Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders

CHAPTER I

SUBJECT-MATTER, DEFINITIONS AND SCOPE

Article 1

Subject matter

Article 2

Definitions

For the purpose of this Regulation, the following definitions apply:

(1) ‘freezing order’ means a decision issued or validated by an issuing authority in order to prevent the destruction, transformation, removal, transfer or disposal of property with a view to the confiscation thereof;

(2) ‘confiscation order’ means a final penalty or measure, imposed by a court following proceedings in relation to a criminal offence, resulting in the final deprivation of property of a natural or legal person;

(3) ‘property’ means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property, which the issuing authority considers to be: (a) the proceeds of a criminal offence, or its equivalent, whether the full amount of the value or only part of the value of such proceeds; (b) the instrumentalities of a criminal offence, or the value of such instrumentalities; (c) subject to confiscation through the application in the issuing State of any of the powers of confiscation provided for in Directive 2014/42/EU; or (d) subject to confiscation under any other provisions relating to powers of confiscation, including confiscation without a final conviction, under the law of the issuing State, following proceedings in relation to a criminal offence;

(4) ‘proceeds’ means any economic advantage derived directly or indirectly from a criminal offence, consisting of any form of property and including any subsequent reinvestment or transformation of direct proceeds and any valuable benefits;

(5) ‘instrumentalities’ means any property used or intended to be used, in any manner, wholly or partially, to commit a criminal offence;

(6) ‘issuing State’ means the Member State in which a freezing order or confiscation order is issued;

(7) ‘executing State’ means the Member State to which a freezing order or confiscation order is transmitted for the purpose of recognition and execution;

(8) ‘issuing authority’ means: (a) in respect of a freezing order: (i) a judge, court, or public prosecutor competent in the case concerned; or (ii) another competent authority which is designated as such by the issuing State and which is competent in criminal matters to order the freezing of property or to execute a freezing order in accordance with national law. In addition, before it is transmitted to the executing authority, the freezing order shall be validated by a judge, court or public prosecutor in the issuing State after examining its conformity with the conditions for issuing such an order under this Regulation. Where the order has been validated by a judge, court or public prosecutor, that other competent authority may also be regarded as an issuing authority for the purposes of transmitting the order; (b) in respect of a confiscation order, an authority which is designated as such by the issuing State and which is competent in criminal matters to execute a confiscation order issued by a court in accordance with national law;

(9) ‘executing authority’ means an authority that is competent to recognise a freezing order or confiscation order and to ensure its execution in accordance with this Regulation and the procedures applicable under national law for the freezing and confiscation of property; where such procedures require that a court register the order and authorise its execution, the executing authority includes the authority that is competent to request such registration and authorisation;

(10) ‘affected person’ means the natural or legal person against whom a freezing order or confiscation order is issued, or the natural or legal person that owns the property that is covered by that order, as well as any third parties whose rights in relation to that property are directly prejudiced by that order under the law of the executing State.

Article 3

Criminal offences

Freezing orders or confiscation orders shall be executed without verification of the double criminality of the acts giving rise to such orders, where those acts are punishable in the issuing State by a custodial sentence of a maximum of at least three years and constitute one or more of the following criminal offences under the law of the issuing State:

(1) participation in a criminal organisation;

(2) terrorism;

(3) trafficking in human beings;

(4) sexual exploitation of children and child pornography;

(5) illicit trafficking in narcotic drugs and psychotropic substances;

(6) illicit trafficking in weapons, munitions and explosives;

(7) corruption;

(8) fraud, including fraud and other criminal offences affecting the Union's financial interests as defined in Directive (EU) 2017/1371 of the European Parliament and of the Council (¹);

(9) laundering of the proceeds of crime;

(10) counterfeiting currency, including the euro;

(11) computer-related crime;

(12) environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties;

(13) facilitation of unauthorised entry and residence;

(14) murder or grievous bodily injury;

(15) illicit trade in human organs and tissue;

(16) kidnapping, illegal restraint or hostage-taking;

(17) racism and xenophobia;

(18) organised or armed robbery;

(19) illicit trafficking in cultural goods, including antiques and works of art;

(20) swindling;

(21) racketeering and extortion;

(22) counterfeiting and piracy of products;

(23) forgery of administrative documents and trafficking therein;

(24) forgery of means of payment;

(25) illicit trafficking in hormonal substances and other growth promoters;

(26) illicit trafficking in nuclear or radioactive materials;

(27) trafficking in stolen vehicles;

(28) rape;

(29) arson;

(30) crimes within the jurisdiction of the International Criminal Court;

(31) unlawful seizure of aircraft or ships;

(32) sabotage.

