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From · opinion parliamentary committee draft · 2023-01-18 JURI-PA-740764 on the proposal for a directive of the European Parliament and of the Council on asset recovery and confiscation

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To · opinion parliamentary committee draft · 2023-01-25 BUDG-PA-739737 on the proposal for a directive of the European Parliament and of the Council on Asset recovery and confiscation

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SHORT JUSTIFICATION

Combatting organised crime on the European Union (EU) level and enabling effective criminal assets confiscation is one of the current legislative term’s priorities. Europol findings show though that Member States’ asset recovery systems are not well equipped to effectively address the complex modus operandi of criminal organisations.

Therefore, we welcome the new measures aiming to reinforce the capacities of national asset recovery offices, to support asset tracing investigations, to guarantee a rapid exchange of information among competent authorities, to facilitate the treatment of criminal assets, to fight the violation of Union restrictive measures and to minimise the costs incurred by competent authorities for the criminal assets management and other measures.

In order to achieve the goals of this Directive, the confiscation of criminal assets must be based on evidence and the Rule of Law and occur rapidly, with best possible cooperation and information exchange among the Member States and with minimum costs to their national budgets. At the same time, the Directive should be more nuanced on the allocation of confiscated assets. As the reintroduction of criminal assets into the legal economy is the ultimate goal of confiscation is, the destination of the recovered assets must be specified. In order to maximise the efficiency of confiscation and reuse of assets, this Budget Committee opinion introduces a series of proposals:

- In light of the current geopolitical context, the scope of the Directive needs to be complemented with further crime types, such as the crime of Russian aggression against Ukraine and associated offences, crimes against cultural heritage, sexual violence, forced prostitution and in applying the full scope of the crimes listed under the EU Environmental Crime Directive.

- Legal entities, such as associations, businesses and NGOs can be used by criminals to commit offences, therefore they should be counted among the instrumentalities under this Directive.

- While it is preferential to ease the financial burden for the Member States by putting the management costs on the beneficial owner or by proceeding with an interlocutory sale, still Member States need to guarantee sufficient budgetary resources to properly manage frozen property in view of the final confiscation, as to limit the cases of state liability for the deterioration in value of the seized property.

- In order for the asset recovery offices and the asset management offices to initiate actions and fulfil their tasks, it is essential that they are equipped with sufficient staff, budgetary, technical and technological resources. Moreover, Member States need to guarantee regular training for relevant staff, in particular on ethics and anti-corruption measures.

- The European Commission should issue specific guidelines and a dedicated IT tool to make sure that the information in the proposed centralised registries of frozen and confiscated property, is always up-to-date, consistent and comprehensive, as well as user-friendly.

- It can be assumed that the crimes considered under this Directive are connected to the EU financial interests, therefore the EPPO should have the same level of access to information, as national competent authorities do, also in view of a potential extension of the EPPO competence to the fight against sanction evasion.

- Confiscated assets stem from criminal activities, which vary in nature and extent across the EU Member States. This variability makes it difficult to anticipate concrete amounts of costs and revenues resulting from confiscation. Making them a new Own Resource to the EU Budget mutualises risks and benefits and brings best European added value. To this end, the Commission would need to make a detailed assessment of the use of resources stemming from criminal offences.

- Where the confiscated assets stem from the crime of Russian aggression on Ukraine and other associated crimes, including the violation of the EU restrictive measures, the monetary value of the assets should serve the goal of building and rebuilding of the infrastructure in Ukraine, as well as the compensation for the victim population.

On April 7, the European Parliament called for the confiscation of Russian assets owned by Russian individuals and entities, frozen as a result of EU restrictive measures, in order to finance Ukraine’s reconstruction. This opinion follows-up on this call and suggests to channel the proceeds through the EU budget as an External Assigned Revenue that would feed into the upcoming Rebuild Ukraine Facility as a tool to finance reconstruction projects in Ukraine.

Such projects shall be prepared in consultation with domestic civil society organisations and shall include concrete deliverables and spending guidelines to guarantee sound financial governance and EU scrutiny. Further, confiscated assets shall provide compensation to the Ukrainian victim population, with the use of a dedicated victims’ claims registry and claims commission.

Such use of confiscated assets will constitute a concrete action of solidarity and justice. It will also help to address the global financial impact of Russia’s aggression, including its indirect consequences for the EU.

AMENDMENTS

The Committee on ~~Legal Affairs~~Budgets calls on the Committee on ~~Legal~~Civil Liberties, Justice and Home Affairs, as the committee responsible, to take into account the following amendments:

Amendment 1

Proposal for a directive

Recital 202

Text proposed by the Commission

Amendment

(20) Confiscation leads to the final deprivation of property. However, preservation of property can be a prerequisite to confiscation and is often essential for the effective enforcement of a confiscation order. Property is preserved by means of freezing. In order to prevent the dissipation of property before a freezing order can be issued, the competent authorities in the Member States, including asset recovery offices, should be empowered to take immediate action in order to secure such property.

(20) Confiscation leads to the final deprivation of property. However, preservation of property can be a prerequisite to confiscation and is often essential for the proper tracing of proceeds and other property directly or indirectly derived from criminal conduct, and for the effective enforcement of a confiscation order. Property is preserved by means of freezing. In order to prevent the dissipation of property before a freezing order can be issued, the competent authorities in the Member States, including asset recovery offices, should be empowered to take immediate action in order to secure such property. In order to take such action with due diligence and without undue delay, those competent authorities should be sufficiently staffed and trained.

(2) The main motive for cross-border organised crime, including high-risk criminal networks, is financial gain. Therefore, to tackle the serious threat posed by organised crime, competent authorities should be given the means to effectively trace and identify, freeze, confiscate and manage the instrumentalities and proceeds of crime and property that stems from criminal activities. The monetary value of such confiscated assets should be reintroduced into legal economy. Where the confiscated assets stem from the crime of Russian aggression on Ukraine and other crimes associated with this aggression, the monetary value of the assets should serve the goal of building and rebuilding of the infrastructure in Ukraine, as well as the compensation for the victim population.

Or. en

Proposal for a directive

Recital 215

Text proposed by the Commission

Amendment

(21) Given the limitation on the right to property imposed by freezing orders, such provisional measures should not be maintained longer than necessary to preserve the availability of the property with a view to possible subsequent confiscation. This may require a review by the national court in order to ensure that the purpose of preventing the dissipation of property remains valid.

(5) Therefore, the existing legal framework should be updated, so as to facilitate and ensure effective asset recovery and confiscation efforts across the Union. To that end, the Directive should lay down minimum rules on tracing and identification, freezing, confiscation and management of property within the framework of proceedings in criminal matters. In this context, proceedings in criminal matters is an autonomous concept of Union law interpreted by the Court of Justice of the European Union, notwithstanding the case law of the European Court of Human Rights. The term covers all types of freezing and confiscation orders issued following proceedings in relation to a criminal offence. It also covers other types of orders issued without a final conviction. Proceedings in criminal matters could also encompass criminal investigations by the police and other law enforcement authorities. It is necessary to reinforce the capacity of competent authorities to deprive criminals of the proceeds from criminal activities. For this purpose, rules should be laid down to strengthen asset tracing and identification, as well as freezing capabilities, to improve management of frozen and confiscated property, to strengthen the instruments to confiscate instrumentalities and proceeds of crime and property derived from criminal activities of criminal organisations, and to improve the overall efficiency of the asset recovery system.

(21) Given the limitation on the right to property imposed by freezing orders, such provisional measures should not be maintained longer than necessary to preserve the availability of the property with a view to possible subsequent confiscation. A review by the national court should be ensured in case a freezing order has been taken by a competent authority other than a judicial authority, in order to ensure that the purpose of preventing the dissipation of property remains valid.

