6] calls
the Member States and the Commission to make the confiscation of criminal
assets more efficient and to strengthen the cooperation between Asset Recovery
Offices.
The Justice and Home Affairs Council Conclusions on confiscation and
asset recovery adopted in June 2010[7] call for a more
coordinated approach between Member States to achieve a more effective and
widespread confiscation of criminal assets. They call, in particular, on the
Commission to consider strengthening the legal framework in order to achieve
more effective regimes for third party confiscation and extended confiscation.
They stress the importance of all phases of the confiscation and asset recovery
process and recommend measures to preserve the value of assets during that
process.
The Commission
Communication "An Internal Security Strategy in Action"[8]
states that the Commission will propose legislation to strengthen the EU legal
framework on confiscation, in particular to allow more third-party confiscation[9]
and extended confiscation, and to facilitate mutual recognition of
non-conviction-based[10] confiscation orders
between Member States.
The European
Parliament adopted in October 2011 an own initiative report on organised crime
which calls the Commission to propose new legislation on confiscation as soon
as possible, in particular rules on the effective use of extended and
non-conviction based confiscation, rules allowing for the confiscation of
assets transferred to third parties and rules concerning the mitigation of the
burden of proof after the conviction of an offender for a serious offence
concerning the origin of assets held by the offender[11].
In its
Communication on the proceeds of crime adopted in 2008[12]
the Commission identified ten strategic priorities for future work and
highlighted shortcomings in the EU legal framework (lack of implementation,
lack of clarity of some provisions, lack of coherence between existing
provisions). 
In this
context, the Commission proposes a Directive laying down minimum rules for
Member States with respect to freezing and confiscation of criminal assets
through direct confiscation, value confiscation, extended confiscation,
non-conviction based confiscation (in limited circumstances), and third-party
confiscation. The adoption of those minimum rules will further harmonise the
Member States' freezing and confiscation regimes, and thus facilitate mutual
trust and effective cross-border cooperation. 
The Commission
will moreover continue to explore and research possible ways to strengthen the
mutual recognition of freezing and confiscation orders, while taking full
account of fundamental rights. Over time, all confiscation and freezing orders
issued by a Member State should be effectively enforced against assets located
in another Member State. To this end, the Commission will continue to encourage
Member States to implement the existing EU mutual recognition legal
instruments. 
This proposal will imply no cost for the EU
budget. It does not concern the budgetary allocation of the product of
confiscation.

1.2.                
Existing Community provisions in this area 

The current EU legal framework on the
freezing and confiscation of proceeds of crime consists of four Council
Framework Decisions (FD) and one Council Decision: 
·                        
Framework Decision 2001/500/JHA[13],
which obliges Member States to enable confiscation, to allow value confiscation[14]
where the direct proceeds of crime cannot be seized and to ensure that requests
from other Member States are treated with the same priority as domestic
proceedings; 
·                        
Framework Decision 2005/212/JHA[15],
which harmonises confiscation laws. Ordinary confiscation, including value
confiscation, must be available for all crimes punishable by 1 year
imprisonment. Extended confiscation[16] must be available for
certain serious offences, when "committed within the framework of a
criminal organisation";
·                        
Framework Decision 2003/577/JHA[17],
which provides for mutual recognition of freezing orders; 
·                        
Framework Decision 2006/783/JHA[18],
which provides for the mutual recognition of confiscation orders; and
·                        
Council Decision 2007/845/JHA[19]
on the exchange of information and cooperation between Asset Recovery Offices obliges
Member States to set up or designate national Asset Recovery Offices as
national central contact points which facilitate, through enhanced cooperation,
the fastest possible EU-wide tracing of assets derived from crime. 
These instruments were developed essentially
to fight serious and organised crime. However, apart from the provisions on
extended confiscation, the current EU legal framework on substantive criminal
law applies to the confiscation of the proceeds from any criminal offence
punishable by deprivation of liberty for more than a year. 

1.3.                
Consistency with other policies

The Commission
Work Programme 2011 includes the current proposal as a strategic initiative, as
part of a broader political initiative aimed at protecting the licit economy
from criminal infiltration. That initiative includes measures to address corruption
in the EU[20] and an EU anti-fraud
strategy[21] adopted in June 2011. By
protecting the licit economy, this proposal will contribute to growth and jobs
in Europe and help facilitate sustainable growth in line with the Europe 2020 strategy
[22].

The
anti-corruption package adopted by the Commission in June 2011 established a
reinforced policy approach against corruption in a wide range of internal and
external EU policies and set up a new reporting mechanism for evaluating Member
States' efforts against corruption on a regular basis, starting with 2013. The
Communication on Fighting Corruption in the EU called upon the Member States to
take all necessary steps to ensure the effective detection, prosecution, and a
stable track-record of dissuasive penalties and recovery of criminally acquired
assets in corruption cases. It also stressed the need for a revised EU legal
framework on confiscation and asset recovery to ensure that courts in Member
States are able to effectively confiscate criminal and criminally tainted
assets and to fully recover the corresponding values, including in cases
involving corruption. 
In the same
context of protection of licit economy, the Commission launched in 2011 several
initiatives aiming to provide better safeguards for taxpayers' money at EU
level against fraud and corruption. These include a Commission proposal for
amending the legal framework of OLAF[23], the Communication on
the protection of EU financial interests by criminal law and administrative
investigations[24], and the Communication
on a Commission Anti-Fraud Strategy (CAFS). The implementation of CAFS is
carried out in close coordination with the work on the EU Anti-Corruption
Report. The latter will focus on the enforcement of anti-corruption policies in
the Member States, while CAFS focuses on measures for preventing and combating
fraud and corruption, in particular against EU funds.
This proposal
is consistent with the EU anti-money laundering legislation, notably the EU
Third Anti-Money Laundering Directive[25] and the related
initiatives that the Commission, the other EU institutions and the Member
States are undertaking in this area. 

2.                      
Results of the consultations with the interested
parties and the impact assessment
2.1.                
Consultations with the interested parties

The proposal has been prepared in
accordance with the Commission's better regulation principles. Minimum
standards for consultation of interested parties have been met in the
preparation of this proposal and the impact assessment.
Wide consultations and discussions
with experts were carried out in the Camden Asset
Recovery Inter-Agency Network Plenary meeting[26] (September
2010) and in eight meetings of the EU informal Asset Recovery Offices' Platform
between 2009 and 2011. 
No open
Internet consultation was carried out, as confiscation is a specialised topic
where limited expertise is available. Contacts were established with civil
society, notably with organisations promoting legality, the fight against
organised crime and the protection of the victims of crime[27].

