Regulation of the European Parliament and of the Council on the mutual recognition of freezing and confiscation orders

On 14 November 2018, the European Parliament and the Council adopted a Regulation on the mutual recognition of freezing and confiscation orders, pursuant to Article 82(1) TFEU .

The Regulation replaces Framework Decisions 2003/577/JHA and 2006/783/JHA for the Member States that are now bound by it. The Regulation complements the Directive 2014/42/EU: as the Commission holds in the Explanatory Memorandum, the Directive improves the domestic possibilities to freeze and confiscate assets, whereas the new Regulation aims to improve the cross-border enforcement of freezing and confiscation orders. Together, the Commission concludes, both instruments should contribute to effective asset recovery in the European Union.

The Regulation covers third-party confiscation and criminal non-conviction based confiscation and no longer provides for wide discretion to refuse recognition in case of extended confiscation. Inter alia, the speedy and efficient mechanism is ensured thanks to a standardised certificate for mutual recognition of confiscation orders and a standard form for freezing orders (both are annexed to the proposal). Finally, the Regulation takes duly into account the victim’s right to compensation and restitution: in cases where the issuing State confiscates property, the victim’s right to compensation and restitution shall indeed have priority over the executing and issuing States’ interest.

It is worth noting that the choice of legal instrument (a Regulation rather than a Directive) has been criticised by a number of Member States.