Initiative of the Republic of Austria, Belgium and Finland with a view to the adoption of a Council Decision concerning arrangements for cooperation between Asset Recovery Offices of the Member States - Hoofdinhoud

COUNCIL OF PUBLIC Brussels, 17 January 2006

THE EUROPEAN UNION

5278/06 DOCUMENT PARTIALLY

ACCESSIBLE TO THE PUBLIC LIMITE

CRIMORG 4

NOTE from : Presidency to : Multidisciplinary Group on Organised Crime

Prev. doc. : 15628/05 CRIMORG 156

Subject : Initiative of the Republic of Austria, Belgium and Finland with a view to the adoption of a Council Decision concerning arrangements for cooperation between Asset Recovery Offices of the Member States

The proposal was discussed for the first time at the MDG meeting of 11 January 2006. Scrutiny reserves were entered by DELETED. Parliamentary reserves by FR, IE, and UK.

Following the discussion, the Presidency has amended the text as set out in the annex. Delegations are invited to consider the proposed changes.

________________________

5278/06 GS/hm 1 ANNEX

COUNCIL DECISION 2005/ /JHA

of

concerning arrangements for cooperation between

Asset Recovery Offices of the Member States

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Articles 30(1)(a) and (b) and

34(2)(c) thereof,

Having regard to the initiative of the Republic of Austria, the Kingdom of Belgium and the

Republic of Finland.

Having regard to the Opinion of the European Parliament,

Whereas:

(1) The main motive for cross border organised crime is financial gain. This financial gain is a stimulus for committing further crime to achieve even more profit. In order to combat

organized crime effectively, information that can lead to the tracing and seizure of proceeds from crime has to be exchanged rapidly between the Member States of the European Union.

(2) Bearing in mind the Council Framework Decision on Confiscation of Crime-Related

Proceeds, Instrumentalities and Property 1 and the Council Framework Decision on the execution in the European Union of orders freezing property or evidence 2 .

1 OJ L 68/49 of 15 March 2005.

5278/05 GS/hm 2 (3) It is necessary that close cooperation takes place between the relevant authorities of the

Member States involved in depriving criminals of their illicit profits and that provision be made for direct communication between those authorities.

(4) Member States must organise their Asset Recovery Offices in such a way as to ensure that information is exchanged within a reasonable space of time.

(5) The Camden Assets Recovery Inter-Agency Network (CARIN) established in The Hague on 22-23 September 2004 already creates an informal network of practitioners and experts with the intention of improving mutual knowledge on methodologies and techniques in the area

of cross-border identification, freezing, seizure and confiscation of the proceeds from crime.

The Asset Recovery Offices created in application of this Decision should be the contact points of the CARIN network. Europol should support member states efforts towards the work of the CARIN network.

(6) Referring to the Communication from the Commission( 1 ) to the Council and the European

Parliament – The Hague Programme: Ten Priorities for the next five years - and its proposal to strengthen tools to address financial aspects of organised crime inter alia by promoting the establishment of criminal asset intelligence units in EU Member States.

(7) This Decision shall be implemented without prejudice to the Member States´ obligations towards Europol, as they have been laid down in the Europol Convention.

5278/05 GS/hm 3 HAS ADOPTED THIS DECISION:

Article 1 Designation and notification of Asset Recovery Offices

• 1. 

  Each Member State shall set up or designate a 1 national Asset Recovery Office 2 mandated or

  being charged with the facilitation of tracing and identification of proceeds of crime with a view to their subsequent freezing, seizure or confiscation by the competent judicial authority.

• 2. 

  Member States shall indicate the unit which is an Asset Recovery Office within the meaning of this Article. They shall notify this information to the General Secretariat of the Council in writing. The General Secretariat shall ensure that this notification is passed on to the Member States, and inform the Member States of any changes in these notifications.

  Article 2 Obligation to cooperate

• 1. 

  Member States shall ensure that their Asset Recovery Offices co-operate in the widest possible degree, both in accordance with this Decision and with national law, including for purpose of exchanging best practices and relevant information with Asset Recovery Offices of other Member States. Such cooperation shall in particular relate to any fact which one Member State considers necessary to communicate to another Member State in order to achieve the goals of the Asset Recovery Office as set out in Article 1.

1 Reserve by DELETED, which thought Member States should have the possibility to

designate more than one office.

5278/05 GS/hm 4 2. To the widest extent possible under the national law of the requested Member State,

cooperation shall also be granted with regard to proceedings that can lead to measures

equivalent to confiscation, which are not criminal sanctions, in so far as such measures are

ordered by a judicial 1 authority of the requesting Member State in relation to a criminal offence 2 .

Article 3 Status of Asset Recovery Offices

Member States shall ensure that the performance of the functions of the Asset Recovery Offices under this Decision shall not be affected by their internal status, regardless of whether it forms part of an administrative, law enforcement or a judicial authority.

Article 4 Exchange of Information between Asset Recovery Offices

• 1. 

