Law governing execution
1. The execution of the freezing order or confiscation order shall be governed by the law of the executing State and its authorities shall be solely competent to decide on the procedures for its execution and to determine all the measures relating thereto.
2. A freezing order or confiscation order issued against a legal person shall be executed even where the executing State does not recognise the principle of criminal liability of legal persons.
3. Notwithstanding Article 18(2) and (3), the executing State may not impose alternative measures to the freezing order transmitted pursuant to Article 4 or confiscation order transmitted pursuant to Article 14 without the consent of the issuing State.
Notification of the competent authorities
1. By 19 December 2020, each Member State shall inform the Commission of the authority or authorities as defined in points (8) and (9) of Article 2 that are competent under its law in the cases where that Member State is, the issuing State or the executing State, respectively.
2. Where necessary, due to the structure of its internal legal system, each Member State may designate one or more central authorities to be responsible for the administrative transmission and reception of freezing certificates and confiscation certificates and for assisting its competent authorities. Each Member State shall inform the Commission of any such authority that it so designates.
3. The Commission shall make the information received under this Article available to all Member States and to the EJN.
Communication
1. Where necessary, the issuing authority and the executing authority shall consult each other without delay to ensure the efficient application of this Regulation, using any appropriate means of communication.
2. All communications, including those intended to deal with difficulties concerning the transmission or authentication of any document needed for the execution of the freezing order or confiscation order, shall be made directly between the issuing authority and the executing authority and, where a Member State has designated a central authority in accordance with Article 24(2), shall be made, where appropriate, with the involvement of that central authority.
Multiple orders
1. If the executing authority receives two or more freezing orders or confiscation orders from different Member States issued against the same person and that person does not have sufficient property in the executing State to satisfy all of the orders, or if the executing authority receives two or more freezing orders or confiscation orders in respect of the same specific item of property, the executing authority shall decide which of the orders to execute in accordance with the law of the executing State, without prejudice to the possibility of postponing the execution of a confiscation order in accordance with Article 21.
2. In taking its decision, the executing authority shall give priority to the interests of victims where possible. It shall also take all other relevant circumstances into account, including the following:
(a)
whether the assets are already frozen;
(b)
the dates of the respective orders and their dates of transmission;
(c)
the seriousness of the criminal offence concerned; and
(d)
the place where the criminal offence was committed.
Termination of the execution of a freezing order or confiscation order
1. Where the freezing order or confiscation order can no longer be executed or is no longer valid, the issuing authority shall withdraw the freezing order or confiscation order without delay.
2. The issuing authority shall immediately inform the executing authority, by any means capable of producing a written record, of the withdrawal of a freezing order or confiscation order and of any decision or measure that causes a freezing order or confiscation order to be withdrawn.
3. The executing authority shall terminate the execution of the freezing order or confiscation order, in so far as the execution has not yet been completed, as soon as it has been informed by the issuing authority in accordance with paragraph 2. The executing authority shall send, without undue delay and by any means capable of producing a written record, a confirmation of the termination to the issuing State.
Management and disposal of frozen and confiscated property
1. The management of frozen and confiscated property shall be governed by the law of the executing State.
2. The executing State shall manage the frozen or confiscated property with a view to preventing its depreciation in value. To that end, the executing State, having regard to Article 10 of Directive 2014/42/EU, shall be able to sell or transfer frozen property.
3. Frozen property and money obtained after selling such property in accordance with paragraph 2 shall remain in the executing State until a confiscation certificate has been transmitted and the confiscation order has been executed, without prejudice to the possibility of restituting property under Article 29.
4. The executing State shall not be required to sell or return specific items covered by a confiscation order, where those items constitute cultural objects, as defined in point (1) of Article 2 of Directive 2014/60/EU of the European Parliament and of the Council ( 18 ) . This Regulation shall not affect the obligation to return cultural objects under that Directive.
Restitution of frozen property to the victim
1. Where the issuing authority or another competent authority of the issuing State has issued a decision, in accordance with its national law, to restitute frozen property to the victim, the issuing authority shall include information on that decision in the freezing certificate or communicate information on that decision to the executing authority at a later stage.
2. Where the executing authority has been informed of a decision to restitute frozen property to the victim as referred to in paragraph 1, it shall take the necessary measures to ensure that, where the property concerned has been frozen, that property is restituted as soon as possible to the victim, in accordance with the procedural rules of the executing State, where necessary via the issuing State, provided that:
(a)
the victim's title to the property is not contested;
(b)
the property is not required as evidence in criminal proceedings in the executing State; and
(c)
the rights of affected persons are not prejudiced.
The executing authority shall inform the issuing authority where property is transferred directly to the victim.
3. Where the executing authority is not satisfied that the conditions of paragraph 2 have been met, it shall consult with the issuing authority without delay and by any appropriate means in order to find a solution. If no solution can be found, the executing authority may decide not to restitute the frozen property to the victim.
Disposal of confiscated property or money obtained after selling such property
1. Where the issuing authority or another competent authority of the issuing State has issued a decision, in accordance with its national law, either to restitute confiscated property to the victim or to compensate the victim, the issuing authority shall include information on that decision in the confiscation certificate or communicate, at a later stage, information on that decision to the executing authority.
