BETA

43 Amendments of Eva JOLY related to 2016/0412(COD)

Proposal for a regulation
Recital 12

(12) It is important to facilitate the mutual recognition and execution of orders to freeze and to confiscate property by establishing rules obliging a Member State to recognise and execute in its territory freezing and confiscation orders issued by another Member State within the framework of criminal ~~proceedings~~and administrative proceedings in relation to criminal activities. Some Member States and third country jurisdictions have national provisions allowing freezing and confiscation orders both within and outside the framework of 'criminal proceedings' in the strict sense of the word.

2017/09/18
Committee: ECON

Proposal for a regulation
Recital 13

(13) This Regulation should apply to all confiscation orders imposed by a court or by a competent authority following proceedings in relation to a criminal ~~offence~~activities and all freezing orders issued with a view to possible subsequent confiscation. It should therefore cover all types of orders covered by Directive 2014/42/EU, as well as other types of orders issued without final conviction within the framework of criminal proceedings. This Regulation should not apply to freezing and confiscation orders issued within the framework of civil proceedings or administrative proceedings not related to criminal activities.

2017/09/18
Committee: ECON

Proposal for a regulation
Recital 14

(14) This Regulation should cover confiscation and freezing orders related to offences covered by Directive 2014/42/EU, as well as orders related to other offences. The offences should therefore not be limited to the areas of particularly serious crimes with a cross-border dimension, as Article 82 TFEU does not require such limitation for measures laying down rules and procedures for ensuring mutual recognition of judgments in criminal matters. Tax fraud, aggravated tax fraud and tax evasion, for example, constitute particularly important cross-border offences which should be included in the list of offences covered by this Regulation. However, given that in certain Member States such offences are not punishable by a custodial sentence of a maximum of at least three years, the maximum custodial sentence should be lowered to two years for those specific offences.

2017/09/18
Committee: ECON

Proposal for a regulation
Recital 18

(18) This Regulation should be applied taking into account Directives 2010/64/EU30 , 2012/13/EU31 , 2013/48/EU32 , 2016/34333 , 2016/80034 and 2016/1919 of the European Parliament and of the Council35 , which concern procedural rights in criminal proceedings. Where non-conviction based confiscations constitute preventive confiscations following proceedings in relation to criminal activities, it is extremely important to ensure that the following strict conditions are met: non- conviction based confiscations should only be imposed against a finite list of possible targets identified by law, such as suspects of organised crime or of terrorism; the prosecution should prove that the property provenance cannot be justified and that the property to be confiscated is either disproportionate with regard to the declared income or the activity carried out or is of illicit origin or the result of reinvestment of the proceeds of crime; and effective procedural safeguards should be in place in order to ensure that the targets of non-conviction based confiscations have the right to a fair trial and the right to an effective remedy and that their presumption of innocence is respected. _________________ 30 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, p. 1). 31 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ L 142, 1.6.2012, p. 1). 32 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294, 6.11.2013, p. 1). 33 Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ L 65, 11.3.2016, p. 1). 34 Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, p. 1). 35 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297, 4.11.2016, p.1).

2017/09/18
Committee: ECON

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

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

2017/09/18
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 4

(4) 'proceeds' means any economic advantage derived directly or indirectly from a criminal ~~offence~~activity; it may consist of any form of property and includes any subsequent reinvestment or transformation of direct proceeds and any valuable benefits;

2017/09/18
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 5

(5) 'instrumentalities' means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal ~~offenc~~activities ;

2017/09/18
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 6

(6) 'issuing State' means the Member State in which a freezing order or a confiscation order is issued within the framework of criminal and administrative proceedings;

2017/09/18
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 8 – point a – point 2

(2) any other competent authority as defined by the issuing State which has competence in criminal or administrative proceedings to order the freezing of property or to execute a freezing order in accordance with national law. In addition, before it is transmitted to the executing authority the freezing order shall be validated, after examination of its conformity with the conditions for issuing such an order under this Regulation, in particular the conditions set out in Article 13(1), by a judge, court, investigating judge or a public prosecutor in the issuing State. Where the order has been validated by such an authority, that authority may also be regarded as an issuing authority for the purposes of transmission of the order;

2017/09/18
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 8 – point b

(b) in respect of a confiscation order, a competent authority as defined by the issuing State which, in criminal or administrative proceedings, has competence to enforce a confiscation order issued by a court in accordance with national law;

2017/09/18
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 1 a (new)

1a. A freezing order or confiscation order shall give rise to execution without verification of the double criminality of the acts if the acts giving rise to the freezing or confiscation order constitute one or more of the following offences, as defined by the law of the issuing State, and are punishable in the issuing State by a custodial sentence of a maximum of at least two years: – tax fraud, – aggravated tax fraud, – tax evasion.

