Sittings · Document

DRAFT OPINION (COM(2022)0245 – C90186/2022 – 2022/0167(COD)) 2023-01-18

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 Legal Affairs, as the committee responsible, to take into account the following amendments:

Amendment 1

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 and without undue delay, those competent authorities should be sufficiently staffed and trained.

Or. en

Amendment 2

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.

Or. en

Amendment 3

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 compensation for the damage caused by a criminal offence, to the victims or to the public concerned.

Or. en

Amendment 4

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, confiscation from third parties should be possible if the tangible property directly originated in criminal activity of the transferring party regardless of bona fide of the receiving third party.

Or. en

Amendment 5

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 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.

Or. en

Amendment 6

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, 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

Amendment 7

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 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

Amendment 8

Proposal for a directive

Recital 28 a (new)

Text proposed by the Commission

Amendment

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

Or. en

Amendment 9

Proposal for a directive

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

Text proposed by the Commission

Amendment

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

Or. en

Amendment 10

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 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];

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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).

Or. en

Amendment 11

Proposal for a directive

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

Text proposed by the Commission

Amendment

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

Or. en

Amendment 12

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 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

Amendment 13

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

Or. en

Justification

covered in para 3

Amendment 14

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. 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

Amendment 15

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 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

Amendment 16

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, 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

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 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

Amendment 18

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.

Or. en

Amendment 19

Proposal for a directive

Article 13 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

The confiscation of these proceeds or other property shall be enabled where it has been established that those third parties knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation, on the basis of concrete facts and circumstances, including that the transfer or acquisition was carried out free of charge or in exchange for an amount significantly lower than the market value.

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

Amendment 20

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.

deleted

Or. en

Amendment 21

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

Or. en

Amendment 22

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) prolonged illness of the suspected or accused person;

Or. en

Amendment 23

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 international law;

Or. en

Amendment 24

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, 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

Amendment 25

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 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

Amendment 26

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.

Or. en

Amendment 27

Proposal for a directive

Article 15 – paragraph 4

Text proposed by the Commission

Amendment

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

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

Amendment 28

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 or Union or non-Union public or state-sponsored structures involved in fraudulent or corrupt activities;

Or. en

Amendment 29

Proposal for a directive

Article 16 – paragraph 1 – point b

Text proposed by the Commission

Amendment

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

(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

Amendment 30

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 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

Amendment 31

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.

Or. en

Amendment 32

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

Or. en

Amendment 33

Proposal for a directive

Article 18 – title

Text proposed by the Commission

Amendment

Victims compensation

Compensation and claims of the victims and of the public concerned

Or. en

Amendment 34

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 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

Or. en

Amendment 35

Proposal for a directive

Article 18 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

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

Or. en

Amendment 36

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(2).

Or. en

Amendment 37

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:

Or. en

Amendment 38

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.

Or. en

Amendment 39

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, if necessary, is heard before the sale. The owner shall be given the possibility to request the sale of the property.

Or. en

Amendment 40

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.

Or. en

Amendment 41

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.

Or. en

Amendment 42

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, or that the transferred instrumentalities, proceeds or property were directly or indirectly linked to, or derived from, criminal conduct.

Or. en

Amendment 43

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 property that is derived from or directly or indirectly linked to criminal conduct.

Or. en

Amendment 44

Proposal for a directive

Article 25 – title

Text proposed by the Commission

Amendment

Resources

Resources and training

Or. en

Amendment 45

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.

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

Amendment 46

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 persons concerned.

Or. en