2. Where the executing authority has been informed of a decision to restitute confiscated property to the victim as referred to in paragraph 1, it shall take the necessary measures to ensure that, where the property concerned has been confiscated, that property is restituted as soon as possible to the victim, where necessary via the issuing State. The executing authority shall inform the issuing authority where property is transferred directly to the victim.
3. Where it is not possible for the executing authority to restitute the property to the victim in accordance with paragraph 2, but money has been obtained as a result of the execution of a confiscation order in relation to that property, the corresponding sum shall be transferred to the victim for the purposes of restitution, where necessary via the issuing State. The executing authority shall inform the issuing authority where money is transferred directly to the victim. Any remaining property shall be disposed of in accordance with paragraph 7.
4. Where the executing authority has been informed of a decision to compensate the victim as referred to in paragraph 1, and money has been obtained as a result of the execution of a confiscation order, the corresponding sum, in so far as it does not exceed the amount indicated in the certificate, shall be transferred to the victim for the purposes of compensation, where necessary via the issuing State. The executing authority shall inform the issuing authority where money is transferred directly to the victim. Any remaining property shall be disposed of in accordance with paragraph 7.
5. Where proceedings to restitute property to, or compensate, the victim are pending in the issuing State, the issuing authority shall inform the executing authority accordingly. The executing State shall refrain from disposing of the confiscated property until the information on the decision to restitute property to, or compensate, the victim has been communicated to the executing authority, even in cases where the confiscation order has already been executed.
6. Without prejudice to paragraphs 1 to 5, property other than money that has been obtained as a result of the execution of the confiscation order shall be disposed of in accordance with the following rules:
(a)
the property may be sold, in which case the proceeds of the sale are to be disposed of in accordance with paragraph 7;
(b)
the property may be transferred to the issuing State provided that, where the confiscation order covers an amount of money, the issuing authority has given its consent to the transfer of property to the issuing State;
(c)
subject to point (d), if it is not possible to apply point (a) or (b), the property may be disposed of in another way in accordance with the law of the executing State; or
(d)
the property may be used for public interest or social purposes in the executing State in accordance with its law, subject to the consent of the issuing State.
7. Unless the confiscation order is accompanied by a decision to restitute property to the victim or to compensate the victim in accordance with paragraphs 1 to 5, or unless otherwise agreed by the Member States involved, the executing State shall dispose of the money obtained as a result of the execution of a confiscation order as follows:
(a)
if the amount obtained from the execution of the confiscation order is equal to or less than EUR 10 000, the amount shall accrue to the executing State; or
(b)
if the amount obtained from the execution of the confiscation order is more than EUR 10 000, 50 % of the amount shall be transferred by the executing State to the issuing State.
Costs
1. Each Member State shall bear its own costs resulting from the application of this Regulation, without prejudice to the provisions relating to the disposal of confiscated property set out in Article 28.
2. The executing authority may submit a proposal to the issuing authority that the costs be shared where it appears, either before or after the execution of a freezing order or confiscation order, that the execution of the order would entail large or exceptional costs.
Such proposals shall be accompanied by a detailed breakdown of the costs incurred by the executing authority. Following such a proposal the issuing authority and the executing authority shall consult with each other. Where appropriate, Eurojust may facilitate such consultations.
The consultations, or at least the result thereof, shall be recorded by any means capable of producing a written record.
Obligation to inform affected persons
1. Without prejudice to Article 11, following the execution of a freezing order or following the decision to recognise and execute a confiscation order, the executing authority shall inform, to the extent possible, the affected persons known to it of such execution and of such decision without delay, in accordance with procedures under its national law.
2. The information to be provided in accordance with paragraph 1 shall specify the name of the issuing authority and the legal remedies available under the law of the executing State. The information shall also specify, at least in a brief manner, the reasons for the order.
3. Where appropriate, the executing authority may ask the issuing authority for assistance in carrying out the tasks referred to in paragraph 1.
Legal remedies in the executing State against the recognition and execution of a freezing order or confiscation order
1. Affected persons shall have the right to effective legal remedies in the executing State against the decision on the recognition and execution of freezing orders pursuant to Article 7 and confiscation orders pursuant to Article 18. The right to a legal remedy shall be invoked before a court in the executing State in accordance with its law. As regards confiscation orders, the invocation of a legal remedy may have suspensive effect where the law of the executing State so provides.
2. The substantive reasons for issuing the freezing order or confiscation order shall not be challenged before a court in the executing State.
3. The competent authority of the issuing State shall be informed of any legal remedy invoked in accordance with paragraph 1.
4. This Article is without prejudice to the application in the issuing State of safeguards and legal remedies in accordance with Article 8 of Directive 2014/42/EU.
Reimbursement
1. Where the executing State is liable under its law for damage to an affected person resulting from the execution of a freezing order transmitted to it pursuant to Article 4 or confiscation order transmitted to it pursuant to Article 14, the issuing State shall reimburse the executing State for any damages paid to the affected person. However, where the issuing State can demonstrate to the executing State that the damage, or any part thereof, was exclusively due to the conduct of the executing State, the issuing and executing States shall agree between themselves on the amount to be reimbursed.
2. Paragraph 1 is without prejudice to the law of the Member States on claims by natural or legal persons for compensation for damage.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
