Sittings · Document

OPINION (COM(2022)0245 – C90186/2022 – 2022/0167(COD)) 2023-03-24

On the proposal for a directive of the European Parliament and of the Council on asset recovery and confiscation

Committee on Legal Affairs · Rapporteur: Sergey Lagodinsky

PA_Legam

AMENDMENTS

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

Amendment 1

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(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 criminal proceedings. 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. Until a judicial decision determines the compensation and/or restitution, the sum obtained either as a result of the execution of the confiscation order or by the disposal of the confiscated property should be transferred to the bank account of the victim where applicable.

Amendment 2

Proposal for a directive

Recital 3 a (new)

Text proposed by the Commission

Amendment

(3a) According to the circumstances and in full respect of the right to compensation of victims, Member States should adopt measures allowing the use of confiscated property for purposes of public or social interest. Where specific national legislation, which provides for the direct or indirect reuse of confiscated property for purposes of public or social interest, as well as for measures adopted for its management, with the aim of reinforcing the rule of law and the involvement of civil society in the fight against organised crime already exist, the Member States concerned may refer to them in their national strategies on asset recovery.

Amendment 3

Proposal for a directive

Recital 10

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.

(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. The same applies to the illegal trade and trafficking of endangered animal and plant species, including their body parts or products derived from them. 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.

Amendment 4

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12) In order to capture property which might be transformed and transferred in order to conceal its origin, and in order to ensure harmonisation and clarity of definitions across the Union, property that can be subject to freezing and confiscation should be defined broadly. It should cover legal documents or instruments evidencing title or interest in property subject to freezing and confiscation including, for example, financial instruments, or documents that may give rise to creditor claims and are normally found in the possession of the person affected by the relevant procedures, as well as trusts. This Directive is without prejudice to the existing national procedures for keeping legal documents or instruments evidencing title or interest in property, as they are applied by the competent national authorities or public bodies in accordance with national law. The definition should cover all forms of property, including crypto assets.

(12) In order to capture property which might be transformed and transferred in order to conceal its origin, and in order to ensure harmonisation and clarity of definitions across the Union, property that can be subject to freezing and confiscation should be defined broadly. It should cover legal documents or instruments, in any form, including electronic or digital, evidencing title or interest in property subject to freezing and confiscation including, for example, financial instruments, or documents that may give rise to creditor claims and are normally found in the possession of the person affected by the relevant procedures, as well as trusts. This Directive is without prejudice to the existing national procedures for keeping legal documents or instruments evidencing title or interest in property, as they are applied by the competent national authorities or public bodies in accordance with national law. The definition should cover all forms of property, including crypto assets.

Amendment 5

Proposal for a directive

Recital 17

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 .

(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, including a court authorisation where required by national law. These safeguards should be without prejudice to Article 25 of Directive (EU) 2016/680 of the European Parliament and of the Council23. Access to information by asset recovery offices should be as direct as possible, while respecting national constitutional requirements. The access without delay to this information does not prevent Member States from making access subject to procedural safeguards as established under national law, such as a court authorisation, while taking due account of the need for asset recovery offices to be able to swiftly reply to cross-border 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.

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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).

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).

Amendment 6

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

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

(20) Confiscation leads to the final deprivation of property. However, preservation of property can be a prerequisite to confiscation and is often essential for the proper tracing of proceeds and other property directly or indirectly derived from criminal conduct, and for the effective enforcement of a confiscation order. Property is preserved by means of freezing. In order to prevent the dissipation of property before a freezing order can be issued, the competent authorities in the Member States, including asset recovery offices, should be empowered to take immediate action in order to secure such property. In order to take such action with due diligence, in a proportionate and appropriate manner and without undue delay, those competent authorities should have sufficient and qualified staff and the capacity for cooperation both at national level, between the relevant authorities, and at cross-border level.

Amendment 7

Proposal for a directive

Recital 21

Text proposed by the Commission

Amendment

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

(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.

