On Friday 26 May, the EU Member States approved the draft political agreement (‘general approach’) drawn up by the Swedish Presidency of the Council of the EU on the Directive on the freezing and confiscation of the assets of criminal groups, terrorists or persons violating EU international sanctions.
The mandate is due to be adopted by EU interior ministers on 9 June.
In a document dated 22 May, the Swedish Presidency of the Council of the EU explains that most of its work has focused on the new provisions of the directive on the confiscation of assets derived from unexplained wealth.
“The most intense discussions under the Swedish Presidency focused on Articles 16 and 23, which deal with the confiscation of unexplained wealth and remedies”, it explains.
The latest discussions also focused on the tasks assigned to national asset recovery offices, in particular tracing assets (see EUROPE 13181/11).
The latest approved draft states, on this point, that Member States should allow the confiscation of such unexplained wealth when the investigation in the course of which the property was identified concerns an offence falling within the scope of this Directive and punishable by a custodial sentence of a maximum of at least 4 years.
Member States should also “be able to limit the confiscation of unexplained wealth by providing that such confiscation shall only be pursued where other forms of confiscation are not possible, and, alternatively or cumulatively, where the property to be confiscated has been frozen in the context of an investigation in relation to a criminal offence committed within the framework of a criminal organisation. Confiscation of unexplained wealth should not prejudice the rights of bona fide third parties”.
The behaviour in question “can consist of any type of offence. Individual offences do not have to be proven, but the court must be satisfied that the property in question is derived from such conduct. Member States may provide that it could, for example, be sufficient for the court to consider on the balance of probabilities, or to reasonably presume that it is substantially more probable, that the property in question has been obtained from criminal conduct than from other activities”, adds the text.
A conviction would not be necessary to confiscate these assets from unexplained wealth. The most significant changes to the Commission’s proposal concern the link with restrictive measures. Member States support the fact that the Directive’s rules will apply to breaches of restrictive measures but have not supported the Commission’s proposals on prevention and detection. They are also opposed to extending the remit of Asset Recovery Offices beyond criminal proceedings.
The European Parliament’s Committee on Civil Liberties adopted its mandate on 23 May (see EUROPE 13186/12).
Link to the text of the Council of the EU: https://aeur.eu/f/748 (Original version in French by Solenn Paulic)