[ParlTrack]

Proposal for a regulation
Recital 26 a (new)

(26a) The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of a confiscation or freezing order would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the confiscation or freezing order should be refused.

2017/10/27
Committee: LIBE

Birgit SIPPEL, Emilian PAVEL

Proposal for a regulation
Recital 26 b (new)

(26b) This Regulation respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States’ constitutions in their respective fields of application. Nothing in this Regulation may be interpreted as prohibiting refusal to execute a confiscation or freezing order when there are reasons to believe, on the basis of objective elements, that the confiscation or freezing order has been issued for the purpose of prosecuting or punishing a person on account of his or her sex, racial or ethnic origin, religion, sexual orientation, nationality, language or political opinions, or that the person's position may be prejudiced for any of these reasons.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 9 a (new)

Article 9 a Grounds for mandatory non-recognition and non-execution of confiscation orders The executing authority of the Member State of execution shall refuse to recognise and to execute confiscation orders only if: (a) the execution of the confiscation order would be contrary to the ne bis in idem principle; (b) there is immunity or privilege under the law of the executing State which would prevent the execution of a domestic confiscation order on the property concerned; (c) the rights of any bona fide third party make it impossible under the law of the executing State to execute the confiscation order, including where that impossibility is a consequence of the application of legal remedies in accordance with Article 31; (d) there are substantial grounds to believe that the execution of the confiscation order would be incompatible with the obligations of the executing State in accordance with Article 6 of the Treaty on European Union and the Charter.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 9 b (new)

Article 9 b Grounds for optional non-recognition and non-execution of confiscation orders 1. The executing authority of the Member State of execution may decide not to recognise and not to execute confiscation orders only if: (a) the certificate provided for in Article 7 is incomplete, manifestly incorrect or manifestly does not correspond to the confiscation order, and has not been completed following the consultation in accordance with paragraph 2; (b) the confiscation order is based on a criminal offence committed outside the territory of the issuing State and wholly or partially on the territory of the executing State and the conduct in connection with which the confiscation order is issued is not an offence in the executing State; (c) if, in a case referred to in Article 3(2), the conduct on which the confiscation order is based does not constitute an offence under the law of the executing State; however, in relation to taxes or duties, customs and exchange, execution of the confiscation order shall not be refused on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing State; (d) according to the certificate provided for in Article 7, the person did not appear in person at the trial resulting in a confiscation order linked to a final conviction. That ground as recognized only in point (d) of this paragraph, for non-recognition and non execution shall not apply where the certificate states that the person, in accordance with further procedural requirements defined in the national law of the issuing State: (1) was summoned in due time in person and thereby informed of the scheduled date and place of the trial which resulted in the confiscation order, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that the interested person was aware of the scheduled trial, and was informed in due time that such a confiscation order could be handed down if the interested person did not appear for the trial; (2) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend the interested person at the trial and was indeed defended by that counsellor at the trial; or (3) after being served with the confiscation order and being expressly informed of the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which could lead to the original decision being reversed: - expressly stated that the interested person does not contest the confiscation order, or - did not request a retrial or appeal within the applicable time frame. 2. In the cases referred to in paragraph 1, before deciding not to recognise and execute the confiscation order, either in whole or in part, the executing authority shall consult the issuing authority by any appropriate means and shall, where appropriate, request the issuing authority to supply any necessary information without delay. 3. Any decision not to recognise and to execute shall be taken without delay and notified immediately and at the latest within 3 days to the issuing authority by any means capable of producing a written record.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Article 11 a Obligation to inform the interested parties on the execution of confiscation orders 1. Member States shall take the necessary measures to ensure that the confiscation order is communicated to the interested natural or legal person, including any bona fide third parties, at the latest within 48 hours after its execution. Such communication shall indicate the reason or reasons for the order concerned. 2. Member States shall take the necessary measures to ensure that the persons affected by the measures provided for under this Regulation have the right to an effective remedy and a fair trial in order to uphold their rights. 3. Without prejudice to Directive 2012/13/EU and Directive 2013/48/EU, persons whose property is affected by a confiscation order shall have the right of access to a lawyer throughout the confiscation proceedings relating to the determination of the proceeds and instrumentalities in order to uphold their rights. The persons concerned shall be informed of that right. 4. The interested person shall have an effective possibility to challenge the circumstances of the case, including specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived from criminal conduct. 5. Third parties shall be entitled to claim title of ownership or other property rights. 6. Where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Regulation, Member States shall take the necessary measures to ensure that the confiscation measure does not prevent those victims from seeking compensation for their claims.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 18 a (new)

