EU Asset Recovery and Confiscation Regime – Quo Vadis? A First Assessment of the Commission’s Proposal to Further Harmonise the EU Asset Recovery and Confiscation Laws. A Step in the Right Direction?
| Author | Anna Sakellaraki |
| DOI | http://doi.org/10.1177/20322844221139577 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2022, Vol. 13(4) 478–501
© The Author(s) 2022
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DOI: 10.1177/20322844221139577
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EU Asset Recovery and
Confiscation Regime –Quo
Vadis? A First Assessment of the
Commission’s Proposal to
Further Harmonise the EU
Asset Recovery and
Confiscation Laws. A Step in
the Right Direction?
Anna Sakellaraki
DFG-Research Training Group ‘Dynamic Integration’(DynamInt), Humboldt University of Berlin, Berlin, Germany
Abstract
This article aims to explore the key novelties of the proposal recently published by the Commission
for a new Directive on asset recovery and confiscation and to offer critical reflection on certain
issues. The proposed Directive intends to replace the previous Directive 2014/42/EU on freezing
and confiscation and the Council Decision 2007/845/JHA on Asset Recovery Offices. The present
article first clarifies the legal bases chosen for the adoption of this new EU legal instrument and
shortly addresses some issues of compliance with the subsidiarity and proportionality principle.
Then offers an overall analysis of the most important provisions (a) on the different asset recover y
stages (asset tracing and identification, management, freezing and confiscation) (b) on the safeguards
for the persons affected by such measures and (c) on the newly introduced obligation for the
Member States to create a national asset recovery strategy. The article sheds also some light on the
relationship between the proposed Directive and the violation of EU restrictive measures and finally
concludes with some critical remarks, in order to contribute to the legal dialogue ahead of the final
adoption of the new Directive.
Keywords
asset recovery, confiscation, proposal for a directive, legal bases, asset recovery office
Corresponding author:
Anna Sakellaraki, DFG-ResearchTraining Group ‘Dynamic Integration’(DynamInt), Humboldt University of Berlin, Unter
den Linden 9, Berlin, 10099 Germany.
Email: sakellaa@hu-berlin.de
Introduction
On the 25
th
of May 2022 the European Commission published, as expected,
1
a new legislative
package consisting, inter alia,
2
of a proposal for a new Directive on asset recovery and confiscation
in the EU (the proposed Directive).
3
This can be perceived as a major effort to further harmonise
the still divergent asset recovery and confiscation regimes in the EU Member States,
4
despite the
previous numerous legislative initiatives at EU level.
5
The proposed Directive intervenes in various ways: (a) substantively: specifying the existing
rules and setting further minimum common rules for several asset recovery stages (tracing and
identification, management, freezing and confiscation), (b) institutionally: broadening the powers of
the Asset Recovery Offices (AROs) allowing them to urgently freeze assets, obtain direct access to
a set of national registries and databases and swiftly exchange information with each other as well
explicitly regulating the establishment of Asset Management Offices (AMOs) as specialised au-
thorities for the management of frozen and confiscated property and (c) strategicall y/
organisationally: promoting the adoption of a comprehensive national strategy on asset re-
covery, accompanied by provisions on the cooperation of AROs with the European Public
Prosecutor’sOffice (EPPO), Eurojust and Europol as well the cooperation of AROs and AMOs with
their counterparties in third countries.
Once adopted, the proposed Directive would therefore constitute the sole harmonisation instrument in
asset recovery and confiscation in the EU, alongside the Regulation (EU) 2018/1805 (the 2018 Reg-
ulation)
6
on mutual recognition of freezing and confiscation orders, replacing the EU harmonisation
instruments on freezing and confiscation currently in force, namely the Council FrameworkDecision 2005/
212/JHA (the 2005 Framework Decision)
7
and the Directive 2014/42/EU (the 2014 Directive)
8
as well
the Council Decision 2007/845/JHA (the 2007 Council Decision)
9
ruling on AROs. By the choice of
1. The European Commission’s plans had for instance already been reported in German media, see Christoph Schiltz,
‘Brüssel will kriminelle Verm¨
ogen einziehen: Einnahmen aus Straftaten sollen in der EU künftig konsequenter konfisziert
werden’Die Weltam Sonntag (Germany, 15 May 2022) 6. The green light for further regulation in the asset recoveryfield
was offered previously by the Commission, ‘Report from the Commission to the European Parliament and the Council,
Asset recovery and confiscation: Ensuring that crime does not pay’COM (2020) 217 final, 02.06.2020, 17-18.
2. Commission, ‘Proposal for a Council Decision on adding the violation of Union restrictive measures to the areas of crime
laid down in Art. 83(1) of the Treaty on the Functioningof the European Union’COM (2022) 247 final, and Commission,
‘Communication from the Commission to the European Parliament and the Council towards a Directive on criminal
penalties for the violation of Union restrictive measures’COM (2022) 249 final.
3. Commission, ‘Proposal for a Directive of the European Parliament and of the Council on asset recovery and confiscation’
COM (2022) 245 final.
4. See for example Commission, ‘Report from the Commission to the European Parliament and the Council, Asset recovery
and confiscation: Ensuring that crime does not pay’COM (2020) 217 final, 14 stating that despite some convergence there
are still significant differences in the non-conviction based confiscation regimes of Member States.
5. For a summary of the EU legislative acts on asset recovery, see Juliette Lelieur, ‘Freezing and Confiscating Criminal
Assets in the European Union’(2015) 5(3) EuCLR 279, 281 et seq. pointing out that in the last 15 years no less than seven
legal instruments were issued in this area.
6. Regulation (EU) 2018/1805 of the European Parliament and of the Council on the mutual recognition of freezing orders
and confiscation orders [2018] OJ L303/1.
7. Council Framework Decision 2005/212/JHA on confiscation of crime-related proceeds, instrumentalities and property
[2005] OJ L68/49.
8. Directive 2014/42/EU of the European Parliament and of the Council on the freezing and confiscation of instrumentalities
and proceeds of crime in the European Union [2014] OJ L127/39.
9. Council Decision 2007/845/JHA concerning cooperation between Asset Recovery Offices of the Member States in the
field of tracing and identification of proceeds from, or other property related to, crime [2007] OJ L332/103.
Sakellaraki 479
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