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Sergey Lagodinsky, Committee on Legal Affairs
PA_Legam
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AMENDMENTS
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The Committee on Legal Affairs calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:
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*** Consent procedure
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DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
on the proposal for a directive of the European Parliament and of the Council on asset recovery and confiscation
(COM(2022)0245 – C90186/2022 – 2022/0167(COD))
(Ordinary legislative procedure: first reading)
– having regard to the Commission proposal to Parliament and the Council (COM(2022)0245),
– having regard to Article 294(2) and Articles 82(2), Articles 83(1) and (2) and Article 87(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90186/2022),
– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,
– having regard to Rule 59 of its Rules of Procedure,
– having regard to the opinion of the European Economic and Social Committee of 14 December 2022,
– having regard to the opinions of the Committee on Legal Affairs and the Committee on Budgets,
– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A90000/2023),
1. Adopts its position at first reading hereinafter set out;
2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;
3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.
Amendment 1
Proposal for a directive
Recital 320
Text proposed by the Commission
Amendment
(3) An effective asset(20) recoveryConfiscation systemleads requiresto the swift tracing andfinal identificationdeprivation of instrumentalitiesproperty. andHowever, proceedspreservation of crime,property andcan propertybe suspecteda prerequisite to beconfiscation ofand criminalis origin.often Suchessential proceeds,for instrumentalities,the andeffective propertyenforcement shouldof bea frozenconfiscation inorder. orderProperty tois preventpreserved itsby disappearance,means followingof whichfreezing. itIn shouldorder beto confiscatedprevent uponthe conclusiondissipation of criminal proceedings.property Anbefore effectivea assetfreezing recoveryorder systemcan furtherbe requiresissued, the effectivecompetent managementauthorities ofin frozenthe andMember confiscatedStates, propertyincluding toasset maintainrecovery itsoffices, valueshould forbe theempowered Stateto ortake forimmediate theaction restitutionin fororder victims.to secure such property.
(3) An effective asset recovery system requires the swift tracing and identification of instrumentalities and proceeds of crime, and property suspected to be of criminal origin. Such proceeds, instrumentalities, and property should be frozen in order to prevent its disappearance, following which it should be confiscated upon conclusion of proceedings in criminal matters. An effective asset recovery system further requires the effective management of frozen and confiscated property to maintain its value for the State or for the restitution for victims.
(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.
Or. en
Proposal for a directive
Recital 921
Text proposed by the Commission
Amendment
(9) Due to the poly-criminal nature of and the systemic and profit-oriented cooperation of criminal organisations involved in a wide range of illicit activities in different markets, an effective fight against organised crime requires that freezing and confiscation measures are available to cover the profits from all offences where organised crime groups are active in. These crimes include the areas of crime listed in Article 83(1), including the illicit trafficking in weapons, munitions and explosives as defined in the Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against transnational organized crime, to which the Union is party. In addition to the crimes listed in Article 83(1), the scope of the Directive should also cover all crimes that are harmonised at EU level, including frauds against the financial interests of the European Union in light of the increasing involvement of organised criminal groups in such crime area. The scope of the Directive should further include environmental crimes, which are a core business for organised criminal groups and are often connected to money laundering or concern waste and residues produced in the context of drug production and trafficking. The facilitation of unauthorized entry and residence constitute a core business for organised criminal groups and is typically connected to the trafficking in human beings.
(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.
(9) Due to the poly-criminal nature of and the systemic and profit-oriented cooperation of criminal organisations involved in a wide range of illicit activities in different markets, an effective fight against organised crime requires that freezing and confiscation measures are available to cover the profits from all offences where organised crime groups are active in. These crimes include the areas of crime listed in Article 83(1), including the illicit trafficking in weapons, munitions and explosives as defined in the Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against transnational organized crime, to which the Union is party. In addition to the crimes listed in Article 83(1), the scope of the Directive should also cover all crimes that are harmonised at EU level, including frauds against the financial interests of the European Union in light of the increasing involvement of organised criminal groups in such crime area. The scope of the Directive should further include environmental crimes, which are a core business for organised criminal groups and are often connected to money laundering, document fraud, economic fraud, tax evasion and corruption or concern waste trafficking in breach of national and international law and standards regulating the collection, treatment and disposal of waste, including residues produced in the context of drug production and trafficking. The facilitation of unauthorized entry and residence constitute a core business for organised criminal groups and is typically connected to the trafficking in human beings.
(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.
