Changes from report parliamentary committee draft to plenary report

AddedRecital 39 a (new): (39a) It is important that minimum standards for the functioning of asset recovery offices and asset management offices are ensured throughout the Union. For this reason, Member States should be required to regularly report to the Commission on the financial, human and technical resources allocated to those offices.

AddedRecital 41: (41) To ensure consistent approaches among Member States in the collection of statistics . Member States should include, for all criminal offences, at least the number of asset tracing investigations launched, the number of assets traced, the number of freezing orders initiatied and executed, the number of confiscation orders initiated and executed, the number of confiscation orders executed broken down by type of confiscation, the value of property frozen, for the confiscation orders included in a respective annual report, the value of confiscated property compared to the value at the time of freezing the number of requests for freezing orders to be executed in another Member State, the number of requests for confiscation orders to be executed in another Member State, the value of the property recovered following execution in another Member State, the value of the property destined to be reused for law enforcement, prevention or social purposes, the manner in which the confiscated property has been used and, for the confiscation orders included in a respective annual report, the length of the procedure from freezing to final disposal. The power to adopt acts in accordance with Article 290 of the TFEU should be delegated to the Commission to supplement this Directive by providing more detailed rules on the information to be collected, the methodology for the collection and transmission of the data to the Commission.

AddedRecital 43 a (new): (43a) In order to support the Commission in relation to the implementation of this Directive and facilitate the exchange of best practices and operational cooperation relating to this Directive, a network on asset recovery and confiscation should be established under the political guidance of the Commission. The network should be composed of representatives from asset recovery offices and asset management offices and should be co-chaired by a representative of the Commission and, in matters of operational cooperation, by a representative of Europol. It should invite representatives from Europol, Eurojust, the European Public Prosecutors Office, and where appropriate, the Anti-Money Laundering Authority to participate to the meetings of the network.

AddedRecital 45: (45) Asset recovery offices should also closely cooperate with Union bodies and agencies, including Europol and the European Public Prosecutor’s Office, in accordance with their respective mandates, insofar as it is necessary to trace and identify property within the cross-border investigations supported by Europol or within the investigations undertaken by the European Public Prosecutor’s Office. For the purposes of this Directive, when the notion of competent authorities refers to investigating and prosecuting authorities, it should be interpreted as including the central and decentralised levels of the European Public Prosecutor's Office (EPPO) with regard to the Member States that participate in the enhanced cooperation on the establishment of the EPPO. Asset recovery offices should therefore fulfil the obligations under Council Regulation (EU) 2017/193928a, including the obligation to report to the EPPO under Article 24 of that Regulation, the undertaking of measures if instructed as a competent authority under Article 28(1) of that Regulation, and access to information under Article 43(1) of that Regulation. In light of their duties established in Article 105 of Regulation (EU) 2017/1939 the Member States who are not participating in the enhanced cooperation on the establishment of the EPPO should ensure that their asset recovery offices are able cooperate with the EPPO in the same manner as an asset recovery office of any other participating Member State in so far as i…

AddedRecital 45 a (new): (45a) In accordance with its mandate, Eurojust should support national authorities in all stages of the asset recovery process from the tracing and identification, freezing, confiscation and asset management of assets to the disposal of assets. Asset recovery offices and asset management offices should closely cooperate with Eurojust for the purpose of facilitating the entire asset recovery process. Such cooperation encompasses the tracing and identification of instrumentalities, proceeds, or property that can become or is the object of a freezing or confiscation order made by a competent authority in the course of proceedings in criminal matters and subsequent disposal, including the investigation and prosecution of criminal offences related to the violation of Union restrictive measures.

Recital 47: (47) Since the objective of this Directive, namely facilitating confiscation of property in proceedings in criminal matters, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

Recital 51: (51) The European Data Protection Supervisor was consulted in accordance with Article 42 of Regulation (EU) 2018/1725 and delivered an opinion on 19 July 2022.

