Various Documents considered by the Committee - European Scrutiny Committee Contents

7 Mutual Recognition of Confiscation Orders



COM(10) 428

Report from the Commission based on Article 22 of the Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders

Legal base
Document originated23 August 2010
Deposited in Parliament13 September 2010
DepartmentHome Office
Basis of considerationEM of 22 September 2010
Previous Committee ReportNone, but see HC 42-xxvi (2003-04), chapter 7, (7 July 2004)
To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested


7.1 The Framework Decision on the application of the principle of mutual recognition to confiscation orders[19] applies the principle of mutual recognition to confiscation orders issued by a criminal court for the purpose of facilitating enforcement of such confiscation orders in a Member State other than the one in which the confiscation order was issued. The Framework Decision applies to all offences in relation to which confiscation orders can be issued. Dual criminality checks were abolished in relation to 32 categories of offences listed in the Framework Decision. The Framework Decision was adopted on 8 October 2006.

The document

7.2 Article 22 of the Framework Decision requires the Commission to produce a report on the measures taken by Member States to comply with the Framework Decision by 24 November 2008, the implementation date. The report should have been completed by 24 November 2009, in time for the Council to assess the extent to which Member States had taken the necessary measures to comply with the Framework Decision. The delay in preparing this report, the Commission says, results from the low number of notifications (only two) received at the time of the original deadline set by the Framework Decision.

7.3 By the end of February 2010, the Commission had received notifications on the national laws transposing the Framework Decision from 13 Member States. But no notification or information on the process of transposition had been received from the following seven Member States: Bulgaria, Estonia, Luxembourg, Malta, Sweden, Slovakia and the United Kingdom. In the report the Commission reminds those seven Member States that Framework Decisions are binding upon Member States as to the result to be achieved, but leave to the national authorities the choice of the form and method of implementation. Whatever the form chosen, the principles of clarity, legal certainty and effectiveness must be respected. Framework decisions do not entail direct effect. However the principle of conforming interpretation is binding in relation to Framework Decisions adopted under Title VI of the Treaty on European Union (before it was amended by the Lisbon Treaty).

7.4 The report concludes that the degree of implementation of Framework Decision in the national legislation of the Member States is unsatisfactory. The national implementing provisions received from the 13 Member States were generally satisfactory; but the Commission's analysis of the grounds for refusal to recognise a confiscation order showed that almost all 13 Member States had incorporated additional grounds. This, the Commission says, is not in line with the Framework Decision.

7.5 The Commission now invites all Member States to consider this report and to take the opportunity to provide all further relevant information to the Commission and to the Council Secretariat, in order to fulfil their obligations under Article 22 of the Framework Decision. In addition, the Commission encourages those Member State that have signalled that they are preparing relevant legislation to enact and notify these national measures as soon as possible. It concludes that:

"The partial and incomplete transposition of this instrument by Member States hampers substantively the full and effective application of the principle of mutual recognition in the European Union. It limits the role of judicial authorities in combating financial crime by depriving criminals of the financial benefit they obtain from criminal conduct. The Commission urges all those Member States which have not done so yet to take swift measures to implement this Framework Decision to the fullest extent. Furthermore, it invites those which have transposed it incorrectly, e.g. by including additional grounds for refusal, to review and align their national implementation legislation with the provisions of the Framework Decision. On the basis of the reactions to this report, the Commission will reflect on the need to revise this Framework Decision under the rules of the Treaty of Lisbon."

The Government's view

7.6 In his Explanatory Memorandum of 22 September the Parliamentary Under-Secretary of State for Crime Prevention at the Home Office (James Brokenshire) says that improving asset recovery is a high priority for the UK. Work to improve co-operation with the UK's international partners, EU and multi-national organisations (such as the UN and the Financial Action Task Force) in this area is actively pursued by the Government and by the relevant agencies involved. Given the increasingly transnational nature of crime the Framework Decision is another step forward in facilitating this process amongst Member States.

7.7 The UK agrees with the assessment in the report that the UK is yet to provide notification of its transposition to the Commission. The UK welcomes the encouragement of the Commission to those Member States which are preparing relevant measures to fully implement the Framework Decision and to notify the Commission of those measures when enacted.

7.8 The Minister says that this instrument has proved difficult to transpose and, consequently, there have been implementation delays. Nonetheless the UK would hope to have implemented this Framework Decision within the next 12 to 18 months. If an enabling clause in a suitable legislative vehicle is required, later implementation through a statutory instrument would probably mean the UK would expect to implement this in a longer timeframe.


7.9 We thank the Minister for his Explanatory Memorandum but would be grateful to receive a fuller account of why the UK has not implemented this Framework Decision to date and when it plans to do so — 12 to 18 months, or longer if an enabling clause is required, seems an unacceptably long time given that the implementation date was 24 November 2008, almost two years ago.

7.10 The document remains under scrutiny pending the Minister's reply.

19   2006/783/JHA: see OJ No. L 328, 24.11.2006, p.59. Back

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