Activities of Francisco GUERREIRO related to 2022/0167(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on Asset recovery and confiscation
Amendments (14)
Amendment 60 #
Proposal for a directive
Recital 2
Recital 2
(2) The main motive for cross-border organised crime, including high-risk criminal networks, is financial gain. Therefore, to tackle the serious threat posed by organised crime, competent authorities should be given the means to effectively trace and identify, freeze, confiscate and manage the instrumentalities and proceeds of crime and property that stems from criminal activities. The net proceeds resulting from the liquidation of confiscated assets should be reintroduced into legal economy. Where the confiscated assets stem from the crime of Russian aggression on Ukraine and other crimes associated with this aggression, the net proceeds resulting from the liquidation of their confiscation should serve the goal of supporting Ukraine in building back better.
Amendment 63 #
Proposal for a directive
Recital 5
Recital 5
(5) Therefore, the existing legal framework should be updated, so as to facilitate and ensure effective asset recovery and confiscation efforts across the Union as well as to enable channelling of the net proceeds resulting from the liquidation of confiscated assets into the Union budget in the form of new own resources and, where the assets stem from the crime of Russian aggression on Ukraine, in the form of external assigned revenue before the relevant Own Resources Decision enters into force and without prejudice to restitution, compensation, to the victims/public concerned. To that end, the Directive should lay down minimum rules on tracing and identification, freezing, confiscation and management of property within the framework of proceedings in criminal matters. In this context, proceedings in criminal matters is an autonomous concept of Union law interpreted by the Court of Justice of the European Union, notwithstanding the case law of the European Court of Human Rights. The term covers all types of freezing and confiscation orders issued following proceedings in relation to a criminal offence. It also covers other types of orders issued without a final conviction. Proceedings in criminal matters could also encompass criminal investigations by the police and other law enforcement authorities. It is necessary to reinforce the capacity of competent authorities to deprive criminals of the proceeds from criminal activities. For this purpose, rules should be laid down to strengthen asset tracing and identification, as well as freezing capabilities, to improve management of frozen and confiscated property, to strengthen the instruments to confiscate instrumentalities and proceeds of crime and property derived from criminal activities of criminal organisations, and to improve the overall efficiency of the asset recovery system.
Amendment 68 #
Proposal for a directive
Recital 6
Recital 6
(6) Moreover, the adoption of unprecedented and far-reaching Union restrictive measures triggered by the Russian invasion into Ukraine revealed the need to step up efforts to ensure the effective implementation of both sectorial and individual Union restrictive measures across the Union. While not criminal in nature, nor requiring criminal conduct as a pre-condition for their imposition, Union restrictive measures also rely on freezing of funds (i.e. targeted financial sanctions) and sectorial measures, and should thus benefit from strengthened capabilities in the context of identification and tracing of property. For such purpose, rules should be established to enhance the effective identification and tracing of property owned or controlled by persons and entities subject to such restrictive measures, and to promote greater international cooperation of asset recovery offices with their counterparts in third countries. Measures related to freezing and confiscation under this Directive, notably those under Chapters III and IV, remain however limited to situations where property stems from criminal activities, such as the violation of Union restrictive measures. This Directive does not regulate the freezing of funds and economic resources under Union restrictive measureWhere the assets stem from the crime of Russian aggression on Ukraine or associated crimes, the net proceeds resulting from the liquidation of confiscated assets should be dedicated to the reconstruction efforts of Ukraine and contributions towards the compensation of victims.
Amendment 74 #
Proposal for a directive
Recital 22
Recital 22
(22) Freezing measures should should include measures aimed at preserving and optimizing the value of concerned property until its disposal and be without prejudice to the possibility for a specific property to be considered evidence throughout the proceedings, provided that it would ultimately be made available for effective execution of the confiscation order. In the context of criminal proceedings, property may also be frozen with a view to its possible subsequent restitution or in order to safeguard compensation for the damage caused by a criminal offence.
Amendment 75 #
Proposal for a directive
Recital 39
Recital 39
(39) An effective recovery systemasset tracing and recovery system as well as maintaining the value of frozen assets requires concerted efforts of a wide range of authorities, from law enforcement, including customs authorities, tax authorities and tax recovery authorities to the extent that they are competent for asset recovery, asset recovery offices, judicial authorities and asset management authorities, including asset management offices. In order to ensure coordinated action by all competent authorities, it is necessary to establish a more strategic approach to asset recovery and promote a greater cooperation between the relevant authorities, and to obtain a clear overview of the results of asset recovery. For this purpose, Member States should adopt and regularly review a national strategy on asset recovery to guide actions in relation to financial investigations, freezing and confiscation, management as well as final disposal of the relevant instrumentalities, proceeds, or property. Furthermore, Member States should provide competent authorities with the necessary resources to be able to fulfil their tasks effectively. Competent authorities should be understood as the authorities entrusted with the carrying out of the tasks as outlined under this Directive and according to national set-ups.
