ET

On 10 January 2019, the Court of Justice (First Chamber) delivered its judgment in case C-97/18, on the interpretation of Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders.

In particular, the judgment concerns Article 12(1) and (4) of the Framework Decision. Article 12(1) provides that the execution of the confiscation order shall be governed by the law of the executing State, while Article 12(4) forbids the executing Member State to impose measures as an alternative to the confiscation order, including measures limiting a person’s freedom, unless the issuing State has given its consent.

ET was subject to a confiscation order for € 800,000 issued by a Belgian court in December 2012. The Netherlands was requested to execute the confiscation order. The Dutch Law on the Mutual Recognition and Enforcement of Financial Penalties and Confiscation Orders allows a Dutch court (District Court, Northern Region), upon request of the public prosecutor, to grant leave for the enforcement of a term of imprisonment for a maximum of three years, if the convicted person fails to comply with the judgment in which payment of a sum of money to the State for the purpose of recovering unlawfully obtained gains was imposed. This rule applies when the person is not insolvent.

This was the case of ET. More than €650,000 was outstanding and the public prosecutor suspected there to be invisible financial flows. The latter thus lodged an application before the District Court, Northern Region, seeking leave to enforce a term of imprisonment against ET. The Court referred two questions to the Court of Justice for a preliminary ruling.

First, the referring court inquiries whether Article 12(1) and (4) of Framework Decision 2006/783/JHA must be interpreted as precluding the application of a law of an executing Member State, such as the Dutch one, which, for the purpose of enforcing a confiscation order adopted in an issuing State, authorises a term of imprisonment to be imposed, if necessary. The Court replies in the negative. The Court of Justice notes that, when a term of imprisonment has been imposed on the person who is subject to a confiscation order, the obligation to pay remains in place. That person may indeed be freed anytime from such an obligation by paying the debt. A term of imprisonment aims only to pressure the person who refuses to pay the amount owed even if he or she would be capable of doing so. Hence, it represents a means to execute a confiscation order issued in another Member State and is not an alternative to that order. It follows that the adoption of a term of imprisonment does not need the prior consent of the issuing State.

Second, the referring court wonders whether the fact that also the legislation of the issuing State allows having recourse to a term of imprisonment has a bearing on the application of such a measure in the executing State. The Court of Justice replies briefly in the negative. The principle upon which Framework Decision 2006/783/JHA builds – like any other instrument regulating the application of the principle of mutual recognition – is indeed that the execution of the confiscation order is governed by the law of the executing State. Therefore, it would adversely affect the objective pursued by Framework Decision 2006/783/JHA if the application of an execution measure in the executing Member State were governed by the national law of the issuing State or subject to the conditions provided for in that law.