Amendment 8

Proposal for a directive

Recital 22

Text proposed by the Commission

Amendment

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

(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 the victims’ rights to compensation and restitution for the damage caused by a criminal offence.

Amendment 9

Proposal for a directive

Recital 24

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.

(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, in case of transferred tangible proceeds or tangible property directly derived from criminal conduct, the affected party having a close affiliation, of either family or business nature, with the suspected or accused person should bear the burden of proof that the purchasing of the confiscated property has taken place in bona fide and with due diligence.

Amendment 10

Proposal for a directive

Recital 26

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.

(26) Confiscation should also be possible where a court is satisfied, on the basis of all evidence adduced, 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 or international law. Confiscation in such cases should only be allowed where the national court is satisfied 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 on the prosecution. For reasons of proportionality, confiscating property without a prior conviction should be limited to cases of serious crimes, and only where the instrumentalities, proceeds or property are linked to the criminal offence. In the determination of that link, account should be taken of all the circumstances of the case. The right of the defendant to be made aware of the proceeding and to be represented by a lawyer should not be affected.

Amendment 11

Proposal for a directive

Recital 27

Text proposed by the Commission

Amendment

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

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

Amendment 12

Proposal for a directive

Recital 28

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.

(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, these criminal offences are liable to give rise to substantial economic benefits, 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. 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, 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. The court must be satisfied that the property in question is derived from criminal conduct. In this context specifically, the role of politically exposed persons in the exercise of their public function or by aiding or abetting of that person, particularly when part of structures financed, at least partially, by Union or non-Union public authorities should be taken into consideration. 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, in a reasonable delay, that the property in question derives from lawful activities.

Amendment 13

Proposal for a directive

Recital 29

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.

(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, unless the urgency of a case would require foregoing such measures. Those 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. Any decision by the competent authorities to forego such assessment of the costs shall be duly justified.

Amendment 14

Proposal for a directive

Article 2 – paragraph 1 – point m

Text proposed by the Commission

Amendment

(m) environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties as defined in in Directive 2008/99/EC of the European Parliament and of the Council50 , as well as offences related to ship pollution as defined in Directive 2005/35/EC as amended by Directive 2009/123/EC51 ;

(m) environmental crime, including illicit trade and trafficking in endangered animal and plant species, including parts or derivatives thereof, as defined in in Directive 2008/99/EC of the European Parliament and of the Council50, as well as offences related to ship pollution as defined in Directive 2005/35/EC as amended by Directive 2009/123/EC51;

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50 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (OJ L 328, 6.12.2008, p. 28).

51 Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements (OJ L 280, 27.10.2009, p. 52).

Amendment 15

Proposal for a directive

Article 3 – paragraph 1 – point 2

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;

(2) ‘property’ means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments, in any form, including electronic or digital, evidencing title or interest in such property;

Amendment 16

Proposal for a directive

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

Text proposed by the Commission

Amendment

(9a) ‘public concerned’ means the persons affected or likely to be affected by the criminal offences within the scope of this Directive; for the purposes of this definition, persons having a sufficient interest or maintaining the impairment of a right or meeting any proportionate requirements under national law shall be deemed to have an interest;

Amendment 17

Proposal for a directive

Article 3 – paragraph 1 – point 10

Text proposed by the Commission

Amendment

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

(10) ‘beneficial owner’ means a beneficial owner as defined in Directive 2015/849/EU55;

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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).

Amendment 18

Proposal for a directive

Article 4 – paragraph 1

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.

1. To facilitate cross-border cooperation, Member States shall take measures to enable the swift tracing and identification of instrumentalities and proceeds, or property as regards a freezing or confiscation order in the course of criminal proceedings.

Amendment 19

Proposal for a directive

Article 4 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. Asset tracing investigations pursuant to paragraph 1 shall be carried out to ensure restitution and compensation, especially of victims in accordance with the provisions of this Directive.

