Considerations on COM(2022)245 - Asset recovery and confiscation - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)245 - Asset recovery and confiscation. |
|---|---|
| document | COM(2022)245  |
| date | April 24, 2024 |
| (2) | The main motive for criminal organisations that operate across borders, including high-risk criminal networks, is financial gain. In order to tackle the serious threat posed by organised crime, it is important that competent authorities are, therefore, given more operational capacity and the necessary means to effectively trace and identify, freeze, confiscate and manage the instrumentalities and proceeds of crime or property that stem from criminal activities. |
| (3) | Criminal organisations usually reinvest part of their profits from criminal activities to create a financial base enabling them to continue such activities. In addition, criminal organisations often resort to violence, threats, intimidation or corruption in order to acquire control of companies, obtain concessions, authorisations, tenders or grants, achieve illicit profits or advantages, or infiltrate key infrastructures such as logistic hubs. Such organisations therefore adversely affect the freedom of competition, or influence decisions of public authorities, threatening the rule of law and democracy. Criminal organisations have become worldwide economic operators with entrepreneurial objectives. Depriving criminals of illicit profits is essential in order to disrupt their activities and to prevent them from infiltrating legitimate economies. |
| (4) | Economic and financial crime, in particular organised crime, is often committed through legal persons, and the criminal offences included in the scope of this Directive can be committed in the interest or for the benefit of such legal persons. Therefore, freezing and confiscation orders can be issued also against legal persons in accordance with national law. |
| (5) | 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 instrumentalities, proceeds or property should be frozen in order to prevent their disappearance, following which they should be confiscated upon the issuing of a confiscation order within the framework of proceedings in criminal matters. An effective asset recovery system further requires the effective management of frozen and confiscated property in order to maintain the value of that property for the State or for the restitution for victims. |
| (6) | The current Union legal framework on tracing and identification, freezing, confiscation and management of instrumentalities, proceeds or property, and on asset recovery offices, consists of Directive 2014/42/EU of the European Parliament and of the Council (3), Council Decision 2007/845/JHA (4) and Council Framework Decision 2005/212/JHA (5). The Commission evaluated Directive 2014/42/EU and Decision 2007/845/JHA, concluding that the current framework has not fully achieved the policy objective of fighting organised crime through recovering its profits. |
| (7) | The existing legal framework should be updated, so as to facilitate and ensure effective asset recovery and confiscation efforts across the Union. This Directive should, therefore, lay down minimum rules on tracing and identification, freezing, confiscation and management of property within the framework of proceedings in criminal matters. In this context, proceedings in criminal matters is an autonomous concept of Union law interpreted by the Court of Justice of the European Union, notwithstanding the case-law of the European Court of Human Rights. This Directive is without prejudice to the procedures that Member States can use to freeze and confiscate property. It is necessary to reinforce the capacity of competent authorities to deprive criminals of the proceeds from criminal activities. For that purpose, rules should be laid down to strengthen asset tracing and identification, as well as freezing capabilities, to improve the management of frozen and confiscated property until its disposal further to a final confiscation order, to strengthen the instruments to confiscate instrumentalities and proceeds of crime and property derived from the criminal activities of criminal organisations, and to improve the overall efficiency of the asset recovery system. |
| (8) | This Directive should facilitate cross-border cooperation by providing the competent authorities with the necessary powers and resources to respond in a swift and effective way to requests from authorities in other Member States. Provisions laying down rules on early tracing and identification, urgent action to freeze, or efficient management contribute to improving the possibilities for asset recovery across borders. Given the global nature of organised crime, and its capacity to transfer criminal assets quickly across borders, cooperation with third countries should also be strengthened within the international legal framework. |
| (9) | Due to the poly-criminal nature of, and the systemic and profit-oriented cooperation among, criminal organisations involved in a wide range of illicit activities in different markets, an effective fight against organised crime requires that freezing and confiscation measures are available to cover the profits from all criminal offences in which organised criminal groups are active. Such offences include the areas of crime listed in Article 83(1) of the Treaty of the Functioning of the European Union (TFEU). In addition to the crimes listed in Article 83(1) TFEU, the scope of this Directive should also cover all crimes that are harmonised at Union level, including fraud against the financial interests of the Union in light of the increasing involvement of organised criminal groups in such crimes. The scope of this Directive should further include environmental crimes, which are a core business for organised criminal groups and often are connected to money laundering or concern waste and residues produced in the context of drug production and trafficking. The facilitation of unauthorised entry and residence constitutes a core business for organised criminal groups and is typically connected to the trafficking in human beings. The criminal offence of facilitating unauthorised entry and residence should be understood within the meaning of Council Directive 2002/90/EC (6) and Council Framework Decision 2002/946/JHA (7). Framework Decision 2002/946/JHA provides for the possibility to accompany criminal penalties with the confiscation of the means of transport used to commit the offence, while clearly setting out that its provisions apply without prejudice to the protection afforded to refugees and asylum seekers in order to provide humanitarian assistance in accordance with international law. |
