Asset-tracing investigations
1. To facilitate cross-border cooperation, Member States shall take measures to enable the swift tracing and identification of instrumentalities and proceeds, or of property which is, or might become, the object of a freezing or confiscation order in the course of proceedings in criminal matters.
2. Property referred to in paragraph 1 shall also include property which is, or might become, the object of a freezing or confiscation order in accordance with Article 10(2) of Directive (EU) 2024/1226.
3. Where an investigation is initiated in relation to a criminal offence that is liable to give rise to substantial economic benefit, asset-tracing investigations pursuant to paragraph 1 shall be carried out immediately by competent authorities. Member States may limit the scope of such asset-tracing investigations to investigations into offences liable to have been committed within the framework of a criminal organisation.
Asset recovery offices
1. Each Member State shall set up at least one asset recovery office to facilitate cross-border cooperation in relation to asset-tracing investigations.
2. Asset recovery offices shall have the following tasks:
(a)
to trace and identify instrumentalities, proceeds or property where necessary to support other national competent authorities responsible for asset-tracing investigations pursuant to Article 4 or the European Public Prosecutors Office (the EPPO);
(b)
to trace and identify instrumentalities, proceeds or property which are or might become the object of a freezing or confiscation order issued by a competent authority in another Member State;
(c)
to cooperate and exchange information with asset recovery offices in other Member States and the EPPO in the tracing and identification of instrumentalities, proceeds or property which are or might become the object of a freezing or confiscation order.
3. In order to perform their tasks pursuant to paragraph 2, point (b), asset recovery offices shall be entitled to request the relevant competent authorities, in accordance with national law, to cooperate with them where necessary for the tracing and identification of instrumentalities, proceeds or property;
4. Asset recovery offices shall be empowered to trace and identify property of persons and entities subject to Union restrictive measures where necessary to facilitate the detection of criminal offences referred to in Article 2(1), point (p), of this Directive, upon a request by national competent authorities based on indications and reasonable grounds for believing that a criminal offence pursuant to Article 3 of Directive (EU) 2024/1226 was committed. Such powers shall be without prejudice to relevant procedural requirements and safeguards established under national procedural law, including rules on the initiation of criminal proceedings or, where necessary, the requirement to obtain a judicial authorisation.
Access to information
1. For the purposes of performing the tasks referred to in Article 5, Member States shall ensure that asset recovery offices have access to the information referred to in this Article to the extent that such information is necessary for the tracing and identification of instrumentalities, proceeds or property.
2. Member States shall ensure that asset recovery offices have immediate and direct access to the following information, provided that such information is stored in centralised or interconnected databases or registers held by public authorities:
(a)
national real-estate registers or electronic data retrieval systems and land and cadastral registers;
(b)
national citizenship and population registers of natural persons;
(c)
national motor vehicle, aircraft and watercraft registers;
(d)
commercial registers, including business and company registers;
(e)
national beneficial-ownership registers in accordance with Directive (EU) 2015/849 and data available through the interconnection of beneficial-ownership registers in accordance with that Directive;
(f)
centralised bank-account registers in accordance with Directive (EU) 2019/1153.
3. For the purposes of paragraph 1, Member States shall ensure that asset recovery offices can swiftly obtain, either immediately and directly or upon request, the following information:
(a)
fiscal data, including data held by tax and revenue authorities;
(b)
national social security data;
(c)
relevant information which is held by authorities competent for preventing, detecting, investigating or prosecuting criminal offences;
(d)
information on mortgages and loans;
(e)
information contained in national currency databases and currency exchange databases;
(f)
information on securities;
(g)
customs data, including cross-border physical transfers of cash;
(h)
information on annual financial statements by companies;
(i)
information on wire-transfers and account balances;
(j)
information on crypto-asset accounts and crypto-asset transfers as defined in Article 3 of Regulation (EU) 2023/1113 of the European Parliament and of the Council ( 44 ) ;
(k)
in accordance with Union law, data stored in the Visa Information System (VIS), Schengen Information System (SIS II), Entry/Exit System (EES), European Travel Information and Authorisation System (ETIAS), and European Criminal Records Information System for Third-Country Nationals (ECRIS-TCN).
4. Where the information referred to in paragraphs 2 and 3 is not stored in centralised or interconnected databases or registers held by public authorities, Member States shall take the necessary measures to ensure that asset recovery offices can swiftly obtain that information from relevant institutions by other means in a streamlined and standardised manner.
5. Member States may decide that access to the information referred to in paragraph 3, points (a), (b) and (c), requires a reasoned request, and that such a request can be denied where the provision of the requested information would:
(a)
jeopardise the success of an ongoing investigation;
(b)
be clearly disproportionate to the legitimate interests of a natural or legal person with regard to the purposes for which access has been requested; or
(c)
comprise information provided by another Member State or third country and it is not possible to obtain consent for its further transmission.
6. Access to information referred to in this Article shall be without prejudice to the procedural safeguards established under national law, including, where necessary, the requirement to obtain a judicial authorisation.
Conditions for access to information by asset recovery offices
1. Information referred to in Article 6 shall be accessed on a case-by-case basis, only where necessary and proportionate for the performance of the tasks pursuant to Article 5 and by staff specifically designated and authorised to access such information.