Issues relating
to confiscation of criminal assets are also widely discussed between experts.
International practitioners' meetings and strategic seminars on confiscation
and asset recovery[28] are increasingly taking
place. Practitioners consider most of the provisions included in the proposal to
reflect best practices as set out in the recommendations issued by the Camden
Asset Recovery Inter-Agency Network between 2005 and 2010. The provisions are
also in line with the recommendations on confiscation from the OECD Financial
Action Task Force (FATF)[29]. 
The Member
States expressed their position on these issues in 2010 in the JHA Council
Conclusions mentioned above. Although there was broad agreement on most issues,
a few Member States expressed reservations regarding non-conviction based
confiscation. Conversely, on other issues (e.g. third party confiscation, asset
management) Member States agreed that a stronger EU response is necessary.
Defence lawyers
expressed concerns about an increase in extended confiscation, non-conviction
based confiscation and third party confiscation powers due to fundamental
rights concerns (possible limitation of the right to property and right to a
fair trial). As explained below, those concerns are carefully addressed in the
proposal.

2.2.                
Impact assessment

In line with its
better regulation policy, the Commission conducted an
impact assessment of policy alternatives based on an external
study which was completed in March 2011[30].
The external study is based on a broad
consultation of practitioners and experts, including interviews with some
national contact points of the Camden Asset Recovery
Inter-Agency Network. As shown by their position in negotiating the Council
Conclusions mentioned above, Member States generally agree on the need for
stronger EU rules on asset recovery.
The impact assessment also draws on the
conclusions and recommendations of another study, finalised in 2009[31].
It analyses Member States' practices in confiscation, focusing in particular on
what has proven effective at national level with a view to promoting and
exchanging best practices. The study identified several obstacles to effective
confiscation, such as conflicting legal traditions, resulting in the lack of a
common approach to confiscation measures, difficulties in securing and
maintaining assets, lack of resources and training, limited cross-agency
contacts and a lack of coherent and comparable statistics.
Finally, the impact assessment is based on
the implementation reports issued by the Commission on the existing EU legal
acts. The reports on Framework Decisions 2005/212/JHA[32],
2003/577/JHA[33] and 2006/783/JHA[34]
show that Member States have been slow in transposing them and that the
relevant provision have been often implemented in an incomplete or incorrect
way. Only the degree of implementation of Council Decision 2007/845/JHA in the
Member States can be considered as moderately satisfactory[35].

The impact assessment analysed several
policy options representing different degrees of EU-level intervention: a
non-legislative option, a minimal legislative option (correcting deficiencies
in the existing EU legal framework which inhibit it from functioning as
intended) and a maximal legislative option (going beyond the aims of the
existing EU legal framework). Within the latter, two maximal legislative sub-options
are analysed, one with and one without EU level action relating to mutual
recognition of freezing and confiscation orders between Member States. 
The preferred policy option is the
maximal legislative option. This option would considerably enhance the
harmonisation of national rules on confiscation and enforcement, inter alia
by amending existing provisions on extended confiscation, and introducing new
provisions on non-conviction based confiscation and third party confiscation
and introducing more effective rules on the mutual recognition of freezing and
confiscation orders. 
Among other fundamental rights, the impact
assessment analysed the impacts on the protection of personal data, which were
not considered as substantial.
The full impact assessment report is
available at: http://ec.europa.eu/home-affairs/policies/crime/crime_confiscation_en.htm 

2.3.                
Legal basis

This proposal is based on Articles 82(2) and
83(1) of the TFEU. 
The conferral of powers related to
confiscation and asset recovery has changed following the entry into force of
the Lisbon Treaty. As the main legal basis for this proposal is Article 83(1)
TFEU, its scope is limited to the offences in the areas listed in that Article,
namely terrorism, trafficking in human beings and sexual exploitation of women
and children, illicit drug trafficking, money laundering, corruption,
counterfeiting of means of payment, computer crime and organised crime. Illicit
arms trafficking is covered where that crime is committed in the context of
organised crime.
One of the listed areas of crime is
“organised crime”. The proposal will therefore cover other criminal activities
not specifically listed in Article 83(1) where those activities are committed
by participating in a criminal organisation as defined in Framework Decision 2008/841/JHA
on the fight against organised crime[36].
The limitation of the scope of this
proposal to the areas of crime listed in Article 83(1), including crimes
committed by participating in a criminal organisation, implies that existing
provisions of EU rules on confiscation should remain in place in order to maintain
a degree of harmonisation with respect to criminal activities which fall outside
the scope of this Directive. The proposal accordingly maintains in force
Articles 2, 4 and 5 of Framework Decision 2005/212/JHA.

2.4.                
Subsidiarity, proportionality and respect for
fundamental rights.

Under Article 5(3) TEU, the Union shall
only act if the proposed action cannot be sufficiently achieved by the Member
States. Article 67 TFEU foresees that the Union shall provide citizens with a
high level of security by preventing and combating crime. Confiscating criminal
assets is increasingly recognised as an important tool to combat organised
crime, which is very often transnational in nature and thus needs to be tackled
on a common basis. The EU is therefore better placed
than individual Member States to regulate freezing and confiscation of criminal
assets.
The assets of organised criminal groups are
increasingly hidden and invested outside their home country (often in several
countries)[37]. This double
cross-border dimension (of organised crime activities and their investments)
further justifies EU action to target the assets of organised criminal groups.
All provisions fully respect the principle
of proportionality, and fundamental rights, including the right to property,
the presumption of innocence and
the right of defence, the right to a fair trial, the right
to a fair and public hearing within a reasonable time, the right to an effective judicial
remedy before a court and the right to be informed on how to exercise it, the right to respect for private and family
life, the right to protection of personal data, the right not to be tried or
punished twice in criminal proceedings for the same criminal offence and the
principles of legality and proportionality of criminal offences. 
In particular, the introduction of
harmonised non-conviction based confiscation provisions is foreseen only for
very limited circumstances, i.e. where the defendant cannot be prosecuted due
to death, illness or flight. Extended confiscation is allowed only to the
extent that a court finds, based on specific facts,
that a person convicted of an offence is in possession of assets which are
substantially more probable to be derived from other similar criminal
activities than from other activities. The convicted person is given an effective possibility of rebutting such specific facts. Moreover,
the extended powers of confiscation cannot be applied to the alleged proceeds
of criminal activities for which the affected person has been acquitted in a
previous trial, or in other cases where the ne bis in idem principle
applies. Third party confiscation is allowed only under specific conditions,
i.e. where the acquiring third party paid an amount lower than market value and
should have suspected that the assets are proceeds of crime, and after an
assesment showing that confiscation of assets directly from the person who
transferred them is unlikely to succeed. Finally, specific safeguards and
judicial remedies are included in the proposal in order to ensure an equal
level of protection and respect for fundamental rights. These include the right
to be informed about the proceedings, the right to be represented by a lawyer,
the obligation to communicate any decision affecting property as soon as
possible and to have an effective possibility to appeal against such decision.
These specific remedies are foreseen not only for accused or suspected person
but also for other persons in the context of third party confiscation.
Although it has avoided ruling on the
principled question of the compatibility of non-conviction based and extended
confiscation regimes with the European Convention on Human Rights, the European
Court on Human Rights (ECtHR) has rendered several decisions, upholding their application
in particular cases. National non-conviction based procedures involving reversals
of the burden of proof on the issue of the legitimacy of assets (which are more
far-reaching than the provisions in this Directive) have been upheld by the ECtHR
in specific cases, so long as they were applied fairly in the particular case
and with adequate safeguards in place for the affected person. For example an
application of the Italian legislation was held to be a proportionate
restriction on fundamental rights in as much as it constitutes a “necessary
weapon” in the fight against the Mafia[38]. In another
case an application of the United Kingdom civil confiscation regime was found
not to violate the ECHR[39]. 