| (10) | In addition to the offence of participation in a criminal organisation within the meaning of Article 2 of Council Framework Decision 2008/841/JHA (8), other criminal offences as referred to in Article 1(1) of Framework Decision 2008/841/JHA and as defined in national law should be included in the scope of this Directive to the extent to which they are committed within the framework of a criminal organisation, as defined in Article 1(1) of Framework Decision 2008/841/JHA and as defined in national law, with a view to capturing illicit gains stemming from criminal activities typically carried out by criminal organisations. Member States are in particular encouraged to ensure that the crimes of counterfeiting and piracy of products, illicit trafficking in cultural goods, forgery and trafficking of administrative documents, murder or grievous bodily injury, illicit trade in human organs and tissue, kidnapping, illegal restraint or hostage-taking, organised or armed robbery, racketeering and extortion, trafficking in stolen vehicles, tax crimes relating to direct taxes and indirect taxes, arson, fraud and swindling, illicit trafficking in nuclear or radioactive materials and crimes which fall within the jurisdiction of the International Criminal Court are included in the scope of this Directive. However, this Directive does not oblige Member States to introduce or maintain any criminal offence. |
| (11) | In order to ensure the effective implementation of Union restrictive measures, it is necessary to extend the scope of this Directive to criminal offences covered by Directive (EU) 2024/1226 of the European Parliament and of the Council (9). |
| (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, including in electronic or digital form, evidencing title or interest in property subject to freezing and confiscation including, for example, financial instruments, trusts, or documents that can give rise to creditor claims and are normally found in the possession of the person affected by the relevant procedures. 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 national competent authorities or public bodies in accordance with national law. The definition of property should cover all forms of property, including crypto assets. |
| (13) | 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, a broad definition of proceeds of crime should be provided for, to include the direct proceeds from criminal activities and all indirect benefits, including subsequent reinvestment or transformation of direct proceeds, in line with the definitions in Regulation (EU) 2018/1805 of the European Parliament and of the Council (10). Proceeds should therefore include any property, including property that has been transformed or converted, fully or in part, into other property, and property that has been intermingled with property acquired from legitimate sources, up to the assessed value of the intermingled proceeds. It should also include the income or other benefits derived from proceeds of crime, or from property into or with which such proceeds have been transformed, converted or intermingled. |
| (14) | The tracing and identification of property at an early stage of a criminal investigation is of essence to ensure the prompt identification of instrumentalities, proceeds or property which might be subsequently confiscated, including property related to criminal activities located in other jurisdictions, thereby facilitating cross-border cooperation. To ensure that financial investigations are sufficiently prioritised in all Member States, so as to address a crime of cross-border nature, it is necessary to require competent authorities to launch asset tracing from the moment there is a suspicion of criminal activity that is liable to generate substantial economic benefit. When determining whether the economic benefit is liable to be substantial, Member States should be able to set minimum thresholds for the value of the expected proceeds or allow for a case-by-case assessment by competent authorities. In order to allow for sufficient flexibility in the launching of financial investigations, Member States should be able to limit the scope to investigations into criminal offences liable to have been committed within the framework of a criminal organisation. For the purpose of ensuring effective financial investigations, Member States should provide the necessary financial, technical and human resources. |
| (15) | To ensure the effective application of Union restrictive measures, the Union has established common minimum rules concerning the definitions of criminal conduct violating Union restrictive measures. In order to facilitate the detection of criminal offences related to the violation of Union restrictive measures, it is important to empower asset recovery offices to trace and identify property of persons and entities subject to those measures, upon a request by national competent authorities based on indications and reasonable grounds for believing that such criminal offences have been committed. Those powers should be without prejudice to the procedural requirements and safeguards established under national procedural law, including the rules on the initiation of criminal proceedings or, where necessary, the requirement to obtain a judicial authorisation. |
