This report from the Commission is based on Article 22 of the Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders.

To recall , this Framework Decision applies the principle of mutual recognition to confiscation orders issued by a court competent in criminal matters 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.

Main conclusions : the report states that the degree of implementation of Council Framework Decision 2006/783/JHA of 8 October 2006 in the national legislation of the Member States of the European Union is clearly not satisfactory . Only 13 Member States implemented the FD and notified the Commission (at least informally) by the end of February 2010, fifteen months after the deadline set by the Framework Decision.

The national implementing provisions received from the thirteen Member States are generally satisfactory and can be considered to be in line with the Framework Decision, especially regarding the most important issues such as the abolition of dual criminality checks and the recognition of decisions without further formality. Unfortunately, the analysis of grounds for refusal of recognition shows that almost all Member States included in their national legislation several additional grounds . This practice is not in line with the Framework Decision.

The Commission invites all Member States to consider this Report and to take the opportunity to provide all further relevant information to the Commission and to the Council Secretariat, in order to fulfil their obligations under Article 22 of the Framework Decision. In addition, the Commission encourages those Member State that have signalled that they are preparing relevant legislation to enact and notify these national measures as soon as possible.

The partial and incomplete transposition of this instrument by Member States hampers substantively the full and effective application of the principle of mutual recognition in the European Union. It limits the role of judicial authorities in combating financial crime by depriving criminals of the financial benefit they obtain from criminal conduct . The Commission urges all those Member States which have not done so yet to take swift measures to implement this Framework Decision to the fullest extent. Furthermore, it invites those which have transposed it incorrectly, e.g. by including additional grounds for refusal, to review and align their national implementation legislation with the provisions of the Framework Decision. On the basis of the reactions to this report, the Commission will reflect on the need to revise this Framework Decision under the rules of the Treaty of Lisbon.

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PURPOSE : to facilitate cooperation between Member States as regards the recognition and execution of confiscation orders.

LEGISLATIVE ACT : Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders.

CONTENT : the Council unanimously adopted this Framework Decision, which aims to facilitate cooperation between Member States as regards the mutual recognition and execution of orders to confiscate property. It will oblige a Member State to recognise and execute in its territory confiscation orders issued by a court competent in criminal matters of another Member State. The Framework Decision will not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union, and any obligations incumbent on judicial authorities in this respect shall remain unaffected.

The general principle is that the competent authorities in the executing State will, without further formality, recognise a confiscation order which has been transmitted in accordance with rules laid down in the Framework Decision and will take all the necessary measures for its execution.

The Framework Decision contains a list of offences for which, if they give rise to a confiscation

order and are punishable in the issuing State by a custodial sentence of a maximum of at least 3 years, execution of the confiscation order will take place without verification of the double criminality of the acts in the executing Member State.

These offences are as follows: participation in a criminal organisation; terrorism; trafficking in human beings; sexual exploitation of children and child pornography; illicit trafficking in narcotic drugs and psychotropicsubstances; illicit trafficking in weapons, munitions and explosives; corruption; fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests; laundering of the proceeds of crime; counterfeiting currency, including of the euro; computer-related crime; environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties; facilitation of unauthorised entry and residence; murder, grievous bodily injury; illicit trade in human organs and tissue; kidnapping, illegal restraint and hostage-taking; racism and xenophobia; organised or armed robbery; illicit trafficking in cultural goods, including antiques and works of art; swindling; racketeering and extortion; counterfeiting and piracy of products; forgery of administrative documents and trafficking therein; forgery of means of payment; illicit trafficking in hormonal substances and other growth promoters; illicit trafficking in nuclear or radioactive materials; trafficking in stolen vehicles; rape; arson; crimes within the jurisdiction of the International Criminal Court; unlawful seizure of aircraft/ships; sabotage.

The Council may decide to add other categories of offences to the list at any time, acting unanimously after consultation of the European Parliament.

The restitution of property to its rightful owner is not dealt with in this legislation and neither does the text prejudice the end to which the Member States apply the amounts obtained as a consequence of its application.

The practical operation of this Framework Decision presupposes close liaison between the competent national authorities involved, in particular in cases of simultaneous execution of a confiscation order in more than one Member State .

A confiscation order, together with the certificate provided for in the Framework Decision, the standard form for which is given in the Annex, may, in the case of a confiscation order concerning an amount of money, be transmitted to the competent authority of a Member State in which the competent authority of the issuing State has reasonable grounds to believe that the person against whom the confiscation order has been issued has property or income. There are similar rules for specific items of property.

The execution of the confiscation order shall be governed by the law of the executing State and its authorities alone shall be competent to decide on the procedures for execution and to determine all the measures relating to it. The executing State may not impose measures as an alternative to the confiscation order, including custodial sanctions or any other measure limiting a person's freedom, as a result of a transmission, unless the issuing State has given its consent.

Amnesty and pardon may be granted by the issuing State and also by the executing State.. Only the issuing State may determine any application for review of the confiscation order.

Money which has been obtained from the execution of the confiscation order shall be disposed of by the executing State as follows: a) if the amount obtained from the execution of the confiscation order is below EUR 10 000, or the equivalent to that amount, the amount shall accrue to the executing State; (b) in all other cases, 50 % of the amount which has been obtained from the execution of the confiscation order shall be transferred by the executing State to the issuing State.

It should be noted that this Framework Decision is related to that on the confiscation of crime-related proceeds, instrumentalities and property ( CNS/2002/0818 ). It is also linked to Council Framework Decision 2003/577/JHA on the execution in the EU of orders freezing property or evidence ( CNS/2001/0803 ) and that on money laundering, confiscation of instrumentalities and proceeds ( CNS/2000/0814 ).

ENTRY INTO FORCE : 24/11/2006.

DATE OF APPLICATION : 24/11/2008.

- Member States shall communicate to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations resulting from this Framework Decision. On the basis of a report established on the basis of this information by the Commission, the Council shall, by 24 November 2009, assess the extent to which Member States have taken the necessary measures to comply with the Framework Decision.

- Member States, acting as executing States, shall inform the Council and the Commission, at the beginning of the calendar year, of the number of cases in which Article 17(b) has been applied (decision not to recognise the confiscation order) and a summary of reasons for this. By 24 November 2013, the Commission shall establish a report on the basis of the information received, accompanied by any initiatives it may deem appropriate.

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