Amendment 76 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39 a) The proceeds of confiscated assets for the Member States are highly unpredictable and volatile in nature. Due to this unpredictability, confiscation of assets may occur more often in some Member States than others. Besides possible windfall gains, investments and efforts which need to be taken to curb criminal offences and to finally confiscate assets are inseparable and unpredictable by nature. To mutualise the risks and the benefits making the need proceeds from the liquidation of confiscated assets without prejudice to restitution, compensation, to the victims/public concerned a new own resource follows the logic of European added value. Therefore the monetary value of the net procceds resulting from the liquidation of confiscated criminal should be transfered by the Member States to the Union budget in the form of a new own resource following the entry into force of the relevant Own Resources Decision.
Amendment 79 #
Proposal for a directive
Recital 39 b (new)
Recital 39 b (new)
(39 b) The net proceeds from the liquidation of confiscated assets resulting from the crime of Russian aggression on Ukraine without prejudice to restitution, compensation, to the victims/public concerned shall be transferred by the Member States to the Union budget in form of the external assigned revenue until the relevant Own Resources Decision enters into force. Such revenue should be externally assigned revenue in the Eastern Neighbourhood in the Neighbourhood, Development and International Cooperation Instrument – Global Europe on the Esastern Neighbourhood line ( 14 02 01 11) and should be used to support Ukraine in the current MFF and the relevant budget line in the next MFF if needed.
Amendment 82 #
Proposal for a directive
Recital 46
Recital 46
(46) In order to ensure that there is a common understanding and minimum standards for asset tracing and identification, freezing and management, this Directive should lay down minimum rules for the relevant measures as well as related safeguards. Furthermore, the implementation of the directive and in particular the measures undertaken to safeguard the value of frozen assets as well as the use of the proceeds from the liquidation of confiscated assets should be done in a way to ensure that no significant harm to any of the six environmental objectives, within the meaning of Article 17, on the establishment of a framework to facilitate sustainable investment (EU Taxonomy Regulation) is done. The adoption of minimum rules does not prevent Member States from granting more extensive powers to asset recovery offices or to asset management offices, or to provide for additional safeguards under national law, provided that such national measures and provisions do not undermine the objective of this Directive.
Amendment 85 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Member States shall ensure that staff of the asset recovery offices comply with the rules on confidentiality and professional secrecy and ethics as provided for under applicable national law. Member States shall also ensure that staff of asset recovery offices have the necessary specialised skills and abilities to perform their roles effectively and provide regular training including on ethics, integrity and anti-corruption.
Amendment 86 #
Proposal for a directive
Article 11 – paragraph 6 a (new)
Article 11 – paragraph 6 a (new)
6 a. Member States shall ensure sufficient budgetary resources to properly manage and maintain value frozen property in cases where there is no possibility to charge the costs for the management of frozen property to the beneficial owner or proceed with an interlocutory sale.
Amendment 87 #
Proposal for a directive
Article 11 – paragraph 7 a (new)
Article 11 – paragraph 7 a (new)
7 a. Court-appointed administrators in charge of the frozen assets before their possible confiscation shall undergo regular professional training, including on integrity, ethics and anti-corruption measures. They shall work under the principle of rotation and have a limited number of assignments.
Amendment 91 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall consider taking measures allowing confiscated property to be used for public interest or social purposesuse of the net proceeds resulting from the liquidation of confiscated asset except for those established as an own resource in accordance with Article 311(3) TFEU and those linked to the Russian aggression in Ukraine which constitute external assigned revenue in accordance with Article 21(5) of the Financial Regulation until the establishment of an own resource in accordance with Article 311(3) TFEU and without prejudice to restitution, compensation, to the victims/public concerned. Member States shall use a substantial share of the remaining income to be used for public interest also beyond the remit of public entities or social purposes including by civil society organizations as a priority.
Amendment 103 #
Proposal for a directive
Article 27 – paragraph 1
Article 27 – paragraph 1
1. Member States shall collect and maintain comprehensive statistics at central level on the measures taken under this Directive including of the net value of proceeds from the liquidation of confiscated assets.
Amendment 105 #
Proposal for a directive
Article 27 – paragraph 2
Article 27 – paragraph 2
2. Member States shall ensure that the statistics referred to in paragraph 1 are collected on a calendar basis and transmitted to the Commission on an annual basis, by [1 September5 March] of the following year.