(5) Therefore, the existing legal framework should be updated, so as to facilitate and ensure effective asset recovery and confiscation efforts across the Union, as well as to enable channelling of the confiscated assets into the Union budget in the forms of new own resources and, where the assets stem from the crime of Russian aggression on Ukraine, in the form of external assigned revenue. To that end, the Directive should lay down minimum rules on tracing and identification, freezing, confiscation and management of property within the framework of proceedings in criminal matters. In this context, proceedings in criminal matters is an autonomous concept of Union law interpreted by the Court of Justice of the European Union, notwithstanding the case law of the European Court of Human Rights. The term covers all types of freezing and confiscation orders issued following proceedings in relation to a criminal offence. It also covers other types of orders issued without a final conviction. Proceedings in criminal matters could also encompass criminal investigations by the police and other law enforcement authorities. It is necessary to reinforce the capacity of competent authorities to deprive criminals of the proceeds from criminal activities. For this purpose, rules should be laid down to strengthen asset tracing and identification, as well as freezing capabilities, to improve management of frozen and confiscated property, to strengthen the instruments to confiscate instrumentalities and proceeds of crime and property derived from criminal activities of criminal organisations, and to improve the overall efficiency of the asset recovery system.

Or. en

Proposal for a directive

Recital 226

Text proposed by the Commission

Amendment

(22) Freezing measures should be without prejudice to the possibility for a specific property to be considered evidence throughout the proceedings, provided that it would ultimately be made available for effective execution of the confiscation order. In the context of criminal proceedings, property may also be frozen with a view to its possible subsequent restitution or in order to safeguard compensation for the damage caused by a criminal offence.

(6) Moreover, the adoption of unprecedented and far-reaching Union restrictive measures triggered by the Russian invasion into Ukraine revealed the need to step up efforts to ensure the effective implementation of both sectorial and individual Union restrictive measures across the Union. While not criminal in nature, nor requiring criminal conduct as a pre-condition for their imposition, Union restrictive measures also rely on freezing of funds (i.e. targeted financial sanctions) and sectorial measures, and should thus benefit from strengthened capabilities in the context of identification and tracing of property. For such purpose, rules should be established to enhance the effective identification and tracing of property owned or controlled by persons and entities subject to such restrictive measures, and to promote greater international cooperation of asset recovery offices with their counterparts in third countries. Measures related to freezing and confiscation under this Directive, notably those under Chapters III and IV, remain however limited to situations where property stems from criminal activities, such as the violation of Union restrictive measures. This Directive does not regulate the freezing of funds and economic resources under Union restrictive measures.

(22) Freezing measures should include measures aimed at preserving and optimizing the value of concerned property until its disposal and should be without prejudice to the possibility for a specific property to be considered evidence throughout the proceedings, provided that it would ultimately be made available for effective execution of the confiscation order. In the context of criminal proceedings, property may also be frozen with a view to its possible subsequent restitution or in order to safeguard compensation for the damage caused by a criminal offence, to the victims or to the public concerned.

(6) Moreover, the adoption of unprecedented and far-reaching Union restrictive measures triggered by the Russian invasion into Ukraine revealed the need to step up efforts to ensure the effective implementation of both sectorial and individual Union restrictive measures across the Union. While not criminal in nature, nor requiring criminal conduct as a pre-condition for their imposition, Union restrictive measures also rely on freezing of funds (i.e. targeted financial sanctions) and sectorial measures, and should thus benefit from strengthened capabilities in the context of identification and tracing of property. For such purpose, rules should be established to enhance the effective identification and tracing of property owned or controlled by persons and entities subject to such restrictive measures, and to promote greater international cooperation of asset recovery offices with their counterparts in third countries. Measures related to freezing and confiscation under this Directive, notably those under Chapters III and IV, remain however limited to situations where property stems from criminal activities, such as the violation of Union restrictive measures. Where the assets stem from the crime of Russian aggression on Ukraine or associated crimes, the confiscated assets shall be dedicated to the reconstruction of Ukraine and compensation of the victim population.

Or. en

Proposal for a directive

~~Recital 24~~

Recital 10 a (new)

Text proposed by the Commission

Amendment

(24) The practice by a suspected or accused person of transferring property or proceeds to a knowing third party with a view to avoiding confiscation is common and widespread. Acquisition by a third party refers to situations where, for example, property has been acquired, directly or indirectly, for example through an intermediary, by the third party from a suspected or accused person, including when the criminal offence has been committed on their behalf or for their benefit, and when an accused person does not have property that can be confiscated. Such confiscation should be possible in cases where it has been established that 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 was carried out free of charge or in exchange for an amount significantly lower than the market value. The rules on third party confiscation should extend to both natural and legal persons, without prejudice to the right of third parties to be heard, including the right to claim ownership of the property concerned. In any event, the rights of bona fide third parties should not be affected.

(10a) The monetary value of the assets confiscated as a result of those crimes mentioned in recitals 9 and 10 of this Directive shall be considered for a transfer by the Member States to the Union budget in the form of a new own resource, based on a preliminary detailed assessment of the Commission.

(24) The practice by a suspected or accused person of transferring property or proceeds to a knowing third party with a view to avoiding confiscation is common and widespread. Acquisition by a third party refers to situations where, for example, property has been acquired, directly or indirectly, for example through an intermediary, by the third party from a suspected, accused or convicted person, including when the criminal offence has been committed on their behalf or for their benefit, and when an accused person does not have property that can be confiscated. Such confiscation should be possible in cases where a national court has established that the third parties knew or ought to have known that the property is directly or indirectly linked to criminal conduct or 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 was carried out free of charge or in exchange for an amount significantly disproportionate to the market value. The rules on third party confiscation should extend to both natural and legal persons, without prejudice to the right of third parties to be heard, including the right to claim ownership of the property concerned. The rights of bona fide third parties should not be affected. In addition, confiscation from third parties should be possible if the tangible property directly originated in criminal activity of the transferring party regardless of bona fide of the receiving third party.

Or. en

Justification

Considering that confiscated assets are variable in nature, origin and in where they occur as well as their net proceeds are hard to anticipate, it appears reasonable to mutualize the risks and the benefits of the confiscation practice by making these revenues a new Own Resource, to achieve the best European added value.

Amendment 5

Proposal for a directive

Recital 2611

Text proposed by the Commission

Amendment

(26) Confiscation should also be possible where a court is satisfied that the instrumentalities, proceeds, or property in question is derived from criminal conduct but where a final conviction is not possible because of illness, absconding or death of the suspected or accused person, or because the suspected or accused person cannot be held liable because of immunity or amnesty as provided for under national law. The same should be possible where the time limits prescribed under national law have expired, where such time limits are not sufficiently long to allow for the effective investigation and prosecution of the relevant criminal offences. Confiscation in such cases should only be allowed where the national court is satisfied that all the elements of the offence are present. For reasons of proportionality, confiscating property without a prior conviction should be limited to cases of serious crimes. The right of the defendant to be made aware of the proceeding and to be represented by a lawyer should not be affected.

(11) [In order to ensure the effective implementation of Union restrictive measures, it is necessary to extend the scope of the Directive to the violation of Union restrictive measures].

(26) Confiscation should also be possible where a court is satisfied that the instrumentalities, proceeds, or property in question is derived from criminal conduct but where a final conviction is not possible because of prolonged illness, absconding or death of the suspected or accused person, or because the suspected or accused person cannot be held liable because of immunity as provided for under international law or amnesty as provided for under national law. The same should be possible where the time limits prescribed under national law have expired, where such time limits are not sufficiently long to allow for the effective investigation and prosecution of the relevant criminal offences, however limited to 15 years and not if the expiry has been caused by negligence of the authorities. Confiscation in such cases should only be allowed where the national court is convinced that the key elements of the offence are present, and that the property to be confiscated is of illegal origin. If the verifications directed at establishing the illegal origin of the property to be confiscated take place within a criminal proceeding, the burden of proof should be carried by the prosecution. For reasons of proportionality, confiscating property without a prior conviction should be limited to cases of serious crimes. The right of the defendant to be made aware of the proceeding and to be represented by a lawyer should not be affected.