Amendment 20

Proposal for a directive

Article 6 – paragraph 1 – introductory part

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:

1. For the purposes of performing the tasks referred to in Article 5, Member States shall ensure that asset recovery offices have access without delay, in accordance with national law, including where necessary by a court order if required by national law to the following information to the extent that information is necessary for the tracing and identification of proceeds, instrumentalities, and property:

Amendment 21

Proposal for a directive

Article 6 – paragraph 2

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, in accordance with national law, including where necessary by a court order if required by national law.

Amendment 22

Proposal for a directive

Article 6 – paragraph 3

Text proposed by the Commission

Amendment

3. The direct and immediate access to the information referred to in paragraph 1 shall be without prejudice to the procedural safeguards established under national law.

3. The access without delay to the information referred to in paragraph 1 shall be without prejudice to the procedural safeguards established under national law, including where necessary a court order if required by national law.

Amendment 23

Proposal for a directive

Article 9 – paragraph 4

Text proposed by the Commission

Amendment

4. Member States shall ensure that the information provided by asset recovery offices pursuant to paragraphs 1, 2 and 3 can be presented as evidence before a national court of a Member State, in accordance with procedures in national law.

Amendment 24

Proposal for a directive

Article 9 – paragraph 6 – point b a (new)

Text proposed by the Commission

Amendment

(ba) or otherwise would not be in accordance with fundamental principles of national law, including Member State’s obligations under Article 6 TEU.

Amendment 25

Proposal for a directive

Article 11 – paragraph 1

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.

1. Member States shall take the necessary and proportionate measures to enable the freezing of property necessary to ensure a possible confiscation and preservation of that property under Articles 12, 13, 14, 15 and 16, and to ensure the right to restitution and compensation to victims according to the provisions of this Directive.

Amendment 26

Proposal for a directive

Article 11 – paragraph 2

Text proposed by the Commission

Amendment

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

deleted

Amendment 27

Proposal for a directive

Article 11 – paragraph 3

Text proposed by the Commission

Amendment

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

3. When necessary to preserve the property, Member States shall enable asset recovery offices, or other competent authorities in accordance with national law, to take immediate action until a freezing order pursuant to paragraph 1 is issued. The validity of such temporary urgent freezing measures shall not exceed seven days.

Amendment 28

Proposal for a directive

Article 11 – paragraph 4

Text proposed by the Commission

Amendment

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

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

Amendment 29

Proposal for a directive

Article 11 – paragraph 5

Text proposed by the Commission

Amendment

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

5. Member States shall ensure that the freezing orders pursuant to paragraphs 1, 3 and 4 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 annulled by a judicial authority without undue delay.

Amendment 30

Proposal for a directive

Article 11 – paragraph 6

Text proposed by the Commission

Amendment

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

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 without delay to the owner of the property, or to the person from whom the property was seized. The conditions or procedural rules under which such property is returned shall be determined by national law.

Amendment 31

Proposal for a directive

Article 11 – paragraph 7 a (new)

Text proposed by the Commission

Amendment

7a. The provisions under this article shall not preclude possibility to freezing on other legal grounds.

Amendment 32

Proposal for a directive

Article 12 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall take the necessary measures to enable the confiscation, either wholly or in part, of instrumentalities and proceeds stemming from a criminal offence following a final conviction, which may also result from proceedings in absentia.

1. Member States shall take the necessary measures to enable the confiscation, either wholly or in part, of instrumentalities, proceeds or property stemming from a criminal offence following a final conviction, which may also result from proceedings in absentia.

Amendment 33

Proposal for a directive

Article 13 – 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 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 transferred by a suspected, accused or convicted person to a third party.

Amendment 34

Proposal for a directive

Article 13 – paragraph 2

Text proposed by the Commission

Amendment

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

2. Paragraph 1 shall not affect the rights of bona fide third parties. In case of transferred tangible proceeds or tangible property directly derived from criminal conduct, the affected party having a close affiliation with the suspected or accused person shall bear the burden of proof that the purchasing of the confiscated property has taken place in bona fide and with due diligence.