2.5.                
Choice of instruments

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

2.6.                
Specific provisions 

- Objective (Article 1)
This provision clarifies that the Directive
provides only minimum rules (national legislation can be more far-reaching) and
that it concerns confiscation of proceeds and instrumentalities in criminal
matters.
- Definitions (Article 2) 
Most definitions are taken from previous EU
Framework Decisions or from international conventions. The definition of
“proceeds” has been extended as compared to the definition set out in Framework
Decision 2005/212/JHA in order to include the
possibility of confiscating all valuable benefits resulting from the proceeds
of crime, including indirect proceeds.
The definition of "criminal offence"
cross-refers to precise definitions in the areas of crime listed in Article
83(1) TFEU as set out in existing EU legislation. 
- Confiscation (Article 3)
This provision incorporates (part of)
Article 2 of Framework Decision 2005/212/JHA and (part of) Article 3 of Framework Decision 2001/500/JHA. It requires
Member States to enable the confiscation of instrumentalities and proceeds of
crime following a final conviction and to enable the confiscation of property
of equivalent value to the proceeds of crime. 
- Extended powers of confiscation
(Article 4)
Extended confiscation signifies the ability
to confiscate assets which go beyond the direct proceeds of a crime. A criminal
conviction may be followed by the (extended) confiscation not only of assets
associated with the specific crime, but of additional assets which the court
determines are the proceeds of other similar crimes. 
Extended confiscation powers are already
provided for in the EU legislation. Framework Decision
2005/212/JHA obliges Member States to allow the confiscation of assets belonging
directly or indirectly to persons convicted of certain serious crimes (related
to organised crime and terrorism activities). However, this Framework Decision
establishes alternative minimum set of rules for extended confiscation, leaving
Member States free to apply one, two or all three options. The Commission
implementation report showed that these provisions are unclear and led to
piecemeal transposition. Moreover, the alternative options for extended
confiscation have restricted the scope for mutual recognition of confiscation
orders. The authorities in one Member State will execute confiscation orders
issued by another Member State only if these are based on the same alternative options
applied in that Member State. As a result, the mutual
recognition of orders based on extended confiscation is problematic.
This proposal introduces extended
confiscation for the crimes listed in Article 83(1) TFEU as set out in existing
Union legislation. It also streamlines the existing regime of alternative options for extended confiscation, by
providing for a single minimum standard. Extended confiscation can take place where a court finds, based on
specific facts, that a person convicted of an offence covered by this Directive
is in possession of assets which are substantially more probable to be derived
from other criminal activities of similar nature or gravity than from any other
activities. Extended confiscation is excluded where the
similar criminal activities could not be the subject of criminal proceedings
due to prescription under national criminal law. The
proposal also excludes from confiscation the proceeds
of alleged criminal activities for which the affected person has been finally
acquitted in a previous trial (thereby upholding the
presumption of innocence protected under Article 48 of the Charter of
Fundamental Rights) or other situations where where the
ne bis in idem principle applies. 
- Non-conviction based confiscation
(Article 5)
This provision introduces provisions on
non-conviction based confiscation in limited circumstances, with a view to
addressing cases where criminal prosecution cannot be exercised. It accordingly concerns confiscation
in relation to a criminal offence, but it allows
Member States to choose whether confiscation should be imposed by criminal
and/or civil/administrative courts. Non-conviction based procedures allow to freeze and confiscate an
asset without a prior conviction of its owner in a criminal court. 
In order to meet the requirement of proportionality,
the proposal would not introduce non-conviction based
confiscation in all cases, but makes it possible only in circumstances where a
criminal conviction cannot be obtained because the suspect has died, is
permanently ill or when his flight or illness prevents
effective prosecution within a reasonable time and poses the risk that it could
be barred by statutory limitations. 
This provision mirrors the provisions of
the United Nations Convention against Corruption. In order to facilitate
international cooperation in confiscation, the Convention encourages the States
parties to consider taking the necessary measures to allow confiscation of the
proceeds of corruption without a criminal conviction in cases in which the
offender cannot be prosecuted by reason of death, flight or absence or in other
appropriate cases (Art. 54, paragraph 1, letter c). It also draws on the work
of the OECD Financial Action Task Force (FATF), which encourages its member
countries to consider adopting measures allowing the proceeds of crime or
instrumentalities to be confiscated without requiring a criminal conviction, or
requiring an offender to demonstrate the lawful origin of the property alleged
to be liable to confiscation (Recommendation no. 3). This provision further draws
on the views expressed by the G8 Lyon-Roma Group in a report emphasizing that,
while in principle conviction based confiscation should be pursued, there are
instances where criminal prosecution is not possible due to the defendant being
dead or having fled, to a lack of sufficient evidence necessary to start a
criminal prosecution, or to other technical reasons[40].
The introduction of provisions on confiscation without a criminal
conviction has been supported also by practitioners gathered in the Camden Asset Recovery Inter-Agency Network and
the Asset Recovery Offices' Platform. 
- Third party confiscation (Article 6)
Criminals often transfer their assets to
knowing third parties as soon as they come under investigation, in order to
avoid confiscation. Third party confiscation involves the confiscation of
assets that have been transferred by an investigated or convicted person to
third parties. The Member States' national provisions on third party
confiscation are diverging. This hampers the mutual recognition of freezing and
confiscation orders on assets transferred to a third party. 
In order to meet the requirements of proportionality
and protect the position of a third party acquiring property in good faith, the proposal does not introduce minimum harmonisation provisions on third party confiscation in all cases. This provision
requires third party confiscation to be available for the
proceeds of crime or other property of the defendant received for a price lower
than market value and that a reasonable person in the position of the third
party would suspect to be derived from crime or to be transferred in order to
circumvent the application of confiscation measures. It clarifies that the
reasonable-person-test must be based on concrete facts and circumstances to prevent
arbitrary decisions. Moreover, third party
confiscation should be possible only following an assessment, based on specific
facts, that the confiscation of property of the convicted, suspected or accused
person is unlikely to succeed, or in situations where unique objects must be
restored to their rightful owner.
- Freezing (Article 7)
The first paragraph of this provision
requires Member States to enable the freezing of property or instrumentalities in
danger of being dissipated, hidden or transferred out of the jurisdiction in
view of possible later confiscation. It clarifies that such measures should be
ordered by a court. 
The introduction of the possibility to use
freezing powers in urgent cases in order to prevent asset dissipation in
situations where waiting for an order issued by a court would jeopardize the possibilities
of freezing is a longstanding priority concern of prosecutors and law
enforcement agencies. The second paragraph of this Article requires Member States to have in place measures to ensure that assets in
danger of being dissipated, hidden or transferred out of their jurisdiction can
be frozen immediately by the competent authorities, prior to seeking a court
order or pending its request. 
- Safeguards (Article 8)
According to the jurisprudence of the
European Court of Human Rights and the Charter of Fundamental Rights of the
European Union, fundamental rights such as the right to property are not
absolute. They can legitimately be subject to restrictions provided these
restrictions are provided for by law and - subject to the principle of
proportionality - are necessary and genuinely meet objectives of general
interest or the need to protect the rights and freedoms of others, as in the
prevention of organised crime. 
Article 47 of the EU Charter of Fundamental
Rights guarantees the right to an effective remedy and the right to a fair
trial. Inasmuch as freezing or confiscation orders interfere with the right to
property or other fundamental rights, they must be capable of challenge by
affected parties under the conditions set by this Article. 
The existing EU legislation (e.g. Article 4
of Framework Decision 2005/212/JHA) provides that Member States should ensure
that adequate legal remedies for the affected persons exist in national
legislation. 
With a view to fully comply with the
Charter of Fundamental Rights, this Article introduces minimum safeguards at EU
level. These aim at guaranteeing the respect of the presumption of innocence,
the right to a fair trial (including the ne bis in idem principle), the
existence of effective judicial remedies before a court and the right to be
informed on how to exercise such remedies. 
- Determination of the extent of the
confiscation and effective execution (Article 9)
Persons suspected to belong to criminal organisations
have proven to be successful in hiding their assets, often with the benefit of
advice from skilled professionals. The investigations on assets in view of possible later confiscation
are generally lengthy and need to be carried out within the timeframe of the
corresponding criminal procedures. 
In case a confiscation order was issued, no
property or insufficient property was discovered and the confiscation order
could not be executed, this Article requires Member States to allow financial
investigations on the person's assets to be pursued to the extent necessary to
fully execute such order. This provision addresses the problem of the
foreclosure of confiscation activities at the end of the criminal procedure and
allows unexecuted or partially executed confiscation orders to apply against
previously hidden assets which have "resurfaced" in the meantime,
also at a date when criminal proceedings are finalised. 
- Management of frozen property (Article
10)
This provision intends to facilitate the
management of property frozen in view of possible later confiscation. It
requires Member States to introduce measures aimed at ensuring an adequate
management of such property, notably by granting powers to realise frozen
property, at least where it is liable to decline in value or become uneconomical
to maintain.
- Effectiveness and reporting
obligations (Article 11)
This provision introduces reporting
obligations for Member States, which would help generate statistics to be used
for evaluation purposes.
2012/0036 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on the freezing and confiscation of
proceeds of crime in the European Union 
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning
of the European Union, and in particular Article 82(2) and Article 83(1) thereof,

Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the
European Economic and Social Committee[41], 
Having regard to the opinion of the
Committee of the Regions[42],

Acting in accordance with the ordinary
legislative procedure,
Whereas: 
(1)              
The main motive for cross-border organised crime
is financial gain. In order to be effective, law enforcement and judicial
authorities should be given the means to trace, freeze, manage and confiscate
the proceeds of crime.
(2)              
Organised criminal groups operate without
borders and increasingly acquire assets in other Member States and in third
countries. There is an increasing need for effective international law
enforcement cooperation on asset recovery and mutual legal assistance.
(3)              
Although existing statistics are limited, the
amounts recovered from criminal assets in the Union seem insufficient compared
to the estimated proceeds of crime. Studies have shown that, although regulated
by EU legislation and national laws, confiscation procedures remain
underutilised. 
(4)              
The Stockholm Programme[43]
and the Justice and Home Affairs Council Conclusions on confiscation and asset
recovery adopted in June 2010 emphasise the importance of a more effective
identification, confiscation and re-use of criminal assets. 
(5)              
The current Union legal framework on freezing,
seizure and confiscation of assets consists of Council Framework Decision
2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing,
freezing, seizing and confiscation of instrumentalities and the proceeds of
crime[44]; Council Framework
Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of
orders freezing property or evidence[45]; Council Framework
Decision 2005/212/JHA of 24 February 2005 on confiscation of crime-related
proceeds, instrumentalities and property[46]; Council
Framework Decision 2006/783/JHA of 6 October 2006 on the application of the
principle of mutual recognition to confiscation orders[47].
(6)              
The Commission implementation reports on
Framework Decisions 2005/212/JHA, 2003/577/JHA and 2006/783/JHA show that
existing regimes for extended confiscation and for the mutual recognition of
freezing and confiscation orders are not fully effective. Confiscation is
hindered as a result of differences between Member States' legislation.
(7)              
This Directive aims to amend and expand the
provisions of Framework Decisions 2001/500/JHA and 2005/212/JHA. Those Framework
Decisions should be partially replaced in relation to Member States
participating in the adoption of this Directive.
(8)              
There is a need to broaden the existing concept
of proceeds to include the direct proceeds from criminal activity and all
indirect benefits, including subsequent reinvestment or transformation of
direct proceeds, the value of any liabilities avoided and any valuable
benefits. 
(9)              
Confiscation of instrumentalities and proceeds
following a final decision of a court and of property of equivalent value to
those proceeds should therefore refer to this broadened concept for the
criminal offences covered by this Directive. Framework Decision 2001/500/JHA required
Member States to enable the confiscation of instrumentalities and proceeds of
crime following a final conviction and to enable the confiscation of property
of equivalent value to the proceeds of crime. Such obligations should be
maintained for the criminal offences not covered by this Directive.
(10)          
Criminal groups engage in a wide range of
criminal activities. In order to effectively tackle organised criminal
activities there may be situations where it is appropriate that a criminal
conviction is followed by the confiscation not only of property associated with
a specific crime, but also of additional property which the court determines
are the proceeds of other crimes. This approach is referred to as extended
confiscation. Framework Decision 2005/212/JHA provided for three different sets
of minimum requirements that Member States could choose in order to apply extended
confiscation. As a result, in the process of transposition, Member States have
chosen different options which resulted in divergent concepts of extended
confiscation in national jurisdictions. That divergence hampers cross-border
cooperation relevant for confiscation cases. It is therefore necessary to
further harmonise the provisions on extended confiscation by setting a single
minimum standard. Extended confiscation should apply when a national court,
based on specific facts such as those related to the nature of the criminal
offence, the legal income of a convicted person, the difference between the
financial situation and the standard of living of that person or other facts, finds
it substantially more probable that the property in question has been derived
from other criminal offences, of similar nature or
gravity as the criminal offence for which the person is convicted, than from other activities.
(11)          
In accordance with the principle of ne bis in
idem it is appropriate to exclude from extended confiscation
the proceeds of alleged criminal activities for which
the affected person has been finally acquitted in a previous trial or in other
cases where the ne bis in idem principle applies. Extended confiscation
should also be excluded where the similar criminal activities could not be the
subject of criminal proceedings due to prescription under national criminal
law. 
(12)          
The issuance of confiscation orders generally
requires a criminal conviction. In some cases, even where a criminal conviction
cannot be achieved, it should still be possible to confiscate assets in order
to disrupt criminal activities and ensure that profits resulting from criminal
activities are not reinvested into the licit economy. Some Member States allow
confiscation where there is insufficient evidence for a criminal prosecution,
if a court considers on the balance of probabilities that the property is of
illicit origin, and also in situations where a suspect or accused person
becomes a fugitive to avoid prosecution, is unable to stand trial for other
reasons or died before the end of criminal proceedings. This is referred to as
non-conviction based confiscation. Provision should be made to enable non-conviction based confiscation in at least the latter, limited,
circumstances in all Member States. This is in line
with Article 54.1.c) of the United Nations Convention against Corruption, which
provides that each State Party is to consider taking the necessary measures to
allow confiscation of illicitly acquired property without a criminal conviction,
including in cases in which the offender cannot be prosecuted by reason of
death, flight or absence.
(13)          
The practice by a suspected or accused person of
transferring property to a knowing third party with a view to avoiding
confiscation is common and increasingly widespread. The current Union legal
framework does not contain binding rules on the confiscation of property transferred
to third parties. Therefore it is becoming increasingly necessary to allow for confiscation
of property transferred to third parties, which should normally take place when
an accused person does not have property that can be confiscated. It is
appropriate to provide for third party confiscation, under certain conditions,
following an assessment, based on specific facts, that the confiscation of
property of the convicted, suspected or accused person is unlikely to succeed,
or in situations where unique objects must be restored to their rightful owner.
Furthermore, to protect the interests of bona fide third parties, such
confiscation should only be possible if the third party knew or should have
known that property was the proceeds of crime or was transferred in order to
avoid confiscation and was given for free or transferred in exchange for an
amount lower than its market value.
(14)          
Provisional measures should be provided for in
order to ensure that property remains available with a view to possible later
confiscation. Such freezing measures should be ordered by a court. In order to
prevent the dissipation of property before a freezing order can be issued by a
court, the competent authorities in the Member States should be empowered to immediately
prohibit the transfer, conversion, disposition or movement of property in
danger of being hidden or transferred out of the jurisdiction, on a request for
a freezing order with a view of possible later confiscation, pending the
determination by a court. 
(15)          
Suspected or accused persons often hide property
throughout the entire duration of criminal proceedings. As a result confiscation
orders cannot be executed, leaving those subject to confiscations orders to benefit
from their property once they have served their sentence. It is accordingly necessary
to enable the determination of the precise extent of the property to be
confiscated even after a final conviction for a criminal offence, in order to
permit the full execution of confiscation orders when no property or
insufficient property was initially discovered and the confiscation order
remains unexecuted. Given the limitation of the right to property by freezing
orders, such provisional measures should not be maintained longer than
necessary to preserve the availability of the property with a view of possible
future confiscation. This may require a regular review by the court in order to
ensure that their purpose of preventing the dissipation of property remains
valid. 
(16)          
Property frozen with a view to later
confiscation should be managed adequately in order not to lose its economic
value. Member States should take the necessary measures including sale or
transfer of the property to minimise such losses. Member States should take
relevant measures, such as the establishment of national centralised Asset
Management Offices or equivalent mechanisms (for example where such functions
are decentralised), in order to properly manage the assets frozen before
confiscation and preserve their value, pending judicial determination. 
(17)          
Reliable data sources on the freezing and
confiscation of the proceeds of crime are scarce. In order to allow for the evaluation of this Directive, it is necessary to collect a comparable minimum set of appropriate
statistical data on asset tracing, judicial and asset disposal activities. 
(18)          
This Directive respects the fundamental rights and observes the principles
recognised by the Charter of Fundamental Rights of the European Union, and
notably the right to property, the right to respect for private and family
life, the right to protection of personal data, the right to an effective
remedy and to a fair trial, the presumption of innocence and the right of
defence, the right not to be tried or punished twice in criminal proceedings
for the same criminal offence and the principles of legality and proportionality
of criminal offences. This Directive has to be implemented in accordance with
these rights and principles. 
(19)          
The measures provided for in this Directive
affect substantially the rights of persons, not only of suspected or accused
persons but also of third parties who are not being prosecuted. It is therefore
necessary to provide for specific safeguards and judicial remedies in order to guarantee
the preservation of their fundamental rights in the implementation of the provisions
of this Directive. 
(20)          
Since the objective of this Directive, namely facilitating
confiscation of property in criminal matters, cannot be sufficiently achieved
by the Member States and can be better achieved at Union level, the Union may
adopt measures, in accordance with the principle of subsidiarity as set out in
Article 5 of the Treaty on European Union. In accordance with the principle of
proportionality, as set out in that Article, this Directive
does not go beyond what is
necessary in order to achieve that objective. 
(21)          
In accordance with Articles 1 and 2 of the
Protocol on the position of the United Kingdom and Ireland in respect of the
area of freedom, security and justice, annexed to the Treaty on European Union
and to the Treaty on the Functioning of the European Union, [the United Kingdom and Ireland has notified its wish to take part in
the adoption and application of this Directive] or [and without prejudice to Article 4 of that Protocol, the United
Kingdom and Ireland is not taking part in the adoption of this Directive and is
not bound by it or subject to its application.]
(22)          
In accordance with Articles 1 and 2 of the
Protocol on the position of Denmark annexed to the Treaty on European Union and
to the Treaty on the Functioning of the European Union, Denmark is not taking
part in the adoption of this Directive and is not bound by it or subject to its
application.
HAVE ADOPTED THIS DIRECTIVE:

TITLE I
OBJECTIVE
AND SCOPE
Article 1
Subject
matter 
This Directive establishes minimum rules on
the freezing of property with a view to possible later confiscation and on the
confiscation of property in criminal matters. 
Article 2
Definitions

For the purpose of this Directive, the
following definitions shall apply: 
(1)                 
‘proceeds’ means any economic advantage derived
from a criminal offence; it may consist of any form of property and includes
any subsequent reinvestment or transformation of direct proceeds by a suspected
or accused person and any valuable benefits; 
(2)                   
‘property’ means property of any description,
whether corporeal or incorporeal, movable or immovable, and legal documents or
instruments evidencing title or interest in such property; 
(3)                   
‘instrumentalities’ means any property used or
intended to be used, in any manner, wholly or in part, to commit a criminal
offence or criminal offences; 
(4)                   
‘confiscation’ means a penalty or a measure,
ordered by a court following proceedings in relation to a criminal offence
resulting in the final deprivation of property;
(5)                   
‘freezing’ means the temporary prohibition of
the transfer, destruction, conversion, disposition or movement of property or
temporarily assuming custody or control of property;
(6)                   
'criminal offence' means a criminal offence
covered by: 
(a)         
the Convention drawn up on the basis of Article
K.3 (2) (c) of the Treaty of the European Union on the fight against corruption
involving officials of the European Communities or officials of the Member
States of the European Union[48],
(b)         
Council Framework Decision 2000/383/JHA of 29
May 2000 on increasing protection by criminal penalties and other sanctions
against counterfeiting in connection with the introduction of the euro[49],

(c)         
Council Framework Decision 2001/413/JHA of 28
May 2001 on combating fraud and counterfeiting on non-cash means of payment[50],

(d)         
Council Framework Decision 2002/475/JHA of 13
June 2002 on combating terrorism[51], as amended by Council
Framework Decision 2008/919/JHA of 9 December 2008[52],
(e)         
Council Framework Decision 2001/500/JHA of 26
June 2001 on money laundering, the identification, tracing, freezing, seizing
and confiscation of instrumentalities and the proceeds of crime[53],

(f)           
Council Framework Decision 2003/568/JHA on
combating corruption in the private sector[54],
(g)         
Council Framework Decision 2004/757/JHA of 25
October 2004 laying down minimum provisions on the constituent elements of
criminal acts and penalties in the field of illicit drug trafficking[55],

(h)         
Council Framework Decision 2005/222/JHA of 24
February 2005 on attacks against information systems[56],
(i)          
Council Framework Decision 2008/841/JHA
of 24 October 2008 on the fight against organised crime[57],

(j)           
Directive 2011/36/EU of 5 April 2011 on
preventing and combating trafficking in human beings and protecting its
victims, and replacing Council Framework Decision 2002/629/JHA[58],

(k)         
Directive 2011/92/EU of 13 December 2011 on
combating the sexual abuse and sexual exploitation of children and child
pornography and replacing Council Framework Decision 2004/68/JHA[59].

TITLE II
FREEZING
AND CONFISCATION 
Article 3
Conviction
based confiscation
1.                      
Each Member State shall take the necessary
measures to enable it to confiscate, either wholly or in part,
instrumentalities and proceeds following a final conviction for a criminal
offence.
2.                      
Each Member State shall take the necessary
measures to enable it to confiscate property the value of which corresponds to the
proceeds following a final conviction for a criminal offence. 
Article 4 
Extended
powers of confiscation
1.                      
Each Member State shall adopt the necessary
measures to enable it to confiscate, either wholly or in part, property
belonging to a person convicted of a criminal offence where, based on specific
facts, a court finds it substantially more probable that the property in
question has been derived by the convicted person from similar criminal
activities than from other activities. 
2.                      
Confiscation shall be excluded where the similar
criminal activities referred to in paragraph 1 
(a)         
could not be the subject of criminal proceedings
due to prescription under national criminal law; or 
(b)         
have already been subject to criminal
proceedings which resulted in the final acquittal of the person or in other
cases where the ne bis in idem principle applies. 
Article 5
Non-conviction
based confiscation 
Each Member State shall take the necessary
measures to enable it to confiscate proceeds and instrumentalities without a
criminal conviction, following proceedings which could, if the suspected or
accused person had been able to stand trial, have led to a criminal conviction,
where: 
(a)         
the death or permanent illness of the suspected
or accused person prevents any further prosecution; or
(b)        
the illness or flight from prosecution or
sentencing of the suspected or accused person prevents effective prosecution
within a reasonable time, and poses the serious risk that it could be barred by
statutory limitations.
Article 6
Confiscation
from a third party
1.                      
Each Member State shall take the necessary
measures to enable it to confiscate: 
(a)         
proceeds which were transferred to third parties
by a convicted person or on his behalf, or by suspected or accused persons
under the circumstances of Article 5, or 
(b)         
other property of the convicted person, which
was transferred to third parties in order to avoid confiscation of property the
value of which corresponds to the proceeds.
2.                      
The confiscation of proceeds or property
referred to in paragraph 1 shall be possible where the property is subject to
restitution or where
(a)         
an assessment, based on specific facts relating
to the convicted, suspected or accused person, indicates that the confiscation
of property of the convicted person, or of the suspected or accused person
under the circumstances of Article 5, is unlikely to succeed, and 
(b)         
the proceeds or property were transferred for
free or in exchange for an amount lower than their market value when the third
party: 
(i) in the case of proceeds, knew about their
illicit origin, or, in the absence of such knowledge, a reasonable person in
its position would have suspected that their origin was illicit, based on
concrete facts and circumstances; 
(ii) in the case of other property, knew that
it was transferred in order to avoid confiscation of property the value of
which corresponds to the proceeds or, in the absence of such knowledge, a
reasonable person in its position would have suspected that it was transferred
to avoid such confiscation, based on concrete facts and circumstances.
Article 7
Freezing