2017/09/18
Committee: ECON

Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 1 – point f

(f) 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 or offences as regards taxes, duties and customs and exchange regulations as the law of the issuing State;

2017/09/18
Committee: ECON

Proposal for a regulation
Article 9 – paragraph 2

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 capable of producing a written record and shall, where appropriate, request the issuing authority to supply any necessary information without delay.

2017/09/18
Committee: ECON

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 %~~EUR 10 000 shall accrue to the executing State and the rest of the amount shall be transferred by the executing State to the issuing State.

2017/09/18
Committee: ECON

Proposal for a regulation
Recital 14

(14) This Regulation should cover confiscation and freezing orders related to offences covered by Directive 2014/42/EU, as well as orders related to other offences. The offences should therefore not be limited to the areas of particularly serious crime with a cross-border dimension, as Article 82 TFEU does not require such limitation for measures laying down rules and procedures for ensuring mutual recognition of judgments in criminal matters. Tax crimes for example constitute particularly important cross-border offences to include in the list of offences covered by this Regulation, but given that some countries do not punish them by a maximum of at least three years imprisonment, the threshold is being lowered to two years for these specific offences.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 35 – paragraph 1 – introductory part

1. Member States shall regularly collect and maintain comprehensive statistics from the relevant authorities. The statistics collected shall be sent to the Commission e~~ach year~~very six months and shall include, in addition to those foreseen in Article 11(2) of Directive 2014/42/EU:

2017/09/18
Committee: ECON

Proposal for a regulation
Article 35 – paragraph 1 a (new)

1a. The Commission shall submit an annual report to the European Parliament, the Council and the European Economic and Social Committee compiling statistics received and accompanied with comparative analysis.

2017/09/18
Committee: ECON

Proposal for a regulation
Article 38 – paragraph -1 (new)

-1 By ... (one year from the date of application of this Regulation) at the latest, the Commission shall submit an assessment to the European Parliament, the Council and the European Economic and Social Committee on the statistics and impact of preventive confiscation orders and the consequences on cross-border cooperation in case of the extension of such orders to all Member States.

2017/09/18
Committee: ECON

Proposal for a regulation
Article 38 – paragraph 1

2. By [~~fiv~~three years from the date of application of this Regulation] at the latest, the Commission shall submit a report to the European Parliament, the Council and the European Economic and Social Committee on the application of this Regulation. If necessary, the report shall be accompanied by proposals for adaptation of this Regulation.

2017/09/18
Committee: ECON

Proposal for a regulation
Recital 20

(20) To this end, freezing and confiscation orders should be transmitted directly by the issuing authority to the executing authority ~~or, where applicable, to a central authority~~and communicated to a central authority responsible for assisting the competent authorities, logging the freezing or confiscation orders transmitted and received at the national level and streamlining the transmission and reception of orders.

2017/10/27
Committee: LIBE

Proposal for a regulation
Annex I – section 8 – point 3 a (new)

3a. Is the offence for which the confiscation order is issued punishable in the issuing State by a custodial sentence or detention order of a maximum of at least two years as defined by the law of the issuing State and included in the list of offences set out below? (please tick the relevant box) - tax fraud, - aggravated tax fraud, - tax evasion.

2017/09/18
Committee: ECON

Proposal for a regulation
Recital 26

(26) The recognition and execution of a freezing order or a confiscation order should not be refused on grounds other than those stated in this Regulation. In particular, it should be possible for the executing authority not to recognise and execute a confiscation order on the basis of fundamental rights, the principle ne bis in idem, of the rights of any interested party, or of the right to be present at the trial.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 3 – paragraph 1 a (new)

1a. A freezing order or confiscation order shall give rise to execution without verification of the double criminality of the acts if the acts giving rise to the freezing or confiscation order constitute tax fraud, aggravated tax fraud and tax evasion, as defined by the law of the issuing State, and are punishable in the issuing State by a custodial sentence of a maximum of at least two years.

2017/10/27
Committee: LIBE

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,~~and communicated 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

Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 1 – point a a (new)

(aa) there are substantial grounds to believe that the execution of the confiscation order would be incompatible with the executing State's obligations in accordance with Article 6 TEU and the Charter of Fundamental Rights;

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 1 – point f

(f) 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 or offences as regards taxes, duties and customs and exchange regulations as the law of the issuing State;

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 14 – paragraph 1

1. A freezing order shall be transmitted in the form referred to in Article 16 by the issuing authority directly to the executing authority~~, or where applicable~~ and communicated 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

Proposal for a regulation
Article 17 – paragraph 1

The executing authority shall recognise a freezing order transmitted in accordance with Article 14 without further formalities and shall take the necessary measures to execute it unless that authority decides to invoke one of the grounds for non- recognition and non-execution provided for in Article 18 or one of the grounds for postponement provided for in Article 20. As soon as the execution of the order has been completed, the executing authority shall inform the issuing authority by any means capable of producing a written record.

