Mutual recognition of freezing and confiscation orders

20-06-2017

The IA for the proposed regulation has a number of weaknesses that could be attributed to political urgency and the need for EU action in the area of freezing and confiscation of criminal assets, notably since the recent terrorist attacks in France, Belgium and Germany. Overall, the IA lacks sound data and this is openly recognised throughout the document. In the context of the IA, no public consultation took place and no ex-post evaluation of existing mutual recognition instruments was carried out. The IA does not explain clearly how addressing the deficiencies in the existing EU legislation and its implementation would increase recovery of criminal assets in cross-border cases, as there is a general lack of data in this policy context. As for the options proposed, the IA could perhaps have clarified why sub-options 4a and 4b were discussed jointly, whereas option 3 was presented as a stand-alone option. In addition to this, the regulatory options could have been checked in the light of the principle of subsidiarity. The IA could have explained in more detail what it means by 'harmonised grounds for non-recognition based on fundamental rights', which seem not to have been included in articles 9 and 18 of the proposal. In general, the choice of legal instrument is left outside the scope of the impact analysis and the choice in favour of a regulation seems rather pre-determined. The IA could have addressed the impact of adopting a regulation on those 12 Member States that currently have more restrictive approaches to confiscation. Finally, it could have stated whether stakeholders were consulted on the choice of instrument, and how the preferred option accommodates the divergent views of the stakeholders on the issue of mutual recognition as an alternative to further harmonisation.

The IA for the proposed regulation has a number of weaknesses that could be attributed to political urgency and the need for EU action in the area of freezing and confiscation of criminal assets, notably since the recent terrorist attacks in France, Belgium and Germany. Overall, the IA lacks sound data and this is openly recognised throughout the document. In the context of the IA, no public consultation took place and no ex-post evaluation of existing mutual recognition instruments was carried out. The IA does not explain clearly how addressing the deficiencies in the existing EU legislation and its implementation would increase recovery of criminal assets in cross-border cases, as there is a general lack of data in this policy context. As for the options proposed, the IA could perhaps have clarified why sub-options 4a and 4b were discussed jointly, whereas option 3 was presented as a stand-alone option. In addition to this, the regulatory options could have been checked in the light of the principle of subsidiarity. The IA could have explained in more detail what it means by 'harmonised grounds for non-recognition based on fundamental rights', which seem not to have been included in articles 9 and 18 of the proposal. In general, the choice of legal instrument is left outside the scope of the impact analysis and the choice in favour of a regulation seems rather pre-determined. The IA could have addressed the impact of adopting a regulation on those 12 Member States that currently have more restrictive approaches to confiscation. Finally, it could have stated whether stakeholders were consulted on the choice of instrument, and how the preferred option accommodates the divergent views of the stakeholders on the issue of mutual recognition as an alternative to further harmonisation.