Or. en
Proposal for a directive
Recital 1022
Text proposed by the Commission
Amendment
(10) Other crimes committed within the framework of a criminal organisation play a pivotal role in generating revenues and in enabling further crimes, including serious crimes with a cross-border nature. Such crimes should be included in the scope of the Directive to the extent to which they are committed within the framework of a criminal organisation. The counterfeiting and piracy of products is linked to money laundering and the forgery of documents, and threatens the functioning of the single market and fair competition. The illicit trafficking in cultural goods, including antiques and works of art, is often intertwined with money laundering and constitutes an important source of financing for organised criminal groups. Forgery of administrative documents and trafficking therein, including bank documents or identification documents, is a key enabling tool for money laundering, trafficking in human beings, or migrant smuggling, and should as such be covered in the scope of this Directive. Other crimes which are often carried out within the framework of an organised crime group include murder or grievous bodily harm, as well as the illicit trade in human organs and tissue, which are a source of revenue for organised crime groups in the context of contract killings, intimidation and trafficking in human beings. Similarly kidnapping, illegal restraint or hostage taking, as well as racketeering and extortion, are utilized either as source of revenue through the collection of ransom money or as intimidation tactics against adversaries. The crime of organised or armed robbery is one of the most common forms to generate profits for organised criminal groups, and it is often committed in conjunction with other crimes, in particular the trafficking in firearms. Similarly, the trafficking in stolen vehicles cannot only generate profits but also represents an enabling crime to provide for the necessary instrumentalities to carry out further offences. In addition, it is key to include tax crimes to the extent it is committed as part of a criminal organisation in the scope of the Directive, as this specific crime is an enabling source of profits, especially when operating in a cross-border context. Typical techniques employed to commit tax fraud or evasion consist of making use of cross-border corporate structures or similar arrangements to fraudulently obtain tax benefits and refunds, hide assets or profits, merge legal with illicit profits and assets or to transfer them to other entities abroad to disguise their origins or (beneficial) ownership.
(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.
(10) Other crimes committed within the framework of a criminal organisation play a pivotal role in generating revenues and in enabling further crimes, including serious crimes with a cross-border nature. Such crimes should be included in the scope of the Directive to the extent to which they are committed within the framework of a criminal organisation. The counterfeiting and piracy of products is linked to money laundering and the forgery of documents, and threatens the functioning of the single market and fair competition. The illicit trafficking in cultural goods, including antiques and works of art, is often intertwined with money laundering and constitutes an important source of financing for organised criminal groups. Forgery of administrative documents and trafficking therein, including bank documents or identification documents, is a key enabling tool for money laundering, trafficking in human beings, or migrant smuggling, and should as such be covered in the scope of this Directive. Other crimes which are often carried out within the framework of an organised crime group include murder or grievous bodily harm, as well as the illicit trade in human organs and tissue, which are a source of revenue for organised crime groups in the context of contract killings, intimidation and trafficking in human beings. Similarly kidnapping, illegal restraint or hostage taking, as well as racketeering and extortion, are utilized either as source of revenue through the collection of ransom money or as intimidation tactics against adversaries. The crime of organised or armed robbery is one of the most common forms to generate profits for organised criminal groups, and it is often committed in conjunction with other crimes, in particular the trafficking in firearms. Similarly, the trafficking in stolen vehicles cannot only generate profits but also represents an enabling crime to provide for the necessary instrumentalities to carry out further offences. In addition, it is key to include tax crimes to the extent it is committed as part of a criminal organisation in the scope of the Directive, as this specific crime is an enabling source of profits, especially when operating in a cross-border context. Typical techniques employed to commit tax fraud or evasion consist of making use of cross-border corporate structures or similar arrangements to fraudulently obtain tax benefits and refunds, hide assets or profits, merge legal with illicit profits and assets or to transfer them to other entities abroad to disguise their origins or (beneficial) ownership. It is also important to include within the scope of this Directive all relevant criminal offences covered by Regulation (EU) 2018/1805 of the European Parliament and of the Council1a. Therefore, illicit trafficking in nuclear or radioactive materials, crimes within the jurisdiction of the International Criminal Court, unlawful seizure of aircraft or ships and sabotage should be added to the scope of this Directive.
(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.
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1a Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders (OJ L 303, 28.11.2018, p. 1).
Or. en
Proposal for a directive
Recital 1724
Text proposed by the Commission
Amendment
(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 .
(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.
(17) In order to perform effective asset tracing investigations, and to swiftly respond to cross-border requests, asset recovery offices should have direct 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. To the extent possible and where such information is contained in databases and automated systems, such access should be direct and immediate. Where an additional intervention to make such information available is required in order to provide access, the competent authorities should provide such information swiftly in order to allow the asset recovery offices to discharge their tasks under this Directive effectively. 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 .
(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.
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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).
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).
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).
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 1826
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.
(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.
(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 have direct access to SIENA.
(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.
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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).
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
Proposal for a directive
Recital 2427
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.
(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.
(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, on the basis of concrete facts and circumstances, a national court has established that third parties knew or could be expected to have known that the purpose of the transfer or acquisition was to avoid confiscation or that the transferred property was directly or indirectly linked to criminal conduct, 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. The rights of bona fide third parties who have provided fair market-value consideration for the acquisition of the asset should not be affected. Such third parties should be given the opportunity to present their observations on the envisaged confiscation measure or be able to request the restitution of the property in court.
(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.
Or. en
Proposal for a directive
Recital 2628
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.
(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 a criminal organisation, these criminal offences are liable to give rise to substantial economic benefits and the court is satisfied that the frozen property is derived from criminal activities carried out within the framework of a criminal organisation. 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 that are serious in nature and liable to generate substantial benefits. When determining whether the offences are liable to give rise to significant benefits, Member States should take into account all relevant circumstances of the offence, including whether the criminal activities were committed with the intention to generate regular substantial profits. 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 offences. 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. Member States should then require and award an effective possibility for the owner of the property to prove that the property in question derives from lawful activities.
