BETA

46 Amendments of Maria GRAPINI related to 2016/0412(COD)

Proposal for a regulation
Recital 3

(3) Freezing and confiscation of instrumentalities and proceeds of crime are among the most effective means of combatting crime, and may also have an impact on reducing and combating terrorism. The European Union is committed to ensuring more effective identification, confiscation and re-use of criminal assets24. _________________ 24 "The Stockholm programme – An open and secure Europe serving and protecting the citizens", OJ C 115, 4.5.2010, p.1.

2017/10/27
Committee: LIBE

Proposal for a regulation
Recital 4

(4) As crime is often transnational in nature, effective cross-border cooperation, continuing exchange of information and reciprocal support is essential in order to detect, seize and confiscate the proceeds and instrumentalities of crime.

2017/10/27
Committee: LIBE

Proposal for a regulation
Recital 6

(6) The Commission's implementation reports on Framework Decisions 2003/577/JHA and 2006/783/JHA show that the existing regime for the mutual recognition of freezing and confiscation orders is not fully effective. The current instruments have not been implemented and applied uniformly in the Member States, leading to insufficient mutual recognition and inefficient cross-border cooperation.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Recital 30

(30) The execution of a ~~confiscation or a freezing~~freezing or a confiscation order should be governed by the law of the executing State and its authorities should alone be competent to decide on the procedures for execution.

2017/10/27
Committee: LIBE

Proposal for a regulation
Recital 35

(35) In order to amend the certificate and the form set out in Annexes I and II to this Regulation , the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work for delegated acts with specialised authorities in the Member States and the corresponding European agencies, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure the simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council.

2017/10/27
Committee: LIBE

Maria GRAPINI, Emilian PAVEL

Proposal for a regulation
Article 1 – paragraph 2

2. This Regulation shall not have the effect of amending the obligation to respect ~~the~~ fundamental rights and legal principles ~~as enshrined in~~, in particular the right to a defence, the right to a fair trial and the right to property, as provided for by Article 6 TEU.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 2 – paragraph 1 – point 1

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

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 2 – paragraph 1 – point 2 a (new)

(2a) ‘interested parties’ means any natural or legal person, including bona fide third parties, who are affected by this Regulation in accordance with national law of the executing State;

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 3 – paragraph 1 – indent 6

- illicit trafficking in weapons, munitions and explosives, hazardous chemicals and products that affect the ozone layer,

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 3 – paragraph 1 – indent 13

- environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, and illicit trafficking in timber,

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 3 – paragraph 1 – indent 16

- illicit trade in human organs ~~and~~, tissue and cells,

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 3 – paragraph 1 – indent 20

- illicit trafficking in cultural goods, including antiques and works of art, illicit trafficking in precious metals and alloys of precious metals and precious stones,

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 3 – paragraph 1 – indent 27

- illicit trafficking in nuclear or, radioactive or biological materials,

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 4 – paragraph 1

1. A confiscation order, ~~or a certified copy of it,~~ shall be transmitted together with the certificate provided for in Article 7 by the issuing authority directly to the executing authority or, where applicable, to the central authority referred to in Article 27(2) by any means capable of producing a written record under conditions allowing the executing authority to establish authenticity.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 4 – paragraph 6

6. Where the authority in the executing State which receives a confiscation order has no competence to recognise it and to take the necessary measures for its execution, it shall immediately or within 3 working days at the latest, transmit the confiscation order to the competent executing authority in its Member State and shall inform the issuing authority accordingly.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 5 – paragraph 1

1. AIn principle, a confiscation order may only be transmitted pursuant to Article 4 to one executing State at any one time.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 6 – paragraph 3 – subparagraph 1 – introductory part

The issuing authority shall immediately or within 3 working days at the latest, inform the executing authority by any means capable of producing a written record:

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 6 – paragraph 3 – subparagraph 1 – point b

(b) if all or a part of the ~~freezing or~~ confiscation order has been executed in the issuing State or in another executing State, specifying the amount for which the ~~freezing or~~ confiscation order has not yet been executed;

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 6 – paragraph 4

4. Where the issuing State has indicated that it wishes to withdraw the order from the executing State for any reason, the executing State shall terminate the execution of the confiscation order immediately or within 3 working days at the latest.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 9

~~[...]~~deleted

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 9 a (new)

