European Scrutiny Committee Contents

14   Mutual Recognition of Confiscation Orders



COM(10) 428

Commission Report 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 considerationMinister's letter of 20 December 2010
Previous Committee ReportHC 428-viii (2009-10), chapter 7 (17 November 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionCleared


14.1  The Framework Decision on the application of the principle of mutual recognition to confiscation orders[55] 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.

14.2  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.

14.3  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. (However, the Commission does not have the power to bring infringement proceedings against the UK, nor does the ECJ have jurisdiction in the UK, for non-implementation of Framework Decisions.)

Previous scrutiny

14.4  In his Explanatory Memorandum of 22 September 2010 on the Commission's report the Parliamentary Under-Secretary of State for Crime Prevention at the Home Office (James Brokenshire) said that this instrument had proved difficult to transpose and, consequently, that there had been implementation delays. Nonetheless the UK hoped 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.

14.5  When we reported on this document in November 2010[56] we asked the Minister for a fuller account of why the UK has not implemented this Framework Decision to date and when it planned to do so—12 to 18 months, or longer if an enabling clause is required, seemed an unacceptably long time given that the implementation date was 24 November 2008, almost two years ago.

Minister's letter of 20 December 2010

14.6  In response, the Minister wrote on 20 December in the following terms:

"The previous Administration agreed to implement the Framework Decision (the FD) but had not done so by the time they left office. Obviously I cannot comment on the details of the previous administration's priorities and approach in this area.

"The transposition of the FD is now being addressed by the present Government. The present Government is committed to the aims and principles set out in the Framework Decision and we are actively working on this, considering the most appropriate legislative vehicle to fulfil our commitments. As you know the passage of legislation through Parliament is a properly scrutinised process, which can then take significant work to bring into force; the timeframe we have suggested is a realistic one in that context.

"Implementing the Framework Decision will be complex for a number of reasons, including because it will require changes to the current UK restraint and confiscation regime and changes to primary legislation. The Commission have made it clear that implementation by non-legislative means is very unlikely to constitute adequate implementation of the Framework Decision. Notably the Commission Communication concludes that there are many Member States that have transposed this Framework Decision incorrectly.

"This measure falls within those subject to the transitional arrangements in Protocol no. 36 to the Treaty on European Union and the Treaty on the Functioning of the European Union, where the UK must decide in 2014 whether to accept the extension of ECJ jurisdiction to all acts of the Union in the field of police and judicial co-operation in criminal matters adopted before the entry into force of the Lisbon Treaty. That decision will be some time away and I hope to be able to update you in due course."


14.7  We thank the Minister for his letter but are none the wiser for reading it. However, there is little purpose in pursuing this correspondence further, so we simply conclude that there is a possibility that the Framework Decision on the application of the principle of mutual recognition to confiscation orders may not be implemented before the UK has to decide whether to opt out of it under the terms of Protocol 36 by the end of May 2014. No doubt the Minister will wish to correct us if we are wrong.

55   2006/783/JHA: see OJ No. L 328, 24.11.2006, p.59. Back

56   See headnote. Back

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