(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. In such cases, it is appropriate and proportionate to introduce a time limit of 15 years. A number of Member States already have in place such non-conviction based confiscation tools, which have proven to be highly effective, especially when compared to traditional mechanisms of confiscation. Non-conviction based mechanisms for asset recovery have also long been recognised in key international treaties, including the UN Convention Against Corruption, and by standard-setting bodies such as the Financial Action Task Force (FATF). The 2005 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime and on the Financing of Terrorism calls on Parties to the Convention to assist other Parties in the execution of freezing and confiscation orders that are not based upon a criminal conviction. The Union-funded Camden Asset Recovery Inter-Agency Network has also issued several recommendations on non-conviction based confiscation. 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.
(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.
Or. en
Proposal for a directive
Recital 28 a (new)
Text proposed by the Commission
Amendment
(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 a criminal organisation, these criminal offences are liable to give rise to substantial economic benefits and the court is satisfied that the frozen property is derived from criminal activities carried out within the framework of a criminal organisation. 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 that are serious in nature and liable to generate substantial benefits. When determining whether the offences are liable to give rise to significant benefits, Member States should take into account all relevant circumstances of the offence, including whether the criminal activities were committed with the intention to generate regular substantial profits. 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 offences. 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. Member States should then require and award an effective possibility for the owner of the property to prove that the property in question derives from lawful activities.
(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.
(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. Nevertheless, 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. 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 a criminal organisation, these criminal offences are liable to give rise to substantial economic benefits and the court is satisfied that the frozen property is derived from criminal activities carried out within the framework of a criminal organisation. 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 that are serious in nature and liable to generate substantial benefits. When determining whether the offences are liable to give rise to significant benefits, Member States should take into account all relevant circumstances of the offence, including whether the criminal activities were committed with the intention to generate regular substantial profits. 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 offences. 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. Member States should then require and award an effective possibility for the owner of the property to prove that the property in question derives from lawful activities. In that context, FATF Recommendation 4 also states that countries should consider adopting measures which require an offender to demonstrate the lawful origin of the property alleged to be liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law.
Or. en
Proposal for a directive
Recital 28 a (new)
Article 3 – paragraph 1 – point 9 a (new)
Text proposed by the Commission
Amendment
(28a) It should be possible to trace and identify property to be frozen and confiscated even after a final conviction for a criminal offence or following non-conviction based confiscation proceedings. However, that possibility should not prevent Member States from setting reasonable time limits after final convictions or final decisions in non-conviction based confiscation proceedings, following which it would no longer be possible to trace and identify such property.
(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;
Or. en
Proposal for a directive
Recital 29
Article 3 – paragraph 1 – point 10
Text proposed by the Commission
Amendment
(29) To ensure that property that is or may become subject to a freezing or confiscation order maintains its economic value Member States should put in place effective management measures. Such measures should include a systematic assessment of how to best preserve and optimise the value of property before the adoption of freezing measures, also known as pre-seizure planning.
(10) ‘beneficial owner’ means a beneficial owner as defined in Article 3, point (6), of Directive 2015/849/EU55 ;
(29) To ensure that property which is or may become subject to a freezing or confiscation order maintains its economic value Member States should put in place effective management measures. Such measures should include a systematic assessment of how to best preserve and optimise the value of property before the adoption of freezing measures, also known as pre-seizure planning. Pre-seizure planning should be used in all cases unless the urgency of the matter would require limiting or foregoing that step.
(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
Recital 29 a (new)
Article 3 – paragraph 1 – point 10 a (new)
Text proposed by the Commission
Amendment
(29a) Member States should take the necessary measures to ensure that victims’ claims are fully respected prior to the final confiscation measure. Member States should pay particular attention to victims’ claims in all proceedings and especially in cross-border cases. Furthermore, Member States should, where possible and as a matter of priority, take the necessary measures to restitute the property concerned or, where that is not possible, a value equivalent to the property in question to the victim.
(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];
Or. en
Proposal for a directive
Recital 29 b (new)
Article 11 – paragraph 1
Text proposed by the Commission
Amendment
(29b) Member States should take the necessary measures to allow confiscated property to be used for public interest or social purposes. Considering the significant costs associated with tracing and identification, freezing and confiscation, such property can be kept as State property for justice, law enforcement, public service or economic purposes or be transferred to the local or regional authorities responsible for the area in which the property is located for institutional, social or economic purposes, including for assignment to organisations carrying out work of social interest.
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.
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
Recital 29 c (new)
Article 11 – paragraph 2
Text proposed by the Commission
Amendment
(29c) Where the confiscated assets originated in a third country, Member States should return them to the third country based on a return agreement. Such return agreements should be made publicly available. Such return agreements could set out, inter alia, how the funds would be reinvested, for example compensating victims’ losses or contributing to projects with a high social impact that have been selected based on the needs of the affected populations and following a transparent procedure.
2. Freezing measures shall include immediate action to be taken when necessary in order to preserve the property.
deleted
Or. en
Justification
covered in para 3
Amendment 14
Proposal for a directive
Recital 31
Article 11 – paragraph 3
Text proposed by the Commission
Amendment
(31) Member States should set up asset management offices with the purpose of establishing specialised authorities tasked with the management of frozen and confiscated property in order to effectively manage the property frozen before confiscation and preserve its value, pending a final decision on the confiscation. Without prejudice to the Member States’ internal administrative structures, asset management offices should either be the sole authority managing frozen or confiscated property, or should provide support to decentralised actors according to national management set-ups, and support relevant authorities with pre-seizure planning.
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.
