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area of asset recovery, to avoid any discrepancies with Union legislation and to ensure that the
matters regulated in the Protocol at Council of Europe level are compatible with the rules laid
down in the Union’s acquis on asset recovery and the new Directive on asset recovery and
confiscation.
The successful outcome of the negotiations is expected to lead to clearer rules on asset
recovery among Members States of the Council of Europe.
Consistency with existing provisions in the policy area
The negotiations on a new Protocol to the Warsaw Convention directly relate to common EU
rules on asset recovery.
The new Directive on asset recovery provides for standard forms of confiscation, including
rules on extended confiscation. Furthermore, the new Directive provides for non-conviction-
based confiscation in specific circumstances. The new Directive also provides for the
confiscation of unexplained wealth where a conviction is not possible, but the court is
satisfied that the property to be confiscated stems from criminal offences. On asset
management, rules on the establishment of asset management offices and the possibility to
sell frozen property before the confiscation are set out in the new Directive on asset recovery
and confiscation. Joint Action 98/699/JHA10, point (a) of Article 1 and Articles 3 and 4 of
Framework Decision 2001/500/JHA11, and the first four indents of Article 1 and Article 3 of
Framework Decision 2005/212/JHA12, remain in force as regards Denmark.
Regulation (EU) 2018/1805 sets out rules on judicial co-operation between Member States for
the purpose of the recognition and execution of freezing and confiscation orders. This
includes, inter alia, rules on the transmission, recognition and procedure for the execution of
freezing and confiscation orders, the management and disposal of frozen and confiscated
property (including interlocutory sales), restitution of property to victims as well as the
disposal of confiscated property or money obtained after the sale of property, including with a
view to victim compensation and to regulating the sharing of assets between Member States.
Moreover, the Regulation contains rules on the bearing and sharing of costs related to the
execution of cross-border freezing orders and on procedural rights of affected persons,
including as regards notification obligations and legal remedies. Regulation (EU) 2018/1805
replaced Council Framework Decisions 2003/577/JHA13 and 2006/783/JHA14, which remain
in force as regards cooperation with Ireland and Denmark, who do not participate in
Regulation (EU) 2018/1805.
In addition, the European Public Prosecutor’s Office (EPPO) is the Union body competent to
investigate, prosecute and bring to judgment the perpetrators of, and accomplices to, criminal
offences affecting the financial interests of the Union which are provided for in Directive
10 Joint Action 98/699/JHA of 3 December 1998 adopted by the Council on the basis of Article K.3 of the
Treaty on European Union, on money laundering, the identification, tracing, freezing, seizing and
confiscation of instrumentalities and the proceeds from crime (OJ L 333, 9.12.1998, p. 1).
11 Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification,
tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ L 182,
5.7.2001, p. 1).
12 Council Framework Decision 2005/212/JHA of 24 February 2005 on confiscation of crime-related
proceeds, instrumentalities and property (OJ L 68, 15.3.2005, p. 49).
13 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of
orders freezing property or evidence (OJ L 196, 2.8.2003, p. 45–55).
14 Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of
mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p. 59–78).