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AddedArticle 1 – paragraph 2: 2. This Directive also establishes rules to facilitate the effective implementation of Union restrictive measures and the tracing and subsequent recovery of related property where necessary to prevent, detect or investigate criminal offences related to the violation of Union restrictive measures;

AddedArticle 2 – paragraph 1 – point m: (m) environmental crime as defined in Directive XXX/XXX/EU of the European Parliament and of the Council [Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law and replacing Directive 2008/99/EC];

AddedArticle 2 – paragraph 1 – point n: (n) facilitation of unauthorised entry and residence, as defined in Council Framework Decision 2002/946/JHA52 , and Council Directive 2002/90/EC; / (deleted)

Article 2 – paragraph 2 – point j a (new): (ja) illicit trafficking in nuclear or radioactive materials;

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Added141

Article 2 – paragraph 2 – point j b (new): (jb) crimes within the jurisdiction of the International Criminal Court;

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ChangedArticle 2 – paragraph 2 – point j c (new): (jc) the unlawful seizure of aircraft or ships;

Article 2 – paragraph 2 – point j d (new): (jd) sabotage;

Change 9

RemovedArticle 3 – paragraph 1 – point 2: (2) ‘property’ means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments in any form, evidencing title or interest in such property;

AddedArticle 2 – paragraph 2 – point j e (new): (je) illicit trafficking in hormonal substances and other growth promoters;

RemovedArticle 3 – paragraph 1 – point 10 a (new): (10a) ‘affected person’ means: / (a) a natural or legal person against whom a freezing order or confiscation order is issued; / (b) a natural or legal person that owns property that is the object of a freezing order or confiscation order; or / (c) a third party whose rights in relation to property that is the object of a freezing order or confiscation are directly prejudiced by that order;

AddedArticle 2 – paragraph 2 – point j f (new): (jf) arson;

AddedArticle 2 – paragraph 2 – point j g (new): (jg) rape;

AddedArticle 2 – paragraph 2 – point j h (new): (jh) swindling;

AddedArticle 2 – paragraph 2 – point j i (new): (ji) racism and xenophobia;

AddedArticle 3 – paragraph 1 – point 2: (2) ‘property’ means property of any description, whether corporeal or incorporeal, movable or immovable, including crypto-assets and legal documents or instruments in any form, evidencing title or interest in such property;

AddedArticle 3 – paragraph 1 – point 9 a (new): (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;

AddedArticle 3 – paragraph 1 – point 10 a (new): (10a) ‘affected person’ means: / (a) a natural or legal person against whom a freezing or confiscation order is issued; / (b) a natural or legal person that owns property that is the object of a freezing or confiscation order; or / (c) a third party whose rights in relation to property that is the object of a freezing order or a confiscation order are directly prejudiced by that order;

AddedArticle 3 – paragraph 1 – point 10 b (new): (10b) ‘party closely related to suspected, accused or convicted person’ means: / (a) the spouse or partner of the suspected, accused or convicted person; / (b) ascendants, descendants and siblings of the suspected, accused, or convicted person or of the spouse or partner of that person; / (c) persons living in the household of the suspected, accused or convicted person; / (d) persons who are working for the suspected, accused or convicted person under a contract of employment with access to non-public information on the affairs of the suspected, accused or convicted person or otherwise performing tasks through which they have access to non-public information on the affairs of the suspected, accused or convicted person; / (e) legal entities in which the suspected, accused or convicted person or one of the persons referred to in points (a) to (d) of this point is a member of the administrative, management or supervisory bodies or performs duties which provide for access to non-public information on the affairs of the suspected, accused or convicted person.

Article 4 – paragraph 1: 1. To facilitate cross-border cooperation, Member States shall take measures to enable the swift tracing and identification of instrumentalities and proceeds, or property which may become or is the object of a freezing or confiscation order in the course of proceedings in criminal matters.

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ChangedArticle 54 – paragraph 2 a (new): 2a. In order to performAsset thetracing tasksinvestigations pursuant to paragraph 2, point (b), asset recovery offices1 shall be entitled to request the relevant competent authorities to take thecarried necessaryout measuresalso for the tracing and identificationpurposes of instrumentalities,restitution proceeds,and orcompensation property.to victims;

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RemovedArticle 5 – paragraph 4 a (new): 4a. Member States shall give due consideration to the possibility of entrusting asset recovery offices with the tasks set out in Article 21(2).