1.                      
Each Member State shall take the necessary
measures to enable it to freeze property in danger of being dissipated, hidden
or transferred out of the jurisdiction with a view to possible later
confiscation. Such measures shall be ordered by a court. 
2.                      
Each Member State shall take the necessary
measures to enable its competent authorities to immediately freeze property
when there is a high risk of dissipation, hiding or transfer of that property
before a court's decision. Such measures shall be confirmed by a court as soon
as possible. 
Article 8
Safeguards

1.                      
Each Member State shall take the necessary
measures to ensure that the persons affected by the measures provided for under
this Directive have the right to an effective remedy and that suspects have the
right to a fair trial, in order to preserve their rights. 
2.                      
Each Member State shall take the necessary
measures to ensure that reasons are given for any decision to freeze property, that
the decision is communicated to the person affected as soon as possible after
its execution and that it remains in force only for as long as it is necessary
to preserve the property with a view to future confiscation. Each Member State shall
provide for the effective possibility to appeal against the decision to freeze
by the persons whose property is affected before a court at any time before a
decision on confiscation is taken. Frozen property which is not subsequently
confiscated shall be returned immediately to its legitimate owner. 
3.                      
Each Member State shall take the necessary
measures to ensure that reasons are given for any decision to confiscate and that
the decision is communicated to the person affected. Each Member State shall
provide for the effective possibility to appeal against the decision to
confiscate before a court by the persons whose property is affected. 
4.                      
In proceedings referred to in Article 4, the
suspected or accused person shall have an effective possibility to contest the
probability on the basis of which the property concerned is considered to be proceeds. 
5.                      
In the cases referred to in Article 5, the
person whose property is affected by the decision to confiscate shall be
represented by a lawyer throughout the proceedings in order to pursue the
rights of the defence of the person relating to the establishment of the
criminal offence and to the determination of the proceeds and instrumentalities.
6.                      
Where the person whose property is affected is a
third party, the person or the person’s lawyer shall be informed of the
proceedings that can lead to a decision to confiscate that property and shall
be allowed to participate in those proceedings to the extent necessary to
effectively preserve the person's rights. That person shall have at least the
right to be heard, the right to ask questions and the right to provide evidence
before a final decision on confiscation is taken. 
Article 9
Determination
of the extent of the confiscation and effective execution
Each Member State shall take the necessary
measures to make it possible to determine the precise extent of the property to
be confiscated following a final conviction for a criminal offence or following
proceedings as foreseen in Article 5, that has resulted in a decision to
confiscate, and to allow further measures to be taken to the extent necessary to
effectively execute that decision to confiscate. 
Article 10
Management
of frozen property 
1.                      
Each Member State shall take the necessary
measures, such as the establishment of national centralised offices or
equivalent mechanisms, to ensure the adequate management of property frozen with
a view of possible later confiscation. 
2.                     
Each Member State shall ensure that the measures
referred to in paragraph 1 optimise the economic value of such property, and
shall include the sale or transfer of property which is liable to decline in
value. 
TITLE III
FINAL
PROVISIONS
Article 11
Statistics
Member States shall regularly collect and
maintain comprehensive statistics from the relevant authorities in order to
review the effectiveness of their confiscation systems. The statistics
collected shall be sent to the Commission each year and shall include for all criminal
offences: 
(a)         
the number of freezing orders executed,
(b)         
the
number of confiscation orders executed,
(c)         
the
value of property frozen,
(d)         
the
value of property recovered,
(e)         
the
number of requests for freezing orders to be executed in another Member State,
(f)           
the
number of requests for confiscation orders to be executed in another Member
State,
(g)         
the
value of the property recovered following execution in another Member State,
(h)         
the
value of the property destined to be reused for law enforcement, prevention or social
purposes,
(i)           
the
number of cases where confiscation is ordered in correlation with the number of
convictions for the criminal offences covered by this Directive,
(j)           
the
number of requests for freezing and confiscation orders refused by the courts,
(k)         
the
number of requests for freezing and confiscation orders not upheld following
legal challenges.
Article 12
Transposition
1.                      
Member States shall bring into force the laws,
regulations and administrative provisions necessary to comply with this
Directive by … [two years from the date of adoption]. They shall
forthwith transmit to the Commission the text of those provisions.
When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall
determine how such reference is to be made. 
2.                      
Member States shall communicate to the
Commission the text of the main provisions of national law which they adopt in
the field covered by this Directive.
Article
13
Reporting
The Commission shall, by [three years after
transposition deadline] submit a report to the European Parliament and the