CHAPTER II

TRANSMISSION, RECOGNITION AND EXECUTION OF FREEZING ORDERS

Article 4

Transmission of freezing orders

The freezing certificate shall:

(a) be accompanied by a confiscation certificate transmitted in accordance with Article 14; or

(b) contain an instruction that the property is to remain frozen in the executing State pending the transmission and execution of the confiscation order in accordance with Article 14, in which case the issuing authority shall indicate the estimated date of this transmission in the freezing certificate.

Article 5

Transmission of a freezing order to one or more executing States

Where a freezing order concerns specific items of property, the freezing certificate may be transmitted to more than one executing State at the same time where:

(a) the issuing authority has reasonable grounds to believe that different items of property covered by the freezing order are located in different executing States; or

(b) the freezing of a specific item of property covered by the freezing order would require action in more than one executing State.

Article 6

Standard freezing certificate

Article 7

Recognition and execution of freezing orders

Article 8

Grounds for non-recognition and non-execution of freezing orders

The executing authority may decide not to recognise or execute a freezing order only where:

(a) executing the freezing order would be contrary to the principle of ne bis in idem;

(b) there is a privilege or immunity under the law of the executing State that would prevent the freezing of the property concerned or there are rules on the determination or limitation of criminal liability that relate to the freedom of the press or the freedom of expression in other media that prevent the execution of the freezing order;

(c) the freezing certificate is incomplete or manifestly incorrect and has not been completed following the consultation referred to in paragraph 2;

(d) the freezing order relates to a criminal offence committed, wholly or partially, outside the territory of the issuing State and, wholly or partially, in the territory of the executing State and the conduct in connection with which the freezing order was issued does not constitute a criminal offence under the law of the executing State;

(e) in a case falling under Article 3(2), the conduct in connection with which the freezing order was issued does not constitute a criminal offence under the law of the executing State; however, in cases that involve taxes or duties or customs and exchange regulations, the recognition or execution of the freezing order shall not be refused on the grounds that the law of the executing State does not impose the same kind of taxes or duties or does not provide for the same type of rules as regards taxes and duties or the same type of customs and exchange regulations as the law of the issuing State;

(f) in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of the freezing order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence.

Article 9

Time limits for recognition and execution of freezing orders

Article 10

Postponement of the execution of freezing orders

The executing authority may postpone the execution of a freezing order transmitted in accordance with Article 4 where:

(a) its execution might damage an ongoing criminal investigation, in which case the execution of the freezing order may be postponed until such time as the executing authority considers reasonable;

(b) the property is already the subject of an existing freezing order, in which case the execution of the freezing order may be postponed until that existing order is withdrawn; or

(c) the property is already subject to an existing order issued in the course of other proceedings in the executing State, in which case the execution of the freezing order may be postponed until that existing order is withdrawn; however, this point shall only apply where the existing order would have priority, under national law, over subsequent national freezing orders in criminal matters.

Article 11

Confidentiality

Article 12

Duration of freezing orders

Article 13

Impossibility to execute a freezing order

The non-execution of a freezing order under this Article may only be justified where the property:

(a) has already been confiscated;

(b) has disappeared;

(c) has been destroyed;

(d) cannot be found in the location indicated on the freezing certificate; or

(e) cannot be found because its location has not been indicated in a sufficiently precise manner, despite the consultations referred to in paragraph 2.

CHAPTER III

TRANSMISSION, RECOGNITION AND EXECUTION OF CONFISCATION ORDERS

Article 14

Transmission of confiscation orders

Article 15

Transmission of a confiscation order to one or more executing States

Where a confiscation order concerns specific items of property, the confiscation certificate may be transmitted to more than one executing State at the same time where:

(a) the issuing authority has reasonable grounds to believe that different items of property covered by the confiscation order are located in different executing States; or

(b) the confiscation of a specific item of property covered by the confiscation order would require action in more than one executing State.

Where a confiscation order concerns an amount of money, the confiscation certificate may be transmitted to more than one executing State at the same time where the issuing authority considers that there is a specific need to do so, in particular where:

(a) the property concerned has not been frozen under this Regulation; or

(b) the estimated value of the property which may be confiscated in the issuing State and in any one executing State is not likely to be sufficient for the confiscation of the full amount covered by the confiscation order.

