Changes from report parliamentary committee draft to plenary report

RemovedArticle 15 – paragraph 2: 2. Confiscation without a prior conviction shall be limited to criminal offences liable to give rise, directly or indirectly, to substantial economic benefit and only insofar as the national court is satisfied, based on available information, that all the elements of the offence are present and that the instrumentalities, proceeds or property to be confiscated are derived from or directly or indirectly linked to the criminal conduct in question.

AddedArticle 9 – paragraph 5: 5. Information under this Article shall be exchanged through SIENA or, where necessary on exceptional basis, through other secure channels. Member States shall ensure that their asset recovery offices have direct access to SIENA

RemovedArticle 16 – paragraph 1 – introductory part: 1. Member States shall take the necessary measures to enable the confiscation of property, where confiscation is not possible pursuant to Articles 12 to 15 and where the national court is satisfied that the frozen property is derived from a criminal offence which is liable to give rise, directly or indirectly, to a substantial economic benefit and which was committed in the framework of a criminal organisation. In order to determine whether the frozen property is derived from a criminal offence, Member States shall ensure that account is taken of all the circumstances of the case, including the specific facts and available evidence, such as the fact that the value of the property is substantially disproportionate to the lawful income of the owner of the property.

AddedArticle 9 – paragraph 6 – point b a (new): (ba) not be in accordance with the fundamental principles of national law, with the Charter of Fundamental Rights of the European Union, or with Member State’s obligations under Article 6 TEU.

AddedArticle 9 – paragraph 7: 7. For refusals to give information, Member States shall take the necessary measures to ensure that reasons are given and that the requesting asset recovery office is consulted in advance. Refusals shall only affect the part of the requested information to which the reasons set out in paragraph 6 relate and shall, where applicable, leave the obligation to provide the other parts of the information in accordance with this Directive unaffected.

AddedArticle 10 – paragraph 2: 2. Member States shall ensure that the receipt of requests for information pursuant to this Directive are immediately and systematically acknowledged. Where the information requested pursuant to paragraph 1, point (b) is not directly available or the request pursuant to paragraph 1, point (a) imposes a disproportionate burden, the asset recovery office receiving the request may postpone the provision of the information. In that case, the requested asset recovery office shall immediately inform the requesting asset recovery office of this postponement and shall provide the requested information as soon as possible, and in any event within three days of the initial deadline established pursuant to paragraph 1.

AddedArticle 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 to 16 and to ensure the right to restitution and compensation to victims according to the provisions of this Directive.

AddedArticle 11 – paragraph 1 a (new): 1a. Freezing measures shall consist of freezing orders and immediate action in the form of temporary urgent freezing measures.

AddedArticle 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 concerned.

AddedArticle 11 – paragraph 3: 3. Without prejudice to the powers of other competent authorities, 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.

AddedArticle 11 – paragraph 4: 4. Property in the possession of a third party can be subject to freezing measures pursuant to paragraphs 1 to 3 where necessary to ensure a possible confiscation under Article 13.

AddedArticle 11 – paragraph 5: 5. Member States shall ensure that the freezing measures pursuant to paragraphs 1 to 4 are issued by a competent authority and are adequately motivated. Where a freezing order under this Directive has been issued by a competent authority other than a judicial authority, Member States shall ensure that such an order is validated or annulled by a judicial authority without undue delay.

AddedArticle 11 – paragraph 6: 6. A freezing order pursuant to paragraph 1 shall remain in force only for as long as it is necessary to preserve the property with a view to possible subsequent confiscation. Frozen property which is not subsequently confiscated, shall be returned without delay to the owner of the property or to the person from whom the property was seized. The conditions or procedural rules under which such property is returned shall be determined by national law.

AddedArticle 12 – paragraph 2: 2. Member States shall take the necessary measures to enable the confiscation of property the value of which corresponds to instrumentalities or proceeds stemming from a criminal offence following a final conviction, which may also result from proceedings in absentia. Such confiscation may either be subsidiary or alternative to confiscation pursuant to paragraph 1.

AddedArticle 13 – paragraph 1 – subparagraph 1: Member States shall take the necessary measures to enable the confiscation of instrumentalities and proceeds, or other property up to the value correspondingto those instrumentalities and proceeds, which, directly or indirectly, were transferred by a suspected, accused or convicted person to third parties, or which were acquired by third parties from a suspected, accused or convicted person.