2. Member States shall ensure that staff of the asset recovery offices comply with the rules on confidentiality and professional secrecy as provided for under applicable national law as well as the Union data protection acquis . Member States shall ensure that staff of asset recovery offices have the necessary specialised skills and abilities to perform their roles effectively.
3. Member States shall ensure that appropriate technical and organisational measures are in place to ensure a level of security appropriate to the risk of processing data in order for asset recovery offices to access and search the information referred to in Article 6.
Monitoring access and searches by asset recovery offices
Member States shall provide for logs of access and search activities by asset recovery offices under this Directive to be kept in accordance with Article 25 of Directive (EU) 2016/680.
Exchange of information
1. Member States shall take the necessary measures to ensure that their asset recovery offices provide, upon request from an asset recovery office in another Member State, any information that those asset recovery offices have access to, and that is necessary for the performance of the tasks pursuant to Article 5, of the asset recovery office requesting that information (the ‘requesting asset recovery office’). It shall only be possible to provide those categories of personal data listed in Section B, point 2, of Annex II to Regulation (EU) 2016/794, with the exception of forensic identification information listed in Section B, point 2(c)(v), of that Annex.
Any personal data to be provided shall be determined on a case-by-case basis, in light of what is necessary for the performance of the tasks pursuant to Article 5, and in accordance with Directive (EU) 2016/680.
2. When making a request pursuant to paragraph 1, the requesting asset recovery office shall specify as precisely as possible the following:
(a)
the object of the request;
(b)
the reasons for the request, including the relevance of the information requested for the tracing and identification of the relevant property;
(c)
the nature of the proceedings;
(d)
the type of criminal offence to which the request relates;
(e)
the link between the proceedings and the Member State in which the asset recovery office receiving the request is located;
(f)
details on the property targeted or sought, such as bank accounts, real estate, vehicles, vessels, aircraft, companies and other high-value items;
(g)
where necessary for the identification of the natural or legal persons presumed to be involved, any identification documents if available, details such as name, nationality, place of residence, national identification numbers or social security numbers, addresses, date and place of birth, date of registration, country of establishment, shareholders, headquarters and subsidiaries, as appropriate;
(h)
where applicable, reasons for the urgency of the request.
3. Member States shall take the necessary measures to enable their asset recovery offices to provide information to an asset recovery office in another Member State, without a request to that effect, where those offices are aware of information on instrumentalities, proceeds or property that they consider necessary, for the performance of the tasks pursuant to Article 5, of the asset recovery offices of that other Member State. When providing such information, asset recovery offices shall set out the reasons why the information provided is considered necessary.
4. Unless otherwise indicated by the asset recovery office providing information pursuant to paragraph 1 or 3, the information provided may be presented as evidence before a national court or competent authority of the Member State in which the asset recovery office receiving that information is located, in accordance with procedures under national law, including procedural rules on the admissibility of evidence in proceedings in criminal matters in line with the Charter of Fundamental Rights of the European Union and with obligations of Member States as set out in Article 6 of the Treaty on European Union.
5. Member States shall ensure that asset recovery offices have direct access to the Secure Information Exchange Network Application (SIENA) and use the specific fields designed for the asset recovery offices in SIENA that correspond to the information required under paragraph 2 or, where necessary on an exceptional basis, other secure channels for exchanging information pursuant to this Article.
6. Asset recovery offices may refuse to provide information to a requesting asset recovery office if there are factual reasons to assume that the provision of information would:
(a)
harm the fundamental national security interests of the Member State in which the asset recovery office receiving the request is located;
(b)
jeopardise an ongoing investigation or criminal intelligence operation, or pose an imminent threat to the life or physical integrity of a person; or
(c)
be clearly disproportionate or irrelevant with regard to the purposes for which it has been requested.
7. Where an asset recovery office refuses, pursuant to paragraph 6, to provide information to a requesting asset recovery office, the Member State where the asset recovery office receiving the request is located shall take the necessary measures to ensure that the reasons for refusal are given and that the requesting asset recovery office is consulted in advance. Refusals shall affect only the part of the requested information to which the reasons set out in paragraph 6 relate and shall not affect the obligation to provide other parts of that information, where applicable, in accordance with this Directive.
Time limits for provision of information
1. Member States shall ensure that asset recovery offices respond to requests for information made pursuant to Article 9(1) as soon as possible and in any event within the following time limits:
(a)
seven calendar days, for all requests that are not urgent;
(b)
eight hours, for urgent requests relating to information referred to in Article 6 that is stored in databases and registers to which those asset recovery offices have direct access;
(c)
three calendar days, for urgent requests relating to information to which those asset recovery offices do not have direct access.
2. Where the information requested pursuant to paragraph 1, point (b), is not directly available or the request made pursuant to paragraph 1, point (a), imposes a disproportionate burden on the asset recovery office receiving the request, that asset recovery office may delay the provision of the information. In such a case, the asset recovery office receiving the request shall immediately inform the requesting asset recovery office of that delay and shall provide the requested information as soon as possible and within seven days of the initial deadline established pursuant to paragraph 1, point (a), or within three days of the initial deadline established pursuant to paragraph 1, points (b) and (c).
3. The time limits set out in paragraph 1 shall start to run as soon as the request for information is received.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