Article 9 a Grounds for mandatory non-recognition and non-execution of confiscation orders The executing authority of the Member State of execution shall refuse to recognise and to execute confiscation orders only if: (a) the execution of the confiscation order would be contrary to the ne bis in idem principle; (b) there is immunity or privilege under the law of the executing State which would prevent the execution of a domestic confiscation order on the property concerned; (c) the rights of any bona fide third party 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 31; (d) there are substantial grounds to believe that the execution of the confiscation order would be incompatible with the obligations of the executing State in accordance with Article 6 of the Treaty on European Union and the Charter.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 9 b (new)

Article 9 b Grounds for optional non-recognition and non-execution of confiscation orders 1. The executing authority of the Member State of execution may decide not to recognise and not to execute confiscation orders only if: (a) the certificate provided for in Article 7 is incomplete, manifestly incorrect or manifestly does not correspond to the confiscation order, and has not been completed following the consultation in accordance with paragraph 2; (b) the confiscation order is based on a criminal offence committed outside the territory of the issuing State and wholly or partially on the territory of the executing State and the conduct in connection with which the confiscation order is issued is not an offence in the executing State; (c) if, in a case referred to in Article 3(2), the conduct on which the confiscation order is based does not constitute an offence under the law of the executing State; however, in relation to taxes or duties, customs and exchange, execution of the confiscation order shall not be refused on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing State; (d) according to the certificate provided for in Article 7, the person did not appear in person at the trial resulting in a confiscation order linked to a final conviction. That ground as recognized only in point (d) of this paragraph, for non-recognition and non execution shall not apply where the certificate states that the person, in accordance with further procedural requirements defined in the national law of the issuing State: (1) was summoned in due time in person and thereby informed of the scheduled date and place of the trial which resulted in the confiscation order, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that the interested person was aware of the scheduled trial, and was informed in due time that such a confiscation order could be handed down if the interested person did not appear for the trial; (2) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend the interested person at the trial and was indeed defended by that counsellor at the trial; or (3) after being served with the confiscation order and being expressly informed of the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which could lead to the original decision being reversed: - expressly stated that the interested person does not contest the confiscation order, or - did not request a retrial or appeal within the applicable time frame. 2. In the cases referred to in paragraph 1, before deciding not to recognise and execute the confiscation order, either in whole or in part, the executing authority shall consult the issuing authority by any appropriate means and shall, where appropriate, request the issuing authority to supply any necessary information without delay. 3. Any decision not to recognise and to execute shall be taken without delay and notified immediately and at the latest within 3 days to the issuing authority by any means capable of producing a written record.

2017/10/27
Committee: LIBE

Maria GRAPINI, Emilian PAVEL

Proposal for a regulation
Article 10 – paragraph 1

1. The decision on the recognition and execution of the confiscation order shall be taken and the confiscation be carried out with the same celerity and priority as for a similar domestic case and, in any case, within the clear and reasonable time limits provided for in this Article.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 10 – paragraph 4

4. Unless grounds for postponement pursuant to Article 11 exist, the executing authority shall carry out the confiscation without delay and without prejudice to paragraph 5 of this Article , not later than 3015 days following the taking of the decision referred to in paragraph 2 of this Article.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 10 – paragraph 5

5. Where it is not possible in a specific case to meet the time limits set out in paragraphs 2 or 4, the executing authority shall, with~~out delay~~in 3 working days at the latest, inform the issuing authority by any means, giving the reasons for the delay and shall consult with the issuing authority on the appropriate timing to carry out the confiscation. In such a case, the time limit laid down in paragraphs 2 or 4, may be extended by a maximum of 30 days.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Article 11 a Obligation to inform the interested parties on the execution of confiscation orders 1. Member States shall take the necessary measures to ensure that the confiscation order is communicated to the interested natural or legal person, including any bona fide third parties, at the latest within 48 hours after its execution. Such communication shall indicate the reason or reasons for the order concerned. 2. Member States shall take the necessary measures to ensure that the persons affected by the measures provided for under this Regulation have the right to an effective remedy and a fair trial in order to uphold their rights. 3. Without prejudice to Directive 2012/13/EU and Directive 2013/48/EU, persons whose property is affected by a confiscation order shall have the right of access to a lawyer throughout the confiscation proceedings relating to the determination of the proceeds and instrumentalities in order to uphold their rights. The persons concerned shall be informed of that right. 4. The interested person shall have an effective possibility to challenge the circumstances of the case, including specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived from criminal conduct. 5. Third parties shall be entitled to claim title of ownership or other property rights. 6. Where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Regulation, Member States shall take the necessary measures to ensure that the confiscation measure does not prevent those victims from seeking compensation for their claims.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 12 – paragraph 1

Where it is impossible to execute the confiscation order because the property to be confiscated has already been confiscated, has disappeared, has been destroyed, or cannot be found in the location indicated in the certificate or because the location of the property has not been indicated in a sufficiently precise manner, even after consultation with the issuing authority, the issuing authority shall be notified with~~out delay~~in 3 working days at the latest. Where possible, the order may be executed on other property in accordance with Article 8(2) or (3).

