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Friday, 31 May 2013
The Making of European Law
These links demonstrate the process that a legislative proposal goes through (under the ‘CoDecision Procedure’) on its way to becoming an EU Law. It is a current proposal – for a Directive.
Title: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the freezing and confiscation of proceeds of crime in the European Union
Legal Basis: TFUE/art 82 par 2, art 83 par 1 (All proposed legislation must show the legal authority in Primary Legislation for the proposed law)
Explanatory Statement (which is from the European Parliament’s Report)
The European Parliament has called on the Commission to propose new legislation on confiscation for a long time. By its own initiative report adopted in October 2011, the Parliament stressed in particular the need for rules on the effective use of extended and non- conviction based confiscation, rules allowing for the confiscation of assets transferred to third parties. In addition, the Parliament encouraged the introduction of instruments in national legal systems which, under criminal, civil or fiscal law, as appropriate, mitigate the burden of proof concerning the origin of assets held by a person accused of an offence related to organised crime.
The proposal for a Directive on the freezing and confiscation of proceeds of crime in the European Union was adopted by the European Commission on 12 March 2012. This Directive lays down the minimum rules for Member States with respect to freezing and confiscation of criminal assets through direct confiscation, value confiscation, extended confiscation, non- conviction based confiscation and third party confiscation. The Rapporteur generally supports the Commission proposal. The adoption of those minimum rules will harmonise the Member States’ freezing and confiscation regimes facilitating mutual trust and effective cross-border cooperation. It will also constitute a step towards strengthening the mutual recognition of freezing and confiscation orders which is an important aspect of the fight against cross-border serious and organized crime in the EU. With this report the Rapporteur intends to reinforce the provisions of non-conviction based confiscation and extended confiscation so as to make them more efficient in order to actually serve the purpose of preventing the use of proceeds of crime for committing future crimes or their reinvestment into licit activities.
Concerning the non-conviction based confiscation the Rapporteur notes that this system which was first used in the USA now appears to be more and more globally spread. Jurisdictions which have introduced non-conviction based confiscation legislation include: Italy, Ireland, United Kingdom, Albania, Bulgaria, Slovakia, Australia, South Africa, the Canadian provinces of Alberta and Ontario. At European level the existent systems of non- conviction based confiscation have been debated both in front of national Courts as well as the European Court of Human Rights and were considered compatible with national constitutional requirements and those of the European Court, provided that they are adopted by a judicial authority, with full respect of the rights of the defence and of bona fide third parties, and that they can be challenged before a court. These basic safeguards have also been included in the present Directive.
The provisions on extended confiscation were strengthened so that they provide for a single minimum standard which does not fall below the threshold set by Framework Decision 2005/212/JHA.
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