(Original version : italian)
by Gabriella Arcifa
According to UN estimates the total amount of criminal proceeds generated in 2009 is around $2.1 trillion; however less than 1% of it are frozen and confiscated, proving that dirty money remains in the criminals’ pockets. In a globalized financial world, money laundering is an essential element of facilitate corruption, organized crime, and terrorism, and affect competition with law abiding economy. Tracking and recovering illicit money has then become since the ’90 a political priority at international level. Since then the international acquis is growing steadily. Suffice to remember :
a) the 1990 Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds from crime, of 1990,
b) the 2000 UN Convention against Transnational Organised Crime ;
c) the 2003 United Nations Convention against Corruption (Articles 52-59, which to date has been ratified by the European Union and 23 Member States),
d) the 2008 Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds of crime and on the financing of terrorism (CETS 198), (to date signed by 19 EU Member States and the European Union, and ratified by 11 Member States)
d) the 2010 OECD Financial Action Task Force (FATF) recommendations on Confiscation and Asset recovery (Recommendations 3, 4 and 38)
At European Union level, after the adoption in 1999 of the Tampere European Council Conclusions, a first legislative text on confiscation has been adopted on July 2001: the Framework Decision 2001/500/JHA However it soon appeared soon ineffective because of the MS too wide marge of discretion. It was then soon replaced by the Framework Decision 2005/212/JHAof 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property and by the Framework Decision 2006/783/JHA on mutual recognition of the confiscation orders. Again, even these texts didn’t reach their objective because of the persisting substantial differences among the MS’ legislation so that there was an high number of decisions opposing the confiscation orders issued by another EU MS[i]. To overcome these problems in 2008 the Commission proposed a more ambitious strategy with its Communication “Proceeds of organised crime – Ensuring that ‘crime does no pay’ (COM(2008) 766 final).
However it is only after the entry into force of the Lisbon Treaty and the adoption of the Stockholm Program by the European Council on December 10 2009 that it has been possible to adopt at qualified majority this kind of measures by paving the way to more ambitious common standards.
The new strategy has been endorsed by the 2010 Council Conclusions on Confiscation and Asset Recovery which made reference also to not-conviction-based confiscation procedures[ii] and in the Commission 2010 Communication The EU Internal Security Strategy in Action[iii]” as well as in the 2011 “anti-corruption package” submitted to the European Parliament and the Council in 2011.
Since then tracking the illicit money has become the common objective of several EU legislative measures recently examined by the European Parliament and dealing with
– the freezing and confiscation of criminal assets.
On March 14 the EU Council of Ministers has adopted the new directive on the freezing and confiscation of the proceeds of crime in the EU (only Poland voted against and UK and DK did’nt take part to the vote. The text was agreed with the European Parliament which adopted its position on February 25 (only EFD group voted against – see here).The agreement has been welcomed by many but concerns have also been raised (for instance by the European Criminal Bar Association – ECBA) which has considered that the new legislation could have an impact on protection of fundamental rights and against the proportionality principle.
The legal basis of the new Directive are art. 82.2 and 83 p. 1 of the TFUE so that it defines the minimum rules to be applied in the EU MS when “..freezing property with a view of possible later confiscation and confiscation of property, recommending general principles for the management and disposal of the confiscation objects” [iv].
The new directive has at least the merit to establish a clearer legal framework which can strengthen the judicial cooperation between the EU MS. That having been said it is worth noting that the initial scope of the draft Directive as submitted by the Commission has been significantly reduced during the negotiations between the European Parliament and the Council.
To better understand the dynamics of the interinstitutional negotiation in the following paragraphs the initial negotiation mandate adopted by the Parliamentary Committee (draft report A7-0178/2013 ) is juxtaposed with the final text as adopted by the Plenary (and by the Council). The following aspects require a particular attention :
– the scope
– the definition of proceeds and instrumentalities related to the criminal offence;
– the regime of confiscation;
– the eligibility and the meaning of the “extended confiscation powers”
– the conditions to admit a confiscation from a third party;