Regulation 2018/1805 of 14 November 2018, on the mutual recognition of freezing orders and confiscation orders, came into effect across all EU States – except Denmark – on 19 December 2020.
Thanks to this new Regulation, enforcement regarding the recovery of assets is now not only possible, but it’s easier than ever. And this is great news for victims of fraud and, generally, of crime.
Read on to discover some of the other important changes resulting from this new Regulation.
The recognition of freezing and confiscation orders in criminal matters in the EU has, until now, been governed by certain Framework Decisions and Directives.
However, to make these as effective as possible, the EU has determined that their rules should be established by a legally binding and directly applicable act of the European Union.
Hence, the enactment of Regulation 2018/1805 of 14 November 2018.
The new Regulation defines the rules under which Member States recognize and execute confiscation and freezing orders issued by other Member States, as stated in Article 1.1.
Additionally, all criminal offences to which this is now applicable are laid out in Article 3, which lists a total of 32 individual crimes.
See this related article for more information: Asset Recovery in Spain: 11 Crimes That Can Result in Asset Confiscation
As defined in Article 2.1, a freezing order is ‘a decision issued or validated by an issuing authority in order to prevent the destruction, transformation, removal, transfer or disposal of property with a view to the confiscation thereof’.
To transmit a freezing order, a signed freezing certificate will need to be provided by the issuing authority to the executing authority, as is outlined in Annex I in the new Regulation.
Upon receipt of a freezing certificate, the executing authority is required to act with the same ‘speed and priority’ as if it were a comparable domestic case, as is stated in Article 9.
As defined in Article 2.2, a confiscation order is ‘a final penalty or measure, imposed by a court following proceedings in relation to a criminal offence, resulting in the final deprivation of property of a natural or legal person‘.
The process for transmitting a confiscation order will be the same as that of a freezing order, in that the issuing authority will need to provide a signed confiscation certificate to the executing authority, as per Annex II.
The executing authority shall recognise and act upon a confiscation order in the same way as for a domestic case, as is stated in Article 18. For details of certain exceptions to this process, see Articles 19 and 21.
Freezing and Confiscation Orders
According to Article 23, the law of the executing State is what will govern both the freezing order and the confiscation order. The necessary procedures, therefore, will be determined by the executing authorities.
When a decision has been made by the issuing State for property to be restituted to the victim, they must communicate this information to the executing authority – either in the freezing certificate itself or at a late date.
The executing State will then take necessary measures to ensure the restitution of the frozen property. See articles 28 and 29 for more information.
Important note: There may be circumstances when the executing authority decides not to recognise or execute a freezing order or confiscation order, which is explained in Articles 8 and 19.
When it Comes to Spain
If you need help navigating the Spanish legal system, contact our specialist team of litigators at Lawants to schedule a consultation with one of the team.
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