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 13 – paragraph 1 – point c

(c) the reason or reasons for the order are properly indicated~~, at least briefly~~.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 14 – paragraph 8

8. Where the executing authority which receives a freezing order has no competence to recognise it and take the necessary measures for its execution, it shall immediately or within 3 working days at the latest, transmit the freezing order to the competent executing authority in its Member State and shall inform the issuing authority accordingly.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 15 – paragraph 1

1. AIn principle, a freezing order may only be transmitted pursuant to Article 14 to one executing State at any one time.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 18

Article 18 Grounds for non-recognition and non- execution of freezing orders 1. The executing authority may decide not to recognise and not to execute the freezing order only if: (a) the form provided for in Article 16 is incomplete or manifestly incorrect, and has not been completed following the consultation in accordance with paragraph 2; (b) the execution of the order would be contrary to the ne bis in idem principle (c) there is immunity or privilege under the law of the executing State which would prevent the execution of a domestic freezing order on the property concerned; (d) the order is based on a criminal offence committed outside the territory of the issuing State and wholly or partially on the territory of the executing State, and the conduct in connection with which the freezing order is issued is not an offence in the executing State; (e) in a case referred to in Article 3(2), the conduct on which the freezing order is based does not constitute an offence under the law of the executing State; however, in relation to taxes or duties, customs and exchange, 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 tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing State; 2. In the cases referred to in paragraph 1, before deciding not to recognise or not to execute the freezing order either in whole or in part, the executing authority shall consult the issuing authority, by any appropriate means, and shall, where appropriate, request the issuing authority to supply any necessary information without delay. 3. The executing authority may decide to lift the freezing order if, during the execution, it becomes aware that one of the grounds for non-recognition and non- execution applies.deleted

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 18 a (new)

Article 18 a Grounds for mandatory non-recognition and non-execution of freezing orders 1. The executing authority of the Member State of execution shall refuse to recognise and to execute freezing orders only if: (a) the execution of the order would be contrary to the ne bis in idem principle; (b) here is immunity or privilege under the law of the executing State which would prevent the execution of a domestic freezing order on the property concerned; (c) the rights of any bona fide third party make it impossible under the law of the executing State to execute the freezing order, including where that impossibility is a consequence of the application of legal remedies in accordance with Article 31; (d) there are substantial grounds to believe that the execution of the freezing order would be incompatible with the obligations of the executing State in accordance with Article 6 of the Treaty on European Union and the Charter.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 18 b (new)

Article 18 b Grounds for optional non-recognition and non-execution of freezing orders 1. The executing authority of the Member State of execution may decide not to recognise and not to execute the freezing order only if: (a) the form provided for in Article16 is incomplete or manifestly incorrect, and has not been completed following the consultation in accordance with paragraph 2; (b) the order is based on a criminal offence committed outside the territory of the issuing State and wholly or partially on the territory of the executing State, and the conduct in connection with which the freezing order is issued is not an offence in the executing State; (c) in a case referred to in Article 3(2), the conduct on which the freezing order is based does not constitute an offence under the law of the executing State; however, in relation to taxes or duties, customs and exchange, 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 tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing State; 2. In the cases referred to in paragraph 1, before deciding not to recognise or not to execute the freezing order either in whole or in part, the executing authority shall consult the issuing authority, by any appropriate means, and shall, where appropriate, request the issuing authority to supply any necessary information without delay. 3. The executing authority may decide to lift the freezing order if, during the execution, it becomes aware that one of the grounds for non-recognition and non-execution applies.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 19 – paragraph 3

3. The executing authority shall take the decision on the recognition and execution of the freezing order, or on consulting the issuing authority in accordance with Article 18(2), as soon as possible and, without prejudice to paragraph 7 of this Article, no later than 248 working hours after the executing authority has received the freezing order.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 19 – paragraph 4

4. If the executing authority consults the issuing authority in accordance with Article 18(2), the executing authority shall take the decision on the recognition and execution of the freezing order with~~out delay~~in 3 working days at the latest.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 19 – paragraph 7

7. Where it is not possible in a specific case to meet the time limits set out in paragraphs 3 or 6, the executing authority shall immediately or within 3 working days at the latest, inform the issuing authority by any means, giving the reasons for the delay and shall consult with the issuing authority on the appropriate timing to carry out the freezing.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 20 – paragraph 2

