On Tuesday 12 December, negotiators from the Spanish Presidency and the European Parliament reached a political agreement on the May 2022 directive on asset recovery and confiscation (see EUROPE 13198/7, 12960/6).
The new directive, which would also apply to the confiscated assets of Russian oligarchs linked to the war in Ukraine when the directive on restrictive measures becomes operational (individuals and companies profiting from the circumvention of sanctions would have their assets seized in the same way as those of traffickers in human beings or drug cartels), sets out EU-wide minimum rules on the tracing, identification, freezing, confiscation and management of criminal property.
According to a press release, it will apply to a wide range of crimes, such as organised crime, terrorism, trafficking in human beings and drug trafficking.
The main new feature of this directive is that it now covers property linked to “unexplained” wealth and identified in the course of an investigation into criminal offences, “provided that a national court is satisfied that the identified property is derived from criminal activities committed within the framework of a criminal organisation and that those activities give rise to substantial economic benefit”.
The directive also provides for more powerful Asset Recovery Offices, whose role will be to facilitate cross-border cooperation.
When criminal assets or property of the same value are transferred to a third party, they must also be subject to confiscation, but only if the third party knew or should have known that the purpose of the transfer or acquisition was to avoid confiscation.
Member States will also have to designate authorities (Asset Management Offices) responsible for managing frozen or confiscated assets, either by managing them directly or by providing support and expertise to other bodies responsible for managing frozen and confiscated assets. They must also allow frozen assets to be sold, even before final confiscation, under certain conditions - for example if the assets are perishable. (Original version in French by Solenn Paulic)