(11) [In order to ensure the effective implementation of Union restrictive measures, it is necessary to extend the scope of the Directive to the violation of Union restrictive measures]. Criminal law measures adopted in the Union, and the freezing and confiscation that result therefrom, represent a way to support Ukraine’s reconstruction.

Or. en

Proposal for a directive

Recital 2717

Text proposed by the Commission

Amendment

(27) For the purposes of this Directive, illness should be understood to mean the inability of the suspected or accused person to attend the criminal proceedings for an extended period, as a result of which the proceedings cannot continue.

(17) In order to perform effective asset tracing investigations, and to swiftly respond to cross-border requests, asset recovery offices should have access to the information that allows them to establish the existence, ownership or control of property that may become object of a freezing or a confiscation order. Therefore, asset recovery offices should have access to the relevant data such as fiscal data, national citizenship and population registries, commercial databases and social security information. This should include law enforcement information in so far as data such as criminal records, vehicles stops, property searches and previous legal actions such as freezing and confiscation orders or seizures of cash can be of value to identify relevant property. Access to information should be subject to specific safeguards that prevent the misuse of the access rights. These safeguards should be without prejudice to Article 25 of Directive (EU) 2016/680 of the European Parliament and of the Council23. The direct and immediate access to this information does not prevent Member States from making access subject to procedural safeguards as established under national law while taking due account of the need for asset recovery offices to be able to swiftly reply to cross-border requests. The implementation of the procedural safeguards for access to databases should not affect the ability of asset recovery offices to respond to requests from other Member States, especially in case of urgent requests. Access to relevant databases and registries under this Directive should complement access to bank account information pursuant to Directive (EU) 2019/1153 of the European Parliament and of the Council24 and to beneficial ownership information pursuant to Directive (EU) 2015/849 of the European Parliament and of the Council25.

(27) For the purposes of this Directive, illness should be understood to mean the inability of the suspected or accused person, proved by a medical certificate, to attend the criminal proceedings, even remotely, for an extended period, as a result of which the proceedings cannot continue after a certain delay.

(17) In order to perform effective asset tracing investigations, and to swiftly respond to cross-border requests, asset recovery offices should have access to the information that allows them to establish the existence, ownership or control of property that may become object of a freezing or a confiscation order. Therefore, asset recovery offices should have access to the relevant data such as bank accounts data, fiscal data, national citizenship and population registries, commercial databases and social security information. This should include law enforcement information in so far as data such as criminal records, vehicles stops, property searches and previous legal actions such as freezing and confiscation orders or seizures of cash can be of value to identify relevant property. Access to information should be subject to specific safeguards that prevent the misuse of the access rights. These safeguards should be without prejudice to Article 25 of Directive (EU) 2016/680 of the European Parliament and of the Council23. The direct and immediate access to this information does not prevent Member States from making access subject to procedural safeguards as established under national law while taking due account of the need for asset recovery offices to be able to swiftly reply to cross-border requests. The implementation of the procedural safeguards for access to databases should not affect the ability of asset recovery offices to respond to requests from other Member States, especially in case of urgent requests. Access to relevant databases and registries under this Directive should complement access to bank account information pursuant to Directive (EU) 2019/1153 of the European Parliament and of the Council24 and to beneficial ownership information pursuant to Directive (EU) 2015/849 of the European Parliament and of the Council25.

__________________

23 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).

24 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).

25 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, as amended by Directive (EU) 2018/843 (OJ L 141 5.6.2015, p. 73).

Or. en

Proposal for a directive

Recital 2818

Text proposed by the Commission

Amendment

(18) To ensure the security of the information shared between asset recovery offices, the use of the Secure Information Exchange Network Application (SIENA), managed by Europol in accordance with Regulation (EU) 2016/794 of the European Parliament and of the Council26, should be mandatory for all communications among asset recovery offices under this Directive. Therefore, in order to be able to fulfil all the tasks assigned by this Directive, all asset recovery offices should be able to directly access SIENA.

(28) Due to the intrinsically opaque nature of organised crime, it is not always possible to link property derived from criminal activities to a specific criminal offence and confiscate such property. In such situations, confiscation should be possible under certain conditions including in particular: the property is frozen based on suspicion of crimes committed within the framework of or in connection with a criminal organisation or Union or non-Union public or state-sponsored structures involved in fraudulent or corrupt activities, these criminal offences are liable to give rise to substantial economic benefits or were committed by a politically exposed person in the exercise of their public function or have been facilitated by the exercise of the person’s public function, and the court is convinced that the frozen property is derived from criminal activities carried out within the framework of or in connection with a criminal organisation or state structures involved in fraudulent or corrupt activities. These conditions should ensure that confiscation of property not linked to a specific offence for which the owner has been convicted is limited to criminal activities of criminal organisations and state structures involved in fraudulent or corrupt activities, or run in connection to them, that are serious in nature and liable to generate substantial benefits. When determining whether the criminal activities are liable to give rise to significant benefits, Member States should take into account all relevant circumstances of the criminal conduct, including whether they were committed with the intention to generate regular substantial profits or to deprive third-parties of a substantial part of their rights. While it should not be a precondition for the national court to be satisfied that a criminal offence has been committed, the court must be satisfied that the property in question is derived from criminal conduct. When determining whether or not the property in question derived from criminal activities, the national courts should take into account all relevant circumstances of the case, including the fact that the property is substantially disproportionate to the lawful income of the owner. If the verifications directed at establishing the illegal origin of the property to be confiscated take place within a criminal proceeding, the burden of proof should be carried by the prosecution. If such verifications take place within a civil or administrative proceeding, Member States should then require and award an effective possibility for the owner of the property to prove, in a reasonable delay, that the property in question derives from lawful activities.

__________________

26 Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, p. 53).

Or. en

Justification

EPPO has the mandate to investigate and prosecute the crimes against the EU financial interests. Since the crimes considered under this directive might be connected to the EU financial interests, it is appropriate to give to EPPO the same level of access to the information, as to the national competent authorities.

Amendment 8

Proposal for a directive

~~Recital 28 a (new)~~

Recital 39

Text proposed by the Commission

Amendment

(28a) Member States shall coordinate and facilitate possibilities for using the confiscated property for the purpose of restitution vis-a-vis third countries affected by international crimes including crime of aggression originating in the countries of the individuals subject to confiscation.

(39) An effective recovery system requires concerted efforts of a wide range of authorities, from law enforcement, including customs authorities, tax authorities and tax recovery authorities to the extent that they are competent for asset recovery, asset recovery offices, judicial authorities and asset management authorities, including asset management offices. In order to ensure coordinated action by all competent authorities, it is necessary to establish a more strategic approach to asset recovery and promote a greater cooperation between the relevant authorities, and to obtain a clear overview of the results of asset recovery. For this purpose, Member States should adopt and regularly review a national strategy on asset recovery to guide actions in relation to financial investigations, freezing and confiscation, management as well as final disposal of the relevant instrumentalities, proceeds, or property. Furthermore, Member States should provide competent authorities with the necessary resources to be able to fulfil their tasks effectively. Competent authorities should be understood as the authorities entrusted with the carrying out of the tasks as outlined under this Directive and according to national set-ups.