AddedArticle 5 – paragraph 2 – point a: (a) trace and identify instrumentalities, proceeds, or property whenever necessary to support other competent national authorities responsible and the EPPO, for asset tracing investigations pursuant to Article 4;

RemovedArticle 6 – paragraph 1 – introductory part: 1. For the purposes of performing the tasks referred to in Article 5, Member States shall ensure that asset recovery offices have appropriate access to any information to the extent necessary for the tracing and identification of instrumentalities, proceeds, and property. That access shall include, in particular:

AddedArticle 5 – paragraph 2 – point b: (b) trace and identify instrumentalities, proceeds, or property which may become or is the object of a freezing or confiscation order issued by a competent authority in another Member State;

RemovedArticle 6 – paragraph 1 – point a: (a) immediate and direct access to: / (i) fiscal data, including data held by tax and revenue authorities; / (ii) national real estate registers or electronic data retrieval systems and land and cadastral registers; / (iii) national citizenship and population registers of natural persons; / (iv) national motor vehicle, aircraft and watercraft registers; / (v) commercial databases, including business and company registers; / (vi) national beneficial ownership registers; / (vii) data available through the interconnection of beneficial ownership registers in accordance with [Article 12 of Proposal for a Directive of the European Parliament and of the Council on the mechanisms to be put in place by the Member States for the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing Directive (EU) 2015/849 COM/2021/423]; / (viii) national social security registers; and / (ix) bank account registers, including information on wire-transfers.

AddedArticle 5 – paragraph 2 – point c: (c) cooperate and exchange information with other Member States asset recovery offices and the EPPO in the tracing and identification of instrumentalities and proceeds, or property which may become or is the object of a freezing or confiscation order;

RemovedArticle 6 – paragraph 1 – point b: (b) direct or indirect access to: / (i) information on mortgages and loans; / (ii) information contained in the national currency and currency exchange databases; / (iii) information on securities; / (iv) customs data, including cross-border physical transfers of cash; / (v) information held by commercial courts; / (vi) information on annual financial statements by companies; / (vii) relevant information which is held by authorities competent for preventing, detecting, investigating or prosecuting criminal offences.

AddedArticle 5 – paragraph 2 a (new): 2a. In order to perform the tasks pursuant to paragraph 2, point (b), asset recovery offices shall be entitled to request the relevant competent authorities to take the necessary measures for the tracing and identification of instrumentalities, proceeds, or property;

RemovedArticle 6 – paragraph 1 – point c: deleted

AddedArticle 5 – paragraph 3: 3. Asset recovery offices shall be empowered to trace and identify property of persons and entities subject to Union restrictive measures where necessary to prevent, detect or investigate criminal offences. To that effect, they shall cooperate with asset recovery offices and other relevant competent authorities in other Member States and exchange relevant information;

RemovedArticle 6 – paragraph 1 – point d: deleted

AddedArticle 6 – paragraph 1: 1. For the purposes of performing the tasks referred to in Article 5, Member States shall ensure that asset recovery offices have appropriate access to any information to the extent that information is necessary for the tracing and identification of proceeds, instrumentalities, proceeds and property. That access shall include : / (1a) direct and immediate access to: / (i) fiscal data, including data held by tax and revenue authorities; / (ii) national real estate registers or electronic data retrieval systems and land and cadastral registers; / (iii) national citizenship and population registers of natural persons; / (iv) national motor vehicles, aircraft and watercraft registers; / (v) commercial databases, including business and company registers; / (vi) national beneficial ownership registers including registers of beneficial owners of trusts and similar legal arrangments; / (vii) data available through the interconnection of beneficial ownership registers in accordance with [Article 12 of Proposal for a Directive of the European Parliament and of the Council on the mechanisms to be put in place by the Member States for the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing Directive (EU) 2015/849 COM/2021/423]; / (viii) national social security registers; / (ix) bank account registers, including information on wire-transfers and accounts balances; / (1b) direct or indirect access to: / (i) information on…

RemovedArticle 6 – paragraph 1 – point e: deleted

AddedArticle 6 – paragraph 2: 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 a streamlined and harmonized manner. Where an asset recovery office requests access to information which is not directly available to it, the requested authority shall respond to the request in a timely manner;

RemovedArticle 6 – paragraph 1 – point f: deleted

AddedArticle 6 – paragraph 2 a (new): 2a. The Commission may adopt delegated acts in accordance with Article 30 laying down specifications for a standardized template for requests for information as referred to in paragraph 1, point (b), of this Article.

RemovedArticle 6 – paragraph 1 – point g: deleted

AddedArticle 6 – paragraph 3: 3. The direct and immediate and indirect access to the information referred to in paragraph 1 shall be without prejudice to the procedural safeguards established under national law including where necessary the requirement to obtain a court order, if required by the relevant national law and the guarantees provided under the Union data protection acquis;

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ChangedArticle 67 – paragraph 2:1: 2.1. WhereAccess theto information referredpursuant to inArticle paragraph6 1shall isbe notperformed storedonly inwhere databasesnecessary oron registers,a Membercase-by-case Statesbasis shallwhere takeit theis necessaryadequate, measuresrelevant toand ensureproportionate thatfor the purposes of the asset recoverytracing officesinvestigation canby swiftlythe obtainstaff thatspecifically designated and authorised to access the information byreferred otherto means.in WhereArticle an6, assetin recoveryline officewith requestsDirective access2016/680 to(LED). informationMember whichStates isshall notensure directlythat availableinformation toobtained it,by theasset requestedrecovery authorityoffices shall respondbe toused only for the requestpurpose infor awhich timelyit manner.was sought.