| (16) | Considering that the effective tracing and identification of property might require tracing and identifying measures necessitating intervention by other authorities, it is important that asset recovery offices are able to request the relevant authorities to cooperate. The conditions for such requests are subject to national law. Member States can include representatives from both law enforcement and judicial authorities in the staff of their asset recovery offices or establish asset recovery offices both within law enforcement authorities and the judiciary. |
| (17) | Due to the transnational nature of finances used by organised criminal groups, information that can lead to the identification of instrumentalities and proceeds of crime and other property owned or controlled by criminals should be exchanged rapidly between the Member States. For that purpose, it is necessary to empower asset recovery offices to trace and identify property which might be subsequently confiscated, to ensure they have access to the necessary information under clear conditions, and to establish rules on swiftly exchanging information with each other, spontaneously or upon request. In urgent cases where there is a risk of disappearance of the property, replies to requests for information should be done as soon as possible and within eight hours. The requirement for asset recovery offices to trace and identify instrumentalities, proceeds or property which is or might become the object of a freezing or confiscation order issued by another Member State aims to facilitate the preparation or execution of freezing orders from other Member States, but does not imply an obligation to recognise such orders pursuant to Regulation (EU) 2018/1805. |
| (18) | 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 is necessary to establish the existence, ownership or control of property that is or might become the object of a freezing or a confiscation order. Therefore, asset recovery offices should have immediate and direct access to relevant data such as real estate information, national citizenship and population registers, commercial databases and vehicle databases in addition to access to bank account information pursuant to Directive (EU) 2019/1153 of the European Parliament and of the Council (11) and to beneficial ownership information pursuant to Directive (EU) 2015/849 of the European Parliament and of the Council (12). Access and searches should be considered to be immediate and direct, inter alia, where the national authorities operating a register transmit information expeditiously by an automated mechanism to competent authorities, provided that no intermediary institution is able to interfere with the requested data or the information to be provided. Moreover, Member States should ensure that asset recovery offices have swift access, either immediately and directly or upon request, to other information which can be of value to identify relevant property, such as information on mortgages and loans, customs data or information on wire-transfers and account balances, as well as fiscal data, social security data and law enforcement information. As regards fiscal data, national social security data and law enforcement information, it should be possible for Member States to decide to give asset recovery offices access to such information on the basis of reasoned requests, and to enable the authorities holding such information to deny access to such information under certain conditions, in order to ensure the integrity of investigations, the confidentiality of information provided by another Member State or third country as well as the proportionality of the requests for information in relation to the legitimate interests of a natural or legal person. Access to information should be subject to specific safeguards that prevent the misuse of access rights. Such safeguards complement the requirements to provide for logs of access and search activities pursuant to Article 25 of Directive (EU) 2016/680 of the European Parliament and of the Council (13). Granting access to that 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 procedural safeguards should not affect the ability of asset recovery offices to respond to requests from other Member States, especially in the case of urgent requests. |
| (19) | To ensure the security of the information shared between asset recovery offices, all asset recovery offices should be able to directly access the Secure Information Exchange Network Application (SIENA), managed by Europol in accordance with Regulation (EU) 2016/794 of the European Parliament and of the Council (14). SIENA or, where necessary on an exceptional basis, other secure channels should be used for all communication between asset recovery offices under this Directive. It might be necessary to use another secure channel in exceptional cases, for instance where the urgency of the request for information requires the temporary use of another communication channel or where the exchange of information requires the involvement of third countries or international organisations or there are objective reasons to believe that such involvement will be required at a later stage. The reference to SIENA should be read as applying also to its successor, in the event that SIENA is replaced. |
| (20) | Considering the speed at which criminals transfer criminal assets across jurisdictions, Member States should ensure that asset recovery offices swiftly exchange information necessary for the performance of their tasks. In exceptional cases, it might be objectively justified for asset recovery offices to refuse to provide information to another requesting asset recovery office if to do so would harm national security interests of the Member State in which the asset recovery office receiving the request is located, jeopardise ongoing investigations or criminal intelligence operations, pose an imminent threat to the life or physical integrity of a person or clearly be disproportionate or irrelevant with regard to the purposes for which the information has been requested. When assessing compliance with the principles of necessity and proportionality, asset recovery offices should exercise due diligence, including with regard to the respect of fundamental rights. |