(31) Member States should set up asset management offices with the purpose of establishing specialised authorities tasked with the management of frozen and confiscated property in order to effectively manage the property frozen before confiscation and preserve its value, pending a final decision on the confiscation. Without prejudice to the Member States’ internal administrative structures, asset management offices should either be the sole authority managing frozen or confiscated property, or should provide support to decentralised actors according to national management set-ups, and support relevant authorities with pre-seizure planning. For the sake of efficiency, Member States should consider setting up asset recovery and asset management offices within a single legal and organisational structure.
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.
Or. en
Proposal for a directive
Recital 34
Article 11 – paragraph 4
Text proposed by the Commission
Amendment
(34) Freezing, confiscation, and interlocutory sales orders should be communicated to the affected party without delay. The purpose of communicating those orders is, inter alia, to allow the affected person to challenge them before a court. Therefore, such communications should, as a general rule, indicate the reason or reasons for the order concerned. The affected party should have the effective possibility to challenge the freezing, confiscation, and interlocutory sales orders. In the case of confiscation orders where all elements of the criminal offence are present but a criminal conviction is impossible, the defendant should have a possibility to be heard before the adoption of the order. The same possibility should be provided for the owner affected by an order to sell the property before confiscation.
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.
(34) Freezing, confiscation, and interlocutory sales orders should be communicated to the affected person without delay. The purpose of communicating those orders is, inter alia, to allow the affected person to challenge them before a court. Therefore, such communications should, as a general rule, indicate the reason or reasons for the order concerned. The affected party should have the effective possibility to challenge the freezing, confiscation, and interlocutory sales orders. In the case of confiscation orders where all elements of the criminal offence are present but a criminal conviction is impossible, the defendant should have a possibility to be heard before the adoption of the order. The same possibility should be provided for the owner affected by an order to sell the property before confiscation.
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
Recital 39
Article 11 – paragraph 5
Text proposed by the Commission
Amendment
(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.
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.
(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. National strategies should include a description of the roles and responsibilities of all the competent authorities involved in asset recovery, confiscation and management and the particular mechanisms of cooperation among them. Furthermore, Member States should provide competent authorities with the necessary resources and legal powers 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.
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.
Amendment 17
Proposal for a directive
Recital 41
Article 11 – paragraph 6
Text proposed by the Commission
Amendment
(41) To ensure consistent approaches among Member States in the collection of statistics, the power to adopt acts in accordance with Article 290 of the TFEU should be delegated to the Commission to supplement this Directive by adopting more detailed rules on the information to be collected and the methodology for the collection of the statistics.
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.
(41) To ensure consistent approaches among Member States in the collection of statistics, Member States should include, for all criminal offences, at least the number of freezing orders executed, the number of confiscation orders executed, the value of property frozen, the value of property recovered, the number of requests for freezing orders to be executed in another Member State, the number of requests for confiscation orders to be executed in another Member State, the value of the property recovered following execution in another Member State, the value of the property destined to be reused for law enforcement, prevention or social purposes, the number of cases in which confiscation was ordered in correlation with the number of convictions for the criminal offences covered by this Directive, the number of requests for freezing and confiscation orders rejected by the courts, the type of use to which the confiscated property has been put and the length of the procedures for allocating the confiscated property. The power to adopt acts in accordance with Article 290 of the TFEU should be delegated to the Commission to supplement this directive by providing more detailed rules on the information to be collected, the methodology for the collection and transmission of the data to the Commission.
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
Recital 43 a (new)
Article 13 – paragraph 1 – subparagraph 1
Text proposed by the Commission
Amendment
(43a) In order to advise the Commission on the implementation of the measures provided for in this Directive, to exchange information on the efficiency and effectiveness of the cooperation with third countries and to analyse the national strategies on asset recovery adopted by Member States to identify best practices, a platform on asset recovery and confiscation (the ‘platform’) should be established under the aegis of the Commission. The platform should be composed of representatives from asset recovery offices and asset management offices and should be chaired by a representative of the Commission. It should be possible to invite representatives from Europol, Eurojust and the European Public Prosecutors Office to participate to the meetings of the platform.
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.
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.
Or. en
Proposal for a directive
Recital 45
Article 13 – paragraph 1 – subparagraph 2
Text proposed by the Commission
Amendment
(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 should also cooperate with 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.
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.
(45) Asset recovery offices should also closely cooperate with EU bodies and agencies, including Europol 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 or within the investigations undertaken by the European Public Prosecutor’s Office. Asset recovery offices should also cooperate with Europol in accordance with its mandate, 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.
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.
Or. en
Proposal for a directive
Recital 45 a (new)
Article 13 – paragraph 2
Text proposed by the Commission
Amendment
(45a) In accordance with its mandate, Eurojust should support national authorities in all stages of the asset recovery process from the tracing and identification, freezing, confiscation and asset management of assets to the disposal of assets. Asset recovery offices and asset management offices should closely cooperate with Eurojust for the purpose of facilitating the entire asset recovery process. Such cooperation encompasses the tracing and identification of instrumentalities, proceeds, or property that may become or is the object of a freezing or confiscation order made by a competent authority in the course of proceedings in criminal matters and subsequent disposal, including the investigation and prosecution of criminal offences related to the violation of Union restrictive measures.
2. Paragraph 1 shall not affect the rights of bona fide third parties.
deleted
Or. en
Proposal for a directive
Recital 47
Article 13 – paragraph 2 a (new)
Text proposed by the Commission
Amendment
(47) Since the objective of this Directive, namely facilitating confiscation of property in criminal matters, cannot be sufficiently achieved by the Member States but can rather 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 (TEU). 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.
