Activities of José GUSMÃO related to 2022/0167(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on asset recovery and confiscation
Amendments (26)
Amendment 88 #
Proposal for a directive
Recital 8
Recital 8
(8) The rules should facilitate cross- border cooperation by providing the competent authorities with the necessary powers and resources to respond in a swift and effective way to requests from authorities in other Member States. Provisions laying down rules on early tracing and identification, urgent action to freeze, or efficient management contribute to improving the possibilities for asset recovery across borders. Given the global nature of in particular organised crime, cooperation with third countries should also be strengthened, as long as adequate fundamental rights safeguards are put in place.
Amendment 91 #
Proposal for a directive
Recital 9
Recital 9
(9) Due to the poly-criminal nature of and the systemic and profit-oriented cooperation of criminal organisations involved in a wide range of illicit activities in different markets, an effective fight against organised crime requires that freezing and confiscation measures are available to cover the profits from all offences where organised crime groups are active in. These crimes include the areas of crime listed in Article 83(1), including the illicit trafficking in weapons, munitions and explosives as defined in the Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against transnational organized crime, to which the Union is party. In addition to the crimes listed in Article 83(1), the scope of the Directive should also cover all crimes that are harmonised at EU level, including frauds against the financial interests of the European Union in light of the increasing involvement of organised criminal groups in such crime area. The scope of the Directive should further include environmental crimes, which are a core business for organised criminal groups and are often connected to money laundering or concern waste and residues produced in the context of drug production and trafficking. The facilitation of unauthorized entry and residence constitute a core business for organised criminal groups and is typically connected to the trafficking in human beings.
Amendment 95 #
Proposal for a directive
Recital 10
Recital 10
(10) Other crimes committed within the framework of a criminal organisation play a pivotal role in generating revenues and in enabling further crimes, including serious crimes with a cross-border nature. Such crimes should be included in the scope of the Directive to the extent to which they are committed within the framework of a criminal organisation. The counterfeiting and piracy of products is linked to money laundering and the forgery of documents, and threatens the functioning of the single market and fair competition. The illicit trafficking in cultural goods, including antiques and works of art, is often intertwined with money laundering and constitutes an important source of financing for organised criminal groups. Forgery of administrative documents and trafficking therein, including bank documents or identification documents, is a key enabling tool for money laundering, trafficking in human beings, or migrant smuggling, and should as such be covered in the scope of this Directive. Other crimes which are often carried out within the framework of an organised crime group include murder or grievous bodily harm, as well as the illicit trade in human organs and tissue, which are a source of revenue for organised crime groups in the context of contract killings, intimidation and trafficking in human beings. Similarly kidnapping, illegal restraint or hostage taking, as well as racketeering and extortion, are utilized either as source of revenue through the collection of ransom money or as intimidation tactics against adversaries. The crime of organised or armed robbery is one of the most common forms to generate profits for organised criminal groups, and it is often committed in conjunction with other crimes, in particular the trafficking in firearms. Similarly, the trafficking in stolen vehicles cannot only generate profits but also represents an enabling crime to provide for the necessary instrumentalities to carry out further offences. In addition, it is key to include tax crimes to the extent it is committed as part of a criminal organisation in the scope of the Directive, as this specific crime is an enabling source of profits, especially when operating in a cross-border context. Typical techniques employed to commit tax fraud or evasion consist of making use of cross-border corporate structures or similar arrangements to fraudulently obtain tax benefits and refunds, hide assets or profits, merge legal with illicit profits and assets or to transfer them to other entities abroad to disguise their origins or (beneficial) ownership.
Amendment 124 #
Proposal for a directive
Recital 32
Recital 32
(32) This Directive respects the fundamental rights and observes the principles recognized by the Charter of Fundamental Rights of the European Union (‘the Charter’) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), as interpreted in the case-law of the European Court of Human Rights. This Directive should be implemented in accordance with those rights and principles. In regards to the Charter of Fundamental Rights, it should be highlighted that this includes the rights to asylum (art. 18), the prohibition of removing a person to a country where they are at risk of being tortured (art. 19), the right to a fair trial (art. 47) and the right of defence (art. 48).
Amendment 134 #
Proposal for a directive
Article 2 – paragraph 1 – point b
Article 2 – paragraph 1 – point b
(b) terrorismt offences, as defined in Article 3 of Directive (EU) 2017/541 of the European Parliament and of the Council38; _________________ 38 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88, 31.3.2017, p. 6).
Amendment 135 #
Proposal for a directive
Article 2 – paragraph 1 – point e
Article 2 – paragraph 1 – point e
(e) illicit trafficking in narcotic drugs and psychotropic substances, where these offences are punishable by at least 5 years in prison, as defined in Council Framework Decision 2004/757/JHA41; _________________ 41 Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ L 335, 11.11.2004, p. 8).
