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30/03/2021 - - Legislation
CJEU - two opinions of the Advocate General concerning EIO and confiscation

This March, the opinion of Advocate General (AG) has been issued in two cases of the Court of Justice of the European Union (CJEU) that relate to the instruments of the judicial cooperation in the criminal matters within the EU.

The first case C-66/20 (Finanzamt für Steuerstrafsachen und Steuerfahndung Münster) raises the question whether a German administrative authority, authorised by national law to exercise the right and responsibilities of a public prosecutor's office in connection with certain offences, is entitled to issue a European Investigation Order (EIO) without the need for validation by judicial authority as required by Article 2(c) (ii) if Directive 2014/41/EU.

According to the opinion of AG, the EIO issued by the tax authority requires judicial validation. Advocate General Campos Sanchez-Bordona in his opinion of 11 March proposed that Article 2(c)(ii) of Directive 2014/41/EU must be interpreted as meaning that it does not allow a Member State to exempt national administrative authorities with competence in matters of taxation, including where those authorities are authorised to conduct investigations in certain criminal proceedings, from the obligation to require, before transmission of a European Investigation Order to the executing authority, validation of that order by a judge, a court, a public prosecutor or an investigating judge of the issuing State.

The full text of the opinion of the AG can be found here on the CJEU website.



The second case - joint cases C-845/19 and C-863/19 (Apelativen sad – Varna) refers to the interpretation of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and conscation of instrumentalities and proceeds of crime in the European Union. Namely, the CJEU has been asked to clarify whether the existence of a cross-border situation is necessary in order to trigger the application of the directive. The second question concerns the structure of the provisions of Directive 2014/42 which provide for various cases of confiscation. The third question concerns the scope of the right to an effective remedy of third parties who claim a right of ownership of property which has been confiscated.

On 24 March 2021 Advocate General Pikamae issued an opinion, proposing that:

  1. Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union and the Charter of Fundamental Rights of the European Union are applicable in the case of a criminal offence, such as that at issue in the main proceedings, consisting in the possession of narcotics for the purpose of their distribution, even when all the elements inherent in the commission of that offence are confined within a single Member State.
  2. Directive 2014/42 must be interpreted as meaning that confiscation does not necessarily presuppose that the economic advantage results from the criminal offence for which an individual has been convicted, but may relate to property which, on the basis of the facts of the case, the court is satisfied is derived from other criminal conduct, provided that the criminal offence of which the individual has been found guilty is among those listed in Article 5(2) of that directive and is liable, directly or indirectly, to give rise to economic benefit.
  3. Article 8 of Directive 2014/42, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation, such as that at issue in the present cases, which allows for the confiscation in favour of the State of property which is claimed to belong to a person other than the perpetrator of the criminal offence, without that third party having a possibility to appear as a party in the confiscation proceedings, where the third party is afforded a remedy under national law, before a civil court, which enables him or her to recover the confiscated property, provided that the procedural rules applicable to that remedy do not render it excessively difficult to exercise his or her property right.

The full text of the opinion of the AG can be found here on the CJEU website.

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