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.
(47) Since the objective of this Directive, namely facilitating confiscation of property in proceedings in criminal matters, cannot be sufficiently achieved by the Member States but can rather 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 (TEU). 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.
Or. en
Proposal for a directive
Recital 51
Article 15 – paragraph 1 – point a
Text proposed by the Commission
Amendment
(51) The European Data Protection Supervisor was consulted in accordance with Article 42 of Regulation (EU) 2018/1725 and delivered an opinion on XX/XX/20XX.
(a) illness of the suspected or accused person;
(51) The European Data Protection Supervisor was consulted in accordance with Article 42 of Regulation (EU) 2018/1725 and delivered an opinion on 19 July 2022.
(a) prolonged illness of the suspected or accused person;
Or. en
Proposal for a directive
Article 215 – paragraph 21 – point j a (new)d
Text proposed by the Commission
Amendment
(ja) illicit trafficking in nuclear or radioactive materials;
(d) immunity from prosecution of the suspected or accused person, as provided for under national law;
(d) immunity from prosecution of the suspected or accused person, as provided for under international law;
Or. en
Proposal for a directive
Article 215 – paragraph 21 – point j b (new)f
Text proposed by the Commission
Amendment
(jb) crimes within the jurisdiction of the International Criminal Court;
(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.
(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 215 – paragraph 2 – point j c (new)
Text proposed by the Commission
Amendment
(jc) unlawful seizure of aircraft or ships;
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.
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.
Or. en
Proposal for a directive
Article 215 – paragraph 2 – point j d (new)3
Text proposed by the Commission
Amendment
(jd) sabotage;
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.
Or. en
Proposal for a directive
Article 315 – paragraph 1 – point 24
Text proposed by the Commission
Amendment
(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;
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.
(2) ‘property’ means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments in any form, evidencing title or interest in such property;
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.
Or. en
Proposal for a directive
Article 316 – paragraph 1 – point 10 a (new)
Text proposed by the Commission
Amendment
(10a) ‘affected person’ means:
(a) the property is frozen in the context of an investigation into criminal offences committed in the framework of a criminal organisation;
(a) a natural or legal person against whom a freezing order or confiscation order is issued;
(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;
(b) a natural or legal person that owns property that is the object of a freezing order or confiscation order; or
(c) a third party whose rights in relation to property that is the object of a freezing order or confiscation are directly prejudiced by that order;
Or. en
Proposal for a directive
Article 416 – paragraph 1 – point b
Text proposed by the Commission
Amendment
1. To facilitate cross-border cooperation, Member States shall take measures to enable the swift tracing and identification of instrumentalities and proceeds, or property which may become or is the object of a freezing or confiscation order in the course of criminal proceedings.
(b) the criminal offence pursuant to point (a) is liable to give rise, directly or indirectly, to substantial economic benefit;
1. To facilitate cross-border cooperation, Member States shall take measures to enable the swift tracing and identification of instrumentalities and proceeds, or property which may become or is the object of a freezing or confiscation order in the course of proceedings in criminal matters.
(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
Proposal for a directive
Article 516 – paragraph 21 a– (new)point c
Text proposed by the Commission
Amendment
2a. In order to perform the tasks pursuant to paragraph 2, point (b), asset recovery offices shall be entitled to request the relevant competent authorities to take the necessary measures for the tracing and identification of instrumentalities, proceeds, or property.
(c) the national court is satisfied that the frozen property is derived from criminal offences committed in the framework of a criminal organisation.
(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
Proposal for a directive
Article 516 – paragraph 4 a (new)2
Text proposed by the Commission
Amendment
4a. Member States shall give due consideration to the possibility of entrusting asset recovery offices with the tasks set out in Article 21(2).
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.
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. The burden of proof shall be carried by the prosecution.
Or. en
Proposal for a directive
Article 616 – paragraph 1 – introductory part4
Text proposed by the Commission
Amendment
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:
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.
1. For the purposes of performing the tasks referred to in Article 5, Member States shall ensure that asset recovery offices have appropriate access to any information to the extent necessary for the tracing and identification of instrumentalities, proceeds, and property. That access shall include, in particular:
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.
Or. en
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 18 – title
Text proposed by the Commission
Amendment
(a) fiscal data, including data held by tax and revenue authorities;
Victims compensation
(a) immediate and direct access to:
Compensation and claims of the victims and of the public concerned
(i) fiscal data, including data held by tax and revenue authorities;
(ii) national real estate registers or electronic data retrieval systems and land and cadastral registers;
(iii) national citizenship and population registers of natural persons;
(iv) national motor vehicle, aircraft and watercraft registers;
(v) commercial databases, including business and company registers;
(vi) national beneficial ownership registers;
(vii) data available through the interconnection of beneficial ownership registers in accordance with [Article 12 of 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];
(viii) national social security registers; and
(ix) bank account registers, including information on wire-transfers.
Or. en
Proposal for a directive
Article 618 – paragraph 1 – point b
Text proposed by the Commission
Amendment
(b) national real estate registers or electronic data retrieval systems and land and cadastral registers;
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.
(b) direct or indirect access to:
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
(i) information on mortgages and loans;
(ii) information contained in the national currency and currency exchange databases;
(iii) information on securities;
(iv) customs data, including cross-border physical transfers of cash;
(v) information held by commercial courts;
(vi) information on annual financial statements by companies;
(vii) relevant information which is held by authorities competent for preventing, detecting, investigating or prosecuting criminal offences.