(39) An effective asset recovery and reuse system requires concerted efforts of a wide range of authorities, from law enforcement, including customs authorities, tax authorities and tax recovery authorities to the extent that they are competent for asset recovery, asset recovery offices, judicial authorities and asset management authorities, including asset management offices. In order to ensure coordinated action by all competent authorities, it is necessary to establish a more strategic approach to asset recovery and promote a greater cooperation between the relevant authorities, and to obtain a clear overview of the results of asset recovery. For this purpose, Member States should adopt and regularly review a national strategy on asset recovery to guide actions in relation to financial investigations, freezing and confiscation, management as well as final disposal of the relevant instrumentalities, proceeds, or property. Furthermore, Member States should provide competent authorities with the necessary resources to be able to fulfil their tasks effectively. Competent authorities should be understood as the authorities entrusted with the carrying out of the tasks as outlined under this Directive and according to national set-ups.

Or. en

Proposal for a directive

~~Article 3 – paragraph 1 – point 9 a (new)~~

Recital 39 a (new)

Text proposed by the Commission

Amendment

(9a) ‘public concerned’ means the natural or legal persons, local communities or non-governmental organisations entitled to the compensation for the damages caused by the offences referred to in Article 2;

(39a) The proceeds of confiscated assets for the Member States are highly unpredictable and volatile in nature. Due to this unpredictability, confiscation of assets may occur more often in some Member States than others. Besides possible windfall gains, investments and efforts which need to be taken to curb criminal offences and to finally confiscate assets are inseparable and unpredictable at the moment. To mutualise the risks and the benefits making the revenues of confiscated assets a new own resource follows the logic of European added value. Therefore the monetary value of the confiscated criminal proceeds other than those related to the crime of Russian aggression on Ukraine shall be considered for a transfer by the Member States to the Union budget in the form of a new own resource, based on a preliminary detailed assessment of the Commission.

Or. en

Proposal for a directive

~~Article 3 – paragraph 1 – point 10~~

Recital 39 b (new)

Text proposed by the Commission

Amendment

~~(10) ‘beneficial owner’ means a beneficial owner as defined in Article 3, point (6), of Directive 2015/849/EU55 ;~~

(39b) The monetary value of confiscated assets resulting from the crime of Russian aggression on Ukraine shall be transferred by the Member States to the Union budget in form of the external assigned revenue. Such revenue should be allocated to the Rebuild Ukraine Facility used to support projects to build and rebuild infrastructure in Ukraine and to provide compensation to the Ukrainian victim population. Domestic civil society organisations in Ukraine should be involved in consultations during the preparation of the above mentioned projects which shall include concrete deliverables and spending guidelines. The European Parliament and the Commission shall monitor and scrutinise by means of regular reporting and discharge procedure the implementation of these projects to ensure that the partners responsible for implementation on the ground respect the principle of good governance and anti-corruption measures. In order to support the achievement of the objective of this Directive, the Commission should present a legislative proposal for the establishment of Rebuild Ukraine Facility.

(10) ‘beneficial owner’ means a beneficial owner as defined in Article 3, point XXX of Directive XXX [Proposal for a Directive of the European Parliament and of the Council on the mechanisms to be put in place by the Member States for the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing Directive (EU) 2015/849 COM/2021/423];

~~__________________~~

55 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, as amended by Directive (EU) 2018/843 (OJ L 141 5.6.2015, p. 73).

Or. en

Proposal for a directive

~~Article 3 – paragraph 1 – point 10 a (new)~~

Recital 45

Text proposed by the Commission

Amendment

(10a) ‘politically exposed person’ means a person who is or has been entrusted with prominent public functions in a Member State, as defined in Directive XXX [Proposal for a Directive of the European Parliament and of the Council on the mechanisms to be put in place by the Member States for the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing Directive (EU) 2015/849 COM/2021/423];

(45) Asset recovery offices should also closely cooperate with EU bodies and agencies, including Europol, Eurojust and the European Public Prosecutor’s Office, in accordance with their respective mandates, insofar as it is necessary to trace and identify property within the cross-border investigations supported by Europol and Eurojust or within the investigations undertaken by the European Public Prosecutor’s Office. Asset recovery offices shall closely cooperate with the central and decentralised levels of the European Public Prosecutor's Office (EPPO) with regard to the Member States that participate in the enhanced cooperation on the establishment of the EPPO. Asset recovery offices shall therefore incur the reporting obligations under the EPPO Regulation, reporting to the EPPO in the same way as they do to national competent authorities and Financial Intelligence Units. Asset recovery offices should also cooperate with EPPO, Europol and Eurojust, in accordance with their respective mandates, insofar as it is necessary to trace and identify property to prevent, detect or investigate criminal offences related to the violation of Union restrictive measures.

Or. en

Proposal for a directive

Article 112 – paragraph 1 – point n a (new)

Text proposed by the Commission

Amendment

~~1. Member States shall take the necessary measures to enable the freezing of property necessary to ensure a possible confiscation of that property under Article 12.~~

(na) The crime of aggression or facilitation of the aggression, as established in customary international law, committed by criminal groups and individuals, particularly by Russian political and military entities against Ukraine; other crimes associated with the crime of Russia-provoked aggression, such as deportations, forced conscription, forced passportization, placing in filtration camps;

1. Member States shall adopt the necessary measures to enable the freezing and preservation of property necessary to ensure a possible confiscation of that property under Articles 12, 13, 14, 15 and 16.

Or. en

Proposal for a directive

Article 112 – paragraph 2 – point b a (new)

Text proposed by the Commission

Amendment

~~2. Freezing measures shall include immediate action to be taken when necessary in order to preserve the property.~~

(ba) deliberate destruction and looting of cultural heritage;

~~deleted~~

Or. en

~~Justification~~

~~covered in para 3~~

Amendment 14

Proposal for a directive

Article 112 – paragraph 32 – point f

Text proposed by the Commission

Amendment

3. Member States shall enable asset recovery offices to take immediate action pursuant to paragraph 2 until a freezing order pursuant to paragraph 1 is issued. The validity of such temporary urgent freezing measures shall not exceed seven days.

(f) kidnapping, illegal restraint or hostage-taking;

3. To preserve the property, Member States shall enable asset recovery offices, or other competent authorities, to take immediate action until an order for a prolonged freezing (freezing order) is issued. The validity of such temporary urgent freezing measures shall not exceed seven days.

(f) kidnapping, illegal restraint, hostage-taking, arbitrary detention, forced disappearance, hostage-taking, sexual violence;

Or. en

Proposal for a directive

Article 112 – paragraph 42 – point f a (new)

Text proposed by the Commission

Amendment

~~4. Property in the possession of a third party can be subject to freezing measures pursuant to paragraphs 1, 2 and 3 where necessary to ensure a possible confiscation under article 13.~~

(fa) forced prostitution;

4. Property in the possession of a third party can be subject to freezing measures pursuant to paragraphs 1 and 2 where necessary to ensure a possible confiscation under article 13. This is without prejudice to freezing measures based on other legal grounds.

Or. en

Proposal for a directive

Article 112 – paragraph 52 – point j a (new)

Text proposed by the Commission

Amendment

~~5. Member States shall ensure that the freezing orders pursuant to paragraphs 1, 2, 3 and 4 are issued by a competent authority and are adequately motivated.~~

(ja) environmental crimes as established in Directive 2008/99/EC of the European Parliament and of the Council;

5. Member States shall ensure that the freezing orders pursuant to paragraphs 1, 2 and 3 are issued by a competent authority and are adequately motivated. In case the freezing order under this Directive has been issued by a competent authority other than a judicial authority, national law shall provide that such an order is to be either validated or rejected by a judicial authority without undue delay, and no later than five working days after the issuing of the order. This is without prejudice to freezing measures based on other legal grounds.

Or. en

Justification

This is a necessary safeguard to ensure a court can annul the freezing. However, we do not want to create a loophole allowing individuals under EU restrictive measures to challenge the freezing of their property citing this Directive. Hence, we introduce a limitation referring to freezing measures based on other legal grounds.

