Brussels is seeking to clear legal blocks impeding the confiscation of Russian oligarchs’ assets as part of efforts to tighten the enforcement of its sanctions regime.
The European Commission has outlined proposals making breaches of EU sanctions a criminal offence across all 27 member states — a move that would facilitate the confiscation of assets belonging to sanction-evading individuals.
Brussels also presented measures designed to strengthen asset tracing and seizure among member states, which would notably allow them to rapidly freeze property at risk of disappearance.
The commission wants to make the enforcement of its sanctions regime — a matter for individual states — more efficient, while making it possible to confiscate assets that could ultimately be liquidated and used for the reconstruction of Ukraine.
The proposals “aim to ensure that the assets of individuals and entities that violate the restrictive measures can be effectively confiscated in the future”, the commission said.
But some member states are sceptical of attempts to fund reconstruction efforts with seized assets, given the need to protect due process and safeguard property rights.
German officials have pointed out that sanctions-related expropriation would require changing the country’s constitution, which guarantees private property. Finance minister Christian Lindner on Tuesday signalled a preference for the confiscation of assets belonging to the Russian central bank, rather than private individuals.
“Germany is politically open to the debate of using seized Russian sovereign assets for the reconstruction of Ukraine. We have to differentiate between sovereign assets, of the Russian central bank, for instance, and private assets,” he said.
European countries’ national systems differ in how harshly they deal with sanctions dodging. In 13 member states, violating sanctions can be either an administrative or a criminal matter, while it is only the latter in 12, according to the commission.
In two member states, sanctions evasion is purely an administrative violation. EU countries apply different penalties too.
The commission hopes that making sanctions-dodging a criminal offence across the EU would discourage forum-shopping by offenders seeking less severe regimes.
Authorities could also find it easier to seize assets because this generally can only be done as through a criminal process. Confiscated assets could be liquidated and used to seed a Ukraine reconstruction fund.
Member states now need to unanimously support a council resolution requesting the commission to introduce legislation to add sanctions evasion to the list of EU crimes. This means there are high hurdles to the proposals becoming law.
EU member states have frozen over €22bn in Russian central bank assets and €9.9bn in private assets following five sanctions packages, according to the commission. Brussels has been seeking to expand its range of punitive measures in a sixth package that would include an oil embargo, but is deadlocked mainly because of Hungarian opposition.
The commission is trying to “reinforce the existing instruments that we have”, Didier Reynders, the Justice commissioner, said on Wednesday.
He added: “At present, divergent criminal definitions and sanctions as regards the violation of the restrictive measures can still lead to impunity. We need to close the loopholes and provide judicial authorities with the right tools to prosecute violations of Union restrictive measures.”
Some member states say the commission should not raise expectations of asset seizures given the legal obstacles.
“It will take months of negotiations and years of litigation before a single euro will be seized,” an EU diplomat cautioned. “If at all. It would have a much bigger immediate impact if the Commission had put the same amount of time and energy into sanctions enforcement.”