Or. en
Proposal for a directive
Article 618 – paragraph 1 – pointa c(new)
Text proposed by the Commission
Amendment
(c) national citizenship and population registers of natural persons;
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.
deleted
Or. en
Proposal for a directive
Article 619 – paragraph 1 – point d
Text proposed by the Commission
Amendment
(d) national motor vehicles, aircraft and watercraft registers;
1. Member States shall ensure the efficient management of frozen and confiscated property until its disposal.
deleted
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
Proposal for a directive
Article 620 – paragraph 1 – pointintroductory epart
Text proposed by the Commission
Amendment
(e) commercial databases, including business and company registers;
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:
deleted
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 620 – paragraph 1 – point fc
Text proposed by the Commission
Amendment
(f) national social security registers;
(c) the property is too difficult to administer, or its management requires special conditions and non-readily available expertise.
deleted
(c) the management of the property requires special conditions and expertise that are non-readily available.
Or. en
Proposal for a directive
Article 620 – paragraph 1 – point g2
Text proposed by the Commission
Amendment
(g) relevant information which is held by authorities competent for preventing, detecting, investigating or prosecuting criminal offences.
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.
deleted
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.
Or. en
Proposal for a directive
Article 620 – paragraph 24
Text proposed by the Commission
Amendment
2. Where the information referred to in paragraph 1 is not stored in databases or registers, Member States shall take the necessary measures to ensure that asset recovery offices can swiftly obtain that information by other means.
4. Member States may require the costs for the management of frozen property to be charged to the beneficial owner.
2. Where the information referred to in paragraph 1 is not stored in databases or registers, Member States shall take the necessary measures to ensure that asset recovery offices can swiftly obtain that information by other means. Where an asset recovery office requests access to information which is not directly available to it, the requested authority shall respond to the request in a timely manner.
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
Proposal for a directive
Article 622 – paragraph 2 a (new)1
Text proposed by the Commission
Amendment
2a. The Commission may adopt delegated acts in accordance with Article 30 laying down specifications for a standardised template for requests for information as referred to in paragraph 1, point (b), of this Article.
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.
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 923 – paragraph 54 – subparagraph 2
Text proposed by the Commission
Amendment
5. Member States shall ensure that asset recovery offices have direct access to SIENA and use the SIENA system for exchanging information pursuant to this Article.
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.
5. Information under this Article shall be exchanged through SIENA. Member States shall ensure that their asset recovery offices have direct access to SIENA.
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 1123 – paragraph 14 – subparagraph 4
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.
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.
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. Freezing measures shall consist of freezing orders and immediate action in the form of temporary urgent freezing measures.
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.
Or. en
Proposal for a directive
Article 1125 – paragraph 2title
Text proposed by the Commission
Amendment
2. Freezing measures shall include immediate action to be taken when necessary in order to preserve the property.
Resources
2. Immediate action in the form of temporary urgent freezing measures shall be taken when necessary in order to preserve the property.
Resources and training
Or. en
Proposal for a directive
Article 1325 – paragraph 1 – subparagraph 1
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.
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 take the necessary measures to enable the confiscation of proceeds, or other property up to the value corresponding to those 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. The confiscation of those proceeds or other property shall be enabled where based on concrete facts and circumstances a national court has established that those third parties knew or could be expected to have known that the purpose of the transfer or acquisition was to avoid confiscation or that the transferred property was directly or indirectly linked to criminal conduct. Such facts and circumstances may be that the transfer or acquisition was carried out free of charge or in exchange for an amount disproportionate to the market value.
Member States shall ensure that asset recovery offices, asset management offices and other competent authorities 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.
Or. en
Proposal for a directive
Article 1325 – paragraph 21 a (new)
Text proposed by the Commission
Amendment
2. Paragraph 1 shall not affect the rights of bona fide third parties.
deleted
Or. en
Amendment 47
Proposal for a directive
Article 15 – paragraph 1 – point f
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.
(f) the time limits prescribed by national law have expired, provided that such limits are not longer than 15 years.
Or. en
Amendment 48
Proposal for a directive
Article 15 – paragraph 2
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.
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, based on available information, that all the elements of the offence are present and that the instrumentalities, proceeds or property to be confiscated are derived from or directly or indirectly linked to the criminal conduct in question.
Or. en
Amendment 49
Proposal for a directive
Article 16 – paragraph 1 – introductory part
Text proposed by the Commission
Amendment
1. Member States shall take the necessary measures to enable the confiscation of property, where confiscation is not possible pursuant to Articles 12 to 15 and the following conditions are fulfilled:
1. Member States shall take the necessary measures to enable the confiscation of property, where confiscation is not possible pursuant to Articles 12 to 15 and where the national court is satisfied that the frozen property is derived from a criminal offence which is liable to give rise, directly or indirectly, to a substantial economic benefit and which was committed in the framework of a criminal organisation. In order to determine whether the frozen property is derived from a criminal offence, Member States shall ensure that account is taken of all the circumstances of the case, including the specific facts and available evidence, such as the fact that the value of the property is substantially disproportionate to the lawful income of the owner of the property.