Art 2.1 m mentions only several types of crime, leaving doubts about the application of the whole list of criminal offences mentioned in the Environmental Crime Directive. To avoid loopholes, it is necessary to mention the whole list of crimes covered by the Directive.

Amendment 17

Proposal for a directive

Article 113 – paragraph 61 – point -1 a (new)

Text proposed by the Commission

Amendment

6. The freezing order pursuant to paragraph 1 shall remain in force only for as long as it is necessary to preserve the property with a view to possible subsequent confiscation. Frozen property which is not subsequently confiscated, shall be returned to the owner of the property without delay. The conditions or procedural rules under which such property is returned shall be determined by national law.

(-1a) ‘assets’ means the moveable and immovable property, savings in bank accounts, liquid money and business owership associated with a crime or a suspected crime, whereby such assets are illegally obtained, are used to commit a crime, or exist as a result of a crime;

6. The freezing order under this Directive pursuant to paragraph 1 shall remain in force only for as long as it is necessary to preserve the property with a view to possible subsequent confiscation. Frozen property which is not subsequently confiscated, shall be returned without delay to the owner of the property, or to the person from whom the property was seized, unless it was frozen on a different legal ground. The conditions or procedural rules under which such property is returned shall be determined by national law.

Or. en

Proposal for a directive

Article 133 – paragraph 1 – ~~subparagraph~~point 12

Text proposed by the Commission

Amendment

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.

(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;

Member States shall take the necessary measures to enable the confiscation of proceeds and instrumentalities which were acquired by or otherwise directly or indirectly transferred to a third party from a suspected, accused or convicted person. Member States shall also take the necessary measures to enable the confiscation of property, other than proceeds and instrumentalities and within the value that corresponds to those proceeds and instrumentalities.

(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, including cryptocurrency;

Or. en

Proposal for a directive

Article 133 – paragraph 1 – ~~subparagraph~~point 23

Text proposed by the Commission

Amendment

The confiscation of these proceeds or other property shall be enabled where it has been established that 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.

(3) ‘instrumentalities’ means any property used or intended to be used, in any manner, wholly or partially, to commit a criminal offence;

The confiscation of these instrumentalities, proceeds or other property shall be enabled where, based on all the circumstances of the case, the national court has established that the transferred tangible proceeds or tangible property are directly derived from criminal conduct or that the benefiting third parties knew or ought to have known that the transferred instrumentalities, proceeds or property are directly or indirectly linked to criminal conduct, or knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation. Concrete facts and circumstances from which it can be inferred that the purpose of the transfer or acquisition was to avoid confiscation include that the transfer or acquisition was carried out free of charge or in exchange for an amount significantly disproportionate to the market value.

(3) ‘instrumentalities’ means any property, including legal persons, used or intended to be used, in any manner, wholly or partially, to commit a criminal offence;

Or. en

Justification

Associations, businesses, NGOs can be used as a platform for criminal activities and should therefore be mentioned among the instrumentalities.

Amendment 20

Proposal for a directive

Article 135 – paragraph 2 – point c

Text proposed by the Commission

Amendment

~~2. Paragraph 1 shall not affect the rights of bona fide third parties.~~

(c) cooperate and exchange information with other Member States’ asset recovery offices in the tracing and identification of instrumentalities and proceeds, or property which may become or is the object of a freezing or confiscation order;

~~deleted~~

(c) cooperate and exchange information with other Member States’ asset recovery offices, as well as with the EPPO, in the tracing and identification of instrumentalities and proceeds, or property which may become or is the object of a freezing or confiscation order;

Or. en

Proposal for a directive

Article 135 – paragraph 2 a– ~~(new)~~point d

Text proposed by the Commission

Amendment

2a. Member States shall ensure that the affected person’s rights are respected including by granting access to a lawyer, and awarding access to the file and the right to be heard on issues of law and fact.

(d) exchange information with other asset recovery offices in the Member States related to the effective implementation of Union restrictive measures where necessary to prevent, detect or investigate criminal offences.

(d) exchange information with other asset recovery offices in the Member States related to the effective implementation of Union restrictive measures, as well as with the EPPO, where necessary to prevent, detect or investigate criminal offences.

Or. en

Proposal for a directive

Article 155 – paragraph ~~1 – point a~~3

Text proposed by the Commission

Amendment

~~(a) illness of the suspected or accused person;~~

3. Asset recovery offices shall be empowered to trace and identify property of persons and entities subject to EU targeted financial sanctions where necessary to prevent, detect or investigate criminal offences. To that effect, they shall cooperate with asset recovery offices and other relevant competent authorities in other Member States and exchange relevant information.

~~(a) prolonged illness of the suspected or accused person;~~

Or. en

Proposal for a directive

Article 155 – paragraph ~~1 –~~4 ~~point~~a d(new)

Text proposed by the Commission

Amendment

~~(d) immunity from prosecution of the suspected or accused person, as provided for under national law;~~

4a. Member States shall provide asset recovery offices with sufficient staff, adequate budget and IT tools to conduct investigations, exchange the intelligence and pursue other activities in the scope of this Directive.

~~(d) immunity from prosecution of the suspected or accused person, as provided for under international law;~~

Or. en

Justification

Asset recovery offices must have sufficient financial means and digital tools to trace and investigate assets if we expect them to find sufficient evidence to bring criminals to justice. This is needed to avoid situations where criminal organisations are better equipped both financially and digitally, rather than the AROs who are supposed to trace them.

Amendment 24

Proposal for a directive

Article 156 – paragraph 1 – ~~point~~introductory fpart

Text proposed by the Commission

Amendment

~~(f) the time limits prescribed by national law have expired, where such limits are not sufficiently long to allow for the effective investigation and prosecution of the relevant criminal offences.~~

1. For the purposes of performing the tasks referred to in Article 5, Member States shall ensure that asset recovery offices have immediate and direct access to the following information to the extent that information is necessary for the tracing and identification of proceeds, instrumentalities, and property:

(f) the time limits prescribed by national law have expired, where such limits are not sufficiently long to allow for the effective investigation and prosecution of the relevant criminal offences, provided that the expiry has not been caused by negligence of the authorities, and not longer than 15 years.

Or. en

Proposal for a directive

Article 156 – paragraph 21 – point a

Text proposed by the Commission

Amendment

2. Confiscation without a prior conviction shall be limited to criminal offences liable to give rise, directly or indirectly, to substantial economic benefit and only insofar as the national court is satisfied that all the elements of the offence are present.

(a) fiscal data, including data held by tax and revenue authorities;

2. Confiscation without a prior conviction shall only be possible if a competent national court has established that the key elements of the criminal offence are present and is convinced that the instrumentalities, proceeds or property to be confiscated are derived from or directly or indirectly linked to the criminal conduct in question. In determining whether the property in question is derived from criminal conduct, account shall be taken of all the circumstances of the case, such as that the value of the property is substantially disproportionate to the lawful income of the suspected or accused person. The burden of proof shall be carried by the prosecution. In cross-border cases, the competent authorities shall use the relevant judicial cooperation instruments when this is necessary to ascertain the existence of the elements of the offence, or to determine whether the property to be confiscated derived from criminal conduct.

(a) data on bank accounts and financial transactions, fiscal data, including data held by tax and revenue authorities;

Or. en

Proposal for a directive

Article 157 – paragraph 32

Text proposed by the Commission

Amendment

3. Before a confiscation order within the meaning of paragraphs 1 and 2 is issued by the court, Member States shall ensure that the affected person’s rights of defence are respected including by awarding access to the file and the right to be heard on issues of law and fact.

3. Before a confiscation order within the meaning of paragraphs 1 and 2 is issued by the court, Member States shall ensure that the affected person’s rights of defence are respected including by granting access to a lawyer, and awarding access to the file and the right to be heard on issues of law and fact.

