7 Mutual Recognition of Confiscation
|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
|Document originated||23 August 2010
|Deposited in Parliament||13 September 2010
|Basis of consideration||EM of 22 September 2010
|Previous Committee Report||None, but see HC 42-xxvi (2003-04), chapter 7, (7 July 2004)
|To be discussed in Council||No date set
|Committee's assessment||Legally important
|Committee's decision||Not cleared; further information requested
7.1 The Framework Decision on the application of the principle
of mutual recognition to confiscation orders
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.
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