| (21) | Freezing and confiscation under this Directive are autonomous concepts, which should not prevent Member States from implementing this Directive using instruments which, in accordance with national law, would be considered as sanctions or other types of measures. |
| (22) | Confiscation leads to the final deprivation of property. However, preservation of property can be a prerequisite for 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 disappearance of property, the competent authorities of the Member States, which might include asset recovery offices, should be empowered to take immediate action, which could take the form of an order, to secure such property until a freezing order has been issued. Given the exceptional nature of such action, Member States should limit its temporary validity. |
| (23) | Where the competent authorities are not able to take immediate action, Member States should allow asset recovery offices to take such action. Such action might in particular be necessary where an asset recovery office has, following a request from an asset recovery office in another Member State, traced and identified assets that might disappear very quickly, such as crypto assets, and where the competent authorities of the Member State in which the asset recovery office receiving the request is located are not able to take immediate action in the absence of a criminal investigation in that Member State. Asset recovery offices should be able to secure the assets until it is possible for a European freezing order pursuant to Regulation (EU) 2018/1805 to be issued. |
| (24) | Given the interference in the right to property caused 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. Maintaining such provisional measures might require a review by a national court in order to ensure that the purpose of preventing the disappearance of property remains valid. |
| (25) | 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 can 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. |
| (26) | In addition to confiscation measures that allow authorities to deprive criminals of the instrumentalities or proceeds, subject to a final conviction, it is necessary to enable confiscation of property of equivalent value to such instrumentalities or proceeds in order to capture property of equivalent value to the instrumentalities and proceeds of a crime, where it is impossible to confiscate such instrumentalities and proceeds. Member States are free to define the confiscation of property of equivalent value as subsidiary or alternative to confiscation of instrumentalities and proceeds, as appropriate in accordance with national law. |
| (27) | When implementing this Directive with regard to the confiscation of property the value of which corresponds to instrumentalities, the relevant provisions should be applicable where, in view of the particular circumstances of the case, such a measure is proportionate, having regard in particular to the value of the instrumentalities concerned. Member States can also take into account whether and to what extent the convicted person is responsible for making the confiscation of the instrumentalities impossible. |
| (28) | 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, such as through an intermediary, by the third party from a suspected or accused person, including where the criminal offence has been committed on their behalf or for their benefit, and where an accused person does not have property that can be confiscated. Such confiscation should be possible at least in cases where it has been established that the relevant third parties knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation. Whether a third party had or should have had such knowledge should be assessed 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, that the property was transferred to closely related parties or that it remained under the effective control of the suspected or accused person. Transfers to closely related parties to the suspected or accused person could include transfers to family members or to natural persons who have legal arrangements, or any other close business relations, with the suspected or accused person, or transfers to legal entities in which the suspected or accused person or a family member sits in the administrative, management or supervisory bodies. 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 be protected in accordance with national law. |
| (29) | Criminal organisations engage in a wide range of criminal activities. In order to effectively tackle organised criminal activities, it is possible that there are situations where it is appropriate that a criminal conviction for a criminal offence that is liable to give rise to economic benefit be followed by the confiscation not only of property associated with a specific crime, including proceeds of crime or its instrumentalities, but also of additional property which the court determines as being derived from criminal conduct. Such extended confiscation should be possible where a court is satisfied that the property in question is derived from criminal conduct, with no requirement for a conviction for such criminal conduct. The relevant criminal conduct could consist of any type of offence. Individual criminal offences do not have to be proven, but the court must be satisfied that the property in question is derived from such criminal conduct. In this context, the court has to consider the specific circumstances of the case, including the facts and available evidence based on which a decision on extended confiscation could be issued. The fact that the property of the person is disproportionate to that person’s lawful income could be among the facts giving rise to a conclusion by the court that the property derives from criminal conduct. Member States could also determine a requirement for a certain period of time during which it is possible for the property to be deemed to have originated from criminal conduct. |