2. Member States shall ensure that staff of the asset recovery offices comply with the rules on confidentiality and professional secrecy as provided for under applicable national law. Member States shall also ensure that staff of asset recovery offices have the necessary specialised skills and abilities to perform their roles effectively. Member States shall take measures to guarantee a regular training for the relevant staff, including the training on ethics and anti-corruption measures.

Or. en

Proposal for a directive

Article 159 – paragraph 41 – subparagraph 1

Text proposed by the Commission

Amendment

~~4. For the purposes of this Article, the notion of ‘criminal offence’ shall include offences listed in Article 2 when punishable by deprivation of liberty of a maximum of at least four years.~~

Member States shall take the necessary measures to ensure that their asset recovery offices provide, upon request from an asset recovery office of another Member State, any information that is necessary for the performance of their tasks pursuant to Article 5. The categories of personal data that can be provided are those listed in Section B, point 2 of Annex II to Regulation (EU) 2016/794.

4. For the purposes of this Article, the notion of ‘criminal offence’ shall include offences listed in Article 2 when punishable by deprivation of liberty of a maximum of at least four years, or committed within the framework of or in connection with a criminal organisation, or constituting a violation of Union restrictive measures.

Member States shall take the necessary measures to ensure that their asset recovery offices provide, upon request from an asset recovery office of another Member State, as well as of the EPPO, any information that is necessary for the performance of their tasks pursuant to Article 5. The categories of personal data that can be provided are those listed in Section B, point 2 of Annex II to Regulation (EU) 2016/794.

Or. en

Proposal for a directive

Article 169 – paragraph 12 – point b a (new)

Text proposed by the Commission

Amendment

~~(a) the property is frozen in the context of an investigation into criminal offences committed in the framework of a criminal organisation;~~

(ba) the link of the request to the violation of the Union restrictive measures or crimes related to the aggression of Ukraine by Russia, in accordance with Article 2(1), point (na) of this Directive;

(a) the property is frozen in the context of an investigation into criminal offences committed in the framework of or in connection with a criminal organisation or Union or non-Union public or state-sponsored structures involved in fraudulent or corrupt activities;

Or. en

Proposal for a directive

Article 1611 – paragraph ~~1 –~~6 ~~point~~a b(new)

Text proposed by the Commission

Amendment

~~(b) the criminal offence pursuant to point (a) is liable to give rise, directly or indirectly, to substantial economic benefit;~~

6a. Member States shall ensure sufficient budgetary resources to properly manage frozen property in cases where there is no possibility to charge the costs for the management of frozen property to the beneficial owner or proceed with an interlocutory sale.

(b) the criminal offence pursuant to point (a) is liable to give rise, directly or indirectly, to substantial economic benefit, or was committed by a politically exposed person in the exercise of their public function, or has been facilitated by the exercise of the person’s public function;

Or. en

Justification

This financial coverage of the maintenance cost of the frozen property is needed to enable the competent authorities to freeze the property, while the absence of such budgetary guarantee would discourage them to do so due to a high administrative cost of freezing. This is necessary also to limit the cases of state liability for the deterioration in value of the seized property.

Amendment 30

Proposal for a directive

Article 1611 – paragraph ~~1 –~~7 ~~point~~a c(new)

Text proposed by the Commission

Amendment

~~(c) the national court is satisfied that the frozen property is derived from criminal offences committed in the framework of a criminal organisation.~~

7a. Court-appointed administrators in charge of the frozen assets before their possible confiscation shall undergo regular professional training, including on ethics and anti-corruption measures. They shall work under the principle of rotation and have a limited number of assignments.

(c) the national court is convinced that the frozen property is derived from criminal offences committed in the framework of or in connection with a criminal organisation, or Union or non-Union public or state-sponsored structures involved in fraudulent or corrupt activities.

Or. en

Justification

This is necessary to avoid corruption and partiality from the side of administrators managing the assets during the freezing stage. The rotation would prevent them from dealing always with the same type of cases. the limitation of assignments is needed to avoid the concentration of too many cases in the hands of one official, which would involve risks.

Amendment 31

Proposal for a directive

Article 1615 – paragraph 21 – point f a (new)

Text proposed by the Commission

Amendment

2. When determining whether the frozen property is derived from criminal offences, account shall be taken of all the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is substantially disproportionate to the lawful income of the owner of the property.

(fa) absence of the suspected or accused person or entity representatives involved in the crimes listed in Article 2(1), point (na) and Article 2(3) of this Directive.

Or. en

Justification

When it comes to the crimes related to Russian aggression or sanction evasion mentioned in Article 2, it is highly likely that the accused entity cannot be present in front of a court in the EU due to a travel ban imposed by sanctions or due to another reason. Therefore, in such cases the confiscation order should be issued in absentia.

Amendment 32

Proposal for a directive

Article 1615 – paragraph 4

Text proposed by the Commission

Amendment

4. Before a confiscation order within the meaning of paragraphs 1 and 2 is issued by the court, Member States shall ensure that the affected person’s rights of defence are respected including by awarding access to the file and the right to be heard on issues of law and fact.

4. For the purposes of this Article, the notion of ‘criminal offence’ shall include offences listed in Article 2 when punishable by deprivation of liberty of a maximum of at least four years.

4. Before a confiscation order within the meaning of paragraphs 1 and 2 is issued by the court, Member States shall ensure that the affected person’s rights of defence are respected including by granting access to a lawyer, and awarding access to the file and the right to be heard on issues of law and fact.

4. For the purposes of this Article, the notion of ‘criminal offence’ shall include offences listed in Article 2.

Or. en

Proposal for a directive

Article 1816 – ~~title~~paragraph 3

Text proposed by the Commission

Amendment

~~Victims compensation~~

3. For the purposes of this Article, the notion of ‘criminal offence’ shall include offences referred to in Article 2 when punishable by deprivation of liberty of a maximum of at least four years.

~~Compensation and claims of the victims and of the public concerned~~

3. For the purposes of this Article, the notion of ‘criminal offence’ shall include offences referred to in Article 2.

Or. en

Proposal for a directive

Article 1817 – paragraph 12

Text proposed by the Commission

Amendment

Where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Directive, Member States shall take the necessary measures to ensure that the confiscation measure does not affect victims’ rights to obtain compensation for their claims.

2. Member States shall consider taking measures allowing confiscated property to be used for public interest or social purposes.

Where, as a result of a criminal offence, victims or the public concerned have claims against the person who is subject to a confiscation measure provided for under this Directive, Member States shall take the necessary measures to ensure that the confiscation measure does not affect the rights of the victims or of the public concerned to obtain compensation for their claims

2. Member States shall take measures allowing confiscated property to be used for public interest or social purposes.

Or. en

Justification

Considering the important amounts of money taken away from the communities by the criminal groups, it is essential to reintroduce those proceeds into the legal economy to serve the needs of the society.

Amendment 35

Proposal for a directive

Article 1817 – paragraph 12 a (new)

Text proposed by the Commission

Amendment

Public concerned can also include the interests of third countries directly or indirectly affected by the criminal conduct of the suspected, accused or convicted property owners or the countries of their nationality.

2a. Member States shall decide on the use of the net proceeds resulting from the liquidation of confiscated asset except for those established as an own resource in accordance with Article 311(3) TFEU and those listed under Article 26a of this Directive, which shall constitute external assigned revenue in accordance with Article 21(5) of the Financial Regulation.

Or. en

Justification

Considering that confiscated assets are variable and hard to anticipate, it appears reasonable to mutualise the risks and the benefits by making these revenues a new own resource of the European Union’s budget - to achieve best European added value.