2. The executing authority shall immediately or within 3 working days at the latest, report to the issuing authority by any means capable of producing a written record on the postponement of the execution of the order, including the grounds for the postponement and, if possible, the expected duration of the postponement. As soon as the ground for postponement has ceased to exist, the executing authority shall immediately take the necessary measures for the execution of the order and inform the issuing authority thereof by any means capable of producing a written record.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 21

Article 21 Obligation to inform the interested parties 1. Without prejudice to Article 22, following the execution, the executing authority shall notify its decision to the person against whom the freezing order has been issued and to any interested party including bona fide third parties of which the executing authority has been informed in accordance with Article 14(6). 2. The notification shall contain information, at least briefly, on the reasons of the freezing order, on the authority who issued the order and on the existing legal remedies under the national law of the executing State.deleted

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 21 a (new)

Article 21 a Obligation to inform the interested parties on the execution of freezing orders 1. Member States shall take the necessary measures to ensure that the freezing order is communicated to the interested natural or legal person, including any bona fide third parties, as soon as possible after its execution. Such communication shall indicate, the reason or reasons for the order concerned. When it is necessary to avoid jeopardising a criminal investigation, the competent authorities may postpone communicating the freezing order to the interested person. 2. Member States shall take the necessary measures to ensure that the interested persons by the measures provided for under this Regulation have the right to an effective remedy and a fair trial in order to uphold their rights. 3. The freezing order shall remain in force only for as long as it is necessary to preserve the property with a view to possible subsequent confiscation. 4. Member States shall provide for the effective possibility for the person whose property is affected to challenge the freezing order before a Court, in accordance with procedures provided for in national law. Such procedures may provide that when the initial freezing order has been taken by a competent authority other than a judicial authority, such order shall first be submitted for validation or review to a judicial authority before it can be challenged before a Court. 5. Frozen property which is not subsequently confiscated shall be returned immediately. The conditions or procedural rules under which such property is returned shall be determined by national law. 6. Without prejudice to Directive 2012/13/EU and Directive 2013/48/EU, persons whose property is affected by a freezing order shall have the right of access to a lawyer throughout the freezing proceedings relating to the determination of the proceeds and instrumentalities in order to uphold their rights. The persons concerned shall be informed of that right. 7. Third parties shall been titled to claim title of ownership or other property rights. 8. The notification shall contain relevant information, in such a way that the person can lodge effective legal remedies, on the reasons of the freezing order, on the authority who issued the order and on the existing legal remedies under the national law of the executing State.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 22 – paragraph 2

2. The executing authority shall, in accordance with its national law, guarantee the confidentiality of the facts and the substance of the freezing order, except to the extent necessary to execute it. If the executing authority cannot comply with the requirement of confidentiality, it shall notify the issuing authority immediately and at the latest within 3 working days.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 22 – paragraph 3

3. For the purpose of safeguarding ongoing investigations, the issuing authority may request the executing authority to keep the execution of the freezing order confidential for a limited period of time, but no longer than the moment when the case is sent to trial.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 23 – paragraph 2

2. After consulting the issuing authority, the executing authority, taking into account the circumstances of the case, may make a reasoned request to the issuing authority to limit the period for which the property shall be frozen. If the issuing authority does not agree to such a limitation, it shall inform the executing authority thereof, stating its reasons. If the issuing authority does not do so within ~~six~~four weeks of receiving the request, the executing authority may lift the freezing order.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 24 – paragraph 1

Where it is impossible to execute the freezing order because the property to be frozen has already been confiscated, has disappeared, has been destroyed or cannot be found in the location indicated in the certificate or because the location of the property has not been indicated in a sufficiently precise manner, even after consultation with the issuing authority, the issuing authority shall be notified with~~out delay~~in 3 working days at the latest.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 30 – paragraph 1

The issuing authority shall immediately or within 48 working hours at the latest, inform the executing authority by any means capable of producing a written record of any decision or measure as a result of which the order ceases to be enforceable or shall be withdrawn for any other reason.

2017/10/27
Committee: LIBE

Emilian PAVEL, Maria GRAPINI

Proposal for a regulation
Article 31 – paragraph 2 – point b

(b) if the amount obtained from the execution of the confiscation order is more than EUR 10 000, ~~50 % of~~ the amount shall be transferred byas follows, 30 % to the executing State and 70% to the issuing State.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 33 – paragraph 2

2. The substantive reasons for issuing the freezing or confiscation order ~~shall not~~may be challenged ~~before a court~~only in an action brought in the issuing State, without prejudice to the guarantees of fundamental rights in the executing State.

2017/10/27
Committee: LIBE