Amendment 140 #
Proposal for a directive
Article 2 – paragraph 1 – point n
Article 2 – paragraph 1 – point n
Amendment 158 #
Proposal for a directive
Article 2 – paragraph 5
Article 2 – paragraph 5
5. The provisions on tracing and identification of instrumentalities and proceeds, or property in Chapter II shall apply to all criminal offences as defined in national law in accordance with paragraph 1 which are punishable by deprivation of liberty or a detention order of at least one year.
Amendment 159 #
Proposal for a directive
Article 2 – paragraph 5 a (new)
Article 2 – paragraph 5 a (new)
5a. This Directive shall not apply to formal or informal activities of humanitarian assistance to people on the move and entering EU borders.
Amendment 160 #
Proposal for a directive
Article 2 – paragraph 5 b (new)
Article 2 – paragraph 5 b (new)
5b. This Directive shall also not apply to activities under the framework of Maritime Law, such as savings and search and rescue operations.
Amendment 183 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. For the purposes of performing the tasks referred to in Article 5, Member States shall ensure that asset recovery offices have immediate and direct accessaccess in accordance with national law, including a court order if necessary, to the following information to the extent that information is necessary for the tracing and identification of proceeds, instrumentalities, and property:
Amendment 200 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. The direct and immediate access to the information referred to in paragraph 1 shall be without prejudice to the procedural safeguards established under Union and national law.
Amendment 208 #
Proposal for a directive
Article 9 – paragraph 1 – subparagraph 1
Article 9 – paragraph 1 – subparagraph 1
Member States shall take the necessary measures to ensure that their asset recovery offices provide, upon request from an asset recovery office of another Member State, any information that is necessary for the performance of their tasks pursuant to Article 5. The categories of personal data that can be provided are those listed in Section B, point 2 of Annex II to Regulation (EU) 2016/794, with the exception of forensic identification information as listed under Section B, point 2(c)(v) of Annex II of Regulation (EU) 2016/794.
Amendment 215 #
Proposal for a directive
Article 9 – paragraph 4
Article 9 – paragraph 4
Amendment 223 #
Proposal for a directive
Article 9 – paragraph 6 – point b a (new)
Article 9 – paragraph 6 – point b a (new)
(ba) jeopardise the fulfilment of the Member States’ obligations under Article 6 TEU.
Amendment 236 #
Proposal for a directive
Article 11 – paragraph 7 a (new)
Article 11 – paragraph 7 a (new)
7a. These measures shall not have the effect of restraining or undermining the obligation on the member states to protect fundamental rights under Article 6 TEU or any kind of humanitarian assistance.
Amendment 251 #
Proposal for a directive
Article 15 – paragraph 1 – point c
Article 15 – paragraph 1 – point c
Amendment 252 #
(d) immunity from prosecution of the suspected or accused person, as provided for under national law, with the exception of immunity granted to safeguard the independence of the judiciary;
Amendment 256 #
Proposal for a directive
Article 15 – paragraph 1 – point f
Article 15 – paragraph 1 – point f
Amendment 275 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall consider taking measures allowingtake the necessary measures to ensure that confiscated property to beis used for public interest or social purposes as a general rule.
Amendment 290 #
Proposal for a directive
Article 19 – paragraph 2 a (new)
Article 19 – paragraph 2 a (new)
2a. Member States may require the costs for the management of frozen property to be charged to the beneficial owner.
Amendment 295 #
Proposal for a directive
Article 20 – paragraph 4
Article 20 – paragraph 4
Amendment 327 #
Proposal for a directive
Article 26 – paragraph 3 a (new)
Article 26 – paragraph 3 a (new)
3a. The information referred to in paragraph 3 shall only be accessed for the purposes of freezing, confiscation and management of instrumentalities and proceeds, or property which may become or is the object of a confiscation order.
Amendment 328 #
Proposal for a directive
Article 26 – paragraph 4 a (new)
Article 26 – paragraph 4 a (new)
4a. Member States shall designate the entity responsible for the management of the registries and that will act as a data controller in accordance with Art 3(8) of Directive (EU) 2016/680.
Amendment 355 #
Proposal for a directive
Article 28 – paragraph 2
Article 28 – paragraph 2
2. Asset recovery offices shall cooperate with Europol and Eurojust, in accordance with the areas of their competence and within the limits of their respective legal frameworks, for the purposes of facilitating the identification of instrumentalities and proceeds, or property that may become or is the object of a freezing or confiscation order made by a competent authority in the course of criminal proceedings, and where necessary to prevent, detect or investigate criminal offences related to the violation of Union restrictive measures.
Amendment 363 #
Proposal for a directive
Article 29 – paragraph 2 a (new)
Article 29 – paragraph 2 a (new)
2a. This cooperation with third countries shall not have the effect of restraining or undermining the obligation on member states to protect fundamental rights under Article 6 TEU or any kind of humanitarian assistance.