| (30) | Confiscation should be possible where a final conviction is not possible because of the illness, absconding or death of the suspected or accused person. Confiscation should also be possible where the limitation periods prescribed under national law for the relevant criminal offences are below 15 years and have expired after the criminal proceedings have been initiated. Confiscation in such cases should only be allowed where it would have been possible for the criminal proceedings to lead to a final conviction for a criminal offence in the absence of such circumstances, at least for offences liable to give rise, directly or indirectly, to substantial economic benefit, and where the court is satisfied that the instrumentalities, proceeds or property to be confiscated are derived from or directly or indirectly linked to the criminal offence. In cases of illness and absconding, the existence of proceedings in absentia in Member States should be sufficient to comply with the obligation to enable such confiscation. It is important to recall that international bodies have indicated the potential of confiscation in the absence of a conviction to address the obstacles to confiscation of illicit gains due to immunity and amnesty. |
| (31) | 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 there is a risk that time limits laid down in national law for criminal liability expire and those proceedings cannot continue. |
| (32) | In situations where the confiscation measures in Articles 12 to 15 are not applied for legal or factual reasons determined by national law, it should still be possible to confiscate property that has been identified or, where the national legal system requires freezing, frozen in the context of an investigation in relation to a criminal offence based on indications that the property could be derived from criminal conduct. Such property should be confiscated where the court is satisfied that the property is derived from criminal conduct committed within the framework of a criminal organisation and where this conduct is liable to give rise, directly or indirectly, to substantial economic benefit. When determining whether criminal conduct is liable to give rise to substantial economic benefit, Member States can take into account all relevant circumstances, including the modus operandi, for example if a condition of the offence is that it was committed in the context of organised crime or with the intention of generating regular profits from criminal offences. Member States should enable confiscation of such unexplained wealth when the investigation in which the property was identified concerns an offence falling within the scope of this Directive that is punishable by deprivation of liberty of a maximum of at least four years. That condition ensures that the possibility of confiscation of unexplained wealth arises in criminal investigations into criminal offences that meet a certain threshold of seriousness. |
| (33) | When applying the national rules implementing this Directive, the national competent authorities can choose not to order or execute confiscation of unexplained wealth where, in the case in question, the application of the rules set out in this Directive would be manifestly unreasonable or disproportionate. Member States can also determine a requirement for a certain period of time during which the property could be deemed to have originated from such criminal conduct. Member States should ensure that the appropriate procedural rights of the affected person are respected. The rights of bona fide third parties should be protected in accordance with national law. |
| (34) | While it should not be a precondition for the confiscation of unexplained wealth that individual offences be proven, there must be sufficient facts and circumstances for the court to be satisfied that the property in question is derived from criminal offences. The relevant criminal conduct could consist of any type of offence committed within the framework of a criminal organisation and liable to give rise to substantial economic benefit, thus being serious in nature. When determining whether the property should be confiscated, national courts should take into account all relevant circumstances of the case, including the available evidence and specific facts, such as that the value of the property is substantially disproportionate to the lawful income of the person. Another relevant factor might be the absence of a plausible licit source of the property, as the provenance of lawfully acquired property can normally be accounted for. The person’s connection to activities of a criminal organisation could also be of relevance, as might circumstances such as the situation in which the property was found or indications of participation in criminal activities. The assessment should be made on a case-by-case basis depending on the circumstances of the case. It should be possible for Member States to decide to allow for confiscation of unexplained wealth where criminal proceedings are discontinued or for such confiscation to be ordered separately from criminal proceedings into the offence. |
| (35) | This Directive does not prevent Member States from adopting measures that enable the confiscation of unexplained wealth for other crimes or circumstances. The subject matter of this Directive is limited to proceedings in criminal matters, and therefore this Directive does not apply to confiscation measures in proceedings in civil matters that Member States might have implemented. |
| (36) | Tracing and identification of property to be frozen and confiscated should be possible even after a final conviction for a criminal offence, or following proceedings involving non-conviction-based confiscation. That does not prevent Member States from establishing reasonable time limits after a final conviction or final decision in proceedings involving non-conviction-based confiscation, following expiration of which tracing and identification would no longer be possible. |
| (37) | Considering that criminal activities can inflict great harm on victims, it is essential to protect their rights, including the rights to compensation and restitution. Therefore, Member States should take appropriate measures to ensure that victims’ claims to restitution and compensation against the person who is subject to a confiscation measure as a result of a criminal offence are taken into account in asset-tracing, freezing and confiscation proceedings, including in cross-border cases. Moreover, in order to facilitate the compensation and restitution of property to victims, it is necessary to facilitate the tracing of property that might become the object of such claims as well as the exchange of information between authorities competent for asset tracing and authorities competent for deciding upon claims by victims or executing such decisions. |