AddedArticle 13 – paragraph 1 – subparagraph 2: The confiscation of those instrumentalities, proceeds or other property shall be enabled where a national court has established, based on the concrete facts and circumstances of the case, that the instrumentalities, proceeds or property to be confiscated are derived from or directly or indirectly linked to a criminal offence and 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 offence in question. Such facts and circumstances may include that the transfer or acquisition was carried out free of charge or in exchange for an amount which is disproportionate to the market value of the property.

AddedArticle 13 – paragraph 2: 2. Paragraph 1 shall not affect the rights of bona fide third parties. Where the affected party is closely related to the suspected, accused or convinced person, that affected party shall bear the burden of proof that the acquisition of the transferred property has taken place in bona fide and with due diligence. / Member States shall ensure that the affected person’s rights are respected including by granting access to a lawyer, by awarding access to the file and by ensuring the right to be heard on issues of law and fact.

AddedArticle 15 – paragraph 1 – point a: (a) illness of the suspected or accused person, where the inability to continue proceedings because of that illness results in the expiry of the time limits laid down in national law for criminal liability;

AddedArticle 15 – paragraph 1 – point d: (d) immunity from prosecution of the suspected or accused person, as provided for under national or international law;

AddedArticle 15 – paragraph 1 – point f: (f) the time limits prescribed by national law have expired, where such limits are not sufficiently long and do not exceed fifteen years to allow for the effective investigation and prosecution of the relevant criminal offences.

AddedArticle 15 – paragraph 2: 2. Confiscation without a prior conviction shall be limited to criminal offences liable to give rise, directly or indirectly, to substantial economic benefit and only insofar as the national court is satisfied, based on available information, that all the elements of the offence are present and has established that the instrumentalities, proceeds or property to be confiscated are derived from or directly or indirectly linked to the criminal offence in question. The burden of proof shall lie with the prosecution.

AddedArticle 15 – paragraph 3: 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.

AddedArticle 16 – paragraph 1: 1. Member States shall take the necessary measures to enable the confiscation of property frozen in the context of an investigation into criminal offences where confiscation is not possible pursuant to Articles 12 to 15 and where the national court is satisfied that the frozen property is derived from a criminal offence which is liable to give rise, directly or indirectly, to a substantial economic benefit and which was committed in the framework of a criminal organisation. / (deleted) / (deleted) / (deleted) / In order to determine whether the frozen property is derived from a criminal offence, the national court shall take account of all the circumstances of the case, including the specific facts and available evidence, such as the fact that the value of the property is substantially disproportionate to the lawful income of the owner of the property which cannot be justified on the basis of lawful activities. The burden of proof shall lie with the prosecution.

AddedArticle 16 – paragraph 2: deleted

AddedArticle 16 – paragraph 4: 4. Before a confiscation order within the meaning of paragraphs 1 and 2 is issued by the court, Member States shall ensure that the affected person’s rights of defence are respected including by granting access to a lawyer awarding access to the file and the right to be heard on issues of law and fact.

AddedArticle 17 – paragraph 1: 1. Member States shall take the necessary measures to enable the tracing and identification of property to be frozen and confiscated even after a final conviction for a criminal offence, or following proceedings in application of Articles 15 and 16. Member States shall ensure that such investigations are also possible with a view to obtaining compensation for the victims.

Article 17 – paragraph 2: deleted

Change 16

RemovedArticle 17 a (new): Article 17a / Further use of the confiscated property / 1. Member States shall take the necessary measures to allow confiscated property to be used for public interest or social purposes. Such property may be kept as State property for justice, law enforcement, public service or economic purposes or be transferred to the local or regional authorities responsible for the area in which the property is located, for institutional, social or economic purposes, including for assignment to organisations carrying out work of social interest. / 2. Where the confiscated assets originated in a third country, Member States shall take all appropriate measures to return them to the third country. That obligation is without prejudice to the possibility to retain a portion of the assets to cover the costs associated with tracing and identification or management directly related to such assets.

AddedArticle 17 – paragraph 2 a (new): 2a. For the purpose of paragraph 1, Member States shall ensure that competent authorities may use the same investigative powers as those available for the tracing and freezing of assets pursuant to Chapter II of this Directive.