In all other cases, the court has to establish based on all the proven circumstances of the case 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 that the purpose of the transfer or acquisition was to avoid confiscation. Such facts and circumstances from which 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.

Amendment 35

Proposal for a directive

Article 13 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

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

Amendment 36

Proposal for a directive

Article 15 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) illness of the suspected or accused person;

(a) illness of the suspected or accused person if this results in the expiry of the time limits laid down in national law for criminal liability;

Amendment 37

Proposal for a directive

Article 15 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(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 national or international law;

Amendment 38

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.

deleted

Amendment 39

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. The instrumentalities, proceeds, property to be confiscated must be linked directly or indirectly to the criminal offence. In the determination of the link, account shall be taken of all the circumstances of the case and of all the evidence adduced in the case. The burden of proof shall lie on the prosecution.

Amendment 40

Proposal for a directive

Article 15 – paragraph 3

Text proposed by the Commission

Amendment

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

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

Amendment 41

Proposal for a directive

Article 16 – paragraph 1 – point a

Text proposed by the Commission

Amendment

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

(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;

Amendment 42

Proposal for a directive

Article 16 – paragraph 1 – point c

Text proposed by the Commission

Amendment

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

(c) the national court is satisfied, on the basis of all evidence adduced, that the frozen property is derived from criminal offences committed in the framework of or in connection with a criminal organisation.

Amendment 43

Proposal for a directive

Article 16 – paragraph 2

Text proposed by the Commission

Amendment

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

Amendment 44

Proposal for a directive

Article 16 – paragraph 4

Text proposed by the Commission

Amendment

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

4. 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, awarding access to the file and by ensuring the right to be heard on issues of law and fact.

Amendment 45

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.

2. Member States shall take the necessary measures allowing confiscated property to be used for public interest or social purposes, without prejudice to Article 18 of this Directive.

Amendment 46

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 the confiscation measure does not affect victims’ rights to obtain compensation for their claims stemming from material or immaterial harm, in an order of priority determined by national law.

Amendment 47

Proposal for a directive

Article 18 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

The Commission and the Member States shall facilitate coordination between competent authorities and with third countries where instrumentalities, proceeds and property has been confiscated following the violation of restrictive measures.

The Commission shall issue guidelines on the use of the confiscated instrumentalities, proceeds and property for compensation, restitution and reparations towards States, especially in the circumstances of a war of aggression insofar as the interests at stake are directly or indirectly affected by the criminal activities covered by this Directive.

Amendment 48

Proposal for a directive

Article 18 a (new)

Text proposed by the Commission

Amendment

Article 18a

Rights for the public concerned to participate in proceedings

Member States shall ensure that where, as a result of a criminal offence and in accordance with their national legal system, the public concerned have appropriate rights to participate in the proceedings covered by this Directive, for instance as a civil party.

Amendment 49

Proposal for a directive

Article 19 – paragraph 1

Text proposed by the Commission

Amendment

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

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

Amendment 50

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.

Amendment 51

Proposal for a directive

Article 20 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

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

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:

Amendment 52

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 rapidly depreciating at a speed that exceeds the timeframe of the proceeding;

Amendment 53

Proposal for a directive

Article 20 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) the storage or maintenance costs of the property are disproportionate to its value;

(b) the storage or maintenance costs of the property are disproportionate to its market value;

Amendment 54

Proposal for a directive

Article 20 – paragraph 1 – point c

Text proposed by the Commission

Amendment

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

Amendment 55

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, suitable and proportionate 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, providing every guarantee that, if the owner is proven innocent, compensation will be awarded in accordance with national law. The owner shall be given the possibility to request the sale of the property.

Amendment 56

Proposal for a directive

Article 20 – paragraph 3

Text proposed by the Commission

Amendment

3. Earnings from interlocutory sales should be secured until a judicial decision on confiscation is reached. Member States shall take appropriate measures to protect third party buyers of property sold from retaliatory measures, to ensure that the property sold is not returned to persons convicted of the criminal offences referred to in Article 2.