| (38) | The social reuse of confiscated property sends a visible message to society in general regarding the importance of values such as justice and legality, reaffirms the prevalence of the rule of law in communities more directly affected by organised crime, and builds the resilience of those communities against criminal infiltration in their social and economic fabric, as observed in those Member States that have already adopted such social reuse measures. Therefore, Member States are encouraged to take the necessary measures to allow for the possibility to use confiscated property for public interest or social purposes, so that it is possible to maintain confiscated property as State property for justice, law enforcement, public service, social or economic purposes or to transfer such confiscated property to the authorities from the municipality or region where it is located so that those authorities can use it for such purposes, including for assignment to organisations carrying out work of social interest. The use of confiscated property for such purposes is without prejudice to the budgetary autonomy of Member States. |
| (39) | It should also be possible for Member States to use the confiscated property to contribute to mechanisms to support third countries affected by situations in response to which Union restrictive measures have been adopted, insofar as the offence committed is directly or indirectly linked to that situation. The Commission should facilitate cooperation between Member States and with third countries and could provide guidance on the most effective procedures and financial mechanisms available to support such third countries with a view to promoting the use of confiscated instrumentalities, proceeds or property for that purpose. |
| (40) | Member States are encouraged to take appropriate measures to prevent the property from being acquired, directly or indirectly, in the course of its disposal upon a confiscation order, by persons convicted in the criminal proceedings in which the property has been frozen. Such measures can be limited to property above a certain value and can include the exclusion of certain types of entities from participating in the sale of the property, the requirement of documentation from the buyer or the assessment of any links of the buyer with the convicted person. Member States can apply such measures also for the sale of frozen property. |
| (41) | To ensure that property that is or might become the object of a freezing or confiscation order maintains its economic value, Member States should put in place effective management measures. Those measures include the efficient management of entities, such as undertakings, that should be preserved as a going concern, while taking the measures necessary to ensure that the suspect or accused person does not benefit directly or indirectly from the ongoing operations of such an entity or, where appropriate, measures of supervision regarding the control of such an entity. |
| (42) | Where justified by the nature of the property, including its value or the need for specific management conditions, an assessment of how to minimise the management costs and preserve the value of the property should be carried out when preparing, or at the latest without undue delay after, executing the freezing order. The objective of the assessment is to provide the competent authorities with the relevant considerations to be taken into account before, during or after adopting or executing the freezing order. Member States can provide guidance on how to carry out such assessment taking into account the circumstances of the property to be frozen and ensuring that the assessment does not jeopardise the timely execution of the freezing order. |
| (43) | In situations where it is reasonably assumed that the property frozen is perishable or rapidly depreciating, that its maintenance costs are disproportionate to its expected value at the time of confiscation, that it is too difficult to administer or that it is easily replaceable, Member States should allow for the sale of such property before a final confiscation order. In accordance with national law, the decision on the sale of a property of a specific nature might be subject to prior approval by a national competent authority. Before taking such a decision, Member States should ensure that the affected person, with the exception of cases where the affected person has absconded or cannot be located, is notified and, except in cases of urgency, is given the opportunity to be heard before the sale. Member States should provide for the possibility of an appeal against an order for an interlocutory sale. Member States should provide for the possibility for a court to suspend the execution of such an order, for example where necessary to safeguard the legitimate interests of the affected person, in particular where there is a risk of irreparable harm. Member States can also provide for the possibility of giving the appeal suspensory effect by law. Member States should be able to require the costs for the management of frozen property to be charged to the owner or beneficial owner of the property, for instance as an alternative to the ordering of an interlocutory sale, and in the case of a final conviction. |