2017/10/27
Committee: LIBE

(aa) there are substantial grounds to believe that the execution of the freezing order would be incompatible with the executing State's obligations in accordance with Article 6 TEU and the Charter of Fundamental Rights;

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 18 – paragraph 1 – point e

(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 or offences as regards taxes, duties and customs and exchange regulations as the law of the issuing State;

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 21 – paragraph 2

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.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 27 – paragraph 2

2. Each Member State ~~may~~shall designate~~, if it is~~ one ce~~ssary as a result of the organ~~ntral authority responsible for assisati~~on of its internal system, one or more central authorities responsible for the administrativ~~ng the competent authorities, logging all freezing and confiscation orders transmitted and received at the national level and streamlining the transmission and reception of the freezing orand confiscation orders ~~and to assist the competent authorities~~. The Member States shall inform the Commission thereof.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 28 – paragraph 2

2. All communications, including those intended to deal with difficulties concerning the transmission or authenticity of any document needed for the execution of the freezing or confiscation order, shall be made by direct contact between the issuing State and the executing authority involved ~~or, where the Member State has designated a~~and with the involvement of the central authority in accordance with Article 27(2)~~, with the involvement of that central authority~~.

2017/10/27
Committee: LIBE

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 %~~EUR 10 000 shall accrue to the executing State and the rest of the amount shall be transferred by the executing State to the issuing State.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 33 – paragraph 2

2. The substantive reasons for issuing the freezing or confiscation order shall not be challenged before a court in the executing State, except in cases of an order issued without a final conviction within the framework of criminal proceedings.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 35 – paragraph 1 – introductory part

Member States shall regularly collect and maintain comprehensive statistics from the relevant authorities and from the central authority pursuant to Article 27(2). The statistics collected shall be sent to the Commission e~~ach year~~very six months and shall include, in addition to those foreseen in Article 11(2) of Directive 2014/42/EU:

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 35 – paragraph 1 a (new)

The Commission shall submit an annual report to the European Parliament, the Council and the European Economic and Social Committee compiling statistics received and accompanied by a comparative analysis.

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 38 – title

Reporting and review clause

2017/10/27
Committee: LIBE

Proposal for a regulation
Article 38 – paragraph 1

By [~~fiv~~three years from the date of application of this Regulation] at the latest, and every three years thereafter, the Commission shall submit a report to the European Parliament, the Council and the European Economic and Social Committee on the application of this Regulation. The report shall include, among others, the following elements: (a) an overview of the statistics provided by Member States under Article 35; and (b) an assessment of the possible impact of cross-border freezing and confiscation orders on fundamental rights and freedoms and the rule of law. If necessary, the report shall be accompanied by proposals for adaptation of this Regulation.

2017/10/27
Committee: LIBE

Proposal for a regulation
Annex I – section 8 – point 3 a (new)

3a. Is the offence for which the confiscation order is issued punishable in the issuing State by a custodial sentence or detention order of a maximum of at least two years as defined by the law of the issuing State and included in the list of offences set out below? (please tick the relevant box) □ tax fraud, aggravated tax fraud and tax evasion;

2017/10/27
Committee: LIBE

Proposal for a regulation
Annex I – section 13 – paragraph 1 – introductory part

~~Where a c~~Central authority ~~has been made responsible for the administrativ~~responsible for assisting the competent authorities, logging all confiscation orders transmitted and received at the national level and streamlining the transmission and reception of the confiscation orders in ~~the issuing State~~accordance with Article 27(2):

2017/10/27
Committee: LIBE

Proposal for a regulation
Annex II – section 9 – point 3 a (new)

3a. Is the offence for which the freezing order is issued punishable in the issuing State by a custodial sentence or detention order of a maximum of at least two years as defined by the law of the issuing State and included in the list of offences set out below? (please tick the relevant box) □ tax fraud, aggravated tax fraud and tax evasion;

2017/10/27
Committee: LIBE

Proposal for a regulation
Annex II – section 13 – paragraph 1 – introductory part

~~Where a c~~Central authority ~~has been made responsible for the administrativ~~responsible for assisting the competent authorities, logging all freezing orders transmitted and received at the national level and streamlining the transmission and reception of the freezing orders in ~~the issuing State~~accordance with Article 27(2):

2017/10/27
Committee: LIBE