  An Asset Recovery Office may make a request for information for a purpose stated in Article

• 1. 

  To that end it shall use the procedures provided for under the Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union. The grounds of refusal of that Framework

  Decision shall apply.

1 DELETED wanted to broaden this to 'other competent' authorities.

2 DELETED raised some questions as to whether this paragraph would also cover judicial cooperation

for the enforcement of confiscation of orders, in which case DELETED deemed the provision was out of place in this Framework Decision (as its scope is to be restricted to police co-operation).

• 2. 

  When filling out the form provided for under the Framework Decision on simplifying the

exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, the requesting Asset Recovery Office shall specify (...) the

object thereof and the reasons of the request, the nature of the proceedings and indications as exact as possible on property targeted or sought (bank accounts, real estate, cars, yachts and other high value items) and/or the natural or legal persons presumably being involved (e.g. names, addresses, dates and places of birth, date of registration, shareholders, headquarters). (...)

3. (....)

Article 5 Spontaneous exchange of Information between Asset Recovery Offices

• 1. 

  Asset Recovery Offices may, within the limits of the applicable national law and without a request to that effect, exchange information which they consider necessary for the execution of the tasks of another Asset Recovery Office in pursuance of the purposes of this Decision as stated in Article 1.

• 2. 

  The provisions of this Decision relating to the exchange of information shall apply as appropriate in relation to information forwarded under this Article.

  Article 6 Use of information received under this Decision

• 1. 

  Information or documents obtained under this Decision may only be used for the purposes laid down in Article 1 1 .

• 2. 

  When transmitting information or documents pursuant to this Decision, the transmitting Asset Recovery Office may impose restrictions and conditions on the use of information. The

  receiving Asset Recovery Office shall comply with any such restrictions and conditions. Such restrictions and conditions may not relate to the use of information for the purpose of compensations to victims of the offence in respect of which the information has been

  obtained 2 .

• 3. 

  Where a Member State wishes to use transmitted information or documents for criminal investigations or prosecutions, it has to obtain, through mutual legal assistance, prior consent from the competent judicial authority of the Member State that provided the information or documents. The transmitting Member State may approve such use according to its national law and by imposing conditions referred to in paragraph 2. Any refusal to grant consent shall

  be appropriately explained 3 .

  Article 7 Data protection

• 1. 

  Each Member State shall ensure that the established rules on data protection provided for when using the communication channels via all existing channels for law enforcement

  cooperation and judicial cooperation are applied also within the procedure on exchange of information provided for by this Decision.

1 Scrutiny reserve by DELETED.

2 New text inserted by the Presidency following a suggestion by DELETED.

5278/05 GS/hm 7 2. The use of information which has been exchanged directly or bilaterally under this Decision

shall be subject to the national data protection provisions of the receiving Member State. The personal data processed in the context of the implementation of this Decision will be protected in accordance with the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, and, for those Member States which have ratified it, the Additional Protocol of 8 November 2001 to that Convention, regarding Supervisory Authorities and Transborder Data Flows. The principles of Recommendation No. R(87) 15 of the Council of Europe Regulating the Use of Personal Data in the Police Sector should also be taken into account when law enforcement authorities handle personal data obtained under this Decision.

Article 8 Relationship to existing arrangements for co-operation

The present Decision is without prejudice to the obligations resulting from instruments of the

European Union on mutual legal assistance or mutual recognition of decisions regarding criminal matters and from bilateral or multilateral agreements or arrangements between the Member States

and third countries on mutual legal assistance 1 .

Article 9 Exchange of best practices

• 1. 

  Member States shall ensure that the Asset Recovery Offices set up or designated in accordance with Article 1 shall exchange best practices concerning ways to improve the effectiveness of Member States´ efforts in depriving criminals of their illicit profits, in particular regarding the identification and tracing of proceeds from crime in order to facilitate their subsequent freezing, seizure or confiscation by the competent judicial authority.

1 DELETED queried whether general instruments for police co-operation should be mentioned

here as well.

Article 10 Entry into force

• 1. 

  This Decision shall enter into force on the date of its publication in the Official Journal.

  Article 11 Implementation

• 1. 

  The Member States shall ensure that they are able to co-operate fully in accordance with the provisions of this Decision at the latest one year after this Decisions enters into force.

  By the same date Member States shall transmit to the General Secretariat of the Council and

  to the Commission the text of the provisions transposing into their national law the

  obligations imposed on them under this Framework Decision.

• 2. 

  As far as the exchange of information referred to in Article 4 is concerned, this shall take place on the basis of the applicable instruments on police cooperation between the Member States concerned, so long as these Member States have not yet implemented the Framework Decision Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union.

• 3. 

  The Council shall assess Member States´ compliance this Decision within three 1 years after

  the date on which it enters into force on the basis of a report made by the Commission. […]

Done at Brussels, For the Council

The President

________________________

5278/05 GS/hm 10

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