Article 18 a Grounds for mandatory non-recognition and non-execution of freezing orders 1. The executing authority of the Member State of execution shall refuse to recognise and to execute freezing orders only if: (a) the execution of the order would be contrary to the ne bis in idem principle; (b) here is immunity or privilege under the law of the executing State which would prevent the execution of a domestic freezing order on the property concerned; (c) the rights of any bona fide third party make it impossible under the law of the executing State to execute the freezing order, including where that impossibility is a consequence of the application of legal remedies in accordance with Article 31; (d) there are substantial grounds to believe that the execution of the freezing order would be incompatible with the obligations of the executing State in accordance with Article 6 of the Treaty on European Union and the Charter.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 18 b (new)

Article 18 b Grounds for optional non-recognition and non-execution of freezing orders 1. The executing authority of the Member State of execution may decide not to recognise and not to execute the freezing order only if: (a) the form provided for in Article16 is incomplete or manifestly incorrect, and has not been completed following the consultation in accordance with paragraph 2; (b) the order is based on a criminal offence committed outside the territory of the issuing State and wholly or partially on the territory of the executing State, and the conduct in connection with which the freezing order is issued is not an offence in the executing State; (c) in a case referred to in Article 3(2), the conduct on which the freezing order is based does not constitute an offence under the law of the executing State; however, in relation to taxes or duties, customs and exchange, execution of the freezing order shall not be refused on the grounds that the law of the executing State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing State; 2. In the cases referred to in paragraph 1, before deciding not to recognise or not to execute the freezing order either in whole or in part, the executing authority shall consult the issuing authority, by any appropriate means, and shall, where appropriate, request the issuing authority to supply any necessary information without delay. 3. The executing authority may decide to lift the freezing order if, during the execution, it becomes aware that one of the grounds for non-recognition and non-execution applies.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 21 a (new)

Article 21 a Obligation to inform the interested parties on the execution of freezing orders 1. Member States shall take the necessary measures to ensure that the freezing order is communicated to the interested natural or legal person, including any bona fide third parties, as soon as possible after its execution. Such communication shall indicate, the reason or reasons for the order concerned. When it is necessary to avoid jeopardising a criminal investigation, the competent authorities may postpone communicating the freezing order to the interested person. 2. Member States shall take the necessary measures to ensure that the interested persons by the measures provided for under this Regulation have the right to an effective remedy and a fair trial in order to uphold their rights. 3. The freezing order shall remain in force only for as long as it is necessary to preserve the property with a view to possible subsequent confiscation. 4. Member States shall provide for the effective possibility for the person whose property is affected to challenge the freezing order before a Court, in accordance with procedures provided for in national law. Such procedures may provide that when the initial freezing order has been taken by a competent authority other than a judicial authority, such order shall first be submitted for validation or review to a judicial authority before it can be challenged before a Court. 5. Frozen property which is not subsequently confiscated shall be returned immediately. The conditions or procedural rules under which such property is returned shall be determined by national law. 6. Without prejudice to Directive 2012/13/EU and Directive 2013/48/EU, persons whose property is affected by a freezing order shall have the right of access to a lawyer throughout the freezing proceedings relating to the determination of the proceeds and instrumentalities in order to uphold their rights. The persons concerned shall be informed of that right. 7. Third parties shall been titled to claim title of ownership or other property rights. 8. The notification shall contain relevant information, in such a way that the person can lodge effective legal remedies, on the reasons of the freezing order, on the authority who issued the order and on the existing legal remedies under the national law of the executing State.

2017/10/27
Committee: LIBE

Emilian PAVEL, Birgit SIPPEL, Maria GRAPINI

Proposal for a regulation
Article 33 – paragraph 2

2. The substantive reasons for issuing the freezing or confiscation order ~~shall not~~may be challenged ~~before a court~~only in an action brought in the issuing State, without prejudice to the guarantees of fundamental rights in the executing State.

2017/10/27
Committee: LIBE

9 Amendments of Birgit SIPPEL related to 2016/0412(COD)

ParlTrack - 2011-2024