Amendment 36

Proposal for a directive

Article 1917 – paragraph 12 b (new)

Text proposed by the Commission

Amendment

~~1. Member States shall ensure the efficient management of frozen and confiscated property until its disposal.~~

2b. The monetary value of the confiscated criminal proceeds set out inArticle 26a of this Directive shall be assigned to the Rebuild Ukraine Facility in the form of an external assigned revenue and shall be used to support projects to build and rebuild infrastructure in Ukraine and to provide compensation to the Ukrainian victim population. Those projects shall be submitted to the Commission by the Ukrainian authorities after consulting domestic civil society organisations. The projects shall include deliverables and spending guidelines that allow their implementation to be assessed. The European Parliament and the Commission shall monitor and scrutinise by the means of regular reporting and the discharge procedure the implementation of the projects to ensure that the partners responsible for implementation respect the principle of good governance and anti-corruption measures.

~~1. Member States shall ensure the efficient management of frozen and confiscated property until its disposal, including through the measures mentioned in Article 17(2).~~

Or. en

Justification

Social reuse of confiscated illicit gains is an essential part of the asset recovery process. Reintroduction of confiscated illicit gains into the legal economy is needed to guarantee that illicit gains serve the utility of the victim community, to restore the confidence in the Rule of Law, to prevent the impunity and to deter the criminal behaviour. It is necessary to adopt anti-corruption safeguards and scrutiny mechanisms for the implementation of projects in Ukraine.

Amendment 37

Proposal for a directive

Article 2017 – paragraph ~~1 –~~2 ~~introductory~~c ~~part~~(new)

Text proposed by the Commission

Amendment

1. Member States shall ensure that property frozen pursuant to Article 11 paragraph 1 can be transferred or sold before the issuing of a confiscation order in one or more of the following circumstances:

2c. This Directive will complement the upcoming Commission legislative proposal for the establishment of the Rebuild Ukraine Facility, accompanied by a dedicated budgetary line reflecting the amount of resources stemming through asset confiscation related to criminal proceeds listed under Article 26a of this Directive;

1. Member States shall ensure that property frozen pursuant to Article 11 paragraph 1 cannot be transferred or sold before the issuing of a confiscation order, except in one or more of the following circumstances:

Or. en

Proposal for a directive

~~Article 20 – paragraph 1 – point c~~

Article 18 – title

Text proposed by the Commission

Amendment

~~(c) the property is too difficult to administer, or its management requires special conditions and non-readily available expertise.~~

Victims compensation

~~(c) the management of the property requires special conditions and expertise that are non-readily available.~~

Victims compensation and social reuse

Or. en

Proposal for a directive

Article 2018 – paragraph 21

Text proposed by the Commission

Amendment

2. Member States shall adopt the necessary measures to ensure that the interests of the owner of the property are taken into account when issuing an interlocutory sale order, including whether the property to be sold is easily replaceable. With the exception of cases of absconding, Member States shall ensure that the owner of the property that may be subject to an interlocutory sale is notified and heard before the sale. The owner shall be given the possibility to request the sale of the property.

2. Member States shall adopt the necessary measures to ensure that the interests of the owner of the property are taken into account when issuing an interlocutory sale order, including whether the property to be sold is easily replaceable. With the exception of cases of absconding, Member States shall ensure that the owner of the property that may be subject to an interlocutory sale is notified and, if necessary, is heard before the sale. The owner shall be given the possibility to request the sale of the property.

Where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Directive, Member States shall take the necessary measures to ensure that the confiscation measure serves the fulfilment of the victims’ rights to obtain compensation for their claims.

Or. en

Proposal for a directive

Article 2018 – paragraph 41 a (new)

Text proposed by the Commission

Amendment

~~4. Member States may require the costs for the management of frozen property to be charged to the beneficial owner.~~

The monetary value of the confiscated assets related to the crimes set out in Article 26 of this Directive shall be transferred by the national authorities of the Member States to the dedicated Union financial instrument “Ukrainian victims compensation fund” under Rebuild Ukraine Facility and be used for the purpose of compensation to the victims of the crime of Russian aggression.

~~4. When provided under national law, Member States shall require the costs for the management of frozen property to be charged, at least partially, to the beneficial owner.~~

Or. en

Justification

The recovered proceeds should serve the needs of the community which suffered the crime. In case of Russian aggression on Ukraine, it’s the Ukrainian victims who should benefit from the assets confiscated as a result of the tracing and investigation of the crimes.

Amendment 41

Proposal for a directive

Article 2218 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

A dedicated victim compensation mechanism can be based on the specific Ukrainian victims’ claims registry that should be established under the Union law. After the entry into force of this Directive, the Commission shall consider establishing such a victims’ claims registry and dedicated claims commission that will serve the scope of victim compensation. Should an alternative of such registry be established at an earlier date under the auspices of the International Criminal Court or United Nations General Assembly, the Commission could start the victim compensation based on the claims entered in that registry.

Member States shall ensure that the freezing orders pursuant to Article 11, confiscation orders pursuant to Articles 12 to 16, and orders to sell the property pursuant to Article 20 are communicated to the affected person setting out the reasons for the measure. The affected persons shall also be informed of their rights and of the legal remedies available pursuant to Article 23.

Or. en

Proposal for a directive

Article 2318 – paragraph ~~4 –~~1 ~~subparagraph~~c 2(new)

Text proposed by the Commission

Amendment

Such social reuse shall be based on projects aiming at the improvement of the living conditions of the victims. The financing and the implementation of such projects shall be overseen by the Commission and the European Parliament with the involvement of the civil society in monitoring, assessing, and reporting on the impact of the social reuse of the financial resources stemming from confiscated assets.

In the case of confiscation orders pursuant to Article 13, such circumstance shall include facts and circumstances on which the finding was based that the third party knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation, or that the transferred instrumentalities, proceeds or property were directly or indirectly linked to, or derived from, criminal conduct.

Or. en

Proposal for a directive

Article 2319 – paragraph ~~4 – subparagraph 4~~1

Text proposed by the Commission

Amendment

1. Member States shall ensure the efficient management of frozen and confiscated property until its disposal.

In the case of confiscation orders pursuant to Article 15, such circumstances shall include facts and evidence on the basis of which the national court concluded that all the elements of the offence are present, and that the property concerned is considered to be property that is derived from or directly or indirectly linked to criminal conduct.

1. Member States shall ensure the efficient management of frozen and confiscated property until its disposal, in cases where there is no possibility to charge the costs for the management of frozen property to the beneficial owner or proceed with an interlocutory sale.

Or. en

Justification

While it is preferential to ease the financial burden for the Member States by putting the management costs on the beneficial owner or by proceeding with an interlocutory sale, it necessary to avoid that seized assets do not turn into liabilities for the state.

Amendment 44

Proposal for a directive

Article 2521 – ~~title~~paragraph 1

Text proposed by the Commission

Amendment

~~Resources~~

1. Each Member State shall set up or designate at least one asset management office for the purpose of the management of frozen and confiscated property.

~~Resources and training~~

1. Each Member State shall set up or designate at least one asset management office for the purpose of the management of frozen and confiscated property. Such offices shall have sufficient staff, budgetary, technical and technological resources for the asset management procedures.

Or. en

Justification

Availability of human, financial and technical resources is an enabling factor for the asset management offices to initiate actions and fulfil their tasks.

Amendment 45

Proposal for a directive

Article 21 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c) to cooperate with other competent authorities responsible for the tracing and identification, freezing and confiscation of property, pursuant to this Directive;

(c) to cooperate with other competent authorities responsible for the tracing and identification, freezing and confiscation of property, pursuant to this Directive, including EPPO, Europol, Eurojust and national law enforcement authorities in other Member States;

Or. en

Justification

Such strengthened cooperation is necessary for the efficiency and exchange of best practices.

