14 Mutual Recognition of Confiscation
Orders
| (31933)
13507/10
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
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| Legal base | —
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| Document originated | 23 August 2010
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| Deposited in Parliament | 13 September 2010
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| Department | Home Office
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| Basis of consideration | Minister's letter of 20 December 2010
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| Previous Committee Report | HC 428-viii (2009-10), chapter 7 (17 November 2010)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Cleared
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Background
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."
Conclusion
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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