| (44) | Member States should set up or designate one or more competent authorities to function as asset management offices with the purpose of establishing specialised authorities tasked with the management of frozen and confiscated property in order to effectively manage the property frozen before confiscation and preserve its value, pending a final decision on the confiscation and the disposal of the property based on such decision. Without prejudice to the Member States’ internal administrative structures, asset management offices should either be the sole authority managing frozen and confiscated property, or should provide support to decentralised actors according to national management set-ups, and support relevant authorities with planning. This Directive does not determine the legal or institutional nature of the asset management offices, and is without prejudice to institutional systems in the Member States. |
| (45) | This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union (the ‘Charter’) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘ECHR’), as interpreted in the case-law of the European Court of Human Rights. This Directive should be implemented in accordance with those rights and principles. |
| (46) | Freezing and confiscation orders substantially affect the rights of suspected and accused persons, and in certain cases the rights of third parties or other persons who are not being prosecuted. This Directive should provide for specific safeguards and judicial remedies in order to guarantee the protection of the fundamental rights of such persons in the implementation of this Directive in line with the right to a fair trial, the right to an effective remedy and the presumption of innocence as enshrined in Articles 47 and 48 of the Charter. |
| (47) | Freezing, confiscation and interlocutory sales orders should be communicated to the affected person without undue delay. Nevertheless, Members States should be able to provide for a right for competent authorities to postpone the communication of freezing orders to the affected person due to the needs of the investigation. The purpose of communicating such orders is, inter alia, to allow the affected person to challenge them. Therefore, such communication should, as a general rule, indicate the reason or reasons for the order concerned. Where the identity or whereabouts of an affected person is unknown or where communication to each of the affected persons would be a disproportionate burden on a competent authority, it should be possible to communicate by means of a public announcement. |
| (48) | The affected person should have the effective possibility to challenge freezing, confiscation and interlocutory sales orders. In the case of confiscation orders where all elements of the criminal offence are present but a criminal conviction is impossible, the defendant should have a possibility to be heard before the order is issued, where possible. In the case of confiscation orders pursuant to provisions on extended confiscation and confiscation of unexplained wealth, circumstances that could be challenged by the affected person when challenging the confiscation order before a court should also 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. |
| (49) | When implementing this Directive, Member States can provide that, in exceptional circumstances, confiscation should not be ordered or executed, insofar as it would, in accordance with national law, represent undue hardship for the affected person, on the basis of the circumstances of the respective individual case. |
| (50) | While Member States are obliged to ensure that persons whose property is affected by the measures provided for in this Directive have the right of access to a lawyer throughout the freezing and confiscation proceedings, this Directive does not affect the rules applicable to the provision of free legal aid. |
| (51) | This Directive should be implemented without prejudice to Directives 2010/64/EU (15), 2012/13/EU (16), 2012/29/EU (17), 2013/48/EU (18), 2014/60/EU (19), (EU) 2016/343 (20), (EU) 2016/800 (21) and (EU) 2016/1919 (22) of the European Parliament and of the Council. |
| (52) | It is particularly important that the protection of personal data, in accordance with Union law, is ensured in connection to the processing of data under this Directive. The provisions of this Directive should therefore be aligned with Directive (EU) 2016/680. In particular, it should be specified that any personal data exchanged by asset recovery offices is to remain limited to the categories of data listed in Section B, point 2, of Annex II to Regulation (EU) 2016/794. Directive (EU) 2016/680 applies to the processing of personal data by national competent authorities, in particular asset recovery offices, for the purposes of this Directive. |
| (53) | It is particularly important that the protection of personal data, in accordance with Union law, be ensured in connection to all exchanges of information under this Directive. To that aim, insofar as the processing of personal data for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties is concerned, the data protection rules as set out in Directive (EU) 2016/680 are applicable in relation to measures taken under this Directive. Directive (EU) 2016/680 lays down the rules relating to 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, in line with a set of principles relating to the processing of personal data, in particular lawfulness, fairness and transparency, purpose limitation, data minimisation, accuracy, storage limitation, integrity and confidentiality, and accountability. Where relevant, in particular having regard to the processing of personal data by asset management offices for the purpose of the management of property, the data protection rules set out in Regulation (EU) 2016/679 of the European Parliament and of the Council (23) are applicable. |