RemovedArticle 18 – title: Victim compensation and restitution

AddedArticle 17 – paragraph 2 b (new): 2b. Member States may conclude cost-sharing agreements with each-other on the execution of freezing and confiscation orders.

Change 17

ChangedArticle 18 – paragraph 1: 1. Where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Directive, Member States shall, as a matter of priority, take the necessary measures to ensure that victims’ claims for compensation are taken into account prior to the final confiscation measure. Member StateStates shall pay particular attention to the victim’svictims’ claims in cross-border cases.cases;

Change 18

ChangedArticle 18 – paragraph 1 a (new): 1a. Where, as a result of a criminal offence, a victim is entitled to the restitution of property subject to confiscation, Member States shall, where possible and as a matter of priority, take the necessary measures to restitute the property concerned to the victim. for their claims in cross-border cases.

Change 19

ChangedArticle 18 – paragraph 1 b (new): 1b. Where it is not possible to restitute the property to the victim in accordance with paragraphthe 2,second and financial assets have been obtained as a result of the execution of the confiscation or interlocutory sale in relation to that property, such assets shall be transferred to the victim for the purposes of restitution.restitution;

Change 20

ChangedArticle 1918 a – paragraph 2: 2. Member States shall ensure1 that,(new): beforeArticle issuing18a a/ freezingFurther orderuse withinof the meaning of Articleconfiscated 11property paragraph/ 1,1. competentMember authoritiesStates responsibleshall fortake the managementnecessary ofmeasures frozento andallow confiscated property carryto outbe anused assessmentfor ofpublic theinterest costsor whichsocial maypurposes. beSuch incurredproperty inmay thebe managementkept ofas thepublic property whichfor mayjustice, belaw frozen,enforcement, forpublic theservice purposesor ofeconomic preservingpurposes andor optimizingbe thetransferred valueto ofthe suchlocal propertyor untilregional itsauthorities disposal,responsible unlessfor the urgencyarea ofin awhich casethe wouldproperty requireis foregoinglocated, suchfor aninstitutional, assessment.social Anyor decisioneconomic bypurposes, theincluding competentfor authoritiesassignment to forego suchorganisations ancarrying assessmentout shallwork beof dulysocial justified.interest.

Change 21

AddedArticle 18 a – paragraph 2 (new): 2. Where the confiscated assets originated in a third country, without prejudice to the provisions of paragraph 3, Member States shall take all appropriate measures to return them to the third country. That obligation is without prejudice to the possibility to retain a portion of the assets to cover the costs associated with tracing and identification or management directly related to such assets.

AddedArticle 18 a – paragraph 3 (new): 3. In cases where instrumentalities, proceeds and property have been confiscated in connection to the violation of Union restrictive measures and in order to facilitate the compensation, restitution and reparations towards States affected by international crimes related to such restrictive measures, the Commission and the Member States shall facilitate coordination between competent authorities and with third countries< / The Commission shall issue guidelines on the use of the confiscated instrumentalities, proceeds and property for compensation, restitution and reparations towards States, especially in the circumstances of war of aggression insofar as the interests at stake are directly or indirectly affected by the criminal activities covered by this Directive,

AddedArticle 18 b (new): Article 18b / Rights for the public concerned to participate in proceedings / Member States shall ensure that, in accordance with their national legal system, members of the public concerned have appropriate rights to participate in the proceedings covered by this Directive;

AddedArticle 19 – paragraph 2: 2. Member States shall ensure that, before issuing a freezing order within the meaning of Article 11 paragraph 1, competent authorities responsible for the management of frozen and confiscated property carry out an assessment of the costs which may be incurred in the management of the property which may be frozen, for the purposes of preserving and optimizing the value of such property until its disposal, unless specific circumstances of a case would require such an assessment to be postponed. Any decision by the competent authorities to forego such an assessment shall be duly justified.

AddedArticle 19 – paragraph 2 a (new): 2a. Member States may require the costs for the management of frozen property to be charged, at least partially, to the beneficial owner

Article 20 – paragraph 1 – point a: (a) the property subject to freezing is perishable or depreciating;

Change 22

RemovedArticle 20 – paragraph 2: 2. Member States shall adopt the necessary measures to ensure that the interests of the owner of the property are taken into account when issuing an interlocutory sale order, including whether the property to be sold is easily replaceable. With the exception of cases of absconding, Member States shall ensure that the owner of the property that may be subject to an interlocutory sale is notified and, where necessary, is heard before the sale. The owner shall be given the possibility to request the sale of the property.

