The evolution of European Union criminal law (1957-2012)

Decision on confiscation orders which had been adopted in 2006 had been implemented
by 13 States only. Of these the Commission notes that they implemented the provisions
of the Framework Decision correctly,
“… with the exception of Article 8 on the grounds for refusal. Most Member States
included additional grounds for refusal not provided for by the Framework Decision.” 813
It is unclear whether this is due to a protectionist reaction after the complexity of the
EAW in practice or simply to a lack of interest or capacity of Member States. 814 The fact
that monies obtained from the execution of the decision shall accrue to the executing
Member States unless otherwise agreed by the two States 815 might contribute indeed to
the latter. Either way this low implementation rate is a clear slow down in the
mechanism of mutual recognition.
3.2 Evidence
Following these measures on financial enforcement, mutual recognition turned to yet
other realms of the criminal justice process. In this context, the Framework Decision on
the execution of orders freezing property and evidence enabling judicial authorities to
quickly secure evidence and seize property across borders, adopted in 2003. 816 The
Framework Decision is applicable to freezing orders issued in relation to any offences
and it further drops the verification of dual criminality in relation to the listed 32 offence
types. 817 Authorities in the executing Member States must recognise a freezing order
813 European Commission, Report from the Commission to the European Parliament and the
Council based on Article 22 of the Council Framework Decision 2006/783/ JHA of 6 October
2006 on the application of the principle of mutual recognition to confiscation orders,
COM(2010)428 final, Brussels, 23.8.2010, 2.
814 The execution of financial penalties can in fact be a thorny issue even at national level, see –
for the case of confiscation orders – K. Bullock, “Enforcing Financial Penalties”, supra note 799.
815 Monies obtained from the enforcement of decisions shall accrue to the executing State unless
otherwise agreed - Article 13, Framework Decision 2005/214/JHA, supra note 420.; Money
obtained from the execution of the confiscation order shall be kept by executing Member State if
below 10 000 EURO, if above the amount shall be shared by the two States (50%/50%) - Article
16, Framework Decision 2006/783/JHA, supra note 806.
816 Council Framework Decision 2003/577/JHA, supra note 806.
817 Article 3 (1) (2) (4), ibid..
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