| (54) | An effective recovery system requires the concerted efforts of a wide range of authorities, including law enforcement, inclusive of customs authorities, tax authorities and tax recovery authorities to the extent that they are competent in relation to asset recovery, asset recovery offices, judicial authorities and asset management authorities, including asset management offices. In order to ensure coordinated action by all competent authorities, it is necessary to establish a more strategic approach to asset recovery and promote a greater cooperation between the relevant authorities, and to obtain a clear overview of the results of asset recovery. It is also necessary to ensure closer and more effective cooperation between asset recovery offices and asset management offices and their counterparts in other Member States. For that purpose, Member States should adopt and regularly review a national strategy on asset recovery to guide actions in relation to financial investigations, freezing and confiscation, management, and final disposal of the relevant instrumentalities, proceeds or property. Member States can decide on the appropriate format of such a strategy and take into account their constitutional framework. This Directive should establish the elements to be included in such a strategy, such as a description of the roles and responsibilities of all the competent authorities involved in asset recovery, and the arrangements for coordination and cooperation among them, without determining the concrete type of information to be included in that strategy. Furthermore, Member States should provide competent authorities with the necessary resources to be able to fulfil their tasks effectively. Competent authorities should be understood as the authorities entrusted with the carrying out of the tasks as outlined under this Directive and in accordance with national frameworks. |
| (55) | Member States should ensure that asset management offices, and where appropriate asset recovery offices and other competent authorities performing tasks pursuant to this Directive, are able to swiftly obtain information necessary for the efficient management of frozen and confiscated property. For that purpose, Member States should establish efficient tools such as one or more registers of property frozen and confiscated pursuant to this Directive. |
| (56) | In order to evaluate the effectiveness and efficiency of the asset recovery, asset management and confiscation framework, it is necessary to collect and publish a comparable minimum set of appropriate statistical data on freezing, management and confiscation of property. |
| (57) | In order to support the Commission in relation to the implementation of this Directive and facilitate cooperation among asset recovery offices and asset management offices as well as to exchange best practices, a cooperation network on asset recovery and confiscation should be established. That network should be composed of representatives from asset recovery offices and asset management offices and should be chaired by the Commission and, where appropriate, by Europol. The Commission could invite representatives from Eurojust, the European Public Prosecutor’s Office (the EPPO) and, where appropriate, the Anti-Money Laundering Authority to participate in the meetings of that network. |
| (58) | Organised criminal groups operate across borders and increasingly acquire property in Member States other than those in which they are based and in third countries. Given the transnational dimension of organised crime, international cooperation is of the essence to recover the profits and confiscate the financial assets that enable criminals to operate. Member States should therefore ensure that both asset recovery and asset management offices cooperate, to the greatest extent possible, with their counterparts in third countries to trace, identify and manage instrumentalities, proceeds or property which is or might become the object of a freezing or confiscation order within the framework of proceedings in criminal matters. It is important that Member States make use of existing frameworks for cooperation and are encouraged to develop or adjust existing bilateral agreements, to accede to existing multilateral conventions or, where no other arrangement is in place, to establish new bilateral agreements. The data protection rules set out in Directive (EU) 2016/680 and, where relevant, in Regulation (EU) 2016/679 are applicable in relation to measures taken in that respect. |
| (59) | Asset recovery offices and asset management offices should also closely cooperate with Union bodies and agencies, including Europol, Eurojust and the EPPO, within their respective competences and in accordance with the applicable legal framework, insofar as it is necessary to trace and identify property within the cross-border investigations supported by Europol and Eurojust or within the investigations undertaken by the EPPO. Member States should, in accordance with their respective obligations under Council Regulation (EU) 2017/1939 (24), ensure that their asset recovery offices fulfil the relevant obligations set out in Regulation (EU) 2017/1939. |
| (60) | In order to ensure that there is a common understanding and minimum standards for asset tracing and identification, freezing, confiscation and management, this Directive should lay down minimum rules for the relevant measures as well as related safeguards. The adoption of minimum rules does not prevent Member States from granting more extensive powers to asset recovery offices or to asset management offices, from providing for more extensive rules on freezing and confiscation, or from providing for additional safeguards under national law, provided that such national measures and provisions do not undermine the objective of this Directive. |
| (61) | Since the objective of this Directive, namely facilitating confiscation of property in proceedings in criminal matters, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. |
| (62) | As this Directive provides for a comprehensive set of rules, which would overlap with already existing legal instruments, it should replace Council Joint Action 98/699/JHA (25), Council Framework Decision 2001/500/JHA (26), Framework Decision 2005/212/JHA, Decision 2007/845/JHA, and Directive 2014/42/EU with regard to the Member States bound by this Directive. |
| (63) | In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application. |
| (64) | In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Directive and is not bound by it or subject to its application. |
| (65) | The European Data Protection Supervisor was consulted in accordance with Article 42(1) and (2) of Regulation (EU) 2018/1725 of the European Parliament and of the Council (27) and delivered an opinion on 19 July 2022 (28), |