3. Earnings from interlocutory sales shall be secured until a final judicial decision on confiscation is reached. Member States shall take appropriate measures to protect third party buyers of property sold from retaliatory measures or threat , to ensure that the property sold is not returned to persons convicted of the criminal offences referred to in Article 2.

Amendment 57

Proposal for a directive

Article 20 – paragraph 4

Text proposed by the Commission

Amendment

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

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.

Amendment 58

Proposal for a directive

Article 22 – paragraph 1

Text proposed by the Commission

Amendment

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.

Amendment 59

Proposal for a directive

Article 23 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall provide for the effective possibility for the person whose property is affected to challenge the freezing order pursuant to article 11 before a court, in accordance with procedures provided for in national law. Where the freezing order has been taken by a competent authority other than a judicial authority, national law shall provide that such an order is first to be submitted for validation or review to a judicial authority before it can be challenged before a court.

2. Member States shall provide for the effective possibility for the person whose property is affected to challenge the freezing order pursuant to article 11 before a court, in accordance with procedures provided for in national law. Where the freezing order has been taken by a competent authority other than a judicial authority, national law shall provide that such an order is first to be submitted for validation or review, in a reasonable delay, to a judicial authority before it can be challenged before a court.

Amendment 60

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 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. Such facts and circumstances may be that the transfer or acquisition was carried out free of charge or in exchange for an amount significantly disproportionate to the market value.

Amendment 61

Proposal for a directive

Article 23 – paragraph 4 – subparagraph 4

Text proposed by the Commission

Amendment

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 derived from, or directly or indirectly linked to criminal conduct.

Amendment 62

Proposal for a directive

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

Text proposed by the Commission

Amendment

(ba) measures taken to ensure compensation and restitution in accordance with this Directive;

Amendment 63

Proposal for a directive

Article 24 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States shall communicate their strategies, and any updates of their strategies, to the Commission within three months from their adoption.

3. Asset recovery offices, asset management offices, and other competent authorities shall closely cooperate with the Commission to monitor, on a regular basis, the implementation of this Directive and to exchange experiences and best practices on how to ensure victims’ compensation and on the use of confiscated properties for public or social purposes. Member States shall communicate their strategies, and any updates of their strategies, to the Commission within three months from their adoption.

Amendment 64

Proposal for a directive

Article 25 – title

Text proposed by the Commission

Amendment

Resources

Resources and training

Amendment 65

Proposal for a directive

Article 25 – paragraph 1

Text proposed by the Commission

Amendment

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.

1. Member States shall ensure that asset recovery offices and 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.

Amendment 66

Proposal for a directive

Article 25 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

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

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Asset recovery and confiscation

References

COM(2022)0245 – C9-0186/2022 – 2022/0167(COD)

Committee responsible

Date announced in plenary

LIBE

22.6.2022

Opinion by

Date announced in plenary

JURI

15.9.2022

Associated committees - date announced in plenary

15.12.2022

Rapporteur for the opinion

Date appointed

Sergey Lagodinsky

26.10.2022

Discussed in committee

24.1.2023

Date adopted

21.3.2023

Result of final vote

–:

Members present for the final vote

Pascal Arimont, Manon Aubry, Ilana Cicurel, Sergey Lagodinsky, Gilles Lebreton, Karen Melchior, Raffaele Stancanelli, Marie Toussaint, Adrián Vázquez Lázara, Axel Voss, Marion Walsmann, Tiemo Wölken, Lara Wolters

Substitutes present for the final vote

Daniel Buda, Pascal Durand, Virginie Joron, Maria-Manuel Leitão-Marques, Antonius Manders, Emil Radev, René Repasi

Substitutes under Rule 209(7) present for the final vote

Frances Fitzgerald, Fabienne Keller

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

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