Or. en
Amendment 50
Proposal for a directive
Article 17 – paragraph 2
Text proposed by the Commission
Amendment
2. Member States shall consider taking measures allowing confiscated property to be used for public interest or social purposes.
deleted
Or. en
Amendment 51
Proposal for a directive
Article 17 a (new)
Text proposed by the Commission
Amendment
Article 17a
Further use of the confiscated property
1. Member States shall take the necessary measures to allow confiscated property to be used for public interest or social purposes. Such property may be kept as State property for justice, law enforcement, public service or economic purposes or be transferred to the local or regional authorities responsible for the area in which the property is located, for institutional, social or economic purposes, including for assignment to organisations carrying out work of social interest.
2. Where the confiscated assets originated in a third country, Member States shall take all appropriate measures to return them to the third country. That obligation is without prejudice to the possibility to retain a portion of the assets to cover the costs associated with tracing and identification or management directly related to such assets.
Or. en
Amendment 52
Proposal for a directive
Article 18 – title
Text proposed by the Commission
Amendment
Victims compensation
Victim compensation and restitution
Or. en
Amendment 53
Proposal for a directive
Article 18 – paragraph 1
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.
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, as a matter of priority, take the necessary measures to ensure that victims’ claims for compensation are taken into account prior to the final confiscation measure. Member State shall pay particular attention to the victim’s claims in cross-border cases.
Or. en
Amendment 54
Proposal for a directive
Article 18 – paragraph 1 a (new)
Text proposed by the Commission
Amendment
Where, as a result of a criminal offence, a victim is entitled to restitution of property subject to confiscation, Member States shall, where possible and as a matter of priority, take the necessary measures to restitute the property concerned to the victim.
Or. en
Amendment 55
Proposal for a directive
Article 18 – paragraph 1 b (new)
Text proposed by the Commission
Amendment
Where it is not possible to restitute the property to the victim in accordance with paragraph 2, and financial assets have been obtained as a result of the execution of the confiscation or interlocutory sale in relation to that property, such assets shall be transferred to the victim for the purposes of restitution.
Or. en
Amendment 56
Proposal for a directive
Article 19 – paragraph 2
Text proposed by the Commission
Amendment
2. Member States shall ensure that, before issuing a freezing order within the meaning of Article 11 paragraph 1, competent authorities responsible for the management of frozen and confiscated property carry out an assessment of the costs which may be incurred in the management of the property which may be frozen, for the purposes of preserving and optimizing the value of such property until its disposal.
2. Member States shall ensure that, before issuing a freezing order within the meaning of Article 11 paragraph 1, competent authorities responsible for the management of frozen and confiscated property carry out an assessment of the costs which may be incurred in the management of the property which may be frozen, for the purposes of preserving and optimizing the value of such property until its disposal, unless the urgency of a case would require foregoing such an assessment. Any decision by the competent authorities to forego such an assessment shall be duly justified.
Or. en
Amendment 57
Proposal for a directive
Article 20 – paragraph 1 – point a
Text proposed by the Commission
Amendment
(a) the property subject to freezing is perishable or rapidly depreciating;
(a) the property subject to freezing is perishable or depreciating;
Or. en
Amendment 58
Proposal for a directive
Article 20 – paragraph 2
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, where necessary, is heard before the sale. The owner shall be given the possibility to request the sale of the property.
Or. en
Amendment 59
Proposal for a directive
Article 21 – paragraph 2 a (new)
Text proposed by the Commission
Amendment
2a. Member States shall give due consideration to the possibility of entrusting asset management offices with the tasks provided for in Article 5(2).
Or. en
Amendment 60
Proposal for a directive
Article 23 – paragraph 4 – subparagraph 2
Text proposed by the Commission
Amendment
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.
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 could be expected to have known that the purpose of the transfer or acquisition was to avoid confiscation or that the transferred property was directly or indirectly linked to criminal conduct on the basis of concrete facts and circumstances. Such facts and circumstances may include the fact that the transfer or acquisition was carried out free of charge or in exchange for an amount disproportionate to the market value.
Or. en
Amendment 61
Proposal for a directive
Article 23 – paragraph 4 – subparagraph 3
Text proposed by the Commission
Amendment
In the case of confiscation orders pursuant to Articles 14 and 16, such circumstances shall include specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived from criminal conduct.
In the case of confiscation orders pursuant to Articles 14 and 16, such circumstances shall include specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived directly or indirectly from criminal conduct.
Or. en
Amendment 62
Proposal for a directive
Article 24 – paragraph 1
Text proposed by the Commission
Amendment
1. Member States shall adopt by [one year after the entry into force of this Directive] a national strategy on asset recovery and update it at regular intervals of no longer than five years.
1. Member States shall adopt by [one year after the entry into force of this Directive] a national strategy on asset recovery and update it at regular intervals of no longer than three years.