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RemovedArticle 6 – paragraph 2 a (new): 2a. The Commission may adopt delegated acts in accordance with Article 30 laying down specifications for a standardised template for requests for information as referred to in paragraph 1, point (b), of this Article.

AddedArticle 7 – paragraph 2: 2. Member States shall ensure that staff of the asset recovery offices comply with the rules on confidentiality and professional secrecy as provided for under applicable national law as well as with the Union data protection acquis. Member States shall also ensure that staff of asset recovery offices have the necessary specialised skills and abilities to perform their roles effectively.

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ChangedArticle 98 – paragraph 5:1 5.– Informationintroductory underpart: this1. ArticleWithout shallprejudice beto exchangedthe throughrequirements SIENA.laid down in Article 25 of Directive 2016/680, Member States shall ensure that theirthe authorities holding the information referred to in Article 6 keep logs of all access and search activities by asset recovery offices havein directaccordance accesswith tothis SIENA.Directive. The logs shall contain the following:

Change 15

RemovedArticle 11 – paragraph 1: 1. Member States shall take the necessary measures to enable the freezing of property necessary to ensure a possible confiscation of that property under Article 12. Freezing measures shall consist of freezing orders and immediate action in the form of temporary urgent freezing measures.

AddedArticle 9 – paragraph 1 – subparagraph 1: Member States shall take the necessary measures to ensure that their asset recovery offices provide, upon request from an asset recovery office of another Member State or the EPPO, any information that is necessary for the performance of their tasks pursuant to Article 5. The categories of personal data that can be provided are those listed in Section B, point 2 of Annex II to Regulation (EU) 2016/794, with the exclusion of the special data categories of personal data relating to forensic identification information under Section B, point 2(c)(v).

RemovedArticle 11 – paragraph 2: 2. Immediate action in the form of temporary urgent freezing measures shall be taken when necessary in order to preserve the property.

AddedArticle 9 – paragraph 2 – introductory part: 2. When making a request pursuant to paragraph 1, the requesting asset recovery office shall, in line with the principle of data minimization, specify as precisely as possible the following:

RemovedArticle 13 – paragraph 1 – subparagraph 1: Member States shall take the necessary measures to enable the confiscation of proceeds, or other property up to the value corresponding to those proceeds, which, directly or indirectly, were transferred by a suspected or accused person to third parties, or which were acquired by third parties from a suspected or accused person. The confiscation of those proceeds or other property shall be enabled where based on concrete facts and circumstances a national court has established that those third parties knew or could be expected to have known that the purpose of the transfer or acquisition was to avoid confiscation or that the transferred property was directly or indirectly linked to criminal conduct. Such facts and circumstances may be that the transfer or acquisition was carried out free of charge or in exchange for an amount disproportionate to the market value.

AddedArticle 9 – paragraph 2 – point g: (g) and/or the natural or legal persons presumed to be involved, such as names, addresses, dates and places of birth, nationality and place of residence, date of registration, shareholders, country of establishment, headquarters and subsidiaries;

RemovedArticle 13 – paragraph 2: deleted

AddedArticle 9 – paragraph 3: 3. Member States shall take the necessary measures to enable that their asset recovery offices exchange information with asset recovery offices of other Member States, without a request to that effect, whenever they are aware of information on instrumentalities, proceeds, or property that they consider necessary for the performance of the tasks of the asset recovery offices of that other Member State pursuant to Article 5. When providing such information, asset recovery offices shall set out the reasons why the information exchanged is considered necessary.

RemovedArticle 15 – paragraph 1 – point f: (f) the time limits prescribed by national law have expired, provided that such limits are not longer than 15 years.

AddedArticle 9 – paragraph 4: 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, where the provision of that information as evidence is compatible with that Member State’s procedural rules on admissibility of evidence in criminal matters, and in compliance with the Charter of Fundamental Rights of the European Union and with the Member State’s obligations under Article 6 TEU;