Amendment 46

Proposal for a directive

Article 21 – paragraph 2 – point c a (new)

Text proposed by the Commission

Amendment

(ca) facilitate the effective implementation of Union restrictive measures;

Or. en

Justification

With the recognition of sanction evasion as a eurocrime, the role of asset management offices becomes essential in achieving the objectives of the EU sanction policy.

Amendment 47

Proposal for a directive

Article 24 – paragraph 2 – point e a (new)

Text proposed by the Commission

Amendment

(ea) measures that follow-up the cases of non-compliance with reporting obligations and information exchange practice under this Directive.

Or. en

Amendment 48

Proposal for a directive

Article 25 – paragraph 1

Member States shall ensure that asset recovery offices and asset management offices performing tasks pursuant to this Directive, have appropriately qualified staff and appropriate financial, technical and technological resources necessary for the effective performance of their functions related to the implementation of this Directive.

Member States shall ensure that asset recovery ~~offices, asset management~~ offices and ~~other~~asset ~~competent~~management ~~authorities~~offices performing tasks pursuant to this Directive, have ~~a sufficient number of~~ appropriately qualified staff and appropriate financial, technical and technological resources necessary for the effective performance of their functions related to the implementation of this Directive. Member States shall ensure that the budgetary resources allocated to asset recovery offices and asset management offices are made publicly available and report them to the Commission on an annual basis.

Or. en

~~Amendment 46~~

Justification

There is a need for transparency to guarantee that AROs and AMOs get enough financing for their work.

Amendment 49

Proposal for a directive

Article 2526 – paragraph 1 ~~a (new)~~

Text proposed by the Commission

Amendment

Without prejudice to judicial independence and specificities in the organisation of the judiciary across the Union, Member States shall request those responsible for the training of judges, prosecutors, police, judicial staff and competent authorities involved in asset identification, asset tracing, asset recovery and confiscation procedures to provide at regular intervals specialised training and exchanges of best practices at Union level to ensure the effective achievement of the objectives of this Directive. The specialised training shall cover the practical use of tools available for identification, tracing and recovery of assets, as well as for cooperation between the different authorities, and for the protection of the rights of the persons concerned.

1. For the purpose of managing frozen and confiscated property, Member States shall put in place centralised registries containing information related to the freezing, confiscation and management of instrumentalities and proceeds, or property which may become or is the object of a freezing or confiscation order. By [the date of entry into force of this Directive], the Commission shall adopt a delegated acts in accordance with Article 30 to supplement this Directive by providing specific guidelines for Member States on collection and treatment of such information. These guidelines shall also set out the rules for the scope and practices of information exchange with third countries when the property concerned is frozen or confiscated under the Union sanctions regime.

Or. en

Justification

For the information to be useful, it needs to be up-to-date, consistent and comprehensive, as well as user-friendly. Therefore we need a common instruction from the Commission of data collection and management, that will be used by relevant authorities in all Member States.EU sanction implementation depends on cooperation with third countries, which requires a certain degree of information sharing.

Amendment 50

Proposal for a directive

Article 26 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. By ... ...[the date set out in Article 32 of this Directive], the Commission shall develop a dedicated IT tool for the information storage and information exchange in order assist the Member States in their obligation to maintain centralised registries of frozen and confiscated property..

Or. en

Amendment 51

Proposal for a directive

Article 26 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall take the necessary measures to ensure that asset recovery offices, asset management offices, and other competent authorities performing tasks pursuant to Article 4, 19 20 and 21, as well as the Commission and EPPO, have the power to enter, access and search, directly and immediately, the information referred to in paragraph 3. Member States shall ensure that the information entered into the registry is complete and up-to-date.

Or. en

Justification

EPPO should be treated the same way that national authorities in retrieving the information in order to exercise its mandate of combatting financial crime.

Amendment 52

Proposal for a directive

Article 26 – paragraph 3 – point f a (new)

Text proposed by the Commission

Amendment

(fa) the disaggregated value and characteristics of confiscated assets subject to transfer to the Rebuild Ukraine Facility and its financial instrument “Ukrainian victims compensation fund”, under the conditions provided for under Article 26a, with the details on the grounds of confiscation.

Or. en

Amendment 53

Proposal for a directive

Article 26 – paragraph 5

Text proposed by the Commission

Amendment

5. Member States shall ensure that appropriate technical and organisational measures are in place to ensure the security of the data contained in the centralised registries of frozen and confiscated property. Member States shall also ensure the authorities managing the centralised registries have an adequate budget for this purpose.

Or. en

Amendment 54

Proposal for a directive

Article 26 a (new)

Text proposed by the Commission

Amendment

Article 26a

Assets confiscated in the context of Russian aggression against Ukraine

1. Member States shall transfer the monetary value of confiscated assets listed in the centralised registries referred to in Article 26 to Rebuild Ukraine Facility where:

(a) those assets have been confiscated as a result of the application of Article 17(2b) and based on the crimes listed under Article 2(1), point (na) of this Directive;

(b) those assets have been confiscated in the context of violation of the Union restrictive measures, as defined in ... [Directive on the definition of criminal offences and penalties for the violation of EU restrictive measures];

(c) the link between the confiscated assets and the crimes of Russia’s aggression on Ukraine has been established by national judicial authorities or international bodies, such as International Criminal Court;

(d) those assets result from civil confiscation, non-conviction based confiscation, extended confiscation or confiscation following an unexplained wealth order, and at the same time originate from Russian individuals or entities involved into participation in criminal organisation, money laundering, terrorism and corruption;

(e) confiscation follows the establishment of international crimes, such as war crimes, as provided for by national law, where Russia is found guilty.

2. Assets that have entered the dedicated Union financial instrument will serve the needs of the victim population of Ukraine in line with Article 18.

Or. en

Amendment 55

Proposal for a directive

Article 27 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall collect and maintain comprehensive statistics at central level on the measures taken under this Directive.

1. Member States shall collect and maintain comprehensive and detailed statistics at central level on the measures taken under this Directive.

Or. en

Amendment 56

Proposal for a directive

Article 27 – paragraph 3

Text proposed by the Commission

Amendment

3. The Commission may adopt delegated acts in accordance with Article 30 laying down more detailed rules on the information to be collected and the methodology for the collection of the statistics referred to in paragraph 1 and the arrangements for their transmission to the Commission.

3. The Commission shall adopt delegated acts in accordance with Article 30 laying down more detailed rules on the information to be collected and the methodology for the collection of the statistics referred to in paragraph 1 and the arrangements for their transmission to the Commission.

Or. en

Justification

It is necessary that the Commission provides guidelines applicable in all Member States to guarantee that the statistics are comprehensive, coherent and comparable across the EU. Leaving this task to the national traditions of statistics collection can provide inconsistent results.

Amendment 57

Proposal for a directive

Article 27 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

3a. The Commission shall make these statistics publicly available on a regular basis in order to ensure transparency.

Or. en

Justification

The obligation of a regular sharing of the statistics will help keep them complete and up-to-date and to satisfy the public interest.

Amendment 58

Proposal for a directive

Article 28 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. For the purposes of this Directive, when the notion of competent authorities refers to investigating and prosecuting authorities, it shall be interpreted as including the central and decentralised levels of the European Public Prosecutor's Office (EPPO) with regard to the Member States that participate in the enhanced cooperation on the establishment of the EPPO. Asset recovery offices shall therefore incur the obligations under the EPPO Regulation, including the obligation to report to the EPPO under Article 24 of the EPPO Regulation, undertaking of measures if instructed as a competent authority under Article 28(1) of the EPPO Regulation and access to information under Article 43(1) of the EPPO Regulation.

Or. en

Justification

Considering the mandate of the EPPO in investigation and prosecution of the financial crime, it is necessary that asset recovery offices cooperate and share the information with it.