Council, assessing the impact of existing national law on confiscation and
asset recovery, accompanied, if necessary, by adequate proposals.
Article 14
Replacement of Joint Action 98/699/JHA and of Framework Decisions
2001/500/JHA and 2005/212/JHA 
1.                      
Joint Action 98/699/JHA, point (a) of Article 1 and
Articles 3 and 4 of Framework Decision 2001/500/JHA, and Articles 1 and 3 of
Framework Decision 2005/212/JHA, are hereby replaced in relation to Member
States participating in the adoption of this Directive, without prejudice to
the obligations of the Member States relating to the time limit for
transposition of the Framework Decisions into national law.
2.                      
In relation to Member States participating in
the adoption of this Directive, references to the Joint Action and to the
provisions of the Framework Decisions referred to in paragraph 1 shall be
construed as references to this Directive. 
Article 15
Entry into force 
This Directive shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.
Article 16
Addressees
This
Directive is addressed to the Member States in accordance with the Treaties.
Done at Brussels, 
For the European Parliament                       For
the Council
The President                                                 The
President
[1]               United Nations Office on Drugs and Crime,
"Estimating illicit financial flows resulting from drug trafficking and
other transnational organised crime", October 2011.
[2]               More estimates exist on the value of criminal
markets. The global drug trade generated USD 321 billion in 2005 according to
the United Nations. Trafficking in human beings is globally worth USD 42.5
billion per year according to the Council of Europe. The global market in
counterfeit goods was estimated at up to USD 250 billion per year by the OECD.
Corruption in the EU has been estimated to cost as much as 1 % of EU GDP per
year. 
[3]               See Justice and Home Affairs Council Conclusions on
confiscation and asset recovery of June 2010, Council document 7769/3/10. For
similar statements, see the Executive Summary of the EU Organised Crime Threat
Assessment 2011 and the Eurojust Annual Report 2010.
[4]               See also Council Conclusions on Economic Crisis
Prevention and Support for Economic Activity, 23.4.2010 (Council document
7881/10), point 7d.
[5]               For example, in the United Kingdom an official
estimate in 2006 put organised criminal revenue at £15 billion, while in the
same year £125 million were recovered by the State, see Home Office
(2006) cited in the 2010 Europol Organised Crime Threat Assessment. 
[6]               "An open and secure Europe serving and
protecting the citizens", Council document
17024/09, adopted by the European Council on 10/11 December 2009.
[7]               Council document 7769/3/10.
[8]               COM(2010) 673 final of 22.11.2010.
[9]               Third party confiscation
involves the confiscation of assets that have been transferred by an investigated
or convicted person to a third party.
[10]             Non-conviction based procedures
allow the freezing and confiscation of property irrespective of a prior
conviction of its owner in a criminal court.
[11]             European Parliament Report on organised crime in the
European Union, adopted on 25 October 2011, Document A7-0333/2011 [provisional
reference].
[12]             "Proceeds of organised crime - Ensuring that
'crime does not pay'", COM (2008) 766 final of 20.11.2008.
[13]             OJ L 182 of 05.07.2001.
[14]             Value confiscation involves the confiscation of an
amount of money equivalent to the value of the proceeds of a crime.
[15]             OJ L 68/49 of 15.3.2005.
[16]             Extended confiscation involves
the confiscation of assets which go beyond the direct proceeds of a crime so
that there is no need to establish a connection between suspected criminal
assets and a specific criminal conduct.
[17]             OJ L 196/45 of 2.8.2003.
[18]             OJ L 328/59 of 24.11.2006.
[19]             OJ L 332/103 of 18.12.2007.
[20]             COM(2011) 307, 308 and 309 and C(2011) 3673 final of
6.6.2011.
[21]             COM(2011) 376 final of 24.6.2011.
[22]             COM(2010)2020 final of
3.3.2010. See also Council Conclusions on Economic
Crisis Prevention and Support for Economic Activity, 23.4.2010 (Council
document 7881/10), point 7d.
[23]             (COM(2011) 135 final) of 17.3.2011.
[24]             (COM(2011) 293 final) of 26.5.2011.
[25]             Directive 2005/60/EC of 26 October 2005 on the
prevention of the use of the financial system for the purpose of money
laundering and terrorist financing, OJ L 309/15 of 25.11.2005.
[26]             This network (CARIN), supported
by the Commission and by Europol, is an international network of asset recovery
practitioners which includes experts (one law enforcement and one judicial
contact point) from over 50 countries and jurisdictions, including 26 EU Member
States. Its objectives are the exchange of best practices and the improvement
of inter-agency cooperation in cross-border asset recovery matters.
[27]             For example the Commission services held several
bilateral meetings with representatives of the FLARE (Freedom, Legality and
Rights in Europe) Network and their associated networks. 
[28]             For example the Centres of Excellence for Asset
Recovery Training (CEART) Seminar and the Eurojust Strategic Seminar held in
2010.
[29]             Notably Recommendation 4 of the FATF Recommendations as
revised in February 2012. 
[30]             Framework Service Contract No JLS/2010/EVAL/FW/001/A1, Study
for an Impact Assessment on a proposal for a new legal framework on the
confiscation and recovery of criminal assets.
[31]             "Assessing the effectiveness of EU Member States'
practices in the identification, tracing, freezing and confiscation of criminal
assets", available at 
                http://ec.europa.eu/home-affairs/policies/crime/crime_confiscation_en.htm