AddedArticle 20 – paragraph 1 – point b: (b) the storage or maintenance costs of the property are disproportionate to its market value;

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

AddedArticle 20 – paragraph 1 – point c: (c) the management of the property requires special conditions and expertise which is non-readily available.

RemovedArticle 23 – paragraph 4 – subparagraph 2: In the case of confiscation orders pursuant to Article 13, such circumstance shall include facts and circumstances on which the finding was based that the third party knew or could be expected to have known that the purpose of the transfer or acquisition was to avoid confiscation or that the transferred property was directly or indirectly linked to criminal conduct on the basis of concrete facts and circumstances. Such facts and circumstances may include the fact that the transfer or acquisition was carried out free of charge or in exchange for an amount disproportionate to the market value.

AddedArticle 20 – paragraph 2: 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 and in duly justified circumstances, Member States shall ensure that the owner of the property that may be subject to an interlocutory sale is notified and is given the opportunity to be heard before the sale. The owner shall be given the possibility to request the sale of the property.

AddedArticle 20 – paragraph 3: 3. Earnings from interlocutory sales shall be secured until a judicial decision on confiscation is reached. Member States shall take appropriate measures to protect third party buyers of property sold from retaliatory measures, to ensure that the property sold is not returned to persons convicted of the criminal offences referred to in Article 2.

AddedArticle 20 – paragraph 4: deleted

AddedArticle 21 – paragraph 2 – point c: (c) to cooperate with other competent authorities responsible for the tracing and identification, freezing and confiscation of property, pursuant to this Directive, including Union agencies and bodies referred to in Article 28, in accordance with their areas of competence

AddedArticle 22 – paragraph 1: 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 as well as the rights and legal remedies available to that affected person pursuant to Article 23. Member States may put in place rules allowing for the temporary postponement of the obligation to inform the affected persons where necessary and proportionate for the protection of ongoing criminal investigations.

AddedArticle 23 – paragraph 2: 2. Member States shall provide for the effective possibility for the person whose property is affected to challenge the freezing order pursuant to article 11 before a court, in accordance with procedures provided for in national law. Where the freezing order has been taken by a competent authority other than a judicial authority, national law shall provide that such an order is first to be submitted for validation or review, within a reasonable delay, to a judicial authority before it can be challenged before a court.

AddedArticle 23 – paragraph 4 – subparagraph 2: In the case of confiscation orders pursuant to Article 13, such circumstance shall include facts and circumstances on which the finding was based that the third party knew or could be expected to have known that the purpose of the transfer or acquisition was to avoid confiscation or that the transferred property was directly or indirectly linked to criminal conduct on the basis of concrete facts and circumstances, such as the fact that the transfer or acquisition was carried out free of charge or in exchange for an amount disproportionate to the market value.

Article 23 – paragraph 4 – subparagraph 3: In the case of confiscation orders pursuant to Articles 14 and 16, such circumstances shall include specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived directly or indirectly from criminal conduct.

Change 23

RemovedArticle 24 – paragraph 1: 1. Member States shall adopt by [one year after the entry into force of this Directive] a national strategy on asset recovery and update it at regular intervals of no longer than three years.

AddedArticle 23 – paragraph 4 – subparagraph 4: 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 directly or indirectly derived from criminal conduct.

RemovedArticle 24 – paragraph 2 – subparagraph 1 – point a: (a) strategic objectives, priorities and measures for the purposes of enhancing efforts by all competent national authorities involved in the recovery and management of property as set out in this Directive;

AddedArticle 24 – paragraph 1: 1. Member States shall adopt by [one year after the entry into force of this Directive] a national strategy on asset recovery and update it at regular intervals of no longer than four years.

RemovedArticle 24 – paragraph 2 – subparagraph 1 – point b: (b) a governance framework to achieve the strategic objectives and priorities, including effective cooperation between asset recovery offices and financial intelligence units;

AddedArticle 24 – paragraph 2 – point a: (a) strategic objectives, priorities and measures for the purposes of enhancing efforts by all competent national authorities involved in the recovery and management of property as set out in this Directive;