Article 16

Consequences of transmission of confiscation orders

The issuing authority shall immediately inform the executing authority where:

(a) it considers that there is a risk that confiscation in excess of the maximum amount may occur, in particular on the basis of information received from the executing authority pursuant to point (b) of Article 21(1);

(b) all or a part of the confiscation order has been executed in the issuing State or in a different executing State, in which case it shall specify the amount for which the confiscation order has not yet been executed; or

(c) after the transmission of a confiscation certificate in accordance with Article 14, an authority of the issuing State receives any sum of money which has been paid in respect of the confiscation order.

Where point (a) of the first subparagraph applies, the issuing authority shall inform the executing authority as soon as possible when the risk referred to in that point ceases to exist.

Article 17

Standard confiscation certificate

Article 18

Recognition and execution of confiscation orders

Article 19

Grounds for non-recognition and non-execution of confiscation orders

The executing authority may decide not to recognise or execute a confiscation order only where:

(a) executing the confiscation order would be contrary to the principle of ne bis in idem;

(b) there is a privilege or immunity under the law of the executing State that would prevent the confiscation of the property concerned or there are rules on the determination or limitation of criminal liability that relate to the freedom of the press or the freedom of expression in other media that prevent the execution of the confiscation order;

(c) the confiscation certificate is incomplete or manifestly incorrect and has not been completed following the consultation referred to in paragraph 2;

(d) the confiscation order relates to a criminal offence committed, wholly or partially, outside the territory of the issuing State and, wholly or partially, in the territory of the executing State and the conduct in connection with which the confiscation order was issued does not constitute a criminal offence under the law of the executing State;

(e) the rights of affected persons would make it impossible under the law of the executing State to execute the confiscation order, including where that impossibility is a consequence of the application of legal remedies in accordance with Article 33;

(f) in a case falling under Article 3(2), the conduct in connection with which the confiscation order was issued does not constitute a criminal offence under the law of the executing State; however, in cases that involve taxes or duties or customs and exchange regulations, the recognition or execution of the confiscation order shall not be refused on the grounds that the law of the executing State does not impose the same kind of taxes or duties or does not provide for the same type of rules as regards taxes and duties or the same type of customs and exchange regulations as the law of the issuing State;

(g) according to the confiscation certificate, the person against whom the confiscation order was issued did not appear in person at the trial that resulted in the confiscation order linked to a final conviction, unless the confiscation certificate states that, in accordance with further procedural requirements defined in the law of the issuing State, the person: (i) was summoned in person in due time and was thereby informed of the scheduled date and place of the trial that resulted in the confiscation order, or actually received, by other means, official information of the scheduled date and place of that trial in such a manner that it was established unequivocally that that person was aware of the scheduled trial, and was informed in due time that such a confiscation order could be handed down if that person did not appear at the trial; (ii) being aware of the scheduled trial, had given a mandate to a lawyer, who was either appointed by the person concerned or by the State, to defend that person at the trial and was actually defended by that lawyer at the trial; or (iii) after having been served with the confiscation order and having been expressly informed of the right to a retrial or an appeal, in which the person would have the right to participate and which would allow a re-examination of the merits of the case including an examination of fresh evidence, and which could lead to the original confiscation order being reversed, expressly stated that he or she did not contest the confiscation order, or did not request a retrial or appeal within the applicable time limits;

(h) in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of the confiscation order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence.

Article 20

Time limits for recognition and execution of confiscation orders

Article 21

Postponement of the execution of confiscation orders

The executing authority may postpone the recognition or execution of a confiscation order transmitted in accordance with Article 14 where:

(a) its execution might damage an ongoing criminal investigation, in which case the execution of the confiscation order may be postponed until such time as the executing authority considers reasonable;

(b) as regards a confiscation order concerning an amount of money, it considers that there is a risk that the total amount obtained from the execution of that confiscation order might considerably exceed the amount specified in the confiscation order because of the simultaneous execution of the confiscation order in more than one Member State;

(c) the property is already the subject of ongoing confiscation proceedings in the executing State; or

(d) a legal remedy as referred to in Article 33 has been invoked.

Article 22

Impossibility to execute a confiscation order

The non-execution of a confiscation order under this Article may only be justified where the property:

(a) has already been confiscated;

(b) has disappeared;

(c) has been destroyed;

(d) cannot be found in the location indicated on the confiscation certificate; or

(e) cannot be found because its location has not been indicated in a sufficiently precise manner, despite the consultations referred to in paragraph 2.

CHAPTER IV

GENERAL PROVISIONS

Article 23

Law governing execution

Article 24

Notification of the competent authorities

Article 25

Means of communication

Article 26

Multiple orders