[32]             Report from the Commission pursuant to Article 6 of the
Council Framework Decision of 24 February 2005 on Confiscation of Crime-related
Proceeds, Instrumentalities and Property (2005/212/JHA), COM(2007) 805 final of
17.12.2007. 
[33]             Report from the Commission based on Article 14 of the
Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the
European Union of orders freezing property or evidence, COM(2008) 885 final of
22.12.2008.
[34]             Report from the Commission pursuant to Article 22 of
the Council Framework Decision 2006/783/JHA of 6 October 2006 on the
application of the principle of mutual recognition to confiscation orders,
COM(2010) 428 final of 23.8.2010. 
[35]             Report from the Commission based on Article 8 of the
Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between
Asset Recovery Offices of the Member States in the field of tracing and
identification of proceeds from, or other property related to, crime, COM(2011)
176 final of 12.4.2011.
[36]             Framework Decision 2008/841/JHA of 24 October 2008 on
the fight against organised crime, OJ L 300/42 of 11.11.2008.
[37]             See references in footnote 2.
[38]             Judgment Raimondo vs Italy of 22 February 1994.
[39]             Judgment Walsh v. Director of the Asset Recovery Agency
(United Kingdom) (2005). 
[40]             Final report of the Italian project on
"Confiscation: Legal issues and international cooperation" developed
within the Criminal Legal Affairs SubGroup (CLASG) of the G8 Roma-Lyon Group. 
[41]             OJ C , , p. .
[42]             OJ C , , p. .
[43]             "An open and secure Europe
serving and protecting the citizens", Council
document 17024/09, adopted by the European Council on 10/11 December 2009.
[44]             OJ L 182, 5.7.2001, p. 1.
[45]             OJ L 196, 2.8.2003, p. 45.
[46]             OJ L 68, 15.3.2005, p. 49.
[47]             OJ L 328, 24.11.2006, p. 59.
[48]             OJ C 195, 25.6.1997, p.2.
[49]             OJ L 140, 14.6.2000, p.1.
[50]             OJ L 149, 2.6.2001, p.1.
[51]             OJ L 164, 22.6.2002, p.3.
[52]             OJ L 330, 9.12.2008, p.21. 
[53]             OJ L 182 of 5.7.2001, p.1.
[54]             OJ L 192, 31.7.2003, p.54.
[55]             OJ L 335, 11.11.2004, p.8.
[56]             OJ L 69, 16.3.2005, p.67.
[57]             OJ L 300, 11.11.2008, p.42.
[58]             OJ L 101, 15.4.2011, p.1.
[59]             OJ L 335, 17.12.2001, p. 1.