Or. en
Amendment 63
Proposal for a directive
Article 24 – paragraph 2 – subparagraph 1 – point a
Text proposed by the Commission
Amendment
(a) strategic objectives, priorities and measures for the purposes of enhancing efforts by all competent national authorities involved in the recovery of property as set out in this Directive;
(a) strategic objectives, priorities and measures for the purposes of enhancing efforts by all competent national authorities involved in the recovery and management of property as set out in this Directive;
Or. en
Amendment 64
Proposal for a directive
Article 24 – paragraph 2 – subparagraph 1 – point b
Text proposed by the Commission
Amendment
(b) a governance framework to achieve the strategic objectives and priorities, including a description of the roles and responsibilities of all the competent authorities and cooperation mechanisms;
(b) a governance framework to achieve the strategic objectives and priorities, including effective cooperation between asset recovery offices and financial intelligence units;
Or. en
Amendment 65
Proposal for a directive
Article 24 – paragraph 2 – subparagraph 1 – point d
Text proposed by the Commission
Amendment
(d) resources made available to competent authorities, including training;
(d) appropriate financial resources, appropriate training and appropriate legal capabilities made available to competent authorities;
Or. en
Amendment 66
Proposal for a directive
Article 24 – paragraph 2 – subparagraph 1 – point e a (new)
Text proposed by the Commission
Amendment
(ea) recourse to the possibility to use frozen and confiscated assets for public interest or social purposes.
Or. en
Amendment 67
Proposal for a directive
Article 24 – paragraph 2 – subparagraph 2 (new)
Text proposed by the Commission
Amendment
For the purposes of the first subparagraph, point (b), Member States shall also duly assess the possibility and potential benefits of bringing their asset recovery and asset management offices under a single legal and organisational structure.
Or. en
Amendment 68
Proposal for a directive
Article 26 – paragraph 3 – point b
Text proposed by the Commission
Amendment
(b) the estimated or actual value of the property at the moment of the freezing, confiscation and disposal;
(b) the estimated or actual value of the property at the moment of the freezing;
Or. en
Amendment 69
Proposal for a directive
Article 26 – paragraph 5 a (new)
Text proposed by the Commission
Amendment
5a. Member States shall designate the competent authority or authorities responsible for the management of the centralised registries. Those authorities shall be considered to be the controller within the meaning of Article 3, point (8), of Directive (EU) 2016/680.
Or. en
Amendment 70
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 regularly collect from the relevant authorities and maintain at central level comprehensive statistics on the measures taken under this Directive in order to review the effectiveness of their confiscation systems.
Or. en
Amendment 71
Proposal for a directive
Article 27 – paragraph 2
Text proposed by the Commission
Amendment
2. Member States shall ensure that the statistics referred to in paragraph 1 are collected on a calendar basis and transmitted to the Commission on an annual basis, by [1 September] of the following year.
2. Member States shall ensure that the statistics referred to in paragraph 1 are collected on a calendar basis and transmitted to the Commission on an annual basis, by [1 September] of the following year. 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 in which confiscation was 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 rejected by the courts;
(k) the type of use to which the confiscated property has been put; and
(l) the length of the procedures for allocating the confiscated property.
Or. en
Amendment 72
Proposal for a directive
Article 27 a (new)
Text proposed by the Commission
Amendment
Article 27a (new)
Platform on asset recovery and confiscation
A platform on asset recovery and confiscation (the ‘platform’) shall be established under the aegis of the Commission. The platform shall be composed of representatives from asset recovery offices and asset management offices and shall be chaired by a representative of the Commission. The platform shall be convened at regular intervals.
The platform shall:
(a) advise the Commission on the implementation of the measures provided for in this Directive;
(b) exchange information on the efficiency and effectiveness of the cooperation with third countries;
(c) analyse the national strategies on asset recovery adopted by Member States pursuant to Article 24 in order to identify best practices.
Representatives from Europol, Eurojust and the European Public Prosecutors Office may be invited to participate in the meetings of the platform.
Or. en
(Article 27a (new) is inserted in Chapter VII before Article 28.)
Amendment 73
Proposal for a directive
Article 28 – paragraph 2
Text proposed by the Commission
Amendment
2. Asset recovery offices shall cooperate with Europol and Eurojust, in accordance with the areas of their competence, for the purposes of facilitating the identification of instrumentalities and proceeds, or property that may become or is the object of a freezing or confiscation order made by a competent authority in the course of criminal proceedings, and where necessary to prevent, detect or investigate criminal offences related to the violation of Union restrictive measures.
2. Asset recovery offices shall cooperate with Europol, for the purposes of facilitating the identification of instrumentalities and proceeds, or property that may become or is the object of a freezing or confiscation order made by a competent authority in the course of proceedings in criminal matters, and where necessary to prevent, detect or investigate criminal offences related to the violation of Union restrictive measures.
Or. en
Amendment 74
Proposal for a directive
Article 28 – paragraph 2 a (new)
Text proposed by the Commission
Amendment
2a. Asset recovery offices and asset management offices shall closely cooperate with Eurojust for the purpose of facilitating the asset recovery process in accordance with Eurojust’s mandate, including, but not limited t,o the tracing and identification of instrumentalities and proceeds, or property that may become or is the object of a freezing or confiscation order made by a competent authority in the course of proceedings in criminal matters and subsequent disposal, including in the course of the investigation and prosecution of criminal offences related to the violation of Union restrictive measures.
Or. en
Amendment 75
Proposal for a directive
Article 33 – paragraph 1
Text proposed by the Commission
Amendment
1. The Commission shall, by [date of entry into force + 3 years], submit a report to the European Parliament and to the Council, assessing the implementation of this Directive.
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. The Commission shall, by [date of entry into force + 3 years], submit a report to the European Parliament and to the Council, assessing the implementation of this Directive. The report shall include a detailed assessment of the possibility and benefits of interconnecting the centralised registries referred to in Article 26 through a single access point in order to allow asset recovery offices to directly and immediately search the data contained therein, subject to relevant safeguards.
Or. en